HomeMy WebLinkAbout00-01881
WILLIAM MILLER, JR., and
ELLIOTT MILLER, Vd/b/a
VARSITY VOLKSWAGEN, INC.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO, 2000- !f~1
CIVIL TERM
VW CREDIT, INC"
CIVIL ACTION-LAW
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 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.
I 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
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WILLIAM MilLER, JR, and
ELLIOTT MILLER, Vd/b/a
VARSITY VOLKSWAGEN, INC.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
v.
NO. 2000- ) 6' /1/
CIVIL TERM
VW CREDIT, INC.,
CIVIL ACTION-LAW
Defendant
COMPLAINT
AND NOW, come plaintiffs, by and through their attorneys, O'BRIEN, BARIC &
SCHERER, and file the within complaint and, in support thereof, set forth the following:
1. Plaintiff William Miller, Jr. is an adult individual with a residence address of Camp
Hill, Cumberland County, Pennsylvania.
2. Plaintiff Elliott Miller is an adult individual with a residence address of Carlisle,
Cumberland County, Pennsylvania,
3, On or about February 25, 1998, plaintiffs Bill and Elliott ("Chip") Miller
incorporated a business known as Varsity Volkswagen, Inc,
4, Varsity Volkswagen, Inc. was incorporated under the laws of the Commonwealth
of Pennsylvania and throughout its existence the only directors, shareholders and officers of
Varsity Volkswagen, Inc. were Bill and Chip Miller.
5. The principal place of business of Varsity Volkswagen, Inc, ("Varsity") was 1119
Harrisburg Pike, Carlisle, Pennsylvania, Currently, the address for mailing to Varsity is 1000
Bryn Mawr Road, Carlisle, Pennsylvania.
1
6. On or about January 1,1992, Varsity entered into a Volkswagen Dealer
Agreement with Volkswagen United States, Inc., a division of Volkswagen of America, Inc., a
true and correct copy of the Volkswagen Dealer Agreement ("Dealer Agreement") is appended
hereto as Exhibit A and is incorporated.
7. Shortly after entering into the Dealer Agreement, Varsity entered into a Retail
Financing Agreement with VW Credit, Inc.
8. Upon information and belief, VW Credit, Inc. is a subsidiary, division or related or
affiliated company of Volkswagen United States, Inc. with its principal place of business located
at 888 West Big Beaver, Troy, Michigan.
9. VW Credit, Inc. is a Delaware corporation and has been registered to do business
in Pennsylvania since June 4, 1981.
10. Plaintiffs have been unable to locate a copy of the Retail Financing Agreement.
11. The Retail Financing Agreement provided for plaintiffs to obtain financing of
automobile purchases for customers through VW Credit, Inc.
12. The Retail Financing Agreement provided for the establishment of a "Dealer
Reserve Account". This account was held by VW Credit, Inc. and the balance was in the nature
of an escrow account.
13. As individual customers made payments against a loan issued by VW Credit, Inc.
for a car purchased from plaintiffs, a portion of the payment would be placed into the Dealer
Reserve Account.
2
14. If an individual customer repaid a loan prior to the loan payoff date or defaulted in
payments, the Dealer Reserve Account would be adjusted.
15. In March, 1996 Bill and Chip Miller dissolved the corporation known as Varsity
Volkswagen, Inc.
16. Bill and Chip Miller made adequate provision for the discharge of all liabilities of
the corporation known as Varsity Volkswagen, Inc. at the time of winding up of the affairs of the
corporation.
17. Pursuant to 15 Pa.C.S.A. Section 1971 et seq., any surplus remaining after
providing for the discharge of liabilities of a corporation which is winding up its affairs shall be
distributed to the shareholders of the corporation.
18. Bill and Chip Miller were the only shareholders of Varsity Volkswagen, Inc. at the
time of its dissolution and winding up of its affairs.
19. In October, 1998, Bill and Chip Miller received a Dealer Reserve Activity Register
statement from Volkswagen Credit indicated that the available earnings in the account established
for Varsity were $14,594.32. A true and correct copy of the Dealer Reserve Activity Register of
October, 1998 is attached hereto as Exhibit B and is incorporated.
20. Upon information and belief, no additional account activity has taken place since
October, 1998 which would effect the balance of the account and the available earnings as stated
in the October, 1998 statement.
3
21. Plaintiffs terminated the Dealer Agreement in 1994 and the purchaser of plaintiffs
business entered into a Dealer Agreement with Volkswagen United States, Inc. to operate a
dealership from the premises formerly occupied by Varsity.
COUNT I
WILLIAM MILLER, JR. AND ELLIOTT MILLER
VS.
VW CREDIT, INe.
BREACH OF CONTRACT
22. Plaintiffs incorporate by reference paragraphs one through twenty-one as though
set forth at length.
