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HomeMy WebLinkAbout13-4543 Supreme Co u rfo Pennsylvania Cour. off -CAIM leas For Prothonotary Use Only: ii A Ver�Sheet Docket No: Sft CUMBERLAND. 5 County The iifOrination collected on this forni. is used solely court administration puiposes. This foi'rn does not supplement or replace the filing and service of pleudi.'ngs or other papers as required by lcnv oi' rules of court. Commencement of Action: S 91 Complaint 0, Writ of Su nmons - Petition 0 Transfer from Another Jurisdiction CI Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T JENNA TAYLOR FORD MOTOR COMPANY Dollar Amount Requested: Eg within arbitration limits I Are money damages requested? M Yes 0 No (check one) []outside arbitration limits O E N Is this a Class Action Suit? Yes No Is this an MDJAppeal? 0 Yes R] No A Name of Plaintiff/Appellant Attorney: DAVID J. GORBERG 0 Check here if you have no attorney (are a Self - .Represented [Pro Se] Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS 0 Litentional 0■ Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution ® Debt Collection: Credit. Card J Board of Assessment L7 Motor Vehicle Debt Collection: Other _J Board of Elections 0 Nuisance El Dept. of Transportation S 1- Premises Liability 0 Statutory Appeal: Other ._1 Product Liability (does not include E mass tort) I,J Employment Dispute: Discrimination 0 Slander/Libel/ Defamation Employment Dispute: Other 0 Zoning Board C 0 Other: T 0 Other: I 0 Other: i O MASS TORT l Asbestos N 0 Tobacco 0 Toxic Toil - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS Toxic Waste Other: El Ejectment C Common Law /Statutory Arbitration B Eminent Domain/Condemnation 0 Declaratory Judgment 0 Ground Rent 0 Mandamus Li Landlord/Tenant Dispute EO Non- Domestic Relations J Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY I_J Mortgage Foreclosure: Commercial 0 Quo Wan•anto E3 Dental 0 Partition 0 Replevin 0 Legal - Quiet Title 0 Other: 0 Medical F71 Other: Other Professional: Updated 71712011 ' JPdSYL�� N� JENNA TAYLOT IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR COMPANY No. - , ' /2 Defendant . Civil Term NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY 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 PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1- 800 - 990 -9108 717- 249 -3166 •�spj a� Ck- S-5 24 aa3s93 v DAVID J. GORBERG & ASSOCIATES, P.C. By: DAVID J. GORBERG Attorney for Plaintiff Identification No.: 53084 32 Parking Plaza Suite 700 Ardmore, PA 19003 215- 665 -7660 Jenna Taylor 2655 Clearbrook Blvd. York, PA 17406 COURT OF COMMON PLEAS vs. Cumberland Ford Motor Company C/O CT CORPORATION 116 PINE STREET SUITE 320 HARRISBURGH PA 17101 COMPLAINT 1. Plaintiff, Jenna Taylor, is an adult individual citizen and legal resident of the Commonwealth of Pennsylvania, residing 2655 Clearbrook Blvd., York, PA 17406 2. Defendant, Ford Motor Company is a business corporation qualified to do business and regularly conducts business in the Commonwealth of Pennsylvania and can be served c/o CT Corporation, 116 Pine Street, Suite 320, Harrisburg, PA 17101. BACKGROUND 3. Plaintiff incorporates by reference paragraphs 1 and 2 as fully as if set forth here length. 4. On or about November 2012, Plaintiff purchased a new 2013 Ford Focus (hereinafter referred to as the "vehicle "), manufactured and warranted by Defendant bearing the Vehicle Identification Number 1FADP3F25DL174292. The vehicle was purchased and registered in the Commonwealth of Pennsylvania. 5. The price of the vehicle, including registration charges, document fees, sales tax, but, excluding other collateral charges not specified, totaled more than $20,000.00. 6. Plaintiff avers that as a result of the ineffective repair attempts made by Defendant through its authorized dealer, the vehicle cannot be utilized for the purposes intended by Plaintiff at the time of acquisition and as such, the vehicle is worthless. 7. In consideration of the purchase of the above vehicle, Defendant, issued to Plaintiff several warranties, fully outlined in the warranty booklet. 8. On or about November 2012, Plaintiff took possession of the above mentioned vehicle and experienced nonconformities, which substantially impaired the use, value and /or safety of the vehicle. 9. Said nonconformities consisted of but was not limited to defective transmission. Copies of repair receipts are attached hereto and marked as Exhibit "A ". 10. The nonconformities violate the express written warranties issued to Plaintiff by Defendant. 11. Plaintiff avers the vehicle has been subject to repair more than two (2) times for the same nonconformity, and the nonconformity remains uncorrected. 12. Plaintiff has delivered the nonconforming vehicle to an authorized service and repair facility of the defendant on numerous occasions. After a reasonable number of attempts, Defendant was unable to repair the nonconformities. 13. In addition, the above vehicle has or will in the future be out of service by reason of the non - conformities complained of for a cumulative total of thirty (30) days or more. 14. The vehicle continues to exhibit defects and nonconformities which substantially impair it's use, value and /or safety. 15. Plaintiff avers the vehicle has been subject to additional repair attempts for defects and /or nonconformities and /or conditions for which the Defendant and or it's authorized service center, may not have maintained records. 16. Plaintiff has been and will continue to be financially damaged due to Defendant's failure to comply with the provisions of its' warranty. 17. Plaintiff seeks relief for losses due to the nonconformities and defects in the above mentioned vehicle in addition to attorney fees and all court costs. COUNT PENNSYLVANIA AUTOMOBILE LEMON LAW CLAIM 18. Plaintiff hereby incorporates all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 19. Plaintiff is a "Purchaser" as defined by 73 P.S. §1952. 20. Defendant is a "Manufacturer" as defined by 73 P.S. § 1952. 21. Plaintiffs vehicle is a "New Motor Vehicle" as defined by 73 P.S. §1952. 22. Said vehicle experienced non conformities within the first year of purchase, which substantially impairs the use, value and safety of said vehicle. 23. Defendant failed to correct and or repair said nonconformities. 24. The vehicle continues to exhibit defects and nonconformities which substantially impair it's use, value and /or safety. 25. Defendant does not require participation in any informal dispute settlement program prior to filing suit. 26. As a direct and proximate result of Defendant's failure to repair the nonconformities , Plaintiff has suffered damages and, in accordance with 73 P.S. §1958, Plaintiff is entitled to bring suit for such damages and other legal and equitable relief. 27. Plaintiff avers that upon successfully prevailing upon the Lemon Law claim herein, all attorney fees are recoverable and are demanded against the Defendant. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3) times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of $50,000.00. COUNT II MAGNUSON -MOSS FEDERAL TRADE COMMISSION IMPROVEMENT ACT 28. Plaintiff hereby incorporates all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 29. Plaintiff is a "Consumer" as defined by 15 U.S.C. §2301(3). 30. Defendant is a "Warrantor" as defined by 15 U.S.C. §2301(5). 31. Plaintiff uses the subject product for personal, family and household purposes. 32. By the terms of the express written warranties referred to in this Complaint, Defendant agreed to perform effective warranty repairs at no charge for parts and /or labor. 33. Defendant failed to make effective repairs. 34. As a direct and proximate result of Defendant's failure to comply with the express written warranties, Plaintiff has suffered damages and, in accordance with 15 U.S.C. §2310(d) (1), Plaintiff is entitled to bring suit for such damages and other legal and equitable relief. 35. Section 15 U.S.C. §2310 (d) (1) provides: If a consumer finally prevails on an action brought under paragraph (1) of this subsection, he may be allowed by the Court to recover as part of the judgment a sum equal to the amount of aggregate amount of costs and expenses (including attorney fees based upon actual time expended), determined by the Court to have been reasonably incurred by the Plaintiff for, or in connection with the commencement and prosecution of such action, unless the Court, in its discretion shall determine that such an award of attorney's fees would be inappropriate. 36. Plaintiff avers that upon successfully prevailing upon the Magnuson -Moss claim herein, all attorney fees are recoverable and are demanded against the Defendant. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3) times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of $50,000.00. COUNT III UNIFORM COMMERCIAL CODE 37. Plaintiff hereby incorporates all the paragraphs of this Complaint by reference as if fully set forth at length herein. 38. The defects and nonconformities existing within the vehicle constitute a breach of contractual and statutory obligations of the Defendant, including but not limited to the following; a. Breach of Express Warranty b. Breach of Implied Warranty of Merchantability; C. Breach of Implied Warranty of Fitness For a Particular Purpose; d. Breach of Duty of Good Faith. 39. The purpose for which Plaintiff purchased the vehicle include but are not limited to his personal, family and household use. 40. At the time of this purchase and at all times subsequent thereto, Plaintiff has justifiably relied upon Defendant's express warranties and implied warranties of fitness for a particular purpose and implied warranty of merchantability. 41. At the time of the purchase and at all times subsequent thereto, Defendant was aware Plaintiff was relying upon Defendant's express and implied warranties, obligations, and representations with regard to the subject vehicle. 42. Plaintiff has incurred damages as a direct and proximate result of the breach and failure of Defendant to honor its express and implied warranties. 43. Such damages include, but are not limited to, the purchase price of the vehicle plus all collateral charges, including attorney fees and costs, as well as other expenses, the full extent of which are not yet known. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3) times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of $50,000.00. COUNT IV PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION CLAIM 44. Plaintiff hereby incorporates all the paragraphs of this Complaint by reference as if set forth at length herein. 45. The Unfair Trade Practices and Consumer Protection Law defines unfair methods of competition to include the following: (xiv). Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to, or after a contract for the purchase of goods or services is made. 46. Plaintiff, as a Pennsylvania resident, believes, and therefore, avers Defendant's failure to comply with the terms of the written warranty constitutes an unfair method of competition. 47. Section 201- 9.2(a) of the Unfair Trade Practices and Consumer Protection Law, authorizes the Court, in its discretion, to award up to three (3) times the actual damages sustained for violations of the Act. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3) times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of $50,000.00. DAVID J. GORBERG & ASSOCIATES, P.C. BY: D J. GORBERG, ESQUIRE Attorney for Plaintiff VERIFICATION The undersigned, after having read the attached pleading verifies that the within Civil Action Complaint is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the Civil Action Complaint is that of counsel and not of signer. Signer verifies that he has read the within Civil Action Complaint and that they are true and correct to the best of the signer's knowledge, information and belief. To the extent that the contents of the Civil Action Complaint are that of counsel, verifier has relied upon counsel in taking this verification. This verification is made subject -to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. X /S/;D "AiTfGoAberg -DAVID .L:.GORBERG Date: a DAVID J. GORBERG & ASSOCIATES,P.C. BY: DAVID J. GORBERG Attorney for Plaintiffs IDENTIFICATION NO.: 53084 700 TIMES BUILDING SUBURBAN SQUARE ARDMORE, PA 19003 215-665-7660 JENNA TAYLOR : COURT OF COMMON PLEAS vs FORD MOTOR COMPANY : NO. 13-4543-CIVIL C c.y "C) »u rv! �.Y CD C+ CDC) AFFIDAVIT OF SERVICE ' UNDER PRCP 42082 J I, DAVID J. GORBERG, being duly sworn according to law, depose and say that I am the attorney for the plaintiff Jenna Taylor, I did mail to defendant, Ford Motor Company last known address c/o CT Corporation 116 Pine Street Suite 320 Harrisburg, PA 17101 an attested copy of the Civil Action Complaint, the original of which has been filed of record with the Office of the Prothonotary of Cumberland County; and that said complaint and letter were mailed, United States Priority Mail; and that the attached is a true and correct copy of the letter dated August 7, 2013, and that the attached receipt is the receipt for said certified letter signed by an agent of the defendant on August 12, 2013. /s/David J. Gor DAVID J. G ERG, ESQUIRE DAVID J. GORBERG & ASSOCIATES, P.C. 32 PARKING PLAZA DAVID J. GORBERGt SUITE 700 NEW JERSEY OFFICE LAURA L. APPLEGATE COURTNEY L. SOFIA* ARDMORE, PA 19003 208 KINGS HIGHWAY SOUTH EDWARD B. FEINER* CHERRY HILL, NJ 08034 1-800-MY-LEMON (856)354-2119 'MEMBER OF PA AND NJ BARS 1-800-695-3666 tMEMBER OF PA AND NY BARS PITTSBURGH OFFICE 215-665-7660 FAX 215-563-8738 1900 ALLEGHENY BLDG. 429 FORBES AVENUE www.MyLemon.com PITTSBURGH, PA 15219 412-894-9970 FAX 412-894-9983 August 7, 2013 Ford Motor Company c/o CT Corporation 116 Pine Street Suite 320 Harrisburgh, PA 17101 RE: Taylor vs Ford Motor Company DOCKET # 13-4543 CIVIL Dear Sir/Madam: Pursuant to the current Rules of Civil Procedure, we enclose herein the copy of the Civil Action Complaint, the original of which has been filed by our office in connection with the above referenced matter. You are hereby notified that you have been sued in Court and that you must take action within twenty (20) days from your receipt of this letter or a default judgment may be entered against you. Very truly yours, DAVID J. GORBERG DJG/mk Enclosure —�— `— -- Cut on f/OfieClline. Instructions Online Label Record (Label 4of4 1. Each Click-N-ShipO label is unique. Labels are to be USP$TRACKING#Number: used as printed'and used only once. DO NOT PHOTO COPY OR ALTER LABEL. 9405 5036 9930, 002.1, 0876 76 Paid Online 2.Place your label so it does not wrap around the edge of 271448197 Pfiodty fvlaiM Postage: 55.05 the package. Print bate: 0°./0812013 Total: Ship Date:. 0810812013 3.Adhere your label to the package. A self-adhesive label is recommended. If tape or glue is,used,DO NOT TAPE OVER BARCODE. Be sure all edges are secure. Front: DAVID GORBERG 4-.To mail your package with PC Postage0,you 32PA J.PARKING ASSOCIATES.P.C. 32 PAP.KING PLZ STE 700 may schedule a Package Pickup online,hand to ARDMORE PA 19003-2440 your letter carrier,take to a Post Officel'',or— drop in a LISPS collection box. To; FORD MOTOR COMPAIPIY, C/O CT CORPORATION. S.Mail your package on the"Ship Date" ou 116 PINE ST selected when creating this label. STE 320 HARRISBURG PA 17101-1250 Comm*rcial Base Pricing Priceity Mail rates apply.There Is no fee for USPS 1 l Tra&,ing service on Priority t4ait semcvxAth use of this ele,*uonk:rate shipping t r-c-L f.b ,/�. �.�..1 label 03livery infornawn is no: bi pTione or the electronic rare RefLnds (� V for unused pos:aro paid labels can be requested oninc 30 drys from the print date. fl1• f�' 'n'n `!