HomeMy WebLinkAbout06-1046
QUALITY BUILDERS WARRANTY
CORPORATION,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiff
vs.
FORTENBERRY CONSTRUCTION, INe.
: CIVIL ACTION
; DOCKET NO. 01.. - JOLlie. (?IL>J~<CL~
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, P A 17013
717-249-3166
QUALITY BUILDERS WARRANTY
CORPORATION,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiff
vs.
: CIVIL ACTION
FORTENTBERRY CONSTRUCTION, INC.
: DOCKETNO. 01.0- f04b
G(J~~~
Defendant
COMPLAINT
AND NOW, this 2nd day of February, 2006, comes the Plaintiff, Quality Builders
Warranty Corporation (QBW) and files the within Complaint against the above named
Defendant and avers in support hereof the following:
1. Plaintiff is Quality Builders Warranty Corporation, a Pennsylvania corporation
engaged in the Ten-Year New Home Warranty business with its principal place of
business situate at 325 North Second Street, Wormleysburg, Cumberland County,
Pennsylvania, 17043.
2. Defendant, Fortenberry Construction, Inc. (Builder) is a Georgia corporation engaged
in the new home building business with its principal place of business situate at 4496
Carnes Street, Acworth, Georgia 30101.
3. On March 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 March 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 enroll 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 I).
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 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 March 8, 2005 to
March 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
CI
,
QUALITY B
WERS WARRANTY CO,
BUILDER AGREEMENT
!ORAnON
EXHIBIT jtl
AGREEMENT made this d.+ day of fl' ~r()t:l-<......, ,20 0 S- ,
between QUALITY BUILDERS WARRANTY CORPORATION~ a Pennsylvania corporation, herein referred to as "QBW,"
and t'o12.fe." /o'er.., ('Al~s~r,,(' +lD.-l :t:',,<--.
1 Name of Builder: (indicate whether a corporation, partnershIp, individual or other)
, of ?(). 60t 1>7 ,
Address
N,!l3 Gc.-I" "nIl dr.
~--d~
fp.....-, ;'1/("/
6.
State
l{'1.2 7
Ip
herein referred to as "Builder."
SECTION A. MEMBERSHIP AND TERM: ,
1. QBW administers a program whereby home builders registered with OBW 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,providit1Qprotection to purchasers of well-built homes, OBW pro-
tects and promotes its good-will by careful selection of builders tqpal'licipate in its warranty program.
3. Builder desires to participate in OBW'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 slJPp!ieg to QBW in connection with its applicatiol) i~ true and correct.
4. All registration fees (initial and artnual rescreening) are set by OBW at ~s 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 ccimmence on the date of Execution by OBW and shall continue until terminated by either party
in accordance with the terms of this Agreement. OBW reserves the right to rescreen Builder annually. If OBWdeter-
mines that Builder does not meet its approval standards upon rescreening then OBW may terminate Builder's member-
ship and the provisions of Section B, paragraph 6, shall be in effect.
SECTION B. HOME EN/{OllMENT:
1. Requirements. AS,R"lrt of its participation in QBW's warranty program, subject to'QBW's acceptance, Builder agrees
to enroll in the prog~mf!very home, Builder, Builder's Principals, or any entity under Builder's, or Builder's Principals
common control constriJcts in any state in which OBW operates and agrees to pay all fees required by OBW in the enroll-
ment process. whiCh fees, shall be non-refundable.
2. Procedures. Builde~ awees to enroll its homes according to procedures established by QBW. Builder may enroll homes
currently under cons.tl'llction and homes completed but not sold or occupied (as oHlle date of this Agreement or the date
of reacceptance followil)g a perioo of suspension or non-participation) provided that enrollment is made within 45 days of
execution of this Agrei:\l11E;!nt or reacceptance, and OBW has inspected and apprO'lE;!d the home.
. Homes which remain ina Builder's inventory longer than 18 months must be enrolled by the end of the 19th month
frOm construction start date al)d model homes must be enrolled on the date of the CE;!rtificate of Occupancy or use as a
mogel, whichever is earlier to qualify f()[,E;!nrollment. The warranty(s) will be issued to theBuilder and the unexpired portion
of the warranty will automatically transfer to the purchaser.
When enrolling other than a det~,ched 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 OBW, 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 OBW.AII 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 al,l fees, and an approved final inspection.
3. Reservation of Power of Review. QBW reserves the right to rejept C1ny 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 OBW 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 OBW 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 OBW for any damages sustained
by such lack of cooperation.
5. Breach and Remedy. If Builder fails( nroll any eligible home as required by this f ement, OBW may seek specific enforce~
moot or other appropriate relief in IElIIal or equitable proceedings, even if this Agr""ment has been terminated. Furthermore,
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 Buiider 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;
(f) 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; J
(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 OBUGATIONS:
1. Construction 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 conformit(\h approved building codes and other sti lrds established by OBW and in effect
at the beginning of construction "r the enrolled home. OBW reserves the n~"t 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 obiigations, 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 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 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 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. This Agreement shall be interpret/' :nd enforced in accordance with the law{ .he Commonwealth of Pennsylvania. All
suits instituted under this Agreement shall be brought in Pennsylvania in a coult' 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 OBW.
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 OBW. \
By
Date of execution by aBW
Builder's Registration No.
QUAIlTY BUILDERS wARRANTY CORPORATION
L..~~ ll.
March 8, 2005
50420
Date
By
BUILDER
Fortenberry Construction, Inc.
(Name of Builder - please print or type)
.
Sign Here )(
(Please print name/tltle of executor)
~!
ADDENDUM
In consideration for receiving a reduced rate, Builder agrees to maintain its' membership in the OBW program for a period of
~ years to commence on the date this addendum is executed by OBW. 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 $ 2. z, /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, OBW will adjust the Builder's rate upward effective at the end of the then current term.
. By
BUILDER
Fortenberry Construction, Inc.
(Name of Builder - pJease print or type)
)(
(Please print name/title of executor)
By
Date
t.~/>*~M~Z~ WARRANTY CORPORATION
Mnrch Fl. ;lOOS
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
QBW FORM (ISO 9104
VERIFICATION
I, JORDAN F. OLSHEFSKI, Vice 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.
Quality Builders Warranty Corporation
Date:
;;;-/1'1/0(,.
,
BY:7~-
Jordan F. Olshefski, Vice President
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QUALITY BUILDERS WARRANTY
CORPORATION
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiff
: DOCKET NO. 06-1046
v.
FORTENBERRY CONSTRUCTION, INC : CIVIL TERM
Defendant
AFFIDAVIT OF SERVICE BY MAIL
On February 24, 2006, I mailed a true and correct copy ofthe Complaint by
certified mail, return receipt requested to, Fortenberry Construction, Inc. Defendant,
Article # 7004 2510 0000 2106 9278 at his address. The Defendant, Fortenberry
Construction, Inc, received the Complaint on February 27, 2006 as indicated by the
receipts attached hereto as Exhibit "A".
1 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.
(]
ennan, Secretary
.
U.S. Postal Service'M
CERTIFIED MAILM RECEIPT
(Domestic Mall Only; No Insurance Coverage Provided)
Return Receipt Fee
(Endorsement Required)
Restricted Delivery Fee
(Endorsement Required)
]
v
Tot,9-1 Postage & Fees
$.
2-
~
o Sent To
~ " mUUmmm. Fortenberry Construction, Inc.
l - ;;>trB/;'t, Apt. No.;
o,PO Box No. 4496 Carnes Street
ci,y,'siai..-z/p.;j'- Acworth, GA 30101
PS Form 3800 June 2002 See Reve.se for Insltuctlons
SENDER COMPLETE THIS SECTION
. . .
A.'919riat~re
X ! c'- f'--'
L,.'--C
. Complete fiems 1, 2, and 3. Also compl~e'
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 mail piece,
or on the front W space permits.
1. Article Addressed to:
Fortenberry Construction, Inc.
