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NO.8
MARCIA BITNER,
Plaintill'
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
97-6043 CIVIL
vs,
FORD MOTOR COMPANY,
Defendant
CIVIL ACTION - LAW
IN RE: PRETRIAL CONFERENCE
Present at a pretrial conference held October 21, 1998, was Samuel B. Fineman, Esquire,
attorney for the plaintiff. James p, Peterson, Esquire, attorney for the defendant, joined by ,
telephone,
The plaintiff in this case seeks relief in connection with the purchase of a 1996 Ford
Mustang from Family Ford in Carlisle, Pennsylvania. The action is based on the Pennsylvania
Automobile Lemon Law, 73 P,S, 1951 et seq.. the Magnuson-Moss Federal Trade Commission
Warranty Improvement Act, 15 U,S.C. Section 2301 et seq" the Pennsylvania Uniform
Commercial Code, 13 P,S, 1101 et seq.. and the Pennsylvania Unfair Trade Practices and
Consumer Protection Law, 73 P,S, 201.) et seq,
This will be a jury trial and, given the application of several statutory provisions, the
charge to the jury will be more complicated than usual. Counsel have agreed to file points for
charge during the week prior to the start of trials on November 9, 1998,
This case is expected to be of two days' duration, The normal number of juror challenges
wi II pertain,
October 2 \, 1998
-IV/' /l JL '
Kj' Hess, J,
t'
Samuel B, Fineman, Esquire
For the Plainti ff
James p, Peterson, Esquire
For the Defendant
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OCT 1 6 199~
SAMUEL B, FINEMAN, Esquire
Identification No, 75717
CAPOZZI AND ASSOCIATES, P,C.
3109 North Front Street
lIarrisburg, P A 17] 10
(717) 90 (-5795
Attorneys ror Plaintiff
MARCIA BITNER,
Plaintiff,
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
: PENNSYL VANIA
v.
FORD MOTOR COMPANY,
Derendant.
: CIVIL COMPLAINT
: LAW DIVISION
: 11/0.97-6043
PLAINTIFF'S PRE-TRIAL MEMORANDUM OF LAW
I. NATURE OF ACTION
Plaintiff seeks relief under three separate and distin~t causes of act ion in connection with his
p~hase of a 1996 Ford Mustang GT from Defendant's authorized dealer, Family Ford in Carlisle,
Pennsylvania. The vehicle is registered in Pennsylvania, Count 1 is based upon The Pennsvlvania
Automo~~~ Lemon Law, 73 P,S, ~ 1951 et seq,_count II is based upon The MalIDuson-Moss
Federal Trade Commission Warrantv Improvement Act, IS U,S,c. ~ 2301 et seq, Count m is based
upon The Pennsvlvania Uniform cornmercial Code, 13 P,S, ~ 1101 et seq" and Count IV is based
upon The Pennsvlvania Unfair Trade Practices and Consumer Protection Law, 73 P,S. ~ 201-1 et
seq,
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Thc purchase price of the vchicle, including registmlion charges, document fccs, sales lax,
Iinance charges and license fces, but excluding othcr collateml charges and damages equaled
$26,870,00,
Arbitmtion in this case can be bypassed due to Cumberland County Local Rule 1301.1,
which sets the arbitmtion threshold at $25,000, In the instant case the amount in controversy far
exceeds $25,000,00 when the amount claimed under Count I is awarded, and attorneys' fees are
added and/or the additional treble damages under the claims set forth in CountllI are added.
II. PLAINTIFF'S STATEMENT OF FACTS:
On or about December 5, 1995, Plaintiff purchased a new a 1996 Ford Mustang GT from
Defendant's authorized new car dealer, bearing vehicle identification number
1 FALP42XOTF 108054, The vehicle was purchased and registered in the Commonwealth of
Pennsylvania, Said vehicle has exhibited numerous defects since the time of purchase, as
referenced in the repair orders for the vehicle. The primary non-conformities with this vehicle
include: defective transmission, reverse gears and engine, The following provides a brief
chronology of repairs: 2/13/96 (defective transmission, reverse sticking in gear and mdio; 3,669
miles); 6/4/96 (defective engine and plug wires; 8,774 miles); 7/24/96 (defective engine and
sensors; 10,816 miles); 9/25/96 (defective transmission and reverse gear; 14,728 miles); 6/2/97
(defective transmission, reverse gear and air-~onditioner; 31,193 miles); 7/26/97 (defective
transmission) and 12127/97 (defective battery).
A. CHRONOLOGY OF REPAIRS
A true and correct chronolob'Y of repair attempts for which Plaintiff has records is set forth
in Plaintiffs Exhibitlisl.
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B. DAMAGES - PURCHASE AND COLLATERAL CHARGES:
J. Purchase Price:
The purchase price of the vehicle totalcd $26,870,00, !!Q! including all collateral charges,
Under the appropriate lemon law rcfund calculation, the statutory deduc!ion for mileage,
determined by the odometer rcading at the first repair (3,669 miles) multiplied by $,10, totals
$366,90, See: 73 Pa,C,S, ~ 1955, Plaintiff, if successful, will opt for a refund of her purchase price
in exchange for tender of the subject vehicle, The undersigned believes counsel can agree as to the
amount, should the jury find a violation under the Lemon Law,
2. Collateral Charges:
a. Repairs:
Plaintiff had to pay for repairs which should have been covered under warranty provisions,
C. NEW VEHICLE LIMITED WARRANTIES: 3 YEARI36,OOO MILES
Defendant issued several written warranties for the vehicle at the tirne of sale. which it
refers to as n "Lirnited New Vehicle Warranty", providing "bumper to bumper" coverage for defects
and/or non-conformities during the fir~t 3 years and/or 36,000 mile period after actual retail
delivery. Only normal wear and tear, abuse, neglect and modification were excluded from
coverage, It is undisputed that warranty work was never declined by a Ford dealer based upon a
warranty exclusion, It is also W1disputed that routine maintenance was performed in accordance
with the manufacturer's guidelines. It is also averred that Defendant is in possession of a copy of
said warranty and is requested to produce same for trial.
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II
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Protection Law, 73 P,S, * 20 I-I ct scq" a statute spccilically incorporated in the Lemon Law, the
Supreme Court slated as lollows:
The Legislature sought by the consumer protection law to benefit the public at
1al'lle by eradicating. among other thlngst tunfalr and deceptive' business
practices. Just as earlier legislation was designed to equalize the position of
employer and employee and the position of Insurer and Insured, this law
attempts ta place on more equal terms seller and consumer. Tbese remedial
statutes are all predicated upon a legislative recognition of the unequal
bargaining power of opposing forces In the market place....slnce the consumer
protection law waSt In relevant part designed to thwllrt fraud In the statutory
sense, It Is to be construed liberally to effect Its object of preventing unfair or
deceptive practices.
Commonwealth v. Monumental Prooerties. Inc" supra., 459 Pa, 457. 460, 329 A,2d 815, 817. See
al,w: Croom v, Seli\!, 464 A.2d 1303 (Pa, Super 1983); Culbreth v, Lawrence J, Miller. Inc" 477
A,2d 491 (Pa.Super, 1984), By enacting the Lemon Law, the Legislature sought to equalize the
disparity between purchaser and manufacturer of a new motor vehicle, To insure compliance.
Section 1961 was added to sanction a violation of the lemon law, by defining such conduct as a ~
se act of unfair trade practices,
The legislative intent was confirmed in the first reported case dealing with the issue, In
Gambrill v, Alfa Romeo. Inc" 696 F,Supp, 1047 (E,D, Pa, 1988; all'd _ F,2d_, 3rd Cir.
5/18/89; rehearing denied _ F,2d _ 3rd Cir, 6/16/89), the District Court slated:
The Automobile Lemon Law enacted by the Pennsylvania Legislature In 1984
changed significantly the rights of new automobile purchasen In that It
expanded the obligations of the manufacturen. The refund or replacement
remedy provided by the act Is available to the purchaser only after the
manufacturer Is unable, after a reasonable time (as defined In the act) to repaIr
the "nonconformity"ld. at 1050,
Should plaintiff prevail, a petition for damages pursuant to the Unfair Trade Practices Act
and Consumer Protection Law will be filed to obtained enhanced damages equal to an additional
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three times the award undcr Count I (Lcmon Law).
C. "NON-CONFORMITY":I)F.FINEU
Section 1952 of the Lemon Law dcfines 11 "nonconformity" as:
A defect or condltloll which substantially 1m paIn the use, value or .afety of ·
new mator vehicle and does not conform to the manufacturer'. express
warranty.
Plaintiff expects to demonstrate that several nonconformilies as delincd above, exist with
the subject vehicle,
D. "REASONABLE NlJMBER OF RF.PAIR ATTF.MPTS": DEFINED
The Pennsylvania Automobile Lcmon Law allows the manufacturer a "reasonable number
of repair attempts" to corrcct 11 "non-conformity," What is rcasonable is a factual issue, though the
statute provides that if thcre have been three (3) attempts, certain legal presumptions will apply.
Baker v, Chrvsler Slip, Op, No, 91-CV-7092 (E,D,Pa.1992), (affirmed: 3rd Cir. 10/08/93). Mesko
v. Ford, Slip, Op, 93-CV-4650 (Padova, E,D,PII. 1994),
These legal presumptions are dclincd in ~ 1956 of the Lemon Law worded as follows:
It shall be presumed that a reasonable number of attempts have been
undertaken to repair or currect nonconformity If: (I) The same nonconformity
has been subject to repair three times by the manufacturer, its agents or
authorized dealen and the nonconformity still exists; or (2) Tbe vehicle Is out-
of-service by reason of any nonconformity for a cumulative total of 30 or more
calendar days. 73 Pa.C.S.~ 1956.
Thus, although a purchaser may return his vehicle to the manufacturer's lIuthorized service
facility, one (I) time prior to the expiration of 12 months or 12,000 miles, (with the vehicle not
repaired) and sustain II viable claim undcr the Lemon Law, the statute triggers II presumption of
"reasonable number of repairs" after three attempts or 30 days out of service, DDGr, ~
(Denying l.xi:ndant's Motion for Judgment N,O,V,), Pollak v, Saab, 93-CV-0926 (Jury
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Interrogatury I), December 14, 1993; Chambers v, I.ud\ffi: 'l3-CV-426I (E,O,Pa, 1994); Poner v.
Ilvundai 92.CV-6439 (E,D.Pa, 1993); Buch v. Volkswal!en 93.CV.1781 (E,D, Pa. 1994); ~
~, It is plaintiffs position that the jury need only decide whether the non-conformily
complained of "substantially impairs the use, value or safety of the vehicle", 73 Pa,C,S, ~1955,
E. CONSUMERSt CHOICE: REFIJND OR REPLACEMENT:
Upon proof of all the elements of a claim. section 1955 provides plaintiff with an option of
remedies, He rnay select eithcr a replacement vehicle of comparable value or a refund of the
pllrchase-price, together with all collateral charges. la, Plaintiff will elect a refund,
F. COLLATERAL CHARGES: DEFINED
A "refund" pursuant to the statute included items which are referred to as "collateral
charges", Id,
In Giacinto v, General Motors Corooration, _F,Supp,_, No, 88.7642, Memorandum
Opinion, (E,D, Pa, 1989j; the Court interpreted the legislative intent behind the phrase "collateral
charges" as including finance charges on the purchase price of the vehicle as but one example, The
Court stated:
Indeed we cannot think of II more appropriate example of a collateral
chanze than a finance chanze .... Mareover, given the Pennsylvania Assembly's
assured awareness that all of the (statel1egls1atures referred to above have, In
some manner, allowed recovery of finance charges, we do not believe that the
Pennsylvania Assembly would have cavalierly turned a deaf ear to the
recovery ofsuch charges.
Id.