• OST41. sr`sr s Thank you for Shipping in with Me United States Postal Service! !'OSTi�4 sFr�vfc�,� Y pp 9' Check the status of your shipment on the Track & Confirm page at usps.com Marie Kahtan From: US_Postal_Service @usps.com Sent: Thursday, August 29, 2013 2:55 PM To: mkahlan @mylemon.com Subject: USPS Shipment Info for 9405503699300022443976 This is a post-only message. Please do not respond. David Gorberg has requested that you receive the current Track & Confirm information, as shown below. Current Track &Confirm e-mail information provided by the U.S, Postal Service. Label Number: 9405503699300022443976 Service Type: USPS Tracking7m Shipment Activity Location Date &Time ------------------------------------------------------------------------------------------------------------------- Delivered TORRANCE, CA 90509 August 12, 2013 1:12 pm Out for Delivery TORRANCE, CA 90503 August 12, 2013 8:30 am Sorting Complete TORRANCE, CA 90503 August 12, 2013 8:20 am Arrival at Post Office TORRANCE, CA 90503 August 12_2013 4:29 am Processed through USPS Sort Facility LOS ANGELES, CA 90052 August 11, 2013 11:15 pm Depart LISPS Sort Facility PHILADELPHIA, PA 19116 August 10, 2013 Processed at USPS Origin Sort Facility PHILADELPHIA, PA 19116 August 9, 2013 6:41 pm Accepted at USPS Origin Sort Facility ARDMORE, PA 19003 August 9, 2013 5:26 pm Electronic Shipping Info Received August 9, 2013 USPS has not verified the validity of any email addresses submitted via its online Track & Confirm tool. For more information, or if you have additional questions on Track & Confirm services and features, please visit the Frequently Asked Questions (FAQs) section of our Track &Confirm site at http://www.usps.com/shippinq/trackandconfirm,htm 1. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION c JENNA TAYLOR, M r a CD . Plaintiff, CASE NO. 13-4543 ,- - c, CDnq V. Civil Action @ c 171 FORD MOTOR COMPANY, - Defendant. PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY/CLERK OF SAID COURT: Kindly enter my appearance in the above-captioned matter on behalf of Defendant, Ford Motor Company. Papers may be served at the address set forth below. JA P. PETERSON, ESQ. (ID No. 77315) torney for Defendant, Ford Motor Company DOBIS, RUSSELL & PETERSON, P.C. 213 Yates Avenue Woodlyn, PA 19094 Phone: 610-689-8698 Fax: 973-740-2474 Email: jpeterson @drp-law.com Date: September 23, 2013 a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION JENNA TAYLOR, �� Plaintiff, CASE NO. 13-4543 ."'f ; ►v „`x V. Civil ActionQ ` FORD MOTOR COMPANY, Defendant. ANSWER AND NEW MATTER AND NOW, comes defendant, Ford Motor Company ("Ford"), by its attorneys, Dobis, Russell & Peterson, P.C., and files the within Answer and New Matter as follows: ANSWER 1. Admitted. 2. Admitted. BACKGROUND 3. Ford repeats and reiterates its answers to the allegations of paragraphs 1 and 2 with full force and effect as though more fully set forth. 4. Upon reasonable investigation, Ford Motor Company does not have enough information to admit or deny the purchase date of the subject matter vehicle. 5. Upon reasonable investigation, Ford Motor Company does not have enough information to admit or deny the purchase price of the vehicle. 6. Denied. Ford denies ineffective repairs. Ford also denies that the vehicle cannot be utilized for its intended purposes and is worthless. 7. Denied. Ford Motor Company was not a party to the retail sales contract. 8. Defendant denies the existence of any defects or non-conformities that substantially impair the use, value or safety of the subject vehicle. 9. Defendant denies the existence of any defects or non-conformities that substantially impair the use, value or safety of the subject vehicle. Ford also denies that copies of repair receipts are attached to Plaintiffs Complaint as Exhibit A. 10. Defendant denies the existence of any defects or non-conformities that substantially impair the use, value or safety of the subject vehicle. Ford additionally denies breach of warranties, express and implied. 11. Defendant denies the existence of any defects or non-conformities that substantially impair the use, value or safety of the subject vehicle and that the vehicle was subject to two (2) repair attempts. 12. Defendant denies the existence of any defects or non-conformities that substantially impair the use, value or safety of the subject vehicle. 13. Defendant denies the existence of any defects or non-conformities that substantially impair the use, value or safety of the subject vehicle and 30 days out of service. 14. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 15. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 16. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 17. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. AS TO COUNT 1 18. Ford repeats and reiterates its answers to the allegations of paragraphs 1 — 17 with full force and effect as though more fully set forth. n 19. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 20. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 21. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 22. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 23. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 24. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 25. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 26. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 27. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. ' AS TO COUNT II 28. Ford repeats and reiterates its answers to the allegations of paragraphs 1 —27 with full force and effect as though more fully set forth. 29. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 30. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 31. Upon reasonable investigation, Ford Motor Company does not have enough information to admit or deny. 32. Admitted, during the term of the original factory warranty only. 33. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 34. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 35. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 36. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. AS TO COUNT III 37. Ford repeats and reiterates its answers to the allegations of paragraphs 1 —36 with full force and effect as though more fully set forth. 38. Defendant denies the existence of any defects or non-conformities that substantially impair the use, value or safety of the subject vehicle. Ford also denies breach of warranties, express and implied. 39. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 40. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 41. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 42. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 43. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. AS TO COUNT IV 44. Ford repeats and reiterates its answers to the allegations of paragraphs 1 —43 with full force and effect as though more fully set forth. 45. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 46. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 47. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. NEW MATTER 48. The subject vehicle does not have a non-conformity, defect or condition which substantially impairs its use, value or safety. 49. Plaintiff has failed to state a claim upon which relief may be granted. 50. Plaintiffs claims are barred by the Doctrine of Res Judicata. 51. Plaintiffs claims are barred by the Doctrine of Accord and Satisfaction. 52. The alleged non-conformity, defect or condition is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle. WHEREFORE, this defendant requests this Honorable Court to enter judgment in its favor. DESIGNATION OF TRIAL COUNSEL PLEASE TAKE NOTICE that JAMES P. PETERSON, ESQ., is hereby designated as trial counsel. CERTIFICATION OF COUNSEL I certify that1he foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. CERTIFICATION I hereby certify that a copy of the within document has been filed with the Prothonotary's Office in the Court of Common Pleas of Cumberland County, PA, Civil Action and that a copy of the same was served upon all interested attorneys within the period of time allowed in accordance with the Rules of the Court. DOBIS, RUSSELL & PETERSON, P.C. Attorneys for defendant, Ford Motor Co n BY: ZOOES P. PETERSON, ESQ. D. #77315 213 Yates Avenue Woodlyn, Pennsylvania 19094 (610) 689-8698 DATED: September 23, 2013 J DAVID J. GORBERG & ASSOCIATES, P.C. i0,' ;Tr"ii; By: DAVID J. GORBERG Attorney for Plaintiff Identification No. 53084 �3�C$ ' (� �: # (� 32 Parking Plaza Suite 700 CUMBERLAND COUNTY Ardmore, PA 19003 PENNSYLVANIA 215-665-7660 JENNA TAYLOR : COURT OF COMMON PLEAS vs. FORD MOTOR COMPANY : NO. 13-4543 PLAINTIFFS' RESPONSE TO DEFENDANT'S NEW MATTER Plaintiff, Jenna Taylor, through his attorney, DAVID J. GORBERG, hereby responds to defendant's New Matter as follows: 48-52. Denied. The allegations contained in paragraphs 48 through 52 inclusive, of defendant's New Matter are conclusions of law to which no specific response is required under the Pennsylvania Rules of Civil Procedure and strict proof thereof is demanded at trial. WHEREFORE, Plaintiff demands judgment in his favor and against the'Defendant. /s/ vid orberg ' A-V-10 J. GORBERG, ESQ. Attorney for Plaintiff VERIFICATION I, DAVID J. GORBERG, verify that I am the attorney for the Plaintiff and that the statements made in the attached ANSWER TO NEW MATTER is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit; and that the language of this pleading is that of counsel. Signer verifies that he has read the within pleading and that it is true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. /sI'P ay.. J. Gor• r• .e AV PM" :ERG, ESQ. Attorney for Plaintiff DATE: September 27, 2013 CERTIFICATION OF SERVICE I, DAVID J. GORBERG, ESQUIRE, do hereby certify that service of a true and correct copy of the within ANSWER TO NEW MATTER was made on September 27, 2013 all interested parties by Regular First Class Mail. Is/ P a''i J. Gor•- • • VI l ' I ERG, ESQ. Attorney for Plaintiff INTERESTED PARTIES: James P. Peterson, Esquire 326 South Livingston Avenue Livingston, N.J. 07039 DOBIS, RUSSEL & PETERSON, P.C. By: James P. Peterson, Esq. #77315 213 Yates Avenue Woodlyn, Pennsylvania 19094 Tel: (610) 689-8698 Attorneys for Ford Motor Company Li F OF THE 1: 2rilti OCT -5 P:1 CUMBERL `) Cr 1'W Y PENNSY LVAffl JENNA TAYLOR, Plaintiff, v. FORD MOTOR COMPANY, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION CASE NO: 13-4543 DEFENDANT, FORD MOTOR COMPANY'S MOTION TO DISMISS FOR SPOLIATION Defendant, Ford Motor Company, by and through their attorneys, Dobis, Russell, & Peterson, P.C., hereby moves for dismissal pursuant to Pa.R.Civ.P. 1023.2, and in support thereof avers as follows: 1. Plaintiff, Jenna Taylor, commenced the instant action by filing a Civil Complaint with the Cumberland County Court of Common Pleas on or about August 7, 2013. (A true and correct copy of Plaintiff s Complaint is attached hereto as Exhibit "A"). 2. In the Complaint, Plaintiff asserts causes of action under the Pennsylvania Lemon Law, the Magnuson Moss Warranty Improvement Act, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law. (Exhibit "A"). 3. The sole property at issue in this matter is a 2013 Focus vehicle allegedly purchased by Plaintiff. (Exhibit "A." True and correct copies of the purchase documents are attached hereto collectively as Exhibit "B"). 4. The vehicle itself is pivotal tangible evidence in a case such as this. 5. By letter dated September 23, 2013 defendant Ford demanded that the subject matter vehicle be preserved as evidence. In the alternative, Ford requested that it be notified if plaintiff intended to trade or sell the vehicle. (True and correct copy of September 23, 2013 letter attached hereto as Exhibit C.) 6. Discovery has revealed that plaintiff traded out of this vehicle on August 13, 2013, which was one day before Ford was even served with the complaint. (True and correct copy of plaintiffs trade documents are attached hereto as Exhibit a) 7. As the Court has stated, "Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Select Medical Corp. v. Hardaway, 2006 U.S. Dist. LEXIS 15326 (E.D.Pa. 2006) (citing MOSAID Techs, Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332, 335 (D. N.J. 2004)) (internal quotations omitted). 8. "The sanctions generally available after a finding of spoliation include ... dismissal of a claim or granting judgment in favor of a prejudiced party ...." Motown Record Co., LP v. DePietro, 2007 U.S. Dist. LEXIS 1 1626, note 50 (E.D.Pa. 2007) (citing Paramount Pictures Corp. v. Davis, 234 F.R.D. 102, 110-111 (E.D.Pa. 2005)); See also EEOC v. Smokin' Joe's Tobacco Shop, 2007 U.S. Dist. LEXIS 62047 (E.D.Pa. 2007) ("A court can impose sanctions for spoliation including dismissal of a claim or granting judgment in favor of a prejudiced party ...."). 9. "A particular sanction is not mandated by any rule of law, but rather, the decision is left to the discretion of the Court." Motown Record Co., LP v. DePietro, 2007 U.S. Dist. LEXIS 11626, note 50 (E.D.Pa. 2007) (citing Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3rd Cir. 1994)). "Spoliation sanctions ... serve a punitive function, by punishing the spoliator for its actions ...." EEOC v. Smokin` Joe's Tobacco Shop, 2007 U.S. Dist. LEXIS 62047 (E.D.Pa. 2007) (citing MOSAID Techs, Inc. v. Samsung Elecs, Co., 348 F.Supp.2d 332, 335 (D. N.J. 2004)) (internal quotations omitted). 10. In Schmid, supra, the Third Circuit Court of Appeals set forth "the factors to be considered in determining an appropriate sanction for failure to preserve evidence: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party, and (3) the availability of a lesser sanction that will protect the opposing party's rights and deter future similar conduct." Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3rd Cir. 1994). 11. The Pennsylvania Supreme Court then adopted these criteria. Schroeder v. Dept, of Transportation, 551 Pa. 243, 251, 710 A.2d 23, 27 (Pa. 1998) ("Having considered this authority, we adopt the Third Circuit's approach to the spoliation of evidence in Schmid."). 12. The lower Pennsylvania Courts have recognized the Supreme Court's adoption of the Schmid criteria and have applied those three (3) criteria to cases in which evidence was spoliated. See, Eichman v. McKeon, 824 A.2d 305 (Pa.Super. 2003). 13. In the instant matter, Plaintiffs claim a manufacturing defect specific to the vehicle in question. (See Exhibit "A"). 14. "The prejudice to a defendant from spoliation of evidence is greater in a manufacturing defect action where the alleged defect is unique to a particular product ...." Tripp v. Ford Motor Company, 1996 U.S. Dist. LEXIS 9395 (E.D.Pa. 1996). 15. In the Tripp, a case against a vehicle manufacturer, the Court noted that "a defendant in a products liability case is entitled to summary judgment when loss or destruction of evidence deprives the defense of the most direct means of countering plaintiffs allegations." Id. (citing Lee v. Boyle -Midway Household Products, Inc., 792 F.Supp. 1001, 1005 (W.D.Pa. 1992)) (emphasis added). 16. That is precisely what occurred in the instant matter. 17. Plaintiff has asserted a claim against a vehicle manufacturer alleging a manufacturing defect specific to the vehicle in question. (See Exhibit "A"). 18. Despite this, Plaintiff unilaterally spoliated the subject vehicle with no notice to moving Defendant. 19. Simply put, Plaintiff in this matter has intentionally deprived Defendant of access to the sole property at issue in this litigation at the time of trial by unilaterally spoliating the subject evidence. 20. Accordingly, moving Defendant respectfully requests that this Honorable Court grant the instant Motion to Dismiss for Spoliation and dismiss Plaintiff s claims against moving Defendant with prejudice. WHEREFORE, for the foregoing reasons, Defendant, Ford Motor Company, respectfully requests that this Honorable Court grant the instant Motion to Dismiss for Spoliation and dismiss any and all claims asserted against Defendant, Ford Motor Company, with prejudice. Jarpe . Pete q. (77315) DOBIS, RU EL & PETERSON, P.C. 21 Yate venue Wo n, Pennsylvania 19094 Tel: (610) 689-8698 ATTORNEYS FOR FORD MOTOR COMPANY EXHIBIT A JENNA TAYLOT IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR COMPANY Defendant /*/fNO. 1 vr /20 Civil Term NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH 1N THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND 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 PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 TFRtF COPY FROM RECORD In Testimony whereot, there unto set my nano and tho mai of said Court at C,.,arlisle, Pa. This day of . 