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HomeMy WebLinkAbout02-0123 OIL S. PAK and AMY 1. PAl<. Husband and Wile, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PlaintiflS CIVIL ACTION - LAW v. NO. 02-123 CIVIL TERM Em MOTORS, INC., t/a BRENNER NISSAN, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this 14' day of A1""'V , 2003, upon consideration of PlaintiflS' Motion to Amend their Complaint, a Rule is hereby issued upon the Defendant to show cause why the relief requested in said motion should not be granted. Rule returnable within Z 0 days of service thereof. BY THE COURT: .AL 1. (\~~ vf' ~"'~,&7 ~\ D GIL S. P AK and AMY L. P AI<. Husband and Wtfe, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CML ACTION - LAW v. NO. O~ - IJ.~ C;cJ~( ~~ EJB MOTORS, INC., tJa BRENNER NlSSAN, Defendants 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 an 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 ajudgment 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 00 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, P A 17013 (717) 249-3166 800-990-9108 NOTICIA Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en !as paginas siguientes, usted tiene veinte (20) dias de pIazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones a !as medidas y pueda entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE AGOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VA Y A EN PERSONA OR LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DONnE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 (717) 249-3166 800-990-9108 Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA CNIL ACTION - LAW GIL S. PAK and AMY L. PAK, Husband and Wife, v. NO. Od-. - ,~ Ct~~L ~~ EJB MOTORS, INC., tJa BRENNER NISSAN, Defendants JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs are Gil S. Pak and Amy L. Pale, adult individuals, married to each other and residing at 1609 Letchworth Road, Camp Hill, Cumberland County, Pennsylvania. 2. The Defendant is a corporation registered to do business in the Commonwealth of Pennsylvania and in fact regularly doing business in the sale and service of automobiles at 6271 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. 3. On March 27, 1999, Plaintiffs purchased from Defendant a used 1998 Nissan Maxima GLE automobile baring vehicle identification number JNl CA21Al WM806317. 4. At all times relevant to the transaction, the Defendant, through its agents, represented to Plaintiffs that the car was in good and workmanlike condition, and was fit for the purposes for which Plaintiffs purchased the car. 5. The purchase price for the automobile was $23,000.00, exclusive of sales tax, interest and other additional costs. 6. When Plaintiffs initially purchased the automobile, they did so with an interest rate of 9% per annum, for seventy-two (72) months, resulting in a monthly payment of$397.67, which payments were scheduled to conclude on or about May 16, 2005. 7. On or about March 8, 2001, Plaintiffs were able to refinance the loan for the automobile, resulting in an interest rate of7.75% per annum, spread over fifty (50) payments, ending on or about May 16, 2005, in the monthly amount of $39 1.00. 8. Plaintiffs have brought the car to Defendant for repairs from time to time, for items such as malfunctioning airbags/harnesses, pieces of glass in the window wells, and replacement of oxygen sensors. 1 9 Because of the ongoing nature of maintenance issues with the car, Plaintiffs became suspicious of the car's origin. 10. On every occasion when Plaintiffs questioned agents of the Defendant regarding the true age or true mileage or true condition of the automobile, agents of the Defendant represented that the car was as initially represented to Plaintiffs and, in fact, one agent of Defendant told Plaintiffs that it was a demonstration car from New York. 11. Finally, as a result of the suspicions described above, Plaintiffs entered the pertinent information regarding the car on-line, and received a report from "Carfax.Com" on July 30, 2001. 12. The report from Carfax.Com disclosed that the car had in fact been totaled for salvage value in New York, and was reported as such. 13. The fact that the car was salvaged dramatically lowers its value to an as yet undetermined amount, but certainly considerably lower than the purchase price that the Plaintiffs paid. 14. At all times when the Plaintiffs were considering buying the vehicle from Defendant in early 1999 as described above, agents of the Defendant represented that the title to the vehicle was not on site and was not available for Plaintiffs' inspection. COUNT I - BREACH OF CONTRACT 15. The facts set forth in paragraphs one through thirteen are incorporated herein by reference. 16. The essence of the agreement between Plaintiffs and Defendant was that Defendant would sell to Plaintiffs a 1998 Nissan Maxima automobile that was in the condition as represented by Defendant; in fact, the vehicle had been salvaged, and was and is worth considerably less than the purchase price that Plaintiffs paid. 17. Plaintiffs believe and therefore aver that Defendant committed a material breech of the agreement by, rather than selling a car as represented, Defendant in fact sold a vehicle that had been salvaged. 18. As such, Plaintiffs believe and therefore aver that the parties should be placed in the position that 2 they were prior to Plaintiffs' purchase of the vehicle: Plaintiffs would return the vehicle to Defendant in exchange for a refund of their purchase price and any money expended for repairs, with a reasonable adjustment for subsequent mileage. WHEREFORE. Plaintiffs request this Honorable Court to enter judgment in their favor and against the Defendant for $23,000.00, with interest at the same rate as the Plaintiffs' loan from Members First, or the statutory interest rate, whichever is greater, together with the costs of this action and any other relief this Court deems appropriate. COUNT 11- NEGLIGENT MISREPRESENTATION 19. The facts set forth in paragraphs one through thirteen are incorporated herein by reference. 20. As a business that regularly sells cars to the public, Defendant owed a duty to Plaintiffs to truthfully and faithfully disclose the true condition of the 1998 Nissan Maxima that is the subject of this action. including the history of the car, certainly including a fact as significant as the car being salvaged. 21. Defendant breached that duty by failing to inform Plaintiffs of the true history of the car, a breach that is material under the circumstances. 22. As a direct result of the Defendant's failure to disclose the true nature and history of the automobile, Plaintiffs have suffered damages from the standpoint that, had they known the actual history of the car, the Plaintiffs would not have bought it. 23. As such, then, Plaintiffs have suffered damages not only in the amount of their purchase price, but for any repairs for which they have had to expend funds, and for interest expense that they have incurred as a result of their having to take a loan in order to buy the car. WHEREFORE, Plaintiffs request this Honorable Court to enter judgment for them and against the Defendant in an amount of at least $23,000.00, but to which should be added the interest expense that Plaintiffs have incurred, any other out-of-pocket expenses that the Plaintiffs have incurred, along with interest at the rate of the loan that the Plaintiffs have incurred or the statutory rate, whichever is greater, the costs of this action and any other relief this Court deems appropriate. 3 COUNT m - FRAUD 24. The facts set forth in paragraphs one through thirteen are incorporated herein by reference. 25. At the time Plaintiffs purchased the vehicle that is the subject of this action. Defendant (through its agents) knew or had reason to know of the vehicle's true history and condition, yet failed to disclose that fact to Plaintiffs. 26. As a direct result of the Defendant's failure to disclose the true history and condition of the automobile to Plaintiffs, Plaintiffs in fact bought the automobile as detailed above. 27. The Defendant's failure to disclose the true nature and history of the vehicle was done with scienter; that is to say, Defendant and its agents knew or should have known of the vehicle's true history, yet intentionally failed to disclose that fact to the Plaintiffs. 28. The condition and true history of the vehicle was a material consideration in the Plaintiffs' decision to purchase the vehicle; that is to say, had Plaintiffs known that the vehicle was in fact salvaged before they purchased it, they would have not purchased the vehicle. 29. As a direct result of Defendant's failure to disclose the true nature and history of the vehicle to Plaintiffs, Plaintiffs have suffered damages that include, without limitation. the purchase price of the vehicle, the interest expense that Plaintiffs have incurred as a resuh of having to take a loan to fmance the purchase, out-of -pocket expense for repairs, and possible other damages, also. WHEREFORE, Plaintiffs request this Honorable Court to enter judgment in their favor and against the Defendant for $23,000.00, plus the interest expense that Plaintiffs have incurred, any other out-of- pocket expense that the Plaintiffs have incurred, with interest either at the rate of the Plaintiffs' loan with Members First or the statutory rate, whichever is greater, the costs of this action and any other relief this Court deems appropriate. COUNT IV ~ PENNSYL VANIA CONSUMER PROTECTION ACT 30. The facts set forth in paragraphs one through thirteen are incorporated herein by reference. 31. Defendant engages in trade or commerce as that phrase is used in the Pennsylvania Consumer Protection Act, 73 P.S. ~201-1 et seq. 4 32. With respect to the transaction that is the subject of this action, Defendant, through its agents, represented to Plaintiffs that the automobile that is the subject of this action was of a particular standard, quality or grade, when in fact the condition of the vehicle was not up to such standards, as detailed in previous counts and sections of this complaint. 33. The Consumer Protection Act authorizes private causes of action, and further allows the Court to award up to three times the Plaintiffs' actual damages, along with costs which include the Plaintiffs' attorney fees. 34. As a resuh of the transaction as described above, in which Plaintiffs expended $23,000.00 for the purchase, from Defendant, of a 1998 Nissan Maxima automobile which was in fact salvaged, and not of the condition, quality, standard or grade that Defendant represented to Plaintiffs, Plaintiffs have incurred damages not only of their actual purchase price, but interest expense, out-of-pocket repair expenses, and other expenses. 35. Plaintiffs believe and therefore aver that, under the circumstances descn'bed in this complaint, Defendant should be held liable to pay Plaintiffs three time their damages together with their costs and their attorney fees. WHEREFORE, Plaintiffs request this Honorable Court to enter judgment in their favor and against Defendant for $23,000.00, including interest either at the rate of the Plaintiffs' loan that they needed to finance this transaction or the statutory rate, whichever is greater, all such items to be trebled because of Defendant's violation of the Consumer Protection Act, the costs of this action including Plaintiffs' attorney fees, and any other relief this Court deems appropriate. n' )00)-- 5 VERIFICATION We, Gil S. Pak and Amy L. Pak, PIaintiffs in the foregoing action, verifY that the facts set forth in the attached docwnent are true and correct to the best of my knowledge, information and belief. I so state subject to the penalties of 18 Pa. C. S. ~4904 (relating to unsworn falsification to authorities). JANUARY 2, 2002 Date }VS-R-- GiI S. Pak JANUARY 2. 2002 Date ~ d c/&v Amy ak () 0 0 c:: r'o) -h $:: c.... ::.;;j ""Ow :r", n~lrr; ~TP ;C'-"': -r-: Z.T! - , 'f= 2r' I >";':~:J C/J: J:,~ \,D ',- -<:: " .~:;::.~~ ~c -t') -,.....'..-;-, ~o :J;: L),~:,~:; ;SO ':? ;"-::::-r-;-"1 C' ~;!. 2' :..n =< ::'0 (..) -< 8 GIL S. PAK and AMY L. PAK, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 02-123 Civil Term EJB MOTORS, INC., lIa BRENNER NISSAN, JURY TRIAL DEMANDED Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of Brenner Nissan, in the above matter. Respectfully submitted, McNEES WALLACE & NURICK LLC B0~ Lawrence R. Wieder, Esquire I.D. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717237-5229 Attorneys for Defendant Brenner Nissan Dated: January 2- L.., 2002 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid mail upon the following: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pa 17101 McNEES WALLACE & NURICK LLC By c.-----~ Lawrence R. Wieder 1.0. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Brenner Nissan Dated: January 22, 2002 p ~~ {jj {2c: ;:5::?' ~C5 ~0 [] ~ ;; r" 1ft S- ~- :::e ~ <-..