At trial, plaintiff will subrnit evidence demonstrating the amount of "collateral charges",
inclusive of finance charges, all dealer costs charged at the time of sale, taxes, tags, dealer-installed
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B. MAGNUSON.MOSS FF.DF.RAL TRADE COMMISSION WARRANTY
IMPROVEMF.NT ACT CLAIM:
Count II of the Complaint alleges a violation of the Mal!lluson.Moss Warrantv Act, The
Act creates jurisdiction for privale causes of action "in any court of competent jurisdiction in any
state or the District of Columbia," (15 U,S,C, 9231O(d)(i)(A)), The MalUluson-Moss Warrantv Act
is intended to end certain abuses regarding consumer product warranties and provides for recovery
of the cost of the goods purchased plus attorney's fees, costs and expenses, Lowe v. Volkswal!en of
American. (E,D.Pa. 94-CV-4404, Diner, J,),
It is well established that the law to be applied to the MalUluson-Moss Act is based upon
stale law, Bolens v, Redman Homes. Inc" 748 F.2d 1058 (5th Cir, 1984); Novosel v, Northwav
Motor Car COrD., 460 F,Supp, 541 (N,D, N.Y. 1978). An analysis of the law begins with an
evaluation of Plaintill's claim pursuant to applicable state law, which in this case, would be the
Uniform Commercial Code and the Unfair Trade Practices and Consumer Protection Law, The
MalUluson-Moss protection also exceeds state law in certain ways, For example, implied
warranties may not be disclaimed for the entire term of a written warranty if the manufacturer or
supplier provides a \\irillen warranty, though the warranty issued may attempt to do so, (15 U,S,C,
92308(a)). In Ventura v. Ford Motor Corporation, 433 A.2d 801, 180 NJ, Super, 45 (1981), the
New Jersey Superior Court analyzed the blend between state law and the Mal!nuson-Moss Act as
follows:
The Magnuson-Moss Warranty-Federal Trade Commission
Improvement Act, supra, was adopted on January 4, 1975, 88 Stat
2183, Its purpose was to rnake 'warranties on consumer products
enforceable.' Note, 7 Rutgers-Camden LJ. 379 (1976), The Act
enhances the consumer's position by allowing recovery under a
warranty act without regard to privity of contract between the
consumer and warrantor, by prohibiting the disclaimer of implied
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warranties in a written warranty, and by enlarging the remedies
available to a consumer for breach of warranty, including the award
of attorney fees. Id, The requirement of priVil; 'If contract between
the consumer and the warrantor has been removed by assuring
consumers a remedy against all warrantors of a product. Ventum v,
Ford Motor Companv. fumm, 433 A,2d 808,
Plaintiff seeks recovery under Magnuson-Moss and concurrent state claims set forth above,
C. UNIFORM COMMERCIAL CODE:
Count III of the Complaint alleges breach of warranty in accordance with the Uniform
Commercial Code as adopted in Pennsylvania,
Plaintiff has asserted various causes of action for breach of warranty and, as an element of
recovery, seek to obtain other damages incurred as a rcsult of the alleged breach, The only purpose
of the manufacturer's New Vehicle Limited Warranty is to provide repairs for the vehicle, In this
case, the warranty failed in its essential purpose, Uniform Commercial Code, ~2719(b) provides:
Where circumstances cause an exclusive or limited remedy to fail of
its essential purpose, remedy may be had as provided in this title, 13
Pa, C,S, ~2719(b),
In accordance with the Uniform Commercial Code, consequential damages are subject to
recovery. Section 7214 provides:
(c) Incidental and Consequential Damages, In a proper case, any
incidental and consequential damages under ~2715 (relating to
incidental and consequential damages of buyer) may also be
recovered, 13 Pa. C,S. ~2714(c),
Section 2715 of The Uniform Commercial Code allows recovery for: "any commercially
reasonable charges, expenses or commissions in connection with effecting cover"; (2715(a)-(2))
and "..,any other reasonable expense incident to delay or other breach," (2715(a)(3 )),
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D. lJNFAIR TRAm: PRACTICES AND CONSlJMER PROTECTION CLAIM:
Section 201-2(4)(xiv) defines unfair or dcceptive acts to include failing to comply with the
terms of any written guarantee or warranty, Section 201-2(4)(xvi) provides for a violation if the
manufacturer:
"makes repairs, improvernents or replacements on tangible, real or
personal property, of a nature or quality inferior to or below the
standard ofthnt agreed to in writing,"
!ll,
Defendant's failure to comply with the terms of its written warranties constitutes an unfair
method of competition. To wit: (1) the warranty was breached; and (2) the repairs made to the
vehicle were below the standard agreed to in writing (i.e, the New Vehicle Limited Warranty
promise to repair defects in materials and workmanship),
The facts surrounding this case establish a clear violation of the Pennsylvania Unfair Trade
Act, and as such, Plain.iff will seek an additional award of up to three times the actual dlI.mages
incurred upon successful result in this case,
IV. POSSIBLE DEFENSES IJNDER THE APPLICABLE LAW:
1. Abuse: Plaintill's vehicle was not subject to abuse,
2, Neglect: Plaintifl's vehicle was not subject to neglect
3. Modification: Plaintill's vehicle was not subject to modification.
4, Non-conformilV not substantial impairment: It is clear that the defects complained
of constitute a "defect or condition" which substantially impair the use, value and/or safety of a
motor vehicle,
Simply pllt, Defendant's anticipated defenses are neither credible, nor grounded in fact
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V. WITNESS LIST:
I. Charles Bitner, Jr., Plaintill's son and primary driver of the subject vehicle,
2. Mr, "Billy" Almasri, Charles Bitner's friend and eye-witness to transmission
concerns,
3, Mr, Nate Stoner, Charles Bitner's friend and eye-witness to transmission concerns,
4, Ms, Nicole Erickson, Charles Bitner's friend and eye-witness to transmission
concerns,
5. Mr. Barry Yeager, Plaintiff's expert witness,
6. Any and all witnesses identified or called by Defendant including its experts,
Corporate Representatives and/or Dealer PersoMel.
VI. SPECIAL COMMENTS:
1. Should Plrintiff prevail, he will seek an award of attorneys' fees and costs under The
PeMsylvania Lemon Law and will petition the Court for same.
2. Should Plaintiff prevail on the underlying claims, the undersigned will seek a
discretionary award of up to three times the damages recovt:red, pursuarlt to Pennsylvania's Unfair
Trade Practices Act and Consumer Protc~tion Law 73 Pa, C,S, 91961, upon Petition to the Court.
VII, ESTIMATED TRIAL TIME:
\. Plaintitl's case: one day,
2, Defendant's case: one-half day,
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VIII. EXHIBIT LIST:
P I. Manufacturer's express written warranty (to be supplied by Defendant)
P2, Purchase Contract
P3, Repair Order dated February 13, 1996,
P4, Repair Order dated June 4, 1996,
P5, Repair Order dated July 24, 1996,
P6, Repair Order dated September 25, 1996,
P7. Repair Order dated June 2, 1997,
P8, Dealership Repair History Summary,
P9. Warranty Claim History Printout from Ford (SE-II),
PIO, Ford Service Program No, 97M91 Bulletin.
P11. Ford Special Services Message Summary,
P12, Technical Service Bulletins issued by Ford that relate to the subject vehicle's
concerns,
PI3, Summary of expert inspection prepared by Barry Yeager on January 24, 1998,
P14. Barry Yeager's currkulum vitae,
PIS, Deposition Transcript of Ford Representative, Eugene Steward dated August 3,
1998,
Plaintiff expects Defendant Ford to stipulate to the admissibility of all exhibits,
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IX, ST A TlIS OF SETfU:MENT NEGOTIATIONS:
Defendant has repeatedly rebuffed Plaintifi's attemrts to negotiate a settlement in the above.
captioned case, despite DefcndWlt's potential exposure and Plaintifl's counsel's repeated attempts to
discuss settlement. In addition, Defendant continues to employ dilatory tactics to deny Plaintifl's a
speedy trial.
X, CONCLUSION:
Plaintiff respectfully requests that judgment be entered in her favor and against Defendant
as set forth herein,
CAPOZZI & ASSD,.CUTES, P.C.
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B)L:~' /'l~
'Samuel B. Fineman, Esquire
1.0, No 75717
3109 North Front Street
Harrisburg, P A 17110
Attorneys for Plaintiff,
Marcia Bitner
Dated: October 15, 1998
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CERTlFICA T~ OF SERVIC~
I, Samuel B. Fineman, Esquire, hereby certify that I am attorney for the Plaintiff', Marcia
Bitner, in the within action; that I am duly authorized to make this certification; and, that on this,
the 16th of October, 1998, I did cause a true and correct copy of Plaintitl's Pre-Trial
Memorandum of Law to be forwarded by first-class United States mail to counsel, addressed as
follows:
James P. Peterson, Esquire
DOBIS & REILLY, P.A,
326 S, Livingston Ave,
Livingston, N.J, 07039
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CAPOZZI A S~06A TE~:C.
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By: '
SAMUEL B, F EMAN, ESQUIRE
Attorney for Plaintiff,
Marcia Bitner
17
OCT 2 2 1998 tP
DOBIS & REILLY. PA
5494 Perkiomen Avenue #313
Reading, P A 19606
(610) 689.8698
Attorneys for defendant, Ford Motor Company
P.A.1,D. #77315
MARCIA BITNER,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PENNSYL VANIA
Plaintiff,
Civil Action
v,
FORD MOTOR COMPANY,
Defendant.
NO, 97-6043
PRETRIAL MEMORANDIJM
NA TURE OF ACTION
The plaintiff has filed suit in the Cumberland County Court of Common Pleas in an
attempt to recover damages allegedly due to defects in her 1996 Ford Mustang. The plaintiff
seeks to recover pursuant to four (4) separate statutory allegations: violation of the Pennsylvania
Lemon Law, violation of the Magnuson-Moss Act, violation of the Uniform Commercial Code,
and a violation of the Unfair Trade Practices and Consumer fraud Act.
DEFENDANT'S STATEMENT OF FACTS
On or about December 5,1995, plaintiff purchased a 1996 Ford Mustang. Subsequent to
taking delivery of the subject vehicle, the vehicle was returned to an authorized Ford dealership
for repairs on four (4) occasions for various concerns within the first 3 1,000 miles of use, On
each occasion, either a successful repair was completed by the dealership or the plaintiff was
informed that the dealership could not veritY the condition In total, plaintiff has hlld only one
repair performed to the transmission and two repairs performp.d to the spark plutjs,
The vehicle has been extensively tested by a Ford Entjineer who has confirmed that the
vehicle is operatintj entirely free from defect At the time of the inspection in April of 1998, the
vehicle had amassed 40,720 miles in under three (3) years, (Moreover, at the time of plaintiff's
deposition in August of 1998, there were exactly 48,003 miles on the vehicle.) The Ford
Engineer has concluded that the tran~mission is operatintj perfectly and no repairs are necessary,
In fact, the last repair for any component of this vehicle occurred over one year ago, on June 2,
1997,
the vehicle was in for repair on more than three (3) occasions, The Court ruled, however, that the
non-conformity did not continue to exist at the time of trial, therefore, the Lemon Law did not
apply,
Ifit is determined that a non-conformity does continue to exist at the time of trial, then the
plaintilTmust prove that the manufacturer was given a reasonable number of attempts to correct
that non-conformity within the first year or 12,000 miles of use, Gambrill, Additionally, the
plaintilTmust establish that the non-conformity did not conform to Ford's express warranty,
There is a statutory presumption that a reasonable number of attempts have been
undertaken by the manufacturer, if the same non-conformity has been subject to repair three (3)
times, or the vehicle has been out of service a total of thirty (30) days within the first year or
12,000 miles. 73 P.S, ~1956, This presumption can be rebutted by the evidence, if the jury finds
that the vehicle was repaired within a reasonable time, regardless of the number of attempts.
PlaintilTin this matter has not had any component of vehicle repaired on more than two (2)
occasions,
Should it be found a manufacturer has been given a reasonable number of attempts and the
problem continues to exist, then the plaintilT must satisfY a second criteria before a Lemon Law
claim is established. The plaintiff also must prove that the alleged defect substantially impairs
either the use, value, or safety of the motor vehicle, It is not enough to merely establish the
presence of a defect, but it also must be shown that this defect has had some severe adverse
impact on the vehicle. Here, the plaintiff will not be able to establish any adverse impact on the
vehicle due to the alleg<:d non-conformities, In fact, the evidence will reveal that this vehicle has
been used in the same fashion since the day of its purchase, (As evidenced by 48,000 miles placed
on the odometer in a two and one half year period.)
POINT II
AT NO TIME OlD FORD MOTOR
COMPANY BREACH THE
EXPRESS WARRANTY GIVEN
TO THE PLAINTIFF AT THE
TIME THE VEHICLE WAS
DELIVERED,
A claim of breach of express wan'anty has to be supported by specific testimony as to the
terms of the warranty and the nature of the breach thereof General Electric Credit COql...!l.
WWta, 16 Chest. 221 (1968), Limitations of warranties are enforceable under the Pennsylvania
Commercial Code, where such limitations are reasonable, Earl Brace & Sons v Ciba-GeillY
Clml., 708 F, Supp 708 (W.D. Pa, 1989).
The express warranty given to the plaintiff in this case is known as a new vehicle limited
warranty wherein Ford Motor Company agrees to repair any defects in factory supplied materials
or workmanship, This type of warranty is specifically acknowledged in the Federal Magnuson-
Moss Act at 15 ~230 1 (10) and ~2303(a)(2),
With every sale, there is also an implied warranty of merchantability to the effect that the
vehicle is fit for the ordinary purposes for which such vehicles are used, P,S, 13 ~2314. Under
certain circumstances, where the seller is aware at the time of the sale of any particular purpose
for which the vehicle is purchased, and that the buyer is relying on the seller's skill to furnish a
suitable vehicle for that particular purpose, an implied warranty of a fitness for a particular
purpose may arise, P.S, 13 ~2314. However, the manufacturer, Ford Motor Company, is not a
party to the retail sales transaction and therefore, an implied warranty for a particular purpose
cannot arise,
A buyer may revoke hislher acceptance of the vehicle ifit has a substantial non-conformity
which impairs its value, and the revocation of acceptance occurs within a reasonable time after the
buyer discovers the ground for it, and before any substantial change in the condition of the goods,
P,S. 13 ~2608. Here, the plaintiff may no longer revoke acceptance because over there has been a
considerable change in the condition of the vehicle,
The measure of damages for a breach of warranty is the difference at the time and place of
acceptance between the value of the goods accepted and the value they would have had if they
had been as warranted. P.S, 13 ~2714, K&C Inc v Westinllhouse Electric Cl2ijl., 263 A, 2d
390,437 PA 303 (1970).
The evidence in this case will show that at no time did Ford Motor Cornpany breach the
express or implied warranty given to the plaintiff at the time the vehicle was delivered. Each
verifiable condition was effectively repaired at no cost to the plaintiff.
DAMAGES
As discussed throughout the Brief, Ford Motor Company does not believe the plaintiff is
entitled to recover any damages. However, should the plaintiff prevail on his Lemon Law Count,
then Ford acknowledges that the plaintiff is entitled to the statutory relief.
Additionally, should the plaintiff not prevail on the Lemon Law Count, but prevail under a
theory of breach of warranty, then Ford Motor Company believes the measure of damages is the
difference at the time and place of acceptance between the value of the goods accepted and the
WITNESSES
Ford Motor Company will call Gene Steward as its expert witness and corporate
representative, Mr, steward will testilY regarding his vehicle inspections as well as the Ford
Motor Company Warranty.
