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HomeMy WebLinkAbout07-5310QUALITY BUILDERS WARRANTY : IN THE COURT OF COMMON PLEAS CORPORATION, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. CIVIL ACTION DOWNEAST BUILDERS & REALTY, INC. . DOCKET NO. ~ ~ _ , j3 / j) C iv i 1 Te~rv Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after taus Complaurt 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 WARRANTY CORPORATION, Plaintiff vs. DOWNEAST BUILDERS 8t REALTY INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION DOCKET NO.d 7 -S~3/v COMPLAINT AND NOW, this 5'~ 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 engag~ci 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, Downeast Builders & Realty, 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 23, 2005, Builder executed a Builder Agreement with addendum 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 23, 2005. A copy of said document is attached hereto incorporated herein and marked as "Exhibit 1 ". ^~ Program for five years to commence on February 23, 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 alI homes as required. 5. Section B I of the Builder Agreement executed by Builder states, "Builder agrees to enmll 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 for the period February 23, 2005 to February 23, 2010. 8. In the alternative, QBW seeks damages from Builder for homes, which the Builder would be required to place warranties on during that period of time, which damages exceed the sum of $35,000. 9. QBW also seeks attorney's fees as authorized by Section B 5 of the Builder Agreements 10. Jurisdiction is pmper in the Pem~ylvama 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 Downeast Builders & Realty, Inc. as follows: 1. That the Builder Agreement as amended executed by Defendmrt Downeast Builders & Realty, Inc. be specifically enforced to require Downeast Builders & Realty, Inc. to enroll all homes they construct for the period February 23, 2005 through February 23, 2010 in accordance with the Builder Agreement as amend. 2. In the alternative that Defendant, Downeast Builders & Realty, Inc.. be ordered to pay damages equal to warranty fees, which QBW was entitled to based upon homes projected for the period February 23, 2005 to February 23, 2010, said amounts to be in excess of$35,000.00. 3. Attorney's fees as authorized by Section B 5 of the Buhr Agreement. 4. Such other relief as deemed appropriate by the court. Respectfiilly Submitted, A. Gill, Esquire Quality Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation QUALITY B~.~LDERS ~ CO. .'ORATION_ ,_ ;_. .. ~~ BUILDER AGt~EIEvM~NT AGREEMENT made this // day of iC6r~~.z , 20 G S , between QUALITY BUILDERS WARRANTY CORPORATIO , a Pennsylvania corporation, herein referred to as "QBW," and ~r~C.ih P~~ ~ ts~7/cft•>l r ~e~/,L _ _-mac s_-- -- - -- ame of Builder. (indicate whether a corporaybn, partnership, individual or other) of Tess b 2 ~ J C.~' ~->t. /r~~ ci ~'©Q c~ (Qv~~ ~ i ~~~ c~ .3fXY Cf 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- 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 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 nce-refundable. 5. QBW, upon executing this Agreement, has accepted Builder as a member of its wan~anty program, subject to the Builder's continuing performance of its oblation 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 Q$W 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 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 mu~iunit dwelling such as but not limited to duplexes, townhouses and condominiums. If membership is terminated, at the direr- . 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 dosing. 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 tides specked 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 toopera ,Builder agrees to compensate and indemnify QBW for any damages sustained by such lack of cooperation. kN~b~r~ Agreement, and/or in conformity ;~ approved building codes and other st< rds established by QBW and in effect at the beginning of construction of the enrolled home. QBW reserves the riy~.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 faits 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 pertorming 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. tNFORMAAI. 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. Buiki~ 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 govemmental 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. 5. Breach and Remedy. If Builder fails nroll any eligible home as required by this .. emerit, QBW may seek specific enforce- meet or other appropriate relief in ley~u or equitable proceedings, even 'rf this Agreement has been terminated. Furtherrnore, 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 attomey'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 fuNy 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; (~ 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 ma#erial 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 terrninated 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 #o 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 resin. 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. ff 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 inforrnation in its appli- cation or in the rescreening process or misstates or misrepresents any inforrnation 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. Constructlon 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 5. This Agreement shall be interpre' ind enforced in accordance with the lawn the 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 donsent 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. ~ QUALITY BUILDERS WARRANTY CORPORATION By Date of execution by QBW February 23, 2005 Builder's Registration No. 50416 Da k By ADDENDUM ~~ Sign Here 1n 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 $ / ~ /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. ff Builder provides notice, QBW will adjust the Builder's rate upward effective at the end of the then current term. n n BUILDER ~Ows~2QS~ `~Li~~C~&C. -r U~c11v Date - /i - 4 By \ . of Authorized Repnssntafiw - Tltls) (Pisses prhrt narns/dtls of executor) BUILD]F.1iS WA,ItRAN'I'Y CORPORATION ey _ Date ~ ~ 1~e (Name of of Builder - di.ase taint or 23, 2005 Please note that in reviewing applicants for the QBW Program, certain costs are incurred, therefore alt application fees are non-refundable. copyri9nc ~»ea Qttaltty Builders 1Alarrarrty Corporation or ~~ QBW FORM 050 9/04 (Please print name/dtts of executor) VERIFICATION I, JORDAN F. OLSHEFSKI, Vice President of Quality Builders Warranty Corporation, hereby certify and state that the foregoing Plaintiff's Complaint is taste and correct to the best of my latowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of I8 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: ~I f s ! b ~ Quality Builders Warranty Corporation By: Jordan F. Olshefski, Vice President C~) ~ c`. r Z~ *'-; ~ W b :. .~ .~ , _ ~, rv ca ly} c-J `r7 r rrd r,7 .7:,~ f ... F: ~: L~ P ~,? L+ _; i -r .. _.~ v =< :~ QUALITY BUILDERS WARRANTY CORPORATION Plaintiff v. Downeast Builders & Realty, Inc. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: 07-5310 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, Downeast Builders 8t Realty, Inc., Article # 7004 1350 0003 0402 3617, at their address. Downeast Builders & Realty, Inc. received the Complaint on September 10, 2007 as indicated by the receipt attached hereto as Exlribit "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. --f ~f B-L~ o~ti- Pe rrison, Secretary .~' _.....~~ ,_- -;~• - ~ 4 ft f~eaw-~- - , pit ~. ~~.~ ^ PAdt'!I~' e1M'}~ ~ ~ ,~ to Y~ a4 ~ y~ ~ ~ ~ ~ 1l~s mt1~°r a on twu ~. ~;,~,,ii41 tio: 1371 ~" ~ C ~ ~1~ rAan '"'.r pr,~rrrlM ~ I~ m. a t~l~'~1~ ~ ~ ~ yqv~..-~ G _-v,~~ lI'1 ~ ~~ ~ ,~ posteea ~ Feee ~ ° D p. q eft ~°N b~ ~~~ v o~ o~ ~. 135© Op~p3 p4~2 361' ice. . ~/ ~`~L pq ° .~\. ,~ (~ 1 1~ ~ ~~ ^~ A ~~.4 .,~. ' f ,__ ~x~rr~rr ~ ~ O c, "~ ~~ .,.. -x~ ~~~ v ..~ G> N _... r'_, ...n ,~ 1 ~~ ~~ ~ ~! IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff v. DOWNEAST BUILDERS & REALTY, INC. Defendant TO: Downeast Builders & Realty, Inc. 1371 Dogwood Dr., SW Conyers, GA 30012 Date of Notice: October 3, 2007 CIVIL ACTION DOCKET NO. 07-5310 IMPORTANT NOTICE 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 Respectfully Submitted, Jo ill, Esquire Quality Builders Warranty Corporation 325 North Second Street Wormleysburg, 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 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: Downeast Builders & Realty, Inc. 1371 Dogwood Dr., SW Conyers, GA 30012 Date: ~~~ 3 , a~o7 ~ ~ /f~.~., c~i Peg orrison, Secretary C;~ ^a _ _ --_, - C'~ --~1 L ~ __ , i ~ ~ ~'i ~_ • - ' ~: `.+ :~ C~~ =.ll ~" : "°C REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(u~ReagerAdlerPGcom BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rioyice c~ReagLerAdlerPC.com. 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Downeast Builders & Realty, Inc. QUALITY BUILDERS WARRANTY CORPORATION Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5310 v. DOWNEAST BUILDERS & REALTY, INC. Defendant CTVII, 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 MAYBE ENTERED AGAINST YOU. REAGEP;,$~?~ Date: October 9, 2007 Thomas 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(u~Rea~erAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rioyice(a,ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Downeast Builders & Realty, Inc. QUALITY BUILDERS WARRANTY CORPORATION Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5310 v. DOWNEAST BUILDERS & REALTY, INC. Defendant CIVIL ACTION -LAW Jury Trial Demanded DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW, comes Defendant, Downeast Builders & Realty, 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 Downeast Builders & Realty, 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 illiams, 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 Downeast Builders & Realty, Inc. VERIFICATION I, Catherine Downey, hereby verify that I am the President of Downeast Builders & Realty, 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 state- ments herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: !U) 4~~~ By Catherine Downey 4 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' J~12a~o D~ GC~i//c~~/~~' Thomas O. Williams, Esquire ~ ~ O - ~ si °-r,~~~a ~ ,~ ~~ F, ' .