4496 Carnes Street
Acworth, GA 30101
3. Service Type
[] CerlIfIed Mall [J Expo'ess Mall
[] Reglstered [] Return Receipt lor Merchandise
[] Insured Mall [] C.O,D.
4. Restricted Delivery? (Extra Fee) [] Ves
2. ArticleNu.mbe' L14 2510 0000 2106 9278
(Transfer rrom " _~ _ ._
PS Form 3811, February 2004 Domestic Return Receipt
102595-02-M-1540
,~... "
C.
~JS44 (Rev. 11/04)
CIVIL COVER SHEET
(n- /0(/("
The JS 44 civil cover sheet and the information contained herein neitherreplace nor supplement the filing and service of pleadings or other papers as required by law, except as provided
by local rules of court This form, approved by the JudIcial Conference ofthe United States In September 1974, IS required for the use ofthe Clerk of Court for the purpose oflllltiatlllg
the cIvil docket sheet. (SEE INSTRUCT]ONS ON THE REVERSE OF THE FORM,)
I. (a) PLAINTIFFS
Quality Builders Warranty Corporation
DEFENDANTS
Fortenberry Construction, Inc.
(b)
County of Residence of First Listed Plaintiff Cumberland
(EXCEPT IN U.S. PL,\INTlFF CASES)
County
PA
County of Residence of First Listed Defendant Cobb County, GA
(IN U,S, PLAINTIFF CASES ONLY)
NOTE: IN LAl\'D CONDEMNATION CASES, USE TilE LOCATION OF THE
LAND INVOLVED
(c) Attorney's (Finn Name, Addre,s, and Telephone Number)
John A. Gill, Esquire (717-737-2522)
325 North Second Street, Wormleys?~~?! PA
II. BASIS OF JURISDICTION (Place an "X" in Olle Box Only) III.
Attorneys (If Known)
George B. Faller, Jr.,
10 East High Street
Carlisle, PA 17013
Esquire
(717-243-3341)
01
U.S, Government
Plaintiff
03 FederalQuesrion
(U.S, Government Not a Party)
CITIZENSHIP OF PRINCIPAL P A RTIES(Place an "X" in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
.gTF DEF PTF DEF
Citizen of This State ~ I 0 I Incorporated OJ' Principal Place 0 4 ':J 4
ofBusiness]nThis State
02
US Government
DefendllJlt
lJ 4 Diversity
(llldicateCitizellShipofPal1iesin Item [[[)
Citizen of Another State 0 2 0 2 Incorporated a/lJ I>rincipal Place 0 5 Xi 5
of Busilless III Another State
Citizen or Subject ofa 03 CJ ForeigllNation 0 6 0 6
Forei'nCOlUltry
IV. NATURE OF SUIT (Place an "X" in One BoxOlllvl
CONTRACT TORTS FORFEITURFJPENAI,TY BA~KRUPTCY OTHER STATUTES
o ]lOlnsurance PERSONAL INJURY PERSONAL INJURY 0 610 Agriculture o 422 Appeal 28 USC 158 0 400 State Reapportionment
o 120 Marillc 0 3]0 Airplalle 0 362 Personal Injury- 0 620 Other Food & Drug CJ 423 Withdrawal 0 410 Antitrust
o 130 Miller Act 0 315 AirplalleProducl Med,Malpractice 0 625 Drug Re]ated Seizure 28 USC 157 0 430 Banks and Banking
o 140 Negotiable Instrument Liability 0 365 Personal Injury - ofPropcrty2l USC881 0 450 Commerce
o 150 Re<:overyofOverpayrnellt 0 320Assault,Libel& ProduclLiability 0 630 Liquor Laws PROPERTY RI HTS 0 460 Depol1ation
& Enforcement ofJudgmellt Slander 0 368 Asbestos Personal 0 640 R.R. & Truck o 820 Copyrights [) 470 Racketeer Illfluenced and
0151 Medicare Act 0 330 Federal Employcrs' IlljuryProduct C1 650 Airline Regs. o 830 Patent Corrupt Organizations
o 152 Recovery of Defaulted Liability Liability 0 6600ccupationa] o 840 Trademark 0 480 Consumer Credit
Studell!Loans 0 340 Marine PERSONAL PROPERTY Safety/Health 0 490 Cable/Sat TV
(Excl. VeterllJlS) 0 345 Marine Product 0 370 Other Fraud 0 690 Other 0 810 Selective Service
0 153 Recovery of Overpayment Liability CJ 371 Tlllth in Lending LABOR SOCIAL SECURITY 0 850Securities/Commoditiesi
of Veteran's Benefits 0 350 Motor Vehicle 0 380 Other Personal 0 710 Fair Labor Standards 086] iliA (139511) Exchange
o 160 Stockholders' Suits 0 355 MotorVehide Property Darnage Act o 862 Black Lung (923) 0 875 Customer Challenge
KJ ]90 Other Contract Product Liability 0 385 Property Damage 0 720 LaborfMgmL Relations 0863 D1WC/DlWW (405(g)) 12 USC34l0
o ]95 Contract Product Liability 0 3600therPersollal Product Liability 0 730 Labor/Mgmt.RepOl1ing CJ 864 ssm Title XVI 0 890 Other Statulory Actions
o 1% FrllJlchise Iniury & Disclosure Act o 865 RSI1405(,I) 0 891 ^gricuhuralActs
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 0 740 Railway Labor Act FEDERAL TAX SUITS 0 892 Economic Stabilization Acl
o 210 Land Condemllation 0 441 Voting 0 510 Motions to Vacatc 0 790 Other Labor Liligation o 870 Taxes (L',S Plaintiff 0 893 EllvironmentalMatters
o 220 Foreclosure 0 442 Employment Sentellce 0 791 Empl. Ret. ]ne. or Defendant) 0 894 Energy Allocation Act
o 230 Renl Lease & Ejectment [) 443 Housing! Habeas Corpus: SecurilyAet :r 87] lRS-ThirdPal1y [) 895 Freedomoflnfonnation
o 240 Tol1s lO Land Accommodalions 0 530 Gcneral 26 USC 7609 ^"
("J 245 Tort Product Liability 0 444 Welfare 0 535 Dealhpenalty 0 900AppealofFee Detenninalioll
o 290 All Other Rcal Property 0 445 Amer. w/Disabilities- 0 540 Mandamus & Other Under Equal Access
Emp]oymenl 0 550 Civil Rights to Justice
0 446Amer.w!Disabililies_ 0 555 Pri,OIl Condition [) 950 Constitutionality of
Other Stale Statutes
0 4400therCivi] Rights
V. ORIGIN
01
Original
Proceedin
{Place llJI "X" ill One Box Only)
~ 2 03 04 0 5 Transferredfrom 06
Removed from Remanded from Reinstated or another district Multidistrict
State Court A lIate Court Reo ned s ecifv Liti ation
Cite tQe U.S. Civil Statute under. which you~rx filing (Do not cite jurisdictional statutes unless diversity)
2~ V.S.C. Sectlon 13jL
Brief descrip.tion of cause:
Specific performance of
CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23
o 7
Appeal to District
Judge from
Magistrate
Jud ment
VI. CA USE OF ACTION
VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
(FANY
warranty
DEMAND $
contract.
CHECK YES only if demanded in complaint'
JURY DEMAND: 0 Yes k{J No
(Seeillstructions):
JUDGE
DOCKET NUMBER
RECEIPT #
DATE
March 24, 2006
FOROFPICE USE ONLY
AMOUNT
APPLYING IF?
JUDGE
MAG. JUDGE
F IFlLE$IDA T AFILE\GeneraIICurrent\12035. l,removal
CTe3ted 3I241Q{, \ 1,2\AM
Revised, 3124/06 0:36PM
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
QUALITY BUILDERS WARRANTY
CORPORATION,
Plaintiff,
Removed from the Court of
Cumberland County, Pennsylvania
No. 06-1046
v.
