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Home My WebLink About00-02904 ~..J .'~ < " . CHRISTOPHER COOK and DELANIE COOK Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW No, 2000 CV 2904 DAIMLER CHRYSLER CORPORATION Defendant ~ C"~ AND NOW, this ~ day of ~ ' 2002, Daniel K. Deardorff, who was previously appointed as an arbitrator in the above captioned case, is replaced by Thomas J. Williams, Esquire, due to a conflict that developed in Attorney Deardorff s schedule, BY THE COURT, P. J. ., _,',N ~~, "'~""'" -- ^, ' F!LE[}-Oi=F1CE ,,~ T' ,'" .)-r-., 'r,' 1r'Y'A"'Y 0r ,;:,.., l'i';;Y";\,,)j\vl fl 02 OCT - 3 .pJlll: I I cu""" 01 h t 'C' rouNTY jvj~':j It..!"''\l'~ : u J PENNSYLVA.I\jIA , '," "" ,", _, ..":''''''~ .TI, ~ ~J ~J~ \~1 dJ "._~llI'Il1ft~ill\'f'~R\m~~.r, _ ,.-,.0 i~__~~",_=",,'''''''''''~='.'.~~" -- --, ~ '.~'.'~"'~-"1 "~IWlIii'..W....J.~' f'- - ''-'~ .'ill ~_' =.'."-....'lWflll!- ,I....,"""'..".~'"'"".~. '-., ~ ~" = ~L__ ~~~"~",,,,,; MMART$0N. DEARDORFF w~. ILLL~MS & OTTO '.- ,.,'. " . -. '. , ',; ,., '" " .> ..... ..D~,,(). , INFO~TION . ADY"GE' ~ An~bCACY: '. ~ ,: ,,' ,-' " YEti EAST HIGH STREET., ' CARLISLE, - PENNSYLVAN~ 170 i 3 TELEPHONE (717) 243,3341 FACSIMILE (717) 243-1850 INTERNET ~.n,idwo.cC?in ATTORNEYS & COUNSEllORS AT LAw 'WIllIAM F. MARTSON JOHN B.:F9WLER III EDWARD. L,. SCHORPF DANIEL K. DEARDORFF THOMASJ,WILIJ:AMS* ,lvo V. OtToIII GEORGE B, PALLE;tJR.* , eill C:R1SCH M4RK A. DENllNGER DAVID R. GALLOWAY *B04RD CERTlI'lED avn.' TRIAL SPECIALIST , September 18, 2002 Honorabl~ George E. Hoffer Cumberland CoimtyCoutthouse On<; Ci:nll;thouse Square Car1isle,P A 17013 RE: Christopher Cook and Ddlanie Cook v.Daimler Chrysler Corporation No. 2000 CV2904 ' DearJu,dge fIoffer: You appointedlneast~e,Chairi:nano{an ArbitrationBoardintheabove captioi:;ledcase. I schedu1ed!illarbitratAon,hearing fotTuesday, OC10Qer 1,2002, at 9:00 a.m: inth~ Old CoUrthouse. Unfo!t\Ulate1y, a. conflict developedip. my schedule and rather than reschedule. this arbittation, I wouldrespectfullyre'luest that! be replace4 by Thomas 1. Wi1iiams, who is available on that day, Enc[osed:isaproposed OrderofCoru:t to replace me with AttonieyWilIiams. Thank you for your cOIlsidimition.' ,. ., ' , , Very truly yours, MARTS ON DEARJ)ORFF wILLIAMS & OTTO ~'- ' ' , Daniel K. Deardorff DKD/ajt , , Enclosure ".,'.' , cc: RobertA-Rapkin, Esquire,(wfenc.) , Matth,ew L.Owens; EsqiJ,ire(w/enc,) SusanH. Confair, Esq)lize (w/enc.) , Craig Allen Hatch, ES'luire (w/enc,) F; \Fll.ES\DA T AFILE\M]SQ.arb-~d,cookarb,hof.l ' ' INFORMATION. ADVICE..ADVOCACySM ,'-, ,; "',.'~;,;",:;,.';;~'...;;.l~"'-=~.''''''''';~elC,''';,.~ili<;,.:.;.,~>,...d.',..';~,,-;;.,;,-,,~\;,~ -""..,:',-'''''''V':; ',.-i " ",.,'<> '.'\':;d;"X".,' .,~" ;.,\l,t':'~-'.<~"',;""'il-ii' ""..1;.,,-,,'-i:.r'.,''',,-,,, r</: _ ',<',', ",:-,>,' .....",',. i_'-;_';,',; _;,',,,'"-,.,, ;""..ir.n':''''At. ;.,,j:~,,,,'.u,,_, "ie'..- ',"." ",^,^ ..~ , - L '~ ,_. .1 C_. _ __~."' , '0' , . ""~ ~{" DELANIE & CHRISTOPHER COOK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO.2904 CIVIL 192000 v. DAIMLERCHRYSLER CORPORATION RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO TIIE HONORABLE, THE JUDGES OF SAID COURT: . Robert A. Rapkin, Esquire , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: ..... 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the \Ictio~is $:l L', fl on P\",~ ,:1.\\1 ~. The counterclaim of the defendant in the action is 0 The following attorneys are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators: M~""rhQT.T ()rTOUS" EgTlirg WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. ANDNO~~ ,~.?;inconsi . nofthe foregoing petition, . . -. /..AA~/ Esq., ..~~ Esq., and e ./L<.-J- rtltit:.b L , Esq., are appointed arbitrators in the above captioned action (or actions) as praYed for. PJ. ~1liIli<~~'~~~_~<- ttil,J, >- C") C; ~ i5:-~ .-. wQ N f)~ 0::;;; ~C-:" :>r: ,LL._---,._ O~ __l,... _,__ 1>:1.. (? t=~, ,"):::0>: I Sh',," ..::J' ,,> 50! cA. ~:;::>O') . _-.J -::Jz G:;,: >- cc--s: I::: """ ;.uifl ,( LL,. ~ ~1 a.: 0 N '"'" ~ 0 ::::> <::::> 0 0 -> .!"~ '~, I ,I., '~1 , " I " \ ? .- " \ '" iril _.'~ .. ~ ~"',~,< . ' , ';J:! ti f' ~. : Ii ! Ii 1f (.) .tg, ~. ....... h B "'- () 0 0 '-.) ~ C N -n ~ :s:: :3: '~ 0 f' "'O{JJ J:>> ;~:o mfn -< ~ & Z:JJ 11'l r t;;5; '-elm W --jO Ut .$ -<, ~h~ ~5 -0 :r:~ ~0 ::It 9-0 ):.3 t:? drn :z ~ ::;l (JI , -< FP B# " ~ ~- ", ,~ .. ~-~" ~ , , ~l<>j" /',... , MARTSON DEARDORFF WILLIAMS &: OTTO MQW&'O ArrORNEYS & COUNSELLORS AT LAW Wll1lAM E MARTSON JOHNB, FOWLER III EDWARD L &HORPP DANIEL K DEARDORFF THOMAS J. WIllIAMS' Ivo V. Orro III GEORGE B. FALLER JR.' CARL Co RISCH MARK A, DENLINGER DAVID R, GALLOWAY TEN EAsr HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 243-3341 FACSIMILE (717) 243-1850 INTERNET www.mdwo.com *BOARD CERTJF1EO CIVIL TRJAL SPEClAllST September 18, 2002 Honorable George E. Hoffer Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Christopher Cook and Delanie Cook v. Daimler Chrysler Corporation No. 2000 CV 2904 Dear Judge Hoffer: You appointed me as the Chairman of an Arbitration Board in the above captioned case. I scheduled an arbitration hearing for Tuesday, October 1, 2002, at 9:00 a.m. in the Old Courthouse. Unfortunately, a conflict developed in my schedule and rather than reschedule this arbitration, I would respectfully request that I be replaced by Thomas J. Williams, who is available on that day. Enclosed is a proposed Order of Court to replace me with Attomey Williams. Thank you for your consideration. Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO Daniel K. Deardorff (0) @ tm ~ DKD/ajt Enclosure cc: Robert A. Rapkin, Esquire (w/enc.) Matthew L. Owens, Esquire (w/enc.) Susan H. Confair, EsquiJ:e (w/enc.) Craig Allen Hatch, Esquire (w/enc,) F:\FILES\DA T AFILE\MISC\arb-dkdcookarb, hoC I INFORMATION. ADVICE. ADVOCACySM j~~~ r(\j \:.! r> ~)) ~Q'J ~ - " 'T" CHRISTOPHER COOK and DELANIE COOK Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CNIL ACTION-LAW No. 2000 CV 2904 DAIMLER CHRYSLER CORPORATION Defeudant ORDER AND NOW, this _ day of , 2002, Daniel K. Deardorff, who was previously appointed as an arbitrator in the above captioned case, is replaced by Thomas J. Williams, Esquire, due to a conflict that developed in Attorney Deardorff's schedule. BY THE COURT, P. J. . _i.J~"Q.().\z,,'!_I-_D(&l.ffiUo(JJ::\Y_~~Ucv__i: (j(p._J~.1 ~ ~~_. , ' ,;,,~,l' ' ~;f);-.t,w t?T-;--;--7~:::--~'J ,.1" ':~'f. .-- I i~ " J.I1JlJ__~ <:; :~"to.f\ - - ~~~-&;~~~J?~~_I !.txQ,)~~~cX\ 77;;J-2CLpfJ , , , -T , i -irr:r- " l' , ~~~~~ " '_1~__~~ fL. l?-~~~i ~-}!_~!.~_~,,2~~~t:_~ 1J~",-,"~v~LO_~_ .u5/- 5$7) , ii~~ ,- '1 i' " " " -- - " .- - ~ '~""t - ~ <, Ni " , " l' ,+ ",:y :1" '1 . , " - ... , '- i '~; " ;(1- - . -- i "J - --- " fir.. . ~~/I~wtfJ(ler: C:S-g' - fA 3 3 I 1AP-UCLd-~. &ncpfbLLj ?p 17110~t.(&Lf~ . frtIJ/l-_.. . (yOJ ~._ #tvl-Ch, t SZi' . 10/3 mYU.MM/l- /!d. . gzc:ie, (00 ~du.(l_: 711-! 7tYf ~- /ltf3 j --.-f- , , "\). () U~f -l A. n , .iVi f1 (;7> ~~ . _.- - \\JAf'. . l--?;' luLl e,.. ~-l1.t.:,. a(/~~ ~w ,VOr- _\'\ou~ \). N\~M v.J L._Ov.H.J'S y[}, OOV~~ V"'A \ \ ~ ,~ic t, ~ 7~. \'1\12- I I -- 1 i .--1 -I ..,.t & ! , ! , -I ~: ~ , . ~ l --" ! z , , ;F; i I I I . . MQW&:6 TEN EAsT HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (7l7) 243-3341 FACSIMILE (717) 243-1850 INTERNET www.rndwo.com (0) @ ~ ~ June 11,2002 Robert A. Rapkin, Esqnire 166 East Butler Aveuue Ambler, PA 19002 Matthew L. Owens, Esquire 4200 Crums Mill Road, Suite B Harrisburg, P A 17112 Susan H. Confair, Esquire 2331 Market Street CampHill, P A 1711 Oc4642 Craig Allen Hatch, Esquire 1013 MutnmaRoad, Suite 100 Lemoyne, PA 17403-1143 1"'llI<>Jji~~" ATTORNEYS & COUNSELLORS AT UW W1LLlAM E MARTSON JOHN B, FOWLER 11l EDWARD L, SCHORPP DANIEL K DEARDORFF THOMAS J. WILLIAMS' Ivo V OTTo 11l GEORGE B. FALLERJR,' CARL Co RISCH MARK A. DENLINGER DAVlD R. GALLOWAY -BOARD CERTIfIED ClVIL TRIAL SPEClAUsr RE: Christopher Cook and Delanie Cook v. Daimler Chrysler Corporation No. 2000 CV 2904 . Dear Counsel: Enclosed please find our Notice schednling an Arbitration in this case for Tuesday, October 1, 2002 at9:00 a.m. in the Second Floor Hearing Room of the Old Courthouse in Carlisle. If anyone has a conflict with this date, it is that person's responsibility to reschedule the Arbitration Hearing. Also, please note that we will not be scheduling a court reporter. If you would like a court reporter to atteud, please schednle one. Thank you for your cooperation, Very truly yours, MARTS ON DEARDORFF WILLIAMS & OTTO DanielK. Deardorff DKD/ajt Enclosure cc: Cumberland County Court Administrator's Office F:\FILES\DA T AFILE\MISC\arb-dkd.coOkkr INFORMATION. ADVICE. ADVOCACy'M , ~ . . ~ "" ~ (Q) lTIJ ~ J ,,~_ .J I. ~".t0~;t -~ ~ F:\FlLES\DATAF1LE\M1SC\arb-dkdcookllljt Created: 02103/00 10:30:tl AM Revised: 0611110204:29:41 PM CHRISTOPHER COOK and DELANIE COOK, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COuNTY, PENNSYLVANIA v. NO. 2000 CV 2904 DAIMLER CHRYSLER CORPORATION,: CNIL ACTION - LAW Defendant TO: Robert A. Rapkin, Esquire 166 East Butler Avenue Ambler,PA 19002 Counsel for Plaintiffs Matthew L. Owens, Esquire 4200 Cmms Mill Road, Suite B Harrisburg, P A 17112 Counsel for Defendant NOTICE OF HEARING YOU ARE HEREBY NOTIFIED that the undersigned arbitrators appointed by the Court in the above captioned matter will meet for the purpose of their appointmeut on Tuesday, October 1, 2002, beginning at 9:00 p,m. in the Second Floor Hearing Room, Old Cumberland County Courthouse, Carlisle, Pemlsylvania, at which time and place you may appear and be heard, together with your witnesses and counsel, if you so desire. DATED: June 11,2002 Daniel K. Deardorff, Esquire - Chairman Susan H. Confair, Esquire - Arbitrator Craig Alleu Hatch, Esquire - Arbitrator cc: Cumberland County Court Administrator's Office ~"'" (I! .! f./ (t'J lQJ ~ ~""""""",......, CHRISTOPHER COOK and DELANIE COOK Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERlAND COUNTY, PENNSYLVANIA v. CNIL ACTION-LAW No. 2000 CV 2904 DAIMLER CHRYSLER CORPORATION Defendant ORDER AND NOW, this day of , 2002, Daniel K. Deardorff, who was previously appointed as an arbitrator in the above captioned case, is replaced by Thomas J. Williams, Esquire, due to a conflict that developed in Attorney Deardorff's schedule. BY THE COURT, P. J. , ~ ~ ~'-<"I .. - IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA CHRISTOPHER COOK AND DELANIE COOK NO. 2000 CV 2904 V.' , CIVIL ACTION - LAW ! DAIMLERC:HRYSLER CORPORATION ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, Daim1erChrysler Corporation, in the above-captioned matter. MARSHALL, DE COLEMAN & G BY: MATTHEW . OWE DIRE J.D. No. 76080 4200 Cmms Mill Road, Suite B Harrisburg, P A 17112 (717) 651-3501 Attorneys for the Defendant DATE: , -- I.... - ""~~~Ii ,> - IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CHRISTOPHER COOK AND DELANlE COOK NO. 2000 CV 2904 v, CIVIL ACTION - LAW DAIMLERCHRYSLER CORPORATION CERTIFICATE OF SERVICE I, Angela Sanger, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this +ot== day of August, 2001, I served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Craig Thor Kinune1, Esquire KIMMEL & SULLIVAN, P.C, 30 E. Butler Pike Ambler, PA 19002 ~~A Angela anger r ,~, "' ;"~~."' J["""....,'-""'"""" -".~ ~. "11'11 lit'=<-<o "., ',. , ~., '" - " .. 'I' ~ I i1 ~ '. 0 a 0 C " ? e ,-" ....""- -00:' ~r~,~ mrn :;-) Z:;:: =hr~ zc;:: w OJ~ . ') -<~ :~c. .~C-; -0 T:TI :j:D ZC'l ->::.- '-...(") z6 i.:? om 5>c :;:;! z (fl =<! .,,- ~ ~~ '.~ ',,~ CHRISTOPHER COOK AND DELANIE COOK Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 2000-2&9.:190Y DAIMLERCHRYSLER CIVIL ACTION - LAW CORPORATION Defendant NOTICE OF ARBITRATION HEARING You are hereby notified that the arbitrators appointed by the Court in the above captioned matter will hold their hearing at 1:00 P.M. Friday, November 2,2001, in the second floor hearing room of the Old Courthouse, High and Hanover Streets, Carlisle, Pennsylvania at which time all parties will be heard. If it is necessary for any party to change the time of the hearing, it is the responsibility of that party to contact the Court Administrator and all other parties and arbitrators to arrange an alternate time and place of hearing. October 4, 200 I cc: Craig Thor Kimmel, Esquire Kimmel & Silvennan 30 East Butler Pike Ambler, PA 19002 (215) 540-8888 Attorney for Plaintiff J hn M. Eakin, Esquire arket Square Building Mechanicsburg, PA 17055 (717) 766-3172 Arbitrator Matthew L. Owens, Esquire 4200 Crums Mill Road, Suite B Harrisburg, P A (717) 651-3501 Attorney for Defendant Timothy J. Colgan, Esquire I South Baltimore Street Dillsburg, PA 17019 (717) 432-9666 Arbitrator Rebecca R. Hughes,Esquire 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Arbitrator Court Administrator Court House Carlisle, P A ", ,,,.,."B" ...1 , -~ ._ l,-t ~-~ ~_. \01_21 ILlAB\DSJlSLPG\198771 \LOJl03043\00846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: James W. Stevens, Esquire Attorney J.D. No, 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 = ,I "f"'---"""^"~~"--t\' 06- ,,0 3D. ;),901 Cu~( ~ 11 (:r'l, _ I ':' (: ~ G .~ :'" '-', " ,',' '. " : , . Attorney fdr'De:fenrulnt; it Daim1erChrys1er Corporation CHRlSTOPHER COOK and DELANIE COOK v, DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 PRAECIPE TO TRANSFER FILE TO THE PROTHONOTARY: Kindly transfer the physical file on the above-captioned file to the Court of Common Pleas of Cumberland County per the attached Order of The Honorable Judge Glazer and upon payment of transfer costs by defendant 3(~A crfJ 02/' (/ I ~ 'DO /' I MARSHALL, D~N HEY, WARNER, COLE~ & GOGGIN , I / BY: J ",1iQ&l-- ._.~ ,'t ~, - I , . I l' i I, Ii I~ ' Ii Ii Ii "I .11 !I 111 i I , - . , -~. DOCKEfED 101.21ILIABIDSJlLLPGlI88486\DSJI03043100846 JAN 2 '1 2000 MARSHALL, DENNEHEY, WARNER, 121162 COLEMAN & GOGGIN K. JACKSON . By: James W, Stevens, Esquire CIVI\.AOMINISTRATIO~ttorney for Defendant, Attorney LD: 40534 DaimlerChrys1er Corporation 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 CHRISTOPHER COOK and DELANIE COOK COURT OF COMMON PLEAS PHILADELPHIA COUNTY v. OCTOBER TERM, 1999 DAIMLERCHRYSLER CORPORATION NO. 2018 4- --- AND NOW, thi~L{cIay of . R R '2.000 , 1'!iliil9, upon consideration of defendant Daim1erChrys1er Corporation's Petition to Transfer Venue for Forum Non Conveniens and any response thereto, it is hereby QRDEREP and DECREED that said Petition is granted and the above-captioned matter is transferred to the Court of Common Pleas for Cumbedand County, Pennsylvania. The Philadelphia County Prothonotary is hereby dir(':cted to forward to Cumbedand County Prothonotary certified copies of docket entries, proceed pleadings, depositions and all other papers filed of record iiJ: this action. . BY THE COURT: COPIES SENT PURSUANTro Pa. R.C.P. 236(b) JAN 2 7 2000 First JUdicial OisIrictof Pa. UserID.: (QC: v~ /1. ~ -~ ':--::--';;::~"~'~";0~~yrrl!f'<~f,~~f1l~~':f~'!":,n,-!'!<~w~'~mi!~~;!1n~:w!:!:r.~; ~:El~~r'~!':':rr.?~:B'~:!;'!''1l~''lmil~~rr!'-t::r:-:I~r,;r~~':1:'~t:;~ '~:' ';::~::,: l!;;-::;', ~' '~'1 ;:':':;1-:;- ,,' .. ':;",,,,--';:r;-.~""''''''''l1'''F'<',~;~,'''' "",':;':"::, ,.,,".'. . ,<,;;:;:.:~;~:,.:",:"., .;. III . . .,. ". ~ '; " . .', ':,',:',,: ,:-.,,' :;"". ' ~':: '-- ,:': -: ~, ~.,"""-, ,~l'M,""" ; -J.IlI.lilllill.I\!.~~', "l~;ci~r!l;l'-''''-' ~,"""".'" "_.' . _'7._', ,"" Y"1'~, ~,__ _.~ ."-,~,- p ~~ ~ -.... .0 (/) tv ~ . LJi!iit'--~ ~~IlIli!Ililil""''''''.~~--~' iIIlilIIi,'''';"b "r.'" ~IT~. -, - ~ , ~ .0 ' . , -lQ .t ~9 \) ~ c C; \ ~VJ i- ~ [ G f ~ v, () I (') 0 0 c 0 -n -~ :!l: ,,-, .-1 veD > ;~~ j:J? n1rn -< 2:X Vi~ I "r--of11 'lL> ::06 ,'-"\ -<...:::::" v !;::CJ >>-{ ~ :>0 :::2 l:=tI '7 , ...::". 0(,,> -!.=::O '7 Pc:: I:;> on1 :z i'-' ?G =< \0 -< "~ ~ " Cowt of Common Pleas of Philadelphia County " 'c, ." ' for P:I'O,lhQnot:3:ry Use Only (Docket NUmber) .. Trial Division . . OCTQ,6~R 1~~9 Civil Cover Sheet ' --: 'r ,;, : ~,:) ;<,': ""'"'' ",,', ".. """" "" .... - ..",\.., '.'i', , .. PLAINTIFF'S hAMs' DEFENDANT'S NAME , Christopher Cook DaimlerChrysler Corporation 0020:18 . PLAINTIFF'S ADORESS DEF~OANT'~AO~RESS . 424 Pawnee Drive C 0 C orporat~on I Mechanicsburg, PA 17055 1635 Market Street Philadelphia, PA 19103 : PLAINTIFF'S NAME DEFENDANT'S NAME Delanie Cook , , PLAINTIFF'S ADtlRESS DEFENDANT'S ADDRESS 424 Pawnee Drive Mechanicsburg, PA 19103 TOTAL NUMBER OF PLAINTIFFS (70) TOTAL NO, OF DEFENOANTS (71) COMMENCEMENT OF OTHER , ACTION 1X15, o 10. JnFormaPauperis , 2 1 ,l1J L CompJ.m' Arbitration 06, Jury o II. Transferfrom Other Jurisdiction AMOUNT IN CONTROVERSY 02. Writ of Summons 07, Non Jury & Equity D 12. MinorslIncompetent Compromise Dl1 30. $50,000.00 or less 032. Assessment of damages hearing required o 3. Notice of Appeal Os. Class Action o 13. Survival Action 031. Moretban$50,OOO.OO 033. Assessmentofdamageshearingnotrequired D 4. Petition Action 09, SaviagsActions Fi 14. WronrlulDeathAction(involvingminors) ACCRUAl OF CAUSE OF ACTION DEFENDANT INFORMATION o 40. Action arose in Philadelphia County : D 50. All defendants are residents of (or have offices in) Philadelphia COWlty r rn 41. ActiondidnotariseinPhiladelphiaCounty 'D 51. Maindefendantisaresidentof(orhasoflicesin)PhiladelphiaCounty I ("0" "'~sonJor filmg ."i~n m Ph,laddph,. Cou~'y bdow m #60) 0 52, All d""dan" regul",ly "nduct busin'" in Phibddpb'a County (~, [",'roo,,"n F) o 42 Transaction or occurrence gIvmg nseto action arose 10 Philadelphia County 0 53. Main defendant regularly conducts business in Pbiladelphia County (sr:e Instruction F) o 43. Transaction oroccurrence giving rise to actIOn did not arise ill Philadelphia County 0 (deSCribe transactIOn or occurrence be/ow m #60) 54. Defendants are not residents of ( and do not have offices in) Philadelphia County (state below in #60 reason for filing action in Philadelphia County) ~60, Main defendant regularly conducts business in Philadelphia Countv CODE NUMBER AND TYPE OF ACTION (See Instruction G) 20000' Contract STATUTORY BASIS FOR CAUSE 01= ACTION (See Instruelfon H) RELATEO peNOING CASES (List by Docket Number ~ Indicate Wlle/ller tile Rele/ed Cases Have Been Comiollcfated) NAME OF ?LI\INTIFP'SJAPPELLANT'S ATTORNEY AODRESS (Sert Jnstru~tion J) Crai Thor Kimmel Es uire SUPREME COlJRT IDENTIFICATION NO. 57100 ,Ki~el & Silverman, P.C. 30 East Butler Pike Ambler, PA 19002 PHONE NUMBER 215-540-8888 DAOE FILING FEE . TRIAL lIST o 1010 -Arbitration" o -1011 JUlY o 1012. Non-Jury 0,1013 AgencyffaxAppea1s 0,1014 ',Mass Tort o 10lS Other NeXT COUR.T ACTION o 1101 Arbitration Hearing Date: " Tune: Arbitration Center 1601 Ma,rket Street 2nd Floor ' 'Philadelphia, PA 19103 SIGNATURE STAniS o 1001 Deferred o o o o 1102 Settlement Conference 1103 ~aring/Tria1 1104 Status Conference 1105 Other Date: Time: Place:- , , 01-101 (Rev, 9194) -"", ""'" -'~-' '1IiI~l<<J!!~~~JllI!i'Ii!!b!!@l'mWJ;ijX'''''~lit'~~!'j.l,hl<r.~~,,,.'~~~mlliiillmlilli~-,jj\Jlll!lliill"~-~~ ~ Instructions for Completing Civil Cover Sheet . ~ iIIiIIIIlIIIIli 'I ~......' L Philadelphia Civil Rule No. *i05:2(A)(9) requires that a Civil Cover Sheet be attached to any document co~~ncing an action (whether the action is commenced by Complaint, Writ ofSumrnons, Notice of Appeal, or by Petition). The information requested is necessary to allow the Court to properly 'monitor, control an.d dispose cases filed. A copy ofthe Civil Cover Sheet must be attached to service copies ofthe document commencing an action. The attorney (or non-rep'resented party) filing a case shall complete the form as follows: A. Parties i. Plaintiffs/Defendants Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiffor defendant is a government agency or corporation, use the full name of the agency or corporation. In the event there are more than two plaintiffs and/or two defendants, list the additional parties on the Supplemental Parties Form. Husband and wife are to be listed as separate parties. ii. Parties' Addresses Enter the address of the parties at the time of filing of the action. Ifany party is a corporation, enter the address of the registered office of the corporation. jii. Number of Plaintiffs/Defendants Indicate the total number of plaintiffs and total number of defendants in the action. Of course, additional parties may be named later as a result of joinder or otherwise. B. Commencement of Action Indicate type of document tiled to comm~nce the action. c. \ . Other Indicate whether the case is an arbitration, jury or non-jury and equity case. In the event ajury trial is requested, the appropriate fees must be paid as provided by rules of court. Check any t:l~r appropriate boxes. If the action will require the entry ofan Order approving a minor/incapacitated person's compromises, wrongful death or survival action; c~eck the appropriate box. Amount in Controversy Check the appropriate box. Indicate whether an Assessment of Damages Hearing is required. Accrual of Cause of Action Check the appropriate box to indicate where the cause of action or the transaction or occurrence giving rise to the cause of action arose. In the event the transaction ~a~~I~~~~';:'h~::~~f:~:~ ~o~~;ction did not arise in Philadelphia County, set forth the nature Of~~~:;::cc:rrence and indicate in #60 why the action Defendant Information . '~~"~:'~~j',""; Indicate the approprillte response. Check Qnly one. If#43 or #54 are checked, the complaint must specifically set forth the nature of the business conducted in Philadelphia County. Type of Action Insert the code number and type of action by consulting the list set forth hereunder. Choose only one. Statutory Basis for Cause of Action If the action is commenced pursuant to statutory authority C'PetitionAction"), the specific statute must be identified. Related Pending Cases All previously filed r~lated cases must be identified. Indicate whether any of the related cases have been consolidated by Order of Court or Stipulation by the parties. Plaintiff's/Appellant1s Attorney The name of plaintiffs attorney (or the name of appellant's attorney ifthe action is commenced by the filing of an appeal from a decision of Municipal Court or an Administrative Agency) must be inserted herein together with other required information. In the event the filer is not represented by an attorney, the name of the filer, address, the phone number and signature is required. If the action is a "Mass Tort", include the Attorney Firm Name and Number. D. E. F. G. 10000 10100 10500 10550 11000 12000 13010 13040 13050 13055 13070 14000 15010 19000 19900 , H. , l. J. 01-101 (Reverse) ~ _vo" Notice of Appeal Municipal Court - Landlord and Tenant Municipal Court - Nuisance Case Appeal Municipal Court - Money Judgments Municipal Court. Denial to Open Judgment Municipal Court - Code Enforcement MotorVehicleAppeals Board of Revision ofTaxes - Board of View Tax Review Board Civil Service Commi~sion Board of Pensions Board of Licenses and Inspections Zoning Board of Adjustments Pennsylvania Liquor Control Board Other Administrative Agency Miscellaneous Appeal Complaint and/or Writ of Summons 20000 Contract 20035 Construction Contract 20025 Declaratory Judgment Action 20050 CityTaxCase 21000 Ejectment 21500 Equity (No Real Estate) 21510 Equity(Rea1Estate) 22900 Mechanic'sLien 23000 Mandamus 23500 MortgageForeclosure 24000 Partition 24500 Quiet Title 25500 Replevin 26000 MotorVehicleAccident 26010 Other Traffic Accident 26020 Premises Liability 26030 ProductLiability 26031 L- Tryptophan 26032 Lead (Friction) 26033 26035 , 26037 c,1;j .l!t\I;~::~ 26053 26050 26060 26538 28510 26070 41000 42500 44100 46500 47500 48600 49500 49900 Complaint and/or Writ of Summons hnplants (Breast) Asbestos DES (Phannaceutical) Malpractice/Medical Malpractice/Legal MalpracticelDental Malpractice&1iscellaneous Libel and Slander Toxic Waste Contamination and Environment Subrogation Action Miscellaneous Petitiolll Actions Change of Name (Adult) Mental Health ActPetitions Petition to AppointArbitrator Election Matters Leave to Issue Subpoena Petition to Compel Medical Examination Eminent Domain - Declaration of Taking Miscellaneous The area below "For official use only" is reservedfor use by the Court ."--"~~ ,~,".:;I ~ >- -"~,,,,,' ~ _.~~ ~' ~ "~~_l~" Craig Thor Kimmel, Esquire Identification No. 57100 KIMMEL & SILVERMAN, P.C. 30 East Butler Pike Ambler, Pe~sylvania 19002 (215) 540-8888 Attorney for Plaintiff THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES BEARING IS REQUESTED . : CHRISTOPHER COOK and DELANIE COOK 424 Pawnee Drive Mechanicsburg, PA 17055 v. URT OF COMMON PLEAS ILADELPBIA COUNTY USTeo ESTAOROENADO COMPA~R EN ARBfTRATIIlN HEARING 1601 MARKET ST EEl; 2ND FLOOR FIVE PE E FLAZA TIME: ACTION DAIMLERCHRYSLER CORPORAT c/o CT Corporation 1635 Market Street . JUN ];4 2000 N : YOU MUSTSfIll.COM?LY WITHTHENQ1lCE BELOW, USTEDTOOAVlA DEBS ClJMllUIl CQN E1.AVlSO PARADEPENDERSE TERM, 1999. OCTOBER 1999 0020J.8 NO'rICE TO DKlr-.J CODE: 1900 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 co~laint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court you 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 TAP TBJ:S PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT RAVE A LAWYER OR CANNOT AFFORD ~, GO TO OR TELEPlI:~ THE OFFICE SET FORTH BELOW TO FDID OUT WB:ERE YOU ClIH GET LEGAL HELP. TJIIJMA'M1I!'Mttn1l!!"1U)IlYAllOAR!)llIJ~~.".IIIA BAR ASSOCIATION AT'I'lJlI'I'IMJl;PA'I'jMNtij>"AC5SI'!!Cl!'ll\D~-'~ Al.'ID INFO~TION SERVICE MOlUlI'AltTl!l5lSNO'fl'llllmiN'f A1TH!llmAlUNO, nm~.... ~ING U5l'I:l15K MAYIlIJHIlAIUIATTmlSAMll'l'lMIlANf.lDATEIlIlFORB .. .ELPIlIA, PA 19107 JllooS OF TIlIl COll~" Wl'I'l!OlJT Till! ABSllNT PART'{ Oll LEPBONE: 215 - 23 8 -17 01 PARTIES. TllBlU!IS NO RlGHTTO A TRIAL DllNOVO ON APPEAL fltOM A DI!CISJONIlNI'llRIlI) BY AIlJIXlIl. AVISO La han demandado a usted en 1a corte. 8i usted qui ere defenderse de estas de estas demandae expuestas an las paginas signientes, usted tiene veinte (20) dias de plazo al partir de ia fecha de la demanda y ia notificacion. Hace falta asentar una comparencia escrita 0 en persona 0 con un abogado y entregar a la corte en for.ma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, le corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso 0 notificacion. Ademas, 1a corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero 0 SUS propiedades u ostros derechos importantes para usted. LLEVE ESTA DEIIlIllDA A UN ABOGlUlO DlllEDIATAIIE!lTE, SI NO TIENE ABOGlUlO 0 SI NO TIENE EL DINBJl.O SUPICIEIlTE DE PAGAR TAL SERv;rCIO. VAYA EIII PERSONA 0 ~ POR TELEFONO A LA OFICIHA CUYA DIRECCION SE .,...;;uJSdTRA ESCRITA ABAJO PARA AVERIGUAR DONnE SE PUEDB CONSEGUIR ASISTElllCIA LEGAL. SERVICIO DE REFERElllCIA LEGAL ONE READING CEIlTER FILADELFIA, PA ,19107 TELEFONO: 215-238-1701 :!!.i'" . ~.t5il!", Cra1g Thor Kimmel, Esquire Identification No. 57100 KIMMEL & SILVERMAN, P.C. 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 Attorney for Plaintiffs THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES BEARING IS REQUESTED . : CHRISTOPHER COOK and DELANIE COOK 424 Pawnee Drive Mechanicsburg, PA 17055 : COURT OF COMMON PLEAS : PHILADELPHIA COUNTY : : CIVIL ACTION v. : : TERM, 1999 DAIMLERCBRYSLER CORPORATION c/o CT Corporation 1635 Market Street Philadelphia, PA 19103 : : NO. OCTOBER 1999 : : 002018 COMPLAINT CODE: 1900 1. Plaintiffs, Christopher Cook and Delanie Cook, are adult individual citizens and legal residents of the Commonwealth of Pennsylvania, residing at 424 Pawnee Drive, Mechanicsburg, Pennsylvania 17055. 2. Defendant, DaimlerChrysler Corporation, is a business corporation qualified to do business and regularly conducts business in the Commonwealth of Pennsylvania, and is a corporation of the State of Delaware, with its legal residence and principal place of business located at 12000 Chrysler Drive, Highland Park, Michigan 48288-1919, and can be served c/o CT Corporation, 1635 Market Street, Philadelphia, Pennsylvania 19103. ,- ~~. = " ". "- , ~ I . ." '.llri.",t:;iF BACKGROUND 3. On or about October 29, 1998, Plaintiffs purchased a 1997 Dodge Grand Caravan, manufactured and warranted by Defendant, bearing the Vehicle Identification Number 1B4GP44RXVB438978. The vehicle was purchased in the Commonwealth of Pennsylvania and is registered in the Commonwealth of Pennsylvania. 4. The price of the vehicle, including registration charges, document fees, sales tax, finance and bank charges but, excludinq other collateral charges not specified yet defined by the Lemon Law, totaled more than $24,547.20. A true and correct copy of the Contract is attached hereto, made a part hereof and marked Exhibit "A". 5. Plaintiffs aver that as a result of the ineffective repair attempts made by Defendant through its authorized dealer(s}, the vehicle cannot be utilized for the purposes intended by Plaintiffs at the time of acquisition and as such, the vehicle is worthless. 6. In consideration for the purchase of the above vehicle, Defendant issued to Plaintiffs several written warranties, including a three (3) year or thirty-six-thousand (36,000) mile bumper-to-bumper, as well as other standard warranties fully outlined in the warranty booklet. COUNT I PENNSYLVANIA AUTOMOBILE LEMON LAW 7. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. ~ , , I' i ~ t -~~..,' 8. Plaintiffs, are "PurchaserS" as defined by 73 P.S. 51952. 9. Defendant is a "Manufacturer" as defined by 73 P.S. 51952. 10. Behney Motors, is and/or was at the time of sale a Motor Vehicle Dealer in the business of buying, selling, and/or exchanging vehicles as defined by 73 P.S. 61952. 11. On or about October 29, 1998, Plaintiffs took possession of the above mentioned vehicle and experienced nonconformities as defined by 73 P.S 61951 et sea., which substantially impair the use, value and/or safety of the vehicle. 12. The nonconformities described violate the express written warranties issued to Plaintiffs by Defendant. 13. Section 1955 of the Pennsylvania Automobile Lemon Law provides: If a manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle... or accept return of the vehicle from the purchaser, and refund to the purchaser the full purchase price, including all collateral charges, less a reasonable allowance for the purchasers use of the vehicle, not exceeding $.10 per mile driven or 10% of the purchase price of the vehicle, whichever is less. 14. Section 1956 of the Pennsylvania Automobile Lemon Law provides a presumption of a reasonable number of repair attempts if: (1) The same nonconformity has been subject to repair three times by the manufacturer, its agents or authorized dealers and the nonconformity still exist(s); or --- k.. , '," ~~- 'ilt:iI\;iIlt0i;(h (2) The vehicle is out-of-service by reason of any nonconfor.mity for a cumulative total of thirty or more calendar days. 15. Plaintiffs have satisfied the above definition as the vehicle has been subject to repair more than three (3) times for the same nonconfor.mity, and the nonconfor.mity remains uncorrected. 16. In addition, the above vehicle has or will be out-of- service by reason of the nonconfor.mities complained of for a cumulative total of thirty (30) or more calendar days. 17. Plaintiffs have delivered the nonconfor.ming vehicle to an authorized service and repair facility of the manufacturer on numerous occasions. After a reasonable number of attempts, the manufacturer was unable to repair the nonconfor.mities. 18. During the first 12 months and/or 12,000 miles, Plaintiffs complained about defects and/or nonconfor.mities on at least three occasions to the following vehicle components: noisy belts; headliner hanging down; and a dead battery. Plaintiffs are not in possession of this information, however it can be obtained from. Defendant's authorized dealership. 19. The vehicle continues to exhibit defects and nonconfor.mities which substantially impair its use, value and/or safety as provided in 73 P.S. 81951 et sea. 20. Plaintiffs aver the vehicle has been subject to additional repair attempts for defects and/or nonconfor.mities and/or conditions for which the dealer did not maintain records. 21. Plaintiffs have been and will continue to be financially damaged due to Defendant's intentional, reckless, .' ~~.I " , -~"->-'-''''''t,-,,, wanton and negligent failure to comply with the provisions of 73 P.S. 51951 et sea. 22. Pursuant to 73 Pa. P.S. 51958, Plaintiffs seek relief for losses due to the nonconformities and defects in the above- mentioned vehicle in addition to attorney fees and all court costs. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT II MAGNUSON~MOSS FEDERAL TRADE COMMISSION IMPROVEMENT ACT 23. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 24. Plaintiffs are "Consumers" as defined by 15 U.S.C. 52301(3). 25. Defendant is a "Warrantor" as defined by 15 U.S.C. 52301 (5) . 26. The purpose for which this product is normally used is personal, family, and household use. 27. By the terms of the express written warranties referred to in this Complaint, Defendant agreed to perform effective warranty repairs at no charge for parts and/or labor. 28. Defendant has made attempts on several occasions to comply with the terms of its warranties; however, such repair attempts have been ineffective. ~~~' _,~_:J~ ~ ~~. I, , '" . ~', !;l[,fJ""wn 29. As a direct and proximate result of Defendant's failure to comply with the express written warranties, Plaintiffs have suffered damages and, in accordance with 15 U.S.C. S2310(d) (1), Plaintiffs are entitled to bring suit for such damages and other legal and equitable relief. 30. Section 15 U.S.C. S2310(d) (1) provides: If a cons~er finally prevails on an action brought under paragraph (1) of this subs",ction,h,e may b.e allowed by the court to recover aspar,t of the judgment a sum equal to the amount of aggregate amount of costs and expenses (including attorney fees based upon actual time expended), determined by the court to have been reasonably incurred by the Plaintiff for, or in connection with the commencem",nt and prosecution of such action, unl",ss th", court, in its discretion shall determine that such an award of attorney's fees would b", inappropriate. 31. Plaintiffs aver Defendant does not have a Dispute Resolution Program which is in compliance with 16 CFR 703. 32. Plaintiffs aver that upon successfully prevailing upon th", Magnuson-Moss claim herein, all attorney fees are recoverable and are demanded against Defendant. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT III UNIFORM COMMERCIAL CODE 33. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. - -~= ~, IiilM:J;hiil"~,",i,';" 34. The defects and nonconfor.mities existing within the vehicle constitute a breach of contractual and statutory obligations of Defendant, including but not limited to the following: a. Express Warranty; b. Implied Warranty Of Merchantability; and c. Implied Warranty Of Fitness For A particular Purpose. 35. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Plaintiffs have justifiably relied upon Defendant's express warranties and implied warranties of fitness for a particular purpose and implied warranties of merchantability. 36. At the time of obtaining pOl!session of the vehicle and at all times subsequent thereto, Defendant was aware Plaintiffs were relying upon Defendant's express and implied warranties, obligations, and representations with regard to the subject vehicle. 37. Plaintiffs have incurred damages as a direct and proximate result of the breach and failure of Defendant to honor its express and implied warranties. 38. Such damages include, but are not limited to, the contract price of the vehicle plus all collateral charges, including attorney fees and costs, as well as other expenses, the full extent of which are not yet known. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant, in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. . ~ " ^ ~" <'"'~_w...,,,,,-,,", COUNT IV PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 39. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 40. Plaintiffs are "People" as defined by 73 P.S. S201- 2 (2) . 41. Defendant is a "Person" as defined by 73 P.S. S201- 2 (2) . 42. Section 1961 of the Pennsylvania Automobile Lemon Law, provides that a violation of its provisions is also a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. 201-1 et seq. 43. In addition, the Pennsylvania Unfair Trade Practices and Consume:r Protection Act, 73 P.S. S201-2(4), defines "unfair or deceptive acts or practices" to include, but not limited to, the following: (vii). Representing that goods or services a:re of a particular standard, quality or g:rade, or that goods are of a particular style or model, if they are of another; (~iv) . Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to, or after a contract for the purchase of goods or services is made; (~v) . Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed; (~vi). Making repairs, improvements or replacements on tangible, real or personal property of a nature or quality inferior to or below the standard of that agreed to in writing; ~~ 'c;' ~, "fllo%- {xvii} {xxi}. Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 44. Plaintiffs believe, and therefore aver, that Defendant's conduct falls within the aforementioned definition of "unfair or deceptive acts or practices." Furthermore, Defendant's actions constitute otherwise reckless, wanton, or willful conduct which is prohibited by the Statute. 45. Section 201-9.2{a} of the Statute provides for private causes of action for any person "who purchases or leases goods or services primarily for personal, family household purposes." The Statute authorizes the Court, in its discretion, to award up to three {3} times the actual damages sustained for violations. 46. Section 201-3.1 of the Act provides that the automotive industry trade practice rules and regulations adopted by the Attorney General for the enforcement of this Act are declared unlawful. 47. Plaintiffs believe and therefore aver that Defendant's conduct in the sale and servicing of the vehicle violate said rules and regulations. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount not in excess of Fifty Thousand Dollars {$50,000.00}, together with all collateral charges, a orney By: fees; and costs of suit. CRAIG TH EL, ESQUIRE Attorneys fo Plaintiff 30 East Butler Pike Ambler, Pennsylvania 19002 {215} 540-8888 ~ , V E R I FIe A T ION I, Craig Thor Kimmel, being duly sworn according to law, depose and say that I am the attorney for the plaintiff, in this action and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that any false statements made herein are subject to the penalties of 28 Pa.C.S. ~4904 relating to unsworn falsification to authorities. immel, Esquire r-Plaintiffs ~ . ~ ~" -_""""'h'., .. Dodge BEHNEY MOTORS 300 E. EmausS!, Telephone 944-7415 MIDDLETOWN, PENNSYLVANIA 17057 -~-- .. Dodge PURCHASER'S NAME -t #IPJS/2J/J{(/~ ,/J (PRINT TYPE) t&olc PLEASE ENTER MY ORDER FOR ONE ~ ,. vd LESS BALANCE OWING TO - TIllE TOTAL CASH OEUVEREO PRICE TOTAL TAX REGISTRATION DOCUMENTARY CHARGE S E T T L E ~~. al. N T CASH DEPOSIT SUBMITTED WITH ORDER ALLOWANCE FOR TRADE-IN AS APPRAISED . .OIJ 01) '4? :J..O !. 00 00 ALL WARRANTIES, IF ANY, BY A MANUFACTURER' OR SUPPLIER OTHER THAN DEALER ARE THEIRS, NOT DEALER' , AND ONLY SUCH MANUFACTURER OR OTHER SUPPLIER SHALL BE LIABLE FOR PERFORMANCE UNDER SUCH WARRANTIES. UNLESS DEALER FURNISHES BUYER WITH A SEPARATE WRITTEN WARRANTY OR SERVICE CONTRACT MADE BY DEALER ON ITS OWN BEHALF, DEALER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUOING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE: (AI ON ALL GOODS AND SERVICES SOLD BY DEALER, AND (B) ON ALL USED VEHICLES WHICH ARE HEREBY SOLD "AS I&-NOT EXPRESSLY WARRANTED OR GUARANTEED". IF THIS AGREEMENT IS FOR A USED VEHICLE. THE INFORMATION YOU see ON THE (FEDERAL TRADE COMMISSION) WINDOW FORM IS PART OF THIS AGREEMENT. INFORMATION ON THE WINDOW FORM OVERRIDES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE. The front and back of this Order comprise the entire agreement affecting this purchase and no other agreement or understanding at any nature concerning same has been made or entered Into. or will be recognized. I hereby certify that no credit has been exlen to me for Ule purchase of Ulls motor v Ie except as appears In writing on the face of this agreement. I have read the matter printed on the back hereof and ag to It as a part of this order the same t were printed above my signature. I certify that I am of legal age, and hereby acknowledge receIpt of a copy of this orde , (.~ U SENO. TITLE NO, PLAINTIFF'S EABIT PURCHASER SALE9MAN E .FOAMVQC-371 (11/95) q ~, . ,~ ~ ~, "" ..> ~''''''''-~~m~~rn,;lllib1&1il,..~,~UM;,1!J:iI1'.i!il1!ll1il' Ji '".~ ).. t9t ~ if!~ ~"" ~ !f"'" B q: J..... ~ C::': "<:' c:::; (()' ~ ~ ~ ................ ~~ ~~ 0) 0) 00 0) ~ .... a= 0 w N CO 0 ~ 0 0 0 \..: ,. " ~ ( ,""", (' .- I., , -". c ~ .-- l.Io l,,':... C~l ........ r' . - s.~ ----., , a-- '0 ~ ---- \-S\ \:><:::, M r-. ~ ",,' ".~., ,..,--- ",,,~~,I I,.,.. "'''"0 " ~ ,~" ...J ~ ~< 0.' ~ ,,, __lIii!iiIlWtiI~~.="" . Ii ii: ,:1 i~ " , . . J-9(?J+ ,.- - . , -' , , ~HALL,DENNEHEY,WARNER COLEMAN & GOGGIN BY: James W. Stevens, Esquire. Attorney J.D. No.: 40534 1845 Walnut Street Philadelphia, PA 19103 215-575-2684 , ~ . ~, ~.~"o'r_IlM~,," /" " /~J c)" I,':'. /' ;)- )- CHRISTOPHER COOK and DELANIE COOK v. DAIMLERCHRYSLER CORPORATION Attorney for Defendant, Daim1erChrysler Corporation /) COURT OF COMMON PLEAS PHILADELPHIA COUNTY I ~q OCTOBER TERM, 1999 NO. 2018 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of DaimlerChrys1er Corporation, in the above- captioned matter. f\\,.EO~ ?f\O pf\U H" \) t. C ~ '3 ,g.g.g. f\. ~i\- \ G\lJ OJ '1c\1 1J-f1 (J-" CA \qQ MARSHALL, DENNEHEY, WARNER, COL MAN AND GOGGIN BY: .... ,- " .'L"~'lJt.lociaHlijll~~L. \Ol_21\LlAJBIIVVS\LLPO\188161\LClJ\03043\00846 TCl PLAINTIFF YClU ARE HE PLEAD TO T ENe NEW MATTE WITH FROM THE S VICE DEFAULT ME AOAINSr Y U /:) '" :> o /.', /',' '. '() \, / .I/}, '-~') " MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney ill No: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK COURT OF COMMON PLEAS PHILADELPIDA COUNTY v. OCTOBER TERM, 1999 DAIMLERCHRYSLERCORPORATION NO. 2018 ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT OF DEFENDANT. DAIMLERCHRYSLER CORPORATION Defendant, Daim1erChrys1er Corporation by and through its attorneys, Marshall, Dennehey, Warner, Coleman & Goggin, hereby answers plaintiffs Complaint and asserts new matter defenses as follows: 1. Denied. After reasonable investigation, answering defendant is without knowledge or informatiCln sufficient to form a belief as to the truth of these averments and the same m:e therefore denied. , , ~,~" 2. Admitted in part; denied in part. Daim1erChrysler Corporation is a corporation organized and existing under the laws of the State of Delaware with a principal place of business in Michigan. In addition, it can be served at the CT Corporation Systems, 1635 Market Street, Philadelphia, P A 19103. The remaining averments are denied. WHEREFORE, defendant, Daim1erChrys1er Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. BACKGROUND 3. Admitted in part; denied is part. It is admitted that plaintiff obtained a Daim1erChrys1er Corporation vehicle that was manufactured and warranted by defendant bearing vehicle identification number as alleged. After reasonable investigation, answering defendant is without information or knowledge sufficient to form a belief as to the truth of the remaining averments and same are therefore denied, 4. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 5. Denied. It is denied that there were ineffective repair attempts or that the vehicle carmot be used for the purposes for which it was intended. It is further denied that the vehicle is worthless. 6. Denied. It is denied that defendant issued several written warranties. On the contrary, defendant issued only an express written warranty. The warranty speaks for itself. WHEREFORE, defendant, Daim1erChrys1er Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. 2 . ~&i!ll~!... COUNT I PENNSYL VANIA AUTOMOBILE LEMON LAW 7. Defendant, Daim1erChrys1er Corporation, hereby incorporates its previous answers to plaintiff's Complaint as though the same were set forth herein at length, 8. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 9. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 10. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 11. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 12. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 13. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 14. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 15. Denied. It is denied that the vehicle experienced nonconformities or conditions that were not corrected within the terms of the express written warranty issued by DaimlerChrys1er Corporation. It is denied repair attempts were ineffective. 16. Denied. It is denied the vehicle was out of service for the alleged number of days, 3 I, """'J>'.ilil1,e;,,,-,,c 17. Denied, It is denied that the vehicle experienced nonconforrnities or conditions that were not corrected within the terms ofthe express written warranty issued by Daim1erChrysler Corporation. It is denied repair attempts were ineffective. 18. Denied. After reasonable investigation answering defendant is without information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and the same are therefore denied. 19. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 20. Denied. It is denied that the vehicle was subject to additional repair attempts for which records were not maintained. 21. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 22. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. COUNT II MAGNUSON-MOSS (FTC) WARRANTY IMPROVEMENT ACT 23. Defendant, Daim1erChrys1er Corporation, hereby incorporates its previous answers to plaintiffs Complaint as though the same were set forth herein at length. 24. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 4 "''40~!!oL..,' 25. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 26. Denied. After reasonable investigation answering defendant is without information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and the same are therefore denied. 27. Denied. It is denied that defendant's express written warranty states as alleged. The warranty speaks for itself. 28. Denied. It is denied that the vehicle experienced nonconformities or conditions that were not corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation. It is denied repair attempts were ineffective. 29. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 30. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 31. Denied. The avermeuts contained in this paragraph constitute conclusions of law to which no response is required. 32. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. WHEREFORE, defendant, Daim1erChrys1er Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. COUNT III UNIFORM COMMERlCAL CODE 33. Defendant, DaimlerChrys1er Corporation, hereby incorporates its previous answers to plaintiffs Complaint as though the same were set forth herein at length. 5 - ~, ~~I ~~ " 1~..;_W.' 34. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 35. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 36. Denied. It is denied that defendant was aware of any reliance on the part ofthe plaintiff. 37. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 38. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. WHEREFORE, defendant, DaimlerChrys1er Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. COUNT IV PENNSYLANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 39, Defendant, Daim1erChrys1er Corporation, hereby incorporates its previous answers to plaintiffs Complaint as though the same were set forth herein at length. 40. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 41. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 42. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 6 ~' . ". d'~~lJd;ki i 43. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 44. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 45. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 46. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 47. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. NEW MATTER 48, Plaintiff s Complaint fails to state a claim for which relief may be granted against DaimlerChrys1er Corporation. 49. Plaintiffs claims are barred and/or limited by the applicable disclaimers of warranty and limitations of damage provision, 50. Plaintiffs claims are barred and/or limited by her neglect, misuse, abuse, modification, and/or alteration of the vehicle, which is the subject of this litigation. 51. Plaintiffs claims are barred and/or limited by her failure to mitigate damages. 52. If the plaintiff sustained any alleged injuries, damages or losses, the injuries, damages, or losses were caused by persons and/or entities over whom answering defendant had no control and for whom answering defendant is not responsible. 7 . '.~,~k 53. Plaintiffs alleged claims of nonconformity do not substantially impair the use, value, or safety ofthe vehicle. 54. Plaintiffs claims are or may be barred by the applicable doctrine oflaches, estoppel or waiver. 55. Plaintiffs Complaint fails to state a claim for which any attorney fees may be awarded. 56. Plaintiffs claims may be barred and/or limited by the Lemon Law, Unfair Trade Practices and Consumer Protection Law, Uniform Commercial Code and the Magnuson-Moss Warranty Act. 57. It is denied that plaintiff obtained the vehicle primarily or normally for personal, family or household purposes and plaintiff is not entitled to recovery under the Lemon Law, Magnuson-Moss Warranty Act, or the Pennsylvania Unfair Trade Practices Act 58. Plaintiffs Complaint may be barred by the applicable statute oflimitations. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. BY: HEY, WARNER, GOGGIN J 8 , , ..,_.d4'"^,, VERIFICATION James W. Stevens, Esquire, hereby states that he is the attorney for DaimlerChrysler Corporation, defendant herein, and verifies that the statements made in the foregoing Answer with New Matter of Defendant, Daim1erChrys1er Corporation, to Plaintiffs Complaint, are true al1d correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. 94904, relating to unsworn falsification to authorities. JAMES "j~>l:'<lJl>:tl,,,__ . CERTIFICATE OF SERVICE I, James W. Stevens, Esquire, hereby certify that I am attorney for the defendant, Daim1erChrysler Corporation, in the within action; that I am duly authorized to make this certification and that on the 2nd day of December, 1999, I did cause a true and correct copy of Answer and New Matter of Defendant, DaimlerChrys1er Corporation, to Plaintiffs Complaint to be forwarded by first class, U.S. Mail to counsel below as follows: Craig Thor Kimmel, Esquire KIMMEL & SILVERMAN, P.C. 30 E. Butler Pike Ambler, PA 19002 MARSHALL, COLE BY: - -,.,--, - ~ .-^ JUjllljj;iliiilii!i~llh~-: '. G1enn I. Gerber, Esquire Identification No. 57898 KIMMEL & SILVE~, P.C. 30 East But1er Pike Amb1er, Pennsy1vania (215) 540-8888 r'l- :'-~~t ! r: Pt., ,_ ~ 'JF' '" <9 t P--{ 0 !-, ,- 19002 ~i;'OTf{y .. I ; c ~ , it'D Attorney for P1aintiff CHRISTOPHER COOK & DELANIE COOK v. COURT OF COMMON PLEAS PHILADELPHIA COUNTY DAIMLERCHRYSLER CORPORATION OCTOBER TERM, 1999 NO. 2018 ~:- ,~" ,~j ~:;;iO.YHV PLAINTIFF'S ANSWER TO NEW ~TTER OF DEFENDANT. CHRYSLER CORPORATION DEe 161899 48. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 49. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 50. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. ~- . "~= '0 ....kli.;'il'i'cJ, 51. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 52. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 53. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 54. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 55. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. "~. ~~ ' - - ~ 1IIr.i.i' . ~ ~'. ~!!ilil:l"~llIl"-,,, 56. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 57. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 58. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Plaintiff respectfully demands judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. KIMMEL & SILVERMAN, P.C. By: GERBER, ESQUIRE Attorney for Plaintiff 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 ~""'-, V E R I FIe A T ION Glenn I. Gerber, Esquire, states that he is the attorney for the Plaintiff herein; that he is acquainted with the facts set forth in the foregoing Answer to New Matter; and that same are true to the best of his knowledge, information and belief. This statement is being made subj ect to the penal ties of 18 Pa. C. S. Section 4904 relating to unsworn falsification to authorities. (6~J Glenn I. Gerber, Esquire Attorney for Plaintiff -- " - ~. ~ .~ , i~""" t. ~ Glenn I. Gerber, Esquire Identification No. 57898 KIMMEL & SILVERMAN, P.C. 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 Attorney for Plaintiff CHRISTOPHER COOK & DELANIE COOK v. COURT OF COMMON PLEAS PHILADELPHIA COUNTY DAIMLERCHRYSLER CORPORATION OCTOBER TERM, 1999 NO. 2018 CERTIFICATE OF SERVICE I, Glenn I. Gerber, Esquire, counsel for Plaintiff, do hereby certify that on the 15th day of December, 1999, I served all parties with true and correct copies of the foregoing Answer to New Matter, by placing same in the United States Mail, First Class, Postage Paid addressed as follows: James W. Stevens, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 1845 Walnut Street Philadelphia, PA 19103-4797 ~~'~ By: GLENN I. GERBER, ESQUIRE Identification No. 57898 Attorney for Plaintiff 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 f~'l CHRISTOPHER COOK and DELANIE COOK V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-2904 CIVIL TERM DAIMLERCHRYSLER CORPORATION IN RE: ARBITRATION ORDER OF COURT AND NOW, October 23, 2001, the Court having been informed that the Petition for Appointment of Arbitrators filed in the above-captioned case is premature, the Board of Arbitrators previously appointed is vacated; and the Court having noted that John M. Eakin, Esquire, Chairman of the Arbitration panel had already scheduled the hearing, he shall be paid the sum of $50.00. By the Court, P.J. Court Administrator John M. Eakin, Esquire Market Square Building Mechanicsburg, PA 17055 - ~~ /v/,;JA'/O( C)-. '" i I , I "","~ ,,,,'"'''' I-t ,,"~~, ~- ('to ), f:11 Frq,cC!CF ~"1"~_1J '4! " - c.,r":^lrU(')"U~nny "_,,,,'.,,1'1111'--\rt 0\ OCT 24 M~ 9: no CUtJiBt,J\\J\ND COUNTY PENNSYLVANiA , ""', ,__.'<__~ --Ie.' __, ,c,_'v. ',,, ,,=' ~~ _.' ,'.", <-,'., - ~_... .e . ~~,.~,.~~I~RIWJI~J_ ..1iIlJIM e~ pI': h y,,,,,,~,, """ .-'="l"'~ ~ -1 , , -, - - \i','~"~'~;' , i' KIMMEL << SILVERMAN, P.C. By: Craig Thor Kimmel, Esquire Identification No. 57100 30 East Butler Pike Ambler, PA 19002 (215) 540-8888 FilED PRO PROTHV NOV 0 9 1999 Attorney for Plaintiff CHRISTOPHER COOK and DELANIE COOK COURT OF COMMON PLEAS PHILADELPHIA COUNTY v. October Term, 1999 DAIMLERCHRYSLER CORPORATION No. 002018 I, , a i I I I ~~ AJw~( competent adult, being duly sworn accord'ng /:/...<: f M., on AFFIDAVIT OF SERVICE to law, depose and say that at I personally handed to (NAME) on behalf of DaimlerChrysler Corporation, at CT Corporation, 1635 Market Street, Philadelphia, PA 19103. Adult family member with whom said Defendant(s) reside{s}. Relationship is Adult in charge of Defendant's residence who refused to give name or relationship. Manager/Clerk of place of lodging in which Defendant{s) reside{s). \)'4- Agent or person in charge of Defendant's office or usual place of business. and officer of said Defendant's company. Other a true and correct copy of complaint issued in the above-captioned matter. {:a~;]~ day 999. I.. '.~~'~~"'.. CHRISTOPHER COOK DELANIE COOK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-2904 CIVIL DAIMLER CHRYSLER CORPORATION RULE 1312-1. The Petition for Appointment of Arbitrators shall be snbstantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: ROBERT A. RAPKIN , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $ 2.5 J 0()() ,00 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counselor are otherwise disqualified to sit as arbitrators: MATTHEW OWENS, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case sl\all be snbmitted. ~ AND NOW ORDER OF COURT ;. , ~ ,;ltJd (in consideration of the <:!;J~ Esq., ~.i/J/A''',) ~k"''''~ , Esq., are appointed arbitrators in the above captione action (or Esq., and actions) as prayed for. P.J. , ~~ q ell F[L(1f:CIf":E" 111,+"... ",-"I l...i O.F T'~C: [),,"~I,!ni,!OTt\RY , "''---,, ,'"',-.,'. f. a I AUG I 1; Ai1IO: I 2 CU''''-'''L''{'' c'nu'lTV hlbt::H ,W,}\ J u N I i PENNSYLVI\NIA >- If) ;::: a: i'S .. z ~ LU~~ .:;r ::::>~ ~~ ~~S :;:c O~ ~ ~ 0", ~l~; r~:" 0- O~ " T l~_"j -~> G('i,~ 0 sui ~ IV) ,.ilL. 2: ~ CL ~i..! Qi n:2' \ ~ ::::> Ww ~-- . COo.. oo:r ::;;:. -, UT. ::::> ~ 0 0 0 ~ ~ \,; ~ " \, ,'1..""""" ., . ,- '"~ ,~ . I ~,"'-: t , - ~' , .~W\li"ll~~~ ,,,,""""P,.,,~., " . !"",,',,~,/ ~.,' "" ~iMl.,l c U /78E/</--/I/V LJ CcJONTY REPORT : ZDRDOCT USER ID: VRW Fir~t Judicial District CIVIL DOCKET REPORT CASE ID 991002018 PAGE 1 RUN DATE 02/14/00 RUN TIME 09:13 AM CASE NUMBER 991002018 ----------------------~--------------------------------------------------------- C!\,SE CAPTION COOK ETAL VS DAIMLERCHRYSLER CORP FILING DATE 18-0CT-1999 COURT AR LOCATION JURY AC N CASE TYPE: CONTRACTS OTHER STATUS: TRANSFER TO OTHER JURISDICTION ~ Assoc Expn Date ~ ID 1 APLF A57100 2 PLF @4024673 1 3 PLF @4024675 1 4 DFT 12009 5 6 112137 DFT 6 ADFT A40534 Filinq Date / Time Docket Entry Party Name / Address & Phone No, KIMMEL, CRAIG T 30 EAST BUTLER PIKE PROSPECTVILLE PA 19002 (215)540-8888 i:i !~ COOK, CHRISTOPHER 424 PAWNEE DR NAVY SHIPS PA 17055 i:' I:: ::i COOK, DELANIE 424 PAWNEE DR NAVY SHIPS PA 17055 "i , [1 DAIWA BANK LTD 1650 MARKET ST. PHILADELPHIA PA 19103 (215) 636-4440 :;] n ,,; ,p q; k DAIMLERCHRYSLER CORP 1000 CHRYSLER DR AUBURN HILLS MI 48326 STEVENS, JAMES W 1845 WALNUT ST. MARSHALL,DENNEHEY,WARNER PHILADELPHIA PA 19103 (000)575-2684 18-0CT-99 14:06:00 COMMENCEMENT OF CIVIL ACTION KIMMEL, CRAIG T 18-0CT-99 14:06:00 SHERIFF'S SURCHARGE 1 DEFT KIMMEL, CRAIG T . . ~- Oilj~ikti,~" REPORT : ZDRDOCT USER ID: VRW First Judicial District CIVIL DOCKET REPORT CASE ID 991002018 PAGE 2 RUN DATE 02/14/00 RUN TIME 09:13 AM Filinq Date / Time Docket Entry 18-0CT-99 14:06:00 COMPLAINT FILED NOTICE GIVEN KIMMEL, CRAIG T COMPLAINT WITH NOTICE TO DEFEND WITHIN TWENTY (20) DAYS AFTER SERVICE IN ACCORDANCE WITH RULE 1018.1 FILED. ASSESSMENT REQUIRED 18-0CT-39 14:08:59 ACTIVE CASE 19-0CT-99 14:34:12 ARBITRATION HEARING SCHEDULED 25-0CT-99 13:15:00 AFFIDAVIT OF SERVICE FILED 02-DEC-99 15:59:00 ENTRY OF APPEARANCE FILED STEVENS, JAMES W ENTRY OF APPEARANCE OF JAMES W, STEVENS FILED ON BEHALF OF DFT DAIMLERCHRYSLER CORP. 02-DEC-99 15:59:01 ANSWER TO COMPLAINT FILED STEVENS, JAMES W ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER FILED BY DEFENDANT DAIMLERCHRYSLER CORP. '.j " 15-DEC-99 11:09:45 REPLY FILED PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANT, CHRYSLER CORPORATION , " !';:i 20-DEC-99 13:49:43 PETITION TO TRANSFER DAIMLERCHRYSLER CORP, 62-33121162 RESPONSE DATE 1/13/00 13-JAN-00 14:52:33 ANSWER (MOTION/PETITION) FILED COOK, CHRISTOPHER 62-33121162 ANS FILED TO PETITION TO TRANSFER 21-JAN-00 13:40:36 MOTION ASSIGNED 62-93121162 PETITION TO TRANSFER VENUE ASSIGNED TO JUDGE GLAZER ON 1-24-00 27-JAN-00 12:06:21 TRANSFER TO OTHER JURISDICTION GLAZER, GARY S 62-39121162 IT IS ORDERED THAT THE DFT PETITION TO TRANSFER VENUE IS GRANTED AND THE ABOVE-CAPTIONED MATTER IS TRANSFERRED TO THE COURT OF ,COMMON PLEAS FOR CUMBERLAND COUNTY, PA. THE PHlLA COUNTY PROTHONOTARY IS HEREBY DIRECTED TO FORWARD TO CUMBERLAND COUNTY PROTHONOTARY CERTIFIED COPIES OF DOCKET ENTRIES, PROCEED PLEADINGS, DEPOSITION AND ALL OTHER PAPERS FILED OF RECORD IN THIS ACTION BY THE COURT.. . JUDGE GLAZER, 1/24/00 ~, , = ~ '-~"',Ci- . REPORT ZDRDOCT USER ID: VRW First Judicial District CIVIL DOCKET REPORT CASE ID 991002018 PAGE 3 RUN DATE 02/14/00 RUN TIME 09:13 AM Filinq Date / Time Docket Entry 27-JAN-00 12:06:22 NOTICE GIVEN UNDER RULE 236 11-FEB-00 09:08:28 PRAECIPE/TRNSFER OUT OF COUNTY DAIMLERCHRYSLER CORP, PRAECIPE TO TRANSFER THE ABOVE CAPTIONED MATTER CUMBERLAND COUNTY COURT FILED. * * * End of Docket * * * \\ I: II " i: 1\ Ii ,_ . MAR 2 2 2000 ca\,itfCllrlliWTHthtWi!ilOll ~n<o" JOSEPH H. c.y""",, COUNTY PACmIQNC1TARY OF PHlLADEI.PI1lA " ~r/ J'h?7/,& ~. .~~ ",6..", ' c ' -"-"~""'-!;l~J;f>>;", f) .., 1', '... ~ ' ... .. DocKETED \OI_21ILLAB\IlSJ\LLP<J\188486\DSJ\03043\00846 JAN 2 7 2000 MARSHALL,DENNEHEj','\VARNER, 121162 COLEMAN & e;OGGIN K.JACKSON . By: James W. Stevens, Esquire CIVILADMINlsTRATIOlttorney for Defendant, Attorney I.D: 40534 Daim1erChrys1er Corporation 1845 Walnut Street ' Philadelphia, PA 19103 (215) 575-2684 CHRISTOPHER COOK and DELANlE COOK COURT OF COMMON PLEAS PHILADELPIDA COUNTY v. OCTOBER TERM, 1999 DAIMLERCHRYSLER CORPORATION NO. 2018 ORfrER ,1 4. ,7b.uU:woo AND NOW, thiX lfday of Ir'~V7' ~, upon consideration of defendant Daim1erChrys1er Corporation's Petition to Transfer Venue for Forum Non Conveniens and any response thereto, it is hereby ORDERED and DECREED that said Petition is granted and the above-captioned matter is transferred to the Court of Common Pleas for Cumberland County, Pennsylvania. The Philadelphia County Prothonotary is hereby directed to forward to Cumbedand County Prothonotary certified copies of docket entries, proceed pleadings, depositions and all other papers filed of record in this action. BY THE COURT: COPIES SENT PURSUANTro Pa. ~.C.P. 236M. JAN 2 7 2000 .., FIrst JUdidaI Dislric:tof User'.D.: t/Q(';' Pa. , J' /1. ~- -- .'.1 , .--,-j.~..~~kl~,AI' , , " , , \}J ~ MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevells, EsqUire Attorney LD: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrys1er Corporation CHRISTOPHER COOK and DELANIE COOK COURT OF COMMON PLEAS PIDLADELPHIA COUNTY v. OCTOBER TERM, 1999 DAIMLERCHRYSLER CORPORATION NO. 2018 PETITION OF DEFENDANT, DAIMLERCHRYSLER CORPORATION, TO TRANSFER VENUE FOR FORUM NON CONVRNIENS Defendant, DaimlerChrys1er Corporation, by and through its attorneys, Marshall, Dennehey, Warner, Coleman & Goggin, hereby petitions this Honorable Court for an Order transferring this matter for Forum Non Conveniens to the Court of Common Pleas of Cumberland County, pursuant to Pa. R.C.P. 1006(d)(1), with supporting Affidavits, avers as follows: 1. This civil action was commenced by the filing of a Complaint in the Court of Common Pleas of Philadelphia County on or about October 18, 1999. A true and correct copy of plaintiff's Complaint is attached hereto as Exhibit" A". 2. The action alleges a violation of the Pennsylvania Lemon Law, breach of warranty and unfair trade practices as a result of the purchase and operation of a 1997 Dodge Grand Caravan. 3. This case has absolutely no relationship to any activities, events or transactions which occurred in Philadelphia County. , , , " I> , ~ I'~~,' , " 4. In the case of DuJaney v. Consolidated Rail COJ:poration 715 A2d 1217 (Pa.Super. 1998), the Pe,nnsy1Y~a Superior Court upheld a transfer of a matter from Philadelphia to Allegheny County on facts essentially identical to the matter at hand. 5. The court in Dulaney had no difficulty readily deciding the inconvenience that was inherent in a Philadelphia County trial based on the fact that the plaintiff and all witness were located in Ohio, Western Virginia or Western Pennsylvania. The Superior Court made this decision in the light and guidance of Cheeseman v Lethal Exterminator. Inc. et a1, 701 A.2d 156 (Pa. 1997) which requires the defendant to show that the plaintiffs fomm is oppressive or vexatious to the defendant. 6. As set forth in more detail below and in the attached Affidavits the filing of this matter as well as dozens of ideutical matters in Philadelphia County against the defendant has proven to be vexatious and oppressive. 7. In addition, as set forth in the attached Affidavits of the witnesses in this case, the conveuience of the witnesses would be greatly enhanced ifthis matter were transferred to the Court of Common Pleas of Cumberland County. See, Exhibits "B", "C", and "D" attached hereto. 8. As reflected in the caption in the Complaint, the plaintiff resides at 424 Pawnee Drive, Mechanicsburg, P A 17055, Cumbedand County, (See Exhibit "A"), which borders Dauphin County where the dealership who sold and serviced the vehicle is located. (See Exhibit "B", "C'~, uD" and "E"). 9. The service and repairs to the plaintiffs vehicle in Peunsy1vania occurred in Dauphin County at Behney Motors. See, Exhibits "B", "C", and "D" attached hereto. 2 "=~<~ ~ , " ~- ~~ 1-- . . - ~",;<...._~1: , , , .., . 10. The service manager and service technicians who worked on the plaintiff's vehicle are important witnesseS'regarding the issue of whether the vehicle was repaired in accordance with the alleged terms of the warranty. These witnesses are employees of Behney Motors, in Dauphin County. To require their attendance at interviews, depositions, arbitration and/or trial in another county far removed from their place of employment would burden the independent franchise dealership and damage their efforts to handle the service and repair needs of other customers. See Affidavit of Charles Behney attached hereto as Exhibit "C". 11. All records, contracts, repair orders and technician's notes generated in Pennsylvania regarding service of this vehicle are located at and are the property of Behney Motors in Dauphin County. See paragraph 15 of Affidavit of Matt Zielke, attached hereto as Exhibit "B". 12. Behney Motors is an independent franchise dealership and its records and employees are not under the control of Daimler Chrysler Corporation. 13. Pursuant to Pa. R.C.P. 1006(d)(1), this Honorable Court may: For the convenience of parties and witnesses, the court upon petition of any party may transfer an action to the appropriate court of another county where the action could have originally been brought. Pa. R.C.P. 1006(d)(1). 14. Moreover, while the plaintiffs choice of forum is entitled to weight, a Petition to Transfer Venue may be granted if the plaintiffs chosen is oppressive or vexatious to the defendant. Cheeseman v. Lethal Exterminator. Inc.. et aI., 701 A.2d 156 (Pa. 1997). Pursuant to Cheesman, a defendant is also entitled to transfer by showing that "trial in another county would provide easier access to witnesses or other sources of proof, or the ability to conduct a view ofthe premises involved in the dispute", Id. 3 - '.. ,(j'II~~'- , , , ", . 15. Moreover, pursuant to Cheeseman, a defendant is entitled to a transfer of venue by showing that "trial in,anothil'r county would provide easier access to witnesses or other sources of proof, or the ability to conduct a view of the premises involved in the dispute." Id. 16. Trial of this matter in Philadelphia is inconvenient to all of the key fact witnesses as well as the defendant in this matter. Furthermore, the pattern of repeat filings in Philadelphia County of similar cases with no relationship to Philadelphia has proven to be oppressive and vexatious in its effect. 17. As set forth above, the arbitration and trial of this matter in Cumberland County would provide easier access to all the sources of proof both documentary and testimonial as contemplated by the Pennsylvania Supreme Court in Cheeseman, Id. 18. There is no contact that this matter has with the City or County of Philadelphia. Even plaintiff's lawyers are not located in Philadelphia County. Given the absence of any important connection between the County of Philadelphia and the location of all relevant evidence and witnesses in Dauphin County, together with the burden that would be imposed on witnesses the institution of this suit in Philadelphia County is vexatious, oppressive, prejudicial and unduly burdensome. As a result of the facts set forth above, petitioning defendant respectfully requests this Honorable Court to transfer this matter to the Court of Common Pleas for Cumberland County pursuant to Pa. R.C.P. 1006( d). 4 .-,^ , , . , -. ..J2li!" '~~" i', WHEREFORE, petitioning defendant, DaimlerChrys1er Corporation, respectfully requests this Honorable,Court to enter an Order in the form attached hereto and transfer the instant matter to the Court of Common Pleas for Cumberland County. MARSHALL, DENNEHEY, WARNER, COL AND GOGGIN BY: J~ES W. STEVEN~ A orneys for Defendant, D 'm1erChrys1er Corporation 5 " =~ , I~ 'Ill f i lii:Jilblll:Slli6"jU~ 1', . MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esqilire Attorney LD: 40534 1845 Wahmt Street Philadelphia, P A 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK COURT OF COMMON PLEAS PHILADELPHIA COUNTY v. OCTOBER TERM, 1999 NO. 2018 DAIMLERCHRYSLER CORPORATION MEMORANDUM OF LAW IN SUPPORT OF PETITION OF DEFENDANT, DAIMLERCHRYSLER CORPORATION TO TRANSFER VENUE FOR FORUM NON CONVENIENS Defendant, DaimlerChrys1er Corporation, by and through its attorneys, Marshall, Dennehey, Warner, Coleman & Goggin, hereby petitions this Honorable Court for an Order transferring this matter to the Court of Common Pleas of Cumbedand County, and in support, states as follows: I. STATEMENT OF FACTS: This lawsuit was initiated by the plaintiff who is a resideut of 424 Pawnee Drive, Mechanicsburg, PA 17055, located in Cumbedand County. This suit involves repairs to a 1997 Dodge Grand Caravan. The vehicle was serviced at Behney Motors, located in Dauphin County, Pennsylvania. This dealership is an independent franchise dealership with no corporate, financial management or employee ties to DaimlerChrys1er Corporation. At issue in this case are repairs made to this vehicle by Behney Motors in Dauphin County, Pennsylvania, allegedly under a warranty extended by Daim1erChrys1er Corporation. DaimlerChrys1er has no employees in Philadelphia County that are familiar with the facts of this case. The documentary evidence _.~ -. ~ ~ - I '/!';il,.!%wdl~lMi1ll(_' . with regard to the service and repair of the vehicle is located in Dauphin County, which is adjacent to Cumberland County" as are relevant witnesses. DaimlerChrysler Corporation does not maintain any documents, offices or employees in Philadelphia County. There is no relationship between the facts and allegations of this lawsuit and Philadelphia County. As set forth in Defendant's Petition and in the Affidavits of the witnesses, attached hereto as Exhibits "B", "c" and "D", arbitration and trial of this matter would be extremely inconvenient to the material witnesses and is vexatious and oppressive to defendant. II. LEGAL ARGUMENT: Although the right of a plaintiff to choose the fomm in which he brings suit is accorded important consideration, it is not absolute. McReynolds v. Benner Township. 118 Pa. Cmwlth. 215,544 A.2d 566, (1988); allocatur denied at 581 A.2d 575; See also Ernest v. Fox Pool CO(l), 341 Pa. Super. 71, 491 A.2d 154 (1985). In fact, the Pennsylvania Rules of Civil Procedure expressly permit a change in venue where venue is either technically improper in the county where suit is brought, or where it would be inconvenient to the parties, witnesses and the court to try the case in plaintiffs choice of fomm. Specifically, Pennsylvania Rule of Civil Procedure 1 006(d)(1) provid6s in pertinent part: "For the convenience of parties and witnesses, the court upon Petition of any party, may transfer an action to the appropriate court of any other county where the action could have originally been brought." Pa. R.C.P. 1 006( d)(1). Therefore, under Pennsylvania Rule of Civil Procedure 1 006( d)(l), venue may, out of convenience to the litigants, be changed to a court located in another county, where venue is also proper. The Superior Court has recognized that the doctrine ofFomm Non Conveniens serves the essential purpose of "provid[ing] the court with a means oflooking beyond technical considerations such as jurisdiction and venue to determine whether litigation in the plaintiff's 2 .~- , ~'" I"" " ~.~, -U;."I~~'. ^' , chosen fomm would serve the interest of justice under the particular circumstances." Alford v. Philadelphia Coca Cola Bottlin~, 366 Pa. Super. 510,513,531 A.2d 792, 794 (1987). In fact, the doctrine ofFomm Non Conveniens is necessary to counterbalance Pennsylvania's "liberalized venue rules" which enables a plaintiff to have a choice of more than one fomm in which to bring suit Vogel v, Nat'l R.R. Passenger COl:p., 370 Pa. Super. 315, 536 A.2d 422,425 (1988) (quoting Ernest v. Fox Pool COl:p., 341 Pa. Super. 71, 75, 491 A.2d 154,156 (1985)). Further, Peunsy1vania Rule of Civil Procedure 1006( d)(1) gives trial courts wide discretion in deciding "whether to grant the petition for change of veuue," Brown v, Delaware V alley Transplant Program, 371 Pa. Super. 583, 586, 538 A.2d 889, 891 (1988) (quoting Fox v. Pennsylvania Power & Light Co., 315 Pa. Super. 79, 81, 461 A.2d 805,806 (1983)); McReynolds v. Benner Township, 118 Pa. Commw. 215, 544 A.2d 566 (1988). The Pennsylvania Supreme Court recently addressed the issue ofFomm Non Conveniens in the matter of Cheeseman v. Lethal Exterminator Inc., 701 A.2d 156 (Pa, 1997). In Chee~eman, the Pennsylvania Supreme Court reiterated that the standard for a Petition to Transfer Venue based on the Doctrine ofFomm Non Conveniens is that the instant fomm is oppressive or vexatious. Id. The Supreme Court then stated, however, that the defendant could meet this burden by showing that another county "would provide easier access to witnesses or other sources of proof." Id. at page 162. Following the Cheeseman guidelines, the Superior Court, in Dulaney v. Consolidated Rail COl:poration 715 A.2d 1217 (Fa. Super. 