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HomeMy WebLinkAbout05-6285 . . QUALITY BUILDERS WARRANTY CORPORATION, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA Plaintiff vs. : CIVIL ACTION R.R. BROWNING ENTERPRISES, INC. dba BORAY CONSTRUCTION, INC. : DOCKET NO. {)~-;. tP;;l'6S CcJ 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 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. Carlisle, PA 17013 717-249-3166 . . QUALITY BUILDERS WARRANTY CORPORATION, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. CIVIL ACTION R.R. BROWNING ENTERPRISES, INC. dba BORAY CONSTRUCTION, INC. DOCKET NO. ('0- C). I'{ Defendant COMPLAINT AND NOW, this 16th day of November, 2005 comes the Plaintiff, Quality Builders Warranty Corporation (QBW) and files the within Complaint against the above named Defendant and avers in support hereof the following: 1. Plaintiff is Quality Builders Warranty Corporation, a Pennsylvania corporation engaged in the Ten Year New Home Warranty business with its principal place of business situate at 325 North Second Street, Wormleyburg, Cumberland County, Pennsylvania, 17043. 2. Defendant, R.R. Browning Enterprises, Inc. dba Boray Construction, Inc. (Builder) is a Georgia corporation engaged in the new home building business with its principal place of business situate 515 West Solomon Street, Griffin, GA 30223. 3. On February 8, 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 8, 2005. A copy of said document is attached hereto incorporated herein and marked as "Exhibit I". . . 4. Builder has breached its Agreement with QBW by failing to emoll all homes as required. 5. Section B 1 of the Builder Agreement executed by Builder states, "Builder agrees to enroll in the program every home Builder, Builder's Principals, or any entity under Builders or Builder's Principals common control constructs." (See Exhibit 1). 6. The Builder Agreement states in Section B 5, "If Builder fails to enroll any eligible homes as required by this Agreement, QBW may seek specific performance or other appropriate relief in legal or equitable proceedings." (See Exhibit I). 7. Builder's failure to emoll 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 8, 2005 to February 8, 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 $25,000. 9. QBW also seeks attorney's fees as authorized by Section B 5 of the Builder Agreement. 10. Jurisdiction is proper in the Pennsylvania courts since Section E 5 of the Builder Agreement indicates, "This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. All suits instituted under this Agreement shall be brought in Pennsylvania in a court of competent jurisdiction. Builder hereby consents to the personal jurisdiction of the Pennsylvania courts." WHEREFORE, Plaintiff, Quality Builders Warranty Corporation, demands judgment against R.R. Browning Enterprises, Inc. dba Boray Construction, Inc. as follows: . . 1. That the Builder Agreement as amended executed by Defendant RR Browning Enterprises, Inc. dba Boray Construction, Inc. be specifically enforced to require R.R Browning Enterprises, Inc. dba Boray Construction, Inc. to enroll all homes they construct for the period February 8, 2005 through February 10, 2010 in accordance with the Builder Agreement as amended. 2. In the alternative that Defendant RR. Browning Enterprises, Inc. dba Boray Construction, Inc. be ordered to pay damages equal to warranty fees, which QBW was entitled to based upon homes projected for the period February 8, 2005 to February 8, 2010, said amounts to be in excess of $25,000.00. 3. Attorney's fees as authorized by Section B 5 ofthe Builder Agreement. 4. Such other relief as deemed appropriate by the court. Respectfully Submitted, d~ J. Gill, Esquire Quality Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 (717) 737-2522 #41532 Attorney for Plaintiff Quality Builders Warranty Corporation rGA. QUArrrY t~~ WARRANTY caeoRATION '4Ir B~~LDER AGREEMENT AGREEMENT made this '-/ t1- day .of '-.J <1- n t.1'I ....~ ,20 CI-/ , between QUALITY BUILDERS WARRANTY CORPORATION, a nnsylvania cerp atien, herein referred te as "QBW," ~ and ' .Lh,C i1der: (indicate whet er a corpora on, partners ip, in IVI ual or other) ,.of S I) l.l)e-~+- ~ /('Ii'N'r\ Address .3()~~ 3 herein referred te as "Builder." Zip C'C)nWtrJ CA State SECTION A. MEMBERSHIP AND TERM: 1. QBW administEl~a pregram whereby heme builders registered with QBW enrell hemes they censtruct in the pregram and purchasers eHhese hemes are pretected by a warr9pty"gain?t .certain specified defects. 