> ;; Sf? ~:;:'1 h^i,~ _,. r~ JI]:"J (,\' t;j <;(l ..-__'l") S':,)'jJ ~::.C) ,_")01 Sf =0 -.: SHERIFF'S RETURN - REGULAR CASE NO: 2002-00123 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PAK GIL S ET AL VS EJB MOTORS INC T/A BRENNER MOT SHANNON SUNDAY , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon EJB MOTORS INC T/A BRENNER MOTORS the DEFENDANT , at 1530:00 HOURS, on the 11th day of January , 2002 at 6271 CARLISLE PIKE MECHANICSBURG, PA 17055 by handing to MARK WILSON, MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 7.59 .00 10.00 .00 35.59 So Answers: ?"~~ R. Thomas Kline 01/14/2002 ANTHONY MCBETH Sworn and Subscribed to before BY:$~!n. s.: Deputy She~ me this ;) 2. ~ day of QAAWI '7 o2t/o,,2., A. D . q'fL- O. ~ 1f'7t P othonotary I GIL S. PAK and AMY L. PAK, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. EJB MOTORS, INC., Va BRENNER NISSAN, Defendants NO. 02-123 Civil Term JURY TRIAL DEMANDED NOTICE TO PLEAD TO: GIL S. PAK and AMY L. PAK, and ANTHONY T. MCBETH, ESQUIRE, their attorney YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. McNEES WALLACE & NURICK LLC 9; By Lawrence R. Wieder, Esquire /.D. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717237-5229 Attorneys for Defendant Brenner Nissan Dated: April ~ ,2002 GIL S. PAK and AMY L. PAK, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. EJB MOTORS, INC., t/a BRENNER NISSAN, Defendants NO. 02-123 Civil Term JURY TRIAL DEMANDED ANSWER WITH NEW MATTER 1. Admitted. 2. Admitted. 3. Admitted. By way of further Answer it is stated that a copy of the sales contract was not attached to the Complaint. 4. Admitted. 5. Admitted. 6. Denied. The averment refers to a document, which being a writing, speaks for itself. By way of further Answer it is stated that a copy of the document was not attached to the Complaint 7. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment accordingly, the averment is denied. By way of further Answer it is stated that a copy of the document was not attached to the Complaint 8. Admitted in part, denied in part. It is admitted that the Plaintiffs brought the vehicle to Defendant for repairs however, it is denied that all the repairs listed in the averment were required or requested to be made. 9. Denied. As Defendant cannot know Plaintiffs' thought processes, Defendant responds that after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment accordingly, the averment is denied 10. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment accordingly, the averment is denied. By way of further answer, it is stated that the Plaintiffs have failed to identify the agents who made the representations accordingly, Defendant cannot adequately respond to the averment. 11. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment accordingly, the averment is denied. 12. Denied. The averment refers to a document, which being a writing, speaks for itself. By way of further Answer it is stated that a copy of the document was not attached to the Complaint 13. Admitted in part and denied in part. It is admitted that if the vehicle had previously been titled as salvage, its fair market value would have been less than what the Plaintiffs paid. It is denied that the difference in value would be "dramatically lower" or that in fact the vehicle had previously been titled as salvage. Plaintiffs have not presented proof that the vehicle was salvaged. Such proof would lie in the copy of a salvage title and not in a document produced by a third party. 14. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment accordingly, the averment is denied. Additionally, the title in the possession of the Defendant did not indicate that the vehicle had been salvaged accordingly, the failure of the Defendant to show the title to the Plaintiffs was of no moment. By way of further answer, it is stated that 2 the Plaintiffs have failed to identify the agents who made the representations accordingly, Defendant cannot adequately respond to the averment. COUNT I - BREACH OF CONTRACT 15. Admitted. 16. Denied. The averment refers to two documents, which being writings, speak for themselves. Plaintiffs have attached neither a copy of the sales contract nor a title evidencing that the vehicle was titled as salvage. Proof that the vehicle was titled as salvage would lie in the copy of a salvage title and not in a document produced by a third party. 17. Denied. The averment refers to two documents, which being writings, speak for themselves. Plaintiffs have attached neither a copy of the sales contract nor a title evidencing that the vehicle was titled as salvage. Proof that the vehicle was titled as salvage would lie in the copy of a salvage title and not in a document produced by a third party. 18. Admitted. In fact, the Defendant, without admitting liability, has offered to return to the Plaintiffs the monies they paid the Defendant for the vehicle, without a reasonable adjustment for subsequent mileage, but Plaintiffs have refused to accept such sum. WHEREFORE, Defendant agrees with the Plaintiffs that the Court should enter an Order mandating the return of the vehicle to the Defendants, with the commensurate payment by the Defendant in the amount of $23,000 plus interest and money expended for repairs, less a reasonable adjustment for subsequent mileage. 3 COUNT 11- NEGLIGENT MISREPRESENTATION 19. Admitted. 20. Denied. The Defendant had a duty to disclose to the Plaintiffs, the information that it had concerning the vehicle. The Defendant had no information that the vehicle had been salvaged. By way of further answer, it is stated the Plaintiffs have yet to provide a copy of the title evidencing that the vehicle had been salvaged. 21. Denied. The averment is a conclusion of law to which no responsive pleading is required. 22. Denied. The averment is a conclusion of law to which no responsive pleading is required. 23. Denied. The averment is a conclusion of law to which no responsive pleading is required. WHEREFORE, Defendant prays your Honorable Court enter judgment in favor of the Defendant and against the Plaintiff. COUNT III - FRAUD 24. Admitted 25. Denied. At the time that the Defendant sold the vehicle, it disclosed to the Plaintiffs all that it knew concerning the vehicle. Defendant had no knowledge that the vehicle had been salvaged. By way of further answer, it is stated the Plaintiffs have yet to proVide a copy of the title evidencing that the vehicle had been salvaged. 26. Denied. The Plaintiffs purchase of the vehicle was not a direct result of the Defendant conduct. 27. Denied. At the time that the Defendant sold the vehicle, it disclosed to the Plaintiffs all that it knew concerning the vehicle. Defendant had no knowledge, nor should it 4 have had knowledge that the vehicle had been salvaged. By way of further answer, it is stated the Plaintiffs have yet to provide a copy of the title evidencing that the vehicle had been salvaged. 28. Denied. As Defendant cannot know Plaintiffs' thought processes, Defendant responds that after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment accordingly, the averment is denied. 29. The averment is a conclusion of law to which no responsive pleading is required. WHEREFORE, Defendant prays your Honorable Court enter judgment in favor of the Defendant and against the Plaintiff. COUNT IV - PENNSYLVANIA CONSUMER PROTECTION ACT 30. Admitted. 31. Admitted. 32. Admitted in part, denied in part. It is admitted that the Defendant represented that the vehicle was of a certain standard. It is denied that the vehicle was not of that standard. By way of further answer it is stated that if the vehicle was not of the standard represented, then Defendant did not intentionally misrepresent the quality of the vehicle. Defendant's representations where based upon the facts known to it at the time it sold the vehicle. 33. The averment is a conclusion of law to which no responsive pleading is required. 34. The averment is a conclusion of law to which no responsive pleading is required. 5 35. Denied. As Defendant cannot know Plaintiffs' thought processes, Defendant responds that after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment accordingly, the averment is denied. WHEREFORE, Defendant prays your Honorable Court enter judgment in favor of the Defendant and against the Plaintiff. NEW MATTER 36. The Pennsylvania Certificate of Title for the Plaintiffs' vehicle does not indicate that the vehicle had been titled as salvage. 37. Plaintiff has not produced a copy of a title to the vehicle, which establishes that the vehicle had been titled as salvage. 38. Defendant purchased the vehicle at the Manheim Auto Auction ("Manheim"). 39. Manheim has a written policy, which requires that sellers of vehicles at the auction disclose if the vehicle was previously titled as a salvage vehicle. 40. When Defendant purchased the vehicle at Manheim, no such disclosure was made. 41. Defendant relied upon the representation of the seller, when it purchased the vehicle. 42. Defendant observed nothing about the vehicle, which would lead it to conclude that the vehicle had previously been titled as salvage. 43. Prior to purchasing the vehicle, the Plaintiffs had the same ability as the Defendant to purchase a Car Fax report for the vehicle. 44. Plaintiffs did not purChase a Car Fax report for the vehicle, prior to purchasing it. 6 45. Plaintiffs have owned the vehicle for three years, continued to operate it and presumably have driven it in excess of 40,000 thousand miles. 46. In light of the Plaintiffs' material use of the vehicle, should the Court determine that Plaintiffs are entitled to judgment, the proper measure of damages is the difference between the price that the Plaintiffs paid for the vehicle and the actual value of the vehicle at the time that Plaintiffs purchased it. 47. Should the Court determine that Plaintiffs are entitled to judgment, Plaintiffs are not entitled to damages in the amount of the interest they paid as the Plaintiffs would have paid interest on the purchase of any vehicle they purchased. Rather, should the Court determine that the Plaintiffs are entitled to judgment, the proper measure of damages is the difference between the price that the Plaintiffs paid for the vehicle and the actual value of the vehicle at the time that Plaintiffs purchased it. 48. Plaintiffs are not entitled to treble damages or counsel fees because the conduct of the Defendant was not willful or knowing. 49. Plaintiffs are not entitled to treble damages and or counsel fees as the Defendant offered, without prejudice, to refund all the monies paid to the Defendant, without a set off for depreciation to the vehicle, but Plaintiff refused that offer. In light of Defendant's offer, this litigation was unnecessary. 7 50. In light of Defendant's offer of settlement, Defendant is entitled to counsel fees from Plaintiff for commencing an action in bad faith and continuing to maintain that action in violation of 42 Pa,C.S. ~ 2503 Respectfully submitted, McNEES WALLACE & NURICK LLC (9J Lawrence R. Wieder, Esquire 1.0. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717 237-5229 Attorneys for Defendant Brenner Nissan Dated: April <;5 ,2002 8 . . VERIFICATION I, Thomas Couch, General Manager of EJB Motors, Inc. tfa Brenner Nissan, a corporation, Defendant in the within action, verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904, relating to unsworn falsification to authorities. Dated: March ~ I ,2002 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid mail upon the following: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pa 17101 McNEES WALLACE & NURICK LLC By Lawrence R. Wieder J.D. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Brenner Nissan Dated: April ~ ,2002 (j 0 0 c ....., ." =?: :t'" -I "'17~' ..., :':1:-n mrn ;"iJ f"ili-" 2::0 I "'0 en Vi> \D CD 1:' ~,L 90 !:2CJ -0 ....,-<'" -,- "1.1 ~o ::x: '~~"i -n -,,:"rn )>C '={ :z: U1 ~ ::< U'1 ,~~..~ '~jk" OIL S. P AK and AMY 1. P AK, Husband and WIfe, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW v. NO. 02-123 CIVIL TERM EJB MOTORS, INC., tJa BRENNER NISSAN, Defendants JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT'S NEW MAlTER 36. Denied. After reasonable investigation, Plaintiffs lack information necessary to determine the truthfulness of this averment. Inasmuch as there is a lien on the vehicle, the Plaintiffs have never seen the certificate of title. If this allegation is material, strict proof thereof is demanded. 37. Admitted in part and denied in part. It is admitted that Plaintiffs have not yet produced a title. They do not have the title because, as the Defendant well knows, there is a lien on the vehicle. 38. Denied. After reasonable investigation, Plaintiffs lack information necessary to determine the truthfulness of this averment. Ifmaterial, strict proof thereof is demanded. 