HomeMy WebLinkAbout99-05667
I
NICHOLAS ROSADO
Qtrs. L-1 Antrim Drive
Mechanicsburg, PA 17055
v.
AMLRICAN ISUZU MOTORS, INC.
C/o CT Corporation
1635 Market Street
Philadelphia, PA 19103
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
NO. /f- S10 ? / &?z
CIVIL ACTION-LAW
NOTICE TO DEFEND
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 you 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 or relief
requested by the plaintiff. You may lose money or property 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, PENNSYLVANIA
TELEPHONE: (717) 249-3166
NICHOLAS ROSADO : IN THE COURT OF COMMON PLEAS
Qtre. L-1 Antrim Drive s OF CUMBERLAND COUNTY,
Mechanicsburg, PA 17055 s PENNSYLVANIA
s
V. : NO. 99• SC(-'j
s
AMERICAN ISUZU MOTORS, INC. s
c/o CT Corporation s
1635 Market Street s CIVIL ACTION-LAW
Philadelphia, PA 19103 :
COMPLAINT
1. Plaintiff, Nicholas Rosado, is an adult, individual
citizen and legal resident of the Commonwealth of Pennsylvania,
residing at Qtrs. L-1 Antrim Drive, Mechanicsburg, Cumberland
County, Pennsylvania.
2. Defendant, Isuzu of America, Inc., 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
3. On or about December 19, 1997, Plaintiff leased a new
1998 Isuzu Trooper, manufactured and warranted by Defendant,
bearing the Vehicle Identification Number JACDJ58X2W790095.8. The
vehicle was leased 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, excluding other collateral charges not specified,
yet defined by the Magnuson-Moss Federal Trade Commission
Improvement Act, was approximately $30,400.16. A true and
correct copy of the Lease 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 Isuzu of America, Inc. 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, as well
as other standard warranties fully outlined in the warranty
booklet, delivered at time of sale.
7. 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.
8. The first warranty repair attempt is believed to have
occurred on October 14, 1998, when the vehicle's odometer showed
14,224 miles. On that date, a repair attempt was made to remedy
a problem with the vehicle's electrical system. This required
the dealer to replace and repair the instrument cluster hood,
which caused the vehicle's odometer to go back to zero. Also on
that date, the dealer applied a coat of touch-up paint to the
vehicle. A true and correct copy of the repair invoice is
attached hereto, made a part hereof and marked Exhibit "B."
2
9. The second warranty repair attempt is believed to have
occurred on November 4, 1998, when the vehicle's odometer read
15,186 miles. on that date, a repair attempt was made to install
an odometer sticker in order for the vehicle's mileage to be
updated correctly. A true and correct copy of the repair invoice
is attached hereto, made a part hereof and marked Exhibit "C."
10. The third warranty repair attempt is believed to have
occurred on February 19, 1999, when the vehicle's odometer showed
6,148 miles, even though the vehicle's actual mileage was 20,367.
On that date, a repair attempt was made to remedy a rattling
noise heard in the vehicle's dash board. This required the
dealer to replace and repair the plastic hood assembly, which
involved the removal of the defrost vent in order to tighten the
dash bolts and the removal of the cluster bezel in order to
tighten the remaining bolts. A true and correct copy of the
repair invoice is attached hereto, made a part hereof and marked
Exhibit "D."
11. In addition, Plaintiff avers the vehicle has been
subject to additional repair attempts for defects and/or non-
conformities and/or conditions for which the dealer did not
maintain records.
12. 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.
§1951 et sec r.
3
13. Pursuant to 73 Pa. C.S.A. 51958, 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 his
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 I
MAGNUSON-MOSS CLAIM
14. Plaintiff hereby incorporates paragraphs 1 through 13
by reference as if set forth at length herein.
15. Plaintiff is a "Consumer" as defined by 15 U.S.C.
52301(3).
16. Defendant is a "Warrantor" as defined by 15 U.S.C.
52301(5).
17. 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.
18. 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.
19. As a direct and proximate result of Defendant's failure
to comply with the express written warranties, Plaintiff has
4
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.
20. 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.
