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HomeMy WebLinkAbout12-5355 ~ _ _ Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite I06 Harrisburg, PA 17a 10 (717} 703-3600 jgoldbergcassbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANI~I DANIEL C. HILL and JENNIFER L. HILL, ' CIVIL TERM (LAW) ~ ~ Plaintiffs ~ a* c x ' n• KENNEDY RV & POWERSPORTS, a ` INC., and MANUFACTURERS & c~ TRADERS TRUST COMPANY, JURY TRIAL DEMANDED a Defendants NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THF, CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHII[~i TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT 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. OTHEiR RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOiJ DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSQCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 ~S(b 3 ~ 3 r~~~ 717-249-3166 S e~ f 4~f l ~ ,Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j goldbergC~ssbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA DANIEL C. HILL and JENNIFER L. HILL, CIVIL TERM (LAW) Plaintiffs v. NO. KENNEDY RV & POWERSPORTS, INC., and MANUFACTURERS & TRADERS TRUST COMPANY, JURY TRIAL DEMANDED Defendants COMPLAINT NOW COME PLAINTIFFS, Daniel C. Hill and Jennifer L. Hill, by and through their attorney, Joseph K. Goldberg, who sue Defendants for violations of the Unfair Trade Practices and Consumer Protection Law ("Consumer Protection Law"), 73 P.S. § 201-1, et seq., revocation of acceptance under the Pennsylvania Commercial Code ("UCC") 13 Pa. C.S. § 1101, et seq., rescission, fraud and negligent misrepresentation, as follows: PARTIES AND VENUE 1. Plaintiffs are Daniel C. Hill and Jennifer L. Hill, adult individuals who are husband and wife, who reside at 40 S. 39th Street, Camp Hill, Pennsylvania 17011. 2. Defendant Kennedy RV and Powersports, Inc., (hereafter "Defendant Kennedy") is a Pennsylvania for-profit corporation which conducts business in the ~ Commonwealth at 1394 Old York Road, Dillsburg, PA 17019. 3. Defendant Manufacturers & Traders Trust Company (hereafter "Defendant M & T Bank") is a banking institution licensed to conduct business at numerous locations in the Commonwealth of Pennsylvania, including at 3805 Trindle Road, Camp Hill, Cumberland County, PA 17011. 4. Defendant Kennedy is licensed by the State Board of Motor Vehicle Manufacturers, Dealers and Salespersons under Vehicle Dealer License Number VD028459. 5. Defendant Kennedy is licensed as an installment seller by the Pennsylvania Department of Banking under license number 18083. 6. Defendant M & T Bank is licensed as a sales finance company by the Pennsylvania Department of Banking under license numbers 2140 and 11640. 7. Defendant M & T Bank regularly conducts business in Cumberland County, thereby making this court the proper venue for this action pursuant to Pa. R.C.P. No. 2179(a)(2). FACTS AND BACKGROUND 8. In summer, 2011, Plaintiffs decided to purchase a recreational vehicle to use for vacations and other family purposes. Plaintiffs had never owned a recreational) vehicle and knew nothing about them. 9. Plaintiffs went to Defendant Kennedy to look at units. They were shown used, 2006 Thor Freedom Spirit travel trailer, which is non-motorized and needs to be towed by a vehicle. It is identified by Vehicle Identification Number 2 _ _ - 47CTDFN276F800068. 10. Defendant Kennedy's President, Mr. Ritter acted as salesperson. He discussed the Freedom Spirit with Plaintiffs, described it and encouraged them to purchase it. 11. During the sales presentation, Plaintiffs asked Mr. Ritter whether there were any issues with the camper of which they needed to be aware. Mr. Ritter responded that there were no such issues. 12. Defendant Kennedy had acquired the Freedom Spirit as a trade from customers Tom and Lori Shumberger. 13. At the time the Shumbergers traded the vehicle to Defendant Kennedy, it had severe water damage. 14. The Shumbergers told Defendant Kennedy's employees about the water' damage when they traded it to Defendant Kennedy. 15. Defendant Kennedy was fully aware of the condition of the Freedom Spirit when it offered it for sale to Plaintiffs, including that it had substantial water damage. 16. Defendant Kennedy intentionally failed to disclose the extensive water damage and presence of mold to Plaintiffs during its sales presentation or at any time prior to Plaintiffs' purchase of the unit. Instead, its salesperson stated that the unit was appropriate for them and their family's use of it for camping and vacations. 17. In reliance upon the information provided to them in the sales presentation by Defendant Kennedy, Plaintiffs purchased the Freedom Spirit on .August 8, 2011, for a total purchase price -including the costs of installation of a tow hitch on 3 T _ Plaintiffs' truck and a service contract - of $12,593.68. A copy of the invoice for the purchase is attached hereto as Exhibit A. 18. Had Plaintiffs been made aware of the water damage or presence of mold they would not have agreed to purchase the Freedom Spirit. 19. Defendant Kennedy provided installment financing for Plaintiffs' purchase of the Freedom Spirit, under the terms and conditions of a retail installment sale contract (hereafter "RISC"). A copy of the front side of the RISC is attached hereto as Exhibit B. Plaintiffs do not have a copy of the reverse. 20. Soon after the sale, Defendant Kennedy assigned the RISC to Defendant M & T Bank. 21. Pursuant to the terms of the RISC, Defendant M & T Bank is subject to all claims Plaintiffs have against Defendant Kennedy, up to the amounts paid by Plaintiffs. 22. Plaintiffs took possession of the Freedom Spirit on or about August 8, 2011. 23. Because it was late in the season, Plaintiffs decided not to use the unit until the following spring. They parked it in their driveway and in late September, 2011, with the help of a friend experienced with recreational vehicles, they winterized it. 24. When winterizing the vehicle, they became aware of small leaks at two slide outs. They made sure the inside was dry, purchased tarps and wheel covers, and covered the unit for the winter. 25. At the same time, Plaintiffs reserved sites for the vehicle for camping use in June and August, 2012. 4 r 26. In approximately mid-April, 2012, Plaintiffs uncovered the unit to begin preparing it for use. As they did that, they discovered a soft spot in the floor near a slide out. 27. Plaintiffs investigated the soft spot and discovered that a large area of insulation under the flooring was soaked, that wood flooring was soaked and that mold was growing in that area. They also discovered mold growing on the floor at another area under the linoleum flooring and that it had begun to growing up walls. 28. Plaintiffs were extremely concerned about the presence of mold, as their son has had cancer and they were concerned he was more susceptible to mold-related problems. 29. Plaintiffs contacted Defendant Kennedy, who instructed them to bring the Freedom Spirit to the dealership, which they did within a few days. 30. Plaintiff Jennifer Hill walked through the unit with Mr. Ritter, an owner of Defendant Kennedy, and showed him the areas with mold and water damage. 31. At that time, Plaintiff Jennifer Hilt requested Defendant Kennedy take bask the unit and asked about the possibility of replacing it with another. Mr. Ritter responded by saying, "Bleach does wonders." He also stated that "mold is just like asbestos -you cover it up and it is never heard from again." 32. Mr. Ritter agreed to keep the unit so that Defendant Kennedy could inspect it. 33. After about 10 days, Defendant Kennedy finished its inspection. Plaintiff Jennifer Hill telephoned Mr. Ritter, who informed her that they had found a small leak, 5 and that Defendant Kennedy would repair the floor. They would not agree to repair the leak, nor take any action to remove the mold. 34. Defendant Kennedy also suggested that Plaintiffs file a claim with their homeowners' insurance carrier for the damage, even tough the damage pre-existed the sale of the unit to Plaintiffs. 35. Within a reasonable time of learning of the true condition of the Freedom Spirit, Plaintiffs, on at least two occasions, notified Defendant Kennedy that they were revoking acceptance and rescinding the transaction. Defendant Kennedy refused to acknowledge the revocation and rescission. 36. As a result of the water damage and presence of mold, the Freedom Spirit cannot be used by Plaintiffs and is worthless to them. 37. By reserving the two camping sites which they are unable to use, Plaintiffs lost deposits in the amount of $100.00. COUNTI Violation of the Consumer Protection Law 38. The averments of paragraphs 1 through 37 are incorporated here by reference as if fully set forth. 39. At all times relevant hereto, Defendant Kennedy was engaged in trade or commerce as defined in Section 2(3) of the Consumer Protection Law, 73 P.S. § 201- 2(3). 40. Pursuant to Section 9.2 of the Consumer Protection Law, Plaintiffs aver that Defendant Kennedy's failure to disclose to Plaintiffs that the vehicle had serious 6 _ i water damage and the presence of mold, and misrepresenting that it was appropriate for Plaintiffs' intended use, violate Section 3 of the Consumer Protection Law, 73 P.S. § 201-3, by violating the following subsections of Section 2(4) of the Consumer Protection Law, 73 P.S. § 201-2(4): (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; (vii) Representing that goods or services are of a particular standard, quality o grade, or that goods are of a particular style or model, if they are of another; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding. 41. Plaintiffs reasonably and justifiably relied on Defendant Kennedy's representations about the unit in deciding to purchase it. 42. As a result of Defendant Kennedy's violations of the Consumer Protection Law, Plaintiffs have suffered an ascertainable loss of money or property, in that they purchased a vehicle that is not usable. WHEREFORE, Plaintiffs demand judgment against Defendants as follows: a) a judgment in the amount of three times the loss suffered by Plaintiffs as proven at trial of this matter, with the judgment against Defendant M & T Bank limited to the amounts paid by Plaintiffs; b) an award of attorney's fees and all costs of Plaintiffs; and, c) such other relief the court deems just and proper. 7 i _ COUNT II Fraud (Rescission) 43. The averments of paragraphs 1 through 42 are incorporated herein by reference as if fully set forth. 44. Defendant Kennedy intentionally, or with reckless disregard for the truth, misled the Plaintiffs about the true condition of the Freedom Spirit. 45. Defendant Kennedy intended Plaintiffs to rely upon the failure to disclosd material facts and misrepresentations. 46. Plaintiffs justifiably relied upon Defendant Kennedy's misrepresentations and omissions to their detriment, as they would never have purchased the unit had thdy known of the water damage and presence of mold. 47. Plaintiffs have suffered damages as a direct result of the Defendant Kennedy's omissions and misrepresentations. 48. Plaintiffs timely rescinded the transaction with Defendant Kennedy. WHEREFORE, Plaintiffs demand judgment against Defendants for rescission o~F the transaction, plus restitution, punitive damages, costs and such other relief as the court deems proper, with the money judgment against Defendant M & T Bank limited to the amounts paid by Plaintiffs. COUNT III Fraud (Damages) 49. The averments of paragraphs 1 through 48 are incorporated herein by reference as if fully set forth. 50. Defendant Kennedy owed a duty to Plaintiffs to be truthful with them. 8 i 51. By intentionally failing to disclose that the unit had severe water damage, and misrepresenting that there were any issues of which Plaintiffs should be aware, Defendant Kennedy breached that duty. 52. The false statements and omissions were material. 53. The false statements and omissions were made with the intent that Plaintiffs would rely upon them when considering whether to purchase the unit. 54. Plaintiffs reasonably relied upon the representations and omission of Defendant Kennedy in deciding to purchase the unit. 55. Plaintiffs decision to purchase the damaged unit was detrimental to them. 56. Had Plaintiffs known of the true condition of the unit, they would not have purchased it. 57. As a result of the above, Plaintiffs suffered actual and consequential damages. WHEREFORE, Plaintiffs demand judgment against Defendants for their actual and consequential damages, punitive damages and costs of this action, with the money judgment against Defendant M & T Bank limited to the amounts paid by Plaintiffs. COUNT IV Revocation of Acceptance 58. The averments of paragraphs 1 through 57 are incorporated herein by reference as if fully set forth. 59. Nonconformities in the recreational vehicle, i.e., the serious water damage and presence of mold, substantially impair its value to Plaintiffs, who were unaware of 9 i the nonconformities at the time of purchase. 60. Although Plaintiffs revoked acceptance of the vehicle within a reasonable time of learning of the defects and prior to any substantial change it its condition, Defendant Kennedy has failed to honor the revocation of acceptance, in violation of 13 Pa. C.S. § 2608. 61. Plaintiffs have also suffered incidental and consequential damages, in the form of lost deposits for reserved camping sites. WHEREFORE, Plaintiffs seek reimbursement of the purchase price of the vehicle, incidental and consequential damages, plus costs and such other relief as the court deems proper, with the money judgment against Defendant M & T Bank limited tb the amounts paid by Plaintiffs. COUNT V Negligent Misrepresentation 62. The averments of paragraphs 1 through 42 are incorporated herein by reference as if fully set forth. 63. When Plaintiffs directly asked about whether there were any issues of which they should be aware before buying the unit, and in describing the unit, Defendant Kennedy had a duty to respond truthfully. 64. By failing to disclose the severe water damage, Defendant Kennedy acted without regard for the truth or the well-being of Plaintiffs, and thereby breached that duty. 65. The fact that the unit had severe water damage was material. 