HomeMy WebLinkAbout97-03876
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purchaser and requesled by Ihe purchaser shall be made available for a
nol unreasonable fee.
15, The five digit odometer of consumer McElwee's vehicle read 27,112 miles al
the time of sale.
16. The Defendant inserted 27, 112 on the consumer's Used Vehicle Order in the
box marked "odometer, "
17, The Defendant inserted 27, 112 on the consumer's installment sales contract in
the box marked "odometer reading, .
18, The Defendant never disclosed that 27, I 12 retlected an amount of mileage in
excess of the odometer's mechanical limits.
19, Pursuant to ~ 7134(a)(6)(ii) of the Vehicle Code, the Defendant was under a
duty to disclme such information.
20, The Defendant failed to disclose a material fact to the McElwee transaction
which he was under a duty to disclose,
21. The Defendant's conduct violates t 201-3 of the Consumer Protection U1w. as
defined by f 201 -2(4)(v) and (xvii), as amended by the Act of November 24, 1976. P.l.
1166, No. 260:
(v) Representing that goods or services have sponsorship, approval. characteristics,
ingredients, uses, benefits or quantities that they do not have or that a person
has a sponsorship. approval. stalllS. affiliation. or connection that he does not
have;
(!Vii) E"PIing in any .r fraudulent conduct whidl crutn a likelihood of
confusion or of misundmtandilli.
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WHEREFORE, the Commonwealth respectfully requests that this Court enter an
Order:
A, Finding that the Defendant violated the Consumer Protection Law, Auto Regs.
and the Vehicle Code, and enjoining it from any further violation thereof;
B. Directing the Defendant to pay consumer restitution to Shawn McElwee in the
amount of $1,500,00 in accordance with 75 Pa. C,S, ~ 7138(a), as that section read at the time
of sale;
C, Directing the Defendant to forfeit and pay to the Commonwealth a civil penalty
in the amount of one thousand dollars ($1.000.00) for cad1 willful violation of the Consumer
Protection Law;
D, If necessary. appointing a receiver pursuant to Pa. R.C,P. No. 1533 to
determine and collect Defendant's assets and liquidate the same to satisfy this Order; and
E. Granting such other relief as the Court deems necessary and appropriate to
effectuate the purposes of the Consumer Protection Law, Vehicle Code and Auto Regs,
COUNT II
THE DEFENDANT USES DEFICIENT SAI F_\; CONTRACTS,
22. Paragraphs one through twenty-one (21) are incorporated herein by refmnct.
and made I pan hereof:as if fully set forth.
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23. The Defendant uses a Used Vehicle Order form that contains a condition
precedent to the sale of the vehicle, that the Order must be signed and accepted by the dealer,
A copy of the Used Vehicle Order is attached hereto as Exhibit A.
24, The Defendant's sales agreement lacks the notice required in ~ 301.4(a)(2)(v) of
the Auto Regs,
25, The Defendant's use of the deficient sales agreement violates ~ 201-3 of the
Consumer Protection Law, as defined by ~ 301.4(a)(2)(v) of the Auto Regs.
WHEREFORE. the Commonwealth respectfully requests that this Court enter an
Order:
A. Finding that the Defendant violated the Consumer Protection Law and the Auto
Regs. and enjoining it from any further violation thereof;
B, Requiring the Defendant to amend its sales agreements to comply with ~
JOI.4(a)(2)(v) of the Auto Regs:
C, Directing the Defendant to forfeit and pay to the Commonwealth a civil penalty
in the amount of one thousand dollars ($ 1.000,00) for cad1 willful violation of the Consumer
Protection Law;
D. If necessary, appointing a receiver pursuant to Pa. R.C.P. No. 1533 to
determine and collett Defendant's assets and liquidate the same to satisfy this Order; and
E. Granting such other relief as the Court deems necessary and appropriate to
effectuate the purposes of the Consumer Procection Law and Auto Rep,
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OffiCI: OfATlORNt:Y GtNI:HAL
IUREAU OF. CONSUMER PROTECTlOH
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1lMlsburg, PA 11104
. 11111111-1109
F...: 11111112.3680
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I COMMONWEALTH OF PENNSYLVANIA,: IN THE COURT OF COMMON PLEAS
BY ATTORNEY GENERAL MICHAEL 0.: CUMBERLAND COUNTY, PENNSYLVANIA
FISHER,
Plaintiff
v.