21. 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 his
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
UNIFORM COMMERCIAL CODE
22. Plaintiff hereby incorporates paragraphs 1 through 21
by reference as if set forth at length herein.
23. The defects and non-conformities existing within the
vehicle constitute a breach of contractual and statutory
r
obligations of Defendant, including but not limited to the `IR
5
following:
a. Express Warranty;
b. Implied Warranty Of Merchantability; and
C. Implied Warranty of Fitness For A Particular
Purpose.
24. The purposes for which Plaintiff purchased this vehicle
include but are not limited to their personal, family and
household use.
25. 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.
26. 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.
27. Plaintiff has incurred damages as a direct and
proximate result of the breach and failure of Defendant to honor
its express and implied warranties. ,
28. Such damages include, but are not limited to, the
purchase price of the vehicle plus all collateral charges,
including attorney fees and costs, as well as other expenses, the
full extent of which are not yet known.
WHEREFORE, Plaintiff respectfully demands judgment in his
favor and against Defendant, in an amount equal to the purchase
6
price of the subject vehicle, plus all available collateral
charges and attorney fees.
COUNT III
UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION CLAIM
29. Plaintiff hereby incorporates paragraphs 1 through 28 by
reference as if set forth at length herein.
30. 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 Law.
31. In addition, the Unfair Trade Practices and Consumer
Protection Law defines unfair methods of competition to include the
following:
(vii). Representing that goods or services
are of a particular standard, quality or
grade, or that the goods are of a particular
style or model, if they are of another.
(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.
32. 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.
33. 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 the actual damages sustained for
violations of the Act.
7
WHEREFORE, Plaintiff respectfully demands judgment in his
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.
Respectfully submitted,
KILLIAN & GEPHART
orne I.D. #7 4
18 Pine Street
P. 0. Box 886
Harrisburg, PA 17108-0886'
(717) 232-1851
Dated: 9-1'{-qq
Attorneys for Plaintiff
8
VERIFICATION
I, Bradley A. Schutjer, hereby verify that I am the attorney
for Plaintiff, Nicholas Rosado. I have sufficient knowledge or
information based upon investigation into this matter by my client,
to take this Verification. I hereby verify that the statements in
the foregoing Complaint are true and correct to the best of my
knowledge, information, and belief. T ,,,,a? -A rt- n_,_
statements contained herein are made subject to the penalties of 18
Pa. C.S.A. §4904 relative to unsworn falsification to authorities.
9
NAVY ldft
FEDERAL Federal Consumer Leasing Act Segregated Disclosures
Lessor New Federal Credit Union Lessee(s) Nicholas Rosado
Date December 19, 1997
Lease No. 04264
Amount Due at Monthly Payments Other Charges (not part of your Total of Payments
Lease Signing You will make 60 monthly lease payments of monthly payment) (The amount you will have
or Delivery 5497.50•0. Your first monthly payment is due on
December 19 1997. The second monthly lease Disposition tee (if you do paid by the end of the lease)
(Itemized below)' January 19? x_998 and
a meet Issue on
9 not purchase the vehicle and it
,
ssue on the same
subsequent monthy Nt
day of each succeeding month. The total of your is not a casualty loss) $350.00
NIA 0.00
$29,850.00 ••t
$497.59. monthly payments is S 29.850.00.0•t Total S 350.00
'Itemization of Amount Due at Lease Signing or Delivery
Amount Due At Lease Signing or Delivery: How the Amount Due at Lease
Signing or Delivery will be paid:
Cappitaliud cost reduction a o.oo
Sales/use tax on capitalized cost reduction 0.00 Net trade-in allowance S 0.00
_
First monthly lease payment (including tax) 497.50 Rebates and noncash credits T.
00
Refundable security deposit 0.00 Amount to be paid in cash 497.50
Initial license, registration, and title fees 0.00 N/A 0.00
Other - N/A 0.00
Total S 497.50 Total S 497.50
Your monthly payment is determined as shown below:
Gross capitalized cost. The agreed upon value of the vehicle (S 29 804.08 and any items you pay over the
lease tens (such as a mechanical breakdown protection contract, insurance, taxes, and any outstanding prior
credit or lease balance) ............................................................. S 30.400.16
An itemization of this amount is set forth in the Gross Capitalized Cost Breakdown section of the lease.
