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HomeMy WebLinkAbout14-6564 Supreme Com , ao 'Pen nsylvania Cou„ o .Co`mmo leas For Prothonotary Use Only: Docket No: ST CuRLAt�15 �� County — s6 q The information collected on this form is used solely.ror court administration purposes. This form does not T supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: S x Complaint 0 Writ of Summons 0 Petition ® Transfer from Another Jurisdiction J Declaration of Taking E Lead Plaintiff's Name: Lead Defendant's Name: C Quality Builders Warranty Corp. French Brothers, Inc. T Dollar Amount Requested: Dwithin arbitration limits I Are money damages requested? X Yes i No (check one) Ix1i outside arbitration limits O N I Is this a Class Action Suit? Yes E No Is this an MDJAppeal? ® Yes M No A Name of Plaintiff/Appellant's Attorney: John A. Gill, Esq M ® Check here if you have no attorney(are a Self-:Represented 1Pro Se] Litigant) ` ^ Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your ! PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS 0 Intentional 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution 0 Debt Collection:Credit Card 0 Board of Assessment 0 Motor Vehicle fJ Debt Collection:Other 0 Board of Elections 0 Nuisance Dept.of Transportation 0 Premises Liability Statutory Appeal:Other S 0 Product Liability(does not include mass tort) 0 Employment Dispute: 0 Slander/Libel/Defamation Discrimination C 0 Other: 0 Employment Dispute:Other Ii Zoning Board T 0 Other: I U Other: O MASS TORT Breach of Builder uu Asbestos Agreement N bJ Tobacco = Toxic Tort-DES U Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste i� Other: 0 Ejectment GJ Common Law/Statutory Arbitration G B 0 Eminent Domain/Condemnation 0 Declaratory Judgment 0 Ground Rent fJ Mandamus 0 Landlord/Tenant Dispute Non-Domestic Relations 0 Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial 0 Quo Warranto 0 Dental 0 Partition 0 Replevin ® Legal 0 Quiet Title 0 Other: J Medical 0 Other: Other Professional: Updated 1/1/1011 QUALITY BUILDERS WARRANTY : IN THE COURT OF COMMON CORPORATION PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. r=r o r' r- CIVIL ACTION FRENCH BROTHERS,INC. -< r" �' DOCKET NO. M Q Defendants NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHER YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford St. P Carlisle PA 17013 7r 717-249-3166 v 313a-1U QUALITY BUILDERS WARRANTY IN THE COURT OF COMMON CORPORATION PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff VS. CIVIL ACTION FRENCH BROTHERS,INC. : DOCKET NO. Defendant COMPLAINT AND NOW, this 12th day of November, 2.014 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,(QBW) a Pennsylvania corporation engaged in the Ten Year New Home Warranty business with its principal place of business situate at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania, 17043. 2. Defendant, French Brothers Inc. (French) is a New Mexico Corporation engaged in the new home building business with its registered office at 1010 Zuni Drive, Alamogordo,NM 88310. 3. New home builders who become members of QBW offer warranties against specified defects in homes they construct to the purchasers of the homes. 4. Member builders agree to warrant that the homes they construct will be free from specified deviations from the QBW warranty standards. 1 5. On July 13, 2011 French applied for membership to the QBW program. 6. French executed a Builder Agreement in connection with its application to become a member of the QBW Ten Year Limited Warranty Program. French forwarded the Agreement to QBW's place of business in Cumberland County, Pennsylvania for acceptance and execution. 7. QBW accepted and executed the Builder Agreement at its place of business in Cumberland County, Pennsylvania on July 21, 2011. A true and correct copy of the Builder Agreement is attached hereto, incorporated herein and marked as Exhibit A. 8. French was approved as a member of the QBW program and proceed to enroll homes it constructed in the QBW program pursuant to its Builder Agreement. 9. In connection with its membership, French submitted for enrollment a home located at 350 Palo Duro, Alamogordo, NM 88310 with an effective date of warranty of October 14, 2011. The purchaser was identified by French as Mr. Martinez. (Martinez). 10. During the first year of occupancy Martinez notified the French of issues with his home which were indicative of soil settlement. 11. French did not properly address the issues but rather performed cosmetic repairs. 12. As a result, the Martinez home continued to experience settlement which resulted in significant damage to the load bearing segments of the home. 13. Mr. Martinez subsequently filed a complaint with QBW in September 2014 pursuant to the terms of the QBW Limited Warranty Agreement issued to Mr. Martinez by French. 2 14. QBW conducted an inspection of the Martinez residence and concluded that a major structural defect existed as defined under the terms of the Limited Warranty Agreement and that the home needed to be repaired. 15. French recommended a repair contractor for an estimate,which QBW contacted. 16. The contractor provided estimated cost to repair for the Martinez residence of $73,630. 17. Pursuant to the term of the Builder Agreement, including Section C, French is responsible for undertaking repairs and/or paying the cost of repairs of the Martinez residence. 18. QBW informed French that it was responsible to repair or pay for the cost of repairs pursuant to its obligations under the Builder Agreement. 