23. Despite demand therefore, Defendant has failed and refused to turn over to
plaintiffs the sum of money held in the Dealer Reserve Account by Defendant for the benefit of
plaintiffs.
24. Defendant has breached the Retail Financing Agreement by failing and refusing to
release the funds owed to plaintiffs.
25. All conditions precedent to recovery under the Retail Financing Agreement have
been fulfilled.
26. As a direct and proximate result of the breach of the Retail Financing Agreement
by Defendant, plaintiffs have been precluded from collecting the amounts held in the Dealer
Reserve Account.
WHEREFORE, plaintiffs request judgment in their favor and against the defendant for the
sum of$14,594.32 plus interest, costs and expenses.
4
COUNT n
WILLIAM MILLER, JR. AND ELLIOTT MILLER
VS.
VW CREDIT, INC.
QUANTUM MERUIT
27. Plaintiffs incorporate by reference paragraphs one through twenty-six as though
set forth at length.
28. VW Credit, Inc. will be unjustly enriched if it is permitted to retain the proceeds of
the Dealer Reserve Account for Varsity.
WHEREFORE, plaintiffs request judgment in their favor and against the defendant for the
sum of$14,594.32 plus interest, costs and expenses.
Respectfully submitted,
J;:;;3;;cr
David A. Baric, Esquire
ill # 44853
17 West South Street
Carlisle, PA 17013
(717) 249-6873
Attorney for Plaintiffs
dab.dirlIitigationlcarl.pro/varsity/complaiotpld
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VERIFICATION
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 JPa. C.S. ~ 4904,
relating to unsworn falsification to authorities.
~i1/J;~.
Willi ler, Jr.
DATED:
~ 1~4 ()b
.
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VERIFICATION
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. ~ 4904,
relating to unsworn falsification to authorities.
uLrfJ-sk
Elliott Miller
DATED:
3k31~
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Volkswagen Dealer Agreement
1. Appointment. VOlkswagen United States, Inc., a division of Volkswagen of America, Inc.
("Distributor"), having a place of business at 9300 Martin Luther King ,Tr. Hwy.. Lanham, MJ) :10706
appoints VARSITY VOLKSWAGEN, INC. ("Dealer"),
doing business under the fictitious name None
having its place of business at 1119 Harrisburg Pike. Carlisle. pennsyl van]" 1701 3
as an authorized dealer in Volkswagen brand motor vehicles and genuine parts and accessories therefor.
Accordingly, the parties agree as follows:
2. Standard Provisions, The Dealer Agreement Standard Provisions (the "Standard Provisions")
(Form No. Deal.-92VB) are part of this Agreement. Any term not defined in this Agreement has the meaning
given such term in the Standard Provisions.
3. Ownership and Management. To induce Distributor to enter into this Agreement. Dealer
represents that the persons identified in the Statement of Ownership and Management. which is attached as
Exhibit A, are Dealer's Owners and Executives. Distributor is entering into this Agreement in reliance upon
these representations, and upon the continued provision by such persons of their personal services in fulfillment
of Dealer's obligations under this Agreement. Accordingly, Dealer agrees there will be no change in Dealer's
Owners without Distributor's prior written consent, and no change in Dealer's Executives without prior notice to
Distributor.
4. Minimum Financial Requirements. Dealer agrees to comply and maintain compliance with the
minimum financial requirements established for Dealer from time to time in accordance with the Operating
Standards. Throughout the term of this Agreement those minimum financial requirements are subject to
revision by Distributor, after review with Dealer, in light of operating conditions and the development of Dealer's
business and business potential.
5. Dealer's Premises. Distributor has approved the location of Dealer's Premises as specified in the
Dealer Premises Addendum, attached as Exhibit B. Dealer agrees that. without Distributor's prior written
consent, it will not (a) make any major structural change in any of Dealer's Premises, (b) change the location of
any of Dealer's Premises or (c) establish any additional premises for Dealer's Operations.
EXHIBIT "A"
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6. EXCLUSION OF WARRANTIES. EXCEPT FOR DISTRIBUTOR'S WARRANTIES, AND EXCEPT
AS PROVIDED IN ARTICLE 9(1) OF THE STANDARD PROVISIONS, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES OR OBLIGATIONS OF THE MANUFACTURER OR DISTRIBUTOR AS TO THE QUALITY OR
CONDITION OF AUTHORIZED PRODUCTS, OR AS TO THEIR MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, AND, TO THE EXTENT PERMITTED BY LAW. DEALER WILL EXCLUDE ANY AND
ALL SUCH WARRANTIES AND OBLIGATIONS IN ITS SALES OF AUTHORIZED PRODUCTS.