1998), recently granted a Petition to Transfer Venue from Philadelphia County to Allegheny County. The facts in Dulaney showed that an accident occurred in Ohio, and the plaintiff, all the witnesses and all the medical providers were located in the border state of Ohio, West Virginia or Western Pennsylvania, however, the plaintiff filed suit 3 > ,~,' ,r,'. ~ l'--, " "l~l1oli,-!, . in Philadelphia County. The court, citing Cheeseman, noted that a "petition to transfer venue will not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiffs chosen forum is oppressive or vexatious to the defendant" Dulaney at 1219 citing Cheeseman at 162. However, the Superior Court held as follows: In its petition to transfer venue, Conrail presented facts showing that the accident occurred in Ohio and that the appellant and all of the witnesses lived in Ohio, West Virginia or Western Pennsylvania. Additionally, all of appellant's medical providers were located in Ohio, West Virginia or Western Pennsylvania. The only connection to Philadelphia County is that Conrail conducts businesses in Philadelphia County, .. Thus the facts show that Conrail has demonstrated that a trial in appellant's chosen forum would have been oppressive and that trial in Allegheny County would be more convenient because of easier access to all of the witnesses and other sources of proof. Dulaney at 1219, The court concluded: "[T]he trial court did not abuse its discretion when it granted Conrail's petition to transfer venue based onforum non conveniens." Id. Likewise, in the instant case, trial in Philadelphia County would be oppressive and Cumberland County would be more convenient because of easier access to all the witnesses and all the sources of proof. Dulaney at 1219. Just as in Dulaney, the only connection to Philadelphia County is that the defendant conducted some business in Philadelphia, albeit business that has nothing to do with the dispute in this case. As stated, the Delaney case is directly on point with the case at hand. As confirmed by the Affidavits in defendant's Petition, the plaintiff in the instant matter is located in Cumberland County. The dealership where the Pennsylvania repairs were performed together with all the relevant witnesses are located in Dauphin County which borders Cumberland County. To hold a 4 .. ~.'~,>-, , , , , trial in Philadelphia County would be vexatious and oppressive. A trial in Cumberland County however, would be mor~ convehient because of easier access to all the witnesses and all the sources of proof. Any argument by the plaintiff that Philadelphia County is a more appropriate forum would contradict the validity of the transfer venue statute. If transfer is inappropriate, then essentially no case can qualify. All repairs in PeilllSylvania were performed by the same dealership located in Dauphin County, which borders Cumberland County, where the plaintifflives. The service manager and technicians who performed the repairs to the vehicle are dealership employees. To require them to urmecessari1y travel to Philadelphia for pretrial interviews and depositions as well as arbitration and trial would be oppressive and inconvenient. See, Affidavit of Mr. Behney and Mr, Fansacht, attached hereto as Exhibits "c" and "D". The dealership's documents are the primary documentary proof in warranty litigation such as this. These records and notes are not maintained, controlled or owned by DaimlerChrys1er Corporation. See Affidavit of Mr. Zielke, attached as Exhibit "B". Requiring DaimlerChrys1er to defend this case in Philadelphia would have an adverse impact on both Daim1erChrysler Corporation's operations as well as the operation of the selling and servicing dealerships. Requiring a Dauphin County dealership's service personnel to attend depositions, arbitrations and trial as well as to be interviewed by Daim1erChrys1er's attorneys defending this case in Philadelphia would have an adverse effect on customers that rely on these technicians Behney Motors See Affidavits of Mr. Zielke, Mr. Behney and Mr. Fansacht, attached hereto as Exhibits "B", "c" and "D", In the recent Opinion ofthe Pennsylvania Superior Court in the case of Techtmann v. Howie, 1997 W.L. 194455 (Fa. Super.), the Superior Court upheld the trial court's grant of a 5 ~~ . , ~"~. " ~,i~,dlJii"~,i . change of venue based on Forum Non Conveniens from Philadelphia County to Bucks County. The Techtrnann case involved an accident that occurred in Bucks County, Pennsylvania. A review of the records informed the Superior Court that there were very few connections to Philadelphia County that justified the institution of the suit there. The Superior Court noted that the defendant, the operator of the hydraulic left on the day of the accident, as well as one of the eyewitnesses to the accident, were Philadelphia residents. In addition, the plaintiff received some medical care at a Philadelphia hospital. Further, some of the defendants regularly conducted business in Philadelphia. Despite this information, however, the Superior Court held that these factors were not compelling in light of the significant amount of connections that the case had with Bucks County. By contract, in the instant case, there are absolutely no connections whatsoever to Philadelphia County. Furthermore, in McReynolds v, Beuner Township, 118 Pa. Cmwlth, 215, 454 A.2d 566 (1988); allocatur denied at 581 A.2d 575, the Commonwealth Court upheld a transfer from Philadelphia County to Center County. The McReynolds court concluded that the fact that "practically all the sources of proof are located in Center County" satisfy both the standard of oppressiveness and vexation that justified transfer, and the alternative standard of administrative and legal problems noted above. 544 A.2d at 567, 568. See also Fox v. Pennsylvania Power & Light Co., 315 Pa. Super. 79, 461 A.2d 805,806 (1985) (only counection between case in Philadelphia County is location of one office of one defendant there, justifying transfer to Luzerne County.) It is clear from the records set forth above that the trial of the instant matter in Philadelphia County is both oppressive and vexatious to Petitioning Defendant. As established by the Affidavit of Matthew Zielke, this case is only one of several dozen being brought in 6 . , , ~ ".J~""'I<_j""",._: ., Philadelphia County by plaintiff's law firm regarding allegations that have nothing to do with Philadelphia County and arise and exist in Cumbedand and Dauphin County or other counties far removed from Philadelphia. The net result both individually and taken as a whole impacts negatively on defeudant's corporate operations and its ability to defend individual lawsuits, Daim1erChrysler should not have to repeatedly chose between disrupting its operations or producing evidence and witnesses in Philadelphia that could be much more conveniently produced in the county where the incident in question occurred. Given the fact that this case is being pursued in Philadelphia at what must clearly be an inconvenience to this Cumberland County plaintiff the conclusion that the litigation is vexatious is clear. As stated by the Supreme Court of Pennsylvania in the Cheeseman decision, "...the defendant may meet its burden of showing that the plaintiffs choice of forum is vexatious to him by establishing facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. " Cheeseman, supra, 701 A.2d at p, 162, For the plaintiff himself to travel many hours to pursue litigation in an unrelated county which is clearly burdensome to the defendant is a precise ground which the Supreme Court approved as a basis for transfer. The Supreme Court in Cheeseman also stated that "Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or the ability to conduct a view of the premises involved in the dispute. Cheeseman, Id. at p.162. Based on the Affidavit of Matthew Zielke it is clear that trial in Philadelphia is not only inconvenient but it is ultimately oppressive to Daim1erChrys1er's defense as well as its 7 <- ... ~ . l ~ '''"',,-,,- . operations. To require witnesses, persounel and documents to be transported over many hours by car for depositions, afbitrations, and/or trial is a clear burden which has become oppressive. To require dealership and Daim1erChrys1er persounel to be away from their responsibilities for extended periods of time directly impacts on the ability of Daimler Chrysler and the dealership to sell, service and repair vehicles. While adjudicating one customer's complaint other customers unnecessarily go unattended. The easier access to witnesses and sources of proof that exist in Cumbedand and Dauphin Counties as well as the ability to conduct a view/inspection ofthe vehicle in question clearly militates in favor of transfer of this matter to Cumberland County. In addition, the issue of convenience, as established in this case, is the second alternative ground set forth by the Supreme Court in Cheeseman as justification for transfer. Pursuant to the standard set forth by the Pennsylvania Supreme Court in Cheeseman, Petitioning Defendant has established that the trial ofthis matter in Cumberland County would provide easier access to sources of proof and witnesses. Moreover, Philadelphia County has no relevant connections to the resolution in the instant matter. WHEREFORE, Petitioning Defendant, Daim1erChrys1er Corporation, respectfully requests this Honorable Court to enter an Order in the form attached hereto and transfer this matter to the Court of Common Pleas for Cumbedand County. BY: J S E QUIRE ttorney for Defendant, DaimlerChrysler Corporation 8 ,."' . . , MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, EsqUire Attorney I.D: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 ~~~"",,""';.c~ Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK v. DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 CERTIFICATE OF SERVICE I, JAMES W. STEVENS, ESQUIRE, hereby certify that I am attorney for the defendant, DaimlerChrysler Corporation, in the within action; that I am duly authorized to make this certification; and that on the 21 st day of December, 1999, I did cause a true and correct copy of Petition of Defendant, DaimlerChrysler Corporation, to Transfer Venue Pursuant to Pa, R.C.P. 1006(d)(1) to be forwarded by first-class u.s. Mail to counsel, addressed as follows: Craig Thor Kimmel, Esquire KIMMEL & SILVERMAN, P.C. 30 E. Butler Pike Ambler, PA 19002 NEHEY, WARNER, AND GOGGIN BY: " Coyrt of Common Pleas of Philadelphia eounty , Trial Division Civil Cover Sheet PlAINTIFF'S NAME Chris~opher Cook PLAINTIFF'S ADORESS 424 Pawnee Drive Mechanicsburg, PA 17055 PLAINTIFF'S NAME Delanie Cook ~" ""- - "'~'.~LIII,,'.'~k \'~~i,<i~l:,~,~11~~~~~(;!:fo,i)~r~ use:' pOly (Docket' Number) ,~~s'j~s1~i:~:~?~/":" ,',r,'" ,~ <:c', ~I.-''',i-' DaimlerChrysler Corpora~ion OEFEf'lOANJ.:S ADDRess C/O ~T Corporation 1635 Market Street Philadelphia, PA 19103 oeFENOANT'S NAME 00201.3 PLA1NTlFPS ADDRESS DEFENDANT'S ADDRESS 424 Pawnee Drive Mechanicsburg, PA 19103 TOTAL NUMBER Of PLAINTIFFS (70) TOTAL NO. O\, DEFENDANTS (71) 2 1 AMOUNT IN CONTROVERSY [) 30. $50,000.00 or less 031. Morethan$SO,OOO,OO 032. Assessmentofdamageshearingrequired D 33. Assessment of damages hearing not required ACCRUAL OF CAUSE OF ACTION 040. ActionaroseinPhiladelphiaCounty []I 41. Action did not arise in Philadelphia County (state reason for filing action in Philadelphia COU1lty below ;11 #60) o 42. Transaction or occurrence giving riseta action arm;e in Philadelphia County o 43. Transaction or occurrence giving rise to action did not arise in Philadelphia County (describe transaction or occurrence be/ow in #60) COMMENCEMENT OF OTHER ACTION , [XIs, ,[J I. Compl,,",' 06, 02. WritofSununons 07. o 3, Notioe of Appeal 08, o 4. Petition Action 09. Arbitration JU<y Non IUI)' &Equity Class Action Savings Actions o 10. InFonnaPauperis o 11. Transfer from Other Iurisdiction o 12. MinorslIncompetentCompromise o 13. Swvival Action o 14. Wrongful Death Action (involving minors) DEFENDANT INFORMATION o 50. All defendants are residents of (or have offices in) Philadelphia County o 51. Main defendant is a resident of (or hasoffices in) Philadelphia County o 52. All defendants regularly conduct business in Philadelphia County (see 1nstructioll F) o 53. Main defendant regularly conducts business in Philadelphia County (see Instruclion F) o 54. Defendants are not residents of (and do not have offices in) Philadelphia County (state below ill #60 reasotJJor filillg action in Philadelphia County) ~ Main defendant regularly conducts business in Philadelphia Countv L:J 60, - CODE NUMBER AND TYPE Of ACTION (See Instruction G) 20000 Contract STATUTORY BASIS FOR CAUSE OF ACTION (See Instruction k) RELATED PENDING CASES (List by Docket Number .Indicat~ Whether the Related Cases Have Been Consolidated) to Forofficia/'use only. STArUiP4:~{)if, !l\,ii!;;;:{ ;''; '~~_iAL.:~,IS':l~.?t~~;,':~ff~:?3~~~t~~~;';,!~ ~~~.~~,lJRT ACTl~N . , o 1001 ;IiefeJed 0 1010~itration";1;i/;'; IIl\lOl ArbltratlonHeanng '.. q '" ,"< >/"X,'; 0 ' 1 0 1 (ju~," :,j;cf:ij,::;,:",:,;: -$i:'j~_;:~'~. .~':L~~ i: :_.:' Date: o 10 12::N~'~':JUI:Y,~:.::;,!;,~~"~i1~{!~;~:!, \VJf<,~~{' Ii Time: '. 0 1013 Aiencyrf,",Ap~s' ,;j,> Arbitra'ionCenler 8. ;l014 ,i..f'.aSsT. o...rt...o;\,.,:-~> ';J.>;~; '.;:.;.'..tq...."'"...-J~.Ol Market Street L.:J.-' . -,,~.t . ',:/:'i",.."",~pJ':"~"2'naFloor o 1015.QlherIi'.' . : Philadelphia,PA 19103 NAMe OF PLAINTIFF'S/APPELLANT'S ATTORNEY Crai Thor Kimmel Es uire PHONE NUMBER SUPREME COURT IDENTIFICATION NO, SIGNATURE 215 540-8888 ,;".",,' , I 01.101 (Rev. 9194) ADDRESS (Se/# In$tfllctlon J) Ki~el & Silverman, P.C. 30 East Butler Pike Ambler, PA 19002 DATE .....'.0 ;~B.. o 0_~):;:,:..~':,~:'</:::, ,:}~::~~::_ 1l02"SettlemenlCoOferenci:"'2i;;' '," 1 ioj_',\~~,~~;~~~ik:') ,~j1~~~!;:~;:~~"~::' '1l04'.$la!1JSConference'''~,;,;,;,; . 110S ;-:gt:;:: ' "",.- y'~~~",,>>::~~::~: ''':,':''jim't:.'''' .~\\?~'\"_'~ ,-} Place: ,',--",_n: :,<"t; DEFEN 11"q,. ;~i;;j\,~:{~i~,t , ' "'';',<" i"" . "'-~_,!li-VW~,,-', " , , , Craig Thor Kimmel. Esquire Identification No. 57100 KIMMEL & SILVERMAN. P.C. 30 East Butler pike Ambler. Pennsylvania '19002 (215) 540-8888 Attorney for Plaintiff THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES BEARING IS REQUESTED. : CHRISTOPHER COOK and DELANIE COOK 424 Pawnee Drive Mechanicsburg. PA 17055 v. USTEO ESTA ORO~NIf;Q COMPAIllitEri EN Af\ljiTRAT1O~H,.MINa ~HILADELPHIA tOOt MA~K.l'T STR~rr, 2110 FLQ(1n FIVE PENN CEmR PlJ:LJ\ T1ME:i : 3D IVIL ACTION JUN l:i 2000 ON : YOU MUST S'i~L"-'(':"Jj'-U \\1W THE NOl1tE BelOW. USTED TOD~IA DEBE CUMPUR CotS Ell,VISO PARADEPE~DERSE OURT OF COMMON PLEAS COUNTY DAIMLERCHRYSLER CORPORAT c/o CT Corporation 1635 Market Street Philadelphia. PA 19103 TERM. 1999 O. OCTOBER 1999 . . NOTICE TO DEFEND CODE: J.900 00201.8 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 you 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 FDID OUT WHERE YOU CAN GET LEGAL HELP. . , ~LADELPHIA Bl\R ASSOCIATION TIllS MA'l1'ER w:LL BlllffiARD BY A BO'.RD 01' ~\t:~~ 'lmFE1uuu. AND INFORMATION SERVICE. '-. TIlEO'J"nrp OATEANDPLA.CESPECIFTdJBUT, . .--:......~_.,'. "'-TI:Il READ"""" \;.I5ftJ.:KK " ..,.I11~!;., ,.tnUE~"n-'''''T''il::;''f.ll''.'''U''''1.D.LI.'I\:r MORE PARTiES IS l~OT PRESENT ~\ T :l,h~ n ,:,~''l;:: (..4 lh '. PHILADELPHIA PA 19J.07 D \C~"''''''''S^'~.ft'TI\!\EI'NDDAi:c.l-,tJFQRE^ , MAYEEHEAR t 1 inn .V...... '-'h ;, " ,.. \ ' TELEPHONE- 215-238-1701 JUDGE OF Th'E COURT WTI'HOUTTH.ll ABSliNT PAR fV O~ ftpa" . PARTIES, THERE IS NORlGIITTOA I'R,IALDBNOVOON", """ FROM A DllClsION ENTERED BY AJUOOB. AVISO M. CORNAGUA PRO. PROTHY OCT 1 8 1999 AlTEST Le han demandado a usted en la corte. Si usted qui ere defenderse de estas de estas demandas expuestas an las paginas signientes, usted tiene veinte (20) dias de plazo al partir de ia fecha de la demanda y ia notificacion. Hace falta asentar una comparencia escrita 0 en persona 0 con un abogado y entregar a 1a corte en fo~a escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, Ie corte tomara medidas y puede continuar la demanda en contra suya sin previa aviso 0 notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cump1a con todas las provisiones de eata demanda. Osted puede perder dinero 0 sus propiedades U ostros derechos importantes para usted. LLEVE ESTA DEIIANDA A UN ABOGlIDO DlHEDIATAMENTE. SI NO TIENE ABOGlIDO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICDlA CUYA DIRECCION SE _"uJSdTRA ESCRITA ABAJO PARA AVERIGUAR DONnE SE PUEDE CONSEGlJIR ASISTENCIA LEGAL. SERVICIO DE REFERENCIA LEGAL ONE READDlG CENTER FILADELFIA. PA J.9107 TELEFONO: 2J.5-238-J.701 ~" '.~ ..u ~~' ~..... ~ .~ ~.'~"~~"""""_""'lib"",,"';',,"'''';', " Craig Thor Kimmel, Esquire Identification No. 57100 KIMMEL & SILVERMAN, P.C. 30 East Butler Pike . Ambler, Pennsylvania 19002 (215)540-8888 Attorney for Plaintiffs THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING IS REQUESTED . : CHRISTOPHER COOK and DELANl:E COOK 424 Pawnee Drive Mechanicsburg, PA 17055 : COURT OF COMMON PLEAS : PHILADELPHIA COUNTY : : CIVIL ACTION v. : : TERM, 1999 DAIMI.ERCHRYSLER CORPORATION c/o CT Corporation 1635 Market Street Philadelphia, PA 19103 : : NO. : : COMPLAINT CODE: 1900 1. Plaintiffs, Christopher Cook and Delanie Cook, are adult individual citizens and legal residents of the Commonwealth of Pennsylvania, residing at 424 Pawnee Drive, Mechanicsburg, Pennsylvania 17055. 2. Defendant, DaimlerChrysler Corporation, is a business corporation qualified to do business and regularly conducts business in the Commonwealth of Pennsylvania, and is a corporation of the State of Delaware, with its legal residence and principal place of business located at 12000 Chrysler Drive, Highland Park, Michigan 48288-1919, and can be served c/o CT Corporation, 1635 Market Street, Philadelphia, Pennsylvania 19103. , '"""';,;l~,",,~,.".!:'<C BACKGROUND 3. On or,abo~t October 29, 1998, Plaintiffs purchased a 1997 Dodge Grand Caravan, manufactured and warranted by Defendant, bearing the Vehicle Identification Number 1B4GP44RXVB438978. The vehicle was purchased in the Commonwealth of Pennsylvania and is registered in the Commonwealth of Pennsylvania. 4. The price of the vehicle, including registration charges, document fees, sales tax, finance and bank charges but, exc1udinQ other collateral charges not specified yet defined by the Lemon Law, totaled more than $24,547.20. A true and correct copy of the Contract is attached hereto, made a part hereof and marked Exhibit "A". 5. Plaintiffs aver that as a result of the ineffective repair attempts made by Defendant through its authorized dea1er(s}, the vehicle cannot be utilized for the purposes intended by Plaintiffs at the time of acquisition and as such, the vehicle is worthless. 6. In consideration for the purchase of the above vehicle, Defendant issued to Plaintiffs several written warranties, including a three (3) year or thirty-six-thousand (36,000) mile bumper-to-bum~er, as well as other standard warranties fully outlined in the warranty booklet. COUNT I PENNSYLVANIA AUTOMOBILE LEMON LAW 7. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. - ~"~I<&,t;"_' 8. Plaintiffs, are "Purchasers" as defined by 73 P.S. !il952. 9. Defendant is a "Manufacturer" as defined by 73 P.S. !il952. 10. Behney Motors, is and/or was at the time of sale a Motor Vehicle Dealer in the business of buying, selling, and/or exchanging vehicles as defined by 73 P.S. ~1952. 11. On or about October 29, 1998, Plaintiffs took possession of the above mentioned vehicle and experienced nonconformities as defined by 73 P.S ~195l et seq., which substantially impair the use, value and/or safety of the vehicle. 12. The nonconformities described violate the express written warranties issued to Plaintiffs by Defendant. 13. Section 1955 of the Pennsylvania Automobile Lemon Law provides: If a manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle... or accept return of the vehicle from the purchaser, and refund to the purchaser the full purchase price, including all collateral charges, less a reasonable allowance for the purchasers use of the vehicle, not exceeding $.10 per mile driven or 10% of the purchase price of the vehicle, whichever is less. 14. Section 1956 of the Pennsylvania Automobile Lemon Law provides a presumption of a reasonable number of repair attempts if: {l} The same nonconformity has been subject to repair three times by the manufacturer, its agents or authorized dealers and the nonconformity still exist{s}; or -'~"~ " ~. - - ""'>;",lr'-lli&!;~' (2) The vehicle is out-ot-service by reason of any nonconformity for a cumulative total of thirty qr more calendar days. , 15. Plaintiffs have satisfied the above definition as the vehicle has been subject to repair more than three (3) times for the same nonconformity, and the nonconformity remains uncorrected. 16. In addition, the above vehicle has or will be out-of- service by reason of the nonconformities complained of for a cumulative total of thirty (30) or more calendar days. 17. Plaintiffs have delivered the nonconforming vehicle to an authorized service and repair facility of the manufacturer on numerous occasions. After a reasonable number of attempts, the manufacturer was unable to repair the nonconformities. 18. During the first 12 months and/or 12,000 miles, Plaintiffs complained about defects and/or nonconformities on at least three occasions to the following vehicle components: noisy belts; headliner hanging down; and a dead battery. Plaintiffs are not in possession of this information, however it can be obtained from Defendant's authorized dealership. 19. The vehicle continues to exhibit defects and nonconformities which substantially impair its use, value and/or safety as provided in 73 P.S. ~1951 et seq. 20. Plaintiffs aver the vehicle has been subject to additional repair attempts for defects and/or nonconformities and/or conditions for which the dealer did not maintain records. 21. Plaintiffs have been and will continue to be financially damaged due to Defendant's intentional, reckless, ; ~ " III ,~,~. "~j~",":~~" , .' " wanton and negligent failure to comply with the provisions of 73 P.S. ~1951 et sea. , 22. Pursuant to 73 Pa. P.S. ~1958, Plaintiffs seek relief for losses due to the nonconformities and defects in the above- mentioned vehicle in addition to attorney fees and all court coste. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT II MAGNUSON-MOSS FEDERAL TRADE COMMISSION IMPROVEMENT ACT 23. Plaintiffs hereby incorporate all facts and allegations set ~orth in this Complaint by reference as if fully set forth at length herein. 24. Plaintiffs are "Consumers" as defined by 15 U.S.C. ~2301(3). 25. Defendant is a "Warrantor" as defined by 15 U.S.C. ~2301 (5) . 26. The purpose for which this product is normally used is personal, family, and household use. 27. By the terms of the express written warranties referred to in this Complaint, Defendant agreed to perform effective warranty repairs at no charge for parts and/or labor. 28. Defendant has made attempts on several occasions to comply with the terms of its warranties; however, such repair attempts have been ineffective. ii;j----'.' '""~~........~ M .,.i ~~~ ~ .'. ''''''''~-othH 29. As a direct and proximate result of Defendant's failure to comply with the e~press written warranties, Plaintiffs have , suffered damages and, in accordance with 15 U.S.C. ~2310(d) (1), Plaintiffs are entitled to bring suit for such damages and other legal and equitable relief. 30. Section 15 U.S.C. ~23l0(d) (1) provides: If a consumer finally prevails on an action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the amount of aggregate amount of costs and expenses (including attorney fees based upon actual time expehd~d), determined by the court to have been reasonably incurred by the Plaintiff for, or in connection with the commencement and prosecution of such action, unless the court, in its discretion shall determine that such an award of attorney's fees would be inappropriate. 31. Plaintiffs aver Defendant does not have a Dispute R~solution Program which is in compliance with 16 CFR 703. 32. Plaintiffs aver that upon successfully prevailing upon the Magnuson-Moss claim herein, all attorney fees are recoverable and are demanded against Defendant. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT III UNIFORM COMMERCIAL CODE 33. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. - --",I The defects and noriconformities existing within the vehicle constit~te a ,breach of contractual and statutory 34. obligations of Defendant, including but not limited to the following: a. Express Warranty; b. Implied Warranty Of Merchantability; and c. Implied Warranty Of Fitness For A Particular Purpose. 35. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Plaintiffs have justifiably relied upon Defendant's express warranties and implied warranties of fitness for a particular purpose and implied warranties of merchantability. 36. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Defendant was aware Plaintiffs were relying upon Defendant's express and implied warranties, obligations, and representations with regard to the subject vehicle. 37. Plaintiffs have incurred damages as a direct and proximate result of the breach and failure of Defendant to honor its express and implied warranties. 38. Such damages include, but are not limited to, the contract price of the vehicle plus all collateral charges, including attorney fees and costs, as well as other expenses, the full extent of which are not yet known. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant, in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. ...~ .'u'~~~ ii: COUNT IV PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW , 39. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as. if fully set forth at length herein. 40. Plaintiffs are "People" as defined by 73 P.S. li201- 2 (2) . 41. Defendant is a "Person" as defined by 73 P.S. li201- 2 (2) . 42. Section 1961 of the Pennsylvania Automobile Lemon Law, provides that a violation of its provisions is also a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. 201-1 et sea. 43. In addition, the pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. li201-2(4), defines "unfair or deceptive acts or practices" to include, but not limited to, the following: (vii). Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (xiv). Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to, or after a contract for the purchase of goods or services is made; (xv). Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed; (xvi). Making repairs, improvements or replacements on tangible, real or personal property of a nature or quality inferior to or below the standard of that agreed to in writing; , , . .- " ~ , ..- ~ .~" ' ~"~i .. (xvii) (xxi). Engaging in any other fraudulent or deceptive conduct which creates a likeliho9d of confusion or of misunderstanding. 44. Plaintiffs believe, and therefore aver, that Defendant's conduct falls within the aforementioned definition of "unfair or deceptive acts or practices." Furthermore, Defendant's actions constitute otherwise reckless, wanton, or willful conduct which is prohibited by the Statute. 45. Section 201-9.2(a) of the Statute provides for private causes of action for any person "who purchases or leases goods or services primarily for personal, family household purposes." The Statute authorizes the Court, in its discretion, to award up to three (3) times the actual damages sustained for violations. 46. Section 201-3.1 of the Act provides that the automotive industry trade practice rules and regulations adopted by the Attorney General for the enforcement of this Act are declared unlawful. 47. Plaintiffs believe and therefore aver that Defendant's conduct in the sale and servicing of the vehicle violate said rules and regulations. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount not in excess of Fifty Thousand Dollars ($50,000.00), together with all collateral charges, a orney By: fees, and costs of suit. CRAIG EL, ESQUIRE Attorneys fo Plaintiff 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 I.," , ' u , ~ V E R I FIe A T ION l, Craig Thor Kimmel, being duly sworn according to law, depose and say that I am the attorney for the plaintiff, in this action and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities. immel, Esquire r-Plaintiffs .. Dodge BEHNEY MOTORS 300 1;. Emaus'St. Telephone 944-7415 MIDDLETOWN, PENNSYLVANIA 17057 .. Dodge " < .~ DATE / ~4 91ff"9 ~w o USED' ;' - PURCHASER'S NAME t ill? is /Z:J ~I(E;f' j) (PAMO TYPE) {]cx;/( PLEASE ENTER MY ORDER FOR ONE YEAR V.tN. 19 -- LESS BAlANCe OWING TO- ,7"0- TIllE TOTAL TAX REGISTRATION DOCUMENTARY CHARGE UcENSE TOTAL CASH DEUVERED PRICE CASH DEPOSIT SUSMlTTED WITH ORDER ALLOWANCE FOR 'tRADE.IN AS APPRAISED 'C, ENO. llTLENO. UNPAID CASH BALANC CUE ON DELIVE ALL WARRANTIES, IF ANY, BY A MANUFACTURER OR SUPPUER OTHER THAN DEALER ARE THEIRS, NOT DEALER' , AND ONLY SI MANUFACTURER OR OTHER SUPPUER SHALL BE UABLE FOR PERFORMANCE UNDER SUCH WARRAN1lES. UNLESS DEALER FURNIS BUYER WITH A SEPARATE WRITTEN WARRANTY OR SERVICE CONTRACT MADE BY DEALER ON ITS OWN BEHALF, DEALER HEREBY DISCLJl ALL WARRAN1lES, EXPRESS OR IMPLIED, INCL.UDlNG ANY IMPUED WARRAN1lES OF MERCHANTABIUTY OR ATNESS FOR A PARTlCU PURPOSE: (A) ON ALL GOODS AND SERVICES SOLD BY DEALER, AND (B) ON ALL USED VEHICLES, WHICH ARE HEREBY SOLD "AS 15- EXPRESSLY WARRANTED OR GUARANTEED". IF THIS AGREEMENT IS FOR A USED VEHICLE. THE INFORMATION YOU SEE ON THE (FEDERAL TRADE COMMISSION) WINOOW FORM IS PART OF THIS AGREe. INFORMATION ON THE W1NOOW FORM OVERRIDES ANY- CONTRARY PROvtSIONS IN THE CONTRACT OF SALE. The front and back of this Order comprise the entire :agreement affecting this purchase and no other agreement or understanding of any nature concerning sam( been made or entered Into, or will be recognized. I, hereby certify that no credit has been elden to me for the purchase of this motor v Ie except as appet writing on the face of this agreemenL I have read the m.tter printed on the back hereof and 8g to It as a part of this order the same t were printed 800'1 ~Ignature. I certify :~"~J and hareby acknowledge recalpt 0' a copy olthla orde . PLAINTIFF'S IEA:BIT . PURCt- 5'LE5MAN E ZlP /l'v'.:. }'~., / ;:<-.f~ .FOAM V~1 (11l95) . '^ , . .. . . " 101_ 211LlAB1DSJ\LLPGl1884861DSJ103043100846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney I.D: 40534 1845 Walnut Street Philadelphia, P A 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrys1er Corporation CHRISTOPHER COOK and DELANIE COOK COURT OF COMMON PLEAS PHILADELPHIA COUNTY v. OCTOBER TERM, 1999 DAIMLERCHRYSLER CORPORATION NO. 2018 AFFIDAVIT OF MATTHEW ZIELKE Affiant, being duly sworn, hereby deposes and states: 1. I am presently employed by DaimlerChrysler Motors Corporation, I have been employed with Daim1erChrysler Motors Corporation, since April 1, 1957. This position has included customer relations, warranty administration, and assistance with litigation initiated against DaimlerChrys1er Motors Corporation in eastern Pennsylvania. 2. My employment with Daim1erChrys1er Corporation began with its Service Division as a technical correspondent in Detroit, Michigan responding to technical inquiries from service personnel in the field. This position lasted until February, 1961. 3. From March, 1961 until July, 1985, I was employed by Daim1erChrys1er Corporation in various capacities, including positions as a Service Development Manager, Warranty Administration Manager, Customer Relations Manager, and as a Service and Parts District Manager. My job responsibilities included owner relations, customer satisfaction, warranty administration, technical assistance, parts, sales and dealership development. I DEFENDANT'S EXHIBIT 13 . ~ ~ . . , , . ,~ :' .' ~ , ,. 4. From July, 1985 until the present, I have been employed with DaimlerChrys1er Corporation as its arbitration manager for DaimlerChrys1er Corporation's Philadelphia regional zone headquartered in Malvern, P A. This position has included customer relations, warranty administration, and assistance with litigation initiated against DaimlerChrys1er Corporation in eastern Pennsylvania. 5. DaimlerChrys1er Corporation operations in Pennsylvania are broken up into two zones or districts. 6. Daim1erChrysler Corporation's activities, in the eastern half of Pennsylvania, are administered at Daim1erChrys1er Corporation's Zone Office in Ma1vern, P A. DaimlerChrysler Corporation does not maintain any business offices, employees or records in Philadelphia County. 7. Daim1erChrysler Corporation has district managers who call on individual dealership. These district managers operate in a small district in the vicinity of the selling and the servicing dealerships to which they calL To require Daim1erChrys1er Corporation's district managers to travel outside of their areas of responsibility to Philadelphia County to testify in cases would effect their ability to perform their duties which include monitoring and assisting individual servicing dealerships with the sale and servicing of vehicles. 8. These district managers are important witnesses because they have been directly involved with the repairing of the Dauphin County dealer and they would have been responsible for informally overseeing and adjudicating the customer's complaint up to the point oflitigation. 9. In this case all repairs in Peunsy1vania were performed by an independeutly owned and operated franchise dealership located Dauphin County which borders Cumberland where the plaintiff lives. The technicians who performed the repairs are dealership employees. 2 '" . ",,< .' 10. Repair records in Pennsylvania involving the vehicle in this lawsuit, repair orders and technician notes regarding ~epair procedures are generated, maintained and owned by the individual servicing dealership located in Dauphin County. This dealership's documents are the prirnary documentary proof in warranty litigation such as this. These records and notes are not maintained, controlled or owned by DaimlerChrysler Corporation. 11. The employees that serviced and repaired the vehicle in question in Peunsy1vania are not Daim1erChrys1er Corporation employees, but are employees ofthe individual dealership located in Dauphin County which is an independent business firm that hires and manages its own persouneL Daim1erChrysler Corporation has no control over the dealership employees. 12. In this case all of the documentary evidence mentioned above and dealership employees are located at the dealership in Dauphin County, P A. 13. Requiring Daim1erChrys1er Corporation to defend this case in Philadelphia would have an adverse impact on both Daim1erChrys1er Corporation's operations as well as the operation of the selling and servicing dealerships. 14. Requiring a Dauphin County dealership's service personnel to attend depositions, arbitrations and trial as well as to be interviewed by DaimlerChrysler Corporation's attorneys defending this case in Philadelphia would have an adverse effect on customers that rely on the technicians at the dealerships that service their vehicles in Dauphin County, 15. Technicians are paid on a flat hourly rate. Absence from work equates to lost wages, Both the dealer's gross profits and the livelihood of the employees would be effected, which would ultimately effect and disrupt DaimlerChrys1er Corporation's operations, 16. Specifically, with regard to service, dealerships are carefully staffed with the number oftechnicians necessary to handle the calculated service and repair requirements ofthe 3 , ';0(,.", .' dealership. To remove technicians from the work site for any substantial length oftime will directly affect the service requb-ements of the dealership. In addition, frequently only one or two technicians in the service department will have certain skills such as the ability to rebuild transmissions or engines. To remove such a technician to testify in litigation many hours away will significantly impact the ability of the dealership to perform these types of repairs for DaimlerChrys1er Corporation on a timely basis. 17. Based on Daim1erChrysler Corporation records and my personal knowledge, plaintiffs counsel's office, located in Montgomery County, has initiated dozens of warranty lawsuit against Daim1erChrysler Corporation in Philadelphia County that have no relationship to any event which occurred in Philadelphia County. 18. Requiring dealership and Daim1erChrys1er Corporation personnel to travel to Philadelphia County from significant distances to testify has proveu disruptive to DaimlerChrys1er Corporation's operations in this Commonwealth. 