20 Prothonotary DAVID J. GORBERG & ASSOCIATES, P.C. By: DAVID J. GORBERG Identification No.: 53084 32 Parking Plaza Suite 700 Ardmore, PA 19003 215-665-7660 Jenna Taylor 2655 Clearbrook Blvd. York, PA 17406 vs. Ford Motor Company C/O CT CORPORATION 116 PINE STREET SUITE 320 HARRISBURGH PA 17101 Attorney for Plaintiff COURT OF COMMON PLEAS Cumberland COMPLAINT 1. Plaintiff, Jenna Taylor, is an adult individual citizen and legal resident of the Commonwealth of Pennsylvania, residing 2655 Clearbrook Blvd., York, PA 17406 2. Defendant, Ford Motor Company is a business corporation qualified to do business and regularly conducts business in the Commonwealth of Pennsylvania and can be served c/o CT Corporation, 116 Pine Street, Suite 320, Harrisburg, PA 17101. BACKGROUND 3. Plaintiff incorporates by reference paragraphs 1 and 2 as fully as if set forth here length. 4. On or about November 2012, Plaintiff purchased a new 2013 Ford Focus (hereinafter referred to as the "vehicle"), manufactured and warranted by Defendant bearing the Vehicle Identification Number 1FADP3F25DL174292. The vehicle was purchased and registered in the Commonwealth of Pennsylvania. 5. The price of the vehicle, including registration charges, document fees, sales tax, but, excluding other collateral charges not specified, totaled more than $20,000.00. 6. Plaintiff avers that as a result of the ineffective repair attempts made by Defendant through its authorized dealer, the vehicle cannot be utilized for the purposes intended by Plaintiff at the time of acquisition and as such, the vehicle is worthless. 7. In consideration of the purchase of the above vehicle, Defendant, issued to Plaintiff several warranties, fully outlined in the warranty booklet. 8. On or about November 2012, Plaintiff took possession of the above mentioned vehicle and experienced nonconformities, which substantially impaired the use, value and/or safety of the vehicle. 9. Said nonconformities consisted of but was not limited to defective transmission. Copies of repair receipts are attached hereto and marked as Exhibit "A". 10. The nonconformities violate the express written warranties issued to Plaintiff by Defendant. 11. Plaintiff avers the vehicle has been subject to repair more than two (2) times for the same nonconformity, and the nonconformity remains uncorrected. 12. Plaintiff has delivered the nonconforming vehicle to an authorized service and repair facility of the defendant on numerous occasions, After a reasonable number of attempts, Defendant was unable to repair the nonconformities. 13. In addition, the above vehicle has or will in the future be out of service by reason of the non -conformities complained of for a cumulative total of thirty (30) days or more. 14, The vehicle continues to exhibit defects and nonconformities which substantially impair it's use, value and/or safety. 15. Plaintiff avers the vehicle has been subject to additional repair attempts for defects and/or nonconformities and/or conditions for which the Defendant and or it's authorized service center, may not have maintained records. 16. Plaintiffhas been and will continue to be financially damaged due to Defendant's failure to comply with the provisions of its' warranty. 17. Plaintiff seeks relief for losses due to the nonconformities and defects in the above mentioned vehicle in addition to attorney fees and all court costs. COUNT I PENNSYLVANIA AUTOMOBILE LEMON LAW CLAIM 18. Plaintiff hereby incorporates all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 19. Plaintiff is a "Purchaser" as defined by 73 P.S. §1952. 20. Defendant is a "Manufacturer" as defined by 73 P.S. §1952. 21. Plaintiffs vehicle is a "New Motor Vehicle" as defined by 73 P.S. §1952. 22. Said vehicle experienced non conformities within the first year of purchase, which substantially impairs the use, value and safety of said vehicle. 23. Defendant failed to correct and or repair said nonconformities. 24. The vehicle continues to exhibit defects and nonconformities which substantially impair ifs use, value and/or safety. 25. Defendant does not require participation in any informal dispute settlement program prior to filing suit. 26. As a direct and proximate result of Defendant's failure to repair the nonconformities , Plaintiff has suffered damages and, in accordance with 73 P.S. §1958, Plaintiff is entitled to bring suit for such damages and other legal and equitable relief. 27. Plaintiff avers that upon successfully prevailing upon the Lemon Law claim herein, all attorney fees are recoverable and are demanded against the Defendant. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3) times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of $50,000.00. COUNT II MAGNUSON-MOSS FEDERAL TRADE COMMISSION IMPROVEMENT ACT 28. Plaintiff hereby incorporates all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 29. Plaintiff is a "Consumer" as defined by 15 U.S.C. §2301(3). 30. Defendant is a "Warrantor" as defined by 15 U.S.C. §2301(5). 31. Plaintiff uses the subject product for personal, family and household purposes. 32. By the terms of the express written warranties referred to in this Complaint, Defendant agreed to perform effective warranty repairs at no charge for parts and/or labor. 33. Defendant failed to make effective repairs. 34. As a direct and proximate result of Defendant's failure to comply with the express written warranties, Plaintiff has suffered damages and, in accordance with 15 U.S.C. §2310(d) (1), Plaintiff is entitled to bring suit for such damages and other legal and equitable relief. 35. Section 15 U.S.C. §2310 (d) (1) provides: If a consumer finally prevails on an action brought under paragraph (1) of this subsection, he may be allowed by the Court to recover as part of the judgment a sum equal to the amount of aggregate amount of costs and expenses (including attorney fees based upon actual time expended), determined by the Court to have been reasonably incurred by the Plaintiff for, or in connection with the commencement and prosecution of such action, unless the Court, in its discretion shall determine that such an award of attorney's fees would be inappropriate. 36. Plaintiff avers that upon successfully prevailing upon the Magnuson -Moss claim herein, all attorney fees are recoverable and are demanded against the Defendant. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the • Defendant in an amount equal to three (3) times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of $50,000.00. COUNT III UNIFORM COMMERCIAL CODE 37. Plaintiff hereby incorporates all the paragraphs of this Complaint by reference as if fully set forth at length herein. 38. The defects and nonconformities existing within the vehicle constitute a breach of contractual and statutory obligations of the Defendant, including but not limited to the following; a. Breach of Express Warranty b. Breach of Implied Warranty of Merchantability; c. Breach of Implied Warranty of Fitness For a Particular Purpose; d. Breach of Duty of Good Faith. 39. The purpose for which Plaintiff purchased the vehicle include but are not limited to his personal, family and household use. 40. At the time of this purchase and at all times subsequent thereto, Plaintiff has justifiably relied upon Defendant's express warranties and implied warranties of fitness for a particular purpose and implied warranty of merchantability. 41. At the time of the purchase and at all times subsequent thereto, Defendant was aware Plaintiff was relying upon Defendant's express and implied warranties, obligations, and representations with regard to the subject vehicle. 42. Plaintiff has incurred damages as a direct and proximate result of the breach and failure of Defendant to honor its express and implied warranties. 43. Such damages include, but are not limited to, the purchase price of the vehicle plus all collateral charges, including attorney fees and costs, as well as other expenses, the full extent of which are not yet known. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3) times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of $50,000.00. COUNT IV PENNSYLVANIA UNFAIR TRADE PRACTICES AND. CONSUMER PROTECTION CLAIM 44. Plaintiff hereby incorporates all the paragraphs of this Complaint by reference as if set forth at length herein. 45. The Unfair Trade Practices and Consumer Protection Law defines unfair methods of competition to include the following: (xiv). Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to, or after a contract for the purchase of goods or services is made, 46. Plaintiff, as a Pennsylvania resident, believes, and therefore, avers Defendant's failure to comply with the terms of the written warranty constitutes an unfair method of competition. 47. Section 201-9.2(a) of the Unfair Trade Practices and Consumer Protection Law, authorizes the Court, in its discretion, to award up to three (3) times the actual damages sustained for violations of the Act. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3) times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of 550,000.00. DAVID J. GORBERG & ASSOCIATES, P.C. BY: DID J. GORBERG, ESQUIRE Attorney for Plaintiff VERIFICATION The undersigned, after having read the attached pleading verifies that the within Civil Action Complaint is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the Civil Action Complaint is that of counsel and not of signer. Signer verifies that he has read the within Civil Action Complaint and that they are true and correct to the best of the signer's knowledge, information and belief. To the extent that the contents of the Civil Action Complaint are that of counsel, verifier has relied upon counsel in taking this verification. This verification is made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities. Date: X /Si; id"�. Gomer •D rVID J. GORBERG EXHIBIT B PO BOX SOS / WOO liflitirrEFOOD ROW - V¢3OSL- 81402 mg (lin ISS -28111- ate. MEE (ems 23Z-22008• PiOt (ash ISS -M7114 atnravascatsileryffibroatn 11/23/2012 OeatershipName BEASLEY FORD LINCOLN Buyyer's Name JENNA MARKIE TAYLOR Address (City, StateRRand'Zip Code) TOK AE1�{UgOK BLVD RTi'99 58M Email Adgrgss VEHICLE BUYERS ORDER DEAL # 70831 Salesperson RI: N PAIUI POLI FS Business Phone Mobile Phone Co- Buyer's Name N/A Address (City, State and Zip Code) N/A Residential Phone Business Phdne Email Address Mobile Phone THIS BUYERS ORDER IS FOq,IIK FOLLOWING 0 USED 0 DEMONSTRATION OOAR OTRUCK O PRIOR USE N/A A 7NoaneOUT 11/23/2012 MODEL crirrA AIT SPOKE WITH TD COLLISION COVER GE ?4 INS >.ur ADDRESS 6'O WYNO.''.r)ERE RP i714330 -15n: Trim CHARCOAL BL VI Color STERLING GP Mileage Stock # 131559-0 HAI tri3I F z1513[Ll 11'141'1 12 PRICE OF VEHICLE 20284,4( (:A.;ii 2000.0( SYNL UONU'S /OWNER LOYAL1Y 835, GC I'R1VAiE t)FFtli 500.00 N/A N // N/A ^- TTA N// NIP NII{ iJ/A. BL NIA N/A NI N/A RLL ''l =,ii ' : I145.- 5 • . EF[+97.g?" ill: %.%/ 3/,.()r 774"Y WARRANTY';INFORMATIO. FACTORY WARRANTY • The manufacturers wemnty coratttaos as d gte wanardfes wTh respect to the rile of Hs iWn0ona The seller hereby expressly disclaims ea warranlles, Wpm expressed os Implied Including any Implied Narrealy of met chantabfilly or ghtass for a perfhxder purpose, and the seller reeler assumes nor outathee any Other parson b s m ne far A any lobby In mnnadon wtlh the sale of Ws IIarnMems. © USED CAR WARRANTY • Used DP is caxered by a kited vrarramy detest Ina separate stemmed lbu nay abtatn a W copy of nay applicable warranty from to. ❑ AS IS • THIS MOTOR VEHICLE 15 SOLD 'AS IS' WfnIOUT ANY WARRANTY EITHER EXPRESSED OR LUPUS). THE PURCt1ASETj WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY DEFECT THAT PRESENTLY EXISTS_OR MAT MAY CUFlJN THE VEHICLE PURCHASER'S,' t j SIGNATURE X,__. .,+ -1- ,_/�l/-I- — USED CAR BUYERS GUIDE:,THE INFORMATION YOU SEE ON THE WINDOW FORM FOR THIS VEHICLE IS PART OF THE CONTRACT. INFORMATION ON THE WINDOW FORM OVERRIDES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE. GUEA PARA COMPRADORES DE VEHFCULOS USADOS. LA INFORMACION QUE VE EN EL FORMULARIO DE LA VENTANILLA PARA ESTE VEHICULO FORMA PARTE DEL PRESENTE CONTRATO, LA INFORNIACIGN DEL FORMULARIO DE LA VENTANILLA DEJA-SIN EFECTO TODA DISPOSICIGN EN CONTRARIO CONTEMN EN El. CONTRATO DE VENTA. If you cancel this purchase agreement or refuse to take delivery of the vehicle ordered, except as permtttedhy law, you shall, et our option, fortelt as damages the amount of S N r� K PURCHASER'S SIGNATURE X h Price of Vehicle & Accessories Sales Tax 944 PTA Tax ($1.00 PER TIRE) r. REo0,4 Ol`N :0450 TRANSF W A ENCIRl63. Temporary Registration Plate Fee 10.0 Documentary Fee 129.0 1 r" 1 Notary Fee N/ On -Line Registration Fee falft 14.5 N/ N/ A Is Su *Payoff TToourM Verllioatlon Ttade-In Totat Price NIA Payoff * N/A Net Trade to Deposit Cash on Delivery N/A NIA ...200.00. NetOepostt « Cash on m Trade Delivery Total Down Payment .ria 200.00 Unpaid Balance ofTote! Price 16710.00L Buyer agrees that this Agreement includes all of the terms and condit'ons on the front and back side hereof, that this Agreement cancels and supersedes any prior agreement including oral agreements, and as of the date below comprises, with any retail Installment sale contract, the complete and exclusive statement of the terms of the agreement relating to the subject matters covered by this Agreement. Buyer, by signing this Agreement, acknowledges that he has read its terms and has received a true copy of this Agreement, This Agreement Is not binding upon either Dealer or Buyer until signed by an authorized Dealer representative. YOU, THE BUYER, MAY CANCEL THIS AGREEMENT AND RECEIVE A FULL REFUND ANY TIME BEFORE RECEIPT OF A COPY OF THE AGREEMENT SIGNED BY AN AUTHORIZED DEALER REPRESENTATIVE BY GIVING WRITTEN NOTICE OF CANCELLATION TO DEALER. o BUYER ACKNOWLEDGES THAT IF THIS BOX IS CHECKED, THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE. BUYER HAS READ ALL PAG : OF THIS AGREEMENT AND AGREES TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT. 1. BUYER SIGNS MANAGER'S APPROVA CO -BUYER SIGNS X A DATE 11/23/2012. Be Accepted ByAo Aomorke t Reprm.andisa claire Omar DATE NJA. LAW' FORM NO. 00 -PA (7/10) 02010 The Reynolds end tteynolds Company FO 0R0ER:.wrnymurv.carc 14004N -099C ex 1400•53I*6 tr1E PRnrTER 1AXES NO WAMAIHOY. DPRESS OR DOWWO. NO TO C0NIEN1 aA 'RN'SS PORPURPOSE OF THIS FORM, CONSULT YOUR MN 4f -O441. COUNSEL 4 EXHIBIT C DOBIS, RUSSELL & PETERSON, P.C. ATTORNEYS AT LAW 326 SOUTH LIVINGSTON AVENUE LIVINGSTON, NEW JERSEY 07039 JAMES 5. D0815• MARY E. FRIEDBERG PAUL K. RUSSELL• JAMES P. PETERSON** *ALSO MEMBER OF N.Y. AND PA. BARS **ALSO MEMBER OF PA. BAR OF COUNSEL FRANCIS J. REILLY (973) 740-2474 TELEFAX n73)740-2484 Email: www.drp-law.com September 23, 2013 David J. Gorberg, Esq. DAVID J. GORBERG & ASSOCIATES, P.C. 32 Parking Plaza, Suite 700 Ardmore, PA 19003 Re: Jenna Taylor v. Ford Motor Company Dear Mr. Gorberg: NEW YORK OFFICE 7 ELK STREET LOWER LEVEL PMBI59 NEW YORK, NEW YORK 10007 (212) 593-3310 PENNSYLVANIA OFFICE 213 YATES AVENUE WOODLYN, PENNSYLVANIA 19094 (6101 689-8698 As you are aware, this office has undertaken the representation of Defendant, Ford Motor Company, and filed an Answer denying all claims of alleged defects, nonconformities, property damage, failure to repair and/or negligent devaluation of the subject vehicle. As all of the claims at issue involve a motor vehicle which is in the sole custody and control of your client, Ford Motor Company hereby demands that the subject matter of this litigation, namely the subject motor vehicle, be preserved throughout this litigation, or until such time .as Ford Motor Company has completed all necessary vehicle inspections for the purposes of adequately preparing its defenses. Should your client determine that during the course of this litigation he/she finds it appropriate to sell, trade or turn in the vehicle pursuant to a lease contract or a voluntary/involuntary repossession, Ford Motor Company will require prior written notification allowing sufficient time to conduct a defense vehicle inspection prior to your client's disposition of the subject vehicle. Should your client dispose of the subject vehicle without sufficient notice to Ford Motor Company, during the course of litigation, Ford will seek any and all appropriate sanctions under the Doctrine of Spoliation as developed in state case law. JPP:jl Very truly yours, EXHIBIT D (HLnr:Jr'ij\J 7(f tirTU Ari "Sfil.L1:11") rail DATE (a • - „ DEAL ::4 'WriEr? r 1 DEMO I I prtr;r1v10uASILr.1°,:01"fiei 11•1;n14:4°RipAZIT-7:x1CAJEMITC114.LE mrAa MY :;Eilif_gyiti oTHEn nFM Trill 01-101.114 il '1 fit! rol.LOWINci /IN SALES I/1 1,1 I t t; 1'; F & I MGR. it' ..t • STOCK 71'i CUSTOMER ft .1., SALES #2, 1 rji• Co-Purchasor Street Address (l)r Ie. (: fujai. RI. Homo Phone Carl ) 119 f...? E -Mall Address SALES MGR. 1 t Dut___21':4-4:-.4.t. • •„, Doe DLll — DOB Stale 1.1 2ip Bus, Phon /1) 1 4il• (,,712 Cell Phone TPP Number LUNG PRICE SELLER INSTALLED EQUIPMENT: The tot owing options which have been provided through your dealer, are not products o the tnEtnufacturer, Please note that any warranty on these items is not through the manufacturer and should ihe need arise, you shoutd contact your dealer or the vendra that proOdett the option. CCESSORBSIPRODUOTBASECIVICE frfl OLDER PAYOFF INFORMATION IOTA. se No I- ► EEs•`DI6i"UIiNT+WtJrOR TRAi 4>1 A1LOwANC F...0‘... 