7. Term. The term of this Agreement begins on the date of its delivery to Dealer or on
January 1, 1992, whichever is later. This Agreement shall continue in effect until December 31, 1996, or
----------------- . 199-=-.. whichever is earlier, unless sooner terminated by either party or superseded
by a new Dealer Agreement with Distributor.
8. Governing Law. This Agreement will be construed in accordance with the laws of the State of
Pennsylvania . Should the performance of any obligation under this Agreement violate any valid law
of such jurisdiction, then this Agreement shall be deemed modified to the minimum extent necessary to comply
with such law.
9. Additional Terms and Conditions. The Addenda attached hereto as Exhibits A through R
are part of this Agreement. and are incorporated into this Agreement by this reference.
Dated:
January 1,
19 92
By:
Zone Manager
Dealer
By: [~)lP~ rn lltlj1?~<b,
Title: President
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Exhibit A to
Volkswagen Dealer Agreement
Dated January 1 ,19 -2L.
Statement Of Ownership And Management
1.
2.
3.
Dealer firm name: VARSITY VOLKSWAGEN, INC.
Principal place of business: 1119 Harrisburq Pike, Carlisle, Pennsylvania
Dealer is a () proprietorship
() partnership
(~ corporation, incorporated on
February 25. 1988
under the laws
of the State of
Pennsylvania
4. The following persons are the beneficial and record owners of Dealer:
Name and Address of Each
Record and Beneficial
Owner of Dealer
*William Miller, Jr.
Camp Hill, PA
If a Corporation,
Number and
Class of Shares
Number Class
Percentage of
Ownership
of Record
in Dealer
50
50
Elliott "Chip" Miller
OCean City, NJ
50
50
*Voting Proxy
5. The following persons are Dealer's Officers:
Name and Address
Title
William Miller, Jr.
Address shown above.
President
Elliott "Chip" Miller
Address shown above.
Secretary/Treasurer
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6. The following person functions as General Manager of Dealer. As such, he is an agent of Dealer and is
authorized, and Distributor is entitled to rely on his authority, to make all decisions on behalf of Dealer with
respect to Dealer's Operations.
Name and Address
Title
William Miller, Jr.
Camp Hill, PA
General Manager
Dealer hereby certifies that the foregoing information is true and complete as of the date below. Distributor has
entered into this Agreement in reliance upon the qualifications, and the continued provision of personal services
in the ownership and management of Dealer by, the persons identified above.
This Exhibit cancels any prior Statement of Ownership and Management.
Dated:
January 1,
19 92
Dealer
By: Il}, filAx:{ vYI.J1~~<Ih
Title: President
Form No. Deol.-92VXA
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Exhibit B to
Volkswagen Dealer Agreement
Dated January 1 19...1L.
Dealer Premises Addendum
1.
Dealer firm name:
VARSITY VOLKSWAGEN. INC.
2. Distributor has approved the location of the fOllowing premises, and no others, for Dealer's Operations:
a. Sales Facilities:
1119 Harrisburg Pike, Carlisle, Pennsylvania
b. Authorized Automobile Storage Facilities:
Same as (a.) above.
c. Service Facilities:
Same as (a.) above.
d. Genuine Parts Storage Facilities:
Same as (a.) above.
e. Used Car Lot:
Same as (a.) above.
Dealer hereby certifies that the foregoing information is true and complete as of the date below.
The Exhibit cancels any prior Dealer Premises Addendum.
Dated:
January 1,
19 92
Dealer
By: ~\.Qe~ 117 .l1~~
Title: President
Form No. Deol.-92VXB
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IRREVOCABLE PROXY
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WHEREAS the ownership of Varsity Volkswagen, Inc., a
Pennsylvania corporation (the "Corporation"), is as follows:
Percent of
ownership
Name
William Miller, Jr.
Elliott "Chip" Miller
Number of
Shares
50
50
50.0
50.0
WHEREAS Volkswagen of America, Inc. ("YWoA"), as a
condition of entering into a Volkswagen Dealer Agreement
with the Corporation requires that a majority of voting
power of the Corporation be held by a single individual; and
WHEREAS the undersigned desires that William Miller,
Jr., one of the owners of the Corporation, has such majority
voting control.