~ ...,-, . "'~ f... -T9 v t `T3 - ~ ` . ,,,. ~f ~~ ~ C 7 ~` ~ ~~ ;~ ~_. --G ~ ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION, CIVIL ACTION DOCKET N0.07-5310 Plaintiff v. DOWNEAST BUILDERS & REALTY, INC. Defendant PLAINTIFF'S REPLY TO DEFENDANT'S PRELIMINARY OBJECTIONS ~y AND NOW this / 7 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 for the application fee, also executed by Catherine Downey. A copy of the check is attached hereto, incorporated herein and marked as Exhibit 2. 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 3. G. On February 23, 2005, QBW approved Defendant for membership in its program, QBW executed the Builder Agreement at its offices 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 4. H. T'he approval letter contained a password, in order for Defendant to be able to access their account through 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 156 requests for warranties to QBW's place of business in Pennsylvania. L. Since Defendant's membership approval, Defendant has submitted 197 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 letter; Defendant attempted to terminate their membership in the QBW program. A copy of the letter is attached hereto, incorporated herein and marked as Exhibit 5. 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 23, 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 paragraph 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. By way of further answer QBW incorporates herein its reply to paragraph 3 of Defendant's Preliminary Objections. 7. Admitted. 8. Denied. By way of further answer QBW incorporates herein its reply to pazagraph 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 pazagraph 3 of Defendant's Preliminary 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 Preliminary Objections. Yr 12. Admitted. 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, . Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-7522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation Title Soc. Sec. # %._ Home Address 1 I g6 3. Name of Parent Cpmpany (if applicable) ~ ! ~ I __ _ _ d. How many years has Olrlef Execu#ive Officer owned and/or Controlled $ home building company? ,~` Does the Applicant 4r any of its Principals have 18% or more interes# in2~a"n'y other ho a bullding bualna399s7 ` ~ I~Yes ^ No If yes, Ilst names of Erltitiea:~d~'~~~ ~reyy ~Frr~.t. kl~~ri ~~.V~~•,~~'~a,~ t~lBm~+tf~i 5. 8u$irtess Urganizatlon (ch®ck one): ~ Corporation "S" Corporation Sole Praprletorshlp Partnership (GeneraU~.imited} LLC other: ~I _ 6. How many years has organization (Entltyy bean Involved in hams building (not the prlnc~lp9ls}? ~J i ,~ ~ 7. What warranty program (If any} has the applicant or any of Its prlntlpals used in the pa~t1 ~t. ~~~~ i-Kl-rrr.. -~ 1:~_~aE_a 8. Has the applican or any of its prinCipata ever been expelled from, suspended, qr refusbd n~lstratlon by any wananty program? ^ Yes No If yea, list name of progrsrn _.. Reason for Su5pen9ion I~ ' 9. Has the appiica/nt over been involved in a dispute settlement process with a homeownt'r and a third party arbltratlon? p Yea ~ No If yes. how many? I 10. Has the applicant or any of its home buyers ever experienced a claim which has been ~ubmitted to another warranty program for resolution? CJ Yes t~No If yes, explain; 11. How many homes did tho Appllcant sell in each of the past four {4) ye~~?~ ~~~ 2oao:.1~, aooi 1~ , zoo2:~.4 , 2oos~Z '? aoa ~{ - ,~ ~ ~ Number of homes you expect to build this year ~, ~ ~ '#" / Average Sales Price ~~_Q~ ^., Types of homy ~ bultt: ~,,,,,, Duplex, wnhouse, Single F&mily, _ Gondo (number of stories ~, ,-„r Other (specify 1 02!1112005 15:39 770788$3?4 ACCOUNTING DEPT ~v~at~ ~uiL~~s v~.~.~,~.~tv~ car 325 N. SECt7ND STREET WORMLEYSBURG, pA 17043 ' TALL F'R(:E: i-80b-3349143 ~-~-~ . ~ ~ ~ FAX #: 717-737-428$ ~ ~^ ~~ ~' 1. BUILDER Appllcant {Entity which will stand behind warranty}: E'I'~" # ~g.= a. Name ~awnr~a~ _ i ld~x~s "'~ .t~-u ~ x+n[ . b. Mailing Address _.. i0 ,~ q_~ t_~~. ~ 4~Q~.~ City bU i na'{"~v~ State Physical Address `.~ Yri,)! ~ ~ L~.'~a0y~ City r Slate o. Name & Account # .~,~l.~L.~~..~~ ~5 ..... - Yl d C~.CC~- . '~ of Ovemfte S®rvlce e. Person who will register homes 1+-~ ~.~~~~_ f. Do you have Internet A/c~cess? ~ g.1Wab Addrdes~~ps I. Key Con#act Person ~Lt.p.I~w~~~C+..t'dl J. 2. List all principals and portent of ownership: a. Name L0.-i'RdrrrR~ .l.#3e.~,7r~ Home Address ,_(,3 t l7 D r C ~ b. Name ~~praart Home Address ~~ ~ rr c. Name ,r Home Address d. Name _ zip _ d. Fax Number (~~ ~ ~ - k32~ ___ _ ~~ E-mail Address ~ ~ ~~~~~ ~ number (qf key contact person)/ ~T„~ Title ~r~Sl'd~n.'f-- ~ _ Sac. Sec. # ~ ~- 71e" R ~i,P ~- Title r~ - _t'_~ ~ /I W' Sod. Sec. # ~~.~~i :~~~ !Y~{-M- '~d~ ~av~ n~l~~.~ . C~ !~- cal- % ~a~ Title ~ Soc. SeC. # PAGE 01,E 13 ~~~ Baed bar Lib~~#y IIIAu#u~l BUILLIER-7 API~LICA'~IG1N taATE ~• ! ~ _ SALES REP~1_S.T T _tl'~,Y~. DCA # (New Jersey onty) Phone (~?C) ~~g~ ~~~ 19° zip ~~ ~ 02/1112005 15:39 r 7707888324 ACCOUNTING DEPT PAaE 02113 12. list municipsl government jurisdiction(s) where ApplicAn# will pa building homes In the next twelve (12j months. City: ,_~• ' ~.~~Ct~eu Coueity____ _~er. Stater1r7 City: h County: ~.~ .~lYa 5tate• p r'1- i 3. Has the applicant or any of its principals, ar firms with which Arty pHnalpal was afflllaied, flied for bankruptcy 4r b6sn adJudleated as bankrupt within the last Seven (7j Yews? f.7 Yes IP.rNo M yes, list narna(s) of flrm(s) Involved In bankruptcy and year filed. 14. Does applicant build under -.~VA, ~ FHA, _ FMNA . 15. Have any (lens or uns&tlsfied judgements been placed against the Applicant? ~. b If yes, explain ,r, 18. Has applicant's authority to build ever peen suspended or revoked? ~ 'L7 ff yes, explain 17. Name of currant genera! liability ittSUrat7Ce Company ,~,Q,~_ 1,..~~, ~ r~xa~,~D Expiration date: ~p 5 Agent's Name ._+`,~( ~'irt~ ~~, Phana Number (.~~ '7 ~(e - D ~f OS.~ Does coverage include "completed operations" coverage? l~l ~ S Palley # ~ LP ~7 ~OfJJ ~~.1 f~' l Has sppUcant had any claims under "completed operations" In the last three years? ~ Q ff yes, please de9orlb6: . "' PLEASE REMIT A CERTIFlCRi"iE dF INSURANCE FROM t~UR AGENT t3N GENERAL LIA81LI7Y COVERAGE (or far+NanC- a copy of the daGara- tions page cfthe policy) The tollowing inforrnAtiorl is required upon app[Icatlon to the ttuelity suildera Warranty Carp~oratbn. All referenCe9 will be coertactsd. SUPPLIERS (Include lumber, b1iCWbIOCk, applleness, concrete, materials, etc., rf applioabtQ) No employees or relatives, pleASe. Please include FAX number to expetMite your applicaitlon. NAME TYPE YEARS OF ACCQUNI" NO. PHONE NO. FAX Np. RELA7'14N$HIP b• ~. ~ ~l~r/l ~ei ,,,i , - ~ CONCq~ ~ ~ 0- ~ t) - ~ ? 7- a. ~ Per ` IC ~~~ `7ta 4--?~+~-aft a. ~ i t.. ~ t • ~01~ ~ 7 5~8-'~ SUBCUN'If;AQTpRS pnalude plumbing, rneehanleal, electrical. excavation, inaulstion, if applicable) Na employees or telatives, please. NAME TYPE YEARS OF PHONE NO. FAX NO. RELATIONSI-I-P ~' ~ r ~l ' ~ ~ , ELEpTRICA~ ~ ~ ~ 4~~- 3'f~ G g ° 3 f ~ 71 b- PLUMB1Na , 4~5~ ~ ~~~.~~ c. •r Ca ~ ~ ~tK~G arm ~~7t I a. ~ 0~ ~r~{.~M~ ~ ~'+""• {~1~1~ ~ r ~ a Locaflon of a home now under CDr14~1'uCtion. (Framing stage and prior to drywttlh NAME OFnDH1+ELOPMLNT °~ ~ _'i'+~ri~' .w a ,n a COMPLETE ADDRESS AND LQGAT1dN eITY Dab ~~i ~~~ a~ 73 ~c llama of municipal Inspector utili2ed. ~ ~~ ~~ 02111/2005 15:39 • 7707888324 ACCOUNTING DEPT PAaE 03/13 Homebuyer references {ten are requested, If unable to supply all, contact the Ouallty Builders Warranty Corporation. lime in hvtrie should be between 8-i 8 months.) Ust malgng address on reverse side ff no phone # is available. No employees or r8lativE9, piedBE. NAME MONl'H5 MOME WORK RHONE NO. IN HOME PHQNE NQ_ {Indicate Mr.lMrs.} ~. ~1~.1 on S~~Ir ~c~ ~a ~- ~ 3~- 7GD1 !?`J rs ' d- i' ~o~o( UQn ,~~ K~ (, ~taq- 3 ~~lQ~Q~ (Y1r. i. ~ ~ ~ rG. ~~-~'c~ r~ ~ rj ~~'D ~ - Cep a~. lYl rt . Financial Affiliations a. Bank {Business A1ccount} GhBCking ~i ~.~ >t~j,71-~"~v. ~ ~ n. ~Q.Se~ Type of Account~~ ~1.~t~.~~ ~ ~° A~K NAME MAILING ADDRESS s N '`lid"'/"`7SOo pHQNE Y b. Bank (Buainesa Aacourrq Savings/Money Market ~! t~ J DKG.S~.Y~~L- tln~ `~ Irsl~S Type of Puccount I r B~RNIi NARAE ACGOUNt tJUM6ER MIJUNG ADORES ' FAX # G ~7 " ~ „. ~~- ~ L J ~ PHONE N c. Lending Institution (construjct`ion financing or line of credit} 8 7 *~- -, i f , ~ .. '{ ~~It~ ,~~t a..~ h . ~ $ 'type of Account ~.+l~i~._ ~ ~ vB. rl ~A~.c 9lWK ME ACCOU NUMBER ~,~ lg Ii,Jd MAILJNG ADDRESS ~ /~ FRX N (T ~ " V d -3-~(p 3 O i^inandal ;3ta~ement ~~'f '']off "3 L. Remit must current year end finanCigl statement or tax. return, with name and phone number of preparer. NQTE: AI! Informatlen will be received a~ strictly canflderrtlal unless specified otherwise. PHQNEIk a 02/11/2005 15:39 770788834 ACCOUNTING DEPT F~~GE 041'1? • ALrrHORIZATION The undersigned su#horizes 48W to conduct inquiries &r1d obtain credit reports to datermine the undersigned's finanaai and technical ability to per- form its obNgatlons under tha QBW t,imited Warranty Program. All Information received by QEuV will be held in confidenc® unless otherwise speciflad. The undersigned requests that you make available to OBW any information in your passe88ion, which Q13W requests. NAME OF COMPANY (PLEASE pFilNly , ~ ~ IRIZED SIGMA RE BE SURE TO 1NGLUDE THE FOLLOWtNrG WITH X4tJR APPLICATION: 1. $350 regular application fee'" 2. Signed Builder Agreement 3. Most current year end financial statement or tax return ` 4. Proof of General laabllity insurance (copy of Declarations Page of Polley or Certificate of Insurance from agency) `One home enrollment application fee $60b (certified CheCK); Expedited 5 tiny application processing fee $500 (certified check) ~ please note that in reviewing i~pplic~nts for the QBW Program, certain casts are incurred, therefiare aii application fees are rnan-inefundable. ~ Copyright 1985 Qu8lity Builders v+rarranty Gorporation 325 N. Second S#. Wormleysburg, PA 17043 a ~ - ^} . -- 0T 3Jdd Z9Z~IdW71~td ZZ~~~I50LL Ob~tT 500ZlTZ!Z0 . +~UAI..ITY ~.. JII~D~~S WA-IiRANTY C~,1'~R~l'1'Y~IN BUILDER AGREEMENT ~~ ~: AGREEMENT made this /'/ day of ~~''~sr~r~.r ~ , 20 ~ S~ _ , . between QUALITY BUILDERS WARRANTY CORPORATIQ , a Pennsylvania corporation, herein referred tv as "QBW n and ~•~,,f.~ ~~.~ ~' ~e,~/C~~:•1 ~ se'c'/~.. ~` ~ Name of Bwlder. {indicate whether a cggpora~i n, partnCrs Ip, lndlrlduBl or other of teas p ~ ~~ G;~ yL„ ,~~,~ tr r~c~~ r~ ~+~,~ hr,~,'-+ ~S ~C,~y ~ 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 these 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- tests and promotes its goodwill 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 P-greement, 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 shat! 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 membef ship and the provisions of Section 13, paragraph 6, shall be in effect. SECTION B. HQWIE !