NO. 97-3876 EQUITY TERM
I DAWN CONVERSIONS, INC.,
Defendant
CIVIL ACTION - EQUITY
NOTICE TO PLEAD
TO:
Mark S. Stewart, Esquire
Jodi L. Flitton, Esquire
Office of Attorney General
132 Kline Plaza
Harrisburg, PA 17104
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~ within twenty (20) days from
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You are hereby notified to plead to the enclosed New Hatter
service
hereof, or a default
judgment may be entered against you.
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1\ Date: 7(,,111
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'AIDlS;;;;;::rF · ""LAND
By: ~
Edward E. Guido, Esquire
Supreme Ct. I.D. . 21206
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Attorney for Defendant
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, COMMONWEALTH OF PENNSYLVANIA, :
BY ATTORNEY GENERAL MICHAEL D.:
FISHER,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
NO. 97-3876 EQUITY TERM
DAWN CONVERSIONS, INC.,
Defendant
CIVIL ACTION - EQUITY
DEFEHDAHT'S AHSWER WITH HEW MATTER
AND NOW, comes Defendant, Dawn Conversions, Inc. by and
through its attorneys, Saidis, Guido, Shuff & Masland, and
answers the Complaint as follows:
1. Admitted.
2. Admi tted.
3. Denied, To the contrary, since the Commonwealth has
extensively investigated the practices of Defendant, it should be
well aware that Defendant runs a scrupulously honest business
which it endeavors to conduct in accordance with all of the laws
of this Commonwealth. Any prior .technical violations. were the
result of inadvertence, clerical errors, or the confusing nature
of Commonwealth forms.
By way of further answer, the
Commonwealth should know that the Defendant has always dealt with
its customers in an honest, forthright and above board manner.
4,
Denied.
The averments contained therein are
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conclusions of law to which no response is required. By way of
further answer, Defendant incorporates its response to paragraph
1 above.
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Denied.
It is denied that Defendant lias willfully
engaged in any unlawful methods, acts or practic...
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il 111. Denied, To the contrary, the Defendant disclosed to
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the consumer, both orally and in writing, the fact that the
27,112 reading reflected an amount of mileage in excess of the
odometer's mechanical limits. The actual mileage was placed on
the back of the title, which was executed by the consumer.
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!I conclusions of law to which no response is required.
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II paragraphs 9, 10 and 16 through 19 above.
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19.
Denied.
The
contained
therein
are
averments
By way of
further answer, Defendant incorporates its response to paragraph
18 above.
to
20.
Denied.
Defendant
incorporates
its
responses
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21. Denied,
The averments contained therein are
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" conclusions of law to which no response is required.
WHEREFORE, Defendant respectfully requests that this Court
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ii enter an Order dismissing the Complaint with prejudice.
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COUJIT II
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22. Defendant incorporates its response to paragraph 1
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~ through 21 above.
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" 23-2!L The Complaint served upon the Defendant does not
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answer any allegations that may be contained therein.
COUftIII
26. Defendant incorporates its response to paragraph 1
through 25 above.
21. Admitted.
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OFFICE OF ATTORNEY GENERAL
BUREAU OF CONSUMEft l'IlOTECTlON
132 IllIno \Ilhgo .
ItIniIUI. PA 11104
1117l1BH1Dt
Fa., 11171 712-3560
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COMMONWEALTH OF PENNSYLVANIA
BY ATIORNEY GENERAL
D, MICHAEL FISHER
IN THE COURT OF COMMON
PLEAS. CUMBERLAND COUNTY
PENNSYLVANIA
Plaintill'
v,
No, 97 - 3876 EQUITY TERM
DAWN CONVERSIONS, INC.