3xt'R , La! "'=k'$ « .Y: z:•u ••'�"' ^• •• - ar ORiM'Cac WI a zxxnt ere,. '3 (094,•s 0, eievPs Qt SZ 1,1 a 1090 ` w` 5:-e We rx•u,te ;v1 tVen Oo nateii sc a 's•0 t r r teNage` n}, fen • „• t� . I.1 .rxi a• r� um nvs e r.+; s4-3ruxifa s::.�vz OrioIraf 4anla3o (Y`s An4ia pur_bas� eoree4 to re :aZ4 !or any .it omooec Seller mei rotr J ony I .ibove aovir efes a4, wsstrsrs I+satuc;+B jmprwYs tees orrs cesIz. -•' Pvavr set :-ni.0e i'NAS' above 9P+p,-ltY 61434: • 4# • ACCESSORIES'PRODUCTSSERVlCES: You rove elette4 purc ssasc ttta Ggtcu,ai dams Wed. The Setter does nol In'Perchsiao anp of mos:, item The Q.ntount to Mesa ittres ropresenIs cO eitd Sade Seo TEAMS AND CONDITIONS c,n / erse side. --- s such ng. Dealer for Own 1n. •• rrser�o s rtisents casts and . androfit to perm daaiments_relaied to the , �' eh dos. and P7vpe< ti sola. t t�; rtt1.1: WARRANTY STATEMENT WE ARE SELLING THIS VEHICLE TO YOU ASIS AND WE EXPRESSLY' DISCLAIM ALL WARRANTIES. EXPRESS OR IMPUED.1NCWDING ANY IMPLIED W.4RRAn1T1Es OF MEACHANTABIUTY OR FITNESS FORA PART1l:ULAA PURPOSE: UNLESS OTHERWISE INDICATED BELOW.` ALL WARRANTIES: IF, ANY, HY A NIANUFACiUREROR StJi'P1.1ER OTHER THAN OUR DEALERSHIP ARE ?Hans. Nor OURS, AND ONLY SUCH. MANUFACTURER bF1.OTHER SUPPLIER SHALL. E LIABLE FOR PERFORMANCE UNDER,,. $UGU WARRAN11ES,WE:NEITHER ASSUME.NORAUTHORIZE ANY OTHEI PEON; 112 FOR -U.9 ANY UABLUTY IN CONNECTION WITH THE SALE-OFTHE. VE}{if:l FANO; TNEBE1:ATED:GOODS'AND SERVICES. IF WE SELLSERVIGE. G NJTRAcr ON OUR OWN BEHALF, ANY.IMPUED WARRANTIES 14114- APPLY. 'ONLY YIWfTH.RESPEaCT TOME ITEMS COVERED IN THE SERVICE CONTR ? (USED' VEHICLES ONLY'},. r�o*irPAc'i3bu;: STATEMENTN INFO �N 1fOU SEE ON THE W1NDOWARM FOR 'Op VEHIC IS . CtJHTRACT INFORMATIONON THE WFNDOW FOR1A O ANY k�01�11SIONS THE CxO TRAOT OF sU8rQTAL .. .eta.:-........,. . � .. .. .. ..o.. ... .�. «. ... • ..... .. IMPORTANT ADDITIONAL I ERi:alS Ai`_D CO'1I)I t,JI?S 0\1 3'.CI( _ Pr. •,SER r ::l E G HE OR f:•u; F?;IS fir;2r ALL THE FORE'.:O;'.G FIEPRES:1 .TA i$ tifiV �1� :� i. -� G I t: T ,• ,f)1'... += ti ?- E:RE DOBIS, RUSSEL & PETERSON, P.C. By: James P. Peterson, Esq. #77315 213 Yates Avenue Woodlyn, Pennsylvania 19094 Tel: (610) 689-8698 Attorneys for Ford Motor Company JENNA TAYLOR, Plaintiff, v. FORD MOTOR COMPANY, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION CASE NO: 13-4543 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT, FORD MOTOR COMPANY'S MOTION TO DISMISS FOR SPOLIATION I. Matter before the Court: Whether the Defendant's Motion to Dismiss for Spoliation should be granted in Tight of the fact that Plaintiff intentionally deprived Defendant of access to the sole property at issue in this litigation prior to serving the complaint by unilaterally spoliating the subject evidence. II. Statement of the question involved: Should the Defendant's Motion to Dismiss for Spoliation be granted in light of Plaintiff s intentional and unilateral spoliation of the subject vehicle? Suggested Answer: Yes. III. Facts: Plaintiff, Jenna Taylor, commenced the instant action by filing a Civil Complaint with the Cumberland County Court of Common Pleas on or about August 7, 2013. (Exhibit "A"). In the Complaint, Plaintiff asserts causes of action under the Pennsylvania Lemon Law, the Magnuson Moss Warranty Improvement Act, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law. (Exhibit "A"). The sole property at issue in this matter is a 2013 Ford Focus vehicle allegedly purchased by Plaintiff. (Exhibit "A" and Exhibit "B"). The vehicle itself is pivotal tangible evidence in a case such as this. Despite this fact, relinquished possession of the vehicle before the defendant was even served with the complaint. (Exhibit "C"). Plaintiff has asserted a claim against a vehicle manufacturer alleging a manufacturing defect specific to the vehicle in question. (See Exhibit "A"). Despite this, Plaintiff unilaterally spoliated the subject vehicle with no notice to moving Defendant. Simply put, Plaintiff in this matter has intentionally deprived Defendant of access to the sole property at issue in this litigation at the time of trial by unilaterally spoliating the subject evidence. Accordingly, moving Defendant has filed a Motion to Dismiss for Spoliation and now offers the instant Memorandum of Law in support thereof. IV. Argument: "Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Select Medical Corp. v. Hardaway, 2006 U.S. Dist. LEXIS 15326 (E.D.Pa. 2006) (citing MOSAID Techs, Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332, 335 (D. N.J. 2004)) (internal quotations omitted). "The sanctions generally available after a finding of spoliation include ... dismissal of a claim or granting judgment in favor of a prejudiced party ...." Motown Record Co., LP v. DePietro, 2007 U.S. Dist. LEXIS 11626, note 50 (E.D.Pa. 2007) (citing Paramount Pictures Corp. v. Davis, 234 F.R.D. 102, 110-111 (E.D.Pa. 2005)); See also EEOC v. Smokin' Joe's Tobacco Shop, 2007 U.S. Dist. LEXIS 62047 (E.D.Pa. 2007) ("A court can impose sanctions for spoliation including dismissal of a claim or granting judgment in favor of a prejudiced party ...."). "A particular sanction is not mandated by any rule of law, but rather, the decision is left to the discretion of the Court." Motown Record Co., LP v. DePietro, 2007 U.S. Dist. LEXIS 11626, note 50 (E.D.Pa. 2007) (citing Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3rd Cir. 1994)). "Spoliation sanctions ... serve a punitive function, by punishing the spoliator for its actions ...." EEOC v. Smokin' Joe's Tobacco Shop, 2007 U.S. Dist. LEXIS 62047 (E.D.Pa. 2007) (citing MOSAID Techs, Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332, 335 (D. N.J. 2004)) (internal quotations omitted). In Schmid, supra , the Third Circuit Court of Appeals set forth "the factors to be considered in determining an appropriate sanction for failure to preserve evidence: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party, and (3) the availability of a lesser sanction that will protect the opposing party's rights and deter future similar conduct." Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3rd Cir. 1994). The Pennsylvania Supreme Court then adopted these criteria. Schroeder v. Dept. of Transportation, 551 Pa. 243, 251 , 710 A.2d 23, 27 (Pa. 1998) ("Having considered this authority, we adopt the Third Circuit's approach to the spoliation of evidence in Schmid."). The lower Pennsylvania Courts have recognized the Supreme Court's adoption of the Schmid criteria and have applied those three (3) criteria to cases in which evidence was spoliated. See, Eichman v. McKeon, 824 A.2d 305 (Pa.Super. 2003). In the instant matter, Plaintiff claims a manufacturing defect specific to the vehicle in question. (See Exhibit "A"). "The prejudice to a defendant from spoliation of evidence is greater in a manufacturing defect action where the alleged defect is unique to a particular product ...." Tripp v. Ford Motor Company, 1996 U.S. Dist. LEXIS 9395 (E.D.Pa. 1996). In Tripp, a case against a vehicle manufacturer, the Court noted that "a defendant in a products liability case is entitled to summary judgment when loss or destruction of evidence deprives the defense of the most direct means of countering plaintiff s allegations." Id. (citing Lee v. Boyle -Midway Household Products, Inc., 792 F.Supp. 1001, 1005 (W.D.Pa. 1992)) (emphasis added). That is precisely what occurred in the instant matter. Plaintiff has asserted a claim against a vehicle manufacturer alleging a manufacturing defect specific to the vehicle in question. (See Exhibit "A"). Despite this, Plaintiff unilaterally spoliated the subject vehicle with no notice to moving Defendant, resulting in insurmountable prejudice to Defendant, Ford Motor Company. V. Conclusion / Relief Sought: Plaintiff has unilaterally spoliated the subject vehicle. Plaintiffs spoliated the only tangible evidence at issue in this matter without any notice to Defendant. Plaintiffs have deprived Defendant of the ability to access the subject vehicle at the time of trial. Accordingly, moving Defendant respectfully requests that this Honorable Court grant the instant Motion to Dismiss for Spoliation and dismiss Plaintiff s claims against moving Defendant with prejudice. Esq. (77315) PETERSON, P.C. venue Pennsylvania 19094 0) 689-8698 ATTORNEYS FOR FORD MOTOR COMPANY JENNA TAYLOR, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. FORD MOTOR COMPANY, DEFENDANT NO. 13-4543 CIVIL IN RE: DEFENDANT'S MOTION TO DISMISS ORDER OF COURT AND NOW, this 15" day of October, 2014, upon consideration of the Defendant's Motion to Dismiss, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Plaintiff, Jenna Taylor, to show cause why the relief requested by Defendant should not be granted; 2. Jenna Taylor shall file an Answer to the Motion on or before November 14, 2014; 3. Hearing/Argument on the matter will be on held on Friday, January 9, 2015, at 10:30 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, 4k-� -Mmm C-) � - M. L. Ebert, Jr., J. z -<D o t' Emma Chiampou, Esquire CCD �• -T; (David J. Gorberg, Esquireac' � zr Counsel for Plaintiff cz c5 C> James P. Peterson, Esquire Counsel for Defendant bas DAVID J. GORBERG & ASSOCIATES, P.C. By: David J. Gorberg, Esq. Identification No. 53084 32 Parking Plaza, Suite 700 Ardmore, PA 19003 215-665-7660 JENNA TAYLOR vs. FORD MOTOR COMPANY Attorney for Plaintiff CASE NO: 13-4543 CI PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Jenna Taylor, by and through her attorneys, David J. Gorberg & Associates, submits the following response in opposition to Defendant's Motion to Dismiss for Spoliation: 1. Admitted. 2. Denied. In the complaint, Plaintiff asserts causes of action under the Pennsylvania Lemon Law, Magnuson -Moss Warranty Act, Uniform Commercial Code and Unfair Trade and Practices Act. 3. Denied. The basis for the claim is a 2013 Ford Focus that was purchased by the Plaintiff on November 23, 2012 that contained a defect that could not be fixed in a reasonable about of time. (See Plaintiff's purchase documents attached as Exhibit "A.") 4. Denied. Under Jones v. Nissan, a Plaintiff is not required to have possession of the vehicle to bring an actionable claim under the Magnuson -Moss Warranty Act. Jones v. Nissan, 895 N.E.2d 303 (Ill., 2008.) Additionally, all of the acts under which this claim was brought hinge on whether the vehicle was subject to repair an unreasonable amount of time, thus making the repair records the most pivotal tangible evidence in these types of claims. 73 P.S. § 1954; 73 P.S. §201- 2(1)(xiv); Byrne v. Elfreth, 41 Pa.Super. 572, 578 (1909); Price v. Chevrolet Motor Div., 2000 Pa. Super. LEXIS 4213 (Pa. Super. Ct. December 29, 2000). 5. Admitted. 6. Admitted. 7. Denied as a statement of law as to which no response is needed. 8. Denied as a statement of law as to which no response is needed. However it should be noted that dismissal is the most serious sanction available, and usually if a less severe sanction is present that corresponds with the willfulness of the destructive act and the prejudice suffered by the victim, it should be used. See Tripp v. Ford Motor Co., 1996 WL 377122 (E.D. PA., 1996.) 9. Denied as a statement of law as to which no response is needed. 10. Denied as a statement of law as to which no response is needed. 11. Denied as a statement of law as to which no response is needed. 12. Denied as a statement of law as to which no response is needed. 13. Denied. In the instant matter, the Plaintiff claims that a defect arose in the vehicle during the warranty period that could not be fixed in a reasonable amount of time by Defendant's authorized dealerships, thus entitling her to damages. The defect that is complained of is not specific to the vehicle in question as the attached service bulletins and customer service satisfaction program documents evidence that these transmissions are a common and known problem. (See Plaintiff's Exhibit "B.") 14. Denied. This defect is not unique to this specific vehicle. Ford has issued numerous technical service bulletins on the issue and even started a consumer satisfaction program that extends a consumer's warranty on the transmissions in 2011-2014 Ford Focus vehicles for this defect. Tripp v. Ford Motor Co. states that a design defect can be determined as well or better by inspecting and testing several products of the same design than by inspecting the product involved in the accident. Therefore, since the defect is not unique to this vehicle, the Defendant is not severely prejudiced by the Plaintiff's disposal of the vehicle as there are other means of investigating the claim. Additionally, it should be noted that Ford's motion for dismissal based on spoliation was denied in Tripp v. Ford Motor Co. 15. Denied. While this is an accurate quote from Tripp, the Court made this comment in reference to cases in which a plaintiff, in a products liability claim, alleges a defect unique to their specific item. (See Tripp v. Ford Motor Co., Plaintiff's Exhibit "C.") The Court also noted that other considerations must be evaluated as well, that include the degree of fault of the party who altered and destroyed the evidence; the degree of prejudice suffered; and whether there is a lesser sanction that will avoid substantial unfairness to the opposing party. Here, the Plaintiff did relinquish possession of the vehicle, but not out of bad faith. Instead, the vehicle was traded in due to Ford's failure to fix the transmission defects in a reasonable amount of time. The vehicle was also inspected at least three times by Ford mechanics and all of this information is documented in the repair orders. (See Plaintiff's Exhibit "D.") There also is a lesser sanction available and that is the "spoliation inference" that the evidence destroyed would have been unfavorable to the position of the party whose action made the evidence unavailable. 16. Denied. First, the case of Lee v. Boyle -Midway Household Products involved a can of drain cleaner that the plaintiff alleged exploded and injured him. The destruction of this can was paramount because one of the main disputes was the identity of the product at issue. Here, however, there is a purchase agreement showing that the vehicle in question is a vehicle manufactured and warranted by Ford, along with at least three repair orders from Ford technicians who inspected the attempted to repair the vehicle. Second, Defendant's reference to Tripp v. Ford Motor Co., is moot as the motion for dismissal was denied, so the allegation that the Defendant is "entitled" to summary judgment in these circumstances is incorrect. 17. Denied. The Plaintiff has asserted a claim against the Defendant claiming that a manufacturing defect arose during the warranty period, that could not be fixed in a reasonable amount of time, thus entitling her to damages. This defect is not specific to the vehicle in question as evidenced by the attached documentation. 18. Denied. Due to the transmission defects in the vehicle, the Plaintiff was forced to trade into a new car, at a financial loss, as it posed a serious safety risk. The Defendant was not given notice, however, the vehicle was inspected and attempts at repair were made at least three times by Ford mechanics, and all of which is documented and attached. 