~NRQLLMENT: 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, ar 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 constructian~ 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 46 days of execution of this Agreement ar reacceptance, and QBW has inspected and approved the home. Homes which remain in a Builder's inventory longer than 1$ months must be enrolled by the end of the 19th month from construction s#art date 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 sus~h 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 shaft 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 tv 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 of the enrollment fee. A home will not be considered enrolled until QBW receives and approves the fully executed and com- peted 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 ar 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: ~, 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 pr 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 ma#erials supplied in cannectian with that claim. Builder agrees to cot~perate 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' ~;zzee~iSecL ev:ii 5eez~ii~za fib 3J'~d ,"-; ~ ~, Esc ~ ; ' ~.' This Agrtement shall be In#erpr ~ end en#orced in accordance with the law. ,the 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 spurts. 6. Builder shall not assign this Agreement without the prior written cons®nt of C?avV. 7. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, assignee, Arid suC- cessors of the representative parties. 8- Thls instrument, and security documents and documents referred to or incorporated herein by reference, contain the errtire agreement between the parties, and no statement, promises, or inducements made by either parry or agent of either patty that is no# contained in this written contract shall be valid or binding; and this contract may not be enlarged, mod- ified, or altered except in wri#Ir-g 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. Ali noticss.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. ,.. QtJAr~txsr ~u~~?RS WA~RRAN"~``Y Co~4RA.'ITt~N By _ Date of exeau#ion by QBW 13uttder's Registr>stton No. {please print nameltltle of exeoator) BUit_Qt:R {Name 4f Builder -please prgtt Or tYPel Del By 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 execu#ed by QBW. Builder agrees to submit for enrollment all homes which Builder or any affiliate constructs during this term and any extensions. !n exchange, Builder's rate will be $ / leer thousand. The addendum will renew for Ilke terms unless (3Q}days prior to the expiration of the #erm, 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 no#lce, QBW will atfust the Builder's rate upward effective at the end of the then current term. BUILDER (Nartre of Builder • Woase print or typo} ~^- Date ~ •~'! ~ C~ By (S' store of Authorized ReprAOeretative - 7'Itts) c~~r~rrrx Bt~clal~s ~~utAtv'rY cai~ox~,'z~aly By- bate Please Hate that in reviewing applicants for the QBW Program, certain costs are incurred, therQfQre all appli~catic~n fees art nvn-refundable. ~'rQpy~~ ~~~ !t -1 tiff ~;1~ o-~ ~. ; Quality 8ullders Warranty Corporation '" aeW FbRM oso etoa ' ~ ~ 69 3Jt}d /~ ~ zZEEEt50LL Ob~IZ 5002/TTlZO I • (Please print llelttsftitle of exectttOr} . QUALIT`'BUILDERS W RRANTY C O R P O R A T I O N 325 N. Second Street, Wormleysburg, PA 17043 telephone: 717 737-2522 fax: 717 737-4288 February 23, 2005 MS DOWNEY DOWNEAST BUILDERS & REALTY, INC. 10289 CITY POND ROAD COVINGTON, GA 30014 Dear MS DOWNEY: Congratulations! Your application for membership in the Quality Builders Warranty Program has been accepted and approved. Your builder registration number is 50416. 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. ExN i /S ~7- ~ a ~ 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 P. S. We have enclosed a Hershey's chocolate "Thank You" card. We appreciate your business. ~.~.via~r yc QUALITY B..,LDERS 'W CO. 'ORATION . . 1 BUILDER AGREEMENT ~_~ day of f c'~r~~~~ , 20 ~ ~^ , AGREEMENT made this // a Pennsylvania corporation, herein referred to as "QBW," between QUALITY BUILDERS WARRANTY CORPORATIO , and 1~ - y~ s~ - ~ - ~~C~°=~~ f'c'~` ~' - -" Name of Builder: (indicate whether a corpora ' n, partnership, individual or other) of Address ,a ~ _ ~, ~, . ~~ 4~ ~~q ~ ~ ~" ~,~„ ,;~; (": 3 ~ herein referred to as uBuilder." State Zip 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- 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 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 shah 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 8. 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 shat! be non-refundable. 2. Procedures. Builder agrees to enroll its homes according to procedures established by QBW. Builder may enroll home 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 o 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 montl from construction start date and model homes must be enrolled on the date of the Certificate of Occupancy or use as model, whichever is earlier to qualify for enrollment. The warranty(s) will be issued to the Builder and the unexpired portio 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 multiur dwelling such as but not limited to duplexes, townhouses and condominiums. If membership is terminated, at the dire 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 esta fished by QBW. A!1 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 pl chaser must complete and sign the Enrollment Form at closing, and Builder agrees to famish QBW with a copy of t signed Enrollment Form within ten (10) days of closing. Builder agrees not to charge the purchaser directly for the cost the enrollment fee. A home will not be considered enrolled until QBW receives and approves the fully executed and cc 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 prograr (a) the Builder is not a member in good standing; (b) the home is not constructed in accordance with the Warrz Standards or building codes specified in the Limited Warranty Agreement; (c) the Builder did not observe the enrollrr procedures; (d) misstates or misrepresents any information; (e) in any way fails to comply with the terms of this Agreem 4. Assignment of Rights. If a purchaser files a Complaint pursuant to the Limited Warranty Agreement which the Builder to correct, the Builder hereby assigns to QBW or its insurer, as the case may be, any rights which Builder may have ags a supplier, manufacturer, subcontractor or other person for work performed or materials supplied in connection with claim. Builder agrees to cooperate fully with QBW and to provide QBW with all information which it requests pertainir the claim. If Builder fails to so cooperate, Builder agrees to compensate and indemnify QBW for any damages susta by such lack of cooperation. ~ ~ y'~ i5. ~ B~~ch and Remedy. If Builder fails; nroll any eligible home as required by this ;. ement, QBW may seek specific enforce- ment or other appropriate relief in leyd~ or equitable proceedings, even if this Agreement 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 immediateiy return to QBW all materials supplied by QBW and alt 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 conformity with the Warranty Standards provided in the Limited Warranty E~K~~~T ~ ~ ~ ~ ~4greement, and/or in conformity :~ approved building codes and other sty rds established by QBW and in effect at the beginning of construction of the enrolled home. QBW reserves the riy~ ~[ 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 tosses 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. ~~~~~ ~5.k fklis Agreement shall be interpre~ end enforced in accordance with the law:, the 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 ar 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. QUALITY B ERS WA~RRANT'Y CORPORATION B ~ cam" Y Date of execution by QBW February 23, 2005 Builder's Registration No. 50416 BUILDER ~~ ~ ~1 ~2C~.S~ ~cs o ~C~es ~ a- ~ t~~ ~vI 7iU C (Name of Builds -please print or type) Date ~~~`~°- ~~ ~ By of Authorized Representative - Trtle) ~~ 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 $ / ~ /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. BUILDER ~Ow 1~Q 51 ~~~ 1C~S -r `~zc.11v ~ (Name of Builder - lilease print or type) Date ~ ~ o'i - By (' of Authorized Representative -Tide) (Please print name/title of executor) QU BUII UERS WA-lf]RANTY CORPORATION By Date February 23, 2005 Please note that in reviewing applicants for the QBW Program, certain costs are incurred, therefore all application fees are non-refundable. Copyright 1988 duality Builders Warranty Corporation QBW FORM 050 9/04 [~~?' ~ 07f13f2002 21:59 6785090554 CRaWN t r r • .' r co~uuNm~s, ~~~G August 1, 2007 Quality Builders Waxranty Curpoxatiar.- Fax 717-737-4288 Attn. Jozdan 0lshefski Deax Sir, '~'llanlc you for your fay of 7/I9l07. der page 2, Section B.6.o. Cxawn ~omxnunities is pxoviding QBW with 3U days advance wxitten notice of our teirmination of your services. A,lsa ~rrr the Agreement, CSrvwn Communities shall continue oar obligations fax those homes enrolled through August 30, 2U07. Best Regards, .-~'~r~ ~~. Kelly Nelson, For Katie Downey 'AGE ~1f01 ~, ~. ,-. ~x~/igir S ppWNEAST BUILDERS ~ REALTY, IEZC• RQQ$trVELT BUiLDE:RS, INC • FRANKLIN BIJILD.ER$, INC • JEFFE;RB~N HOMES, INL i.~i Dogwood Drive • Conyers • GA. • 3rros2.678-5o~~a555 >?h~ane x'67$-504-0554 Fax www.crawtl~;ornmunitiesinc.c~)tn l~~ ~ y~ Yi ~ ~+' t r y -~ 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 1 S Pa. C.S. §4904, relating to unsworn falsification to authorities. Date: /bf l? 1~7 Quality Builders Warranty Corporation By: , Jordan F. Olshefski, Vice President ~. t ~ 'a 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: /b~r7 ~~~ Peggy 'son, Secretary +~ r ; art .G~. ~,~ " ~'1 ~-~5 rr • ~ ~" ~ kJ 6\~/ ~ y tiM/ •~ ~..~ ~~,~ ~~~ } ~ , ~.~ y ~ E. s , ~ ; ~ . y w~~ -... PRAECIPE FOR LISTIlVG CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the ne~:t Argument Court. CAPTION OF CASE (entire caption must be stated in full) QUALITY BUILDERS WARRANTY CORPORATION (Plainttffl vs. DOWNEAST BUILDERS & REALTY INC. (Defendant) No. 07=b310 ,CIVIL Term 1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to co hint, etc.): defendant's Preliminary Objection to Plaintiff's Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: John A. Gill, Esquire (Name and Address) 325 NorthSecond 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 alI parties in writing within two days that this case has been listed for argument. 