Defendant
COMMONWEAI.TH'S RF.PI.Y TO DEFENDANT'S NEW MAnER
NOW comes the Commonwealth of Pennsylvania. by Attorney General D. Michael
Fisher. through the Bureau of Consumer ProteCtion ("Commonwealth"). and respectfully
submits this Reply to Defendant's New Matter,
40. Admitted.
4\. Admitted, The complaint was filed on January 30. 1996,
42. Admitted in part and denied in part, The Commonwealth admits that prior to
filing its Complaint in Equity it had acquired a copy of the title to the vehicle sold to consumer
McElwee, that the tide does indicate that the odomelel' reflects an amount of mileqe in excess
of the odometer's mechanical limits, and that tile name Shawn McElwee was placed in
assignment block B of the title. The Commonwealth denies !bat Shawn McElwee signed the
title. By way of furthtr responst. the title is dated one month after the time of sale.
43. AdmiUed in part and denied in part. Plaintiff admits that the COI\SUtMT hit a
~ prior to filing his complaiN with the Bureau of Consumer Protection. Plaintiff de1lies
that the incidmt resllltcd in a total w of the ,'Chide. Tt\ the COIIlJ'afY. only the front of tilt
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Dillsburg. PA 17019, and a principal place of business located at 1445 Holly Pike, Carlisle.
Cumberland County, Pennsylvania 17013: and
WHEREAS. the Commonwealth has alleged thatlhe Defendant engaged in conduct
violative of the Consumer Proteclion Law, Auto Regs. and Vehicle Code. as more fully set
forth herein:
I. The Commonwealth alleged that the Defendant sold motor vehicles and failed to
provide consumers with an odometer mileage statement or a copy of the front and back of a
Pennsylvania title at or prior to the time of sale in violation of ~ 7134(b) of the Vehicle Code
and ~ 301.4(a)(3) ofthe Auto Regs:
2. The Commonwealth alleged that the Defendant sold motor vehicles and failed to
retain an odometer mileage statement or a copy of the front and back of a Pennsylvania title in
violalion of ~ 7135 of the Vehicle Code;
3. The Commonwealth alleged that the Defendant failed 10 disclose 10 consumer
McElwee at the time of sale that the mileage on the vehicle purchased by him eJlceeded the
mechanical limits of the odometer and was 127.112 in violation of ~ 201-2(4)(v) and (ltvii) of
the Consumer Protection Law:
4. The Commonwealth alleged that the Defendant failed 10 assign the title to
consumer McFJ~,<<'s vehicle to the consumer at the time of delivery and notarized the title in
blank in violation of U 1111(a) and 1119 of the Vehicle Code. respectively;
S. The Commonwalth alle~ that the Defendant utililtd defICient contracts in
violation of t )01.4(1)(2)(vl of the Auttl Regs;
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6. The Commonwealth alleges thatlhe Defendalll failed to timely submit title and
registration documents to the Pennsylvania Department of Transportation atlea.~ttwel1ly.four
(24) times in violation of ~ 301.4(a)( 10) of the Auto Regs: and
7. The Commonwealth alleges that the Defendant sold a reconstructed vehicle to
Javier Barranco without disclosing that condition on the purchase order in violation of *
301.4(a)(2)(iii) of the Auto Regs and * 201-2(4)(v) and (xvii) of the Consumer Protection
Law.
WHEREAS. the Defendant denies any wrongdoing or violation of law in regard to
consumers Shawn McElwee and Javier Barranco: and
WHEREAS. the Defendant desires to comply with these laws of the Commonwealth.
and has agreed to cease and desist from the matters alleged in the Commonwealth', ("(..npl.unt
by consenting to the provisions set fonh herein: and
WHEREAS. the panies are agreeable in this mailer to accept this Consent l'elllKlII In
lieu of proceeding to trial: and.