The undersigned, Elliott "Chip" Miller, holding 50
shares of stock of the Corporation does hereby make,
constitute and appoint William Miller; Jr. for the period
commencing upon execution of this Irrevocable Proxy and
ending on December 31, 1996, his true and lawful attorney
and proxy for and in his name, place and stead in respect of
such stock or any other stock in the Corporation received by
the aforementioned attorney for the purpose of representing
and voting for the undersigned at all meetings, regular or
special, of the Corporation; consenting to and waiving
notice of all special or regular meetings; consenting to and
entering into any transactions, contracts, reorganizations,
recapitalizations, dissolutions, changes of name, or other
acts of any kind or nature requiring a consent of
stockholders or for which the consent of stockholders is
requested by the Corporation; and, without limitation
because of the above specific enumeration of authority
hereby conferred, to do any and all acts and things which
the undersigned might or could do in respect of such
stock. The undersigned hereby agrees that, in consideration
of the acceptance of the authority hereby conferred and of
the undertakings of the aforementioned attorney to act
uniformly on behalf of all stockholders, this power of
attorney and proxy is coupled with an interest and is
irrevocable, and the undersigned hereby ratifies and
confirms all that such attorney and proxy may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF I have hereunto set my hand this
1st day of January 1992.
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2000-01881 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MILLER WILLIAM JR ET AL
VS
VW CREDIT INC
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
VW CREDIT INC C/O CT CORPORATE SYSTEMS
but was unable to locate Them
in his bailiwick. He therefore
deputized the sheriff of PHILADELPHIA
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On April
17th, 2000 , this office was in receipt of the
attached return from PHILADELPHIA
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep. Phila Co
18.00
9.00
10.00
116.00
.00
153.00
04/17/2000
O'BRIEN, BARIC
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R. IThomas Kl ine .
Sheriff of Cumberland County
& SCHERER
Sworn and subscribed to before me
this Ie; 'S'
day of ~:R
c2lHrO A. D .
quI''' . Q. 1M ,p'jJ,...; . o/~
Prothonotary'
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SHERIFF'S RETURN - SUMMONS/COMPLAINT
.
N. I Lcf....JZ
COMMON PLEAS NO.
COUNTY COURT
VERSUS
TERM, ~O
V Lu <i.i< llJ I r
NO. t~rl
(2/0 (! /" (20,<' P S'j.J/'lM
SERVED AND MADE KNOWN TO A t3 oil' ~ IV;Q fV/ €...b
o Defendant
E8 Defendant Company
by handing a true and attested cop.y of the within Summons/Complaint, issued in the above captioned matter
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on I}p ~ 1(... 5 ,ClIlCo ,at 10:00 o'clock,,4 M., E.S.T./-Ei S.T.
at I C, 3 S" M i1 R K LJ" S ~ , in the County of Philadelphia,
State of Pennsylvania, to S f1 tI.J D R 4- ~ 0 L 0 H 0 A..J
o (1) the aforesaid defendant, personally;
o (2) an adult member of the family of said defendant, with whom said defendant resides, who stated that
his/her relationship to said defendant is that of
o (3) an adult person in charge of defendant's residence; the said adult person having refused, upon re-
quest, to give his/her name and relationship to said defendant;
o (4) the manager/clerk of the place of lodging in which said defendant resides;
t2t (5) agent or person for the time being in charge of defendant's office or usual place of business.
o (6) the and officer of said defendant Company;
So Answers,
JOHN O. GREEN, Sheriff
By:
C}L
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Deputy Sheriff
12.38 (Rev. 12Al7)
~~- ..
. In The Court of Common Pleas of Cum bed and County, Pennsylvania
William Miller, Jr., e t. al.
vs.
VW Credit, Inc., c/o CT Corporate Systems
No. 20-1881 Civil
Now. 3/29
,
,20 0 C , I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of Philadelphia
County to execut~ this Writ, this
deputation being made. at the request and risk of the Plaintiff.
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Sheriff of Cumberland County, P A
Affidavit of Service
. Now
,
, 20_, at
0' clock
. M. served the
within
upon
at
by handing to
a
copy of the original
and made known to
the contents thereof.
So answers,
Sheriff of
County, PA'
Sworn and subscribed before
me this_day of ,20_
COSTS
SERVICE
MILEAGE
AFFIDA VJI.
$
$
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WILLIAM MILLER, JR., and
ELLIOTT MILLER, f/d/b/a
VARSITY VOLKSWAGEN, INC.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 2000-1881 CIVIL TERM
CIVIL ACTION-LAW
VW CREDIT, INC.,
Defendant
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Kindly mark the above-captioned action as having been settled and discontinued with
prejudice.
Respectfully submitted,
Date:~
~o~7I
David A. Baric, Esquire
I.D. # 44853
17 West South Street
Carlisle, PA 17013
(717) 249-6873
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ii CERTIFICATE OF SERVICE
I hereby certify that on July 1 , 2000, I, David A. Baric, Esquire, of O'Brien, Baric
& Scherer, did serve a copy ofthe Praecipe To Discontinue, by first class U.S. mail, postage prepaid,
to the party listed below, as follows:
I
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Stephen M. Ryan, Esquire
Daniels & Kaplan, P.C.
1102 Grand Boulevard
Fifteenth Floor
K~'C~'[:A (l,
David A. Baric, Esquire