19. Denied. The Plaintiff did not rid of the vehicle to "intentionally deprive Defendant of access." The Plaintiff traded in the vehicle as the transmission defect was inherently dangerous and since Ford was unable to fix this problem in a reasonable amount of time, the Plaintiff exchanged it for a different vehicle. 20. Denied. Based on the foregoing, the Plaintiff respectfully requests this Honorable Court to DENY the Defendant's Motion for Summary Judgment based on spoliation of the evidence. WHEREFORE, based on the foregoing, the Plaintiff respectfully requests this Honorable Court to DENY the Defendant's Motion for Summary Judgment based on spoliation of the evidence. Respectfully submitted, David J. Gorberg, Esq. David J. Gorberg & Associates 32 Parking Plaza, Suite 700 Ardmore, PA 19003 215-665-7660 Attorney for the Plaintiff, Jenna Taylor Dated: October 15, 2014 DAVID J. GORBERG & ASSOCIATES, P.C. By: David J. Gorberg, Esq. Identification No. 53084 32 Parking Plaza, Suite 700 Ardmore, PA 19003 215-665-7660 Attorney for Plaintiff JENNA TAYLOR vs. FORD MOTOR COMPANY CASE NO: 13-4543 PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED ON SPOILATION Plaintiff, Jenna Taylor, by and through her attorneys, David J. Gorberg & Associates, submits the following memorandum of law in opposition to Defendant's Motion to Dismiss for Spoliation: I. Questions Presented Whether the Defendant's Motion for Summary Judgment should be denied when the Plaintiff did not rid of the vehicle in bad faith, the prejudice against the Defendant from the destruction of evidence is not prohibitively high, and lesser sanctions are available that are proportional to the severity of the offense other than dismissing the action. Suggested Answer: YES II. Facts On or about November 23, 2012, the Plaintiff, Jenna Taylor, purchased a new 2013 Ford Focus from Beasley Ford in York, Pennsylvania. The purchase price of the vehicle was $20,284 (not including taxes and fees), and in exchange for this amount, the vehicle included a three year thirty-six thousand mile bumper to bumper warranty and a five year, sixty thousand mile powertrain warranty. This warranty stated that should a manufacturing defect arise that is not the result of abuse or misuse by the owner, Ford will repair the problem at no charge to the consumer. Less than five months and sixty five hundred miles after purchase, the Plaintiff returned to an authorized Ford dealership for a shudder emanating from the transmission when accelerating. The dealership road tested the vehicle, checked for codes, and ultimately, reprogrammed the powertrain control module (PCM) and the transmission control module (TCM) along with performing an adaptive learning strategy test. This attempt at repair, however, was not successful and less than one hundred miles later, the Plaintiff again returned to the dealership complaining of a shudder when the transmission changes gears. The technicians road tested the vehicle and felt the clutch shudder/chatter on acceleration. Repairs were performed according to a TSB or technical service bulletin that was issued by Ford. A manufacturer issues a technical service bulletin when a common defect arises amongst certain models. This bulletin describes the condition, the vehicle models affected, and an explanation on how to attempt to fix the problem. The dealership performed a TSB related to the defects found on the test drive that included reprogramming the PCM/TCM (again) and competing an adaptive relearn and drive cycle. After these repairs were performed, the problem did not resolve and the technicians ultimately replaced the clutch and seals. This repair required the vehicle to be out of service for almost more than thirty (30) days, but still was not successful. Less than a month later, the Plaintiff returned to the dealership for a shudder while changing gears. The technicians test drove the vehicle and verified the shudder. Oil was found between the transmission and engine, so the technicians replaced the inner seal, and again replaced the clutch due to oil contamination. A shift drum and clutch adaptive learn were also performed and the vehicle was returned to the Plaintiff. Even with these three repairs, the defect did not subside and less than two months after the last repair, the Plaintiff traded the vehicle in for another. The Plaintiff rid of the vehicle because she did not feel safe in a vehicle whose transmission could not be repaired after three attempts and more than a month out of service. The Defendant has now filed a Motion for Summary Judgment requesting that the Plaintiffs claim be dismissed due to spoliation. III. Argument Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving part is entitled to judgment as a matter of law. Knabe v. Boury, 114 F.3d 407 (3`d Circ., 1997.) In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. Colon v. Colonial Intermediate Unit 20, 443 F.Supp.2d 659 (M.D. Pa., 2006.) The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving part. Id. Once the moving party satisfies this burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, admissions or answers to interrogatories to show that there is a genuine issue for trial. Id. It is with this information mind that the Court must determine whether a motion to dismiss the claim based on spoliation is appropriate. Usually, when a Plaintiff destroys evidence relevant to the dispute being litigated, the trier of fact is permitted to make the "spoliation inference," meaning, it can be inferred that the spoiled evidence would have been unfavorable to the position of the party whose action made the evidence unavailable. Tripp v. Ford Motor Co., 1996 WL 377122 (E.D. Pa., 1996.) However, in Tripp, like the case here, Ford was seeking to have the motion entirely dismissed for spoliation, which is the most serious sanction that can be taken against a party who destroys evidence, and the Court in Tripp even noted that it doubted the district court has the inherent authority to impose such a drastic action in an appropriate case. Id. In determining whether to sanction a plaintiff for the destruction of evidence, the following must be considered: 1) the degree of fault of the party who altered or destroyed the evidence; 2) the degree of prejudice suffered by the opposing party; and 3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and where the offending party is seriously at fault, will serve to deter such conduct in others in the future. Id. A. The degree of fault of the party who altered or destroyed the evidence. A Plaintiff who brings an action alleging an injury as a result of a defective product has a duty to preserve the product for defense inspection. Id. In Tripp, the Plaintiffs were at fault for the loss of the fiesta. There was a disagreement between the Plaintiffs and Ford regarding "holding" the Fiesta for inspection, but the Court held that the Plaintiffs were at fault, but did not act in bad faith. Here, the Plaintiff is at fault for trading in the Fiesta, but similar to the plaintiffs in Tripp, she did not act in bad faith. The Plaintiff returned to an authorized Ford dealership no less than three times for the transmission to be repaired, and after more than thirty days out of service, the transmission problems remained. Out of concern for her safety and the reliability of the vehicle, the Plaintiff traded it in. It is apparent that the Plaintiff is responsible for the destruction of the evidence, but it was not done in bad faith. B. The degree of prejudice suffered by the opposing party. In determining the degree of prejudice, the type of product defect alleged is important. Id. The Court must distinguish a manufacturing defect claim where the plaintiff alleged the particular product causing the injuries was defectively manufactured, from a design defect case where the plaintiff claims injuries caused by a defect inherent in the design common to all products of that model. Id. In Schmid, the Court of Appeals observed that matters relating to design defects can be determined as well or better by inspecting and testing several products of the same design than by inspecting the product involved in the accident. Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3"I. Cir. 1994.) Here, the defect alleged in Plaintiff's complaint is common amongst many Ford vehicles, including other 2013 Ford Focus vehicles. The attached documentation shows that Ford has acknowledged that 2011-2014 Ford Focus vehicles have transmission problems, and has issued technical service bulletins attempting to remedy the problem, along with creating a customer satisfaction program that extends the warranty on these transmissions due to the defects. This coupled with the fact that Ford technicians were able to inspect, test drive and attempt to repair this vehicle no less than three times evidences that the prejudice against the Defendant in this case is not great. C. Whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. The courts should select "the lease onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim." Id. In Tripp, the Court denied Ford's request to dismiss the claim as it would be too harsh. Id. The Court agreed that the plaintiffs were at fault, but there is no evidence of bad faith on their part, the prejudice suffered by Ford was not prohibitively high, and there is the lesser sanction available of the "spoliation inference," discussed above. Id. Here, the Plaintiff is at fault for the destruction of evidence, but there is no evidence that she acted in bad faith. There is also prevailing case law showing that if a defect is not specific to the actual product, then the Defendant is not severely prejudiced by the destruction of the evidence as they can investigate the claim as well if not better using other products of a similar or like kind. Additionally, the Defendant's technicians were able to inspect and test drive this vehicle no less than three times prior to trade in. And finally, there is the lesser sanction of the "spoliation inference" available to the Defendant, as dismissing the entire claim would be too severe in a case lacking any bad faith or prohibitively high prejudice to the Defendant. IV. Conclusion WHEREFORE, in light of the foregoing, the Plaintiff respectfully requests this Honorable Court DENY the Defendant's Motion for Summary Judgment as the evidence was not destroyed in bad faith, the Defendant is not severely prejudiced by the destruction, and lesser sanctions are available. Respectfully Submitted, d J. Gorberg, Esq. David J. Gorberg & Associates 32 Parking Plaza, Suite 700 Ardmore, PA 19003 215-665-7660 Attorney for the Plaintiff, Jenna Taylor Dated: October 15, 2014 DAVID J. GORBERG & ASSOCIATES, P.C. By: David J. Gorberg, Esq. Identification No. 53084 32 Parking Plaza, Suite 700 Ardmore, PA 19003 215-665-7660 Attorney for Plaintiff JENNA TAYLOR vs. FORD MOTOR COMPANY CASE NO: 13-4543 CERTIFICATE OF SERVICE I, David J. Gorberg, do hereby certify that service of a true and correct copy of the within Response to Defendant's Motion for Summary Judgment was made on the October 15, 2014 to counsel listed below via electronic mail: DOBIS, RUSSELL & PETERSON James P. Peterson, Esquire 326 S. Livingston Avenue Livingston, N.J. 07039 jpeterson@drp-law.com DAVID J. GORBB & ASSOCIATES, P. erd J. Gorberg, Esquire David J. Gorberg & Associates, P.C. 32 Parking Plaza, Suite 700 Ardmore, PA 19003 215-665-7660 BY: Attorney for Plaintiff, Jenna Taylor LINCOLN PO BOX 31115 / 1801 WD 114EFORD ROAD • RfORM 17:Pi 717401 Plifi (717) 759-2911 - YOWL RON (800) 2305-7X0s • PAX cyln 753-9788 unaray.bestagerygLermatt 11/23/2012 Dealership Name Buyer's Name JENNA MARK IE TAYLOR Address (City, State and. Zip Code) REMNOK 81 1/0 Rmlochar6 Em,ii m,r.css BEASLEY FORO LINCOLN VEHICLE BUYERS ORDER DEAL # 70831 Salesperson RFJ PAM PUP LS 7Tc'i•ayi Business Phone Mobile Phone Co- Buyer's Name N/A Address (City, State and Zip Code) N/A Residential Phone Email Address Business Phdne Mobile Phone THIS BUYERS ORDER IS FORME FOLLOWING KEW 0 USED OQEMONSTRATION 830AR °TRUCK OP IOR USE: NIA TO BE DELIVERED ON OR ABOUT 23/2012 Year Make Model Type Trim Color Mileage Stock # (2013 FM FOCUS SON CHARCOAL 81. A /A ./A TT* ork PHONE1/A SPOKE WITH r/A VF77D BY PanNEMENXIMIEMOIMNIRIMMENIMM41 mnfOINT INS INC i PI -p7 19.38- 450.; ADDRESS 6F,0 WYNOAMERE RD STERLING Gl‘ 0 P 1 3 2151 PRICE OF VEHICLE 41 23 9 202844( 41:21 MILN 20 ' SfNl. LIONLS /OWNEi LOYAL1 835.(.1C PR1VAiE OFFIR 00.0( A N P1 /A 1/ N/P /A N i /A A 1 l 1I`:;'. 'ft'MTN lie. FACTORY WARRANTY • The manufacturer's warranty const»utes 00 of the warranties wf h respect to the hemitems. The seller hereby expressly disclaims all warranties, either expressed or Implied Including any Implied *manly of marehantabhlty or fitness ra a parUcutar purpose, and the seller neither assumes nor Wakes any other person to assume for It any Itablty En connection with the sale of This hemhlems. ❑ USED CAR WARRANTY • Used car la covered by a limited warranty detailed in a separate document. You may obtain a lull copy of any applicable warranty from us. ❑ AS IS - THIS MOTOR VEHICLE IS SOLD 'AS IS' WITHOUT ANY WARRANTY EITHER EXPRESSED OR IMPLIED. THE PURCHASEFI WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY DEFECT THAT PRESENTLY MISCH THAT MAY OCCUR IN THE VEHICLE. PURCHASER'S/- 'i j. SIGNATURE XL-- „i------- :%' 1.• USED CAR BUYERS GUIDE: E INFORMATION YOU SEE ON THE WINDOW FORM FOR THIS HICLE IS PART OF THE CONTRACT. INFORMATION ON THE WINDOW FORM OVERRIDES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE. GUiA PARA COMPRADORES DE VEHICULOS USADOS. LA INFORMACIoN QUE VE EN EL FORMULARIO DE LA VENTANILLA PARA ESTE VEHICULO FORMA PARTE DEL PRESENTE CONTRATO. LA INFORNIACI6N DEL FORMULARIO DE LA VENTANILLA DEJA- SIN EFECTO TODA DISPOSICION EN CONTRARIO CONTENIDA EN EL CONTRATO DE VENTA. If you cancel this purchase agreement or refuse to take delivery of the vehlcle ordered, except as permltted,gy law, you shall, at our option, forfelt'as damages the amount of $ N JJ AA PURCHASER'S SIGNATURE X Purchaser hereby a to the Cash Price of Vehicle & Accessories Sales Tax PTA Tax ($1.00 PER TIRE} REG(,$tjtlltI :f.1 13 -E 5f) TRANSF Temporary Registration Plate Fee Documentary Fee Notary Fee On -Line Registration Fee k N/A FiOTHER, CHARGES VP: 4. 4. N Trade -In eIspayotfSubject AmountTo Less Payoff Verhlcatlon Net Trade In ENGUMS ifIA Total Price ,_,1.691 N/A N/A Deposit Cash on Delivery NIA N/A 200.00. Net Trade + De Cash on F Delivery Total Down Payment Unpaid Balance otTotal Price 167.10.00 Buyer agrees that this Agreement includes all of the terms and conditions on the front and back side hereof, that this Agreement cancels and supersedes any prior agreement including oral agreements, and as of the date below comprises, with any retail installment sale contract, the complete and exclusive statement of the terms of the agreement relating to the subject matters covered by this Agreement. Buyer, by signing this Agreement, acknowledges that he has read its terms and has received a true copy of this Agreement. This Agreement is not binding upon either Dealer or Buyer until signed by an authorized Dealer representative. YOU, THE BUYER, MAY CANCEL THIS AGREEMENT AND RECEIVE A FULL REFUND ANY TIME BEFORE RECEIPT OF A COPY OF THE AGREEMENT SIGNED BY AN AUTHORIZED DEALER REPRESENTATIVE BY GIVING WRITTEN NOTICE OF CANCELLATION TO DEALER. 