19. As of the date of filing the within Complaint, French has refused to undertake repairs, or pay the reasonable cost of repairs. 20. As a result of French's failure to undertake repairs QBW is responsible for the repairs or paying the reasonable cost of repairs, estimated in the amount of$73,630. 21. French's failure to repair the Martinez property, or pay for the reasonable cost to repair, is a breach of its Builder Agreement with QBW. 22. QBW also seeks attorney's fees as authorized by Section B, 5, of the Builder Agreement. 23. Jurisdiction is proper in the Pennsylvania Courts since Section E, 5 of the Builder Agreement indicates, "This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement 3 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 French Brothers Inc., in the sum of $73,630 plus attorney's fees as authorized by Section B, 5 of the Builder Agreement and such other relief deemed as appropriate by the Court. Respectfully Submitted, A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation 4 VERIFICATION I, JOSEPH M. OLSHEFSKI, President of Quality Builders Warranty Corporation, hereby certify and state that the factual allegations in the foregoing Complaint are 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 1.8 Pa. C.S. §4904, relating to unsworn falsification to authorities. Quality Buildem Warranty Corporation Date: / a 1 By: � seph M. Olshefski, President EXHIBIT A QUALITY BUILDERS WARRANTY CORPORATION 325 North Second Street,Wormleysburg, PA 17043 BUILDER AGREEMENT AGREEMENT made this 13 day of July, 2011, between QUALITY BUILDERS WARRANTY CORPORATION, a Pennsylvania corporation, herein referred to as "QBW", and French Brothers, Inc. (Sole Proprietor), of 1010 Zuni Dr., Alamogordo, NM 88310 , 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 protects and promotes its good-will by careful selection of builders to participate In its warranty program. 3. Builder desires to participate in QBW's warranty program and, to that and, 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. Builders membership shall commence on the date of Execution by QBW and shall continue until terminated by either party in accordance with the terms of this Agreement. QBW reserves the right to rescreen Builder annually. If QBW determines that Builder does not meet its approval standards upon rescreening then QBW may terminate Builder's membership and the provisions of Section B,paragraph 6,shall be in effect. SECTION 9.HOME ENROLLMENT: JUL 14 } I 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 Builders Principals common control, constructs in any state in which QBW operates and agrees to pay all fees required by QBW in the enrollment process,which fees shall be non-refundable. 2. Procedures. Builder agrees to enroll its homes according to procedures established by QBW. If Builder fails to do so, Builder will be subject to additional fee assessments. 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. 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 direction 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 established 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 purchaser must complete and sign the Enrollment Form at closing,and Builder agrees to furnish QBW with a copy of the signed Enrollment Form within ten (10) days of closing. Builder agrees not to charge the purchaser directly for the cost of the enrollment fee. A home will not be considered enrolled until QBW receives and approves the fully executed and completed Enrollment Form, payment of all fees,and an approved final inspection. 3. Reservation of Power of Review. QBW reserves the right to reject any home submitted for enrollment in the program if(a) the Builder is not a member in good standing; (b) the home is not constructed in accordance with the Warranty Standards or building codes specified in the Limited Warranty Agreement; (c)the Builder did not observe the enrollment procedures; (d)the builder misstates or misrepresents any information;(e)the Builder 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. S. Breach and Remedy. if Builder fails to comply with the obligations under this Agreement or fails to enroll any eligible home as required by this Agreement,QBW may seek specific enforcement or other appropriate relief in legal or equitable proceedings, even if this Agreement has been terminated. if, in QBW's opinion, Builder experiences an adverse change In financial position, Builder agrees to provide alternate forms of security requested by QBW. 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. IIIIII 1111 IIIIII Illi IUIiI ILII IIIIII IIII!IIIiI fl� dill(IIII Illll Illli VIII Illil VIII ILIi!IIII!� IIIIII VIIi IIIIII VIII IIII IIIIII IIII VIII IIIIII IIII ill 99947440 Q8W OF 003(10109 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 paragraph in this Agreement, b. Suspension or Termination. QBW may terminate, or at its option, suspend Builder's participation in QBW's Warranty Program,or any entity or individual with which Builder is affiliated, if QBW determines that Builder has done any of the following, which shall be deemed a breach of this Agreement: (a) fails to comply fully with any provision 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 meet its obligations under this Agreement including cooperating 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; (1) fails to comply with the enrollment procedures established by QBW; U� (j) fails to provide proof that enrolled homes have been subjected to required inspections; (k) fails to respond to purchaser complaints in a timely manner and as provided in the Limited Warranty Agreement; (1) fails to perform its obligations with professional competence or conduct Its operations from a position of financial strength and stability; (m)fafls 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 termination and that the QBW Warranty Program has been withdrawn. Upon request, Builder shall immediately return to QBW all materials supplied by QBW and all materials 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 and additional fees,as calculated by QBW,if not paid 30 days thereafter. 