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Home My WebLink About01-4508 COMMONWEALTH OF PENNSYLVANIA BY ATTORNEY GENERAL D. MICHAEL FISHER, Plaintiff TIMOTHY AND MARGE MALEC dPo/a MALEC'S PAMPERED PETS 1200 Market Street Lemoyne, PA 17043, Respondents 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY ASSURANCE OF VOLUNTARY COMPLIANCE WHEREAS, the Commonwealth of Pennsylvania, acting by Attorney General D. Michael Fisher, through the Bureau of Consumer Protection ("Commonwealth"), has caused an investigation to be made into the activities of Timothy and Marge Malec d/b/a Malec's Pampered Pets ("Respondents"), pursuant to the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, No. 387, as amended, June 25, 1997, P.L. 287, No. 27 (73 P.S. §201-1 et seq.) ("Consumer Protection Law"); and WHEREAS, the Respondents are adult individuals engaging in trade and commerce within the Commonwealth as a retail pet store, and maintain a principal place of business at 1200 Market Street, Lemoyne, Pennsylvania; and WHEREAS, the Respondents have engaged in business within the Commonwealth as the owners of Malec's Pampered Pets store at the above-identified location; and WHEREAS, based upon its investigation, the Commonwealth believes that the Respondents have engaged in conduct violative of the Consumer Protection Law, as more fully set forth below: 1. On August 24, 1997, the Puppy Lemon Law went into effect, which amended the Consumer Protection Law, providing specific warranty rights for purchasers of puppies within the Commonwealth. 73 P.S. §201-9.3. 2. On February 12, 2000, the Office of Attorney General issued regulations governing the Puppy Lemon Law and thereafter provided packets of information, including a suggested posted notice, to all licensed sellers of dogs in Pennsylvania. 3. As a seller of dogs, the Respondents provided a Guarantee and Terms of Sale forms and health record for use in the sale of pets, including puppies. A copy of the Respondents' Guarantees and Terms of Sale form and typical health record are attached hereto and incorporated herein as Exhibit A. 4. The Respondents' Guarantees and Terms of Sale forms and health record documents failed to comply with and contradicted the terms of §201-9.3 of the Consumer Protection Law in the following ways: a. The health certificate did not include a seller affirmation that all of the information provided to the buyer is tree to the best of the seller's knowledge and belief', b. The language in the guarantee of good health was inconsistent with the language prescribed by the Puppy Lemon Law; and c. The language in the written notice to buyer was inconsistent with the language prescribed by the Puppy Lemon Law. 5. The Commonwealth alleges that the Respondents' conduct violates §201-9.3(a)(1)(vii), (a)(2)(ii), and (g)(2) of the Consumer Protection Law, which is known more specifically as the Puppy Lemon Law. -2- 6. The Commonwealth also alleges that the Respondents' conduct misrepresented and caused confusion and misunderstanding as to consumers' rights under §201-9.3 of the Consumer Protection Law in violation of §201-2(4)(v) and (xxi) of the Consumer Protection Law. WHEREAS, the Respondents wish to comply with the civil laws of the Commonwealth; and WHEREAS, under the Consumer Protection Law, this Assurance of Voluntary Compliance shall not be considered an admission of a violation for any purpose; and WHEREAS, this Assurance of Voluntary Compliance is accepted by the Commonwealth pursuant to §201-5 of the Consumer Protection Law in lieu of commencing statutory proceedings under §201-4. NOW THEREFORE, having conducted trade and commerce within