4. Argtment Court Date: January 23, 2008 Signature 3'oti,,~ A G ~ ~~- Print your nea~me Date: ~ ~ ~ ~ - ~~ Attorney 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: '~ BOO 7 ~~,o ~~ Peg 'son, Secretary ~? ~~ {ice},., ~ y P.~.`w .. ~~~444 ~ ~ t ~ r~ .. ~d i J ~' ~ ~.. r~" F' .e ~~ ~~ ~ QUALITY BUILDERS WARRANTY CORPORATION V. DOWNEAST BUILDERS, & REALTY, INC. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.2007 - 5310 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTION RAISING LACK OF JURISDICTION BEFORE GUIDO, J. ORDER OF COURT AND NOW, this 23~ 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. By the , Edward E. Guido, J. John A. Gill, Esquire /Thomas O. Williams, Esquire Court Administrator sld ~.CJ t ~S m~. t l~ ~/av~o8 ~ ~ ~~ ~ ~~~ _..~ .~ : .. ~~-L~ ~ ~..~ REALER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams cc,Rea~erAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Riovice ,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 v. DOWNEAST BUILDERS & REALTY, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5310 CIVIL ACTION -LAW 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. Respectfully submitted, REALER & AD Date: January 24, 2008 By: _ Tho as O. i s, Esquire ii ~ ~t s. 1 ~ : ~i ~ j 1 STATE OF GEORGIA COUNTY OF DEKA.LB 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: 1. 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 certified 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. 254025 vl 1 ~ y , t c ~ ~~ ) 5 From 1972 through 1974 I served in the United States Army. 6. 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 examination of questioned documents. 9. Based upon my education, training, and experience, I am knowledgeable. of and an expert in orensic an wri mg an ocumen exami 10. I have reviewed eleven documents provided by counsel for Roosevelt Builders, Inc., Jefferson Homes, Inc., Downeast Builders & Realty, Inc., and Franklin Builders, Inc. (the "Crown Entities"). The eleven documents that I reviewed all purported to bear the signature of Catlierine Downey, an executive officer of each of the Crown Entities. 254025 vl ` , i t ~ n ~ 11. As set forth in my November 9, 2007 signature analysis (the "November 9 Report"j 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 ~~ 11__ `~,~~`~Q•r~'`,, eCl~%,~ OTARy•. ~ •' ~ My Commission Expires: ,. ~~ ~ „.,, : 4;' EXP{RES ~ y ~ ~ - GEORGIA ~ _ JAN. 31, 2011 .. ~ //may ~ ('`'~ C`v\\\ . \ i i ~ ~ Post Office Box 620420 Atlanta, Georgia 30362 Arthur T. Anthony Certified Forensic Handwriting and Document Examiner {770) 338-1938 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 -Computer 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 & Manager o:F Questioned Present Documents and Forensic Imaging Section BACKGROUND: Initial trawling in the exmnination 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 L.aw 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 fifCy 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 of 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 annual meetings of the Georgia Trial Lawyers Association and Prosecuting Attorney's Counsel, and 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. ,~ ` } PUBLICATION S/PAPERS [1] "The Erasable Ball Point Pen-Some Observations," presented at the annual meeting of the Illinois Chapter of the International Association for Identification, 19.79. [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 37`h 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. S, ~ September 1991. [9] "An Unusual Software Font." Presented at the annual conference of the American Society of Questioned Document Examiners, Lake Buena Vista, Florida, August 1991. [10 ] "Analysis of Modern Non-Impact Printing Systems." A paper presented at the 45~' annual conference of the American Academy of Forensic Sciences, Boston, Massachusetts, February 1993. { ~ [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 2°d 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 afForensic Identi icatian. Vol. 50, No. 4, July/August 2000. [14] "A Software Tool for Line Quality Determinations," Apaper presented at the 52°d Annual Meeting of the American Academy of Forensic Sciences, Reno, Nevada, February 2000. [15] "A Validation Study Concerning the Axiom That 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 58`~ Amiul 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 Annual Meeting of the American Academy of Forensic Sciences, Seattle, Washington, February 2001. [18] "Validation Study of Measurement of Internal Consistencies Software (MICS) 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. [21 ] "Is Penmanship Dead? Tablet PCs and Their Impact on Forensic Document Examination" a paper presented at the annual meeting of the Southeastern Association of Forensic Document Examiners, Atlanta, Georgia, April 2004. [22] . "Image Processing Method 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. ,~ ,S The following is a list of cases in which I 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, individualCy and by next friends Pat Kelly and Jams P, Kelly v: John C. Rochester, M.D., et aL, Circuit Court For Knox County, Tennessee, Civil Action File No. 2-608- 96, Deposition, Atlanta; Georgia 04/14/99 State of Georgia v. Marilyn Gail Stutsman, Morgan County Superior Court 05/27/99 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 09.128/99 State of Georgia v. Donnie Jeff Manning, Macon County Superior Court Case No.: 97F2-211 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. Gilsori, 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, Deposi#ion, 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 Gounty Superior Court 05/08/01 State of Georgia v. Jonathan Lee Evans, Whitfield County Superior Court 05/18/01 Sysco Foods of Atlanta v. Robert McNeill, 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, lnc., 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, Qase No. 98- CV-2686 11/09/01 United States of America v. Terry Wayne Kirby, Uriited 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. Brown, et al. 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-91-ODE 03/28/02 State of Georgia v. Shanda Poorbaugh, Rockdale County State Court , c ~ f ,ti , 09/26/02 Omega Research and Dev., Inc., v. Urim Corp., United States District Court Northern District of Georgia, Atlanta, Civil Action No. 1:01 CV-2011, Deposition, Atlanta, Georgia 10/25/02 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 Court, Case No.: 1'CR00291 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. 018012278 02/10/03 Chester Porter.Moss. arid 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 Deki1 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 LeC.roy, 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 B. Woodard, et al. Case No.1:03-CR-498-3TC, Federal District Gourt for the Northern District of Georgia, Atlanta, Division 03123/04 U. S. v. Debra B. Woodard, et al. Case No. 1:03-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-S, Polk County Superior Court 07/20/04 Patterson, Perry (for Betty Flora Patterson,) et al. v. Life Gare Centers of America, Inc., et al. - Civil Action File No. 02-A93670-3, deposition,. Atlanta, Georgia 08/25/04 State of Georgia v. Dustin (Dusty) Mitchel Utz, case No.: 04-CR-000317 Cherokee County Superior Court 08/30/04 Judith K. Jaques, et al. v. Georgia Baptist Health Care System, Inc., Civil Action File No.: 03VS047245E, 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 ~' t 08109!05 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, Atlanta, Georgia 08/26/05 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 08/29/05 John T. Shirley, as Administrator of the Estate of Jeannie Rebecca Campbell et.al. v. Life Care Centers of America,'Inc., d1b/a Life Care Center of Gwinnett, et. al. Civil Action . File No.:. 2005CV95894, deposition, Atlanta, Georgia ~ . 09/20/05 The Estate of B. E..Freeman, Probate Court, Bainbridge, Georgia 10/11/05 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 10/28/05 Lovell Robinson, Representative of the Estate of George Robinson v. Manor Care, Inc., f/nJa 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 11129/05 State of Georgia v. Winston Pressley Reid, et al Case #: 2005000510, Columbia County, Evans, Georgia 01/18/06 Estate of Myrlean Chambers Hicks, Estate No.: 19442, Floyd County Probate Court, Rome, Georgia 03/02/06 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 Case 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-Persona( 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 Case No.: 05-2003-CA-044050, Deposition, Atlanta, Georgia , , .~ ~~ } 1 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 r , } n i / Arthur T. Anthony, LLc Certified Forensic Handwriting & Document Examiner P. O. Box 620420 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. Leapard: (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 8122105, signed Catherine Downey. ' 6. Redacted voided check #4932, dated Jul 8, 2005, signed Catherine Downey. 7. Authorization for Downeast Builders & 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. Dip~mate-Amadcen Board of Forensic Doaunent Examiners Amerk;an Society of Queatia~ed Document Examiners American Academy of Forensic SdenoHa 1 ~ I ~ ~~ ~ ~ 1 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. Quality 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 all 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 #hat the Catherine Downey signature and/or signatures on Exhibits 3, 4, 7, 8, 9, 1.0, 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. r; Differences in letter designs, initial and ending strokes, height relationships of letters, size, spacing and especially skill between the two groups of signatures, as described above, are ail 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. Diploma-M~edcan Board of Forensic tocument Examiners Amer~an Sodety of Questioned Document Examiners American Academy of Forenalc Sc~anoes `~ Cindy Leopard, Esquire November 9, 2007. Page Three All electronically submitted documents are attached to this report. Respectfully, Arthur T. Anthony Dlplomate-Mier{cart Board of Fo~ansic Doam~snt Examk-en American Sxiety of Queetloned Docunent Exarrtinor'a American Academy d Foronstc Sdenoea ,~ ~ 4~ ~ r EXHIBIT 1 } t i t . .w << ~, F ¢. EXHIBIT 2 i ,{ + t 3 t i ~ ~ ~ ~ ~y ~r i ' I i i{War ~ pl~aN P~~imd ~+~ 1 ~' '" 1 ~-' ~' `•' a n. i i u C S t EXHIBIT 3 : . S ' { t t k~ i i ~Y~~~ I J MQ~ 7"-~/Y C •; f EXHIBIT 4 ,.. ~ u ~4 r i I i i . . y '~ ~ f. • , ~` •\ • tt....,~C T..'t . M1' •'~. ..J~' .,6;. 2'005 •,'~: ~: f .