39. Denied. After reasonable investigation, Plaintiffs lack information necessary to determine the truthfulness of this averment. Ifmaterial, strict proof thereof is demanded. 40. Denied. After reasonable investigation, Plaintiffs lack information necessary to determine the truthfulness of this averment. Ifmaterial, strict proof thereof is demanded. 41. Denied. After reasonable investigation, Plaintiffs lack information necessary to determine the truthfulness of this averment. Ifmaterial, strict proof thereof is demanded. 42. Denied. After reasonable investigation, Plaintiffs lack information necessary to determine the trutbfu1ness of this averment. Ifmaterial, strict proofthereofis demanded. 43. Denied as stated. While Plaintiffs mayor may not have had the ability to purchase a Carfax report prior to purchasing the car, they were certainly under no legal obligation to make that purchase, and they had the legal right to rely true representations from the Defendant as to the status of the car. 44. It is admitted that Plaintiffs did not purchase a Carfax report for the vehicle prior to purchasing it. Plaintiffs are not obligated to make such a purchase; as stated in the previous paragraph, Plaintiffs are entitled as a matter of law to rely on representations from the seller of the vehicle the Defendant, and to assume that those representations are true. 45. Admitted in part and denied in part. It is admitted that Plaintiffs have owned the vehicle for three years. Plaintiffs cannot admit the mileage figure that Defendant has placed in this averment. 46. Denied. This averment is a conclusion of law to which no response is required. 47. Denied. This averment is a conclusion of law to which no response is required. 48. Denied. This averment is a conclusion of law to which no response is required. 49. Denied. This averment is a conclusion of law to which no response is required. Further, this averment is simply an irrelevant self-serving recitation that adds nothing to the inquiry. 50. Denied. This averment is a conclusion of law to which no response is required. Ii. . 0 ~, ~z-.-- r Anthony T. McBe Attomey for Plaint' 407 North Front 1. Harrisburg, P A 17101 (717) 238-3686 Supreme Court J.D. # 53729 2 VERIFICATION We, Oil S. Pak and Amy 1. Pak, Plaintiffs in the foregoing action, verify that the facts set forth in the attached document are true and correct to the best of my knowledge, information and belief. I so state subject to the penalties of 18 Pa C. S. ~4904 (relating to unsworn falsification to authorities). APRIL 30. 2002 Date J1J S.~ Gil S. Pak APRIL 30. 2002 Date ~tf of <1M , Amy. k 8 ;:> "1Ji:F: nln 2:::;:; 2r-- O)J;'. ::<:::<;-- ~Cl ..,c-. -' ~o "",(~.; )> ... c z =< ':.11 co a 1,-> () "T, 3: :i:n -'<: ..,.., "'"'t,:' CJ :~} ~~f ~5 SJ --< OIL S. P AK and AMY 1. P AI(, Husband and Wife, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW v. NO. 02-123 CIVIL TERM EJB MOTORS, INC., tla BRENNER NISSAN, Defendants JURY TRIAL DEMANDED PLAINTIFJ!'S' MOTION TO AMEND THEIR COMPLAINT 1. Plaintiffs are represented by Anthony T. McBeth, 407 North Front Street, Harrisburg, P A 17101. 2. Defendant is represented by Lawrence R Weider, McNees Wallace & Nurick, LLC, P.O. Box 1166, Harrisburg, PA 17108-1166. 3. Plaintiffs seek to amend their complaint to add causes of action. A copy of the proposed amended complaint is attached hereto, marked "Exhibit A" and incorporated herein by reference. 4. The amendment, seeking to add counts regarding warranties, is within the statute of limitation in that Plaintiffs first discovered the defects that are the subject of this action on or about July 30, 2001. 5. The undersigned has sought a stipulation from Defendant's counsel as to amendment, but has not received a response, thereby leaving the undersigned to conclude that Defendant does not concur in this request for amendment. 6. Plaintiffs request that the Court allow them to amend their complaint in conformity with the attached Exhibit in that the fucts as known to Plaintiffs would support the amendment and there would be no prejudice enuring to the Defendant as a result of the amendment. WHEREFORE, Plaintiffs request this Honorable Court to enter an order ultimately allowing ',' /" OIL S. P AK and AMY 1. PAl(, Husband and Wife, PlaintiflS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-123 CIVIL TERM v. EJB MOTORS, INC., t/a BRENNER NISSAN, Defendants 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 an 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 full 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 TIllS PAPER TO YOUR LA WYERAT 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 NOTlCIA Le ban demandado a usted en Ia corte. Si usted quiere defenderse de estas demandas expuestas en !as paginas siguientes, usted tiene veinte (20) dias de plaza a1 partir de Ia fecha de Ia demanda y Ia notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en Ia corte en forma escrita sus defensas 0 sus objeciones a !as medidas y pueda entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 aIivio que es pedido en Ia peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE EST A DEMANDA A UN ABOGADO IMMEDIAT AMENTE. SI NO TIENE AGOG~ 0 SI NO TlENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VA Y A EN P",RSONA OR LLAME POR TELEFONO A LA OFlCINA CUY A DlRECCION SE ENCUENTRA ESCRIT A ABAJO PARA A VERIGUAR DONnE SE PUEDE CONSEGUlR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 "Exhibit A" " ' agreement by, rather than selling a car as represented, Defendant in fact sold a vehicle that had been salvaged. 18_ As such, Plaintiffs believe and therefore aver that the parties should be placed in the position that they were prior to Plaintiffs' purchase of the vehicle: Plaintiffs would return the vehicle to Defendant in exchange for a refund oftheir purchase price and any money expended for repairs, with a reasonable adjustment for subsequent mileage. WHEREFORE. plaintiffs request this Honorable Court to enter judgment in their favor and against the Defendant for $23,000.00, with interest at the same rate as the Plaintiffs' loan from Members First, or the statutory interest rate, whichever is greater, together with the costs of this action and any other relief this Court deems appropriate. COUNT n - NEGLIGENT MISREPRESENTATION 19. The facts set forth in paragraphs one through thirteen are incorporated herein by reference. 20. As a business that regularly sells cars to the public, Defendant owed a duty to Plaintiffs to truthful1y and faithful1y disclose the true condition of the 1998 Nissan Maxima that is the su~ect of this action, including the history of the car, certainly including a fact as significant as the car being salvaged. 21. Defendant breached that duty by failing to inform Plaintiffs of the true history of the car, a breach that is material under the circumstances. 22. As a direct result of the Defendant's failure to disclose the true nature and history of the automobile, Plaintiffs have suffered damages from the standpoint that, had they known the actual history of the car, the Plaintiffs would not have bought it. 23. As such, then, Plaintiffs have suffered damages not only in the amount of their purchase price, but for any repairs for which they have had to expend funds, and for interest expense that they have incurred as a result of their having to take a loan in order to buy the car. 3 \' WHEREFORE, Plaintiffil request this Honorable Court to enter judgment for them and against the Defendant in an amount ofat least $23,000.00, but to which should be added the interest expense that plaintiffi; have incurred. any other out-of-pocket expenses that the plaintiffi; have incurred, along with interest at the rate of the loan that the Plaintiffil have incurred or the statutory rate, whichever is greater, the costs of this action and any other relief this Court deems appropriate. COUNT III - FRAUD 24. The facts set forth in paragraphs one through thirteen are incorporated herein by reference. 25. At the time Plaintiffil purchased the vehicle that is the su~ect ofthis action, Oerendant (through its agents) knew or had reason to know of the vehicle's true history and condition, yet failed to disclose that fact to Plaintiffil. 26. As a direct resuh of the Defendant's fuilure to disclose the true history and condition of the automobile to Plaintiffil, Plaintiffil in fact bought the automobile as detailed above. 27. The Defendant's failure to disclose the true nature and history of the vehicle was done with scienter; that is to say, Defendant and its agents knew or should have known of the vehicle's true history, yet intentionally fulled to disclose that fact to the Plaintiffil. 28. The condition and true history ofthe vehicle was a material consideration in the Plaintiffil' decision to purchase the vehicle; that is to say, had Plaintiffil known that the vehicle was in fact salvaged before they purchased it, they would have not purchased the vehicle. 29. As a direct resuh ofDetendant's fuilure to disclose the true nature and history of the vehicle to Plaintiffil, Plaintiffil have suffered damages that include, without limitation, the purchase price of the vehicle, the interest expense that Plaintiffil have incurred as a result of having to take a loan to finance the purchase, out-of -pocket expense for repairs, and possible other damages, also. WHEREFORE, Plaintiffil request this Honorable Court to enter judgment in their fuvor and against the Defendant for $23,000.00, plus the interest expense that Plaintiffil have incurred, any other out-of-pocket expense that the Plaintiffil have incurred, with interest either at the rate of the Plaintiffil' 4 trebled because of Defendant's violation of the Consumer Protection Act, the costs of this action including Plaintiffs' attorney fees, and any other reliefthis Court deems appropriate. COUNT V - BREACH OF EXPRESSED WARRANTY 36. The filets set forth in paragraphs one through thirteen are incorporated herein by reference. 37. On the day that Plaintiffs bought the car that is the subject of this action, prior to them making the actual purchase, the sales person acting as an agent of Defendant (Patrick Smith), represented to Plaintiffs that the car was a good car with little mileage and had, in filet, been a demonstrator car in New York. 38. The car in filet was not a demonstrator car, and as Plaintiffs learned on or about July 30, 2001, was salvaged by the State of New York, with an auto insurer in the chain oftitle. 39. The salesman's description of the automobile, particu1arly when he represented that it was a demonstrator, was material to the Plaintiffs' ultimate decision to buy the car (a decision made later the same day) and, as far as Plaintiffs were concerned, became part of the basis of the transaction of them purchasing the automobile from the Defendant. 40. As a direct result of the salesman's intentional misrepresentatin regarding the car's history as a demonstrator, Plaintiffs were damaged in that they paid for a car that in filet was not a demonstrator, but was salvaged. WHEREFORE. Plaintiffs request this Honorable Court to enter judgment in their favor and against the Defendant for $23,000.00, with interest at the same rate as the Plaintiffs' loan from Members First, or the statutory interest rate, whichever is greater, together with the costs ofthis action and any other relief this Court deems appropriate. COUNT VI - BREACH OF IMPLIED WARRANTY OF MARKETABILITY 41. The facts set forth in paragraphs one through thirteen are incorporated herein by reference. 42. Defendant is a "merchant" as that term is used in the Unifurm Commercial Code, 13 Pa.C.S.A. ~ 101 et seq. and, more specifically, as used in 13 Pa.C.S.A. ~ 2314. 6 ~ .' Defendant's personnel in general to offer them guidance in buying the type of dependable car that plaintiffs were seeking. 51. The car bas needed numerous repairs since Plaintiffs have owned it and, in fact, bas not been fit for the purpose for which Plaintiffs bought it. 52. As such, Plaintiffs believe and therefore aver that Defendant bas violated the implied warranty of fitness for a particular purpose as described in 13 Pa. C.S.A. ~2315. WHEREFORE. plaintiffs request this Honorable Court to enter judgment in their favor and against the Defendant for $23,000.00, with interest at the same rate as the Plaintiffs' loan from Members First, or the statutory interest rate, whichever is greater, together with the costs oftbis action and any other relieftbis Court deems appropriate. Date Anthony T. McBeth, Esq. Attorney for Plaintiffs 407 North Front St., First Floor Harrisburg, PA 17101 (717) 238-3686 Supreme Court I.D. # 53729 8 ". '. ~ , ,','. ..,.", , , rr'; -:~ "~) GO r-=: i ~ -- n 50, :) :::.:- -, .J::-'. OIL S. PAK and AMY 1. PAK, Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COU1\fTY, PENNSYLVANIA CIVIL ACTION - LAW 02-0123 CIVIL EJB MOTORS, INC., tla BRENNER: NISSAN, Defendant IN RE: PLAINTIFFS' MOTION TO AMEND THEIR COMPLAINT AND NOW, this ORDER I ,>' day of September, 2003, the Prothonotary is directed to list this case for the next argument court session scheduled for October 22,2003. ~thony T. McBeth, Esquire For the Plaintiffs ,/Lawrence R. Wieder, Esquire For the Defendant :r\m BY THE COURT, AJ ~4\~ \\~~ o9-n.S " Y1N'~t~.L\SNN3d t l~\r,,"",r, ,.....",""...