DOCUMENTS
Ford Motor Company anticipates that it will introduce the repair orders as well as the
expert report of Gene Steward.
Respectfully submitted,
DOBIS & REILLY, P.A,
Attorneys for defendant,
Ford Motor Com
J ME P. PETERSON
A I.D. #77315
5494 Perkiomen Ave #313
Reading, PA 19606
(610) 689-8698
DATED: October 13,1998
SAMUEL B. FINEMAN, Esquire
Identification No, 75717
CAPOZZI AND ASSOCIATES, P.C.
1711 North Front Street
Harrisburg, PA 1710~
(717) 901-5795
Attorney for Plaintiff
MARCIA BITNER
231 N. Bedford Street
Carlisle, PA 17013
v.
I COURT OF COMMON PLEAS
I COUNTY OF CUMBERLAND
I PENNSYLVANIA
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CIVIL COMPLAINT
LAW DIVISION
FORD MOTOR COMP~____
c/o CT Corporation
1635 Mark~t Street
Philadelphia, PA 19103
NO.
() 7 - (pOi/J
itJ~nt
NOTICB TO DBPEND
You 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 filin~ in writing with the court you defenses or Objections to the claims set
forth agalnst you. You are warned that if you fail to do 80 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 TAXB THIS PAPBR TO YOUR LAWYBR AT ONCB. Ir YOU DO NOT HAVE A LAllYBR OR
CANNOT ArrORD ONE. GO TO OR TBLBPHONE THB OrrICB SBT PORTH BBLOW TO rIND OUT WHERB
YOU CAN GBT LBGAL HBLP.
LAKYIR .lrlRIAL SIRVICI
COURT ADMINISTRATOR
cmml.t.AH1J COUNTY COURTHOUSI
CARLISLa, PA 11013
(717) 240-6200
A'llSll
Le han demandado a usted en la corte. 5i usted quiere defenderse de eetas de estas
demandas expuestas an las paginas signientes. \lsted tiene veinte (20) dias de plazo
a1 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 forma
escrita sus defensds 0 SUB objeciones a IdS demandds en contra de au persona. Sea
avisado que a1 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 cumpla con todas las proviaiones
de esta demanda. Ueted puede perder dinero 0 SUB propiedades u oetrce derechos
importantes para usted.
LLBVB BSTA DBllANDA A UN ABOGADO INMBDIATAHBNTB. SI NO TIBNB ABOGADO 0 SI NO TIBIlB BL
DINERO SUPICIBNTB DB PAGAR TAL SBRVICIO. VAYA IN PBRSONA 0 LLAMB POR TBLBrONO A LA
OPICINA CUYA DIRBCCION SB BNCUBHTRA BSCRITA ABAJO PARA AVBRIGUAR DONDB DB PUBeB
CONSBGUIR ASISTBNCIA LBGAL.
LAKYI. aa'IRRAL SlaVICI
COURT ADMINISTRATOR
CUKlliIRLAHD COUHTY COURTHOUSI
CARLISLR. PA 17013
(717) 240.fi200
SAMUEL B. FINEMAN, Bsquire
Identification No. 75717
CAPOZZI AND ASSOCIATES, P,C.
1711 North Front Street
Harrisburg, PA 17102
(717) 901-5795
Attorney for Plaintiff
MARCIA BITNER
231 N. Bedford Street
Carlisle, PA 17013
COURT OF COMMON PLEAS
COUNTY OF CUMBERLAND
PENNSYLVANIA
v.
FORD MOTOR COMPAl\TY
c/o CT Corporation
1635 Market Street
Philadelphia, PA 19103
CIVIL COMPLAINT
LAW DIVISION
NO. '7'}- ,"" '(.3 e~ fj--
COMPLAINT
1. Plaintiff, Marcia Bitner, is an adult citizen and legal
resident of the Commonwealth of Pennsylvania, residing at 231
North Bedford Street, Carlisle, Pennsylvania, 17013.
2. Defendant, Ford Motor Company, (hereinafter referred to
as "Ford"), is a business corporation qualified to do business in
the Commonwealth of Pennsylvania, and can be served c/o CT
Corporation, 1635 Market Street, Philadelphia, PA 19103.
BACKGROUND
), On or about December 5, 1995, Plaintiff purchased a new
1996 Ford Mustang GT, manufactured and warranted by Defendant,
bearing the Vehicle Identification Number 1FALP42XOTFIOB054. The
vehicle was purchased and is registered in the Commonwealth of
Pennsylvania.
4 .
The
purchase
price
of
the
vehicle,
including
registration charges, document fees, sales tax, finance and bank
charges but, ~cludin~ other collateral charges not specified, yet
defined by the Lemon Law, totaled more than $26,000.00.
A true
and correct copy of the Sales Agreement is attached hereto, made a
part hereof and marked as Exhibit "A."
5. Plaintiff avers that as a result of the ineffective
repair attempts made by Defendant and its authorized dealer, the
vehicle cannot be used for the purposes intended by Plaintiff at
the time of acquisition; as such, the vehicle is worthless.
6. In consideration for the purchase of the above vehicle,
Defendant issued to Plaintiff several written warranties,
including a three :3) year or thirty-six thousand (36,000) mile
warranty, as well as other standard warranties fully outlined in
the warranty booklet, delivered at time of sale.
COUNT I
LEMON LAW
7. Plaintiff hereby incorporates paragraphs 1 through 6
inclusive as if set forth fully below.
8. Plaintiff, Marcia Bitner, is a "Purchaser" as defined
by 73 Pa. C.S.A. ~1952.
9. Defendant is a "Manufacturer" as defined by 73 Pa.
C,S,A, ~1952.
10. Family Ford Mercury, Inc. located on 170 York Road, in
Carlisle, Pennsylvania, 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 Pa. C.S.A. ~1952.
11. On or about December 5, 1995, Plaintiff took possession
of the above mentioned vehicle and experienced non-conformities as
defined by 73 Pa. C.S.A. 91951 ~ aeg., which substantially impair
the use, value and/or safety of the vehicle.
12. The non-conformities described violate the express
written warranties issued to Plaintiff by Defendant.
13. Section 1955 of the Act provides:
If a manufacturer fails to repair or correct
a non-conformity 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 pnrchase price of the vehicle,
whichever is less.
14. Section 1956 provides a presumption of a reasonable
number of repair attempts if the subject vehicle:
(1)" has been subject to repair three
times by the manufacturer, its agents or
authorized dealers and the non-conformity
still exists...or
(2) . .. is out of service by reason of any
non-conformity for a cumulative total of
thirty of more calendar days."
"
15. Plaintiff has satisfied the above definition as her
vehicle has been subject to repair more than three (3) times for
the same non-conformity, and the non-conformity remains
uncorrected.
16, In addition, the above vehicle has or will be out-of-
service by reason of the non-conformities complained of for a
cumulative total of thirty (30) days or more.
17, Plaintiff has delivered the non-conforming 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 non-conformities.
18. The first warranty repair attempt is believed to have
occurred on or before February 13, 1996 when the vehicle's
odometer showed 3,669 miles. On that date, repair attempts were
made to the vehicle's defective transmission. where the reverse
gear would bind and become stuck. Also, repair attempts were made
to the vehicle's defective radio. A true and correct copy of the
repair invoice is attached hereto, made a part hereof and marked
Exhibit "B."
19. The second warranty repair attempt is believed to have
occurred on or before June 4, 1996. when the vehicle's odometer
showed 8,774 miles. On that date repair attempts were made to the
vehicle's defective engine and problems with the plug wires. A
true and correct copy of the repair invoice is attached hereto,
made a part hereof and marked Exhibit "C."
20. ThEl third warranty repair attempt i8 believed to have
occurred on or before July 24, 1996, when the vehicle's odometer
showed 10,816 miles, On that date, roepair attempts were made to
the vehicle's defective engine and problems with the sensors, A
true and correct copy of the repair invoice is attached hereto,
made a part hereof and marked Exhibit "0."
21. The fourth warranty repair attempt is believed to have
occurred on or before September 25, 1996, when the vehicle's
odometer showed 14,728 miles, On that date, repair attempts were
made to the vehicle's defective transmission, for the same problem
of the reverse gear, which would bind and become stuck. A true and
correct copy of the invoice is attached hereto, made a part hereof
and marked Exhibit "E."
22. The fifth warranty repair attempt is believed to have
occurred on or before June 2, 1997, when the vehicle's odometer
showed 31,193 miles. On that date, repairs were made again to the
vehicle's defective transmission, for the same problem with the
reverse gear, which would bind and become stuck. Also, repair
attempts were made to the vehicle's defective air conditioner
blower motor. A true and correct copy of the repair invoice is
attached hereto, made a part hereof and marked Exhibit "F,"
23. The vehicle continues to exhibit defects and
conformities which substantially impair its use, value
safety as provided in 73 Pa. C.S.A 91951 ~ ~..
non-
and/or
24. Plaintiff has 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 Pa. C.S.A.
!i1951 ~ ~.
25. plaintiff further avers that she has resorted to the
Ford Motor Company's Arbitration process at the Dispute Settlement
Board (DSB) prior to filing the within Complaint as required by 73
Pa. C.S.A, 91959. A true and correct copy of the DSB's opinion
letter is attached hereto, made a part hereof and marked as
Exhibit "G."
26. Pursuant to 73 Pa. C.S.A. 91958, Plaintiff seeks relief
for losses due to the non-conformities and defects in the above-
mentioned vehicle in addition to reasonable attorney fees and all
court costs.
WHEREFORE, Plaintiff respectfully demands judgment in her
favor and against Defendant in an amount equal to the purchase
price of the subject vehicle, plus all available collateral
charges and attorney fees.
COUNT II
MAGNUSON-MOSS CLAIM
27. Plaintiff hereby incorporates paragraphs 1 through 26
by reference as if set forth at length herein.
28. Plaintiff is a "Consumer" as defined by 15 U.S.C.
~2301 (3) .
29, Defendant is a "Warrantor" as defined by 15 U.S.C.
~2301 (5) .
30. 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.
31. Defendant's authorized service
facility has made
attempts on several occasions to comply with the terms of its
express warranties; however. such repair attempts have been
ineffective.
32. As a direct and proximate result ot Defendant's failure
to comply with the express written warranties, plaintiff has
suffered damages and, in accordance with 15 U.S.C. ~2310 (d) (1),
Plaintiff is entitled to bring suit for such damages and other
legal and equitable relief.
33. Title 15 U.S.C. 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.
34. Plaintiff avers that upon successfully prevailing upon
the Magnuson-Moss claim herein, all reasonable attorney fees are
recoverable and are demanded against Defendant.
WHEREFORE, plaintiff respectfully demands judgment in her
favor and against Defendant in an amount equal to the purchase
price of the subject vehicle, plus all available collateral
charges and attorney fees.
COUNT III
~FORM COMMERCIAL CODE
35. Plaintiff hereby incorporates paragraphs 1 through 34
by reference as if set forth at length herein.
36. The defects and non-conformities 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.
37. The purposes for which Plaintiff purchased this vehicle
include but are not limited to their personal, family and
household use.
38. At the time of this purchase and at all times
subsequent thereto, Plaintiff has justifiably relied upon
Defendant's express warranties and implied warranties of fitness
for a particular purpose and implied warranties of
merchantability.
39. At the time of the purchase and at all times subsequent
thereto, Defendant was aware Plaintiff was relying upon
Defendant's express and implied warranties, obligations, and
representations with regard to the subject vehicle.
40. Plaintiff has incurred damages as a direct and
proximate result of the breach and failure of Defendant to honor
its express and implied warranties.
41. Such damages include, but are not limited to, the
purchase price of the vehicle plus all collateral charges,
including attorney fees and cosr.s, as well as other expenses, the
full extent of which are not yet known.
WHEREFORE, Plaintiff respectfully demands judgment in her
favor and against Defendant, in an amount equal to the purchase
price of the subject vehicle, plus all available collateral
charges and attorney fees.
COUNT IV
UNFAIR TRADB PRACTICES AND CONSUMER PROTBCTION CLAIM
42. Plaintiff hereby incorporates paragraphs 1 through 41
by reference as if set forth at length herein.
43. Section 1961 of The Pennsylvania Automobile Lemon Law,
provides that a violation of its provisions is also a violation of
the Unfair Trade Practices and Consumer Protection r,aw.
44. In addition, the Unfair Trade Practices and Consumer
Protection Law defines unfair methods of competition to include
the following:
(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.
45. Plaintiff believes, and therefore avers, that the
reckless, wanton and willful failure of Defendant to comply with
the terms of the written warranties constitutes an unfair method
of competition.
46. Section 201-9.2(a) of the Unfair Trade Practices and
Consumer Protection Law, authorizes the Court, in its discretion,
to award up to three (3) times th,~ actual damages sustained for
violations of the Act.
WHEREFORE, Plaintiff respectfully demands judgment in her
favor and against Defendant in an amount equal to three (3) times
the purchase price of the subject vehicle, plus all available
collateral charges and attorney fees.
By:
p.e.
VERIFICATION
I, Marcia Bitner verify that I am Plaintiff in this
action and that the statements made in the foregoing Complaint are
true and correct to the best of our knowledge, information, and
belief,
I understand that any false statements made herein are
subject to the penalties of 18 Pa. C.S. 54904 relating to unsworn
falsification to authorities.
