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HomeMy WebLinkAbout11-5247R. Mark Armbrust, Esquire Armbrust & Associates, P.C. 1515 Market Street Suite 715 Philadelphia, PA 19102 (215) 609-3250 ` 7 f1THONOTAV ffi i t l 21 AEI I1: 20 AttO NSYLYR USA, Carlisa Miles V. Mercedes-Benz USA, LLC Court of Common Pleas : Cumberland County Plaintiff, Civil Action Docket No. 11-5247 Defendant. Jury Trial Demanded ANSWER AND NEW MATTER OF MERCEDES-BENZ USA, LLC 1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and the same is therefore denied. 2. Denied as stated. It is admitted only that Mercedes-Benz USA, LLC (hereinafter "MBUSA"), formerly known as Mercedes-Benz of North America, Inc., is a limited liability company qualified to do business in the Commonwealth of Pennsylvania and that it is organized under the Laws of the State of Delaware. Its principal place of business is One Mercedes Drive, Montvale, New Jersey. BACKGROUND 3. Denied as stated. MBUSA did not manufacture the vehicle referenced in this paragraph. However, MBUSA does distribute Mercedes-Benz vehicles in the United States. MBUSA would have provided an express limited written warranty with the vehicle, which speaks for itself. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in this paragraph. 4-5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment, and the same is therefore denied. 6-8. Denied as stated. It is admitted that MBUSA provides an express limited written warranty with the vehicle which was for 4 years or 50,000 miles. That limited warranty speaks for itself. It is denied that there are any other guarantees, affirmations or undertakings. 9. Denied. All repairs were effective. It is denied that the vehicle exhibits any defects, malfunctions, or non-conformities. 10. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments and the same are therefore denied. COUNTI LEMON LAW 11. No response is required. 12. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments and the same are therefore denied. 13-14. Admitted. 15. Denied. It is denied there are any defects or conditions in the vehicle which substantially impair its use, value or safety. 16. Denied. It is denied there are any non-conformities or that there was any violation of any warranty issued by defendant. 17-18. Said act speaks for itself and therefore no response is required. 19. Denied. It is denied that there is any non-conformities which remain uncorrected. 20. Denied. It is denied said vehicle has been out of service for more than 20 days. 21. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments and the same are therefore denied. 22. Denied. Defendant has repaired all non-conformities. 23-25. Denied. All notifications were provided. 26. Denied. It is denied that defendant has caused plaintiff to suffer any damages or losses. 27. Denied. It is denied that defendant has caused plaintiff to suffer any damages or losses. WHEREFORE, defendant demands judgment in its favor. COUNT II MAGNUSON-MOSS (FTC) WARRANTY IMPROVEMENT ACT 28. Denied. Defendant has no such procedures nor is it required to do so. . 29. Denied. Said averment states a conclusion of law to which no response is required. 30. No response required 31. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and the same is therefore denied. 32. Denied as stated. It is admitted that MBUSA distributes automobiles to its authorized dealers. It is further admitted that MBUSA provided an express limited written warranty. It is denied that MBUSA is a service contractor. 33. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and the same is therefore denied. 34. Admitted. 35. Denied. Said averment states a conclusion of law to which no response is required. Said act speaks for itself and therefore no response is required. 36. Denied. All repairs were effective. 37. Said act speaks for itself and therefore no response is required. 38. Denied. 39. Denied. Plaintiff is not entitled to any damages. 40. Denied. Defendant has not breached any statutory obligations. It is denied that there is any contract between plaintiff or defendant. It is denied that there is any breach or violation of any express written warranty. The vehicle is fit for its intended purpose. Further, it is denied that defendant has violated any Act, law or statute. 41. Denied. 42-43. Denied. Defendant has no such program. 