10 _ _ i 66. Had Plaintiffs known of the true condition of the unit, they would not have purchased it. 67. As a result of the above, Plaintiffs suffered actual and consequential damages. WHEREFORE, Plaintiffs demand judgment against Defendants for their actual and consequential damages, and costs of this action, with the money judgment against Defendant M & T Bank limited to the amounts paid by Plaintiffs. Respectfully submitted, i dbe , Es ire A rney ID No. 4672 80 Linglestown R ,Suite 106 Harrisburg, PA 171 (717)703-3600 ~ Attorney for Plaintiffs Date: / 11 _ _ i 05/07/2012 12:12 7174321400 k:ENNEDY RV N PWRSPRT PF~GE 01/01 ~fENNfDT RY & PO~RS~ - - 1394.0Id York, Road ~ DILLSBURG, PA I70I9 - ~ - - (717) 482.9741 ($00) 443A~2 . ~ ~ powersparls,alm wrrrr.kennedyrvand : . 7~~'J 8 . ~fy~ TO ri DATE + i ~os.r~o; . r . JOB NAME . . ti ~ ~ 'l~ l JOQ 64GAT~ON TERNS ~ . o00 ' T 1 ,DO 'oo p; o~ L ~~oa ~o~ o ~ o u ,-Q ~~c~ro ~ y $ ~ V i 1 ~ 7 a - , a~ ~~f f~ ~ ~ b~ ~ ~ a cc. 9' PAGE 111 ~ RCYD AT 5(11201211:18:09 AM (Eastern Daylight Time' SVR:EAFAX10I1"DNIS:8349"CSIQ:1114321400 t QURATI4N (mm~ss):0048 'T~-IAN ~ XOtI EXHIBIT A _ i ~rayc ~ v.. +v~ r~HUt rJJ! 1C1 KENNEDY R~' N PWRSPRT 08i16/201~ u ~ ~~x,.~ 00 SfMf'LE! Pi=NNSYLVAPl4JAw Hi4TOR YEHSCiE (ttS'(i4iLtdlE}1T SAiE C9tiTR~,CT, t)atan ~ ~t Lt~~f_ ~ ~ - Aecaunt ANNUAL FINANCE amount Fnenced Totaj of Payments Total Sale Ptjre - PI:RCEN'fAGE RAt~ CHARGE The amount of credit provided 7h6 amaulrt you wilt have paid after you - The total COS! pf Your purchase The Cdst of your Credit as Tire dDllaf arnOUn# the t0 you Or do you? behalf. have made ail scheduled paymerris. credit, including your downpay a year! y ratp• credit will cost you. of S Your Payment $chedute ratr Ire: t0o.tlf,4ayrnenls AntvulttUFPtPmen>x roihanPaymuitisAteflue $ecurity 'fou are g'Wing a security interest in tTfe motor Yoh}t:le S - , / Month) be>rjftntn Rurchased- ~ r Prepayment: if yov pay off early, you wilt not have to pay a fpenOlty. Filing Fees: ~ - ' Late Gharge: tf a payment is late, you w11 bC Charged 296 of the portion Of the payment which iS late for each month, or part of a mortft greater than :LD days, than it remains unpaid See trelow and any other Conrtract documents for Any additional informafiort about nonpayment, default, any required reRayment in full bSfore the schedutprl date and prep refunds and perlaffies. a means ~ IF YOU DON MEET YOUR C( In this Con OBLIGATIONS,. OU MAY LOSETHt we are ~JJ - - . j3 _a~ ~ f - ~ VEHICLE AN .PROPERTY TH the SELL~~ t 80t4GK5 Y6ti'fSi 1~itiS ~Ot3TAACT' Nerve ` Address Zip Cod ONEY ON DE OSIT WITH THE A5. • This CordraCt is Sall9r aitd F Ire Stif`I.~RfsT, , 1~ ~ ~ iii i~ ~ s s{~ # S - `~`~'~j~/ i "~A ~ I ~s t~ ~ . ktsu~osurta; ha beer .made by SeE .Nerve(s)- ` , Address(es) rR Code(s? intends td assert thls;COr~har:tfio the A tF there is more than one Buyer, each promises, separately and together, td pay'all sums due us and#o perfOntt all a~reemerds in this Cohtrar.L, I~tn'r2s;tfOFt Of /t;Alt)u(!t'~Itli Cash Price ~ rkADE-1.N. _ ~ (j You have traded in ~ tF,e fohknting tleRY,c44; Casb tw>dr,pa mane Year end Make !?escriptian S If a balance is still owing on the vehicle You have traded in, the Saljerwill yey otf this amGant anyour behalf. You wArrant and represent to us Trade-[n Drat any trade-in is free from Tien. claim, encumbrance or security interest, except as shown in the 'Itemization of Amount financed' as the Value of Trade~In ,/j "lien PayofT." - $ h~ ~ •PROPERIY tNSliRANCf~ You may Choose the perspn throegh whom insu'rBnor: is atstainAd a~i+.rist loss nr dama~: to the Yehlrte atvl soatnst Lien Payoff to: 3~ liability ariang out of use or ownership pf the Vehicle. In this ContrACt, you ale promising to insure the Vehicle and keep it insured. CREDIT INSURANCE IS NOT REQIIIREA: Credit life lnsurahce and Credit Disability fnsuranee are not required to Obtain Credit and will not be IJnQxid Cash rice Balatrrp_ ptavided unites you sign t,t4rre and agrEE to pay !fie additiDnat Cpgt(s)- Your lnsurnnea e8rfficate or policy rirti tell you Yne NIA7itNtllN! amount t1 of maurance available- AIf insurance purchased w1[I be for the tRrm of the credit We rrlay receive flnanciat benefit front your purchase of S d s~ Credit Insurance. To Credit f surance~Company By signing, you select Single Credit life 'FFhat'ss Ydac By signing, you selset Sine Credft Disability What is your $ ' Insurance, which costs $ age? Years insurance, which costs age? Years To public ffrcialsfor. 4.'scenrz, bstd Reg'ystststiotl Signature of Buyer to be insured for SinEte Credit life Insurance Sgnature of Buyerto be insured for Single Credit DisabitityltrSUlance $ ~ ' By signing, you bnth selrrt lotpt 'OFAst u¢ " BY eigsugg, you tsddt szlest saint Or2d7t Nlhakare Percentage ~ Lien Fee ' Credit Lfe !llsurance, which Costs $ _ - your ages? 1lLSabtRtY Insurance, which CoSfS S your ate? insured ~ ~ ~ Qa To L. t. - - ~ ~ For ~ ~ ~Tq~ 2 - - - - Z ~ ~ To t/ Signatures of horn Buyers tv be irnUred Tor Jar~# Credit Ills Insurance Signatures of both Buyers to be insured for ]pint Credit Disability Ins- ~ $ ~0.? i ~ 0 • • ~ For ~ ~[Q,rS 4 t-lf cturCU.ed, the Gast 9f tkrC in:usatSS'R frith attavg !s esi,;,tated- Yoat 'rrit4 be nottied ~ atYy adjttStmtirrt 1ri !fie 4'GS't rh tt~e insorattGt: at o, To - ? the lime your insurance policy is sent to you- ~ - , r jnsurer _ Far ~ .~17i"t2 C'ftr VEHICLE: You have agreed to purchase, under the terms of this Contract, the fallowing motor vehicle and i~ extra eQUipment, which is cai~eC To the "Vehicle" in this Contract S ~ ~~~o cac ~ z' ~x~. i'~~. I4~~1CF. tT Fo1~(d ' ~,[~2. . ~ ~oa~ ~r~d~m 77~11er ~~?'.DFN~'7~~~"~o~ ~ 8' DPtionalDeb Ca lotion icn~ ff Equipped AT, ~ P,5- - AM•FM Stsreo ~ 5 Spd. Other - Amount l"ina ceQ with AC. _ P.1N- 4 Aht-FM Tape _ Vinyl ToR 4 / G ~3~ ~t DEBT CANCELLATION (GUARANTEED AUTO PRDT1;CTtON) AGREEMENT'IS YDtUNTAFtY AND NOT f{EQUIREO AS A CONDITION OF THE cttFnir rn:.-~~.~•^^T^-~ EXHIBIT B trage v or Lcr ' 0Sl`16l2011 10:37 7174321400 KENNEDY RV N PWRSPRT PAGE 04/10 Type of Debt Cancelladan Agreement Charge Signature Guaranteed auto protection {GAP} $ I want guaranteed auto pCOtection Signature of Buyer ~i SERVICE COtTRACT OR WARRANTY AGREEMENT iS~VO1UNTARY AND NOT REQUIRED AS A CONDITION Oi: THE CREDt"r. The service contract or warranty agreement will not be provided unless you sign the separate Sgreement wdir the third party provide ,who is not the Seller named above, and agree to pay the additional charge. This section does not apply to any warranty that you may receive for which theta is note separate charge ASSIGNEE: We intend to assign this Contract and Security Agreement to the Assignee named in this provision. !f the Assignee assigns this Contract to a subsequent assignee,the term °Assignee` also refers to such su4segNeni assignee. After the Assignment, ail rights and bene~ds of the Seller in this Contract and in the Security Agreement shelf ltelpng to and be enforceable by the Assignee. The Assignee's name and address is: 1N&T SANK installment Lawn 0 erations One Fountain Plaza, P.~. Dax 4UQ5 Buffalo, New York 1424iJ CO-SIGNER: Any person signing the Co-signers Agrt:emeni below promises separately and together with aIC Co-Signers} and Buyer(s), to pay all sums due and'. to perform all agreements in this Contract. Ca.Sigriet wfl[-not bean Owner af.the Ye[eicle. CD•OtkNfR: Any person signing the Co-Owner's Security Agreement below gives us a security interest in the Vehicle and 8grees separately and together with aU Co-0wnet(s}and Buyers}, to perform al! agreements In the Security Agreement and alt other parts of this Contract except the'Pramise t0 Pay` section. TERMS: The terms shown in the boxes above are part of this Contract -PROMISE TO PAY: You agree to pay us the Total Sale Pricy far the Vehicle by making the Cash unpaid under this CorElract against any of your money on oeposlt wl~h Assignee. This Dawnpayment and assigning the Trade-tn,'rf shown above, on or before the date of this Contract, includes any money which is now or may in the future be deposited with!Assignee by y0u_ and paying us the Amount Rnanced plus Fnance Charge. You promise to make payments in Assignee may da this wittt0ut any prior nCt3Ce to you. accordance with the Payment Schedule. Yau promise to make payments an or before #3te same ADDITIDNAL i}ISf:LOSURES AND TER~HS AND CONpiTIONS: day of each month as Vse first payment due date. You agree m pay all other amouMS which may Disclosures: Be#are signing this Contract, be sure that you receive and refad the Disclosure become due under the tsmu of this (A[rtract You agree to pay the Seller or Assignee casts of to Buyer.• suit You also agree to pay reasonable. atiari'leys' Sees rf Seller or Assignee hires an attorney to . Collect am0upts;due, under this Contract or #n protect or gat po55essipn Of th8 Vehicle. as Terms aced. Conditions: Before. Slgping this .COnfract be. sure you. receive and read the permitted by applicable'Eaw. You agree to make; payments n# the place or to send payments to following, which are additioonaa{ pages to and part of Phis Contract: the address which the Assignee most recently specifies in the written notice tD you. • This Contract continues on the reverse side. }Debt Cancellation. {Guaranteed Auio Protection} separate disclosure 2nd agreement if SECURITY AGREEMENTS To secure the payment of ail sums dpe and the performance of all purchased as part of this Contract and disclosed above: required>obligations under thfs Cantracf; You,giv~ a security lntefest in the Vehicle, in all parts (called °eccessions' attached#o the Vehicle st any later time, and in any proceeds of TFEtS CONTRACT CONTINUES Oft THE Rl:YERSE 31DE. YOU ARE i78UG TE0 TO ALt THE the Yehicle including insurance praoeeds. The Assignee may set-olf-any amounts due and TERMSUF THE CONTRACT WHICtf APPEAR OM THE FRONT AND REVERS, SIDES: The Annual Perceni`age,; Rote m..ay be ntgot'tabte vrith the $eltep The Seller may assrgn thrs. con#ract anti roar its right to receive' a parf' of the. Finance Charge. . By signing tiemw, we agree to sell ttte Vehicle to you-under the tarns of this tontract NOTECE TO BUYER-DO NOT SIGN THl ONTRAG7 IN Bt.A K'YOU ARE ENTITLEDTO AN F,~(AC COP QFT ONTRACT YOU SIGN. KEEP iTTO f~ ,~,J.,~ PROTEC E ~ ~ t SEL~ii ~ Ii . ~ OL.~PJ~~j J BUYER ~ _ _ ~~L),: J ~ ~ Date BY: ~r M ~ BUYER ~ ~ ti.'` - {SEAL},,..... r'~ Date pate • Cf)-SIGNER: YpU SHOULD READ iNE NOTICE T4 CD-S[GNER,INHICH HAS BEEN GIVEN TD YOU ON A SEPARa7e DocueeENT, BEFORE StGiY1NGTHE CO-SIGNER'S A REEMENT_ CO-S1GN>;R'S AGREEMENT: You, the person {or per;flnsj signing below as °Co-Signer; promise to pay to us all sums due on this Contfact and to perform all agreemen in this Contract You intend to be IegalCy bound by elf the terms of this Contract separately and together, with the Buyer. You are making this promise to induce us to make this Contra with the Buyer, even though we will use the proceeds only for the Buyer's benefit You agree to pay even though we may not have made any prior demand for payment on the Buyer!or exercised our security interest You also ackhowl9dge receiving a completed copy of this Contract. {SEAL) _ Co~SCgner's Signature Address Date {SEAL1 .,_,,..w,.. Cn•Signe~s Signature Address ate E CO.OWNER'S SECURfTY AGREEMENT: Yau, the DersoO signing below as'Co-Owner,' together with the Buyer or otherwise being all of th8.bwners of the Vehicle, give us a~ecurity interest in the Vehicle identified above. You agree to be bound by the terms Of the Security Agreement and all other parts of this Contract except the 'Promise To Pay" section. Yo are giving us the security interest to induce us to make this Contract with the Buyer, and t0 secure the payment by the Buyer of all sums due,.an this Contract Yau will not he respanSible~fOr any deflClenCy which might be due after repossession and sale of the Vehicle. . (SE)U.} Co-0wner's Signature Address .Date Bi1YER, GO-SIGNER AN1l CD-OWNER, [F APPLICABLE, ACKNQWLEDGE RECEIPT OF A COMPLETED COPY OF 3H1~ CONTRACT AT THE TIl1~E OF NiNG, tNCLU ING THE ADDITIONAL DISCLOSURES AND PAGES LISPED IN THE SECT ON CALLED DDITIQ At, IS RES, TER ND ND Uy BUYER CO-SIGNER CO-SIGNER OR CO-OwrvERl No Gosling Off Period State law does oat provide fora "cooling nft° er other cancellation period for this Contract. Therefore, yoit cannot Eater cancel this Contract simply because yvu change your mind or wish you had acquired a different item. After you sign above, You may only cancel this Contract for fegallyralid reasons. Form NTRSIAVtFnCPA (PAg23aCSLC•11 2/25/2003 NOTICE: SEE REVERSE SIDE FOR 119PDRTANT INFORtAATfON. ~ 20aa wdtecs Klt[wer Financial Ssrvfcea - BFNCO wytTE - ORIGUJALTD MaT- CAlJARY • Hurcrs Ceor ~ PINK • Co-Sinners Coov - 60lDENAOa - Svhsr'a Cnov _ _ i VERIFICATION I, the undersigned, hereby state that I have reviewed the foregoing Complaint, and verify that the facts set forth in the document are true and correct to the best of my knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Dated: f c IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA zrn DANIEL C. HILL and JENNIFER L. —<> CO HILL r Plaintiffs, ' ^' V. CIVIL ACTION - LAW ry =' No. 12-5355 -' KENNEDY RV& POWERSPORTS, INC.,and as successor for MANUFACTURERS & TRADERS TRUST COMPANY, Defendants. Jury Trial Demanded NOTICE You have been sued in court. If you wish to defend yourself against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association, 34 S. Bedford Street, Carlisle,Pennsylvania Telephone Number 717-249-3166 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DANIEL C. HILL and JENNIFER L. HILL Plaintiffs, V. CIVIL ACTION-LAW No. 12-5355 KENNEDY RV& POWERSPORTS, INC., and as successor for MANUFACTURERS & TRADERS TRUST COMPANY, Defendants. Jury Trial Demanded ANSWER WITH NEW MATTER AND NOW comes the Defendant, Kennedy RV & Powersports, Inc., as successor for MANUFACTURERS & TRADERS TRUST COMPANY, by and through its attorney, Alina M. Dusharm, Esq., Jason B. Duncan, and the firm STONE, DUNCAN, & LINSENBACH, P.C., and files this Answer to the Complaint with New Matter and in support thereof avers as follows: PARTIES AND VENUE 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 2. Admitted. 3. Admitted. 4. Admitted. 2 S. Admitted. 6. Admitted. 7. The averments in paragraph 7 are legal conclusions to which no responsive pleading is required. By way of further answer, Defendant M&T Bank has assigned its rights and interests to Defendant Kennedy RV to be substituted as a successor in this action. FACTS AND BACKGROUND 8. Denied. After reasonable investigation,Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 9. Admitted. 