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HomeMy WebLinkAbout08-1454Johnson, Duffie, Stewart & Weidner By: John R. Ninosky I.D. No. 78000 Attorneys for Plaintiff 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jrn@jdsw.com ERIE INSURANCE GROUP as IN THE COURT OF COMMON PLEAS OF subrogee for BRAD J. STIFFLER CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. ?-civil TerM m- t4M V. CIVIL ACTION - LAW NISSAN MOTOR CORPORATION, Defendant 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 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Johnson, Duffie, Stewart & Weidner By: John R. Ninosky I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jrn@jdsw.com ERIE INSURANCE GROUP as subrogee for BRAD J. STIFFLER Plaintiffs V. NISSAN MOTOR CORPORATION, Defendant COMPLIANT NO. 0?- IYSY a?4 CIVIL ACTION - LAW AND NOW, come the Plaintiffs by and through their attorneys, Johnson, Duffie, Stewart and Weidner and in support of their Complaint respectfully aver the following: 1. The Plaintiff, Erie Insurance Group ("Erie"), is a Pennsylvania insurance company with a place of business located at 4901 Louise Drive, Rossmoyne Business Center, Mechanicsburg, PA 17055. 2. At all times relevant hereto, Erie was the insurer of Brad J. Stiffler, ("Stiffler"), who maintains a residence located 1006 Market Street, Apt. 4, Lemoyne, PA 17043. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 3. The Defendant, Nissan North America, Inc. is a foreign business corporation with a principal place of business located at 333 Commerce Street, P.O. Box 685001, Nashville, TN 37201. 4. At all times hereto, Nissan North America, Inc. was engaged in the business of designing, engineering, manufacturing and providing Nissan automobiles to dealerships in Pennsylvania. 4. On September 30, 2004, Stiffler purchased a 2005 Nissan Altima 2.5 S, VIN number IN4AL11 D55C195592 from Brenner Nissan located at 6271 Carlisle Pike, Mechanicsburg, PA 17050. A true and correct copy of the Purchase Contract is attached hereto as Exhibit A. 5. The 2005 Altima was manufactured and engineered by Defendant. 6. On or about September 27, 2007 Stiffler had parked the 2005 Altima (hereinafter "the vehicle") for approximately seven hours in the parking lot outside of his residence when Stiffler was notified that the vehicle was on fire. 7. This fire was the result of a high resistance or glowing connection within the electrical system at the driver's side forward portion of the engine compartment which the location of the #1 or driver's side cooling fan and electrical wiring. 8. The electrical wiring for cooling fans is energized at all times as the engine computer develops a ground signal to the cooling fans relays to complete a ground circuit to engage the cooling fans. 9. This high resistance or glowing connection resulted in temperatures high enough to ignite the wiring insulation and caused the fire. 10. The mechanics that resulted in the fire was a defect of the vehicle's design and or manufacturing. 11. The fire destroyed the vehicle for which Erie Insurance Group made payment on the policy with its insured Stiffler. COUNT I - BREACH OF IMPLIED WARRANTY OF ORDINARY FITNESS AND MERCHANTABILITY 12. Paragraphs 1-11 are incorporated by reference herein as if set forth in full. 13. Due to Defendant's manufacturing and/or design defect the vehicle caught fire and was destroyed. 14. Defendant's breach of its warranties consisted of selling a defective product, the vehicle, that was unmerchantable and unfit for the ordinary purpose for which it was intended (continued safe operation). 15. The defect in the vehicle further rendered this product below commercial standards and unsafe. 