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HomeMy WebLinkAbout00-01423 EDWARD R. KENNEDY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. AUTO-MAX OF CARLISLE, d/b/a KEYSTONE AUTO -,- EXCHANGE SALES, INC., Defendant NO. 2000-1'1;)] CIVIL TERM CIVIL ACTION - LAW 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 an 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 WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 ~~,"" ,,.,,.. , ,~ , .- .. ,~- - ,,'"" -,. ~F' - I ~ ,~,-""" EDWARD R. KENNEDY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. AUTO-MAX OF CARLISLE, d/b/a KEYSTONE AUTO -,- EXCHANGE SALES, INC., Defendant NO. 2000- /'f;U CIVIL TERM CIVIL ACTION - EQUITY COMPLAINT 1. Plaintiff is Edward R. Kennedy, an adult individual who resides at 2071 Ritner Highway, Carlisle, Pennsylvania 17013. 2. Defendant is Auto-Max of Carlisle, d/b/a Keystone Auto Exchange Sales, Inc., hereinafter referred to as Auto-Max, is a business engaged in the resale of motor vehicles. Its offices are located at 1110 Harrisburg Pike, Carlisle, Pennsylvania 17013. 3. On or about December 14, 1999, Plaintiff purchased from Defendant a 1990 Ford F-350 pickup truck, VIN number 1 FTEF26H1 LNA37885. Plaintiff paid Defendant the total sum of $9,163.50 for the motor vehicle. The purchase order contract is incorporated herein and attached as Exhibit "1\'. 4. At the time of said purchase, Plaintiff was given by Defendant a full warranty on the vehicle for six months or 6,000 miles. 5. Within a short time, Plaintiff had to return the vehicle because of defects with the windshield. At that time, he also indicated that the engine was low in power and consuming large amounts of oil. Defendant purported to repair the vehicle and returned it to Plaintiff. Upon driving the vehicle, Plaintiff noted that the same defects with the engine continued to exist so he returned the vehicle to Defendant. ,~ ,. ~ ..,. 6. Defendant has repeatedly acknowledged its obligations under the warranty. Defendant has had the vehicle for most of the past four months and despite assurances that the vehicle would be fixed, Defendant has not done so. Defendant at ~~. one point admitted that it did not have a mechanic capable of repairing the diesel engine in the vehicle. Plaintiff believes that Defendant has not made adequate efforts to repair the vehicle. 7. Plaintiff is a contractor and is in need of a truck in order to conduct his contracting business. Plaintiff also uses the vehicle for his family and personal use. Due to Defendant's retention of the vehicle and its unwillingness or inability to repair the vehicle, Plaintiff will have to rent a replacement vehicle until such time as Defendant repairs the vehicle or returns the purchase price to him so he can buy a replacement vehicle. 8. Plaintiff in the course of dealing with the Defendant has learned from the records at PaDOT that the vehicle is in fact not a Ford F-350 but rather a Ford F-250. COUNT I MISREPRESENTATION 9. Plaintiff incorporates Paragraphs 1 through 8 herein. 10. The Defendant knew or should of known that the vehicle it sold to Plaintiff was a Ford F-250 and not a Ford F-350 as it represented it to be. 11. The Plaintiff purchased the vehicle with the mistaken belief it was a Ford F-350. The fact that the vehicle was represented to have been a F-350 was material to ~~ c ~~ ,< ,,~" i Plaintiff's decision to purchase the vehicle. Wherefore, Plaintiff respectfully requests that the Court set aside the transaction ". between the parties due to misrepresentation as to a material fact and enter judgment against the Defendant in the sum of $9163.50, the costs of renting a replacement vehicle, interest, costs, restitution and attorney's fees. COUNT II BREACH OF CONTRACT 12. Paragraphs 1 through 11 are incorporated herein. 