the Commonwealth, the Respondents agree for themselves, their successors, assigns, officers, partners, agents, representatives, employees, franchisees, retail divisions or stores and all other persons acting on their behalf, jointly or individually, directly or indirectly, or through any corporate or business device, as follows: I. The Respondents shall comply with any and all provisions of the Consumer Protection Law, and are permanently enjoined from any violation thereof. Specifically, within 20 days of the signing of this Assurance, the Respondents shall modify the Guarantees and Terms of Sale forms and health record documents to comply with the terms of §201-9.3 of the Consumer Protection Law and provide their store[s] with copies of these forms and documents. -3- The Respondents' Guarantees and Terms of Sale forms and health record documents may provide additional or greater protection to consumers than those afforded by {}201-9.3, but shall not provide less protection to consumers. The Respondents shall also provide the Commonwealth with a copy of the modified Guarantees and Terms of Sale form and health record documents. II. The Respondents shall pay consumer restitution, consistent with §201-9.3(b) of the Consumer Protection Law, to any consumer who asserts that he or she was or would have been denied coverage under the Respondents' Guarantees and Terms of Sale form for the reasons identified in ¶4 of this Assurance and who submits a claim to the Respondents or the Commonwealth within 60 days of the filing of this Assurance. Any restitution request that is postmarked by the 60th day shall be deemed timely. Any requests made directly to a business shall be forwarded to the Commonwealth at: Office of Attorney General, 301 Chestnut Street, Suite 105, Harrisburg, Pennsylvania 17101. The Commonwealth will provide the Respondents with copies of all claims received by it. Eligible expenses must have been incurred by consumers between August 24, 1997 and the date of this Assurance of Voluntary Compliance. In order to be eligible for restitution, the consumers must provide documentation showing: (1) that their dog was determined by a veterinarian to be clinically ill or unfit for purchase, as defined in §201-9.3 of the Consumer Protection Law, within ten (10) days of the date of purchase or that it was discovered, within 30 days of the date of purchase, to have a congenital or hereditary defect; and (2) that the dog was treated by a veterinarian for the ailment or died. Consumers shall also sign a statement indicating that they did not receive a cash refund or reimbursement for veterinarian bills from the Respondents. Consistent with §201-9.3(b) of the -4- Consumer Protection Law, restitution for veterinarian fees shall be capped at the cost of the dog, excluding sales tax, and initial examination fees and expenses unrelated to the treatment of the ailment shall not be recoverable. Upon presentation to the Respondents of a claim meeting the criteria of this paragraph, the Respondents shall forward payment, in the name of the consumer, to the Commonwealth within ten (10) business days. III. Upon signing this Assurance of Voluntary Compliance, the Respondents shall forfeit and pay, jointly and severally, One Thousand Dollars ($1,000) to the Commonwealth as civil penalties. IV. Upon signing this Assurance of Voluntary Compliance, the Respondents shall forfeit and pay, jointly and severally, One Thousand Dollars ($1,000) to the Commonwealth as costs of investigation and/or for future public protection purposes. V. Any and all payments due and owing under this Assurance shall be made by certified check, cashier's