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HomeMy WebLinkAbout07-5308QUALITY BUILDERS WARRANTY CORPORATION, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. CIVIL ACTION JEFFERSON HOMES, INC. DOCKET NO. D 7 ~.53 v~ Civ~ 1 Terrr+ Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend agairut the claims set forth in the following pages, you must take action within twenty (20) days after this Complainrt 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 32 South Bedford St. Carlisle, PA 17013 717-249-3166 QUALITY BUILDERS WA~FtRANTY CORPORATION, Plaintiff vs. JEFFERSON HOMES, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION DOCKET NO. C> 7 -S3 0 $' Defendant . COMPLAINT AND NOW, this Sm day of September, 2007, 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, Wormleysburg, Cumberland County, Pennsylvania, 17043. 2. Defendant, Jefferson Homes, Inc. (Builder) is a Georgia corporation engaged in the new home building business with its principal place of business situate at 1371 Dogwood Dr., SW, Conyers, GA 30012. 3. On February 28, 2005, Builder executed a Builder Agreement with a~lendum in which Builder agreed to become a member in the QBW Ten-Year Limited Warranty Program and maintain its membership in the QBW Ten-Year Limited Warranty Program for five years to commence on February 28, 2005. A copy of said document is attached hereto incorporated herein and marked as "Exhibit 1 ". 4. Builder has breached its Agreement with QBW by failing to enroll all homes as required. Builder provided notice on August 1, 2007, that they intend to terminate their membership. 5. 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 entity under Builders or Builder's Principals common control constructs." (See Exhibit 1). 6. 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 1). 7. Builder's failure to enroll all homes they construct 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 until to February 28, 2010. 8. In the alternative, QBW seeks damages from Builder for homes, which the Builder would be required to piece warranties on during that period of time, which damages exceed the sum of $35,000. 9. QBW also seeks attorney's fees as authorized by Section B 5 of the Builder Agreement. 10. 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 Jefferson Homes, Inc. as follows: 1. That the Builder Agreement as amended executed by Defendant Jefferson Homes, Inc. be specifically enforced to require Jefferson Homes, Inc. to enroll all homes they construct for the period February 28, 2045 through February 28, 2010 in accordance with the Builder Agreement as amended. 2. In the alternative that Defendant, Jefferson Homes, Inc. be ordered to pay damages equal to warranty fees, which QBW was entitled to based upon homes projected for the period February 28, 2005 to February 28, 2010, said amounts to be in excess of $35,000.00. 3. Attonney's fees as authorized by Section B 5 of the Builder Agreement. 4. Such other relief as deemed appropriate by the court. Respectfully Submitted, G .~~.~1_ A. Gill, Esquire Quality Builders Warranty Corporation 325 North Second St~+eet Wonnleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders wamanty corporation QUALITY B 1.DERS W CO` 'ORATION _ :_ ~` ~" BUILDER AGREEMENT ,r' L ~-~ ~ t~, - - ~~~). AGREEMENT made this %/ day of ~-~ - , 20 6t- , between QUALITY BUILDERS WARRANTY CORPORAT N, a Pennsylvania corporation, herein referred to as "QBW,° and % ~.for• ra.c! r~.~vf ~,~ ~: ", n~rsrxp, mamauai or other) of ~a~~ 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 purchasers of those homes are protected by a warranty against certain specified defects. 2. In order to develop and maintain a good n~putation for providing protection to punthasers of well-built homes, QBW pro- tects and promotes its good-will by careful selection of builders #o participate in its warranty program. 3. Builder desires to partiapate in QBW s warranty .program and, to that end, agnees #o 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 nonrefundable. 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 confinue until terminated by either pa-ty in accordance with the terms of this Agreement. QBW reserves the right to rescreen Builder annually. If QBW deter- mines that Builder does not meet its approval standards upon rescreening then QBW may terminate Builder's member- ship 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 a~nstructs in any state in which QBW operates and agrees to pay all Bees required by QBW in the enroll- ment process, which flees 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 folkriving a period of suspension ornon-participation) provided that enropment is made within 45 days of execution 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 and model homes must be enrolled on the date of the Certificate of Occupancy or use as a model, whichever is earlier to qualify for enrotlment. The warranty{s) will be issued to the &irlder 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 mumunit dwelling such as but not limited to duplexes, townhouses and condominiums. If membership is terminated, at the direc- tion of QBW, Builder agrees to enroll any remaining units not enrolled at the time of termination. 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 $150:00 shall apply. QBW will provide Builder with a copy of the Limited Warranty Agreement and Enrollment Form. Builder and pur- chaser must complete and sign the Enrollment Form at closing, and Bulkier agrees to famish QBW with a copy of the signed Enrollment Form within ten (10) days of dosing. Bulkier agrees not to charge the purd~raser directly for the cost of the enrollment fee. A home will not be considered enrolled until QBW receives and approves the fully executed and com- pleted Enrollment Form, payment of all fees, and an approved final inspection. 3. Reservation of Power oi; 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 Bulkier 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 Bulkier hereby assigns to QBW or its insurer, as the case maybe, any righffi 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 Bulkier fails to so cooperate, Builder agrees to compensate and indemnify QBW for any damages sustained by such lack of cooperation. 5. Bn~ch arxf RentecJy, tf Builder fails; " ~nroll any eligible home as required by this , ement, QBW may seek specific enforce- meet or other appropriate relief in le~.~ or equitable proceedings, even if this Agr~rnent has been terminated. Furthermore, ' Builder agrees to indemnify and hold harmless QBW and its insurer for 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 accordance with the rules and regulations of the QBW Program; (g) fails to provide timely proo# 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; (1) fails to perforrn 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 #o control the affiliated Builder. Termination of Builder by QBW shall no# affec# 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 n;quest, Builder shall immediatery return to QBW all materials supplied by QBW and all material making reference to QBW. Should Builder fail to take these steps, it shall indemnify 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. ff 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 suspend the Builder, such suspension will remain in effect until Builder has cured all defects to QBW's satisfaction, how- ever, QBW reserves the right to terminate any suspended Builder. & Voidability. QBW reserves the right to void any enrollment if Builder miss#ates or misrepresents any information in its appli- cation or in the rescneening 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 conformifi 'h approved building codes and other stt vds established by QBW and in effect . at the beginning of construction of the enrolled home. QBW reserves the r~y.,c to establish special requirements for escrow payments or other means of protection with respect to any homes constructed by Builder which QBW deter- mines 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 verify Builder's compliance with this Agreement and Builder agrees to cooperate. (d) The Builder agrees to indemnify 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. ff such reports indicate a need for special foundation design the Builder agrees to construct the foundation according to the design of a registered pro- fessional 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 under the QBW Warranty Program, if the Builder fails or refuses to perform its obligations in accordance with the Limited Warranty Agneement or this Agreement, QBW will perform the Builder's obligations, how- ever, the Builder agrees to reimburse QBW and/or Insurer for all expenses incurred in performing their obligations, includ- ing but not limited to, cost of materials, cost of collection, labor, architect's fees, engineering fees and counsel fees. QBW and/or Insurer reserve all rights of subrogation. During years three through ten under the QBW Warranty Program, QBW will pertorm its obligations with respect to major structural defects as set forth and defined in the Limited Warranty Agreement without the right of subrogation against the Builder provided that the defect, or symptoms of the subsequent occurrence of the defect, first arose after the expira- tion of two years under the QBW Warranty Program in effect for that home, and that Builder did not attempt to conceal or cosmetically repair the defect or symptoms of the subsequen# occunence of a defect and that the defect does not arise from Builder's failure to construct the home to applicable QBW standards or adhere to Builder's responsibilities under the Builder Agreement. If the Builder repairs a major structural defect during years one or two, QBW must be notified. Once notified, QBW will perform a compliance inspection. 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 purchasers under the Limited Warranty Agreement. Builder should become familiar with the settlement procedures in order to be aware of its rights and responsibilities. Builder agn3es to cooperate fuNy 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 hen3of. 2. The Builder agn3es to pay all fees chargegi in connection with the informal dispute settlement and arbitration procedures, SECTION E. TERMS GOVERNING OPERA IITION 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 ere 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-employ relationship, joint venture or partner- ship between the parties. None of the parties, nor any of their empbyees or ages, shall have the authority to bind or obligate 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 determination will not affect the validity of the remaining provisions. 5. This Agreement shall be interpret' nd enforced in accordance with the law: .he Commonwealth of Pennsylvania. All suits instituted under this Agreemi~nt shall be brought in Pennsylvania in a court of competent jurisdiction. Builder here- by consents to the personal jurisdiction of the Pennsylvania courts. 6. Builder shall not assign this Agreement without the prior written consent of QBW. 7. This Agreement shall inure to the benefit 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 written contract shall be valid or binding; and this contract may not be enlarged, mod- ified, 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 Agreemen# 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 indicated on the front, 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. WA-ItRAN'Iy CORPORATION Date of execution by QBW February 28, 2005 Builder's Registration No. 50417 Mama ot~uTlder - rdeass want or type) ~y Date 1-/i-c~ - /~ By t~ (signahne of Authorized Representative - Title) ~~- Sign Here (Plsaee print narrre/Utle of executor) ADDENDUM In consideration for receiving a reduced rate, Builder agrees to maintain its' membership in the QBW program for a period of ._~, years to commence on the date this addendum is executed by QBW. Builder agrees to submit for enrollment all homes which Buikder or any affiliate constructs during this term and any extensions. In exchange, Builder's rate will be $ 17c~ /per thousand. The addendum will renew for like terms unless (30) days prior to the expiration of the term, ar any extensions; ei#her party provides the other (30) days advance written notice that they intend not to extend the period entitling the builder to a lower rate. If Builder provides notice, QBW will adjust the Builder's rate upward effective at the end of the then current term. (t'tsaee ~ namertltle oI ex.crrcor) I~ne or t3ulkisr - pNilse want or type) Date ?- //-- 1' ~'( d3y ~~t or Auarortred R.praeerK,ure . ~ Date Febr ry 28, 2005 BUIIDIERS WARRANTY CORPORATION Please note that in reviewing applicants for the QBW Program, certain costs are incurred, therefore all application fees are non-refundable. ciuainr euiidsrs tyi~Corporetion sew FowN oso sroa VERIFICATION I, JORDAN F. OLSHEFSKI, Vice President of Quality Builders Warranty Corporation, hereby certify and state that the foregoing Plaintii~s Complaint is true and correct to the best of my knowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: _ ql S ~D Quality Builders Warranty Corporation By: Jordan F. Olshefski, Vice President -- t"- C~ r r ~ f ~ ?. j7'i -" ._ ! rv i~T _ -~ SU c.r~ 1 r-~ r ~} ''r -y .. s ~~ ~Il ~ ~ ~ .. } a j r , ~~ _ 0 .-,. QUALITY BUILDERS WARRANTY CORPORATION Plaintiff v. Jefferson Homes, Inc. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 07-5308 CIVIL TERM AFFIDAVIT OF SERVICE BY MAIL On September 5, 2007, I mailed a true and correct copy of the Complaint by certified mail, return receipt requested to, Jefferson Homes, Inc., Article # 7004 1350 0003 0402 3624, at their address. Jefferson Homes, Inc. received the Complaint on September 10, 2007 as indicated by the receipt attached hereto as Exhibit "A". I make these statements pursuant to 18 Pa.C.S. 4904 relating to unsworn falsification to authorities and understand that false statements may be subject me to criminal penalties under that statute. 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C fi29E 20fi0 E000 ~SE 'C fiDOz rttp://trkcnfrm l .smi.usps.com/PTSInternetWeb/InterLabelInquiry.do 9/14/2007 ~ ° c~ ~t ~ _ `- ~.~: ~. t° u~ ~~,.: .. --s N~ :.~ <- ~ ~t t:~ ~~ c.~ ~ O DOCKET NO. 07-5308 v. JEFFERSON HOMES, INC. Defendant TO: Jefferson Homes, Inc. 1371 Dogwood Dr., SW Conyers, GA 30012 Date of Notice: October 3, 2007 IMPORTANT NOTICE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION, CIVIL ACTION Plaintiff YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGEMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET HELP: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 717-249-3166 r Respectfully Submitted, Jo 1, Esquire Quality Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation i CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Notice of Default was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Jefferson Homes, Inc. 1371 Dogwood Dr., SW Conyers, GA 30012 ~~ Date: ~~'~' y-L~,~,, 3,~ y o 7 -p o /I"!6 .~, ~- Pegg 'son, Secretary ~, ~~t i r.•.-~ :..1... ...~..~ , 1' ~1 : r • __ y _ _1- F. '_. `.%. 't =st ~^ ""' • REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(a,Rea~erAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rioyce ~Rea~erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorn~s for Jefferson Homes, Inc. QUALITY BUILDERS WARRANTY CORPORATION Plaintiff v. JEFFERSON HOMES, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5308 CIVIL ACTION -LAW Jury Trial Demanded NOTICE TO PLEAD To: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. Second St. Wormleysburg, PA 17043 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. REAGER ~k~~, r• Date: October 9, 2007 Thom~s O. Williams, Esquire \ Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams Rea erAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rioyice _;ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jefferson Homes, Inc. QUALITY BUILDERS WARRANTY CORPORATION Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5308 v. JEFFERSON HOMES, INC. Defendant CIVIL ACTION -LAW Jury Trial Demanded DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes Defendant, Jefferson Homes, Inc., by and through its undersigned counsel, Reager & Adler, PC, and files the following Preliminary Objections raising lack of jurisdiction pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(1), and in support thereof avers the following: 1. This action was commenced by Plaintiff, a Pennsylvania resident, against Defendant, a resident of the State of Georgia. 2. Plaintiff seeks damages purported to be in excess of $35,000.00 from Defendant alleging a breach of a purported written agreement, which agreement was attached to the Complaint. 3. The purported written agreement attached to the Complaint does not contain a true authorized signature of any representative of the Defendant and is further believed, and therefore averred, to constitute a forgery. As such, no terms contained in the purported agreement are valid or enforceable against the Defendant. 4. This Court lacks in personam jurisdiction over the Defendant, because the Defendant has had insufficient contacts with this Commonwealth for the reasons set forth herein. 5. All actions between the parties to this lawsuit have taken place within the State of Georgia. 6. The Defendant is not engaged in any business in Pennsylvania, and has not sought any customers in Pennsylvania. 7. As a homebuilder, all of the Defendant's customers, and all of the homes built by the Defendant, are located in the State of Georgia. 8. No valid written agreement exists between the Defendant and the Plaintiff. 9. The Defendant's contacts with this Commonwealth do not constitute the required and necessary substantial and meaningful contacts with this Commonwealth necessary to establish in personam jurisdiction over it. 10. The Defendant does not have any connection with this Commonwealth by which the Defendant would reasonably anticipate being hailed into court in this Commonwealth. 11. The Defendant never purposely directed any of its business activities at any resident in this Commonwealth, and never purposely availed itself of the privilege of conducting any business activities within this Commonwealth. 12. The Defendant has not paid any taxes in Pennsylvania, and has not maintained any office or place of business in this Commonwealth. 