16. Plaintiff notified Defendant of the breach of warranty via communications with Claims Analyst Tonya Brooks in accordance with the provisions of the Uniform Commercial Code. 17. Plaintiff has suffered damages including payment to the insured for loss of the vehicle, rental car and related expenses, payment to Nissan Motor Acceptance Corporation - the lien holder on the vehicle, storage of the vehicle and other damages. WHEREFORE, Plaintiff demands judgment in an amount sufficient to submit this case to compulsory arbitration. Respectfully submitted, Johnson, Duffie, Stewart & Weidner By: Jo osky I.D. No. 7 000 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff :324036 VERIFICATION I, Brad J. Stiffler, have read the foregoing document and hereby affirm that it is true and correct to the best of our personal knowledge, or information and belief. This Verification and statement is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities; I verify that all the statements made in the foregoing Complaint are true and correct and that false statements may subject me to the penalties of 18 Pa. C.S.A. §4904. Date: 6 BRAD J. STIFFLER :324036 BRENNER NISSAN MAIL GADDRESS i ai=;j 6271 Carlisle Pike EI' f Mechanicsburg, PA. 17050 EO. Box 1019 PHONE: (717) 697-8400 Camp Hill, Pa. 17001-1019 DER FOR THE FOLLOWING PLEASE ENTER MY OR , NEW or ? USED ? DEMO X6 CAR ? TRUCK PRIOR - USE YEAR Q MAKE n t Y° ; SGAN MODEL I 1 MP AL I TYPE I 1 I _H .S COLOR TRIM SERIAL NO. 4 _ STOCK NO. MILEAGE SALESPERSON T -•;.:195z29? N/4, ,ARY P ` UY 3R DESCRIPTION OF TRADE IN YEAR j MAKE r =' MODEL n; t, 0 N i `1U I? TYPE SERIAL NO. T 0018 -rE1',AN a>- A>„P65..i4 Tai 1 L40-2 I ... c. I 20 NAME I .?;a. T F;:-'EP QOUNTI' i _z STATE ZI _ Y?yh PHONE ?. y -.. '? 9 ,.. 5055 BUS. (?? ! f?,?`+1'" 4J J?' i l ITY,yN'n; DATE OF BIRT y 971 ISE? E-MAIL VEHICLE PRICE COLOR TRIM TITLE NO. REBATE IED ryL 50726371190 MILEAGE LICENSE NO. EXPIRATION DATE IvlA ERV737r Since the trade-In will continue to be driven by the owner after the order date and prior to pen{JII delivery, the normal use of any vehicle will ca se it to decrease In value. A charge NET VEHICLE SELLING PRICE of N, 9 i•`l cents per mile, or a dollar amount of $ I per month, prorated, will be deducted frog #M value of the trade-in at dei%eftime.The trade-in value of the above listed car is $ r as of this date - Dealer's Authorized N (P Customer's "P Signature Signature NAME OF AGENT 2501687115 EXP DATL 31/2b/2005 VERIFIED BY a510110. 25100. ALLOWANCE FOR TRADE-IN I 2550' PO EXTENDED SERVICE PLAN TYPE ,? ?? r l s nisi r MONTHS MILES-;g-- DISCLAIMER OF WARRANTIES I UNDERSTANDTHATYOU (THE DEALER) EXPRESSLY DISCLAIMS ALLWARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MER- CHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANDTHATYOU NEITHER ASSUME NOR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR YOU ANY LIABIL- ITY IN CONNECTION WITH THE SALE OF THE VEHICLE, EXCEPT AS OTHERWISE PROVIDED IN WRITING BY YOU IN AN ATTACHMENT TO THIS CONTRACT OR IN A DOCUMENT DELIVERED TO ME WHEN THE VEHICLE IS DELIVERED. ? AS IS THE MOTOR VEHICLE IS SOLD "AS IS" WITHOUT ANY WARRANTY EITHER EXPRESS OR IMPLIED. THE PURCHASER WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR COR- RECTING ANY DEFECTS THAT PRESENTLY EXIST OR THAT MAY OCCUR IN THE VEHICLE. ?! 1r fir' CUSTOMER SIGNATURE X . N you cancel this pure agreement or refuse to take delivery of the vehicle, ordered, except as permitted by law, you shall, at our option, forfeit as damages Purchaser hereby acknowledges to the above clause. Customer's Signature THE ORDER PRICE OF THE MOTOR VEHICLE CANNOT BE INCREASED AFTER THIS ORDER HAS BEEN ACCEPTED BY THE DEALER OR THE AUTHORIZED DEALER REP- RESENTATIVE UNLESS THE INCREASE IS DUE TO THE PASSAGE OF A LAW OR REG- ULATION OF THE UNITED STATES OR THE COMMONWEALTH WHICH: REQUIRES ADDITION OF NEW EQUIPMENT TO CERTAIN VEHICLES: CHANGES IN TRANSPORTA- TION OR EXISTING