Capitalized cost reduction. The amount of any net trade-in allowance, rebate, noncash credit, or cash you pay
that reduces the gross capitalized cost ................................................... - 0.00
Adjusted capitalized cost. The amount used in calculating your base monthly payment ................ = 30.400.16
Residual value. The value of the vehicle at the end of the lease used in calculating your base monthly payment - 11.414.00
Depreciation and any amortized amounts. The amount charged for the vehicle's decline in value through
normal use and for other items paid over the lease tens ....................................... 18,986.16t
Rent charge. The amount charged in addition to the depreciation and any amortized amounts ............. + 8.399.041
Total of base monthly payments. The depreciation and any amortized amounts plus the rent charge ....... = 27.385.201
Lease term. The number of months in your lease .......................................... + 60
Base monthly payment ............................................................ = 456.42
Monthly sales/use tax ............................................................. + 41.080
N/A ........................................................ + 0.00
Total monthly payment ............................................................ = S 497.5000
Early Termination. You may have to pay a substantial charge if this lease is ended early. The charge may be um to
several thousand dollars. The actual charge will depend on when the lease is terminated. The earlier the lease is
ended, the greater the charge is likely to be.
Excessive Wear and Use. You may be charged for excessive wear based on our standards for normal use and for mileage in
excess of .12,000 miles per year at the rate of 10¢ per mile.
Purchase Option at End of Lease Term. You have an option to purchase the vehicle at the end of the lease tens for SI1,414.00
and the sum of any then due amounts plus applicable taxes.
Other Important Terms. S your lease documents for additional information on early termination, purchase options and
maintenance responsibilities, rranties, late and default charges, insurance, and ary security interest, if applicable.
"Estimated base on curt t tax rfates. t Based on the lease running full term.
Each lessee has re?this I surepnd received a completely filled-in copy before signing below:
NiCU re 110-971
V 0
Nicholas Rosado
?"MEIN ENEAOY.
'Tim `YEVt ..:y ?;:. bUKE6MOfN3' •... ::.TELEPH,Of1E NO tAWNRItE' 'o. : vn:,...
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ME.fAOQ C(t s,',lAiEEAGE tlUT ', IICFliS?NO.' '
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.AUSE GAGE SHORTED -
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COUNT: 1
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CLAIM: TYPE: .
ALM CODE:
(CESTED ELECTRICAL SYSTEM OK, GAGE INACURP.TE
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I HEREBY ACKHOM'IEOGE RECEIPT OF A COPY HEREOF
PLEASE PAY
! THIS AMOU K
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i FOR YOUR CONIIENT_ENCE, APPO IM,4Ev_S ;RE
PREFFRR- APPOI`IT?? ITS NOT NECESSARY FOR
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EXHIBIT
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STALLED ODOMETER STICKER
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FOR FLUID LEAKS,CHK EXHAUST SYSTEM,BRK
4iNE8• & HOSES, SAF= STARTER
SWITCH, TIRES, WHEELS, FRT & REAR BRKS,PARK
A CHG OIL & FILTER, LUBRICATION, CHG
1
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TI,P,ES , CHI( COOLANT & HEATER HOSES, CHI(
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SWITCH,TIRES,WHEELS,FRT & REAR
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LESS INSURANCE • 1.ft'n'^I^t of'"'en.r.m.
I SALES TAX I HEREBY ACKNOWLEDGE RECEIPT OF ACOPY HEREOF
PLEASE PAY
THIS AMOUNT X
EXHIBIT
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PRE-INVOIC
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SALES TAX 7,19 LHE-EeYACKNOWLEDCERECEPTOF A CORYHMEOF.