13. Because the Defendant has had insufficient contacts with this Commonwealth to give rise to in personam jurisdiction, Plaintiff s Complaint must be dismissed for lack of jurisdiction. WHEREFORE, Defendant Jefferson Homes, Inc., respectfully requests this Honorable Court to dismiss Plaintiff s Complaint for lack of jurisdiction with prejudice. Respectfully submitted, REAGER Date: October 9, 2007 By: Thom O. Williams, Esquire Attorney I.D. No. 67987 Richard J. Joyce, Esquire Attorney I.D. No. 85520 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Jefferson Homes, Inc. VERIFICATION I, Catherine Downey, hereby verify that I am the Vice President of Jefferson Homes, Inc., and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: BY~ CERTIFICATE OF SERVICE AND NOW, this 9th day of October, 2007, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. Mail, postage prepaid and addressed as follows: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. Second Street Wormleysburg, PA 17043 T~i~ma.Q D. Cc~ ,~//.~z~~~~' Thomas O. Williams, Esquire P ~,~3. ~µc. ~ ~~ 4~, l ~~ C.a ~ ~~ ..y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION, CNIL ACTION DOCKET N0.07-5308 Plaintiff v. : JEFFERSON HOMES, INC. Defendant PLAINTIFF'S REPLY TO DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW this 19~ day of October 2007 comes the Plaintiff, Quality Builders Warranty Corporation (QBW) and files the within Reply to Defendant's Preliminary Objections and avers in support hereof the following: 1. Admitted. 2. Admitted in part and denied in part. QBW's complaint seeks specific performance and in the alternative seeks damages in excess of $35,000.00. 3. Denied. The Defendant forwarded the written agreement attached to QBW's complaint to QBW. QBW further responds that the agreement is valid and enforceable and establishes jurisdiction in the state of Pennsylvania based on the following facts: A. QBW is a Pennsylvania Corporation engaged in the Ten-Year New Home Warranty business with its principal place of business situate in Cumberland County, Pennsylvania. B. Defendant is a Georgia Corporation engaged in the new home building business with its principal place of business situate in Conyers, Georgia. C. New home builders, who are a member of QBW, offer warranties against certain specified defects in the homes they construct. D. On February 11, 2005, Defendant Faxed to QBW's place of business in Pennsylvania, an Application to become a member of QBW. The Application was signed by Catherine Downey; a copy of the Application is attached hereto, incorporated herein and marked as Exhibit 1. The original of the Application was received by QBW on February 14, 2005. E. In connection with the Application, Defendant submitted a check, check number 1192, for the application fee, also executed by Catherine Downey. F. Also in connection with the application, Defendant submitted a Builder Agreement executed by Catherine Downey to be executed by QBW upon acceptance of Defendant into the QBW program. A copy of the Builder Agreement is attached hereto, incorporated herein and marked as Exhibit 2. G. On February 28, 2005, QBW approved Defendant for membership in its program, QBW executed the Builder Agreement at its oi~ices in Pennsylvania and forwarded an approval letter and accepted Builder Agreement to the Defendant. A copy of the approval letter and Builder Agreement is attached hereto, incorporated herein and marked as Exhibit 3. H. The approval letter contained a password, in order for Defendant to be able to access their account throug~i QBW's Intranet. I. Section E, 5, of the Builder Agreement states: "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." J. Section E, 11, of the Builder Agreement indicates that the effective date of the Agreement shall be the date executed by QBW. K. Since Defendant's membership approval, Defendant has submitted 455 requests for warranties to QBW's place of business in Pennsylvania. L. Since Defendant's membership approval, Defendant has submitted 546 checks for payment of warranty fees to QBW's place of business in Pennsylvania. M. Defendant sent a letter to QBW dated August 1, 2007, referring to a particulaz section of the Builder Agreement, thereby acknowledging its existence in the ~ .._r letter; Defendant attempted to terminate their membership in the QBW program. A copy of the letter is attached hereto, incorporated herein and mazked as Exhibit 4. N. Defendant's attempted termination of the Builder Agreement was unlawful in that in connection with the execution of the Builder Agreement they also executed an Addendum indicating that they would maintain their membership for a period of five years in exchange for a lower rate. O. QBW contacted Defendant and reminded them of their obligation to enroll all homes, which they constructed until February 28, 2010, the term of the Addendum. 4. Denied. This court has inpersonam jurisdiction over Defendant based on the specific terms of the Builder Agreement executed by Defendant and further accepted by Defendant through the enrollment of homes in the QBW program. By way of further answer QBW incorporates herein its reply to pazagraph 3 of the Defendant's Preliminary Objections. 5. Denied. By way of further answer QBW incorporates herein its reply to paragraph 3 of Defendant's Preliminary Objections. 6. Denied. Byway of further answer QBW incorporates herein its reply to paragraph 3 of Defendant's Preliminary Objections. 7. Admitted. 8. Denied. By way of fiirther answer QBW incorporates herein its reply to paragraph 3 of Defendant's Preliminary Objections. 9. Denied. The Parties agreed to confer jurisdiction on the State of Pennsylvania. By way of further answer QBW incorporates herein its reply to paragraph 3 of Defendant's Preluninary Objections. 10. Denied. By way of further answer QBW incorporates herein its reply to paragraph 3 of Defendant's Preliminary Objections. 11. Denied. By way of further answer QBW incorporates herein its reply to paragraph 3 of Defendant's Preliminazy Objections. 12. Admitted. f ~ 13. Denied. QBW's Complaint is proper in the State of Pennsylvania based on the specific agreement of the Parties. Defendant attempts to take the position that the Agreement is null and void based on an alleged fraudulent signature. Such an allegation is appropriate for New Matter but not for Preliminary Objections. WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, respectfully request that Defendant's Preliminary Objections be DENIED. Respectfully submitted, A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-7522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation 02%11%2005 15:39 7707888324 ACCOUNTING DEPT PAGE 07%13 ,~ _ ~ ..,~ FES-a3-2005(TNU) 16:02 OUAI_~~~ BUILDERS bRRRANTy (FA~3~1'~ .UZ 9189 P.aaz~oa~ <a ~~..-' ~i N. ~CGI~W S'fFt~k'1' '1. Ctirrent 1+lrt8rlp«If ~tatemant 1NGRM~~Y91~U1gC~, FSA'IT'0+43 ~ prr~af O~ Ga1AraJ t,~lty .'e f+~• '+I't~l.l. FAEE: 7-$Od4.1~4~ ~l+pr of Aafk~-arCe~llAegtdsit~utnu+ee Retnapencrl FA7~ #E: T17-737~42~8 ~. SPgned Btwlfdar~r~7'Idtlt AFFILIA'~ ~UILD~R ~PPLtCAT10N .d•Sit7t)~41~uatc•app!l~flvrrF~e " Cyr"}" i '`~ ~~ 3~' /~/~/~ ~At,~ RAP ~ ~~. ,~ 11 + ' I t.7.N. P .~ t ^ r $ ~?77 ~ pCA ~ _ (N~+-.M~aef- nnhrl ~. BUILD~Fi AppllGant (Entity which will ~t>~d beMlSt'~d warranty); a. Nye ~~-~r,2~ Son ~~~ P < ~n r . FNtone 1( ~~ 1 r ~~ ~ r~ `t'~ --- ~., h. MalnnpActdr~aa~ ~~ a.,~. GttY '~ ~~ ~r~ ~~ ,~ wdate dip ~ t-. . PhyslalAddr+esa ~O~.r+n.~ Q~S Q.~O~~ ----- City smt~ ~ a. t~amo ~ A~t111t ~ d. Fax Number (~~ of Quernlaa San~ce e, ~ yeu t,nu~e Irltarne! Z S f. h. tcesr Cdntnet Per9on _t - ~+ ,v r~,~~.~..~~, ;~,~ !. hAaalla numt~or Hof key earn.,at per~n~ [o ~t g,-,~„~~~' a~7+ x. i.ist ail p~tncipak, and I~ et owner~hlpi ~~ a. Name K 71de .W....~, Q 5 .. . ~ ~ . ~~~...~~ sale, lac, #~=~°4' ' ~J home Adtltsne ~ f ~za ~ ~ 96 b. Name l -(il~t`.~,r__^1 ~i_i.Jr_-E..~_'Cltie .,, V t,~~ !'~f~:._1~~ ~W4.4 u~~~~ ~i~ /~~.~1?.. ._ Warne c. Noma 'Ittle Soc. Sac. ~ Monte Addf~eea . , ,. ,~„~ ~. - '~'--~ d Name Tate t3oc. Soc. P }lame l4ddta~s ,'N-..,,r,~.~.... 3. Name cd Pa~nr Ccimp~fty ~ tx.~a vt e.d-.S-t- L~.l, ~0(~ r S a K~t1_~1~.l.~..~ ~ . - - d. Mtaw many yaare has Chief Fxeeudva t7t-Icer owcted and/or cantnaled a home ltwlidir~ camparry7,.,,.,,.~,. ~.~ , , t~ tt1Q Applk~tt or ~ aF ila P~Mdpeie hie 1t19fi crmvna inleraat in any atfnp' hoKtte build(t~ ~wFich era eat onroAed in the ~ pnx~sm7 ird Ybrs Q Ida fr yos. eat namoa at F.rttRles rind peRantay~ of vwnarshfy-, ,~ ,~ ,.~,;... 5. eiltlir-ese thgdnix5dcn icheck anal. ~I'~xporitti0n ~ "S" Ca~poratlon Sale Acapdetxn~ahip _~ Pardyerohip (tieneraUtJtnidedl Gthgr: S. Haw many yaara has rxganlx~stlon tErnlryl heen Invalvotis In ham twltding ~ the prinelpal~7 l 7. Nuetber of helves you expecttp buAd thisyaar ~,1 AHernpa sales price ~ G ~ ~? ., ___ -- _----- . 'IypOa of }Dinar tQ Fa41~u~kt _. Duplex. _'IbwnFx~uae. JG ~r~ls Famlly, ._ Conde ~fuRlhar of searlee ~, ._, Olhsr te1l+__-~ t3. Llet tntxtleEpal gavemr-lent tufledktinnt&1 whena nppt14a11~t wiD he bulleling hdn~- to =he f~ext ~h-a (1x1 mDntMr7.. Clty~ , a, X13 S U I .~ C . r. ~A'eSr` _ S .__ Stain City C~r~r; $t~ ,~ ~~~ ~ aaw o~sA ~~ FFB--03~2005~THU) 16:02 AUALIT~ B.IIILDERS W~RRRNTy ~ (FAK)717 737 9189 ~ A.003/003 e, hi~lr~ the appllenrn ar any pf its prirlolpat~~/or ilrmi4 with whfeh hrty pdnelpnl wam afcillalad, ine~l iar bardaupteyr ur been xdJue~r~ted ag l~anlattpt w!-h3n tha IaM^t ~avon Iy1 Y~~ tl Y~rs 'd Na 1(ysu, !ice rxsme(It) of tlrm(s} Invalvod !n bsnkti.IQt~y and year need. 10, poaa applicant build undar--HA.~FMA. !~ FMhIA t 1. Wave any Mons ar unscttiatlad }ud0emarlte been plaaod q~gEndt the f~ulider7 _ . ~ ~,,,~, liyoa, o><pisln 12. Wua pppilctlrit'a nuthodty to tautld aver flan ouuptlndad or ret+aked? ~ a !! yas, axptsin '[3. 1~mc of curtani q~trlieral UnLtiUttl iritlulrarltie ngtnpany ~~,d ~ ,.~,.• Dom, ~,,~....~, E>splratlor~ data; Agent Hama iahama Nttrtlberf___ i poifs~y # WAS applfrxnt hed any elalmn udder "aampleted oporeponu" fn she I~t three yearrs7 it yeas ply doscdbe: . ^'i~LEA51: p4+~i7'ACEFfT'IFlCit'i'~ OF INSU~kANCE FROM YOtJ~I AC~idli ON ta~NE14AL LiABt1.t1Y CQVFRACiz (ortanArxrd d eapg of the docJurn• tlQrra page ~t she pallcy} i t ~ ~ ~ ~. ! pEnonctnt A}IttlQt3anrt ~. u, 8r,nk(9u~noas.lyyl~~cc~~ouni)~c:hea#~inp rT f~~~1 { . ~.~~~~+-fir :'''tdl : i~i~ ~,.~.,..~~ ~Pb rJ( I~ItlCIItJM ~~~I~~ t ~ ~~- ~!~ ~ (~ !. b. E~ank (l3ualnoan Acro~zf 5avin~/Monay Market 'type at +4arcvunt . kN++M AC DER w t~nn,n~antat rvuc. teas b. Lenefing It1~Ettitien (Cetr~trurcipn financlnp qr titre 4t ~radit) „~ . ~. t ~:~~~ ~. ~~ ~1~~s.d ~ ,~.~~~ 'tYG~a cat Awaaunt 3.~;Qr1.~ `1~U~, -~r,~~+ y- ~ rnt" wt~ IVY.-~--. Z~'~1 ! •~ot ~~t~ ~t~a'~~~. ~~ ~'"~c~--(¢d~,9G.t t) M+~N~INQIt17grU,,,,, , u n.r ,burr ~s .~~~w~YA v,~ ~~~.~n.~r .u..r~, Mr P~W'It; N i±{rtanClot $tatOrpOnt t~emft may. curtoltt year end sNtanclat atatgrngnt,~tax return, with ttamo and phase nufi6br en tar8pxrar. N~i'~ JUI irtfanmption.vttl bo neeChred as strle(ty ooafidetrtYfgf unlaes epecifled ptherwlae. w-t1'1•MORIZ'ATtQN The undersigned autltatf: ps qBW to eanduct Inquirfas xnd obtain aed4t tapoRS to determine the underobnod'n fihancltsl and techrllcll ability sa pvrtomt Its o6ngatiQns undar the Qt3t1V t.lmltad tNarranty latagrfim. xit Iaformatitarl recaluod by QBV-- vrltt ira gold In carlfldenco uniaeu ottterwlae epoalnaa~ The undersigned requests that yQU tttlsk,e xvttitable b dt'3W arty 1lttorrrlettan to yc~fr aaese~ion, wh[cN- QBtnt belue~„ NAME OF erOMPMt`f plr>acn Holt ttwt>n re++lewlnp a~Pgcantlr for rtle C1lKM pr,~pr~m, anruln cow ero tnrurrad. tlw-olatn ull xPPliaathnp foau ~ nafirafundabto. ~Li ,T ~3 ,.~. ZT 3Jdd Z9Z~IdW}IGd ZZEE~T50LL Oti~ZZ 500Z,ZZ,Z9 ~ Qy gyp,' ~ ~- ~tea~gt;attcr+~t ~ _ ~u~~~' 2 L_ -~ ~lUALITY :~ .lIi.DER~ WA-Rl`~Al'~TY Ct~`~''ORA'I'ItJN EUILbER AGREEMENT AGREEMENT made this // day of ~r~ , 24 ~~ , between QUAI-ITY BUILdERB WARRANTY CORPORAT N, a Pennsylvania corporation, herein referred to as "QBW," and ~ ~,~,~i` r ~ ~ .'~ •~r aJ . ~r~ ~ _ r ama v Builder {in irate whether a corpora on, partrrership, in'~iV-r ud er of other) of ~ aaaros5 f r i~t~ /'~:~c'~ ~'~ ~~~'~r~~_ ~ dr'~ herein referred to as "Builder.° SEt:TION A. MEMgERSHiP AND TERM: ~ . 1. QBW administers a program whereby home builders registered with QBW enroll homes they construct in the program and purchasers of those homes are protected by a warranty agains# certain specified defects. 2. In order to develop and maintain a good reputation for providing protection to purchasers of well-built homes, QBW pro- tests 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 confornn its behavior to the standards expressed herein end in the Limited Warranty Agreement. Builder warrants that all information supplied to~ QBW in connection~with its application is true and correct. 4. All registra~on fees (initial and annual rescreening) are set by QBW at its discretion and are nonrefundable. 5. QBW, upon execut<ng 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. QgW reserves the right to rescreen Budder annually. If QBW deter- mines that Builder does not meet its approval standards upon rescreening then QBW may terminate Builder's member-. ship and the provisions of Section fi, paragraph 6, shall be in effect. SECTION B. HOME ENRQLLMENT: 4. 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 guilder's, or Builder's principals common control constructs in any state in which QBW operates and agrees to pay all fees regi,ined by QBW in the enroll- ment process, which fees shall be non-refundable. 2. Procedures. Builder agrees to enrou 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 execution of this Agreement ar reacceptance, and QBW has inspected and approved the hams. Momes which remain in a Builder's inventory longer than 18 months must b~ enrolled by the end of the 19th month from construction start da#e and model homes must be enrolled on the date of the Certificate of Qccupancy or use as a model, whichever is earlier to qualify for enrollment. The warranty(s).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. If membership is terminated, at the direG tion of QBW, Builder agrees to enrol! any remaining units not enrolled at the time of termination. Por each home enrolled, the Builder shall pay a warranty fee as determined by QgW within~the time periods estab- lished by QBW. All warranty fees are non-refundable. A minimum warranty fee of $150.UQ shall apply. QBW will provide Builder with a copy of the Limited Warranty Agreement and Enrollment porm. Builder and pur- chaser must complete and sign the Enrollment porm at closing, and Builder agrees to famish 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 Qf the enrollment fee. A home wil! not be considered enrolled until QBW receives and approves the fully executed and com- pleted Enrollment Form, payment of all fees, and an approved final inspection. 3. Reservation of Power of Review. QBW reserves the right to re}ect any home submitted for enrollment in the program if (a) the Builder is not a member in goad standing; (b) the home Is not construcked 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 ec~mply with the terms of this Agreement. 4~ Assignment of Rights. If a purchaser files a Complaint pursuant to the Limited WarrantyAgreement which the Builder fails to correct, the Builder hereby assigns to QBW or its insurer, as the case maybe, 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. ~i ~~dd b ~. ~, ~zE~ariSe~t 0~ ~tti 5e0z~ii~ze -`S` Tf1is Agreement shah be interprr= a and enforced in accordance with the laws _, the Commonwealth of Pennsylvania. Atl. suits instituted under this Agreement shall be brought in Aennsylvania in a court of competent jurisdiction. Builder hert3- by consents to the personal jurisdiction of the Pennsylvania courts. B. Builder shat) not assign this Agrsernent without the prior Written consenE of QBW. 7. This Agreement shall Inure to the benefit of and be binding upon the heirs, executors, administrators, assignee, and suc- cessors of the representative parties. • 8. This instrument, and ser~rrity documents and documents referred to or incorporated herein by reference, contain the entire agreemen# 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 oontraot may not be enlarged, mcd- ifted, 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 constifiute a waiver of that provision. 10. AI! notices required hereunder must be in writing and sent by certified mail, postage prepaid, return receipt requested, to the recipient at the respective address indicated on the front, or to whatever address the party may designate in writing, i t. The effective date of this Agreement shall be the date of execution a?y QBW. Q~JA~.rI"Y BTJ~LDEI;LS V~ARRANTX CORPOItA1"Y~1~ By date of exeGUtlon by +QBW 8ullder's t~egistration No. _ (ptsaae print neme/tltle of executor) BUILDER • (Name of BuOder - please print or b~1 Da BY ADDENDUM -~~-~ Sign Here fn consideration for receiving a reduced rate, Builder agrees to maintain Its' membership In the QBW program for a period of ~ years to commence on the date this addendum is executed by QBW. Builder agrees to submit for enrollment all homes which Bulkier or any affiliate construgts during this term and any extensions. In exchange, Builder's rate will be $_t =_ 7U ./per thousand. The addendum will renew for tike terms unless ~3t)j days prior to the expiratign of the term, or any extensions; either party provides the ether (30) days advance written notice that they intend not to extend the period entitling the builder to a lower rate. •If Builder` provides npttce, QBW will adjust the Builder's rate upward effective at the end of the then current term. BUILDER • (Name of Eluflder - pleae4 pN11t dr irpe} Date .~- i/'.~ By rh..