TAX RATES: OR, IN THE CASE OF FOREIGN MADE VEHICLES, IS DUE TO A RE-EVALUATION OF THE UNITED STATES DOLLAR vis-a-vis THE CURREN- CY OF THE COUNTRY OF MANUFACTURE. THIS ORDER IS NOT BINDING UPON EITHER THE DEALER OR THE PURCHASER UNTIL SIGNED BY AN AUTHORIZED DEALER REPRESENTATIVE. YOU, THE BUYER MAY CANCEL THIS ORDER AND RECEIVE A FULL REFUND ANY TIME BEFORE RECEIPT OF A COPY OF THIS ORDER SIGNED BY AN AUTHORIZED DEALER REPRE- SENTATIVE BY GIVING WRITTEN NOTICE OF CANCELLATION TO THE DEALER. I CERTIFY THAT I AM LEGAL AGE OR OLDER. I ACKNOWLEDGE RECEIPT OF A COPY OF THIS ORDER AND I ACCEPT THE TERMS AND CONDITIONS INCLUDING THE REVERSE SIDE OF THIS ORDER. % j A. ?_. 7 ? PURCHASER SIGNATURE ; 915. L TAXABLE BALANCE 23465. 0 SALES TAX (6%) 14'07. 0 LUXURY TAX ti <1=i PA. TIRE TAX . 714 NOTARY FEE N ip MESSENGER FEE DOCUMENTARY FEE , 0 ON-LINE REG. FEE l ON-LINE DEALER FEE t' TEMP. TAG FEE iq A RIISTFF)4 L J TFjANS E?I, IN$pEi4 E ENCIJ'MBR CE r TOTAL PRICE OF VEHICLE 249491. 5 CASH DEPOSIT ON ORDER 2OZZ. DOWN PAYMENT CASH ON DELIVERY elUl... 0 PAYOFF N71? , TILL LL BALANCE OWED TO ADDRESS V ti BY. r DATE NET AMOUNT TOFINANCE i_?` a Q D OR HI OR EPRE`SENTATIVE Buyers Guide. The information you see on the window form for this vehicle is part of this contract. Information on the window form 0?* sin the contract of sale. Reynolds and Reynold, RD14699 0 (MO 'ONDITIONS it is further understood and agreed : The order cn the revers-- side he'?re:of is subject to the following terrns and condition,,; wrhich have been mutually agreed upon, it the used vehicle is not to be delivered to the dealer until the delivery of the< ne1w vehicle, the used vehicle -,,hall be reappraised at that time and such reappraisal value shall determine the allowance made for such used vehicle. It the dealer can establish that the vehicle has suffered rtarnacge or serious mechanical deter'ioralio a since the date; of the valuation but prior to its delivery to the dealer, or unless parts or accessories; or both, including tires, have been fen-loved or replaced with parts or accessories of inferior puaiity. The buyer agrees to deliver the original gill of sale and the title; to any used vehicle traded herein along with tfaa delivery of such vehicle, :arid the buyer warrants such used vehicle to be his property tree and dear of all liens and encumbrances except as otherwise noted herein. 2. 'The manufacturer has tire; right to make any changes in the model or design of any accessories and part of any new motor vehicle at any 'iirne e,Mthout cresting any obligation on the part of either the Dealer or the Manuf£€fctwer, to rnaire correspondirig changes in the vehicle Loverett by this order either before or subsequent to the delivery of such vehk le to the buyer. :t. [realer shall not be liabijo: for delays caused by the manufacturer, accidents, sureties, ree, of, other causes beyond Me control of the dealer. 4, The price ;.,A the vehicle quoted herein does not includes any taxes unposed by any government authority prior to or at the time of c<elivery of such vehi..le unless expressiv so stated, but the buyer assumes and agrees to pay, unless prohibited by law, any taxes, ejwclezpt incorne taxes, imposed on or ineidontai to the transaction herein, regardless of the person having the primary tax liability. s. In case the vehicle covered by this carder is a used vehicle, no warranty or representation is made is to the extent such vehicle has been used, regardless of the mileage shown can the speedometer of said used vehicle. s. In the event tl at the ransac ion referred to in this order is not ra cash transaction, the buyer herein, before or at the tirne of delivery of the vehicle ordered, and in accordance with the terms and conditions of payments indicated on the front of this order, ;,vill execute either a