19. If this litigation is transferred to the county in which the plaintiff is located, it is less likely that attendance at interviews, depositions, arbitration or trial by dealership service persoune1 or Daim1erChrysler Corporation's district managers or other employees will be as disruptive. 20. Based on my involvement in many lawsuits over the years which have been initiated against DaimlerChrys1er Corporation, I am aware of no substantive reason why warranty litigation similar to this lawsuit could not successfully and much more appropriately be 4 ~~ '!Q', . -, handled, by all parties, in the county closet to where the dealership, the records and service personnel are maintained and where the plaintiff resides. SWORN AND SUBSCRIBED BEFORE ME TillS 15 DAY OF /JtcJLM-be. y , 199~ ~/,)~ft]. ~~ NOTARY PUBLIC Commission Ex ires: Nolarial Seal Bonnie M. Seymour, Nolary Public EllS! WhitelamfTwp., Chesler County My Commission Expires Dec. 11, 2003 Member, Pennsylvania Association of Notaries 5 " . \OI_211L1ABIDSJ\LLPG\188486IDSJ\03043\00846 MARSHALL, DENNEHEY, 'WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney LD: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK COURT OF COMMON PLEAS PHILADELPHIA COUNTY v. OCTOBER TERM, 1999 DAlMLERCHRYSLER CORPORATION NO. 2018 AFFIDAVIT OF CHARLES BEHNEY Affiant, being duly sworn, hereby deposes and states: 1. My name is Charles Behney and I am the service manager at Behney Motors, 300 E. Emaus Street, Middletown, P A 7057, located in Dauphin County which borders Cumberland County where the plaintiff lives. 2. This dealership serviced a 1997 Dodge Grand Caravan, with the Vehicle Identification Number IB4GP44RXVB438978 to the Cooks. 3. I have been involved with the repairs to this vehicle at Behney Motors 4. My involvement with the Cooks and the vehicle has included the supervision of repairs to the vehicle. 5. I understand the Cooks have filed a lawsuit claiming violations under the Pennsylvania Lemon Law, breach of warranty and Unfair Trade Practices and Consumer Protection Law in Philadelphia, P A. . I DEFENDANT'S d EXHIBIT I ~ j'~~ . " I ".,' ."( " . 6. I am a witness with regard to the repairs to the vehicle. However, it would be extremely inconvenient for me to have to appear in Philadelphia County for depositions or court appearances. 7. In addition, service technicians under my supervision have performed repairs to the Cooks vehicle and they are witnesses to the service that has been performed. To require these technicians to travel to Philadelphia to testifY would be extremely inconvenient and detrimental to the operations of my service department. The service department is carefully staffed with a number oftechnicians necessary to handle the service and repair requirements of the dealership. To remove these technicians to testifY in a lawsuit many hours away would be a significant inconvenience and would result in other customers' service requirements being delayed. In addition, our service technicians are paid on a flat hourly rate. In absence from work would mean lost wages to them. 8. As service manager at Behney Motors, I supervise all of the service technicians. These employees depend on decisions by me on a constant basis with regard to customer 1'1 concerns and repairs to DaimlerChrysler vehicles. My absence for any extended period of time , " would be detrimental to other customer needs, the service operation at Behney Motors and would be extremely inconvenient for me. 9. I am requesting that this Court consider the inconvenience of requiring my attendance in Philadelphia as a result ofthis lawsuit. 10. I live and work in the vicinity of Dauphin County and it would be much more convenient for me to attend a deposition, arbitration or trial in the Cumberland County vicinity. 11. To my knowledge the Cooks live in Cumberland County and his vehicle has been driven and serviced in this and the Dauphin County area. I believe it would be convenient for 2 I " ~. -"""" ~~ .~ ,- ~, 4'. t- . . . the Cooks to have his lawsuit resolved in this area and I am certain that requiring my attendance here as opposed to Philadelphia' would be a significant convenience to me, (~J<o4.~ CHARLES 'BEHNEY -J' Sworn to and Subscribed Before me this 13 day of ~1999 ~ ' - ~;J~Lr' Notary Public My Commission Expires: . ~--;'~----= [VOTARl.?\i" SEI'J,l LORR"I". -, "'0'", " . J"I. ~~, r: i.:~. ,,'Q'r!:~rN Mnhry Publ' M'.'" ,"" ",C . Ie Il1U~9I.q\'Wj~ [';'t.t:i)hfa County My Commission eXiii;eS April 22, 2000 "'~ r 3 , '1'Ir' ~'-if'.._, ...t ('. ,.. ,- . , \OI_21ILIABIDSJILLPGlI88486IDSJ\03043\00846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney LD: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK COURT OF COMMON PLEAS PHILADELPHIA COUNTY v. OCTOBER TERM, 1999 DAlMLERCHRYSLER CORPORATION NO. 2018 AFFIDAVIT OF MARK FANSACHT Affiant, being duly sworn, hereby deposes and states: I. My name is Mark Fansacht and I am a service technician at Behney Motors, 300 E. Emaus Street, Middletown, PA 7057, located in Dauphin County which borders Cumberland County where the plaintiff lives. 2. I have been involved with the repairs to a 1997 Dodge Grand Caravan with a Vehicle Identification Number IB4GP44RXVB438978 at Behney Motors, owned by the Cooks, . and am familiar with the complaints made by them. 3. My involvement with the Cooks and the vehicle has included the repairs to the vehicle. 4. I understand the Cooks have filed a lawsuit claiming violations of the Pennsylvania Lemon Law, breach of warranty and Unfair Trade Practices and Consumer Protection Law, in Philadelphia, P A, 5. I am a witness with regard to the repairs I have performed. However, it would be extremely inconvenient for me to have to appear in Philadelphia County for depositions or court DEFENDANt's I EXHIBIT . D . "'If ,H. '.. ~ .1" \to appearances. To require me to travel to Philadelphia to testifY would be extremely inconvenient and detrimental to my job in the service department. The service department is carefully staffed with a number of technicians necessary to handle the service and repair requirements of the dealership. To remove myself to testify in a lawsuit many hours away would be a significant inconvenience and would result in other customers' service requirements being delayed, In addition, I am paid on a flat hourly rate. An absence from work would mean lost wages to me. 6. My absence for any extended period of time would be detrimental to other customer needs, the service operation at Behney Motors and would be extremely inconvenient for me. 7. I am requesting that this Court consider the inconvenience of requiring my attendance in Philadelphia as a result of this lawsuit. I live and work in the vicinity of Dauphin County it would be much more convenient for me to attend a deposition, arbitration or trial in the Cumberland County vicinity. ~4~ MARKFANSACHT - (YJC\;,K r;,S/VCI,c'h r Sworn to and Subscribed Before me this /.J day ~ ,1999 ~~::d ~ Notary Public M Commission E ires: r'.!IJT/\~~!A.L s.~,'~t LOR~",I\!" d G:rii:'(, r'0tary Public ~:',;;.i~,i;-; 'c:\ ;\;;, ~:~;,;)i)~'im Gn~\:l'ty My Co;rM11t:~;!']4'1 ~:~:P~l'~S AprH 22, 2000 2 ~ "~\'.k.,~,.,.;..",'-) .,.- .];.:..1' .;~:: -~:r.." f.:." ..;i"\',~'''',.: ;';- '''.H;':.i1jqu'~ -:~:~.+__~ ~~~~:.' ".. :'~:J:':; ~(!';!t;n ; b:H: =:>':..ir\';,.rj.) ..... . ~:,' :~ g" ::J <IJ o a: o ... ~", a: .. . " o ;: <IJ >! . o '4O a: w I: 2 z . W '" o >! z w a: a: ~ 0- W <IJ a: w ::E o <IJ o a: o ... ,. . a: o a: w .... 0- ::J Ol w I: w >- ~ a: w o a: w ::E a: w ~ w .. w z w w a: d "'u ~~ ~. '> ;1;iDiil~~'SC,;. '. 1)1- '~ I~ r- 'U :c ". ::0 ~ ::0 _______ n__ _____________ "......J ADELPHIA COURT OF COMMON PLEAS .,. ~MOTION C~:mRT COVER SHEET fTrFrR "FORCOURT USE ONLY ACTIONASSIGNEDTO JUDGE: 1.21.:162 r , Ci , Control Number: ' ," , ' , , . -. . , ' :(R~sponding parties must include this number on atl filings) Do notte,ephone Judge !i,",status. Do not ~erY:! JUdge courtesy copies. October No. 2018 Term? 1999 vs. DE.C ~ 0 1999 eMrAl1m\nlsUatlon Name of Filing Party: DaimlerChrysler Corporation Christopher Cook DaimlerChrys1er Corporation Type of Motion: Petition to Transfer Venue tor Forum NonConveniens J I tflC5D DEFENDANT (check one) 0 Plaintiff X Defendant (check one) [g] Movant Respondent Has another motion been decided in this case? 0 Yes X No Response due: OR Response to: If yes, identify the Judge' Is another motion pending? 0 Yes [SJ No If yes, identify motion and Judge: CASE STATUS (answer all questions) I. Is this case: A, DAY BACKWARD (Jury cases only) Name of Judicial Team Leader: Date of: 0 Settlement Conference o Trial Date 0 Other " B. DAY FORWARD (Jury Demand & Fee Paid) "i '.. Name of Judicial Team Leader: Applicable Motion Deadline: OTHER PARTIES (Name. address and telephone number of all counsel of record and unrepresented parties. Attach a stamped addressed envelope for each attorney of record and () Unrepresented parry.) :!f v'OG? C1 ' (VnO D'Q/q ,1/1Jl ~II; \) \~())~~ \''!// ~b Has deadline been previously extended by the Court? DYes 0 No C, NON JURY Date Usted: l), ARBITRATION .... Arbitration Date: 6/14/00 E, ARBITRATION APPEAL Usted on: F, OTHER: James W, Stevens, Esquire Marshall, Dennehey 1845 Walnut St., 21" Fl. Phila,. PA 19103 215-575-2684 Date Listed:. ') I verify the ~LJ above to be true and correct and UJJderstand sanctions may be imposed for inadcura - lete answers. 11 I ,/ nomeyin James \v. Stevens, Esquire (Print Name) Craig Thor Kimmel, Esquire Kimmel & Silverman. p,c. 30 E. Butler Pike Ambler, PA 19002 215-540-8888 v 40534 I certify that all parties listed above will receive a copy of this Motion! Petition immediately upon filing. (Attorney [,D. No,) If needed, use separate sheet to answer This Motion will be forwarded to the Court after the Response Date. No extension of the Response Date will be granted even if the parties so stipnlate. ' "' "' .-- I___",~ 'liIdW~ ",-l ~'~W"''"'''~--~!la~ '~ . PHILADELPHIA COURT OF COMMON PLEA~CA MOTION COURT COVER SHEET \ \L \ ;:~\f~~~~tt'~~\li!~~~MJ,ii~m: ""''''',' .(,',." "'.' .; ;,,:':;~"- ',~,', October Tenn, 19~ inistration 2018 No. Christopher Cook and Delanie Cook Name of Filing Party: Plaintiffs vs. DaimlerChrysler Corporation (Check one) (Check one) . Plaintiff D Movant D Defendant . Respondent DYes . No Type of Motion: Response due: OR Response to: Defendant's Petition to Transfe Ve Hal lBOther motion been decided illlhls cue? If yes, identify the Judge: Is another motion pending? DYes . No If yes, identify motion and Judge: CASE STATUS (an...." 011 que.lions) L h this Clse: A. DAY BACKWARD (Jury ca..' only) Name of Judicial Team Leader: Date of: D Settlement Conference D Trial Date D Other II. OTHER PARTIES (Name, address and t.'ephone number of all eounsel of record and unrepresented parties. Attaeh a stamped addressed envelope for each attorney of record and unrepresented party.) .. B. DAY FORWARD (Jury De...n. of< Fee Paid) Name of Judicial Team Leader: Applicable Motion Deadline: Has deadline been previously extended by the Court? DYes DNo C, NON JURY Date Listed: James W, Stevens, Esquire Marshall, Dennehey, et al. 1845 Walnut Street., Zls~ Floor Phila., PA 19103 215-575-2684 D, AIlBITM.'l'ION Arbitration Date: June 14, 2000 Glenn I. Gerber, Esquire Kimmel & Silverman, P,C, 30 East Butler Pike Ambler, PA 19002 215-540-8888 E, AIlBITRATlON APPEAL f Listed on: F, 011lER: Date Listed: Glenn 1. Gerber I certify that all parties listed above will receivo a copy of this Motion! 57898 Petition immodiatoly upon filing, (Anorn.y J.D. No.) /fM.d~d. 'l.J~ ~~parate ~lNet to answ.r (Print NarnI) This Motion will be forwarded to the Court after the Response Date. No extension of the Response Date will be granted even if the parties so stipulate. o.l06l (Rey. 71~ - ""'.j8Hl".~I~[1; Glenn Gerber, Esquire Identification No, 57898 KIMMEL & SILVERMAN; P.C, 30 East,Butler Pike Ambler, 'PA 19002 (215) 540-8888 CHRISTOPHER ANDDELANIE COOK Attorney for Plaintiff COURT OF COMMON PLEAS PHILADELPHIA COUNTY v, DAIMLERCHRYSLER CORPORATION CIVIL ACTION OCTOBER TERM, 1999 NO, 2018 ORDER AND NOW, this day of , 2000, upon consideration of Defendant's petition to Transfer of Venue, and Plaintiffs 1 Opposition thereto, it is hereby ORDERED and DECREED that said Petition is Denied, BY THE COURT: J, ... , , =1 .-~~~! Glenn Gerber, Esquire Identification No, 57898 KIMMEL & SILVERMAN; P,C, 30 East,Butler Pike Ambler, 'PA 19002 (215) 540-8888 CHRISTOPHER AND DELANIE COOK Attorney for Plaintiff COURT OF COMMON PLEAS PHILADELPHIA COUNTY v, DAIMLERCHRYSLER CORPORATION CIVIL ACTION OCTOBER TERM, 1999 NO, 2018 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TRANSFER VENUE Plaintiffs, Christopher and Delanie Cook, by and through their attorneys, Kimmel & Silverman, P,C" hereby oppose Defendant Chrysler's Petition to Transfer Venue to Cumberland County, Pennsylvania, and in support thereof, avers as follows: 1, Admitted, By way of further answer, it should be noted that Defendant Chrysler Corporation filed an Answer and New Matter to Plaintiffs' Complaint but did not raise improper venue as a preliminary objection as required by Pa,R,Civ, Proc, loo6(e) , Therefore, defendant has waived its right to assert improper venue, (A copy of Plaintiffs' Complaint is attached and marked as Exhibit "A" and a copy of Defendants' Answer is attached and marked"as Exhibit "B",) 2, Admitted,. , 3, Denied, This is a legal conclusion requiring no response, By way of further response, defendant has authorized dealerships in Philadelphia County, advertises extensively in Philadelphia county and therefore there are facts connected to Philadelphia County, -~ _I, ~~c 4, Denied, This is a legal conclusion requiring no response, By, way 'of further response, Defendant has failed to demonstrate any facts which show that Plaintiffs' chosen forum is oppressi ve or vexatious to tne defendant, which is required by Cheeseman v, Lethel Exterminator, Inc. et aI" 701 A,2d 156 (Pa, 1997) , , 5, Denied, Cases which are based on breach of warranty theories may be proven by the testimony of the Plaintiff and the documented service history of the subject vehicle, Plaintiff need not (and routinely do not) subpoena any service technicians for attendance at the arbitration or trial of these matters, 6, Denied, This is a legal conclusion requiring no response, 7, Denied, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment, 8, Admitted, 9, Admitted, 10, Admitted, 11, Admitted, 12, Denied, Cases which are based on breach of warranty .. . theories may be proven by testimony of the Plaintiff and the documented service' history of the subject vehicle, Plaintiff,need not (a.nd routinely do not) subpoena any service technicians for attendance at the arbitration or trial of this matter, By way of further response, in the past five years of dealing with Chrysler they ]'lave rarely if ever had the service manager, body shop manager and/or technicians testify as witnesses, -, ~- , "d~~ "" , , ~~"ljj~ilffllr4\,~~' 13, Denied, the service invoices are records also held by Chrysler Corporation, 14: Denied, Plaintiffs are without knowledge or information sufficient to form a belief a~ to the truth of this averment, By way of further response, Behney Motors acts as defendant's ~uthorized repair facilities, , 15, Denied, Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment, 16, Denied, This is a legal conclusion requiring no J:'esponse, By way of further response, defendant has failed to oemonstrate any facts which show that plaintiffs chosen forum is oppressive or vexatious to the defendant, 17, Denied, 18, Denied, This is a legal conclusion requiring no J:'esponse, By way of further response, defendant has f~iled to oemonstrate any facts which show that plaintiff's chosen forum is oppressive or vexatious to the defendant, WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendant's Petition to Transfer Venue to Cumberland .. . County, I Glenn G b ,Esquire Attorney for Plaintiff 30 East Butler pike Ambler, PA 19002 (215) 540-8888 By: January 19, 2000 ~'"-, ~ ~ .......;.~~, Glenn Gerber, Esquire Identification No, 57898 KIMMEL & SILVERMAN; P,C, 30 East.Butler Pike Ambler, 'PA 19002 (215) 540-8888 CHRISTOPHER AND DELANIE COOK , Attorney for Plaintiff COURT OF COMMON PLEAS PHILADELPHIA COUNTY v, DAIMLERCHRYSLER CORPORATION CIVIL ACTION OCTOBER TERM, 1999 NO, 2018 MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S PETITION TO TRANSFER VENUE 1. BACKGROUND Plaintiffs filed their Complaint against Defendant on or about October 18, 1999, asserting claims for violations of the Pennsylvania Automobile Lemon Law, Magnuson Moss Federal trade Commission Improvement Act, and Pennsylvania Unfair Trade Practices and Consumer Protection Law. Plaintiffs allege thier 1997 Dodge Grand Caravan is defective, As a result, the subject vehicle is unfit to be utilized for the purposes intended by plaintiff, On or about August 6, 1998, Plaintiff took possession of the subject vehicle. Soon thereafter, the Plaintiffs experienced chroni~problems with the vehicle. Defendant asks this Honorable Court to transfer venue of this , < matter to Cumberland County, and Plaintiff vigorously opposes that request, Defendant regularly conducts business in Philadelphia County. See Pa, R. Civ. Proc, 2179(a) (2), ~~ c - ," J ~~~ II. PENNSYLVANIA RULES OF VENUE Pennsylvania Rule of Civil Procedure 1006, Venue and Change of Venue, provides that' an action may be brought against a Corporation (or similar entity) in the county designated by Pa, R, civ: Proc, 2179, For a corporate defendant such as defendant, Pa, R, civ. Proc, 2179(a) states that an action may be brought in and only in: . (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; Defendant regularly conducts business in Philadelphia County, Defendant regularly solicits business and sells to consumers from Philadelphia County, Thus, venue in this action has been properly laid in Philadelphia County, according to the Rules of Civil Procedure, Furthermore, Pa. R, civ, Proc, 1006(e) provides, "Improper venue shall be rased by preliminary objection and if not so raised shall be waived," Id, Defendant, Chrysler Corporation filed an . . Answer and New Matter to Plaintiffs Complaint but did not file preliminary objectIons in this case, Defendant has not t;Lm~ly petitioned this Court for a change of venue and therefore Defendant has waived its right to assert improper venue, For the reasons set forth above, plaintiffs respectfully requests this Honorable Court to deny Defendant I s request for a transfer of venue to Cumberland County, Pennsylvania, '~ --, 1- '-iiIl~,"~; III. CHANGE OP VENUE FOR "CONVENIENCE OF THE PARTIES" In'the event the Court finds that Defendant has timely petitioned this Court for a change of venue, Plaintiffs further assert that Defendant has 'failed to meet its burden to show that a transfer of venue would serve both public interest and the private interests of the litigants, It is well-settled in the , Commonwealth that Plaintiffs have the right to choose the forum in which to bring suit (within the boundaries of the Rules of Civil procedure) , It is up to the opposing party to show that the chosen forum would not serve the interest of justice, To do so, the Defendant must clearly demonstrate facts which either (1) establish such oppressiveness and vexation to the defendant as to be out of all proportion to plaintiff's convenience. or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own private and public interest factors , Okkers v, Howe, 521 Pa, 509, 517-18, 556 A,2d 827, 831-32 (1989), Even so, the Pennsylvania Supreme Court in Okkers held that, unless the balance of these facts "is strongly in favor of defendant, the plaintiff's choice of forum should rarely be disturbed." Id, (citations omitted,) .. . t . .. "-"<- ~ , I. "~..-".~, In the instant matter, Defendant has demonstrated no facts which w~igh strongly in its favor, especially in light of the fact that Defendant regularly condu~ts business in Philadelphia County, For the reasons set forth above, Plaintiffs respectfully request this Honorable Court to deny Defendant's request for a transfer of venue to Cumberland County, By: -- , ... . - ~.,j~ . . ".IlliIlIilIililIi!mil!g;ij Court of Common Pleas of Philadelphia County Trial Division Civil Cover Sheet ~:..; j,:j:1J;f~";~tO!,~~_t!.~t~rY"i1~ ~-'Ooeket Numbetf:1?J~t}", '.~~i;~'ii:i1~~~'i;~~'~~~i~~;~ji;~l~~';'~O~~~.9. "'''~~'M.l"..'^...~._.:t"t,t~''''~'''''~;-';'- J-<....~""a:-f'i!'i,: " JJ:! ;.'t;")'l;-~~:~~W_t DEFENDANT'S NAME PlAINTIFF'S NAME. Christopher Cook DaimlerChrysler Corporatiou ()()~()jL~ D'F'~DANr!LAD~'SS CIO ~~ ~orporation 1635 Market Street Philadelphia, PA 19103 oeFENDANT'S NAME PL,AINTlFPS ADDRESS " 424 Pawnee Drive' ' Mechanicsburg, PA 17055 Pl.AINTlfF'S NAME . . Delanie Cook PLAINTIFF'S AOORESS DEFENDANT'SAODRESS 424 Pawnee Drive Mechanicsburg, PA 19103 TOTAL NUMBER OF PLAINTIFFS (70) TOTAL NO. OF DEFENDANTS (71) 2 1 COMMENCEMENT OF OTHER ACTION , !XIs, ,1111. Compl,;"t 0 6, 02. Writ of Summons 07 o 3, Noti" or Appeal 0 8: o 4. Petition Action 09. Arbitration Jrny Non Jury &. Equity Class Action Savings Actions o 10. In Fonna Pauperis 011. TransferfromOtherJurisdiction o 12. MinorslIncompetent Compromise o 13. Survival Action D 14. WrongfulDeathAction(involvingmin~ J.MOUNT IN CONTROVERSY [) 30. SSO,OOO.OOorless o 31. More than S50,OOO.00 032. Assessmentofdamageshearingrequired 033. Assessmentofdamageshearingnotrequired ",CCRUAL OF CAUSE OF ACTION o 40. Action arose in Philadelphia C(lunty rn 41. Action did not arise in Philadelphia County (slale rea:.'otlfor filitlg action in Phi/adtdphia COUllly below ill #60) o 42. Transaction or occurrence giving rise to action arose in PhUadelphia County o 43. Transaction orocc:urrence giving rise to action did not arise in Philadelphia County (describe transaction or occummce below;1I #60) DEFENDANT INFORMATION o so. All defendants are residents of (or bave offic:es in) Philadelphia County o 51. Maln defendant isaresidentof(orhasoffices in) Philadelphia County D 52. All defendants regularly conduct business in Philadelphia County (see Inslruction F) ~ 53. Main defendant regularly conducts business in Philadelphia County (see Instruction F) o 54. Defendants are not residents of (and do not have offices in) Philadelphia County (state below in 1160 reasonJor fi/ingactiotl;n Philadelphia County) MG Main defendant regularly conducts business in Philadelphia Countv 060. _ CODE NUMBER AND TYPE OF ACTION (See/n$tru{:fjon GJ 20000 Cont act STATUTORY BASIS FOR CAUSE OF ACTION (See In$tru{:tfon H) RELATED PENDING CASES (L/$t by Oockot Number .Ind;{:ate Whether the Related Cases Have Been Consolidated) NAME OF PLAINTIFF'S/APPELLANT'S ATTORNEY ADaRESS (Sell /nstru{:l1on J) Crai Thor Ki~I Es uire PHONE NUM8ER SUPREME COURT IOENTIFICATION NO. 215-540-8888 ,Kii1'tIlel & Silverman, P.C. 30 East Butler Pike Ambler, PA 19002 SIGNATURE DATE STAtus ;'.~,~ Y"::l'~;?>"' -;;.~' o 1001 Deferred to Forofficial use onfy : D~~'i~sioJ~~~~~~~:~~;~:?} "DT,;~~~T :~~~tion Hearing , 8 ':~:~'~i-J:J':!(":"';{"i.~:::; '0 1013 Ag6n.;ytr~Appea1s ,Arbitration Center [] ;1 014c ;.M.:ssT~!l;!;'~:" ,;" '~,:, '21 n6'dO IF' MI.OO~~et Street O 1015, Other. -: , ; Philadelphia, PA 19103 " "',:'. o ',0 ;cO ,0 ,1102 1103 'll04 1105 Se'ttle"ment Conference' ,-. -" ):I~~girri~ -;' . _: -,,"_;;.'~~~~~~' h _:~,~. COnference .;'":i;'~~8Yi<" ~ . .,Other /D~fe:: , ,:: : ":Time-:' Place: )>~ij,;",;, " .: ~~!, "~'~.~i_~~"! ~. . '-", ." '~j'~-:""!.1"~il:-' , .~;'i~t-'!-:;.'j. "; - " : < PLAINTIFF'S '. i-<EXHI~II- '. ...,. :I.".A:,....,. , " :':,;":} ':,',-"..;,;. '~'- 4'~~;<:.' , . '" , )..';j~::,::~:'.:,;," , " ~"\" -, ~ - ,.: 01-101 (Rev. 9194) , ~~:>i.,- Craig Thor K~el, Esquire Identification No. 57100 KIMMEL & SILVERMAN, P.C. 30 East Butl~r Pike Ambler, Pennsylvania 19002 (215) 5-40-8888 Attorney for Plaintiff THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES HEARING IS REQUESTED. : CHRISTOPHER COOK and DELANIE COOK 424 Pawnee Drive Mechanicsburg, PA 17055 . T OF COMMON PLEAS v. USTE~ESTAOROENAOO CQf.I?I.fIECEREN,,_1>H~1.,. .-ELPHIA ARSflRATlON HEARIN(,- 1501 MARKt'l STREET, 2ND fLOO[RV FNEP~N~1r~I urL ACTION TIM,:. ' JU~ 14 2000 YOU t.iJST STill COM?l~O . WITH TIlE NOTICE BELOW. USTED TOOAVIA DEBE CUMI'lIR CON ElAVlSO PARADEPENDERSE COUNTY DAIMLERCHRYSLER CORPORATION c/o CT Corporation 1635 Market Street Philadelphia, PA 19103 TERM, 1999 OCTOBER 19,99 00201.8 NOTICE TO DEFEND CODE: 1900 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 you 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 TAXE 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 ~.,YO~~.,8~:S)~~,~'S . 1t."''''~~'\V:l,t,i.....~1iny.,nJ::-:.-!\; -n'~~-"~ lFc~~~C:h, 'I'm" ~ ':' '~l' '. '.. \'-- ..,;;') \"i..'.~.. '" !.~:Fl.":c." ;:;.':"p"';u.rmEIlPHIA BAR ASSOCIATION ,..........""1 r"..".l." ,.~,,-, .~,~ .n' 'rr'rt~t"'~(.Il"I.:..~. ..\ l~:.;.,:~,,,, -:_'.' T'~ F::.yn'~\~~t'-;-j 1 r.' "7't:~:HYBR:::RBFERRAL AND INFORMATION SERVICE MG~bJ-r'l..~l.E.J --', '''TT~ 1.,' " ~~;"11."a~AN~.' - ....:.... ,',' MAY m:P:Ef\P.D:,..:T ~'r.~11i:otrrTHEI\nSEt{l'r.~t-~1 ~~~u...~ING CENTER JUDGE OF THE Culj" I 'GlIT TO to. TRIAL DENOVO ......"'............PHIA, PA 19107 PARTIES, nffiREISNO~~DBYAnrool!. TELEPHONE: 215-238-1701 FROM A DECISION ENTERE M. CORNAGLlA PRO. PROTHY OCT 1 8 1999 AVISO ArreST Le han-8emandado a usted en la corte. Si usted quiere defenderse de estas de estas demandas expuestas an las paginas signientes, usted tiene veinte (20) dias cn."plazo al partir de ia fecha de la demanda y ia notificacion. Race faIta asentar u~atcomparencia escrita 0 en persona 0 con un abogado y entre gar a la corte en fo~a escrita sus defensas 0 sus objeciones a Ia~ . de~andas en contra de su persona. Sea avisado que si usted no se defienoe, Ie corte tomara medidas y puede continuar 1a demanda en contra Buya sin previo aviso 0 notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero 0 sus propiedades U ostros derechos importantes para usted. LLEVB ESTA DEHANDA A UN ABOGADO INI!IEDIATAMEIlTE, SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA 0 LLlIHE POR TELEFONO A LA OFICINA CUYA DIRBCCION SE ENCOENTRA ESCRITA ABAJO PARA AVERIGUAR DONnE SE PUEDE CONSEGUIR ASISTBNCIA LEGAL. SERVICIO DE REFERBNCIA LEGAL ONE READING CENTER FILADELFIA, PA 19107 TELEFONO: 215-238-1701 .~._. ~ "'~"",~ii;ri Craig Thor K~el, Esquire Identification No. 57100 KIMMEL & SILVERMAN, P.C. 30 East Butler pike Ambler;'Pennsylvania 19002 (215) 540-8888 Attorney for Plaintiffs THIS IS AN ARBITRATION MATTER. ASSESSMENT OF DAMAGES BEARING IS REQUESTED. . ' : CHRISTOPHER COOK and DELANIE COOK 424 Pawnee Drive Mechanicsburg, PA 17055 : COURT OF COMMON PLEAS : PHILADELPHIA COUNTY : : CIVIL ACTION v. : : TERM, 1999 DAIMLERCHRYSLER CORPORATION c/o CT Corporation 1635 Market Street Philadelphia, PA 19103 : : NO. : : COMPLAINT CODE: 1900 1. Plaintiffs, Christopher Cook and Delanie Cook, are adult individual citizens and legal residents of the Commonwealth of Pennsylvania, residing at 424 Pawnee Drive, Mechanicsburg, Pennsylvania 17055. 2. Defendant, DaimlerChrysler Corporation, is a business corporation qualified to do business and regularly conducts busi~~s in the Commonwealth of Pennsylvania, and is a corporation of the State of Delaware, with its legal residence , , and principal place of business located at 12000 Chrysler ~t~ve, Highland Park, Michigan 48288-1919, and can be served c/o CT Corporation, 1635 Market Street, Philadelphia, Pennsylvania 19103. ~ , .-" Illii!I =-, ~O~Oliii<~,i,' BACKGRoUND 3. On.or about October 29, 1998, Plaintiffs purchased a 1997 Dodge Grand Caravan, manufactured and warranted by Defendant, bearing the Vehicle Identification Number . 1B4GP44RXVB438978. The vehicle was purchased in the Commonwealth of Pennsylvania and is registered in the Commonwealth of Pennsylvania. 4. The price of the vehicle, including registration charges, document fees, sales tax, finance and bank charges but, excludinq other collateral charges not specified yet defined by the Lemon Law, totaled more than $24,547.20. A true and correct copy of the Contract is attached hereto, made a part hereof and marked Exhibit "A". 5. Plaintiffs aver that as a result of the ineffective repair attempts made by Defendant through its authorized dealer(s), the vehicle cannot be utilized for the purposes intended by Plaintiffs at the time of acquisition and as such, the vehicle is worthless. 6. In consideration for the purchase of the above vehicle, Defendant issued to Plaintiffs several written warranties, .... including a three (3) year or thirty-six-thousand (36,000) mile bumper-to-bumper,'hs well as other standard warranties fu11V outlined in the warranty booklet. COUNT I PENNSYLVANIA AUTOMOBILE LEMON LAW 7. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. _~_ " " I ~ ~ _, <~'~im~r;WJ' 8. Plaintiffs, are "Purchasers" as defined hy 73 P.B. !l1952. 9:" Defendant is a "Manufacturer" as defined hy 73 P. B. !ll952. . 10. Behney Motors"is and/or was at the time of sale a Motor Vehicle Dealer in the business of huying, selling, and/or exchanging vehicles as defined hy 73 P.B. !l1952. 11. On or ahout Octoher 29, 1998, Plaintiffs took possession of the ahove mentioned vehicle and experienced nonconformities as defined hy 73 P.B !l1951 et sea., which substantially impair the use, value and/or safety of the vehicle. 12. The nonconformities descrihed violate the express written warranties issued to Plaintiffs hy Defendant. 13. Section 1955 of the Pennsylvania Automohile Lemon Law provides: If a manufacturer fails to repair or correct a nonconformity after a reasonahle number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle... or accept return of the vehicle from the purchaser, and refund to the purchaser the full purchase price, including all collateral charges, less a reasonahle allowance for the purchasers use of the _-. vehicle, not exceeding $.10 per mile driven or 10% of the purchase price of the vehicle, whichever is less. t t 14. Section 1956 of the Pennsylvania Automohile Lemoh'Law provides a presumption of a reasonahle number of repair attempts if: (1) The same nonconformity has heen subject to repair three times by the manufacturer, its agents or authorized dealers and the nonconformity still exist{s); or ~ ~ ollj>l-~.J~U~? (2) The vehicle is out-of-service by reason of any nonconformity for a cumulative total of .thirty or more calendar days. 15~ Plaintiffs have satisfied the above definition as the vehicle has been subject to r~pair more than three (3) times for . the same nonconformity, and the nonconformity remains uncorrected. "16. In addition, the above vehicle has or will be out-of- service by reason of the nonconformities complained of for a cumulative total of thirty (30) or more calendar days. 17. Plaintiffs have delivered the nonconforming vehicle to an authorized service and repair facility of the manufacturer on numerous occasions. After a reasonable number of attempts, the manufacturer was unable to repair the nonconformities. 18. During the first 12 months and/or 12,000 miles, Plaintiffs complained about defects and/or nonconformities on at least three occasions to the following vehicle components: noisy belts; headliner hanging down; and a dead battery. Plaintiffs are not in possession of this information, however it can be obtained from Defendant's authorized dealership. 19. The vehicle continues to exhibit defects and -. nonconformities which substantially impair its use, value and/or safety as provide~lin 73 P.B. ~1951 et sea. , ".." ... 20. Plaintiffs aver the vehicle has been subject to additional repair attempts for defects and/or nonconformities and/or conditions for which the dealer did not maintain records. 21. Plaintiffs have been and will continue to be financially damaged due to Defendant's intentional, reckless, ~, 1i..LiIal~ll-~---,1J--Il!L. wanton and negligent failure to cOmply with the provisions of 73 P.S. ~1951 ~ sea. 22: Pursuant to 73 Pa. P.S. ~1958, Plaintiffs seek relief for losses due to the nonconf~rmities and defects in the above- . mentioned vehicle in addition to attorney fees and all court costs. " WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT II MAGNUSON-MOSS FEDERAL TRADE COMMISSION IMPROVEMENT ACT 23. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 24. Plaintiffs are "Consumers" as defined by 15 U.S.C. ~2301 (3) . 25. Defendant is a "Warrantor" as defined by 15 U.S.C. ~2301 (5) . 26. The purpose for which this product is normally used is pers~i, family, and household use. ~7. By the terms of the express written warranties referred , , to in this Complaint, Defendant agreed to perform effectiVe', warranty repairs at no charge for parts and/or labor. 28. Defendant has made attempts on several occasions to comply with the terms of its warranties; however, such repair attempts have been ineffective. - - I. ~~-'" " _;,.ital\.._ 29. As a direct and proximate result of Defendant's failure to comply with the express written warranties, Plaintiffs have suffer~a damages and, in accordance with 15 U.S.C. ~2310(d) (1), Plaintiffs are entitled to bF~ng suit for such damages and, other legal and equitable relief. 30. Section 15 U.S.C. ~2310(d) (1) provides: If a consumer finally prevails on an action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the amount of aggregate amount of costs and expenses (including attorney fees based upon actual time expended), determined by the court to have been reasonably incurred by the Plaintiff for, or in connection with the commencement and prosecution of such action, unless the court, in its discretion shall determine that such an award of attorney's fees would be inappropriate. 31. Plaintiffs aver Defendant does not have a Dispute Resolution Program which is in compliance with 16 CFR 703. 32. Plaintiffs aver that upon successfully prevailing upon the Magnuson-Moss claim herein, all attorney fees are recoverable and are demanded against Defendant. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject .-.- . vehicle, plus all collateral charges and attorney fees. t t COUNT III UNIFORM COMMERCIAL CODE 33. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. ",.- ~. ~= - L ~:.,~ I9l!;,N,IIWiI"Hill'l.~.f 34. The defects and noriconformitiesexisting within the vehicle consnitut~ a breach of contractual and statutory obligations of Defendant, including but not limited to the following: ., a. Express Warranty; b. Implied Warranty Of Merchantability; and c. Implied Warranty Of Fitness For A Particular Purpose. 35. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Plaintiffs have justifiably relied upon Defendant's express warranties and implied warranties of fitness for a particular purpose and implied warranties of merchantability. 36. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Defendant was aware Plaintiffs were relying upon Defendant's express and implied warranties, obligations, and representations with regard to the subject vehicle. 37. Plaintiffs have incurred damages as a direct and proximate result of the breach and failure of Defendant to honor its eKpress and implied warranties. 38. Such damages include, but are not limited to, the I I contract price of the vehicle plus all collateral charges: .., including attorney fees and costs, as well as other expenses, the full extent of which are not yet known. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant, in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. ~- -=.~"" ~~, ~~~ COUNT IV PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 3g: Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint ~~ reference as if fully set forth at length herein. 40. Plaintiffs are "People" as defined by 73 P.S. 6201- 2 (2) . 41. Defendant is a "Person" as defined by 73 P.S. 6201- 2 (2) . 42. Section 1961 of the Pennsylvania Automobile Lemon Law, provides that a violation of its provisions is also a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. 201-1 et seq. 43. In addition, the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. 6201-2{4}, defines "unfair or deceptive acts or practices" to include, but not limited to, the following: {vii} . Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; ..... {xiv} . Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to, or after a contract for th~ purchase of goods or services is made; , """ , {xv}. Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed; {xvi}. Making repairs, improvements or replacements on tangible, real or personal property of a nature or quality inferior to or below the standard of that agreed to in writing; ~.,-.~ (xvii) (xxi). Engaging in any other fraudulent or deceptive conduct which creates a like~ihood of confusion or of misunderstanding. 44. Plaintiffs believe, and therefore aver, that Defendant's conduct falls within the aforementioned definition of "unfair or deceptive acts or practices." Furthermore, Defendant's actions constitute otherwise reckless, wanton, or willful conduct which is prohibited by the Statute. 