CIVIL ACTION
FORTENBERRY
CONSTRUCTION, INC.,
Defendant.
NOTICE OF REMOVAL
TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT
COURT FOR THE MIDDLE DISTRICT OF PENNSYL VANIA:
AND NOW, this 24th day of March, 2006, removing party, Defendant,
FORTENBERRY CONSTRUCTION, INC. (hereinafter "Removing Party"), by and
through its counsel, MARTSON DEARDORFF WILLIAMS & OTTO, hereby
removes the above-captioned case to this Honorable Court and provides notice ofthe
same to Plaintiffs counsel. In support of removal, Removing Party avers as follows:
I. On or about February 2, 2006, Plaintiff Quality Builders Warranty
Corporation commenced a civil action by filing a Complaint in the Court of Common
Pleas of Cumberland County, Pennsylvania, Civil No. 06-1046 against Removing
Party. A copy of Plaintiffs Complaint is attached hereto as Exhibit "A."
2. Plaintiff, Quality Builders Warranty Corporation, is a Pennsylvania
corporation with its principal place of business situate at 325 North Second Street,
Wormleysburg, Cumberland County, Pennsylvania 17043.
3. Removing Party, Fortenberry Construction, Inc., is a Georgia corporation
with a principal place of business situate at 4496 Carnes Street, Acworth, Cobb
County, Georgia 30101.
4. Removing Party first received a copy of the complaint on or about
Febmary27,2006. This Notice of Removal has been filed within thirty (30) days after
the receipt of the Complaint in accordance with 28 U.S.c. 9 1 446(b).
5. Removing Party alleges that the value of this matter in controversy
exceeds seventy five thousand ($75,000.00).
6. The above described civil action is one in which this Honorable Court has
jurisdiction pursuant to Title 28 U.S.c. 9 1332 based upon the fact that there exists
diversity of citizenship between the parties and the amount in controversy exceeds the
jurisdictional minimum of$ 7 5 ,000.00 and is, accordingly, one which may be removed
to this Honorable Court by Notice pursuant to Title 28 U.S.C 9 1441 (d).
7. Written notice ofthe filing of this Notice of Removal has been given to
all the parties in accordance with 28 U.S.c. 9 1446(d) as noticed in the Certificate of
Service attached hereto.
8. Promptly after filing with this Court and with the assignment of a civil
action number, a Notice of this removal will be filed with the Court of Common Pleas
of Cumberland County, Pennsylvania in accordance with 28 U.S.c. 9 1446 (d).
WHEREFORE, the Removing Defendants request that the above action now
pending in the Court of Common Pleas for Cumberland County be removed to this
Honorable Court.
Respectfully submitted,
MARTS ON DEARDORFF WILLIAMS & OTTO
( /)
I[)? Id,
By: /s/ GB'f al J /
George B. Fallet;'Jr., Esquire
Attorney I.D. No. 49818
Michael J. Collins, Esquire
Attorney I.D. No. 200427
10 East High Street
Carlisle, P A 17013
(717) 243-3341
Date: March 24, 2006
Attorneys for Defendant
MAR-17-2006 FRI 12:28 PM MASON HARRIS & BAHR
FAX NO. 7703996471
p, 04
~003/012
03/17/2006 FRI 10:25 FAX 7709742489 Fortenberry Construction
QUALl1YBUlLDBRS WARRANTY
CORPORATION,
: IN'THE eOURTor COMMON PLEAS
: CUMBERLAND COUNTY.
: PENNSYLV ANlA
l'laintiff
\'S.
Defendant
: CIVIL ACllON
:OOCKETNO. Ol.. -~ (!1CJ-~t-7~
~R~Y CONSTRUCTION, INC.
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
forth in the fol1owiDg pagea, you mllSt take. action wi\bin tweII1y (20) daya after 1hla COJ'lpl..lnt
IlIIli Notice are lICl'VecI, by CIIte1'iDg a writteD ~ pcnonally or by ~ aDd filing ill
writing with 1b.. Court YOill' defenses or Qbjll\:li~ 11) t1w.: Qlaims set fimh agajJIIIt you. Y Oil are
WIllIllld tbat if you fiill to do so the case 'may prOceed without You Bad a judgment I2IaY be elIt8I'ed
apiIISt you by 1he Court wi1hout fiIrdlt:t norlce for lIIlY 1DQlIC)'. "J..i.....d i111bll C""'J'I,,;nt 01' for
lIlIY other oJaim or 1dief requested by !be PI/Iintiff. You may lose mo~ or propertY or other
rights imporamt 10 you.
you SHOULD TAKE TInS PAPER 1'0 YOUR LAWYER AT ONeS. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE., 00 TO OR 1'BL!PHONE TIm
OFFICE SET FORTH BELOW TO FIND our WHER YOU CAN OOT LBGALHELP.
~COUN1"YBAR.ASSOCIATI0N
.32 SonthBedfotd St.
Carlisle, PA 17013
717-249.1166
i'RtJE 'copy FAOMRe;:,o~'.)
"'7~1yvF.';:.of.)f. j 11~,~lil':;;:?>'~mr~
_4..... ~1' .. .<" .." . . "...".; - ...
--.... . ';A' ....:~ ,"j ~~~'.fJ, ~"'i
EXHIBIT
j A
HAR-17-2006 FRl 12:28 PH HASON HARRIS & BAHR
._-_.~,~ --- _.. --- ~_. ----
FAX NO. 7703996471
p, 05
@004/012
03/17/2006 FRI 10:25 FAX 7709742489 Fortenberry Construction
QUALITY BUILDERS WARRANTY
COlU'ORATION,
: IN 1HB COURT OF COMMON PLEAS
: CUMBERLAND COUNTY.
: PENNSYLVANIA
PlaiDtiff
VB.
: CIVIL ACTION
FOltl1iN'I'BBR1lY CON8TR.UcnON, INC.
.
, : DOCICETNO.
Defendant
CQMPLAINT
AND NOW, this 2IId day at FebruIIty, 2006, 00llle$ the p,~(t Quality NcI=
Wammty Corpomion (QBW) and fila the. within Complaint agai1ISt tho lIbove lWI1ed
Defendat lIDd avers in BlIppOlt heteoflhe foJlowillg:
1. Plaintiff is Quality Duilders Wammty COrpot8tlon, a Pezu18Y!vallla corpotaliou
eagageci in 810 Ten- Y eIII' New Homo W~ business with its prlDcipal place of
business si~ at 325 Nordl Second Street, WonIl1oysblll'g, ClllIlbedand CoUllty,
P=usyIVllllia, 17043.
2. p..f...M'll'... Fotteabeny Constlwti01l. bKl. (Builder) is a Georgia COl:JlOI8lioll ooaagecI
in'lhe II8W home bWlttinC busilles5 with ita priJlcipal place: of businesI siture at 4496
Came$ Street, ACWOJ1b, Georgia 30101.
3. On Maa:cb 8, 200s, Builder mc~ a.Build<< Agreement wim """em- in whicIl.
BIIlldor ~ to become a mc:mbct in the QBW TCIl-Yr:ar Limited Wllll'II1ty
Program and '!l"intalJl i1& mf7Jl.bP.r&bip in die QBW Ten-YlllIf LiDlited Wamnty
HAR-17-2006 FRI 12:28 PH HASON HARRIS & BAHR
FAX NO, 7703996471
p, 06
~005/012
-_._~._- .--. -_. -'-.-'-~
03/17/2006 FRI 10:25 FAX 7709742(89 Fortenberry Construction
PJOgam fur five )Wl'S to llOml'JIeII(l$ on Marc:h 8, 2005- A copy t:L said ~ is
"tno...MtI hlll'llto iJlcoJporated hemn and l1llIIke4 as "Exhibit 1".
4. Builder bas bNaclled its Agcemeat wi1h QBW by fai1hlg to emo.U all bomes as
xequired.