-" ,,;,--./,Int; ".J\jl ',!..!..' ,,'.;,' ~,:'.".,','J,'\j, 1\..) i'] \ :'1 \id ~ \ d3S LO OIL S. PAK and AMY 1. PAK, Husband and wife : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. EJB MOTORS, INC., t/a BRENNER NISSAN : NO. 2002-0123 CIVIL TERM : CIVIL ACTION - LAW IN RE: PLAINTIFFS MOTION TO AMEND COMPLAINT BEFORE HOFFER. P.L GUIDO. J. ORDER OF COURT AND NOW, this 15TH day of APRIL, 2004, for the reasons set forth in the accompanying opinion, Plaintiffs' Motion to File an Amended Complaint will be granted in part and denied in part. It is GRANTED insofar as they are given leave to add proposed Count V "Breach of Expressed Warranty." It is DENIED as it relates to proposed Count VI, "Breach ofImplied Warranty of Market Ability and Count VII, "Breach of Warranty of Fitness for a Particular Purpose." Edward E. Guido, J. Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pa 17101 Lawrence R. Wieder, Esquire 100 Pine Street P.O. Box 1166 Harrisburg, Pa. 17108-1166 ~~j <1_ 1,,--6 <f 9-. :sld 87 'j'I."! ,..~. I '; ': S I tk~'ij ~QOZ _In ..J.....' OIL S. P AK and AMY 1. P AK, Husband and wife IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. EJB MOTORS, INC., t/a BRENNER NISSAN NO. 2002-0123 CIVIL TERM CIVIL ACTION - LAW IN RE: PLAINTIFFS MOTION TO AMEND COMPLAINT BEFORE HOFFER. P.L GUIDO, J. OPINION AND ORDER OF COURT Plaintiffs commenced this action by complaint filed on January 9, 2002. On August 14,2003, they filed a motion to amend their original complaint. The amendment seeks to add three additional counts. Defendant has objected to the motion. Both parties have briefed and argued their respective positions. For the reasons hereinafter set forth, the motion will be granted in part and denied in part. FACTUAL BACKGROUND We will start with a recitation of the facts as alleged in the original complaint. The defendant is engaged in the business of selling and servicing automobiles.! On March 27,1999, the plaintiffs purchased a used 1998 Nissan Maxima for $23,000.2 The defendant represented "that the car was a demonstration car from New York."} In the months after the purchase plaintiffs experienced many probkms with the vehicle and questioned defendant "regarding the true mileage, or true condition ofthe automobile.,,4 I Complaint, para, 2, 2 Complaint, para, 3, 5, 3 Complaint, para. 10, 4 Complaint, para. 10. NO, 2002-0123 CIVIL TERM They were assured that the car was as originally represented, i,e, "a demonstration car from New York."s On July 30, 2001 the plaintiffs obtained a report from "Carfax.com" which disclosed that the vehicle had been "totaled for salvag(~ value in New York.,,6 The original complaint contained four counts, I) breach of contract, II) negligent misrepresentation, III) fraud, and IV) violation of the Pennsylvania Consumer Protection Act (73 P.S. 9 201-1 et seq). The amended complaint proposes to add three additional counts: V) breach of expressed warranty; VI) breach of implied warranty of marketability and VII) breach of an implied warranty of fitness for a particular purpose7 DISCUSSION "Generally, amendments to pleadings are liberally granted." Stoppie v. Johns, 720 A.2d 808, 809 (Pa.Comwlth. 1998). The issue is governed by Pennsylvania Rule of Civil Procedure 1033 which provides in relevant part: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. "However, an amendment will not be allowed after the statute oflimitations has expired if it introduces a new cause of action." American Motorists lnsurance, Co. v. Farmers Bank and Trust Co., 435 Pa.Super. 54,644 A.2d 1232, at 1234-1235. The claims contained in the counts sought to be added by plaintiffs are governed by a four year Statute of Limitations. Consequently, the statute expired on March 27, 5 Complaint, para, 10, 6 Complaint, para, 12. 7 The additional Counts are based upon the Uniform Commercial Code, 13 Pa. C.S.A. ~ 101, et seq. 2 NO, 2002-0123 CIVIL TERM 2003, four years from the delivery date of March 27,1999.8 Since the motion to amend was filed in August of 2003, the determining issue is whether the proposed amendments introduce new causes of action. Our appellate Courts have recognized that "(t)he phrase 'cause of action' defies succinct definition." Shaffer v. Pennsylvania Assigned Claims Plan, 359 Pa.Super. 238, 252,518 A.2d 1213, 1220 (1986). The Sht!ffer Court went on to state: In the context of amended pleadings, an amendment has generally been deemed to have stated a new cause of action if the amendment rests on a different theory, basis for recovery, or relationship between the parties than did the original pleading. 518 A.2d at 1221. In the instant case we find that the claim for breach of express warranty contained in the proposed Count V is not a "new cause of action." The theory of liability, basis for recovery and relationship between the parties is the same as in the breach of contract claim raised in Count I. In each count recovery is based upon the defendant having sold the plaintiffs a vehicle that was "salvaged" rather than a "demonstrator" as expressly stated. Since Count V serves only to "amplify or enlarge the existing cause of action" raised in Count I, it should be permitted. See Shaffer, supra, 518 A.2d 1220 quoting from Sanchez v. City a/Philadelphia, 302 PaSuper. 184, 185,448 A.2d 588, 589 (1982). 8 See 13 Pa, C.S,A, ~ 2725. As the Superior Court stated in Patton v, Mack Trucks, Inc: In the usual case under Section 2725, a cause of action for breach of warranty accrues when the seller tenders delivery to the buyer. An aggrieved party must bring suit within four years of tender regardless of whether he or she knows that a breach has occurred, The last sentence of Subsection 2725(b), however, extends the period of limitations in those few cases that meet the stated twofold test. If(1) the warranty "explicitly extends" to future performance of the goods and (2) discovery of the breach must await future performance, the cause of action accrues when "the breach is or should have been discovered." We have cautioned that an extension of the usual period "will not be permitted except in those instances in which there is a clear and unambiguous expression of an intent that the warranty shall pertain to future performance," Ranker v, Skyline Corp" 342 Pa.Super. 510, 515,493 A.2d 706, 709 (1985). 360 Pa.Super 1,5-6,519 A.2d 959, 962 (1986), In this case there is no allegation that the warranties at issue "explicitly" extend to future performance, 3 NO, 2002-0123 CIVIL TERM The causes of action asserted in plaintiffs proposed Counts VI and VII are more problematic. The original complaint was based upon the express representations made by defendant with regard to the vehicle being sold. Counts VI and VII seek to impose liability based upon "implied warranties". Since the original complaint makes no mention of such implied warranties, these counts change both the theory of liability and the basis for recovery. As such, they are new causes of action and will not be permitted. ORDER OF COURT AND NOW, this 15TH day of APRIL, 2004, for the reasons set forth in the accompanying opinion Plaintiffs' Motion to File an Amended Complaint will be granted in part and denied in part. It is GRANTED insofar as they are given leave to add proposed Count V "Breach of Expressed Warranty." It is DENIED as it relates to proposed Count VI, "Breach ofImplied Warranty of Market Ability and Count VII, "Breach of Warranty of Fitness for a Particular Purpose." By the Court, Isl Edward E. Guido Edward E. Guido, J. Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pa 17101 Lawrence R. Wieder, Esquire 100 Pine Street P.O. Box 1166 Harrisburg, Pa. 17108-1166 4 Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERL.AND COUNTY, PENNSYLVANIA GIL S. PAK and AMY L. PAK, Husband and Wife, v. CIVIL ACTION - LAW EJB MOTORS, INC., Va BRENNER NISSAN, Defendants NO. 02-123 Civil Term JURY TRIAL DEMANDED ANSWER OF THE DEFENDANT TO COUNT V OF PLAINTIFFS' FIRST AMEN[JIED COMPLAINT 36. The averment does not contain an allegation of fact to which a responsive pleading is required. 37. Denied. After reasonable investigation, Defendant is without knowledge or information, sufficient to form a belief as to the truth of the averment, accordingly, the averment is denied. 38. Denied. After reasonable investigation, Defendant is without knowledge or information, sufficient to form a belief as to the truth of the averment; accordingly, the averment is denied. 39. Denied. It is denied that the salesperson made the alleged representation as after reasonable investigation, Defendant is without knowledge or information, sufficient to form a belief as to the truth of the averment; accordingly, the averment is denied. By way of further answer it is stated that the representation that vehicle was previously used as a demonstrator is not relevant to the issue of whether the vehicle was salvaged at some point in time. 40. Denied. It is denied that the salesperson ffii3de the alleged representation as after reasonable investigation, Defendant is without knowledge or information, sufficient to form a belief as to the truth of the averment, accordingly, the averment is denied. By way of further answer it is stated that the repn3sentation that vehicle was previously used as a demonstrator is not relevant to the issue of whether the vehicle was salvaged at some point in time. WHEREFORE, Defendant prays your Honorable Court enter judgment in favor of the Defendant and against the Plaintiff. Respectfully submitted, McNEES WALLACE & NURICK LLC B~e'. E",",", 1.0. No. 16707 100 Pine Street P.O.. Box 1166 Harrisburg, PA 17108-1166 Phone: 717237-5229 Attorneys "':ir Defendant Brenner Nissan Dated: June 1'7 ,2004 VERIFICATION I, John McGreevy, CPA, Chief Financial Officer of IEJB Motors, Inc., tla Brenner Nissan, a corporation. Defendant in the within action, verify that the statements made in the foregoing document are true and correct to the best 01' my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904, relating to unsworn falsification to authorities. - ,,--') ~ ~ John McGreevy Dated: June 1(- ,2004 CERTIFICATE OF SERVICI;, I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid mail upon the following: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pa 17101 McNEES WALLACE & NURICK LLC By ---- awrence R Wieder 1.0. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for EJB Motors, Inc. fla Brenner Nissan Dated: June 11 , 2004 0 "" ,- c:..;. " - ...--=.-, '-' J:;.- -n ,- -::1 , ph :!J ....::':' r- " rn co -~ '-,) d;r -0 ::;.:!4 . -,- (,"):d _".'k. :;,..C) ~-; r,) (5 en .:.:.;.' I ~:;~ ~ 1') ,:< PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) 'KJ THE PIDrHONJTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) x for JURY trial at the next term of civil court. for trial without a jury. CAPTION OF CASE (entire caption !IRlst be stated in full) (check one) CIL S. PAK and AMY L. PAK, ( X) Civil Action - Law Appeal from Arbi trntion (other) (Plaintiff ) vs. EJB MOTORS, INC., t!a BRENNER NISSAN The trial list will be called on and TTlNF?1 ?nns , Trials corrmence on JULY 18, 2005 (Defendant) Pretrials will be held on JUNE 29. 2005 (Briefs are due 5 days before pretrials.) vs. (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. Civil 02- 1 23 C i viI 19 Indicate the attorney who will try case for the party who files this praecipe: ANTHONY T. MCBETH, ESQ. Indicate trial counsel for other parties if known: LAWRENCE R. WIEDER, ESQ. This case is ready for trial. Print Date: r ,) r ;~~-OS Attorney for: PLAI ~ .-! '1 GIL S. PAK and AMY L. PAK, Husband and Wife, Plaintiffs 10 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS CIVIL ACTION - LAW EJB MOTORS, INC., t/a BRENNER NISSAN, Defendants NO. 02-123 CIVIL TERM IN RE: PRETRIAL CONFE:RENCE A pretrial conference was held Wednesday, June 29, 2005, before the Honorable Edvlard E. Guido, Judge. Present for the Plaintiffs was Anthony T. McBeth, Esquire, and present for the Defendants was Lawrence R. Wieder, Esquire. This is a breech of contract, violation of the Unfair Trade Practices and Consumer Protection Act. The parties estimate it will take one day to try. Plaintiffs counsel has a conflict on the afternoon of Monday the 18th. He must be out of the courthouse by noon in order to attend a hearing in York county in the p.m. The parties would like to pick a jury Monday morning and come back and start the trial Tuesday morning. In the alternative, they would be available for trial commencing on Tuesday morning. There are several issues raised in the pretrial regarding admissibility of evidence. In that regard, the parties are directed to exchange all exhibits by ,,' C\,'~"~\\i'\('<"\ ",.,,:\><;1"-\.... \i'"J ,."':..,J.