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HomeMy WebLinkAbout01-05005 KELLY R. CULVER and LUKE J. CULVER, Plaintiffs v. CARS BY GETTEL INC. and JOHN KAZOR, JR., Defendants IN THE. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYERS 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, PA 17013 717-249-3166 800-990-9108 KELLY R. CULVER and LUKE J. CULVER, Plaintiffs v. CARS BY GETTEL INC. and JOHN KAZOR, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. D/-~/G~S- Gym`,' CIVIL ACTION -LAW JURY TRIAL DEMANDED COMPLAINT AND NOW COME Plaintiffs, Kelly R. Culver and Luke J. Culver, by and through their attorney, Joseph K. Goldberg, Esquire, who file this Complaint against Defendants, and in support thereof aver as follows: 1. Plaintiffs are Kelly R. Culver and Luke J. Culver, adult individuals who are husband and wife, who reside at 357 College Avenue, Lancaster, Pennsylvania 17603. 2. Defendant Cars By Gettel Inc. (hereinafter referred to as "Gettel"), is a Pennsylvania corporation, with its principal place of business located at 1143 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant John Kazor, Jr. (hereinafter referred to as "Kazor") is an adult individual who is Vice President of Defendant Gettel, and, upon information and belief, is employed by Defendant Gettel as a salesperson at it place of business at 1143 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. 4. Defendant Gettel sells used motor vehicles from its business location listed above. 5. At all times relevant hereto, Defendant Kazor acted as the agent for, and on behalf of, Defendant Gettel. 6. The acts complained of herein all occurred in Cumberland County, Pennsylvania. 7. In mid-July, 2001, Plaintiffs were seeking to purchase a truck for personal, family or household purposes. Upon seeing an ad fora 1998 Ford Ranger XLT placed by Defendant Gettel in a local advertising publication, Plaintiffs contacted Defendant Gettel by telephone to inquire about the Ranger. 8. On July 18, 2001, Plaintiffs went to Defendant Gettel's lot at 1143 Harrisburg Pike to look at the Ranger. 9. While at the lot, Plaintiffs dealt exclusively with Defendant Kazor. 10. In the course of discussing the Ranger, Defendant Kazor revealed to Plaintiffs that the Ranger's title had an "R" brand. Plaintiffs were unaware of the meaning of an "R" brand on a Pennsylvania title. 11. Defendant Kazor explained that an "R" brand means only that an insurance company has declared a motor vehicle to be "totaled," even if the real damage to a motor vehicle is minor. 12. In truth and in fact, and known to Defendants, an "R" title is placed on a title when a motor vehicle has been reconstructed as a result of serious damage to the vehicle. 13. Defendant Kazor told the Plaintiffs that the vehicle had not suffered serious damage, and that the damages was limited to the front bumper, fenders and a 2 wheel well. 14. Defendant Kazor explained that he had pictures of the vehicle that would show that the damage was only minor. 15. Defendant Kazor, however, claimed he could only locate two photographs, one which depicted the vehicle after repair, and one which was a close up of a wheel well. 16. Neither Defendant Kazor, nor anyone else on behalf of Defendant Gettel, mentioned any kind of problem or defect in connection with the vehicle's frame. 17. The Plaintiffs were taken on a test drive of the vehicle under the direction of Defendant Kazor, who took them on a route that did not allow them to drive the vehicle at highway speeds. 18. In reliance upon the representations of Defendant Kazor, Plaintiffs signed an agreement to purchase the vehicle on July 18, 2001. The Buyers Order reflecting the purchase is attached hereto as Exhibit A. 19. Because of the need for a repairs on the vehicle, and the need for Plaintiffs to obtain financing for the purchase, Plaintiffs did not take possession of the vehicle until July 24, 2001. 20. As he drove the vehicle home from Defendant Gettel's lot on July 24, 2001, Plaintiff Luke Culver noticed that the vehicle was pulling severely to the left. 21. On July 26, 2001, the Plaintiffs took the vehicle to an automobile mechanic who inspected the vehicle and determined that the vehicle's frame is twisted. 