10. Denied as stated. Mr. Ritter did answer some questions about the Freedom Spirit and allowed them to inspect the unit,but it is denied that he necessarily acted as a salesperson or that he encouraged them to purchase it. 11. Denied as stated. It is denied that Mr. Ritter provided a"sales presentation"or that he responded that there were no issues of which to be aware. Rather, Mr. Ritter informed Plaintiffs of the previous small leaks that were made known to him, and explained that the leaks had been repaired and resealed. 12. Admitted. 13. Denied. The Shumbergers at no point informed Mr. Ritter that there had been severe water damage. Rather,the Shumbergers made Mr. Ritter aware that there had been a leak, but also claimed that it had been repaired by the previous RV dealers. 3 14. Denied. It is denied that the Shumbergers took any further action outside of their conversation with Mr. Ritter to make Kennedy RV aware of any water damage. 15. Denied. It is denied that the Freedom Spirit ever had substantial water damage,or that its condition at this time was caused by events preceding the sale of the Freedom Spirit to Plaintiffs. It is also denied that Kennedy RV was fully aware of its condition, or that it was in the same condition at the time of sale as it was in during trade in from the Shumbergers. Rather, Kennedy RV performed repairs and maintenance to fix the seals and any leakage that still existed at the time of trade in. 16. Denied. It is denied that there is a presence of any mold or extensive water damage, or that there was any mold or water damage prior to the sale of the Freedom Spirit. 17. Admitted in part, denied in part. Admitted that the Plaintiffs purchased the Freedom Spirit for$10,608.50 along with a warranty, and installation of a hitch and brake control to total$12,593.68. It is denied that Plaintiffs relied solely on the information supplied by Mr. Ritter, or the information alleged in previous averments. 18. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 19. Denied as stated. Defendant Kennedy is an indirect lender for M&T Bank. The financing is given on behalf of M&T Bank only after their approval. 20. Denied as stated. Defendant Kennedy is an indirect lender for M&T Bank. The financing is given on behalf of M&T Bank only after their approval. By way of further answer, M&T Bank has assigned all of their rights and interests back to Kennedy RV&Powersports, Inc. 4 21. The averments in paragraph 21 are legal conclusions to which no responsive pleading is required. To the extent that an answer is necessary,the allegations are denied. 22. Admitted. 23. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 24. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 25. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 26. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 27. Denied. After reasonable investigation,Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 28. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 29. Admitted in part, denied in part. It is admitted that Plaintiffs contacted Defendant regarding the leak in their camper, and that Defendant instructed them to bring the camper to the 5 dealership to be fixed. However,this conversation took place around November or December of 2011. It is denied that Plaintiffs brought the Freedom Spirit to the dealership within a few days, but rather,brought the RV to the dealership in April, several months later. 30. Admitted in part, denied in part. It is admitted that Mr. Ritter walked through the unit,but it is denied that there was any mold, or evidence of severe water damage. 31. Admitted in part, denied in part. It is admitted that Defendants wanted to return the unit after the damage caused to their RV,particularly after tearing up the floor and walls into an unusable state in order to "discover mold." It is also admitted that Defendant would not simply give them a new unit. It is denied that Mr. Ritter made the statements alleged, or in the context as alleged in this averment. 32. Admitted in part,denied in part. Admit that Defendant Kennedy agreed to temporarily keep the unit for the purposes of an appraiser to inspect the unit for the insurance claim. It is denied that Defendant Kennedy agreed to keep the camper in order to conduct his own inspection. 33. Denied. In conjunction with an insurance estimate which offered to pay for the repairs of the damage, Defendant offered to do all of the repairs at no cost to Plaintiff. Plaintiff would not have been responsible for any additional cost above the estimate, nor the deductible. It is denied that Defendant would not take action to remove the mold,because there was and is no evidence of mold in the RV. Defendant could not remove mold that did not exist. 34. Admitted in part,denied in part. It is admitted that Defendant suggested that Plaintiffs file a claim with their insurance carrier during one conversation at some point prior to bringing the RV to Defendant Kennedy in April, and that the insurance carrier elected to cover the damage. It is denied that the damage pre-existed the sale of the unit to Plaintiffs. In fact,the 6 insurance carrier's willingness to cover the repairs from the damage is evidence that it was caused after the sale while it was in the possession and ownership of Plaintiffs. 35. Denied. Plaintiffs did not notify Defendant of their intent to rescind and revoke acceptance in a reasonable amount of time. Rather, they notified Defendant in the summer of 2012, almost an entire year after the purchase of the unit, and after doing substantial damage to the trailer. 36. Denied. It is denied that there is a presence of mold or that the water damage could not be repaired. 37. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. COUNT Violation of the Consumer Protection Law 38. The answers set forth in paragraphs 1-37 are incorporated by reference as if fully set forth herein. 39. The averments in paragraph 39 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 40. The averments in paragraph 40 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. 41. The averments in paragraph 41 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 42. The averments in paragraph 42 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. 7 COUNT II Fraud (Rescission) 43. The answers set forth in paragraphs 1-42 are incorporated by reference as if fully set forth herein. 44. The averments in paragraph 44 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 45. The averments in paragraph 45 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 46. The averments in paragraph 46 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 47. The averments in paragraph 47 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. 48. The averments in paragraph 48 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. COUNT III Fraud (Damages) 49. The answers set forth in paragraphs 1-48 are incorporated by reference as if fully set forth herein. 50. The averments in paragraph 50 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. By way of further answer, Defendant was truthful to the best of his knowledge. 51. The averments in paragraph 51 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. By way of 8 further answer, Defendant was not aware that there was any damage to the RV that was severe or that there were any remaining issues with the RV. 52. The averments in paragraph 52 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 53. The averments in paragraph 53 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 54. The averments in paragraph 54 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 55. The averments in paragraph 55 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 56. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 57. The averments in paragraph 57 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. COUNT IV Revocation of Acceptance 58. The answers set forth in paragraphs 1-57 are incorporated by reference as if fully set forth herein. 59. The averments in paragraph 59 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. By way of further answer, Defendant denies that there was serious water damage or presence of mold at the time of purchase, or that there were any nonconformities in the RV. 9 60. The averments in paragraph 60 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. By way of further answer, Plaintiff did not revoke acceptance within a reasonable period of time or without substantial change in condition. Defendant Kennedy also offered to cure the damage, but Plaintiffs refused. 61. The averments in paragraph 61 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. COUNT V Negligent Misrepresentation 62. The answers set forth in paragraphs 1-61 are incorporated by reference as if fully set forth herein. 63. The averments in paragraph 63 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. By way of further answer, Defendant was truthful to the best of his knowledge. 64. The averments in paragraph 64 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. By way of further answer, Defendant was truthful to the best of his knowledge. 65. The averments in paragraph 65 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. By way of further answer, it is denied that the unit had severe water damage at the time of sale of the unit to Plaintiffs, or that Defendant was aware of the damage being severe. 10 66. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 67. The averments in paragraph 67 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. WHEREFORE,Defendant, Kennedy RV & Powersports, Inc., as successor in interest to Manufacturers & Traders Trust Company, respectfully requests that the complaint be denied and dismissed,judgment be entered against Plaintiff. NEW MATTER AND COUNTERCLAIM 68. The answers set forth in paragraphs 1-67 are incorporated by reference as if fully set forth herein. 69. The alleged damages to the Freedom Spirit were caused entirely by Plaintiffs own actions, either in whole or in part, and the claims are barred by the doctrine of contributory negligence. 70. The alleged damages to the Freedom Spirit were caused entirely by Plaintiffs own actions, either in whole or in part, and the claims are barred by the doctrine of comparative negligence. 71. The acts or admissions of Plaintiffs are intervening or superseding causes of the damage to the RV. 72. Plaintiffs have damaged the Freedom Spirit trailer by their own actions beyond the damage alleged to have been caused in the Complaint and Defendant has the right to offset damages by any loss of value to the RV. 11 73. Further, this excess damage to the trailer caused by the Plaintiffs puts the Freedom Spirit in a condition that is not substantially the same at the time of sale. Plaintiffs cannot revoke acceptance or cause rescission of a contract after causing damage to the trailer on their own accord. 74. Plaintiffs have received a check from their insurance company for the cost of repair to the damage to the Freedom Spirit. Plaintiffs engage in fraud by asking for the full contract price to be returned to them in addition to the payment for the damage done to the trailer from their insurance. 75. The insurance company's estimate and willingness to pay for the damage to the trailer is evidence that the damage occurred after the time of sale when the Freedom Spirit was in the possession of Plaintiffs. Plaintiff's engage in fraud by alleging consumer protection violations, contract remedies, and negligence, while engaging in this lawsuit and attempting to receive excessive damages after causing damage to their trailer through their own actions. 76. Plaintiffs' claims were not brought until a year after the sale of the Freedom Spirit, with more than adequate time to notice the damage to the RV and with a high probability that the damage was in fact a result of their own actions in not properly winterizing the RV and in causing excessive damage to "investigate"the damage to the trailer. Therefore, Plaintiffs' claims are barred by the doctrine of Laches. 77. Plaintiffs' claims are barred by the doctrine of Unclean Hands. Defendants have offered to cover the repairs to the RV in conjunction with the insurance estimate, including the repairs needed to the floor and walls after Plaintiffs destroyed them in search of mold. Plaintiffs have acted in bad faith with respect to damage done to their trailer. 78. Plaintiffs' claims are barred by the applicable standard for accord and satisfaction. 12 79. Plaintiffs' claims are barred because they have received adequate payment for the damage to their RV. 80. Plaintiffs' claims are barred in whole or in part by their failure to mitigate their damages. COUNT Breach of Contract 81. The answers set forth in paragraphs 1-80 are incorporated by reference as if fully set forth herein. 82. Plaintiff and Defendants entered into a valid,binding, written installment sale contract for the purchase and financing of a recreational vehicle. 83. Under the terms of the contract, Plaintiff acknowledged delivery of the RV in good condition, after examination and acceptance. 84. Under paragraph 4 of the contract, the Defendants made "No warranty of merchantability concerning [the] property and no warranty that [the] property is fit for a particular purpose." 85. Defendants had an expectation that all terms of the contract would be followed. 86. Under the terms of the installment contract, Plaintiff breached the contract by the following ways: a. Failing to keep the RV in good condition; b. Failing to immediately notify the Defendants in writing if the property is damaged or destroyed; c. Abandoning or disposing of the RV without first obtaining written consent; d. Allowing the RV to suffer substantial damage or substantial decline in value. 13 87. As a result of the numerous violations of the agreement, Plaintiff is in default. 88. As a direct result of Plaintiff's material breach of the agreement, Plaintiff has suffered damages in the amount of the outstanding pay off amount for the installment contract, and reasonable attorney fees and court costs. 89. As a direct result of Plaintiff's default, Defendants may seek accelerated damages, including late charges of 2%per month, under section 19 of the contract. 