chattel mortgage, conditional sales contr,a&,, or such other form of security agreement as may be required to complete this transaction upon a time credit price basis, , This order is subject to acceptance by the € Baler, which ac cep-lance shall be signified by the signature of Dealer, Dealer's Nl an:aca r or ether authorized signature on, the reverse side: hereof, ROUS990 '-"" -° We s®pt?ianp To -6A- 00 9, V; o __ L' Johnson, Duffle, Stewart & Weidner By: John R. Ninosky I.D. No. 78000 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jrn@jdsw.com CIVIL ACTION - LAW ERIE INSURANCE GROUP subrogee for BRAD J. STIFFLER Plaintiffs V. NISSAN MOTOR CORPORATION, Defendant RETURN OF SERVICE AND NOW, this 18th day of March, 2008, the undersigned does hereby certify that on March 10, 2008 she did serve the Complaint filed March 4, 2008 in the above captioned action on Defendant, Nissan Motor Corporation, pursuant to Pa. R.C.P. No. 403 by causing the Complaint to be sent via certified mail return receipt requested addressed to Ms. Tonya Brooks, Claims Analyst, Nissan North America, Inc., P.O. Box 685001, Nashville, TN 37068-5001. The Return Receipt evidencing service upon Defendant is attached hereto as Exhibit A. JOHNSON, DUFFIE, STEWART & WEIDNER By: s" Elizabeth . Snover Supreme ourt I.D. 200997 Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorneys for Plaintiff Attorneys for Plaintiff as IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1454 USPS - Track & Confirm Page 1 of 1 UNITEDSTATES MOSTAL SERVICES Home I Help Track & Confirm Track Confirm Search Resuft Label/Receipt Number: 70041350 0003 4502 5557 Status: Delivered Track & Co rm Your item was delivered at 9:58 AM on March 10, 2008 in FRANKLIN, Enter Label/Receipt Number. TN 37068. r Additfartrrf 9#W1s > RertUtfi to USFS.etnm ffrrete a j ............. ......... ......... ............................... .............................. .. Notification Options Track & Confirm by email Get current event information or updates for your item sent to you or others by email. Site Mao Contact Us Forms Gov't Service s obs Privacy Policy Copyright@ 1999-2007 LISPS. All Rights Reserved. No FEAR Act EEO Data FOIA Terms of Use National & Premier Accounts ¦ Complete items 1, 2, and 3. Also complete Item 4 If Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this cans to the back of the mallplece, or on the front if space permits. 1. Article Addressed to: rte. r' ?S• ?bVt q ??vvKS ?ar?t5 as 1 1) ? Agwrt ? Addressee C. Date of Defhrory A. D. Is delivery address different from Item 11? U NIBS If YES, enter delivery address below: ? No ?? 5 5.4 h Nf _ 4Wt?!// y luG. 3. Eftg.E Mall P-©. AD x 69 0 Irrstrred Mall 1V a 5 Yl y l 1 e J N 3 7 Ol! 5,901 4. Rest icted Dellve 2. Article Number 7004 1350 0003 f f M ss+vlw hW Ps Form 3811, February 2004 Domestic Return Recelpt 13 Express Malt E3 Return Receipt for Macherx*o ? C.O.D. ryt (t:xna Fes) 0 NU 4502 5557 102696402.141640 http://trkcnfrm 1-smi.usps.com/PTSIntemetWeb/InterLabellnquiry.do 3/18/2008 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Return of Service upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 18th day of March, 2008, addressed to the following: Ms. Tonya Brooks, Claims Analyst Nissan North America, Inc. P.O. Box 685001 Nashville, TN 37068-5001 JOHNSON, DUFFIE, STEWART & WEIDNER By: Elizabe . Snover <"1 r.,? C;m ?? _ ?? Q ?._ ??? ?? ??? -? ?? C ?r ,? Ste? ?? t Cr`a :,,? LINDABURY, MCCORMICK, ESTABROOK & COOPER, P.C. A Professional Corporation By: Anne S. Burris, Esq. aburris@lindabury.com Identification No. 201955 2 Penn Center Plaza Suite 200 Philadelphia, Pennsylvania 19102 215-854-4090 215-569-0216 (fax) PLAINTIFF you are hereby notified to file a written response to the enclosed NEW MATTER within twenty (20) days from service hereof or a