22. Later on July 26, 2001, the Plaintiffs returned the vehicle to Defendant 3 Gettel's lot, informed Defendant Kazor that they were rescinding the transaction and demanded a return of all monies paid. 23. By letter from Plaintiffs' attorney dated August 7, 2001, further demand was made upon Defendant Gettel to honor the rescission and revocation, and to return Plaintiffs' money to them. 24. To date, Defendants have refused to return all monies paid to them by the Plaintiffs. 25. The amount sought herein by Plaintiffs exceeds $25,000.00, thereby removing this matter from compulsory arbitration in this court. COUNTI RESCISSION 26. The averments of Paragraphs 1 through 25 are incorporated by reference as if fully set forth herein. 27. Defendant Kazor's representations that the vehicle had only suffered minor damage, that the damage was limited to the front bumper, fenders and wheel well, and that an "R" titled vehicle only meant that an insurance company had declared the vehicle "totaled," were false and misleading; were known by Defendants to be false and misleading; were made for the purpose of inducing the Plaintiffs into purchasing the vehicle; and, were justifiably relied upon by the Plaintiffs in deciding to purchase the vehicle. 28. Plaintiffs would not have purchased the vehicle if they had know the true extent of damage to the vehicle. 4 29. Defendant Gettel has refused to honor Plaintiffs' tender of the vehicle and provide a refund of all funds paid. WHEREFORE, Plaintiffs pray for judgment in their favor and against Defendant Gettel, providing the following relief: a) an Order rescinding their purchase of the vehicle and requiring Defendant Gettel to return all funds paid by Plaintiffs in connection with their purchase; b) an award of incidental and consequential damages; c) an award of costs and interest; and d) such additional relief which the court deems necessary or proper. COUNT II UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 30. The averments of Paragraphs 1 through 29 are incorporated by reference as if fully set forth herein. 31. At all times relevant hereto, Defendants were engaged in trade or commerce as defined in Section 2(3) of the Unfair Trade Practices and Consumer Protection Law (hereinafter "Consumer Protection law"), 73 P.S. § 201-2(3). 32. Defendants' false and misleading statements were relied upon by the Plaintiffs in deciding to purchase the vehicle. 33. Pursuant to Section 9.2 of the Consumer Protection Law, Plaintiffs aver that Defendant's acts violate Section 3 of the Consumer Protection Law, 73 P.S. § 201- 3, by violating the following subsections of Section 2(4) of the Consumer Protection 5 Law, 73 P.S. § 201-2(4): (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (xxii) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 34. As a result of Defendants' violations of the Consumer Protection Law, Plaintiffs have suffered an ascertainable loss of money, in that they would not have purchased the vehicle but for those violations of law. 35. Plaintiffs' damages for the aforesaid violations are the full purchase price of $13,790.50. WHEREFORE, Plaintiffs pray for judgment in their favor and against Defendants, providing the following relief: a) an award of three times their actual damages, which is $41,371.50; b) an award of costs, interest and reasonable attorney's fees; and, c) such additional relief which the court deems necessary or proper. COUNT III AUTOMOTIVE INDUSTRY TRADE PRACTICES REGULATIONS 36. The averments of Paragraphs 1 through 35 are incorporated by reference as if fully set forth herein. 37. Pursuant to the Automotive Industry Trade Practices Regulations, promulgated under the Consumer Protection Law, at 37 Pa. Code § 301.2(5), 6 Defendants had an obligation to disclose to Plaintiffs that the vehicle was not roadworthy, and had a bent frame. 38. Defendants failed to so inform the Plaintiffs of those conditions. 39. A violation of the Automotive Industry Trade Practices Regulations is a violation of the Consumer Protection Law. 40. As a result of the aforesaid violation by Defendants, Plaintiffs suffered an ascertainable loss in the sum of the full amount paid for the vehicle, which is $13,790.50. WHEREFORE, Plaintiffs pray for judgment in their favor and against Defendants, providing the following relief: a) an award of three times their actual damages, which is $41,371.50; b) an award of costs, interest and reasonable attorney's fees; and, c) such additional relief which the court deems necessary or proper. COUNT IV FRAUD 41. The averments of Paragraphs 1 through 40 are incorporated by reference as if fully set forth herein. 