90. As a result of Plaintiff abandoning their recreational vehicle at the property of Defendant, Defendant also seeks expenses for storing, repairing,preparing for sale, and selling the vehicle, under section 20(e) of the contract. WHEREFORE, Defendant, Kennedy RV & Powersports, Inc., as successor in interest for Manufacturers & Traders Trust Company, respectfully asks the court to deny the Plaintiff's claims, and enter judgment in favor of the Defendant. The Defendant respectfully requests that any legal or equitable relief be granted to Defendant as it is entitled. STONE, DUNCAN, & LINSENBA 11, PC 4 AL A . US SQUIRE I.D. #309861 JASON B. DUNCAN,ESQUIRE I.D. # 87946 Attorneys for Defendant 8 N. Baltimore St. Dillsburg, PA 17019 Telephone: 717-432-2089 Fax: 717-432-0158 14 VERIFICATION I, Alina M. Dusharm, Esquire, a member of the firm of Stone, Duncan & Linsenbach, PC, attorneys for Defendants in the foregoing proceeding, make this verification on behalf of Defendants as its verification cannot be obtained within the time allowed for the filing of this pleading and making the following statement subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities, and do state that as an attorney for Defendants, I am authorized to make this Verification on behalf of Defendants;and do state that the facts set forth in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief. DATE: 7�� f By: na . Dusharm squire Supreme Court ID 309861 15 CERTIFICATE OF SERVICE I, 6– do certify that I have served a copy of Defendant's Answer with New Matter upon the following by first class mail: Joseph K. Goldberg, Esq. 2080 Linglestown Rd., Suite 106 Harrisburg, PA 17110 Attorney for Plaintiff Sean Ronan, Esq. M&T Bank One M&T Plaza Buffalo,NY 14203 DATE:— 'A g /13 STONE,DUNCAN, & LINSENBACH, PC AL A M. DUSHkRMNSQUIRE I.D. #309861 JASON B. DUNCAN, ESQUIRE I.D. # 87946 Attorneys for Defendant 8 N. Baltimore St. Dillsburg, PA 17019 Telephone: 717-432-2089 Fax: 717-432-0158 16 DANIEL C. HILL and IN THE COURT OF COMMON PLEAS OF JENNIFER L. HILL, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. KENNEDY RV & POWERSPORTS, INC., and MANUFACTURERS & TRADERS TRUST COMPANY, DEFENDANTS 12-5355 CIVIL TERM ORDER OF COURT AND NOW, this ,-. ',,W... day of April, 2013, upon consideration of the within Motion to Substitute Kennedy RV& Powersports, Inc. as a Successor in Interest for Manufacturers &Traders Trust Company, a Rule is issued on Plaintiffs to show cause why the requested relief should not be granted. Rule returnable twenty (20) days after service by Defendant. By the Court, Albert H. Masland, J. r1 Alina M. Dusharm, Esquire Joseph K. Goldberg, Esquire Sean Ronan, Esquire zM r a, , Cn :sal !�I3-t��"r'=I E Joseph K. Goldberg, Esquire OF i HE't PROTHONO TAB y 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 2€ 13 APR 23 AM 10, 42 jgoldberg@ssbc-1aw.com PAID# CUMBERLAND COUNTY ----- PENNSYLVANIA IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA DANIEL C. HILL and JENNIFER L. HILL, CIVIL TERM (LAW) Plaintiffs : V. NO. 12-5355 KENNEDY RV & POWERSPORTS, INC., and MANUFACTURERS & TRADERS TRUST COMPANY, JURY TRIAL DEMANDED Defendants OPPOSITION TO MOTION TO SUBSTITUTE KENNEDY RV & POWERSPORTS, INC. AS A SUCCESSOR IN INTEREST FOR MANUFACTURERS & TRADERS TRUST COMPANY Plaintiffs, by and through their attorney, Joseph k. Goldberg, oppose the Motion to Substitute filed by Defendant Kennedy RV & Powersports, Inc. ("Kennedy RV"), as follows: 1. Plaintiff's have no knowledge of any such agreement. Such an agreement, if it exists, has no relevance to Defendant's Motion. 2. Denied. Defendant Kennedy RV is not an indirect lender. To the contrary, Defendant Kennedy RV is an installment seller that provides credit - not loans -to consumer purchasers. Plaintiffs have no knowledge of any "credit approval" obtained through Defendant Manufacturers & Traders Trust Company ("M&T Bank"). In fact, upon information and belief, Defendant M&T Bank did not give "credit approval," but, rather, informed Defendant Kennedy RV that it would take assignment of an r installment sale contract between Defendant Kennedy RV and Plaintiffs. 3. Admitted. 4. Admitted. 5. Plaintiffs have no knowledge of an assignment of rights from Defendant M&T Bank to Defendant Kennedy RV. Such an assignment has no relevance to the liability of Defendant M&T Bank to Plaintiffs. 6. Plaintiffs have no knowledge of any such succession by Defendant Kennedy RV to the interest of Defendant M&T Bank. Such a succession has no relevance to the liability of Defendant M&T Bank to Plaintiffs. 7. It is admitted that Plaintiffs do not concur in the Motion. Plaintiffs have no knowledge of the position of Defendant M&T Bank toward the Motion. 8. It is admitted that no continuance is necessary in this matter, as the time has expired for Defendant M&T Bank to file its Answer in this case. WHEREFORE, Plaintiffs respectfully request the court to deny the Motion of Kennedy RV to be named a successor in interest to Defendant M&T Bank. Respectfully submitted, eph K. Goldberg, E uire Attorney ID No. 467 2080 Linglestown road, Suite 106 Harrisburg, PA 17110 (717)703-3600 Date: �� / 3 Attorney for Plaintiffs CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the ory day of ' 2013, 1 served a copy of the foregoing Plaintiffs' Opposition to Motion to Substitute Kennedy RV & Powersports, Inc. as Successor in Interest for Manufacturers & Traders Trust Company, by first-class mail, postage prepaid, upon the following: Alina M. Dusharm, Esquire Stone, Duncan & Linsenbach, PC 8 N. Baltimore Street Dillsburg, PA 17019 Attorney for Kennedy RV & Powersports, Inc. and Sean Ronan, Esquire Manufacturers & Traders Trust Company One M&T Plaza Buffalo, NY 14203 -TO sep 7rE uire �,,._ F fLEO-OF F I E Tf�E PRO THONO Tp j� Joseph K. Goldberg, Esquire 2080 Linglestown Road, suite 106 2013 APR 23 A� j�, � Harrisburg,PA 17110 2 (717) 703-3600 CUMSERL4ND COUNTY jgoldberg @ssbc-law.com PENNSYLVANIA PA ID#46782 -------------------------------------- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA DANIEL C. HILL and JENNIFER L. HILL, CIVIL TERM (LAW) Plaintiffs V. NO. 12-5355 KENNEDY RV & POWERSPORTS, INC., and MANUFACTURERS & TRADERS TRUST COMPANY, JURY TRIAL DEMANDED Defendants PLAINTIFFS' PRELIMINARY OBJECTIONS TO ANSWER WITH NEW MATTER FILED BY KENNEDY RV & POWERSPORTS. INC. Plaintiffs, by and through their attorney, Joseph K. Goldberg, file Preliminary Objections to the Answer with New Matter' filed April 5, 2013, by Defendant Kennedy RV & Powersports, Inc., as follows: PROCEDURAL HISTORY 1. This is an action by Plaintiffs against the seller of a recreational vehicle and the holder of the financing instrument for nondisclosure of existing defects and related claims. 2. Plaintiffs filed their Complaint on August 28, 2012. Defendant Kennedy RV & Powersports, Inc. ("Kennedy RV"), filed its Answer with New Matter on or about 'Although named "Answer with New Matter," the pleading at issue also contains a Counterclaim. September 21, 2012. 3. By agreement between Plaintiffs' counsel and Defendant Manufacturers & Traders Trust Company ("M&T Bank"), the time for M&T Bank to file its Answer was extended several times, until the final deadline of March 29, 2013. At the request of Alina M. Dusharm, Esquire, who informed Plaintiffs' attorney that she would be representing M&T Bank, the deadline was extended to April 8, 2013. 4. Plaintiffs have sent written discovery to Kennedy RV, who answered the same, and have taken the deposition of Kennedy RV's President. 5. On April 8, 2013, Kennedy RV filed an Answer as "successor for" M&T Bank, and simultaneously filed a contested Motion to substitute Kennedy RV as successor in interest for M&T Bank. That Motion is pending. First Preliminary Objection - Pa. R.C.P. No. 1028(a)(2), (3) — Failure to conform to rule of court, as Plaintiff is not the real party in interest 6. Pa. R.C.P. 2002(a) requires that an action be brought by the real party in interest. 7. The action by Plaintiffs includes claims against M&T Bank as a holder of the financing instrument in their purchase from Kennedy RV. 8. The source of the claims against M&T Bank are from the parties contract, by virtue of contract language required by the Federal Trade Commission Regulation Rule on Preservation of Consumers' Claims and Defenses, 16 C.F.R. Part 433. A party cannot free itself of such claims by attempting to assign them to another party. 9. Since the Answer with New Matter- including the Counterclaim - was not filed by the real party in interest, it must be dismissed. 2 Second Preliminary Objection — Pa. R.C.P. No. 1028(a)(2) — Failure to conform to rule of court (failure to attach written contract upon which the claim is based) 10. The Counterclaim is based upon the "valid, binding, written installment sale contract for the purchase and financing of a recreational vehicle." Answ. ¶ 82. 11. Kennedy RV and/or M&T Bank have failed to attach to its pleading a copy of the written contact. 12. Pursuant to Pa. R.C.P. No. 1019(h), where a claim asserted is based upon an agreement, the pleading must state whether the agreement is oral or written. Pursuant to Pa. R.C.P. No. 1019(i), if the agreement is written, it must be attached to the pleading or, if not, the pleader must explain its absence and set forth the substance of the agreement. 13. Likewise, Kennedy RV and/or M&T Bank have failed to attach to their pleading a copy of the writing by which they claim the account has been assigned to Kennedy RV, thereby becoming the successor to M&T Bank. 14. An assignment such as the one referenced by Defendant must be in writing, the writing, as the source of the claim asserted by Defendant Kennedy RV, must be attach to the pleading. 15. By failing to attach the referenced writings, the Answer with New Matter does not conform to pleading requirements and must be stricken. Third Preliminary Objection - Pa. R.C.P. No. 1028(a)(2) — Failure to conform to rule of court (improper Verification) 16. Pa. R.C.P. No. 1024 requires that every pleading be verified by a party, unless the party is without sufficient knowledge or information with which to verify, or, 3 alternatively, that the party is outside the jurisdiction of the court and its verification cannot be obtained within the time allowed for pleading_ Pa. R.C.P. No. 1024(c)(1) and (2) (emphasis added). 17. The Answer with New Matter is verified by counsel of record for Defendants, and not an employee or other agent of those parties. Although counsel states she signed the Verification because of the need to meet a deadline for filing, there is not statement that either party is out of the jurisdiction, which is a requirement for her being able to execute the Verification. 18. Defendant M&T Bank was served with the Complaint on September 5, 2012, more than sufficient time for a Verification to be obtained from any party. 19. Kennedy RV is located within the Commonwealth in York County, and M&T Bank operates in numerous locations within the Commonwealth; therefore, verification by counsel violates Pa. R.C.P. No. 1024, and the pleading must be stricken. WHEREFORE, Plaintiffs demand that their Preliminary Objections be sustained, and the Answer with New Matter be stricken. Respec 4itteds, J ttorney ID 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717)703-3600 Attorney for Plaintiffs 4 CERTIFICATE OF SERVICE d I, the undersigned, hereby certify that on then day of / , 2013, 1 served a copy of the foregoing Plaintiffs' Preliminary Objections to Answer with New Matter Filed by Kennedy RV & Powersports, Inc., by first-class mail, postage prepaid, upon the following: Alina M. Dusharm, Esquire Stone, Duncan & Linsenbach, PC 8 N. Baltimore Street Dillsburg, PA 17019 Attorney for Kennedy RV & Powersports, Inc. and Sean Ronan, Esquire Manufacturers & Traders Trust Company One M&T Plaza Buffalo, NY 14203 Jos h K. Goldberg, Es uire Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j goldberg @ssbc-law.com PA ID#46782 -------------------------------------- IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA DANIEL C. HILL and JENNIFER L. c HILL, r°M z ` CIVIL TERM (LAW) =;:v �r Plaintiffs C3 V. NO. 12-5355 v c . a KENNEDY RV & POWERSPORTS, INC., and MANUFACTURERS & "y TRADERS TRUST COMPANY, JURY TRIAL DEMANDED Defendants ORDER AND NOW, upon consideration of the Motion to Substitute Kennedy RV & Powersports, Inc. as Successor in Interest for Manufacturers & Traders Trust Company, and Plaintiffs' Opposition thereto, it is ORDERED, that the Motion be, and hereby is, Denied, and Defendant Manufacturer's & Traders Trust Company shall file an Answer to Plaintiffs' Complaint within twenty (20) days of the date of service of this Order. BY THE COURT: J. Distribution: v&oseph K. Goldberg, Esq., 2080 Linglestown Road, Harrisburg, PA 17110 ✓Alina M. Dusharm, Esq., 8 N. Baltimore Street, Dillsburg, PA 17019 mean Ronan, Esq., Manufacturers and Traders Trust Company, One M&T Plaza, Buffalo, NY 14203 0 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA DANIEL C. HILL and JENNIFER L. HILLa moo i- Plaintiffs, M V. CIVIL ACTION -LAW No. 12-5355 C, =-r- ii{. KENNEDY RV& POWERSPORTS, w INC., and as successor for MANUFACTURERS & TRADERS TRUST COMPANY, Defendants. Jury Trial Demanded NOTICE You have been sued in court. If you wish to defend yourself against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association, 34 S.Bedford Street, Carlisle,Pennsylvania Telephone Number 717-249-3166 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA DANIEL C. HILL and JENNIFER L. HILL Plaintiffs, V. CIVIL ACTION -LAW No. 12-5355 KENNEDY RV & POWERSPORTS, INC.,and MANUFACTURERS & TRADERS TRUST COMPANY, Defendants. Jury Trial Demanded ANSWER WITH NEW MATTER AND NOW comes the Defendant, MANUFACTURERS & TRADERS TRUST. COMPANY, by and through its attorney, Alina M. Dusharm, Esq., and the firm STONE, DUNCAN, & LINSENBACH, P.C., and files this Answer to the Complaint with New Matter and in support thereof avers as follows: PARTIES AND VENUE 1. Denied.After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 2. Admitted. 3. Admitted. 2 4. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 5. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 6. Admitted. 7. The averments in paragraph 7 are legal conclusions to which no responsive pleading is required. FACTS AND BACKGROUND 8. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 9. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 10. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 11. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 3 12. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 13. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 14. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 15. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 16. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 17. Admitted in part. Admitted that the Plaintiffs purchased the Freedom Spirit for $10,608.50 along with a warranty, and installation of a hitch and brake control to total $12,593.68. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the balance of the averments set forth in the corresponding paragraph. 18. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 4 19. Denied as stated. Plaintiff purchased the Freedom Spirit from Defendant Kennedy, and Defendant provided financing for the transaction. 20. Denied as stated. Plaintiff purchased the Freedom Spirit from Defendant Kennedy, and Defendant provided financing for the transaction. 21. The averments in paragraph 21 are legal conclusions to which no responsive pleading is required. To the extent that an answer is necessary,the allegations are denied. 22. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 23. Denied. After reasonable investigation,Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 24. Denied.After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 25. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 26. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 5 27. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 28. Denied. After reasonable investigation,.Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 29. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 30. Denied. After reasonable investigation,Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 31. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 32. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 33. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 6 34. Denied. After reasonable investigation,Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 35. Denied. After reasonable investigation,Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 36. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 37. Denied. After reasonable investigation,Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. COUNT Violation of the Consumer Protection Law 38. The answers set forth in paragraphs 1-37 are incorporated by reference as if fully set forth herein. 39. The averments in paragraph 39 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 40. The averments in paragraph 40 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 41. The averments in paragraph 41 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 7 42. The averments in paragraph 42 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. COUNT H Fraud (Rescission) 43. The answers set forth in paragraphs 1-42 are incorporated by reference as if fully set forth herein. 44. The averments in paragraph 44 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 45. The averments in paragraph 45 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 46. The averments in paragraph 46 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 47. The averments in paragraph 47 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. 48. The averments in paragraph 48 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. COUNT III Fraud (Damages) 49. The answers set forth in paragraphs 1-48 are incorporated by reference as if fully set forth herein. 50. The averments in paragraph 50 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 8 51. The averments in paragraph 51 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 52. The averments in paragraph 52 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 53. The averments in paragraph 53 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 54. The averments in paragraph 54 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. 55. The averments in paragraph 55 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 56. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 57. The averments in paragraph 57 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. COUNT IV Revocation of Acceptance 58. The answers set forth in paragraphs 1-57 are incorporated by reference as if fully set forth herein. 59. The averments in paragraph 59 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 60. The averments in paragraph 60 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 9 61. The averments in paragraph 61 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. COUNT V Negligent Misrepresentation 62. The answers set forth in paragraphs 1-61 are incorporated by reference as if fully set forth herein. 63. The averments in paragraph 63 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. 64. The averments in paragraph 64 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. 65. The averments in paragraph 65 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required, the averment is denied. 66. Denied. After reasonable investigation,Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 67. The averments in paragraph 67 are legal conclusions to which no responsive pleading is required. To the extent that an answer is required,the averment is denied. WHEREFORE,Defendant, Manufacturers&Traders Trust Company, respectfully requests that the complaint be denied and dismissed,judgment be entered against Plaintiff. NEW MATTER AND COUNTERCLAIM 68. The answers set forth in paragraphs 1-67 are incorporated by reference as if fully set forth herein. 10 69. The alleged damages to the Freedom Spirit were caused entirely by Plaintiffs own actions, either in whole or in part, and the claims are barred by the doctrine of contributory negligence. 70. The alleged damages to the Freedom Spirit were caused entirely by Plaintiffs own actions, either in whole or in part, and the claims are barred by the doctrine of comparative negligence. 71. The acts or admissions of Plaintiffs are intervening or superseding causes of the damage to the RV. 72. Upon information and belief, Plaintiffs have damaged the Freedom Spirit trailer by their own actions beyond the damage alleged to have been caused in the Complaint and Defendant has the right to offset damages by any loss of value to the RV. 73. Further,upon information and belief,this excess damage to the trailer caused by the Plaintiffs puts the Freedom Spirit in a condition that is not substantially the same at the time of sale. Plaintiffs cannot revoke acceptance or cause rescission of a contract after causing damage to the trailer on their own accord. 74. Upon information and belief, Plaintiffs have received a check from their insurance company for the cost of repair to the damage to the Freedom Spirit. Plaintiffs engage in fraud by asking for the full contract price to be returned to them in addition to the payment for the damage done to the trailer from their insurance. 75. The insurance company's estimate and willingness to pay for the damage to the trailer is evidence that the damage occurred after the time of sale when the Freedom Spirit was in the possession of Plaintiffs. Plaintiff's engage in fraud by alleging consumer protection 11 violations, contract remedies, and negligence,while engaging in this lawsuit and attempting to receive excessive damages after causing damage to their trailer through their own actions. 76. Plaintiffs' claims were not brought until a year after the sale of the Freedom Spirit,with more than adequate time to notice the damage to the RV and with a high probability that the damage was in fact a result of their own actions in not properly winterizing the RV and in causing excessive damage to "investigate"the damage to the trailer. Therefore, Plaintiffs' claims are barred by the doctrine of Laches. 77. Plaintiffs' claims are barred by the doctrine of Unclean Hands. Upon Information and Belief,Defendant Kennedy RV have offered to cover the repairs to the RV in conjunction with the insurance estimate, including the repairs needed to the floor and walls after Plaintiffs destroyed them in search of mold. Plaintiffs have acted in bad faith with respect to damage done to their trailer. 78. Plaintiffs' claims are barred by the applicable standard for accord and satisfaction. 79. Plaintiffs' claims are barred because they have received adequate payment for the damage to their RV. 80. Plaintiffs' claims are barred in whole or in part by their failure to mitigate their damages. COUNT Breach of Contract 81. The answers set forth in paragraphs 1-80 are incorporated by reference as if fully set forth herein. 82. Plaintiff and Defendants entered into a valid, binding,written installment sale contract for the purchase and financing of a recreational vehicle. See Attached Exhibit"A" 12 83. Under the terms of the contract,Plaintiff acknowledged delivery of the RV in good condition, after examination and acceptance. 84. Under paragraph 4 of the contract, the Defendants made "No warranty of merchantability concerning [the] property and no warranty that [the] property is fit for a particular purpose." 85. Defendants had an expectation that all terms of the contract would be followed. 86. Upon information and belief, under the terms of the installment contract, Plaintiff breached the contract by the following ways: a. Failing to keep the RV in good condition; b. Failing to immediately notify the Defendants in writing if the property is damaged or destroyed; c. Abandoning or disposing of the RV without first obtaining written consent; d. Allowing the RV to suffer substantial damage or substantial decline in value. 87. As a result of the numerous violations of the agreement, Plaintiff is in default. 88. As a direct result of Plaintiff's material breach of the agreement, Defendant has suffered damages in the amount of the outstanding pay off amount for the installment contract, and reasonable attorney fees and court costs. 89. As a direct result of Plaintiff's default, Defendants may seek accelerated damages, including late charges of 2%per month,under section 19 of the contract. 90. As a result of Plaintiff abandoning their recreational vehicle at the property of Defendant Kennedy RV,Defendant also seeks expenses for storing, repairing,preparing for sale, and selling the vehicle, under section 20(e) of the contract. 13 WHEREFORE, Defendant; Manufacturers & Traders Trust Company, respectfully asks the court to deny the Plaintiffs claims, and enter judgment in favor of the Defendant. The Defendant respectfully requests that any legal or equitable relief be granted to Defendant as it is entitled. STONE,DUNCAN, & LINSENBACH,PC M. DUSH ,E I.D. #309861 JASON B. DUNCA , ESQUIRE I.D. # 87946 Attorneys for Defendant 8 N. Baltimore St. Dillsburg, PA 17019 Telephone: 717-432-2089 Fax: 717-432-0158 14 CERTIFICATE OF SERVICE I, do certify that I have served a copy of Defendant's Answer with New Matter upon the following by first class mail: Joseph K. Goldberg,Esq. 2080 Linglestown Rd., Suite 106 Harrisburg,PA 17110 Attorney for Plaintiff DATE: 11 STONE,DUNCAN, & LINSENBACH,PC — /71 - 4VI AL A . DUSH &OUIRLt- I.D. #309861 JASON B. DUNCAN,ESQUIRE I.D. # 87946 Attorneys for Defendants 8 N. Baltimore St. Dillsburg,PA 17019 Telephone: 717-432-2089 Fax: 717-432-0158 16 VEFtIFICA'TION The above Answer with New Matter and Counter Claims is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation of this matter. The language of the Answer with New Matter is that of counsel and not of me. l have read the Answer and to the extent that the Answer is based upon information which 1 have given to my counsel, it is true and correct to the best of my knowledge,information and belief. To the extent that the content of the Answer is that of counsel, t have relied upon counsel in making this verification. hereby verify that the facts set forth in the aforesaid Answer with New Matter are made subject to the penalties of IS Pa.C.S. §4904 relating to unsworn falsification to authorities. DATE: By: 1 lS i EXHIBIT A . .6ANK , SIMPLE INTEREST 4 rLVANIA ..,jfOR VEHICLE INSTALLMENT SALE CONTRACT, Dated Fi ii�a{,, y 13, r,, Account# ANNUAL FINANCE Amount Financed Total of Payments Total Price PERCENTAGE RATE CHARGE The amount of credit provided The amount you will have paid after you The total cost of your purchase on The cost of your credit as The dollar amount the to you or on your behalf. have made all scheduled payments.- credit,including your downpayment a yearly rate. credit will cost you. of$ tir' % I `p f t l p} $ /:: , r F f r; T $ $ ` fx' "�p t 4t' F P Your Payment Schedule will be: No.of Payments Amount of Payments When Payments Are Due Security: You are giving a security interest in the motor vehicle being I,� .r"> $ /±�; , `} Monthly,beginning ,t)t purchased." $ " .t R Prepayment: If you payoff early,you will not have to pay a penalty. Filing Fees:$ Late Charge:If.a payment is late,you will be charged 2%of the portion of the payment which is late for each month,or part of a month greater than 10 days,-that it remains unpaid. See below and any other.Contract documents for any additional information about.nonpayment,default,any required repayment in.full before the scheduled date and prepayment refunds and penalties. a means estimate In this Contract, IF YOU DO NOT MEET YOUR CONTRACT we are °t- r OBLIGATIONS,YOU MAY LOSE THE MOTOR the SELLER �dc" L) f.a �_ r'r f,� ?, `sr s,# �r? M �;�t(tt,�` � L VEHICLE AND PROPERTY THAT YOU Name Address Zip Code ;f BOUGHT;3?ONEY ON DEPOSIT WITH THE ASSIGNEE. You are n., f Tf=, 7 f m6This Contract is between Seller and Buyer.All the BUYER(S°) 'I#e ! £f �k f l t r k f () �T �ri .:�'4'$ ( f f r, ") h/ i!l !' i 1, , disclosures have been made by Seller.Seller Name(s) Address(es) "k Zip Code(s) intends to assign this Contract to the Assignee. If there is more.than one Buyer,each promises,separately and together,to pay all sums due us and to perform-all agreements in this Contract Itemization of Amount Financed. Cash Price TRADE-IN: You have traded in ?F $ the following vehicle: s ' ;�'��. Cash.Downpayment Year and Make Description If a balance is still-owing on the vehicle you have traded in,the Seller will payoff this amount on your behalf.You warrant and represent to us Trade-in that any trade-in is free from lien,claim,encumbrance or security interest,except as shown in the"Itemization of Amoont Financed"as the Value of Trade-In "Lien Payoff." PROPERTY INSURANCE:You may choose the person through whom insurance is obtained against loss or damage to the Vehicle and against Lien Payoff to: `~ t liability arising out of:use or ownership of the Vehicle.In this Contract,you are promising to insure the Vehicle and keep it insured. CREDIT INSURANCE IS NOT REQUIRED:Credit Life Insurance and Credit Disability Insurance are not required to obtain credit and will not be $ provided unless you sign below and agree to pay the additional cost(s): Your insurance certificate or policy will tell you the MAXIMUM amount Unpaid Cash Price Balance , of insurance available.All insurance purchased will be for the term of the credit.We may receive financial benefit from your purchase.of $ Credit Insurance. To Credit Insurance Company By signing,you select Single Credit Life What is your By signing,you select Single Credit Disability What is your $ Insurance,which costs$ age? Years insurance,which costs$ age? Years To Public.Officials for: License,Tags and Registration # Signature of Buyer to be insured for Single Credit Life Insurance Signature of Buyerto be insured for Single Credit Disability Insurance $ By signing,you both select Joint What are By signing,you both select Joint Credit Whatare .Percentage Lien Fee E Credit Life Insurance,which costs$ your ages? Disability Insurance,which costs$ your ages? to be $ s insured To For .rs�'. ^:�• 2. 