5. SeeIioIl B 1 of tile BWdcr Agl'cemllllt ~.a.."obd by Bvi1dcr ~ "Builcler apes to
emoll in tho program every home Builder, B1lil4er's p.;~I,. or any emity \1IIder
BuiIdOlS or: 8lIi.Ider's P.ha.i.\lOls QOIllIIlOD COIIlro1 COIISI1'\ICI8." (Soe Jl",hIWt 1).
6. Th. Builder ~ states in ~ II 5, "If Builder filil5 to enroll any eliaible
homes as required by 1his A~eet4at, QBW may seek spec:l& ped'nnn....ee Of otbeJ
~ relidin Jesal or equitllblc prllllCl...:liJll!ll." (See &!n'bit 1).
7. BuiIdcr's fiIllure to cmoll all homes they CODStl'IK;t is a vjoJatillll of 1he Builder
AgRement IIll ammded lll2d QBW seeks to ~eaIly enforce the obHptlon of the
Builder ~ _ ......,,""'" to "OIIIJ""I BdJ1det to enroll 811 homes 1lley COIlStl\ICt
in ~ wi1h QBW's mmnbersbip TeqUiremC3lts We the period Man:h 8, 2005 to
Mard13, 2010.
8. In & II~ QBW secb "-~lY'" from BulldM for homes, which !be BIIilder
would be rcq1lired to place waaaalics on during 1bat period of time, wbidi q"mop
exceed the sum of$25,ooo.
9. QBW also sel'lks attorney's _ as IIlJlbori=I by Sedi<m B S of ~ Builder
AgJelIllIeIIL
. 10. Jlllisdic1ion is ~ in the P~a coum sim:e Sectioa E 5 of the BuiIdar
Aareement indl~ "This Agrecment 5ba11 be illtloo}Ifett.G and enforeed in
aceordanee With the laws of1be (flmmn'lweahh ofPemlsylvaDia. All sui1s iIIsl.itured
~ this Ag=mcut sba1l be blought in hnDsylvllllia in a court of COII1JIClcI1t
HAR-17-2006 FRI 12:29 PH HASON HARRIS & BAHR
FAX NO. 7703996471
P. 07
~006/012
03/17/2006 FRI 10:26 FAX 7709742489 Fortenberry Construction
jllrisd~ Build<< hereby _oam to 1be paaoIIlI\ jm:is<tictioD of the PtlIIIlS)'lV8llia
courts."
WHEREFORE, P11IiDI:ift Qua\ity BuildlIrs Warramy Cmpol'Iltion, lIMn........ judpleot
apinst FOI'leZIbf.Try COIlstrtJ(tion, IDe.. lIS follllWli:
1. That lhc Build<< Apemait 118 m...q;tAd exllClUlllll by DefeDlIaDt Fortalbcrry
Consttudion, IDe. be speoificaI1y enforced to requi1'e Fcntenbmy ConIlructioD, IDe.
to c.uroll III IIornes they \lOll5lI'UCt for the period Match 8. 2005 1Invogh ~ 10,
20 lOin lIlleOfIlaDco with dlo Bullder Agreetnent as llJIlCll1dlld.
2. In tho a1tcmItivc tha1 Defendant, Foneubmy CoastmcdOD, lDc.. be ord<<ed to pay
~ equal to warr$nI:y feI:s, which QBW was IlIltitled to based upoJI homes
projo.Qd for the period March 8. 2005 to March S. 2.010, said 8D\OUII1li to be in
exce8lI of $15,000.00.
3. AtllmIIly's files lIS lIUtbori:zed by Sectioo B S ofthc BuildCl' ~
4, Such other relief as deer-A(\ appropIJate by the court.
~y SIlb...iUC<l.
~---:--
Oill.Bsquire
Quality Puildcn WIIlIlIIltY CorpomtioD.
325 North SecoIld Stnlet
Wormleysburg, PA 17043
(717) 737-25:22
#4J532
Attmncy for Plaintiff
Quality Builders W8D8Illy CorponuioIl
HAR-17-2006 FRI 12:29 PH HASON HARRIS & BAHR
FAX NO, 7703996471
p, DB
~007 /012
03/17/2006 FiRI 10:26 FAX 7709742489 Fortenberry Construction
QUALITY J()wERS wAB.RAN1Y ~)()RA.'qON
BUIL-DER AGReEMENT
:~
ElalUM'" U
1V'S3
HAR-17-2006 FRl 12:30 PM MASON HARRIS & BAHR
FAX NO. 7703996471
p, 09
~0081012
03/17/2006 FRI 10:27 FA! 7709742489 Fortenberry Construction
e. IlNaCh Bnd Remedy, If BuIdar~ fU'J oligible horns llll NqUlred by~lIII1t, 01NI may 8MIc &pecIIlcenfofc&.
men! or ather ~. n6lI in ~ or equbblollll'llOeedi1lll8lllllll ~ 1hls '* tleen b"".....dl:d. Furthermo.9>
BuId8r agreeos tD indemllKy Wld hold harmless Q'BoN and Il8Insulw fer lIn)' ll1l5I!s or..-j a.n.g.1hey I1JlIYsuffilr as II reeu/l of
BuIder'& br\3lICh of IIill ~,* 4 and aucn \OllIJ8II81d COllts IhaIlIrK*Jde reesonebIe lllIcmey's r- and l>>CPOIt ~ f8lIs.
Bunder hereby l/l'flYOCabIy auttlorIta 80d empOwers any allQmIIy 01' any QOUrt of record 01 Pen/l8YMlI'IIII gr el88whele
tD ~ for end c:onfess judgment against BulId<lr for aU aIllOUI1t$ for which BuIlder may becOme IIIIble to QBW lot .,.
br.ach of lhls A$J~, as ....1d8nc8d by an aftldlMt slgnecI by an oftkler 01 Q8W sdInQ b1IIlI1IIlI/TQml>l then eM.
pIUe attolTley'8 fees /nllurred by aaw, with 00Sb 01 tI.IIllII'Id ........ of _ Such IUthori\y ahalI nat be wMuIlIId by
any one lllCIII'CI&e thIIreof bUt judgment Inl\Y be ;o,',ll.It.d as ~ fRxn Ilme to time lIS often lI$ltIere Is << d8fauIt.
FIIImedIes stated ~n In elective I11d I'Itll 8XCluslVII and QSW may elect to proceed I.IIdef tillS or any other para-
W*Ph in this Agf.vnM.t.
a. Su1lpllllGlan or 'IlIrIIlIl..... QBW may terminate, or at Ita ClpliOl'l. IIUSI*1d 8ui\der'. partlcfpaIIon In QBWIl WllTanty
Program. 01' III'IY entity or II'ldMduaf which BuIId4lr Ia afliIIaIed. If QSW determlnee that Builder has don. any of Ihe 1ilffow-
~ which ~ be dw,18d a m.dl oftnla Agnlement
(II) fails to comply futIy wItI1 all P/OYl8IOnll of Ihla Agreement: ,
(b) falls 10 perfOnn any 0111I oblIgalIona uncIIIl' thie "'1'IIIImMl, including, but not IImbd to, oocperalfng In the operaIIOIl
of the program'alnfolmal dlspute moMlon and lIIbIlratlon pI'ClCllCIllnl:
Ie) raile to respond to QBWs notICe of a I1orneowmlI'lI oornpfaInt; ,
(d) falJs tD comply willie declldon WhIoh III reI1dnd pInl.nt to complaint prooedute&: .
(e) - to jlRlVIde lldaqU8lil_ to asw wiIhIn tIIi1 (1 OJ ~ aft.- It l8C8lves a written req\II!IIl from Qf!JW for SUCII
~ tnilt (wIIhin 1l1'lllllOl18ble tImelable e5tab1r.hed or lIPPI'CM!d by Q8W) It Is 'MIlnQ Me! able to coOperate in
diaplJle wIIIement IIICl to perltJtm lhe obIJgatlons UI1lIerlll'lY dedslon which Is IWIdnd FUlIU8I1l to such prooedureoo:
(fl fIllIG to otI\llrMse coop8Iate In the opel'IllIonof the QBW PrQgram in lICCOldance with the NI8e and r&gUiat\ons 01 the
QJ4W PfogIllm; .