PLEASE PAY
IS AMOUNT
X
TH 1 27.1
«OP. YOUR CONVENIENCE, AP_OIN-IMENTS ARE
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1HEaE3Y ACKNOw DGEGECOFTCF ACOPYHF F
!i PLEASE PAY
THIS AMOUNT X
PLAINTIFF'S
G EXHIBIT
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NICHOLAS ROSADO IN THE COURT OF COMMON PLEAS
Qtrs. L-1 Antrim Drive : OF CUMBERLAND COUNTY,
Mechanicsburg, PA 17055 PENNSYLVANIA
V. N0. 99-5667 Civil
AMERICAN ISUZU MOTORS, INC.
c/o CT Corporation
1635 Market Street CIVIL ACTION-LAW
Philadelphia, PA 19103
RETURN OF SERVICE
Service of a Complaint was made by me:
DATE: ?27/r,
NAME OF SERVER: Nicole Martin
TITLE: Process Server
METHOD: Personal Service
Individual Served: S ini? ? b &.a,3
Authorized Agent for Defendant
Place of Service: CT CORPORATION
1635 Market St
Philadelphia PA 19103
I declare under penalty of perjury under the laws of the United
States of America that the foregoing information contained in the
Return of Service is true and correct.
D to S1 ture of ver
LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY
BY: RICHARD B. WICKERSHAM, JR., ESQUIRE
Attorney I.D. No.: 49466
Penn Mutual Tower - Suite 1000
510 Walnut Street
Philadelphia, PA 19106
(215) 627-0303
Attorney for Defendant, American Isuzu Motors, Inc
-----------------------------------------------------x
NICHOLAS ROSADO, COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
V.
No. 99-5667-CIVIL
AMERICAN ISUZU MOTORS, INC.
Defendant
PRAECIPE TO FILE NOTICE OF REMOVAL
TO THE PROTHONOTARY:
Pursuant to. 28 U.S.C. §I446(b), defendant, American Isuzu Motors, Inc., hereby files a certified
copy of the Notice of Removal filed in the United District Court for the Middle District of Pennsylvania on
the 18th day of October, 1999.
LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY
BY:
RICHARD B. WICKERSHAM, JR., IRE
MICHAEL J. O'NEILL, ESQUIRE
October 18, 1999
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICHOLAS ROSADO, Civil Action
Plaintiff 1: ?'T 9 9 an 8 0 3
V.
AMERICAN ISUZU MOTORS, INC. FILF'iJ
Defendant
OCT 15 1999
PER
CERTIFICATION OF SERVICE
? rU7Y?,:_iTi(
1 hereby certify that true and correct copy of Defendant's, American Isuzu Motors, Inc.,
Notice ofRemoval was served upon all interested counsel in the manner indicated below on October
15,1999.
Service Via U.S. Mail,
addressed as follows:
Bradley A. Schutjer, Esquire
Killian & Gephart
218 Pine Street
P.O. Box 886
Harrisburg, PA 17108-0886
LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY
BY:
RICHARD B. WICKFWHAM, JR., ESQUIRE
MICHAEL J. OWEILL, ESQUIRE
Attorneys for Defendant,
American I.suzu Motors, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICHOLAS ROSADO, Civil Action
Plaintiff 1 Ro.: V 9 9_ 1803
V.
AMERICAN ISUZU MOTORS, INC.
Defendant
OCT 15
1999 II
J?R NOTICE OF REMOVAL P
D?PUJVCL
The noticing party herein, American Isuzu Motors, Inc. (hereinafter "AIMI"), byanr- ou
its attorneys, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, respectfully states as follows:
This civil action arises out of plaintiff's lease of a 1998Isuzu Trooper from Faulkner
Isuzu, located in the Commonwealth of Pennsylvania, and repair attempts made to the subject
Trooper by Faulkner which plaintiff alleges to be ineffective.
2. This civil action was commenced and is now pending in the Court of Common Pleas
of Cumberland County, Pennsylvania, a civil action in which Nicholas Rosado is named as an
individual plaintiff and AIM is the sole defendant.
3. Plaintiff filed a Complaint in the Court of Common Pleas of Cumberland County on
or about September 14, 1999.
4. A copy of the subject pleading was served upon CT Corporation System, a registered
agent for AIMI, on or about September 27, 1999 and was received on September 29, 1999. A copy
of plaintiffs' Complaint is attached as Exhibit "A."