2 0� s To t'v to abili Signatures of both Buyers to be insured for Joint Credit Life Insurance Signatures of both Buyers to be insured for Joint Credit Dist Ins. ° For [ ] If checked,the cost of the insurance set forth above is estimated.You will be notified of any adjustment in the cost of the insurance at a To_1 the time your insurance policy is sent to you. $ ,� R„f . Insurer: For„r",�,'. j;'f t`°',fir, VEHICLE:You have agreed to purchase,under the terms of this Contract,the following motor vehicle and its extra equipment,which is called To I y"T P:­4 sr T the"Vehicle"in this Contract. $ ' .ff}3,{v,r r, N/U Year and Make Series Bodv Style No. Truck Ton Capacity Serial Number For":,,(,., Optional Debt Cancellation(GAP) Equipped _A.T. _P.S. _AM-FM Stereo _5 Spd. Other Amount Financed with —A.C. _P.W. —AM-FM Tape _Vinyl Top ,-;, $ Guaranteed auto protection(GAP) $ (want guaranteed auto protection Signature of Buyer SERVICE CONTRACT OR WARRANTY AGREEMENT IS VOLUNTARY AND NOT REQUIRED AS A CONDITION OF THE CREDIT.The service contract or warranty agreement will not be provided unless you sign the separate agreement with the third party provider,who is not the Seller named above,and agree to pay the additional charge.This section does not apply to any warranty that you may receive for which there is not a separate charge. ASSIGNEE:We intend to assign this Contract and Security Agreement to the Assignee named in this provision. If the Assignee assigns this Contract to a subsequent assignee,the term "Assignee" also refers to such subsequent assignee. After the Assignment, all rights and benefits of the Seller in this Contract and in the Security Agreement shall belong to and be enforceable by the Assignee.The Assignee's name and address is: M&T BANK Installment Loan Operations One Fountain Plaza, P.O. Box 4005 Buffalo, New York 14240 CO-SIGNER:Any person signing the Co-Signer's Agreement below promises separately and together with all Co-Signer(s)and Buyer(s),to pay all sums due and to perform all agreements in this Contract.Co-Signer will not be an Owner of the Vehicle. CO-OWNER:Any person signing the Co-Owner's Security Agreement below gives us a security interest in the Vehicle and agrees separately and together with all Co-Owner(s)and Buyer(s), to perform all agreements in the Security Agreement and all other parts of this Contract except the"Promise to Pay"section. TERMS:The terms shown in the boxes above are part of this Contract. PROMISE TO PAY:You agree to pay us the Total Sale Price for the Vehicle by making the Cash unpaid under this Contract against any of your money on deposit with Assignee. This Downpayment and assigning the Trade-In,if shown above,on or before the date of this Contract, includes any money which is now or may in the future be deposited with Assignee by you. and paying us the Amount Financed plus Finance Charge.You promise to make payments in Assignee may do this without any prior notice to you. accordance with the Payment Schedule.You promise to make payments on or before the same ADDITIONAL DISCLOSURES AND TERMS AND CONDITIONS: day of each month as the first payment due date.You agree to pay all other amounts which may Disclosures:Before signing this Contract,be sure that you receive and read the Disclosure become due under the terms of this Contract You agree to pay the Seller or Assignee costs of to Buyer. suit.You also agree to pay reasonable attorneys'fees if Seller or Assignee hires an attorney to collect amounts due under this Contract or to protect or get possession of the Vehicle,as Terms and Conditions: Before signing this Contract, be sure you receive and read the permitted by applicable law.You agree to make payments at the place or to send payments to following,which are additional pages to and part of this Contract: the address which the Assignee most recently specifies in the written notice to you. ^ This Contract continues on the reverse side. SECURITY AGREEMENT:To secure the payment of all sums due and the performance of all ° Debt Cancellation (Guaranteed Auto Protection) separate disclosure and agreement, if required obligations under this Contract,you give a security interest in the Vehicle,in all purchased as part of this Contract and disclosed above. parts(called"accessions")attached to the Vehicle at any later time,and in any proceeds of THIS CONTRACT CONTINUES ON THE REVERSE SIDE. YOU ARE OBLIGATED TO ALL THE the Vehicle,including insurance proceeds.The Assignee may set-off any amounts due and TERMS OF THE CONTRACT WHICH APPEAR ON THE FRONT AND REVERSE SIDES. The Annual Percentage Rate may be negotiable with the Seller. The Seller may assign this contract and retain its right to receive a part of the Finance Charge. By signing below,we agree to sell the Vehicle to you under the terms of this Contract NOTICE TO BUYER—DO NOT SIGN THIS CONTRACT IN BLANK.YOU ARE ENTITLED TO AN EXACT COPY OF THE;CONTRACT YOU SIGN. KEEP IT TO =? PROTECT YOUR LEGAL RIGHTS: SELLER , e t r' `i:. !' i 5 BUYER "r (SEAL) s Date BY: ! BUYER Gt `r (SEAL) : Date Date CO-SIGNER:YOU SHOULD READ THE NOTICE TO CO-SIGNER,WHICH HAS BEEN GIVEN TO YOU ON A SEPARATE DOCUMENT,BEFORE SIGNING THE CO-SIGNER'S AGREEMENT. CO-SIGNER'S AGREEMENT:You,the person(or persons)signing below as"Co-Signer;'promise to pay to us all sums due on this Contract and to perform all agreements in this Contract. You intend to be legally bound by all the terms of this Contract,separately and together,with the Buyer.You are making this promise to induce us to make this Contract with the Buyer, even though we will use the proceeds only for the Buyer's benefit.You agree to pay even though we may not have made any prior demand for payment on the Buyer or exercised our security interest.You also acknowledge receiving a completed copy of this Contract. (SEAL► Co-Signer's Signature Address Date (SEAL) Co-Signer's Signature Address Date CO-OWNER'S SECURITY AGREEMENT:You,the person signing below as"Co-Owner,"together with the Buyer or otherwise being all of the Owners of the Vehicle,give us a security interest in the Vehicle identified above.You agree to be bound by the terms of the Security Agreement and all other parts of this Contract except the"Promise To Pay"section.You are giving us the security interest to induce us to make this Contract with the Buyer,and to secure the payment by the Buyer of all sums due on this Contract.You will not be responsible for any deficiency which might be due after repossession and sale of the Vehicle. (SEAL) Co-Owner's Signature Address Date BUYER, CO-SIGNER AND CO-OWNER, IF APPLICABLE, ACKNOWLEDGE RECEIPT OF A COMPLETED COPY OF THIS CONTRACT AT THE TIME OF SIGNING, INCLUDING THE ADDITIONAL DISCLOSURES AND PAGES LISTED IN THE SECTION CALLED ADDITIONAL DISCLOSURES, TERMS AND CONDITIONS. BUYER BUYER CO-SIGNER CO-SIGNER OR CO-OWNER No Cooling Off Period State law does not provide for a "cooling off" or other cancellation period for this Contract. Therefore,you cannot later cancel this Contract simply because you change your mind or wish you had acquired a different item. After you sign above, you may only cancel this Contract for legally valid reasons. Form MTRSMVLFDCPA(PASMCSLC•1) 2/25/2009 NOTICE:SEE REVERSE SIDE FOR IMPORTANT INFORMATION. ®InnA w„n,,..vi oAnirn wwTC noirMAI Tn RAPT rAAIAOV o,,,,,..•,r,,..,. nines P. ADDITIONAL TERMS AND CONDITIONS I.Meaning of some words. In this Contract,(a)"you"and"your"mean anyone signing this Contract or of any other agreement with us existing now or coming into existence in the Contract other than the Seller,whether as a Buyer,Co-Signer or Co-Owner, (b) "M&T Bank" future, (c) any Default occurs for purposes of any other agreement between you and us means M&T Bank,One Fountain Plaza, Buffalo, New York 14203, (c) "we," "us," "our" and existing now or coming into existence in the future, (d) you die or become incompetent or "'ours"initially mean the Seller but,after the Seller transfers its rights under this Contract,Will insolvent, (e) any proceeding under any bankruptcy law is started by or against you, (f) mean anyone having those rights,and (d)"your property"means the"Vehicle"described at anyone starts any legal proceeding to take your property or any other property belonging to the beginning of this Contract,including all equipment,accessories,parts and tires that are or you now or acquired by you in the future to pay any indebtedness existing now or coming into become part of it by being installed in or affixed to it and all proceeds. existence in the future,(g)any tax or other involuntary lien is filed against your property or 2. Purchase. Everyone signing this"Contract as a Buyer is buying from the Seller and any other property belonging to you now or acquired by you in the future,(h)your property is acknowledges delivery in good condition,after examination and acceptance of the Vehicle lost,stolen or destroyed or suffers substantial damage or a substantial decline in value,or(i) described at the beginning of this Contract,and has chosen to buy it on credit rather than we discover that in this Contract,any other agreement with us existing now or coming into buying it for cash by paying the cash price(including services,service contracts and sales existence in the future or any application you have made or make to us for credit you made taxes)shown in the"Itemization of Amount Financed." any false or misleading statement about an important matter. 3. Basis of Disclosures. The amounts disclosed on the front for the Finance Charge, 19.Our Rights if you are in Default of this Contract.If you are in Default of this Contract, Payment Schedule and related disclosures were based on the assumption that you will pay all we may enforce our rights according to law.We may also do the things specifically mentioned payments on their due dates. Late payment could cause the Finance Charge amount to in this Contract.We may do one of these things and at the same time or later do another. increase. Some of the things we may do are the following: 4. Disclaimer of warranties. Unless the Seller gives a written warranty concerning your a.Acceleration:We can demand that you pay to us the entire unpaid balance owing on property or unless you and the Seller,enter into a written service contract concerning your this Contract and all unpaid Finance Charges and other money due.You agree that you will pay this money to us in one single payment immediately upon receiving our demand. property,the Seller(a)makes no warranty concerning your property or any other matter, except that.the motor vehicle described at the beginning of this Contract is that being b.Repossession:We can repossess the Vehicle,unless prohibited by law.We can n) this bought under this Contract, and (b) specifically, makes NO WARRANTY OF ourselves,have a qualified person do it for a or have a government official(by replevin)do y MERCHANTABILITY CONCERNING YOUR PROPERTY AND NO WARRANTY THAT YOUR for r You agree that we can peaceably come on to t your property to do this. as may take any PROPERTY IS FIT FOR`A PARTICULAR PURPOSE, UNLESS WE HAVE GIVEN YOU A other things found o the Vehicle,but will return these things to you if you ask. If you want SEPARATE WRITTEN WARRANTY OR UNLESS SELLER ENTERS INTO A SERVICE CONTRACT these things back,you may reclaim them within thirty n t days is our mailing you a Notice y WITH BUYER WITHIN 90 DAYS FROM THE DATE OF THIS CONTRACT. Repossession.If you do not reclaim the things found in the Vehicle within that time,we may dispose of those things in the same manner as the Motor Vehicle.You agree that we may use 5.Obtaining insurance.You can obtain any insurance required by us in connection with your license plates in repossessing the Vehicle and taking it to a place for storage. your property from or through the person of your choice, but it must be provided by a c.Voluntary Delivery:We can ask you to give us the Vehicle at a reasonably convenient company acceptable to us. We will be reasonable in deciding whether the insurance place.You agree to give us the Vehicle if we ask. company is acceptable to us. d.Delay in Enforcement:We can delay enforcing our rights under this Contract without 6.Window sticker.If your Vehicle is not a motorcycle and is described at the beginning of losing any rights. this Contract as used,the following notice applies to this Contract: 20. Some things you should know if we repossess the Vehicle. If we repossess without The information you see on the window form for this Vehicle is part of this Contract. using a government official(by replevin): Information on the window form overrides any contrary provisions in the Contract of Sale. a.Notice:We will send you a Notice of Repossession to your last address we know about. 