, (g) fails to provide timely pioof of OClnlpllance Wllh ltlle Agreement. .. end wMn rtqUll8l8d by QBW;
(h) hlils to CllIlIpIy INItIl OSW W;man'toJ St8ndartJI and building cod'" . 8tatIId In the Um/ted ~ ~
Ol falls to ClDI11ply with the enroIfrnent procedurw; IISIlIbIished by OBW; ,
(D faIIa to.~ ",.,." that <<N'OIl8d hamM '- beorllllltljel:ted to requlNcllnspeetl~.
(k) fails to r.pond to P\lI'Clhaallr compIlJInta In . 1lmeIy mamer end as provided in thlI Uinlll!d Warranty ~
. 01 ,... to perform /18 otlIlgatfon. with prorlll'''''''' ~ or COI'lduct Its QJleI'lI\IOnIl from a posIIlon olllnllndal
lllIe..gth lIf1(lllllbllly; '. . ,
~) faIIa to IlClt/fy QBW wiIhln 30 c:/8y$ 01 a llI1ang9ln OWMllllllp. comp8IIy /IIImI or COI1'lpIII1)' sIlIndi~ flnanclal c:andltion.
or of any-other maIllrIllI filet WhIcl1 mtgIlt atrecl Bulldtlr's lIbIlIty to meat Its obIigllliom; under ItIIs Agnle"llWlt;
(n) fds to meet ethIc:eI.4llI,da"l2s ill its deqflrlll& wiIh ~ IX '
(0) n>lSOI..'...,or.,.,1I\o> n..1L any blfom~ In oom8CIIon wIIh lis ~ or In the ,1lllCI'\OOIIIng pro: I I
QBW ,..".. the option to rwIniltatalllrlnlnBtecl aIIIIlates of iI1e prinwy, IBmIinllIed BuDIW If O,fNI cIel8rmInIIs thlll
the termlnlned IluAder or lie p1nCipeIa .... not in a pOeiIion to canIJol the lIIfIIaled Builder. .
Tennln8lIon or SulI<Ier by QBW sIIaIl not lIffect the I1ghIs or olll/glltlcn8 of' en)' olll1ll pertfes to lIlls AQIeement with
reepect to lite WaI1'III1ly ~ In eftec:t lit the dIIte of tsrmlnalloII. _let to the pravisions ptnaJnlng to voidability.
If a 8uUder It'lIU8pIIlidt.a or tennlJllIMi:l, ". shall not ~ himMIf to be a membw of the QBW WIn'anty Program
nor otrer the QBW WwranIy lll\d IhllII not UBe ita 1.0gb or ... to the pt'ogrwnln allY way nor aItempt to enroll tIft/ tIome.
~ ButiIr IIhllI/ i,..,...dWllly nollfy 8l1y 8uyerClJl'l'llfllJy lJIlCIer 00I'IlI'a0I to ~ h home of the ~ or l8rmina-
tIon and that the OSN Wment'/ PIogram IlGIl been wfIhlhwl'l- Upon raquest, Builder 8MII immedlaWly return to QBW III
materlal8 tuppIled by aBW lItlCIllII ~ nWIng ,.ob..,..6 fa 08W. StIolIId 8ulkler fIlIl tD lake v-atepe. It IIIIIlIl
IndamnIlY and tlold hlumIess QBW WlCI the in8llIlIr against IIr\'J and ell ~ Ineurred and lose6s sutrnd, ~
but not &mited to atIllmsy '-- by8llhBr Of 1hem as a rsult. In iIddIlbn. I5IJIder llhaII pay ~ to Q8W at the rate d
111% per IIIlIlUm on IlIlllUlllll due to Q8W herel.Ilder W such ....ma l1I9 not paid within so ~ of ~ by ceN.
BUllcler Inl\Y tenTlin8la tfIi; A,.. oell...m upon SO . advanQe wrft\lln IIOt/Ce to QBW. If so TwmInated by BuIlder or by
QBW, BuiId<<'s CIbIlgatione undII' thls ~t shall oomlnus U to lhO!IO I1cIIfIes enroIlecl C1w1ng tI'IlI pIlricld in VIhic:I1 tills
Agreement \Ya8 In effect.
7. Nolbl. If Q/1JW posu~ -- a lWII$OMbIo Dolief Ihat reuon &>d$l$ to terminate or llUSJlllI'lcl a Bullder for vlOl8llDn 01 this
Agreement, ~ .".... il'n1T1Odilltllly tlll'llllnat. or suspend the SulidIlr tly pnMc!1ng It wlth wrlIten noIlc:e. If QBW oIects to
0l\IBIl0I1d thlI BuIld8r. euch NIp8nlllon wltl remain In etIllCt untlI BuIlder ha$ co.lI'lld 11I1 clllfects to QBW's saliafIIdIon. how-
eyer, QtiWi 1'lISMI1.l51he right to terminate any llLllp tnded BulIdIlr.
& ~1Iv- CBW 11Im.... the right to vold .,y IIl'lo oIImeI /lit Bulkier mI8&tates or m~la any Il'lf\XmIltIon In lis lIpPli-
CllIioII or in tM ~Iing Pf'OClIIl8 or mlsstales or ~Illt.nte any InfCllTlllltlon In the...oIJnwd: of a patlic:ular home
or failS to ~ any 1lIll6 c:kJe for enmIImenI of 01I'J Il8I'llc*' nome or f8Ils to foIwercl.-. EnroIIm8nI A;Mm for a ~home
wlthln 10 days as requirlld. fit faIb to enroll all units of . rnulti unit bUIldlng.
SECI10N C. BUlLDER'SI OIUGATl0N8:
1. Cv/lllINClIIon 0bIlg~ FolIowlng ... the SIlIkIer'll obligations with I8Ipoc:t to 0BW's W\1IITanly Program:
(lll BuIlder shall t:anlllnICt all nom. iI'I conformity with 1tlO WalTal'Ity StandIltda pI'O'tfded In the Um/teCI WManty
HAR-17-2006 FRI 12:30 PH HASON HARRIS & BAHR
FAX NO, 7703996471
p, 10
~009/012
03/17/2006 FRI 10:27 FA! 7709742489 Fortenberry Construction
Agq.eI......t, llItdIor ~ apptOVeCIl)UIlding codlos andolher st{'.v= eatablf8hed by Qf!Nl arid In llffact
at 1M begfnnlno of ., the enrQlld home, QBW reeeMI the """1110 ~ special JllqUinJments tor
eOIClOW p&yIl1eI1tS or Qther IIleamii of protectlon wtth reepect to fffY ~ IlOnsIIUcted by 8uI1cIer wlllclI, aew ~
mlnes to be "High ~. '
(h) Builder lIgl'8llS.to haYIl8ll11elrnee lnspecIed,lllI requItwl by OWl. and to PIIY all tt. forlhe ~n and!o P!'OVlde
GVIdenCll of InspectJon as and when requiecl by OBW. QBW 8hal1 pIOvlde h ~. or lIh8IIlIPPfO\/" llOvemmentBl
!n8pectars. ." ,
(c) QSW shall haw lherigti! to perform 8POl11l8peCllon8 to VtIriIy Bullder's QOI\lpllllnce WIth ttl/lI Agreement lItId 8I.liider
agnMlll to ooopeI~. . , '
(d) The BulkI8r ~ 10 Wxlemnll"t and hold harm_ QBW aocVor Its lneurar tor'any Io8s85 or damages QBW and/Or lis
II'I8UrW may sutler as a -.It of the 1.1&0 of lite IWInfam lnlatod plywood on Ill)' bUldlng enro1Ied unci... the Q9w Ten
~ WIllTll1ty~ ThIs WfII ~ III eWms IlIld U8bl1ity fOr Jossea. d8inages IInd ~ Which QBW MClIor
its lnlIunlr may SU8t\III, Incur, pay or be IillbIe for by maans of any Irweetlgatlon ~'or litigation of any 'claim or,
llClIon W*lh /Ny be raised, made or brought dUe to,lIle potential ~ ~UIlId or ekely to be cauaecl by use or the
IlUbjectplywood. . . " . ' .' . . '\',
(..) If the BuiIcW Is Intonned by QSW thai: It Is /IUlldIng In an _ de&!gn1t8d ..one WillI aoti1Ie 80il OOIlCIItIono, the SlIllder
..... to 'obtlIIn Illah SOlIs inWllligaliona aiKl ~ .. may be I8qUInIcI by CIElW. If sudI repons.ll)dlcat$ll .-l' far
, epllCll/ 1bunclIltion ..... the BuIlder egrM to llOII8lIuCt the foundsIlan ~to lhe.desIgn or a ragIsWed pro-
~1tIg/,...totakellltoic<<M,nHh..~,~by.\fIe8Oll1llllt5.., ..,..,
z. W.. ....~ Obl/fldlone. 8ulIcrer ag_ to petfQrrn all ab/lgBtionII atIslng frorR IIlIa Agnlwr,ent and 1118' LJmlled Warranty,
~,' . .