5. Plaintiff resides in Mechanicsburg, Pennsylvania. Complaint at 11.
6. Defendant, AIMI, is incorporated under the laws of the State of California and
maintains its principal place of business at 2300 Pellissier Place, Whittier, CA 90608.
Plaintiff alleges causes of action and seeks judgment for "three times the purchase
price of the subject vehicle ($30,400.16), plus all available collateral charges and attorneys fees",
which is an amount in excess of $100,000.00, for the alleged failure of AIMI to honor its express
and implied warranties with respect to this motor vehicle. See Complaint at Count Ill.
8. As a result, the pending civil action is one over which this Court has jurisdiction
under 28 U.S.C. §1331 and is one which may be removed to this Court by the noticing party
pursuant to 28 U.S.C. § 1441 et seq.
9. AIMI fast possessed sufficient facts from which it could be first ascertained that the
case could be removed on September 29, 1999.
10. This Notice is filed with this Court within the time for removal set forth in 28 U.S.C.
§ 1446(6), inasmuch as thirty (30) days have not passed since the receipt by the noticing party of a
paper from which it may fast be ascertained that this case is one which is removable.
11. Written notice of the filing of this Notice will be given to the adverse party as
required by 28 U.S.C. § 1446(e).
12. A true and correct copy of this Notice will be filed with the Prothonotary of the Court
of Common Pleas of Cumberland County, Pennsylvania, as provided by 28 U.S.C. §1446(e).
13. Pursuant to U.S.C. §1446(a), there is found herewith and by reference made a part
hereof a true and correct copy of all process, pleadings and orders served upon the noticing party in
this action.
WHEREFORE, defendant, American Isuzu Motors, Inc., prays that it may affect the removal
of this action from the Court of Common Pleas of Cumberland County, Pennsylvania to the United
States District Court for the Middle District of Pennsylvania.
LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY
BY:
RICHARD B. WICKERSHAM, JR., ESQUIRE
Attorney I.D. No.: 49466
MICHAEL J. O'NEILL, ESQUIRE
Attorney I.D. No.: 82191
Penn Mutual Tower -Suite 1000
510 Walnut Street
Philadelphia, PA 19106
(215) 627-0303
Attorneys for Defendant,
American Isuzu Motors, Inc.
Dated: October 15, 1999
"r
Q
s?
CT System
TO: Wesley Kumagai General Counsel
ISUZU MOTORS AMERICA, INC.
8722 Orangethorpe Avenue
Suite 250
Buena Park, CA 90822-5005
RE: PROCESS SERVED IN PENNSYLVANIA
FOR AMERICAN ISUZU MOTORS, INC. Domestic State: Ca
Service of Process Transmittal Form
Philadelphia, Pennsylvania
09/77/1999
Courlar Via Federal Express (2nd Day)
RECEIVED
SEP 2 9 1999
ISZA LEGAL
E CLO89D ARE COPIES OF LEGAL PROC993 RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:
1. TITLE of ACTION; Nicholas Rosado vs American Istau Motors Inc
t. DOCUMENT(S) SERVED: Notlca Complaint Interrogatories Request forAdmiasions Request for Producdon
3. COURT, Common Pleas Cumberland County PA
Case Number 995887
4. NATURE OF ACTION: Alleged violation of "Lemon Law Act',
a. ON WHOM PROCESS WAS Davao: CT Corporation System, Philadelphia, Pennsylvania
R DATE AND HOUR OF BMW=- By Process server on 0927/1999 at 14:20
7. APPEARANCEORANSWER DUE: Complaint 20 days Interrogatories 30 days Request for Production 30 days
Admissions 30 days
L ATTORNEY(S): 717 2321851
Bradley A Schuder
218 Pine St
Harrisburg, PA 17108-0888
a. REMARKS:
SIGNED CT Corporation System
PER Sandra E. Solomon
ADOREss 1835 Market Street
Philadelphia, PA 19103
SOP WS 0002582240
Infomuuon contained w this fnnmatal form is recorded for C T Corporatim System's record keeping purposes only and to parmil quick reference for
ON r9dPlare. This IMOmullon don NI conaatute a legal oplnlon as to the nature of shun, the arloum of damages, the answer data, or any IMamallon that
can be obtained from the documents IMmmlvvs. The recipient 11 responsible for Imerpreting the documents and for tatdng the appropriate adlcn.