7. Property insurance. In connection with this Contract you may be required to keep your This Notice will tell you how to buy back(redeem)the Vehicle.You will NOT have the right to property fully covered against substantial risk of damage,destruction or theft. If you obtain reinstate this Contract.This means you will have to pay the total balance this Contract and such required property insurance through the Seller or M&T Bank, it will cost the amount other amounts due.You may not get the Vehicle back by paying delinquent t installments.This shown in the"Itemization of Amount Financed."If you do not obtain it through the Seller or Notice b. will tell you other information required bylaw. M&T Bank,it must be provided under a policy acceptable to us,and you must provide us with Redemptioni You have the right to buy back(redeem)the Vehicle within 15 days of the proof of it,acceptable to us. mailing of the Notice and at any later time before we sell the Vehicle. If you redeem the Vehicle, we will deliver the Vehicle to you at a place as provided by law, as soon as is 8.Late Charges.If any portion of any installment payable under this Contract is overdue for reasonably possible,but in not more than ten(10)business days of our receipt of the funds more than 10 days,you must pay a late charge of 2%per month on the unpaid amount of the required.If you do not redeem,you give up all claim to the Vehicle. installment.Such a late charge may be imposed only one time for each late payment. c.Sale:If you don't redeem,we will sell the Vehicle.The money received at sale will be 9.Summary Notice regarding prepayment and reinstatement.You have the right to prepay used to pay costs and expenses you owe,and then to pay the amount you owe on this .this Contract in whole or in part at any time without penalty. If your property has been Contract. repossessed,you may have the right under the law to receive back your property.These rights d.Surplus or Deficiency:If there is money left,we will pay it to the Buyer.If there is not are further explained in Section 20 of this Contract. enough money from the sale to pay what you owe,Buyer and Co-Signer agree to pay what is 10.Additional information. You should refer to the rest of this Contract for additional still owed to us. information about nonpayment,default,our right to declare all amounts payable under this e.Expenses:You agree to pay the costs of repossessing,storing,repairing,preparing for Contract but not yet paid immediately due,prepayment refunds and penalties. sale and selling the Vehicle may allowed law.These costs will only be due if: 1.Default exceeds fifteen(15))days at the time of repossession; 11.Prepayment.If you prepay this Contract in full,you will not have to pay a penalty. 2.The amount of costs are actual,necessary and reasonable;and 12. Financing statements. Whenever and wherever we think it necessary,we can file a 3.We can prove the costs were paid. financing statement signed only by us and describing our security interest in your property. 21.Collection costs.If we hire an attorney who is not a salaried employee of ours to bring a When we notify you to do so,you must immediately pay us any tax,fee or charge we pay for lawsuit to collect any amount payable under this Contract but not yet paid,you must pay us filing the financing statement. reasonable attorneys'fees and all court costs we pay for the lawsuit, as permitted by 13.Additional promises.Until all amounts payable under this Contract are paid,you must(a) applicable law.The attorneys'fee will be 15%of the amount payable under this Contract keep your property in good condition, (b) promptly pay any tax, fee or charge on the unless a court sets a smaller fee. purchase,ownership or use of your property,(c)sign any document we believe necessary to 22.Notices and change of address.Any notice we send you concerning this Contract or your protect our.security interest in your property,(d)have our security interest in your property property will be sent to your current mailing address shown in our records concerning this shown on any certificate of title issued for it,(e)allow us to inspect your property at any time, Contract.We can send it by regular mail.Any notice you send or deliver to us concerning this (f) immediately notify us in writing if your property is lost, stolen, damaged or destroyed, Contract must be in writing and be sent or delivered to M&T Bank, Installment Loan (g)not sell,trade,lease,rent,give away,abandon or in any other way dispose of your property Operations, One Fountain Plaza, P.O. Box 4005, Buffalo, New York 14240, or to any other without first obtaining our consent in writing,(h)not use your property,or allow it to be used, address we specify.If your address or any address where your property will be kept changes illegally or in any way that might result in any insurance on it not being paid and(i)not allow before all amounts payable under this Contract are paid, you must promptly notify us in anyone other than you or us to have any claim to your property or to be named on any writing of the new address. certificate of title issued for it. 23.If 2 or more persons sign this Contract as Buyer,Co-Signer or Co-Owner.If 2 or more 14. Risk of loss.You will be bound.by this Contract even if your property is lost,stolen, persons sign this Contract as a Buyer,Co-Signer or Co-Owner,all of them will be,individually damaged or destroyed. and together,liable under it,except that the Co-Owner will not be bound by the"Promise to 15.Property insurance. In addition to keeping your property covered by the motor vehicle Pay" section. Except to the extent required by applicable law,we can send or deliver any insurance required by Section 7, you must keep it fully covered by insurance against notice concerning it to any of them signing it as a Buyer,and the notice will be effective for all substantial risk of damage,destruction or theft until all amounts payable under this Contract of them. are paid. Without limiting the preceding sentence, you must keep it fully covered by 24.Guarantee. Anyone signing this Contract as a Co-Signer, unconditionally guarantees and comprehensive and collision insurance.The insurance must be provided under a policy becomes surety for the payment of all amounts payable under it and will be bound by all its acceptable to us.Without limiting the preceding sentence,the insurance(a)cannot be subject provisions. to a deductible amount greater than $500.00, (b) cannot be canceled by the company 25.Giving up of rights by you.To the extent permitted by applicable law,you give up any providing it without the company first giving us at least 10 days notice in writing and(c)must right to require that we(a)demand that you pay any amount payable under this Contract,(b) be payable to us to the extent needed to pay all amounts payable under this Contract but not notify you if any amount payable under this Contract is not paid by the date it becomes due or yet paid,even if it is your fault that your property is lost,stolen,damaged or destroyed.You (c)obtain a certificate stating that any amount payable under this Contract was not paid by ..—__ _...,. —W,.,,. -.—ui una,uuuall rraa uur PdIU ny —a—t;atr,cprauie ru us. in the event of any loss or the date it became due. damage to your property,you will immediately notify us in writing and file a proof of loss with P6,No notice or loss of rights.We can exercise any right against any person or property the insurance company. without losing any right against you,your property or any other property belonging to you now (a)Our Right to File Proof of Loss:In the event of any loss or damage to the Vehicle,if you or acquired by you in the future.To the extent permitted by applicable law,we can exercise fail or refuse to file a claim or proof of loss with the insurance company,you agree that the the right without notifying you except as provided in Section 20,with respect to notices of Seller,Assignee,any subsequent assignee,or any authorized employee of any of them("we') sale,repossession and redemption.We can do any of the following without notifying you or may file a proof of loss with the insurance company,in your name and acting as your agent, losing any right against you,your property or any other property belonging to you now or with respect to the insured claim.You agree that you do not have the right to,and will not, acquired by you in the future: (a)accept any check or other order marked"paid in full"or revoke the power you have given us to file a proof of loss.You agree that we may exercise this with similar language as a payment under this Contract, (b) give additional time for the power for our benefit and not for your benefit,except as provided in this Contract and by law. payment of any amount payable under this Contract,regardless of the number of times we (b)Our Right to Endorse Insurance Checks:You agree that the Seller, Assignee, any previously did so and regardless of the length of any additional time we previously gave,(c) subsequent assignee,or an authorized employee of any of them ("we") may endorse your give up,fail to exercise or delay exercising any right against any person or property,(d)fail to name,acting as your agent,to any check,draft or other instrument we receive in payment of protect any interest in any property,whether by failing to maintain any insurance,by failing to an insured loss or return of insurance premiums.You agree that you do not have the right to, file any financing statement,by failing to be named on any certificate of title or in any other and will not revoke the power you have given us to make your endorsement.You agree that way,or(e)change any provision of this Contract if anyone signing this Contract as a Buyer we may exercise this power for our benefit and not for your benefit,except as provided in this agrees. For example,M&T Bank can sue you under this Contract whether or not it(a)sues Contract and by law. anyone else,(b)repossesses and sells your property,or(c)uses any money that has been or is (c)Use of Proceeds:We may apply any insurance proceeds we receive to repair or replace deposited with it by you or anyone else to pay any amount payable under this Contract,but the Vehicle if,in our opinion,it is economically feasible and you are not then in default of this not yet paid. Contract.Otherwise,we will apply the insurance proceeds to reduce the unpaid balance due Y7,Changes and giving up of rights by us.No change in this Contract can be made except in us.After the balance due us is paid,any excess will belong to you. a writing signed by us.We can correct any obvious error in our copy of this Contract.No right 16.Our maintenance of insurance.We can,but we will not have to,maintain any insurance against you,your property or any other property belonging to you now or acquired by you in required by this Contract in connection with your property if you do not maintain it. If we the future can be given up by us except in a writing signed by us. decide to maintain any such insurance it may be written in the amount that you then owe us 28.Claim for failure to obtain insurance.If any amount is paid under this Contract for any under this Contract. Such insurance may not satisfy your obligations under state financial insurance and the insurance is not obtained for any reason,your only claim will be for a responsibility laws and may not provide coverage against bodily injury or property damage refund of that amount. liability.The premiums for such insurance may be higher than the premiums for insurance that you could obtain on your own.You must pay us any amount we pay for the insurance and complete 29.Entire agreement.This Contract is the final and agreement between you and the Finance Charge an the portion of that amount not yet paid by you as though that portion were Seller concerning your property and the credit d transaction covered by this Contract.Any om statement concerning your property made by the Seller or any employee of the Seller is not a notice that you have the option of(a) paying that amount and the Finance a Charge within 10 an amount on which Finance Charge was payable under this Contract will send you a warranty and is not part of this Contract,Also,any statement concerning the credit transaction days alter the date we send you the notice,(b)paying that amount and the Finance Charge in made by the Seller or any employee of the Seller is not part of this Contract. monthly installments each of which,or each of which except the last,will be equal in amount, 30.Conflicts. If any part of this Contract conflicts with applicable law,the law will control, the last of which,if not equal in amount to the others,will be of a smaller amount and the and this Contract will be considered changed to the extent necessary to comply with it. number of which will be equal to the number of installments that are to become due under 31. Continued effectiveness. If any part of this Contract is determined by a court to be the Payment Schedule after the date we send you the notice or(c)paying that amount and invalid,the rest will remain in effect. the Finance Charge in any other way we offer.if you do not pay that amount and the Finance 32. What law applies.Any legal question concerning this Contract will be decided in Charge as provided in(a)of the preceding sentence,you must pay them as provided in(b)or accordance with the law of the Commonwealth of Pennsylvania and,to the extent applicable, (c)of that sentence, federal law. 17.Service contracts.In the event that you are entitled to make any claim under any service NOTICE contract applicable to your property,you will immediately notify us in writing and file a claim with the service company.We may file such a claim on your behalf if you fail or refuse to do ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO so.We may endorse your name to any check,draft or other instrument we receive in payment ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT of any claim under a service contract applicable to your property or for refund of any AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT unearned charge or premium. HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY 18.Default.The occurrence of any of the following events is a Default under this Contract:(a) THE DEBTOR SNAIL NOT EXCEED AMOUNTS PAID BY THE DEBTOR any amount payable under this Contract or any other indebtedness from you to us existing now or coming into existence in the future,is not paid by the date it becomes due,even HEREUNDER. though a late charge would not be imposed until later, (b) you violate any provision of this NOTICE OF PROPOSED CREDIT INSURANCE The signer(s) of this Contract hereby take(s) notice that Group Credit Life Insurance coverage or Group Credit Accident and Disability Insurance coverage will be applicable to this Contract if so marked on the front of this Contract,and each such type of coverage will be written by the insurance company named.This insurance,subject to acceptance by the insurer,covers only the person or persons signing the request for such insurance,The amount of charge is indicated for each type of Credit Insurance to be purchased.The term of insurance will commence as of the date the indebtedness is incurred and will expire on the original scheduled maturity date of the indebtedness.Subject to acceptance by the insurer and within 30 days,there will be delivered to the insured debtor(s)a certificate of insurance more fully describing the insurance. In the event of prepayment of the indebtedness,a refund of insurance charges will be made when due. THE PROVISION BELOW IS NOT PART OF THE PENNSYLVANIA MOTOR VEHICLE INSTALLMENT SALE CONTRACT BETWEEN THE BUYER AND SELLER. ASSIGNMENT The Seller agrees to be bound by all provisions of this Contract.Also,for value received and intending to be legally bound hereby,the Seller(a)assigns this Contract to M&T Credit Corporation pursuant to and subject to all terms and conditions of the dealer agreement currently in effect between the Seller and M&T Credit Corporation and(b)makes with respect to this Contract all warranties and representations set forth in such dealer agreement. Name of Seller Signature and title of person signing for Seller Date Farm MTRSMVLFOCPA(PAS23DCSLC•1)2/25/2009 D 2004 Walters Kluwer Financial Services-BANCO • Joseph K. Goldberg,Esquire 2080 Linglestown Road, Suite 106 Harrisburg,PA 17110 (717) 703-3600 jgoldberg@ssbc-law.com PA ID#46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA DANIEL C. HILL and JENNIFER L. • HILL, : • CIVIL TERM (LAW) Plaintiffs • • v. • NO. 12-5355 • KENNEDY RV & POWERSPORTS, • INC., and MANUFACTURERS & • TRADERS TRUST COMPANY, • JURY TRIAL DEMANDED • • Defendants • C7 e=' • -c- n C0 NOTICE TO PLEAD ; _ gym:, C.,0 o`er r-- = cp TO: Manufacturers & Traders Trust Company 73'•° =: c/o Alina M. Dusharm, Esquire v You are hereby notified to file a written response to the enclosed New Matt-r within twenty (20) days from service hereof or a judgment may be entered against ou. _!