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, however, QBW reserves the right to terminate any suspended Builder. 8. Voidability. QBW reserves the right to void any enrollment if Builder misstates or misrepresents any Information In Its application 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 falls to enroll all units of a multi unit building. SECTION C.BUILDER'S OBLIGATIONS: 1. Construction Obligations. (a) Builder shall construct ail homes in conformity with the Warranty Standards provided in the Limited Warranty Agreement, and/or in conformity with approved building codes and other standards established by QBW and in effect at the beginning of construction of the enrolled home. QBW reserves the right to establish special requirements for escrow payments or other means of protection with respect to any homes constructed by Builder which QBW determines to be "High Risks', or with respect to Builder's adverse change in financial position. QBW OF Oo3(10109) (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 professional 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, however, the Builder agrees to reimburse QBW and/or Insurer for all expenses Incurred In performing their obligations, including 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 expiration 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,provided that any reference to QBW or Its Insurer, whether contractual or advertising copy, be approved by QBW in writing in advance of its SECTION D.INFORMAL DiSPUTE PROCEDURE: � trL `"zj I 1 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 procedure 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 good and workmanlike manner,such failure shall be considered to be a refusal to perform governed by paragraph C2 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 partnership 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. 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. 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 successors 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, modified, or altered except In writing signed by the;parties and endorsed hereon. OBW OF OD3(10109) 9. Failure of either party to insist upon compliance with any provision of this Agreement shall not constitute a waiver of that provision. 10Ai1 notices required hereunder must be in writing and sent by certified mail, postage prepaid, return receipt requested, to the recipient at the respective address Indicated on the front,or to whatever address the party may designate in writing. I 1.The effective date of this Agreement shall be the date of execution and acceptance by QBW. QUALIT BUIL E S WARRANTY CORPORATION t By Date of execution and acceptance by QBW July 21, 2011 Builder's Registration No. #370006 BUILDER French Brothers Inc. Date By <-- Sign Here nature of A thorized Represen - rile) a -el. (Plea a print name/Hile) (Email address) RATE i TERM AMENDMENT In consideration for receiving a reduced rate, Builder agrees to maintain its'membership in the QBW program for a period of 3 _ years to commence on the date this addendum is executed by QBW. Builder agrees to submit for enrollment all homes which Builder, Builder's Principals, or any entity under Builder's, or Builder's Principals common control, constructs during this term and any extensions. in exchange, Builder's rate will be $-I-3_0 /per thousand. The rate is provided based on Builder's anticipated volume. if Builders volume decreases, QBW reserves the right to increase the Builder's rate for the remaining term. If the Builder's rate is Increased for any other reason, Builder may terminate membership. This rate will not apply to buildings with five or more stories,which QBW will determine on a project by project basis.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 Frenchq Brothers Inc Date 3 By ignatu of Authorized Representative-Tille) J n ni►rv. y t-1`c rk C y (Please print name/utie) QUALITY BUILDERS WARRANTY CORPORATION Date July 21 2011 By— Please no a 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 QBW QF 003(10/09) QUALITY BUILDERS WARRANTY CORPORATION Plaintiff v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : DOCKET NO. 14-6564 FRENCH BROTHERS, INC. : CIVIL TERM Defendant AFFIDAVIT OF SERVICE BY MAIL On November 13, 2014, I mailed a true and correct Certified Copy of the Complaint by certified mail, return receipt requested to, French Brothers, Inc. Article # 7004 1350 0003 0402 7684, at their address. French Brothers, Inc. received the Complaint on November 17, 2014, as indicated by the receipt attached hereto as Exhibit "A". I make these statements pursuant to 18 Pa.C.S. 4904 relating to unsworn falsification to authorities and understand that false statements may be subject me to criminal penalties under that statute. Pe,:orrison, Secretary SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery Is desired. ■ Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the maiipiece, or on the front if space permits. 