HomeMy WebLinkAbout98-00494
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TIMOTHY W. KENYON
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
No,98- 4qlj
CIVIL TERM
AMERICAN APPLIANCE, INC.,
tJdlb/a AMERICAN APPLIANCE,
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE FOR A WRIT OF SUMMONS
TO: CURTIS R. LONG, PROTHONOTARY
Please enter my appearance on behalf of the Plaintiff for the above-captioned action and
issue a writ of summons upon the Defendant. Please have the Sheriff serve said writ upon the
Defendant at the following address:
American Appliance, Inc., tJdlb/a American Appliance
4800 Carlisle Pike
Mechanicsburg, Pennsylvania 17055
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
Date: January 27,1998
BY(~P"~
D IC . DeArment, Esquire
Supreme Court I. D. No. 77946
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorney for Plaintiff,
Timothy W. Kenyon
TRUE COpy FROM RECORD
10 Tostlmony whereof, I here unto Il8t my haIld
and the seal 01 said Coil at Carlisle, ~'r ")
Thl .;;l ~ (day 0 llL~;.. .-.4-
) c.- " .up<& ~
Pro honotary
Commonwealth of Pennsylvania
County of Cumberland
,
TIMJ'I'HY W. KENYON
VI.
COUrt of Commoll Pleas
Date ----~-~~~?-~_~7______________ t9__~~
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Pl'OThonotary
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No, ----.?-l!.:1~Lc;!YJJd'?_~n_.________ 19____
AMERICAN APPLIANCE, INC.,
T/D/B/A AMERICAN APPLIANCE
4800 CARLISLE PIKE
MECHANICSBURG, PA 17055
In -----~j.~g_!l_<e~~9_lJ. -:-f.-'!~-_____________n__
To -~t'i~-MP.l.i~e.-lnCOJntLdI.bLaAmerican Appliance
You are herebr notified that
.--__J_~~~J(_~:__~~~y~~_______________________.______________________________._________________
the Plaintiff llas ,:ommenced an action in --Cjy.il..~9.!:.i.Q(l_::.J;,9!'<._..___.n___n______n____._____
against you which )'IlU arc required to defend or a default judgment may be entered against you.
(SEAL)
OFFICE: OF THE SHEnlFF
CI),.,I1:,' .' "\i'~ry
JAM ZB 3 117 PH '9B
GI\RLlSLE
PENHSYLVANIA
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f,EliULAH
CASE NO: 1998-00494 r
CotltlOllWEAL TII OF PEHHSYL V MIL t.:
COUNTY OF'CUMBERLAND
.,
,\
KENYON TIMOTHY W
V5.
AMERICAN APPLIANCE INe ET AL
MICHAEL BARRJC!( , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according
to law, says, the within WRIT OF 5unNOllS
UPOII AMERICAN APPLIANCE INC T/D/B/A MIERICAlI APPLIANCE
defE'ndant, at 1550:00 HOURS. on the 29th day of January
192!2. at 4800 CARLISLE PJI(E
MECHANICSBURG, PA 17055 ,CUMBERLAND
County, Pennsylvania. by hand1ng to MICHAEL MCCARTNEY. MANAGER
a true and attested copy of the WRIT OF SUMMONS
""uS sf~rved
the
and at the same time directing His attii.'ntion to the contents thereof.
Sheriff's Costs:
Docketing
Servl.ce
Affidavit
Surcharge
18.00
7.44
.00
::.00
So ~ns',;ers:
r~~~/~(:'
h. I homas r.J.~ne, ~tler"~.I.1
';::i. '14 IHWIlI. l'ICI\!HGHT <.
0::/02/1'3'38
by
Sworn tlnd subscribed to befor~ me
01 j~
this ~~ day
19 99' A. D.
(::;~r'~- f'~ t ~~i;'r'y t /I ~~.
TIMOTHY W. KENYON,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY-PENNSYLVANIA
v.