45. Section 201-9.2(a) of the Statute provides for private causes of action for any person "who purchases or leases goods or services primarily for personal, family household purposes." The Statute authorizes the Court, in its discretion, to award up to three (3) times the actual damages sustained for violations. 46. Section 201-3.1 of the Act provides that the automotive industry trade practice rules and regulations adopted by the Attorney General for the enforcement of this Act are declared unlawful. 47. Plaintiffs believe and therefore aver that Defendant's conduct in the sale and servicing of the vehicle violate said rules and regulations. ~KREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount not in excess of Fifty Thousand Dollars , , ($50,000.00), together with all collateral charges, a orney, ~ CRAIG TH EL, ESQUIRE Attorneys fo Plaintiff 30 East Butler pike Ambler, Pennsylvania 19002 (215) 540-8888 fees; and costs of suit. By: , I~ rJ \1. ' - ~r,'rM .- " . . , . . " VERIFICATION ~, Craig Thor Kimmel, being duly sworn according to law, depose and say that I am the attorney for the plaintiff, i this action and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that any false statement made herein are subject to the penalties of 18 Pa. ,C.S. ~4904 ..... immel, Esquire r'Plaintiffs relating to unsworn falsification to authorities. , , L .... -, ... Dodge -= ' BEHNEY MOTORS 300 E. EmausSt. Telephone 944-7415 MIDDLETOWN, PENNSYLVANIA 17057 ,< .._'.... rlnrI:Je PURCHASER'S NAME C /II? IS 7C!.t:{(f ~ /J eGJO Ie PLEASE ENTER MY ORDER FOR,ONE ~ " (, --- DOCUMENTARY CHARGE UcE"NSE REGISTRATION TOTAl CASH DEUVERED PRICE TOTAL TAX CASH DEPOSIT SUBMITTED WITH ORDER ALLOWANCE FOR TRADE'IN AS APPRAISED ,ot) <'4/, DUEONDEUVE If' 00 ALL '.yARRANTlES, IF ANY, BY A MANUFACTURER OR SUPPLIER OTHER THAN DEALER ARE THEIRS, NOT DEAI;ER' , AND ONL' MANUFACTURER OR OTHER SUPPLIER SHALL BE LIABLE FOR PERFORMANCE UNDER SUCH WARRANTIES, UNlESS DEALER FUF BUYER WITH A SEPARATE WRITTEN WARRANTY OR SERVICE CONTRACT MADE BY DEALER ON ITS OWN BEHALF, DEALER HEREBY DIS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARl PURP,bSE: (Al ON ALL GOODS AND SERVICES SOLD BY DEALER, AND (B) ON ALL USED VEHICLES WHICH ARE HEREBY SOLD "AS EXPRESSLY WARRANTED OR GUARANTEED",' ' IF THIS AGREEMENT IS FOR A USED VEHICLE. THE INFORMATION YOU SEE ON THE (FEDERAL TRADE COMMISSION) WINDOW FORM IS PART OF THIS AG: INFORMATION ON THE WINDOW FORM OVERRIDES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE. The front and back of this Order comprise the entire agreement affecting this purchase and no other agreement or understanding of any nature concerning been made or entered Into, or will be recognized. I hereby certify that no credit has been extend to me for the purchase at this motor Y Ie except as E writing on the face of this agreement.. I have read the matter printed on the back. hereof and a9 to It as a part of this order the same if t were printed signature. I certJfy that I am of legal age~ and hereby acknowledge receipt of a copy of thls orde . (..~ ......""^" i LESS BAlANCE OWING TO- I I I 'f:'( ipLAINTlFF'S " I ',EA~IT ;'! F E 11Pt!;. ?~7 /.:<. " ,FORM 'o'OC..:171 (1 '''''5) ,. - . ~ ~'~:i;.i!M, '. . TO PLAINTIFF YOU ARE HE PLEAD TO T ENC NEW MATTE WIT FROM THE S VICE DEFAULT J ME AGAINST Y U . . \01..J.lII,IABIJWSILLPG\1881611L0J\03043\OO846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W, Stevens, Esquire Attorney ill No: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChry~ler Corporation CHRISTOPHER COOK and DELANIE COOK COURT OF COMMON PLEAS PHILADELPHIA COUNTY v, OCTOBER TERM, 1999 NO, 2018 DAIMLERCHRYSLER CORPORATION ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT OF DEFENDANT. DAIMLERCHRYSLER CORPORATION D,S'telJdant, DairnlerChrysler Corporation by and through its attorneys, Marshall, Dennehey,.Wamer, Coleman & Goggin, hereby answers plaintiff's Complaint and asserts new , , i matter defenses as follows: " > 1, Denied. After reasonable investigation, answering defendant is without knowledge or information ~ufficient to form a belief as to the truth of these averments and the ~ame are therefore denied. "PLAINTIFF.'S' J '.',. ',\.E.,.X, ,.ljIfrr, '.<. ','" ilJ2 ,'".". .,'.,.....' ',..,.,.'... ~" '..,,,'- ----"'"~ , ~ ~--~" 2. Admitted in part; denied in part. DainilerChrysler Corporation is a corporation organized apg existing under the laws of the State of Delaware with a principal place of business . , in Michigan, In addition, it can be served at the CT Corporation Systems, 1635 Market Street, . . Philadelphia, PA 19103, The remaining averments are denied, WHEREFORE, qefendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs, BACKGROUND 3, Admitted in part; denied is part, It is admitted that plaintiff obtained a DaimlerChrysler Corporation vehicle that was manufactured and warranted by defendant bearing vehicle identification number as alleged. After reasonable investigation, answering defendant is without information or knowledge sufficient to form a belief as to the truth of the remaining averments and same are therefore denied, 4, Denied, After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 5, Denied. It is denied that there were ineffective repair attempts or that the vehicle cannot b<j"llolled for the purposes for which it was intended, It is further denied that the vehicle is worthless, . , , 6, Denied, It is denied that defendant issued several written warranties, On the" ' contrary, defendant issued only an express written warranty, The warranty speaks for itself, WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs, 2 - ~~- I...... ,I ~'" :"1,;._,,,.,,= . COUNT I PENNSYLVANIA AUTOMOBILE LEMON LAW 7, Defendant, DaimlerChrysler Corporation, hereby incorporates its previous . . answers to plaintiff s Complaint as thqugh the same were set forth herein at length. 8. Denied, J:he averments contained in this paragraph constitute conclusions oflaw to which no response is required, 9, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no response is required, 10, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no response is required. 11, Denied, The averments contained in this paragraph constitute conclusions of law to which no response is required, 12. Denied, The averments contained in this paragraph constitute conclusions oflaw , to which no response is required. 13, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no response is required, 14, Denied, The averments contained in this paragraph constitute conclusions oflaw' ..... to which no response is required, 15, Denied, It is'd~nied that the vehicle experienced nonconformities or condivolls , , that were not corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation, It is denied repair attempts were ineffective, 16, Denied, It is denied the vehicle was out of service for the alleged number of days. 3 ~~, , ~.J ,~" " "j-'''''_W'~ilL,:' 17, Denied. It is denied that the vehicle experienced nonconformities or conditions that were n~t. corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation, It is denied repair attempts were ineffective, .' 18. Denied, After reasona~le investigation answering defendant is without information or knowledg~ sufficient to form a belief as to the truth of the averments contained in this paragraph and the same are therefore denied, 19, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no response is required, 20, Denied, It is denied that the vehicle was subject to additional repair attempts for which records were not maintained, 21, Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required, 22, Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required, WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs, ..... COUNT II MAGNUSON-MOSS (FfC) WARRANTY IMPROVEMENT ACT . . 23, , , , Defendant, DaimlerChrysler Corporation, hereby incorporates its previous ' " answers to plaintiffs Complaint as though the same were set forth herein at length, 24, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no response is required, 4 -~'"i'= 25, Denied, The averments contained in this paragraph constitnte conclusions oflaw to which nO..F.esponse is required, 26, Denied. After reasonable investigation answering defendant is without . . information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and the sll!lle are therefore denied, , '27. Denied, It is denied that defendant's express written warranty states as alleged, The warranty speaks for itself, 28. Denied. It is denied that the vehicle experienced nonconformities or conditions that were not corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation, It is denied repair attempts were ineffective, 29, Denied, The averments contained in this paragraph constitnte conclusions oflaw to which no response is required, 30, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no response is required, 31, Denied, The averments contained in this paragraph constitute conclusions of law to which no response is required, 32, Denied, The averments contained in this paragraph constitute conclusions oflaw ..... to which no response is required, . . WHEREFORE, defJn&ant, DaimlerChrysler Corporation, respectfully demands jl.ldglp.~t , in its favor and against the plaintiff, together with costs, COUNT III UNIFORM COMMERICAL CODE 33, Defendant, DaimlerChrysler Corporation, hereby incorporates its previous answers to plaintiffs Complaint lIS though the same were set forth herein at length, 5 - ~-~ I. ">'l,~o;&;k, 34, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no ~~sponse is required, 35. Denied. The averments contained in this paragraph constitute conclusions oflaw . to which no response is required, 36, Denied, I~ is denied that defendant was aware of any reliance on the part of the plaintiff, 37, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no response is required, 38, Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required, WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs,' COUNT IV PENNSYLANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 39, Defendant, DaimlerChrysler Corporation, hereby incorporates its previous answers to plaintiffs Complaint as though the same were set forth herein at length, 40..... Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required, , , 41. Denied, The averments contained in this paragraph constitute conclusions oHaw to which no response is required, 42, Denied, The averments contained in this paragraph constitnte conclusions oflaw to which no response is required. 6 '. - ~"''''''I~~~, . 43, Denied, The averments contained in this paragraph constitnte conclusions oflaw to which nO,l~sponse is required, 44, Denied. The averments contained in this paragraph constitute conclusions oflaw . . to which no response is required, 45, Denied. J:he averments contained in this paragraph constitute conclusions oflaw to which no response is required, 46, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no response is required, 47, Denied, The averments contained in this paragraph constitute conclusions oflaw to which no response is required, WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. NEW MATTER 48, Plaintiffs Complaint fails to state a claim for which relief may be granted against DaimlerChrysler Corporation, 49, Plaintiffs claims are barred and/or limited by the applicable disclaimers of warranty and limitations of damage provision, ..... 50, Plaintiffs claims are barred and/or limited by her neglect, misuse, abuse, . . modification, and/or alteratfoh of the vehicle, which is the subject of this litigation. , 51, Plaintiffs claims are barred and/or limited by her failure to mitigate damages. 52, If the plaintiff sustained any alleged injuries, damages or losses, the injuries, damages, or losses were caused by persons and/or entities over whom answering defendant had no control and for whom answering defendant is not responsible. 7 ,,- ^" ~~ . .." ~~, I~ I";;"""-".U~--; " . 53, Plaintiffs alleged claims of nonconformity do not substantially impair the use , . ' value, or sa(ety of the vehicle, 54, Plaintiffs claims are or maybe barred by the applicable doctrine oflaches ~ - - , . estoppel or waiver, 55, Plaintiffs ,Complaint fails to state a claim for which any attorney fees may be awarded, 56. Plaintiffs claims may be barred and/or limited by the Lemon Law, Unfair Trade Practices and Consumer Protection Law, Uniform Commercial Code and the Magnuson-Moss Warranty Act. 57, It is denied that plaintiff obtained the vehicle primarily or normally for personal, family or household purposes and plaintiff is not entitled to recovery under the Lemon Law, Magnuson-Moss Warranty Act, or the Pennsylvania Unfair Trade Practices Act. 58. Plaintiffs Complaint may be barred by the applicable statute oflimitations, WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in, its favor and against the plaintiff, together with costs, , , BY: ..... . . J . 8 - I _ ~- ~ I," & , ,~, . . f ." . , VERIFICATION Jam<(s. W, Stevens, Esquire, hereby states that he is the attorney for DaimlerChrysler Corporation, defendant herein, and verifies that the statements made in the foregoing Answer . . with New Matter of Defendant, DaimlerChrysler Corporation, to Plaintiffs Complaint, are true and correct to the best of pis knowledge, information and belief. The undersigned understands that tlie statements therein are made subject to the penalties of 18 Pa, C,S, ~4904, relating to unsworn falsification to authorities. JAMES ..... , , , , ," , , I ~ ~"--M~,q;,M j . ,-' " CERTIFICATE OF SERVICE ',' I, James W, Stevens, Esquire, hereby certify that I am attorney for the defendant, DaimlerChrysler Corporation, in the within rtction; that I am duly authorized to make this certification and that on the 2nd day of December, 1999,1 did cause a true and correct copy of Answer and New Matter of Defendant, DaimlerChrysler Corporation, to Plaintiffs Complaint to " be forwarded by first class, D,S, Mail to counsel below as follows: Craig Thor Kimmel, Esquire KIMMEL & SILVERMAN, P.C, 30 E, Butler Pike Ambler, PA 19002 BY: MARSHALL, COLE .... . , , , , , ..: t , ~<I;@- f - " ~ Glenn Gerber, Esquire Identification No, 57898 ~ KIMMEL & SILVERMAN, P,C, 30 East, Butler pike Ambler, 'PA 19002 (215) 540-8888 Attorney for plaintiff CHRISTOPHER AND DELANIE COOK COURT OF COMMON PLEAS PHILADELPHIA COUNTY v, DAIMLERCHRYSLER CORPORATION CIVIL ACTION OCTOBER TERM, 1999 NO, 2018 CERTIFICATE OF SERVICE I, Glenn Gerber, Esquire, counsel for Plaintiff, hereby certify that on the date indicated below, I served the party listed below with a true and correct copy of the attached Plaintiffs' Answer and memorandum of Law in Opposition to Defendant's Petition to Transfer Venue by placing same in the United States Mail, First Class, Postage Paid, addressed as follows: James W, Stevens, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 1845 Walnut Street Philadelphia, PA 19103 I en Gerber, Esquire Attorney for Plaintiffs .. \ By: Dated: January 19, 2000 CHRISTOPHER and DELANIE COOK v. DAIMLER CHRYSLER CORPORATION IN RE: ARBITRATION I , ~'." L : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :~~~ : CIVIL TERM CIVIL ACTION - LAW ORDER OF COURT AND NOW, December 6, 2002, the Court having been informed that the above case has been settled prior to hearing, the Board of Arbitrators previously appointed is hereby vacated. Irhomas J.Williams, Esquire Chairman /Susan H. Confair, Esquire > 'Craig A. Hatch, Esquire Court Administrator By the Court, Geor .J. . L~~ ~~xg J ').-l, -O:.l . I' I,ll I :1 Ii :1 Iii II - :-':~,:~:.;-OH:;CE " ,,,,, "')"RY "-'1. -\\. J\l {'\') fli:'" - (' Ji.. !!_",J 0 D'i' "'.1' I" ,: . ~ ....- CU",,,,,>, ',-. ~("IJNn' iv'!btn~,.I-'t'~lJ v.....~\ 1 PENNSYlVJ~\jlA , ,\ " _, .\ !il'lp;~lI! ~ I1I'iJ ,ffi~~~II,lJ1l1i ,~_","".!lI_ ',~ ,e .'~ 'c- ",~_.. ,. ,~ , ""'''~, , -~- \01 _2 I\LIAB\DSJ~SLPG\198771 ~OJ~03043\00846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: James W. Stevens, Esquire Attorney I.D. No. 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney f6rDefendant; i DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK DAIMLERCHRYSLER CORPORATION : COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 PRAECIPE TO TRANSFER FILE TO THE PROTHONOTARY: Kindly transfer the physical file on the above-captioned file to the Court of Common Pleas of Cumberland County per the attached Order of The Honorable Judge Glazer and upon payment of transfer costs by defendant. MARSHALL, COLEM/AN BY: ~ NEHEY, WARNER, & GOGGIN D~mlerChrysier Corporation \01 __21 ~LIAB\DSALLPG\188486~ff)S.~0~04~00846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney I.D: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 DOOKETED JAN 1., ? 20o0 K. JACKSON C~¥1L ADMINISTRATIO,~ttome fo y r Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK Vo DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 AND , this~/~tiay of 1~2, upon consideration of defendant DaimlerChrysler Corporation's Petition to Transfer Venue for Forum Non Convenien.~ and any response thereto, it is hereby ORDERED and DECREED that said Petition is granted and the above-captioned matter is transferred to the Court of Common Pleas for Cumberland County, Pennsylvania. The Philadelphia County Prothonotary is hereby directed to forward to Cumberland County Prothonotary certified copies of docket entries, Proceed pleadings, depositions and all other papers filed of record in'this action. COPIES SENT PtIR.~U,~,m'TO Pa. a.C.P. JAN 7 000 BY THE COURT: Court of Common Pleas of Philadelphia County Trial Division Civil Cover Sheet Christopher Cook DaimlerChrysler Corporatiou O020~.S. 424 Pawnee Drive 1635 Market Street Mechanicsburg, PA 17055 Philadelphia, PA 19103 Delanie Cook 424 Pawnee Dr~ve Rechan~csburg, PA 19103 ~oosr ,n coutaownav ~ 2. Writ of Su~ons ~ 7. Non J~ & ~a~ ~ 12. ~no~m~enl C~pmmi~ ~ 30. $50,000.00orless ~ 32. ~s~tof~agesh~gt~u~ ~ 3. NoficeofAp~l ~8. Cl~Aefi~ ~ 13. Su~v~on ~ 31. More~$50,~.~ ~ 33. ~entofdm~esh~ngnotmqu~ ~ 4. P~ifionA~on ~9, Sa~ngsA~ ~ 14. Wt~l~a~fion(~vol~gm~om) ~ 40. Action ~se in mil~el~ia ~nW ~ ~. ~1 ~f~ ~ resi~n~ of(or have o~ces in) Phil~elphia Co~ ~ 41. Action did not ~se ~ ~ladelphia Co~W ~ 51. M~n defender is a r~id~t of (~ ~ o~ces in) ~il~el~ia Coun~ (state ~'on for filing action in Phd~elphia Coun~ below in ~60) ~ 52, ~l def~ m~l~ly condum b~iness in ~iladelphia C~n~ (sek I~ction F} ~ 42. Tr~ction ~ ~nce ~ng rise ~ ~ion ~ ~ ~la~lp~a ~W ~ 43. T~sacdon g occu~ce ~ng fi~ m a~on ~d not ~ in ~la~lphia C~n~ ~ M. ~fen~ ~ not msi~nm of(~d ~ n~ ~ve offices in) P~la~lp~a Cou~ (describe t~uaction or ~r~nce below in ~60) Otate below in ~60 ~mon for filing action in Phil~l~ia Co~) ~. Ha~n defendant regularly conducts bus~ness ~n Philadelphia ~ounCy 20000 Contract Craig Thor [i~el~ Esquire K~el & Silverman, PHONENUMBER SUP~MECOURTIOENT~FICATiONNO. 30 East Butler Pike 215-540-8888 /~ 57100 ~bler, PA 19002 ~ lOl~ ~r ~;~ ~ ~phl~PAlgl03 ~ . Pl~c~ 01-101 (Rev. 9/94) CralgThor E~mel, Esquire IdentiEicationNo. 57100 KII~EL & SIL¥~]~N, P.C. 30 East Butler Pike Ambler, P~n~eylvania 19002 (215) 540-8888 Attorney for Plaintiffs -£~rs IS AN ARBITRATION MA-~-r~R. ASSESSMENT OF DAMAGES W~RING IS REQUES-r -.,. c~IKISTOPH~Q COOK and DELANIE COOK 424 Pawnee Drive Meoh~csburg, PA 17055 Vo DAIMLER~KYSLER CORPORATION c/o CT Corporation 1635 Market Street Philadelphia, PA 19103 C0~PLAINT CODE: 1900 COURT OF COMMON PLEAS PHILADELPHIA COUNTY CIVIL ACTION -r~f, 1999 NO. OCTOBER 1999 00201S 1. Plaintiffs, Christopher Cook and Delanie Cook, are adult individual citizens and legal residents of the Commonwealth of Pennsylvania, residing at 424 Pawnee Drive, Mechanicsburg, Pennsylvania 17055. 2. Defendant, DaimlerChrysler Corporation, is a business corporation qualified to do business and regularly conducts business in the Commonwealth of Pennsylvania, and is a corporation of the State of Delaware, with its legal residence and principal place of business located at 12000 Chrysler Drive, Highland Park, Michigan 48288-1919, and can be served c/o CT Corporation, 1635 Market Street, Philadelphia, Pennsylvania 19103. BACKGROUND 3. On or about October 29, 1998, Plaintiffs purchased a 1997 Dodge Grand Caravan, manufactured and warranted by Defendant, bearing the Vehicle Identification Number 1B4GP44RXVB438978. The vehicle was purchased in the Co~,onwealth of Pennsylvania and is registered in the Commonwealth of Pennsylvania. 4. The price of the vehicle, including registration charges, document fees, sales tax, finance and bank charges but, excludinq other collateral charges not specified yet defined by the Lemon Law, totaled more than $24,547.20. A true and correct copy of the Contract is attached hereto, made a part hereof and marked Exhibit "A". 5. Plaintiffs aver that as a result of the ineffective repair attempts made by Defendant through its authorized dealer(s), the vehicle cannot be utilized for the purposes intended by Plaintiffs at the time of acquisition and as such, the vehicle is worthless. 6. In consideration for the purchase of the above vehicle, Defendant issued to Plaintiffs several written warranties, including a three (3) year or thirty-six-thousand (36,000) mile bumper-to-bumper, as well as other standard warranties fully outlined in the warranty booklet. COURT I PENNSYLVANT_AAUTOMOBILE L~MONLAW 7. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 8. Plaintiffs, are "Purchasers" as defined by 73 P.S. §1952. §1952. Defendant is a "Manufacturer" as defined by 73 P.S. If a manufacturer fails to repair or correct a nonconfo~,,ity after a reasonable number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle.., or accept return of the vehicle from the purchaser, and refund to the purchaser the full purchase price, including all collateral charges, less a reasonable allowance for the purchasers use of the vehicle, not exceeding $.10 per mile driven or 10% of the purchase price of the vehicle, whichever is less. if: 14. Section 1956 of the Pennsylvania Automobile Lemon Law provides a presumption of a reasonable number of repair attempts (1) The same nonconformity has been subject to repair three times by the manufacturer, its agents or authorized dealers and the nonconformity still exist(s); or 10. Behney Motors, is and/or was at the time of sale a Motor Vehicle Dealer in the business of buying, selling, and/or exchanging vehicles as defined by 73 P.S. §1952. 11. On or about October 29, 1998, Plaintiffs took possession of the above mentioned vehicle and experienced nonconformities as defined by 73 P.S §1951 et seq., which substantially impair the use, value and/or safety of the vehicle. 12. The nonconformities described violate the express written warranties issued to Plaintiffs by Defendant. 13. Section 1955 of the Pennsylvania Automobile Lemon Law provides: (2) The vehicle is out-of-service by reason of any nonconformity for a cumulative total of thirty or more calendar days. 15. Plaintiffs have satisfied the above definition as the vehicle has been subject to repair more than three (3) times for the same nonconformity, and the nonconformity remains uncorrected. 16. In addition, the above vehicle has or will be out-of- service by reason of the nonconformities complained of for a cumulative total of thirty (30) or more calendar days. 17. Plaintiffs have delivered the nonconforming vehicle to an authorized service and repair facility of the manufacturer on numerous occasions. After a reasonable number of attempts, the manufacturer was unable to repair the nonconfoL~,ities. 18. During the first 12 months and/or 12,000 miles, Plaintiffs complained about defects and/or nonconfo~=Lities on at least three occasions to the following vehicle components= noisy belts~ headliner hanging down~ and a dead battery. Plaintiffs are not in possession of this info~,ation, however it can be obtained from Defendant's authorized dealership. 19. The vehicle continues to exhibit defects and nonconfo~,ities which substantially impair its use, value and/or safety as provided in 73 P.S. §1951 et seq. 20. Plaintiffs aver the vehicle has been subject to additional repair attempts for defects and/or nonconformities and/or conditions for which the dealer did not malntain records. 21. Plaintiffs have been and will continue to be financially damaged due to Defendant's intentional, reckless, wanton and negligent failure to comply with the provisions of 73 P.S. S1951 et seq. 22. Pursuant to 73 Pa. P.S. §1958, Plaintiffs seek relief for losses due to the nonconformities and defects in the above- mentioned vehicle in addition to attorney fees and all court costs. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT II MAGNUSON-MOSS FEDERAL TRADE C0~MISSION TMDROFm~TACT 23. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 24. Plaintiffs are "Consumers" as defined by 15 U.S.C. ~2301(3). 25. Defendant is a "Warrantor" as defined by 15 U.S.C. ~2301(5). 26. The purpose for which this product is normally used is personal, family, and household use. 27. By the te~,,s of the express written warranties referred to in this Complaint, Defendant agreed to perform effective warranty repairs at no charge for parts and/or labor. 28. Defendant has made attempts on several occasions to comply with the re&ms of its warranties; however, such repair attempts have been ineffective. 29. As a direct and proximate result of Defendant's failure to comply with the express written warranties, Plaintiffs have suffered damages and, in accordance with 15 U.S.C. §2310(d) (1), Plaintiffs are entitled to bring suit for such damages and other legal and equitable relief. 30. Section 15 U.S.C. §2310(d) (1) provides= If a consumer finally prevails on an action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the jud~nent a sum equal to the amount of aggregate amount of costs and expenses (including attorney fees based upon actual time expended), dete~Lined by the court to have been reasonably incurred by the Plaintiff for, or in connection with the co~Lencement and prosecution of such action, unless the court, in its discretion shall determine that such an award of attorney's fees would be inappropriate. 31. Plaintiffs aver Defendant does not have a Dispute Resolution Program which is in compliance with 16 CFR 703. 32. Plaintiffs aver that upon successfully prevailing upon the Ma~nuson-Moss claim herein, all attorney fees are recoverable and are demanded against Defendant. WHEREFORE, Plaintiffs respectfully demand jud~,ent against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COU~T III UNIFOP~ CO~ERCIAL CODE 33. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 34. The defects and nonconformities existing within the vehicle constitute a breach of contractual and statutory obligations of Defendant, including but not limited to the following: a. b. Express Warranty; Implied Warranty Of Merchantability; and Implied Warranty Of Fitness For A Particular Purpose. 35. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Plaintiffs have justifiably relied upon Defendant's express warranties and implied warranties of fitness for a particular purpose and implied warranties of merchantability. 36. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Defendant was aware Plaintiffs were relying upon Defendant's express and implied warranties, obligations, and representations with regard to the subject vehicle. 37. Plaintiffs have incurred damages as a direct and proximate result of the breach and failure of Defendant to honor its express and implied warranties. 38. Such damages include, but are not limited to, the contract price of the vehicle plus all collateral charges, including attorney fees and costs, as well as other expenses, the full extent of which are not yet known. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant, in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT IV PENNSYLVANIA UNFAIR TRADE PP. ACTICES AND CONSU~ PROTECTION LAW 39. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 40. Plaintiffs are "People" as defined by 73 P.S. §201- 2(2) . 41. Defendant is a "Person" as defined by 73 P.S. §201- 2 (2) . 42. Section 1961 of the Pennsylvania Automobile Lemon Law, provides that a violation of its provisions is also a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. 201-1 et seq. 43. In addition, the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. §201-2(4), defines "unfair or deceptive acts or practices" to include, but not limited to, the following: (vii). Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another~ (xiv). Failing to comply with the te~=Ls of any written ~uarantee or warranty given to the buyer at, prior to, or after a contract for the purchase of goods or services is made~ (xv). Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed~ (xvi). Making repairs, improvements or replacements on tangible, real or personal property of a nature or quality inferior to or below the standard of that agreed to in writing~ (xvii) (xxl). Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 44. Plaintiffs believe, and therefore aver, that Defendant's conduct falls within the aforementioned definition of "unfair or deceptive acts or practices." Further=Lore, Defendant's actions constitute otherwise reckless, wanton, or willful conduct which is prohibited by the Statute. 45. Section 201-9.2(a) of the Statute provides for private causes of action for any person "who purchases or leases goods or services primarily for personal, family household purposes." The Statute authorizes the Court, in its discretion, to award up to three (3) times the actual damages sustained for violations. 46. Section 201-3.1 of the Act provides that the automotive industry trade practice rules and regulations adopted by the Attorney General for the enforcement of this Act are declared unlawful. 47. Plaintiffs believe and therefore aver that Defendant's conduct in the sale and servicing of the vehicle violate said rules and regulations. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount not in excess of Fifty Thousand Dollars ($50,000.00), together with all collateral charges, orney fees,' and costs of suit. ~ By= ~ CRAIG THO~KI~EL, ESQUIRE Attorneys fo~Plaintiff 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 VERIFICATION I, Craig Thor Kimmel, being duly sworn according to law, depose and say that I am the attorney for the plaintiff, in this action and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities/ Attorney. f~r-Plalntiffs BEHNEY MOTORS 300 E. Emaus'St. Telephone 944-7415 MIDDLETOWN, PENNSYLVANIA 17057 PLEASE ENTER MY ORDER FOR ONE ~NEW [] USED [] DEMO AS FOLLOWS: post-i~ F~ Note /~' _ . -' ~,~ c°~~~ CoJ~pt.. ~ ~1~ ">*~' ~ ~ " · Fo, ~ESCR~P~N ~E-~N ~ WARRA~ES, IF ANY, BY A MANUFA~RER OR SUPPUER O~ER ~AN D~LER ARE ~EIRS. NOT D~R'~ ~. ~D ONLY SUCH MANUFACTURER OR OTHER SUPPUER SHALL BE UABLE FOR PERFORMANCE UNDER SUCH WARRANTIES. UNLESS DEALER FURNISHES BUYER WITH A SEPARATE WRI,, ,'N WARRANTY OR SERVICE CONTRACT MADE BY DEALER ON ITS OWN BEHALF, DEALER HEREBY DISCLAIMS ALL WARRANTIES. EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABlUTY OR ~'IINESS FOR A PARTICULAR PURPOSE: (A) ON ALL GOODS AND SERVICES SOLD BY DEALER, AND (B) ON ALL USED VEHICLES WHICH ARE HEREBY SOLD "AS IS--NOT EXPRESSLY WARRANTED OR GUARANTEED". IF THIS AGREEMENT IS FOR A USED VEHICLE, THE INFORMATION YOU SEE ON THE (FEDERAL TRADE COMMISSION) WINDOW FORM IS PART OF THIS AGREEMENT. INFORMATION ON THE WINDOW FORM OVERRIOES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE. The front and back of this Order compHae the entire agreement affecting thl~ purchase end no other agreement or undemtendlng of any nature concerning ~ame has been made m' entered Into, or will be recognized. I hereby certify that no credit ha~ been purchase of thl8 except al apl)lam in writing on the face of this agreement. I have read the matter printed above my ,,gnaturc. lcefitfythat~m_o~l.g...nd... ~"~/ hamby.cknowledg. KIMMEL & SILVERMAN, P.C. By= Craig Thor Kimmel, Esquire Identification No. 57100 30 East Butler Pike Ambler, PA 19002 (215) 540-8888 F!LED PRO PROTHY NOV 0 9 1999 Attorney for Plaintiff CHRISTOPHER COOK and DELANIE COOK Ve DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY October Te&~, 1999 No. 002018 AFFIDAVIT OF SERVICE competent adult, being duly sworn ac~or_d~ng to law, depose and say that at ~il< CM., on (DATE) I personally handed to (NAME) ~/~ ~0,~4~ , on behalf of DaimlerChrysler Corporation, at CT Corporation, 1635 Market Street, Philadelphia, PA 19103. Adult family member with whom said Defendant(s) reside(s). Relationship is Adult in charge of Defendant's residence who refused to give name or relationship. Manager/Clerk of place of lodging in which Defendant(s) reside(s). Agent or person in charge of Defendant's office or usual place of business. said Defendant's company. and officer of Other a true and correct copy of complaint issued in the above-captioned matter. Sworn to and subscribed . ' -' ~ ' t6 o~0 ~ · MARSHALL, DENNEHEY, WARNER COLEMAN & GOGGIN BY: James W. Stevens, Esquire Attorney I.D. No.: 40534 1845 Walnut Street Philadelphia, PA 19103 215-575-2684 Attorney for Defendant, DalmlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 ~ ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of DaimlerChrysler Corporation, in the above- captioned matter. MARSHALL, DENNEHEY, WARNER, \01__21 ~L1AB~JWS\LLPG\188161\LOJ~03043\00846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney ID No: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 TO PLAINTIFF YOU ARE HEP~BY NOTIFIED TO PLEAD TO TI~ ENCL, 9SED NEW MATTE~b,]WITH~ 4 (20) I~t~S FROM T.E SgSVICE~ ~y~F oR A // DEFAULT JL~MEN~ 49IAY BE ENTF~'~D Attorney forD~~ orporation Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT OF DEFENDANT, DAIMLERCHRYSLER CORPORATION Defendant, DaimlerChrysler Corporation by and through its attorneys, Marshall, Dennehey, Warner, Coleman & Goggin, hereby answers plaintiff's Complaint and asserts new matter defenses as follows: 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the troth of these averments and the same are therefore denied. 2. Admitted in part; denied in part. DaimlerChrysler Corporation is a corporation organized and existing under the laws of the State of Delaware with a principal place of business in Michigan. In addition, it can be served at the CT Corporation Systems, 1635 Market Street, Philadelphia, PA 19103. The remaining averments are denied. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. 3. Admitted in part; denied is part. It is admitted that plaintiff obtained a DaimlerChrysler Corporation vehicle that was manufactured and warranted by defendant beating vehicle identification number as alleged. After reasonable investigation, answering defendant is without infoxmation or knowledge sufficient to form a belief as to the troth of the remaining averments and same are therefore denied. 4. Denied. Atter reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 5. Denied. It is denied that there were ineffective repair attempts or that the vehicle cannot be used for the purposes for which it was intended. It is further denied that the vehicle is worthless. 6. Denied. It is denied that defendant issued several written warranties. On the contrary, defendant issued only an express written warranty. The warranty speaks for itself. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. COUNT I PENNSYLVANIA AUTOMOBILE LEMON LAW 7. Defendant, DaimlerChrysler Corporation, hereby incorporates its previous answers to plaintiff's Complaint as though the same were set forth herein at length. 8. Denied. The averments contained in this paragraph constitute conclusions of law to which no response ~s required. 9. Denied. The avem~ents contained in this paragraph constitute conclusions of law to which no response ~s required. 10. Denied. The avem~ents contained in this paragraph constitute conclusions of law to which no response as required. 11. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 12. Denied. The averments contained in this paragraph constitute conclusions of law to which no response as required. 13. Denied. The averments contained in this paragraph constitute conclusions of law to which no response ~s required. 14. Denied. The averments contained in this paragraph constitute conclusions of law to which no response ~s required. 15. Denied. It is denied that the vehicle experienced nonconformities or conditions that were not corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation. It is denied repair attempts were ineffective. 16. Denied. It is denied the vehicle was out of service for the alleged number of days. 17. Denied. It is denied that the vehicle experienced nonconformities or conditions that were not corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation. It is denied repair attempts were ineffective. 