13. The Plaintiff purchased the vehicle with the understanding that the Defendant warranted that the vehicle would be fully repaired in a timely fashion in the event it was defective. 14. The Defendant's failure to repair the vehicle and to repair it in a timely fashion constitutes a breach of the Defendant's contract with the Plaintiff. 15. In order to conduct his business and earn his income as well as to provide for his family and personal use, the Plaintiff will have to make arrangements to rent a replacement vehicle and makes claim for this expense against the Defendant. Wherefore, Plaintiff requests that the Court rescind the contract and enter judgement against the Defendant in the sum of $9,163.50, the costs to Plaintiff of renting a replacement vehicle until such time as the money is returned, interest, costs, restitution, consequential and incidental damages. ; :_In,. " ,'- 'I"'"C COUNT III BREACH OF EXPRESS AND IMPLIED WARRANTIES 16. Paragraphs.,~ through 15 are incorporated herein. 17. The Defendant, when it offered the warranty on the vehicle, placed upon itself the duty to repair defects occurring during the first six months or first 6,000 miles that the Plaintiff utilized the vehicle. The Plaintiff has not had the vehicle for four months as of the date of this claim and has not placed six thousand miles on the vehicle. 18. The Plaintiff avers that the warranties are within the ambit of the Magnuson-Moss Warranty Improvement Act. The Defendant's failure to repair the vehicle is a violation of that law. Wherefore, Plaintiff requests that the Court rescind the contract and enter judgement against the Defendant in the sum of $9,163.50, the costs to Plaintiff of renting a replacement vehicle, interest, costs, restitution, attorney's fees, and consequential and incidental damages. COUNT IV PENNSYLVANIA'S UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 19. Paragraphs 1 through 18 are incorporated herein. 20. The actions of the Defendant in passing off the vehicle as a F-350 when it ,~,<,', . T' was in fact a F-250 constitutes an unfair or deceptive act or practice. 21. The failure to repair the vehicle constitutes a failure to comply with the terms of the warranty giv~!1 to the Plaintiff at and after the contract for the purchase of the vehicle by the Plaintiff. 22. The aforesaid actions by the Defendant constitute a violation of the aforementioned Fair Trade law. Wherefore, Plaintiff requests that the Court rescind the contract and enter judgement against the Defendant in the sum of $27,490.50, the costs to Plaintiff of renting a replacement vehicle, interest, costs, restitution, consequential and incidental damages. Respectfully submitted, O'BRIEN, BARIC & SCHERER By: t 'K~ Robert L. O'Brien, Esquire Attorney for 1.0. # 28351 17 West South Street Carl isle, Pennsylvania 17013 robrien@obslaw.com rob/clients/ken(ledylkennedy.com i~~j-"",:, .-f , ~ - - , I I I i I I I , I I I I I I I I I I ~',~'P""', ,~. " " VERIFICA liON I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. .,.,. C.S. Section 4904, relating to unsworn falsification to authorities. Date:~(}{L~ \.D tetJ '-, 1-' ^ '0, " ~ f- ~' Auto-Max of Carlisle 1110 Harrisburg Pike Ca.<\W.... PII.. 17013 -(717) 243-0707 Q KeyStone Auto Exchange Sales, Inc. DBA Auto-Max of Meehanicsburg 5270 E. Trind!e Rd. Mechanlcsburg, PA. 17055 (717) 691-6888 a ~.,--, PLEASE ENTER MY ORDER FOR THE FOLLOWING o NEW or [KJSED 0 DEMO 0 CAR 0 TRUCK ~~:gR YR. MAKE MODEL TYPE NAME v STReET 90 FORD COLOR F350 VIN r PHONE RES. STATE TRIM 1 F T E STOCK NO. see, SEC. NO, PRICE OF VEHICLE VA. MAKE TYPE COLOR TRIM MILEAGE DATE . ZIP 8500_0 '. --- '-~--- ~~-~-~:. .-,"'--.........-.....-.," .