, /)/auw d.: &iia~
Marcia Bitner
fllLI NO
1 c,:1M58070L
MIL.Aal
FACTORY REBATE OF
INCLUDED IN SALE PRICE OF VEHICLE
OR TflADE VALUE IN LIEU OF REDUCED
FINANCE flA TE.
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Dispute Settlement Board
P,O, Box 1424
Waukesha. WI 53187-1424
Case Number: 108736506
Meeting Date: September 24, 1997
VIN IFALP42XOTFI08054
September 26, 1997
Mrs, Marcia Bitner
clo Capozzi and Associates, PC
1711 North Front Street
Harrisburg, P A 17102
Dear Mrs, Bitner,
At the Dispute Settlement Board's most recent meeting, we reviewed the history and status of your case
involving your 1996 Ford Mustang, as reported in the statements and supporting documents submitted by
you, the dealer, and Ford Motor Company,
Aller careful consideration of this information, the Board has concluded the warrantable concerns you
reported, including the transmission, air conditioning unit, reverse gear units and radio have been
addressed, The Board based this decision on the Ford Field Service Engineer Report, dated August 28,
1997, which stat cd that the Ford Field Service Engineer met with you to verilY that the concerns had
been addressed, The Board notes that you have not raised any additional concerns regarding your vehicle
or the Engineer's Report since that meeting, Therefore, the Board finds no tllrther action can be taken.
Your request lor a vehicle rellmd is denied,
Decisions by the Board are binding on the dealer and Ford, but not on consumers who are tree to seek
remedies available under State or Federal law, The decisions '.If the Board, however, may be introduced
into evidence by any party in any subsequent legal proceedings that may occur.
On behalf of thc other Board mcmbers, I wish to exprcss our appreciation for the opportunity to review
your request.
Sincerely,
/5/
Rose Ford
Board Chairperson
cc: Ford Motor Company
Family Ford Mercury
I
PLAINTIFF'S
EXHIBIT
r:
,
VERIFICATION
Rachel I!. Meaker, Esquire. hereby states that she is an allomey for Marcia Bitner, Plaintiff
herein, and verities that the statements made in the foregoing Answer to New Maller of Plain tilT,
Marcia Bitner, to Defendant's Answer with New Maller, arc true and correct to the best of her
knowledge, information and belief. The undersigned understands that the statements therein are
made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to
authorities.
"
Dated: January 6, 1998
ir. o. Co
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DOBIS & REILLY, PA
64 Third Avenue
Kingston, PA 18704
(610)689-8698
Attorneys for defendant, Ford Motor Company
ID #68550
MARCIA BITNER,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PA
CASE NO. 97-6043
Plaintiff,
v.
Civil Action
FORD MOTOR COMPANY,
ANSWER AND NEW MAITER
Defendant.
AND NOW, comes defendant, Ford Motor Company, by its attorneys, Dobis &
Reilly, P.A, and files the within Answer and New Matter as follows:
ANSWER
1. Admitted,
2. Admitted.
BACKGROUND
3. Admitted.
4. Admitted.
5. Ford denies ineffective repair attempts.
6. Ford denies issuing the plaintiff several written warranties,
AS TO COUNT I
7. Ford repeats and reiterates its answers to the allegations of paragraphs 1 . 6
with full force and effect as though more fully set forth.
8. Admitted.
9. Admitted.
10. Admitted.
11. Ford denies the existence of any non-conformities,
12, Denied,
13, Admilled.
14. Admilled.
IS, Denied.
16, Denied,
17, Denied.
18, Ford admits that a copy of the repair invoice is attached to plaintifrs
Complaint, but denies the balance of the allegations contained in this paragraph,
19. Ford admits that a copy of the repair invoice is attached to plaintitfs
Complaint, but denies the balance of the allegations contained in this paragraph.
20. Ford admits that a copy of the repair invoice is auached to plaintifrs
Complaint, but denies the balance of the allegations contained in this paragraph.
21. Ford admits that a copy of the repair invoice is attached to plaintifrs
Complaint, but denies the balance of the allegations contained in this paragraph.
22, Ford admits that a copy of the repair invoice is attached to plaintifrs
Complaint, but denies the balance of the allegations contained in this paragraph.
23, Denied.
24. Denied.
25. Admitted,
26. Ford denies that this is an accurate statement of law.
AS TO COUNT II
27, Ford repeats and reiterates its answers to the allegations of paragraphs 1 - 26
with full force and effect as though more fully set forth.
28. Admilled.
29. Admilled.
30, Admilled.
31. Denied,
32, Denied,
33. Admilled,
34. Ford denies that this is an accurate statement of law,
AS TO COUNT III
35. Ford repeats and reiterates its answers to the allegations of paragraphs 1 - 34
with full force and effect as though more fully set forth.
36. Denied.
37. Admilled.
38. Ford denies issuing plaintiff a warranty of fitness for a particular purpose,
39, Denied,
40, Denied.
41. Denied.
AS TO COUNT IV
42. Ford repeats and reiterates its answers to the allegations of paragraphs 1 0 41
with full force and effect as though more fully set forth.
43. Ford denies that this is an accurate statement of law.
44. Admilled.
45. Denied.
46. Admilled.
NEW MATTER
47. The alleged non-conformity, defect or condition does not substantially impair
the use, value or safety of the vehicle.
!, !
WHEREFORE, this defendant requests this Honorable Court tll enter judgment in
115 favor,
CERTIFICATION OF COUNSEL
I certify that the foregoing statements made by me are true. I am aware that if any
of the foregoing statements made by me are willfully false, I am subject to punishment.
CERTIFICATION
I hereby certify that a copy of the within document has been filed with the
Prothonotary's Office in the Court of Common Pleas of Cumberland County, PA, Civil
Action and that a copy of the same was served upon all interested attorneys within the
period of time allowed in accordance with the Rules of the Court.
DOBIS & REILLY, PA
Attorneys for defendant,
Ford Motor mpallY
BY: ~
OBIS
68550
ES P. PETERSON
. #77315
Third Avenue
Kingston, PA 18704
(610) 689.8698
DATED: December 31,1997
CERTIFICATE OF MAII.ING
I, James S. Dobis, Esq., do hereby certify that service of a true and correct copy of
the within defendant's, Ford Motor Company, Answer with New Maller to Plaintifrs
Complaint was made on this 31st day of December, 1997, to the below listed IWl K
petitioner by United Statl:s mail, postage prepaid,
Samuel B. Fineman, Esq.
CAPOZZI AND ASSOCIATES
1711 North Front Street
Harrisburg, PA 17102
.,
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1-!-lU~lT'( OF 1~'Ur1PEhL,\~I!1
t\ !_T nf:)~_ _M_f~f~~!_~___,_._______'_.__4
vr;.:.
FOR r'_lI'].TiJ[L~OMP ANY
-1L.. T I, n m'ia.JU..lil'"
Sheriff, vho beln9 duly ~vorn accordlng
tJ, I'.v, ,oays, that he madE' a diligent search and inquiry for the vlttlln
fl.:Jr1led dpfend~nt, to w~t:
FORD MOTOR COMPANY
but v~s un~ble to locate
Them
in his ballivlck,
He ther,?for€'
derutlzed the sherlff of PHILADELPHIA
to ~erye the vithin COMPLAINT
County, Pennsylvanla,
nn
January
28th, 1998
thlS officE' vas in receipt of
t.he .)tt:-3ched retur-n from
PHILAD]':LPIlIA
County, PennsylvanlB.
~;h(:'rtff';~ Costs:
So ans~~_r3: / ~ ~
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.-:~. ,,:;'-:':-:""'~.-r.,/..:~ ,,"-;ir-
R/,homa-s-r.r ne, 5I,c'[ ill
rILl,~I,:oo?tinq
Out of County
'_~ur,=h:.lrqe
Phtl'ldelphl'i Co.
l8,(!I'Zl
9.00
2.00
11 (,. l'0
91~~,OO CAPOZZI AND ASSOC.
01/2811998
iIl'::'!I n
.:In.l 3lJb;J(':1-ibed t.o beiorp me
.l
, ;?,}~ day 0 i <.....f-......i&.'*f-- _
f.h 1:;
1 "'_'1'1___ A. r,.
,\. LJ.<.J-' n.,.b.,~ ,~______
-r; ~-I~~:j(-j'
1M....,.,.', ".TURN - SUMMON./COMPL.AINT
-y
{W~
(ii' / IJe,--
CO....ON PLIlAS "0, if 1- 6()'13
COUNTV COUAT
VERSUS
T&:FU... II
H--vJ nLo fvv
(Iv
NO. PV(; 9'/
Co,
C I Covt
o Defendant
8Coefendant Company
SERVED AND MADE KNOWN TO
~7H..--'
by handing a true and attested copy of the within Summons/Complaint, Issued in the above captioned matter
on 1/./') / 7 ,19 '17 , at 9.\3() o'clock, If M" E,S,T.lD.S,T,
at It, 1) ~'\' k--I
State of Pennsylvania, to
;f.,/t.- ftu/
, In the County of Philadelphia,
o (I) the aforesaid defendant, personally;
o (2) an adult member of the family of said defendant, with wham said defendant resides, who stated that
his/her relationship to said defendant Is that of
o (3) an adult person in charge of defendant's residence; the said adult person having refused, upan reo
quest, to give his/her name and relationship to said defendant;
0(4)
$-15)
0(6)
the manager/clerk of the place of lodging in which said defendant resides;
agent or person for the time being In charge of defendant's office or usual place of business.
the
and officer of said defendant Company;
So Answers,
JOHN D. GAIl.N, She,llf
BYP~~.c;(~1f.tY2--
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.In The Court ofComnton PIcas of Cumberland County, Pennn'lnmlu
. .
Marcia Bitner
VS.
Ford Motor Company
N 97-6043 Civil
o.
19_
Now, Oc tober 10 19..JU., I SHERIFF OF CUMBERLAND COUNTY, PA do bereby deputlzllbe Sberlrror
PRilade lpll ill Couuly 10 u.cultlblJ Wrll,lblJ depuIAlloa belaa mAde allb. requesl and risk ortb. PlAintiff.
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Sberlff or Cumberland Coun!)', PA.
Affidavit of Sen'ice
Now,
wllbln
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. at
o'clock
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upon
or
by bondlnlllo
oltt3led copy or Ibe orllllaol
Ihe conlenls Ibereor.
o Irue ond
ond mode known 10
So answers,
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Sheriff or
County, Po,
COSTS
Sworn on<l sub,crlbe<l bero..
me this
day of
19_
SERVICE
MILEAGE
AFFIDA VlT
s
s
PRAECIPE fOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
Please list the following case.
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TO THE PIVlllCtU!'ARY OF CLWlERLMIl roMl'Y
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(Check one)
x)
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for JURY trial at the next term of civil co~",
.
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for trial without a jury.
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CAPI'ION OF CASE
(entire caption RUst be stated in full)
(check one)
Marcia Bitner
(x) Civil Action - Law
Appeal fran Arbitration
)
(other)
( Plaintiff)
vs.
Ford Motor Canpany
The trial list will be called on
and October 13, 1998
(Defendant)
Trials commence on November 9. 1998
Pretrials will be held on October 21. 1998
(Briefs are due 5 days before pretrials.)
(The party listing this case for trial shall
provide forthwith a copy of the praecipe to
all counsel. pursuant to local ~le 214.1.)
vs.
No. 97
Civil
6043
19
Indicate the attorney who will try case for the party who files this praecipe.
Samuel B. Fineman, Esquire
Indicate trial counsel for other parties if known.
James Peterson, Esquire D:lbis & Reilly, P.C.. 326 South Livinqston Avenue.
, f,
/ / /
Signed. ~/~/
Print Narre. ~l B. Fineman.
Livingston New Jersey 07039
This case is ready for trial.
\
Escruire
Date. ,I///rr
Attorney for. Plaintiff
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CAPOZZI & ASSOCIATES, P.C.
Attorneys at Law .
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MARCIA BITNER,
Plaintiff,
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
: PENNSYLVANIA
v,
FORD MOTOR COMPANY,
Defendant.
: CIVIL COMPLAINT
: LAW DIVISION
: NO. 97-6043
MOTION TO COMPEL DEPOSITION
And now comes, PlaintilT, Marcia Bitner, by and through her allomeys, Capozzi
and Associates, P.C., and moves this Honorable Court, pursuant to Pa. R.C. P. 4019
(a)( 1 )(iv) to Compel the Deposition of the Corporate Designee of Ford Motor Company,
and in support thereof, states as follows:
1. The instant litigation was commenced in October of 1997.
2. All discovery has been completed exceDt for the exchange of depositions
between the parties.
3. But for the fact that depositions have not been completed in this maller,
this case would be ready for trial.
4. PlaintilThas diligently allem:,ted to take the deposition ofFord's
Corporate Designee.
5. On January 6, 1998, PlaintilT, by and through her altomeys, noticed the
deposition ofFord's Corporate Designee pursuant to Pa. R.C.P. 4007.1, for January 21,
1998, at 8:30am. PlaintilTmailed this Notice of Deposition to 64 Third Avenue Kingston,
PA 18704. This was the address of the Pennsylvania office of Dobis & Reilly at the time
11. A few days before the April 23. 1998. depositiuns. Plaintiff's counsel was
inlormed by Allomey Peterson's secretary that the he was allached at a trial and would
not be able to allend the April 23. 1998 deposition. The inspection of Plaintifrs vehicle
took place on April 23. 1998.
12. Severaltclcphonc calls to AlIomcy Peterson by PlaintilTs counsel went
unanswered. Allomey Peterson never called Plaintill's co-counsel to reschedule the
deposition.
13, On May 4.1998, Plaintiffs co-counsel again requested dates, this time for
the month of May on which depositions might be held. A true and correct copy of this
leller is attached hereto as Exhibit "G."