18. Denied. After reasonable investigation answering defendant is without information or knowledge sufficient to form a belief as to the truth of the averments contained in this paragraph and the same are therefore denied. 19. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 20. Denied. It is denied that the vehicle was subject to additional repair attempts for which records were not maintained. 21. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 22. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. COUNT II MAGNUSON-MOSS (FTC) WARRANTY IMPROVEMENT ACT 23. Defendant, DaimlerChrysler Corporation, hereby incorporates its previous answers to plaintiff's Complaint as though the same were set forth herein at length. 24. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 25. Denied. The avemients contained in this paragraph constitute conclusions of law to which no response is required. 26. Denied. After reasonable investigation answering defendant is without information or knowledge sufficient to form a belief as to the troth of the averments contained in this paragraph and the same are therefore denied. 27. Denied. It is denied that defendant's express written warranty states as alleged. The warranty speaks for itself. 28. Denied. It is denied that the vehicle experienced nonconformities or conditions that were not corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation. It is denied repair attempts were ineffective. 29. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 30. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 31. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 32. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. COUNT III UNIFORM COMMERICAL CODE 33. Defendant, DaimlerChrysler Corporation, hereby incorporates its previous answers to plaintiffs Complaint as though the same were set forth herein at length. 34. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 35. Denied. The avem~ents contained in this paragraph constitute conclusions of law to which no response is required. 36. Denied. It is denied that defendant was aware of any reliance on the part of the plaintiff. 37. Denied. The avem,ents contained in this paragraph constitute conclusions of law to which no response is required. 38. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs.' COUNT IV PENNSYLANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 39. Defendant, DaimlerChrysler Corporation, hereby incorporates its previous answers to plaintiff's Complaint as though the same were set forth herein at length. 40. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 41. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 42. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 43. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 44. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 45. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 46. Denied. The avem,ents contained in this paragraph constitute conclusions of law to which no response is required. 47. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. 48. Plaintiff's Complaint fails to state a claim for which relief may be granted against DaimlerChrysler Corporation. 49. Plaintiff's claims are barred and/or limited by the applicable disclaimers of warranty and limitations of damage provision. 50. Plaintiff's claims are barred and/or limited by her neglect, misuse, abuse, modification, and/or alteration of the vehicle, which is the subject of this litigation. 51. Plaintiff's claims are barred and/or limited by her failure to mitigate damages. 52. If the plaintiff sustained any alleged injuries, damages or losses, the injuries, damages, or losses were caused by persons and/or entities over whom answering defendant had no control and for whom answering defendant is not responsible. 53. Plaintiff's alleged claims of nonconformity do not substantially impair the use, value, or safety of the vehicle. 54. Plaintiffs claims are or may be barred by the applicable doctrine of laches, estoppel or waiver. Plaintiffs Complaint fails to state a claim for which any attorney fees may be 55. awarded. 56. Plaintiff's claims may be barred and/or limited by the Lemon Law, Unfair Trade Practices and Consumer Protection Law, Uniform Commercial Code and the Magnuson-Moss Warranty Act. 57. It is denied that plaintiff obtained the vehicle primarily or normally for personal, family or household purposes and plaintiff is not entitled to recovery under the Lemon Law, Magnuson-Moss Warranty Act, or the Pennsylvania Unfair Trade Practices Act. 58. Plaintiffs Complaint may be barred by the applicable statute of limitations. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. MARSHALL/~ 1 COLII BY: JAM~( Attorney DaimPer( ENI~EHEY, WARNER, r. ~TE~NS, F~QUIRE ,f~r De~endan~, ~ysler ~ration James W. Stevens, Esquire, hereby states that he is the attorney for DaimlerChrysler Corporation, defendant herein, and verifies that the statements made in the foregoing Answer with New Matter of Defendant, DaimlerChrysler Corporation, to Plaintiff's Complaint, are tree and correct to the best of his knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. CERTIFICATE OF SERVICE I, James W. Stevens, Esquire, hereby certify that I am attorney for the defendant, DaimlerChrysler Corporation, in the within action; that I am duly authorized to make this certification and that on the 2na day of December, 1999, I did cause a tree and correct copy of Answer and New Matter of Defendant, DaimlerChrysler Corporation, to Plaintiff's Complaint to be forwarded by first class, U.S. Mail to counsel below as follows: Craig Thor Kimmel, Esquire KIMMEL & SILVERMAN, P.C. 30 E. Butler Pike Ambler, PA 19002 MARSHALL,~NN~H ,~~WARNER, COLE~N~fGOGGIN~/ BY: \ I ~ ~- / JAMES ~V1ST~I~VENS, EXQ~ A~omey~r pqf~nd~ DaimlerC~ler~ration Glenn I. Gerber, Esquire Identification No. 57898!~ KI~4EL & SILVERMAN, P.C. 30 East Butler Pike Ambler, Pennsylvania (215) 540-8888 Attorney for Plaintiff CHRISTOPHER COOK & DELANIE COOK V. DAIMLERCHRYSLER CORPORATION COURT OF COCA, ON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANT. CHRYSLER CORPORATION DEC l 19 j9! 48. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 49. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 50. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 51. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 52. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 53. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 54. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 55. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 56. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 57. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 58. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Plaintiff respectfully demands judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. By: KI~EL & SILVEP/~AN, P.C. Attorney for Plaintiff 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 VERIFICATION Glenn I. Gerber, Esquire, states that he is the attorney for the Plaintiff herein; that he is acquainted with the facts set forth in the foregoing Answer to New Matter; and that same are true to the best of his knowledge, information and belief. This statement is being made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Glenn I. Gerber, Esquire Attorney for Plaintiff Glenn I. Gerber, Esquire Identification No. 57898 KI~4EL & SILVEP/~AN, P.C. 30 East Butler Pike A~ler, Pennsylvania 19002 (215) 540-8888 Attorney for Plaintiff CHRISTOPHER COOK & : DELANIE COOK : : : DAIMLERCHRYSLER CORPORATION : COURT OF C~N PLEAS PHILADELPHIA COUNTY OCTOBER TEP/~, 1999 NO. 2018 CERTIFICATE OF SERVICE I, Glenn I. Gerber, Esquire, counsel for Plaintiff, do hereby certify that on the 15th day of December, 1999, I served all parties with true and correct copies of the foregoing Answer to New Matter, by placing same in the United States Mail, First Class, Postage Paid addressed as follows: James W. Stevens, Esquire MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN 1845 Walnut Street Philadelphia, PA 19103-4797 KI~EL & By: GLENN I. GERBER, ESQUIRE Identification No. 57898 Attorney for Plaintiff 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 REPORT : ZDRDOCT USER ID: VRW PAGE 1 Fir'st Judicial District RUN DATE 02/14/00 CIVIL DOCKET REPORT RUN TIME 09:13 AM CASE ID 991002018 CASE NUMBER CASE CAPTION 991002018 COOK ETAL VS DAIMLERCHRYSLER CORP FILING DATE COURT LOCATION JURY 18-OCT-1999 AR AC N CASE TYPE: CONTRACTS OTHER STATUS: TRANSFER TO OTHER JURISDICTION Seq # Assoc Expn Date Type I__D 1 APLF A57100 2 1 PLF @4024673 3 1 PLF @4024675 4 DFT I2009 5 6 DFT I12137 6 ADFT A40534 Party Name / Address & Phone No. KIMMEL, CRAIG T 30 EAST BUTLER PIKE PROSPECTVILLE PA 19002 (215)540-8888 COOK, CHRISTOPHER 424 PAWNEE DR NAVY SHIPS PA 17055 COOK, DELANIE 424 PAWNEE DR NAVY SHIPS PA 17055 DAIWA Bi~qK LTD 1650 NLARKET ST. PHILADELPHIA PA 19103 (215) 636-4440 DAIMLERCHRYSLER CORP 1000 CHRYSLER DR AUBURN HILLS MI 48326 STEVENS, JAMES W 1845 WALNUT ST. MARSHALL,DENNEHEY,WARNER PHILADELPHIA PA 19103 (000)575-2684 Filinq Date / Time Docket Entry 18-OCT-99 14:06:00 COMMENCEMENT OF CIVIL ACTION 18-OCT-99 14:06:00 SHERIFF'S SURCHARGE 1 DEFT KIMMEL, CRAIG T KIMMEL, CRAIG T REPORT : ZDRDOCT USER ID: VRW First Judicial District CIVIL DOCKET REPORT CASE ID 991002018 PAGE 2 RUN DATE 02/14/00 RUN TIME 09:13 AM Filing Date / Tim~ 18-OCT-99 14:06:00 18-0CT-99 14:08:59 19-0CT-99 14:34:12 25-0CT-99 13:15:00 02-DEC-99 15:59:00 02-DEC-99 15:59:01 15-DEC-99 11:09:45 20-DEC-99 13:49:43 19-JAN-00 14:52:39 21-JAN-00 13:40:36 27-JAN-00 12:06:21 Docket Entry COMPLAINT FILED NOTICE GIVEN KIMMEL, CP~AIG T COMPLAINT WITH NOTICE TO DEFEND WITHIN TWENTY (20) DAYS AFTER SERVICE IN ACCORDANCE WITH RULE 1018.1 FILED. ASSESSMENT REQUIRED ACTIVE CASE ARBITRATION HEARING SCHEDULED AFFIDAVIT OF SERVICE FILED ENTRY OF APPE/LW3~NCE FILED ENTRY OF APPEARA/qCE OF JAMES Wo OF DFT DAIMLERCHRYSLER CORP. STEVENS, JAMES W STEVENS FILED ON BEHALF ANSWER TO COMPLAINT FILED STEVENS, JAMES W ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER FILED BY DEFENDANT DAIMLERCHRYSLER CORP. REPLY FILED PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANT, CHRYSLER CORPORATION PETITION TO TP3~NSFER 62-99121162 RESPONSE DATE 1/19/00 DAIMLERCHRYSLER CORP, ANSWER (MOTION/PETITION) FILED COOK, CHRISTOPHER 62-99121162 ANS FILED TO PETITION TO TRA/~SFER MOTION ASSIGNED 62-99121162 PETITION TO TRANSFER VENUE ASSIGNED TO JUDGE GLAZER ON 1-24-00 TRANSFER TO OTHER JURISDICTION GLAZER, GARY S 62-99121162 IT IS ORDERED THAT THE DFT PETITION TO TRANSFER VENUE IS GRANTED AND THE ABOVE-CAPTIONED MATTER IS TRANSFERRED TO THE COURT OF COSt, ON PLEAS FOR CUMBERLAND COUNTY, PA. THE PHILA COUNTY PROTHONOTARy IS HEREBY DIRECTED TO FORWARD TO CUMBERLAND COUNTY PROTHONOTARy CERTIFIED COPIES OF DOCKET ENTRIES, PROCEED PLEADINGS, DEPOSITION AND ALL OTHER PAPERS FILED OF RECORD IN THIS ACTION BY THE COURT...JUDGE GLAZER, 1/24/00 REPORT : ZDRDOCT USER ID: VRW Filing Date / Tim~ 27-JAN-00 12:06:22 il~FEB-00 09:08:28 First Judicial District CIVIL DOCKET REPORT CASE ID 991002018 PAGE 3 RUN DATE 02/14/00 RUN TIME 09:13 AM Docket Entry NOTICE GIVEN UNDER RULE 236 PRAECIPE/TRNSFER OUT OF COUNTY DAIMLERCHRYSLER CORP, PRAECIPE TO TRANSFER THE ABOVE CAPTIONED MATTER CUMBERLAND COUNTY COURT FILED. * * * End of Docket * * * JOSEPH H. EVERS DOCKETED \01 _2 I'~LIAB'XDSJ~LPG\188486'xDS J~03043\00846 ~H~L, COLEM~ & ~O~GIN K. JACKSON . By: J~es W. Stevens, Esquire ~I~iLADMtNI~ATI~ttomey for Defender, A~omey I.D: 40534 1845 Walnut S~eet P~ladelphia, PA 19103 (~1~) ~7~-2aS4 12116 DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 AND NOW, thief, ,s)//0da~y of I'4~0, upon consideration of defendant DaimlerChrysler Corporation's Petition to Transfer Venue for Forum Non Conveniens and any response thereto, it is hereby ORDERED and DECREED that said Petition is granted and the above-captioned matter is transferred to the Court of Common Pleas for Cumberland County, Pennsylvania. The Philadelphia County Prothonotary is hereby directed to forward to Cumberland County Prothonotary certified copies of docket entries, proceed pleadings, depositions and all other papers filed of record in this action. COPIES SENT PURSUANTTO ~'a. ~.C.P. ~-,~b) J/iN 2 7 ZOO0 BY THE COURT: / . MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stever~s, Esqaire Attorney I.D: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK Vo DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 PETITION OF DEFENDANT, DAIMLERCHRYSLER CORPORATION, TO TRANSFER VENUE FOR FORUM NON CONVENIENS Defendant, DaimlerChrysler Corporation, by and through its attorneys, Marshall, Dennehey, Warner, Coleman & Goggin, hereby petitions this Honorable Court for an Order transferring this matter for Forum Non Conveniens to the Court of Common Pleas of Cumberland County, pursuant to Pa. R.C.P. 1006(d)(1), with supporting Affidavits, avers as follows: 1. This civil action was commenced by thc filing of a Complaint in the Court of Common Pleas of Philadelphia County on or about October 18, 1999. A truc and correct copy of plaintiff's Complaint is attached hereto as Exhibit "A". 2. The action alleges a violation of the Pennsylvania Lemon Law, breach of warranty and unfair trade practices as a result of the purchase and operation of a 1997 Dodge Grand Caravan. 3. This case has absolutely no relationship to any activities, events or transactions which occurred in Philadelphia County. 4. In the case of Dulaney v. Consolidated Rail Corn_ oratioll 715 A.2d 1217 (Pa. Super. 1998), the Pernnsylvania Superior Court upheld a transfer of a matter fzom Philadelphia to Allegheny County on facts essentially identical to the matter at hand. 5. The court in Dulaney had no difficulty readily deciding the inconvenience that was inherent in a Philadelphia County trial based on the fact that the plaintiff and all witness were located in Ohio, Western Virginia or Western Pennsylvania. The Superior Court made this decision in the light and guidance of Cheeseman v. Lethal Exterminator. Inc. et al, 701 A.2d 156 (Pa. 1997) which requires the defendant to show that the plaintiff's forum is oppressive or vexatious to the defendant. 6. As set forth in more detail below and in the attached Affidavits the filing of this matter as well as dozens of identical matters in Philadelphia County against the defendant has proven to be vexatious and oppressive. 7. In addition, as set forth in the attached Affidavits of the witnesses in this case, the convenience of the witnesses would be greatly enhanced if this matter were transferred to the Court of Common Pleas of Cumberland County. See, Exhibits "B", "C", and "D" attached hereto. 8. As reflected in the caption in the Complaint, the plaintiff resides at 424 Pawnee Drive, Mechanicsburg, PA 17055, Cumberland County, (See Exhibit "A"), which borders Dauphin County where the dealership who sold and serviced the vehicle is located. (See Exhibit "B", "C", "D" and "E"). 9. The service and repairs to the plaintiff's vehicle in Pennsylvania occurred in Dauphin County at Behney Motors. See, Exhibits "B", "C", and "D" attached hereto. 10. The service manager and service technicians who worked on the plaintiff's vehicle are important wipaesses, regarding the issue of whether the vehicle was repaired in accordance with the alleged terms of the warranty. These witnesses are employees of Behney Motors, in Dauphin County. To require their attendance at interviews, depositions, arbitration and/or trial in another county far removed fi:om their place of employment would burden the independent franchise dealership and damage their efforts to handle the service and repair needs of other customers. See Affidavit of Charles Behney attached hereto as Exhibit "C". 11. All records, contracts, repair orders and technician's notes generated in Pennsylvania regarding service of this vehicle are located at and are the property of Behney Motors in Dauphin County. See paragraph 15 of Affidavit of Matt Zielke, attached hereto as Exhibit "B". 12. Behney Motors is an independent franchise dealership and its records and employees are not under the control of DaimlerChrysler Corporation. 13. Pursuant to Pa. R.C.P. 1006(d)(1), this Honorable Court may: For the convenience of parties and witnesses, the court upon petition of any party may transfer an action to the appropriate court of another county where the action could have originally been brought. Pa. R.C.P. 1006(d)(1). 14. Moreover, while the plaintiffs choice of forum is entitled to weight, a Petition to Transfer Venue may be granted if the plaintiffs chosen is oppressive or vexatious to the defendant. Cheeseman v. Lethal Exterminator. Inc.. et al.. 701 A.2d 156 (Pa. 1997). Pursuant to Cheesmam a defendant is also entitled to transfer by showing that "trial in another county would provide easier access to witnesses or other sources of proof, or the ability to conduct a view of the premises involved in the dispute". Id. 15. Moreover, pursuant to Cheesemam a defendant is entitled to a transfer of venue by showing that "trial irt, another county would provide easier access to witnesses or other sources of proof, or the ability to conduct a view of the premises involved in the dispute." Id. 16. Trial of this matter in Philadelphia is inconvenient to all of the key fact witnesses as well as the defendant in this matter. Furthermore, the pattern of repeat filings in Philadelphia County of similar cases with no relationship to Philadelphia has proven to be oppressive and vexatious in its effect. 17. As set forth above, the arbitration and trial of this matter in Cumberland County would provide easier access to all the sources of proof both documentary and testimonial as contemplated by the Pennsylvania Supreme Court in Cheeseman, Id. 18. There is no contact that this matter has with the City or County of Philadelphia. Even plaintiffs lawyers are not located in Philadelphia County. Given the absence of any important connection between the County of Philadelphia and the location of all relevant evidence and witnesses in Dauphin County, together with the burden that would be imposed on witnesses the institution of this suit in Philadelphia County is vexatious, oppressive, prejudicial and unduly burdensome. As a result of the facts set forth above, petitioning defendant respectfully requests this Honorable Court to transfer this matter to the Court of Common Pleas for Cumberland County pursuant to Pa. R.C.P. 1006(d). WHEREFORE, petitioning defendant, DaimlerChrysler Corporation, respectfully requests this Honorable~Court'~o enter an Order in the fomi attached hereto and transfer the instant matter to the Court of Common Pleas for Cumberland County. MARSHALL, DENNEHEY, WARNER, BY: COL1 MAN AND GOGGIN / JAMES W. STEVENSr~v.,SD~UIRE A~tomeys for Defendant, D~imlerChrysler Corporation MARSHALL, DENNEItEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esqffire Attorney I.D: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK Vo DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 MEMORANDUM OF LAW IN SUPPORT OF PETITION OF DEFENDANT, DAIMLERCHRYSLER CORPORATION TO TRANSFER VENUE FOR FORUM NON CONVENIENS Defendant, DaimlerChrysler Corporation, by and through its attorneys, Marshall, Dennehcy, Warner, Coleman & Goggin, hereby petitions this Honorable Court for an Order transferring this matter to the Court of Common Pleas of Cumberland County, and in support, states as follows: I. STATEMENT OF FACTS: This lawsuit was initiated by the plaintiff who is a resident of 424 Pawnee Drive, Mechanicsburg, PA 17055, located in Cumberland County. This suit involves repairs to a 1997 Dodge Grand Caravan. The vehicle was serviced at Behney Motors, located in Dauphin County, Pennsylvania. This dealership is an independent franchise dealership with no corporate, financial management or employee tics to DaimlerChrysler Corporation. At issue in this case are repairs made to this vehicle by Behncy Motors in Dauphin County, Pennsylvania, allegedly under a warranty extended by DaimlerChrysler Corporation. DaimlerChrysler has no employees in Philadelphia County that arc familiar with thc facts of this case. Thc documentary evidence with regard to the service and repair of the vehicle is located in Dauphin County, which is adjacent to Cumberland Count, as are relevant wimesses. DaimlerChrysler Corporation does not maintain any documents, offices or employees in Philadelphia County. There is no relationship between the facts and allegations of this lawsuit and Philadelphia County. As set forth in Defendant's Petition and in the Affidavits of the witnesses, attached hereto as Exhibits "B", "C" and "D", arbitration and trial of this matter would be extremely inconvenient to the material witnesses and is vexatious and oppressive to defendant. II. LEGAL ARGUMENT: Although the right ora plaintiff to choose the forum in which he brings suit is accorded important consideration, it is not absolute. McRevnolds v. Benner Township, 118 Pa. Cmwlth. 215,544 A.2d 566, (1988); allocatur denied at 581 A.2d 575; See also Ernest v. Fox Pool Corp., 341 Pa. Super. 71,491 A.2d 154 (1985). In fact, the Pennsylvania Rules of Civil Procedure expressly permit a change in venue where venue is either technically improper in the county where suit is brought, or where it would be inconvenient to the parties, wimesses and the court to try the case in plaintiff's choice of forum. Specifically, Pennsylvania Rule of Civil Procedure 1006(d)(1) provides in pertinent part: "For the convenience of parties and witnesses, the court upon Petition of any party, may transfer an action to the appropriate court of any other county where the action could have originally been brought." Pa. R.C.P. 1006(d)(1). Therefore, under Pennsylvania Rule of Civil Procedure 1006(d)(1), venue may, out of convenience to the litigants, be changed to a court located in another county, where venue is also proper. The Superior Court has recognized that the doctrine of Forum Non Conveniens serves the essential purpose of"provid[ing] the court with a means of looking beyond technical considerations such as jurisdiction and venue to determine whether litigation in the plaintiff's chosen forum would serve the interest of justice under the particular cimumstances." Alfor~l v, Philadelphia Coca Cola Bottlin_~, 366 Pa. Super. 510, 513, 531 A.2d 792, 794 (1987). In fact, the doctrine of Forum Non Conveniens is necessary to counterbalance Pennsylvania's "liberalized venue rules" which enables a plaintiffto have a choice of more than one forum in which to bring suit. Vogel v. Nat'l R.R. Passenger Corn_., 370 Pa. Super. 315,536 A.2d 422, 425 (1988) (quoting Ernest v. Fox Pool Corn_ .. 341 Pa. Super. 71, 75,491 A.2d 154, 156 (1985)). Further, Pennsylvania Rule of Civil Procedure 1006(d)(1) gives trial courts wide discretion in deciding "whether to grant the petition for change of venue." Brown v. Delaware Valley Transplant P. rogra!n, 371 Pa. Super. 583,586, 538 A.2d 889, 891 (1988) (quoting ~ Power & Light Co., 315 Pa. Super. 79, 81,461 A.2d 805,806 (1983)); McReynolds v. Benner Township, 118 Pa. Commw. 215, 544 A.2d 566 (1988). The Pennsylvania Supreme Court recently addressed the issue of Forum Non Conveniens in the matter ofCheeseman v. Lethal Exterminator. Inc., 701 A.2d 156 (Pa. 1997). In Cheeseman, the Pennsylvania Supreme Court reiterated that the standard for a Petition to Transfer Venue based on the Doctrine of Forum Non Conveniens is that the instant forum is oppressive or vexatious. I~l, The Supreme Court then stated, however, that the defendant could meet this burden by showing that another county "would provide easier access to witnesses or other sources of proof." Id. at page 162. Following the Cheeseman guidelines, the Superior Court, in Dulaney v. Consolidated Rail Com. oration 715 A.2d 1217 (Pa. Super. 1998), recently granted a Petition to Transfer Venue from Philadelphia County to Allegheny County. The facts in Dulanvy showed that an accident occurred in Ohio, and the plaintiff, all the witnesses and all the medical providers were located in the border state of Ohio, West Virginia or Western Pennsylvania, however, the plaintiff filed suit in Philadelphia County. The court, citing Cheeseman, noted that a "petition to transfer venue will not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant" Dulaney at 1219 citing Cheeseman at 162. However, the Superior Court held as follows: In its petition to transfer venue, Conrail presented facts showing that the accident occurred in Ohio and that the appellant and all of the witnesses lived in Ohio, West Virginia or Western Pennsylvania. Additionally, all of appellant's medical providers were located in Ohio, West Virginia or Western Pennsylvania. The only connection to Philadelphia County is that Conrail conducts businesses in Philadelphia County... Thus the facts show that Conrail has demonstrated that a trial in appellant's chosen forum would have been oppressive and that tr/al in Allegheny County would be more convenient because of easier access to all of the witnesses and other sources of proof. Dulaney at 1219. The court concluded: "IT]he trial court did not abuse its discretion when it granted Conrail's petition to transfer venue based on forum non conveniens." Id. Likewise, in the instant case, trial in Philadelphia County would be oppressive and Cumberland County would be more convenient because of easier access to all the witnesses and all the sources of proof. Dulan~y at 1219. Just as in Dulaney, the only connection to Philadelphia County is that the defendant conducted some business in Philadelphia, albeit business that has nothing to do with the dispute in this case. As stated, the Delarley case is directly on point with the case at hand. As confirmed by the Affidavits in defendant's Petition, the plaintiff in the instant matter is located in Cumberland County. The dealership where the Pennsylvania repairs were performed together with all the relevant witnesses are located in Dauphin County which borders Cumberland County. To hold a trial in Philadelphia County would be vexatious and oppressive. A trial in Cumberland County however, would be more convehient because of easier access to all the witnesses and all the sources of proof. Any argument by the plaintiff that Philadelphia County is a more appropriate forum would contradict the validity of the transfer venue statute. If transfer is inappropriate, then essentially no case can qualify. All repairs in Pennsylvania were performed by the same dealership located in Dauphin County, which borders Cumberland County, where the plaintifflives. The service manager and technicians who performed the repairs to the vehicle are dealership employees. To require them to unnecessarily travel to Philadelphia for pretrial interviews and depositions as well as arbitration and trial would be oppressive and inconvenient. See, Affidavit of Mr. Behney and Mr. Fansacht, attached hereto as Exhibits "C" and "D". The dealership's documents are the primary documentary proof in warranty litigation such as this. These records and notes are not maintained, controlled or owned by DaimlerChrysler Corporation. See Affidavit of Mr. Zielke, attached as Exhibit "B". Requiring DaimlerChrysler to defend this case in Philadelphia would have an adverse impact on both DaimlerChrysler Corporation's operations as well as the operation of the selling and servicing dealerships. Requiring a Dauphin County dealership's service personnel to attend depositions, arbitrations and trial as well as to be interviewed by DaimlerChrysler's attorneys defending this case in Philadelphia would have an adverse effect on customers that rely on these technicians Behney Motors See Affidavits of Mr. Zielke, Mr. Behney and Mr. Fansacht, attached hereto as Exhibits "B", "C" and "D". In the recent Opinion of the Pennsylvania Superior Court in the case of~ Howie, 1997 W.L. 194455 (Pa. Super.), the Superior Court upheld the trial court's grant of a change of venue based on Forum Non Conveniens from Philadelphia County to Bucks County. The ~ case involved ~n accident that occurred in Bucks County, Pennsylvania. A review of the records informed the Superior Court that there were very few connections to Philadelphia County that justified the institution of the suit there. The Superior Court noted that the defendant, the operator of the hydraulic left on the day of the accident, as well as one of the eyewitnesses to the accident, were Philadelphia residents. In addition, the plaintiff received some medical care at a Philadelphia hospital. Further, some of the defendants regularly conducted business in Philadelphia. Despite this information, however, the Superior Court held that these factors were not compelling in light of the significant amount of connections that the case had with Bucks County. By contract, in the instant case, there are absolutely no connections whatsoever to Philadelphia County. Furthermore, in McRe.vnolds v. Benner Township, 118 Pa. Cmwlth. 215,454 A.2d 566 (1988); allocatur denied at 581 A.2d 575, the Commonwealth Court upheld a transfer from Philadelphia County to Center County. The McReynolds court concluded that the fact that "practically all the sources of proof are located in Center County" satisfy both the standard of oppressiveness and vexation that justified transfer, and the alternative standard of administrative and legal problems noted above. 544 A.2d at 567, 568. See also Fox v. Pennsylvania Power & Light Co., 315 Pa. Super. 79, 461 A.2d 805, 806 (1985) (only connection between case in Philadelphia County is location of one office of one defendant there, justifying transfer to Luzeme County.) It is clear from the records set forth above that the trial of the instant matter in Philadelphia County is both oppressive and vexatious to Petitioning Defendant. As established by the Affidavit of Matthew Zielke, this case is only one of several dozen being brought in Philadelphia County by plaintiffs law firm regarding allegations that have nothing to do with Philadelphia County and arise ahd exist in Cumberland and Dauphin County or other counties far removed from Philadelphia. The net result both individually and taken as a whole impacts negatively on defendant's corporate operations and its ability to defend individual lawsuits. DaimlerChrysler should not have to repeatedly chose between disrupting its operations or producing evidence and witnesses in Philadelphia that could be much more conveniently produced in the county where the incident in question occurred. Given the fact that this case is being pursued in Philadelphia at what must clearly be an inconvenience to this Cumberland County plaintiff the conclusion that the litigation is vexatious is clear. As stated by the Supreme Court of Pennsylvania in the Cheeseman decision, "...the defendant may meet its burden of showing that the plaintiffs choice of forum is vexatious to him by establishing facts on the record that the plaintiff's choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself." Cheeseman, supra, 701 A.2d at p. 162. For the plaintiff himself to travel many hours to pursue litigation in an unrelated county which is clearly burdensome to the defendant is a precise ground which the Supreme Court approved as a basis for transfer. The Supreme Court in Cheeseman also stated that "Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or the ability to conduct a view of the premises involved in the dispute. Cheeseman, Id. at p. 162. Based on the Affidavit of Matthew Zielke it is clear that trial in Philadelphia is not only inconvenient but it is ultimately oppressive to DaimlerChrysler's defense as well as its operations. To require witnesses, personnel and documents to be transported over many hours by car for depositions, arbitratidns, and/or trial is a clear burden which has become oppressive. To require dealership and DaimlerChrysler personnel to be away from their responsibilities for extended periods of time directly impacts on the ability of DaimlerChrysler and the dealership to sell, service and repair vehicles. While adjudicating one customer's complaint other customers unnecessarily go unattended. The easier access to witnesses and sources of proof that exist in Cumberland and Dauphin Counties as well as the ability to conduct a view/inspection of the vehicle in question clearly militates in favor of transfer of this matter to Cumberland County. In addition, the issue of convenience, as established in this case, is the second alternative ground set forth by the Supreme Court in Cheeseman as justification for transfer. Pursuant to the standard set forth by the Pennsylvania Supreme Court in Cheeseman, Petitioning Defendant has established that the trial of this matter in Cumberland County would provide easier access to sources of proof and witnesses. Moreover, Philadelphia County has no relevant connections to the resolution in the instant matter. WHEREFORE, Petitioning Defendant, DaimlerChrysler Corporation, respectfully requests this Honorable Court to enter an Order in the form attached hereto and transfer this matter to the Court of Common Pleas for Cumberland County. MARSHALL, ~} COL~M BY: NEHEY, WARNER, AND GOGGIN ~ttomey for Defendant, DaimlerChrysler Corporation MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esqt]ire Attorney I.D: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK Vo DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 CERTIFICATE OF SERVICE I, JAMES W. STEVENS, ESQUIRE, hereby certify that I am attorney for the defendant, DaimlerChrysler Corporation, in the within action; that I am duly authorized to make this certification; and that on the 21st day of December, 1999, I did cause a tree and correct copy of Petition of Defendant, DaimlerChrysler Corporation, to Transfer Venue Pursuant to Pa. R.C.P. 1006(d)(1) to be forwarded by first-class U.S. Mail to counsel, addressed as follows: Craig Thor Kimmel, Esquire KIMMEL & SILVERMAN, P.C. 30 E. Butler Pike Ambler, PA 19002 MARSHALL, D~ COLE BY: iNEHEY, WARNER, AND GOGGIN J ES w. /~ttomey fo: "'Defendant, ~ ~aimlerChrysler Corporation .' Cogrt of Common Pleas of Philadelphia C6unty .,~ '~ ~,/" -~--~":~,v,~,~vu..o~(o,~."~o Division Civil Cover Sheet O020 B Christopher Cook ~ DaimlerChrysler Corporatiou 424 Payee Drive 1635 Market Street Mechanicsburg, PA 17055 Philadelphia, PA 19103 Delan~e Cook 424 Payee Drive Mechanicsburg, PA 19103 tMOUNT IN CONTRO~RSY ~ 2. WdtofSu~s ~ ?. NonJ~ &~ui* ~ 12. ~no~m~nt ~ ~. Sf0,~.~orl~s ~ 32. ~tof~a~sh~g~ ~ 3. N~e, oeA~I ~s. Cl~Acfi~ ~ 13. ~ ~l. M~$50,~.00 ~ 3~. ~,ntof~ag~h~ngnot~uk~ ~ 4. P~itionA~ion ~9. Sa~n~A~ ~ 14. ~ ~. ~on ~ in ~iladd~ ~n~ ~ ~. ~1 ~f~ m ~i~n~ of(or haw offi~ in) Philaddphia ~ 41. ~ did not ~ in ~l~dphia Co~ ~ 51. ~ ~ f~ M~t ~ a r~id~t of {or ~ offi ~ in) ~iladd~ia (~tat~ ~a~on for filing action ~n Phll~el~hla County below ~n ~60) ~ ~2. ~1 d~n~ r*~l~17 eondu~ bmin~ in ~lad~lphia ~ 42. T~c~on ~ ~c~n~ ~ng ~e m a~on ~ in P~la&lphia ~ ~ 53, ~n &f~t ~l~ly c~du~s busin~ ~ ~il~el~ia C~ (see l~ction ~ 43. T~6on ~ ~cu~ce ~ng ~ to a~on did not ~ ~ ~iladelphia CounU ~ Deform ~ve in) P~ladelp~a Coun~ (de~c~be t~action or oc~r~nce below in ~60) (ztate below in ~60 ~mon for fiHng action in Pbil~elphia Co~) ~. Main defendant regularly conducts business in Philadelphia County 20000 Contract Craig Thor K~mmel, Esquire .Ki~el & Silve~an, P.C. 'HONENUMSER SUPREMEGOURTIOENTIFICAT~ONNO. 30 East Butler Pike 215-540-8888 ~ ~ 57100 ~bler, PA 19002 For o~al u "~ ~ 001 ~t~d ~ 1010'"~:~,~On~' .~" ~ '110i ~bi~tionH~ng ' ~ 1102 ~e~niCo~emn~ }?}( ~ :i014.M~To~ 3.~,~.;~.::. ;~';~.1601M~etS~t ' _ . Date: ~ 2n~Fl~r T~ : '- - ', 6;" .,;~i3i~t~,d-v~ t~ 1015 O~er ~ .... ' ' ' ' ' ': ~''; "::'~"'~: "~' ' "'m~"' . (' Phil~elphi~PA 19103 ' Pinch' 0%101 (Rev. 9~4) Craig Thor E4 mine1, Esquire Identification No. 57100 KIMMEr. & sIr.VERMAN, P.C. 30 East Butler Pike ~ler, P~--s¥1v~-ia ~19002 (215) 540-8888 Attorney for Plaintlff '£~S IS AN AEBITI~ATION MAr£~R. ASSESSMENT OF DAMAGES HK~I~ING IS ~KISTOPHK~ COOK mhd DELANIE COOK 424 Pawnee Drive Mech-~esburg, PA 17055 Ve D~TMLER~u~YSLEI~CORPORATi c/o CT Corporation 1635 Market Street Philadelphla, PA 19103 FN£ PENN CE~TER P~, ~IUE:~ JUN 1~ 2000 :ON Y~ MUST S~'~ L ~ 0;.-,,' J ~ THE NO~E O~LOW. USTED T~'~ D ~E CUMPUR ~ELAV(SO P~ D~NDERSE ~OURT OF COMMON PLEAS ~HI~ADELPHIACOURTY ~IVIL ACTION TE~M, 1999 OCTOBER 1999 NOTIC~ TO DEFileD CODE: 1900 OOZ01 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 you 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 '£~S PAPER TO YOUR LA~x~ AT ONCE. IF YOU DO NOT HAVE A LA~x~*c OR CANNOT AFFORD ONE, ~0 TO OR T~r.~PHONE -rz~m OFFIC~ SET FORTH BELON TO FIleD OOT )jH~cff..l~ YOU CAN ~.