`'!"" dberg, quire E ttorney for Plaintiffs • • Joseph K. Goldberg,Esquire 2080 Linglestown Road,Suite 106 Harrisburg, PA 17110 (717) 703-3600 jgoldberg@ssbc-law.com PA ID#46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA • DANIEL C. HILL and JENNIFER L. • HILL, : CIVIL TERM (LAW) Plaintiffs v. : NO. 12-5355 KENNEDY RV & POWERSPORTS, : INC., and MANUFACTURERS & TRADERS TRUST COMPANY, : JURY TRIAL DEMANDED • Defendants PLAINTIFFS' REPLY TO NEW MATTER AND ANSWER WITH NEW MATTER TO COUNTERCLAIM OF DEFENDANT, MANUFACTURERS & TRADERS TRUST COMPANY NOW COME Plaintiffs, by and through their attorney, Joseph K. Goldberg, who reply to the New Matter, and answer and file a New Matter to the Counterclaim, of Defendant Manufacturers & Traders Trust Company ("M&T Bank"), as follows: REPLY TO NEW MATTER 68. Paragraph 68 is an incorporation by reference of matters asserted in an Answer, to which no response is required. 69. The averments of paragraph 69 are conclusions of law to which no response is required. To the extent a response is required, the averments are denied, as the damage was the result of actions of Defendant Kennedy RV as set forth in the allegations of Plaintiffs' Complaint. 70. The averments of paragraph 70 are conclusions of law to which no response is required. To the extent a response is required, the averments are denied, as the damage was the result of actions of Defendant Kennedy RV as set forth in the allegations of Plaintiffs' Complaint. 71. The averments of paragraph 71 are conclusions of law to which no response is required. 72. The averments of paragraph 72 are conclusions of law to which no response is required. To the extent a response is required, the averments are denied, as the damage was the result of actions of Defendant Kennedy RV as set forth in the allegations of Plaintiffs' Complaint. 73. The averments of paragraph 73 are conclusions of law to which no response is required. To the extent a response is required, the averments are denied, as putting the unit in its present condition was required to determine the damage to the unit due to its condition at the time of sale. By way of further denial, making the required repairs to the unit would require the removal of the same materials which Defendant M&T Bank characterizes as damage. 74. The averments of paragraph 74 are conclusions of law to which no response is required. To the extent a response is required, the averments are denied as stated. Plaintiffs received a check from their insurance carrier, but have not negotiated it or accepted the payment. By way of further denial, Defendant's assertions are incorrect conclusions of law, as the transaction involves proceeds from a collateral source and Defendant is thereby not entitled to the benefit of any such payment. 75. The averments of paragraph 75 are conclusions of law to which no response is required. To the extent a response is required, the averments are denied, 2 as Defendant's conclusion regarding the insurance company's estimate and willingness to pay for damage is baseless and irrelevant to this action. By way of further denial, Plaintiffs did not cause damage to the trailer. 76. The averments of paragraph 76 are conclusions of law to which no response is required. To the extent a response is required, the averments are denied. To the contrary, although Plaintiffs filed their lawsuit approximately one year after purchase of the unit, they notified the seller of problems with the unit within several months of purchase, and twice attempted on their own to revoke acceptance and rescind the transaction well before filing suit. In addition, they notified Defendant M&T Bank of the problems with the unit within months of purchase. The doctrine of 'aches is inapplicable to Plaintiffs' claims. 77. The averments of paragraph 77 are conclusions of law to which no response is required. Offers of settlement - especially those made after a lawsuit is filed - are not admissible and not relevant to claims made by Plaintiffs herein. To the extent a response is required, the averments are denied, as the damage was the result of actions of Defendant Kennedy RV as set forth in the allegations of Plaintiffs' Complaint. By way of further denial, the only "offer" of the seller to Plaintiffs is for Plaintiffs to pay Defendant Kennedy RV to make repairs to damage in the unit existing at the time of sale. 78. The averments of paragraph 78 are conclusions of law to which no response is required. 79. The averments of paragraph 79 are conclusions of law to which no response is required. 3 80. The averments of paragraph 80 are conclusions of law to which no response is required. WHEREFORE, Plaintiffs demand that judgment be entered in their favor and against Defendant M&T Bank as prayed for in their Complaint, with costs assessed against Defendant M&T Bank. ANSWER TO COUNTERCLAIM 81. Paragraph 81 is an incorporation by reference of matters asserted in an Answer and New Matter, to which no response is required. 82. Denied as stated. Plaintiffs did not enter into any agreement of any nature with Defendant M&T Bank. It is admitted that Plaintiffs entered into the motor vehicle installment sale contract in Exhibit A to the Counterclaim with Defendant Kennedy RV. 83. It is admitted that the Plaintiffs took the vehicle under the terms of the Buyer's Order and the motor vehicle installment sale contract. The terms of both agreements are silent about the undisclosed, hidden defects and damage, of which the seller failed to disclose to Plaintiffs and of which they could not be aware at the time of sale. 84. It is denied that Defendant M&T Bank made any representations of any nature to Plaintiffs, as it is not a party to the agreement with Plaintiffs. The averments of paragraph 84 are conclusions of law to which no response is required. To the extent a response is required, the aforementioned document is subject to laws governing the failure of the seller to disclose hidden defects which render the unit worthless to Plaintiffs and of which Plaintiffs could not be aware at the time of sale. 4 85. The averments of paragraph 85 are conclusions of law to which no response is required. 86. The averments of paragraph 86 are conclusions of law to which no response is required. To the extent a response is required, it is denied that Plaintiffs breached their contract. It is denied: that Plaintiffs failed to keep the unit in good condition; that there was any damage or destruction which required written notification to Defendant M&T Bank; that they abandoned or disposed of the vehicle; or, that they allowed the unit to suffer substantial damage or substantial decline in value. 87. The averments of paragraph 87 are conclusions of law to which no response is required. 88. Denied. To the contrary, Plaintiffs continue to make all required payments to Defendant M&T Bank in a timely fashion, and Defendant is not entitled to amounts not yet due under the terms of the motor vehicle installment sale contract. 89. Denied. Under the terms of the contract, late charges can be imposed only for late payments, of which there have been none. 90. Denied. To the contrary, the provisions of paragraph 20(e) of the motor vehicle installment sale contract apply only where the unit has been repossessed. WHEREFORE, Plaintiffs demand that Defendant M&T Bank's Counterclaim be dismissed, with prejudice, and that judgment be entered for Plaintiffs and against Defendant M&T Bank as prayed for in Plaintiffs' Complaint, with costs assessed against Defendant M&T Bank. NEW MATTER TO COUNTERCLAIM 91. Defendant M&T Bank's claims are barred by the doctrine of estoppel. 5 • 92. Plaintiffs are justified in taking all action upon which Defendant M&T Bank bases its claims. 93. Plaintiffs have made all payments to Defendant M&T Bank due and owing to it. 94. Defendant M&T Bank has failed to state a claim upon which relief can be granted. 95. Defendant M&T Bank has suffered no damages for which it can be compensated under the claims asserted. 96. Defendant M&T Bank's claims are barred by waiver. 97. Plaintiffs kept Defendant M&T Bank fully informed about the condition of the unit, its whereabouts and their rescission and revocation of acceptance. WHEREFORE, Plaintiffs demand that Defendant M&T Bank's Counterclaim be dismissed, with prejudice, and that judgment be entered for Plaintiffs and against Defendant M&T Bank as prayed for in Plaintiffs' Complaint, with costs assessed against Defendant M&T Bank. Respectfull submitted, rsq 're Atorney ID No. 467:2 080 Linglestown ' •.d, Suite 106 Harrisburg, PA 1/ 10 (717)703-3600 • /j6� , Attorney for Plaintiffs Date: 6 VERIFICATION 1, the undersigned, hereby state that I have reviewed the foregoing Reply to New Matter and Answer to Counterclaim, and verify that the facts set forth in the document are true and correct to the best of my knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. 2 it/ Dated 7?r-rk-I 4*1 . . CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the /, day of ` , 2013, I served a copy of the foregoing Plaintiffs' Reply to New Matter and Answer With New Matter to Counterclaim of Defendant Manufacturers & Traders Trust Compnay, by first- class mail, postage prepaid, upon the following: /Mina M. Dusharm, Esquire Stone, Duncan & Linsenbach, PC 8 N. Baltimore Street Dillsburg, PA 17019 Attorney for Defendants Esq re FILED-OFFICE STONE, DUNCAN, & LINSENBACH,PC OF THE PROTHONOTARY Alina M. Dusharm,Esq. I.D. #309861 2013 JUL `3 PM 2. 11 8 N. Baltimore St. CUMBERLAND Go Dillsburg, PA 17019 UNTY PENNSYLVANIA Telephone: 717-432-2089 Fax: 717-432-0158 Email: Alina@StoneDuncan.com Attorney for Plaintiffs DANIEL C. HILL and JENNIFER L. : IN THE COURT OF COMMON PLEAS HILL : CUMBERLAND COUNTY,PENNSYLVANIA Plaintiffs, V. CIVIL ACTION-LAW, No. 12-5355 KENNEDY RV& POWERSPORTS, INC., and MANUFACTURERS & TRADERS TRUST COMPANY, Defendants. Jury Trial Demanded DEFENDANT'S ANSWER TO PLAINTIFF'S NEW MATTER TO COUNTERCLAIM AND NOW comes Defendants,Manufacturers &Traders Trust Company,by and through their counsel,Alina M. Dusharm, Esq., and the firm Stone,Duncan,'&Linsenbach,P.C., and in response to the Answer with New Matter to Counterclaim of Daniel and Jennifer Hill, Plaintiffs,answers as follows: 1-90. Plaintiff incorporates by reference paragraphs 1-90 in the Complaint,New Matter, and Counterclaim, and the answers thereto, as if fully set forth herein. 91. Denied. The allegations contained in Paragraph 91 are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. 92. Denied. The allegations contained in Paragraph 92 are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. 93. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averments set forth in the corresponding paragraph. 94. Denied. The allegations contained in Paragraph 94 are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. 95. Denied. The allegations contained in Paragraph 95 are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. 96. Denied. The allegations contained in Paragraph 96 are conclusions of law to which no responsive pleading is required under the Pennsylvania Rules of Civil Procedure. 97. Denied. Plaintiffs have not informed M&T Bank about any issues with the condition of the unit until the initiation of this action. WHEREFORE, Defendant, Manufacturers & Traders Trust Company, respectfully asks the court to deny the Plaintiff's claims, and enter judgment in favor of the Defendant. The Defendant respectfully requests that any legal or equitable relief be granted to Defendant as it is entitled. Respect ST E,DUNCA , &LINSENBACH, PC Alina M. Dusharm, Esq. Attorney ID # 309861 Jason B. Duncan, Esq. Attorney ID # 87946 8 N. Baltimore Street Dillsburg, PA 17019 P. (717) 432-2089 F: (717) 432-0158 CERTIFICATE OF SERVICE I, axi ye- 1 M do certify that I have served a copy of Defendant's Answer to New Matter to Counterclaim upon the following by first class mail: Joseph K. Goldberg, Esq. 2080 Linglestown Rd., Suite 106 Harrisburg, PA 17110 Attorney for Plaintiff DATE: 13 STONE,DUNCAN, & LINSENBACH, PC ALI . DUSHA IRE I.D. #309861 Attorneys for Defendants 8 N. Baltimore St. Dillsburg,PA 17019 Telephone: 717-432-2089 Fax: 717-432-0158 DANIEL C. HILL and JENNIFER L. HILL : IN THE COURT OF COMMON PLEAS Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA v. : DOCKET NO. 2012-5355 KENNEDY RV & POWERSPORTS, INC. : Z7) and MANUFACTURERS & TRADERS : TRUST COMPANY : JURY TRIAL DEMANDED Defendants : CIVIL ACTION — LAW 4.0•••^',. PRAECIPE TO WITHDRAW/ENTER APPEARANCE OF COUNSEL TO THE PROTHONOTARY: Please withdraw the appearance of Joseph K. Goldberg, Esquire and enter the appearance of Mark K. Emery, Esquire, for all Plaintiffs. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: By: seph K' dberg, Esquire Supreme Court No. 46782 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 DATE: (1.-- Mark K. Emery, Esquire Supreme Court No. 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 CERTIFICATE OF SERVICE AND NOW, this 28th day of April, 2014, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Praecipe for Withdrawal /Enter Appearance of Counsel by mailing a true and correct copy via United States first class mail, addressed as follows: Alina M. Dusharm, Esquire Stone, Duncan & Linsenbach, PC 8 N. Baltimore Street Dillsburg, PA 17019 LAW OFFICES OF MARK K. EMERY By: Mark K. Emery