judgment may be ente d a inst you. Attorneys for Defendant Nissan North America, Inc. ERIE INSURANCE GROUP as subrogee for BRAD J. STIFFLER 4901 Louise Drive, COURT OF COMMON PLEAS Rossmoyne Business Center CUMBERLAND COUNTY Mechanicsburg, PA 17055 Plaintiff, V. No. 08-1454 CIVIL TERM NISSAN MOTOR CORPORATION 333 Commerce Street Nashville, TN 37201-1800 Defendant. ANSWER AND NEW MATTER OF DEFENDANT NISSAN NORTH AMERICA, INC. Defendant, Nissan North America, Inc. ("Nissan")(improperly referred to as Nissan Motor Corporation in the caption), answers the Complaint as follows: Admitted 2191955vl 2. After reasonable investigation, Nissan lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph of the Complaint, and they are, therefore, denied. 3. Admitted. 4. Denied. The allegations of this paragraph of the Complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. By way of further answer, Nissan denies that it designed, engineered or manufactured the subject vehicle. 4.(sic) Admitted in part. Nissan admits there is a purchase document attached to the Complaint. Except as specifically admitted herein, Nissan lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph of the Complaint, and they are, therefore, denied. 5. Denied. The allegations of this paragraph of the Complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. By way of f irther answer, Nissan denies that it manufactured or engineered the subject vehicle. 6. Denied. After reasonable investigation, Nissan lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph of the Complaint, and they are, therefore, denied. I7. Denied. After reasonable investigation, Nissan lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph of the Complaint, and they are, therefore, denied. -2- 2191955v1 8. Denied. After reasonable investigation, Nissan lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph of the Complaint, they are, therefore, denied. 9. Denied. After reasonable investigation, Nissan lacks knowledge or information to form a belief as to the truth of the allegations of this paragraph of the Complaint, they are, therefore, denied. 10. Denied. After reasonable investigation, Nissan lacks knowledge or information to form a belief as to the truth of the allegations of this paragraph of the Complaint, they are, therefore, denied. 11. Denied. After reasonable investigation, Nissan lacks knowledge or information to form a belief as to the truth of the allegations of this paragraph of the Complaint, l they are, therefore, denied. COUNTI BREACH OF IMPLIED WARRANTY OF ORDINARY FITNESS AND MERCHANTABILITY 12. Nissan incorporates by reference its answers to paragraphs 1 through 11 of the Complaint as if fully set forth herein. 13. Denied. The allegations of this paragraph of the Complaint state conclusions law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent these allegations are deemed factual, Nissan specifically denies that the vehicle possesses or possessed manufacturing or design defects. By way of further answer, Nissan denies it manufactured the subject vehicle. -3- 2191955v1 14. Denied. The allegations of this paragraph of the Complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent these allegations are deemed factual, Nissan admits only that it makes certain limited written warranties in connection with the lease and purchase of motor vehicles, including the subject vehicle. Such warranties are in writing and Nissan refers the plaintiff to those written warranties for their precise terms and conditions. By way of further answer, Nissan has at all times complied with its obligations under any applicable warranties and/or law. After reasonable investigation, Nissan lacks knowledge or information sufficient to form a belief as to the truth the remaining allegations of this paragraph of the Complaint, and they are, therefore, denied. 