2. In .order te develep and maintain a geed reputatien fer previdipg pretectien te purchasers .of well-built hemes, QBW pro- tects and premetes its goed-will by caref~1 sElleGiign .of builders t.o participate in its warranty pregram. 3. Builder desires te participate in QB\!y:~.)!",a.'T~lltYpregram and, te. that end, agrees te abide by the provisiens .of this Agreement and te cenfenn its behavidrte.'th~' standards expressed herein and in the Limited Warranty Agreement. Builder warrants that all infermatien supplie~te OBW in cennectien with its applicatien is true and cerrect. 4. All registratien fees (initial and annual rescreening) are set by QBW at its discreti.on and are nen-refundable. 5. QBW, upen executing this Agreement, has accepted Builder as a member .of its warranty pregram, subject te the Builder's continuing perfermance .of ~SOl:>ligatien under this Agreement. 6. Builder's membership shalf c;o'mmence en the date .of Executien by QBW and shall centinue until terminated by either party in accerdance with thetefrms .of this Agreement. QBW reserves the right te rescreen Builder annually. If QBW deter- mines that Builder dees nbt meet its approval standards upen rescreening then QBW may terminate {3uilder's member- ship and the provisiens of Sectien B, paragraph 6, shall be in effect. SECTION B. HOME. ENROLLMeNT: 1. Requirements. As part ?tit~.participatien in QBW's warranty program, subject to'QBW'sacceptance, Builder agrees te enroll in the pregra~ElYe'iy~eme, Builder, Builder's Principals, .or any entity under Builder's, .or Builder's Principals cemmen centrol construCts"i1"anystate in which QBW .operates and agrees te pay all fees required by QBW in the enrell- ment precess, which fees:~ilU be. nen-refundable. 2. Procedures. Builder aQr~:~~ !9;enroll its hemes accerding te procedures established by QBW Builder may enroll hemes currently under constructiOl{a.~.~hemes cempleted but net seld .or .occupied (as efthe. date .of this Agreement .or the date .of reacceptance fellewinQ}.p~r!Ocf .of suspensien .or nen-participatien) provided that enrolfment is made within 45 days .of executien .of this Agreemientqr..reacceptance, and QBW has inspected and appreved the heme. Hemes which remaii'IJri;<.!, !3uilder's inventery lenger than 18 menths must be enrolled by the end .of the 19th menth frem constructien start date ancf medel hemes must be enrolled en the date .of the Certificate .of Occupancy .or use as a medel. whichever is earlier te qUalify ferElnrollment. The warranty(s) will be issued tethe Builder and the unexpired pertien .of the warranty will autematicaUY tranlifElcte the purc~aser. . When enrolling ether than a detac~f:ld single falT)ily dwelling, Builder shall enrell each individual unit .of any multiunit dwelling such as but net limited te duplexes, te\l'mholJses and cendeminiums. If membership is terminated, at the direc- tien .of QBW, Builder agrees te enroll any remaining Units net enrelled at the time .of terminatien. Fer each heme enrolled, the Builder shall pay a warranty fee as determined by QBW within the time perieds estab- lished by QBW All warranty fees are nen-refundable. A minimum warranty fee .of $150.00 shall apply. QBW will provide Builder with a cepy .of the Limited Warranty Agreement and Enrellment Ferm. Builder and pur- chaser must cemplete and sign the Enrollment Ferm at clesing. and Builder agrees te furnish QBW with a copy .of the signed Enrollment Fenn within ten (10) days .of c1esing. Builder agrees net te charge the purchaser directly fer the cest .of the enrellment fee. A heme will not be considered enrolled until QBW receives and approves the fully executed and cem- pleted Enrellment Ferm, payment .of all fees, and an approved final inspectien. 3. Reservatian .of Pawer .of Review. QBW reserves the right te reject any heme submitted fer enrellment in the pregram if (a) the Builder is net a member in geed standing; (b) the home is net constructed in accerdance with the Warranty Standards .or building cedes specified in the Limited Warranty Agreement; (c) the Builder did net .observe the enrollment precedures; (d) misstates .or misrepresents any infermatien; (e) in any way fails te comply with the terms .of this Agreement. 