~ igrrgttll+e of Aarthor)zed Reprdaentative - ntlel . QU.4LY';['Y BUII.DER~ 'OVARRcANTY CORFURATT~N ~~ Date Please note that in reviewing appti+;artts for the QBW Program, certain cots are incurred, therefore all application fees are non-r~efundabie. capyrigM 1~9 Quality Builders Warranty Corpordtlgn QBW FORM 054 9f4A 5T 3Jtld ~,;_ , =~ zzEEEZ90LL eb~ZZ 500z/Tti/z9 . (Please ptfrrt nameltltle of exeGtRor) ~._ < i _,~ QUALITY BUILDERS WARRANTY C O R P O ft A T 1 O N 325 N. Second Street, Wormleysburg, PA 17043 telephone: 717 737-2522 fax: 717 737-4288 February 28, 2005 MR DOWNEY JEFFERSON HOMES, INC. 10289 CITY POND ROAD COVINGTON, GA 30014 Dear MR DOWNEY: Congratulations! Your affiliate application for membership in the Quality Builders Warranty Program has been accepted and approved. Your builder registration number is 50417. Based on your sales volume, your rate for home enrollment is $1.70 per thousand of the home's selling price. You must enroll all homes, which you construct. Failure to do so will result in penalties being assessed which will include a retroactive increase of your rate per thousand. With regard to multi family homes, you must enroll all the units in a building prior to discontinuing your membership. In order to view your account on the Internet, type www.QBWDirect.com. The QBW screen will appear and ask you to type in your Builder Registration number, Password and user name. Your Password is: This is a confidential Password and you should not disclose it to anyone to whom you do not want to view your account. Once entered, the Password will be encrypted and remembered from that specific computer you used. There is no reason to enter the Password in the future. Keep the Password in a secure location. You can now submit your inventory via your electronic account. With your on-line access you can also track your inventory, request books and print your own Enrollment Forms, etc. If you have any questions please call your Customer Service Representative. As a reminder, you have forty-five (45) days by which to enroll homes already in your inventory under the "grandfather clause". Any grandfathered homes, which began construction over six months ago or have been occupied within the last thirty- (30) days, please contact our office to determine the possibility of enrollment. All model homes must be enrolled during this time. Depending on the municipality in which you are building, you may be required to have inspections. Please contact our office for this information. The inspection fee per home is $120.00. The number one inspection is done prior to backfill, upon completion of the foundation; the number two inspection is done prior to drywall, and; the number three inspection is done upon completion of the home, but prior to occupancy. Please give ample advance notice. For any homes built on fill soil or in areas where unstable soil conditions exist you will need to supply compaction tests and/or soil reports confirming the bearing capacity of the soil. These reports should be forwarded to our office at the time of notification of construction. QBW provides valuable marketing tools to assist you in selling homes. Our web site provides Homeowner's Maintenance Tips and Warranty Coverage Information as well as the opportunity for your purchasers to receive discounts on their homeowner's and auto insurance because you are a Quality Builder. Please refer to the Marketing Tools insert which will be sent separately. Page 2 ~~-~~ ~ t i ~_ ~ Please find enclosed the language, which we suggest our builders incorporate into their Sales Contracts. Naturally you will want your attorney to review your entire Sales Contract to make sure the appropriate provisions are contained and are consistent with the language of your full contract. Your customer service representative will be contacting you to walk you through the enrollment process and to be sure that you are sent an adequate supply of marketing materials. Enclosed you will find copies of your executed agreement. Again, congratulations! I look forward to a successful and lasting relationship. Sincerely, Thomas McCarthy Customer Service Manager Enclosures Ewy,a it 3 Qu~rY s ~~ .LDERS WAR][ZA~NTY CO` 'ORA'I'ION_ _ BUILDER AGREEMENT ~ = h '_ .' J; j AGREEMENT made this %/ day of / ~a~ ~ , 20 ~~ , between QUALITY BUILDERS WARRANTY CORPORAT N, a Pennsylvania corporation, herein referred to as "QBW," and l ~~~~ ~°~..~ ~.~~f ~~ ~~~- Name of Bwlder: (indicate whether a corporation, partnership, individual or other) of Address ~;-';C~ ~,.~~ ~ ~'(/.~ ~~~~~rs ~~ _~~ ;~d~`,r 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 purchasers 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 pro- tects 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 deter- mines that Builder does not meet its approval standards upon rescreening then QBW may terminate Builder's member- ship 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 enroll- ment 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 execution 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 and model homes must be enrolled on the date of the Certificate of Occupancy or use as a model, whichever is earlier to qualify for enrollment. The wan'anty(s) 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. If membership is terminated, at the direc- tion of QBW, Builder agrees to enroll any remaining units not enrolled at the time of termination. 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 $150.00 shall apply. QBW will provide Builder with a copy of the Limited Warranty Agreement and Enrollment Form. Builder and pur- chaser 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 enrollment fee. A home will not be considered enrolled until QBW receives and approves the fully executed and com- pleted 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. ,~ ~cly' ~r~-/ ~-"' 5. ~Bt~ect*and Remedy. If Builder fails, nroll any eligible home as required by this . ement, CBW may seek specific enforce- ment or other appropriate relief in I~..~ or equitable proceedings, even if this Agt~ment has been terminated. Furthermore, Builder agrees to indemnify and hold harmless QBW and its insurer for 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 accordance 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 immediateiy return to QBW all materials supplied by QBW and all material making reference to QBW. Should Builder fail to take these steps, it shall indemnify 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 suspend the Builder, such suspension will remain in effect until Builder has cured all defects to QBW's satisfaction, how- ever, 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 co ormity with the Warranty Standards provided in the Limited Warranty ~- ~ dement, and/or in conformifi 'h approved building codes and other sty Ards established by QBW and in effect ' at the beginning of construction yr the enrolled home. QBW reserves the ray. ,c to establish special requirements for escrow payments or other means of protection with respect to any homes constructed by Builder which QBW deter- mines 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 verify Builder's compliance with this Agreement and Builder agrees to cooperate. (d) The Builder agrees to indemnify 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 pro- fessional 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 under the QBW Warranty Program, if the Builder fails or refuses to perform its obligations in accordance with the Limited Warranty Agreement or this Agreement, QBW will perform the Builder's obligations, how- ever, the Builder agrees to reimburse QBW and/or Insurer for all expenses incurred in performing their obligations, includ- ing but not limited to, cost of materials, cost of collection, labor, architect's fees, engineering fees and counsel fees. QBW and/or Insurer reserve all rights of subrogation. During years three through ten under the QBW Warranty Program, QBW will perform its obligations with respect to major structural defects as set forth and defined in the Limited Warranty Agreement without the right of subrogation against the Builder provided that the defect, or symptoms of the subsequent occurrence of the defect, first arose after the expira- tion of two years under the QBW Warranty Program in effect for that home, and that Builder did not attempt to conceal or cosmetically repair the defect or symptoms of the subsequent occurrence of a defect and that the defect does not arise from Builder's failure to construct the home to applicable QBW standards or adhere to Builder's responsibilities under the Builder Agreement. If the Builder repairs a major structural defect during years one or two, QBW must be notified. Once notified, QBW will perform a compliance inspection. 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 purchasers 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 obligate 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 determination will not affect the validity of the remaining provisions. ~~~` /+~ -: _"~`~`is Agreement shall be interpret .nd enforced in accordance with the law: .he Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder here- by consents to the personal jurisdiction of the Pennsylvania courts. 6. Builder shall not assign this Agreement without the prior written consent of QBW. 7. This Agreement shall inure to the benefit 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 parry that is not contained in this written contract shall be valid or binding; and this contract may not be enlarged, mod- ified, 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 indicated on the front, 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. WA-l~ CORPORATION Date of execution by QBW February 28, 2005 Builder's Registration No. 50417 BUILDER ~e~~cg,~ ~,~ ~lU G (Name of Bull er -please print or type) Date / ~ ~ ~~-1-//°'~ ~ By of Authorized Representative -Tide) (Please print name/title of executor) ADDENDUM ~---- Sign Here In consideration for receiving a reduced rate, Builder agrees to maintain its' membership in the QBW program for a period of _.~ years to commence on the date this addendum is executed by QBW. Builder agrees to submit for enrollment all homes which Builder or any affiliate constructs during this term and any extensions. In exchange, Builder's rate will be $ ~' 7y /per thousand. The addendum will renew for like terms unless (30) days prior to the expiration of the term, or any extensions; either party provides the other (30) days advance written notice that they intend not to extend the period entitling the builder to a lower rate. If Builder provides notice, QBW will adjust the Builder's rate upward effective at the end of the then current term. ~o rt1I2SE -~-./VC~ (Name of Builder -pie print or type) Date •~ ` ~~"' g ~/i~ y ignature of Authorized Represerrtadve -Title) (Please Print name/dde of executor) BUII.DERS WA~RRAN1"Y CORPORATION By Date 28, 2005 Please note that in reviewing applicants for the QBW Program, certain costs are incurred, therefore all application fees are non-refundable. Copyright 1988 Quality Builders Warranty Corporation OBW FORM 050 9104 ~/~f ~ ~ ~_ -~ y~ F ;, ;~- C011~lMUNITIF~, INC. August 1, 2007 Quality Builders Warranty Corporation Fax 717-737-4288 .Attn. Jordan Olshefski Dear Sir, Thank you for your fax of 7/19/07. Per page 2, Section B.6.o. Crown Communities is providing QBW with 30 days advance written notice of our termination of your services. Also per the Agreement, Crown Communities shall continue our obligations for those homes enrolled through August 30, 2007. Best Regards, -'",,,%~ Kelly Nelson For Katie Downey DOWNEAST BUILDERS & REALTY, INC • ROOSEVELT BUILDERS, INC • FRANKLIN BUILDERS, INC • JEFFERSON HOMES, INC 1371 Dogwood Drive • Conyers • GEC • 3ooi2 •678-509-0555 Phoue - 675-509-0554 Fax ti~=rvw.cro~=ncommunitiesi nc.corn ,~ ~ ~r~r -~..~ VERIFICATION I, JORDAN F. OLSHEFSKI, Vice President of Quality Builders Warranty Corporation, hereby certify and state that the foregoing Plaintiff s Reply to Defendant's Preliminary Objections is true and correct to the best of my knowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Quality Builders Wanai Corporation Date: t0 ~22 j~~ By: Jor F. Ol efski, Vice President ~ ~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Notice of Default was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Thomas O. Williams, Esquire Reager & Adler, PC 2331 Market Street Camp Hill, PA 17011-4642 Date: la~o2~ ~ d 7 Peg 'son, Secretary . ~ ~ t ,• ~ w~ t. .s -~ `~ `~~-~ c._ ~ ~ j ". . . , ~~ ;~ r `} ~_, .. _._ ' ' " V :~J '^'C ,,. .~ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate} TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Cotart. CAPTION OF CASE (entire caption must be stated in full) QUALITY BUILDERS WARRANTY CORPORATION (Plaintiff) vs. JEFFERSON HOMES, INC. (Defendant) No. 07-5308 CIVIL Term 1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Ob-iection to Plaintiff's Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: John A Gill, Esauire (Name and Address) 325 North Second St.,. Wormleysburg, PA 17043 (b} for defendant: Thomas O.Williams, Esquire, Reager & Adler P.C. (Name and Address) 2331 Market Street, Camp Hill, PA 17011-4642 3. I will notify all parties in writing within taro days that this case has been listed for argument. 4. Argument Court Date: January 23, 2008 Date: ~~J~ ~t ~~ si Print your name ~~>,~r~ At[orney for ,.. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the Praecipe Listing Defendant's Preliminary Objections for Argument was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Thomas O. Williams, Esquire Reager & Adler P.C. 2331 Market Street Camp Hill, PA 17011-4642 Date: ~ . 7 , ~ bc~-J .l~i.J' Pegg 'son, Secretary C ~ ~ ~~ -... ~' ~ to - r ~ n ice. <.~.-. ~ ~..y •'~^ ~ , ~ r ~ "~ QUALITY BUILDERS IN THE COURT OF COMMON PLEAS OF WARRANTY CORPORATION :CUMBERLAND COUNTY, PENNSYLVANIA V. JEFFERSON HOMES, INC. N0.2007 - 5308 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTION RAISING LACK OF JURISDICTION BEFORE GUIDO, J. ORDER OF COURT AND NOW, this 23an day of JANUARY, 2008, after review of the briefs filed by the parties in support of their respective positions and having heard argument thereon, the Defendant's Preliminary Objection Raising Lack of Jurisdiction is OVERRULED. /John A. Gill, Esquire v" Thomas O. Williams, Esquire Court Administrator Edward E. Guido, J. ---~ sld i i ,.+ ..~ 7 ,, ~ e I,~e .., ;~ Pti i~• r, s,riP ai l~al' '~~ „'.J i REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(u~ReagerAdlerPC com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rioyice(a~Rea~erAdlerPC com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Franklin Builders Inc QUALITY BUILDERS WARRANTY CORPORATION Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5308 v. JEFFERSON HOMES, INC. CIVIL ACTION -LAW Defendant Jury Trial Demanded PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly enter into the record in this matter the attached Affidavits of Expert Arthur T. Anthony and Witness Catherine Downey. These Affidavits were Exhibits A and B, respectively, of Defendant's Brief in Support of Preliminary Objections with Affidavits previously filed in this matter on January 11, 2008. Date: January 24, 2008 Respectfully submitted, REAGER & L , By: ., Thomas O. Williams, Esquire ~; ~° STATE OF GEORGIA COUNTY OF DEKALB AFFIDAVIT OF ARTHUR T. ANTHONY Personally appeared before the undersigned officer, duly authorized to administer oaths, Arthur T. Anthony, who after being duly sworn in accordance with law, states under oath as follows: My name is Arthur T. Anthony and I am over the age of 18 years and competent to testify. regarding the matters contained herein. I make this Affidavit based upon my own personal knowledge and my review and professional analysis of the relevant records attached hereto. 2. I am a certif ed forensic handwriting and document examiner and the principal of Arthur T. Anthony, LLC. I am also presently the Chief Forensic Document Examiner and Manager of the Questioned Documents and Forensic Imaging Section of the Georgia Bureau of Investigation, Division of Forensic Sciences. I have been the Chief Forensic Document Examiner at the Georgia Bureau of Investigation State Crime Laboratory since 1997. 3. I was employed by the Illinois Department of Law Enforcement's State Crime Laboratory from 1978 through 1981. 4. From 1974 through 1978 I was employed in the computer and laboratory divisions of the Federal Bureau of Investigation. zsaozs ~i f , ~ r ~ ' ~ ~ ~ tt N ~ +I 5. From 1972 through 1974 I served in the United States Army. 5. In 1971 I received a Bachelor of Science degree from Central Missouri State University in Warrensburg, Missouri. 7. I have conducted many thousands of examinations and comparisons, involving numerous pieces of documentary evidence, in the course of my 28 years of experience. A copy of my professional resume is attached hereto as Exhibit "A" and incorporated herein by this reference. 8. Over the course of my 28 years of experience, my practice has been devoted substantially to the examination of signatures and other writings for the purpose of detecting forgery. My current consultation practice concerns the forensic examin~.tion of questioned documents. 9. Based upon rrLy education, training, and experience, I am knowledgeable of and an expert in orensic an wn mg an ocumen examin i 10. I have reviewed eleven documents provided by counsel for Roosevelt Builders, Inc., Jefferson Homes, Inc., Downcast Builders & Realty, Inc., and Franklin Builders, Inc. (the "Crown Entities"). The eleven documents that I reviewed all purported to bear the signature of Catherine Downey, an executive officer of each of the Crown Entities. 254D2S vl i ~ , ~ t ~ ' ~~ r 1 11. As set forth in my November 9, 2007 signature analysis (the "November 9 Report")~ of the eleven documents, it is my opinion that the purported signatures of Catherine Downey that appear on Exhibits 1, 2, 5, and 6 attached to the November 9 Report were prepared by one individual and therefore of common authorship. 12. In addition, my analysis revealed that the purported signatures on Exhibits 3, 4, 7, 8, 9, 10, and 11 attached to the November 9 Report were all prepared by one individual, but. not the same person who signed as Catherine Downey on Exhibits 1, 2, 5, and 6. A true and correct copy of my November 9, 2007 signature analysis is attached hereto as Exhibit `B". The eleven documents attached as exhibits to the November 9 Report should be read sequentially from Exhibit 1 through Exhibit 11. 13. I have no financial interest in the outcome of this action. Further affiant sayeth not. Arthur T. Anthony Sworn to and subscribed before me this ~ day of January, 2008. Notary Public ~,:~•'~Q. M. e(j`'~•,, My Commission Expires: .;~~~~'.•'NOTARy' ~~,:f, y ~~';~ EXPfRES ; ~ s GEORGIA JAN. 31, 2011 =s .7~A~ • • • • \`\` zsaozs ~i ~+,'l~NrnN n~,\\~~~ ~a~'~`-m tom' ~~~- ~ t i i i ~ t ~ Post Office Box 620420 Atlanta, Georgia 30352 Arthur T. Anthony. Certified Forensic Handwriting and Document Examiner A (770} 338-L938 Fax (770)234-4300 A practice limited to civil matters concerning the forensic examination of questioned documents, the scope of which, but is not limited to, the examination of signatures and other writings for the purpose of detecting forgery. In addition, the field also includes the non-destructive examination of inks, medical records, paper, obliterations, alterations, interlineations, wills, codicils, deeds, and contracts for the purpose of authentication. 