42. The statements made by Defendant Kazor as to the condition of the vehicle, the nature of the damage sustained by it, and the meaning of an "R" title, listed above, were false and were known to be false by Defendant Kazor when made. 43. The aforementioned statements were made for the purpose of inducing the Plaintiffs into purchasing the vehicle. 7 ,~ 44. The Plaintiffs reasonably relied upon the statements of Defendant Kazor, and made the decision to purchase the vehicle because they reasonably believed them to be true. 45. Plaintiffs relied upon the aforesaid false statements to their detriment. 46. As a result of the aforesaid reliance, Plaintiffs suffered a loss in the amount of the full price paid for the vehicle, which is $13, 790.50. WHEREFORE, Plaintiffs pray for judgment in their favor and against Defendants, providing the following relief: a) an award of compensatory damages in the amount of $13,790.50; b) an award of punitive damages in such amount as the jury deems appropriate; c) an award of costs, interest and reasonable attorney's fees; and, d) such additional relief which the court deems necessary or proper. COUNT VI REVOCATION OF ACCEPTANCE 47. The averments of Paragraphs 1 through 46 are incorporated by reference as if fully set forth herein. 48. The bent frame is a nonconformity which substantially impairs the value of the vehicle to the Plaintiffs, who were unaware of that nonconformity at the time of purchase, and were misled about the condition of the vehicle prior to purchase. 49. Although Plaintiffs revoked acceptance of the vehicle immediately upon learning of the nonconformity, and delivered the vehicle to Defendant Gettel, Defendant 8 Gettel has refused to honor Plaintiffs' revocation of acceptance. 50. Said refusal is a violation of 13 Pa.C.S. § 2608. 51. As a result of the aforesaid violation, Plaintiffs have suffered damages in the amount of the full price paid for the vehicle, which is $13, 790.50. WHEREFORE, Plaintiffs pray for judgment in their favor and against Defendants, providing the following relief: a) an award of compensatory damages in the amount of $13,790.50; b) an award of costs and interest; and, c) such additional relief which the court deems necessary or proper. Respectfully submitted, Date: ~'~~~ ~~ "Attorney ID No.'46782 2080 Linglestown Rod Suite 106 Harrisburg, PA 17110 (717)703-3600 Attorney for Plaintiffs 9 Cars by Gette{, Inc. /~ 6 J ` ' CAR RETAIL 6UYER5 ORDER 1.143 Harrisburg Pike DAT7E SUBJECT TO APPROVAL BY MANAGER Carlisle, PA 17013 7/A SOCIAL SECURITY NO. Z43-3813 • 1-888-800-8015 PHONE o. '~ TO BE DELIVERED SERIAL NO. -y ENCUMBRAN/C E)TO: STOCK NO. Q~! /A'VC USED CAR DELIVERED AS IS UNLESS SPECIFIED OTHERWISE ON THIS ORDER. Yr'A ~ a ,~ a o r ~ t ' , r LIST PRICE Tratle-In Vear Make Model Color Tag No. Exp. Date ALLOWANCE Serial No. Sub-Total p Title No. Documentary & Notary Fees O Equipmem Sub-Total ,J Penna. Sales Tax Qp BALANCE OWING TO: AMOUNT LICENSE OR LICENSE TRANSFER $ TITLE $ V TEMP. TAGB $ ~ r p0 u CAT FEE ENCUMBRANCE FEE V' a TOTAL (~ INSURANCE CO. POLICY N0. / q !. I //'l pEP0S1T TOTAL Gf 4 W UNPAID BALANCE OF CASH PRICE Finance charges to accrue on 7M1e Tctal of Payments shall be repeitl to in consecutive CREDIT LIFE Oqual monthly hrstalknenis b $ each on Iha day of each monM commencing A & H UISURANCE 19_ plus one IInM installment of $ due 19~ If Onel monMly installment Is more than Iwice amount of an otherwlae regularly schetluletl equal payment. balloon payment In the amount FINANLE CHARGE Ot $ Is tlde 19 Balloon payment shell be paltl when duo entl may not be reiinencetl TOTAL OF PAYMENTS (Time 0elance) . If Installment is In tlefauil more than 10 tlays, tlelault charges shell be payable In the amount of % of the DEFERRED PAYMENT PRICE delinquent Installment or 8 , whichever Is less. ANNUAL PERCENTAGE RATE % Sell shall have a securiy Interest in the propery until the Total of payments is paitl In lull. U Ihls contract is prepaid, a refuntl Oredll computed In accortlance with the rule of ]9's will be made to Guyer. In computing such roluntl credit, en acquisition charge in the amount of $ will be made. Federal regulations require you tostate the odometer mileage upon trans/er of ownership. An fnaccurate statement may make you liable for damages to your trans/arse, pursuant to section 409(a) of the Motor Vehicle Information and Cost Savings Act of f 972, Public law 92-513. I hereby state that odometer mileage indicated on the vehicle described above at the time of trans/er. Federal regulations require you To state the odometermileAge upon [rooster of ownership. An Inaccurate statement may make you liable for damages to your transferee, pursuant to section 409(a) o/the Motor Vehicle Information and Cost Savings Act of 7972, Public law 92-513. I hereby state that odometer mileage indi the vehicle described above at the time of transfer. 