1. Article Addressed to: French r -others, Inc. 1010 Zdni Drive Alamogordo, NM 88310 COMPLETE THIS SECTION ON DELIVERY A. Signature X B. eceived by (Printed Name) C. Date of Delivery D. 4s IQ N e�ac l�i ] r7 delivery address different from item 1? 0 Yes If YES, enter delivery address below: 0 No D Agent 0 Addressee 3. Service Type D Certified Mall 0 Express Mall 0 Registered D Retum Receipt for Merchandise D Insured Mall 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 2. Article Number t t; i t (. ? r I f Y- f,.-, t: I 7004 ],350 0003 0402'76'84 I (Transfer from service label) PS Form 3811, February 2004 cD .11 0 Retum Reciept Fee (Endorsement Required) 0 Yes Domestic Retum Receipt U.S. Postal Service,., CERTIFIED MAILTM RECEIPT (domestic Mail Only; No Insurance Coverage Provided) For deliveryinformationvisit our website at www.usps.coms O Unftl C( A L U S _IE 111111,101111 11111,1111 111111,11111 Postage Certified Fee Restricted Delivery Fee (Endorsement Required) Total Postage & Fees L NOV 1 USPS 7 102595-02-M-1540 Sem To French Brothers, Inc. street AptW:04 or PO Box No. 1010 Zuni Drive cny, State, Alamogordo, NM 88310 See Reverse for Instructions PS Form 3800, June 2002 POST & SCHELL, P.C. BY: JOHN W. DORNBERGER, ESQUIRE E-MAIL: jdornberger@postschell.com I.D. # 69293 17 NORTH SECOND STREET 12TH FLOOR HARRISBURG, PA 17101-1601 717-731-1970 FACSIMILE: 717-731-1985 QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff, vs. FRENCH BROTHERS, INC., Defendant. ATTORNEYS FOR FRENCH BROTHERS, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 14-6564 ENTRY OF APPEARANCE Kindly enter the appearance of John W. Dornberger, Esquire, of Post & Schell, P.C. on behalf of Defendant French Brothers, Inc. relative to the above -captioned matter. Respectfully Submitted, POST & SCHELL, P.C. BY: DATED: December 8, 2014 JOHN . DORNBERGER, ESQUIRE E -Mail: jdornberger@postschell.com ATTORNEYS FOR FRENCH BROTHERS, INC. CERTIFICATE OF SERVICE I, John W. Dornberger, Esquire of Post & Schell, P.C., hereby certify that I am this day serving a true and correct copy of the foregoing Entry of Appearance upon the persons and in the manner set forth below: Via First -Class Mail John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 POST & SCHELL, P.C. John . Dornberger Dated: December 8, 2014 1 POST & SCHELL, P.C. BY: JOHN W. DORNBERGER, ESQUIRE E-MAIL: jdornberger@postschell.com I.D. # 69293 17 NORTH SECOND STREET 12TH FLOOR HARRISBURG, PA 17101-1601 717-731-1970 FACSIMILE: 717-731-1985 QUALITY BUILDERS WARRANTY CORPORATION, Plaintiff, vs. FRENCH BROTHERS, INC., Defendant. 12587915v1 TO PLAINTIFF: You are hereby notified to file a written response to the NEW MATTER and COUNTERCLAIM within twenty (20) days from Service hereof or a judgment may be entered against you. P? & SCHELL, P.C. By: Atto ey for Defendant ATTORNEYS FOR FRENCH BROTHERS, INC. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 14-6564 T1 a ANSWER, NEW MATTER AND COUNTERCLAIM OF DEFENDANT FRENCH BROTHERS, INC. TO THE COMPLAINT OF PLAINTIFF QUALITY BUILDERS WARRANTY CORPORATION Defendant French Brothers, Inc. ("Defendant" or "French Brothers"), by and through its attorneys, Post & Schell, P.C., hereby file this Answer, New Matter and Counterclaim to the Complaint of Plaintiff Quality Builders Warranty Corporation ("Plaintiff' or "QBW") as follows: 1. Plaintiff is Quality Builders Warranty Corporation (QBW), a Pennsylvania corporation engaged in the Ten Year New Home Warranty business with its principal place of business situate at 325 North Second Street, Wormleysburg, Cumberland County, Pennsylvania, 17043. RESPONSE: Admitted in part; denied in part. It is admitted that Plaintiff is Quality Builders Warranty Corporation. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and, accordingly, all such remaining allegations are denied. 2. Defendant, French Brothers Inc. (French) is a New Mexico Corporation engaged in the new home building business with its registered office at 1010 Zuni Drive, Alamogordo, NM 88310. RESPONSE: It is admitted only that the Defendant is French Brothers, Inc., a corporation organized and existing pursuant to the laws of the state of New Mexico which maintains an office at 1010 Zuni Drive, Alamogordo, New Mexico. All remaining allegations are denied as conclusions of law to which no response is required. 3. New home builders who become members of QBW offer warranties against specified defects in homes they construct to the purchasers of the homes. 2 12535241v1 RESPONSE: Without admitting the truth of the averments set forth in paragraphs 4 through 23 of the Complaint, admitted. 4. Member builders agree to warrant that the homes they construct will be free from specified deviations from the QBW warranty standards. RESPONSE: Denied as stated. The terms of the express agreement between French Brothers and QBW are set forth in the Builder Agreement entered into by and between these parties on July 13, 2011 ("Builder Agreement") and this document speaks for itself. See Exhibit "A" to Plaintiff's Complaint. 5. On July 13, 2011 French applied for membership to the QBW program. RESPONSE: Admitted. 