1971 Received Bachelor of Science degree from Central Missouri State University, Warrensburg, Missouri 1972 through United States Army 1974 1974 Federal Bureau of Investigation - Corxiputer and Laboratory through Divisions 1978 1978 through Illinois Department of Law Enforcement -State Crime Laboratory 1981 1981 Georgia Bureau of Investigation -State Crime Laboratory. to Chief Forensic Document Examiner Se Manager of Questioned Present Documents and Forensic Imaging Section BACKGROUND: Initial training in the examination of questioned documents began in 1976 at the FBI Laboratory in Washington, D.C. Worked in the capacity of a Physical Science Technician in the Document Section of the Laboratory Division. Affiliation with the FBI Lab lasted for two and one half years. Subsequently, accepted a position as a Document Examiner. for the Illinois Department of Law Enforcement where my professional training continued under the direction of the Chief Document Examiner for that State Crime Laboratory System. Associated with the Illinois Department of Law Enforcement, Crime Laboratory System for approximately three years. Presently, Chief Forensic Document Examiner and Manager of the Questioned Documents and Forensic Imaging Section of the Georgia Bureau of Investigation, Division of Forensic_Sciences, (State Crime Laboratory). Conducted many thousands of examinations and comparisons, involving numerous pieces of documentary evidence in the course of the thirty plus years of experience. QUALIFICATIONS/CERTIFICATIONS: Have qualified to testify as an expert in federal and state courts, commission and arbitration hearings, mediations, administrative hearings, Federal Daubert Hearings, as well as medical peer review boards in Illinois, Georgia, Florida, Tennessee, Alabama, Pennsylvania, acid South Carolina, concerning questioned document problems. Have provided expert testimony at trial, hearings and at depositions in excess of three hundred and fifty times. Certified by the American Board of Forensic Document Examiners since 1984, a national organization which attests to the competency of individuals engaged in the examination of questioned documents. Member and past chairman of the, document section o~ the American Academy of Forensic Sciences. Member of the American Society of Questioned Document Examiners. Presented papers at annual conferences of both organizations as well as published in the Journal of Forensic Sciences, the official publication of the American Academy of Forensic Sciences a peer reviewed journal. Maintain membership in the International Association for Identification and the Southeastern Association of Forensic Document Examiners (SAFDE). Charter member and initial membership chairman of SAFDE. During the course of the last twenty-plus years, have attended many workshops, seminars, testing, and training offered by professional, corporate, governmental, and international organizations. LECTURES: Lectured regarding forensic document examination at community colleges in Illinois and Georgia, the Georgia Public Safety Training Center, for bank security officers, State of Georgia Association of Voter Registrars, the Georgia Criminal Defense Lawyers' Association, FBI Questioned Document Training Seminar, Quantico, Virginia, the arulual meetings of the Georgia Trial Lawyers Association and Prosecuting Attorney's Counsel, arid the Atlanta Chapter of Legal Nurses, and Georgia Shorthand and Court Reporters. Guest lecturer at the Federal Bureau of Investigation's 2°d International Symposium on The Forensic Examination of Questioned Documents, Albany, New York, June 1999. PUBLICATIONS/PAPERS: [1] "The Erasable Ball Point Pen-Some Observations," presented at the annual meeting of the Illinois Chapter of the International Association for Identification, 1979. [2] "Examination of Magnetic Ink Character Recognition Impressions," Presented at the 35th annual conference of the American Academy of Forensic Sciences, Cincinnati, Ohio, February 1983 and subsequently published in the .journal of Forensic Sciences, Vol. 29, No. 1', January 1984. - [3) "D'Nealian: A New Handwriting System?," presented at the annual conference of the American Society of Questioned Document Examiners, Nashville, Tennessee, September 1984. [4) "Comparison of Modern Typestyles," Presented at the 37th annual conference of the American Academy of Forensic Sciences, Las Vegas, Nevada, February 1985. Published in the Journal of Forensic Sciences, Vol. 31, No. 2, April 1986. [5] "Analysis of Typeface Alignment in Electronic Typing Systems," presented at the annual meeting of the American Society of Questioned Document Examiners, Savannah, Georgia, September 1986. [6] "Examination of Unaccustomed Hand Signatures," presented at the,, annual conference of the American Academy of Forensic Sciences, Philadelphia, Pennsylvania, February 1988. [7] "Letter Quality Impact Printer Hammer Impressions," presented at the International Association of Forensic Sciences, Vancouver, British Columbia, Canada, August 1987. Subsequently published in the Journal of Forensic Sciences. Vol. 33, No. 3, March 1988. [8] "90 Degrees North? Examination of Journal No. 1 1909," A report on the examination of the original Arctic Journal of Robert Edwin Peary at the National Archives, Washington, DC. A paper presented at the 47th annual meeting to the American Society of Questioned Document Examiners, Washington, DC, August 1989. Subsequently published in the ,journal o Forensic Sciences, Vol. 36, No. 5, September 1991. [9] "An Unusual Software Font." Presented at the annual conference of the American Society of Questioned Document Exarininers, Lake Buena Vista, Florida, August 1991. [10 ] "Analysis of Modern Non-Impact Printing Systems." A paper presented at the 45~' anmial conference of the American Academy of Forensic Sciences, Boston, Massachusetts, February 1993. i A [11] "The Role of Document Examination on the Aftermath of Flooding in Georgia During the Summer of .1994"Apaper presented at the annual conference of the American Society of Questioned Document Examiners, Chicago, Illinois, August 1995. . [12] "The Source of Significant Typeface .Defects on Electronic Typewriter Printwheels," A lecture presented at the Federal.Bureau of Investigation's 2nd International Symposium on The Forensic Examination of Questioned Documents, Albany, New York, June1999. A condensed version Published in the FBI Web based Journal Forensic Science Communications. [13] Back to Basics column of interesting and' questionable patterns. Published in the Journal.of Forensic Identi ication. Vol. S0, No. 4, July/August 2000. [14] "A Software Tool for Line Quality Determinations," Apaper presented at the S2na Annual Meeting of the American Academy of Forensic Sciences, Reno, Nevada, February 2000. [15] "A Validation Study Concealing the Axiom Tliat No Two Homogenous Signatures Can be Identical in all Respects,"Apaper presented at the International Association of Forensic Sciences conference, June 2000, Los Angeles, California [16] "A Software Program for Line Sequence and Line. Quality Determinations: A Progress Report," A paper presented at the S8~` Annul Conference of the American Society of Questioned Document Examiners, Ottawa, Ontario, Canada, August 2000. [17] "A Compendium of Defects from Non-Impact Printing Systems,"Apaper presented at the Amiual Meeting of the American Academy of Forensic Sciences, Seattle, Washington, February 2001. [18] "Validation Study of Measurement of Internal Consistencies Software (MILS) as it relates to Line Sequence and Line Quality Determinations in Forensic Document Examination," a paper presented at the Annual Meeting of the American Academy of Forensic Sciences, February 2002. [19] "An Esoteric Technique Useful in the Identification of Unidentified Remains from the Examination of Faded, Illegible Hospital Identification Wristbands," published in the Journal of Forensic Sciences, Vol. 48, No. 4, July 2003. [20] "Forensic Document Examiner Involvement in Medico-Legal and Other Non- Traditional Document Issues"Apaper presented at the annual meeting of the American Society of Questioned Document Examiners, Baltimore, Maryland, August 2003. [2l] "Is Penmanship Dead? Tablet PCs and Their Impact on Forensic Document Examination" a paper presented at the amiual meeting of the Southeastern Association of Forensic Document Examiners, Atlanta, Georgia, April 2004. [22] "Image Processing .Meth.od Purported to be Useful in the Detection of Image Manipulation" a paper presented at. the annual meeting of the American Academy of Forensic Sciences, San Antonio, Texas, February 22, 2007. [23] "Digital Paper: Fad, Flop or the Future? a paper presented at the annual meeting of the American society of Forensic Document Examiners, Boulder, Colorado, August lb, 2007. i ~ 4 , The following is a list of cases in which 1 recall giving testimony at trial, hearings or through deposition for the last four plus years: 02/01/99 State of Georgia v. Alcindor Fortson, Oconee County Superior Court Case No. 98-CR-2356-S 02/23/99. State of Georgia v. Berry. Freeman, Clayton County SuPerior.Court Case No. 98-GR021436 03/18/99 ~ Michael L. Kelly, individually and. by next friends Pat Kelly 'and' James P. Kelly v: John C. Rochester, M.D., et aL, Circuit Court For Knox County, Tennessee, Civii Action File No. 2-608- 96, Deposition, Atlanta; Georgia 04/14/99 State of Georgia v. Marilyn Gail Stutsman, Morgan County Superior Court 05127/99 State of Georgia v. Margaret Ann. Brown, Walker County Superior Court, Case No. 18621 09/23/99 State of Georgia v. Lawrence Chinnery, Cherokee County Superior Court Case No.: 99-CR- . 000441 09/28/99 State of Georgia v. Donnie Jeff Manning, Macon County Superior Court Case No.: 97R-211 10/12/99 S. M. Bishop v. Phillip Lawson, et al., Deposition, Atlanta, Georgia Case No.: 99V0240 01/20/00 The Estate of James W. Lovett, Fulton County Georgia, Probate Court Arrington & Hollowell File No. 99-145 . 02/03/00 S. M. Bishop v. Phillip Lawson, et al. Continuation of Deposition, Atlanta, Georgia, Case No.: 99V0240 03/09/00 State of Georgia v. Frank Schwindler, Chatham County Superior Court Case No.: CRN- 990202063A 05/05/00 State of Georgia v. Michael J. Gilson; Hall County Superior Court Case No.: 1999CR001364A 06/12/00 State of Georgia v. Ramon E. Ferguson, Columbia County Superior Court Case No.: 199900704, Indictment #99CR259 07/13/00 Fletcher Florence v. Oak Manor Nursing Home, Muscogee County Superior Court, Civil Action File No. SU97CV-4233, Deposition, Atlanta, Georgia 07/26/00 Fletcher Florence v. Oak Manor Nursing Home, Muscogee County Superior Court Civil Action File No. SU97CV-4233 10/04/00 S. M. Bishop v. Phillip Lawson, et al., Carroll County Superior Court Case No.: 99V0240 04/30/01 State of Georgia v. Michael Tony Cooper, Hall County Superior Court 05/08/01 State of Georgia v. Jonathan Lee Evans, Whitfield County Superior Court 05/18/01 Sysco Foods of Atianta v. Robert McNei11, Gwinnett County State Court, Deposition, Atlanta, Georgia, Civil Action File No.: 99-C-6414-3 07/11/01 State of Georgia v. Tracy Fortson, Madison County Superior Court Case No.: 00-MR-141-T 08/15/01 Windsor Door, Inc., v. Mike's Overhead Door, Inc., and -Mike Ratteree, Bibb County State Court, Civil Action File No. 47488 08/28/01 Margaret C. Griffin, as personal Representative of the Estate of Daniel V. Griffin v. American General Life, in the Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, Tampa, Florida, Case No.: 95-410, Division "H" 10/22/01 Elaine Gill v. The Medical Center of Central.Georgia, Bibb County Superior Court, Case No. 98- CV-2686 - 11/09/01 United States of America v. Terry Wayne Kirby, United States District Court, Northern District of Georgia, Atlanta, Daubert Hearing; Criminal Action File No. 1:01-CR-642-JTC 11112/01 State of Georgia v. Rico Teasley, Clarke County Superior Court, Case No. SU98CR0371 11/30/01 Roberta L. Brawn, et a{. v. Benjamin S. Brown, M.D., et al., Upson County Superior Court, Civil Action Fife No. 00-V-316, Deposition, Covington, Georgia 12/18/01 United States of America v. Terry Wayne Kirby, United States District Court, Northern District of Georgia, Atlanta, Daubert Hearing continuation, Criminal Action File No. 1:01-CR-642-JTC 02/08/02 Premier Holidays International, Inc., et al. v. First Union Bank, United States District Court, Northern District of Georgia, Deposition, Atlanta, Georgia, Civil Action File No. 1:OCV-9I-ODE 03/28/02 State of Georgia v. Shanda Poorbaugh, Rockdale County State Court 1 , S , ` _ ~ 09/26/02 Omega Research and Dev., Inc., v. Urim Corp., United Sta#es District Court Northern District of Georgia, Atlanta, Civil Action No. 1:01 CV-2011, Deposition, Atlanta, 'Ge'orgia 1(7/25/02 Premier Holidays International, Inc., et al. v. First Union Bank, United States District Court, Northern District of Georgia, Atlanta, Civil Action File No. 1:OCV-91-ODE 10/29/02 State of Georgia v. George R. Grinstead, Toombs County Superior Gourt, Case No.: 1 GR00291 12/11/02 State: of~Georgia v. Michael Roberts, Houston County Superior Court Case No. 2002-C-28854 12/20/02 The Estate of Bobby Brown,~Jr., DeKalb County Probate Court Estate No.: 2001-0659 01/13!03 North Grading v. St. Paul Fire & Marine Insurance Co. United States District Court, Northern District of.Georgia, Newnan Division, Givil Action No. 3:02-CV-103-JTC 02/05/03 .State of Georgia v. Marcus Dixon; Fulton County Superior Court Indictment No, 01SC12278 02/10/03 Chester Porter Moss. and James Hargrove v. Crawford and Company United States District Court, Western District of. Pennsylvania, Pittsburgh Case No. 98 -1350 06/18/03 State of Georgia v. Kenya. (NMN) Davis, DeKalb County Superior Court, Case No.: 02-CR-3436 07/10/03 State of Georgia v. Kameron Bernard Kelsey, Bibb County Superior Court, Case No.: M01048138 08/07/03 State of Georgia v. Brandon Dekil Tarver, Washington County Superior change of venue to Toombs County, Case No.: OOCR00078 09/04/03 Heritage Financial, Inc. v. Martin Lysaght and James Quay, Fulton County Superior Court, Civil Action File No.: 2002CV5645 11/18/03 U. S. v. William Emmett LeCroy, Jr., Criminal Action No. 2:02-CR-38 Daubert Hearing, Northern District of Georgia, Gainesville Division 02/25/04 U. S, v, William Emmett LeCroy, Jr., Criminal Action No. 2:02-CR-38 Northern District of Georgia, Gainesville Division 03/01/04 State of Georgia v. Janice Marie Carlisle, Case No. 97-B-0.731-1, Gwinnett County Superior Court 03!22/04 U. S. v. Debra 8. Woodard, et al. Case No. 1:03-CR-498-3TC, Federal District Gourt for the Northern District of Georgia, Atlanta, Division 03/23/04 U. S, v. Debra B. Woodard, et al. Case No, 1:p3-CR-498-3TC, Federal District Court for the Northern District of Georgia, Atlanta; Division District of Georgia, Atlanta, Division 03/25/04 State of Georgia v. Tracey Fortson Case No.: 00-MR-141-T, Madison County Superior Court, Change of Venue to Effingham County Superior Court 04/20/04 .State of Georgia v. Donnie Allen Hulett Case No.: 02CR20595 Walker County Superior Court 05/18/04 Jeff Houston v. Daniel Leon Prather, Case No.: 2003CV-554-5, Po{k County Superior Court 07/20/04 Patterson, Perry (for Betty Flora Patterson,) et al. v. Life Gare Centers of America, 1nc., et al. - Civil Action File No. 02-A93670-3, deposition,. Atlanta, Georgia 08!25/04 State of Georgia v. Dustin (Dusty) 1lilitchel Utz, case No.: 04-CR-000317 Cherokee County Superior Court 08!30/04 Judith K. Jaques, et a1. v. Georgia Baptist Health Care System, lnc., Civil Action File No.: 03V5047245E, Deposition, Atlanta, Georgia 10/25/04 Destiny Hammock, et al v. John G. Ricketson, M.D.; Civil Action File No.: 03SCV0504, Deposition Marietta, Georgia 11/08/04 Deborah Johnson, as Personal Representative of the Estate of Pamela Demetra Stegall, et al. v. Jasmine Jeffers, M.D., and Cumberland Obstetrics, et al. State Court of Fulton County; CAFN 03VS043698F, Deposition, Duluth, Georgia 12/07/04 Ulysses Simmons, Jr., et al. v. Baptist Village, Inc., et al Superior Court of Bibb County; Civil Action File No.: 01 CV13737, deposition, Duluth, Georgia 04/12/05 Toccoli v. The Roane Estate, deposition, Gainesville, Georgia r r j 1 , 08/09/05 08/26/05 08/29/05 09/20/05 10/11 /05 10/28/05 11 /29/05 01/18/06 03/02/06 Thomas Read. v. Life Care Centers of America, Inc., et al. Circuit Court of the 10th Judicial Circuit in and for Polk County, Florida, Case No.: 53-2003 CA-003165, deposition, Afilanta, Georgia Charles R. McNutt, Jr. and Lynda McAfee, as Administrators of the Estate of Charles McNutt, Sr:, v. Jane Benson, Civil Action File No. 03-CI-196, Murray County, deposition, Calhoun, . Georgia John T. Shirley, as Administrator of the Estate of Jeannie Rebecca Campbell et al. v. Life Care Centers of America, Inc., d/b/a Life Care Center of Gwinnett, et al. Civil Action File No.: 2005CV95894, deposition, Atlanta, Georgia The Estate of B. E. Freeman, Probate Court, Bainbridge, Georgia Charles R. McNutt, Jr., and Linda McAfee Administrator of the Estate of Charles R.. McNutt, Sr., V. Jane Benson Civil Case No.: 03-CI-196, Murray County Superior Court, Chatsworth, Georgia Lonell Robinson, Representative of the Estate of George Robinson v. Manor Care, Inc., f/n/a HCR Manor Care, Inc., et al, Civil Action File No.: 03-C-540K, In the Circuit Court of Raleigh County, West Virginia, deposition, Atlanta, Georgia State of Georgia v. Winston Pressley Reid, et al Case #: 2005000510, Columbia County, Evans, Georgia Estate of Myrlean Chambers Hicks, Estate No.: 19442, Floyd County Probate Court, Rome, Georgia State of Georgia v. James Vincent Sullivan, Fulton County Superior Court, Atlanta, Georgia 08/02/06 Katina Hall, individually and as Mother, and Guardian of Kimora Edwards, a minor child v. Suwanee Pediatrics, et al. State Court of Gwinnett County Civil Action File No.: 02-C-10019-4, deposition, Atlanta, Georgia 08/08/06 Katina Hall, individually and as Mother, and Guardian of Kimora Edwards, a minor child v. Suwanee Pediatrics, et al. State Court of Gwinnett County Civil Action File No.: 02-C-10019-4 08/09/06 State of Georgia v. Timothy Whitley, Fulton County Superior Court, Case No. 02SC07001 09/12/06 In Re: Estate of Martha Ann Bishop, Estate No.: 06-52,Union County Probate Court, Blairsville, Georgia 09/13/06 Robert F. Wright, Jr., Cecil Herbert Barnes, Jr., et al v. Sherry T. Barnes, et al In Re: Estate of Cecil H. Barnes, Sr., The Court of Common Pleas for Aiken County, Aiken, South Carolina, Case No.: ~ 2005-CP-02-38 10/12/06 Robert Steven Dysart and Debbie J. Dysart v. Cartersville Medical Center, et al Civil Action File No.: 05A4964-1, Deposition, Atlanta, Georgia 10/31/06 Lawrence William Lee v. William Terry, Warden, Georgia Diagnostic Prison, Superior Court Butts County, State of Georgia Gase No.: 89-V-2325, Deposition, Decatur; Georgia 11/16/06 State of Georgia v. Scott Davis, Fulton County Superior Court, Atlanta, Georgia, Case No.: 05SC37460 12/05/06 Kimberly Mullins and Timothy J. Mills, Jr., as Co-Personal Representatives of the Estate of Timothy J. Mills, Sr., Deceased v. Ronald S. Sills, M.D., et al In the Circuit Court of the 18th Judicial Circuit, Brevard County, Florida Gase No.: 05-2003-CA-044050, Deposition; Atlanta, Georgia 01/24/07 State of Georgia v. Koby Karuzis, In the Juvenile Court of Gwinnett County Case Number: 06-4358 03/02/07 Charles M. Thomas v. Birmingham Budweiser Distributing Company, Inc., The . Northern District of Alabama, Birmingham, Alabama, Evidentiary Hearing. Case No. CV07-BE-0021-S 03/27/07 State of Georgia v. Kenneth L. Johnson, Case No.: 05-R-110, Grady County Superior Court 05/17/07 State of Georgia v. Sunday Stokes, Case No.: 06-CR-0055S, Treutlen County Superior Court, Probation Revocation Hearing 07/06/07 Charmaine Zawiia, et al v. Sovereigh Healthcare of Metrovvest, of al, Deposition, Orlando, Florida 08/02/07 State of Georgia v. Leonard Smith, Dooly County Superior Court, Vienna, Georgia Case No.: 07DR-002- 09/24/07 State of Georgia v. Stacey lna Humphreys, Glynn County Superior Court, Brunswick, Georgia, Change of venue from Cobb County, Case No. 04-0673 10/09/07 State of Georgia v. Brian Bookins, Baldwin County Superior Court, Milledgeville, .Georgia, Case No. 06-CR-06-CR-45776 12/11 /07 Ford v. ford, Gwinnett County Georgia state Court ! • 1 d t l , Arthur T. Ainthony, LLC Certified Forensic Handwriting & Document Examiner P. 0. Box 820420 Atlanta, Georgia 30362 November 9, 2007 Cindy Leopard, Esquire Burr and Forman 171 Seventeenth Street, NW Suite 1100 Atlanta, Georgia 30363 Re: Catherine Downey -Signature Analysis Dear Ms. Leopard: (770) 338.1938 FAX (770} 234-4300 You provided me with various electronic copies of various documents and portions of documents bearing signatures and writing for examination and comparison. Basically, you requested that I determine if the signatures were all prepared by the same individual. The following is a description of the signatures and the results of my findings: ., 1. Redacted document bearing the signature Catherine Downey as President. Labeled Exhibit 1. 