15. Denied. The allegations of this paragraph of the Complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent these allegations are deemed factual, Nissan specifically denies that the subject vehicle possesses or possessed a defect. After reasonable investigation, Nissan lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations of this paragraph of the Complaint, and they are, therefore, denied. 16. Denied. After reasonable investigation, Nissan lacks knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph of the Complaint, and they are, therefore, denied. 17. Denied. The allegations of this paragraph of the Complaint state conclusions of law to which no response is required by the Pennsylvania Rules of Civil Procedure. To the extent these allegations are deemed factual, Nissan specifically denies that the plaintiff has -4- 2191955v1 suffered damages by any conduct by Nissan. By way of further answer, Nissan has complied with the terms of all applicable warranties, and acted honestly, carefully and appropriately to comply with its duties under the law. WHEREFORE, defendant, Nissan North America, Inc., demands judgment in its favor and against the plaintiff, together with costs of suit, attorneys' fees, and such other and further relief as this Court may deem appropriate. NEW MATTER 1. The plaintiff has failed to state a claim upon which relief can be granted. 2. The claims are barred by the applicable statutes of limitation. 3. The claims are barred as the vehicle exhibits no present defect or nonconformity as those terms are legally defined. 4. The plaintiff has enjoyed the beneficial use of the vehicle described in the Complaint from the time of purchase, through the present and into the future. 5. The use of the subject vehicle, including ordinary wear and tear on said vehicle caused by the plaintiff's use, has diminished the value of the subject vehicle. 6. If the plaintiff is awarded damages against Nissan, Nissan prays for a set-off as to the diminished value of the vehicle caused by the plaintiff's beneficial use of said vehicle during the period of time in which it has been in the plaintiff's possession. -5- 2191955v1 7. Nissan has fulfilled all terms and conditions of its limited written warranty, and is not in breach of the terms of its limited written warranty; therefore, the Complaint fails to state a claim upon which relief can be granted. 8. Any failure, malfunction or nonconformity of the vehicle or any of its parts is the result of damage to the vehicle not resulting from any alleged nonconformity or defect. 9. Any failure or malfunction of the vehicle or any of its parts is the result of abuse, neglect, modification or alteration of the vehicle by the plaintiff or other persons or entities over whom Nissan has no authority or control. 10. Any failure or malfunction of the vehicle or any of its parts is the result of the plaintiff's failure to maintain the vehicle. 11. Any failure or malfunction of the vehicle or any of its parts is the result of faulty work performed on the vehicle by the plaintiff or other persons or entities over whom Nissan has no authority or control. 12. The claims for consequential damages are barred by the terms of any applicable express warranties. 13. The claims are barred by the plaintiff's failure to afford Nissan through its authorized dealer(s) a reasonable opportunity to repair any alleged malfunctions, defects or nonconformities. 14. The claims are barred by the plaintiff's failure to comply with the terms of any applicable written warranties. -6- 2191955v1 15. Nissan has at all times complied with the terms of any applicable written warranties. 16. The claims are barred because the vehicle did not suffer from any defects or nonconformities at the time the applicable warranty expired and/or at the time this action was commenced. 