4. Assignment .of Rights. If a purchaser files a Cemplaint pursuant te the Limited Warranty Agreement which the Builder fails te correct, the Builder hereby assigns te QBW .or its insurer, as the case may be, any rights which Builder may have~t a supplier, manufacturer, subcentracter .or ether persen fer werk perfermed .or materials supplied in connectien. .' at claim. Builder agrees te coeperate fully with QBW and te provide QBW with all infermatien which it requests PEl~ g te the claim. If Builder fails te se ceeperate, Builder agrees te cempensate and indemnify QBW fer any dama~l!sustained by such lack .of ceeperatien. \~. - . ':i 5. Breach and Remedy. I(Builder 'fails rAolI any eligible home as required by this I Anent, OBW m'ay seek specific enforce, ment or other appropriate relief in I~r equitable proceedings, even if this Ag~nt has been terminated. Furthennore, Builder agrees to indemnify and hold harmless OBW 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 OBW for the breach of this Agreement, as evidenced by an affidavit signed by an officer of OBW setting forth the amounts then due, plus attorney's fees incurred by OBW, with costs of suit and release of errors. Such authority shall not be exhausted by anyone 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 OBW may elect to proceed under this or any other para- graph in this Agreement. 6. Suspension or Termination. OBW may terminate, or at its option, suspend Builder's participation in OBW's Warranty Program, or any entity or individual which Builder is affiliated, if OBW 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 OBW'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 OBW within ten (10) days after it receives a written request from OBW for such assurance that (within a reasonable timetable established or approved by OBW) 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; (I) fails to otherwise cooperate in the operation of the OBW Program in accordance with the rules and regulations of the OBW Program; (g) fails to provide timely proof of compliance with this Agreement, as and when requested by OBW; (h) fails to comply with OBW Warranty Standards and building codes as stated in the Limited Warranty Agreement; (i) fails to comply with the enrollment procedures established by OBW; OJ 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 OBW 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 (0) misstates or misrepresents any information in connection with its application or in the rescreening process. OBW reserves the option to reinstate terminated affiliates of the primary, terminated Builder if OBW determines that the terminated Builder or its principals are not in a position to control the affiliated Builder. Termination of Builder by OBW 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 OBW Warranty Program nor offer the OBW 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 OBW Warranty Program has been withdrawn. Upon request, Builder shall immediateiy return to OBW all materials supplied by OBW and all material making reference to OBW. Should Builder fail to take these steps, it shall indemnify and hold harmless OBW 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 OBW at the rate of 18% per annum on all sums due to OBW hereunder if such sums are not paid within 30 days of demand by OBW. Builder may terminate this Agreement upon 30 days advance written notice to OBW. If so terminated by Builder or by OBW, 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 OBW possesses a reasonable belief that reason exists to terminate or suspend a Builder for violation of this Agreement, OBW may immediately terminate or suspend the Builder by providing it with written notice. If OBW elects to suspend the Builder, such suspension will remain in effect until Builder has cured all defects to OBW's satisfaction, how- ever, OBW reserves the right to terminate any suspended Builder. 8. Voidability. OBW 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. Coristl"Uction Obligations. Following are the Builder's obligations with respect to OBW's Warranty Program: (a) Builder ..shall construct all homes in conformity with the Warranty Standards provided in the Limited Warranty ~ . . Agreement, and/or in conform it. approved building codes and other sti.dS established by OBW and in effect at the beginning of constructio the enrolled home. OBW reserves the r to establish special requirements for escrow payments or other means of protection with respect to any homes constructed by Builder which OBW deter- mines to be "High Risks." (b) Builder agrees to have all homes inspected, as required by OBW, and to pay all fees for the inspection and to provide evidence of inspection as and when required by OBW. OBW shall provide inspectors or shall approve governmental inspectors. (c) OBW 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 OBW and/or its Insurer for any losses or damages OBW and/or its Insurer may suffer as a result of the use of fire retardant treated plywood on any building enrolled under the OBW Ten Year Warranty Program. This will include all claims and liability for losses, damages and expenses which OBW and/or its Insurer may sustain, incur, payor 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 OBW 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 OBW. 