2. Redacted document bearing the signature Catherine Downey. Labeled Exhibit 2. 3. Redacted document bearing the signature Catherine Downey for Roosevelt Builders, inc., dated 2-12-05. Labeled Exhibit 3. 4. Redacted document bearing the signature Catherine Downey for Roosevelt Builders, inc., dated 2-12-05. Labeled Exhibit 4. 5. Stubbs Road Development LLC check #1102, dated 8122/05, signed Catherine Downey. 6. Redacted voided check #4932, dated Jul 8, 2005, signed Catherine Downey. 7. Authorization for Downeast Builders 8- Realty, inc., undated, signed Catherine Downey. Labeled. Exhibit 1. 8. Quality Builders Warranty Corporation. signature page for builder Jefferson Homes, inc., dated 2-11-05, signed in two places Catherine Downey. Labeled Exhibit 3. Diplomats Amercan Boand of Foronslc Ooaunent Examiner3 American Society of Qwatloned Document Examiners American Academy d Farenalc Sdencsa r ~ r ~ t t Cindy Leopard, Esquire November 9, 2007 Page Two 9. Quality Builders Warranty Corporation signature .page for builder Downeast Builders & Realty, Inc., dated 2-11-05, signed in two places Catherine Downey. Labeled Exhibit 4. 10. Quai'ity Builders Warranty Corporation signature page for builder Franklin Builder, Inc., dated 3-28-05, signed in two places Catherine Downey as Vice President. Labeled Exhibit 2. 11. Quality Builders Warranty Corporation signature page, dated 2-11-05, signed in two places Catherine Downey. Labeled Exhibit 3. REQUEST: Conduct examinations and comparisons of the Catherine Downey signatures on Exhibits 1 through 11 in an attempt at determining whether they were ail prepared by the same individual. FINDINGS: It is my professional opinion, after examination and comparison of Exhibits 1 through 11, that the Catherine .Downey signature on Exhibits 1, 2, 5, and 6 were prepared by one individual and, therefore, of common authorship. Further comparison reveals that the Catherine Downey signature andfor signatures on Exhibits 3, 4, 7, 8, 9, 10, and 11 were all prepared by one individual but not the same person who signed as Catherine Downey on Exhibits 1, 2, 5, and 6. Y Differences in letter designs, initial and ending strokes, height relationships of letters, size, spacing and especially skill between the twa groups of signatures, as described above, are all factors in the formulation of my opinions in this matter. REMARKS: Note that Exhibits 9 and 11 are two versions of the same document. The above findings are demonstrable through an enlarged illustrative chart. If testimony is required, please allow sufficient time for the necessary preparations. A curriculum vitae outlining my experience in forensic document examination, including signature analyses is attached. Diplomats-American Boarcl of Forensic moment Examinere American Sodety of Questioned Oocumenl Examiners American Academy of Forensic Sciences e Y 1 1 Cindy Leopard, Esquire November 9, 2007. Page Three Ail electronically submitted documents are attached to this report. Dlptamate.Amarican Board of Forensic Doannent ExamNsere American Society of Questloned Document t:xaminere American Academy of Forensic Sdenoes f • t n ~ i y 3 Z EXHIBIT 7 i ( h 1 ~ l~ 7 i { t i 4 2 f ~ ' ~ ,` t `l ' w..... _ 4a ~V '~ w~_.~J.k.G. ~~ jNunA otlpAdr • R~~o MhlaY'MP01 •.- i~ at Ne ipgRMla~1 EXHIBIT 3 r ~ + ~ ~ 4 ~ s 1 ~y ~ __// Y8{ T`~Y ~.Y~1.4 Gil i .Y E EXHIBIT 4 : f , i ~ 4 ~ tf f Q ~~ W~l '," ~ M ~,,• ~, ~ .~..~ DWDq ((` 0.FQ i ~ ~ ' { fl 1 :i Yl'%~T ter. ~ .. ,~~.. 1 :~ . •~.• ;'~ • . .. .. .~ V~ - ~ ~rs~ .r. ~•Jtil•~: 8;. 2'005 ' : •. ~, •.. 734"' • ants ~. i 2 4 ~ ~ ~~ ~ 10/22/2007 07:28 F~ T17 730 T388 ' 82/11/2805 15:39 770708834 .~; . ~~ ~ ~~ QI00$/009 A~3TING DEPT PASE 84!13 Auiti0Hr7ATI0N rns undeatgr>ad aulho8~a RBW m oondues HquNiq and o4teYt ae~dlt reports m deterttthia the tu+do~lyt~s nnsnaat and brdrfleet e61lMyr b per. roan esot~ai~ w,ae<um caw Propreun. an wo„eeliat reeolv.d ~ sew «,~ be nerd M ao~Rhnoe ueraes omawloe ep.aeed. me uralarelgrsed rogvosta dtot you ~n6das iwAabia W CaW any tMornmdon to yourpoaopvi0n, wnteb CriW requmb. - ~ A1JS'Fr0i1[~08t E c' •. BE 81~Rr;'1'p INCLUDE THE FOLLGIMNC WITH Y~0-!JR APPLICATION; 1.113501~spular pPpllcxttlon fes'• 2. Slgnad 0utlder Agr+t~rner-t . S. Mast Curressi Year end Nnanc~el statement or tax return 4. Proof ai a~terell llebipty lnsuranc0 (Copy of bedatsfions Pepe of PCllcy or Certttloa#te of tnst8'ariCe train EIQBhC» 'Otte harm ern+oii-nont eppllCatto<r fee $800 (certiflsd checiQ; Expsdltsd 6 day appllastlan Prooessingdee X00 (certltfed ahao[~ t Pity note that M revigwing ~aplitsants far the QHW Program, certain cysts sra incurred, therefore ai4 appllceiian fees sre eon-retttrtdable. ~ Copyttght 1986 c~,e!!ty Bulldets wetrenty corparatlon s25 t'I, seccrt,d st. Wa:mteysbur8r PA t 7W}3 . f , T 1e 4• 10/22/2007 07:32 FA7C T17 730 7386 R$QGBR ~ AD1.BR 1Ij008/009 S. This Agreamasst shall be kstsrpt ~ end entor~ to aocordsnce with tt+e law. :the Commonwealth of P aru~sylvania. Euf, aunts lrrsBWbsd undst thb AgTeelnant shell be brought In penttaylvanla In a coast syt oor»pe~bertt jurisdiction. Wunder here- by consorts to the personal jurledtcilon of the P~lnsyhronia courts. 6. idutlder ehe;Y not aeslph this Apreemarn without t13s p-tor wrNterl oonarn of pBW. ' ' 7. Th{e Agreement shaA knua to the benettt of and b'e binding upon the heirs, executorat admtnieb store, asstgnea, artd aua . ~Ceaecre of the I+opraeeMeth~e partly;e. ' 8. 1'tue inewment, and. ssgxtty. documents and dgctinrents reterred to ar Incorporated herein by reterenoe, contain the erttlrv agreement betwee fr ihs psrttes, and no statement, giantess, er tsuiuoemante trade by either party or agent of either . party tharb not corrjatned In thta written contract shall be valid er binding; and this eantraot may not be erttargsd, mod. iHed, or altered except in writing signed by the parties and endorsed hereon. 8. ~allare of aftirer party to krsiat upon compllenoa with any provl~on of thta Agreement shall not conetltube a waiver of that ptdvfsion. - . i0. All notk~ea~equlred hereunder must be In writing and sent by certliled mail, postage prepaid; Tatum t~ecelpt requested, to the recipient at tt~ respective address indtcatad an the front, or fQ whatever address the party may designate h willing, 1 t . The eitecttve date of this Agreement shag be the data of exeadton by QBW. '~ ;, QtTA3~'Y BUl7.UBR5 WAEtRA2~'t'Y Cf3i~'ORA.71<t7N t3y 1?ate of exvcut<an by Q9W t3ttltdel"8 Regtstretion Na. . BUilAt~ . QVOMO ' e'~{le{rGf . doo~a OTh1t ar ive~1 ~~ By An>7t;NDUM "~"~"~ Srslf flare In canetderutan far taeetving a redycad rs~e, Builder agrees to maL>tafn its' memberatdp fn the QBViI proem for a period of yealg'to ccmnrertoe on the bate thte nddendturi to exeattad by QBW. BuNder agrees to aubmR for enr+oilment at homes w h >3Wldst crony nttltisrte canatruote during the term yard any axtenekma. In exchange, Butldrar's rate wNt be Sj ~, f per thousand, The addendum wTt renew for Ilke farina unless ~Oj days pilot to the explnntlon of the term, or any extens[ome; either Party provides the other"_{SO) days advanrs wdtten notice tt>st they intend not to extend the period entlWng the budder to a Tower rata. If t3t~tdar provides ratite, QBW Hrlff adjust the 13ullder's rats upwarid effocdive at the end of the then currant term. BUILDER . Ortm. ors • ar~.w e~r~a r c ' QT3AY1'~'X BUII,DBBS WA~RdN~'Y C41~ORATInN gy .~~ . Please note that in reviewing appittrerttr3 for the QBW program, c;ertaln casts are tnourred, therefore silt eAplbetlQn tee9 >at~ non-refundable. CapydeM lees Oue6~yauAdoro Warnnb ~aporagm aBwfareasoaio~ • , .. a ee ~d o;"° ZZEEES56LL Bt+~Tt 5661/jt/Le . IPl+aoa Wet rtattwlgeo of a~oeo~e (PMeso aenq/mta e1et01r6o~ a • ~~ ~t "t 10/22/2007 07:58 FAZ 71T 7S0 7388 RBAGSR & Alll.l3R ~ 004/007 5. Thfa Agreement end entorcad in aaordance wRh the fawn the Commonwealth of Pennsytvvaniaa.All. ~ shall tie trtC~rprec salts irrst'rtuted~ under this Agreement shall ba brought to Pennsylvania !n a court of competent jurisdiction. Builder her~a- bY consents to the personal jurtsdictbn of the Pennsylvania courts. 6. t3ulider shall not ase(gn thb Agreement without the prior written consent oT QBW. 7. This Agteemert ahaq inure to the barrefit of and be binding upon the heirs, executors, admtrdatrators, assignee, and sus ceasors of the repreeerttati+re parties.. 8. Thls.lnstrumerrt, and security documents and documents referred to or Incorporated herein by referarrce, contain the entiro agreement between the parties, and no statement, promises, or inducements made by either party oragent of eNher party that•ls notoorrtalned in this written contract shalt be valid or bir-dtng; and this contract may not be ~tlerged; mcd- (tied, or altarsd exoapi in writing signed by the parties and endorsed hereon. 9. Fapnre of either party to insist upon compliance with any provlelan of this Agreement shall not conatltute a waiver of that pmvtstan. 10. All noticss rsqulred hereunder must be in writing end sent by certified mail, postage prepaid, return r+aoeipt requested, to the recipient at the respect ve address Indicated on the front, or to whatever address the party may designate In writing. 11. The effect(ve date of this A~~rgemeM shag be the date of execution by CBW. ' `' -; ~Qvn>wrrY ffirs wASRArn~ coxpoz~ox ey, ~ Date of execution by QBW ~~~ ~ ~ 21705 Builder's Regieh~tlon Na: 5041,6 De" i ~ ADDENDUM ~-----r- Stga Bore in wnsideration'for receiving a reduced rats, Builder agrees to maintain its' msmbenstrtp (n the t]BW prognrrn for a period of _~ year's to~oommenct3 on the date~this addendum to executed by Q9W. Buller agrees to subrnft for enrollment sp homes wh(ch Wunder or any affiliate constructs during this temr and any extenslone. in exchange, Builder's rate wip be S / ~ /peu• thousand. The adderxium will renew for Bke terms unless (30) days prior to the expiration of the teem, or any extena(ona; either P~'h+ Provides the other (~~ days advance written notice that they intend not to extend the period entttiirrg the balder to a lower rate ff Builder provides notice, QBW will adjust the Builder's rate upward effectly® at the end of the then cunsnt term. nn, .,nona.i ~..~ ~ \ri,.n~ .._ Q BU,LDER .. I BUIIDERS WARRANTY CORPORATION By 23, 2005 Please note that in reviewing applicants for the Q8W Program, certain costs are incurred, therefore all appt[cattott lees are non-reiundabie. Copyrreht lass CusrNy auliders Warranty Coepo++Won new rowoso era . pMsa.. pr6~t ~ame/tMe or ~xeeato0 man ~rtnt n+n~Jtrgr or ~pxtRa~ ~ ~, ~ 5. mis Agreement shall ba;interpret •nd enforced in accordance with the law: he Commonwealth of Pennsylvania. Alt suits instituted under this Agreement shall be brought in Pennsylvania in a cant r of competent jurisdiction. Builder here- by consents to the personal jurisdiction of the Pennsylvania courts. 6. Builder shall not assign this Agreement without the prior written consent of G~BW. 7. 'this Agreement shall inure to the bertetft of and be binding upon the heirs, executors, admirtlstrators, ass{ghee, 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, premises, ar 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, mod- ified. or altered except in writing signed by the parties and endorsed hereon. 9. Failure of either party to insist upon compliance with any provisbn of this Agreement shalt not constitute a waiver of that provision. 10. Alt notices required hereunder must be in writing and sent by certified mall, pastege prepaid, return receipt requested, to the recipient at the respective address indicated on the front, or to whatever address the party may designate In writing. 1 i. The effective date of this Agreement shall be the date of execution by QBW. BUII DER,S WARRANTY CORPORATION Date of execution by QBW April 5, 2005 t3uftder's Registration No. ~ 50425 A„ . ~ - ~BUILD~R Dal By ADDENDUM -~-~- Sign Here to consideration for receiving a reduced rate, Builder agrees to maintain its' membership in the QBW program for a period of +,~ years to commence on the date this addendum is executed by CBW. Builder agrees to submit for enrollment all homes which Builder or any affiliate constructs during this term and any extensions. In exchange, Builder's rate will be $l 1.,.~ Ipar thousand. The addendum wilt renew for tike terms unless (30j days prior to the expiration of the term. or any extensions; either parry provides the other (30) days advance written notice that they Intend not to extend the period entitling the builder to a lower rate. If Builder provldes_notice, QQW will adjust the Builder's rate upward effective at the end of the then current term. By - Date Please. note that jn reviewing applicants for the QBW Program, certain costs are incurred, therefore all application tees are non-refundable. cepyrlght 198e ouatky auildara Warranty corporation OBW FORM 0!0 Oi01 QUAI[1IY BUIIDERS WARYtANT'Y CORPORATION r a ~ .. ~t ~ .s ~ $, 'Tills Agreement shat! be Interpret ~ 'nti enforced In accordance with the taw: he Commonwealth of Pennsylvania. All suits~instftuted under this Agreement shall be brought in Pennsylvania in a court of competent Jurisdiction: Builder here- by consents to the perstinai jurisdiction of the Pennsylvania courts. 6. Builder shaft not assign this Agreement without the prior written consent of QBW. 7, This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administnators, 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, prom(ses, or inducements made by efther 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, mod- ified, 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. Ail notices required hereunder must be in writing and sent by certified mafi, postage prepaid, return receipt requested, to the recipient at the respective address indicated fin the front, 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. WARRANTY CORT'ORATION Qate of execution by QBW .. Februat:Y 28~ 20~ Builder's Registration No. ~ St3417 Da' x By ADDENDUM ~-~-~-~ Sign Here in consideration for recetv[ng=a reduced rate, Builder agrees to maintain its' membership in the QBW program for a period of _~. years to commence on the date this addendum is executed by QBW. Builder agrees to submit for enrollment all homes which Builder or any affiliate constructs during this term and any extensions. In exchange, Builder's rate witi be $ 1_._7_c.~_/per thousand, The addendum will renew for tike terms unless {30) days prior to the expiration of the term, or any extensions; either party provides the other (3o);days advance written notice that they intend not to extend the period entitling the builder to a lower rate. tf Builder provides.notice, QBW will adjust the Builder's rate upward effective at the end of the then current term. or Date ~' ~~'~ l~ ~ By ~~ " lgnetwe of AtNhortrad RepreasntatiYe • Title) ` (Pleas. print name/title of exocutorf . BUIIAF.RS WARRANTY CORPORATYON By ---- ~ ~..X+ Date Febr 28 r 2005 Please note that In reviewing applicants for the QBV'J Program, certain costs are incurred, therefore ail application fees are non-refundable. copyright 1s89 Quality Builders Warranty Corporation otlW Fotw DSO ~ (Please print name/tllte al exeeuto~ ~ ~ ~ t ~ 1 r 11 STATE OF GEORGIA . COUNTY OF ROCKDALE AFFIDAVIT OF CATHERINE M. DOWNEY Personally appeared before the undersigned officer, duly authorized to administer oaths, Catherine M. Downey, who after being duly sworn in accordance with law, states under oath as follows: 1. My name is Catherine IVI. Downey and I am over the age of 18 years and competent to testify regazding the matters contained herein. I make this Affidavit based upon my own personal knowledge and my review of the relevant records and pleadings. 2. I am the secretary of Roosevelt Builders, Inc. ("Roosevelt Builders"), which is the defendant in Quality Builders Warranty Corporation v. Roosevelt Builders Inc , Court of Common Pleas of Cumberland County, Pennsylvania, Docket No. 07-5307. I am familiar with the operations of Roosevelt Builders, which is a subsidiary of Crown Communities, Inc. 3. I am the chief executive officer of Downeast Builders & Realty, Inc. ("Downeast Builders"), which is the defendant in Quality Builders Warranty Corporation v Downeast Builders & Realty, Inc., Court of Common Pleas of Cumberland County, Pennsylvania, Docket No. 07-5310. I am familiar with the operations of Downeast Builders, which is a subsidiary of Crown Communities, Inc. 253986 vi `~~ 3'7 r 4. I am the secretary of Jefferson Homes, Inc. ("Jefferson Homes"), which is the- defendant in Quality Builders Warranty Corporation v. Jefferson Homes, Inc., Court of Common Pleas of Cumberland County, Pennsylvania, Docket No. 07-5308. I am familiar with the operations of Jefferson Homes, which is a subsidiary of Crown Communities, Inc. 5. I am the chief financial officer of Franklin Builders, Inc. ("Franklin Builders," and together with Downeast Builders, Roosevelt Builders, and Jefferson Homes, the "Crown - Entities"), which is the defendant in Quality Builders Warranty Corporation v. Franklin Builders, Inc., Court of Common Pleas of Cumberland County, Pennsylvania, Docket No. 07-5309. I am familiar with the operations of Franklin Builders, which is a subsidiary of Crown Communities, Inc. 6. I have reviewed the complaints and attached exhibits in the above-styled cases against the Crown Entities (the "Complaints"). 