0 BUYER ACKNOWLEDGES THAT IF THIS BOX IS CHECKED, THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE. BUYER HAS READ ALL PAG ' OF THIS AGREEMENT AND AGREES TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT. BUYER SIGNS MANAGER'S APPROVA DATE 11/23/2012. • Watt Be Accepted By An Authorized Representative Nam Deller) CO -BUYER SIGNS X N A DATE N/A LAw FORM NO. 110 -PA (7110) 02070 The Reynolds and eynolds Company TO ORDER:www.reysource.coam 1400.344.0996; fax 1.800.531.9055 THE PWNTER WAKES NO WARRANTY. EXPRESS OR ILIPUED. As TO CONTENT OR FITNESS FOR PURPOSE OF THIS FORM CONSULT YOUR ONN LEGAL COUNSEL EXHIBIT B Michael A. Berardi Ford Motor Company Director P. 0. Box 1904 Service Engineering Operations Dearborn, Michigan 48121 Ford Customer Service Division TO: All U.S. Ford and Lincoln Dealers July 21, 2014 SUBJECT: Customer Satisfaction Program 14M01 Certain 2011 through 2014 Model Year Fiesta and Focus Vehicles Equipped with a DPS6 Automatic Transmission Transmission Clutch Shudder / Transmission Input Shaft Seal Warranty Extension REF : TSB 14-0131 — Excessive Transmission Clutch Shudder DPS6 Automatic Transmission and/or Transmission Fluid Leak PROGRAM TERMS This program extends the coverage of the DPS6 Transmission input shaft seals, clutch and transmission software calibration to seven (7) years of service or 100,000 miles from the warranty start date of the vehicle, whichever occurs first. If a vehicle has already exceeded the mileage limits, this coverage will last through January 31, 2015. Coverage is automatically transferred to subsequent owners. NOTE: This program DOES NOT apply to vehicles that qualify for repairs under the New Vehicle Limited Warranty Powertrain coverage. Repairs for vehicles covered by New Vehicle Limited Warranty Powertrain coverage should be claimed using the Labor Operation Codes provided in Technical Service Bulletin (TSB) 14-0131. VEHICLES COVERED BY THIS PROGRAM Certain 2011 through 2014 model year Fiesta vehicles equipped with a DPS6 transmission built at the Cuautitlan Assembly Plant from November 3, 2009 through June 5, 2013; and certain 2012 through 2014 model year Focus vehicles equipped with a DPS6 transmission built at the Michigan Assembly Plant from August 1, 2010 through June 5, 2013. Affected vehicles are identified in OASIS. REASON FOR PROVIDING ADDITIONAL COVERAGE Some of the affected vehicles may exhibit excessive transmission clutch shudder during light acceleration. These issues may be due to fluid contamination of the clutch caused by leaking input shaft seals. Vehicles may or may not exhibit transmission fluid leaking from the clutch housing. SERVICE ACTION If an affected vehicle exhibits this condition and is beyond New Vehicle Limited Warranty Powertrain coverage, dealers are to perform diagnosis and repairs consistent with TSB 14-0131. This service must be performed at no charge to the vehicle owner. Produced by Ford in Vargas v Ford Copyright 2014 Ford Motor Company VGS4000001 OWNER NOTIFICATION MAILING SCHEDULE Owner Letters are expected to be mailed the week of July 28, 2014. Dealers should repair any affected vehicles that exhibit excessive transmission clutch shudder during light acceleration, or transmission fluid leaking from the clutch housing, whether or not the customer has received a letter. ATTACHMENTS Attachment I: Administrative Information Attachment II: Labor Allowances and Parts Ordering Information Attachment III: Technical Information Owner Notification Letter with Attachment of Normal Operation of DPS6 QUESTIONS & ASSISTANCE Special Service Support Center (Dealer Assistance Only) 1-800-325-5621 Sincerely, L Michael A. Berardi Produced by Ford in Vargas v Ford tr-N Copyright 2014 Ford Motor Company VGS4000002 ATTACHMENT I Page 1 of 2 Customer Satisfaction Program 14M01 Certain 2011 through 2014 Model Year Fiesta and Focus Vehicles Equipped with a DPS6 Automatic Transmission Transmission Clutch Shudder / Transmission Input Shaft Seal Warranty Extension OASIS ACTIVATED? Yes, OASIS will be activated on July 21, 2014. FSA VIN LIST ACTIVATED? FSA VIN list will not be activated for this service action. STOCK VEHICLES Do not perform this program unless the affected vehicle exhibits the covered condition. SOLD VEHICLES Owners of affected vehicles will be directed to dealers only if the vehicle exhibits the covered condition. TITLE BRANDED / SALVAGED VEHICLES Affected title branded and salvaged vehicles are not eligible for this service action. RELATED DAMAGE If a related damage condition exists that you believe to be caused by the covered condition, call the Special Service Support Center to request approval prior to the repair of any related damage. Requests for approval after completion of the repair will not be granted. ADDITIONAL LABOR TIME • If a condition exists that requires additional labor to complete the repair, call the Special Service Support Center to request approval prior to performing any additional labor. Requests for approval after completion of the repair will not be granted. • If you encounter aftermarket equipment or modifications to the vehicle which might prevent the repair of the covered condition, call the Special Service Support Center. OWNER REFUNDS • Ford Motor Company is offering a refund for owner -paid repairs covered by this program if the repair was performed before the date of the Owner Notification Letter. This refund offer expires January 31, 2015. • Refunds will only be provided for the parts and labor cost associated with repairs to the clutch, transmission input shaft seals, or calibration updates to the transmission software. Produced by Ford in Vargas v Ford © VGS4000003 Copyright 2014 Ford Motor Company ATTACHMENT! Page 2 of 2 Customer Satisfaction Program 14M01 Certain 2011 through 2014 Model Year Fiesta and Focus Vehicles Equipped |th a DP86 Automatic Transmission Transmission Clutch Shudder /Transmission Input Shaft Seal Warranty Extension RENTAL VEHICLES Ford Motor Company will pre -approve one day of vehicle rental. Rentals will only be reimbursed for the day the vehicle is at the dealership for part replacement. FoIIow Extended Service PIan (ESP) guidelines for dollar amounts. The daily rate can include applicable taxes but are must not exceed the stated daily rate. Prior approval for more than one rental day is required from the Special Service Support Center (1-800-325-5621). Up to two days of vehicle rental is pre -approved when replacement of a clutch is required after clutch cleaning, claim with abor operation 1 4M01 E. CLAIMS PREPARATION AND SUBMISSION • Enter claims using Direct Warranty Entry (DWE). • Refer to ACESII manual for claims preparation and submission information. w Related damage must be claimed on a repair line that IS separate from the repair line on which the FSA is daimed. Related damage requires prior approval from the Special Service Support Center. * "MT" abor should be submitted on a separate repair line with the related damage flag checked. "MT" labor requires prior approval from the Special Service Support Center. • Submit refunds on a separate repair line. - Program Code: 14yW01 - Misc. Expense: ADMIN - Misc. Expense: REFUND - Misc. Expense: 0.2 Hrs. • Multiple refunds should be submitted on one repair line and the invoice details for each repair should be detailed in the comments section of the claim. • For rental vehicle claiming, follow Extended Service Plan (ESP) guidelines for dollar amounts. Enter the total amount of the rental expense under Miscellaneous Expense code "Rental". • PROGRAM TERMS: This program extends the coverage of the Automatic Transmission software caibration, clutch, and transmission input shaft seals to seven (7) years of service or 100,000 miles from the warranty start date of the vehicle, whichever occurs first. If a vehicle has already exceeded the mileage limits, this coverage will last through January 31, 2015. • This program DOES NOT apply to vehicles that qualify for reirs under the New Vehicle Limited Warranty. Repairs for vehicles covered by New Vehicle Limited Warranty should be claimed using the Labor Operation Codes provided provided in Technical Service Bulietin 14-0131. If the vehicle is beyond coverage of the New Vehicle Limited Warranty and covered by an Extended Service Plan /E8P\, claim repairsto this program (FSA 14M01) instead of the ESP Produced byFord mVargas vFpm��Copyright 2014 Ford Motor Company vog*oOVoO^ ATTACHMENT II Page 1 of 4 Customer Satisfaction Program 14M01 Certain 2011 through 2014 Model Year Fiesta and Focus Vehicles Equipped with a DPS6 Automatic Transmission Transmission Clutch Shudder / Transmission Input Shaft Seal Warranty Extension LABOR ALLOWANCES Labor allowances are consistent with TSB 14-0131. Repairs for vehicles covered by New Vehicle Limited Warranty should be claimed using the Labor Operation Codes provided in TSB 14-0131. Description Labor Operation Vehicle Application Labor Time Reprogram The TCM Includes pertorming the pinpoint test (Do NotUseVVkhAny O� requireLabor Operations, Does not a prior app - code)1.1 14MO1A 2012-2014MY FOCUS 1.1 Hours 2O11'2O13�YF\ESTA 1.1 Hours 2O14MYF�STA Hours Replace the Clutch and Both Input Shaft Seals Includes reproming the TCM, performing the pinpoint test, and post road test (Do NoUse With Any Other Labor Operations, Does not require a prior approval code) 14M01C 2012-2014MY FOCUS 6.8 Hours 2011'2018MYF|ESTA 6.3 Hours 2014MYF|ESTA 6.7 Hours Clean the Clutch and Replace Both Input Shaft Seals Includes reproraming the TCM, performing the pinpoint test, and post repair data capture (Do Not Use With Any Other Labor Operations Except E, Does not require a prior approval code) 14K8O1D 2012-2014MY FOCUS 7.6 Hours 2011-2013MY FIESTA 7.1 Hours 2014MY FIESTA 7.5 Hours Replace the Clutch after Cleaning This Operation Requires a Prior Approval Code And Can OnIy Be Claimed With Operation D. Includes time for Prior Approval and post road test. (Use with Labor Operation D.Requires nPrior 14k801E^ 2012-2014MY FOCUS 5.9 Hours 2011'2013MYF|ESTA 5.4 Hours 201*MYF|E8T8 5.8 Hours Approval Code) * NOTE: US Ford and Lincoln Deaerships need to obtain prior approval before proceeding with the installation of a new clutch after cleaning (Labor Op E). Refer to Technical Information Attachment for the Prior Approval Process. Produced »yFord inVargas vFmu��Copyright 2014 Ford Motor company mo��V»o»»» ATTACHMENT II Page 2 of 4 Customer Satisfaction Program 14M01 Certain 2011 through 2014 Model Year Fiesta and Focus Vehicles Equipped with a DPS6 Automatic Transmission Transmission Clutch Shudder / Transmission Input Shaft Seal Warranty Extension PARTS REQUIREMENTS / ORDERING INFORMATION Seal Kits (Order er ADDIication Part Number Description Seal Kits Contain all Required Seals and Hardware to Complete the Repair Order Quantity EV6Z-7052-A Focus Seal Kit (see page 4 of 4 for kit contents) Up to 2 Qts EV6Z-7052-B Fiesta Seal Kit (see page 4 of 4 for kit contents) Up to 6 Cans Clutch Assembly(Order er ApDlication Part Number Description Order Quantity BV6Z-7B546-D or BV6Z-76546-F Dual Clutch Assembly Kit • All Focus Vehicles • Fiesta Vehicles built on or after 1/13/2011 Up to 2 Qts AE8Z-76546-D or AE8Z-76546-E Dual Clutch Assembly Kit for Fiesta built on or before 1/12/2011 Up to 6 Cans AE8Z-7007-A Engine to Transaxle Separator Plate —1.6L Engines (Fiesta) 1 (1.6L Only) Other Su lies Part Number Motorcraft and Other Supplies Quantity XT-11-QDC Motorcraft® Dual Clutch Transmission Fluid Up to 2 Qts PM -4-A Motorcraft® Metal Brake Parts Cleaner (Up to 6 Cans Required) Up to 6 Cans XL -2 Motorcraft® High Temperature Nickel Anti -Seize Lubricant As Needed The DOR/COR number for this program is 50549. Order your parts requirements through normal order processing channels. Questions regarding parts should be directed to the Special Service Support Center (1-800-325-5621) or E-mailed to: FordPRenkim.com. Produced by Ford in Vargas v Ford /7-‘ Copyright 2014 Ford Motor Company VGS4000006 Customer Satisfaction Program 14M01 Certain 2011 through 2014 Model Year Fiesta and Focus Vehicles Equipped with a DPS6 Automatic Transmission Transmission Clutch Shudder / Transmission Input Shaft Seal Warranty Extension DEALER PRICE For latest prices, refer to DOES II. PARTS RETENTION AND RETURN Follow the provisions of the Warranty and Policy Manual, Section 1 "WARRANTY PARTS RETENTION AND RETURN POLICIES." ATTACHMENT II Page 3 of 4 EXCESS STOCK RETURN Excess stock returned for credit must have been purchased from Ford Customer Service Division in accordance with Policy Procedure Bulletin 4000. Produced by Ford in Vargas v Ford 6;\ VGS4000007 Copyright 2014 Ford Motor Company ATTACHMENT II Page 4 of 4 Customer Satisfaction Program 14M01 Certain 2011 through 2014 Model Year Fiesta and Focus Vehicles Equipped with a DPS6 Automatic Transmission Transmission Clutch Shudder / Transmission Input Shaft Seal WExtension SEAL KIT CONTENTS Focus Seal Kit ( Kit Qty Part Number Input Shaft SeaInner 1 AE8Z-7052D o,AE8Z-7052-C Clutch -To -Hollow Input Shaft Snap Ring 1 AE8Z-7064-A Input Sha�So�O�er 1 AE8Z-7048-C orAE8Z7048'B Clutch Snap Ring (Repiace if Reusing Original Clutch) 1 AE8Z'7084-B TranaaxoInput Shaft/Spline Lubricant 1 3U7Z-19A500'BA F|oxp|atn-To'C|u1ohNut 6 VV705448'S441 Bearing Retainer Strap 1 YS4Z-3N324-AA Bearing Retainer Strap Nut 2 W520102 -S442 Halfshaft Seal Kit 2 AE8Z-1S177'B Bali Joint Bolt 2 VV715491'S442 Bali Joint Nut 2 VV520415'8442 Fiesta Seal Kit (EV6Z-7052-B) Kit Qty Part Number lnput Shaft Seal Inner 1 AE8Z'7052'D or AE8Z-7052-C Clutch-To-HoIlow lnput Shaft Snap Ring 1 AE0Z'7064'A lnput Shaft Seal Outer 1 AE8Z-7048C or AE8Z-7048-B Clutch Snap Ring (Reptace If Reusing Original Clutch) 1 4E0Z-7064'B Tmnuox|mInput Shaft/Spline Lubricant 1 9U7Z'19A506'BA F|exp|ato'To'C|uichNu\ 6 VV705448'G441 Bearing Retainer Strap 1 YS4Z-3N324-AA Bearing Retainer Strap Nut 2 VV520102-S442 Halfshaft Seal Kit 2 AE8Z'1G177'B Exhaust Gasket | 2S0Z'9450`A Exhaust Nut 2 VV703602'8403 Bali Joint Bolt 2 VY709618'8442 Bali Joint Nut 2 VV520203'8442 Produced uyFord mVargas vFord 0cogyright 2014 Ford Motor Company VGS4000008 INTERMITTENT TRANSMISSION CLUTCH SHUDDER DPS6 AUTOMATIC TRANSMISSION AND/OR TRANSMISSION FLUID LEAK TSB 13-9-4 FORD: 2011-2014 Fiesta 2012-2014 Focus This article supersedes TSB 13-4-5, 12-4-6 and 11-12-13 to consolidate previously released information, update the model years, Service Procedure and Part List. ISSUE Some 2011-2014 Fiesta and 2012-2014 Focus vehicles equipped with a DPS6 automatic transmission may exhibit an intermittent transmission clutch shudder on light acceleration from a stop. Some vehicles may or may not exhibit transmission fluid leaking from the clutch housing. ACTION Follow the Service Procedure steps to correct the concern. SERVICE PROCEDURE 1. Reprogram the powertrain control module (PCM)/transmission control module (TCM) module to the latest calibration using Integrated Diagnostic System (IDS) release 86.01 or higher. Calibration files may also be obtained at www.motorcraft.com. 2. Visually inspect clutch housing for evidence of transmission fluid contamination. Rust preventative coatings are sticky in nature and not indicative of a transmission fluid leak. Is fluid contamination present? a. Yes - proceed to Step 4. b. No - proceed to Step 3. 3. Using IDS, select Powertrain, Transmission, Transmission Adaptive Learning and perform each of the following: a. Transmission Range Sensor Adaptive Learning. b. Shift Drum Adaptive Learning. NOTE: The information in Technical Service Bulletins is intended for use by trained, professional technicians with the knowledge, tools, and equipment to do the job properly and safely. It informs these technicians of conditions that may occur on some vehicles, or provides information that could assist in proper vehicle service. The procedures should not be performed by "do-it-yourselfers". Do not assume that a condition described affects your car or truck. Contact a Ford or Lincoln dealership to determine whether the Bulletin applies to your vehicle. Warranty Policy and Extended Service Plan documentation determine Warranty and/or Extended Service Plan coverage unless stated otherwise in the TSB article.The information in this Technical Service Bulletin (TSB) was current at the time of printing. Ford Motor Company reserves the right to supercede this information with updates.The most recent information is available through Ford Motor Company's on-line technical resources. c. Clutch Adaptive Learning. NOTE PERFORMING THE ABOVE LISTED SERVICE ROUTINES WILL CLEAR ADAPTIVE STRATEGY. FAILURE TO PERFORM ALL STEPS OF THE IDS ROUTINES MAY RESULT IN ERRATIC SHIFTS AND DRIVEABILTY CONCERNS. 