6. French executed a Builder Agreement in connection with its application to become a member of the QBW Ten Year Limited Warranty Program. French forwarded the Agreement to QBW's place of business in Cumberland County, Pennsylvania for acceptance and execution. RESPONSE: It is admitted that French Brothers executed the Builder Agreement attached as Exhibit "A" to Plaintiff's Complaint in New Mexico and transmitted the Builder Agreement to QBW in Pennsylvania. After reasonable investigation, French Brothers is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and, accordingly, all such allegations are denied. 7. QBW accepted and executed the Builder Agreement at its place of business in Cumberland County, Pennsylvania on July 21, 2011. A true and correct copy of the Builder Agreement is attached hereto, incorporated herein and marked as Exhibit A. 3 12535241v1 RESPONSE: It is admitted only that QBW received the Builder Agreement attached as Exhibit "A" to Plaintiff's Complaint as executed by French Brothers in Pennsylvania and, thereafter, executed the Builder Agreement. After reasonable investigation, French Brothers is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and, accordingly, all such allegations are denied. 8. French was approved as a member of the QBW program and proceed to enroll homes it constructed in the QBW program pursuant to its Builder Agreement. RESPONSE: Admitted. 9. In connection with its membership, French submitted for enrollment a home located at 350 Palo Duro, Alamogordo, NM 88310 with an effective date of warranty of October 14, 2011. The purchaser was identified by French as Mr. Martinez. (Martinez). RESPONSE: Admitted. 10. During the first year of occupancy Martinez notified the French of issues with his home which were indicative of soil settlement. RESPONSE: Denied. It is denied that French Brothers received notification from Mr. Martinez during his first year of occupancy of the home located at 350 Palo Duro, Alamogordo, New Mexico ("Property") of issues indicative of soil settlement. 11. French did not properly address the issues but rather performed cosmetic repairs. RESPONSE: Admitted in part; Denied in part. It is denied that Mr. Martinez notified French Brothers in years one or two of his occupancy of the Property of issues indicative of soil settlement. It is denied further that French Brothers received notice from the owner of the Property of any alleged soil settlement conditions that arose from any failures of French Brothers to construct the home to applicable QBW standards during years one and two under QBW's 4 12535241v1 warranty for the Property. It is admitted that, on or about July 11, 2012, Ms. Martinez notified French Brothers of certain non-structural issues in the kitchen and entry way of the Property that were not related to soil settlement. French Brothers, thereafter, properly addressed and repaired these non-structural conditions that were not related to soil settlement in accordance with the terms of the Builder Agreement. 12. As a result, the Martinez home continued to experience settlement which resulted in significant damage to the load bearing segments of the home. RESPONSE: Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations and, accordingly, all such allegations are denied. To the extent any further response is required, it is denied that Mr. Martinez notified French Brothers during years one and two of his occupancy of the Property of any issues indicative of soil settlement. To the extent that settlement occurred at the Property that resulted in structural damage, such conditions arose in year three of the homeowners' occupancy and did not arise from French Brothers failure to construct the house to applicable QBW standards. 13. Mr. Martinez subsequently filed a complaint with QBW in September 2014 pursuant to the terms of the QBW Limited Warranty Agreement issued to Mr. Martinez by French. RESPONSE: It is admitted only that it was not until year three of occupancy of the Property that Mr. Martinez notified French Brothers of any issues indicative of soil settlement. 14. QBW conducted an inspection of the Martinez residence and concluded that a major structural defect existed as defined under the terms of the Limited Warranty Agreement and that the home needed to be repaired. 5 12535241v1 RESPONSE: Admitted in part; denied in part. It is admitted that French Brothers inspected conditions at the Property that arose in year three of the QBW warranty and determined that repairs were necessary. It is denied that these conditions arose from French Brothers failure to construct the house in accordance with QBW standards. It is denied that French Brothers is responsible under the terms of the Builder Agreement for the repairs of these conditions concerning which Mr. Martinez first notified French Brothers about in year three of the QBW warranty for the Property. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and, accordingly, all such allegations are denied. 15. French recommended a repair contractor for an estimate, which QBW contacted. RESPONSE: Admitted in part; denied in part. It is admitted that French Brothers recommended a repair contractor to QBW with respect to the warranty claim made by Mr. Martinez in year three of his occupancy relating to the Property. It is denied that French Brothers is responsible under the terms of the Builder Agreement for the repairs of the conditions that Mr. Martinez notified French Brothers about in year three of the QBW warranty for the Property and also denied that these conditions arose from French Brothers failure to construct the house in accordance with QBW standards. 