~'\'.':'~ ~\ \'IJ '<)1,' (" k" ,.0 I'>"~ f..~\,,), \ ~ 'I:.~~1, 6 ~<c.~~ ~~.:1," ~~ I" ,\~\'06. , M':,..O'\'\Vrv, )-'0' ~<j\~ Friday, July 8, 2005. All objections to the exhibits, or other potential evidence, shall be raised in the form of a motion in limine. All motions in limine shall be filed, with supporting authority, by July 13, 2005. All responses shall be filed, with supporting authority, by July 18th, 2005. By be likely. Settlement Edward E. Guido, J. Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, PA 17101 For Plaintiffs Lawrence R. Wieder, Esquire ~~ ~ 100 pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 For Defendants / (, .30. oS 9-. Court Administrator Prothonotary :mlc GIL S. PAK and AMY L. PAK, Husband and Wife, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW v. EJB MOTORS, INC., tla BRENNER NISSAN, Defendants NO. 02-123 Civil Term JURY TRIAL DEMANDED DEFENDANT'S MOTION IN LIMINE Now comes the Defendant, EJB Motors, Inc. tla Brenner Nissan and pursuant to the Order of Court dated June 30, 2005, files its Motion in Limine to exclude certain documents and testimony of the Plaintiffs and to bifurcate the trial of liability from damages. 1. Plaintiffs propose to offer into evidence a "Vehicle Title Record" from the State of New York, dated March 25, 2003. For the reasons provided in Defendant's brief, the admission of the document should be precluded. (A copy of the document is attached as Exhibit "A".) 2. Plaintiffs propose to offer into evidence a document obtained from "CARFAX Vehicle History Reports" dated 7/30/01. For the reasons provided in Defendant's brief, the admission of the document should be precluded. (A copy of the document is attached as Exhibit "B".) 3. Plaintiffs may seek to relate a telephone conversation between GiI Pak and a representative of the New York State Bureau of Motor Vehicles. (A copy of the pertinent portions of Mr. Pak's deposition is attached as Exhibit "C".) For the reasons provided in Defendant's brief, the testimony should be precluded. 4. Plaintiffs will presumably seek to offer their own testimony on the subject of damages. The deposition of Mr. Pak revealed that neither he nor Mrs. Pak have any special knowledge concerning motor vehicles, other than that of any lay person. (A copy of the pertinent portions of Mr. Pak's deposition is attached as Exhibit "0".) For the reasons provided in Defendant's brief, the testimony should be precluded. 5. Plaintiffs will presumably seek to testify or introduce into evidence, documents concerning the amounts of their loan payments. For the reasons provided in Defendant's brief, such testimony should be precluded, unless liability is found. 6. Plaintiffs will seek to offer into evidence, their vehicle service records of February 20, 2001 and July 30, 2001. The documents will presumably be offered to prove that Defendant knew that the vehicle had been titled as salvage, prior to the sale to the Plaintiffs. The vehicle was sold to the Plaintiffs on March 27, 1999. (Copies of the records are attached as exhibits "E" and "F".) For the reasons provided in Defendant's brief, the admission of the documents should be precluded. Respectfully submitted, McNEES WALLACE & NURICK LLC ~) ......---;7', By (/ Lawrence R. Wieder, Esquire I.D. No. 16707 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717 237-5229 Attorneys for Defendant Brenner Nissan Dated: July 13,2005 2 Stale of New York DEPARTMENT OF MOTOR VEHICLES, Empire Stale Plaza, Albany, New York 12228 VEHICLE TITLE RECORD REQUEST CODE 3/25/03 3999993 Title and Identification No, Year Make Model BodyIHuU Wt.lSts.lLg~' 00101' Fuel CyUProp. JN1CA21A1WM806317 98 NISSA MAX 4DSD 2878 BK GAS 6 CURRENT OWNER: 00 9030499676 3/04/99 ~~~~2N~guI~; SALES~8~[tgGE i\olffii;~ ODOMETER: 06574 ACTUAL 'f+Ij,E1\" "'~:~ ; 11356 LIfNfWLDER: 00 .{), 81~:~p99305 i:! STATE FARM I.~:ii'CO,.>" ",>>, ODOMETER: Q~)rIc\:jcTUAL> > ": > ,$>:~t'''l;, " 'l,""";..;r" c' '> , , /" '..;\" C",..'^,,>..o",,^,,'<'^-~ ".. 'I,'o..,,$jJ ) \~ J ,,~' 16 :.i.t,'$~~~ >>~>>'''7t:ll~~''!~ if ,"Tr1?~'; '\ 'rr,)~, :,:!>',:}~..M" :rJJy ,.il!!:~~~;': ,1(,?" ,;~,!~"";:\,,,..J '";d::';i<:~,~i,) if; ',"""# ',J""~.:;k,l~,,,, 'f;""''''''''''~''' """, ~ "',"'Jf, "~';.,l f".\f~, ~,!"i",,,; ooJi~o Amlf.&3iItL~\'ir;'f:: ;'f~: i ,! ~ ; i~; l 'J ,,' "~',', 'm;;;4.....",,~:.d\;: i,~ .., 'j , NO UNSATISFIED dE!tlS ~Q!ci:'O.3':/2'{!'03:>'\ >: , : 1 PREVIOUS OWNER: PREVIOUS OWNER: W483DU NMAC ODOMETER: MV-904N (01101) This is to certify that the foregoing is a true and complete copy (photographic) of a record on file in the New York State Department of MM., '~'o"', ^'.~. commiSbloner~f~es Carfax Vehicle History Report on JNl CA21 A 1 WM80631 7 Page I of6 Messaqe Alert l"'J[;;J~ ,""T;]I''r'':''~:;l'7:'';tl~..''''~~ """7~_~'r'<~~"""",",,~~~~""~_"~" 7 - - - -, , C -j ~ '1"^.P'~~~':;~rII :h-:'';J~''''~,:' :0"tI,,,,,),b'J,Jrr));J;D'~\'1iJill't"Jf ','1', rc~ '-iJ'i'[,~,~,; ~~k'".,",~. :~,-,,;,:.Lt;t.u,.o..~ld_':~"'~;;~_'~::'~ ,_.... ". <. .\;""'".~ l~~m[j~~r VEHICLE HISTORY REPORTS www.carfax.com RUN A~~OTHUi REPORT F'IN [) /'!., CAP FHtD A DE<\LEf.: :::~PF;";\ CAS!'. OA~.p. r}R,J:::"'f~f..H .carfax Vehicle History R~ort Summary & ALERT! This 1998 Nissan Maxima (JN1CA21A1WM806317) does not have a Clean Title History , and does not qualify for the Carfax Clean Title History Guarantee, By ordering this Carfax Report, you have significantly reduced your risk of purchasing a vehicle with a hidden problem, ISection #: IlSection Name: IISection Results: I IU IIvehicle Specifications I JN1CA21A 1WM806317 1998 Nissan Maxima lIB Ilclean Title History Analysis 1 Clean Title Historv NOT Guaranteed ~ Odometer Fraud Analysis No Odometer Fraud Detected Last odometer readina: 7.653 ReDorted on 05/17/1999 fib Ilsignificant Event Analysis 111 additional event/sl found 1 I~ Ilvehicle Usage Analysis I Checked 7 tvDes of vehicle reaistrations [~ I[vehicle History Details 18 Total Vehicle Historv Records Found I NOTE: Cllffax has not inspected this vehkle. It may have problems that have not been repotted to Carfax. I How did Carfax analvze this vehicle's history? g Vehicle Specifications ~ INF~. V1N: Yr/MakelModel: Body: Engine: Fuel: Driveline: Aspiration: Country Mfg.: JN1CA21A1WM806317 1998 Nissan Maxima 40 Sedan Mid-size car 3,OL V6 MFI DOHC 24V Gasoline Front-wheel Drive Normal Japan http://www.carfax,com/cfmlUUCP_ViewReport.cfm 7/30/0 I Carfax Vehicle History Report on JNICA21Al WM806317 Page 2 of 6 R Clean Title History Analysis c=D J:A. ALERT! This 1998 Nissan Maxima (JN1CA21A1WM806317) dOE'S not have a Clean Title History ili and does not qualify for the Carfax Clean Title History Guarantee, Carfax checked this vehicle against its database to determine whether any title documents were designated or marked with the following types of problems: Problems Analyzed: Results: Salvaae/Junk Title & Checked - Problem Found Rebuilt/Reconstructed Title CD Checked - No Problem Found Flood Damaae Title CD Checked - No Problem Found Damaae Disclosure <t Checked - No Problem Found Manufacturer Buvback (LEMON) CD Checked - No Problem Found Exceeds Mechanical Limits Tille CD Checked - No Problem Found Not Actual Mileaae Title CD Checked - No Problem Found t) NOTE: Click here for a complete Carfax Glossary, Iltll Odometer Fraud Analysis f INFO. . GOOD NEWSI . Carfax analyzed all reported odometer readings for this 1998 Nissan Maxima (JN1CA21A1WM806317) and detected no odometer fraud - also called an "odometer rollback" or "odometer clocking," Carfax analyzed these odometer readings to determine if any reported reading is less than a previous odometer reading. Date Reported: 07/03/1998 Odometer Reading: 20 12/10/1998 6,574 03/26/1999 7,616 05/1 7/1999 7.653 http://www.carfax.com/cfmJUUCP_ViewReport.cfm 7/30/01 Carfax Vehicle History Report on JNICA21Al WM806317 Page 3 of6 1m] Significant Event Analysis em - Jj." ALERT! The Carfax database has discovered significant event history on this 1998 Nissan Maxima ill (JN1CA21A1WM806317), Significant Events: Results: Accident Records CD Checked - No Event Found Salvaae Auction Records & Checked - Event Found Failed Emissions Inspection CD Checked - No Event Found Fire Damage CD Checked - No Event Found Crash Test Vehig", CD Checked - No Event Found Grev Market Vehicle CD Checked - No Event Found t:J NOTE: Click here for a complete Carfax Glossary, (leil Vehicle Usage Analysis c=- ., The Carfax database contains registrations pertaining to how this 1998 Nissan Maxima (JN1CA21A 1WM806317) was registered for use, This Section's analysis reveals whether a vehicle has been used for purposes other fhan Private Use. This information may assist you in making a more informed purchase decision, Usage Analyzed: Reaistered for Lease Use Reoistered for Commercial Use Results: .. Checked - No Lease Use Found .. Checked - No Rental Use, Found .. Checked - No Government Use Found .. Checked - No Taxi Use Found .. Checked - No Fleet Use Found .. Checked - No Commercial Use Found .. Checked - No Nonprofit Use Found Reaistered for Rental Use Reaistered for Government Use Reoistered for Taxi Use Reaistered for Fleet Use Reoistered for Nonprofit Use [J NOTE: Click here for a complete Carfax Glossary, http://www.carfax.comlcfmJUUCP_ViewReport.cfm 7/30/01 Carfax Vehicle History Report on JNICA2IAIWM806317 1m] Vehicle History Details Page 4 of 6 ~ The Carfax database contains a total of 8 records on this 1998 Nissan Maxima (JN1CA21A1WM806317), Here are the details of all available vehicle history records reported to Carfax including those not shown in previous sections, DATE REPORTED ODOMETER INFORMATION READING SOURCE OS/21/1998 New York Motor Vehicle Dept. Scarsdale, NY GENERAL COMMENTS Registered as private vehicle 07/03/1998 Title issued 20 New York Motor Vehicle Dept. Dallas, TX 12/10/1998 6,574 New York Motor Vehicle Dept. East Eimhurst, NY SALVAGE TITLE/CERTIFICATE ISSUED 01/07/1999 Salvage Auction New York Title #D42509F SALVAGE TITLE/CERTIFICATE ISSUED Sold At Salvage Auction 03/04/1999 Title issu ed New York Motor Vehicle Dept. College Point, NY 03/26/1999 Vehicle sold 7,616 Auto Auclion Eastern Region 04/07/1999 Title or registration issued Pennsylvania Motor Vehicle Dept. Mechanicsburg, PA Title #53136550 01 EJ 05/17/1999 7,653 Pennsylvania Motor Vehicle Dept. Camp Hill, PA Title #53136550 02 PA Title or registration issued First lien reported http://www.carfax.comlcfm/UUCP_ViewReport.cfm 7/30/01 Carfax Vehicle History Report on IN 1 CA21 A 1 WM8063 1 7 Page 5 of6 RL'N ArlO~HER REPORT Comment Definitions Salvage Auction Record Vehicles classified as "totaled" by insurance companies are often sold at auction to be reconstructed and put back on the road, States issue salvage titles when an inslJrance company takes possession of a vehicle as a result of a claim, This generally occurs after a vehicle has been declared a total loss, States issue junk titles to indicate that a vehicle is not road worthy and cannot be titled again in that state, Salvage/Junk Title rJ NOTES: . Click here for a complete Carfax Glossary, . You have significantly reduced your risk of purchasing a vehicle with a hidden problem. However, Carfax has not inspected this vehicle, There could be other potential problems with this vehicle that have not been reported to Carfax, . Not all tilies issued represent a change in vehicle ownership, For example, a titie could be issued to reflect an address change or correction, Carfax Auto Services In appreciation for your business, we offer our valued customers additional useful services and auto-related savings opportunities, Here are several special offers provided by Carfax and our selected partners to further assist you in the car buying process, (')~ Certified Cars .~ Dealer Locator . Cash Back Program 'CARJF:Ax Thanks for using Carfax! Carfax has screened and selected for you the very best providers who offer quality products and service at low prices. Shop these providers with confidence thanks to Carfax. Insurance ~esurance .NI"''''_.Oftly~. Finance Ai' PEOPI.E r FFIRST.COM Carfax Disclaimer: CARFAX DEPENDS ON ITS SOURCES FOR THE ACCURACY AND RELIABILITY OF ITS INFORMATION, THEREFORE, NO RESPONSIBILITY IS ASSUMED BY CARFAX OR ITS AGENTS FOR ERRORS OR OMISSIONS IN THIS REPORT. CARFAX FURTHER EXPRESSLY DISCLAIMS ALL http://www.carfax.comlcfmlUUCP_ViewReport.cfm 7/30101 Carfax Vehicle History Report on JNICA2lAIWM806317 WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, CARFAX@ Customer Service: We~.Rort@Garfax,com www.carfax,com @ 2001 Carfax, Inc, All rights reserved. 30,Jul.2001 18:14 Message Alert JIIII(;J Ei ,"" 'i' '. YOU~~1~~siageWlii!i~~~iYll~::' ,')I UK ',~" ,"'.;:<- . ,.."'"',-..,,..,,; http://www,carfax.comlcfm/UUCP_ViewReport.cfm Page 6 of6 7n{)!Il! 