17. The claims are barred, in whole or in part, by the plaintiff's failure to mitigate damages. 18. The claims are barred because the plaintiff has failed to join a necessary party. 19. The claims are barred by the doctrine of accord and satisfaction. WHEREFORE, defendant, Nissan North America, Inc., demands judgment in its favor and against the plaintiff, together with costs of suit, attorneys' fees, and such other and further relief as this Court may deem appropriate. LINDABURY, McCORMICK, ESTABROOK & COOPER, P.C. By: A-NNE S. BURRIS Attorneys for Defendant Dated: March 24, 2008 -7- 2191955v1 VERIFICATION I, Anne S. Burris, state that I am an attorney with the law firm of Lindabury, McCormick, Estabrook & Cooper, P.C.; that I represent the defendant, Nissan North America, Inc., in this action; and that I am authorized to make this verification on behalf of Nissan North America, Inc. I am making this verification because the defendant is located outside of the jurisdiction of this Court, and the verification of an employee of the defendant could not be obtained within the time allowed for filing this pleading. The statements made in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information, and belief, based on my own investigation and information I have received from the defendant. I make this verification subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. a'7?7'a"" Anne S. Burns Dated: March 24, 2008 -8- 2191955v1 CERTIFICATE OF SERVICE I certify that on March 24, 2008, I served a copy of the foregoing Answer and New Matter of defendant, Nissan North America, Inc., by United States first-class mail, postage pre-paid, upon the following: John R. Ninosky, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Anne S. Burris Dated: March 24, 2008 -9- 21919ssv1 C? C' ? ,.?, (-{'1 i`?.? L ', ? , ? '> ; L ? e+. 4 ) ?, ;i? {?} ? aF ? ?4 ? ?« Johnson, Duffle, Stewart & Weidner By: John R. Ninosky I.D. No. 78000 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jrn@jdsw.com Attorneys for Plaintiff ERIE INSURANCE GROUP as subrogee for BRAD J. STIFFLER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 08-1454 CIVIL ACTION - LAW NISSAN MOTOR CORPORATION, Defendant REPLY TO NEW MATTER OF DEFENDANT 1-19. These paragraphs assert conclusions of law and fact to which no response is required, if a response is deemed required the allegations in these paragraphs are denied. WHEREFORE, Plaintiff demands judgment in an amount sufficient to submit this case to compulsory arbitration. Respectfully submitted, Johnson, Duffie, Stewart & Weidner 0-0-3-OF Y: John R. i osky Elizabet . Snover Attorneys for Plaintiff _1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing Return of Service upon all parties or counsel of record by depositing a copy of same in the United States Mail at Lemoyne, Pennsylvania, with first-class postage prepaid on the 3`d day of April, 2008, addressed to the following: Anne S. Burns, Esquire 2 Penn Center Plaza Suite 200 Philadelphia, PA 19102 JOHNSON, DUFFIE, STEWART & WEIDNER By: Elizabeth nover C} o Q -ra 00 co Johnson, Duffle, Stewart & Weidner By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jrn@jdsw.com ERIE INSURANCE GROUP as subrogee : for BRAD J. STIFFLER Plaintiffs V. NISSAN NORTH AMERICA, INC., Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1454 CIVIL ACTION - LAW PLAINTIFF'S MOTION TO AMEND AND NOW, comes the Plaintiffs by and through their attorneys Johnson, Duffle, Stewart & Weidner and files this Motion to Amend Caption and Complaint by stipulation of the parties: 1. The Defendant in this matter was initially listed as Nissan Motor Corporation. 2. The proper name of the Defendant Corporation is Nissan North America, Inc.. 3. Therefore, Plaintiffs now seek to amend their complaint to correct the caption and complaint to reflect the proper name of the Defendant. 