16. The contractor provided estimated cost to repair for the Martinez residence of $73,630. RESPONSE: Without admitting that French Brothers is responsible under the terms of the Builder Agreement for the repairs of the conditions that Mr. Martinez notified French Brothers about in year three of the QBW warranty, admitted. 6 12535241v1 17. Pursuant to the term of the Builder Agreement, including Section C, French is responsible for undertaking repairs and/or paying the cost of repairs of the Martinez residence. RESPONSE: Denied. Under the terms of the Builder Agreement, French Brothers has no obligation or responsibility with respect to structural defects that arose during years three through ten of Mr. Martinez's occupancy of the Property under the QBW Warranty Program. It is denied that Mr. Martinez provided notice to French Brothers of structural defects relating to soil settlement before the expiration of two years of QBW's warranty for the Property. It is denied that conditions at the Property relating to soil settlement, whether structural defects or otherwise, arose before the expiration of two years of QBW's warranty or arose from French Brothers failure to construct the house in accordance with QBW standards. French Brothers has no obligation under the Builder Agreement to repair alleged structural defects of the Property that arose in year three of the QBW warranty. 18. QBW informed French that it was responsible to repair or pay for the cost of repairs pursuant to its obligations under the Builder Agreement. RESPONSE: It is admitted only that QBW informed French Brothers that QBW believed that French Brothers was responsible to undertake repairs with respect to the Property under the Builder Agreement. French Brothers denies any obligation under the terms of the Builder Agreement with respect to structural defects that did not arise until after the expiration of year two of the QBW warranty for the Property. 19. As of the date of filing the within Complaint, French has refused to undertake repairs, or pay the reasonable cost of repairs. 7 12535241v1 RESPONSE: Denied. French Brothers denies any obligation under the terms of the Builder Agreement with respect to structural defects that did not arise until after the expiration of year two of the QBW warranty for the Property. 20. As a result of French's failure to undertake repairs QBW is responsible for the repairs or paying the reasonable cost of repairs, estimated in the amount of $73,630. RESPONSE: Denied. The corresponding allegations are denied as conclusions of law to which no response is required. 21. French's failure to repair the Martinez property, or pay for the reasonable cost to repair, is a breach of its Builder Agreement with QBW. RESPONSE: Denied. The corresponding allegations are denied as conclusions of law to which no response is required. 22. QBW also seeks attorney's fees as authorized by Section B, 5, of the Builder Agreement. RESPONSE: Denied. The corresponding allegations are denied as conclusions of law to which no response is required. 23. Jurisdiction is proper in the Pennsylvania Courts since Section E, 5 of the Builder Agreement indicates, "This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a Court of competent jurisdiction. Builder hereby consents to the personal jurisdiction of the Pennsylvania courts." RESPONSE: Denied. Notwithstanding Section E of the Builder Agreement, to the extent that this Honorable Court determines, in the interest of substantial justice, that this matter should be heard in state court in New Mexico, this Court may dismiss this matter. See 42 Pa. 8 12535241v1 C.S. § 5322(e). Accordingly, Defendant preserves and does not waive its objection to this Honorable Court's jurisdiction over the instant matter because a convenient appropriate forum exists. WHEREFORE, Defendant French Brothers, Inc., respectfully requests that this Honorable Court dismiss the Complaint of Plaintiff Quality Builders Warranty Corporation and enter judgment in favor of Defendant French Brothers, Inc. together with other such relief as the Court may deem appropriate. NEW MATTER 1. The answers and averments of Defendant in paragraphs 1 through 23 are incorporated herein by reference as if set forth at length. 2. Plaintiff's Complaint should be dismissed in its entirety for failure to state a claim upon which relief can be granted. 3. To the extent that this Honorable Court determines, pursuant to 42 Pa.C.S. § 5322(e) and in the interest of substantial justice, that this matter should be heard in state court in New Mexico, this Court may dismiss this matter. Accordingly, by filing this Answer, Defendant preserves and does not waive its objection to this Honorable Court's jurisdiction over the instant matter because a convenient appropriate forum exists. 4. French Brothers and QBW entered into a Builder Agreement under which French Brothers became a member of the QBW Warranty Program on July 13, 2011. A true and correct copy of the Builder Agreement is attached hereto as Exhibit "A". 5. Defendant reserves all of defenses, limitations and rights set forth in the Builder Agreement. 9 1253524Iv! 6. On or about October 14, 2011, QBW accepted and enrolled a home constructed by French Brothers and purchased by Mr. Ruben Martinez ("Mr. Martinez") located at 350 Palo Duro, Alamogordo, New Mexico ("Property") into the QBW ten year warranty program, effective October 14, 2011. 7. Defendant has fully performed its obligations under the Builder Agreement with respect to the Property. 