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 the car you asked about the title. You said that at all times when the plaintiffs were considering buying the vehicle from the defendant in early 1999 as described above, agents of the defendant represented that the title to the vehicle was not on-site. It was not available for plaintiffs' inspection. Do you have knowledge that, in fact, there is a New York state title for this vehicle which says salvage on it? A Do I now have knowledge that there is a New York State title? Q Yes. Or when you filed the complaint, or at any time, did you have knowledge? A I did not know when we filed the complaint. I hadn't talked to the DMV in New York before that to know it had been in an accident, to know that a salvage title was issued. Do you have issued in New Q That was my question. knowledge that a salvage title was York? A On the basis of the phone conversation I had with the DMV, I would answer G8IG8R & LORIA REPORTING SERVIC8 1-800-222-4577 20 1 yes, they expressed to me there was a salvage 2 title. 3 Q Do you have a copy? 4 A No, I don't. I think you have a 5 copy of the title history. 6 Q Correct. You produced a copy of the 7 title history, but you didn't produce a copy of 8 the title from New York. That's what I asked. 9 A Right. No. 10 Q The reason I asked, obviously, was 11 without a title from New York showing it was 12 salvaged, had you seen the title at your request 13 at the time you bought the vehic:.e, it wouldn't 14 have told you. That's why I asked if maybe you 15 had the title. 16 A No. 17 Q To save my voice, I'm going to ask 18 you to look at Interrogatory Number 17. And 19 read it to yourself and look at the answer and I 20 will ask you a question about it. 21 A Okay. 22 Q In 17 I asked you abcut the value of 23 the vehicle. And you said if we assume 23,000 24 to have been the normal price of the vehicle, 25 this would make 11,500 the amount by which the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 problems afterwards. A Sure. Q A Have you ever been deposed before? No, I have not. Q Have you ever been involved in a lawsuit before? A No, I have not. Q How old are you? A Thirty. Q What do you do for a living? A I am the operations manager in the pediatrics department at Penn State Hershey Medical Center. Q Prior to purchasing the Maxima from Brenner Nissan, had you ever purchased a vehicle before, anywhere? A No. Q So this was the first time you bought a vehicle? A That's correct. Q Do you have any experience buying and selling vehicles? A No. Q Have you ever worked for a car dealer? GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 5 1 A No. 2 Q Have you ever attended a wholesale 3 vehicle auction like Manheim? 4 A No. S Q Do you have any knowledge about 6 buying and selling vehicles, other than an 7 ordinary layperson would have? 8 A No. 9 Q You've probably learned a lot from 10 this case. 11 A Certainly have. 12 Q Tell me what brought you to Brenner 13 Nissan back in March of '99 to leok for a 14 vehicle. 15 A I had a Chevy Cavalier which my 16 parents I grew up in Korea. I went to 17 college in New Jersey and moved to Pennsylvania. 18 So my parents and I came to the Camp Hill area 19 after I graduated college. They jad purchased a 20 vehicle at Sutliff Chevrolet, I think it was, 21 and they had left me that vehicle when they went 22 back to Korea. 23 So I had this car. Amy had leased a 24 Jetta, Volkswagen Jetta, and that lease term was 25 up. So we turned that car in and went down the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 21 1 vehicle was worth considerably less. Are you 2 saying that at the time you purchased the 3 vehicle, had a buyer known it was a salvaged 4 vehicle, the fair market value was $11, SOD? 5 A I'm saying in my research, one of 6 the articles I read was that even if the cars 7 can be reconditioned very well, but even a car 8 that has been reconditioned very well, by the 9 virtue of the fact it's been reconditioned 10 taken from salvage and made whole again -- it's 11 generally only worth half of what it would 12 normally be worth. 13 Q Are you saying at the time you 14 bought it, the actual market value had you 15 known it was salvaged -- was 11-5, or don't you 16 know? I'm just trying to get an explanation of 17 what you said in your answer. 18 A My answer was, I guess based on the 19 question saying you say it's worth considerably 20 less, what is that amount 21 Q Correct. 22 A would be my answer saying my 23 research seems to say cars are only worth half 24 their value if they're reconditioned. 25 Q Then, is your opinion that at the GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time you bought it, had you known it was salvaged, that it really was worth 11-5 and not what you paid. Is that your opinion or not your opinion? MR. McBETH: asking that question. expert in automobiles, buying or selling. Do layman? Depends how you're He's obviously not an or their worth, or their you mean his opinion as a MR. WIEDER: Yes, because you're right, he is not an expert. A I guess, my opinion, just from an economical standpoint, a car is worth what someone is willing to pay for it and what a seller is willing to take for it. In that vein, if someone were told, well, this is a salvaged car, it's been rebuilt, you take your chances but will cost you less and that's 11-5, that's great. I guess my opinion would be that someone, knowing the car had been ~econditioned, certainly wouldn't have probably expected to pay 23,000 for it. BY MR. WIEDER: Q That's a fair answer. can, tell me monetarily what your As best you losses have GEIGER & LORIA REPORTING SERVICE 1-800-222-4577 'STEM .tE AIR 8AG 071301200110:24:33 BRE~~~ER NISSAN 627\ Carlisle Pi... 'Mechanicsburg, Pa. \70~5 F'HONE (717) 697-8400 SElF-DIAG [PAST) ?"l ~I /' I-~-,' ~'""', -.. ~ ,~~,!,,! ~ ~ Oldsmobile .... CHEYllOLET eiD 'C RESULTS DE MODULE RH PEN) RECOMMENDED SERVICES .1~~:"'IIl.l~ .,:I:t:'.'1II.J....t!:I:'I..:t1:.II.I... L"1";If:.U(.J~ I,.""'''''''.r''''''l i ! , l2S1 (81) D133) 6 r I ~ I.~. \ GD ..' I'-'il LIfETIME INSPECTl N OIL & FILTER CHANGE FRONT WHEEL AlIGNMEN CHECK ENGINE LIGHT OIL & FILTER CHANGE BODY ELECTRICAL ~ 0:>'CS : BXN2542 1432454 .--..------ SERVICE HISTORY ,. . ,',. " .. ", , 02120101 4261JG 34848 1193 1068 I 03NIZIJ2 1068 C 00NIZIJ2 1068 C 45NIZ05 09/29/00 384348 30349 1178 1075 W 10NIZIl6 09119100 382553 29974 1193 1188 C OONIZ02 11 C 51NIZ UESPERSON NO, 1073 SERVICE PU,ICK l SWiH 'E':li:',l',l"KEMCDE~ I PRODU(TtC'. :.>TE; ,,~':CC.>( "C I P2J01198 DELlVERYC.1-=: 03/27199 '2:5 "::;g~.!5 JN1CA21A1N~306317 GIL S P~K 1509 LETCH'hORTH RJ CAMP HilL. PA 17011 , i 98/NISSANIGlEIMAXIMA :'.:S;O~'E,:> ',C ;3EFlVICE ':O;T:>ACT :..,,=.::,a T',''''''' i DEVI€RY ""ILE$ \ SElL\NG DEALER 'jO F'l.:;, ;)AT€ I 7653 ' 3396 07/30/01 E;;/~;/~tATE I j6~OOoN MIleS 574-.0, ADVISOR NO ....DVlSOR 1225 ' RYAN N ENGLAND , ACCEPT THE P,O. NUMBER eSTIMATE AND AUTHORIZE REPAIRS SALVAGE t,""TEAI'IAt.. 'P!'<OVED !lY RESIDENCE PHONE 717.975- 1785 -.., ~ BUSINESS PHONE. ! 717.703-6486 TIME RECEIVED i DATE:TrME ?l:lCMISEO IPRIOFllTY 2 PCI't"\i1:\;~ 07:36am 'omom C4:30~m STATE REG# K83 : LABOARATE -SRMS, .;T;:lICTLY CASH _.,,~~:: o,o~''.,E\'''', ,,",l:}S ~e'...,.,. "'f)<Cnu "'" ,_~ ,"""'_......., '0",":0 OIl <lcrn. elOf>g ,..;1tI "" nirCeua-, "',,'.,,.'"'''' :t<jre. ,n..l y<>J~'" 'IOl '_:IitIIe to- o... '" '"."....... '0 ',ehO:'-Of etb:'''' 'e".n ',.n""e n ClOse 0/...., lhe~: ""nyotp,., ::.1_~e ""Y""'<l~:<><'\to! "" 100 ~y _yo~"" D'!' .~3v""at".'" 01 o.rts 0' ~el.ays '" o.rts ,,~~<<I!."" \he wpplie' 0' l'artSp"ne', "~...,y ;!tan' '"'U ..,.,a.." r"'" ~mpIoyn. ...'mSsiotl 10 ''C~t~l.. ,~~ ,~"tC'" he'e!n ~e$e'''''''' "" m,ets, ~..n",ev. or ."e..ne'" I", lt1e ~u"'CS!O :' 'e51;n; ,,,"'or 'n"".Cbon "'" ,,<1',..... "'....."aric'. e~ '$ -e.~." 'C"I\Ow~ on ,bov., ViI~"''' '" SfI<"V'. tp,.""""-"'\<>I ~onll>e,~': X SHUTTlE REOUIRED '{E3 ;'.0,- . : -.. . DVES C 'OONIZ02 OIL & FILTER CHANGE CUSTI)!ER REQUESTS OIL & FIL TEll CHANGE eSTIMAn ORIGINAL YC'U HAVE THE RIGHT TO AN EST!- ESTIMATE MIITE IF THE 'EXnCTED COST OF REPAIRS OR SERVICES WILL SE :~~L~~R~t'VE DOLLARS. $ C lONIZ illliVEABILITY CUSTCl1ER STATES Tlf[ AIR BAG LIGfT IS al AIfJ SES llGfT IS al ~C>9i4~ \\\~~V\C-\.~ ~(~ L\~\:\s WRmEt-f ESTIMATE ORAL ESTIMATE I DO NOT AEQUEST AN ESTIMATE III the eYllotlhal you, lhecuslomer. alllhl:l- 1\1:& eo"""el'll;;em8nl but tlO not autnorite ~",ml~~~ep:r~=~~,c~~ $ uml)fy or pattlally complelltd worll. Such chaf11e will be dirlicl\'y related 10 ltle actual amain'll of labor or parts involved in ItM \nspt>Clion, repairorsorvice. ANY WAAfV,HTIES ON THE lTEMJ ITEM,S SOlO MERESY ARE THOSE MADE BY TrtE MA.N\)FACTuFlEA. THE SEllER BRENNER F.l.Mll Y OF OEALER$HIPS HERESY EXPRESSLY DISCLAIMS ALL WARHANTIES, EITKER eXPFlESS OR IMPLIED, INCLUDING ANY IMPl.lEO WAR, RANT't Of MERCHANTABILITY OR FIT, NESS FOR A PARTICULAR PURPOSE. AND BAENNER FAMILY OF DEALER. SHIPS NE..ITHER ASSUMES NOR ,t,V, THORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY LIABILITY IN CON, NECTlDN WITH THE SALE OF T"'15 ITEM/ITEMS, .u. PAJfTS ARE NEW OR FACTORY REBUILT UMLESS ~;PEeIFlED OTHEFlWlSE REKTAl. NUIIBER PAGE 1 Of 1 432454 SERVICE HARD Copy, c <" ,r~;' VEHICLE TO(~ 0 CUSlOlofER'S ACCEPTANCE INrrlAl.~ AUTHORIZED ADDITIONS DATE _ TlME_ BY $ TOTAL OATE_ TlME~ BY REPLACED !=lAATS WIU. BE RETUAt<.IED UNLESS SPECIFIED OTHERWISE _ DISCARD Parts replaclild pursuant to manufactuf'et's wan-anty ~ retained by Brenner Family -, ~ '-.------- CII~ ~~ ~~ ^ . BRENNER FAMILY OF DEALERSHIPS ~ ~ ~eep ~ :IJ,~P' GZ> Oldsmobile '.... CHEVROLET BRE~'~ER NISSAN 6271 Carlisle Pi....;' Mechanicsburg, Pa. 17055 PHONE (717) 697-8400 RECOMMENDED SERVICES .. " ,. ., -. . . . .. -, ~ ,. -, .. . SERVICE HISTORY -----,----- ._--'-.'--------,--- . -"_..,----'--".-,..,.,----_.. ...... I 11U..'"'\.."",,"'l' I ~ .' ,.. - .. o' 09/29/00 384346 30349 1178 1075 09/19/00 382553 29974 1193 1188 OIL & FILTER CHANGE 1188 BODY ELECTRICAL 1188 EXT TRIM CONCERN 04/05/00 354687 23283 1010 1075 22500 MILE SERVICE 0 1 1010 1069 BODY ELECT CONCERN SALESPERSON NO, 1073 PATRICK l SMITH SERVICE JNlCA21A1WM806317 GIL S PAK 1609 LETCHWORTH RD CAMP HilL. PA 17011 I'IEARIMAKE.,'MGC". ! 98INISSANIGLE/MAXIMA :i.;S7C'\lE?',C ,3e.=WICESO'-'riACT SALVAGE 36248 ':Cl(::R :h"'=,,~;!'L _-:':""::'=".'~D ::;'1 RESlOEN'CE PHONE 717.975.1785 BUSINESS PHONE 717.703.6486 BLACK/ nJRBO : MiMe I AIR corm p S . NIZZ' Y ! y I AUTHORIZE YOU TO COMPLETE REPAIRS ! 0 WITHOUT AN ESTlMATE , TIMERECEIVEO , OATE'TIME PROMISED PRIORITY 3 ,,<:t....c' C'. ="-.e ST":;CK ',c 22831U l.CE',2E,'iQ BXN2542 o 02101198 :;;.~,'iE"l" ::~-:-= DEL,';:"" '~ILES 7653 406190 SEL,~G DEAl':::::'~, ,'- ,- -,;;:;.:="" , 3396" i oi/iOll! 1 i EXP'RATION r.AIL'=:" ,TAG ',C ' 360000 I 708 I ADVISOR ROBERT L ADAMS , P.O. NUIIBER ,"?"S".- 06:28am 02/20/01 STATE REG# K83 LABOR RATE I "~~yS~J.:~~~C~L ~;,~;,~ ~~~;,;;.i:~';;~~'';;;;':~~.,.. en. ~K_r! "'81e,;,1 and .g... :ho' you.", r>o1 '_QnSiblo Ie< os.s ", oam~. ;~ .on",. 0' ....lCles letI '" vOfuC:I... CaslI of ,.t. in,., ,r allY""'" ,.'.so b.y<>~d fIl'" -=-:.01 Of for."Y o.~ :auH<l ~y .."...,lab,hty"':>er'lSOt,O....ys'''",,''ssh'P'''_trt''',.upphe':r''''''S90'',''-e''''lJIg,.nl10U'''a,O'you:empIc\'<H!S:'''''',""",'', x...'... :ne '.,."cte ~.,'"'" ""SCntltd on S"....l$, "tgh...ys or ,'sewre'o 'or tt>e :""~"$e '" 'es~ng aM::, "SCe<~,,",.\n np'~ ~...,n,",,",', "".n.'.t>yac~'"<l!IO<lon'_v"'"".'Ooec"rem..;'J1<>W""ooao..,"~"'" X 04:30pm (;: ~' 'i'-: .:... o 1 rotENTS : CALL 703.6486 C *03NIZOl 5 PA STAlE INSPECTION iJL CUSTOHgl)'1'~~T~'pHCLE NEEDS A PA STAlE INSPECTION J-~ 70' z.. '1 ~~ t1 '/6' 'Xf $J -f5bJSi3S C *OONIZ02 OIL & FILlER CHANGE CUSTOMER REQUESTS OIL & FILTER CHANGE 2 3 C 4SNIZOS f. t FRONT IfJEEL ALlGNltEN =~ _m '-'lli~8 ''?;70 ;). PAGE 1 OF 1 406190 SERVICE HAAD copy 03/27/99 : CONT"'~'::7"'O , SALVAGE i EXPIRAi'ONOATE 11111/01 DVlSOR NO 1193 I ACCEPT THE ESTIMATE AND AUTHORIZE REPAIRS ESTIMATE ORIGINAL YOU HAVE THE RIGHT TO AN ESn. ESTIMATE MATE IF THE EXPECTED COST OF REPAIRS OR SERVICES WILL BE ~~:L~~R~~~E~VE DOLLAR$. $ WRITTEN ESTIMATE ORAL ESTIMATE I DO NOT REQUEST AN ESTIMATE In~eevenllt>.atl'ou,lheCtJSlomer.aul~.o- nZIr,;ommenc6menlbuldonOlaulhonze ~~,r~:'i~~'9p~~r~r~~b~.~:~S~ $ sembly o~ partially completed work. Such cnarge WlII be dirllC'lly relaled 10 the actual amount 01 labor or parts iOVQlvedin the inspoctioo. repair or serllice. A....Y WARRANTIES ON THE ITEMI IT;:\IS SOLO HEREBY ARE THOSE MADE BY THE MANUFACTURER. THE SE" BRENNER FAMILY OF DEALERS HEREBY EXPRESSLY DISCLAIMS WARRANTIES EITHER EXPRESS IMPLIED, INCLUDING ANY IMPLIED V FlANTY OF MERCHANTABILITY OR NESS FOR A PARTICULAR PURP( AND BRENNER FAMILY OF DEAl SHIPS NEITHER ASSUMES "lOR THOAIZES ANY OTHER PERSON ASSUME FOR IT ANY LIABILITY IN C NECTlON WITH THE SALE OF 1 ITEM/ITEMS, ALL PARTS ARE NEW OR FACTORY REBUILT UNLESS SPECIFIED OTHERwtSE RENTAL NUMBER , VEHICLE TO~'~~ 0 AlfTHORIZED ADDITIONS ":'OTAl SHU, 'lE REQUiRED ;: YES CUSTOMER'S ACCEPT A.NCE INlTW.