2. ~TOlal Cumuli iUn Miles Known To 0e Over 10D.000 2. ! Total Cumulative Milos Known To Be Over 100,000 3. ! -`TT KGwlf/ 3. I Mlleaoe Unkawn x r x/ -~~ A S BV E L, INC. /-"' TRANSFEROR'S SIGNATURE NOTICE'r0 THE BUYER: Do not sign this order before you read it or if it contains any blank spaces. You are entitled to an exact copy of the order ycu sign. BUYER ACKNOWLEDGES he has read and received a completetl copy of this order comprising the entire agreement affecting This purchase, and Vat this order is sublet[ to Buyer's satisfactory credit rating, SALESMgN APPROVED BUYER BV CREDIT APPROVED CO-BUYER SIGNS X ~t~~ l' X -Ci(.J l~~"i• VERIFICATION We, Luke J. Culver and Kelly R. Culver, hereby state that we have reviewed the foregoing Complaint, and verify that the facts set forth in the document are true and correct to the best of our knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Dated: ~ 0 ~ Dated: ~' ~G 0~ ~7~ r << ~' y ~ F '__ ~,~ ~. ~ ~ ~ ~ ~ ~ ~ ~. ~ ~ ~ o ..r 4 . CASE NO: 2001-05005 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CULBER KELLY R ET AL VS CARS BY GETTEL INC ET AL JASON VIORAL Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KAZOR JOHN JR DEFENDANT the at 0905:00 HOURS, on the 28th day of August 2001 at 1143 HARRISBURG PIKE CARLISLE, PA 17013 by handing to AMANDA SEIBERT OFFICE MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 . 0 0 ,~ ~'et'C .00 10.00 R. Thomas Kline .00 16.00 08/29/2001 JOSEPH GOLDBERG Sworn and Subscribed to before B~ me this 13 ~ day of PY honota~ry ~~~ N Y.~ CASE NO: 2001-05005 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CULBER KELLY R ET AL VS CARS BY GETTEL INC ET AL ON MORAL Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE BY GETTEL INC was served upon the DEFENDANT at 0905:00 HOURS, on the 28th day of August 2001 at 1143 HARRISBURG PIKE CARLISLE, PA 17013 by handing to AMANDA SEIBERT OFFICE MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.25 Affidavit .00 Surcharge 10.00 .00 31.25 Sworn and Subscribed to before So Answers: ~~~~ R. Thomas Kline 08/29/2001 JOSEPH GOLDBERG me QQthis J3 ~ day of ,O,ca~..A....~ 'U?71 A.D. -~ry By: uty Sh ri \OS_A\LIAB\KBM\CORR\79900VMF\15666\00287 KELLY R. CULVER and LUKE J. CULVER, Plaintiffs v. CARS BY GETTEL, INC. and JOHN KAZOR, JR., Defendants TO: PLAINTIFFS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5005 CIVII, ACTION -LAW JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: ~ ®C~ lT~' BY: ~~ KERB E. MALO , ESQUIIZE I.D. NO. 68818 4200 Cruxes Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorneys for Defendants, Cars by Gettel, Inc. and John Kazor, Jr. \OS_A\LIAB\KBM\LLPG\7989NMF\I5666\00287 KELLY R. CULVER and LUKE J. CULVER, Plaintiffs v. CARS BY GETTEL, INC. and JOHN KAZOR, JR, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.OI-5005 CIVIL ACTION -LAW JURY TRIAL DEMANDED DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT The Defendants, Cars by Gettel, Inc. and John Kazor, Jr., by and through their counsel, Marshall, Dennehey, Warner, Coleman and Goggin, hereby makes answer to Plaintiffs' Complaint, and in support thereof states the following: 1. Admitted in part; denied in part. It is admitted that Plaintiffs are who they say they are. The remaining averments are denied as Defendants are without sufficient information to form a belief as to the truth of the averments, and accordingly, the same are denied and proof thereof is demanded at trial, if relevant. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied in accordance with Pa.R.C.P. 1029(e). 7. Denied. After a reasonable investigation and inquiry, Defendants are without sufficient information to form a belief as to the truth of the allegations set forth in this Paragraph, and accordingly, the same are denied and proof thereof is demanded at trial. 