14. In general. Defense counsel has been evasive and discourteous regarding
discovery, particularly the scheduling of depositions.
15. At all times. Plaintiffs counsel has been willing to accommodate the
schedules of all persons invol ved. by requesting dates on which the Corporate Designee
and Defendant's allomeys were available.
16. After receiving no response to repeated olTers to arrange a mutually
convenient time for depositions. Plaintiff was forced. once again, to unilaterally notice
the deposition of the Ford Corporate Designee. Sai(i notice was dated May 22,1998, and
scheduled a deposition for June 18, 1998. A true and correct copy of the Notice of
Deposition is attached hereto and marked Exhibit "B."
17. On the afternoon of June 17. 1998, less than twenty-four hours before the
scheduled deposition. a secretary from Dobis & Reilly, P. A. called Allomey Rachel H.
Meaker. co-counsel for Plaintiff. and informed her. without explanation, that neither
Allomey Peterson, nor the Ford Corporate Designee would be appearing for the
deposition.
18. Defendant, Allomey Peterson. and the Ford Corporate Designee are in
violation of the discovery rules found at Pa. R.C.P. 4001 et seq.
19. A party is required to seck a Protective Order if he cannot allend a
properly noticed deposition.
20. Defendant did not seek a Protective Order. nor did Defendant notify
PlaintilT ofits unavailability in a reasonable amount of time prior to the scheduled
deposition,
Wherefore. PlaintilTrespectfully requests this Honorable Court to enter an order
compelling Defendant to produce a Corporate Designee for Deposition within thirty (30)
days or suITer sanctions.
CAPOZZI & ASSOCIATES, P.C.
, ., 1/#. I
"~If1f2L{J~
CF.RTIFICATE OF SERVICE
I, Rachel H. Meaker, Esquire, hereby cenify that I am an attorney for the PlaintilT,
Marcia A. Bitner, in the within action; that I am duly authorized to make this
eenification; and, that on the 2nd day of July, 1998, I did cause a true and correct copy of
the within Motion To Compel Deposition, to be forwarded by first-class United States
mail to counsel, addre~sed as follows:
James Peterson, Esquire
DOBIS & REILLY, P.A.
326 South Livingston Avenue
Livingston, New Jersey 07039
CAPOZZI AND ASSOCIATES, P.C.
By~4J~1L
RACHEL H. A R, SQUIRE '
Attorney for PlaintilT,
Marcia Bitner
il
MARCIA BITNER,
Plaintiff,
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
: PENNSYLVANIA
v.
.
.
.
.
: CIVIL COMPLAINT
: LAW DIVISION
: NO. 97-6043
)'lOTlCE OF DEPOSITION
FORD MOTOR COMPANY,
Deleadant.
TO: James P. Petenoa, Elqulre
DOBIS & REILLY, P.A.
64 Third Aveaue
Kiagltoa, PA 18704
Please take notice that Plaintiffs counsel, Samuel B. Fineman, will take the testimony, on
oral examination before a Notary Public, an officer authorized by law to take depositions, of Ford's
Corporate Representative on Wednesday, January 21,1998, at 8:30 a.m., and thereafter at the law
office of Capozzi and Associates, P.C., located at 1711 N. Front Street, Harrisburg, Pennsylvania
17102, at which time and place you are notified to appear and take such part in the examination as
you may be advised and as shall be fit and proper.
'"
CAPOZZI A
ris, P,C,
,
,/
'.
By:
-.----.. .
-
Dated: January 6, 1998
cc:\ Marcia Bitner
I
PLAINTIFF'S
EXHIBIT
If
LAW OffiCES Of
CAPOZZI AND ASSOCIATES, P.C.
1711 NORTH FRONT STREET
HARRISaURG, PENNSYLVANIA 17102
FAX (717) 233-4103
TII U'1I0NE (717) 233.410 1
Direct Dial: (717) 901-5795
January 19, 1998
VIA FACSIMILE
Paul K. Russell, Esquire
326 South Livingston Avenue
Livingston, New Jersey 07039
Fax: (973) 740-2484
RE: Marcia A. Bitner v. Ford Malar Co., CCP Cumberland Cty., No. 97-6043; Richard
LodrldlZe v. Ford Molar Co.. CCP Perry Cty., No. 97-808; Thomas LIDOvslrv v. Ford
Molar Co.. CCP Berks Cty., No. 97-8493; John & Krlsli Smllh v. Ford Molar Co..
CCP Cumberland Cty., No. 97-5329 and Trarv Mover v. Ford Molar Co.. CCP
Lancaster Cty. No. CI-97-12306.
Dear Mr. Russell:
Pursuant to our phone conversation of Friday, January 19, 1998,1 am writing to
memorialize our agreement with respect to above captioned cases. During said conversation,
you pledged to review said cases in eamest for potential settlement negotiations, in exchange
for our withdrawal of the notices of deposition in same, scheduled for Wednesday January 21,
1998.
'"'
We would appreciate prompt evaluation of these claims, and hope to hear from you
regarding these claims by no later than Tuesday, January 27, 1998.
Thank you for your attention to this matter.
PLAINTlFPS
I EX~IT
LAW Of'FICES Of'
CAPOZZI AND ASSOCIATES, P.C.
1711 NORfH FRONT SnEEr
HARRISBURG, PENNSYLVANIA 17102
FAX (717) 233-4103
TUEPIIONE (717) 233-4101
Direct Dial: (717) 901.5797
February 25. 1998
VIA FIRST- CLASS U. S. MAIL
James p, Peterson, Esquire
DOBIS & REILLY, P. A.
326 South Livingston Avenue
Livingston, New Jersey 07039
RE: Marcia Bitner v. Ford Molor Comaanv
Cumberland County Court of Common Pleas No. 97-6043
Our File No. 301297
Dear Mr. Peterson:
I am in receipt of your letter dated February 23, 1998. Enclosed, please find a copy of the
Notice of Deposition I spoke of in my previous correspondence, so that your files may be
complete.
As my client is eager to move forward with this case, he is available almost anytime in
March for the inspection of his vehicle. May I suggest that we take care of the depositions of the
Ford corporate representative, and if you so desire, my client,later on that same day, so that you and
your people only have to make one trip to Harrisburg. To date, the only inconvenient dates on my
March calendar are the 3'd,I6th ,20th and the 30th. I am available, and will ask my client to be
available any other date in March.
Please advise me soon of your most convenient dates in March, so that we may coordinate a
day to inspect my client's vehicle and depose e1ch other's clients.
Very truly yours,
~uld'/llJ~&v
RACHEL H. MEAKER, ESQUIRE
I
PLAlNTlFPS
EXHIBIT
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8.1998 5:1'3"M
NO.3a6
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DOBIS &I REILLY. P.A,
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,RANCIS ..I. REILL"
Ra.chel Meker. E5q.
CAPOZZI 8l. ASSOCIATES
1711 North Front Street
Harrisburg, PA 17102
Re: Bitner v. Ford Motor Company
Dear Ms. Meker:
Pursuant to our conversations regarding the above matter, I bave been advised that
a Ford Engineer will be available for an Inspection and a deposition on either April 23. or
April 28. 1998. Kindly advise whether these dates will be acceptable so I may schedule the
inspection,
f"
Furthermore, I would also like 10 take the deposition of Marci~ Bitner on the same
date. If you have any knowleoge of other individuals who may have pertinent knowledge
of the facts of this case, kindly identify these persons so that I tnay notice their depositions
as well.
I look forward to hearing from you in the near future.
Very troly yours,
P. PETERSON
JPP:jl
VIA PAX TRANSMI1TAL AND REGULAR MAlL
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PLAINTIFF'S
EXHIBIT
F.
MAR 18 '98 16:19
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Direct Dial: (717) 901.5797
CAPOZZI & ASSOCIATES, P.C.
Attor'!teys at Law
"
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March 19, 1998
VIA FIRS1'CLASS Us. MAIL
\
Charles A. Bitner
231 N. Bedford Street
Carlisle, PA 17013
RE: Bitner v. Ford Motor Comoanv
1996 Ford Mustang- Deposition and Inspection by Ford
Dear Mr. Bitner:
This letter will confinn that your deposition has been scheduled for April 23, 1998, at 12
o'cloCk noon. Thank YOII for being flexible. Later that day we will take the deposition of the Ford
corporate representative, The corporate representative will inspect your vehicle the momlng of
April 23, 1998 at Family Ford in Carlisle. You can make arrangements with them to drop it off the
day/night before.
.~
Please arrive at least fifteen minutes early for you deposition so' that Sam and I can prepare
,you for it. Your deposition should take no more than one hour.
As always, if you have any questions about your case, do not hesitate to call Sam Fineman
or myself at the above number:
Very (ruly yours,
. ',i1 ~j~t/ )ii/J(a..tc:C /,--
RAtIiiL H. MEAKER, ESQUIRE
1111 Honh IronllulIl. Hlmsbu,c. PA 1lI0l . Ttlephont (111) 2))-4101 . III (111) 2))-4101 · loulGlplonlinuom
1t16 hsl "lrllon Pikl . Chmy H.~ HJ 01001 . Telephont (609) 424.9626 · III (609) 424.91 J)
-
,
MARCIA BITNER,
Plaintiff,
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
: PENNSYLVANIA
v.
FORD MOTOR COMPANY,
Defendant.
: CIVIL COMPLAINT
: LAW DIVISION
: NO, 97-6043
NOTICE OF DEPOSITION
TO: James P. Pelenon, Esquire
DOBIS & REILLY, P,A.
316 Soulh Llvingslon Avenue
Livingston, New Jeney 07039
Please take notice that Plaintiffs counsel, Samuel B. Fineman, will take the testimony, on
oral examination before a Notary Public, an officer authorized by law to take depositions, ofFord's
Corpomte Representative on Thursday, April 23, 1998, at I :30 p.m., and thereafter at the law office
of Capozzi and Associates, P.C., located at 1711 N. Front Street, Harrisburg, Pennsylvania, 17102,
at which time and place you are notified to appear and take such part in the examination as you may
"
be advised and as shall be fit and proper.
CAPOZZI AND ASSOCIATES, P.C.
By. ~
SAMUEL . FINEMAN, ESQUIRE
Attorney for Plaintiff,
Marcia Bitnel'
Dated: March 19, 1998
I
PLAINTIFF'S
EXHIBIT
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CAPOZZI & ASSOCIATES, P.e.
Attorneys at Law
Direct Dial: (717) 901-S797
May 4, 1998
VIA FIRST. CLASS U. S. MAIL
James P. Peterson, Esquire
DOBIS & REILLY, P. A.
326'South Livingston Avenue
Livingston, New Jersey 07039
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RE: Marcia Bitner v. Ford Molor Comoanll-
Cumberland County No. 97-6041
Our File No. 301297
, '
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,
,
Dear Mr, Peterson:
--
I a:m confident that the recent Ford inspection of the Bitner vehicle ,will result in a
set!lement offer. However, please advise me ofa few dates in May (In which we might dePosc each
other's witnesses so that we can keep this' case moving along. Thank you in advance Cor yoUr
cOoperation. ,,<: -
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Very y yours, '
'4t~~tftit~
RACHEL H. MEAKER, ESQUIRE
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1111 Nonh lronlltRel . Hlrrilburc. IIphone (111) m-4101 · lu (117) 111-410l · loucOplOnline.com
1916 (Ill Hlriton Pike. Cherry Hill. HJ 0800l . Tel.phone (609)424,9626 · lu (609) 414,9Ill
CERTIFICATE OF SERVICE
I, Samuel B. Fineman, Esquire, hereby certify that I am an attorney for the Plaintiff, Marcia
Bitner, in the within action; that I am duly authorized to make this certification; and, that on the 22"4
day of May, 1998, I did cause a true and correct copy of the within Notice of Deposition, to be
forwarded by first-class United States mail to counsel, addressed as follows:
James Peterson, Esquire
DOBIS & REILLY, P.A.
326 South Livingston Avenue
Livingston, New Jersey 07039
CAPOZZI AND ASSOCIATES, P.C.
By:
S.AI B. FINEMAN, ESQUIRE
Allorn for Plaintiff,
Marcia Bitner
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CAPOZZI & ASSOCIATES, P.C. LJ
Attorneys at Law J!J1I JUll 3 1998
I7III101dl fmlllrltt. HarrishulJ, PA 17102 . Telephone (111) nJ-4101 . fu (111) m-410J
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MARCIA BITNER,
PlaIntiff,
: COURT OF COMMON PLEAS
I COUNTY OF CUMBERLAND
: PENNSYLVANIA
Y.
FORD MOTOR COMPANY,
Defendant.
: CIVIL COMPLAINT
: LAW DIVISION
~ NO. 97-6043
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL DEPOSITION
I. HISTORY OF THE CASE
Plaintiff filed this contract action in October of 1997, alleging causes of action under
the Pennsylvania Lemon Law, the Magnuson-Moss Federal Warranty Improvement Act, the
Pennsylvania Unifonn Commercial Code and The Pennsylvania Unfair Trade Practices and
Consumer Protection Law. The Complaint was filed on October 30, 1997. Defendant filed
an Answer and New Matter on December 31,1997. On January 7,1998 Plaintiff filed an
Answer to New Matter. Discovery is complete with the exception of the exchange of
"
depositions. The parties have each had an inspection of the subject vehicle, and have
exchanged Interrogatories and Requests for Admissions and Production of Documents. This
case would be ready for trial but for the lack of depositions.