-E"'e OATE_ I TIME_ av iiJATE_1 iTIME_ i BY REPLACED ;:::J,RTS WIl.l. BE RETURNED UNLESS SPECIFIED OTHERWISE _ DISCARD ~....... .--'.-... o ~ ~ o ::J: OO~ CERTIFICATE OF SERVICI~ I hereby certify that on this date a true and correct copy of the foregoing document was served by hand delivery upon the following: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pa 17101 McNEES WALLACE & NURICK LLC By ~- Lawrence R. Wieder 1.0. No. 16707 100 Pine StrElet P.O. Box 1166 Harrisburg, p,c.. 17108-1166 (717) 232-8000 Attorneys for EJB Motors, Inc. tla Brenner Nissen .... Dated: July /3 ,2005 n C:o_ , ,...., C::l C'"J CJ"f ~:..~ p -- , -~ -< w o -n -\ ::r, --0 C11;::- ,- ~1 C'? i.-':-) -., , , ':..,~ ( ) (,,)1 ;\ .'...j r:.? ~.:l o , ",,~t!lJ~d,F::'" ';\""';;:i:;"!:;';': ;:-';'" 'j,;,~~ . GIL S. PAK and AMY 1. PAK, Husband and Wife, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs CIVIL ACTION .. LAW v, NO. 02-123 CIVIL TERM Em MOTORS, INC., tJa BRENNER NISSAN, Defendants JURY TRIAL DEMANDED PLAINTIFFS' MOTION IN LIJMINE 1. At Pre-Trial Conference, the parties were directed to exchange exhibits by July 8, 2005, and to file any motions in limine to exclude parties' proposed ,evidence by July 13,2005, 2. The parties have made the exchange; Defendant's packet of proposed exhibits contains two possibly three items, that Plaintiffs believe to be inadmissible. 3. Specifically, those documents that Plaintiffs believe to be inadmissible (copies attached hereto) are: I.) the vehicle worksheet, 2.) the credit applic:ation submitted to Nissan Motor Acceptance Corporation and 3.) the letter dated March 11, 2002 from Defendant's counsel to the undersigned. 4, With respect to the credit application, that information is simply irrelevant. It contains personal financial information about the Plaintiffs. Apart from that, Plaintiffs obtained financing for the automobile that is the subject of this information, so the matters that they placed on their application are irrelevant. 5. Pennsylvania Rule of Evidence 402 provides, in pertinent part: "evidence that is not relevant is not admissible," 6. The Pennsylvania Supreme Court has defined relevant l:vidence as: "evidence that makes a fact at issue more probable, or less probable." Martin v. Sobloteny, 502 Pa. 418,466 A.2d 1022 (1983). 7. The Paks' ability to finance the transaction is simply not a fact at issue, and the application should therefore be inadmissible. 8. With respectto the "vehicle worksheet" and the March] I, 2002 letter, both (particularly the letter) constitute offers in compromise (it appears that the worksheet is being offered to show the alleged reasonableness of the sales price of the vehicle). 9. Pennsylvania Rule of Evidence 408 provides, in pertim:nt part: "evidence of (I) furnishing or offering or promising to furnish or (2) acceptin, or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible." 10. If the undersigned reads the Defendant's Pre-Trial Memorandum correctly, the Defendant apparently seeks to introduce the March 11, 2002 letter to show some sort of bad faith claim against Mr. and Ms. Pak. That is essentially the Defendant, stating in another fashion, that the Defendant seeks to prove lack of liability on its part with the March II, 2002 letter, and the letter would therefore be inadmissible. See generally Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545,449 A.2d 1366 (1982) (valid statements of law as to offer of compromise, but "conduct" portion of rule abrogated by P A Rule of Evidence 408). II. Indeed, discovery has revealed that at some point, the Dt:fendant either knew or learned that the vehicle that is the subject of this action did in fact have a salvaged title at one time, because the Defendant's own service work orders contain that designation, and deposition testimony revealed 2 that only personnel of the Defendant could have entered that designation on the service records. 12. Under these circumstances, an offer to compromise (particularly when one considers that the salesman represented to Plaintiffs that the car was a "dealer demonstrator" in New York, and when the documentation that Plaintiffs have been able to obtain from New York State shows that State Farm Insurance Company was listed as owner on the title at one time) all constitute jury questions as to the extent of misrepresentation by Defendant's agents, why the Defendant's own documents would designate the vehicle as "salvage" and when Defendant learned of the fact of salvage. 13. Under these circumstances, an offer to compromise in an attempt to absolve oneself of liability, as the Defendant is doing here, simply is not admissible. 14. Accordingly, for the reasons stated above, Plaintiffs respectfully request that the Court exclude from evidence: I.) the financing application that the Plaintiffs completed; 2.) the "vehicle worksheet" and 3.) the March 11,2002 letter from Defendant's counsel to the undersigned. WHEREFORE, Plaintiffs request this Honorable COUlt to exclude the items of evidence offered as described in the last paragraph of this motion, and to provide any other relief the Court deems appropriate. ~T Attorney for lainti s 407 North Fr nt St., Harrisburg, P (717) 238-3686 Supreme Court LD. # 53729 3 s....; Safespersoll Date Home Phone Bus. Phone Purchaser Address VEHICLE WORKSHEIET fa t SM;r~ '3 ).'/ -q'f ern - r;g"} ,Of - {,l/ St fril . .1 Anv fa K , ( 1601 L.e fe-/' lVOr- K fA STOCK #}.'). 9:J I U YEAR q g G-LG MODEL SAFETY AUOIO {'"i'--" ....;... Dl VERY DATE ORDERING OAT , Cury )/.r((! pA 7 c./ /I NEW_ USED ~V _ MAKE I5S r0a )(: /h.li SELLIN PRICE TRADE (APPROX. PAYOFF) DIFFERENCE ENGINE / TRANSMISSION WHEELS / TIRES 237 ()/JJ ()~ rrz'L) J{j) COLOR / TRIM Custcimf'r S/gnaturo Form RSA YO-' ~ Ron $mallcomb Associates. Copyrighled 199J.l992.1993-1994 "II Ai!ilt'll$ Reserved COMFORT/C' APPEARANCB DOWN PAY,ENT wf~sCJp MONTHLY PAYMEM .1f '. Of'1116fiihfp Ap (Internal Use On ~ - - . - - Credit Application . ~'1 ~~t!-- 7 ~'0- .7~ I NAN C I N G e ~ . , mJ- NISSAN MOTOR ACC_PTANCE CORPORATION -.... . ~._,.~ .. . . ~ tCr!~tL_-.PJ))fi~ R A/.fE ffi;:ALER NUMBER \SE USE BLACK INK .' ,." IVlDUAL APPLICATION ~NT APPLICATION (MARRIED MAY APPLY AS AN INDIVIDUAL) JOINT APPLICANT RELATIONSHIP ,'C<Acee... o Sit FULL OJR NAME J APT. YWl. MOS. HOME PHONE CITY I HOW LONG? PREVIOUS YWl. MOS. D.L.' STATE CITY MOS. MOS. STATE wI.,. J\\'NIBUYING o LIVE WITH RELATIVE MONTHLY PAYMENT $ 9'H vy- MORTGAGE AMOUNT $ CHECKING ACCT, DOWN/BUYING 0 LIVE WITH R&LATIVE o RENT/LEASE 0 OTHER MORTGAGE CO OR LANDLORD SAVINGS ACCT_ BANK NAME MONTHLY PAYMENT $ MOR1GAGE AMOUNT $ CHECKING ACCTf :EN1'ILEASE 0 OTHER A.GE CO OR LANDLORD kt fMfE 'rr.>-I- lAME /e BRANCH Un ,Qf\ BRANCH /, \ Bl\NK NAME SAVINGS ACCT' l"ER NAME EMPJ.OYER NAME MOS. MOS. I lNrfITLE Mr.-/- SUPf'OllT SEPARATE M,fJH'TENAHCE INCOME NEEO NOT ~! M~ 00 00i W1gJ, 10 w..~ IT cmlSlOEMO ..s '" BASIS FOR INCOME SOURCE US EMPLOYER OR SCHOOL HOW LONG? Yr-U ~SlTlONfTl E t'th<;.. Al,.\W)K'l' t"\\.O S\lPPOR1 OR EI~AAAre MAIN'TENANCE INCOME NEEO NOT ~~p~~\~s ~~~ DO NOT WlSft TO HAVE IT COHSIOEREO AS A BASIS FOR OTHER INCO~E SOURCE PREVIOUS EMPLOYER OR SCHOOL HOW LONG? MOS. YWl. MOS :I:::h'ltot:l.. l "R^mN~? I BALAN!;!': 1 AUTO CREDIT REFEltENCE (NC '1 l'Mu,nr"'~~ I,,,,...~ RF:D1T REFERENCE (AJC " A ly',4I McNees Wallace & NurickLLc attorneys at law LAWRENCE R. WIEDER DIRECT DIAL: (717) 237-5229 E-MAIL ADDRESS: LWIEDER@MWN,GOM March 11, 2002 Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pa 17101 VIA FAX WITH CONFIRMA nON VIA FIRST CLASS MAIL RE: Pak v. Brenner Nissan C.P. Cumberland No. 02-123 Civil Dear Tony: Brenner Nissan is willing to refund to the Paks, the $23,000 that they paid for their 1998 Nissan. This offer is conditioned upon the following: 1. The vehicle must be in generally the same condition as when purchased from Brenner Nissan, but for mileage and reasonable wear and tear. You can understand why Brenner Nissan can not accept the return of the vehicle if it has been materially damaged. In this regard, please have them contact Tom Couch at Brenner Nissan to arrange a mutually convenient time for him to look at the vehicle. He can be reached at 697-8400. I do not need to be involved in that process. 2. At the time that a check is issued to your clients, they will need to sign the necessary title work to transfer the vehicle back to Brenner Nissan. 3. At the time that a check is issued to your clients, you will need to provide a signed praecipe withdrawing the civil action with prejudice. I may also request that your clients sign a release. This will depend upon my further rE!view of the pleadings. This offer is a first and final offer, made without prejudice. I will await your response. Very truly yours, McNEES WALLACE & NURICK LLC r- ,_______ / /. n~/\ ,/'-fl,u,v{/(JV,~ \ (By Vi \; Lawrence R. Wieder LRW/jlh c: Mr. Thomas Couch John McGreevy, CPA PO Box 1166 '100 PINE STREET' HARRISBURG, PA 17108-1166' TEL' 717.23:~.8000' FAX: 717.237.5300 . WWW.MWNCOM COLUMBUS, OH ~ HAZLETON, PA . WASHINGTON, DC . 0 '" 0 = ~.~~ c~ .." eft .-< <- :r: ~ c;: '" r-'. m :;:JrJ U1 c~(l) --,", -n ~c:~ c; r:Y ji-n -.j ?- .- ~JJ Ul .< Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLI\ND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GIL S. PAK and AMY L. PAK, Husband and Wife, v. EJB MOTORS, INC., Ua BRENNER NISSAN, Defendants NO. 02-123 Civil Term JURY TRIAL DEMANDED RESPONSE OF THE DEFENDANT TO PLAINTIFFS' MOTION IN LIMINE 1-7. Defendant agrees that the "vehicle worksheet" does not appear relevant. Defendant included the document in its exchange, in case an issue was raised concerning it. Defendant does not intend to offer the document, unless relevant to an issue raised by Plaintiffs in their case. 8. Defendant assumes that Plaintiffs are referring to the "credit application" listed in 113 and not the "vehicle worksheet" as stated in 118. Contrary to the assertion of Plaintiffs, the credit application is not an offer of compromise. Regardless, as with the vehicle worksheet, Defendant included the document in its exchange, in case an issue was raised concerning it. Defendant does not intend to offer the document, unless relevant to an issue raised by Plaintiffs in their case. 9-14. The correspondence of March 11, 2002 is admissible and is not an offer of compromise. (A copy of the document is attached as Exhibit "A"). The correspondence was written in response to the Complaint filed by Plaintiffs, which asserted their right to rescind the sale. Prior to filing its Answer and New Matter, Defendant responded by letter, expressing its acquiescence to Plaintiffs demand. The correspondence agreed to Plaintiff's demand for a refund of the purchase price, in exchange for thEl return of the vehicle. Thereafter, Plaintiffs responded, rejecting Defendant's acceptance of Plaintiffs' demand. Defendant filed its Answer and in New Matter, asserted that it had agreed to accept the return of the vehicle and that Plaintiffs refused. (New Matter ~ 49). If accepted as true, the Court could conclude that Plaintiffs waived their claim for rescission. The correspondence is admissible because it is the agreement to meet Plaintiffs' demand. Plaintiffs filed their action asserting their right to re,scind the agreement, and acknowledging that Defendant was entitled to "a reasonablEl adjustment for subsequent mileage." (Amended Complaint ~ 18). Defendant acquiesced to the demand by agreeing to refund the purchase price, without demanding an adjustment for mileage. Despite this acquiescence to Plaintiffs' demand, Plaintiffs refused to return the vehicle and continued to litigate the malter. The finder of fact is entitled to know this in weighing the viability of Plaintiffs' claim for rescission. Further, as previously briefed by Defendant in its Motion in Limine, the Court, not the jury, determines whether Plaintiffs are entitled to rescission. As such, Plaintiffs are not prejudiced by the admission of the correspondence. The fact was pled by the Defendant in its New Malter and read by the Court. Assuming arguendo that Defendant's agreement to rescind the contract is determined to be an offer of compromise, the evidence is nonetheless admissible. Rule 408 of the Pennsylvania Rules of Evidence controls this iSSUEI and provides: Rule 408. Compromise and Offers to Complromise Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amoLlnt, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require 2 exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. PaRE. 408. Pa.R.E. 408 is identical to F.R.E. 408. There are no apparent cases interpreting the current version of Pa.R.E. 408; therefore, we turn to the cases interpreting F.R.E. 408. Rule 408 does not preclude evidence relating to negotiation settlements so long as this evidence is not offered to prove liability or to prove the invalidity of a claim or its amount, which is a required element for exclusion under Pa.R.E. 408. Cook Associates, Inc. Y. PCS Sales (USA) Inc., 271 F. Supp. 2d 1343,1348 (D. Utah 2003); Roush Y. New England Mutual Life, 166 F.Supp.2d 187,202, n. 10 (M.D. Pa. 2001), rey'd. on other grounds, 311 F.3d 581 (3rd Cir. 2002). (Waiver is an affirmative defense and therefore, not excluded). The goal of Rule 408 is to promote discussions of compromise without the fear that something a party reveals in those discussions will be used against them in trial. Weiner v. Farm Credit Bank of St. Louis, 759 F. Supp. 510, 521 (ED. Ark. 1991). Here, Defendant is not offering evidence obtained from Plaintiffs. Rather, it is asserting its own statement in order to prove Plaintiff's waiver. Further, the statement is not prejudicial to the Plaintiff, because Plaintiff did not make it. The Defendant is offering this evidence to prove its own actions in this matter; specifically, that it agreed to rescind the contract; what the terms of that rescission were; that Plaintiffs were aware that Defendant was agreeable to rescinding the contract; and that Plaintiffs refused Defendant's agreement to rescind the contract, which in turn, would have made them whole. 