CIVIL ACTION-LAW
NO. 98-494 CIVIL TERM
AMERICAN APPLIANCE, INC"
tJdlb/a AMERICAN APPLIANCE,
Defendant
JURY TRIAL DEMANDED
NOTICE TO DEFEND
You havc been sucd in court. If you wish to dcfcnd against thc claims sct forth in the
following pagcs, you must takc action within twcnty (20) days after this complaint, order and
notice arc scrved, by cntcring a writtcn appcarancc pcrsonally or by attorncy and filing in writing
with thc court your dcfcnscs or objections to thc claims sct forth against you. You arc warned
that if you fail to do so thc casc may procccd without you and ajudgmcnt may bc cntcrcd against
you by thc court without further money c1aimcd in thc complaint or for any other claim or relief
rcquested by thc plaintiff. You may losc money or propcrty or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pcnnsylvania 17013
(717) 249-3166
(800) 990-9108
Amcricans with Disabilitics
Act of 1990
Thc Court of Common Picas of Cumbcrland County is requircd by law to comply with the
Amcricans with Disabilitics Act of 1990. For infonnation about acccssiblc facilitics and rcasonable
accommodations availablc to disablcd individuals having busincss bcforc thc court, plcase contact our
oflice. All arrangcmcnts must bc made at Icast 72 hours prior to any hearing or business before thc
court. You must allcnd thc schedulcd confcrencc or hcaring.
3.
On July 2, 1995, Pluinliffpurehased u fuctory-ncw Amuna refrigcrator from Defcndant's
rctail store locutcd ut 4800 Curlislc Pikc, Carli sic, Pcnnsylvuniu 17013 for thc purchusc pricc of
Six-Hundrcd Twcnly and 00/100 ($620.00) Dollurs.
4.
At the timc of purchasc, in uddition to the manufacturcr's wurrunty, Plaintiff purchascd a
extendcd warranty from Defendant for an udditional pricc of Onc Hundrcd Ninctecn and 95/100
($119.95) Dollars which, according to thc tcrms ofthc Extcndcd Warrunty, would scrve us a "full
extcnsion of the Manufacturcr's warranty."
5.
The Defendant delivercd and install cd the remgcrator at thc rcsidence of the Plaintiff on
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July 8, 1995.
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In July 1997, Plaintiff bcgan noticing a pungcnt chemical odor emanating from thc
remgerator, which odor permeuted the intcrior of the remgeration und freezer units of thc
appliance, as well as the food contcnts of the remgerator.
7.
Not knowing thc cuusc of thc odor, Plaintiff c1cancd the rcmgerator several times with
baking soda in un attcmpt to rcmovc thc smcll.
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I'laintitl's ullempts to remove the smell with baking sodu wcre unsucccssful, und on July
30th of 1997, Pluintitl. culled thc American Appliuncc Service Centcr to schcdulc u scrvicc cull.
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9.
On or ubout August 2, 1997, onc (I) of Defcndant's techniciuns cvuluutcd thc situation
and chose to replacc thc motor and icc maker whcrc thc tcchnician bclicvcd thc strongcst odor
was dctccted.
,
,
10.
Plaintiff subscqucntly removed and discardcd all food from thc appliancc as thc smcll
permcated any and all consumablcs in thc rcfrigerator, rcndcring all food incdiblc for human
consumption.
II.
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On or about August 14, 1997, thc Plaintiffschcdulcd anothcr scrvice call as the odor was
not ncutralized or climinatcd by the Amcrican Appliance scrvicc tcchnician's prior repair efforts
of August 2, 1997.
12.
On or about August 21, 1997, two (2) of Dcfcndant's tcchnicians re-evaluated the
situation and ordcrcd a rcpJaccment dividcr block and icing kit for thc rcfrigerator.
13.
On or about Septembcr 27, 1997, onc (I) of Dcfcndant's tcchnicians rcplaccd the dividcr
block in the refrigcrator und adviscd Plaintiff that thc rcpair should correct the problem.
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14.
Howcvcr, thc odor pcrsistcd and dcspitc Plaintiffs continuous clTorts to obtain furthcr
scrvicc from Dclendant, Plaintift's calls wcrc not rctumcd in a timely fashion.
15.
On or about Octobcr 15. 1997, Plaintiff contacted Dcfcndant to rcquest anothcr service
call, and at that timc, thc scrvicc tcchnician instructcd Plaintiff to placc charcoal coated with
toothpastc in the refrigcrator and to rotate said fresh toothpaste coated charcoal blocks until the
odor dissipatcd.
16.
The plaintiffcomplicd with thc instructions to placc charcoal coatcd with toothpaste in
thc rcfrigcrator and rotatcd said charcoal blocks with fresh toothpaste for a period of
approximately three (3) wccks. Howcver, despite plaintiffs compliance with this service
dircction, the odor still persisted.
17.
On November 5th of 1997, Dcfcndant gave Plaintiff a product labclcd "Smell Be Gone,"
and Plaintiff was advised that the product would eliminate thc odor.
18.
However, thc "Smell Bc Gonc" product label stated that thc product could be hazardous if
ingested.
19.