8. French Brothers is obligated to perform at its own expense repairs relating to warranty claims under QBW warranty program provided that notification is given to French Brothers by the homeowner during years one and two of the QBW warranty program for any given home. 9. The QBW warranty for the Property was issued and became effective on October 14, 2011. 10. Accordingly, French Brothers' responsibility for warranty claims for the Property expired on October 14, 2013. 11. None of the conditions at the Property for which Mr. Martinez provided notice to French Brothers before October 14, 2013 were indicative of soil settlement. 12. QBW is responsible to perform repairs at its own expense of structural defects that arose at the Property after the expiration of two years under the QBW warranty for the Property which was October 14, 2013. 13. French Brothers has no obligation with respect to structural defects that arose at the Property after October 14, 2013 under the terms of the Builder Agreement. 14. French Brothers did not receive notice from Mr. Martinez with respect to any major structural defects relating to the Property prior to October 13, 2013. 10 12535241v1 15. French Brothers did not receive notice from Mr. Martinez with respect to any issues indicative of soil settlement at the Property prior to October 13, 2013. 16. At no time prior to October 13, 2013, did Mr. Martinez, QBW or any other person or entity provide French Brothers with notice of any issues at the Property indicative of soil settlement. 17. The warranty claims relating to soil settlement defects at the Property asserted by Mr. Martinez under the QBW warranty first arose in year three of QBW warranty and did not arise from a failure of French Brothers to construct the home to applicable QBW standards or to adhere to the Builder Agreement. 18. The warranty claims relating to soil settlement defects at the Property asserted by Mr. Martinez under the QBW warranty in year three of QBW warranty are the responsibility of QBW under the terms of the Builder Agreement because these defects did not arise before the expiration of year two of the QBW warranty. 19. Plaintiffs claims are barred and/or limited by the Doctrine of Spoliation of Evidence. 20. Plaintiffs claims are barred and/or limited because Plaintiff has failed to join all parties necessary for a just adjudication of this controversy. 21. Plaintiffs claims for future damages, if any, are barred and/or limited as not ripe and speculative. 22. Plaintiffs claims are barred and/or limited by the doctrines of accord and satisfaction, release and waiver. 23. Plaintiffs claims may be barred and/or limited to the extent that Plaintiff has not mitigated its damages. 11 12535241v1 WHEREFORE, Defendant French Brothers, Inc., respectfully requests that this Honorable Court dismiss the Complaint of Plaintiff Quality Builders Warranty Corporation and enter judgment in favor of Defendant French Brothers, Inc. together with other such relief as the Court may deem appropriate. COUNTERCLAIM 1. The answers and averments of Defendant in paragraphs 1 through 23 and in New Matter 1 through 24 are incorporated herein by reference as if set forth at length. 2. Pursuant to Section B of the Builder Agreement, beginning on August 26, 2014 through November 4, 2014, French Brothers submitted applications to QBW for the enrollment of seven (7) homes in QBW's warranty program together with a payment of warranty fees in the amount of $1,524.62 with respect to the following properties: 1024 Heather Roswell, NM 88203 2475 Wyatt Way Alamogordo, NM 88310 2408 Wyatt Way Alamogordo, NM 88310 834 Copper Ridge Alamogordo, NM 88310 2404 Wyatt Way Alamogordo, NM 88310 896 Valencia Alamogordo, NM 88310 1312 Alicia Ln. Roswell, NM 88201 3. QBW subsequently notified French Brothers that the seven (7) homes would not be enrolled into the QBW warranty program without certain additional information from French Brothers. 4. By letter dated November 4, 2014, French Brothers advised QBW that the additional documentation sought from French Brothers relating to these seven (7) homes did not exist and, therefore, could not be provided. 12 12535241v1 5. On or about November 10, 2014, French Brothers expressly notified QBW that French Brothers was suspending its membership in the QBW warranty program. 6. Subsequently, QBW notified French Brothers on December 3, 2014 that QBW converted the suspension status to a termination of the membership of French Brothers in the QBW warranty program under the Builder Agreement. 7. The seven (7) homes were never enrolled by QBW in the QBW warranty program. However, QBW has not refunded the warranty fees paid by French Brothers in the amount of $1,524.62. 8. Previously, by letter dated December 1, 2014, French Brothers had requested a refund of the warranty fees paid in the amount of $1,524.62 for the seven (7) homes identified in paragraph two above. Pursuant to B.2. of the Builder Agreement, the warranty fees are not refundable only if the relevant homes are not enrolled in QBW's program. 9. In its letter of December 3, 2014, QBW advised French Brothers that it would refund the warranty fees for the seven (7) homes identified in paragraph two above upon French Brothers supplying documentation that the seven (7) homes had been enrolled in another warranty program. 