7. Contrary to' the allegations of the Complaints, I did not sign any of the alleged contracts attached to the Complaints. 8. The autographs that purport to be my signature on the alleged contracts were forged. 253986 vl -~ '. ~, ~ ~ 1 i 9. I gave authorization to no one, an employee of the Crown Entities or otherwise, to sign my name to the alleged contracts attached to the Complaints. 10. In support of the foregoing, Mr. Tom McCarthy, a sales representative for Plaintiff Quality Builders Warranty Corporation ("QBW"), called the Crown Entities in January or February 2007 and asked an employee of the Crown Entities to send him signed versions of the alleged contracts attached to the Complaints. 11. In addition, contrary to the allegations in the Complaints and the allegations of QBW's counsel, the Grown Entities have continued to exclusively use QBW as their new home warranty provider throughout the pendency of the four cases styled above and have not breached any terms of the alleged contracts at issue. 253986 vl CERTIFICATE OF SERVICE AND NOW, this 24th day of January, 2008, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. Mail, postage prepaid and addressed as follows: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. Second Street Wormleysburg, PA 17043 illiams, Esquire 2 ,, ~~_ ~. F.", ~ r REAGER & ADLER, P.C. BY: THOMAS 4. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliam (c~ReagerAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rioyice~a~,Rea~erAdlerPC.corn 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jefferson Hornes, Inc. QUALITY BUILDERS WARRANTY CORPORATION, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. No. 07-5308 CIVIL ACTION -LAW JEFFERSON HOMES, INC., Defendant Jury Trial Demanded NOTICE TO PLEAD To: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. Second St. Wormleysburg, PA 17043 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. REAGER Date: February 12, 2008 Thondas O. Williams, Esquire Attorney I.D. No. 67987 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(c~,ReagerAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rjoyce(a~ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jefferson Homes, Inc. QUALITY BUILDERS WARRANTY CORPORATION,` IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. JEFFERSON HOMES, INC. Defendant No. 07-5308 CIVIL ACTION -LAW Jury Trial Demanded DEFENDANT JEFFERSON HOMES. INC.'S ANSWER WITH NEW MATTER 1. Admitted upon information and belief. 2. Admitted. 3. Denied. It is specifically denied that the Defendant executed a Builder Agreement with the Plaintiff. By way of further answer, it is believed and therefore alleged that the signature purported to be an authorized signature of the Defendant is not. The purported signature constitutes a forgery. Therefore, the purported written agreement and the terms contained therein is not enforceable as against the Defendant. 4. Denied. The averments of Paragraph 4 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, the Defendant denies that the document referenced in and attached to the Complaint, which is purported by the Plaintiff to be the written agreement between the parties, is an enforceable agreement as it constitutes a forgery and is not enforceable as against the Defendant. 5. Admitted in part; denied in part. It is admitted only that the quote recited in Paragraph 5 of the'Complaint is an accurate recitation of what is contained in Section B.1. of the document attached as Exhibit 1 to the Complaint. It is denied that the purported builder agreement, inasmuch as it constitutes a forgery which was never executed by the Defendant, is not constitute an enforceable agreement between the parties. 6. Admitted in part; denied in part. It is admitted only that the quoted language in Paragraph 6 is contained in Section B.S. of the document attached to the Complaint at Exhibit 1. It is denied that the so-called builder agreement referenced in Paragraph 6 is an enforceable agreement between the parties inasmuch as it is a forgery. 7. Denied. It is denied that the builder has failed to enroll all of its homes that it has constructed in the builder program with QBW. It is further denied that the so-called builder agreement constitutes an agreement between the parties inasmuch as it constitutes a forgery. 8. Denied. It is specifically denied that the Plaintiff is entitled to any damages from the Defendant inasmuch as the Defendant has not breached any agreement with the Plaintiff. 9. Denied. It is specifically denied that the Plaintiff is entitled to attorneys fees under the purported and so-called builder agreement inasmuch as said purported agreement constitutes a forgery. The Plaintiff never agreed to pay any attorneys fees. 2 10. Denied. The averments of Paragraph 10 constitute conclusions of law to which no responsive pleading is required. To the extent that an answer is judicially deemed required, the Defendant denies that jurisdiction is proper in the courts of Pennsylvania inasmuch as the purported language which the Plaintiff alleges provides for jurisdiction is part of a document to which the Defendant did not agree. By way of further answer, the purported builder agreement constitutes a forgery and is not therefore enforceable against the Defendant. WHEREFORE, the Defendant respectfully requests this Honorable Court to dismiss the Plaintiff s Complaint, with prejudice and costs. NEW MATTER 11. Defendant incorporates herein by reference the averments of Paragraphs 1 through 10 above as if set forth fully herein. 12. Plaintiff s claims are barred inasmuch as the purported builder agreement upon which it relies as the basis of its claims constitutes a forgery and is unenforceable as against the Defendant. 13. The Defendant has enrolled all of its homes in the QBW program and therefore has not breached any agreement with the Plaintiff. 14. The Plaintiff has not suffered any damages inasmuch as the Defendant has not breached any agreement with the Plaintiff. 15. The Plaintiff has knowledge that the Defendant has enrolled all of the homes it has constructed in the QBW program, and as such, has filed a frivolous lawsuit against the Defendant. 16. The Plaintiff's claims are barred due to the doctrines of waiver and estoppel. 17. The Plaintiff's claims are barred due to its failure to mitigate its alleged damages. 18. The Plaintiff has not suffered any damages as a result of any action or inaction on the part of the Defendant. WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss the Plaintiff's Complaint, with prejudice and costs. Respectfully submitted, REAGER & ADI:J P.C. Date: February 12, 200$ By: O. 4 VERIFICATION I, THOMAS O. WILLIAMS, ESQUIRE, being duly sworn according to law, depose and state that I am the attorney for Defendant Jefferson Homes, Inc., and I make this verification on its behalf; and that said Defendant/Third Party Plaintiff is unavailable and unable to make this verification on its own behalf within the time allotted for filing of this pleading and the facts set forth in the foregoing pleading are true and correct to the best of counsel's knowledge, information and belief. This verification is made pursuant to Pa. R.C.P. 1024 and is based on interviews, conferences, reports, records and other investigatory material in the file. RED Date: February 12, 2008 By: . . CERTIFICATE OF SERVICE AND NOW, this ~~ day of February, 2008, I hereby verify that I have caused a true and correct copy of the foregoing Answer with New Matter to be placed in the U.S. Mail, postage prepaid and addressed as follows: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. Second Street Wormleysburg, PA 1' ~ ~ . .-~ s t t s ' r C~3 r -r~ F~ ,r ~ ~~,.. ~- '~ s~ ~~ ? ~ 'Yy ~L~, .. ..~: <„s. REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(a~ReagerAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rjoyice~a,ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jefferson Homes, Inc. QUALITY BUILDERS WARRANTY CORPORATION, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, No. 07-5308 v. JEFFERSON HOMES, INC., Defendant CIVIL ACTION -LAW Jury Trial Demanded PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly substitute the attached original Verification signed by an Authorized Representative of Defendant Jefferson Homes, Inc., for the Attorney's verification included with Defendant's Answer with New Matter filed on February 12, 2008. Respectfully submitted, REAGER & Date: February 14, 2008 By: Esquire VERIFICATION I, Catherine Downey, hereby verify that I am the President of Jefferson Homes, Inc., and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Dat By: Catherine Downey Nicole Wiliiams~- Notaay Public, i~ckdale County, Georgia My Commissron Expires June 14, 2~9 CERTIFICATE OF SERVICE AND NOW, this 14th day of February, 2008, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. Mail, postage prepaid and addressed as follows: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. Second Street Wormleysburg, PA 1 2 ~~ ~ ` T •--i T C ~ ~ ' '^7";' ~w ~ .. ~ ., ~ ~; i i ..._ . .C e u.. '~y~ 9" ~T. `~ i..... ~7 ' t } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff v. JEFFERSON HOMES, INC. Defendant NOTICE TO PLEAD To: Thomas O. Williams, Esquire Attorney for Defendant 2331 Market Street Camp Hill, PA 17011 CIVIL ACTION DOCKET N0.07-5308 YOU ARE HERBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully Submitted, _ G ~~~ Jo A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION, CIVIL ACTION Plaintiff DOCKET N0.07-5308 v. JEFFERSON HOMES, INC. Defendant PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER. CONTAINING NEW MATTER 11. Defendant has incorporated its averments to Paragraphs 1 though 10. Plaintiff denies the allegations of Defendant, and by way of further reply, Plaintiff incorporates herein its allegation contained in its Complaint, allegation in its reply to Defendant's Preliminary Objections, and the allegations contained in its New Matter in accordance with Pa.R.C.P. 1019(g). 12. Denied. By way of further reply Plaintiff incorporates herein its allegations contained in its Complaint, the allegations in its reply to Defendant's Preliminary Objections, and the allegations contained in its New Matter, in accordance with Pa. R.C.P. 1419(g). 13. Denied. Byway of further reply Plaintiff incorporates herein its allegations contained in its Complaint, the allegations in its reply to Defendant's Preliminary Objections, and the allegations contained in its New Matter, in accordance with Pa. R.C.P. 1019(g). 14. Denied. By way of further reply Plaintiff incorporates herein its allegations contained in its Complaint, the allegations in its reply to Defendant's Preliminary Objections, and the allegations contained in its New Matter, in accordance with Pa. R.C.P. 1019(g). 15. Denied. By way of further reply Plaintiff incorporates herein its allegations contained in its Complaint, the allegations in its reply to Defendant's Preliminary Objections, and the allegations contained in its New Matter, in accordance with Pa. R.C.P. 1019(g). 16. Denied. By way of further reply Plaintiff incorporates herein its allegations contained in its Complaint, the allegations in its reply to Defendant's Preliminary Objections, and the allegations contained in its New Matter, in accordance with Pa. R.C.P. 1019(g). 17. Denied. By way of further reply Plaintiff incorporates herein its allegations contained in its Complaint, the allegations in its reply to Defendant's Preliminary Objections, and the allegations contained in its New Matter, in accordance with Pa. R.C.P. 1019(g). 18. Denied. By way of further reply Plaintiff incorporates herein its allegations contained in its Complaint, the allegations in its reply to Defendant's Preliminary Objections, and the allegations contained in its New Matter, in accordance with Pa. R.C.P. 1019(g). WHEREFORE, Plaintiff demands judgment against the Defendant in accordance with the relief sought in its Complaint. NEW MATTER 19. On February 11, 2005, Defendant faxed to QBW's place of business an Application to become a member of QBW. A true and correct copy of the Application is attached hereto, incorporated herein, and marked as Exhibit 1. 20. The first page of the Application requests applicants to submit various items, including the application fee, signed Builder Agreement, current financial statement and proof of general liability insurance. 21. In connection with its Application Defendant submitted a check number 1192 for the application fee. 22. In connection with its Application Defendant submitted a signed Builder Agreement. A true and correct copy of the Builder Agreement is attached hereto, incorporated herein, and marked as Exhibit 2. 23. In connection with its Application, Defendant submitted a financial statement. 24. In connection with its Application, Defendant submitted proof of general liability insurance. 25. On February 28, 2005, QBW approved Defendant for membership in its program, QBW executed the Builder Agreement and forwarded an approval letter and accepted Builder Agreement to Defendant. A true and correct copy of the approval letter (with the password whited out) and Builder Agreement is attached hereto, incorporated herein, and marked as Exhibit 3. 26. The approval letter contained a password, in order for Defendant to be able to access their account through QBW's Intranet. 27. After Defendant received the approval letter, it utilized the password contained in its letter to access its account on QBW's Intranet and entered construction starts and requests for warranties. 28. Since Defendant's membership approval, Defendant has submitted a minimum of 499 requests for warranties to QBW. 29. Since Defendant's membership approval, Defendant has forwarded a minimum of 546 checks for payment of warranty fees to QBW. 30. Defendant sent a letter to QBW dated August 1, 2007, refemng to a particular section of the Builder Agreement, attempting to terminate their membership in the QBW program. A true and correct copy of the letter is attached hereto, incorporated herein, and marked as Exhibit 4. 31. QBW contacted Defendant and reminded them of their obligation to enroll all homes, which they constructed until February 28, 2010, the term of the Addendum contained on their Builder Agreement. 32. Defendant contended that the signature contained on their Builder Agreement was not authentic. 33. The first time that Defendant raised the issue of the authenticity of the signature on the Builder Agreement was in August of 2007. 34. From the time of the Defendant's approval as a member in the QBW program until August 2007, QBW had numerous contacts with Defendant's offices and at no time prior to August of 2007, did Defendant raise an objection to the authenticity of the signature on the Builder Agreement. 35. On January 31, 2007, QBW forwazded a letter to Defendant containing a proposed modification to the Builder Agreement. A true and correct copy of said letter is attached hereto, incorporated herein, and marked as Exhibit 5. 36. The modification was never executed; however, Defendant did not raise an issue as to the authenticity of the signature on the original Builder Agreement. 37. During its membership in the QBW program, Defendant advertised to the Public that it was a member of QBW, a copy of some of its advertisements aze attached hereto, incorporated herein, and marked as Exhibit 6. 38. If the signature on the Builder Agreement is not authentic, QBW had no reason to believe that the signature on the Builder Agreement was not authentic. 39. QBW permitted Defendant to enroll homes in its Ten-Year Warranty Program in reliance on the information provided by the Defendant. 40. At no time during the course of membership did Defendant object to the Builder Agreement, until it attempted to terminate its agreement at which time it raised an issue as to the authenticity of the signatures. 41. If the signatures were not authentic, Defendant had the opportunity to notify QBW when Defendant received its approval letter containing the fully executed Builder Agreement, which contained the signatures of Defendant and QBW. 42. Defendant did not object to the Builder Agreement when received with its approval letter and proceeded to enroll homes under the Agreement. 43. The defenses raised by Defendant are barred due to the doctrines of waiver and estoppel. WHEREFORE, Plaintiff demands judgment against the Defendant in accordance with the relief sought in its Complaint. Respectfully Submitted, Jo A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation 0^r~11/2005 15:39 FEB-03-2005(THU) 16:02 7707888324 QUA~~~~ BUILDERS ~RRRANTy ACCOUNTING DEPT PAGE ©7i 13 (FRx}~1'i .U7 9189 P, 002/003 nip?.-' t~L11~I'X'X' BT~D COQ'. '.;` 325 N, SEGON>~ Si'R~'I' RF,MtT wtT~i: 1. Current Ftttanaat a"mternen! Wt~RML~Y3BUigp, !~4't7043 2. Prs~af Cf General Uebltlry lrrsttr~rt~e reo~~~am• 7QLI.FREE; 7-80D~3,'34•~~4~ :ronGi~rp:orAaNg-orCe,ttAeglncr4xwna+eah~em~ncyl f ;NNl; #: 797.737~A266 ~. 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Namo TIIJo tax Sac. d Mcnre Addrana~ ~ _ _ qy -~ d, Nama ,,.,~_ i-lame Add~xjs ~„ ~. Namo uS Parser CrJmp~tty 4. hlDw many years has t~laE Exeeudve t5tticer owned andlor cantrailed p home i~ulkaing scxrlpli~y7,",,,,,,~,~, ..~ _,.~ . t~aoa tllo Appll~nt or any aF Ire Prirtdpefe tmue 'i tt9fi ormam Intaraat In any artier hamo bulldh~ busine~ which era nvt onraRed in the CIBW prognsrn7 t~d'irbs Q Na ff yea, itat apmen of F1'tlitles and peRenwy~ of ownarshha: ~ ~r ~ r~Q ~ ~ ~rQ>LL ~; n ~ seve( ~ 5. ~uelneee Grgnnixstton kheek anal: ~Corparatlcn ~.. "5" Corpvratlcn _ Solo iatapdertrnnhip ",~:~. ~,.~ Parrttanthip (t`<enerstAJmltnd{ Other. _-- - ~~~ -- -_-- _ _ _ ~, Hr~ many yoara hrsrr argtrnlxntlon (Ent{:X) been invalvod In home iwiidin~ (rat the prinCfpab~7 < <n__~~.~~~,~, 7. Nturtber of homes you expecCira build thisyaar ~,! Avernpe ~1es pt{ ~ ~ e.7 1Ytaao of homes t4 Mao buNtt _. vuplax, _'rownhause. ~~inple Family.., Conde (Nu~ther oi' at~lea _}, _, ether (apeniy~_ s. uar enunicrpal go,remmel~n{~t turlsdhslnn(sl wham applladnt w11t be bufldin0 hnmea to the nox: twalvo 112} marehn. City S.lLi_1.1_C Ca~rty:_~'~4 ^,_~ 9tnte City ~` ~"~" $~ T(tie ~, gpc, ~ ,.