4. Concurrence was sought from opposing counsel and was received in the form of a stipulation, signed by counsel for both parties, which is attached hereto as Exhibit A. WHEREFORE, the Plaintiff requests that this Honorable Court grant its request and allow an Amendment of the Caption and Complaint in this matter to properly reflect the name of Defendant Corporation as Nissan North America, Inc. Respectfully submitted, JOHNSON, DUFFLE, STEWART & WEIDNER By: Elizab D. Snover Attorney I.D. No. 200997 John R. Ninosky Attorney I.D. No. 78000 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Email: jrn@jdsw.com Attorneys for Plaintiffs Date: 0 .1 d :337330 22740-2108 Johnson, Duffle, Stewart & Weidner By: John R. Ninosky I.D. No. 78000 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. 0. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 jm@jdsw.com ERIE INSURANCE GROUP as subrogee : for BRAD J. STIFFLER Plaintiffs V. NISSAN NORTH AMERICA, INC., Defendant STIPULATION NO. 08-1454 CIVIL ACTION - LAW AND NOW, come the parties to the above case, by their respective counsel, who hereby agree and stipulate as follows: 4. The proper name of the Defendant in this case is Nissan North America, Inc. 2. All references in the Complaint to Nissan Motor Corporation shall be deemed to Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA refer to Nissan North America, Inc. 3. The caption of the case will be amended to substitute Nissan Motor Corporation as a party Defendant to Nissan North America, Inc.. Llndabury, McCormick, Estabrook & Cooper By: Anne S. Burris, Esquire 53 Cardinal Drive P.O. Box 2359 Westfield, NJ 07091-2369 Attorneys for Defendant Johnson, Duffle, Stewart & Weidner By: Eli bet . Snov r Esquire 301 Ma t Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorneys for Plaintiff DATE: 6 r :337330 DATE: D7 n La - EXHIBIT A N ,?> ' cao Gj } l ?? ITT { { { f ERIE INSURANCE GROUP as subrogee : for BRAD J. STIFFLER Plaintiffs V. NISSAN NORTH AMERICA, INC., Defendant JUL 0 9 2008 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1454 ORDER CIVIL ACTION - LAW AND NOW, this "day of qt, , 2008, upon stipulation of the parties, IT IS HEREBY ORDERED that: 1. All references in the Complaint to Nissan Motor Corporation shall be deemed to refer to Nissan North America, Inc. 2. The caption ;of the case will be amended to substitute Nissan Motor Corporation as a party Defendant to Nissan North America, Inc.. BY THE COURT: 4 V4,11-11, b 1,,' S~ IASIN, I",,' I -d ,Uwf?r l,vn_ 9 Z: I I WV I I In goon AWONue'HL08d ?Hl JO 301!-AO-031U Johnson, Duffle, Stewart & Weidner By: Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 170 3-0109 (717) 761-4540 eds@jdsw.com Attorneys for Plaintiffs ERIE INSURANCE GROUP s subrogee : for BRAD J. STIFFLER Plaintiffs V. NISSAN NORTH AMERICA, INC., Defenda t TO THE PROTHONOT PLEASE mark with prejudice. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-1454 CIVIL ACTION - LAW PRAECIPE TO DISCONTINUE above-captioned matter settled, satisfied and discontinued Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER Date: OY-0-0 1 By: E izabet nover Attorne or Plaintiffs CERTIFICATE OF SERVICE AND NOW, this certify that she did this d upon the other parties of class postage prepaid, at Thomas J. Sateary, Esquii Lindabury, McCormick, Es 53 Cardinal Drive P.O. Box 2359 Westfield, NJ 07091-2369 day of, April, 2009, the undersigned does hereby serve a copy of the foregoing Praecipe to Settle and Discontinue )rd by causing same to be deposited in the United States Mail, first , Pennsylvania, addressed as follows: & Cooper, P.C. JOHNSON, DUFFIE, STEWART & WEIDNER By: lizab h D. Snover FiLED-01?RCE OF THE PROTHONOTARY 200 APR 14 AM 10: 41 P-:j jN YLVA.NIA