4, Using IDS, Datalogger, select the following parameters (PIDS): NOTE IT IS RECOMMENDED THAT YOU USE A UNIVERSAL SERIAL BUS (USB) WIRED CONNECTION BETWEEN THE PERSONAL COMPUTER (PC) AND THE VEHICLE COMMUNICATION MODULE (VCM) WHEN PERFORMING THE FOLLOWING PROCEDURE TO ENSURE ACCURATE RESULTS. a. CLUTCH_A_OPEN b. CLUTCH_B_OPEN c. ISS_A_.RAW d. ISS_B_RAW e. RPM TCM f. GEAR_CMD g. APP1 5. Drive vehicle while monitoring APP1. With APP1 at 18-30%, record the clutch shudder event. a. PID ISS_A_RAW is clutch apply for gears 1, 3, 5. b. PID ISS_B_RAW is clutch apply for gears 2, 4, 6, R. Copyright © 2013 Ford Motor Company Online Publication Date September 5, 2013 PAGE 1 TSB 13-9-4 (Continued) G. Using the playback feature within Datalogger (arrow controls A), position the playback time cursor (B) over the area of the shudder event Figure 1 - Article 13-9-4 7. Using the single (one data step at a time) scrofl bar arrow, position the playback cursor line over the high point of the reading and record RPM value (D) Iisted on the Ieft hand side of ISS_A_RAW parameter. Using the single scroll bar arrow again, carefully position the cursor over the next closest low point of the ISS_A_RAW parameter and record the RPM reading. 8. Subtract the low RPM (Y) from the high RPM (X) reading (e.g. 2129 - 1602 = 527). Q. What is the RPM difference from Step 8? a. If Iess than 250 RPM proceed to Step 10. b. All other vehicles proceed to Step 11. 10. Vehicles with less than 2GO RPM readings and no sign of f!uid leaking, no further action required. Operation is within expected limits. PAGE 2 11. Remove the dual clutch assembly. a. Focus and 2014 Fiesta vehicles refer to VVGyW. Section 307'01. b. 2011'2013 Fiesta vehicles refer to WSM, Section 307-11. 12. Replace both the inner input shaft seal, located between both input shafts and the hollow outer input shaft case seal. a. Focus and 2014 Fiesta vehicles refer to WSM, Section 307-01. b. 2011-2013 Fiesta vehicles refer to VVSyW, Section 307-11. 13. Does clutcshow signof fluid a. Yes-pmneedto Step 14. 14. Clutch shudder repair or replacement. a. If the dual clutch assembly is contaminated with transmission fluid and the RPM readings are 250 to 350 proceed to Step 15. b. 11 the duai clutch assembly is not contaminated with any type of fluidand the RPM readings are 250 or over, or contaminated ctutches with readings over 350 RPM the dual dutch assembly must be replaced. Proceed to Step 16. 15. Place the dual clutch assembly in an upright position on the bench, paint a mark at a 12 o'clock position of the dual clutch assembly. a. Clean clutch friction material using Motorcraft® Metal Brake Parts Cleaner or equivalent that contains 60% acetone. Use extreme caution to keep solvent off of the internal clutch bearing assembly by always spraying solvent in the down direction. Bend the plastic spray nozzle to help direct the spray into the clutch discs. (Figure 2) Figure 2 - Article 13-9-4 b. Spray Motorcraft® Metal BrakParts Cleaner or equivalent that contains 80% acetone in a downward direction on each friction disc. Rotate the entire clutch assembly to the 3 o'clock position repeat process six (6) times while spraying on both sides of the clutch plates. (1) Front of clutch one disc. (Figure 2) (2) Rear of clutch one disc. (Figure 3) TSB 13-9-4 (Continued) Figure 3 - Article 13-9-4 (3) Front of clutch two disc. (Figure 4) Figure 4 - Article 13-9-4 (4) Rear of clutch two disc. (Figure 5) Figure 5 - Article 13-9-4 (5) Solvent cleaner tip angle to avoid bearing contact. (Figure 2) c. Spray until contamination is removed and only clear solvent is seen dripping at the bottom of the clutch assembly PAGE 3 TSB 13-9-4 (Continued) 16. Install the cleaned or new replacement dual clutch assembly. a. Focus and 2014 Fiesta vehicles refer to WSM, Section 307-01. b. 2011-2013 Fiesta vehicles refer to WSM, Section 307-11. 17. Install transmission assembly. a. Focus and 2014 Fiesta vehicles refer to WSM, Section 307-01. b. 2011-2013 Fiesta vehicles refer to WSM, Section 307-11. 18. Use IDS release 86.01 to perform TCM Adaptive Learn and Clutch routine which no longer requires an adaptive drive to reset the clutch touch points. PART NUMBER PART NAME BV6Z-7B546-D Dual Clutch Assembly Kit (Focus & Fiesta Built After 1/12/2011) AE8Z-76546-D Dual Clutch Assembly Kit (Fiesta Built To 1/12/2011) AE8Z-7064-A Clutch -To -Hollow Input Shaft Snap Ring (Focus) AE8Z-7064-B Clutch -To -Hollow Input Shaft Snap Ring (Fiesta) AE8Z-7007-A Engine-to-Transaxle Separator Plate (Fiesta) W703662-5403 Exhaust Nut (Fiesta) 2S6Z-9450-A Exhaust Gasket (Fiesta) W520203 -S442 Ball Joint Nut (Fiesta) W709618 -S442 Ball Joint Bolt (Fiesta) W715491 -S442 Ball Joint Bolt (Focus) W520415 -S442 Ball Joint Nut (Focus) AE8Z-1S177-A Halfshaft Seal Kit (2 Req) AE8Z-7048-B Input Shaft Seal Outer AE8Z-7052-C Input Shaft Seal Inner W705448 -S441 Flexplate-To-Clutch Nut (2 Pkg Req) YS4Z-3N324-AA Bearing Retainer Strap W520102 -S442 Bearing Retainer Strap Nut 9U7Z-19A506-BA Transaxle Input Shaft/Spline Lubricant XL -2 Motorcraft® High Temperature Nickel Anti -Seize Lubricant XT-11-QDC Motorcraft® Dual Clutch Transmission Fluid (Continued) PAGE 4 PART NUMBER PART NAME PM -4-A Motorcraft® Metal Brake Parts Cleaner (4 Cans Req) WARRANTY STATUS: Eligible Under Provisions Of New Vehicle Limited Warranty Coverage Warranty/ESP coverage limits/policies/prior approvals are not altered by a TSB. Warranty/ESP coverage limits are determined by the identified causal part and verified using the OASIS part coverage tool. OPERATION DESCRIPTION TIME 130904A 2011-2014 Fiesta And 1.1 Hrs. 2012-2014 Focus: Reprogram The PCM/TCM, Visually Inspect For Transmission Fluid Leak, Perform IDS Transmission Clutch Adaptive Learn, Road Test And Record PIDS, Review And Perform Calculations, No Further Action Required. (Do Not Use With Any Other Labor Operations) 130904B 2011-2014 Fiesta: 6.7 Hrs. Reprogram The PCMTTCM, Visually Inspect For Transmission Fluid Leak, Perform Transmission IDS Clutch Adaptive Learn, Road Test And Record PIDS, Review And Perform Calculations, Replace Both Inner And Outer Input Shaft Seals, Clean Clutch And Perform IDS Clutch Adaptive Learn. (Do Not Use With Any Other Labor Operations) 130904B 2012-2014 Focus: Reprogram The PCMITCM, VisuaIIy Inspect For Transmission Fluid Leak, Perform Transmission IDS Clutch Adaptive Leann, Road Test And Record P|OS, Review And Perform Ca|ou|nUono, Replace Both Inner And Outer Input Shaft Gea|o, Clean Clutch And Perform IDS Clutch Adaptive Learn. (Do Not Use With Any Other Labor Operations) 130904C 2011-2014 Fiesta: Reprogram The PCM/TCM, Visually Inspect For Transmission Fluid Leak, Perform Transmission IDS Clutch Adaptive Learn, Road Test And Record P|DS, Review And Perform Ca|uu|ationo, Replace Both Inner And Outer Input Shaft Seals, Replace Ctutch And Perform IDS Clutch Adaptive Learning. (Do Not Use With Any Other Labor Operations) 7.1 Hrs. 6.2 Hrs. TSB 13-9-4 (Continued) 130904C 2012'2014 Focus: Reprogram The PCM/TCM, Visually Inspect For Transmission Fluid Leak, Perform Transmission IDS Clutch Adaptive Learn, Road Test And Record P|DS, Review And Perform Co\nu|o1iono, Replace Both Inner And Outer Input Shaft Geu|u, Replace Clutch And Perform IDS Clutch Adaptive Learn. (Do Not (Jse With Any Other Labor Operations) DEALER CODING BASIC PART NO. 7B546 6.7 Hrs. CONDITION CODE 14 PAGE 5 EXHIBIT C Tripp v. Ford Motor Co., Not Reported in F.Supp. (1996) 1996 WL 377122 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania. Wayne TRIPP and Sara Tripp, his wife v. FORD MOTOR COMPANY. No. CIV.A. 95-2661. 1July 3, 1996. MEMORANDUM and ORDER SHAPIRO, J. *1 Plaintiffs Wayne and Sara Tripp ("Tripps") filed this products liability action against defendant Ford Motor Company ("Ford"). Ford filed a motion for summary judgment based on the unavailability of its allegedly defectively designed product. The motion will be denied. I. Background Jurisdiction is based on diversity; the Tripps are citizens of Pennsylvania, and Ford is a corporation organized under the laws of Delaware, with its principal place of business in Michigan. Plaintiffs seek to recover damages in excess of $50,000. Wayne Tripp had purchased a 1989 Ford Festiva ("Festiva") from his brother in August, 1992. The plaintiffs brother had purchased the car new on January 5, 1989. On May 10, 1993, Wayne Tripp was driving the Festiva when it was struck in the rear by another car. The Tripps allege in their complaint that as a result of the impact, "the metal tracks holding the left front seat ... occupied by Wayne Tripp became deformed and allowed the whole seat including the back rest to collapse and the body of Wayne Tripp to suffer enhanced injuries over that which would have occurred without the defective design and manufactureof said vehicle including its seat tracks and seating systems." The Tripps were insured by Allstate Insurance Company; it declared the Festiva a total loss, and Tech/Cor, a subsidiary of Allstate, took possession of the Festiva. On June 7, 1993, Wayne Tripp advised Tech/Cor there would be an investigation concerning the Festiva. Tripps' attorney also averred he had conversations with two representatives of Tech/Cor and Allstate, from which he understood that the Festiva would be "held" by Tech/Cor; but it is not clear until when he understood it would be held. The two representatives when deposed denied that they were ever given an instruction to hold the Festiva. On October 6, 1993, the attorney and Tripps' liability expert went to the Tech/Cor facility to inspect the Festiva; the expert took photographs and measurements of the Festiva and its parts and removed the allegedly defective driver's seat and seat tracks. On May 5, 1995, the Tripps filed their complaint, alleging that Ford was strictly liable for the defective design of the Festiva, including its seat tracks and seating systems. On June 2, 1995, the attorney contacted Tech/Cor to locate the Festiva; he was told that it had been sold at an auto auction on October 7, 1993, (the day after the expert, accompanied by the attorney, had inspected the Festiva.) Ford has not had an opportunity to inspect the Festiva but has access to the driver's seat and seat tracks allegedly removed from it. Ford, moving for summary judgment, claims prejudice to its ability to fully defend itself against Tripps' product liability claim. II. Discussion Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of demonstrating there are no facts supporting the adverse party's claim, after which, the nonmovant must introduce specific, affirmative evidence that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-324 (1986). "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The court must draw all justifiable inferences in the nonrnovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). *2 Evidence that a party destroyed evidence relevant to WeSttawNext © 2014 Thomson Reuters, No Ciaiill to origina! U. GovernmE.,,nt Works, Tripp v. Ford Motor Co., Not Reported in F.Supp. (1996) the dispute being litigated is admissible. Such evidence permits an inference, the "spoliation inference," that the destroyed evidence would have been unfavorable to the position of the party whose action made the evidence unavailable. Schmid v. Milwaukee Electric Tool Corporation, 13 F.3D 76, 78 (3rd Cir.1994). The admissibility of spoliation evidence and the propriety of the spoliation inference is well established in Pennsylvania. Id. (Citation omitted.) Here, Ford seeks a sanction more serious. It seeks not only to exclude the expert testimony but to have summary judgment granted in its favor. There is no doubt a district court has the inherent authority to impose such a drastic sanction in an appropriate case, Id., at 79, but, like Schmid, this is not such a case. The key considerations in a product liability case in deciding whether to sanction the plaintiff for destruction of the product are: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfaimess to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. Id., 13 F.3d at 79. In Schmid, plaintiffs expert did not destroy the allegedly defectively designed product, but disassembled the saw to determine why the guard was closing slowly and evaluate the merits of plaintiff's claim. The Court of Appeals reversed the district court's grant of summary judgment without deciding whether substantive Pennsylvania products liability law or federal evidentiary law applied. A. The degree of fault of the party who altered or destroyed the evidence. A plaintiff who brings an action alleging an injury as a result of a defective product has a duty to preserve the product for defense inspection. Roselli v. General Electric Company, 599 A.2d 685 (Pa.Super.1991) (affirming grant of summary judgment where fragments of product allegedly defectively manufactured were lost by plaintiff and their attorney). See also, Austin v. Nissan Motor Corp., U.S.A., 1996 WL 117472, (E.D.Pa.) (plaintiffs, who had retained counsel prior to the spoliation of W'_UE,a5),?Nex't' 0 2014 1 homson FReuters. No claim to o f i.l. l „ .S Goveiorriant arks.2 evidence, were responsible for failure to preserve the allegedly defective seat even though the seat was actually discarded by the garage where it had been sent for repairs). The Tripps are at fault in the loss of the Festiva. Like plaintiffs in Roselli and Austin, the Tripps had legal counsel before spoliation of evidence occurred. There is disagreement between the Tripps and Ford as to the nature and extent of the communications between the Tripps' attorney and Tech/Cor regarding "holding" the Festiva, but the evidence of record shows that the Tripps failed to make adequate arrangements to preserve the evidence; the Tripps' attorney avers only that "it was [his] understanding that the car would be held at the facility indefinitely ... [and] that when the vehicle was needed in connection with the suit, it would be available." The plaintiffs did not act in bad faith, but are at fault. B. The degree of prejudice suffered by the opposing party. *3 In determining the degree of prejudice, the type of product defect alleged is important; the court must distinguish a manufacturing defect claim where the plaintiff alleges the particular product causing the injuries was defectively manufactured, a defect not affecting other products of the same model, from a design defect case where the plaintiff claims injuries caused by a defect inherent in the design common to all products of that model. In Schmid, the Court of Appeals observed that matters relating to design defects can be determined as well or better by inspecting and testing several products of the same design than by inspecting the product involved in the accident, 13 F.3d at 79, 80 (reversing summary judgment based on spoliation of evidence in design defect action). See also Austin, 1996 WL 117472 (denying summary judgment in a design defect action where the entire vehicle, including the allegedly defective driver's seat, had been lost). The prejudice to a defendant from spoliation of evidence is greater in a manufacturing defect action where the alleged defect is unique to a particular product, the primary source of evidence; " `under Pennsylvania law, in a case in which plaintiff does not allege a defect in all of the defendant's products, a defendant in a products liability case is entitled to summary judgment when loss or destruction of evidence deprives the defense of the most direct means of countering plaintiffs allegations.' " Schmid, 13 F.3d at 80 (citing Lee v. Boyle—Midway Household Products, Inc., 792 F.Supp. 1001, 1005 (W.D.Pa.1992). Tripp v. Ford Motor Co., Not Reported in F.Supp. (1996) Ford has measurements and photographs of the entire Festiva as well as its component parts, taken by the Tripps' expert. Unlike the defendant in Austin, Ford also has available those Festiva components the Tripps allege are defective. Ford argues that investigation into alternative theories of causation has been foreclosed by the spoliation of evidence. First, Ford does not have the opportunity to determine whether the 1989 Festiva had suffered prior damage; Wayne Tripp and his brother, the previous owner of the Festiva, deny previous accidents or alterations of any type to the driver's side seat and seat assemblies. Second, inspection of the interior compartment might have permitted Ford to determine if Wayne Tripp were wearing his seat belt. Tripps' expert avers that, "because of the nature of the accident, it being a rear impact, [he] was not able to independently verify seat belt usage by Mr. Tripp." There is a possibility that Ford's expert would have been able to do so. Ford claims the Pennsylvania Commonwealth Court's recent decision in Schroeder v. Dept. of Transportation of the Commonwealth of Pennsylvania, 1996 WL 189610 (Pa.Cmwlth.) establishes that no distinction should be made between design defect cases and other product liability actions in determining prejudice to the defendant caused by spoliation of evidence. The published opinion bears this legend: "NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL." It was 'unproper to cite this opinion and, although distinguishable and counter to relevant Third Circuit authority, it is of no precedential value. *4 In this design defect action, Ford can defend the claims based on those components of the Festiva that Tripps allege are defective and through expert analysis of other Festiva models.' Ford will not be significantly prejudiced by the spoliation of evidence although the court is concerned about the apparently repetitive circumstances.' C. Whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will Footnotes serve to deter such conduct by others in the future. The courts should " `select the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim.' " Schmid, 13 F.3d at 79 (citing Jamie S. Gorelick, Steven Marzen and Lawrence Solum, Destruction of Evidence, § 3.16, p. 117). Granting Ford's motion for summary judgment would be too harsh. The Tripps were at fault, but there is no evidence of bad faith on their part; the degree of prejudice suffered by Ford is not prohibitively high; and there is a lesser sanction avoiding substantial unfairness to the plaintiffs while serving to deter such conduct in the future—the "spoliation inference." The spoliation inference has prophylactic and punitive effect, but is not as harsh a sanction as striking the expert testimony of the offending party. Id. at 78. See also, Nationwide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir.I982). At trial, Ford may introduce evidence that the Festiva was sold before this action was filed, so that it was unavailable for examination by Ford. If the jury finds the Tripps are responsible for the spoliation of evidence, Ford will be entitled to an inference that the evidence made unavailable by the Tripps' conduct would not have been favorable to the Tripps. The jury will be instructed according to the evidence at trial. See Schmid, 13 F.3d at 78. But cf. Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir.1995). An appropriate Order follows. ORDER AND NOW, this 1st day of July, 1996, upon consideration of defendant's Motion for Summary Judgment, plaintiffs' Response, a final pretrial conference held March 6, 1996, and for the reasons stated in the accompanying Memorandum, it is ORDERED that: Defendant's Motion for Summary Judgment is DENIED. At the final pretrial conference held on March 6, 1996, plaintiffs withdrew their claim of a manufacturing defect. There is no contention other 1989 Festivas or their design documents are unavailable to Ford. IYVeSt ,West" © 2014 Thomson Reuters, No ciaI 1), S. Government, Work Tripp v. Ford Motor Co., Not Reported in F.Supp. (1996) This is the second case in which evidence examined by plaintiffs' expert disappeared thereafter. Plaintiffs' attorney should take special precautions before using this expert in the future. End of Document © 2014 Thomson Reuters. No claim to origina US. Government Works. iNestlawNexr © 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 EXHIBIT D Repair Order Detail - Internal Copy RO Number: 527188 Customer: TAYLOR,JENNA Phone(s): Contact: (717)449-6272 Vehicle: 1FADP3F25DL174292 Mileage: 6,596 Service advisor: 4220 Tag number: T1670 RO Status: CLOSED Click to View Cust Copy Main: (717)449-6272 Cell: 2013 FOCUS Payment type: CASH Promised time: 07:00 PM Promised date: 04/13/2013 Waiter: No Estimate: 0.00 Customer Comments: No A CIS THAT THE TRANSMISSION SEEMS TO SHUDDER WHEN TAKING OFF...C/S THAT THIS DOES NOT HAPPEN WHEN THE GEARS ARE SHIFTING...CHECK AND ADVISE. 70010 WF AUTOMATIC 0.50 TRANSMISSION - DIAGNOSIS (7000) - L Tech(s): 685 7001DDC WF AUTOMATIC TRANSMISSION - DIAGNOSIS (7000) - L TIME TO PERFORM DPS6 ADAPTIVE LEARING DRIVE CYCLE ROAD TEST. 0.60 Tech(s): 685 Pts: 0.00 Lbr: 102.26 Other: 0.00 Total Line A: Story: 66702 RECAL AND ROAD TEST EEC TEST NO CODES REPROGRAMS PCM TCM AND PERFORM ADAPTIVE LEARNING STRAGEY ROAD TEST B CUSTOMER REQUESTED TO HAVE MULTI POINT INSPECTION PERFORMED THIS VISIT 99P CF CUSTOMER REQUESTED TO 0.00 HAVE MULTI POINT INSPECTION PERFORMED THIS VISIT Tech(s): 685 GTIRE CF Tech(s): 685 GBATT CF Tech(s): 685 GBK CF Tech(s): 685 Pts: 0.00 Lbr: TIRES INSPECTED GOOD 0.00 ON THIS VISIT BATTERY TESTED GOOD 0.00 ON THIS VISIT BRAKES INSPECTED GOOD 0.00 ON THIS VISIT 0.00 Other: 0.00 Total Line B: 46.48 55.78 102.26 Customer Pay Labor Parts Lube Sublet Miscellaneous/Shop Charge Deductible Page 1. Created: 06/18/2013 04:10:29 PM 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Sf gbjsIPsef s Ef tbjrh!,bif sobriDpgz t.ptbr Di bthf t 1/11 NY t t !.bt vtodf Befvt ui f ou 1/11 Tbrt t !lby 1/11 1ptbm 1/11 Qbhf I3-ID9 bJ e;117a?9®124!15;21:3: IQN STOMER #: 4463092 JENNA TAYLOR 8031 CUMBERLAND GAP TRL N JACKSONVILLE, FL 32244 HOME:717-449-6272 CONT:717-449-6272 BUS: CELL: 527651 INVOICE PAGE 1 AutoNationO. • AutoNation Ford Lincoln Orange Park 7700 BLANDING BLVD. JACKSONVILLE, FL 32244 1904) 777 -FORD 13673) AutoNetion.com MV# • 03114 COLOR YEAR MAKE/MODEL VIN LICENSE. MILEAGE, IN /OUT TAG to the charge wm not eacead 859.95. This thee° end to the motor 13 FORD FOCUS 1FADP3F25DL174292 GAS, OIL, LUBE 6638/6648 T4644 DEL. DATE PROD DATE WARR. EXP, PROMISED PO NO. RATE PAYMENT INV. DATE O1JAN13 DE the amount on this invoice. In the event yor check or EFT returned unpaid for any reason. you authorize us or our agent to charge a service fee up to t_he maximum amount permitted by law. ALL PARTS ARE NEW UNLESS OTHERWISE INDICATED. 19:00 20MAY13 DATE CUSTOMER SIGNATURE AUTHORIZED DEALERSHIP REPRESENTATIVE SIGNATURE CASH 17MAY13 R.O. OPENED READY OPTIONS: DLR:04867 ENG:2.0 Liter GDI 06:33 19APR13 18:38 17MAY13 LINE OPCODE TECH TYPE HOURS LIST A C/S;.THAT THE TRANSMISSION SHIFTS WITH A SHUDDER WHEN CHANGING GEARS...CHECK AND ADVISE. CAUSE: . EMT PERFORM TSB 130405C ---7.8---7B546---14 311.9.. .:.. WF 1 BV6Z*7B546*C CLUTCH ASY FC: P66 14. PART#: 7B546 COUNT: CLAIM TYPE: AUTH CODE: 00893 PARTS: 0.00 LABOR: 0.00 OTHER: 0.00 TOTAL LINEA: ,,,,6648 TEST DROVEVEHICLE FELT CLUTCH SHUDDER/CHATTER ON ACCEL FROM ,,,,STOP AND ;IN PARKING tOT.COMPLETED TSB 13.-04 05REPROGRAMMEDPCM/TCM>:... ,,,,COMPLETED ADAPTIVE RELEARN AND DRIVE CYCLE. MONITORED CLUTCH: SLIP PIDS. , r r , EXCESSIVE,.'$LIP PRESENT 35044M AS DIRECTED IN TSS B .,REMOVED TRANSMISSION REPLACED CLUTCH AND SEALS COMPLETED ADAPTIVE:. LEARN AND DRIVE CYCLE.. , , , , MONITORED PIDS:.AT >THIS TIME 60" RP 4 LIP . PRESENT,,WITHIN' IN NORMA;' OPEA ,,,,RANGES ... * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * B CUSTOMER REQUESTED TO HAVE MULTI POINT INSPECTION PERFORMED THIS VISIT 99P CUSTOMER REQUESTED TO HAVE MULTI POINT INSPECTION PERFORMED THIS VISIT 3119 CF GTIRE TIRES INSPECTED GOOD ON THIS VISIT 3119 CF GBATT BATTERY TESTED GOOD ON THIS VISIT 3119 CF GBK BRAKES INSPECTED GOOD ON THIS VISIT 3119 CF 0.00 0.00 LABOR: 0.00 OTHER: 0.00 TOTAL LINE B: **************************************************** NET TOTAL 0.00 0.00 0.00 PARTS: iN/Cj. (N/C) 0.00 0.00 0.00 0.00 0.00 0.00 ly signing below, you acknowledge that you ware notified of and authorized he Dealership to perform the services/repairs Itemized In this Invoice and that yOU received for had the opportunity to Inspect) any replaced parts aegreater, masted by you. The vehicle is being returned to you in exchange for your payment of the Amount Due. f Payment Is Made By Check When you provide a check as payment, you authorize us to either use information from your check to make a onetime electronic fund transfer from your account or to process the payment as a :heck transaction. If processed as an EFT, funds may be withdrawn from four account as soon as today. You agree that you will not dispute us electronically debiting your account, so longas the amount corresponds to Is •8HOP SUPPLY COSTS: we have added a DESCRIPTION: TOTALS a n ofqusl 1 a+a pato? whbhbveWlb Repair Older. This LABOR AMOUNT to the charge wm not eacead 859.95. This thee° end to the motor PARTS AMOUNT represents cons profits vehicle wanesaa8I peeOI for miscellaneous s Stele of Fronde repuI,es a 81.00 lee to be codectad ler each new tae sold In the mate GAS, OIL, LUBE SUBLET AMOUNT 15.403.7101. end a (1.50 lee to be collected for each naw or remanufactured MISC. CHARGES • bad -led be"err sofa to the mate Ie.a03.71e61. TOTAL CHARGES LESS INSURANCE the amount on this invoice. In the event yor check or EFT returned unpaid for any reason. you authorize us or our agent to charge a service fee up to t_he maximum amount permitted by law. ALL PARTS ARE NEW UNLESS OTHERWISE INDICATED. SALES TAX DATE CUSTOMER SIGNATURE AUTHORIZED DEALERSHIP REPRESENTATIVE SIGNATURE PLEASE PAY THIS AMOUNT VARRANTY STATEMENT AND DISCLAIMER: PLEASE SEE THE DEALERSHIP'S LIMITED WARRANTY ON THE REVERSE SIDE OF THIS REPAIR ddlek AE —2000 ADP 1041111 SERVICE INVOICE TYPE 2 • 512C • AUTONATION •'LIMITED waby7X.,f11uY9ga Ee91p7.7...y STOMER #: 4463092 JENNA TAYLOR 8031 CUMBERLAND GAP TRL N JACKSONVILLE, FL 32244 H0ME:717-449-6272 CONT:717-449-6272 BUS: CELL: 527651 INVOICE AutoNation. PAGE 2 re nnvtenn• AutoNation Ford Lincoln Orange Park 7700 BLANDING BLVD. JACKSONVILLE, FL 32244 (804) 777 -FORD (3673) AutoNation.com MV#•03114 COLOR YEAR MAKE/MODEL VIN LICENSE MILEAGE IN / OUT TAG water. we not exceed 659.95. This charge repretanta coati and profits to the motor 13 FORD FOCUS 1FADP3F25DL174292 GAS, OIL, LUBE 6638/6648 T4644 DEL. DATE . _. PROD DATE WARR, EXP, PROMISED PO NO. RATE: PAYMENT INV.: DATE 01JAN13 DE SALES TAX , 19_:00 20MAY13 PLEASE PAY THIS AMOUNT 0.00 CASH 17MAY13 R.O. OPENED READY OPTIONS: DLR: 04 8 6 7 ENG : 2.0 Liter GDT 06:33 19APR13 18:38 17MAY13 LINE OPCODE TECH TYPE HOURS 8 tf Y+ 11 9 a LIST NET TOTAL ****** You may receive a survey. from. Ford or Lincoln about your service visit today. It is our goal for you to be COMPLETELY SATISFIED and be able to DEFINITELY RECOMMEND our DEALERSHIP. Please contact your service advisor or service manager with any concerns. e signing below, you acknowledge that you were notified of and authorized e Dealership to perform the services/repairs Itemized in this Invoice and thatC Its received for had the opportunity to Inspect) any replaced parts as quested by you. The vehicle Is being returned to you In exchange for your ayment of the Amount Due. Payment Is Made By Check When you provide a check as payment, you ulhorize us to either use information from your check to make a one-time leetronie fund transfer from your account or to process the payment as a heck transaction. If processed as an EFT, funds may be withdrawn from Our account as soon as today. You agree that you will not dispute us Ioctronleally debiting your account, so Ion as the amount corresponds to he amount on this invoice. In the event your check or EFT Is returned unpaid or any reason, you authorize us or our agent to charge a service fee up to he maximum amount permitted by law. 'SHOP SUPPLY COSTS: We have added a DESCRIPTION TOTALS a of elel+0o ea. aper(? 01 tharolb osttli ch to 00 Repan Order me mge LABOR AMOUNT 0 . 0 0 water. we not exceed 659.95. This charge repretanta coati and profits to the motor PARTS AMOUNT 0.00 01^4010 raper faciiry for m10teaeneoua at l eupplba end waste 00Ieel' me State of ne a 11.00 lee to h I codecte0 for seen new too sold In the MIRO for seen GAS, OIL, LUBE 0.00 SUBLET AMOUNT 0.00 Ia,403.7181. end a 11.50 fee to be codocted for each now or remanufactured 18403 7 17." said In " mat° Ia.403.71851. MISC. CHARGES ' 0.00 TOTAL CHARGES 0.00 ALL PARTS ARE NEW UNLESS OTHERWISE INDICATED. LESS INSURANCE 0.00 SALES TAX 0.00 DATE CUSTOMER SIGNATURE AUTHORIZED DEALERSHIP REPRESENTATIVE SIGNATURE PLEASE PAY THIS AMOUNT 0.00 ARRANTY STATEMENT AND DISCLAIMER: PLEASE SEE THE DEALERSHIP'S LIMITED WARRANTY ON THE REVERSE SIDE OF THIS REPAIR r1EYLAt; ©7009 A001041111 SERVICE INVOICE 717E 2 • 512C • AUTONATIOR • 'WAITED Wep►pljty(Ijl{i{gQ.r 99$gp V Repair Order Detail - Internal Copy RO Number: 527651 RO Status: CLOSED Customer: TAYLOR,JENNA Phone(s): Contact: (717)449-6272 Vehicle: 1FADP3F25DL174292 Mileage: 6,638 Service advisor: 4220 Tag number: T4644 Click to View Cust Copy Main: (717)449-6272 Cell: 2013 FOCUS Payment type: CASH Promised time: 07:00 PM Promised date: 05/20/2013 Waiter: No Estimate: 0.00 Customer Comments: No A CIS THAT THE TRANSMISSION SHIFTS WITH A SHUDDER WHEN CHANGING GEARS...CHECK AND ADVISE. MT WF PERFORM TSB 7.80 130405C -7.8-7B546 —14 Tech(s): 3119 BV6Z*713546*C 0 CLUTCH ASY BV6Z*7B546*C 1 CLUTCH ASY Pts: 603.47 Lbr: 725.09 Other: 0.00 Total Line A: Story: 6648 TEST DROVE VEHICLE FELT CLUTCH SHUDDER/CHATTER ON ACCEL FROM STOP AND IN PARKING LOT.COMPLETED TSB 13-04-05 REPROGRAMMED Pcmrrcm COMPLETED ADAPTIVE RELEARN AND DRIVE CYCLE. MONITORED CLUTCH SLIP PIDS EXCESSIVE SLIP PRESENT 350+RPM. AS DIRECTED IN TSB REMOVED TRANSMISSION REPLACED CLUTCH AND SEALS COMPLETED ADAPTIVE LEARN AND DRIVE CYCLE. MONITORED PIDS AT THIS TIME 60 RPM SLIP PRESENT,WITHIN NORMAL OPEATING RANGES 725.09 0.00 603.47 1,328.56 B CUSTOMER REQUESTED TO HAVE MULTI POINT INSPECTION PERFORMED THIS VISIT 99P CF CUSTOMER REQUESTED TO 0.00 HAVE MULTI POINT INSPECTION PERFORMED THIS VISIT Tech(s): 3119 GTIRE CF Tech(s): 3119 GBATT CF Tech(s): 3119 GBK CF Tech(s): 3119 Pts: 0.00 Lbr: TIRES INSPECTED GOOD 0.00 ON THIS VISIT BATTERY TESTED GOOD 0.00 ON THIS VISIT BRAKES INSPECTED GOOD 0.00 ON THIS VISIT 0.00 Other: 0.00 Total Line B: Customer Pay Labor Parts Lube Sublet Miscellaneous/Shop Charge Deductible Total Charges Page 1, Created: 0W18/2013 04:10:04 PM 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Repair Order Detail - Internal Copy Less Insurance/Adjustment 0.00 Sales Tax 0.00 Total 0.00 Page 2, Created: 06/1812013 04:10:04 PM Repair Order Detail - Internal Copy RO Number: 531802 Customer: TAYLOR,JENNA Phone(s): Contact: (717)449-6272 Vehicle: 1 FADP3F25D4174292 Mileage: 7,638 Service advisor: 4220 Tag number: T4954 RO Status: READY TO POST Click to View Cust Copy Main: (717)449-6272 Cell: 2013 FOCUS Payment type: CASH Promised time: 07:00 PM Promised date: 06/12/2013 Waiter: No Estimate: 0.00 Customer Comments: No A TRANSMISSION SHUDER 1ST TO 2ND 2ND TO 3RD AT001 WF TRANSMISSION SHUDER 1ST TO 2ND 2ND TO 3RD Pts: Tech(s): OIL*DYE* BV6Z*7B546*C AE8Z*7048*A AE8Z*7052*A YS4Z*3N324*AA *W520102*S442 xrii*QDC AE8Z*7048*A AE8Z*7052*A YS4Z*3N324*AA 747.72 Lbr: 0.00 2 OIL DYE 1 CLUTCH ASY 0 SEAL ASY - OIL 0 SEAL ASY - OIL 0 RETAINER - BEARING 2 NUT -LOCKING 3 FLUID - TRANSMISSION 1 SEAL ASY - OIL 1 SEAL ASV - OIL 1 RETAINER - BEARING 0.00 Other: 0.00 Total Line A: Story: 7658 TEST DROVE WITH CUST IDS INSTALLED MONITORING CLUTCH SUP PIDS. SHUDDER ONLY PRESENT AO ACCEL FROM COAST 30+ MPH AT THIS TIME MAX SHUDDER 400RPM. RAISED AND INSPECTED VEHICLE OIL PRESENT BETWEEN TRANS AND ENGINE. ADDED DYE TO TRANSMISSION TEST DROVE REMOVED TRANSMISSION INSPECT WITH BLACKLIGHT DYE PRESENT IN OIL SPLATTERS,INSPECTED INPUT SHAFT SEALS,NO DYE DETECTED ON OUT SEAL. INNER SEAL WET DYE PRESENT. REPLACED INNER SEAL,REPLACED CLUTCH DUE TO OIL CONTAMINATION.COMPLETED SHIFT DRUM AND CLUTCH ADAPTIVE LEARN AFTER INSTALL TEST DROVE COMPLETING DRIVE CYCLE NO FURTHER SHUDDER PRESENT AT THIS TIME 0.00 28.00 60.3.47 0.00 0.00 0.00 2.00 89.04 9.08 5.15 10.98 747.72 Customer Pay Labor Parts Lube Sublet Miscellaneous/Shop Charge Deductible Total Charges Less Insurance/Adjustment Sales Tax Total Page 1, Created: 06/19/2013 01:06:27 PM 0.00 0.00 0.00 0.00 0.00 • 0.00 0.00 0.00 0.00 0.00 JENNA TAYLOR, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. FORD MOTOR COMPANY, DEFENDANT : NO. 13-4543 CIVIL ORDER OF COURT AND NOW, this 18th day of December, 2014, upon consideration of the request of the counsel for Plaintiff for a continuance of the argument currently scheduled for January 9, 2015, IT IS HEREBY ORDERED AND DIRECTED that the request is GRANTED. Argument on the matter will now be held on Thursday, January 29, 2015, at 2:00 p.m. in Courtroom No:2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Emma E. Chiampou, Esquire Counsel for Plaintiff James P. Peterson, Esquire Counsel for Defendant bas 2D' e s 112---t1---c-c(---- / L t1.C___< <.8///' L)