Fcaring that thc "Smcll Be Gonc" product would bc hannfu1 if it camc into contact with
thc rcfrigcratcd food, Plaintiff did not to apply thc product.
20.
On or about Novcmbcr 8, 1997, thc PlaintilTagain contactcd thc Amcrican Appliancc
scrvicc departmcnt rcgarding furthcr rcpair ctlbrts to rcmovc thc chcmical odor from his
refrigcrator and spokc with Cartcr, the Amcrican Appliancc salcs rcprcscntativc who originally
sold the unit to Mr. Kenyon. At that timc, Carter instructcd Mr. Kcnyon that nothing further
could bc done with thc rcfiigcrator and that Mr. Kcnyon should "gct a lawycr."
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21.
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Despitc Plaintiff's paticncc and diligcncc in following virtually all dircction from
Dcfendant over a four (4) month pcriod to climinatc thc odor, thc Defcndant has failcd to
succcssfully repair thc rcfrigcrator.
22.
As a result of Dcfcndant's failurc to successfully rcpair thc subjcct rcfrigcrator, the odor
still persists and has rcndcrcd thc refrigcrator unusablc for food storagc.
COUNT I - BREACH OF WARRANTY
23.
Thc avcrmcnts of fact allegcd in itcms onc (I) through twcnty-two (22) arc made a part
hcrcof and incorporatcd by rcfcrence.
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24.
Thc Manufacturcr's Wurranty lor thc subjcct rcfrigcrator statcs that Amanu will rcpair
and rcplacc, frcc of chargc, any part which is dcfcctivc duc to workmanship or matcrials for onc
(1) ycar from thc datc ofpurchasc, and furthcr statcs that Amanu will replacc, free ofchargc, any
part which is dcfectivc due to workmanship or matcrials for thc sccond ycar aftcr purchasc.
25.
At the time of original purchase ofthc rcfrigcrator on July 2, 1995, Plaintiff purchased a
written Extcndcd Warranty from Defcndant Amcrican Appliancc which statcs that the Extcndcd
Warranty is a "full extcnsion ofthc Manufacturcr's warranty."
26.
Thc dcfect in thc subjcct rcfrigcrator was discovcred in July 1997, which datc was bcyond
thc covcrage pcriod for the Manufacturcr's warranty but within thc applicable covcrage pcriod of
the Extended Warranty.
27.
The Dcfendant was promptly notified ofthc defect in the rcfrigerator by the Plaintiff on
or about July 30, 1997.
28.
To date, despitc rcpcated rcqucsts by thc Plaintiff, Defcndant has failcd to succcssfully
rcpair thc subjcct rcfrigcrator, thcreby brcaching its written Extendcd Warranty purchased by thc
Plaintiff.
32.
Thc writtcn Extcnded Warranty for thc subjcct refrigcrator which thc Plaintiff purchnscd
from the Dcfcndant, American Applianec, statcs that thc Extcndcd Warranty is a "full cxtcnsion
of the Manufacturcr's warranty."
33.
Thc odor defect in the subjcct I'Cmgcrator occurrcd shortly aftcr two (2) ycars from thc
datc of purchasc and within the applicablc pcriod of coverage pursuant to thc Extcndcd Warranty
which was purchascd from American Appliancc.
34.
Immediatcly upon discovcry ofthc odor dcfcct in thc rcfrigcrator, thc Plaintiff notified
American Appliancc and rcquested that the dcfect be rcpaired pursuant to the Extcndcd Warranty
Agreement.
35.
At all times relevant hereto, Defendant Amcrican Appliance failed to successfully repair
the defective rcmgerator, thcreby brcaching thc cxprcss warranty issued by the Defendant.
36.
Defcndant's failure to repair the subjcct remgcrator as rcquired under the cxpress written
Extcnded Warranty violates the Unfair Tradc Practices and Consumer Protcction Law, namely 73
P.S. 9201- 2 (4)(xiv), which defincs an unfair or deceptive act as "failing to comply with the
terms of any written guarantec or warranty given to thc buycr at, prior to or after a contract for
thc purchase of goods or scrviccs is madc."
VERIFICATION
The foregoing Complaint is bascd upon information which has been gathcrcd by my
counsel and me in thc prcpnrntion of this action. I hnve read the stntcmcnts made in this
document, and it is truc and corrcct to the best of my knowledge, information nnd bclief. I
understand that false statcmcnts herein madc are subject to thc penalties of 18 Pa.C.S.A. Section
4904, rclating to unsworn fnlsification to authorities.
~~
TIMO W. NYON
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Date: (hf/f.<4,!. 2.., 1998
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