44. Denied. Plaintiff is not entitled to any damages. WHEREFORE, defendant respectfully demands judgment in its favor and against plaintiff. COUNT III PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 45. No response is required. 46. Admitted. 47. Admitted. 48-50. Said act speaks for itself and therefore no response is required. 51. Denied. Defendant has not violated any law. 52. Said act speaks for itself and therefore no response is required. 53. Denied. It is denied that MBUSA has engaged in any unfair or deceptive acts or practices. 54. Said act speaks for itself and therefore no response is required. WHEREFORE, defendant respectfully demands judgment in its favor and against plaintiff. NEW MATTER 55. Plaintiffs complaint fails to state a cause of action against MBUSA upon which relief can be granted. 56. Plaintiffs claims are barred by the statute of limitations. 57. Plaintiff failed to provide timely notice of any alleged breach of warranty. 58. This court lacks jurisdiction over plaintiffs claims. 59. Plaintiffs claims are barred and/or limited by the applicable disclaimer of warranty and limitations of damage provisions. 60. Plaintiff s claims are barred and/or limited by his negligent, misuse, abuse, modifications, and/or alteration of the vehicle, which is the subject of this litigation. 61. Plaintiffs claims are barred and/or limited by his failure to mitigate damages. 62. If the plaintiff sustained any alleged injuries, damages, or losses, those injuries, damages or losses were caused by persons and/or entities over whom answering defendant had no control and for whom answering defendant is not responsible. 63. Plaintiffs alleged claims of nonconformity do not substantially impair the use, value or safety of the vehicle. 64. Plaintiff does not use the vehicle primarily for personal, family or household purposes. 65. Plaintiff s claims are barred by accord ano satisfaction. Dated: July 19, 2011 V (/ / 1 / R. Mar , Esquire Attorney for Pendant, Mercedes-Benz USA, LLC VERIFICATION I, R. Mark Armbrust, do hereby state that I am an attorney for Defendant Mercedes-Benz USA, LLC, the party filing the attached Answer and New Matter. The factual averments, if any, contained in the aforementioned answer are true and correct to the best of my knowledge information and belief, and that I make the averments subject to penalties of 18 Pa. C.S. §4904 relating to unsworn falsifications to authorities. This attorney verification has been made because the party-in-interest is outside the jurisdiction of the court and cannot be obtained within the time allowed for filing the pleading. Dated: July 19, 2011 CERTIFICATE OF SERVICE I, R. Mark Armbrust, certify that a true and correct copy of the foregoing Answer and New Matter of Defendant Mercedes-Benz USA, LLC was served on July 19, 2011, addressed as follows: Robert A. Rapkin, Esquire Kimmel & Silverman, P.C. 30 East Butler Pike Ambler, PA 19902/ Dated: July 19, 2011 R. M brut isquire Attorney or Defendant, Mercedes-Benz USA, LLC t' Robert A. Rapkin, Esquire Identification No. 61628 KIMMEL & SILVERMAN, P.C. 30 East Butler Pike Ambler, PA 19002 (215) 540-8888 ATTORNEYSFOR PLAINTIFF CARLISA MILES V. COURT OF COMMON PLEAS Cumberland County M R - ' E CEDES-BENZ USA, LLC NO. 11-5247 = - MCD C.. j7I r r cn PLAINTIFF'S ANSWER TO NEW MATTER OF ?x rv "' t -V C) DEFENDANT, MERCEDES-BENZ USA, LLC n? ?...,., 2!© ? D? N opt 55. Denied. The allegations of this paragraph constitute a conclusion of<facRnd 'r law to which no responsive pleading is required. However and to the extent there are any allegations contained herein., such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 56. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 57. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive: pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 58. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is . demanded at the time of trial. 59. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 60. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 61. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein., such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 62. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive; pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial„ 63. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 64. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. 