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 OBW Warranty Program and this Agreement which includes meeting the warranty standards upon notice from the Purchaser without the necessity of OBW intervention. During years one and two under the OBW Warranty Program, if the Builder fails or refuses to perform its obligations in accordance with the Limited Warranty Agreement or this Agreement, OBW will perform the Builder's obligations, how- ever, the Builder agrees to reimburse OBW 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. OBW and/or Insurer reserve all rights of subrogation. During years three through ten under the OBW Warranty Program, OBW will perform its obligations with respect to major structural defects as set forth and defined in the Limited Warranty Agreement ~ithout 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 OBW 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 OBW standards or adhere to Builder's responsibilities under the Builder Agreement. If the Builder repairs a major structural defect during years one or two, OBW must be notified. Once notified, OBW will perform a compliance inspection. 3. Builder is authorized to advertise its membership in the OBW Warranty Program and to use its Logo in its business, pro- vided that any reference to OBW or its insurer, whether contractual or advertising copy, be approved by OBW 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 resoive compiaints 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 falls 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 pa~n _ ship between the parties. None of the parties, nor any of their employees or agents, shall have the authority to bi 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 unenforc~~, that determination will not affect the validity of the remaining provisions. ~~ . . 5. This Agreement shall be interpre(,A,d enforced in accordance with the lawl "e Co~monwealth of Pennsylvania. All suits instituted under this AgreemWshall be brought in Pennsylvania in a collRf 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. By Date of execution by QBW Builder's Registration No. QUAllTY BUILDERS WARRANTY CORPORATION CC-r-~r-- ~~,--- February 8, 2005 50410 Date By cHoN . Sign Here ADDENDUM In consideration for receiving a reduced rate, Builder IIgrees 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 $ ? / r /per thousand. The addendum will renew for like terms unless (3D) days prior to the expiration of the term, or any extensions; either party provides the other (3D) 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. Date By Co cH'crI J;vC, By Date t _ ~ ::.JtJtTY BUILDERS WARRANTY CORPORATION -- ~ ------ - February 8, 2005 Please note that in reviewing applicants for the OSW Program, certain costs are incurred, therefore all application fees are non-refundable. ':7(. ..~4 Copyright 1988 Quality Builders Warranty Corporation '. QBW FORM 050 ~/,p4 ''';-- " .. VERIFICATION I, JOSEPH M. OLSHEFSKI, President of Quality Builders Warranty Corporation, hereby certify and state that the foregoing Complaint is true and correct to the best of my knowledge, information and belief; and that I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. Date: /;). -.1- :J.ooJr-- By: ty Corporation Joseph M. Olshefski, President ~ ~~ i '0 -. ~ --j C!, _. \i -.J w {' ~ ~~ (/-, '0 'J'. 