Plaintiffs counsel has been attempting to schedule depositions since January of
1998. Plaintiff has at all times been available for depositions. Further, Plaintiffs counsel has
at all times inquired into the schedule of the Defense counsel and the Corporate Designee.,so
that depositions eould be scheduled at a mutually convenient time. Defendani's counsel has
consistently failed to give available dates when asked, and/or cancelled agreed upon dates at
the last minute. On May 22,1998, Plaintilfproperly noticed the deposition of the Ford
Motor CompWlY Designee for June 18, 1998. Plaintill's counselreccived no objection to
said notice until less thWltwenty-four hours prior to thc properly noticed deposition, when a
stalTperson for DefendWlt's counsel called Plaintiffs counsel and "cWlcelled" the deposition.
Neither the Designee nor counsel for Delcndunt appeared for said deposition.
II. QUESTIONS INVOLVED:
A. Should this honorable court grant Plalntifl'. Motion to Compel
Deposition of the Defendant'. Corporate Designee when Plaintiff
has repeatedly attempted to schedule same for months, and
Defendant's Corporate Designee has failed to appear for a
properly noticed deposition?
Suggested Answer: YES.
III. ARGUMENT:
Rule 4007.1 of the PennsylvWlia Rules of Civil Procedure governs the taking of
deposition by oml examination. This rule states that upon reasonable notice, a party to be
deposed shall be required to appear without subpoena Po.R,C.P. -1007. J (0). Most
ro
jurisdictions deem anywhere from ten to twenty days proper notice under Pa.R.C.P. 4007.1
In the instant case, DefendWlt was given twenty.seven (27) days notice. If the DefendWlt's
Corporate Designee was not available for the date noticed, the DefendWlt's counsel could
have contacted Plaintiffs counsel earlier IhWlthe day before the deposition was scheduled.
Plaintiffs counsel would have rescheduled if given a new date certain. Alternatively, the
proper way to object to discovery which is oppressive or inconvenient, if the parties cannot
agree, is to file a Motion for a Protective Order Pu.R,C.P. -lOll. DefendWlt did not file a
Motion for a Protective Order. and DefendWlt's counsel never asked Plaintiffs counsel to
reschedule Ihe deposilion. Defendanl's counsel hud a secrellu)' call1'luinliffs counsel and
infonn them there would be no deposition the following day as scheduled. PlaintitT can
think of no excuse for such a blalant disregard of the rules governing discovery practices,
not to menlion such obviously dilatory laclics.
Rule 4019 of the Pennsylvania Rules of Civil Procedure states in pertinent part:
(a)(I) The court may, upon mOlion, make an appropriate order if
...(iv) a party or an officer, or a managing agent of a party or a person
designated under Rule 4007.1 (e) to be exwnined, after notice under 4007.1, fails to
appear before the person who is to take his deposition; and/or
...(viii) a party or person otherwise fails to make discovery or to obey an
order of court respecling discovery.
Pa.R,C.P. -IO/9(a)(/)(iv) and (viii).
Defendanl'S failure 10 infonn Plainliffs counsel that Defendanl's counsel and
Corporate Designee would nol appear at the scheduled deposition prior to the day before
said deposition is Ihe equivalent of a failure to appear under 4019 (a)(1 )(iv). Further,
Defendant has failed 10 make discovery under 4019(a)( I )(viii). PlaintitT respectfully
,..
suggests an appropriale order at this time would be an order compelling Defendant to
Produce its Corporate Designee for deposilion "ithin thirty (30) days or sutTer the sanction
of the preclusion of any expert teslimony on the behalf of Defendant at trial.
I"
IV. CONCLUSION:
Wherefore, Plaintiff, Marcia Bitner, respectfully requests that this honorable court
grant Plaintiffs Motion to Compel the Deposition of the Defendant's Corporate Designee,
lUld require Defendant to produce its Designee within thirty (30) days or suffer SllnCtiOns.
CAPOZZI & ASSOCIATES, p, C,
b'
R chel H. Meaker, Esq Ire
Attorney I,D. # 76796
3109 North Front Street
Harrisburg, P A 1711 0
(717) 233-4101
Attorney for Plaintiff,
Marcia Bitner
Date:
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CAPOZZI & ASSOCIATES, P.C. ~)JUL 131998
Attorneys at Law B"
11I111ord1 I",tllntt -llarrisbtIlJ, PA1lI01- Ttltphone (TIT) 111-4101 - III (TIll m-410)
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MARCIA BITNER,
Plllintlff,
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
: PENNSYLVANIA
\I.
FORD MOTOR COMPANY,
Defendllnt.
: CIVIL COMPLAINT
: LAW DIVISION
: NO, 97-6043
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL DEPOSITION
I. mSTORY OF TilE CASE
Plaintiff filed this eontract action in Octobcr of 1997. alleging causes of action under
the Pennsylvania Lemon Law. the Magnuson-Moss Federal Warranty Improvement Act, the
Pennsylvania Unifonn Commercial Code and The Pennsylvania Unfair Trade Practices and
Consumer Protection Law. The Complaint was filed on October 30,1997. Defendant filed
an Answer and New Matter on December 31, 1997. On January 7, 1998 PlaintilT filed an
Answer to New Matter, Discovery is complete with the exception of the exchange of
depositions. The parties have each had an inspcction of the subject vehicle. and have
exchanged Interrogatories and Requests for Admissions and Production of Documents. This
case would be ready tor trial but for the lack of depositions.
Plaintifl's counscl has been attempting to schedule depositions since January of
1998. Plaintifl' has at all times been available lor depositions. Further. Plaintifl's counsel has
at all times inquired into the schedule of the Defense eounsel and the Corporate Designee, so
that depositions eould be scheduled at a mutually convenient time. Defendant's counsel has
consistently tailed to give available dates when asked. and/or cancelled agreed upon dates at
the la~t minute. On May 22,1998. Plailllilfpropcrly noticed the deposition of the Ford
Motor Company Designee lor June 18. 1998. Plailllill's counsel received no objection to
said notice until less than twenty-lour hours prior to the properly noticed deposition, when a
stall' pl:r.R1Il for Dclimdant's counsel called Plaintill's counsel and "cancelled" the deposition.
Neither the: Designee nor counsel f'lr Defendant appeared I'lr said deposition.
II. QUESTIONS INVOLVED:
A. Should this honorahle court grant PlalntlD's Motion to Compel
Deposition of the Defendant's Corporate Designee when Plaintiff
has repeatedly attempted to schedule same for months, and
Defendant's Corporate Designee has failed to appeu for a
properly noticed deposition'!
Suggested Answer: YES.
III, ARGUMENT:
Rule 4007.1 of the Pennsylvania Rules of Civil Procedure governs the taking of
deposition by oral examination, This rule states that upon reasonable notice. a party to be
deposed shall be required to appear without subpoena PlI.R,C.P, -IOIF, /(1I). Most
jurisdictions deem anywhere from ten to twenty days proper notice under Pa.R,C.P. 4007.1
In the instant case, Defendant was given twenty-seven (27) days notice, If the Defendant's
Corporate Designee was not available for the date noticed. the Delendant's counsel could
have contacted Plaintifi's counsel earlier than the day belore the deposition was scheduled.
Plaintiffs counsel would have rescheduled if given a new date certain. Alternatively, the
proper way to object to disco\'ery which is oppressive or inconvenient. if the parties cannot
agree, is to file a Motion lor a Protective Order Pa, R, C. P. -10/2. Defendant did not file: a
Motion for a Protective Order. and Dclendant's counsel never asked Plaintitl's counsclto
IV. CONCLllSION:
Wherefore. Plaintin: Marcia Bitner. respectfully requests that this honorable court
grant Plaintill's Motion to Compel the Deposition of the Defendant's Corporate Designee,
and require Defendant to produce iL~ Designee within thiny (30) days or suITer sanctions.
Attcrney for PlaintilT,
Marcia Bitner
Date:
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CAPOZZI & ASSOCIATES, P.C.
o Attorneys at Law
111\ NOIllI IranI SlRel . Hurilburc, PA 11101. Teltphone (111) llJ-4101 · III (111) llJ-4101
~L 1 3 1998
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MARCIA BITNER.
Plalntlft',
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
: PENNSYLVANIA
v.
FORD MOTOR COMPANY,
Defendant.
: CIVIL COMPLAINT
: LAW DIVISION
: NO. 97-6043
BRIEF JjII SUPPORT OF PLA INTIFF'S MOTION TO COMPEL DEPOSITION,:
I. HISTORY OF THE CASE
Plaintiff filed this contract action in October of 1997, alleging causes of action under
the Pennsylvania Lemon Law, the Magnuson-Moss Federal Warranty bnprovement Act, the
Pennsylvania Unifonn Commercial Code and The Pennsylvania Unfair Trade Practices and
Consumer Protection Law. The Complaint was filed on October 30, 1997. Defendant filed
an Answer and New Matter on December 31, I 'i97. On January 7, 1998 Plaintiff filed an
Answer to New Matter. Discovery is complete with the exception of the exchange of
f"
depositions. The parties have each had an inspection of the subject vehicle, and have
exchanged Interrogatories and Requests for Admissions and Production of Documents. This
case would be ready for trial but for the lack of depositions.
Plaintitl's counsel has been attempting to schedule depositions since January of
1998. Plaintiff has at all times been available for depositions, Further, Plaintitl's counsel has
at all times inquired into the schedule of the Defcnse ~ounsel and the Corporate Designee,.so
that depositions could be scheduled at a mutually convenient time. Defendant's counsel has
consistently failed to give available dates when asked, and/or,cancelled agreed upon dates at
reschedule the deposition. Defendant's counsel had a secretary cull PlaintiO's counsellllld
inform them there would be no deposition the following day as scheduled. PlaintilT Cllll
think of no excuse for such a blatllllt disregard of the rules governing discovery practices,
not to mention such obviously dilatory tactics,
Rule 4019 of the Pennsylvllllia Rules of Civil Procedure stales in pertinent part:
(a)(l) The court may, upon motion, make an IIppropriate order if
...(iv) a party or IIIl officer, or a managing agent of a party or a person
designated under Rule 4007.I(e) to be exwnined, after notice under 4007.1, fails to
appear before the person who is to take his deposition; IIIldlor
...(viii) a party or person otherwise fails to make discovery or to obey an
order of court respecting discovery.
Pa.R.C.P. -IOJ9(a)(J)(iv) alld (viii),
Defendant's failure to infonn Plaintiffs counsel that Defendant's counsellllld
Corporate Designee would not appear at the scheduled deposition prior to the day before
said deposition is the equivalent of a failure to appear under 4019 (a)(1 )(iv). Further,
Defendant has failed to make discovery under 4019(a)(1 )(viii). Plaintiff respectfully
('t
suggests IIIl appropriate order at this time would be IIIl order compelling Defendant to
Produce its Corporate Designee for deposition within thirty (30) days or suITer the sanction
of the preclusion of any expert testimony on the behalf of Defendant at trial.
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IV. CONCLUSION:
Wherefore. PlaintilT, Marcia Bitner. respectfully requests that this honorable court
grant Plaintitl's Motion to Compel the Deposition of the Defendant's Corpomle Designee,
and require Defendant to produce its Designee within thirty (30) days or suITer sanctions.
CAPOZZI & ASSOCIATES, P. C.
R chel H. Meaker, Esq Ire
Attorney J.D. # 76796
3109 North Front Street
Harrisburg, P A 17110
(717) 233-4101
Attorney for PlaintilT,
Marcia Bitner
Date:
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CAPOZZI & ASSOCIATES, P.C.
. Attorneys at Law
I1IIIlonh lroltltntl- Hurilbulf, PA 11102- Ttltphone (111) m-4101 - hx (111) 111-410)
~131998
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Mt. "CIA BITNER,
Plaintiff,
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
: PENNSYLVANIA
v.
FORD MOTOR COMPANY,
Defendant.
: CIVIL COMPLAINT
: LAW DIVISION
: NO. 97-6043
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL DEPOSITION
I. HISTORY OF THE CASE
Plaintiff filed this contract action in October of 1997, alleging causes of action under
the Pennsylvania Lemon Law, the Magnuson.Moss Federal Warranty Improvement Act, the
Pennsylvania Unifonn Commercial Code and The Pennsylvania Unfair Trade Practices and
Consumer Protection Law. The Complaint was filed on October 30, 1997. Defendant filed
an Answer and New Matter on December 31, 1997. On January 7, 1998 Plaintiff filed an
Answer to New Matter. Discovery is complete with the exception of the exchange of
""
depo!itions. The parties have each had an inspection of the subject vehicle. and have
exchanged Interrogatories and Requests for Admissions and Production of Documents. This
case would be rcady for trial but for the lack of depositions.
Plaintilrs counsel has been attempting to schedule depositions sinee January of
1998. Plaintiff has at all times been available for depositions. Further, Plaintilrs counsel has
at all times inquired into the schedule of the Defense counscl and the Corporate Designee,-so
that depositions clluld be scheduled at a mutually convenient time. Defendani's counsel has
consistently failed to give available dates when asked, andlor.cancelled agreed upon dates at
reschedule the deposition. DefcmhUlt's coulI~c1 had a sccrclary call Plaintill's counsel and
infonn them there would be no dcpositi.ln the following day as schcduled. Plaintiff can
think of no excuse for such a blatant disregard of the rulcs governing discovery practices,
not to mention such obviously dilatory tactics.
Rule 4019 of the Pennsylvania Rules of Civil Procedure states in pertinent part:
(a)( 1) The court may, upon motion, ma1<e an appropriate order if
...(iv) a party or an officer. or a managing agent of a party or a person
designated under Rule 4007.I(e) to be examined, after notice under 4007.1, fails to
appear before the person who is to take his deposition; and/or
...(viii) a party or person otherwise fails to make discovery or to obey an
order of court respecting discovery.