NICHOLAS ROSADO
Qtrs. L-1 Antrim Drive
Mechanicsburg, PA 17055
V.
AMERICAN ISUZU MOTORS, INC.
c/o CT Corporation
1635 Market Street
Philadel hia PA 19103
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
N0. q q -'u7
CIVIL ACTION-LAW
p C, ,n
NOTICE TO DEFEND -; -
You have been sued in court. If you wish to defend=against.,,:,
the claims set forth in the following pages, you must take`_actipn
within twenty (20) days after this complaint and notice are nerved,
by entering a written appearance personally or by attorney and
filing in writing with the court you 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 or relief
requested by the plaintiff
You may lose money or property 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, PENNSYLVANIA
TELEPHONE: (717) 249-3166
NICHOLAS ROSADO
Qtrs. L-1 Antrim Drive
Mechanicsburg, PA 17055
V.
AMERICAN ISUZU MOTORS, INC.
C/o CT Corporation
1635 Market Street
Philadelphia, PA 19103
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, .
PENNSYLVANIA
NO.
CIVIL ACTION-LAW
COMPLAINT
1. Plaintiff, Nicholas Rosado, is an adult, individual
citizen and legal resident of the Commonwealth of Pennsylvania,
residing at Qtrs. L-1 Antrim Drive, Mechanicsburg, Cumberland
County, Pennsylvania.
2. Defendant, Isuzu of America, Inc., 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.
3. On or about December 19, 1997, Plaintiff leased a new
1998 Isuzu Trooper, manufactured and warranted by Defendant,
bearing the Vehicle Identification Number JACDJ58X2W7900958. The
vehicle was leased 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, excluding other collateral charges not specified,
yet defined by the Magnuson-Moss Federal Trade Commission
Improvement Act, was approximately $30,400.16. A true and
correct copy of the Lease 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 Isuzu of America, Inc. 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, as well
as other standard warranties fully outlined in the warranty
booklet, delivered at time of sale.
7. 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.
8. The first warranty repair attempt is believed to have
occurred on October 14, 1998, when the vehicle's odometer showed
14,224 miles. On that date, a repair attempt was made to remedy
a problem with the vehicle's electrical system. This required
the dealer to replace and repair the instrument cluster hood,
which caused the vehicle's odometer to go back to zero. Also on
that date, the dealer applied a coat of touch-up paint to the
vehicle. A true and correct copy of the repair invoice is
attached hereto, made a part hereof and marked Exhibit "B.°
2
9. The second warranty repair attempt is believed to have
occurred on November 4, 1998, when the vehicle's odometer read
15,186 miles. On that date, a repair attempt was made to install
an odometer sticker in order for the vehicle's mileage to be
updated correctly. A true and correct copy of the repair invoice
is attached hereto, made a part hereof and marked Exhibit "C."
10. The third warranty repair attempt is believed to have
occurred on February 19, 1999, when the vehicle's odometer showed
6,148 miles, even though the vehicle's actual mileage was 20,367.
On that date, a repair attempt was made to remedy a rattling
noise heard in the vehicle's dash board. This required the
dealer to replace and repair the plastic hood assembly, which
involved the removal of the defrost vent in order to tighten the
dash bolts and the removal of the cluster bezel in order to
tighten the remaining bolts. A true and correct copy of the
repair invoice is attached hereto, made a part hereof and marked
Exhibit "D."
11. In addition, Plaintiff avers the vehicle has been
subject to additional repair attempts for *defects and/or non-
conformities and/or conditions for which the dealer did not
maintain records.
12. 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.
51951 et sec r.
3
13. Pursuant to 73 Pa. C.S.A, §1958, 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 his
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 I
MAGNUSON-MOSS CLAIM
14. Plaintiff hereby incorporates paragraphs 1 through 13
by reference as if set forth at length herein.
15. Plaintiff is a "Consumer" as defined by 15 U.S.C.
§2301(3).