~ .. • ~ DAYS ~r ,. "~ u ~ ~ 10/22/2007 07:28 R,{IZ 717 T90 T368 82/11/2805 15:39 770788084 F .. RSAG6R & ADLBR X009/009 ASNG DEPT PAGE ell4/13 AUTtiQpIrATI0T1 Thi ufltlll![pned eut110t1~i t1e8W bo OOhdflCt I~qu9Ra arld obtnh aadlt niporte iq dahnahq dt9 ~ AM1en~W uid ~eettACil ~ t0 peti forsr- etsahe~poHats under iho 4t3W lbrrted 4ihnan~+ Propnurt. Ali IMameteay nu:alwd ~ QBW wq b~ Heed ep co~dlderya uneen othernke opodll W. The undsrelgnod roquasm shot you nuNoo aveIIable t0 Q8W any {nfonnaUon In y~eur poaow4lpn, wtUdt C94Y tegt-tuV. • ~ . nnn+c yr ww~+-ro. ~ yrwwr.. r n.n y ~ ' ~ ~emaaat~o r •~ BE 811Rt~ TO INCLUDE THE F'OLWVigi~G WITH Y~OtJR APPUCA710N: ' 1. $9301+sgutar pPR6cxetlan fee'• 2.81gnad Builder Agneerreertt 3. Mast ctmastt year end fieranclal statement or tax retemt ' 4. Proof of oencxat u~+laty tnataanc®(copy of Daderaflpne>e PAge of Pcllcy or CarttfloAta of insurance from ~~ 'One home earollmotlt applltsttion fee $80b (certHlsd cteeci~; Ekpedfbed b day apptiastlan prooesah't~-tee $~H00 (certltled ohep[~} e please Hots that in review)ng app~oants for the QBW Program, certain casts are incun~elld, theref+~e ai(eppNcattan fees sr+e~an-nt~ldebie. A Copyright i 98l3 ' t'~elity Builders Weertmtty tJorporstlan _ 925 f~ 8eccnd st. ' t~Ortn~~r PA y 70ge3 . ~ ,. ~ ~ ~4 10/22/2007 07:32 FAZ 717 730 7386 lt$AGBR ~ ADI.~t X008/009 • a 8. 'this At,,p+eemectt shelf be klteCpr ~ end antonsad 6t accordance with tfia law. :the t:ommorrweskh of PetVta~Avatria. alb auks tnsutRr6ed under fhb lq~neemont shall be brought In PennayNanla in a court of ootrlpetent Jurtsdictton. BuQdar here- by consorts tiDthe personal Jurisdiction of the P~tnaylvenla courts. 6, eupder shah not aesipn this Agreement without tits prior wrRtat oormsnt of QBW. ~ . 7. This Agreement shaA Inure to the benefit of and b'e Wt-ding upon the heirs, executors, admlrtietratora, assignee, artd aua ~ceesore of the t+epreeentatlve partlfss. ' B. TiKe Instrument, and. eskurrty. documents and documents referred io or {noarporated herein by reference, contain the entire agreement betwoen the parties, and no statement, pracnlses. or inducements trade by either party ar agent of either Hied, a~tered except to twriting etgned by the parties and endrrrsed he~~ R d thiH oantraot may not be ertlaryed, mod. 9. Fapare of akher party bo Insist upon compllanae virlth any provision of this Agreement eharl not Conetltute a waiver of that io, Ail n~otfceslequlred hereunder moat be in wrkinp endsent by cartHled mWt, peerage prepsJd; Tatum race{pt requested, to the recipient at rho respective addreso indicated on the front, or to whatever eddrtats the party may deatQnate 6r writJng. 11. The elf ectlve date of this Agreement chap be the data of eicaadton by Qt3W. . '~ ;: QVAfi~Y 1BU~.DieR9 WAxItAK?'Y CO>lt,~'OBA1'lLON By Data of cxecuttan by C19W BupdeYe RaptstratTon Na. pl11LQRR . '' DQsn+e • otoaw m4rt ar a Da' ~ t3y aaa~icufui ~- 8tan flare In condderutbn for receiving a tbduoed rite, BuUder agrees to Inelntefn ire' memberahtp th the QHViI progrem for a period of _.,~,yeare'to commerCOe on the date ihta addendum la exearlad by QBW. 8upder agrees bo aubmR for enropment at homes which sutldet orany aflliistte construote during this term and any extoneione, In exatrenge, BuNder's rate wHl be ~- ~ ~ /per ttousand. The addendum wTJ renew for Ilke terms unless (3~ days prior to the expiration of the term, or any extenstona; either party provides the other D(SO) days advance wrttten notice that ttrey Intend not to extend the period erttltHng the buNder to a lower rate. If Buptlar provides notice, 08W wiH adjust the 13uJldar'e rats upward aNec#va at the and of the then current term. euitc~a .. tx+na• of auu - prww wets ar L ' ~ . QVJA>LYi;'X BUII,D~S WAitHdlyYY CO>R~'O>R~ATI4N 'ante Please note that to t~eviewing appifcartts for the QBW Program, certain costs are inouned, therefore all appltoation fees at'e non-reiunde6le. Capy+taMteas QuaBgrasHdaro wiuranb ~rporaftm csw raorao nso oix • . • 68 39tJd ,~~~ .' ., Zi;EEEI58LL 86~Zt 58Bt/it/L¢ . rPt.s.. weu mmwmro ~ o~uce """ paw wmeleW uaeaa~ear! r ~ ~ i is '~ 10/22/4007 07:58 FAI.717 TSO 7586 R13AGBR & AD1.6R ~004l00T 5.rTh1a Agi+eemerrt shah tie ln0a'pr~ art o~~linba~brouBht~Penl~sylvar~ia In as court of competent dk~lon. B~usder hare- sults instibuted~ under thb Apreern by consents to ~ peracnai Jurtsdictlon of the Pennsylvania courts 6. Bullder shalt not aselgn thta Agreement without the Prior written consort of t1BW. 7. This ~ ahe11 inure to the benefit of and be bind~ig upon the helm executors, edmhdstrators, assignee, artd suc- s of the repreasr-tathre Parties.. 8. Thle,lnstrument, and aectulty documents and documarrts rofereed to or Incorporated herein by reference, contain the er>tlre agreement between the parties, and no statement, promises, or Inducements made by either party oragent of either party that•is riatcontatned h th~ written contract shag 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. FaDtlre of either party to insist upon compliance with arty provision of this Agreement shall not constitute a waiver of that provision. 10. Aa notices required hereunder must be in writing end sent by rrerWied mail. postage prepaid, rattan receipt requested, to the recipient at the respect ve address Indicated an the front, or b whatever address the party may designate (n writing. 11. The effective date of this Agreement shall be the dabs of execution by OBW. ' °' -, ~Qvn~.rrY ~v~oaelas wA~al~-rn'~ coi~o>~cl(ox Date of execution by QRZIV ~~n` ~ ~ 2005 6uiider'a Registration No: 50416 Da' B31 ADDENDUM •~^~-- 81gn Hore In wrrsideratbn'for receiving a reduced rats, Baader agrees to maintain Its' membership in the aBW program for a period of _~ years tommmencb on the date~thls addendum Is executed by QBW. Bullder agrees to submit for enrollment ail honnee which t3uilder or any aitlaa#e ccirsttvota during thla term and any axtenslona. In exchange, Builder's rate wai be ~ / ~ lper thousand. The addendum vvlN renew far aloe terms unless (3(>) days prior to the expiration of the term, or any exbsnalore-; either PsrtY Provides the other (~g1 days advance written notice that they intend not to extend the period entitling the budder to a lower rate: M Bullder provides notice, QBW wilt ad)ust the Bui'lder's Hate upward effective at the end of the then cement temt. ^ , auaD~t ~~i~[lrM i.~ \~1L i~,~G .~. VLsw~,.~ ~r~f ~A pDad f u'7 _ QuAI1'~Y BUIIDF.it.S WARRANTY t:ORPORAITON ey - Date F~ebs-uary 23, 2005 Please note that In reviewing applicants for the Q8W Program, certain costs are incurred, therefore ail appllcatton fees are non-refundable. p~ere sass Qtnetir Builders tAhr*anty Corporation cow powr am aror . :. ~icl~/~ A iT ~ W~e+N print Ramshitle e! exea~tee~ . ~of0 pMt nenlNtitle 01 . pfi F r ~~ ~ ~~ S. 7ttis Agreement shad be;interpret nd enforced in accordance wkh the few: he Commonwealth of Pennsylvania. Alt suits instituted under this Agreement shall be brought in Pennsylvania in a tour r o{ competent jurisdiction. Builder here- by consents to the personal jurisdiction of the Pennsylvania courts. t3. Builder shaft not assign this Agreement without the prior. written consent of QBW. 7, This Agreem®rtt shall lnuoe to the t~enettt of and be btndf~g upon the heirs, executors, admiNstraiors, 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 shalt 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 shall not constitute a waiver of that provlslon. 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. QUALITY BUII.DE&SWA,RRAN1'Y CORPORATION Date of execution by QBW ' April 5, 2005 Builder's Registration No. ~ ~~ Da' By ~--~ Sign Here 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 oBW. Bultder agrees to submft for enrollment all homes which Builder or any atfillate constructs during this term and any extensions. In exchange, Builder's rate wiH be $/ tl /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 wilt adjust the Builder's rate upward affective at the end of the then current term. BY Date BUIIDERS WAItI~ANTY CORPORATION Please. note that in reviewing applicants for the QBW Program, certain costs are incurred, therefore al! application fees ere non-refundable. copyright ease Q~Ity au{laers wammty Corporetioa ~CW FORM 0l0 bM . ~~~ ~ f'.s ~ l . r ~ t ~' S'. 'Tiitis Agreement shat{ be interpret ~ 'nd enforced in accordance with the laws he Commonwealth of Pennsylvania. Ali suits~instltuted under this Agr~eeri~ttntt shall be brought in Pennsylvania in a court of competent jurisdiction. Builder here- by consents to the persona! jurisdiction of the Pennsylvania courts. 6. Builder shah not assign this Agreement without the prior written consent of QBW. 7. This Agreement shag 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 ins'~st 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 mafi, 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. QUATIT'Y B'~DEItS WAR1tANTY CORPORATi4N Date of execution by QBW .. _ February 28, 2005 Builder's Registration No. ~ 50417 Da~ X By ADDENDUM ~-~-~- Sign Here In consideration for receiving=a reduced rate, Budder 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 afflltate constructs during this term and any extensions, in exchange, Builder's rate will be $ /• 7c~ /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 (30):days advance written notice that they intend not to extend the period entitling the builder to a lower rate. If Buiider provides.notice, Q8W will adjust the Builder's rate upward effective at the end of the then current term. pwmo or swlaor - pio6eo print or typo} X pDate ~! 1~-- f - By r~ ! ipnahue or Authorised Roprssantstivo • TNIe} ipbase pr41t nameJtitle of a:.tutor) . BUII.DIERS WARItANIY CORPORATLON By c.c~., Date Febr ry 28, 2005 Please note that in reviewing applicants for the QBW Program, certain costs are incurred, therefore ail application fees are non-refundable. Copyrtpht 1888 Quality Bulldore Wartanty Corporation aswwa-toso~+a _ (Ptoasa print nsme/ttW of sxoeutor) ~ W ~ t ~1 r 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 IVt. Downey 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 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 vl ,~ ~ s ~ r 4. I am the secretary of Jefferson Homes, Inc. ("Jefferson Homes"), which is the defendant in Quality Builders Warranty Cori~oration 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 Yi j ~ ~~ ` ! 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 Crown 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 2 _ r-~ a ` ci ~:.~ .-{ {~.._ ~ ' ' ~ 1'" ;~.~a ~ C.J i ~.