check, attorney's check or money order, made payable to the Commonwealth of Pennsylvania, and forwarded to the Office of Attorney General, Bureau of Consumer Protection, 301 Chestnut Street, Suite 105, Harrisburg, Pennsylvania 17101. VII. The Court shall maintain jurisdiction over the subject matter of this Assurance of Voluntary Compliance and over the Respondents for the purpose of enforcing this Assurance. NOW THEREFORE, without admission of any violation for any purpose, the Respondents agree by the signing of this Assurance of Voluntary Compliance that they shall henceforth abide by each of the aforementioned provisions and that the breach of any one of these terms of this Assurance of Voluntary Compliance shall be sufficient warrant for the -5- Commonwealth of Pennsylvania to petition the Court of Common Pleas of Cumberland County, Pennsylvania to assess the penalties provided for under §§201-8, 201-9, and 201-9.1 of the Consumer Protection Law and to order any other equitable relief which the Court deems necessary or proper. Provided, however, that nothing in this Assurance of Voluntary Compliance shall be construed to waive or limit any right of action by any consumer, or by any local, state, federal or other governmental entity against the Respondents. This Assurance of Voluntary Compliance shall have the same force and effect as a Permanent Injunction issued pursuant to §201-4 of the Consumer Protection Law. Witness this ~/~ day of /g]P~*'~ 2001. FOR THE PLAINTIFF: BY: D. MICHAEL FISHER ATTORNEY GENERAL BY: FRANK T. DONAGHUE FRANK T. DONAGHUE CH~F~TY ATTORN~EY GENERAL BY: M~C~AEL A. ~A A~N DEPUTY ATTORNEY GENERAL ATTORNEY I.D. NO. 69158 FOR THE RESPONDENTS: TIMOTHY MALEC BY: -6- BY: /~EPUTY ATTOIL3~Y GENERAL "ATTORNEY I.D. NO. 58131 OFFICE OF ATTORNEY GENERAL BUREAU OF CONSUMER PROTECTION 301 CHESTNUT STREET, SUITE 105 HARRISBURG, PA 17101 (717) 787-7109 -7- EXHIBIT A MALEC'S PETS ..... GUARANTEES & TERMS OF SALE *THREE YEAR GUARANTEE THAT THE PUPPY YOU PURCHASED AT MALEC'S PETS WILL STAY WITHIN INDUSTRY STANDARD. IF IT DOES NOT, YOU WILL GET 25% OF ORIGINAL PURCHASE PRICE (EXCLUDING SALES TAX) TOWARD ANOTHER PUPPY. THIS CREDIT WILL BE VALID FOR 1 YEAR. THIS DOES NOT APPLY TO PUPPIES THAT ARE SOLD UNREGISTERED OR ON SALE DUE TO STANDARD DEVIATION. *FULL THREE YEAR GUARANTEE ON ALL LIFE THREATENING HEREDITARY CONDITIONS. IF YOU PURCHASE A PUPPY THAT DEVELOPES A HEREDITARY DEFECT(ie hip dysplaysia) WITHIN 3 YEARS FROM THE DATE OF PURCHASE, YOU WILL GET 50% OF ORIGINAL PURCHASE PRICE (excluding tax) TOWARD ANOTHER PUPPY. THIS CREDIT WILL BE VALID FOR 1 YEAR. *FULL TEN DAY GUARANTEE THAT THE DOG IS HEALTHY AS PER INDUSTRY STANDARDS: SEE PUPPY LEMON LAW FOR DETAILS ON THIS GUARANTEE. MALEC'S PETS WILL FOLLOW THE PUPPY LEMON LAW GUARANTEE POLICY OUTLINED BY THE LAW EXACTLY AS NOTED. *MALEC'S PETS WILL NOT PAY ANY VETERINARIAN FEES FOR ANY REASON INCLUDING INITIAL EXAMINATION. THIS DOES NOT APPLY TO THE PROVISIONS IN THE PUPPY LEMON LAW SECTION 9.3 PART (b)(3). **PUPPIES MAY BE REGISTERED BY AKC, UKC, APR, OR ANOTHER R~GISTRY FIRM AT OUR CHI]ICE. GUARANTEE OF GOOD HEALTH: MALEC'S PETS GUARANTEES THAT :~T THE TIME OF PUCHASE (NOTED BELOW) THIS PUPPY IS FREE OF DISEASE, DEFECTS, AND DOES NOT APPEAR TO BE CLINICALLY ILL FROM PARASITIC INFECTIONS. MALECS PETS WILL CALL YOU BY PHONE WHEN REGISTRATION PAPERS ARRIVE IT IS YOUR RESPOSIBLILTY TO PICK THEM UP. I UNDERSTAND AND HAVE RECEIVED A COPY OF MALEC'S PETS GUARANTEE POLICY INCLUDING THE PA PUPPY LEMON LAW AND HEALTH RECORDS. PUPPY TYPE COLOR DATE OF SALE S Em L .OTES_ DATE DATE SEX I HAVE RECEIVED ALL REGISTRATION PAPERS DUE TO ME. PURCHASER DATE