16. Defendant is a "Warrantor" as defined by 15 U.S.C.
§2301(5).
17. 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.
18. 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.
19. As a direct and proximate result of Defendant's failure
to comply with the express written warranties, Plaintiff has
4
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.
20. 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.
21. Plaintiff avers that upon successfully prevailing upon
the Magnuson-Moss claim herein, all reasonable attorney fees are
recoverable and are demanded against Defendant.
WBLREFORE, Plaintiff respectfully demands judgment in his
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
UNIFORM CO1-fERCIAL CODE
22. Plaintiff hereby incorporates paragraphs 1 through 21
by reference as if set forth at length herein.
23. 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
5
following:
a. Express Warranty;
b. Implied Warranty of Merchantability; and
C. Implied Warranty Of Fitness For A Particular
Purpose.
24. The purposes for which Plaintiff purchased this vehicle
include but are not limited to their personal, family and
household use.
25. 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.
26. 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.
27. Plaintiff has incurred damages as a direct and
proximate result of the breach and failure of Defendant to honor
its express and implied warranties.
28. Such damages include, but are not limited to, the
purchase price of the vehicle plus all collateral charges,.
including attorney fees and costs, as well as other expenses, the
g,
full extent of which are not yet known.
WHEREFORE, Plaintiff respectfully demands judgment in his
favor and against Defendant, in an amount equal to the purchase
6
price of the subject vehicle, plus all available collateral
charges and attorney fees.
COUNT III
UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION CLAIM
29. Plaintiff hereby incorporates paragraphs 1 through 28 by
reference as if set forth at length herein.
30. 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 Law.
31. In addition, the Unfair Trade Practices and Consumer
Protection Law defines unfair methods of competition to include the
following:
(vii). Representing that goods or services
are of a particular standard, quality or
grade, or that the goods are of a particular
style or model, if they are of another.
(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.
32. 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.
33. 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 the actual damages sustained for
violations of the Act.
7
WHEREFORE, Plaintiff respectfully demands judgment is his
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.
Respectfully submitted,
KILLIAN & GEPHART
Br ley /A.' Schut , Esquire
orne I. D. #7 e4
3.8 8 Pine Street
P. 0. Box 886
Harrisburg, PA 17108-0886
(717) 232-1851
Dated: Cj-ly-q9
Attorneys for-Plaintiff
8
VERIFICATION
I, Bradley A. Schutjer, hereby verify that I am the attorney
for Plaintiff, Nicholas Rosado. I have sufficient knowledge or
information based upon investigation into this matter by my client,
to take this Verification. I hereby verify that the statements in
the foregoing Complaint are true and correct to the best of my
knowledge, information, and belief. I understand that false
statements contained herein are made subject to the penalties of 18
Pa. C.S.A. 54904 relative to unsworn falsification to authorities.
9
afalr a 1wr
FFJDEJM Federal Consumer Leasing Act Segregated Disclosures
CREDIT UNION'
Lessor •Naw Federal Credit Union Lessee(s).. Nicholas Rosado
Dace December 19 1997
Lease No. 04261
Amount Due at
Lease Signing Monthly Payments Other Charges (not pan of your
h Total of Payments
or Delivery You will make 60 monthly lease payments of
" mont
ly payment) (The amount you will have
5497.50
Your first monthly payment is due on • paid by the end of the lease)
(itemized below)' Dee?ember 19 I297. The second monthly lease
pa menue pn jenuarv 19. 1998 and Disposition fee (if you do
not purchase the vehicle and it
subseyyvent monthly Paymenu ere due on the same
da
of each
d
h
Th is not a casualty loss) S 350.00
N/A 0
06
S 29
850
00 "
S 497
50 y
succee
ing mont
.
e total of your
$0 . ,
.
t
. monthly payments is S 29,850.00.
t Total S 350A0
'Itemization of Amount Due at Lease Signing or Delivery
Amount Due At Lease Signing or Delivery: How the Amount Due at Lease
Capitalized cost reduction S 0,00 Signing or Delivery will be paid:
Sales/use tax on capitalized cost reduction 0.00 Net trade-in allowance S 0
00
First monthly lease payment (including tax) 497.50 .