8. Denied in accordance with Pa.R.C.P. 1029(e). 9. Denied in accordance with Pa.R.C.P. 1029(e). 10. Denied in accordance with Pa.R.C.P. 1029(e). 11. Denied in accordance with Pa.R.C.P. 1029(e). 12. Denied. The averments contained in this Paragraph constitute conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, this Paragraph is denied in accordance with Pa.R.C.P. 1029(e). 13. Denied in accordance with Pa.R.C.P. 1029(e). 14. Denied in accordance with Pa.R.C.P. 1029(e). 15. Denied in accordance with Pa.R.C.P. 1029(e). 16. Denied in accordance with Pa.R.C.P. 1029(e). 17. Denied in accordance with Pa.R.C.P. 1029(e). 18. Admitted in part; denied in part. It is admitted only that the Plaintiffs signed an Agreement to Purchase the vehicle on July 18, 2001 and that Exhibit A to Plaintiffs' Complaint appears to be a copy of the Agreement. The remaining allegations contained in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). 19. Denied in accordance with Pa.R.C.P. 1029(e). 20. Denied. After a reasonable investigation and inquiry, Defendants are without sufficient information to form a belief as to the truth of the allegations set forth in this Paragraph, and accordingly, the same are denied and proof thereof is demanded at trial. 21. Denied. After a reasonable investigation and inquiry, Defendants are without sufficient information to form a belief as to the truth of the allegations set forth in this Paragraph, and accordingly, the same are denied and proof thereof is demanded at trial. 22. Admitted. 23. Denied in accordance with Pa.R.C.P. 1029(e). 24. Denied in accordance with Pa.R.C.P. 1029(e). 25. Denied. The allegations contained in this Paragraph constitute conclusions of law to which no further responsive pleading is required. COUNTI 26. Defendants incorporate by reference its responses to Paragraphs 1 through 25 above as though set forth at length herein. 27. Denied. The allegations contained in this Paragraph constitute conclusions of law to which no further responsive pleading is required. To the extent further responsive pleadings are deemed required, this Paragraph is denied in accordance with Pa.R.C.P. 1029(e). 28. Denied. After a reasonable investigation and inquiry, Defendants are without sufficient information to form a belief as to the truth of the allegations set forth in this Paragraph, and accordingly, the same are denied and proof thereof is demanded at trial. 29. Denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. COUNT II UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 30. Defendants incorporate by reference their responses to Paragraphs 1 through 29 as though set forth at length herein. 31. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. 32. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, Defendants specifically deny making any false and/or misleading statements as alleged. 33. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. 34. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, Defendants specifically deny that they violated the Consumer Protection Law as alleged. 35. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. 36. Defendants incorporate by reference their responses to Paragraphs 1 through 37 as though set forth at length herein. 37. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. 38. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, the allegations contained in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). 39. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. 40. Denied in accordance with Pa.R.C.P. 1029(e). By way of further Answer, Defendants specifically deny violating the Automotive Industry Trade Practices Regulations and/or the Consumer Protection Law. WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. COUNT IV FRAUD 41. Defendants incorporate by reference their responses to Paragraphs 1 through 40 as though set forth at length herein. 42. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, Defendants specifically deny making false statements to Plaintiffs as alleged. 43. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, Defendants specifically deny making false statements to Plaintiffs as alleged. 44. Denied. This Pazagraph is denied as it constitutes conclusions of law to which no firther responsive pleading is required. To the extent a responsive pleading is deemed required, this Paragraph is denied as, Defendant is without sufficient information to form a belief as to the truth of the allegations, and accordingly proof thereof is demanded at trial. 