~ . o FACTORY WARRANlY - The factory warranty constitutes an of the warranties with respect 10 the sale of this Hemlilems. The seller hereby expressly disclaims all warranties, either expressed or implied Including arty implied warranty of merchantability or filness for a particular pUrp:lse, and the seller neither assumes nor authorizes any otl1er person to assume for it any HabTIily in connection Wlth the sale of this I lemlitems. o USED CAR WARRANTY. Used car is covered by a limited warranty detailed in a separate document o AS [S . This motor vehicle is sold "AS IS" without any warranty either expressed or im . (I. The purchaser will bear the entire expense 01 repairing or cor cling any.defect that presently . Is r that may occur in thevehic!e. PURCHASER'S Trade-In N / A S]GNA TURE X USED CA ONTRA UAL DISCLOSU Less Payoff * N/ A THE ]NFORMAT]ON YOU SE ON THE WI W FORM FOR TH]S VEH]CLE ]S PART OF TH]S CONTRACT. ORMAT]ON ON THE Net Trade In N/ A WINDOW FORM OVERR]DES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE._".~=." _ ~ ._~~2?~o_sit- .' c" .~~..,.1iL.A If you cancel this purchase agreement or refuse to take delivery of the vehicle ordered, except as permitted by law, you shall, at our option, forfeit as damages Cash on Delivery _". '...'!:,i/A the amount of $ Net . Cash"on Totar Down Payment PURCHASER'S :;.;;;;--::- ~ ,-:--- - .~~'=---;~-:~',; :_~, ..,,.;:ti;:: !j'=-: _ .,', L:t::::"'~-. ~ ~___ _ Trad~..!'_~PO~!! :"_oel~!y_ - . .n._.. ~~, .'.. .~_._ . SIGNATURE X Purchaser hereby adlflQw1edges to lhe above clause. Unpaid Balance"of Total Price' ; 91 Purchaser agrees that this order includes all of the terms and conditions on both the face and reverse side hereof, that, this order cancels and supersedes any prior agreement and as of the date hereof comprises the complete and exclusive statement of the terms of agreement relating to the subject matters covered hereby. This order shall not become bindinq until accepted bv the d~ater or his authorized representative. You. the buyer may cancel this contract and receive a full refund an time belore recei t of a co of this co ct si eel b an authorized dealer re resentative b ivin written..,lloti e of cancellation to the dealer. Purchaser by his e:xecution 0 knr.o read its terms and conditions and has ~jv,;a tn;t!f of this ord r. ~:bRNCAJ:l.t~~R'~ : DATE 12/14/99ACCEPTED BY .. 7 :I: ,.ft:.. Hl$1\tFfHel'llZ-EEI'REf' VIN TITLE NO. PLATE NO. EXP. DATE OWNER LIENHOLDER PHONE ADDRESS AMOUNT VERIFIED BY EXTENDED TYPE WARRANTY -- \ 00HS I Id '. RMAR'T' I'HOJI''R ~ -, MilES 6000---_ - Cash .Plica, oU/ehicle =& Acce$$Qrjgs, ~,_ __, _-=----=- _ -'---'<-=~-"''',",''':- .SalE):~_,J:ax TITLE ", TRANSFER/, "ENCUMBRA/ NeE 22.50 N A _ N A , Documentary Fee . Messenger Fee REGIS'1~88 INSURANCE co.. INTEGON EFFECTIVE DATE 05 29 99 SPOKE WITH 'Dt>-N.A VU'B~tnMc::R .-,~-":'~). EXP. DATE 05 29 00 '>.J: Notary Fee - WARRANTY INFORMATION ~~,,:~ OTHER: CHARGES. License Fee Total Price FORM PAA-910701 TAnVE ,.' N/A -8500. no --510.00 103.50 40.00 N/A N/A 10.00 N/A 9163.50 N/A DATE 12/14 r " LITHOINV,5.A. SHERIFF'S RETURN - REGULAR CASE NO: 2000-01423 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KENNEDY EDWARD R VS AUTO-MAX OF CARLISLE ET AL RICHARD SMITH Sheriff or Deputy Sheriff of Cumberl~nd County, pensylvania, who being duly sworn according to law, says, tIle within COMPLAINT & NOTICE was served upon AUTO MAX OF CARLISLE D/B/A KEYSTONE AUTO EXCHANGE SALES the DEFENDANT , at 0015:00 HOURS, on the 14th day of March 2000 at 1110 HARRISBURG PIKE CliRLISLE, PA 17013 MICHAEL BATEMAN (MANAGER) by handing to a true ~nd attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 3.10 .00 10.00 .00 31.10 ~~wt..t:~, R. Thomas Kline 03/15/2000 O'BRIEN, BARIC Sworn and Subscribed to before By: me this 1~ day of Deput DIn';"I;bruo A.D. , n a.~ ~~~onotary ,~ '-1'11_, ""