3 This evidence also goes to the issue of whether Plaintiffs properly mitigated their alleged damages, another instance in which the Federal Courts have ruled that offers of compromise are admissible. Urico v. Parnell Oil Co., 708 F.2d 852, 854 (1st Cir. 1983). Finally, it would be patently unfair to allow the Plaintiff to litigate this matter through trial without the Court being aware of the Defendant's agreement to end the litigation by agreeing to the demands in the Complaint. These facts are at the heart of this action. Respectfully submitted, McNEES WALLACE & NURICK LLC By ~ Lawrence R. Wieder, Esquire 1.0. No. 16707 100' Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: 717237-5229 Attorneys for Defendant EJB Motors, Inc., Va Brenner Nissan Dated: July /A005 4 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first class mail upon the following: Anthony T. McBeth, Esquire 407 North Front Street, First Floor Harrisburg, Pa 17101 McNEES WALLt>,CE & NURICK LLC By L--z--~ Lawrence R. Wieder 1.0. No. 16707 100 Pine Street P.O. Box '1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for EJB Motors, Inc. Va Brenner Nissan Dated: July IS'-, 2005 0 ....., f.; = 0 = c." " '- ~:n c: ,.- r'~ -OlD -'9 = ._'.J Cl(" .."::.j.-) -n ;~~ ~~ ):-~ ::.: C- ~=-;rtl _C:;' w =<! ~'-1 l'0 ;-> ~1J en -:c ." ""~"""!I'!""",,,~,",_, ,",6~:'"".::,!!" ," ' GIL S. PAK and AMY L. PAK, Husband and Wife, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION .. LAW v. NO. 02-123 CNIL TERM EJB MOTORS, INC., t/a BRENNER NISSAN, Defendants JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION IN I JMlNE The Defendant has argued against virtually all evidence that Mr. and Ms. Pak would seek to introduce. The Defendant's arguments are, to say the least, of varying degrees of merit. We will address each of the Defendant's contentions in the same order in which they appear. The New York State History of Title The original is printed on paper with the seal ofthe State: of New York inlaid. The original has a raised seal and is attested to by the New York State Commissioner of the Department of Motor Vehicles. Therefore, the document meets all of the applicable requirements. In Wa/ick v. PENN DOT, 155 Pa. Commw. 1,625 A2d 1276 (1993), Commonwealth Court held that a certified driving record from the State of New Jersey was admissible, even though the record did not specifically say that the person attesting had possession of tht: record. In making this ruling, Commonwealth Court specifically distinguished the case on which the Defendant is relying here, Rhoads v. Commonwealth,_Pa. Comm. _, 620 A.2d659 (1991). Further, for a ruling similar to Walick, see Commonwealth v. Smith, 386 Pa. Super. 626,563 A.2d 905 (1989), ajJ'd., 528 Pa. 380, 598 A2d 208 (1991) (court martial records admissible when certified and containing the seal of the United States). Clearly, in the present case, the New York State . History of Title is admissible. The CARFAX Report and the InCormation Mr. Pal. Learned in a Phone Call to the New York State Department oCMotor Vehicles As with the Federal Rules of Evidence, Pennsylvania Rule of Evidence 801 defines hearsay as: "[an out-of-court] statement offered for the truth of the matter asserted therein." But, statements - and documents - that would be hearsay if offered to prove the truth of their content, can be admitted for other purposes. Those other purposes take the statements completely out of the hearsay realm, and the statements are not hearsay at all. Such is the case here. It is critical to remember that Mr. Pak started making these inquiries only after he saw an internal Brenner Nissan document (subsequently provided in discovery) that noted Mr. Pak's car as "salvage." Therefore, the CARP AX report and the phone can put Mr. Pak's actions in context (particularly relevant if defense counsel's March 11,2002 settlement offer is placed in evidence), they show the effect of his document observation on Mr. Pak and they rebut the statements about the history of the car that the Brenner salesman made to Mr. and Ms. Pak (about which Mr. Pak win certainly testifY) on the day they bought the car. C/. Rinehimer v. Cemcolift, Inc., 292 F.3d 375 (3d Cir. 2002) (statements offered not for their truth, but to place parties' actions in context and explain subsequent conduct). Clearly, the CARP AX report and the contents of Mr. Pak's phone call are admissible ill the present case. Mr. Pak's Statements Regarding Valuation ofthe Vel'1icle We can devote a lot less paper to this than did the Defendant. The Defendant is right. Mr. Pak has no expertise in auto evaluation. Therefore, we do not plan to delve into that area with him. 2 Interest Expense Incurred by Mr. and Ms. Pak If the undersigned understands this convoluted argwnent correctly, it is this: because of some older cases decided in a business-to-business contexe, the Paks' were permitted to omit interest payments from the inception, and evidence of those interest payments is not admissible. Even if that proposition is correct in the most technical sense, it ignores reality. Mr. and Ms. Pak are not wealthy. They cannot pay cash for a new or nearly new car. If Mr. and Ms. Pak had unilaterally decided to withhold the interest portion of their payments, the car that is the subject of this action would have been repossessed. Then, because of the adverse effects of the repossession on the Paks' credit, it would have been difficult if not impossible for them to obtain financing for another vehicle. The interest expense that the Paks have incurred is a highly relevant fact, and testimony/evidence on that issue should be admissible. Further, let us note here that the evidence will show that Mr. and Ms. Pak declined the March 11,2002 settlement offer because it did not make them entirely whole. Brenner Nissan had an opportunity for at least four months before that offer to make the same offer. They did not do so, the Paks had to incur attorney fees and costs, and the Defendant declined to reimburse those. Therefore, we contend, Brenner Nissan refused rescission by agreement. Under those 'Ironically, the case that the Defendant first cites in this section of its brief belies one of its latter contentions in the same section. In Casey v. Philadelphia Auto Sales Co., 428 Pa. 155, 236 A.2d 800 (1968), the court states that the Plaintiff had a resc:ission remedy at law, precisely an option the Paks' are employing here. Therefore, the Defendant's arguments about bifurcation and other esoteric admissibility argwnents on interest expense bl:come irrelevant. Indeed, Pennsylvania law permits a plaintiff to choose whatever array of remedies they wish, as long as those remedies are not inconsistent with one another. See Cunningham v. Joseph Horne Co.. 406Pa.I,176A2d648(1961). 3 circumstances, a party is permitted to sue both for the difference in value of the vehicle and for legal rescission. See Price v. Cresko, 55 Luzerne Law Journal 189 (1965) (citing Heastings v. McGee, 62 Pa. 384 (1830)). Again, the interest expense evide:nce is or should be admissible. Brenner Nisllan'll Own Internal Service Records The Defendant contends that its own internal service rlecords designating the Paks' car as "salvage" are irrelevant. Not surprisingly, the Defendant cites no authority to support that creative contention. The service records show that Brenner Nissan learned at some time that the car was salvaged.2 No Brenner agent admits that they knew that fact from the beginning. But, the lack of such an admission in this type of case is not surprising. We have no way to refute the lack of such an admission, and if there were such an admission, we would not be here. As noted in our Motion in Limine, the Pennsylvania Supreme Court has defined relevant evidence as evidence that makes a fact in contention more probable or less probable. See Martin v. Soblotney, 502 Pa. 418,466 A.2d 1022 (1983). Certainly, the service records permit the inference that Brenner Nissan knew at some point in time, perhaps from the very beginning, that the car was salvaged. Further, the service records refute the salesman's "pitch" that the car had low milage because it came directly from a New York dealer and was a demonstrator. Additionally, the records show the context for Mr. Pak's actions, including obtaining the "Mr. and Ms. Pak bought the car in March, 1999. The "salvage" notation first appears in a February 2001 service record, very close to the time that the initial warranty on the vehicle expired. Mr. Pak will testify that he first saw the notation on a July, 2001 service record when he had to go to the sales area of Brenner Nissan to pay for a repair, after the service area had closed for the day. It was Mr. Pak's observation on the July, 2001 record that prompted his CARP AX search and his phone call to the New York State Dep;ilrtment of Motor Vehicles. He will testify that no agent of Brenner Nissan ever told him that Brenner had learned of the "salvage" designation. 4 CARFAX report and his phone call to the New York DMV. We submit that this is all relevant in any scenario. But, it becomes even more relevant if defense counsel's March 11,2002 settlement offer come into evidence. In sum, all evidence (except for Mr. Pak's statements or opinions on valuation of the car) that the Defendant seeks to exclude is in fact admissible. The Defendant's Motion in Limine should be decided accordingly. CONCLUSION For the reasons stated above, the Defendant's Motion in Limine should be denied except with respect to Mr. Pak's statements regarding valuation of the automobile. Dated: July 17,2005 Respectfully submitted, ony T. McBe , Attorney for Plain 407 North Front S t, 1" Floor Harrisburg, P A 1710 I (717) 238-3686 Supreme Court LD. 53729 5 - 0 ,..., 0 = c = -n .-.".. eft t.- ...... :::r.: C': rn~ r-~' .'-:;:10 cP -"'y ~. "~:'JS~~ " ("') _:)1., -"'-, <;? ~~{;: f"..) :~ CO .-<- - GIL S. PAK and AMY L. PAK, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. EJB MOTORS, INC., t/a BRENNER NISSAN, Defendant NO. 02-123 CIVIL TERM ORDER OF COURT AND NOW, this 18th day of July, 2005, the Defendant's motion in limine is granted in part and denied in part. It is granted insofar as the Car fax vehicle history report shall not be admitted, nor shall Mr. Pak be permitted to testify regarding the value of the vehicle or typical business practices in the auto industry. We reserve ruling on the admissibility of the interest payments. In all other respects, the Defendant's motion in limine is denied. Edward ~thOny T. McBeth, Esquire For the Plaintiffs ~wrence R. Wieder, Esquire ~ For the Defendant srs AJf\j;-,n," '.""" ';',1,.) 90 ::1 !1J 22 SQOZ 'Ii.'.." (;. n . '(' ..' ::',ll ~o 1.I..J<lJ..\....'I.('~j' C:.".....jeJ ....;1 .:J 3~);+J(>CEllI.:I '"~, " ...,.,. GIL S. PAK and AMY L. PAK, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. EJB MOTORS, INC., t/a BRENNER NISSAN, Defendant NO. 02'-123 CIVIL TERM ORDER OF COURT AND NOW, this 19th day of July, 2005, Plaintiffs' request for recision is granted. They are directed to turn the car over to Defendant within 10 days of today's date, and Defendant is directed to give them a check for $15,198.40 in return for the vehicle. Edward E. Guido, J. ~nthony T. McBeth, Esquire For the Plaintiffs ~wrence R. Wieder, Esquire For the Defendants .1 I srs ,~,' ~ \,--; '" , ',k} iJi'iC(! LO "1 I" or' 'F\i' rV7 ~) ;c;(\ t,(. 1_:' 'JuU.... A'tNiON'J,\LCJdJ ';\4l jO 38t+!Crn:nH -' .' " ..' ur GIL S. PAK and AMY L. PAK, Husband and Wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-123 CIVIL TERM v. EJB MOTORS, INC., tla BRENNER NISSAN, Defendant JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: Please mark the captioned action as discontinued with prejudice. f;~1~ \ c r'_,~ C) ~:=J --\'1 ,:..;'"1 \".) (=-~\