45. Denied. This Pazagraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, this Pazagraph is denied as, Defendant is without sufficient information to form a belief as to the truth of the allegations, and accordingly proof thereof is demanded at trial. 46. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, this Paragraph is denied as, Defendant is without sufficient information to form a belief as to the truth of the allegations, and accordingly proof thereof is demanded at trial. WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. COUNT VI REVOCATION OF ACCEPTANCE 47. Defendants incorporate by reference their responses to Paragraphs 1 through 46 above as though set forth at length herein. 48. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, this Paragraph is denied in accordance with Pa.R.C.P. 1029(e). By way of further Answer, Defendants specifically deny misleading the Plaintiffs as alleged. 49. Denied in accordance with Pa.R.C.P. 1029(e). 50. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. 51. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, and by way of further Answer, Defendants specifically deny violating 13 Pa.C.S. § 2608. WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. NEW MATTER DIRECTED TO PLAINTIFFS 52. Plaintiffs' Complaint fails to state a claim for which relief may be granted against Defendants. 53. Plaintiffs' claims are barred and/or limited by the applicable Disclaimers of Warranty and Limitations of Damages Provisions. 54. Plaintiffs' claims are barred and/or limited by their neglect, misuse, abuse, modification, and/or alteration of the subject vehicle. 55. Plaintiffs' claims are barred and/or limited by their failure to mitigate damages. 56. If the Plaintiffs sustained any alleged damages or losses, those damages 'or losses being expressly denied, then those damages or losses were caused by persons and/or entities over whom Defendants had no control, nor right of control. 57. Plaintiffs alleged claims of non-conformity do not substantially impair the use, value, or safety of the vehicle. 58. Plaintiffs' claims are or may be barred by the applicable doctrine of laches, estoppel, or waiver 59. Plaintiffs are not entitled to recover treble damages. 60. Plaintiffs' claims maybe barred and/or limited by the Unfair Trade Practices and Consumer Protection Law, and the Uniform Commercial Code. WHEREFORE, Answering Defendant hereby demands judgment in its favor and against Plaintiffs, Kelly R. Culver and Luke J. Culver, together with such other relief as this honorable Court shall deem appropriate. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, DATE: ~d\a\~~ Kerry E. A faloney, Es re I.D. # 68818 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Phone: (717) 651-3504 Attorneys for Defendants, Cars by Gettel, Inc. and John Kazor, Jr. VERIFICATION The undersigned hereby verifies that the statements in the foregoing Answer with New Matter are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of the Answer with New Matter is that of counsel and not my own. I have read the Answer with New Matter, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer with New Matter are that of counsel, I have relied upon my counsel in making this verification. The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. BY: .~~~ Kazor, Jr. DATE: VERIFICATION The undersigned hereby verifies that the statements in the foregoing Answer with New Matter are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of the Answer with New Matter is that of counsel and not my own. I have read the Answer with New Matter, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer with New Matter are that of counsel, I have relied upon my counsel in making this verification. The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Cars by Gettel,.iuc. DATE: KELLY R. CULVER and LUKE J. IN THE COURT OF COMMON PLEAS CULVER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO.Ol-5005 CARS BY GETTEL, INC. and CIVIL ACTION -LAW JOHN KAZOR, JR, Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Farrell, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby ~~ certify that on this O~ day of~~_, 2001, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Joseph