65. Denied. The allegations of this paragraph constitute a conclusion of fact and/or law to which no responsive pleading is required. However and to the extent there are any allegations contained herein, such allegations are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Plaintiff respectfully demands judgment agailist Defe/dant in an amount equal to the contract price of the subject vehicle, plus all collatera?charges and attorney fees. KI F,t & , StLVERMAN, P.C. By: - R ert A. apkin, Esquire Id ntificati n No. 61628 A mey fo Plaintiff 30 East Bud r Pike Ambler, Pe sylvania 19002 (215) 540-88 8 VERIFICATION Robert A. Rapkin, Esquire, states that he/she is the attorney for the Plaintiff herein; that he/she is acquainted with the facts set forth in the foregoing Answer to New Matter; and that same are true to the best of his/her knowledge, information and belief. ThisXtaten}knt is being made subject to the penalties of 18 Pa. C.S. Section 4904 relating to qa?sworiy/falsification to authorities. By Esquire 61628 Atto ey for laintiff 30 fast Butle Pike Ambler, Penn ylvania 19002 (215) 540-88 CERTIFICATE OF SERVICE I, Robert A. Rapkin, Esquire, counsel for Plaintiff, do hereby certify that I served all parties with true and correct copies of the foregoing Answer to New Matter, by placing same in the United States Mail, First Class, Postage Paid addressed as follows: R. Mark Armbrust, Esq. ARMBRUST & ASSOCIATES, P. 1515 Market Street, Suite 715 Philadelphia, PA 19102 SILVERMAN, P.C. obert ? Ra pkin, Esquire ti0 entifi n No. 61628 Attorne for Plaintiff 30 East utler Pike Ambler, ennsylvania 19002 (215) 54 -8888 Date: 21 st day of July, 2011 f7 fir- (1,1I AUC ? 7 PH 2: 18 ' 1MDERLAND COUNT' `; PENNSYLVANIA IN THE COLIZ 1 c)I? Z'I i?t 'it :? PLEAS OF CWVI13FR1,2ONI3t Carlisa Miles, Plaintiff, Vs. Mercedes-Benz USA, LLC, Defendant. (i f d -' DIVISION NO.: 1 -5247 PIO)OI, ()I, SF 1,+1c. on behal[of PlaintiIT- ('; ii,a Miles N:?I?,L OF RECORI> t?OR IIIIS PAR'IY: lkolt, ?rN A. Rapkin, Esquire ld.r;tificition No. 61624 I [i???R[!:L& SILVERMAN, P.C. t :ist Butler Pike 'A 19002 ?' i :>-;' J-8888 IN THE COURT OF COMMON 111.Ez6 OF CUMBERLAND COUNTY, PI,NNSYLN .A NlA Carlisa Miles, Plaintiff, V. Mercedes-Benz USA, LLC, Defendant. TO "THE PROTHONOTARY: CIVIs ij;VI'SION No.: 11-5247 PROOF OF SVItV1CE, Service of the complaint regarding th., ahm _, ,,<,)tionCd matter was made to Mercedes-Benz USA, LLC, I Mercedes Drive, P.O. Box >10 07645-0350, on 06/30/2012, via U.S. First Class Mail, Certified /Return Receipt representative ol'Defendant signed the return receipt on 07/06/201 1,a copy of whi.-1 ! _d. i "I ''• SIC.VERMAN. P.C. uhcrt .:pkin. Esquire ?lttorn?:v?Ior Plaintiff(s) 1(' I ?t?...,,tler Pike i?A '9002 IWn 4 M ReWIMd DdVWY 18 d"W- ¦ Prlnt your r wm and addraW an #0 rsverse so that we can We the 0d to you- Mach this card to the back of tfte ITOPpiece, or on the ftWd if SPN* p 1. Mile Addressed to: Mercedes-Benz USA, LLC 1 Mercedes Drive P.O. Box 350 Montvale, NJ 07645-0350 2. Article Number (Transfer from service label) Ps Form 3811, February 2004 X Wu . ?+ ) C. D B. R4cshed by ? IT D. is ddvwY ff YM wftr KIP("" WOW 13 0 insured Map 0 C.O.D. 4. Restricted DelNW OD*a Fee) 0 Yes 701x0 2780 0001 3448 5611 102596-o2-WI54o Domestic Return Receipt C ?? S? // Lc In the Court of Common Pleas of Cumberland Plaintiff _ ? e C`. Q L- c C County, Pennsylvania No. - ?Z`Y7 Defendant Civil Action - Law. Oath We do sole ea or affirm) that we will support, obey and defend the Constitution of the United States and th n o of this Commonwealth and that we will discharge the dutie office w' fidelity. Signature igna re-? ature #Ujt?etZ ?,Pl J .3?se? Name (Chairman) Name Name Law Firm 5'? c /0?/l1 Address 1F- gQ-,' .j ?kIJ/t4C_uT Law Firm Law Firm Address ID3S MJrrhA ?YJ. ?L' p2d? Address 121 City, Zip City, Zip Award AkCC?fAtr(V 14- 1M50 City, Zip We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) ji ltCtZ KG L9 'k A .Arbitrator, dissen/Insert name if applicable.) Date of Hearing: ,,t 4 z Date of Award: / Z (Chairman) Notice of Entry of Award Now, the ? 4 day of z ? , 20 /,;1 , at /Z %?f 4 M., the above award was entered upon the docket and notice thereof given by mail to the parties or their attorneys. Arbitrators' compensation to be paid upon appeal: $ --'Ile, I l avs,D ?_?u?U Prothonotary P?1?M5Y?-yANli?? 1. vel;.