WHEREAS. the Defendant agrees by the signing of this Consent Petition iiI rea'ellllc
any and all obligations, liabilities. respon.stbilities and cllcumbralll,'es as set fonll In thIS
Consent Petition.
NOW THEREFORE. the Defendant. Ualloll (\lIIWnlllllli. hl(,. M\llll! l'OOOUl1rd
bIBiness in this Commonwealth. aarees I{)I' itself, i" SllCl'eWln, assi,ns. .illClltS. ClUf'kly<<\.
TqlfnCIltIthn aoo all other JlCfSllll'l leUllI! (1II il!i behalf. dmtty ,lr 100lf\"t:lIy, lOOn tdually Ilr
thmu&h any ~ <<\1<<'. as tulklln:
,
I. The parties agree that this Consent Petition and the Court's order adopting it
shall serve as the final decree regarding this matter and shall finally resolve all issues arising
out of or that could arise from this litigation and the Commonwealth's related investigation of
the Defendant. This Consent Petition shall not prevent that Commonwealth from investigating
or acting upon potential violations of law that occurred prior to this litigation and that were
unrelated to any of the transactions referenced in the Complaint in Equity, this Consent
Petition and the materials produced by the Defendant in response to discovery requests.
II. The Defendant shall comply with any and all provisions of the Consumer
Protection Law. Auto Regs, and the Vehicle Code, and is permanently enjoined from any
violation thereof.
III. Specifically. the Defendant shall comply with all provisions of Subchapter 0 of
the Vehicle Code, 75 Pa. C,S. U 7131-7139, and provide consumers with, and retain copies
of, odometer mileage statements or copies of the front and back of titles to all vehicles sold
with all mileage information completely filled in prior to or at the time of sale. The Defendant
is excused from compliance with this paragraph in any transaction that falls within the
elceptions enumerated in G 7134(e) of the Vehicle Code.
IV. The Defendant agrees to waive any claim to monies owed by consumer
McElwee pursuant to his purchase of the 1987 Ford Tempo or any repairs made thereto.
V, The Defendant shall pay one thousand fi\'e hundred dollars (S I ,500.00) to the
Commonwealth as a civil penalty.
VI. The Defendant shall pay three thw'llnd tlve hundred dollars IS3.SOO.00) to the
Commonwealth as costs of in\utifation and/or for future public prorection PUfllOSCS,
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Pennsylvania. and delivered to the Bureau of Consumer Protection, 132 Kline Plaza.
Harrisburg, PA 17104.
X. The Commonwealth and Defendant Dawn Conversions, Inc" hereby stipulate
that the Order of Court to be issued pursuant to this Consent Petition for Permanent Injunction
shall be the final judgment and decree in this matter and shall be a permanent injunction issued
under ~ 201-4 of the Consumer Protection Law. Any violation of th is Consent Petition or the
Order of Court accompanying it shall be sufficient cause for the Attorney General to seek
penalties as provided in ~~ 201-8. 201-9, and 201-9.1 of the Consumer Protection law and
any other equitable remedies available to the Attorney General.
Xl. The Court shall maintain jurisdiction over the subject matter of this Consent
Petition and over Defendant Dawn Conversions. Inc.. for the purpose of enforcing the Consent
Petition and the Permanent Injunction entered pursuant thereto.
NOW THEREFORE. before any testimony or evidence has been taken herein, and
without trial or adjudication of the facts or law herein, the Defendant agrees 10 the signing of
this Consent Petition for Permanent Injunction. and to this Court hereby ordering that it shall
be permanently enjoined from breaching any and all of the aforementioned provisions. This
Consent Petition shall serve as notice to the Defendant of said injunction within the meaning of
A 201-8 oflbe Consumer Protection Law.
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