Rebates and noncash credits 0
00
Refundable security deposit 0.00 Amount to be paid in cash .
497
50
Initial license, registration, and title fees 0.00 N/A .
0
00
Other - NIA 0.00 .
Total S 497.50 Total S 497.50
Your monthly payment is determined as shown below:
Gross capitalized cost The agreed upon value of the vehicle (S 29,804-.083 and any items you pay over the
l
t
h
ease
erm (suc
as a mechanical breakdown protection contract, insurance, taxes, and any outstanding prior
credit or lease balance) ............................................................. S 30.400.16
An itemization of this amount is set forth in the Gross Capitalized Cost Breakdown section of the lease.
Capitalized cost reduction. The amount of any net trade-in allowance, rebate, noncash credit, or cash you pay
that reduces the gross capitalized cost ................................................... - 0.00
Adjusted capitalized cost. The amount used in calculating your base monthly payment ................ 30.400.16
Residual value. The value of the vehicle at the end of the lease used in calculating your base monthly payment - 11.414.00
Depreciation and any amortized amounts. The amount charged for the vehicle's decline in value through
l
d f
norma
use an
or other items paid over the lease tern ....................................... m 18,996.16t
Rent charge. The amount charged in addition to the depreciation and any amortized amounts ............. + 8.399.041
Total of base monthly payments. The depreciation and any amortized amounts plus the rent charge ....... - 27.385.20t
Lease term. The number of months in your lease .......................................... + 60
Base monthly payment ............................................................ 456.42
Monthly salestuse tax ............................................................. + . 41.08•0
N/A ........................................................ + 0.00
Total monthly payment ............................................................ a S 497.50**
Early Termination. You may have to pay a substantial charge if this lease is ended early. The charge may be up to
several thousand dollars. The actual charge will depend on when the lease is terminated. The earlier the leas; -15
ended, the greater the charge is likely to be.
Excessive Wear and Use. You may be charged for excessive wear based on our standards for normal use and for mileage in
excess of 12,000 miles per year at the rate of OO per mile.
Purchase Option at End of Lease Term. You have an option to purchase the vehicle at the end of the lease term for 511.414.00
and the sum of any then due amounts plus applicable taxes.
Other Important Terms. S your lease documents for additional information on early termination, purchase options and
maintenance responsibilities, Warranties, late and default charges, insurance, and any security interest, if applicable.
"Estimated based on curt I t tax
Each lessee has re>(dkhis d
Nicholas Rosado.
NFCu PC 110.971
t Based on the lease running full term.
received a completely filled-in copy before signing below:
ti..
FC:
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XNSTR[Y l1I. CLUS ER HIX3TD ., , .
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I HEREBY ACMOMMGE HECM P1 -'F A COVY HOEOF
PLEASE PAY X
THIS AMOUNT d , oG
FOR YOUR =.77 NT_?ICE, ?CFO-=11? 7s RE
PRE4-O. aPFCP: NOT CIECSSr" :" -OR
._-:'SD CCNDITICCIS.
4.94
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iOMETER STICKER
24TIAL OIL,ROTATE TIRES,CHK COOLANT
?'?'? r:'t?RCt Air:2?:L;LT.tDzS;?IES.S,CFiEC.?
'ID LEAKS, CHK EXHAUST SYSTEM, BRK
'?,FQSTsSrSAEETY STAR.7.'ER ..,_?, _..-
TIREyS{ , WHEELS , FRT & REAR BRKS, PARK
77
LUZF ,. _, ._._
IRK LINES &
REAR
DESCpWTIOH TOTALS
PLEASE PAY
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LABOR AMOUNT 90.88
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I MUEBY ACKMO?E II 0" OF A COT' HEFCCF
I '7fMFLl "'? rnpLNINIA JM!V?uµ?/PU YIINGII:LO P.PYM -??
NICHOLAS ROSADO
VS.
AMERICAN ISUZU MOICRS, INC.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 99-5667 CIVIL
CIVIL ACTION - LAW
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYI
111SL?15L?i?\/LSD
OCT 2 2 1999
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