0'0(') ~ ), ~ ~ ~~ ~~~ ( l"",~ , ' , ~-} , i ,. C) , _J ,:'\ " ,- c QUALITY BUILDERS WARRANTY CORPORATION : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY. : PENNSYLVANIA Plaintiff : DOCKET NO. 05-6285 v. RR BROWNING CONSTRUCTION, INC. CIVIL TERM DBA BORAY CONSTRUCTION, INC. Defendant AFFIDAVIT OF SERVICE BY MAIL On December 9, 2005, I mailed a true and correct copy of the Complaint by certified mail, return receipt requested to, RR. Browning Construction, Inc., DBA Boray Construction, Inc., Article # 7004 2510 0000 8684, at their address. The Defendant, RR Browning Construction, Inc., DBA Boray Construction, Inc. n~ceived the Complaint on December 15,2005, 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. ~(~ Theresa c. Gilberti, Secretary ~ <0 ..J] <0 U,S. Postal rvice'M CERTIFIE MAIL'M RECEIPT (Domestic Mail 0 iy; No Insurance Coverage Provided) ..D ,_~~II'lo"'.llH'JjHf:t ~ l_ flJ ion visit our website at www.Usps.c;o~ '?3 ~__--J g 0{ 30 -I _ . D p t k o Return Receipt Fee ~s- H (Endorsement Required) I os e~~a.r D Restricted Delivery Fee M (Endof!Jement Required) Ul ~ Total Pootage & Fe., is ~ ~'i' . ~ :;;:.gj}--- -~~~~;~ ~~~=-::j Postage 'j; CQrtilied Fee . Complete items 1, 2. and 3. Also complete Item 4 if Restricted Del1very 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 mailpiece, or on the front if space permits. 1. Article Addressed to: R.. JZ... b-ovJV'\iV1'1. ~; D6A (0,4 C;.o'V\s+rvcl1OVl, 5\5 ~ S:iIoIiV\OV'o5t. G-i.f"'~v'\1 GA :?oa.33 o Agent ClAddressee Date of Oenvery DYes ONo " 3.~iceTy ):ii1"Certified o Registered. o Insured Mail all urn Receipt for Merchandise '!'rG.O.D. 4. Restricted Delivery? (Extra Fee) DYes 2. Article Number (Transfer from service labelj PS Form 3811 , February 2004 7004 2510 0000 2106 8684 Domestic Return Fleceipt 102595-02-M-1540 EXHIBIT IIAII (") ,.- ....., c..:;;) <7".:;) C.T1 o -., ..... T fii fIJ 17m ?,C(J ~1c) ;-rj :;'1 S5~;~ -::;: :0 -< Cl Pi ,- . 1'-' ~ w o _I . QUALITY BUILDERS WARRANTY CORPORATION :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, :PENNSYL VANIA Plaintiff vs. :CIVIL ACTION R.R. BROWNING ENTERPRISES, INC. : Dba BORAY CONSTRUCTION, INC. :DOCKET NO. 05-6285 Defendant ANSWER COMES NOW the Defendant and responds as follows: -1- On numerous occasions the representative of Quality Builders Warranty Corporation (QBW) failed to respond to our requests for information regarding extended services i.e. the availability of auto and homeowners coverage's through QBW and its associates. None of our customers ever received such information or discounted rates as promised. -2- This agreement lacks proper venue because no one explained in the agreement that I was giving up any legal rights. No contract including real estate sales contract in the State of Georgia, where this document was executed, allows for the waiver of ones rights without specific explanations and acknowledgements. -3- At the current rate of building my company would be only liable for the houses built without enrollment. As of today that is only one house. I fail to see how I can be charged a fee for a mythical number of houses not yet constructed. -4- The market in any area is subject to change and the possibility exists that my company might simply quit building houses. I did not agree to pay for any minimum number of houses. . . -5- The possibility also exists that I might renew my relationship with QBW if our clients could be properly served as promised. WHEREFORE, Defendant, R. R. Browning Enterprises, Inc. dba BoRay Construction, Inc. asks this Court to dismiss this action based on the lack of merit. Respectfully Submitted, ~ rowning, P Ident R. R. Browning Enterprises, Ine. . VERIFICATION I, RAY BROWNING, President of R. R. Browning Enterprises, Inc., hereby certify and state that the foregoing Answer is true and correct to the best of my knowledge, information and belief. This 16th day of December, 2005. RAY BROWNING, P SIDENT R. R. BROWNING ENTERPRISES, INC. . CERTIFICATE OF SERVICE I, RAY BROWNING, President ofR. R. Browning Enterprises, Inc. has placed a copy of my Answer to the Plaintiff, QUALITY BUILDERS WARRANTY CORPORATION, in the United States mail with sufficient postage to Mr. John Gill, Esquire, Quality Builders Warranty Corporation, 325 North Second Street, W ormleysburg, P A 17043. This 16th day of December, 2005. lNG, President ning Enterprises, Inc. '"'-,) r>:) c:-;:. (,/"> (') -n --, :r: n:, ~;- .<" .~ I .[:"" c.) o .l.;"' , QUALITY BUILDERS WARRANTY CORPORATION IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff DOCKET NO. 05-6285 v. R.R. BROWNING CONSTRUCTION, INC.: CIVIL TERM DBA BORAY CONSTRUCTION, INC. Defendant PRAECIPE To The Prothonotary: Please mark the above-captioned action as "Discontinued Without Prejudice." -'--~'--OI-_,.c:-_.//";:<::-:..",._... <'. ./o~. Gill, Esq. Attorney for Plaintiff Quality Builders Warranty Corporation 325 North Second Street Wormleysburg, PA 17043 Attorney I.D. #41532 ~~~ " CI c.; ._. CJ ~~J ~ -<