-~ :~. , y i -1 ~~: ~` ~., REAGER & ADLER, P.C. BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams~~ReagerAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rjoyce(a~Rea~erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Downeast Builders & Realty, Inc. QUALITY BUILLERS WARRANTY CORPORATION, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. No. 07-5310 CIVIL ACTION -LAW DOWNEAST BUILDERS & REALTY, 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 i nomas v. w iiiiams, 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(cr~,Rea~erAdlerPC.com BY: RICHARD J. JOYCE, ESQUIRE Attorney I.D. No. 85520 Email: Rjo~e(cr~,ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Downeast Builders and Realtv, Inc. QUALITY BUILDERS WARRANTY CORPORATION,' Plaintiff, v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5310 CIVIL ACTION -LAW DOWNEAST BUILDERS, AND REALTY, INC., Defendant Jury Trial Demanded DEFENDANT DOWNEAST BUILDERS AND REALTY. INC.'5 ANSWER WITH NEW MATTER 1. Admitted upon information and belief. 2. Admitted. 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 Pazagraph 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 Pazagraph 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 Pazagraph 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. 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. 3 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 & AD Date: February 1~, 2008 By: .'Williams, Esquire 4 VERIFICATION I, THOMAS O. WILLIAMS, ESQUIlZE, being duly sworn according to law, depose and state that I am the attorney for Defendant Downeast Builders & Realty, 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. REAGER & Date: February 12, 2008 By: O. WII.,LIAZGIS, ESQUIRE • a CERTIFICATE OF SERVICE AND NOW, this /~i 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 v ~~ t: ° " i:`~. - r y -mss t? ~i " , 7 Cl ` w • ~ ~ 1 ~~ ~ ~ r~ ^t ~ ~ t . f ! .~, ~,~ ~: 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(c~Reag_erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorn,~s for Franklin Builders, Inc. QUALITY BUILDERS WARRANTY CORPORATION,' Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5310 v. DOWNEAST BUILDERS & REALTY, 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 Downeast Builders & Realty, Inc., for the Attorney's verification included with Defendant's Answer with New Matter filed on February 12, 2008. Respectfully submitted, REAGER & AD , P. . Date: February 14, 2008 By: Thom s O. illiams, Esquire VERIFICATION I, Catherine Downey, hereby verify that I am the President of Downeast Builders & Realty, 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: o~ 11 By: Catherine Downey Dole Wil' MAD Notary Pubs, a~ Cou eorc~ MY Commission Expires June 14, 2009 ...,„ 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 17043 ~ i Thom O. it lams, Esquire 2 C? n~ Y ~ .-~A , 1 +• s ~ ~~.. ~ry ~ +^ - ~'K rw C.7"'l .J t~~' f~: •. ~ ~ J/ ', , % rw .~ '~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY . CORPORATION, CIVIL ACTION DOCKET N0.07-5310 Plaintiff v. DOWNEAST BUILDERS & REALTY, INC. Defendant NOTICE TO PLEAD To: Thomas O. Williams, Esquire Attorney for Defendant 2331 Mazket Street Camp Hill, PA 17011 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, hn .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, Plaintiff v. DOWNEAST BUILDERS & REALTY, INC. Defendant CIVIL ACTION DOCKET N0.07-5310 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. 1019(g). 13. 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. I019(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, Plaintiffdemands 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 last page of the Application requests applicants to submit various items, including the application fee, signed Builder Agreement, year-end f nancial statement or tax return, and proof of general liability insurance. 21. In connection with its Application Defendant submitted a check for the application fee. A true and correct copy of the check is attached hereto, incorporated herein, and marked as Exhibit 2. 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 3. 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 23, 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 4. 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 156 requests for warranties to QBW. 29. Since Defendant's membership approval, Defendant has forwarded a minimum of 197 checks for payment of warranty fees to QBW. 30. Defendant sent a letter to QBW dated August 1, 2007, referring 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 5. 31. QBW contacted Defendant and reminded them of their obligation to enroll all homes, which they constructed until February 23, 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 forwarded 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 mazked as Exhibit 6. 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 are attached hereto, incorporated herein, and mazked as Exhibit 7. 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-Yeaz 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. ~~, lit L~~~ 1J. ~~ r rurooc~!4 HLC;UUNf 1NG DEPT C~UALt'~`K BUILDERS W.ARR.AN~'Y CORP. 325 N. SECOND STRE)='I" WORMLEYSBURG, PA 17043 ' TOLL FREE: 1-500-334-9143 ~ , ~ ~ 1 FAX #: 717-737-428$ PAGE 01/13 Lib~~y ~u#ual BUILaER APPLI~AT~C1N FIATS _ __ ~• ~~ .SALES REP ,~t ~~ ~~i,Y ~ 1. BUILI7EE~ Applicant (ErWty which will stand behind warranty}: E'I'N• # ~$~~.{~.~QIrP~ DCA # (New Jersey ony) a. Name 9fOWlt[l~t~' ~ltQ•QI''rs ~~ ~~~~'~ ~~v1C. I Phone(~'~O) ~~g~~'..'~ b. Mailing Address__ 't0~~ q ~t~'~ff,_ ~,~{ City ~ GV i r'K~'{'~s,n State I ~ f4' , ._ _---- _ Zip ~]D(zf Physical AddrESS ;?rJ,.r'ri,t. (k S CJ,, t3y_~ _- Crty ~ --- - State zip - c, Nsme & Account # ~,/,~ ~ ~5~~. - Y1 n QCc~~~ d, Fax Number (~~ '1 ~i~ - ~3~ Sf cf Qv9mlte Service e, Person who will register homes _,~,r „ r f. Do you have In#ernet Access? .y g. Web Addreea ~ t~t1 ~,r C~it E-mail AddteSs . c~~-~-~'~. I. Ksy Con#act Person ~+lCe.-'a~ J. Mobll~ number {of key contact person)f/~ +~ $^RfDi 2. List all principal and portent of ownership: a. Name ~ ~i ~ n~_._. Title ~ ~ Soc. Sec, # O ~ (- ~ (a ~ ~l ~ ~ (~ HomeAddress,_(,3 ~ ~>Ui11 _ ~ ~fjtj 1 t~ %_~ ~/'~ n , b, Narna ~.n k ~r,.a~r~. Title x~~7'~'•~,~j,i rtlµ Sod. Sac. # ~~R,~,~q,~tj~,~ Home Address ~3 ~, D rn i S h Cyl~ '~, t(~.T ~a y~ nAl{-~ r+• ~f~f~- ~,~,}~ % 50 c. Name TklO ~ 500. Sec. # Home Address _ _ ~ % I d, Name _ Title i ~ Soc. Sec. # Home Addraas -- - 3. Name of Parent Company (if applicable) _~ ~ f~ I _ 4. How many years has Chief Executive OfFicsr owned and/or controlled a homy building company? ,,,~` Doss the Applioarlt or any of its Principals have 10% or more interest in any other ho building buslne9a6a? ''++ I~Yas ^ IJo If yes, Ilst namsa of Entities: ~~~~~it ~~~~~ Qr*~rl7r,n. ~ Ir'ri ~~ ~,~J~~ ~san i~mes~ ~, i 5. Business Organization (check one): ~ Corporation "S" Corporation Sole Proprietorship Partnership (GansraVLimited) LLC Qther: 6, How many years has Organization (Entity) been Invpived in home building (not fine prln~lpala)? Jam" i 7, Whet warranty program pf any) has the applicant or any of Its principals used in the palit? ~ ~y,~~~!-ko ~ ~ ~r a •• 8. Nas the applican or any of its principals ever been expell®d from, suspended, Or refusbd registration by any wanartty progrgm? ^ Yes No If ya6, list name of program _.. Reason fbr Suspen5ian I~ ' 9. Has the appfica/~ over bin involved in a dispute settlement process with a hOrneownbr and a thirci party arbitration? ^ Yea ~ No If yes, how many? II 1 Q. Has the applicaht or any of its home buyers aver experienced a claim which has been Submitted to another warranty program for rpaolution? ^ Yes I~Na If yes, explain: 11. How many homes did tho applicant sell in each of the past four (4) ye~ar~0.1~ ~~ S zooo:l~. zooid? , zooz:~G, 2oas:!___`t ~.od+~ - ~ to ~ Number of homes you expect to build this year ~ a •~(~ / Avergg8 Sales Price ~O Types of horr:z:s built: _,_„ Duplex, T wnhousa, Single Family, _ Condo (numbor of storl®s ____), ,_,Y Other (specify 1 ~~~I~~s ~ ~JLIllILC'U~ 1~:3~ rrbr888324 ACCOUNTING DEPT 12. List municipal govomment)urlsdllc1tion(s) where applicant will be bulld{ng~hom,•e~s~ In the next twelve (12) months. ,r~ ~ City: ~ . ~ 1 1 C/ti. W~ Cou ntY--~..,=`'`~ ~^ State: t ` ~t[' ~ County: State ~~} City: 13. Has the applicant or any of Its principals, or f~~krms with which any prinolpal was affiliated, filed for 6ankruptCy or been adJudlcated as bankrupt within the last seven (7) years? n Yes I~'No If yes, list name(s) of firm(s) Involved In bankruptcy and year filed. 1 d. Does applicant build under - ~VA, '=FHA, _ FMWA . 15. Have any (lens or unsatisfied judgements bean pieced against the Applicant? ~ b - !fyea, explain 18. Has applicant's authority to build aver bean suspended or revoked? 'D tf yes, explain - , ) 17. Nam® of current general liability insuranoa Company~~.~LS 1~~ ~r~o~-.o Expiration date: ~~5 Agent's Name~._i~/~_ _ _9r1~ ~~ . ~~n~ ~ .Phone Number L~ '~ ~ Le - D ~O~_,_..~ Does coverage in01ud6 "completed operations" coverage? U ! S _ _ Policy # D a ~ ~.~~ ~ Was applicant had any claims under "completed operations" In the fast three years? ~ O -- Ifyes, Rlease describe: "` PLEASE REMf7 A CEATJ~lCA7'iE 4F INSURANCE FROM YOUR AGENT DN GENERAL LlABlL1'TY COVEFiAt3E (or forward a copy of fhe declara- tions page of the poNcy) The foilowirtg Information is rQquired upon application to the Quality Suildars Warranty Corporation. All referettceS wEll.he corRacted. SUPPLIERS (Include lumber, brtok/block, appUanoas, concrete, materials, etc., if applicable) No employees or relatives, please. Please include FAX number to expedite Your application. NAME T1fF't; YEARS CF ACCOUNT Nb. PHONE N0. FAX NO- RELAT1pN$HIP b. Ct ~{l~fA ~~ ~ CCNCRE'fE ~ ~ 0- Wn -~ 7~I- . ~ r Far ~ IC 'na a.3~ `1a 4-7.2+F-D3t °' ~~ IC).' ne-. ~-- ~ ~ Cam. bu- ~ •~' ~ c. (i~ - ~~ ~ 7 5~,&'~ SUBGONTRAGTARS (Include plumbing, msehanlcal, electrical, excavation, Insulation, if applEoabla) No employees or relatives, please. Nq-ulE TYPE YEAR$ OF PHONE NO. FAX NO. RELATIONSHIP ~~~ ~~ 73 I~ 3>zt ~ ~ P ~~ . ~ ~ . ELECTRICAL ~ ~ ~b" 4r'~ ~ ~i~ G ~' ~'" ~ 7 b_ PLUMSINa Y ~ZSr ~ r7~7J ~. -r [n ; ~ ~ ~vAc. ~ rlr~. - X074 ~.~.~~ d. Q ~ K. 'QM '~ ~ ~7O w ~i~J~. J/~'/`~, ~/f++ ~ j~+_'~' `/~ j )~. ll,, 1~.,{/} A ~ ,~ J n Locatiasn of a home now under construction. (Framing stage and prior to drywall NAME OF DEVELOPMf'NT COMPLETE? ADDRESS AND LOCATION cITY k In UsG / ; 31~1~ ~~ t4arne of municl~sal Inspector utilized. ~~~ ~~ ~ e ~u 11, ~~n~ 15: ~ ~ r re r~~H:~2a ACCOUNTING DEPT PAGE 03/13 Homshuyer references {ten are requested, If unable to supply all, contact the Quality Builders Warranty Corporation. lime in home 9houl~ be between 8-i 8 months.) List malting addr®ss on rev®rse side If no phone # Is available. No employees or relative9, plea8e. NAME MONTHS HOME WORK f]HON~ Np. IN H4NiE PHpNE NQ. (Indicate Mc/Mrs.) g. ~-~~e~ ~+c.