Pa.R,C.P. 4019(a)(1)(iv) and (viii).
Defendant's failure to infonn Plaintiff's counsel that DefemLUlt's cOWlSCland
Corporate Designee would not appear at the scheduled deposition prior to the day before
said deposition is the equivalent ofa failure to appear under 4019 (a)(1 )(iv). Further,
Defendant has failed to make discovery under 40 19(a)( 1 )(viii). PlaintitT respectfully
f'I
suggests an appropriate order at this time would be an order compelling Defendant to
Produce its Corporate Designee for deposition within thirty (30) days or sutTer the sanction
of the preclusion of any expert testimony on the behalf of Defendant at trial.
IV, CONCLUSION:
Wherefore, Plaintiff, Marcia Bitner, respectfully requests that this honorable court
grant Plaintiffs Motion to Compel the Deposition of the Defendant's Corporate Designee,
and require Defendant to produce its Designee within thiny (30) days or suffer sanctions.
CAPOZZI & ASSOCIATES, P. C.
L'
chel H. Meaker, Esq Ire
Allomey 1.0. # 76796
3109 North Front Street
Harrisburg, P A 17110
(717) 233-4101
Attorney for Plaintiff,
Marcia Bitner
Date:
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CERTIFICATE OF SERVICE
I, Rachel H. Meaker, Esquire. hereby certify that lam an attorney for the Plaintiff,
Marcia Bitner, in the within action; that I am duly authorized to make this certification;
and, that on the 2nd day of July, 1998, I did cause a true and correct copy of the within
Briefin Support of Plaintiff's Motion To Compel Deposition, to be forwlll'ded by first-
class United States mail to counsel, addressed as follows:
James Peterson, Esquire
DOBIS & REILLY, P.A.
326 South Livingston Avenue
livingston, New Jersey 07039
By:
R CHEL H. MEA
Attorney for Plaintiff,
Marcia Bitner
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DOBIS & REILLY, P.A,
ATTORNEYS AT LAW
328 SOUTH LIVINGITON AVIM.C
LIVINGSTON, NEW JI,..U 01038
BERNARD A LEROE.
.JAMES S. DOBIS.
MARY E. FRIEDBERG
PAUL K, RUSSELL"
JAMES P PETERSON..
RY AN A OORNISH
-"\.10 ~[MB[A or N' AND PA IARI
"AL50 114[10411:" or PA. BAA
+CEArl"tO CIVIl TAIAL ATTOANty
.731140.2474
TCLU.. .7317..0.2.......
Emili: dobnredlyOaol,com
NEW YORK O"'CE
'317 TH'RO AVENUE
SU'TE 100
NEW YORK. NEW YORK 10021
'212' &513.33'0
PENNSYLVANIA OFFICE
S494 PERKIOMEN AVENUE '313
READING. PENNSYLVANIA Iseoe
'&'01 &89-8&518
October 21, 1998
OF COUNln
FRANCIS J. REilLY
omcc of the Prothonotary
Cumberland Count 0 Common Pleas
se quare
Carlisle. P A 17013-3387
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Re: Bitner v. Ford Motor Company
No. 97-6043
Dear Sir/Madame:
Enclosed please find defendant, Ford Motor Company's proposed Jury Instructions and
proposed Jury In\errogatories. Kindly file same and forward the enclosed courtesy copy along to
The Honorable Judge Hess.
Please call should you need any further information.
JPP/jg
Enc!.
cc: The Honorable Judge Hess (w/encl.)
Sam Fineman, Esq. (w/enc!.)
DOBIS & REILLY, P.A.
5494 Perkiomen Avenue 11313
Reading, PA 19606
(610) 689.8698
Attorneys for defendant, Ford Motar Company
P,A, I,D, #77315
MARCIA BITNER,
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff,
Civil Action
v,
FORD MOTOR COMPANY,
Defendant.
NO. 97.6043
DEFENDANT, FORD MOTOR COMPANY'S PROPOSED JURY INSTRUCTIONS
JURY INSTRUCTION NO.1
The burden is on the plaintiff in a civil action such as this, to prove every essential
clement of her claim by a "preponderance of the evidence," A preponderance means such
evidence as, when considered and compared with that opposed to it, has more convincing force
and produces in your minds a belief that what is sought to be proved is more likely true than not
true. In other words, to establish a claim by a "preponderance of the evidence" means to prove
that a claim is more likely so than not so,
i...'
JURY INSTRUCTION NO. J
The Lemon Law is not d.:signed to provide remedies to consumers for every problem
which exists with a motor vehicle within the specified 12,000 miles of operation or one (I) year
following the date of original delivery, A "lemon" is not any automobile which has some "defect",
only such defects which qualifY as "non-conformities" in accordance with the definition contained
in 73 Pa, CS, ~ 1954 can qualifY for treatment as "lemons" where the manufacturer or dealer is
unable to repair the non-conformity within the reasonable time standards established in the Act,
Thus, the fundamental determination required in any "Lemon Law" case is whether the asserted
defect is a "non-conformity", Ifit is not, then regardless of whether or not the manufacturer or
dealer has been unable to eliminate the defect, and regardless of how many times repairs have
been attempted without success, or regardless of how long the manufacturer or dealer has
retained the vehicle, no relief can be granted. Thus, the statute is not an all encompassing
guarantee or insurance policy, It is instead designed to deal with specific problems which have
"substantial" impact on the "use, value, or safety" of the vehicle.
Penn!Q'lvania Lemon Law, 7J Pa, C.S, ~1955,
JURY INSTRUCTION NO. !5
If you find Ford Motor Company was not given a reasonable number of repair attempts to
correct the non-confonnity, then you must find in favor of Ford Motor Company, The time provided
in the statute is one (1) year or 12,000 miles,
Pennsylvania Lemon Law, 73 Pa, C.S, ~ 1955,
Gambrill v Alpha Romeo Inc, 696 F. Supp, 1047, at 1050 (E,O, Pa. 1988).
JURY INSTRUCTION NO.7
The Lemon Law Act defines a non-conformity as, "A defect or condition which substantially
impairs the use, value, or safety of a new motor vehicle and does not conform to the manufacturer's
express warranty,"
Your job is to review the witness testimony, along with the repair invoices, and determine if
anyone of the non-conformities, which were reported within the first year or 12,000 miles of
operation, substantially impair the plaintitrs use, value, or safety of the vehicle.
Pennsylvania Lemon Law, 73 Pa, C,S, ~1952 and ~1954,
JURY INSTRUCTION NO.9
In order to recover under the provisions of the Pennsylvania Lemon Law, the plaintiff must
establish that the subject vehicle is unsafe to drive, the vehicle has depreciated in excess of normal
depreciation, or the vehicle is not operable.
Stolle v Nissan Motor CQql , D,D, Pa. 88-5807; instruction adopted in Lewis v Ford Molor
Company, 95-CV-389,
JURY INSTRUCTION NO. 10
Plaintiff contends that there is a presumption that Ford Motor Company failed to repair the
non-conformity within a reasonable number of attempts. In order to find that the presurnption
applies, you must find that Ford Motor Company was given three (3) repair attempts, for the specific
non-conformity, within the first twelve (12) months or 12,000 miles, and the non-conformity
continued to e"ist after the third repair within the first twelve (12) months or 12,000 miles.
Penn!l)'lvanir. Lemon Law, 73 Pa, C.S, ~ 1956,
JURY INSTRUCTION NO. IJ
Plaintiff alleges thaI defendant, Ford Motor Company breached the express automobile
warranty in connection with the sale al1d servicing of plaintiffs automobile, In order for plaintiff to
recover for the brrach of an expressed warranty, he must prove, by a preponderance of the evidence,
that an express warranty was created or provided, that the warranty was breached, and that the
breach of the warranty was the proximate cause of the 1055 sustained,
13 Pa, C.S. ~2714,
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JlIRY INSTRUCTION NO..J.,l
The implied warranty of merchantability requires that the vehicle be reasonably lit for the
general purposes for which it was sold, (fyou lind the vehicle was lit for iu general purposes, then
you mustlind in favor of Ford Motor Company on the implied warranty count.
Frillidinners Inc v Branchtown Gun Club, 176 f.A. ~ 643 (1955),
JURY INSTRlICTION NO. I!!
If you find a breach of warranty, the measure of damages is the difference between the value
of the defective goods and the value they would have had if they would have been as warranted.
IJ Pa, C,S. ~27J4,
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JURY INSTRUCTION NO. 16
The appropriate measure of damages for a breach of a limited warranty under the Magnuson-
Moss Warranty Act is the difference between the value of the defective goods and the value they
would have had if they had been as warranted,
13 P,S, ~ ~714,
JURY INSTRUCTION NO. 17
The Rules of Evidence provide that a scientific, technical, or other specialized knowledge
might assist a jury in understanding the evidence or determining a fact in issue, a witness qualified as
an expert by knowledge, skill. experience, training. or educatior. may testifY and state hislher opinion
concerning such mailers, You should give each expert opinion received in evidence in this case. such
weight as you may think it deserves,
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JIJRY JNSTRIJCTION NO. 18 ':'
If the subject vehicle was used for commercial purposes, you mustlind in favor of Ford
Motor Company on the Magnuson-Moss Count,
15 U,S,C, ~2JOI.
Walsh v Ford Motor Credit Company, 449 N.Y.S.2d. 556 (N.Y, Sup. Cl. 1982).
Richards v General Motors, 461 So.2d. 825 (Ala. Civ, App. 1984),
. .
JURV INSTRUCfION NO. 19
,
\1)
If you find that the subject vehicle was used for commercial purposes, you mustl1nd in favor
of Ford Motor Company on the Unfair Trade Pratices and Consumer Protection Law counl.
73 P,S, ~201-9,2,
Waldo v North American Van Lines Inc, 669 F,Supp, 722 (W,O,Pa, 1987),
Valley Forlle Towers Soulh Condominium v Ron-Ike Foam Insulators Inc, 574 A.2d. 641, 393
Pa.Super 339 (1990), affd. 605 A.2d, 798,529 Pa, 512.
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JIJRY INSTRUCTION NO. 10
If you find a breach of the express limited warranty, the measure of damages is the difference
at the time and place of acceptance between the value of the defective goods and the value they
would have had if they would have been as warranted, /lniform Commercial Code, 13 Pa,C,S,
~2714; Natalie Bras Towinll Service. Inc v MUITI\Y Food Inc, 41 Pa, D,&C,3d 224, 226 (1984),
. .
DOBIS & REILLY, PA
5494 Perkiomen Avenue #313
Reading, P A 19606
(610) 689-8698
Attorneys for defendant, Ford Motor Company
PA JD, #77315
MARCIA BITNER
IN THE UNITED COURT OF COMMON PLEAS,
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff,
Civil Action
v,
FORD MOTOR COMPANY,
Defendant.
NO, 97-6043
PROPOSED SPECIAL JURY INTERROGATORIES
I. LEMON LAW CLAIM
I. Do you find that plaintiff's vehicle possessed a manufacture's defect or a nonconfonnity?
Yes
No
2, Ifso, was that defect or condition repaired and in a reasonable amount of time?
Yes
No
3, If not, did that defect or condition substantially impair the use, value, or safety of the vehicle?
Yes
No
3A. If not, skip 4 & 5 and go directly to II (I),
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II. EXPRESS WARRANTY ClAIM
I, Do you find Ihat an ellpress warranty was provided as 10 the subject vehicle?
Yes
No
2, If so, do you find that the ell press warranty was breached?
Yes
No
3, If50, do you find that this breach was the prollimate cause of the damages sustained by the
plaintift'>
Yes
No
If you have answered "Yes" to all questions I throu~h 3, you are to find in favor of the
Plaintiff on the ell press warranty claim,
If you have answered "No" to ~ questions I through 3, you are to find in favor of the
Defendant on the ellpress warranty claim,
4, Do you find in favor of the Plainliff on the ElIpress Warranty Claim?
Yes
No
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III. IMPLIED WARRANTI' CLAIM
I, Do you find that the subject vehicle was reasonably fit for the ordinary purpose for which it
was intended to be used?
Yes
No
2, Do you find that the subject vehicle conforms to the factual assenions or promises made by
the seller?
Yes
No
If you have answered "No"to ci1hl:r question I or 2, you must find in favor of the Plaintiff
on the implied warranty of merchantability claim.
], Do you find in favor of the Plaintiff on the Implied Warranty of Merchantability Claim?
Yes
No
Ii
IV. Calculation of Express and/or Implied Warranty Darnall"
If you have found in favor of the PlaintitTon ei1hs:r the Express or Implied Warranty Claim,
please calculate damages to be awarded to the PlaintitT as follows
I, The ditTerence at the time and place of acceptance between the value of the car as
accepted and the value it would have had if it had been as warranted, unless special
circumstances show proximate damages of a ditTerent amount, or
2. The loss resulting in the ordinary course of evenlS from seller's breach as determined
in any manner which is reasonable,
Damages to be awarded to PlaintitT : S
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"/ov Ii 1998
-lffi '.' II 6 IctgatP
SAMUEL B, FINEMAN. Esquire
Identilication No, 75717
CAPOZZI AND ASSOCIATES. P.C,
3109 Nor.h Front Street
Harrisburg. P A 17110
(717) 901.5795
MARCIA BITNER,
Plaintiff,
Attofneys fOf Plaintiff
: COURT OF COMMON PLEAS
: COUNTY OF CUMBERLAND
: PENNSYLVANIA
v.
FORD MOTOR COMPANY,
Defendant.