~. ~~ ~ Q9W G55A 5(p4 w%.•r"" FHB-03; 2005(TMU) 16:02 61UALIT'~ aul~oERS f~IaRRRhfTy (FAX}z17 7M7 4189 P. QL13/00? s, hittu th4 uppilctrrrt orany pf Its prinolpnle~/yr ilrm~a with whlrh tiny prfnellSat wAa altillotod, plod tar ban)cruptey ar been xd-udlrated ag bankrupt wlth3n tha last ~avon {~ yeara9 p Yes 'p Ntr • it yart, Aax nttmn(~ or ilnn(a) In+roived In banluifpfcy and yver pled. '!a, Daas appl{cunt build undor-~'vA. `~hlA. ~ FMMIA 11, Havel any Ilona or un~tloflad judgements boom pin~ad agglntrt the t~ullder7 .„~• c~2._ ,,,,~,,,,__ ,.,,,,~ !f yaa, oxplaln 1~, Hpa ppplirant's authority fo bUlirJ over bben auupemdad ar revoked? ~ D ltya:t, oxpfratn ~,.,~,,,,..._,~ , ,. 't3. Nsm4 of ctrrraM gbPreral Ilnlaplty inqurprlae nt7tnpeny ~,{,d_~-~n-~ ,.f~+ D r% ~" ~r~lo,~ aa~; _~~ Agent~Nsme phvnr~Nurttber[___ 1 Palley M Has app[laant heel any clalmR under ^ccmpleted oparafianar" In the lest three yeam7 If ycs, plcuao dostr:dbe: "'PL~A51= Rprt17A C~FCi'IFlGA'i'E CF IN~Ul3~wCE FROM YOUR AGE ON G~NERItiL LU4811.f'iY Ct~VE>~AC>: (or totwercl tl eapy at tha doc-arn• dorm pdga of the pogry} ~ ~. Fit-onciotAflillatlphs ~ ~•'w' a. Seek (8uslnes'sAcaoutrr) Chacklnp rS`~ ~t =_s ~~ ,_ '17rva of Aneuurrt C~eG ~ ~ 130~(~ ~~C~ ~» --~~ PWpNCa b. ink(Bualrraaal~ccunt}Savinga/MonoyMalrkat . , K~ ~ ~ypc ai Accpunt AC NIIMHER "'. MIULINq N9rlplid~{ FAx ~ ryWtlnl~ M b. Len~rrg il~tuflan (t;arraruc~zipn llnat~lnp aar_dnQe at Orediti t ~I.W2'.~,.,..~r~c~LLl~al.c~ 'rYlye r~rAaodUr{k~r~~..-EF'+~~- `' ~i~CCQtPub N~I,I M~-a,INtl N7Cr1G"" Feu a PWpry~ M f={n~nclnt StbtorngRt Rarnlt mACt curttrnt year end flnnncltu r3tAtriiriltilt urtex return. wlth name and pftnne f,untbdr at prapnrar. Nb7'~ All irrfrznngtlon will bo raecivcd as strictly opntidnnrlgf >arttaas apacUfod athr~rwiae. ~U'fhlOHl~A7iQlW The undensipnad autlfarixpu ial3W:o conduct inqulrlat: and tabtaln aedh report;. to deUamtine the mnlera}pnad'rt ikzanclrjl and tctchnl~l sbillty Zp porform Its abligafiona undor the gt3W ilmltad Warrrranty pragrsrn. all intannad4n rotoivmr3 by QdVV welt ~ hold in canlidence, unlaatt atherwlee npvaltlod, The underaignad requests that ycu Ilisskb xuttlteble b f]f$W any informailrrn In your paosatilon, whiort QBW reque~. Na>ur~ t7F COMPaNY {F'LEAS~ plaacer nor IFwt Ih mvlmwtnp a~pllac-nta for the G113W I'rapr#m, am1,alh co:tri Are lrrcurr~, tlxNalero pit rPPlla:rlivti fears arQ non•ratundably. ~~~ ~~ ~~,„~' Z1; ~Jdd Z9Z~IaW1idd ZZE£E1r50Lt 0b ~>;T 9002/1;T/Z0 i i i 'r i i ~-UTMAFt17~47i~N Its o6ggadolrians undar~ Cd3W~~~onduct itqudtes and al~Ir+ aed{t ~cpons t4 datam-tr+e she snxfeeofpnodb 1lsaneiz~i and sechnlc~l qty d- poMami' anderalgned requesn that you n~ • fisto GLOW ~ ~~~yaur aoase~ion, wAbds 8w n~que~, k~nca x oshssvt(x npodllad, l'ha any tntermsftan trt ~ -~~` v,~..: ,.. „a QUALITY :~ ~..L7ERS WA.~tIt,A1'~TY CC-~...F(JRt~TION BUtLt]ER AGREEMENT AGREEMENT made this /~ day of ~r~ , 20 Gf between QUALITY BUILDERS,/WARRANTY CORPORAT N, a Pennsylvania corporation, herein referred io as"QBW," and % ,~~~r^rr~,~!' ~•-w+~J ..~~. erne of Builder: (indicate whether a corpors[lon, partnership, i N ua of othbr) of / v Add!'e5s f ~~ ~a'~~rs /`i~~ ~ ~dr~ . _ . herein referred to as "Buiider.° SECTION A. tVIEtU1gERSHIP AND TERM: 1. QBW administers a program whereby home builders registered with QBW enrol! homes they construct in the program and purchasers 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 #o purchasers of well-built homes, QBW pro- tects 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 ail information supplied to~ QBW in connectian~with its application is true and correct. 4. Ail 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 i#s ob{{gation 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. QgW reserves the right to rescreen Bujlder annually. Ef QBW deter- mines that Builder does not meet its approval standards upon rescreening then QBW may terminate Builder's member-. ship and the provisions of Section B, paragraph 6, shall be in effect. SECTION B. MOMS ENRQ4.LMENT: 'I. 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, ar builder's principals common control constructs in any state in which QBW operates and agrees to pay a[l fees required by QBW in the enroll- ment process, which fees shall be non-refundable. 2. Procedures. Bu{lder agrees to enroll its homes according to procedures established by QBW. Builder may enroll homes currently under construction and homes completed but not Bald 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 execution of this Agreement or reacceptance, and QBW has inspected and approved the home. Homes which remain in a Builder's inventory longer than 18 rrtonihs must be enrolled by the end of the 19th month from construction start date and model homes must be enrolled on the date of the Gertificate of Qccupancy or use as a model, whichever is earlier to qualify for enrollment. The warrarity(s).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. If membership is terminated, at the direc- tion of QgW, Builder agrees to enroll any remaining units not enrolled at the time of termination. For each home enrolled, the t3uilder 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 $150.00 shall apply. QBW will provide Builder with a copy of the Limited Warranty Agreement and Enrollment t=orm. Builder and pur- chaser must complete and sign the Enrollment Form at closing, and Bu{lder agrees to furnish QBW with a copy of the signed Enrollment Form within ten (1Q) days of closing. Builder agrees not io charge the purchaser directly for the cost Qf the enrollment fee. A home will not be considered enrolled untl QBW receives and approves the fully executed and com- pleted 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 pr~ram if (a) the Builder is not a member in goad standing; (b) the home is not constructed in accordance with the Warranty Standards or bui{ding 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 thisAgreement. 4~ Assignment of Rights. If a purchaser files a Gomplaint pursuant to the Limited WarrantyAgreement which the Builder fails to correct, the Builder hereby assigns to QBW or its insurer, as the case maybe, any rights which Builder may have against a supplier, manufacturer, subcontractor or other person far work performed or materials supplied in connection with that .claim. Builder agrees to~cvoperate fully with QBW and to provide QBW with all information which it requests pertaining to the claim. If Builder fails to sa cooperate, Builder agrees to compensate and indemnify QBW for any damages Sustained by such iaclt of cooperation. tiI 3~dd ~ ~ ~ ~ Z£E~T90LL 9b~tT 5902/ZL/Z9 ~ .~~ S- This Agreement shall be interpr~ and enforced in accordance with the laws ~, the Commonwealth of Pennsylvania. A1-. suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder here- by consents to the personal jur(sdictian of the Pennsylvania courts. 6. Builder shall not assign this Agreement without the prior written consenf of QBW. 7. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, ~adrninistrators, assignee, and suc- cessors of the representative porkies. 8. This instrument, and security documents anti 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 written contract shell be valid or binding; and this contract may not be enlarged, mod- if<ed, 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. AI! notices required hereunder must be in writing and sent by certified mail, postage prepaid, return receipt requested, to the recipient at the respective address Indicated on the front, or to whatever address the party may designate in writing. 11. Ths effective date of this Agreement shall be the date of execution by QBW. By - Date Qf exeouition by RBW Builder's F~egistratton No. QUAY~TY BT,7~LDERS VPAYt1tANTX CORFO~tAT14N' • (ptea'de print namettltie of exeauto~ BUILi~~R {Name of Builder -please print or type) Da }~ By ADDENDUM -~--~--~ Sign Hers In consideration for receiving a reduced rate, Builder agrees to maintain its' membership Pn the QBW program for a period of „~_ years to commence an the date this addendum is executed by QBW- k3uiidar agrees to submit for enrollment all homes which Builder or any affiliate constructs during this term and any extensions, !n exchange, Builder's rate wilt be $ ,l. 7f~ _/per thousand. The addendum will renew far like terms unless (30) days prior to the expiration of the term, or any extensions; either party provides the o#her (30} days advance written notice that they intend not to extend the period entitling the builder to a Power rate.'If Builder provides notice, QBW will adjust the Builder`s rate upward effective at the end of thv then current term. BUILbEq • (Name of t3ulldar -please pltllt or type} Date .~- i"r'r ~_ By h...r r igr~tUrO of Authorized Reproserttative - TltleP QULf.1..11Y $V,li.a/E147 ~1~~4~ti~i 1 li~~Vil['llT~l\ ~~ ,.. Date Please note that in reviewing applicants for the QBW Program, cerfiain casts are incurred, therefar~ all application fees are non-r~efundabte. Capyr'igrtt 1988 Quality Builders Warranty Corporatlan QBW FORM D54 810A 5L 3Jdd Ex/liaQrad a. .; ,.~: . ;: _ ~_ - ZZEE8i50LL 0b~~t 500ZlILlZO . (pleaet print nemeltltle of executer) QUALITY BUILDERS WARRANTY C O R P O R A T I O N 325 N. Second Street, Wormleysburg, PA 17043 telephone: 717 737-2522 fax: 7 ] 7 737-4288 February 28, 2045 MR DOWNEY JEFFERSON HOMES, INC. 10289 CITY POND ROAD COVINGTON, GA 30014 Dear MR DOWNEY: Congratulations! Your affiliate application for membership in the Quality Builders Warranty Program has been accepted and approved. Your builder registration number is 50417. Based on your sales volume, your rate for home enrollment is $1.70 per thousand of the home's selling price. You must enroll all homes, which you construct. Failure to do so will result in penalties being assessed which will include a retroactive increase of your rate per thousand. With regard to multi family homes, you must enroll all the units in a building prior to discontinuing your membership. In order to view your account on the Internet, type www.QBWDirect.com. The QBW screen will appear and ask you to type in your Builder Registration number, Password and user name. Your Password is: This is a confidential Password and you should not disclose it to anyone to whom you do not want to view your account. Once entered, the Password will be encrypted and remembered from that specific computer you used. There is no reason to enter the Password in the future. Keep the Password in a secure location. You can now submit your inventory via your electronic account. With your on-line access you can also track your inventory, request books and print your own Enrollment Forms, etc. If you have any questions please call your Customer Service Representative. As a reminder, you have forty-five (45) days by which to enroll homes already in your inventory under the "grandfather clause". Any grandfathered homes, which began construction over six months ago or have been occupied within the last thirty- (30) days, please contact our office to determine the possibility of enrollment. All model homes must be enrolled during this time. Depending on the municipality in which you are building, you may be required to have inspections. Please contact our office for this information. The inspection fee per home is $120.00. The number one inspection is done prior to backfill, upon completion of the foundation; the number two inspection is done prior to drywall, and; the number three inspection is done upon completion of the home, but prior to occupancy. Please give ample advance notice. For any homes built on fill soil or in areas where unstable soil conditions exist you will need to supply compaction tests and/or soil reports confirming the bearing capacity of the soil. These reports should be forwarded to our office at the time of notification of construction. QBW provides valuable marketing tools to assist you in selling homes. Our web site provides Homeowner's Maintenance Tips and Warranty Coverage Information as well as the opportunity for your purchasers to receive discounts on their homeowner's and auto insurance because you are a Quality Builder. Please refer to the Marketing Tools insert which will be sent separately. Page 2 _ ~.~~' Please find enclosed the language, which we suggest our builders incorporate into their Sales Contracts. Naturally you will want your attorney to review your entire Sales Contract to make sure the appropriate provisions are contained and are consistent with the language of your full contract. Your customer service representative will be contacting you to walk you through the enrollment process and to be sure that you are sent an adequate supply of marketing materials. Enclosed you will find copies of your executed agreement. Again, congratulations! I look forward to a successful and lasting relationship. Sincerely, Thomas McCarthy Customer Service Manager Enclosures wli~e it 3 (~ QUALITY B .LDERS WA-IZRANTY CO` 'ORATION_ _ :_. BUILDER AGREEMENT ~ _ -_ ~J ~- AGREEMENT made this %/ day of ~v;~~y.' ~ , 20 ~; between QUALITY BUILDERS WARRANTY CORPORAT ON, a Pennsylvania corporation, herein referred to as "QBW," and % ~~,v~° r'i~ 1/ /~ .^~ a7_i ~j iersnip, indwitlual or other) of Address 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 purchasers 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 pro- tects 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 deter- mines that Builder does not meet its approval standards upon rescreening then QBW may terminate Builder's member- ship 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 constnacts in any state in which QBW operates and agrees to pay all fees required by QBW in the enroll- ment 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 execution 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 and model homes must be enrolled on the date of the Certificate of Occupancy or use as a model, whichever is earlier to qualify for enrollment. The warranty(s) 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. If membership is terminated, at the direc- tion of QBW, Builder agrees to enroll any remaining units not enrolled at the time of termination. 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 $150.00 shall apply. QBW will provide Builder with a copy of the Limited Warranty Agreement and Enrollment Form. Builder and pur- chaser 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 enrollment fee. A home will not be considered enrolled until QBW receives and approves the fully executed and com- pleted 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 WarrantyAgreement 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: moll any eligible home as required by this . ement, QBW may seek specific enforce- ment or other appropriate relief in I~..~ or equitable proceedings, even if this Agr~ment has been terminated. Furthermore, Builder agrees to indemnify and hold harmless QBW and its insurer for 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 accordance 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; Q) 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 indemnify 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 suspend the Builder, such suspension will remain in effect until Builder has cured all defects to QBW's satisfaction, how- ever, 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 co fortuity with the Warranty Standards provided in the Limited Warranty ~~~ Agreement, and/or in conformity h approved building codes and other st< Ards established by QBW and in effect at the beginning of construction ~,r the enrolled home. QBW reserves the r~y.,c to establish special requirements for escrow payments or other means of protection with respect to any homes constructed by Builder which QBW deter- mines 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 verify Builder's compliance with this Agreement and Builder agrees to cooperate. (d) The Builder agrees to indemnify 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 pro- fessional 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 under the QBW Warranty Program, if the Builder fails or refuses to perform its obligations in accordance with the Limited Warranty Agreement or this Agreement, QBW will perform the Builder's obligations, how- ever, the Builder agrees to reimburse QBW and/or Insurer for all expenses incurred in performing their obligations, includ- ing but not limited to, cost of materials, cost of collection, labor, architect's fees, engineering fees and counsel fees. QBW and/or Insurer reserve all rights of subrogation. During years three through ten under the QBW Warranty Program, QBW will perform its obligations with respect to major structural defects as set forth and defined in the Limited Warranty Agreement without the right of subrogation against the Builder provided that the defect, or symptoms of the subsequent occurrence of the defect, first arose after the expira- tion of two years under the QBW Warranty Program in effect for that home, and that Builder did not attempt to conceal or cosmetically repair the defect or symptoms of the subsequent occurrence of a defect and that the defect does not arise from Builder's failure to construct the home to applicable QBW standards or adhere to Builder's responsibilities under the Builder Agreement. If the Builder repairs a major structural defect during years one or two, QBW must be notified. Once notified, QBW will perform a compliance inspection. 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 purchasers 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 shalt 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 obligate 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 determination will not affect the validity of the remaining provisions. ~~ ~ j ~ .~~ 5. This Agreement shall be interpret ~.nd enforced in accordance with the law: .he Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder here- by consents to the personal jurisdiction of the Pennsylvania courts. 6. Builder shall not assign this Agreement without the prior written consent of QBW. 7. This Agreement shall inure to the benefit 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 written contract shall be valid or binding; and this contract may not be enlarged, mod- ified, 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 indicated on the front, 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. WA-ItRANTY CORPORATION By Date of execution by QBW February 28, 2005 Builder's Registration No. 50417 BUS ER ~e~~~~ ~ rcw~ lU G (Name of Bull er -please print or type) Date .~-//°'~ .