, The Bulldet IIhaIl at !Is own expenee perlorm all otlIlgldIonso .. set fot1h In tile Q8W WanDrIty f'ro(Iram aria II'is
~ y"hIch ~. ~ng !he WiIrr8ntY lIblndards upcll'l notIc& from the PurcI\lIsef without the t'llIOieslty of
QBW Inl8IvenIfon. . '., .
DurIng yeera one IlI1Cl two under the QBW ~ Pro"."'" If the Buifdllr falls or I9fu&es 10 P,l'IfOrm lis obIIgatlo.,.
in IlCCOrdance wilh the I..lmtted Wln'Mty AQnIemtnt Of this ~ Q8W Mil perform lIl/leuH.-. abIig",",- h9w-
1Mr, !he BuUder IlJI'M8 to relrnburM QBW and/Or Imiuiur far III ecper III InClUl1'ed in perfgn\'l&1g their oH~ looIud-
11'0 but I'\Of ,1Imltecl to, aast or~. ~ Qf coIsaIlon, Illbar. lIl'd"Jlilcl's '-. -1QiI1B1ro f8M and CllU/l8l!I fees. 08W
, 8NJIar 1_,_" ~ 01 si.sbrogaUOIl. ,
D\lnI'lg ~ lh....1hmugh ten Ufl(/er tile OSW Warranty PlI:lg'lIlll. QIlW will par/'orm Ib obIIgaIlOlls wllti NlpklIo
rn.;or IIl'UctUraI defecta ,as 5<<1OrtII and ~ In !he Umltad~ AG~ wilhoultheriQltt oISUbIogatIon agBlnst
the BuIlder Provklact ~ tile def&ct, or aymptoms of !he lIUblIequent 0ccI.Il'NIIcllI of the d8f8ct. Ilrst ll/l)H atler the e>q:llra-
tIon or two ,yaan. ""der \he QBW Warranty Pl\Igl'lllTlln M8ct fOr !hat home, and thai a..der dkl not atIempt 10 ~ ClI'
COliITllIlIcaIl repair tile d8f!'Ct or I)'mPtamS or lIle ~ tl(J(Ul'8ItCe of a deMCt aIld that lhe d!IfIICrt doN not arise
fRlm BuIJder's tBaI.n 10 aon8lnJCt the hclme to appIloable QBW stlll'lClard6 or a<lIIcn to EkIIldtr's msponslblllllea under the
BlIIlder AQraarnent. .
If Iha Bunder repan a major IlnIc\uIBI defect dlIring YellS OIl. or two, QaW rnlll!lt be nolIfIecI. Once ~ QaW
will perfonn a oompllanoe 1r4pectlon.
3. BuIlder Is ~ 10 lldVM.... its mernbtnhfp In the OB-N w.rranty Progr.m and to 11I8 lis logo III Ita ~. pro-
vlded lIlIIl any ""nllQlt to QBW or fle fnBurar. wI\eIher oon\reCtUaI QI advertf8Ing oopy, be apj'llQ'Ied by QBW i1 writiI1g in
aetvant:. of lis use. .
8ECTION D. INfORMAl. DISPUTE PROCEDURE:
1. EUlder should bI! _ that the Umlted WB/r8nty AQrlilemerlI pr(lVIdea for an ~ dispute Mlllao.. ..It eI1d lltbII> ../lvo
, plllC8dure to I'eIolVecamplalntll bY ~ ~the ~ WaI11nty Agreement.ll\lildar8hould becxlmv famlll8rwllh
the setttement praoe<*.l....ln ordlr to blI_ of lie rlghls end NapOllSIbII1tIe 8uilder lIQI8M 10 ooop... fully in me pm-
cedure and to be bound by and to 'CClII1p1y wllh lIII)' dealslon of an indeptnclant third Pflrly, or IIltlIInltClr.
If the BlIIldar falls to per10rm Its abllga\lorIe h~ In a llmely snd W<lI'krMnIIke marmer.lIUCh failure $half be con-
s1darad to be a reI'ull8Ito perfann gowmed by ~ C.2 nereof.
2, 'The BuildIII' ag...1o pay all '- c:h8Iged In COI~.e<.tlan wtlh the inf<:lrrMI cllspt.IIe El8t!Iement ancIlWlIndlon pracadUI'llII.
SEC110N t:.11!RMS GOV&lNING OPEftATlON AND IhIIliflr.R!rATlON:
t. Builder lI/lI8Il5 to perfO/ln itll cbIigatillll& under lhlll Agnlernent In . tlmely I1'llInnllr. ~. tlme provided for pelfatmance
01 ~ hereunder shall be fllClendacl by eVI!I1b not IlIbjIlCt to conIroI by !he pIIIOn olllfgated to peIfat n. Such
-.Is include ects of Gad, 1lI'1I1e public ..-ny, or riot, clvIl QOIl'lh lOlIon. OC' gO\IeIM1WIt8i ~ '
2. 0eeclIptIve headings as to the cantlIntf. Qf PlU'licuIllr pRlVllllone Of 1hls ~ .. Intended fOr ClOIlvenlerlcie, orty and
era not 10 be ;ontIder8d in CClIlStruing this Instrument.
3. This Ag,"",ant shall not conutItuta 04' be COl'lIIdered an llgency, emp~ reIalIanshlp. Joint venture or partner.
shlp between the partieIS. None of !he parties, nor III1Y of tIIeIr Il\'TIplQyees or agents, ......1 haw the aull1alfty 10 bind or
obIlQate the athet .-rty except . provkled by IhlB ~
4. Should any PIO\IlIiOns fJllI1Ie AgrglIrn$l'\I be delermlned by a court of Cllrnptt8nt JurIsdIcllon to be unenf9tCMblo, that
dalerminatlon wttl not <<!feet the validity of the remaining ~.
MAR-17-2006 FRI 12:31 PM MASON HARRIS & BAHR
.- ..-....-.-..-.--...
FAX NO. 7703996471
P. 11
~010/012
03/17/2006 FRI 10:28 FAX 7709742489 Fortenberry Construction
By
0_ of ueo\IlIOn 111 Q8W
BuIld<<'a lk~lL.dit..n No. .
5. lhI8~sId be ~ ~ In accoR'lInCt WItI1 the J'lIe CorTItl1OnWllII of ~18. All,
suits I/'illlIlul<<I ooder~~~ be brolqlt In ptlllllSy\Vllnia in a ~of comilMftjurildldioll. BilJIdor ~
by __ lD thB peraonaI juriodiction CIf the Pemsylvanla c:ourts.