K. Goldberg, Esquire The Law Office of Joseph K. Goldberg 2080 Linglestown Road Suite 106 Harrisburg, PA 17110 Jo a .Farrell G " -- _ T: _~ ~" ~ ~- i9 r„ ri __ i+, v_ -< KELLY R. CULVER and LUKE J. CULVER, Plaintiffs v. CARS BY GETTEL INC. and JOHN KAZOR, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 01-5005 CIVIL ACTION -LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER Plaintiffs, by and through their attorney, Joseph K. Goldberg, Esquire, hereby reply to the Defendants' New Matter as follows: 52. Paragraph 52 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that Plaintiffs have sufficiently pled all causes of action as set forth in their Complaint. 53. Paragraph 53 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that the fraud, deceit, misrepresentation, violations of laws and regulations and other wrongful acts of the Defendants are not in any way barred by the disclaimer and limitation cited by Defendants. 54. Paragraph 54 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that no such acts were performed by the Plaintiffs, as set forth in the Plaintiffs Complaint. 55. Paragraph 55 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that Plaintiffs had no such duty in this case. 56. Paragraph 56 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that the wrongful acts complained of were committed by the Defendants themselves. By way of further denial, Plaintiffs, after reasonable investigation, have no knowledge of any such acts of other persons, and strict proof thereof at trial is demanded. 57. Paragraph 57 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reasons set forth in Plaintiffs' Complaint, i.e., that the vehicle is not driveable or capable of passing inspection, and has virtually no value to the Plaintiffs. 58. Paragraph 58 is a conclusion of law to which no response is required. To the extent that a response is required, the averment as to laches is denied, for the reason that Defendants have no basis whatsoever to substantiate this completely frivolous "defense." They have no basis whatsoever to claim any type of delay on the part of the Plaintiffs, nor any prejudice of any kind, in light of the admission by the Defendants that the Plaintiffs returned the vehicle within two days of taking possession of it from the Defendants. The defenses of waiver and estoppel are not applicable to the claims herein, and those averments are therefore denied. 59. Paragraph 59 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that, as set forth in the Plaintiffs' Complaint, the type of fraud, deceit, misrepresentation, 2 violations of laws and regulations, and other wrongful acts performed by Defendants are of the nature which permit the court to impose treble damages as provided by 73 P.S. § 201-9.2(a). 60. Paragraph 60 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that both the Unfair Trade Practices Act and the Uniform Commercial Code provide the legal basis for the claims asserted and relief sought by Plaintiffs. WHEREFORE, Plaintiffs demand the court dismiss Defendants' New Matter, and grant judgment in favor of Plaintiffs and against Defendants as demanded in Plaintiffs' Complaint. Respectfully submitted, Date: / ~' J ~ ~/ 3 Suite 106 Harrisburg, PA 17110 (717)703-3600 Attorney for Plaintiffs ,• CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the 7 day of ~~Y, 2001, I served a copy of the foregoing Plaintiffs' Reply To New Matter, by first-class mail, postage prepaid, upon the following: Kerry E. Maloney, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendants r )p ..., ~ ~.,~g„?_irfiiipF+~dd~NkenstR~i ."~?T~'Bd4~flRd~i! KELLY R. CULVER and LUKE J. IN THE COURT OF COMMON PLEAS CULVER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 01-5005 v. CARS BY GETTEL INC. and JOHN CIVIL ACTION -LAW KAZOR, JR., Defendants JURY TRIAL DEMANDED PRAECIPE TO MARK CASE SETTLED AND DISCONTINUED TO THE PROTHONOTARY: Please mark the above-captioned case settled and discontinued. Date: ®~~~ Harrisburg, PA 17110 (717)703-3600 Attorney for Plaintiffs .~ CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the day of ~.e/L~ 2002, served a copy of the foregoing Plaintiffs' Praecipe to Mark Case Settled and Discontinued, by first-class mail, postage prepaid, upon the following: Matthew L. Owens, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendants r~ __ ;" ', n=~" ' - :_ ~., _ _ ~ t ~:..