~"J.' T.~AL ~ ......... ~LAD~L~L~ BA~ ASSOC~ATZON M. C0~M~MA T~S ~^T~'.z~"~t ~m^u~ ~¥ A aO.,.o ~'~j~~~ ............. PRO. PROTMY AT ~ T~.~?, DATE AUD. ~A~ ~ ~=.~ ~ u . ......... --'~'" ONE READII~ MORB PART;BS ~$ NO'f l'R E S~Nq' AT I]{"2 H~;.%.'lt,~u, I ~,B ~,,A ~ t ~.. ZgX0V 0CT 1 8 1999 JU~B OF Th~ COURT ~'HO~ 1~ A~S~ PARTY O~ -z'~,,~HO~: 215-238-1701 ~0~ ~ ~c~s~0~ ~ ~ ~ m~= ~so A~ Le han demandado a usted en la corte. Si usted quiere defenderse de estas de estas demandas ex~uestas an las paginas signientes, usted tiene veinte (20) dias de plazo al partir de ia fecha de la demanda y ia notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, le corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notiflcaclon. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes para usted. T.~.U%'E ESTA DU~a~NDA A U~ ABO~ADO ~N~U~AT/~f~'~'~, SI NO TIENE ABOC~ADO O SI NO TI~N~ ~L D~-[~J~J~O SU~ICI~1/'1~ DE PA~AR TAL SERVICIO. VAYA EN PERSO~ O T.?.m~ POR TELEFONO A LA OFICII~ =uxA DII~ECCION SE EN~u~z~x~A ESC~ITA ABAJO PA~A DONDE SE PU~E CONSF~u~I~ ASIS'&'~z~CIA LEGAL. SE~V~CIO DE Nu~m~NCL~LEGAL FILADELF~A, PA 19107 T~EFONO: 215-238-1701 CraigThor E4~.,el, Esquire Identification No. 57100 KIMMEL & SILVEI~MAN, P.C. 30 East Butler P~ke ' ~m~ler, P~--sylv~-~a 19002 (215) 540-8888 Attorney for Plaintiffs '£~S IS AN ARBI'~'~ATION MA'r~-~R. ASSESSmenT OF DAMAGES HK~ING IS REQU~S'~'~U. ~u~ISTOP~R COOK and DELANIE COOK 424 Pawnee Drive Mec~[csburg, PA 17055 Ve DAIMLERtu~K~SLER CORPORATION c/o CT Corporation 1635 Market Street Philadelphia, PA 19103 COURT OF COMMON PLEAS PHI~ADELPHIACOUNTY CIVIL ACTION TEI~M, 1999 NO. COMPLAINT CODE: 1900 1. Plaintiffs, Christopher Cook and Delanie Cook, are adult individual citizens and legal residents of the Commonwealth of Pennsylvania, residing at 424 Pawnee Drive, Mechanicsburg, Pennsylvania 17055. 2. Defendant, DaimlerChrysler Corporation, is a business corporation qualified to do business and regularly conducts business in the Commonwealth of Pennsylvania, and is a corporation of the State of Delaware, with its legal residence and principal place of business located at 12000 Chrysler Drive, Highland Park, Michigan 48288-1919, and can be served c/o CT Corporation, 1635 Market Street, Philadelphia, Pennsylvania 19103. BAc~ROUND 3. On or abo~t October 29, 1998, Plaintiffs purchased a 1997 Dodge Grand Caravan, manufactured and warranted by Defendant, bearing the Vehicle Identification Number 1B4GP44RXVB438978. The vehicle was purchased in the Commonwealth of Pennsylvania and is registered in the Co=~,onwealth of Pennsylvania. 4. The price of the vehicle, including registration charges, document fees, sales tax, finance and bank charges but, excludinq other collateral charges not specified yet defined by the Lemon Law, totaled more than $24,547.20. A true and correct copy of the Contract is attached hereto, made a part hereof and marked Exhibit "A". 5. Plaintiffs aver that as a result of the ineffective repair attempts made by Defendant through its authorized dealer(s), the vehicle cannot be utilized for the purposes intended by Plaintiffs at the time of acquisition and as such, the vehicle is worthless. 6. In consideration for the purchase of the above vehicle, Defendant issued to Plaintiffs several written warranties, including a three (3) year or thirty-six-thousand (36,000) mile bumper-to-bumper, as well as other standard warranties fully outlined in the warranty booklet. COURT I PENNSYLVANIA Au'A~MOBILE LEMON LAW 7. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. Se §1952. 9. §1952. Plaintiffs, are "Purchasers" as defined by 73 P.S. Defendant is a "Manufacturer" as defined by 73 P.S. 13. provides: If a manufacturer fails to repair or correct a nonconfo&~ity after a reasonable number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle.., or accept return of the vehicle from the purchaser, and refund to the purchaser the full purchase price, including all collateral charges, less a reasonable allowance for the purchasers use of the vehicle, not exceeding $.10 per mile driven or 10% of the purchase price of the vehicle, whichever is less. 14. Section 1956 of the Pennsylvania Automobile L~mon Law provides a presumption of a reasonable number of repair attempts if: (1) The same nonconformity has been subject to repair three times by the manufacturer, its agents or authorized dealers and the nonconformity still exist(s); or 10. Behney Motors, is and/or was at the time of sale a Motor Vehicle Dealer in the business of buying, selling, and/or exchanging vehicles as defined by 73 P.S. §1952. 11. On or about October 29, 1998, Plaintiffs took possession of the above mentioned vehicle and experienced nonconfozaLities as defined by 73 P.S §1951 et seq., which s,,hstantially impair the use, value and/or safety of the vehicle. 12. The nonconfoxa,ities described violate the express written warranties issued to Plaintiffs by Defendant. Section 1955 of the Pennsylvania Automobile Lemon Law (2) The vehicle is out-of-service by reason of any nonconfo~Lity for a cumulative total of thirty ~r more calendar days. 15. Plaintiffs have satisfied the aboVe definition as the vehicle has been subject to repair more than three (3) times for the same nonconformity, and the nonconfo~Lity remains uncorrected. 16. In addition, the above vehicle has or will be out-of- service by reason of the nonconformities complained of for a cumulative total of thirty (30) or more calendar days. 17. Plaintiffs have delivered the nonconforming vehicle to an authorized service and repair facility of the manufacturer on numerous occasions. After a reasonable number of attempts, the manufacturer was unable to repair the nonconformities. 18. During the first 12 months and/or 12,000 miles, Plaintiffs complained about defects and/or nonconformities on at least three occasions to the following vehicle components= noisy belts~ headliner hanging down~ and a dead battery. Plaintiffs are not in possession of this info~=~ation, however it can be obtained from Defendant's authorized dealership. 19. The vehicle continues to exhibit defects and nonconfo~=,ities which substantially impair its use, value and/or safety as provided in 73 P.S. §1951 et seq. 20. Plaintiffs aver the vehicle has been subject to additional repair attempts for defects and/or nonconformities and/or conditions for which the dealer did not maintain records. 21. Plaintiffs have been and will continue to be financially damaged due to Defendant's intentional, reckless, wanton and negligent failure to comply with the provisions of 73 P.S. §1951 et s~q. ~ 22. Pursuant to 73 Pa. P.S. §1958, Plaintiffs seek relief for losses due to the nonconformities and defects in the above- mentioned vehicle in addition to attorney fees and all court costs. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT II MASSON-MOSS ~K,]~.L.~.AL '£KADE COMMISSION IMPROVEmenT ACT 23. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 24. Plaintiffs are "Consumers" as defined by 15 U.S.C. ~2301(3). 25. Defendant is a "Warrantor" as defined by 15 U.S.C. §2301(5). 26. The purpose for which this product is normally used is personal, family, and household use. 27. By the te~,~s of the express written warranties referred to in this Complaint, Defendant agreed to perfo~,L effective warranty repairs at no charge for parts and/or labor. 28. Defendant has made attempts on several occasions to comply with the te~s of its warranties; however, such repair attempts have been ineffective. 29. As a direct and proximate result of Defendant's failure to comply with the e~press written warranties, Plaintiffs have suffered damages and, in accordance with 15 U.S.C. §2310(d) (1), Plaintiffs are entitled to bring suit for such damages and other legal and equitable relief. 30. Section 15 U.S.C. §2310(d) (1) provides= If a consumer finally prevails on an action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the amount of aggregate ~mount of costs and expenses (including attorney fees based upon actual time expended), determined by the court to have been reasonably incurred by the Plaintiff for, or in connection with the commencement and prosecution of such action, unless the court, in its discretion shall determine that such an award of attorney's fees would be inappropriate. 31. Plaintiffs aver Defendant does not have a DiSpute Resolution Program which is in compliance with 16 CFR 703. 32. Plaintiffs aver that upon successfully prevailing upon the Magnuson-Moss claim herein, all attorney fees are recoverable and are demanded against Defendant. WHEREFORE, Plaintiffs respectfully demand jud~,~ent against Defendant in an ~mount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT III UNIFOI~M COMMERCIAL CODE 33. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 34. The defects and nonconformities existing within the vehicle constitute a.breach of contractual and statutory obligations of Defendant, including but not limited to the following: a. b. C. Express Warranty; Implled Warranty Of Merchantability; and Implied Warranty Of Fitness For A Particular Purpose. 35. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Plaintiffs have justifiably relied upon Defendant's express warranties and implied warranties of fitness for a particular purpose and implied warranties of merchantability. 36. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Defendant was aware Plaintiffs were relying upon Defendant's express and implied warranties, obligations, and representations with regard to the s11~ject vehicle. 37. Plaintiffs have incurred damages as a direct and proximate result of the breach and failure of Defendant to honor its express and implied warranties. 38. Such damages include, but are not limited to, the contract price of the vehicle plus all collateral charges, including attorney fees and costs, as well as other expenses, the full extent of which are not yet known. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant, in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT IV PENNSYLVANIA UNFAIR ,TRADE PRACTICES AND CONSUMER PROTECTION LAW 39. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as, if fully set forth at length herein. 2(2). 2(2). 40. Plaintiffs are "People" as defined by 73 P.S. §201- 41. Defendant is a "Person" as defined by 73 P.S. §201- the following: (vii). Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (xiv). Failing to comply with the te~s of any written ~uarantee or warranty given to the buyer at, prior to, or after a contract for the purchase of goods or services is made; (xv). Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed; (xvi). Making repairs, improvements or replacements on tangible, real or personal property of a nature or quality inferior to or below the standard of that agreed to in writing; or deceptive acts or practices" to include, but not limited to, 42. Section 1961 of the Pennsylvania Automobile Lemon Law, provides that a violation of its provisions is also a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. 201-1 et seq. 43. In addition, the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. §201-2(4), defines "unfair (xvii) (xxi). Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 44. Plaintiffs believe, and therefore aver, that Defendant's conduct falls within the aforementioned definition of "unfair or deceptive acts or practices." Furthe~aLore, Defendant's actions constitute otherwise reckless, wanton, or willful conduct which is prohibited by the Statute. 45. Section 201-9.2(a) of the Statute provides for private causes of action for any person "who purchases or leases goods or services primarily for personal, family household purposes." The Statute authorizes the Court, in its discretion, to award up to three (3) times the actual damages sustained for violations. 46. Section 201-3.1 of the Act provides that the automotive industrY trade practice rules and regulations adopted by the Attorney General for the enforcement of this Act are declared unlawful. 47. Plaintiffs believe and therefore aver that Defendant's conduct in the sale and servicing of the vehicle violate said rules and regulations. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount not in excess of Fifty Thousand Dollars ($50,000.00), together with all collateral charges, ~orney fees,' and costs of suit. By: ' / /7 CRAIG THO~EL, ESQUIRE Attorneys for~Plaintiff 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 VERIFICATION I, Craig Thor Kimmel, being duly sworn according tio law, depose and say that I am the attorney for the plaintifE, in this action and that the facts set forth in the foregoing Complaint are true and Correct to the best of my knowledge, information, and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa..C.S. §4904 relating to unsworn falsification to authorities/ Craig T~immel, Esquire Attorne~.f~r-Plainti~fsl PURCHASER'S NAME BEHNEY MOTORS 300 F,.. Emaus'St. Telephone 944-7415 MIDDLETOWN, PENNSYLVANIA 17057 =LEASE ENTER MY ORDER FOR ONE~ ~NEW [] USED [] DEMO AS FOLLO~ Post-i~ F~ Note ~ ~ '. TOTAL DESCRIP~N ~DE-IN Al I ~ADDA~ I~ AMV fly A UANII~A~R~R OR ~UPP~[R O~[fl ~AN D~ AR~ ~[IRS. NOT D~CER' MANUFACTURER OR OTHER SUPPUER 'SHALL BE UABLE FOR PERFORMANCE UNDER SUCtl WARRANTIES. UNLESS DEALER FURNIS BUYER WITH A SEPARATE WRi i i ,-N WARRANTY OR SERVICE CONTRACT MADE BY DEALER ON ITS OWN BEHALF, DEALER HEREBY DISCL~ ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPUED WARRANTIES OF MERCHANTABILITY OR i-fi NESS FOR A PARTICU PURPOSE: (A) ON ALL GOODS AND SERVICES SOLD BY DEALER, AND (B) ON ALL USED VEHICLES WHICH ARE HEREBY SOLD "AS IS-- EXPRESSLY WARRANTED OR GUARANTEED". IF THIS AGREEMENT IS FOR A USED VEHICLE, THE INFORMATION YOU SEE ON THE (FEDERAl. TRADE COMMISSION) WINDOW FORM IS PART OF THIS AGREE~ INFORMATION ON TI'IN WINDOW FORM OVERRIOES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE. The front and back of this Order comprise the entire agreement affecting this purchase and no other agreement or understanding of any nature concerning sam, been made or entered Into, or will be recognized. I hereby certify that no credit has be~n extend~itto me for the purchase of this motor v.~t~cle except as appe~ willing on the face of this agreemeflC I have read the matter printed on the back hereof and ag~ to It as a part of this order~the ~ame~p4~lf/It were printed abov algceture. I certity that I am of legal age, and hereby acknowledge receipt of a nopy of thls order. .. THIS ORDER IS NOT VAUO UNLESS SIGNEO A= ...... TiFF,S =~. : BY DEALER OR HIS. AUTI~ORIZE. D REPRE~ ~L.~IPl ~,f.,,~_ ~ ..... / /'~/~' - /'~'//' '--: -. : , , ~-~ ,, ./~ // m ' ~vu~,-,lT. ' rp-/.~_..--/Y i. \01_21XLIAB\DSJ~LLPG\188486\DSJ~03043\00846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney I.D: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 AFFIDAVIT OF MATTHEW ZIELKE Affiant, being duly sworn, hereby deposes and states: 1. I am presently employed by DaimlerChrysler Motors Corporation. I have been employed with DaimlerChrysler Motors Corporation, since April 1, 1957. This position has included customer relations, warranty administration, and assistance with litigation initiated against DaimlerChrysler Motors Corporation in eastern Pennsylvania. 2. My employment with DaimlerChrysler Corporation began with its Service Division as a technical correspondent in Detroit, Michigan responding to technical inquiries from service personnel in the field. This position lasted until February, 1961. 3. From March, 1961 until July, 1985, I was employed by DaimlerChrysler Corporation in various capacities, including positions as a Service Development Manager, Warranty Administration Manager, Customer Relations Manager, and as a Service and Parts District Manager. My job responsibilities included owner relations, customer satisfaction, warranty administration, technical assistance, parts, sales and dealership development. 4. From July, 1985 until the present, I have been employed with DaimlerChrysler Corporation as its arbitrl~tion n~anager for DaimlerChrysler Corporation's Philadelphia regional zone headquartered in Malvern, PA. This position has included customer relations, warranty administration, and assistance with litigation initiated against DaimlerChrysler Corporation in eastern Pennsylvania. 5. DaimlerChrysler Corporation operations in Pennsylvania are broken up into two zones or districts. 6. DaimlerChrysler Corporation's activities, in the eastern half of Pennsylvania, are administered at Da'nnlerChrysler Corporation's Zone Office in Malvem, PA. DaimlerChrysler Corporation does not maintain any business offices, employees or records in Philadelphia County. 7. DalmlerChrysler Corporation has district managers who call on individual dealership. These district managers operate in a small district in the vicinity of the selling and the servicing dealerships to which they call. To require DaimlerChrysler Corporation's district managers to travel outside of their areas of responsibility to Philadelphia County to testify in cases would effect their ability to perform their duties which include monitoring and assisting individual servicing dealerships with the sale and servicing of vehicles. 8. These district managers are important witnesses because they have been directly involved with the repairing of the Dauphin County dealer and they would have been responsible for informally overseeing and adjudicating the customer's complaint up to the point of litigation. 9. In this case all repairs in Pennsylvania were performed by an independently owned and operated f~anchise dealership located Dauphin County which borders Cumberland where the plaintiff lives. The technicians who perforated the repairs are dealership employees. 10. Repair records in Pennsylvania involving the vehicle in this lawsuit, repair orders and technician notes regarding repair procedures are generated, maintained and owned by the individual servicing dealership located in Dauphin County. This dealership's documents are the primary documentary proof in warranty litigation such as this. These records and notes are not maintained, controlled or owned by DaimlerChrysler Corporation. 11. The employees that serviced and repaired the vehicle in question in Pennsylvania are not DaimlerChrysler Corporation employees, but are employees of the individual dealership located in Dauphin County which is an independent business fixm that hires and manages its own personnel. DaimlerChrysler Corporation has no control over the dealership employees. 12. In this case all of the documentary evidence mentioned above and dealership employees are located at the dealership in Dauphin County, PA. 13. Requiring DaimlerChrysler Corporation to defend this case in Philadelphia would have an adverse impact on both DaimlerChrysler Corporation's operations as well as the operation of the selling and servicing dealerships. 14. Requiring a Dauphin County dealership's service personnel to attend depositions, arbitrations and trial as well as to be interviewed by DaimlerChrysler Corporation's attorneys defending this case in Philadelphia would have an adverse effect on customers that rely on the technicians at the dealerships that service their vehicles in Dauphin County. 15. Technicians are paid on a flat hourly rate. Absence from work equates to lost wages. Both the dealer's gross profits and the livelihood of the employees would be effected, which would ultimately effect and disrupt DaimlerChrysler Corporation's operations. 16. Specifically, with regard to service, dealerships are carefully staffed with the number of technicians necessary to handle the calculated service and repair requirements of the dealership. To remove technicians from the work site for any substantial length of time will directly affect the servme reqmrements of the dealership. In addition, frequently only one or two technicians in the service department will have certain skills such as the ability to rebuild transmissions or engines. To remove such a technician to testify in litigation many hours away will significantly impact the ability of the dealership to perform these types of repairs for DaimlerChrysler Corporation on a timely basis. 17. Based on DaimlerChrysler Corporation records and my personal knowledge, plaintiff's counsel's office, located in Montgomery County, has initiated dozens of warranty lawsuit against DaimlerChrysler Corporation in Philadelphia County that have no relationship to any event which occurred in Philadelphia County. 18. Requiring dealership and DaimlerChrysler Corporation personnel to travel to Philadelphia County from significant distances to testify has proven disruptive to DaimlerChrysler Corporation's operations in this Commonwealth. 19. If this litigation is transferred to the county in which the plaintiff is located, it is less likely that attendance at interviews, depositions, arbitration or trial by dealership service personnel or DaimlerChrysler Corporation's district managers or other employees will be as disruptive. 20. Based on my involvement in many lawsuits over the years which have been initiated against DaimlerChrysler Corporation, I am aware of no substantive reason why warranty litigation similar to this lawsuit could not successfully and much more appropriately be handled, by all parties, in the county closet to where the dealership, the records and service personnel are maintainetl and ~here the plaintiff resides. SWORN AND SUBSCRIBED BEFORE ME THIS /.5' DAY OF ra~:~e ~- , 1999. NOTARY PUBLIC ' My Commission Expi,res: Notarial Seal Bonnie M. Seymour, Notary Public East WhttelandTwp., Chester County My Commission Expires Dec. 11, 2003 ~[eraber, Penr~yivania Association o! Notaries \01__21 ~LIAB~DSJ~LLPG\188486~DS~03043~1~0846 MARSHALL, DENNEHEY,'WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney I.D: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK Vo DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 AFFIDAVIT OF CHARLES BEHNEY Affiant, being duly sworn, hereby deposes and states: 1. My name is Charles Behney and I am the service manager at Behney Motors, 300 E. Emaus Street, Middletown, PA 7057, located in Dauphin County which borders Cumberland County where the plaintiff lives. 2. This dealership serviced a 1997 Dodge Grand Caravan, with the X)ehicle Identification Number 1B4GP44RXVB438978 to the Cooks. 3. I have been involved with the repairs to this vehicle at Behney MOtors 4. My involvement with the Cooks and the vehicle has included the supervision of repairs to the vehicle. 5. I understand the Cooks have filed a lawsuit claiming violations under the Pennsylvania Lemon Law, breach of warranty and Unfair Trade Practices and Consumer Protection Law in Philadelphia, PA. 6. I am a witness with regard to the repairs to the vehicle. However, it would be extremely inconvenient for me to have to appear in Philadelphia County for depositions or court appearances. 7. In addition, service technicians under my supervision have performed repairs to the Cooks vehicle and they are witnesses to the service that has been performed. To require these technicians to travel to Philadelphia to testify would be extremely inconvenient and detrimental to the operations of my service department. The service department is carefully staffed with a number of technicians necessary to handle the service and repair requirements of the dealership. To remove these technicians to testify in a lawsuit many hours away would be a significant inconvenience and would result in other customers' service requirements being delayed. In addition, our service technicians are paid on a flat hourly rate. In absence from work would mean lost wages to them. 8. As service manager at Behney Motors, I supervise all of the service technicians. These employees depend on decisions by me on a constant basis with regard to customer concems and repairs to DaimlerChrysler vehicles. My absence for any extended period of time would be detrimental to other customer needs, the service operation at Behney Motors and would be extremely inconvenient for me. 9. I am requesting that this Court consider the inconvenience of requiring my attendance in Philadelphia as a result of this lawsuit. 10. I live and work in the vicinity of Dauphin County and it would be much more convenient for me to attend a deposition, arbitration or trial in the Cumberland County vicinity. 11. To my knowledge the Cooks live in Cumberland County and his vehicle has been driven and serviced in this and the Dauphin County area. I believe it would be convenient for \01 __21XLiAB\DS J~LLPG\188486\DS J~03043\00846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney I.D: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attorney for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK Vo DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 AFFIDAVIT OF MARK FANSACHT Affiant, being duly sworn, hereby deposes and states: 1. My name is Mark Fansacht and I am a service technician at Behney Motors, 300 E. Emaus Street, Middletown, PA 7057, located in Dauphin County which borders Cumberland County where the plaintiff lives. 2. I have been involved with the repairs to a 1997 Dodge Grand Caravan with a Vehicle Identification Number 1B4GP44RXVB438978 at Behney Motors, owned by the Cooks, and am familiar with the complaints made by them. 3. My involvement with the Cooks and the vehicle has included the repairs to the vehicle. 4. I understand the Cooks have filed a lawsuit claiming violations of the Pennsylvania Lemon Law, breach of warranty and Unfair Trade Practices and Consumer Protection Law, in Philadelphia, PA. 5. I am a witness with regard to the repairs I have perfmmed. However, it would be extremely inconvenient for me to have to appear in Philadelphia County for depositions or court ,PHIA COURT OF COMMON PLEAS 'ION COURT COVER SHEET Christopher Cook VS. DaimlerChrysler Corporation DEC 0 October Term, 1999 No. 2018 Name of Filing Party: DaimlerChrysler Corporation DEFENDANT (check one) [] Plaintiff X Defendant (check one) [] Movant Respondent Type of Motion: Response due: OR Response to: PefitiontoTrans~rVenuefor Forum NonConveniens Has another motion been decided in this case? [] Yes X No ff yes, identify the Judge: Is another motion penclin4? [] Yes [] No If yes, identify motion and Judge: CASE STATUS (answer all questions) I. Is this case: A. DAY BACKWARD (Jury cases only) Name of Judicial Team Leader: Date of: [] Settlement Conference [] Trial Date [] Other B. DAY FORWARD (Jury Demand & Fee Paid) Name of Judicial Team Leader: Applicable Motion Deadline: Has deadline been previously extended by the Court?. [] Yes [] No C. NON JURY Date Listed: D. ARBITRATION Arbitration Date: 6/14/00 E. ARBITRATION APPEAL Listed on: F. OTHER: Date Listed?} I[~erify the an~er~ abOVimposed f9(r ina~_u_u~2 ibe~true and correCamwers ~d understand sanc~ons may James W. Stevens, Esquire 40534 OTHER PARTIES (Name, address and telephone nmber of all counsel of record and unrepresented parties. Attach a stamped addressed envelope for each attorney of record and Unrepresented party.) ~ James W. Stevens, Esquire Marshall, Dennehey 1845 Walnut St., 21~ H. Phila., PA 19103 215-575-2684 Craig Thor Kimmel, Esquire Kimmel & Silverman, P.C. 30 E. Butler Pike Ambler, PA 19002 215-540-8888 I certify that all parties listed above will receive a copy of this Motion/ Petition immediately upon filing. (Print Name) (Attorney LD. No.) If needed, use separate sheet to answer This Motion will be forwarded to the Court after the Response Date. No extension of the Response Date will be granted even if the parties so stipulate. PHILADELPHIA COURT OF COMMON PLEAS.P^ MOTION COURT COVER SHEET \\\v\ \V' 9 ZOO0 Christopher Cook and Delanie Cook VS. DaimlecChrysler Corporation October 2018 No. Nqme of Fillng Party: Plaintiffs (Checkonf) · Plaintiff [] Defendant (¢hf¢kone) [] Movant ~ l~spondemt Type of Moiion: Response duc: OR Response to: Defendant's Petition to TransfE V~II~I¢ CASE STATUS (answer all questions) A. DAY BACKWARD (Jur~ caf~ only) Name of Judicial Team Date of: [] Settlement Conference [] Trial Date [] Other B. DAY FORWARD f. luo, Dna, and & Fnn Paid) Nme of Judicial Team Applicable Motion Deadline: Has al·saline been previously extended by thc Court?. []Yes []No C. NON JuKY Date Listed: D. ARBi'i'I~.TION June 14, 2000 Arbitration Date: E. ARBITRATION APPEAL · Listed on: F. OTHIR: Date Listed: ~ Glenn I. Gerber 57898 (P~ Na~,~) (.~.ornO, ID. No,) Has aaother motion been decided bt this case? [] Yes If yes, identify thc Judge: Is another motion pendln.a_? [] Yes · No fly·s, identify motion and Judge: ·No II. OTHER PARTrlr~S CNsmo, ·ddress and folephoffe nUA~f~r of ~ counsel of r~cord ~d mproson~d pmies. Aflacb a ~mpod ad~ssod envelope for ~aoh afio~oy of record ~d u~epresented p~y.) James W. Stevens, Esquire Marshall, Dennehey, et ~1. 1845 Walnut Street., 21s: Floor Phila., PA 19103 215-575-2684 Glenn I. Gerber, Esquire Kimmel & Silverman, P.C. 30 East Butler Pike Ambler, PA 19002 215-540-8888 I certi~ that all parties listed ·bovn will receive · copy of this Motion/ Petition immndiatoly upon filing. This Motion will be forwarded to the Court after the Response Date. No extension of the Response Date will be granted even if the parties so stipulate. Glenn Gerber, Esquire Identification No. 57898 KIMMEL & SILVERMAN~ P.C. 30 East~Butler Pike Ambler, PA 19002 (215) 540-8888 Attorney for Plaintiff CHRISTOPHER AND DELANIE COOK V. DAIMLERCHRYSLER CORPORATION ORDER COURT OF COMMON PLEAS PHILADELPHIA COUNTY CIVIL ACTION OCTOBER TERM, 1999 NO. 2018 AND NOW, this day of , 2000, upon consideration of Defendant's petition to Transfer of Venue, and Plaintiffs' Opposition thereto, it is hereby ORDERED and DECREED that said Petition is Denied. BY THE COURT: Jo Glenn Gerber, Esquire Identification No. 57898 KIMMEL & SILVERMAN; P.C. 30 East~Butler Pike Ambler, PA 19002 (215) 540-8888 Attorney for Plaintiff CHRISTOPHER AND DELANIE COOK V. DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY CIVIL ACTION OCTOBER TERM, 1999 NO. 2018 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO TRANSFER VENUE Plaintiffs, Christopher and Delanie Cook, by and through their attorneys, Kimmel & Silverman, P.C., hereby oppose Defendant Chrysler's Petition to Transfer Venue to Cumberland County, Pennsylvania, and in support thereof, avers as follows: 1. Admitted. By way of further answer, it should be noted that Defendant Chrysler Corporation filed an Answer and New Matter to Plaintiffs' Complaint but did not raise improper venue as a preliminary objection as required by Pa.R.Civ. Proc. 1006(e). Therefore, defendant has waived its right to assert improper venue. (A copy of Plaintiffs' Complaint is attached and marked as Exhibit "A" and a copy of Defendants' Answer is attached and marked'~s Exhibit "B".) 2~ Admitted., 3. Denied. This is a legal conclusion requiring no response. By way of further response, defendant has authorized dealerships in Philadelphia County, advertises extensively in Philadelphia county and therefore there are facts connected to Philadelphia County. 4. Denied. This is a legal conclusion requiring no response. By .way 'of further response, Defendant has failed to demonstrate any facts which show that Plaintiffs' chosen forum is oppressive or vexatious to the defendant, which is required by Cheeseman v. Lethel Exterminator, Inc. et al., 701 A.2d 156 (Pa. 1997). 5. Denied. Cases which are based on breach of warranty theories may be proven by the testimony of the Plaintiff and the documented service history of the subject vehicle. Plaintiff need not (and routinely do not) subpoena any service technicians for attendance at the arbitration or trial of these matters. 6. Denied. This is a legal conclusion requiring no response. 7. Denied. Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. 12. Denied. Cases which are based on breach of warranty theories may be proven by testimony of the Plaintiff and the documented service' history of the subject vehicle. Plaintiff~ need not (and routinely do not) subpoena any service technicians for attendance at the arbitration or trial of this matter. By way of further response, in the past five years of dealing with Chrysler they have rarely if ever had the service manager, body shop manager and/or technicians testify as witnesses. 13. Denied. the service invoices are records also held by Chrysler CorporatiOn. 14. Denied. Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment. By way of further response, Behney Motors acts as defendant's authorized repair facilities. 15. Denied. Plaintiffs are without knowledge or information sufficient to form a belief as to the truth of this averment. 16. Denied. This is a legal conclusion requiring no response. By way of further response, defendant has failed to demonstrate any facts which show that plaintiffs chosen forum is oppressive or vexatious to the defendant. 17. Denied. 18. Denied. This is a legal conclusion requiring no response. By way of further response, defendant has failed to demonstrate any facts which show that plaintiff's chosen forum is oppressive or vexatious to the defendant. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendant's Petition to Transfer Venue to Cumberland County. Esquire Attorney for Plaintiff 30 East Butler Pike Ambler, PA 19002 (215) 540-8888 January 19, 2000 Glenn Gerber, Esquire Identification No. 57898 KIMMEL & SILV~RMAN,' P.C. 30 East .,Butler Pike Ambler, PA 19002 (215) 540-8888 Attorney for Plaintiff CHRISTOPHER AND DELANIE COOK V. DAIMLERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY CIVIL ACTION OCTOBER TERM, 1999 NO. 2018 M~MORkNDUM OF LAW IN OPPOSITION TO DEFENDANT'S PETITION TO TRANSFER VENUE I. BACKGROUlqD Plaintiffs filed their Complaint against Defendant on or about October 18, 1999, asserting claims for violations of the Pennsylvania Automobile Lemon Law, Magnuson Moss Federal trade Commission Improvement Act, and Pennsylvania Unfair Trade Practices and Consumer Protection Law. Plaintiffs allege thier 1997 Dodge Grand Caravan is defective. As a result, the subject vehicle is unfit to be utilized for the purposes intended by plaintiff. On or about August 6, 1998, Plaintiff took possession of the subject vehicle. Soon thereafter, the Plaintiffs experienced chronic ~roblems with the vehicle. D~fendant asks this Honorable Court to transfer venue of this · matter to Cumberland County, and Plaintiff vigorously opposes that request. Defendant regularly conducts business in Philadelphia County. See Pa. R. Civ. Proc. 2179(a) (2). II. PENNSYLVAI~IA RULES OF VENUE Pennsylvania Rule of Civil Procedure 1006, Venue and Change of Venue, provides that' an action may be brought against a Corporation (or similar entity) in the county designated by Pa. R. Civ~ Proc. 2179. For a corporate defendant such as defendant, Pa. R. Civ. Proc. 2179(a) states that an action may be brought in and only in: (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; Defendant regularly conducts business in Philadelphia County. Defendant regularly solicits business and sells to consumers from Philadelphia County. Thus, venue in this action has been properly laid in Philadelphia County, according to the Rules of Civil Procedure. Furthermore, Pa. R. Civ. Proc. 1006(e) provides, "Improper venue shall be rased by preliminary objection and if not so raised shall be waived." Id. Defendant, Chrysler Corporation filed an Answer and New Matter to Plaintiffs Complaint but did not file preliminary objections in this case. Defendant has not timely petitioned this Court for a change of venue and therefore Defendant has waived its right to assert improper venue. For the reasons set forth above, plaintiffs respectfully requests this Honorable Court to deny Defendant's request for a transfer of venue to Cumberland County, Pennsylvania. III. CHANGE OP VENUE FOR "CONVENIENCE OF THE PARTIES" In the event the Court finds that Defendant has timely petitioned this Court for a ~hange of venue, Plaintiffs further assert that Defendant has'failed to meet its burden to show that a transfer of venue would serve both public interest and the private interests of the litigants. It is well-settled in the Commonwealth that Plaintiffs have the right to choose the forum in which to bring suit (within the boundaries of the Rules of Civil procedure). It is up to the opposing party to show that the chosen forum would not serve the interest of justice. To do so, the Defendant must clearly demonstrate facts which either (1) establish such oppressiveness and vexation to the defendant as to be out of all proportion to plaintiff's convenience, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own private and public interest factors . Okkers v. Howe, 521 Pa. 509, 517-18, 556 A.2d 827, 831-32 (1989). Even so, the Pennsylvania Supreme Court in Okkers held that, unless the balance of these facts "is strongly in favor of defendant, the plaintiff's choice of forum should rarely be disturbed." Id. (citations omitted.) In the instant matter, Defendant has demonstrated no facts which w~igh strongly in its favor, especially in light of the fact that Defendant regularly condu~ts business in Philadelphia County. For the reasons set forth above, Plaintiffs respectfully request this Honorable Court to deny Defendant's request for a transfer of venue to Cumberland County. By: Attorney for Plaintiff Court of Common Pleas of Philadelphia County Trial Division Civil Cover Sheet Christopher Cook ' 424 Pawnee Drive Mechanicsburg, PA 17055 PLAINTIFF'a NAME Delanie Cook 424 Pawnee Drive Mechanicsburg, PA 19103 'OTAL NOMEEN OF FLA,NTIFFa (70) I TOTAl. NO. [] 30. $50,O00.O0orl~sa [] 32. ~sc~entof~ageshe~gtequ~. 