6. Buildw shlIIl /lQI Mgn !his ~ wIIhout the prior wrIlIen -.em of Q9W.
T. 1l11a Agreement 8Il8lI iIU'e to llle beneftt of and be bIndlng upon the heirs, f!lIllCUIQI'S, ~. JJ I'll'*. and_
~ C/ lI'Ie 18P/1I. Ili\llll& pertIes. .
8. ThIe ~ and ..ulty doeurr..ma and dol;umInts rehlrred to or Incorpora!Id heroin by .....1C8, OOIIIlIln the
..rnl.. agrwwnenI ~ the PIlI1lea. IIIlcl no -.ment. promteee, or IndUeerneII1s Il1lIde by elIher perty or IIgtI1t 01 tItner
party Il\1It Is nat oontaIne<Iln IhIe WIIlten c;o!llr&cl S/WI be valiCI or bII1dlng; and this c:cnInIet may not be enlar\lId. mod-
/tied, or 8lbnd ~ In wriIlng elgnld by the perlles and endQn;oKj ~
9. F8llunt 01 clther P*'IY lD insiGl upon compllallCG with arrt pI'O\IleIon of thI8 AQleement shall not COIWIIlute . WfJiv.. C/ II'8t
~~, .
10. All notIoes required htreunder must be In wrIliIlg and ~t by c:owtified l1'I&Il. ~: t41!1 pr:wpIIId. IlOIlI'Il rece/pt ~ lD
the redplent lit tile '"'"flI'lttive add_lndlcated on the front. or to WI'l8te..... acIdrflll8 thB P8I!Y may deelgnate\ in Wl'itlng.
11. ~ elfdve dale C/ 1his ~t shall be the dale of ex.cutlOf\ by Q8W.
~~ ~~nJnIS 'W.wI.AN1Y COllPOllATION
~~AU~- - ,
MamI a. 2005
5oGO
BUILDER
D8te~cOO Jar;) 1'crl8nboo~ ~~kr.'.l-~.... .
- By -~~~
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lIlp_X
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ADDIlHDUM
In COl18ldenlltfM' for recsivl'Ig << ~ IlIIe, IuiIdw agr-. to 1I\IIlrIt8lrllls' Il\lIITlbeNhIp In tile OBW progI1lril for a perlad of
-L... yen to CORlI'IlOI1Oe an lhlI dalV this IIlIdendum 18 tlCBCuted by al!lW. BulldeI'.- to /lUbmltfor ......ment afllomM
whloh fJuIder or '"' 8fflIIlIte c:of'I8InH>l$ durin" tIIl8 term IItld any ~ In 6XChBngll, IluiIder's rate will be S 2. ;z r Ipw
thoueend. ll1e addendum wIlI_ for1lkt f*ma unless (3Ol c:Iaya prior to tIllI expIllIIlon of the tllrm, or any ~lS; fIIth8r
petty pro.tid8a ths other (30) clqa advanCe W1Ilten noIIoe that thiy Intend not 10 IKlenCIlht perIoCIlln1ItIIng the builder to a
~ """" If Builder pn:IVkles notJce. QBtN wllIlCl)t.lllllhe BWIder's rate upwM:I Mleclive at the end of 1he tt.r1 CUINIIt t8rm.
. BUILDER
)O~ eon.tructioo, , Inc_
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. net.
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By
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!: ~ BlJIU)EJlS WAJUWl'l'Y' COBPORmON
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PIea8G note that In reviewing applloants for the QBW Program.
certaln cost$ are incurr8d, therefore all app/1c8tIon fees .... non-refund8b".
c..,..JIeI~-
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~~'*tIOf
HAR-17-2006 FRI 12:31 PH HASON HARRIS & BAHR
FAX NO. 7703996471
_._---,-'"-" "-.
03/17/2006 FRI 10:29 FA! 7709742489 Fortenberry Construction
VERlFICATION
I, IORDAN F. OLSHBFSKI. ViA:e Pr-i<kmt of Quality :Builders Wammty
CorpanlliOll, bmby catIfy .., state that 1he foreaoiDg Comv"'lu1 iJ true 8Dd cam:er to fbe
best offl11 knowledge, i:nfom'I'II'llI' IlIld beli~ and that IIlll<lmlaDd that fabe !lIlItelnents
bcroin In 1D8de subjeot to 1Ile peIl8lties of 18 Pa. C.8. S4904. rdatiDs to lIII&IIiOlIl ft,Jsjfi..g.. .
to autboritics.
Dale: ~/lj 10' .
Quality BuiJdllIS WlD'I'IQ1y C<<pontion
By; ?-~.
JOIlIan F. olshefski. Vice Pnlsidcat
p, 12
~0l1/012
.,
_._-_._~.- '- .__. ---.,
MAR-17-2006 FRl 12:31 PM MASON HARRIS & BAHR
FAX NO. 7703996471
P. 13
@012/012
03/17/2006 FRI 10:29 FAX 7709742489 Fortenberry Construction
,
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
QUALITY BUILDERS WARRANTY
CORPORATION,
Plaintiff,
Removed from the Court of
Cumberland County, Pennsylvania
No. 06-1046
v.
CIVIL ACTION
FORTENBERRY
CONSTRUCTION, INC.,
Defendant.
CERTIFICATE OF SERVICE
I hereby certify that I have this 24th day of March, 2006, served upon the
persons listed below a true and correct copy of the Notice of Removal in the above
captioned matter by United States First Class mail, postage prepared:
John A. Gill, Esquire
325 North Second Street
W ormleysburg, P A 17043
MARTS ON DEARDORFF WILLIAMS & OTTO
~JtkU ~).,~
By: /s/ Michael J. Collins
Michael 1. Collins, Esquire
Attorney LD. No. 200427
10 East High Street
Carlisle, PAl 70 13
(717) 243-3341
Date: March 24, 2006
Attorneys for Defendant
F\FILES\DA TAflLE\General\Cul1'em\ 12035, I,affidavit\mas
Created 3/24/06042PM
Revi~ed 3/24/()6 3,OIPM
12035,1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
QUALITY BUILDERS WARRANTY
CORPORATION,
Plaintiff,
Removed from the Court of
Cumberland County, Pennsylvania
No. 06-1046
v.
CIVIL ACTION
FORTENBERRY
CONSTRUCTION, INC.,
Defendant.
AFFIDAVIT OF SERVICE
George B. Faller, Jr., being duly sworn according to law, deposes and says that
he is filing a true and correct certified copy of the Defendant's Notice of Removal,
together with copies of the documents attached hereto with the Prothonotary of
Cumberland County, Pennsylvania, by first class mail on March 24, 2006.
MARTS, N DEARD~F WILLIAMS & OTTO
~ i / I~
'--"
By: Isl beor . Faller r. I
George B. Faller, Jr., Esqui
Attorney J.D. No. 49813
Michael J. Collins, Esquire
Attorney J.D. No. 200427
10 East High Street
Carlisle, P A 170] 3
(717) 243-3341
Date: March 24, 2006
Attorneys for Defendant
AFFIDAVIT
GEORGE B. FALLER, JR., being duly sworn according to law deposes and
says that the facts set forth in the foregoing Notice of Removal are true and correct to
the best of his knowledge, information and fehef.
/! f3>
(
Ge'orge . Faller, Jr.
SWORN TO AND SUBSCRIBED
before me this ~)day of March, 2006
l ij\[ C.t/YJ~
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
C~::8oroA SchoIIyeu ,Notal)! Public
. " mberland County
My Commission Expires Jan. 19, 2010
Member, PennsylvanIa Anoolatlon of Notalies
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QUALITY BUILDERS WARRANTY
CORPORATION,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
vs.
CIVIL ACTION
FORTENBERRY CONSTRUCTION, INC.
DOCKET NO. 06-1046 CIVIL TERM
Defendant
To: Fortenberry Construction, Inc.
4496 Carnes Street
Acworth, GA 30101
Date of Notice: March 24, 2006
IMPORTANT NOTICE
YOU ARE IN DEF AUL T 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, P A 17013
717-249-3166
Respectfully Submitted,
John . Gill, Esquire
Quality Builders Warranty Corporation
325 North Second Street
W ormleysburg, P A 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:
Fortenberry Construction, Inc.
4496 Carnes Street
Acworth, GA 30101
Date: MwV1.2 41Z-OOb
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F :\FILESIDA T AFILElGenerallCurrentl12035 .1.preliminaryobjections
George B. Faller, Jr., Esquire
I.D. No. 49813
Michael J. Collins, Esquire
I.D. No. 2000427
MARTSON DEARDORFF WILLIAMS & OTTO
10 East High Street
Carlisle, P A 17013
(717) 243-3341
Attorneys for Plaintiff
QUALITY BUILDERS WARRANTY
CORPORATION,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v
: NO. 06-1046 CIVIL TERM
FORTENBERRY CONSTRUCTION, INC.,:
: CIVIL ACTION
Defendant
DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
AND NOW, comes Defendant Fortenberry Construction, Inc, by and through its attorneys
MARTSON DEARDORFF WILLIAMS & OTTO, and hereby preliminarily objects to Plaintiffs
Complaint pursuant to Pa.R.C.P. 1028(a)(4), averring as follows:
DEMURRER
1. The Plaintiff in the instant action is seeking, inter alia, specific performance under the
contract.
2. Specific performance is a remedy that courts will grant only where the facts clearly establish
the plaintiff s right thereto, where no adequate remedy at law exists, and where justice requires it. See,
Clark v. Pennsylvania State Police, 496 Pa. 310 (1981).
3. Even if the allegations in Plaintiff's complaint are proved to be true and this Court enters
a judgment against Defendant, what Plaintiff is essentially seeking is the value of exclusive enrollment of
homes in its program, not the actual enrollment of same homes.
4. Because money damages will put Plaintiff whole if judgment is entered against Defendant,
it cannot be said that there is no adequate remedy at law.
5. Consequently, Plaintiff fails to state a claim for specific performance.
WHEREFORE, Defendants hereby request that this Honorable Court dismiss the instant action
against Plaintiff and enter judgment for Defendant.
Respectfully Submitted,
MARTSON DEARDORFF WILLIAMS & OTTO
By 1vUJ~
George B. Faller, Jr., sqUIre
Attorney J.D. No. 49813
Michael J. Collins, Esquire
Attorney J.D. No. 200427
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Defendant
DATE: 00/05'100
."
CERTIFICATE OF SERVICE
I, Mary M. Price, an authorized agent of Marts on Deardorff Williams & Otto, hereby certify that
a copy of the foregoing Defendant's Preliminary Objections to Plaintiff s Complaint was served this date
by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as
follows:
John A. Gill, Esquire
Quality Builders Warranty Corporation
325 North Second Street
Wormleysburg, PA 17043
Attorney for Plaintiff
MARTSON DEARDORFF WILLIAMS & OTTO
By ~ 'A, Qft4~
Mary . 'ce
Ten Eas Igh Street
Carlisle, P A 17013
(717) 243-3341
Dated:
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QUALITY BUILDERS WARRANTY
CORPORATION
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff,
v.
DOCKET NO. 06-1046 CNIL TERM
FORTENBERRY CONSTRUCTION, INC. :
CNIL ACTION
Defendant
PLAINTIFF'S REPLY TO DEFENDANT'S PRELIMINARY OBJECTIONS
AND NOW, comes Plaintiff, Quality Builders Warranty Corporation (QBW), by and
through it s attorney, John A. Gill, Esquire, and files within reply to Defendant's Preliminary
Objections and states as follows:
DEMURRER
1. Admitted.
2. The allegations in paragraph 2 of the Preliminary Objections contain conclusion of
law to which no response is required.
3. Denied. Plaintiff is in fact seeking the enrollment of all homes which Defendant
constructs as required by it's Builder Agreement.
4. Denied. Defendant is required to enroll all homes it constructs for the period March
8,2005 to March 8, 2010. The warranty fee, which Defendant pays the Plaintiff, is based on the
selling price of each individual home constructed. While the damages for homes enrolled to date
-.
could be calculated the damages from the current date forward could not since the amount would
be determined from the homes constructed and sold by Defendant from the current date to March
8,2010 would be speculative and as such Plaintiff is entitled to specific performance as specified
in the agreement of the parties and attached to Plaintiff's Complaint as exhibit 1.
5. Denied. Plaintiff has in fact stated a claim for specific performance.
WHEREFORE, Plaintiff hereby requests that this Honorable Court dismiss Defendants
Preliminary Objections.
Respectfully Submitted,
~1I,&qW:
Quality Builders Warranty Corporation
325 North Second Street
Wormleysburg, PA 17043
(717) 737-2522
#41532
Attorney for Plaintiff
Quality Builders Warranty Corporation
QUALITY BUILDER WARRANTY
CORPORATION
: IN THE COURT OF COMMPON PLEAS
: OF CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
No. 06-1046 CIVIL TERM
v.
FORTENBERRY CONSTRUCTION, INC.
CIVIL ACTION
Defendant
ORDER OF COURT
AND NOW, this
day of
2006, after consideration of Defendant's
Preliminary Objections to Plaintiff's Complaint, and Plaintiff's Reply, the Preliminary Objections
are DENIED and Defendant is directed to file an answer to Plaintiff's Complaint.
BY THE COURT,
J.
...
.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the Plaintiff's reply to Defendants
Preliminary Objections has been duly served upon the following part of record by depositing
the same in the United States mail, postage prepaid, in Camp Hill, Pennsylvania on this 23rd
day of June, 2006, and to the address listed below:
George B. Faller, Jr., Esquire
Martson Deardorff Williams & Otto
10 East High Street
Carlisle, P A 17013
~ {l ~"y,:
Pe Morrison, Secretary
...
.
PRAECIPE FOR I.JSTlNG CASE FOR ARGUMENT
(Mast be typewritten and submitted In dapllcate)
TO 1HE PROlHONOTARY OF CUMBERLAND COUN1Y:
Please list the within matter for the next Argument Cowt.
CAPTION OF CASE
(entire caption must be stated in full)
Quality Builders Warranty Corporation
(Plaintiff)
VB.
Fortenberry Construction Inc.
(Defendant)
No. 06-1046
Civil Term
1. Slate _ to be argued (i.e., p1aiD!ilf's motion for DCW trial, (I..r...l.nt's demuIm to
complaiDt, cle.): d I 1" No. .. 1" ff I
Defen ant s Pre 1m1nary ~Ject1on to P a1nt1 s
Complaint
2. IcIcmify COUIIlIel who wiD argue cues:
(s) for plainti1f:
John A. Gill, Esquire
(Name 8Dd Address)
325 North Second Street, Wormleysburg, PA 17043
(b) for defeDdsnt:
Georqe B. Faller, Jr., Esauire
(Name and Address)
10 East Hiqh Street, Carlisle, PA 17013
3. I wiD DOtUY all parties in writing wilbin two days tbst this case bas been listed for argument
4. Argument Court DSIe:
October 25,
2006
~~-h-
Si - A. Gill, Esquire
Print)'OUl'namB
Date, lS-zz'-oc;
Quality Builders Warranty Corp.
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QUALITY BUILDERS WARRANTY
CORPORATION
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
No. 06-1046
v.
FORTENBERRY CONSTRUCTION, INC.
CNIL ACTION
Defendant
PRAECIPE
TO THE PROTHONOTARY:
Please mark the above caption action as "Discontinued with Prejudice".
Respectfully Submitted,
Date://-/J-o~
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o ~. Gill, Esquire
325 North Second Street
Wonnleysburg, PA 17043
(717) 737-2522
#41532
Attorney for Plaintiff
Quality Builders Warranty Corporation
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