~i~,le (0 7~~-37~- ~~'~a hrs. b. -~ f r alt Cbop~r `7 r...o'~ - ~f~'7 ~ ~ ~7 ~ ~'I r. ~. L ~ oY o~ ~Qn ~y Kam. (, c,~~q _ 3 ~a _ p ~0 7 (3')~. h. ~-~.sa.n ~. ~~.xa r~oC ~ t ~ ~l ~ `P-~? 3 - 37 .~3 ~~ i. ~ ~ ~ r~ ~Gf. f ~ r~ ~ ~ ~ ~ - ba ~ lYl It . Firs~ncial A#filiatinns a Bank {Busingss Account) Checking L N~mt N~aME ~~~^ Il. +~QSnrt Typo of Accourr! ~ y~~li~ ° ~ ~~~~s f1 Nw,neeR ~~ ~'~ v x-78' ('ov',~Lc -- _ r~~.~r~ ~'?0-'7~'I~~Soo MAILdJG AoDRESS ~AXM pHQNE Y b. Bank (Business Accour-~ Saving~JMonsy Market ~.f ~2.tyll~ .) Dht 5t ~} e_V~~(L,Mt "~-ksl~S Type of Account t r BANK ~E ~__{_ ~ ~ ^~ /1,.~~ , .'y /ICCOUNt hWMBER ~,wunvcnooFt:ss z Faxa ~s77 ~-,$33-7 L ~/ ~"~~ c. Lending Instltutfon {construction financing or fine of Cr'9dit) '~ID.Lr ~~. 't ~,nri met ~ f~}n . ltd S type of Account ~,7't1(~'~]1i~-_~`n~ 1'ru' -.1/~ rf'a.r,, eaN~E accou McER MNLING FHIf~M ~ O3-`~Ce$O PHONBR Financial 3tafiemeat ~0~3 t' Remit most oul'rEnt year end finenoial 5t&temant or tex return, with Hama and phone number of prepares NOTE: All tMomiatlon will be recw3ivad as strlctfy conflsier-tial unless specified otherwise. Exy ~,r3 ~1' '1„ ©2/11/28D5 15:39 778788834 ACCOUNTING DEPT PAGE E~4/13 AUTHORIZATION The undersigned authorizes 4BW to conduct inquiries 8nd obtain credit reports to determine the undersigned's finanaal and technical ability to per- form its obligations under the 4BW L.imlted Warranty Program. All Information received 15y QEW will be held in confidenc® unless otherwise specified_ The undersigned requests that you make a~allable to QBW arry Information In your posae88i0n, which C2BW requests. - «~P_rs ~ 1'~G~TG . ~~a~C NAME OF COMPANY (PLEASE Pf~INI~ , AUTHORIZED BE SURD TO INCLUDE THE FOLLOWING WITH YOUR APPLICATION: 1. $350 regular application fee` 2. Sigr-ed Builder Agreement 3. Most current year end financial statement ar tax return 4. Proof of Genera{ Liability insurance (copy of Declsretions Page of Policy or Certificate of Insurance from agency) `One home enrollment application fee $60d {certified check); F~cpedlted 5 day application processing fee $500 (certified check i Please note that in reviewing applicants for the QBW Program, certain costs are incurred, therefore elf application fees alre nan-refundable. ~ Copyrfght1985 Quality Builders Warranty Corporation 325 N. Second St. Wormleysburg, PA 17043 . ~ xK~~eir 1 T $ ~~ ~ ' ~-i\ y} G.. .. _ :~~ 0Z 39t1d Z9~~IbW~1dd ZZ~EEZ90Lt 0b ~ tiL 9004/IT /Z0 QUALITY ~ ..nl.~~~a W C~,1~~Rt~TrYt~N` BUILDER AGaEEMENT .~' ACRE(=MENT made this !/ day of ~`~'~~~~-r' ' ~ 20 ~ 5"' ~ . between QUALITY BUILDERS WARRANTY CORPORATIp , a Pennsylvania corporation, herein referred to as "QBW,N and ~rx:,~.-~ ~g~; ~' 6~»fCl*~:~1 r~,.,f'C'/~ ;~'c . ___ Noma of Bwlder: (indiaata whathar a Corpora n, partner3 Ip, lnd~ldual or oth9r of tees O ~ ~~ ~;, ,[,,, ~;?U,~ ~/ ~~~, q ~./ ~,~~, ~, ~~~;,~ ~G -~CXJ' ~ herein referred to as "Builder." SECTION A. MEMBERSHIP AND TERM: 1. QBW administers a program whereby home builders registerECl 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 far providing protection to purchaser's of well-built homes, QBW pro- tests and promotes its goodwill by careful selection of builders #o participate in its warranty program. 3. Builder desires to participate in QBW's warranty program and, to that Qnd, agrees to abide by the provisions of this agreement and to conform its behavior to the standards expressed herein and in the Limited WarrantyAgreemerrt. Builder warrants that ail information supplied to QBW in connection with its application is true and correct. 4. All registration fees (initial and annual rescreening) are set by QI3W at its discretion and are non-refundable. 5. QBW, upon executing this Agreement, has accepted Builder as a member of its warranty program, subject #o 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. 8ECTION B. HQMIM ENROLLMENT: 1. Requirements. As part of its participation in QBW s warranty program, subject to QBW'$ 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 enrol- ment process, which fees shall be non-refundable. Z. Procedures. Builder agrees to enroll its homes according to procedures established by QBW. Builder may enrol homes currently under construction and homes completed but not sold or occupied (as of the date of this ~reement orthe date • of reacceptance following a period of suspension ornon-participation) provided that enrollment is made within 43 days of execution of this Agreement or Feacceptance, and QBW has inspected and approved the home. • Homes which remain in a Builder's inventory longer than 1$ months must be enrolled by the end of the 19th month from construction start date and model homes must be enrolled on fihe date of the Certifis~te of (Jccupancy 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 $150.00 shall apply. QBW will provide Builder with a copy of the Limited Warranty Agreement and Enrollment Form. Builder and pur- chaser must complete and sign the Enrollment Form at closing, and Builder agrees to furnish QI3W with a copy of the signed Enrollment Form within ten (10} days of closing. Builder agrees not to charge the purchaser directly for the cost of the enrollment fee. A home will not be considered enrolled until QSW receives and approves the fully executed and cqm- pfeted Enrollment Form, payment of all fees, and an approved final inspection. 3. Reservation of Power of Review. QBW reserves the right to reject any home submitted for enrollment in the program if (a) the Builder is not a member in good standing; (b} the home is not constructed in accordance with the Warranty Standards or building codes specified in the Limited Warranty Agreement; (c) the Builder did not observe the enrollment procedures; (d) misstates or misrepresents any information; (e} in any way faits tv comply with the terms of thisAgreement: ~. As$Ignment of Rights. If a purchaser flies 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 bs, any rights which Builder may haveagainst a supplier, manufacturer, subcontractor or other person for work performed pr ma#erials supplied in connection with that claim. Bui{der 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 tp compensate and indemnify QBW for any damages sustained ny such lack of cooperation. ~ f. y~ ; • 80 3Jad ~`,~ "~ E•y~~~y~iZ~EEEZ50tL Oti~LI 500ZIZti/Z0 5. `]"his Agreement shall be Intorpt ~ and enforced in accordance with the law. .the Commonwealth of Pennsylvania. Ali, 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 Aennsylvania courts. 6. Builder shall not assign this Agreement without the prior written consent of QBi/V. • 7. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, assignee, and suc- cessors of the representative par'tles. 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. ~ailtare 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 mall, postage prepaid; return receipt requested, to the recipient at the respective address Indicated on the front, or to whatever address the parry may designate in writing. 11. The effective date of this Agreement shall be the date of execution by QBW. • '~ QUAI.~',1G"Y Bif:.T.l~.D~RS WA,RRAIV,'7"Y COR.k'ORA.')CY4N • BY Date of execution by QBW Builder's Registration Nn. BUILDER (Name of Builder -please prgtt of type) Da' By ADDENDUM •~*~+- Sipn Mare {please prurt name/tltle of exeoutoei Inconsideration for receiving a reduced rate, Builder agrees to maintain its' membership in the QBW program for a period of ,•~ yearsto commence Cn the date this addendum is executed by QBW. Builder agrees to submit for enrollment III homes which Builder or any affiliate constructs during this term and any extensions. In exchange, Builder's rate will be $ / k/ /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 {3Q) 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. BUILDER IName of Builaer .please print or typo) Date - r'i r O 1~ By ` (- atura of Autlwrizea ReRrsterrtetive - 7'Itlo) . QC>•AY1TX BUII.Y>~LS ~PAR1tANTY ~4~I'~DRA.TI4N Sy - bate F~lease note that in reviewing applicants for the QBW Program, certain costs are incurred, therefore all alppticatir~n fees aro nan-refundable. Copyright 1988 Quality 8uild9r5 Warranty Corporation 49w faana oso aloe 69 3Jtid ,Eedw~+~r 3 --~ rs i `r; l~`,r i ZZ£BET50LL 9h~ZZ 599ZlTT/Z0 • (Please print riatrisltitle al executor! QUALIT" BUILDERS w RRANTY C O R P O R A i 1 O N 325 N. Second Street, Wormleysburg, PA 17043 telephone: 717 737-2522 fax: 717 737-4288 February 23, 2005 MS DOWNEY DOWNEAST BUILDERS & REALTY, INC. 10289 CITY POND ROAD COVINGTON, GA 30014 Dear MS DOWNEY: Congratulations! Your application for membership in the Quality Builders Warranty Program has been accepted and approved. Your builder registration number is 50416. 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 grandiathered 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. EXN~giT ~ 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 P. S. We have enclosed a Hershey's chocolate "Thank You" card. We appreciate your business. ~x~,~/3~t•~ QUALITY B ~,LDERS WA-IZR.ANTY CO...'ORATION_ : _ ~_ . 1 BUILDER AGREEMENT AGREEMENT made this %/ day of ii''Sr~n.: , 20 G i'~ , between QUALITY BUILDERS WARRANTY CORPORATIO , a Pennsylvania corporation, herein referred to as "QBW," ~ ~ ~ ~ ~ and ~rY:,i=~ Psi ~ C/~=~~ ~ re'p'%,~. .h c . Name of Bwlder. (indicate whether a corpora n, partnership, rndroidual or other) of Address O ~ ;~, ~' ~v ~k~ ~~ _ ~~oa ~'~ ~s~si =,r,4.,~ ~, ~GY.X ~ 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 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 Warranty Agreement which the Builder fails to correct, the Builder hereby assigns to QBW or its insurer, as the case may be, any rights which Builder may have against a supplier, manufacturer, subcontractor or other person for work performed or materials supplied in connection with that claim. Builder agrees to cooperate fully with QBW and to provide QBW with all information which it requests pertaining to the claim. If Builder fails to so cooperate, Builder agrees to compensate and indemnify QBW for any damages sustained by such lack of cooperation. ~ ~'~~~ 5. Breacl~ and Remedy. If Builder fails nroll any eligible home as required by this : ement, QBW may seek specific enforce- ' merit or other appropriate relief in leya~ or equitable proceedings, even if this Agreement 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; (~ fails to comply with the enrollment procedures established by QBW; (i) 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 shalt 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, 8uilder'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 conformity with the Warranty Standards provided in the Limited Warranty Ex~,-tr.