: CIVIL COMPLAINT
: LAW DIVISION
: NO, 97-6043
PROPOSED POINTS FOR CHARGE OF PLAINTIFF. MARCI~ BITNER
"
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Pennsvlvania Lemon Law, 73 Pa. C.S. ~ 1952 and ~ 1954.
JlIRY INSTRlICTlON NO. 1
The Lemon Law defines a non-conformity as, "A defect or condition which
substantially impairs the use, value or safety of a new motor vehicle and does not
conform to the manufacturer's express warranty."
Your job is to review the witness testimony, along with the repair invoices, and
determine if anyone of the non-conformities, which were reported within the first year or
12,000 miles of operation, substantially impair the plaintiff's use, value or safety.
3
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JURY INSTRlICTIDN NO. J
IMPAIRMENT OF DUALITY OF USE
When determining if a non-conformity substantially impairs the use or value of
the automobile, you should consider whethcr the non-conformity has shaken the
plaintiff's confidence in the automobile.
Berrv v. Tovota Motor Sales. USA. Inc., 257 N.J. Super. 152, 63~ A. 2d 1180
(A.D. 1993)
Gordon v. Mercedes-Benz of North America, 94-3215, (E.D. Pa 1995).
4
JURY INSTRllCTION NO. ..
BREACn OF WARRANTY
A warranty is a promise, either express or implied, made by a seller of goods that
the goods he or she sells will possess a ccrtain characteristic or characteristics. The
Plaintill' contends that the Dcfendant made an express, bumper-to-bumper warranty that
covered the subject vehicle for a period of three (3) years or thirty-six thousand miles
(36,000), whichever comes sooner. The Defendant in this case admits making such a
warranty but contends that the warranty was not breached in this instance. I will give you
the legal definition of warranty, and you will find upon the evidence either that a
warranty was or was not in effect in the manner the Plaintiff contends. I f you find that
the warranty was in effect in the manner the Plaintiff contends, you must then decide
whether the Defendant breached the warranty. If you find that the Defendant breached
the warranty, you must finally decidc whether the Defendant's breach of warranty was a
substantial factor in causing the harm that the Plaintiff claims he has sulTered. The three
questions you must decide are therefore: (1) whcther a warranty existed, (2) whether
the Defendant breached the warranty, and (3) whether the breach of the warranty was a
substantial factor in causing harm to the Plaintiff. If you find in favor of the Plaintiff on
all three questions, YOll will return a verdict for the Plaintiff. If you do not find in favor
of the Plaintiff on all three questions, you will return a verdict for the Defendant.
Pa. SSJI (Civ.) 9.00.
5
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JURY INSTRlJCTION NO.8
If you find Dcfcndant has failed to correct onc or more problems with the vehicle
within the first thrce (3) years or thirty-six thousand (36,000) miles, you may award
Plaintiff a full refund of the purchase price if thc problcms that were not tillcd under the
warranty deprived Plaintiff of that which he was entitled to when he purchased the car,
That is, if Plaintiff was deprived of the essential benefit of his bargain he sought when
purchasing the vehicle, you may award full refund of the purchase price, including
payments made to date,
13P,S. Sections 2714,2715.
"
9
JURY INSTRUCTION NO.9
V ALlJATION TESTIMONY OF OWNER
In any action in which an owner of propcrty seeks to recover damages for injury
to such property, the owner is competent to give an opinion as to the value of such
property. Meredith v, Hardv. 554 F.2d 764, 765 (5'h Cir. I 977)(trucks, camper, and
personal property); Caten v, Salt Citv Movers & Storal!e Co.. 149 F,2d 428,433 (2d Cir.
1945). The owner of personal property who is familiar with its original cost and use is
qualified to testify regarding its value, independently of his knowledge of recent sales of
similar second-hand property. (1 Wigmore on Evidence, 813, Sec. 716).
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10
JURY INSTRUCTION NO. 11
When determining if Ford Motor Company has breached any warranty issued to
Plaintiff, you are to examine if Ford has repaired the complained of defect within a
reasonable amount of time or a reasonable number of repair attempts. Just because Ford
Motor Company issued an express warranty covering a period of three (3) years or thirty-
six thousand (36,000) miles, does not mean that it should be provided that length of time
in which to repair a defect or condition. Rather, the question is whether Ford Motor
Company corrected the complained of problem within a reasonable time or a reasonable
number of repair attempls.
"
13
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JURY INSTRUCTION NO, 14
The weight to be given the testimony of an expert is for you, the jury, and you
have the right to believe all, some or none of the testimony of an expert witness. Modem
Federal Jury Instructions, Vol. 3, 76.01(2); Haddil1.an vs. Harkins,44l F.2d 844 (3'd Cir.
1976).
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JURY INSTRlJCTION NO, 15
An expert witness can only express an opinion based on facts supported by the
evidence. If you find that an opinion expressed by an expert was not supported by the
facts presented in this case, then that opinion is of no value and should not be considered
in you deliberation of this case.
See Modem Federal Jurv Instructions. Vol 3, 7601(2).
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JURY INSTRUCTION NO. 16
The rules of evidence provide that if specific, technical, or other specialized
knowledge might assist the jury in understanding the evidence or determining a fact an
issue, a witness qualified as an expert by knowledge, skill, experience. training or
education may testify and state his opinion concerning such matters. You should give
each expert opinion received as evidence in this case as much weight as you think it
deserves. If you decide that an opinion of an expert is not based upon specific principles,
education, and experience, or if you should conclude that the reasons given in support of
the opinion are not sound, or that the opinion is outweighed by other evidence, then you
may disregard the opinion entirely. See Teen-Ed Inc. vs. Kimball Intemational Inc..620
F.2d 399 (J'd. Cir. 1980)
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JURY INSTRLJCTION NO. 17
NUMRER OF WITNESSES
The number of witnesses offcred by one side or the other does not, in itself,
determine the weight of the evidencc. It is a factor, but only one of many factors which
you should consider. Whethcr the witnesses appear to be biased or unbiascd; whether
they are interested or disinterested persons, ~re among the important factors which go to
the reliability of their testimony. The important thing is the quality of the testimony of
each witness. In short, the test is not which side brings the greater number of witnesses
or presents the greater quantity of evidence; but which witness or witnesscs, and which
evidence, you consider most worthy of belief, Even the testimony of one outweighs that
of many, if you have reason to believe his testimony in preference to theirs, Obviously,
however, where the testimony of the witnesses appear to you to be of the same quality,
the weight of the numbers assumes particular significance.
Pa. SSJI (Civ.) 5.03 (Number of Witnesses).
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JURY INSTRUCTION NO. 18
MAGNUSON-MOSS WARRANTY ACT
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For purposes of application of the Magnuson-Moss Act, if the type of product is
normally used for consumer purposes, then that product in any given case is "u consumer
product" regardless of whether it is used for commercial purposes. Nairan Co. for
General Contractinl! and Trading v, Fleetwood Enterorises, Inc. S.D Ga. 1986,659 F.
Supp. 1081.
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JURY INSTRUCTION NO. 19
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Use of the word "normally" in this section defining consumer product as any
tangible, personal property "normally" used for personal, family or household purposes
involves a determination of the product's common, ordinary, or usual use and focuses on
the classwide use of the product; an individual's deviation from the normal use of a
particular type of product will not afl'ect its classification for purposes of this section.
Business Modelinl1. Techniaues. Inc. v. General Motors Corporation. N.Y. Sup. 1984,474
N. Y.S. 2d 258, 123 Misc. 2d 605.
20
JURY INSTRlICTION NO,10
To find a violation of the Magnuson-Moss Federal Warranty Improvement Act,
you must determine that the subject vehicle contained a defect or malfunction that could
not be remedied by the Defendant after a reasonable number of repair attempts. If you
find that said defect(s) or malfunctions have not been remedied after a reasonable number
of repair attempts, it is the defendant's obligaticn to permit Plaintiffs to elect either a
refund for or replacement of the subject vehicle. 15 U.S,C.A. Seciton 2304.
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JURY INSTRUCTION NO, 11
PE~NSYI,VANIA UNFAIR TRADE LAW
Under PeMsylvania Unfair Trade Practices and Consumer Pmtection Law, you
should find a violation thereof if the Defcndant failed to comply with the terms of the
written warrant provided to the buyer at the time of sale, No level of intent is required to
find liability. In addition, a violation of Pcnnsylvania Lemon Law is a per se violation of
the Pennsylvania Unfair Trace Practices and Consumer Protection Law.
PeMsylvania Lemon Law and 73 P.S. Sc:ction 201-2(4)(xiv).
CAPOZZ~I & ASSOCLA TES, P'~'I
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Samuel B. ineman, Esquire
!.D. No. 75717
3109 North Front Street
Harrisburg, P A 17110
Attorneys for Plaintiff
Marcia Bitner
Dated: November 4, 1998
23
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3. Ifso. do you find thaI Ford Motor Company, or its authorized dealer(s). failed to repair
the nonconformity within a reasonable number of repair attempts?
Yes
No
If you answered "Yes" to ~ q'<Iestions I through 3,then you are to find in favor of the
Plaintiff as to the Lemon Law Claim,
If you have answered "No" to l!!!Y of questions I through J, then you are to find in favor
of the Defendant as to the Lemon Law Claim.
4, Do you find in favor of the Plaintiff on the Lemon Law Claim?
Yes
No
If you find in favor of the Plaintiffon the Lemon Law Claim, please answer Question 5.
5, We find the present fair market value of the 1996 Ford Mustang GT to be:
$
If you find in favor of the Plaintiff on the Lemon Law Claim, do not answer portions II,
III, or IV of this form.
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II, Elpress Warranty Claim
I. Do you find that the vehicle's express warranty was breached?
Yes
No
2. If so, do you find that this breach was a substantial factor in causing the damages
sustained by the Plaintiff'?
Yes
No
If you answered "Yes" to both questions 1 and 2, then you are to find in favor of the
Plaintiff as to the Express Warranty Claim.
If you answered "No" to ~ questions I or 2, then you are to find in favor of the
Defendant as to the Express Warranty Claim.
3. Do you find in favor of the Plaintiff on the Express Warranty Claim?
Yes
No
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III, 11IIplled Warranty or Mercbantablllty Claim
I. Do you find that the Defendant breached its warranty that the subject vchic:lc was fit for
the ordinary purpose for which it was intended to be used?
Yes
No
2. Do you find that the subject vehicle dos not conform to the factual assertions or promises
made by the seller?
Yes
No
3, If so, do you find that this breach was a substantial factor in causing the damages
sustained by the Plaintiff'?
Yes
No
If you answered "Yes" to l!!l of questions 1 through 3. then you are to find in favor of the
Plaintiff as to the Implied Warranty of MerchantabiHty Claim.
If you answered "No" to any of questions 1 through 3, then you are to find in favor of the
Defendant as to the Implied Warranty of Merchantability Claim.
4, Do you find in favor of the Plaintiff on the Implied Warranty of Merchantability Claim?
Yes
No
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IV, ClIlcullltioa 01 Elpress lad/or Implied Wlrraaly Dlmalel
If you found in favor of the Plaintiffon either the Express or Implied Warranty Claim, and Il21
the Lemon Law Claim, plea'ie calculate damages to be awarded to the Plaintill' as follows:
1. The difference at the lime and place of acceptance between the value of the car as accepted
and the value it would have had if it had been as warranted, unless special circumstances
show proximate damages of a different amount, or
2. The loss resulting in the oruinary course of events from seller's breach as determined in any
manner which is reasonable,
Damages to be awarded to Plaintiff: $
5
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CERTIFICATE OF SERVICE
I, Samuel B. Fineman. Esquire, do hereby certify that on this 4th day of
November. 1998. served a copy of the foregoing doclI/llent via First-Class. U.S. Mail as
follows:
DOBIS & REILLY, P.A.
An: Paul Russell, Esquire
5494 Perkiomen Avenue #313
Reading, P A 19606
Altomeys for Defendant
CAPOZZI ~~~~,~. PC
BY:c/~/ -<> --
Samuel B. Fineman, Esquire
1.0. No. 75717
3109 North Front Street
Harrisburg, P A 1711 0
Attomeys for Plaintiff,
Mareia Bitner
24
MARCIA BITNER,
Plaintiff
IN THE COURT OF COMMON PLEAS Of
CUMBERLAND COUNTY, PENNS YL VANIA
v.
CIVIL ACTION - LAW
FORD MOTOR COMPANY,
Defendant
NO. 97-6043 CIVIL TERM
VERDICT SLIP
Question I:
Did Defendant breach a duty to PlaintitTunder Pennsylvania's Lemon Law?
Yes_
Not-
Question 2:
If your answer to Question 1 was "Yes," what damages, if any, do you award to
PlainlitT as a result of the breach?
$
r;r'
/
Question 3:
Did Defendant breach a duty to PlaintitTunder the Magnuson-Moss Federal Warranty
Improvement Act?
Yes_
Not
Ouestion 4:
If your answer to Question 3 was "Yes," what damages, if any, do you award to
PlaintitTas a result of the breach?
$
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Question 5:
Did Defendant breach an express or implied warranty to Plaintiff under
Pennsylvania's Uniform Commercial Code?
Ves_
Not-
Question 6:
If your answer 10 Question 4 was .'Yes," what damages, if any, do you ward to
Plaintiff as a result of the breach?
s
d
I
Question 7:
Did Defendant breach a :July to PlaintitTunder Pennsylvania's Unfair Trade Practices
and Consurner Prot~ction Law?
Ves_
NoL
Question 8:
If your answer to Question 7 was "Ves," whal damages, if any, do you award to
Plaintiff as a result of the breach?
s
d
/
/1-/9- 9/i
(Dale)
Dt\TE: 11111 \ (/',;._ "
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