10. The terms of the Builder Agreement do not require French Brothers to supply documentation that homes have been placed by French Brothers into an alternative builders warranty program as a condition precedent to receiving a refund from QBW of warranty fees paid for homes that QBW elected not to enroll in the QBW warranty program. 11. Accordingly, pursuant to the Builder Agreement, QBW must refund the warranty fees for the seven (7) properties to French Brothers. 13 12535241v1 12. To date, QBW has not paid the refund in the amount of $1,524.62 to French Brothers. 13. Failure to provide the refund is a material breach of the terms of the Builder Agreement. 14. As a consequence of QBW's breach of the Builder Agreement in not providing a refund to French Brothers in the amount of $1,524.62 with respect to the warranty fees paid by French Brothers with respect to the seven (7) houses identified in paragraph two above, French Brothers has and shall continue to suffer from damages. WHEREFORE, Defendant French Brothers, Inc. respectfully requests that this Honorable Court enter judgment in its favor against Quality Builders Warranty Corporation in the amount of $1,524.62, including attorney's fees and other such relief as this Court may deem appropriate. Respectfully Submitted, POST & SCHELL, P.C. BY: DATED: December 29, 2014 14 1253524Iv1 JO W. • NO'S ' _ _' , "SQUIRE E -Mai : jdornberger@postschell.com ATTORNEYS FOR FRENCH BROTHERS, INC. VERIFICATION 1. Tommy L. French, hereby state that I am the President for French Brothers, Inc..: verify the foregoin2 pleading is true and correct to the best of my personal knowledge. information, and belief. The verification is made subject to the penalties of 18 Pa. CS. § 4904 relating to unsworn falsification to authorities. Dated: 125352€11v1 French, 1 resid Fre eh Brothers, .Ene• CERTIFICATE OF SERVICE I, John W. Dornberger, Esquire of Post & Schell, P.C., hereby certify that I am this day serving a true and correct copy of the foregoing Answer, New Matter and Counterclaim of Defendant French Brothers, Inc. to the Complaint of Plaintiff Quality Builders Warranty Corporation upon the persons and in the manner set forth below: Via First -Class Mail John A. Gill, Esquire 325 North Second Street Wormleysburg, PA 17043 POST & SCHELL, P.C. John W. Dornberger Dated: December 29, 2014 12535241v1 John A. Gill, Esquire 325 North Second Street : _ i 1 Li Wormleysburg, PA 17043 (717) 737-2522 #41532 y�'`,sJ (L..',''tl;` Attorney for Plaintiff, Quality Builders Warranty Corporation QUALITY BUILDERS WARRANTY : IN THE COURT OF COMMON CORPORATION : PLEAS CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiff • vs. : CIVIL ACTION FRENCH BROTHERS, INC. : DOCKET NO. 14-6564 Defendant • • • PLAINTIFF'S PRELIMINARY OBJECTION TO DEFENDANT'S ANSWER CONTAINING NEW MATTER AND COUNTER CLAIM FOR LACK OF SPECIFICITY PURSUANT TO P.A.R.C.P 1028(a)(3) AND NOW, comes Plaintiff, Quality Builders Warranty Corporation (QBW), and files the within Preliminary Objection to Defendant, French Brothers, Inc.'s (French), Answer, New Matter and Counter Claim pursuant to P.A.R.C.P 1028(a)(3), and avers in support hereof the following: 1. QBW is a Pennsylvania corporation engaged in the ten year new home warranty business with its principal place of business in Cumberland County Pennsylvania. 2. French is a New Mexico corporation engaged in the new home building business. 3. QBW instituted the within action against French on November 12, 2014, for breach of its Builder Agreement. 4. The breach stems from French's failure to undertake warranty repairs at a home constructed by French. 5. On December 30, 2014, French filed an Answer containing New Matter and Counter Claim. 6. Paragraphs 19-23 of French's New Matter contains the following allegations: 19. Plaintiffs claims are barred and/or limited by the Doctrine of Spoliation of evidence. 20. Plaintiff's claims are barred and/or limited because Plaintiff has failed to join all parties necessary for a just adjudication of this controversy. 21. Plaintiff's claims for future damages, if any, are barred and/or limited as not ripe and speculative. 22. Plaintiffs claims are barred and/or limited by the doctrines of accord and satisfaction,release and waiver. 23. Plaintiffs claims may be barred and/or limited to the extent that Plaintiff has not mitigated its damages. 7. French's pleading contain no facts to support the conclusory allegations in paragraphs 19-23 of its New Matter and QBW requests a more specific pleading to adequately identify the basis for French's allegations. 8. In the event French is unable to provide factual substantiation for the defenses raised, QBW requests that the allegations be stricken. WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, requests that Defendant, French Brothers, Inc.,be required to file a more specific Pleading containing factual support for the defenses raised in paragraphs 19-23 of its New Matter. In the alternative, if Defendant French Brothers, Inc., fails to provide factual support, it is requested that the defenses raised in paragraphs 19-23 be stricken. Respectfully Submitted, Jo n A. Gill, Esquire 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 Plaintiff's Preliminary Objection to Defendant's Answer Containing New Matter and Counter Claim for Lack of Specificity Pursuant to P.A.R.C.P 1028(a)(3), 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: John W. Dornberger, Esquire Post& Schell 17 North Second Street 12th Floor Harrisburg,PA 17101-1601 Attorney for Defendant, French Brothers, Inc. Date: / //S �' < /61./U_A / P7__.141 orrison, Secretary