~t't ~ Agreement, and/or in conformity n approved building codes and other sty rds established by QBW and in effect ' ~ at the beginning of construction of the enrolled home. QBW reserves the riy~ ~~ 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 G~BW 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. ~~~~~~ ~. Thin .'agreement shall be interpre~. ind enforced in accordance with the laws the 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. - QUALITY B ERS WARRANTY CORPORATION By ~ v~ Date of execution by G1BW February 23, 2005 Builder's Registration No. 50416 Dai k By (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 $ / ~ /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. BUILDER aQwnEOS~ ~v~~C~~ ~ J~c,1~v (Please print name/title of executor) of Builder - f{lease print or type) Date ~" ~~ " o By ` (S ature of Authorized Representative -Title) QU BUII~ERS WARRANTY CORPORATION By Date February 23, 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 ~~~ ~3tT ~ BUILDER (Name of Buil a -'please print or type) 67~1?12002 ?1:59 6785090554 CROWN • 1 ti~~ ~'•~ MNIMTr~•"r•'r~+..~~. y3 ~~.r•iYnnw~4uran•,.••^•^•.•,•~w• con~nauNm~s, i~G August 1, 2047 Quality Builders V~a~rranty Corpoxatior.~ fax 717-737-~42$$ Attr~.. Jordan 0lshefslci Deax Sir, ~ you ~vr your fax of 7!19!07. Per page 2, Section B.6.o. Cxown Cvmnzttnities is pxoviding QB~ with :30 days advance wxitten notice of our teit~ination of your services. Also der the 34,gxeement, Crown Communities shall continue oux obligations for those homes egrolled thxough August 3U, 2007. Best Regaxds, ~.e11y Nelson For Katie Downey PAGE 01l@1 ~X.~,/ii3ir S ppWN~AST BUILDERS ~ REAi,'~Y, INC• ROQ$~UEL7 $U1LD~R5, INC • FAANKI.IN Bu1L'1~tERS, INC • JEFFERSON HOMES, INC X371 Dogwood Drive • Conyers • CrA • 3tio12 ~ 67&5r~9-4655 Phone ~°~7~ 5o9-o5fi4 Fax www.crowna;ommunitiesinc.cotn JAN-31-2007 (WED) 15:08 QOAL[TY BUILDERS WARRANTY ;FAX)717 737 9189 P. 001 Transaction Report Send Transaction(s) completed No. TX Date/Time Destination Duration P.# Result Mode 532 JAN-31 15:07 7707888324 0'00'15' 002 OK N ECM Quality Builders Warranty Corporation 325 North 2°d Street Wormleysbuxg, P.A~ 17U43 1-800-334-9].43 Fax: 717-737-42$$ Fu~imile Transmittal Sheet To: Catherine Downcy From: Tom ~lVlcCa,rthy Company: nownca,t Builders & Realty Date: January 31, 2007 )rax Number: 678-509-0519 Total Pages: 2 Comments: NCs. llowncy: As we discussed, I have enclosed the Addendum to your Builder Agreement. Please contact me if you have any questions. Tom McCarthy 7116 ~kH i ~°s t r (o y' i aC ! 1 X11 ~"~ _°. ,'" 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. Catherine Downey -President 50418 ROOSEVELT BUILDERS, INC. Date REG # Catherine Downey -President Date REG # 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 "",~„~ w y~r 'MrA~ ~~ `~~iouse r~-~l~cri-Pde,u~ `~In,Ee~tvi~ty~ When you see a homebuilder that displays the QBW logo, yon can look no further. T'ltis builder provides the QBW 10-year warranty on his homes and has been carefully screened for technical knowledge, c-•af~manslvp, and financial stability. The 1(>-year new home warranty ulditstry began in the United Siat~s u119i5 as a method to restore 'integrity to the home- buildungindustry.The federal legislature s pending regulations were avoided with dne a-eation of a warranty uidustly that would do business with only the best builders. F1lthough several rnnnpa-ves in this undustty have strayed fl•om those principles since that time, QBW has maintained the o-iginal intent of the indush•y by continuing to do business with only those builders who hold the highest standards of quality construction and custonnel• service. As a member of Quality Builders Warranty, you can take comfort, knowing that this builder strives for excellence, consis= tently creating quality homes and providing dedicated customer service. [~l7ith QBW, you also benefit fiom: 7 0 years of premier protection. 1'lne stability of a warranty backed by Liberty Mutual, one of the largest unsurance companies un the United States. Potential discounts on homeowner's insurance, because Liberty Mutual recognizes the higher caliber of construction by btulders ui the Quality Builders Warrvnty Program. Potential Group auto insurance discoutnts, made available through Liberty Mutual. A supple and efficient complaint resolution process, should a problem ever arise. This process is designed to save both the homeowner and the builder time and money. A clear understandu1g of what is covered by the wan-anty and wha is responsible for replacement w• repair. Confidence un the cot.stl-ttction of your home -your greatest asset. `~<ztre;,a~,e a~r'rdk,r- `~~3 `W's' ~zenut?.r, ~rc:Geetic:n L~P,v~x. Tlne Fast Year The builder warrants the home against specified defects in workmarvship and materials that are the result of non- confornuty with QBW's warranty standards, as well as any -najor structural defects as definedin the warranty. The Second Year The buIlder warrants the home against specified defects u~ the wiring, piping and duct work, as well as any major structural defects as defined in the warranty. The Thi•d through Tenth Yeas 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, though its insurer. T)voughout the 10-year period, the warranty is automatically transferable ro subsequent lniyers, protecting you and the buyer. ~c/i.rc;ue y~e~rce a~y `Y12uuG 'The warranty specifies a clear set of written standards that help to elunilnate gray areas and possible disputes between homeowners and builders. In the event that a concern does arise, the complaint resolution process is siinple and efficient. QBW is conunitted to providing the most efficient and fair complaint handling service possible. If the homeowner alnd builder cannot resolve the dispute, QBW will review the claim and assign an investigator, if necessary. If the dispute is still unsettled, QBW will arrange for arbitration between the two parties, which is binding. For Sales Information: ~Iode1 Home 770.466.4507 office 770.466.4379 fax CROWN COMMUNITIES s = r Crown Communities' Standv'd Features are plan specific and may vary based on individual Eoor plats. We reserve the right to modify :c.mea •°' elevations, Floor plans, product specifications, and pricing without notice. Information contained herein is subject to errors, omissions, changes, withdrawals, and prior sales without notice. +~~a~T ? ~' C~oyvn C„pmmunities www.crowncommunitiesinc.com `COMPANY PROFILE Page 1 of 2 t~ anent ~~ afranty I~e~x~s tfome AbaGrt Crown Cammunities i Hameowi~er i estin~aniais ;'Nas~~ anty ~ ~t-o-~t `~-~~c?rt -~~ >€ ~~~:' _ 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~t-af,tp i;;u~irw ~C"arcuit~ QBW screens builders for integrity so you don't have to. "~relaer~ r~jdetryrity'' 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 I Help Yau? *Community Select the community Lot Num. *Your Name *Email *Home Phone Cell Phone *Address *City ZIPS http://www.crowncommunitiesinc.com/warranty.php ,~ ~(., 1/?4/?UUR N1~lr ~ +CR~W1'~1 COMMUNITIES Crowh ~oinnnnlities Ref. 'How can we assist you? Contact Warranty . Co^~n7u;;iti=s I Abaut Us :. Financing ! ktomebr;yi~~g ;Contact Us ;Mews ! Carrers ; Vyarranty Copyright 0 2006 Crown Communities, Inc. ~ Disclaimer Sitemap ~xN 1131 T' '~ Page 2 of ? http://www.crowncommunitiesinc.com/warranty.php 1 /?4/2008 ~~ . .. ~,~ ~~ ~ ~ Est ~ ~""ti y • ~ 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. Date: ~ ~$;~ ~ Quality Builders Warranty Corporation 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: ~-la~~O~ `-7--e. 6~-~,~,,~ Pegg rrison, Secretary <~% ~,, 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: Rioyice ,~ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Downeast Builders & Realty, Inc. QUALITY BUILDERS WARRANTY CORPORATION, v. Plaintiff, DOWNEAST BUILDERS & REALTY, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 07-5310 CIVIL ACTION -LAW Jury Trial Demanded DEFENDANT DOWNEAST BUILDERS & REALTY 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 Downeast Builders & Realty, 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. 2 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 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 fullyherein. 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 that 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 Plaintiffs Complaint, with prejudice and costs. Respectfully submitted, REALER & ADLER, P.C. Date: March 17, 2008 By: Tho s i iams, 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 Downeast Builders & Realty, Inc. VERIFICATION I, THOMAS O. WII..LIAMS, ESQUIRE, being duly sworn according to law, depose and state that I am the attorney for Defendant Downeast Builders & Realty, 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. RED Date: March 17, 2008 By: CERTIFICATE OF SERVICE AND NOW, this 17`" 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 O. it lams, squire 6 t7 ~._ ~ ~ -~~ ~ ; r -~ - j . ' r --+ - -t~ ~- = ~~ y -. ~ ~ Cf 3 rr"t N .. ~:; READER & 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: Rlovice(a~Rea~erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Downeast Builders & Realty, Inc. QUALITY BUII,DERS WARRANTY CORPORATION, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. DOWNEAST BUILDERS & REALTY, INC., Defendant No. 07-5310 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 Downeast Builders & Realty, Inc., for the Attorney's verification included with Defendant Downeast Builders & realty, Inc.'s Reply to New Matter filed on March 17, 2008. Date: Mazch 19, 2008 Respectfully submitted, READER L , F By: ~' mas O. Wi iams, E CERTIFICATE OF SERVICE AND NOW, this 19~h 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 Th .Williams, Esquire 2 VERIFICATION I, Catherine Downey, hereby verify that I am the President of Downeast Builders & Realty, 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: ~ ~ ~ S~ By: ~, FxpiresJune i4, 20~ C`3 ~"~' c.' ~ c:~ -~:7;-; n ~ ~ - =.~ -,-~ rte CI> -r ~ R7 © 44-..r r,., , ~r ~ ~ q;s~; t __ der( ~- .. t t' ~ a-' ~ ~1 '~ /F IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA QUALITY BUILDERS WARRANTY CORPORATION, CIVIL ACTION Plaintiff v. DOWNEAST BUILDERS & REALTY, INC. . Defendant PRAECIPE TO THE PROTHONOTARY: DOCKET N0.07-5310 Please mark the above captioned action as "Discontinued without Prejudice". Respectfully Submitted, Date:- 7' Z ~~ofl ~_~ . c.. A. Gill, Esquire 32 orth Second Street Wormleysburg, PA 1.7043 (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: a.~~ ~.pd g ~1~,, Peg 'son, Secretary r~ ~4 ~•a r :i ~~ ~'7~ P+j~, '"w: {.._ .• ~,