~ By t~ of Authorized Representative -Title) ~~ Sign Here (Please print name/title of executor) ADDENDUM In consideration for receiving a reduced rate, Builder agrees to maintain its' membership in the QBW program for a period of _,~ years to commence on the date this addendum is executed by QBW. Builder agrees to submit for enrollment all homes which Builder or any affiliate constructs during this term and any extensions. In exchange, Builder's rate will be $ ~ 7c~ /per thousand. The addendum will renew for like terms unless (30) days prior to the expiration of the term, or any extensions; either party provides the other (30) days advance written notice that they intend not to extend the period entitling the builder to a tower rate. If Builder provides notice, QBW will adjust the Builder's rate upward effective at the end of the then current term. BUILDER ~ yes ~n.K_ of Bui{der - pte~se print or type) y Date ~' ~'~"" By ~ ~ '\ I of Authorized Representative - (Please print name/title of executor) UALITY BUILDERS WARRANTY CORPORATION By Date Febr ry 28 , 2005 Please note that in reviewing applicants for the QBW Program, certain costs are incurred, therefore all application fees are non-refundable. Copyright 1988 Quality Builders Warranty Corporation OBW FORM 050 9104 ~,~7 +# ~r ..~-'"-~ C R:~~ , ~W N COA~IMUNiTiES, )NC. August 1, 2007 Quality Builders Warranty Corporation Fax 717-737-4288 .Attn. Jordan Olshefski Dear Sir, Thank you for your fax of 7/19/07. Per page 2, Section B.6.o. Crown Communities is providing QBW with 30 days advance written notice of our termination of your services. Also per the Agreement, Crown Communities shall continue our obligations for those homes enrolled through August 30, 2007. Best Regards, ._---,~ Kelly Nelson For Katie Downey DOWNEAST BUILDERS & REALTY, INC • ROOSEVELT BUILDERS, INC • FRANKLIN BUILDERS, INC • JEFFERSON HOMES, INC 13~i Dogwood Drive • Conyers • rA • 30012 •678-509-oJ5J Phone • 6~8-So9-o55q. Fax. www. crowns om munitiesi nc. c orn JAN-3I-ZU!J7(9'ED) I5: C8 QUALITY BUILDERS WARRANTY (FAX)717 737 9184 P. 001 Transaction Report Send Transaction(s) completed No. TX DatejTime Destination 532 JAN-31 15:07 7707888324 Duration P.~ Result Mode 0'00'15' 002 OK N ECM Quality Builders Warranty Corporation 325 N~oxth 2°d Street Wormleysburg, ~.A 17043 1-800-334-9.43 Fax: 717-737-4288 Fu~imile Transmittal Sbcet To: Catherine I)owncy From: 't'om ~lYlcCarthy Company: AownCa,t Builders & Realty Date: January 3], 2007 Fax Number: 678-509-051 Total Pages: 2 Comments: Nl;~. ~L)owncy: As we discussed, I have enclosed the Addendum to your Builder Agreement. Please contact me if you have any questions. Tom McCarthy ~C116 ExHir~ir s ,.,,~ ~ ~ ~ w ADDENDUM TO BUILDER AGREEMENT The undersigned's Liability under their respective Builder Agreement(s) with QBW is joint and several. This addendum applies to any Builder Agreement(s) past, present or future, including entities added to this addendum at a future date. 50416 DOWNEAST BUILDERS & REALTY, INC. Date REG # Catherine Downey -President 50418 ROOSEVELT BUILDERS, INC. Date REG # Catherine Downey -President 50425 FRANKLIN BUILDERS, INC. Date REG # Catherine Downey -President 50417 JEFFERSON HOMES, INC. Date REG # Catherine Downey -President Form 5 8/3/04 GUAR 4.9 f. ".°•+i When you see a homebuilder that displays the QBW logo, you can look no further. This builder provides the QBW 10-yeal• wan•alnty on his homes and has been carefully screened for technical knov<~ledge, craftsmanslvp, and financial stability. The 10-year nevr Home warranty industry began in tine United States in 1975 as a method to restoreuntegrity to the home- buildungindustry.The federal legislature's pending regulations were avoided with the creation. of a warranty industry that would do business with only the best builders. Although several. companes in thisv~dustry have sh•ayed fi•om those principles since that time, QBW has maintained the original intent of the industry by continuing to do business with only Unose builders who hvld the highest standards of quality construction and custvlner service. ~7Pf2F.~LLS~~ As a member of Quality Builders Warranty, you can take comfort, knowing that this builder strives fvr excellence, consis~ tently creating quality homes and providing dedicated customer service. With QBW, you also benefit from: 7 0 years of prenuer protection. Tine stability of a warranty backed by Liberty Mutuat, one of the largest insurance companies in the United States. Potentia] discounts on homeowner's i>+suralnce, because Liberty Muhtal recognizes the higher caliber of construction by btulders in the Quality Builders Warranty Program. Potential Group auto insm•ance discounts, made available through Liberty Mutual. A smple and efficient complaint resolution process, should a problem ever arise. T11is process is designed to save both the homeowner and the builder flute and money. A clear understanding of what is covered by the warranty and who is responsible-for replacement or repau•. Confidence iln the construction of your home -your greatest as,et. `~cwenn~e undkra- `~~`d<3`lrll's ~zeerti~c ~7.c:tectian, ~~P.rJ3e: The Fist Year Tine builder warrannts tine home against specified defects nn workmv>.ship and materials that are the result of non- conformity with QBW's warranty standards, as weir as any major structural defects as defined in the warranty. The Second Year The builder warrants dne home against s}~ecified defects in the wiritg, piping anal duct work, as tire11 as airy major structural defects as defined in tine warranty. The Third throuirlr Tentln Yeats Should any major structural defect (as defined by the wan•anty) occur during this period, QBW will replace, repair or pay the reasonable cost of the repair or replacement, through its insurer. Throughout the 10-year period, the warranty is automatically transferable io subsequent fnryers, prtitectilig you a~~d the buyer. r clu~ue y~E~ace c~' ' ~ ~ `)'Ylirrd• The warranty specifies a clear set of written standards that help to elinvnate gray yeas and possible disputes between homeowners and builders. In the event that a concern does arise, the complaint resolution process is simple and efficient. QBW is convnitted to providing the most efficient anal fair complaint handling service possible. if the homeowner and builder carunot resolve the dispute, QBW will review the clainn and assign an investigator, if necessary. If the dispute is still unsettled, QBW ~~ill arrange for arbitration between the two parties, which is binding. For Sales Information: Mader Hot~~e 770.466.4507 office 770.466.4379 fax CROWN COMMUN1TlES Gown Communities' Standard Features are plan specific and may vary based at indit~idua] floor plain. we reserve the right to modify """" °" •'~ elevations, Floor plans, product specifications, and pricing without notice. Information contained herein is sut+ject to errors, omissions, changes, withdrawals, and prior sales without notice. ~=xMi~1~T ~O *.~.,, t R ~rp~~n ~'ommunities www.crowncommunitiesinc.com Page 1 of 2 COMPANY PROFILE A-~a[.~t Crawn Comm~.~nities j Name,awner Testimanir~is ~ tsVarranty i ~it~c~ri `~€~~aart ~ ~~rrr-s Warranty Choose a Builder of Integrity When looking for a new home builder in the Atlanta Area, it's important to choose a builder of integrity. When you see a homebuilder that displays the QBW logo, you need to look no further. Crown Communities provides the QBW ""=~ 10 year warranty on their homes and has been carefully screened for technical € knowledge, craftsmanship, and financial stability. t~,tfitp ~ilckra 1~C`arr~nts QBW screens builders for integrity so you don't have to. 'Huitders tlllnre9~~''' Crown Communities is proud to have been selected through this process and has been claim free for over 4 years! Let the Home Builders of Crown Communities in the Atlanta, Georgia Area build your New Dream Home! For more information on QBW please click on the logo to the right. `WARRANTY FORM CONTACT 'Required Information May 1 Help Yau? *Community Select the community Lot Num. *Your Name *Email *Home Phone Cell Phone 'Address *City ZIP: http://wvwv.crowncommunitiesinc.com/wananty.php ~~/!~ 1T 11?4/?OOR CROWN COMMUNITIES Crpv~n ,Communities Ref. 'How can we assist you? [-Contact Warranty ro~~,m;,^iti~s i About Us !Financing ,! Nom et:uyiug ~ Contact t1s ;News ! Garrers 4 l~tarrar:ty Copyright ®2006 Crown Communities, Inc. Disclaimer Sitemap Page 2 of 2 http:/lwww.crowncommunitiesinc.com/warranty.php ~~ ~ ~ ~ ~ l/24/20O8 VERIFICATION I, JORDAN F. OLSHEFSKI, Vice President of Quality Builders Warranty Corporation, hereby certify and state that the foregoing Plaintiff s Reply to Defendant's New Matter, Containing New Matter is true and correct to the best of my knowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Quality Builders Warranty Corporation Date: ~ ~S-D`~ By: Jordan F. Olshefski, Vice President CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of Plaintiff's Reply to Defendant's New Matter, Containing New Matter for Argument was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Thomas O. Williams, Esquire Reager & Adler P.C. 2331 Market Street Camp Hill, PA 17011-4642 Date: C~a~a,~ /OP c~trt,~.d o~-- Peg mson, Secretary c'~ `='°~ - ~~ _ _, _.{ i ~, ---~ ~_ _ -,-n ~ ~ ;, ~, ~ ~ }.: , __= -. .._. .~ ~':~a `a r~ --c REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams~?a,Rea,~erAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: ~oyice(~Rea~,erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jefferson Homes, Inc. QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5308 v. JEFFERSON HOMES, INC., Defendant CIVIL ACTION -LAW Jury Trial Demanded DEFENDANT JEFFERSON HOMES, INC.'S REPLY TO PLAINTIFF'S NEW MATTER 19. Admitted in part; denied in part. It is admitted that on or about February 11, 2005 Defendant Jefferson Homes, Inc. (hereinafter "Defendant") faxed to Plaintiff Quality Builders Warranty Corporation's (hereinafter "QBW ' or "Plaintiff') place of business an application to become a member of QBW. The document attached to Plaintiff s New Matter at Exhibit 1 as a written document speaks for itself. To the extent that the averments of Paragraph 19 are inconsistent therewith, said averments are denied. 20. Denied. The application attached at Exhibit 1 to Plaintiff's New Matter as a written document speaks for itself. To the extent that the averments of Paragraph 20 are inconsistent therewith, said averments are denied. 21. Admitted. 22. Denied. It is specifically denied that the Builder Agreement attached to the Plaintiff s New Matter at Exhibit 3 constitutes an agreement between the parties inasmuch as the Defendant did not execute the alleged Builder Agreement. 23. Admitted. 24. Admitted. 25. Admitted in part; denied in part. It is admitted that on or about February 23, 2005 QBW approved the Defendant for membership in its program. It is denied that Defendant received the referenced approval letter with the alleged Builder Agreements. It is further specifically denied that the Builder Agreement attached to Plaintiff's New Matter constitutes the agreement between the parties inasmuch as the Builder Agreement does not include an authorized signature of the Defendant. By way of further reply, Defendant incorporates herein by reference its Answer With New Matter to Plaintiff's Complaint as if set forth fully herein. 26. Admitted. 27. Admitted. 28. Admitted. 29. Admitted. 30. Admitted in part; denied in part. It is admitted only that the Defendant sent a letter to QBW on or about August 1, 2007. The letter as a written document speaks for itself. To 2 the extent that the averments of Paragraph 30 are inconsistent therewith, said averments are denied. 31. Admitted, with the clarification that QBW has alleged that the Defendant is obligated to enroll homes with QBW's program until February 2010 in accordance with an alleged addendum contained in the alleged Builder Agreement. By way of further Reply, defendant incorporates herein by reference its Answer With New Matter to Plaintiff s Complaint as if set forth fully herein. 32. Admitted. 33. Denied. It is specifically denied that the Defendant raised for the first time the issue of authenticity of the signature on the alleged Builder Agreement in August 2007. 34. Denied. It is denied that Defendant did not advise Plaintiff that the Defendant had not executed the alleged Builder Agreements prior to August 2007. Defendant specifically advised Plaintiff prior to August 2007 that Defendant's policy was not to sign such agreements and it did not sign any such agreements. 35. Admitted in part; denied in part. It is admitted only that on or about January 31, 2007 QBW forwarded documents to Defendant. The document attached to Plaintiff's New Matter as Exhibit 6 as a written document speaks for itself. To the extent that the averments of Paragraph 35 are inconsistent therewith, said averments are denied with strict proof demanded at trial. 36. Admitted in part; denied in part. It is admitted that the proposed modification from QBW was never executed. It is denied that the Defendant has never raised an issue with respect to the authenticity of the signature on the original Builder Agreement or that such was required anytime prior to the Plaintiff s Complaint. 37. Admitted, with the clarification that any and all implication that said advertisement constitutes an admission or an agreement that Defendant agreed to the terms contained in the alleged Builder Agreement and/or addendum thereto is denied. 38. Denied. Inasmuch as the Defendant believes that the signature on the Builder Agreement purporting to be an authorized signature of the Defendant is a forgery, Defendant therefore believes and therefore avers that QBW had reason to believe that the signature on the Builder Agreement was not authentic. 39. Denied. It is denied that QBW permitted the Defendant to enroll homes in its ten- year warranty program in reliance upon information provided by the Defendant inasmuch as the Defendant did not sign the purported Builder Agreement and addendum thereto. 40. Denied. The Defendant specifically advised Plaintiff prior to August 2007 that Defendant had not executed any Builder Agreements with Plaintiff. 41. Denied. The Defendant did not receive any purported fully executed Builder Agreements from Plaintiff with the alleged approval letter. By way of further answer, Defendant incorporates herein by reference its replies to Paragraphs 25, 34 and 40 above and its Answer with New Matter as if set forth fully herein. 42. Denied. It is specifically denied that the Defendant was obligated to object to the purported Builder Agreement when it received the approval letter from QBW. 4 43. Denied. The averments of Paragraph 43 constitute conclusions of law to which no responsive pleading is required. By way of further Reply, the Defendant incorporates herein by reference the averments contained in its Answer With New Matter to Plaintiff's Complaint as if set forth fully herein. WHEREFORE, Defendant respectfully requests this Honorable Court to enter judgment in its favor and to dismiss Plaintiff's Complaint, with prejudice and costs. Respectfully submitted, Date: March 17, 2008 By: illi'~ms, Esquire No. 67987 Richard J. Joyce, Esquire Attorney I.D. No. 85520 2331 Market Street Camp Hill, PA 17011-464 Telephone: (717) 763-1383 Attorneys for Jefferson Homes, Inc. REAGER & ADLER, P.C. VERIFICATION I, THOMAS O. WII,LIAMS, ESQUIRE, being duly sworn according to law, depose and state that I am the attorney for Defendant Jefferson Homes, Inc., and I make this verification on its behalf; and that said Defendant is unavailable and unable to make this verification on its own behalf within the time allotted for filing of this pleading and the facts set forth in the foregoing pleading are true and correct to the best of counsel's knowledge, information and belief. This verification is made pursuant to Pa. R.C.P. 1024 and is based on interviews, conferences, reports, records and other investigatory material in the file. REAGER & ADJ~R, P.C. Date: March 17, 2008 By: TH MAS O. WILLIAMS, ESQUIRE CERTIFICATE OF SERVICE AND NOW, this 17t" day of March , 2008, I hereby verify that I have caused a true and correct copy of the foregoing document to be placed in the U.S. Mail, postage prepaid and addressed as follows: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. Second Street Wormleysburg, PA 17043 Thom i is s, squire 6 ~, f~~ . ~ r~ ~, ^ ..~; '~ j7 ~ ~:~. , ~t > , rr~-Tt '`'•,- .,., r„ ,. ,. ~' r4~'~ ~~ r REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliamsna_Rea.~erAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: ~oyice~a ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Jefferson Homes, Inc. QUALITY BUILDERS WARRANTY CORPORATION, v. Plaintiff, JEFFERSON HOMES, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5308 CIVIL ACTION -LAW Jury Trial Demanded PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly substitute the attached original Verification signed by an Authorized Representative of Defendant Jefferson Homes, Inc., for the Attorney's verification included with Defendant Jefferson Homes, Inc.'s Reply to New Matter filed on March 17, 2008. Respectfully submitted, REAGER & Date: March 19, 2008 By: j f w `-~CX~" Th mas O. Williams, Esquire .• CERTIFICATE OF SERVICE AND NOW, this 19th day of March, 2008, I hereby verify that I have caused a true and correct copy of the foregoing Praecipe to be placed in the U.S. Mail, postage prepaid and addressed as follows: John A. Gill, Esquire Quality Builders Warranty Corporation 325 N. Second Street Wormleysburg, PA 17043 Thom i s, Esquir 2 VERIFICATION I, Catherine Downey, hereby verify that I am the Vice President of Jefferson Homes, Inc., and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: 3 S ~ g By: Nicole Williams Geor is Notary Public, Rockdale County, g' My Commission Expires June 14, 2009 ~ ~ C~ c°~. F ~ 4~ l ~' ^~ ~~ - ~3 `r~ r•r~ -•: c~ '~i {+,~~ :_. ~ . < T.r ~,~ :ly ~`+ -~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANLA QUALITY BUILDERS WARRANTY CORPORATION, CIVIL ACTION DOCKET N0.07-530$ Plaintiff v. JEFFERSON HOMES, INC. Defendant PRAECIPE TO THE PROTHONOTARY: Please mark the above captioned action as "Discontinued without Prejudice". Respectfully Submitted, Date: 7- Z `f'ad Gill, Esquire 325 orth Second Street Wornnleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of Plaintiff's Praecipe was sent via U.S. Mail, first class postage prepaid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, addressed as follows: Thomas O. Williams, Esquire Reager & Adler P.C. 2331 Market Street Camp Hill, PA 17011-4642 Date: o2LY~ Peg mson, Secretary ~ _ \., } ~~ 3 t ,y r '~ T1 !_W °- }'1~ ~ :~ i i {.' ~~^ `Yi ~:1 :;~ . ~..I G^ .-..7