31. More~$50,0~.~ ~ 33. ~mentof~ageshe~ngnotrcqu~ I~ 41. Actlundidnot ~in~iladelphiaCoun~ [] 42. Transaction or occurrence giving rise to action arosein Philadelphia County [] 43. Transactlonoroccurrence givingrisetonctiondidnot arisalnPhiladelphiaCount) (describe trat~action or occurrence below in #60) DEFENDANT'S NAME DalmlerChrysler Corporatiou c~g ~ ~rporation 1635 Market Street Philadelphia, PA 19103 DEFENDANT'E NAME O0;ZO .8 DEFENDANT'S AOOREEE COMMENCEMENT OF I OTHER ACTION · [] 5 Afoimttiun .~ 1. Complaint I~ fi' [] 10. In Forma Paup~fia ~ 2 WfitofSu~s]~-' ]~ ~ I1. Tr~sf~eom~erl~icdun / [~- Hun]~&~ui~ ~ 12. ~no~com~teatCompmmlse 3 Notlce of Ap~l ~4. Pethion Actlun . Sa~n~Ac~ ~ 14. Wron~l~a~Acfion(invol~gm~ OEFENOA~ INFORMATION ~ 50. ~1 de[and~ ~ r~sldea~ og(or bate o~ces in) Phil~elpMa Co~ ~ 51. M~n de[end~t ~ a r~ident of(~ o~ces ~) ~iladel~ia Coun~ ~ ~2. AIl de[an~ ~l~iy conduct b~inesa in ~i[adelpMa Coua~ ($e~ l~t~ction F) ~ 5~. M~n defender ~l~[y conducts business ~ ~iladelpMa Coun~ (zeel~l~cdon F) ~ ~. Defen~ ~e n~ msideu~ of (~d ~ not have o~ces in) P~iadelp~a Coun~ (~tate bdow in ~0 re~on for~ling aclion in PMladelphio Main defendant regularly conducts busmness in Philadelphia County 20000 Contract Craig Thor K~d~r~I, Esquire .Kimmel & Stlverman, P.C. 30 East Butler Pike Ambler, PA 19002 DATE to/, For official use only NEXT COURT ACTION []-1101 Arbitration Hearing ' -.: Date: Arbitration Center ,1601 Market Street Ph|lad¢lphia, PA 19103 01-101 (Rev. g~4) Place: Craig Thor E~---el, Esquire Id-ntification No. 57100 KIMMEL & SILVERMAN, P.C. 30 East Butler Pike ~m~ler, P---sylvania 19002 (215) 5%0-8888 Attorney for Plaintiff · r~IS IS AN ARBITRATION MA'A-&mR. ASSESS~mqT OF DAMAGES ~RIN~ IS t~d~ISTOPHKR COOK -~d DELANIE COOK 424 Pawnee Drive Mecha~icsburg, PA 17055 DAiMLERc~KYSLER CORPORATION c/o CT Corporation 1635 Market Street Philadelphia, PA 19103 .. : ~n~T OF COMMON PLEAS U~[~[DA0nDE~0 C~PARECEREN _~)ET~.anELPHiA CODI~TY ~ H~RI~ ~ 1~1 ~ STREET, ~O ~R JU~ 1 ~ 2000 TE~, 1999 v~ ~ST STILLC0~PLNO ' ~TH ~E N0~E ~EL~. US~ ~A~ 0 CU~IR ~ ELA~0 p~ 0EPENOERSE NOTICE TO DEFEND CODE: 1900 OCTOBER 19.9.9 oo2oa.8 You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action withi~n twent~ (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 you defenses or objections to the claims set forth a~ainst you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against ~ou 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 'A'~iS PAPER TO YOOR LAWk~ AT ONCE. IF YOU DO NOT HAVE A LAW~ OR CANNOT /~FFORD ONE, ~O TO OR T~PHONE 'Z'"K OFFICE SET FORTH BELOW TO F~D TE~S~:~"~,'~:.~-','::~;..e~:,$?~:C:~'u:L'f&,:.:-p~'T.~T~E~-P~I.A BAR A~SOCIATION ATT;~'~3:~:~'i~;'{i/'];£~'i;hSFN';")~:T~'S~:::REFERI~AL AND INFORMATION SERVICE M. CORNAGMA ~.~',= '^,,"'; - ' -,-. .... '~ ~', ............ -, PRO, PROTHY [~.u, ~ , ,, ~;., ._. ,. ~-T~,..~t~ - - ., .. ....... _,.,,.~.,~,r, ;,,T ,i ..... --.~: -'~;t:~.h P.'\¥,~ t ..... O,,N'~. READING, N!A¥ ~::~_"C;,.~['~.O~ ~r ;VFI'KoUT '~.rl,. ~¥:,.,-~.~.,~v0 ~LPHIA, PA 19103' ]UDGE ¢g ,' tr~ ..... 'O [-~T TO ATRIA. u ...... = 215-23s-1 o1 0CT 1 8 1999 ~OM A DE~t~u~ ATTEST Le han~mandado a usted en la corte. Si usted quiere defenderse de estas de estas demandas ex~uestas an las paginas signientes, usted tiene velnte (20) dias ~-plazo al partir de ia fecha de la demanda y ia notificacion. Hace falta asentar u~a~comparencia escrita o en persona o con un abogado y entregar a la corte en fo=ma escrita sus defensas o sus objeciones a laq demandas en contra de su persona. Sea avisado que si usted no se def~en~e~ le corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u ostros derechos importantes para usted. T~.~"~ BSTA DEMANDA A ~N A~OGADO I~[M~IATAME~T~, SI NO TIENE ABOGADO O SI NO TIENE EL DI-z~O SOFICI~m DE PAGA~ T/%L $ERV~CIO. ~-AYA ~2~ P~i~SO~ O v~.a~w~ POR T~T.~FONO A LA OFICIN~ =uKA DINECCION SE ~N=u~'&KA ESCRITA ABAJO PA~A DONDE SE Pu~.uE CONS~u~R ASIS'r~a~CI.A LEGAL. SNEVICTO DE P~m~KENCIA L~AL ONE P~EADING FZL~DELFIA, PA 19107 THLEFONO: 215-238-1701 CraigThor K;.~.~el, Esquire Id--tification No. 57100 KII~LEL & SIL.VEI~MAN, P.C. 30 East Butler Pike ~ler~P~-~sylv;~ia 19002 (215) 540-8888 ~tU~ISTOP-K~ COOK m~d DELANIE COOK 424 Pawnee Drive Mecb-~csburg, PA 17055 DAIMLERt~u~YSLER CORPORATION c/o CT Corporation 1635 Market Street Philadel~hla, PA 19103 Attorney for Plaintiffs '£~[S IS AN ARBI-~-~ATION ~A'~--'mR. AS SESS~/~T OF DAMAGES -K~I~IN~ IS REQUESTED. COUI~T OF COMMON PLEAS PHIT~tDELPHIA COUI~wM CIVIL ACTION TERM, 1999 NO. COMPLAINT CODE: 1900 1. Plaintiffs, Christopher Cook and Delanie Cook, are adult individual citizens and legal residents of the Commonwealth of Pennsylvania, residin~ at 424 Pawnee Drive, Mechanicsburg, Pennsylvania 17055. 2. Defendant, DaimlerChrysler Corporation, is a business corporation qualifie~ to do business and regularly conducts busir~e~s in the Commonwealth of Pennsylvanla, and is a corporation of the State of Delaware, with its legal residence · · and principal place of business located at 12000 Chrysler ~M-.ive, Hi~hland Park, Michigan 48288-1919, and can be served c/o CT Corporation, 1635 Market Street, Philadelphia, Pennsylvania 19103. BACKGROUND 3. On.or about October 29, 1998, Plaintiffs purchased a 1997 D~dge Grand'Caravan, manufactured and warranted by Defendant, bearing the Vehic%e Identification Number 1B4GP44RXVB438978. The v~hicle was purchased in the Conunonwealth of Pennsylvania and is registered in the Commonwealth of Pennsylvania. 4. The price of the vehicle, including registration charges, document fees, sales tax, finance and bank charges but, excluding other collateral charges not specified yet defined by the Lemon Law, totaled more than $24,547.20. A true and correct copy of the Contract is attached hereto, made a part hereof and marked Exhibit "A". 5. Plaintiffs aver that as a result of the ineffective repair attempts made by Defendant through its authorized dealer(s), the vehicle cannot be utilized for the purposes intended by Plaintiffs at the time of acquisition and as such, the vehicle is worthless. 6. In consideration for the purchase of the above vehiclie, Defendant issued to Plaintiffs several written warranties, including a three (3) year or thirty-six-thousand (36,000) mile bumper-to-bumper/ ~s well as other standard warranties fully outlined in the warranty booklet. COURT I p~NNSYLVANIAA~TOMOBILE LEMON LAW 7. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 8. Plaintiffs, are "Purchasers" as defined by 73 P.S. §1952. 9.' Defendant is a "Manufacturer,, as defined by 73 P.S. §1952. .. 10. Behney Motors,.is and/or was at the time of sale a Motor Vehicle Dealer in the business of buying, selling, and/or exchanging vehicles as defined by 73 P.S. §1952. 11. On or about October 29, 1998, Plaintiffs took possession of the above mentioned vehicle and experienced nonconformities as defined by 73 P.S §1951 et seq., which substantially impair the use, value and/or safety of the vehicle. 12. The nonconfox~ities described violate the express written warranties issued to Plaintiffs by Defendant. 13. Section 1955 of the Pennsylvania Automobile Lemon Law provides: 14. If a manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle.., or accept return of the vehicle from the purchaser, and refund to the purchaser the full purchase price, including all collateral charges, less a reasonable allowance for the purchasers use of the vehicle, not exceeding $.10 per mile driven or 10% of the purchase price of the vehicle, whichever is less. ¢¢ Section 1956 of the Pennsylvania Automobile Lemo~ Law provides a presumption of a reasonable number of repair attempts if: (1) The same nonconformity has been subject to repair three times by the manufacturer, its agents or authorized dealers and the nonconfo~aLity still exist(s); or (2) The vehicle is out-of-service by reason of any nonconfo~=~ity for a cumulative total of .thirty or more calendar days. 15~ Plaintiffs have satisfied the above definition as the vehicle has been subject to ~pair more than three (3) times for the same nonconfo~=,ity, and the nonconformity remains uncorrected. 16. In addition, the above vehicle has or will be out-of- service by reason of the nonconformities complained of for a cumulative total of thirty (30) or more calendar days. 17. Plaintiffs have delivered the nonconfo~=Ling vehicle to an authorized service and repair facility of the manufacturer on numerous occasions. After a reasonable number of attempts, the manufacturer was unable to repair the nonconformities. 18. During the first 12 months and/or 12,000 miles, Plaintiffs complained about defects and/or nonconfo~=Lities on at least three occasions to the following vehicle components= noisy belts~ headliner hanging down~ and a dead battery. Plaintiffs are not in possession of this information, however it can be obtained from Defendant's authorized dealership. 19. The vehicle continues to exhibit defects and nonconfo~=~ities which substantially impair its use, value and/or safety as provide~in 73 P.S. §1951 et seq. 20. Plaintiffs aver the vehicle has been subject to additional repair attempts for defects and/or nonconformities and/or conditions for which the dealer did not maintain records. 21. Plaintiffs have been and will continue to be financially damaged due to Defendant's intentional, reckless, wanton and negligent failure to c0~ply with the provisions of 73 P.S. ~1951 et seq. 2~] Pursuant to 73 Pa. P.S. §1958, Plaintiffs seek relief for losses due to the noncon~&mities and defects in the above- mentioned vehicle in addition to attorney fees and all court costs. .- WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. COUNT II ~a~NUSON-MOSS FK,]ERAL TKADE COMMISSION IMPROVEmeNT ACT 23. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 24. Plaintiffs are "Consumers" as defined by 15 U.S.C. §2301(3) . 25. Defendant is a "Warrantor" as defined by 15 U.S.C. §2301(5) . 26. The purpose for which this product is no~a,ally used is pers~n~, family, and household use. '27. By the te&.'.is of the express written warranties referred · · to in this Complaint, Defendant agreed to perfox,~ effectige<-" warranty repairs at no charge for parts and/or labor. 28. Defendant has made attempts on several occasions to comply with the te~s of its warranties; however, such repair attempts have been ineffective. 29. As a direct and proximate result of Defendant's failure to comply wi~h the express written warranties, Plaintiffs have suffer~ damages' and, in accordance with 15 U.S.C. §2310(d) (1), Plaintiffs are entitled to ~rSng suit for such damages and other legal and equitable relief. 30. Section 15 U.S.C. §2310(d) (1) provides: If a consLuner finally prevails on an action brought under paragraph (1) of this s,,~section, he may be allowed by the court to recover as part of the judgment a sum equal to the amount of aggregate amount of costs and expenses (including attorney fees based upon actual time expended), determined by the court to have been reasonably incurred by the Plaintiff for, or in connection with the commencement and prosecution of such action, unless the court, in its discretion shall determine that such an award of attorney's fees would be inappropriate. 31. Plaintiffs aver Defendant does not have a Dispute Resolution Program which is in compliance with 16 CFR 703. 32. Plaintiffs aver that upon successfully prevailing upon the Magnuson-Moss claim herein, all attorney fees are recoverable and are demanded against Defendant. WHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount equal to the contract price of the subject vehicle, plus all collateral charges and attorney fees. · · COUNT III UNIFORM COMMERCIAL CODE 33. Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 34. The defects and nonconformities existing within the vehicle cons~itut~ a breach of contractual and statutory obligations of Defendant, including but not limited to the following: a. Express Warranty; b. Implied Warranty Of Merchantability; and -- c. Implied Warranty Of Fitness For A Particular Purpose. 35. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Plaintiffs have justifiably relied upon Defendant's express warranties and implied warranties of fitness for a particular purpose and implied warranties of merchantability. 36. At the time of obtaining possession of the vehicle and at all times subsequent thereto, Defendant was aware Plaintiffs were relying upon Defendant's express and implied warranties, obligations, and representations with regard to the subject vehicle. 37. Plaintiffs have incurred damages as a direct and proximate result of the breach and failure of Defendant to honor its eK~=ess and implied warranties. 38. Such damages include, but are not limited to, the contract price of the vehicle plus all collateral charges, including attorney fees and costs, as well as other expenses, the full extent of which are not yet known. WHEREFORE, Plaintiffs respectfully demand jud~%ent against Defendant, in an amount equal to the contract price of the s~hject vehicle, plus all collateral charges and attorney fees. COUNT IV PENNSYLVANIA ~N~AIR 'A'KADE PRACTICES AND CONS~R PROTECTION LAW 3~] Plaintiffs hereby incorporate all facts and allegations set forth in this Complaint ~y reference as if fully set forth at length herein. 40. Plaintiffs are "People" as defined by 73 P.S. ~201- 2(2}. 41. Defendant is a "Person" as defined by 73 P.S. §201- 2(2} . 42. Section 1961 of the Pennsylvania Automobile Lemon Law, provides that a violation of its provisions is also a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. 201-1 et seq. 43. In addition, the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. §201-2 (4), defines "unfair or deceptive acts or practices" to include, but not limited to, the following: (vii). Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (xiv). Failing to comply with the te~s of any written ~uarantee or warranty given to the buyer at, prior to, or after a contract for th6 ~urchase of goods or services is made; (xv). Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed; (xvi). Making repairs, improvements or replacements on tangible, real or personal property of a nature or quality inferior to or below the standard of that agreed to in writing; (xvii) (xxi). Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 44. Plaintiffs believe, and therefore aver, that Defendant's conduct falls within the aforementioned definition of "unfair or deceptive acts or practices." Furthermore, Defendant's actions constitute otherwise reckless, wanton, or willful conduct which is prohibited by the Statute. 45. Section 201-9.2(a) of the Statute provides for private causes of action for any person "who purchases or leases goods or services primarily for personal, family household purposes." The Statute authorizes the Court, in its discretion, to award up to three (3) times the actual damages sustained for violations. 46. Section 201-3.1 of the Act provides that the automotive industry trade practice rules and regulations adopted by the Attorney General for the enforcement of this Act are declared unlawful. 47. Plaintiffs believe and therefore aver that Defendant's conduct in the sale and servicing of the vehicle violate said rules and regulations. &gHEREFORE, Plaintiffs respectfully demand judgment against Defendant in an amount not in excess of Fifty Thousand Dollars ¢¢ ($50,000.00), together with all collateral/~orney~charges, :- fees,' and costs of suit. ~ By= Attorneys for~Plaintiff 30 East Butler Pike Ambler, Pennsylvania 19002 (215) 540-8888 VERIFICATION I, Craig Thor Kimmel, being duly sworn according to law, depose and say that I am the attorney for the plaintiff, i this action and that the facts set forth in the foregoing Complaint are true and Correct to the best of my knowledgE, information, and belief. I understand that any false statement made herein are subject to the penalties of 18 Pa..C.S. §4904 to authorities. relating to unsworn falsification ~itie~/ Craig Th~immel, ESquire o-- Attorne~ff~r. Plainti~fs BEHNEY MOTORS 300 E. Emeus*St, Telephone 944-7415 MIDDLETOWN, PENNSYLVANIA 17057 PLEASE ENTER MY ORDER FORONE CASH PRICE OF VEHICLE DATE [] USED [] DEMO AS FOLLO E DOCUMENTARY CHARGE CASH DEPOSIT SUSMFITEO WITH ORDER ALLOWANCE FOR 'I'RADE-IN AS APPRAISED ~:e~q ~ad. ANCE OWlNG TO -- TOTAL TOTAL TAX REGISTRATION · . UNPAID ALL WARRANTIES, IF ANY, BY A MANUFACTURER OR SUPPUER OTHER THAN DEALER ARE THEIRS, NOT ~ND ONI MANUFACTURER OR OTHER SUPPUER 'SHALL BE UABLE FOR PERFORMANCE UNDER SUCH WARRANTIES. DEALER FUF BUYER WITH A SEPARATE WRt I t/~.N WARRANTY OR SERVICE CONTRACT MADE BY DEALER ON ITS OWN BEHALF, DEALER HEREBY DIS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPUED WARRANTIES OF MERCHANTABlUTY OR tit NESS FOR A PAR1 PURPOSE: (A) ON ALL GOODS AND SERVICES SOLD BY DEALER, AND (B) ON ALL USED VEHICLES WHICH ARE HEREBY SOLD "AS EXPRESSLY WARRANTED OR GUARANTEED". IF THIS AGREEMENT IS FOR A USED VEHICLE. THE INFORMATION YOU SEE ON THE (FEDERAL TRADE COMMISSION) WINDOW FORM IS PART OF THIS AG: INFORMATION ON THE WINDOW FORM OVERRIDES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE. reement affectJn this purchase end no other agreement or understanding of any nature concerning The front end back of this Order comprise, the. e. rl. tlrc a~_g. ,-~;~v that ne egr~lt has bee nd~ to me for the purchase of thee motor vs.b~cle except been made or entered Into, or will be .r~. ogn,ze~.. !~erc_oy .c.e..~n~r_.~.~-~.~-~,,:-~,g~E herc~f ~nedx~a~r~,e to It as · par~ of t~la o~er t~e same ~it>t were pnme~ slw~lflm~n~rc. I cerUfy that I em gof leg~al eg~ and ha.by .ck~owte~ge recelp, or a oopy o, m ..... ~. , -- ~- // ~'.~ · THIS ORDER IS NOT VALID U L S [~-- ' pL~AINTIFF S - .' . .· · .; ..... e- loll .... - - \01 __21 ~,, IABUWS~LLPG\ 188161 ~LOA03043~1)0846 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: James W. Stevens, Esquire Attorney ID No: 40534 1845 Walnut Street Philadelphia, PA 19103 (215) 575-2684 Attome~ for Defendant, DaimlerChrysler Corporation CHRISTOPHER COOK and DELANIE COOK V. DIM ERCHRYSLER CORPORATION COURT OF COMMON PLEAS PHILADELPHIA COUNTY OCTOBER TERM, 1999 NO. 2018 ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT OF DEFENDANT. DAIMLERCHRYSLER CORPORATION D.ef.e.ndant, DaimlerChrysler Corporation by and through its attorneys, Marshall, Dennehey,-Warner, Coleman & Goggin, hereby answers plaintiff's Complaint and asserts new matter defenses as follows: '~ 1. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 2. Admitted in part; denied in part. DaimlerChrysler Corporation is a corporation organized a~...d existing under the laws of the State of Delaware with a principal place of business in Michigan. In addition, it can be served at the CT Corporation Systems, 1635 Market Street, Philadelphia, PA 19103. The remaining averments are denied. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judr~nent in its f~vor and against the plaintiff, together with costs. 3. Admitted in part; denied is part. It is admitted that plaintiff obtained a DaimlerChrysler Corporation vehicle that was manufactured and warranted by defendant bearing vehicle identification number as alleged. After reasonable investigation, answering defendant is without information or knowledge sufficient to form a belief as to the truth of the remaining averments and same are therefore denied. 4. Denied. After reasonable investigation, answering defendant is without knowledge or information sufficient to form a belief as to the truth of these averments and the same are therefore denied. 5. Denied. It is denied that there were ineffective repair attempts or that the vehicle cannot bemused for the purposes for which it was intended. It is further denied that the vehicle is worthless. 6. Denied. It is denied that defendant issued several written warranties. On the ~ contrary, defendant issued only an express written warranty. The warranty speaks for itself. WHEREFORE, defendant, DaimlerCh~sler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. COUNT I PENNSYLVANIA AUTOMOBILE 7. Defendant, DaimlerChrysler Corporation, hereby incorporates its prexaous answers to plaintiff's Complaint as tho. ugh the same were set forth herein at length. 8. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 9. Denied. The avcmients contained in this paragraph constitute conclusions of law to which no response is required. 10. Denied. The averments contained in this paragraph constitute conclusions of law to which no response ~s required. 11. Denied. The averments contained in this paragraph constitute conclusions of law to which no response ~s required. 12. Denied. The av¢lments contained in this paragraph constitute conclusions of law to which no response ~s required. 13. Denied. The avcm~ents contained in this paragraph constitute conclusions of law to which no response is required. 14. Denied. The avenlients contained in this paragraph constitute conclusmns of law to which no response is required. 15. Denied. It istt~nied that the vehicle experienced nonconfomdties or conditions . that were not corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation. It is denied repair attempts were ineffective. 16. Denied. It is denied the vehicle was out of service for the alleged number of days. 17. Denied. It is denied that thc vehicle experienced nonconformities or conditions that were not corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation. It is denied repair attempts were ineffective. 18. Denied. After reasonable investigation answering defendant is without infonnation or knowledg.e sufficient to form a belief as to the truth of the averments contained in this paragraph and the same are therefore denied. 19. Denied. The avet'ments contained in this paragraph constitute conclusions of law to which no response is required. 20. Denied. It is denied that the vehicle was subject to additional repair attempts for which records were not maintained. 21. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 22. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. COUNT II MAGNUSON-MOSS (FTC) WARRANTY IMPROVEMENT ACT 23. Defendant, DaimlerChrysler Corporation, hereby incorporates its previous answers to plaintiff's Complaint as though the same were set foxth herein at length. 24. Denied. The ave~r, ients contained in this paragraph constitute conclusions of law to which no response is required. 25. Denied. The ave,nents contained in this paragraph constitute conclusions of law to which no;response is required. 26. Denied. After reasonable investigation answering defendant is without information or knowledge sufficient to foim a belief as to the troth of the averments contained in this paragraph and the s.mne are therefore denied. '27. Denied. It is denied that defendant's express written warranty states as alleged. The warranty speaks for itself. 28. Denied. It is denied that the vehicle experienced nonconformities or conditions that were not corrected within the terms of the express written warranty issued by DaimlerChrysler Corporation. It is denied repair attempts were ineffective. 29. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 30. Denied. The avem~ents contained in this paragraph constitute conclusions of law to which no response is required. 31. Denied. The avcm,ents contained in this paragraph constitute conclusions of law to which no response is required. 32. Denied. The averments contained in this paragraph constitute conclusions oflaw to which no response is required. WHEREFORE, defgr/ltant, DaimlerChrysler Corporation, respectfully demands jt!dl~., e~, t in its favor and against the plaintiff, together with costs. COUNT III COMMEmCAL CODE 33. Defendant, DaimlerChrysler Corporation, hereby incorporates its previous answers to plaintiff's Complaint as though the same were set forth herein at length. 34. Denied. The averments contained in this paragraph constitute conclusions of law to which no .~esponse is required. 35. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. · · Denied. It. is denied that defendant was aware of any reliance on the part of the 36. plaintiff. 37. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 38. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs.' COUNT IV PENNSYLANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 39. Defendant, DaimlerChrysler Corporation, hereby incorporates its previous answers to plaintiff's Complaint as though the same were set forth herein at length. 40o,~, Denied. The averments contained in this paragraph constitute conclusions of law to which nd response is required. ,¢ . 4 41. Denied. The avemients contained in this paragraph constitute conclusions ~f to which no response is required. 42. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 6 43. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 44. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. 45. Denied. The aveiments contained in this paragraph constitute conclusions of law to which no response is required. 46. Denied. The averments contained in this paragraph constitute' conclusions of law to which no response is required. 47. Denied. The averments contained in this paragraph constitute conclusions of law to which no response is required. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judgment in its favor and against the plaintiff, together with costs. 48. DaimlerChrysler Corporation. 49. Plaintiff's claims are barred and/or limited by the applicable disclaimers of warranty and limitations of damage provision. 50. PlaintifFs claims are barred and/or limited by her neglect, misuse, abuse, modification, and/or alteraffo~ of the vehicle, which is the subject of this litigation. ~ 51. PlaintifFs claims are barred and/or limited by her failure to mitigate damages. 52. If the plaintiff sustained any alleged injuries, damages or losses, the injuries, damages, or losses were caused by persons and/or entities over whom answering defendant had no control and for whom answering defendant is not responsible. Plaintiff's Complaint fails to state a claim for which relief may be granted against 53. Plaintiff's alleged claims of nonconformity do not substantially impair the use, value, or safrAy of the vehicle. 54. Plaintiff's claims are or may b,e, barred by the applicable doctrine of laches, estoppel or waiver. · ' Plaintiff's.Complaint fails to state a claim for which any attorney fees may be 55. award~l. $6. Plaintiff's claims may be barred and/or limited by the Lemon Law, Unfair Trade Practices and Consumer Proteeti°n Law, Uniform Commercial Code and the Magnuson-Moss Warranty Act. 57. It is denied that plaintiff obtained the vehicle primarily or normally for personal, family or household purposes and plaintiff is not entitled to recovery under the Lemon Law, Magnuson-Moss Warranty Act, or the Pennsylvania Unfair Trade Practices Act. 58. Plaintiff's Complaint may be barred by the applicable statute of limitations. WHEREFORE, defendant, DaimlerChrysler Corporation, respectfully demands judr~nent in its favor and against the plaintiff, together with costs. MARSItALL~D] COLI~ Atto~eys/ Daiml~rC1 .~/~EHEY, WARNER, ~r r ef~nd~,, _ ~sh :r ~6ration Jame. s, W. Stevens, Esquire, hereby states that he is the attorney for DaimlerChrysler Corporation, defendant herein, and verifies that the statements made in the foregoing Answer with New Matter of Defendant, Daimle~Shrysler Corporation, to Plaintiff's Complaint, are true and correct to the best of.his knowledge, information and belief. The undersigned understands that the' statements therein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. JAMES CERTIFICATE OF SERVICE I, James W. Stevens, Esquire, hereby certify that I am attorney for the defendant, DaimlerChrysler Corporation, in the within li~tion; that I am duly authorized to make this certification and that on the 2na day of December, 1999,.1 did cause a true and correct copy of Answer and New Matter 0f Defendant, DaimlerChrysler Corporation, to Plaintiffs Complaint to be forwarded by first class, U.S. Mail to counsel below as follows: Craig Thor Kimmel, Esquire KIMMEL & SILVERMAN, P.C. 30 E. Butler Pike Ambler, PA 19002 COLEI ~N I~I~OGGIN / JAMES Attorney ~r D{fendan~,' DaimlerChr~er~ration Glenn Gerber, Esquire Identification No~ 57898 KIMMEL & SILVERMAN, P.C. 30 East~Butler Pike Ambler, PA 19002 (215) 540-8888 CHRISTOPHER AND DELANIE COOK Attorney for Plaintiff COURT OF COMMON Vo DAIMLERCHRYSLER CORPORATION PHILADELPHIA COUNTY CIVIL ACTION OCTOBER TERM, 1999 NO. 2018 CERTIFICATE OF SERVICE I, Glenn Gerber, Esquire, counsel for Plaintiff, hereby certify that on the date indicated below, I served the party listed below with a true and correct copy of the attached Plaintiffs, Answer and memorandum of Law in Opposition to Defendant,s Petition to Transfer Venue by placing same in the United States Mail, First Class, Postage Paid, addressed as follows: James W. Stevens, Esquire MARSHALL, DENNEHEY, WAP~NER, COLEMAN & GOGGIN 1845 Walnut Street Philadelphia, PA 19103 By: Attorney for Plaintiffs Dated: January 19, 2000 CHRISTOPHER COOK and DELANIE COOK V. DAIMLERCHRYSLER CORPORATION IN RE: ARBITRATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-2904 CIVIL TERM ORDER OF COURT AND NOW, October 23, 2001, the Court having been informed that the Petition for Appointment of Arbitrators filed in the above-captioned case is premature, the Board of Arbitrators previously appointed is vacated; and the Court having noted that John M. Eakin, Esquire, Chairman of the Arbitration panel had already scheduled the hearing, he shall be paid the sum of $50.00, Court Administrator By the Court, John M. Eakin, Esquire Market Square Building Mechanicsburg, PA 17055 P,J. VlNVA'tXSNN~ OB :6 ~'~ h?, i30 lO IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CHRISTOPHER COOK AND DELANIE COOK V. : DAIMLERCHRYSLER CORPORATION : NO. 2000 CV 2904 CIVIL ACTIOI~ - LAW ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Defendant, DaimlerChrysler Corporation, in the above-captioned matter. DATE: MARSHALL, DEN~HEY, WARNER, BY: ~ MATTHEW L[. OWE~S~UIRE I.D. No. 76080 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3501 Attorneys for the Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CHRISTOPHER COOK AND DELANIE COOK DAIMLERCHRYSLER CORPORATION NO. 2000 CV 2904 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Angela Sanger, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this i 0~- day of August, 2001, I served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Craig Thor Kimmel, Esquire KIMMEL & SULLIVAN, P.C. 30 E. Butler Pike Ambler, PA 19002 CHRISTOPHER COOK AND DELANIE COOK Plaintiff DAIMLERCHRYSLER CORPORATION Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2000-2~9~ ~vr : : CIVIL ACTION - LAW NOTICE OF ARBITRATION HEARING You are hereby notified that the arbitrators appointed by the Court in the above captioned matter will hold their hearing at 1:00 P.M. Friday, November 2, 2001, in the second floor hearing room of the Old Courthouse, High and Hanover Streets, Carlisle, Pennsylvania at which time all parties will be heard. If it is necessary for any party to change the time of the hearing, it is the responsibility of that party to contact the Court Administrator and all other parties and arbitrators to arrange an alternate time and place of hearing. October 4, 2001 cc: Craig Thor Kimmel, Esquire Kimmel & Silverman 30 East Butler Pike Ambler, PA 19002 (215) 540-8888 Attorney for Plaintiff Matthew L. Owens, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA (717) 651-3501 Attorney for Defendant Rebecca R. Hughes,Esquire 60 West Pomffet Street Carlisle, PA 17013 (717) 249-2353 Arbitrator · Eakin, Esquire arket Square Building Mechanicsburg, PA 17055 (717) 766-3172 Arbitrator Timothy J. Colgan, Esquire 1 South Baltimore Street Dillsburg, PA 17019 (717) 432-9666 Arbitrator Court Administrator Court House Carlisle, PA CHRISTOPHER COOK DELANIE COOK DAIMLER CHRYSLER CORPORATION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2000-2904 CIVIL RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: ROBERT A. RAPKIN , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $ 2..~: OC~ The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: __ MATTHEW 0WENS, IdARSHALL DE~EHEY WARNER CQLF.~IAN & GOGGIN WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case st~all be submitted. Respe~ ORDER OF COURT AND NOW~/~4~ /V , '1'9 '~0 ,/in considerati°n °G°f tbe "- foregoing petitio..n, ~ C_.~< Esq., actions) as prayed for. / By the DELANIE & CHRISTOPHER COOK DAIMLERCHRYSLER CORPORATION RULE 1312-1. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2904 CIVIL 192OOO The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Robert A. Rapkin, Esquire ., counsel for thc plaintiff/defendant in the above action (or actionS), respectfully repr~esents that: 1. The above-captioned action (or actionS)' is (are) at issue. 2. The claim of thc plaintit! in me acuon The counterclaim of the defendant in the action is _(~ ,' The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: , WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall submitted. Respg~ffully submitted, oRB .oFcou"T / / AND NOW, _ ' ' /,~ :_ ~,,//.,~ /t..~ Z,- , ~'S~ff.,~'~ ,ppointed arbitratOrs in the above captinned action (Or actions) as pra'~ed for. ,4 By thc~ _ _ p.j. CHRISTOPHER COOK and DELANIE COOK Plaintiffs Vo DA1MLER CHRYSLER CORPORATION Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW No. 2000 CV 2904 AND NOW, this~ of ,2002, Daniel K. Deardorff, who was previously appointed as an arbitrator in the above captioned case, is replaced by Thomas J. Williams, Esquire, due to a conflict that developed in Attorney Deardorff's schedule. BY THE COURT, P.J. MARTSON DEARDORFF WILLIAMS ~ OTTO TEN EAST HIGH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717) 243-3341 FACSIMILE (717) 243-1850 [NTERNET www. mdwo.com September 18, 2002 ATTORNEYS & COUNSELLORS AT LAW WILLIAM E MARTSON JO~N B. FOWLER III EDWARD L. SCHORPP DANIEL K. DEARDORFF T~oMas J. WILLIAMS* Ivo V. OTTo III GEORGE B. FALLER JR.* CaRL C. Risc:4 ]~ARK A. DENLINGER DAVID R GALLOWAY Honorable George E. Hoffer Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Christopher Cook and Delanie Cook v. Daimler Chrysler Corporation No. 2000 CV 2904 Dear Judge Hoffer: You appointed me as the Chairman of an Arbitration Board in the above captioned case. I scheduled an arbitration hearing for Tuesday, October 1, 2002, at 9:00 a.m. in the Old CoUrthouse. Unfortunately, a conflict developed in my schedule and rather than reschedule this arbitration, I would respectfully request that I be replaced by Thomas J. Williams, who is available on that day. Enclosed is a proposed Order of Court to replace me with Attorney Williams. Thank you for your consideration. DKD/ajt Enclosure cc: Robert A. Rapkin, Esquire (w/enc.) Matthew L. Owens, Esquire (w/enc.) Susan H. Confair, Esquire (w/enc.) Craig Allen Hatch, Esquire (w/enc.) Very truly yours, MARTSON DEARDORFF WILLIAMS & OTTO Daniel K. Deardorff INFORMATION · ADVICE · ADVOCACyS~ In l'he Court of Cc~noaon l'lea~ Of Christopher Cook and Delanie Cook C~zmberland County, Pennsylvanis Plaintiffs Diamler Chrysler Corporation ) Civil Action Law Defendant We do solely ~wear (or affirm) that we viii support, obey and defend the Constitution of the United S~tes and the Co~ticucion of this ~n- wealth ~d ~ we will discharge ~he duties of our office vi~h fideli~. - a rman Cr~ Allen Hatch, Esquire AW~ We, the tmdersigmed arbitrators, having been duly appointed and (ox ..elf it-meal), make the following award: (Note: If damages for delay are awarded, they s~ll be separately stated.) applicable. ) Date of Hearing: October 1, 2002 Dare of Award: __0c~ ! ~ 9-~ Now, the /£-~day of was entered upon the docke~, and notice thereof given by mail ~o the · Arbitrator, dissents. (In~ert name if '-~ ~/) '~' ~ ~'~e Chairman Th°ma~~X'=Esqulr - ~n-s a~~n~~I ~r---~ig--~n Hatch L Esquire NOTICE OF ENTRY OF AWARD parties or their attorneys. Acb£c. racora' co~upem;atL(m to be pal.<! upon appeal: