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HomeMy WebLinkAbout02-0929PRAECIPE FOR LLqTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) JUSTIN M. FRICK, Plaintiff CUMBE~D V.~I JI.Ey MOTORS, INC. Defendant No. 02-0929 CML TERM State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objection to Plaintiff's Second Amended Complaint. Identify counsel who will argue case: (a) Plaintiffs: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 (b) Defendants: John F. Yaninek, Esquire Mette, Evans & Woodside 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 I will notify ail parties in writing within two days that this case has been listed for argument. Argument Court Date: August 28, 2002 DATED: August 1, 2002 CERTIFICATE OF SI~.RVIC~. I hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, at Harrisburg, Pennsylvania, with first class postage prepaid, addressed as follows: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 METRE, EVANS & WOODSIDE DATED: August 1, 2002 BY: St/preme Court~. D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Defendant :301616_1 HAROLD ~. IRWIN, III, E~QUIRE ATTORNEY ID NO. 2fl20 3S EAST HIGH STREET CARLISLE PA 170t3 (7t7) ~Ll-e0e0 ATTORNEY FOR PLAINTIFF JUSTIN M. FRICK, : IN THE COURT OF COMMON PLEA8 OF Plaintiff : CUMBERLAND COUNTY, PENN8YLVANIA vs. : CIVIL ACTION. LAW : CUMBERLAND VALLEY MOTORS, INC.,: NO. 02 - 0929 CIVIL TERM Defendlnt : You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-243-3166 JUSTIN M. FRICK~ : IN THE COURT OF COMMG;G PI.EAB OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIl. ACTION - LAW : CUMBERLAND VALLEY MOTORS, INC.,: NO. 02 - 0929 CIVIl. TERM Defendant : SECOND AMENDED OMPLAINT NOW comes the plaintiff, by his attorney, Harold S. Irwin III, Esquire, and files this second amended complaint against the defendant, representing as follows: 1. The plaintiff, Justin M. Frick, is an adult individual residing at 1129 Country Club Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. The defendant, Cumberland Valley Motors, Inc., is a Pennsylvania corporation with offices at 6714 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Defendant is an authorized agent and dealer of, inter alia, BMW automobiles and DINAN BMW automotive enhancement products. 4. Plaintiff has previously entered into several motor vehicle sales and purchase transactions with the defendant. 5. At all times relevant to this action, plaintiff was the owner of a 1999 BMW 540i that he had previously purchased from the defendant on or about January 1, 1999. 6. Plaintiff learned of DINAN's BMW automotive enhancement products through DINAN's print ads and on the internet and other literature which identified the defendant as the local area retailer of DINAN products. 7. On or about March 13, 2000, plaintiff purchased from defendant a DINAN produced computer software program designed to enhance engine performance. 8. The computer program enhancement which plaintiff purchased from the defendant was installed in plaintiff's 1999 BMW 540i automobile by the defendant on or about March 13, 2000. 9. The costs of the product enhancement and its installation were approximately $350.00. 10. Subsequent to plaintiff's purchase of the computer program enhancement from and its installation by the defendant, plaintiff learned that although the modification of the automobile by the installation of the DINAN product did not void the BMW warranty, it did make the vehicle ineligible for future certification under BMW's certified pre-owned sales program (hereinafter CPO). 11. Unaware of the effect that the installation of the DINAN modification had on the eligibility of the vehicle for BMW's CPO program, plaintiff thereafter sought to sell this car through the defendant's courtesy sale program, which would certify this car with the CPO designation and provide the buyer and seller with additional sales options that cannot be obtained in a traditional non-dealer straight sale. 12. Plaintiff and defendant prepared estimates for the sale under the more favorable terms of a CPO sale; however, it was then learned that the vehicle was ineligible for this program due to its DINAN modification, requiring the modification of the terms of the sale. 13. After the modification of the terms of sale, plaintiff was required to give to the arranged buyer of the 540i, the sum of $3,650.00 to cover the difference between the CPO sale and the non-CPO sale still using the defendant's courtesy sale program. 14. The diminution on the value of the transaction has been broken down into three value items: A. $2,150.00 in lease rate costs difference; B. $650.00 in first month lease rebate; and C. $1,750.00 in costs for a protection plan given with a CPO sale. 15. Accordingly, the installation of this "enhancement" product onto plaintiff's motor vehicle by the defendant resulted in damages to the plaintiff of $350.00 for the costs of the installation and $3,650.00 in the diminution of the vehicle's resale value. BREACH OF IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE 16. Plaintiff incorporates by reference the averments of this complaint, paragraphs one through fifteen, as if fully set forth herein at length. 17. Defendant is a retailer and an agent for both BMW and DINAN and acts on behalf of both companies. 18. Defendant failed to warn the plaintiff that the installation of the DINAN "enhancement" product, while it could improve the performance of the vehicle, it would be detrimental to the vehicle's resale value in that it would make it ineligible for BMW's certified pre-owned sales program (CPO). 19. The failure of defendant, as agent and dealer of BMW automobiles and agent, dealer and installer of DINAN BMW automotive products, to advise plaintiff of the consequences of the DINAN installation on plaintiff's BMW motor vehicle prevented plaintiff from making an informed decision on the installation of this product on his automobile. 20. In this transaction there was an implied warranty that the goods sold to plaintiff were fit for a particular purpose. The defendant, at the time of contracting, had reason to know that the plaintiff relied upon the skill or judgment of defendant to select or furnish suitable goods. 21. The installation of the DINAN computer program enhancement does cause objection within the BMW automotive resale trade with which defendant is engaged, which objection defendant, as agent and dealer for both companies, was uniquely able to determine prior to the sale of this product to plaintiff and its installation on plaintiff's vehicle. 22. Accordingly, defendant had a duty to plaintiff to warn or advise plaintiff of the potential adverse impact that the installation of this product would have on the resale value of this vehicle. 23. Plaintiff has a reasonable expectation that the defendant would advise and warn the plaintiff of the irreversible consequences that this modification would have on the resale value of the vehicle. 24. Plaintiff would not have purchased this product had defendant properly advised and warned the plaintiff of its adverse impact on the resale value of the vehicle. 25. The failure to warn plaintiff of such consequences was the direct cause of the Plaintiff's loss of the value of the product and installation costs of $350.00, as well as the $3,650.00 diminution in the vehicle's resale value. WHEREFORE, plaintiff demands judgment against the defendant in the total sum of $4,000.00, plus other relief as the Court deems appropriate. UNFAIR OR DECEPTIVE ACTS OR PRACTICES UNDER THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (73 P.S. SECTION 201-1. ET SEQ.} 26. Plaintiff incorporates by reference the averments of this complaint, paragraphs one through fifteen and seventeen through twenty-five, as if fully set forth herein at length. 27. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant, caused confusion and misunderstanding in plaintiff as to the source, sponsorship, approval or certification of the goods or services involved in the transaction, as proscribed by Section 201-2 (4)(ii) of the Unfair Trade Practices and Consumer Protection Law. 28. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DIN^N BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant caused confusion and misunderstanding in plaintiff as to the affiliation, connection or association with, or certification by another, as proscribed by Section 201-2 (4)(iii) of the Unfair Trade Practices and Consumer Protection Law. 29. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant was, in effect, a representation that goods or services had sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they did not have or that defendant had a sponsorship, approval, status, affiliation or connection that defendant does not have, as proscribed by Section 201-2 (4)(v) of the Unfair Trade Practices and Consumer Protection Law. 30. The damages which plaintiff incurred as the result of such violations of the Unfair Trade Practices and Consumer Protection Law amounted to $4,000.00, as itemized in paragraph twenty-five above. WHEREFORE, plaintiff demands judgment against the defendant for plaintiff's actual damages of $4,000.00, plus interest and attorney fees, plus an amount equal to three times the actual damages sustained by the plaintiff, and such other relief as the Court deems necessary or proper, under the Unfair Trade Practices and Consumer Protection Law, Section 201-9.2 (a). July / ! ,2002 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 The foregoing complaint is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of the complaint is the language of my counsel and not my own. I have read the complaint and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the complaint is that of counsel, I have relied upon counsel in making this verification. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. July I{ ,2002 JU~l~" M./ FRICK ;OMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below, NAME OF APPELLANT I MAG. DIST, NO. OR NAME OF O.J. Cumberland Valley Motors I 09-3-04 Thomas A. Placey STATE ZIP CODE PA 17050 ADDRESS OF APPELLANT 6714 Carlisle Pike Mechanicsburg DATE OF JUDGMENT 2/14/02 tN THE CASE OF (P~INTIF~ Justin M. Frick CLAIM NO. CV YEAR CV-0000611-01 LT YEAR (DEFENDANT) v~,'Cumberland Valley Motors BMW/Dinan ISIGNATURE OF APPELLANT OR HIS ATTORNEY OR AGENT This block will be signed ONLY when this notation is required under PA. R.C.P.J.P, No. 1008B. This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDEAS to the Judgment for possession in this case. Signature ~f Prothonotary ~r Deputy If appellant was Claimant (see PA R.C.P.J.P. No. 1001(6)) in action before distdct Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) Jn action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Justin M. Frick , appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. ~~-'_.~) within twenty (20) days after service of rule or suffer entry of judgment of non pros. RULE: To Justin M. Frick , appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a pomplaintwvithin this time, a JUDGMENT OF NO PROS WILL BE ENTERED AGAINST YOU UPON PRAECIPE. ~: (3) The date of service ~)f this rule if service was by mail is the date of the mailing, ' ..~ - - '--Signature Of F~rot~onotary or Delfuty White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink Appellee Copy Gold - D.J. Copy Proth. - 76 JA3qqA =10 :tDITOH MORR THqMDaub =iOITSUb TOlFtTSICi · ~. '. ,,~ , · .oH 8A-~Jq 14OMMOO Al IA v.~ ~.H~. -iO i~ FJ,,C, iy\Ui4OMIV~-),'p IF] 1 o ~, iai l PR .O'~..~F~[~ NOTIC OF APPEAL AND RULE TO FILE COMPL~IT° (This proof of service MUST'B,~. FILE~ WIThiN TENI(10) DAYS AFTER filing the notice o! appea Checiea¢¢ioable boxes) AFFIDAVIT: I hereby swear or affirm thai'l sen -- & C3-" ~.f t~- "-"-- *~ * .... ~ r, ..... n~..~T.T. U *, ...... TM'E'......................... ....... ...................... o. d t o c O ]JU~ aMA TMIAJ OD ~Jl~ CT ' , :; ,,~q ' 4 : . . . r~eipt aBach~ her~o, and u~n the appellee, (nameaslla~cn nr~in¢ hnws2 ad r:t h;: w~¢ h-~ +t.~,o;, In =~q,',', o:-v.t d'~f-' .:0 gi:]211 '[O!d qI ..,on , year ..... ~ by personal se~ice ~ by (ceRified) (r~ister~) mail, sender's receipt attached hereto. Iseqq~fla~ ~m~ ~ ,~le~[i e a C~pJ~igt ~c_~9_~Baq~i~g~ht a~0vt ~o~is~.0~ Appea up0 whom the Rule was address~ on .... y~ _ .... ~ by, personal sew ce ~ by (ceCilia) (registered) THIS DAY OF , YEAR _ S~nature of off, iai b~fore whom aff~av~ was made .lism b939~8i~91 ~o a9ifihen ~d ~o 9~ivlsg - ~ " . Title of off~ia, My commission expires on __ , year~ .FEB-20-2002 NED 03:47 PM OBM B~ COMMONWEALTH OF PENNSYLVANIA COUNTY OF: 09-3-04 ~r°":'104 B. ~PORTING HILL ~D. · . MECHANICSBURG, PA T,~.¢..o~ (717) 761'8230 17050 C'mmVaI,LRYHOTO~S ~W/DZNAN 6714 CARLISLR PSl~ MECHANICBBORG, PA 17050 F~X NO. 7176975732 P. 02 1129 COU~2RYCLUB RD CAMP HILL, PA 17011 VS. DEFENDANT; NAME a~ ADORESS UCUMB V~T,T/I~MO'IN3RS BMW/DINAN 6714 CARLISLE PIKlg MRCHANICBBURG, PA 17050 L Docket No.: CV-0000611- 011 ~ Date Filed: 12/21/01 THIS 18 TO NOTIFY YOU THAT: Judgment: Judgment was entered for: (Name) ['~ Judgment was entered against: (Name) cmM]~ in the amount of $ '~_-'/47. cio on; (Date of Judgment) 3/14./n~ ............ [] Defendants are jointly and severally liable. (Date & Time) ~ Damages will be assessed on: [~ This case dismissed without prejudice. ~] Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Levy is stayed for . days or ~ generally stayed. Amount of Judgment $~ Judgment Costs $ 9'/.50 Interest on Judgment $ , O0 Attorney Fees $ . O0 Total $ 3,747.50 Post Judgment Credits" Post Judgment Costs Certified 'Judgment Total [ [ Objection to levy has been filed and hearing will be held: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NO~E OF JUDGMEflT~RIPT FORM WITH:..YOI~ICE OF APPEAL. / ,,, ¢ / ., ~,,,.,.. ........ ~,. I certify~c::./~that this is a true ar~ correct copy of the record of the proceedings co'~taining i~e']udgmeni!. Date · .:.. , Oisti-ict~Justice My commission expires first Monday of January, AOPC 31~-99 2004 ':SEAL ~EB-20-2002 NED 03:47 PH CBH Bltl4 FR× NO. 7176975732 P, 03 .1USTIN M. FRICK, Plaintiff CUMBERLAND VALLEY MOTORS BMW/DINAN SALES, Defendant DISTRICT COURT 09-3-04 CV-0611-01 FACTS FROM T~IAL Plaintiff was the owner of a lggg BMW 540i that was purchased new from Defendant. Plaintiff had previously bought and sotd several vehicles from Defendant. Defendant's automotive dealership includes the sale of new BMW vehicles and DINAN products. DINAN produces a line of enhancement products for BMWs but it is not a corporate entity of BMW. Plaintiff learned of DINAN from their print ads and the Internet. DINAN literature advised that Defendant was the local area retailer. Plaintiff obtained the DINAN modifications from Defendant. The modification in generic terms was a computer chip designed by DINAN to enhance engine performance. The modifications did not void the BMW warranty but subsequently made the vehicle ineligible for future certification under BMW's certified pre-owned sales program (CPO), CPO eligibility is determined by standards set by BMW and proscribed to Defendant for vehicles it sells. Plaintiff sought to sell this car through Defendant and its "courtesy sale" program, which would certify this car with the CPO designation and provide buyer and seller with additional sales options that cannot be obtained in a traditional non-dealer straight sale. Plaintiff and Defendant, unaware of the car's ineligibility, prepared estimates for the sale under the more favorable terms of a CPO sale. Upon learning the car was ineligible and could not be made eligible Plaintiff modified the terms of the sale. Plaintiff gave buyer $3650.00 to cover the difference between CPO sale and non-CPO sale still using Defendant's courtesy sale program. The diminution in value of the sale has been broken down into three (3) value items: $2:~50.00 in lease rate costs difference, $650.00 in first month lease rebate and $1750.00 in costs for a protection plan given with the CPO. Plaintiff paid approximately $350.00 for the DINAN modifications. Plaintiff seeks the valuation difference and cost of the modification in this suit solely against Defendant. Plaintiff avers that the failure of Defendant to advise of the consequences of the DINAN modification ''.FEB-20-2002 NED 03:48 PH CBH BHN FRX NO, 7t76975732 P. 04 prevented him from making an informed decision on its installation that has resulted in the damages at time of resale. The narrow issue presented is whether this lone Defendant can be held liable for the failure to advise Plaintiff of the detrimental consequences that could occur to the merchantability of the car with this modification.~ Defendant is an agent for both BMW and DINAN. This unique relationship places Defendant in the middle of two corporations that are not necessarily symbiotic but when combined in Defendant creates the impression that it acts on behalf of both. Thus, this lone Defendant is the agent of BMW and DINAN and responsible for their action or inaction. The Uniform Commercial Cgde at section 23!4 warrants that goods shall be merchantable. This warranty is implied in a contract for sale if the seller is a merchant with respect to goods of that kind. Further it provides that for the goods to be merchantable must at least pass without objection in the trade under the contract description. The installation of the computer chip is a good and its installation does cause objection within the automotive resale trade. The course of conduct with this specific Plaintiff imposes a duty on Defendant, more specifically as agent for D]~NAN, to warn or advise of the potential adverse impact. Other buyers purchase this type of modification routinely via outside merchants with or without an impact disclaimer, Those merchants do not have the backing and support of this authorized agent of both BMW and DINAN, which creates in the reasonable person the expectation that Defendant would inform Plaintiff of the irreversible consequences of this modification. The damage caused by this failure to inform is readily determined as the cost Plaintiff had to pay to save the sale. This is in mitigation of the damages for individual item values associated with the ineligibility for the CPO program..ludgement is in favor of the Plaintiff in the amount of $3650.00 together with the costs of this action. Th~ parties have previously been advised of their appeal rights and the original exhibits are being returned to the presenting party. 14 Feb 02 Date Thom~. Ilacey D..1. z It is recognized that there are other issues involved in this case. The informal pleading requirements and the strict time constraints imposed at the District Court do not permit detail analysis of each, These issues include but are not limited to agency law~ Restatement (Second) of Torts, § 402A (1), strict product liablllty~ the Magnu$on-Moss Federal Trade Commission Warranty Improvement Act, the unfair Trade Practices, the UCC~ and Consumer Protection Law. Only the basis for the judgment is included above. The district justice did obtain legal advice on the applicable agency law from disinterested legal experts, Ivo Otto, Esq. and _loseph INet2, Esq., in accordance with the D..3.P,.C.P #4. PROOF OF SER~CE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUN OF AFFIDAVIT: I hereby swear or affirm that I served a copy of the Notice of Appeal, Common Pleas No, {~'~'q~.~ ["~..iVil~ , upon the Dlstrict Justice designated therein .,o.n~certiiied) (date ot service) _ F br jcu year ~ ~[by pers(~al service []by (~;~[~, vd) mail, senders receipt attached hereto, and upon the appellee, (name .'lj'~..~Jf~ !~ r~. ~"t,--i~ .... on ~'~..bi'"[~[Y'U ~3 . year_ ~3~OOJ~, [] by personal service,~] by (certified)(rc~;:~£: :!: mail, sender's receipt attached hereto. [] and further that I sewed the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on ~'~br'~LY*J_~_,year~.~)(]~;="~_, [~bypersonalserviceJ~[by(certilied)(r~k-~--:z~) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME My commission expires on C ': .... . 7000 0520 0024 5315 60tl 7000 0520 0024 5315 6004 JUSTIN M. FRICK, Plaintiff v. : NO. 02-929 : CUMBERLAND VALLEY MOTORS, : Defendants : CIVIL ACTION LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NOTICE OF PRAECIPE TO ENTER JUDGMENT OF NON PROS TO: JUSTIN M. FRICK 1129 Country Club Road Camp Hill, PA 17011 Date of Notice: March 20, 2002 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANTS AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Lawyer Referral Service CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 By: METTE, EVANS & WOODSIDE Jc~ F. Yanine~ Esquire Sup. Ct. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors CERTIFICATE OF SERVICE ! certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: JUSTIN M. FRICK 1129 Country Club Road Camp Hill, PA 17011 DATE: March 20, 2001 By: METTE, EVANS & WOODSIDE Jo~J/~. Yanind~ Esquire Sump. Ct. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors :290022 _1 2 coMMONWEALTH OF PENNSYLVANIA C~)i:INTY OF: Cumberland 09304 Thomas PIacey 104 South Sporting Hill Road Mechanicsburg, PA 17050 (717)761-8230 CIVIL COMPLAINT pLAINTiFF: NAME and ADDRESS Justin M. Frick 1129 Country Club Road Camp Hill, PA 17011 I 717-731-6692 ___j VS. DEFENOANT: NAME an¢{ ADDRESS Cumberland Valley Motors BMW/DINAN Sales ~ 6714 Carlisle Pike Mechanicsburg, PA 17050 717-697-9448 ___J Docket No.: Date Flied: ,{Zs"/oz_ [ AMOUNT DATE PAID FILING COSTS $ / / SERVING COSTS $ / / TOTAL $ / / TO THE DEFENDANT: The above named plaintiff(s) asks Judgment against you for $ 3747.50 together with costs upon the following claim (Civil fines must Include citation of the statute or ordinance violated): Per a ruling on 14 February 2002, by D.J. Thomas Placey, judgement was found in favor of the plaintiff (Justin Frick) for the amount of $3650 + $97.50 in court costs. The original Claim No. is CV-0000611-01. It was found that CVM-BMW/DINAN was in violation of the Uniform Commercial Code, section 2314, and had sold plaintiff goods that were not merchantable, CVM has appealed this judgement, and in-turn, I elect to file a second complaint for payment of monies awarded in the original judgement. I, Justin M. Frick veflfy that the facts set forth in this complaint are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C.S. § 4904) related to unsworn falsification to authorities. Plaintiff's Attorney:. Telephone: ( Address: ~iff or Authorized Agent) IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT. If yOU have a claim against the plaintiff which is within district justice jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five (5) days before the date set for the hearing. If you have a claim against the plaintiff which is not within district justice jurisdiction, you may request information from this office as to the procedures you may follow. If you are disabled and require assistance, please contact the Magisterial District office at the address above. AOPC 308A (12-1-98) COURT OF COMMON PLEAS CUHREP, LAMD COI~TY JUDICIAL DISTRICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMONPLEASNo.. ~ , '/,~., / ~ t ., NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAME OF APPELLANT MAG. DIST. NO, OR NAME OF D.J. Cumberla~,d Valley Motor~ ~9-3-0& Thomas A. Placey ADDRESS OF APPELLANT CITY STATE ZIP CODE 6714 Carli~la Ptk~ Mechantcaburg PA 17050 DATE OF JUDGMENT 2/14/02 IN THE CASE OF (PLAINTIFF) Ju.~Cin M. Frick (DEFENDANT) vs. Cumberland Valley Motors BMW/Dinan CLAIM NO, CV YEAR LT YEAR CV-O000611-O! This block will be signed ONLY when this notation is required under PA. R.C.P.J.P. No. 1008B. This notice of Appeal, when received by the District Justice, will operate as A SUPERSEDEAS to the Judgment for possession in this case. SIGNATURE OF APPELLANT OR HiS ATTORNEY OR AGENT / If appellant was Claimant (see PA R.C.P.J.P. No. 1001(6)) in action before district Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAEClPE: To Prothonotary Enter rule upon (Common Pleas No. ,',,.. :; ~ RULE: Justin M. Frick , appellee(s), to file a complaint in this appeal Name of appellee(s) ,,'£ , ~.3 within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or his altorney or agent To Ju~ti~ ~q. Frick , appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a comolaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal'sep/ice or by certified or registered mail. (2) If you do not file a complaint within this time. a JUDGMENT OF NON PRO~ WILL BE ENTERED AGAINST YOU UPON PRAEClPE. Date: (3) The date of service of this rule if service was by m~il is the Date of the mailing. ,"' '. ., . , Year White - Prothonotary Copy Green - Court File Copy Yellow - Appeiant's Copy Pink - Appellee Copy Gold - D.J. Copy Proth. - 76 METTE, EVANS & %¥OODSIDE JOHN F. YA~INEK* VICKY ANN TRIMMER TIMOTHY A. HO'( http://www, mette.com February 25, 2002 Curt Long, Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Re: Justin M. Frick v. Cumberland Valley Motors BMW/Dinan Sales Docket No. 02.929 Civil Term Dear Prothonotary Long: Enclosed for filing please find the original and one copy of the notarized Proof of Service of Notice of Appeal and Rule to File Complaint in the above-referenced matter. Kindly return the time-stamped copy of the Proof of Service to my attention in the self- addressed, postage-paid envelope provided. A true and correct copy of the Notice of Appeal was served via certified mail, return receipt requested this day upon District Justice Thomas A. Placey and a true and correct copy of the Notice of Appeal and Rule to File Complaint was also served via certified mail, return receipt requested this day upon Appellee, Justin M. Frick. Should you have any questions or concerns, please do not hesitate to contact me. Sincerely, JFY:bsk Encloses cc: ~Justin M. Frick (via certified mail, return receipt requested, with enclosure) District Justice Thomas A. Placey (via certified mail, return receipt requested, with enclosure) :287871 _1 IUSTIN M. FRICK, Plaintiff Vo CUMBERLAND VALLEY MOTORS, Defendants TO: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-929 CIVIL ACTION LAW NOTICE OF PRAECIPE TO ENTER JUDGMENT OF NON PROS JUSTIN M. FRICK 1129 Country Club Road Camp Hill, PA 17011 Date of Notice: March 20, 2002 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN (l 0) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANTS AND THEREBY LOSE PROPERTY OR OTHEK IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Lawyer Referral Service cUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 By: METTE, EVANS & WOODSIDE F. Esqu e Sup. ~. I.D. g55741 3401 Noah Front Street P. O. Box 5950 H~sburg, PA 17110-0950 (717) 232-5000 A~omeys for Defen~t, Cmb~l~d Valley Motors JUSTIN M. FRICK, Plaintiff CUMBERLAND VALLEY MOTORS BMW/DINAN SALES, Defendants TO: JUSTIN M. FRICK 1129 Country Club Road Camp Hill, PA 17011 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-929 CIVIL ACTION LAW NOTICE TO PLEAD You are hereby notified to file a written response to Defendant's Preliminary Objections to Plaintiffs' Complaint within twenty (20) days from service hereof or a judgment may be entered against you. METTE, EVANS & WOOl)SIDE DATED: Apfill0,2002 By: Jo~tl~. Yanin~k,k~4:lui~a SdS. Ct. I.D. No. 5Y/41 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attomeys for Defendant Cumberland Valley Motors BMW/D1NAN Sales -5- JUSTIN M. FRICK, Plaintiff CUMBERLAND VALLEY MOTORS BIvlW/DINAN SALES, Defendants NO. 02-929 CIVIL ACTION LAW ' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant, Cumberland Valley Motors BMW/DINAN Sales, hereby files the following preliminary objections to Plaintiff's Compalint pursuant to Pa. R.C.P. 1028, and avers as follows: 1. A true and correct copy of Plaintiff's Complaint is attached hereto, made a part hereof and marked as "Exhibit A'. 2. This action was originally commenced at the district justice level and an appeal was taken requiring the Plaintiff to file a complaint within twenty days alter service. 3. Plaintiff failed to file a complaint, and Defendant served a 10-Day Notice for Judgment of Non Pros. 4. Subsequently, Plaintiff filed a Complaint marked as "Exhibit A'. Preliminary Objections in the Nature of a Motion to Strike For Insufficient Specificity of Ple~dlm, Pursuant to Pa. R.C.P. 1028(a~(3L 5. Under Pennsylvania law, the material facts in which a cause of action or defense is based shall be stated in a consice and summary form. Pa. R.C.P. 1019(a). 6. Plaintiff has failed to plead any facts upon which a cause of action entitles him to relief. 7. For these reasons, Defendant is unable to prepare a defense to these non-specific allegations. WHEREFORE, Defendant, Cumberland Valley Motors BMW/DINAN Sales, respectfully requests this Honorabel Court to strike Plaintiff's Complaint due to insufficient specificity. granted. 9. 10. recovery. 11. Preliminary Objections in the Nature of a Demurrer for Legal Insufficiency of Pleadim, Pursuant to Pa. R.C.P. 1028(a)(4) Plaintiff's Complaint fails to state any cause of action to which relief can be Plaintiff's Complaint states mere conclusions of law. Plaintiff cites the February 14, 2002 decision of the district justice as a basis for Pursuant to the Pennsylvania Rules of Civil Procedure, Defendant's appeal operates as a supersedeas to the Court below. 12. Defendant is entitled to a de novo review of the facts and law in this case. WHEREFORE, Defendant respectfully requests that this Honorable Court enter an order dismissing Plaintiff's Complaint due to legal insufficiency of the action. Defendant's Preliminary Objection in the Nature of a Motion to Strike Pursuant to Pa. R.C.P. 1028~a)(2} 13. Plaintiff's Complaint fails to comply with the following rules of civil procedure: a. Rule 1018.1; -9,- b. Rule 1019; c. Rule 1021; d. Rule 1022; and e. Rule 1026. WHEREFORE, Defendant respectfully requests that this Honorable Court enter an order dismissing Plaintiff's Complaint due to legal insufficiency of the action. Respectfully submitted, METTE, EVANS & WOODSIDE By: ~ffY~-' kE~Juire Jo Yaninek, s uire Sup. Ct. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors BMW/DINAN Sales Date: April 10, 2002 -3- Exhibit A COU*NTY OF: C~mb~_rlnnd 09304 Thomas Placey 104 South Sporting Hill Road Mechanicsburg, PA 17050 (717)761-8230 CIVIL COMPLAINT PLAJN'I1,FF: HAME ,~1 ADDRESS J--' Justin M. Frick J 1129 Country Club Road Camp Hill, PA 17011 L__ 717-731-6692 VS. DEFENDANT~ .A~s,~ ~a.r=ss Cumberland Valley Motors BIV~R~INAN Sales~ 6714 Carhsle Pike MechaniCsburg, PA 17050 L_ 717-697-9446,o FLUNG COSTS $ AMOUNT DATE/PAID/ SERVING COSTS $ / / TOTAL $ / / TO THE DEFENDANT: The above named plaintiff(s) asks judgment against you for ~ 3747.50 together with costs upon the following claim (Civil fines must Include cltstlon of the statute or ordinance violated): Per a ruling on 14 February 2002, by D.J. Thomas Placey, judgement was found in favor of the plaintiff (Justin Frick) for the amount of $3650 + $97.50 in court costs. The original Claim No. is CV-0000611-01. It was found that CVM-BMW/DINAN was in violation of the Uniform Commemial Code, section 2314, and had sold plaintiff goods that were not memhantable. CVM has appealed this judgement, and in-turn, I elect to file a second complaint for payment of monies awarded in the original judgement. I, juStin M. Frick verify that the facts set forth In this complaint are true and correct to the best of my knowledge, Infomtaflon, and belief. This statement Is made subject to the penalties of Section 4904 of the Crimes Coda (18 PA. C.S. § 4904) relsted to unswom falsification to authorities. , (/~Signat~re of Plaintiff or Authorized Agent) Plaintiff's Attorney:. Telephone: ( Address: IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT. If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five (5) days before the date set for the hearing. If you have a claim against the plaintiff which is not within district justice jurisdiction, you may request information from this office as to the procedures you may follow. If you are disabled and require assistance, please contact the Magisterial District office at the address above. AOPC 308A (12-1-98) COURT OF COMMON PLEAS CUHBE?,!,A}ID .JUDICIAL DISTRICT FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. " NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below· NAME OF APPELLANT Cn~berl. and Valley Motor.~ ADDRESS OF APPELLANT 67!4 C~rli.~le Pike MAe. DIST. NO. OR NAME OF D,J. 09--~--04 Thomaa A, Pla~'r CITY STATE ZiP CODE Mechan:[.c.~b'ur g PA t 7050 DATE OF JUDGMENT IN THE CASE OF (PLAINTIFF) Jumtin M, Frick CV YEAR LT YEAR C¥-000061~-01 (DEFENDANT) v~. Cumberland Valley Motora B~/Dinan SIGNATURE OF APPELLANT OR HIS A~rORNEY OR A~ENT as This block wilt be signed ONLY when this notation is required under PA. R.C.P.J.P. No. 1008B. This notice of Appeal, when received by the District Justice, will operate A SUPERSEDEAS to the Judgment for possession in this case. If appellant was Claimant (see PA R.C.P.J.P. No. 1001(6)) in action before district Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAEClPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be ~sed ONLY when appellant was DEFENDANT (see PA R.C.P.J.P. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy ot notice of appeal to be served upon appellee. PRAEClPE: To Prothonotary Enter rule upon .h~e :in M. Frick , appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. ~ ,,... :i ~ ; '. ,, \) within twenty (20) days after service of rule or suffer entry of judgment of non pros. ~ ~ % "~ / Signature of appellant or his attorney or agenl RULE: To 'u ~.:i:- !. '~.::i :.k , appellee(s) Name of appellee(s) Date: You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty(20) days after the date of service of this rule upon you by personal'se~ice or by certified or registered mail. If you do not file a complaint within this time, a JuDGMEnT OF NON PRO~ WILL BE ENTERED AGAINST YOU (1) (2) UPON PRAECIPE. (3) The date of service of this rule if service was by mail is the date of the mailing. White - Prothonotary Copy Green - Court File Copy Yellow - Appelant's Copy Pink Appellee Copy Gold - D.J. Copy · SignatureofProthonotaryorDeputy ' Proth. - 76 ~ETTE, EVANS & WOODSIDE http://www, mette.com February 25, 2002 Curt Long, Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 Re: Justin M. Frick v. Cumberland Valley Motors BMWfDinan Sales Docket No. 02-929 Civil Term Dear Prothonotary Long: Enclosed for filing please find the original and one copy of the notarized Proof of Service of Notice of Appeal and Rule to File Complaint in the above-referenced matter. Kindly return the time-stamped copy of the Proof of Service to my attention in the self- addressed, postage-paid envelope provided. A true and correct copy of the Notice of Appeal was served via certified mail, return receipt requested this day upon District Justice Thomas A. Placey and a true and correct copy of the Notice of Appeal and Rule to File Complaint was also served via certified mail, return receipt requested this day upon Appellee, Justin M. Frick. Should you have any questions or concerns, please do not hesitate to contact me. Sincerely, JFY:bsk Enclos .~. s cc: Justin M. Frick (via certified mail, return receipt requested, with enclosure) District Justice Thomas A. Placey (via certified mail, return receipt requested, with enclosure) JUSTIN M. FRICK, Plaintiff CUMBERLAND VALLEY MOTORS, Defendants CUlvlBERLAND cOUNTY, PENNSYLVANIA NO. 02-929 CIVIL ACTION LAW TO: N~OTICE OF PRAECIPE TO ENTER JUDGMENT OF NON PROS. JUSTIN M. FRICK ~:' 1129 Country Club Road :~-'. Camp Hill, PA 17011 Date of Notice: March 20, 2002 EVIPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FRoM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU 1V/AY LOSE YOUR RIGHT TO SUE THE DEFENDANTS AND THEREBY LOSE PROPERTY OR OTHER LVI~ORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Lawyer Referral Service cUMBERLAND cOUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 By: METTE, EVANS & WOODSIDE Sup. Ct. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: JUSTIN M. FRICK 1129 Country Club Road Camp Hill, PA 17011 METTE, EVANS & WOODSIDE By: ~~ p. F. Yan~ Esquire Ct. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors BMW/DINAN Sales DATE: April 10, 2002 PRAECIPE FOR LISTING CASE FOR ARGUMENT ()~lst be t~tt:e~l ~ ~t-~ed iI~ ~l (cate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pl-~e l~t the within matter for tb~ next ~t Ca, rt. CAPTION OF CASE (e~tire cape~~n m~st be state~l in D,11) JUSTIN M. FRICK, (plaintiff) CUMBERLAND VALLEY MOTORS BMW/DINAN SALES (Defer~tant) No. 02-929 Civil- Law ~ 2002 1. State matter to be arc. m4 (i.e., pl~(ntiff's motion for new triml, defendant's d~m~er to col~p!a(nt, etc.): 2. Identify counsel who w(ll argue case: (a) for plaintiff: ;u~T~s: (b) for deferment: i~t~ess: John F. Yaninek, Esquire Mette, Evans & Woodside 3401 North Front Street, PO Box 5950 Harrisburg, PA 17110-0950 Justin M. Frick 1129 Country Club Road Camp Hill, PA 17011 I wi 1 1 notify al 1 parties in writing within t~m days that ~ case bas been 1 i.~ted for arg~m~mt. 4. Argt~ent Court Date: May 22, 2002 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: JUSTIN M. FRICK 1129 Country Club Road Camp Hill, PA 17011 By: METTE, EVANS & WOODSIDE J~F' ~Sllp. Ct. I.~i; 5~57E;1quire 3401 North Front Street P. O. Box 5950 Harrisburg, PA ! 7110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors BMW/DINAN Sales DATE: April 10, 2002 APR 0 8 2002 ANTHONY M. FALVO and KATHERINE M. FALVO, Plaintiffs V SHAWNY R. BEALL and NICHOLAS A. FALVO, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02 - 989 and 00 - 7358 CIVIL IN CUSTODY CO~TO~ER AND NOW, this 1-- day of April, 2002, upon consideration of the attached Custody Conciliation Report, it is ordered and directed as follows: This Court's prior Order of November 7, 2000 at Docket No. 00 - 7358 is vacated. The Paternal Grandparems, Anthony M. Falvo and Katherine M. Falvo, shall enjoy legal and physical custody of Destany Meshel-Anne Beall, bom February 18, 2000. The Mother, Shawny R. Beall, and the Father, Nicholas A. Falvo, shall enjoy periods of temporary physical custody with the minor child at such times and under such circumstances as agreed upon by the parties. In the event any party to this action desires to modify this order, that party may petition the court to have the case again scheduled with the conciliator for a custody conciliation conference. All parties shall keep each other advised with respect to addresses where they are residing and with respect to phone numbers so they may be contacted in the event of an emergency relating to the minor child. cc: Carol J. Lindsay, Esquire Nicholas A. Falvo 131 Simmons Road Mechanicsburg, PA 17055 Shawny R. Beall 305 Greason Road Carlisle, PA 17013  p .J. , P.J. ANTHONY M. FALVO and KATHERINE M. FALVO, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V SHAWNY R. BEALL and NICHOLAS A. FALVO, Defendants : CIVIL ACTION - LAW : NO. 02 - 989 and 00 - 7358 CIVIL IN CUSTODY Prior Judge: Edward E. Guido CONCILIATION CONFERENCE SUMMARY REPORT IN ACCORDANCE WITH THE CUMBERLAND COUNTY CIVIL RULE OF PROCEDURE 1915.3-8(b), the undersigned Custody Conciliator submits the following report: The pertinem information pertaining to the child who is the subject of this litigation is as follows: Destany Meshel-Anne Beall, bom February 18, 2000. A Conciliation Conference was held on April 5, 2002, with the following individuals in attendance: The Paternal Grandparents, Anthony M. Falvo and Katherine M. Falvo, with their counsel, Carol J. Lindsay, Esquire; and the Father, Nicholas A. Falvo, who appeared without counsel and the Mother, Shawny R. Beall, who appeared without counsel. The parties agree to the emry of an order in the form as attached. DATE HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 17013 (717) 243-6090 ATTORNEY FOR PLAINTIFF JUSTIN M. FRICK, -' IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION - LAW CUMBERLAND VALLEY MOTORS, INC.,: NO. 02 - 0929 CIVIL TERM Defendant : NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other Claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-243-3166 JUSTIN M. FRICK, : IN THE COURT OF COMMON PLEAS OF Plaintiff -- CUMBERLAND COUNTY~ PENNSYLVANIA .. vs. : CIVIL ACTION - LAW : CUMBERLAND VALLEY MOTORS, INC,.' NO. 02 - 0929 CIVIL TERM Defendant AMENDED COMPLAINT NOW comes the plaintiff, by his attorney, Harold S. Irwin III, Esquire, and files this amended complaint against the defendant, representing as follows: 1. The plaintiff, Justin M. Frick, is an adult individual residing at 1129 Country Club Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. The defendant, Cumberland Valley Motors, Inc., is a Pennsylvania corporation with offices at 6714 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Defendant is an authorized agent and dealer of, inter alia, BMW automobiles and DINAN BMW automotive enhancement products. 4. Plaintiff has previously entered into several motor vehicle sales and purchase transactions with the defendant. 5. At all times relevant to this action, plaintiff was the owner of a 1999 BMW 540i that he had previously purchased from the defendant. 6. Plaintiff learned of DINAN's BMW automotive enhancement products through DIN^N's print ads and on the internet and other literature which identified the defendant as the local area retailer of DINAN products. 7. Subsequently, plaintiff purchased from defendant a DINAN produced computer chip designed to enhance engine performance. 8. The computer chip which plaintiff purchased from the defendant was installed in plaintiff's 1999 BMW 540i automobile by the defendant. 9. The costs of the product and its installation were approximately $350.00. 10. Subsequent to plaintiff's purchase of the computer chip from and its installation by the defendant, plaintiff learned that although the modification of the automobile by the installation of the DINAN product did not void the BMW warranty, it did make the vehicle ineligible for future certification under BMVV's certified pre-owned sales program (hereinafter CPO). 11. Unaware of the effect that the installation of the DNA modification had on the eligibility of the vehicle for BMVV's CPO program, plaintiff thereafter sought to sell this car through the defendant's courtesy sale program, which would certify this car with the CPO designation and provide the buyer and seller with additional sales options that cannot be obtained in a traditional non-dealer straight sale. 12. Plaintiff and defendant prepared estimates for the sale under the more favorable terms of a CPO sale; however, it was then learned that the vehicle was ineligible for this program due to its DINAN modification, requiring the modification of the terms of the sale. 13. After the modification of the terms of sale, plaintiff was required to give to defendant the sum of $3,650.00 to cover the difference between the CPO sale and the non-CPO sale still using the defendant's courtesy sate program. 14. The diminution on the value of the transaction has been broken down into three value items: $2,150.00 in lease rate costs difference; $650.00 in first month lease rebate; and $1,750.00 in costs for a protection plan given with a CPO sale. 15. Accordingly, the installation of this "enhancement" product onto plaintiffs motor vehicle by the defendant resulted in damages to the plaintiff of $350.00 for the costs of the installation and $3,650.00 in the diminution of the vehicle's resale value. COUNT I BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY 16. Plaintiff incorporates by reference the averments of this complaint, paragraphs one through fifteen, as if fully set forth herein at length. 17. Defendant is a retailer and an agent for both BMW and DINAN and acts on behalf of both companies. 18. Defendant failed to warn the plaintiff that the installation of the DINAN "enhancement" product, while it could improve the performance of the vehicle, it would be detrimental to the vehicle's resale value in that it would make it ineligible for BMW's certified pre-owned sales program (CPO). 19. The failure of defendant, as agent and dealer of BMW automobiles and agent, dealer and installer of DINAN BMW automotive products, to advise plaintiff of the consequences of the DINAN installation on plaintiff's BMVV motor vehicle prevented plaintiff from making an informed decision on the installation of this product on his automobile. 20. In this transaction, there was an implied warranty of merchantability which provided that for the goods sold to plaintiff to be merchantable they must at least pass without objection in the trade under the contract description. 21. The installation of the DINAN computer chip does cause objection within the BMW automotive resale trade with which defendant is engaged, which objection defendant, as agent and dealer for both companies, was uniquely able to determine prior to the sale of this product to plaintiff and its installation on plaintiffs vehicle. 22. Accordingly, defendant had a duty to plaintiff to warn or advise plaintiff of the potential adverse impact that the installation of this product would have on the resale value of this vehicle. 23. Plaintiff has a reasonable expectation that the defendant would advise and warn the plaintiff of the irreversible consequences that this modification would have on the resale value of the vehicle. 24. Plaintiff would not have purchased this product had defendant properly advised and warned the plaintiff of its adverse impact on the resale value of the vehicle. 25. The failure to warn plaintiff of such consequences was the direct cause of the plaintiff's loss of the value of the product and installation costs of $350.00, as well as the $3,650.00 diminution in the vehicle's resale value. WHEREFORE, plaintiff demands judgment against the defendant in the total sum of $4,000.00, plus costs of suit, interest and attorney fees. COUNT II UNFAIR OR DECEPTIVE ACTS OR PRACTICES UNDER THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (73 PA.C.S.A. SECTION 2Of-1. ET SEQ.) 26. Plaintiff incorporates by reference the averments of this complaint, paragraphs one through fifteen and seventeen through twenty-five, as if fully set forth herein at length. 27. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DIN^N BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DIN^N product was installed by defendant, caused confusion and misunderstanding in plaintiff as to the source, sponsorship, approval or certification of the goods or services involved in the transaction, as proscribed by Section 201-2 (4)(ii) of the Unfair Trade Practices and Consumer Protection Law. 28. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant caused confusion and misunderstanding in plaintiff as to the affiliation, connection or association with, or certification by another, as proscribed by Section 201-2 (4)(iii) of the Unfair Trade Practices and Consumer Protection Law. 29. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing.to warn or advise plaintiff, one of defendant's BMVV customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant was, in effect, a representation that goods or services had sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they did not have or that defendant had a sponsorship, approval, status, affiliation or connection that defendant does not have, as proscribed by Section 201-2 (4)(v) of the Unfair Trade Practices and Consumer Protection Law. 30. The damages which plaintiff incurred as the result of such violations of the Unfair Trade Practices and Consumer Protection Law amounted to $4,000.00, as itemized in paragraph twenty-five above. WHEREFORE, plaintiff demands judgment against the defendant for plaintiff's actual damages of $4,000.00, plus interest and attorney fees, plus an amount equal to three times the actual damages sustained by the plaintiff, and such other relief as the Court deems necessary or proper, under the Unfair Trade Practices and Consumer Protection Law, Section 201-9.2 (a). April ~_, 2002 · Attorney for plaintiff ~ 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 VERIFICATION The foregoing complaint is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of the complaint is the language of my counsel and not my own. I have read the complaint and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the complaint is that of counsel, I have relied upon counsel in making this verification. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.^. Section 4094, relating to unsworn falsification to authorities. JUSTIN M. FRICK, Plaintiff v. : NO. 02-929 CUMBERLAND VALLEY MOTORS, INC. : Defendant : CIVIL ACTION LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Cumberland Valley Motors, Inc., hereby files the following preliminary objections to Plaintiff's Amended Complaint pursuant to Pa. R.C.P. 1028, and avers as follows: A. Defendant's Preliminary Objections to PlaIntiff's Amended Complaint in the Nature of Demurrer for Legal Insufficiency of Pleading Pursuant to Pa. R.C.P. 1028(a)(4) and/or in the Nature of a Motion to Strike for Insufficient Speeffieity of a Pleading Pursuant to Pa. R.C.P. No. 1028{a}(3). 1. Plaintiff's Amended Complaint is incorporated herein by reference as if set forth at length without any admission of allegations contained within. A true and correct copy of Plaintiff's Amended Complaint is attached hereto, made a part hereof and marked as "Exhibit 2. Plaintiff alleges within the Amended Complaint that he purchased from Defendant a DINAN computer chip to enhance the performance of his BMW automobile. 3. Plaintiff alleges as a result of his decision to place the computer chip within his BMW automobile, he became ineligible for future certification by BMW and somehow resulted in a loss of value to the vehicle. 4. Plaintiffmakes a claim in Count I for breach of implied warranty of merchantability. 5. Plaintiff does not allege that the product sold to him was in any way defective. 6. Plaintiff alleges that Defendant had a duty to warn Plaintiff or advise him of potential adverse impact of the installation of the computer chip to his vehicle. 7. A Defendant's duty to warn is not a part of any element of the cause of action for breach of implied warranty of merchantability. 8. For those reasons, Plaintiff's Amended Complaint has failed to state a claim for breach of implied warranty of merchantability. 9. In Count II Plaintiff alleges that Defendant somehow failed to warn or advise Plaintiff of the adverse impact of the installation ora DINAN BMW enhancement product to his vehicle in paragraph 27 of Plaintiff's Amended Complaint. 10. As a matter of law, Plaintiff's allegations within Count II fail to state a cause of action for unfa'n: or deceptive acts or practices under the Unfair Trade Practice and Consumer Protection Law. WHEREFORE, Defendant Cumberland Valley Motors, Inc. respectfully requests this Honorable Court dismiss Plaintiff's Amended Complaint with prejudice. B. Preliminary Objections in the Nature of a Motion to Strike Under Rule 1028(a)(2). Defendant objects to Plaintiff's prayer for relief in Count I of the Amended 11. Complaint. 12. In Count I Plaintiff requests attorney fees. 13. Under Pennsylvania law, a litigant cannot recover attorney's fees unless there is an expressed statutory authorization, a clear agreement of the parties or some established exception. 14. In this case, no statute, agreement or exception authorizes attorney's fees for breach of implied warranty of merchantability. 15. Therefore, Plaintiff's request for attorney fees in the prayer for relief in Count I fails to conform to law. 16. Therefore, Plaintiff's request for attorney fees in the prayer for relief in Count I should be stricken from the Complaint. WHEREFORE, Defendant Cumberland Valley Motors, Inc. respectfully requests this Honorable Court enter an order striking the word "attomey fees" from the prayer for relief in Count I of Plaintiff's Amended Complaint. Date: May 10, 2002 By: Respectfully submitted, METTE, EVANS & WOODSIDE Jo~i~F. Yanin$~ Esquire Stlp. Ct. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. HAROLD S. IRWIN, III, ESQUIRE .ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA t70t3 (7.J?) 243~000 ATTORNEY FOR PLAINTIFF JUSTIN M. FRICK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION - LAW CUMBERLAND VALLEY MOTORS, INC.,: NO. 02 - 0929 CIVIL TERM Defendant : NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-243-3166 JUSTIN M. FRICK, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND cOUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW CUMBERLAND VALLEY MOTORS, INC.,: NO. 02 - 0929 CIVIL TERM Defendant : · AMENDED COMPLAINT NOW comes the plaintiff, by his attorney, Harold S. Irwin III, Esquire, and files this amended complaint against the defendant, representing as follows: 1. The plaintiff, Justin M. Frick, is an adult individual residing at 1129 Country Club Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. The defendant, Cumberland Valley Motors, Inc., is a Pennsylvania corporation with offices at 6714 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Defendant is an authorized agent and dealer of, inter alia, BMW automobiles and DINAN BMVV automotive enhancement prodUcts. 4. Plaintiff has previously entered into several motor vehicle sales and purchase transactions with the defendant. 5. At all times relevant to this action, plaintiff was the owner of a 1999 BMW 540i that he had previously purchased from the defendant. TRUE COPY FROM RECORD In TesUmony w~mof, I here unto set my bane and t~j~aJ~ said Col~,.,a._C~llsle~Pa.4_.~ Tht y ,AHJ,3A,r. L/" .... ~' Prothonotary/,~ 6. Plaintiff learned of DINAN's BMW automotive enhancement products through DINAN's print ads and on the internet and other literature which identified the defendant as the local aroa retailer of DINAN products. 7. Subsequently, plaintiff purchased from defendant a DINAN produced computer chip designed to enhance engine performance. 8. The computer chip which plaintiff purchased from the defendant was installed in plaintiffs 1999 BMW 540i automobile by the defendant. 9. The costs of the product and its installation Were approximately $350.00. 10. Subsequent to plaintiff's purchase of the computer chip from and its installation by the defendant, plaintiff learned that although the modification of the automobile by the installation of the DINAN product did not void the BMW warranty, it did make the vehicle ineligible for future certification under BMW's certified pro-owned sales program (hereinafter CPO). 11. Unaware of the effect that the installation of the DNA modification had on the eligibility of the vehicle for BMW's CPO program, plaintiff thereafter sought to sell this car through the defendant!s courtesy sale program, which would certify this car with the CPO designation and provide the buyer and seller with additional sales options that cannot be obtained in a traditional non-dealer straight sale. 12. Plaintiff and defendant prepared estimates for the sale under the more favorable terms of a CPO sale; however, it was then learned that the vehicle was · ineligible for this program due to its DINAN modification, requiring the modification of the terms of the sale. 13. After the modification of the terms of sale, plaintiff was required to give to defendant the sum of $3,650.00 to cover the difference between the CPO sale and the non-CPO sale still using the defendant's courtesy sate program. 14. The dimtnution on the value of the transaction has been broken down into three value items: $2,150.00 in lease rate costs difference; $650.00 in first month lease rebate; and $1,750.00 in costs for a protection plan given with a CPO sale. 15. Accordingly, the installation of this "enhancement" product onto plaintiff's motor vehicle by the defendant resulted in damages to the plaintiff of $350.00 for the costs of the installation and $3,650.00 in the diminution of the vehicle's resale value. COUNT I BREACH OF iMPLIED WARRANTY OF MERCHANTABILITY 16. Plaintiff incorporates by reference the averments of this complaint, paragraphs one through fifteen, as if fully set forth herein at length. 17. Defendant is a retailer and an agent for both BMW and DINAN and acts on behalf of both companies. 18. Defendant failed to warn the plaintiff that the installation of the DINAN "enhancement" product, while it could improve the performance of the vehicle, it would be detrimental to the vehicle's resale value in that it would make it ineligible for BMW's certified pre-owned sales program (CPO). 19. The failure of defendant, as agent and dealer of BMW automobiles and agent, dealer and installer of DINAN BMW automotive products, to advise plaintiff of the consequences of the DINAN installation on plaintiff's BMW motor vehicle prevented plaintiff from making an informed decision on the installation of this product on his automobile. 20. In this transaction, there was an implied warranty of merchantability which provided that for the goods sold to plaintiff to be merchantable they must at least pass without objection in the trade under the contract description. 21. The installation of the DINAN computer chip does cause objection within the BMW automotive resale trade with which defendant is engaged, which objection defendant, as agent and dealer for both cOmpanies, was uniquely able to determine prior to the sale of this product to plaintiff and its installation on plaintiff's vehicle. 22. Accordingly, defendant had a duty to plaintiff to warn or advise plaintiff of the potential adverse impact that the installation of this product would have on the resale value of this vehicle. 23. Plaintiff has a reasonable expectation that the defendant would advise and warn the plaintiff of the irreversible consequences that this modification would have on the resale value of the vehicle. 24. Plaintiff would not have purchased this product had defendant properly advised and warned the plaintiff of its adverse impact on the resale value of the vehicle. 25. The failure to warn plaintiff of such consequences was the direct cause of the plaintiff's loss of the value of the product and installation costs of $350.00, as well as the $3,650.00 diminution in the vehicle's resale value. WHEREFORE, plaintiff demands judgment against the defendant in the total sum of $4,000.00, plus costs of suit, interest and attorney fees. COUNT II UNFAIR OR DECEPTIVE ACTS OR PRACTICES UNDER THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (73 PA.C.S.A. SECTION 201-~,. ET SEQ.) 26. Plaintiff incorporates by reference the averments of this complaint, paragraphs one through fifteen and seventeen through twenty-five, as if fully set forth herein at length. 27. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant, caused confusion and misunderstanding in plaintiff as to the source, sponsorship, approval or certification of the goods or services involved in the transaction, as proscribed by Section 201-2 (4)(ii) of the Unfair Trade Practices and Consumer Protection Law. 28. Defendant's practice of acting as a dealer, retailer and / or insta!ler of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant caused confusion and misunderstanding in plaintiff as to the affiliation, connection or association with, or certification by another, as proscribed by Section 201-2 (4)(iii) of the Unfair Trade Practices and Consumer Protection Law. 29. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiffs BMW in which the DINAN product was installed by defendant was, in effect, a representation that goods or services had sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they did not have or that defendant had a sponsorship, approval, status, affiliation or connection that defendant does not have, as proscribed by Section 201-2 (4)(v) of the Unfair Trade Practices and Consumer Protection Law. 30. The damages which plaintiff incurred as the result of such violations of the Unfair Trade Practices and Consumer Protection Law amounted to $4,000.00, as itemized in paragraph twenty-five above. WHEREFORE, plaintiff demands judgment against the defendant for plaintiffs actual damages of $4,000.00, plus interest and attorney fees, plus 'an amount equal to three times the actual damages sustained by the plaintiff, and such other relief as the Court deems necessary or proper, under the Unfair Trade Practices and Consumer Protection Law, Section 201-9.2 (a). April ~_, 2002 ~/~ "~"'v"" "' "'"'" "1 .~,~Attorney for plaintiff ~,, 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 VERIFICATION The foregoing complaint is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of the complaint is the language of my counsel and not my own. I have read the complaint and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the complaint is that of counsel, I have relied upon counSel in making this verification, I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4094, relating to unsworn falsification to authorities. April /~ ,2002 J UST~v~/M. FRICK CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 DATE: May 10, 2002 By: METTE, EVANS & W/QOI~SIDE / / Strip. Ct. I.D.~55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. JUSTIN M. FRICK, Plaintiff CUMBERLAND VALLEY MOTORS, Inc. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-0929 CIVIL ACTION LAW NOTICE TO PLEAD TO: JUSTIN M. FRICK c/o Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 You are hereby notified to file a written response to Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint within twenty (20) days from service hereof or a judgment may be entered against you. METTE, EVANS & WOODSIDE By: 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. DATED: August 1, 2002 JUSTIN M. FRICK, : Plaintiff : : ¥. : IN THE COURT OF COIVIIVION PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-0929 CUMBERLAND VALLEY MOTORS, INC. : Defc~odant : CIVIL ACTION LAW DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S SECOND AMENDED COMPLAINT Defend_ant, Cumberland Valley Motors, Inc., hereby files the following preliminary objections to Plaintiff's Second Amended Complaint pursuant to Pa. R.C.P. 1028, and avers as follows: Defendant's Preliminary Objections to Plaintiff's Second Amended Complaint in the Nature of Demurrer for Legal Insufficiency of Pleading Pursuant to Pa. R.C.P. 1028(a)(4) and/or in the Nature of a Motion to Strike for Insufficient Specificity_ of a Pleading Pursuant to Pa. R.C.P. No. 1028(a)(3). 1. Plaintiff's Second Amended Complaint is incorporated herein by reference as if set forth at length without any admission of allegations contained within. A true and correct copy of Plaintiff's Second Amended Complaint is attached hereto, made a part hereof and marked as "Exhibit A". 2. Plaintiff alleges within the Second Amended Complaint that he purchased from Defendant a DINAN computer chip to enhance the perfom~ance of his BMW automobile. 3. Plaintiff alleges as a result of his decision to place the computer chip within his BMW automobile, he became ineligible for future certification by BMW and somehow resulted in a loss of value to the vehicle. 4. Plaintiff makes a claim in Count I for breach of implied warranty of merchantability. 5. Plaintiff does not allege that the product sold to him was in any way defective. 6. Plaintiff alleges that Defendant had a duty to warn Plaintiff or advise him of potential adverse impact of the installation of the computer chip to his vehicle. 7. A Defendant's duty to warn is not a part of any element of the cause of action for breach of implied warranty of merchantability. 8. For those reasons, Plaintiff's Second Amended Complaint has failed to state a claim for breach of implied warranty of merchantability. 9. In Count II Plaintiff alleges that Defendant somehow failed to warn or advise Plaintiff of the adverse impact of the installation ofa DINAN BMW enhancement product to his vehicle in paragraph 27 of Plaintiff's Second Amended Complaint. 10. As a matter of law, Plaintiff's allegations within Count II fail to state a cause of action for unfair or deceptive acts or practices under the Unfair Trade Practice and Consumer Protection Law. WHEREFORE, Defendant Cumberland Valley Motors, Inc. respectfully requests this Honorable Court dismiss Plaintiff's Second Amended Complaint with prejudice. Respectfully submitted, METTE, EVANS & WOOI)SlI)E joT/F. .squ e S~. Ct. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PPi 17110-0950 (717) 232-5000 Attorneys for Defenda_nt, Cumberland Valley Motors, Inc. Date: August 1, 2002 Exhibit A HAROLD S. IRWIN, III, ESQUIRE AI'I'ORNEY ID NO. 2~920 38 EABi' HIGH STREET CARLlaLE PA t'7013 ATTORNEY FOR PLAINTIFF JUSTIN M. FRICK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CUMBERLAND VALLEY MOTORS, INC.,: NO. 02 - 0929 CIVIL TERM Defendant You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717-243-3166 in TeltlmenY wnmem, ~ .... '- Pa. JUSTIN M. FRICK, : IN THE COURT OF COMMON PLEA8 OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION - LAW : CUMBERLAND VALLEY MOTORS, INC.,: NO. 02 - 0929 CIVIL TERM Defendant : AMENDED COMPLAINT NOW comes the plaintiff, by his attorney, Harold S. Irwin III, Esquire, and files this second amended complaint against the defendant, representing as follows: 1. The plaintiff, Justin M. Frick, is an adult individual residing at 1129 Country Club Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. The defendant, Cumberland Valley Motors, Inc., is a Pennsylvania corporation with offices at 6714 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. Defendant is an authorized agent and dealer of, inter alia, BMW automobiles and DINAN BMW automotive enhancement products. 4. Plaintiff has previously entered into Several motor vehicle sales and purchase transactions with the defendant. 5. At all times relevant to this action, plaintiff was the owner of a 1999 BMW 540i that he had previously purchased from the defendant on or about January 1, 1999. 6. Plaintiff learned of DINAN's BMW automotive enhancement products through DINAN's print ads and on the internet and oiher literature which identified the defendant as the local area retailer of DINAN products. 7. On or about March 13, 2000, plaintiff purchased from defendant a DINAN produced computer software program designed to enhance engine performance. 8. The computer program enhancement which plaintiff purchased from the defendant was installed in plaintiff's 1999 BMW 540i automobile by the defendant on or about March 13, 2000. 9. The costs of the product enhancement and its installation were approximately $350.00. 10. Subsequent to plaintiff's purchase of the computer program enhancement from and its installation by the defendant, plaintiff learned that although the modification of the automobile by the installation of the DINAN product did not void the BMW warranty, it did make the vehicle ineligible for future certification under BMW's certified pre-owned sales program (hereinafter CPO). 11. Unaware of the effect that the installation of the DINAN modification had on the eligibility of the vehicle for BMW's CPO program, plaintiff thereafter sought to sell this car through the defendant's courtesy sale program, which would certify this car with the CPO designation and provide the buyer and seller with additional sales options that cannot be obtained in a traditional non-dealer straight sale. 12. Plaintiff and defendant prepared estimates for the sale under the more favorable terms of a CPO sale; however, it was then learned that the vehicle was ineligible for this program due to its DINAN modification, requiring the modification of the terms of the sale. 13. After the modification of the terms of sale, plaintiff was required to give to the arranged buyer of the 540i, the sum of $3,650.00 to cover the difference between the CPO sale and the non-CPO sale still using the defendant's courtesy sale program. 14. The diminution on the value of the transaction has been broken down into three value items: Ao $2,150.00 in lease rate costs difference; $650.00 in first month lease rebate; and $1,750.00 in costs for a protection plan given with a CPO sale. 15. Accordingly, the installation of this "enhancement" product onto plaintiff's motor vehicle by the defendant resulted in damages to the plaintiff of $350.00 for the costs of the installation and $3,650.00 in the diminution of the vehicle's resale value. BREACH OF IMPLIED WARRANTY OF FITNI::~ FOR PARTICULAR PURPOSE 16. Plaintiff incorporates by reference the averments of this complaint, paragraphs one through fifteen, as if fully set forth herein at length. 17. Defendant is a retailer and an agent for both BMW and DINAN and acts on behalf of both companies. 18. Defendant failed to warn the plaintiff that the installation of the DINAN "enhancement" product, while it could improve the performance of the vehicle, it would be detrimental to the vehicle's resale value in that it would make it ineligible for BMW's certified pre-owned sales program (CPO). 19. The failure of defendant, as agent and dealer of BMW automobiles and agent, dealer and installer of DINAN BMW automotive products, to advise plaintiff of the consequences of the DINAN installation on plaintiff's BMW motor vehicle prevented plaintiff from making an informed decision on the installation of this product on his automobile. 20. In this transaction there was an implied warranty that the goods sold to plaintiff were fit for a particular purpose. The defendant, at the time of contracting, had reason to know that the plaintiff relied upon the skill or judgment of defendant to select or furnish suitable goods. 21. The installation of the DINAN computer program enhancement does cause objection within the BMW automotive resale trade with which defendant is engaged, which objection defendant, as agent and dealer for both companies, was uniquely able to determine prior to the sale of this product to plaintiff and its installation on plaintiff's vehicle. 22. Accordingly, defendant had a duty to plaintiff to warn or advise plaintiff of the potential adverse impact that the installation of this product would have on the resale value of this vehicle. 23. Plaintiff has a reasonable expectation that the defendant would advise and warn the plaintiff of the irreversible consequences that this modification would have on the resale value of the vehicle. 24. Plaintiff would not have purchased this product had defendant properly advised and warned the plaintiff of its adverse impact on the resale value of the vehicle, 25. The failure to warn plaintiff of such consequences was the direct cause of the plaintiff's loss of the value of the product and installation costs of $350.00, as well as the $3,650.00 diminution in the vehicle's resale value. WHEREFORE, plaintiff demands judgment against the defendant in the total sum of $4,000.00, plus other relief as the Court deems appropriate. UNFAIR OR DECEPTIVE ACTS OR PRACTICES UNDER THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (73 P.S. SECTION 201-1. ET SEQ.} 26. Plaintiff incorporates by reference the averments of this complaint, paragraphs one through fifteen and seventeen through twenty-five, as if fully set forth herein at length. 27. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant, caused confusion and misunderstanding in plaintiff as to the source, sponsorship, approval or certification of the goods or services involved in the transaction, as proscribed by Section 201-2 (4)(ii) of the Unfair Trade Practices and Consumer Protection Law. 28. Defendant's practice of acting as a dealer, retailer and / or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant caused confusion and misunderstanding in plaintiff as to the affiliation, connection or association with, or certification~by another, as proscribed by Section 201-2 (4)(iii) of the Unfair Trade Practices and Consumer Protection Law. 29. Defendant's practice of acting as a dealer, retailer and./or installer of the products of both BMW and DINAN while failing to warn or advise plaintiff, one of defendant's BMW customers, of the adverse impact installation of the DINAN BMW automotive enhancement products would have on the resale value of plaintiff's BMW in which the DINAN product was installed by defendant was, in effect, a representation that goods or services had sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they did not have or that defendant had a sponsorship, approval, status, affiliation or connection that defendant does not have, as proscribed by Section 201-2 (4)(v) of the Unfair Trade Practices and Consumer Protection Law. 30. The damages which plaintiff incurred as the result of such violations of the Unfair Trade Practices and Consumer Protection Law amounted to $4,000.00, as itemized in paragraph twenty-five above. WHEREFORE, plaintiff demands judgment against the defendant for plaintiff's actual damages of $4,000.00, plus interest and attorney fees, plus an amount equal to three times the actual damages sustained by the plaintiff, and such other relief as the Court deems necessary or proper, under the Unfair Trade Practices and Consumer Protection Law, Section 201-9.2 (a). July // ,2002 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 The foregoing complaint is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of the complaint is the language of my counsel and not my own. I have read the complaint and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the complaint is that of counsel, I have relied upon counsel in making this verification. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. July l{ ,2002 JU,~,~IN M./ FRICK CERTIFICATE OF SERVICE I certify that I am this day serving a copy of thc foregoing document upon thc person(s) and in thc manner indicated below, which service satisfies thc requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Harold S. Lrwin, III, Esquire 35 East High Street Carlisle, PA 17013 DATE: August 1, 2002 By: METTE, EVANS & WOODSIDE p.F. Vanin{~, Esquire Ct. I.D. #$5741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. JUSTIN M. FRICK, Plaintiff Vo VALLEY MOTORS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0929 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 23rd day of September, 2002, upon consideration of Defendant's preliminary objections to Plaintiff's second amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's demurrer to Count II of Plaintiff's Second Amended Complaint is sustained, and Count II is dismissed. 2. Defendant's remaining preliminary objections are denied; and 3. Defendant is granted twenty days within which to file a responsive pleading to the second amended complaint as so affected. BY THE COURT, Harold S. Irwin, III, Esq. 35 East High Street Carlisle, PA 17013 Attorney for Plaintiff John F. Yaninek, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant JUSTIN M. FRICK, Plaintiff V. CUMBERLAND VALLEY MOTORS, INC., Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 02-0929 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., September 23, 2002. In this civil case an owner of a BMW automobile has sued a BMW dealer for damages allegedly resulting from the sale and installation in thc vehicle of a computer chip. According to Plaintiff, the resale value of the vehicle was decreased by about $3,500.00 by the installation. For disposition at this time are Defendant's preliminary objections to Plaintiff's second amended complaint. The preliminary objections are in the nature of a demurrer and in the form of a motion for a more specific complaint. The matter was argued on August 28, 2002. For the reasons stated in this opinion, Defendant's preliminary objections will be sustained in part and denied in part. STATEMENT OF FACTS On a preliminary objection in the nature of a demurrer to a complaint, a court is to credit "all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts." Small v. Horn, 554 Pa. 600, 608, 722 A.2d 664, 668 (1998). In accordance with this rule, the facts of the case may be summarized as follows: Plaintiff is Justin M. Frick, an adult individual residing in Camp Hill, Cumberland County, Pennsylvania.1 Defendant is Cumberland Valley Motors, Inc., a Pennsylvania corporation having offices in Mechanicsburg, Cumberland County, Pennsylvania, and being an authorized agent and dealer of BMW automobiles and DINAN BMW automotive enhancement products.2 Plaintiff, who had a history of being a party to motor vehicle sales and purchase transactions with Defendant, and was the owner of a 1999 BMW 540i automobile purchased from Defendant,3 learned that Defendant was the local area retailer of BMW automotive enhancement products made by DINAN.4 Defendant sold to Plaintiff and installed in his vehicle a certain computer chip, designed to enhance engine perfoi-iiiance and made by DINAN, for $350.00, without disclosing that the installation would result irrevocably in disqualification of the vehicle for inclusion in a resale program known as the BMW certified pre-owned sales program? Because of the disqualification, the market value of Defendant's vehicle decreased by $3,650.00.6 In Count I of Plaintiff's Second Amended Complaint, titled "Breach of Implied Warranty of Fitness for Particular Purpose," Plaintiff asserts further (a) that the failure to disclose "prevented plaintiff from making an informed decision on the installation of this product on his automobile,''? (b) that Defendant, "at the time of contracting, had reason to know that the plaintiff relied upon the skill or judgment of defendant to select or furnish suitable goods,''8 (c) that the chip was ~ Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 1. 2 Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraphs 2-3. Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraphs 4-5. Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 6. Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraphs 7-10, 23. Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraphs 13-15. Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 19. Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 20. 2 objectionable in the resale trade and that Defendant was in a unique position to know this,9 (d) that Plaintiff reasonably expected that he would be advised of this consequence by Defendant,~° and (e) that Plaintiff would not have purchased the chip had the consequence been disclosed, n In Count II of the Second Amended Complaint, titled "Unfair or Deceptive Acts or Practices Under the Unfair Trade Practices and Consumer Protection Law (73 P.S. Section 201-1, et seq.)," Plaintiff asserts further (a) that the failure to disclose "caused confusion and misunderstanding in plaintiff as to the source, sponsorship, approval or certification of the goods or services involved in the transaction," in violation of Section 201-2(4)(ii) of the Unfair Trade Practices and Consumer Protection Law,~2 (b) that Defendant's practice, in conjunction with its status, under the circumstances "caused confusion and misunderstanding in plaintiff as to the affiliation, connection or association with, or certification by another," in violation of Section 201-2(4)(iii) of the said law,~3 and (c) that Defendant's practice, in conjunction with its status, rendered the nondisclosure, "in effect, a representation that goods or services had sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they did not have or that defendant had a sponsorship, approval, status, affiliation or connection that defendant does not have," in violation of Section 201-2(4)(v) of the said law. ~4 DISCUSSION Statement of Law Demurrer. "The question presented by [al demurrer is whether, on the facts averred [in the complaint], the law says with certainty that no recovery is Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 21. ~0 Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 23. n Plaintiff's Second Amended Complaint, filed July 17, 2002, paragraph 24. 12 Plaintiff's Second Amended Complaint, filed July ~3 Plaintiff's Second Amended Complaint, filed July ~4pl ' ' alntlff's Second Amended Complaint, filed July 17, 2002, paragraph 27. 17, 2002, paragraph 28. 17, 2002, paragraph 29. possible." Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232 (1983). "Any doubts as to whether a demurrer should be sustained should be resolved against the moving party." David v. Commonwealth, 143 Pa. Commw. 161, 169, 598 A.2d 642, 647 (1991). Thus, in ruling on a preliminary objection in the fori~ of a demurrer, the court must sustain the demurrer only if it finds that "a cause of action [has not been] properly made out in the complaint; and.., the plaintiff would be unable to state a proper claim even on a different statement of facts." Nagy v. Bell Telephone Co., 292 Pa. Super. 24, 27, 436 A.2d 701,703 (1981). Motion for a More Specific Pleading. "While it is impossible to establish precise standards as to the degree of particularity required in a given situation, two conditions must always be met": (1) the pleading must be adequately clear so that the opposing party can prepare a defense and (2) the pleading "must be sufficient to convince the court that the averments are not merely subterfuge." Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611 A.2d 1232, 1235 (1992). "[W]hen a party states a case in a manner that fully advises an opponent of the nature of the case and of the matters with which the opponent will be confronted at trial, there is no need for a motion for a more specific pleading; the opponent should seek discovery if he or she needs more information to prepare a response." 2 Goodrich-Amram 2d §1017(b):24, at 268 (1991). Implied Warranty ofF#ness for a Particular Purpose. Under Section 2- 315 of the Unifoi-iii Commercial Code, it is provided that [w]here the seller at the time of contracting has reason to know: (1)any particular purpose for which the goods are required; and (2) that the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods; there is unless excluded or modified.., an implied warranty that the goods shall be fit for such purpose. 4 Act of November 1, 1979, P.L. 255, §1, 13 Pa. C.S. §2315. Unfair Trade Practices and Consumer Protection Law. Under the Unfair Trade Practices and Consumer Protection Law, the following, inter alia, are deemed unfair methods of competition or unfair or deceptive acts or practices: (ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services; (iii) Causing likelihood of confusion or of misunderstanding as to the affiliation, connection or association with or certification by, another; [and] (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have .... Act of December 17, 1968, P.L. 1224, §2, 73 P.S. §201-2(4) (Supp. 2002). Application of Law to Facts Implied Warranty of Fitness for a Particular Purpose. In the present case, the allegations of Plaintiff's complaint with respect to his claim for breach of an implied warranty of fitness for a particular purpose do not show, with certainty, that Plaintiff can not recover on such a theory. Whether Plaintiff will be able to produce evidence that Defendant "ha[d] reason," through alleged past dealings or otherwise, to recognize the materiality of the BMW resale program to Plaintiff will depend upon development of a more complete factual record. At this stage, it would be premature to foreclose the possibility of development of such a record through dismissal of the claim.~5 Unfair Trade Practices and Consumer Protection Law. A fair reading of the allegations of the complaint does not, however, support a similar conclusion ~5 The court is also of the view that the allegations of the claim are sufficiently clear for Defendant to prepare a defense. The evidentiary specifics, or lack thereof, supporting the claim can be developed through the discovery process. with respect to Plaintiff's claim for violation of the Unfair Trade Practices and Consumer Protection Law. Not every putative breach of an implied warranty by a merchant was intended by the legislature to rise to the level of an actionable unfair or deceptive act or practice for purposes of the act. Cf Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300 (3d Cir. 1995), cited in O'Donnel ex tel. Mitro v. Allstate Insurance Co., 734 A.2d 901,910 (Pa. Super. Ct. 1999); Solarz v. DaimlerChrysler Corp., No. 2033 April Term 2001, 2002 WL 452218 (Pa. Ct. Com. Pl. Phila. March 13, 2002) (mem.) (citing cases). An attempt to construe the provisions relied upon by Plaintiff to encompass Defendant's alleged verbal omission in the present case seems to the court to be without legal merit. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 23rd day of September, 2002, upon consideration of Defendant's preliminary objections to Plaintiff's second amended complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's demurrer to Count II of Plaintiff's Second Amended Complaint is sustained, and Count II is dismissed. 2. Defendant's remaining preliminary objections are denied; and 3. Defendant is granted twenty days within which to file a responsive pleading to the second amended complaint as so affected. BY THE COURT, J. Wesley Oler, Jr., J. Harold S. Irwin, III, Esq. 35 East High Street Carlisle, PA 17013 Attorney for Plaintiff John F. Yaninek, Esq. 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorney for Defendant JUSTIN M. FRICK, Plaintiff CUMBERLAND VALLEY MOTORS, Inc. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-0929 CIVIL ACTION LAW TO: NOTICE TO PLEAD JUSTIN M. FRICK e/o Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 You are hereby notified to file a written response to Defendant's Answer With New Matter to Plaintiff's Second Amended Complaint within twenty (20) days from service hereof ur a jud~£nnent may be entered against you. METTE, EVANS & WOODSIDE DATED: October 4, 2002 By: S~. Ct. I.D. ~o. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. :306371 _I JUSTIN M. FRICK, Plaintiff v. : NO. 02-0929 _. CUMBERLAND VALLEY MOTORS, INC., : Defendant : CIVIL ACTION LAW IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DEFENDANT CUMBERLAND VAIJ.F~y MOTORS, INC.'S ANSWER WITH NEW MA'IlER TO PLAINTIFF'S SECOND AMENDED COMPLAINT AND NOW, comes Defendant Cumberland Valley Motors, Inc. by and through its attorneys, Mette, Evans & Woodside, and hereby files this Answer to Plaintiff's Second Amended Complaint, responding as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or veracity regarding the factual allegations contained within paragraph 6 of Plaintiff's Second Amended Complaint. These allegations are denied with strict proof thereof demanded at trial. 7. Admitted. 8. Admitted. 9. Admitted. 10. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to fom~ a belief as to the truth or veracity regarding the factual allegations contained within paragraph 10 of Plaintiff's Second Amended Complaint. These allegations are denied with strict proof thereof. 11. Denied in part. Admitted in part. After reasonable investigation, Defendant is without knowledge regarding Plaintiff's knowledge of the effect of the installation of the DINAN modification on eligibility of the vehicle for BMW's CPO Program and strict proof of that allegation is thereof demanded at trial. Defendant admits that Plaintiff sought to sell his ear through the Defendant's courtesy sale program which did not qualify at the time for BMW's CPO Program. Admitted. 12. 13. Denied. This paragraph states legal conclusions to which no response is required. 14. Denied. This paragraph states legal conclusions to which no response is required. 15. Denied. This paragraph states legal conclusions to which no response is required. COUNT I Breach of Implied Warranty of Fitness for Particular Purposv 16. Defendant incorporates by reference its answers to paragraphs 1-15 above as if fully set forth at length. 17. Denied. This paragraph states legal conclusions to which no response is required. 18. Denied. This paragraph states legal conclusions to which no response is required. 19. Denied. This paragraph states legal conclusions to which no response is required. 20. Denied. This paragraph states legal conclusions to which no response ~s required. 21. Denied. This paragraph states legal conclusions to which no response ~s required. 22. Denied. This paragraph states legal conclusions to which no response ~s required. 23. Denied. This paragraph states legal conclusions to which no response ~s required. 24. Denied. This paragraph states legal conclusions to which no response ~s required. 25. Denied. This paragraph states legal conclusions to which no response ~s required. WHEREFORE, Defendant, Cumberland Valley Motors, Inc., demands judgment against PlaintiffJnstin M. Frick, together with costs of suit. COUNT II Unfair or Deceptive Acts or Practices Under the Unfair Trz~-~ Practices and Consumer Protection Law (73 P.S. Section 201-1, et sea3 26-30. Paragraphs 26 through 30 of this Count II were dismissed pursuant to Order of Court dated September 23, 2002 of Judge Wesley Oler, Jr. WHEREFORE, Defendant, Cumberland Valley Motors, Inc., demands judgment against Plaintiff Justin M. Frick, together with costs of suit. NEW MATTER 31. Plaintiff's Second Amended Complaint fails to state a cause of action upon which relief can be granted. 32. Plaintiff's claims may be barred by the applicable statute of limitations. 33. estoppel. 34. 35. Plaintiff's claims may be barred by the affirmative defenses of waiver and Plaintiff's claims may be barred by the doctrine of failure of consideration. Plaintiff assumed the risk of any loss of value of his vehicle when he personally decided to install the DINAN system to his vehicle. 36. Plaintiffnever stated or communicated to Defendant that his particular purpose for purch.asing the DINAN system was enhancement of his car's resale value. WHEREFORE, Defendant, Cumberland Valley Motors, Inc., demands judgment against Plaintiff Justin M. Frick, together with costs of suit. Date: October 4, 2002 By: Respectfully submitted, METTE, EVANS & WOODSIDE Sup. Ct. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. VERIFICATION I, R. GARTH ULLOM, President of Cumberland Valley Motors, Inc., have read the foregoing Answer and verify that I have the authority to make this Verification on behalf of Cumberland Valley Motors, Inc., and that the facts set forth herein are tree and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa~ C.S.A. §4202 relating to unswom falsification to authorities. R. GARTH ULLOM, PRESIDENT CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with fa'st-class postage, prepaid, as follows: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 DATE: October 4, 2002 By: METTE, EVANS & WOODSIDE J F Y~e Su°~p. C;. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29S20 3S EAST HIGH STREET CARLISLE PA 170t 3 (7t 7) 243-6090 ATTORNEY FOR PLAINTIFF JUSTIN M. FRICK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION - LAW : CUMBERLAND VALLEY MOTORS, INC.,: NO. 02 - 0929 CIVIL TERM Defendant PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER NOW, comes the plaintiff, by his attorney, Harold S. Irwin, III, Esquire, and responds to the defendant's new matter, representing as follows: 31. Denied. This paragraph states legal conclusions to which no response is required. 32. required. Denied. This paragraph states legal conclusions to which no response is 33. required. Denied. This paragraph states legal conclusions to which no response is 34. required. Denied. This paragraph states legal conclusions to which no response is 35. Denied. This paragraph states legal conclusions to which no response is required. If a response is required, the averments of this paragraph of the defendants' new matter are specifically denied. On the contrary, defendant had specific knowledge that the installation of the DINAN system to plaintiff's vehicle would reduce it's resale value and failed to disclose such fact to the plaintiff. 36. The averments of this paragraph of the defendants' new matter are admitted in part and denied in part. It is admitted that plaintiff never stated that his purpose for purchasing the DINAN system was the enhancement of his car~s resale value. However, plaintiff certainly did not intend that the installation of this product on his car by defendant would result in an immediate reduction in his ca¢s resale value, a fact of which defendant had specific knowledge and failed to disclose to the plaintiff. WHEREFORE, plaintiff demands judgment against the defendant for plaintiff's actual damages of $4,000.00, plus interest, attorney fees and costs of this action. October 2"~,, 2002 Attorney for plaintiff 35 East High Street Carlisle, PA 17013 (717) 249-2353 Supreme Court ID NO. 29920 VERIFICATION I hereby verify that I am the plaintiff in this action and that the facts in stated in the above answer to new matter are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S. Section 4904, relating to unsworn falsification to authorities. October /~;> , 2002 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing answer to new matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: JOHN F. YANINEK ESQ PO BOX 5950 HARRISBURG PA 17110-0950 October'7/Z~, 2002 35 East High Street Carlisle, PA 17013 (717) 249-2353 Supreme Court ID NO. 29920 JUSTIN M. FRICK, Plaintiff v. : NO. 02-0929 : CUMBERLAND VALLEY MOTORS, INC., : Defendant : CIVIL ACTION LAW IN THE COURT OF COMMON PLEAS CUMBERI~AND COUNTY, PENNSYLVANIA DEFENDANT CUMBERLAND VALLEY MOTORS, INC.'S INTERROGATORIES ADDRESSED TO PLAINTIFF TO: JUSTIN M. FRICK c/o Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pennsylvania Rules of Civil Procedure, to serve upon the undersigned, within thirty (30) days after service of this Notice, your Answers in writing under oath to the following Interrogatories. By: METTE, EVANS & WOODSIDE Jo~'F. X2an~ Esquire Su~. Ct. I.D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. DATED: November 1, 2002 DEFINITIONS AND INSTRUCTIONS (A) Whenever the term "document" is used herein, it includes (whether or not specifically called for) all printed, typewritten, handwritten, graphic or recorded matter, however produced or reproduced and however formal or informal. (B) Whenever you are asked to "identify" a document, the following information should be given as to each document of which you are aware, whether or not you have possession, custody or control thereof: (1) The nature of the docment (e.g., letter, memor~adum, computer print-out, minutes, resolution, tape recording, etc.); (2) Its date (or if it bears no date, the date when it was prepared); (3) The name, address, employer and position of the signer or signers (or if there is no signer, of the person who prepared it); (4) The name, address, employer and position of the person, if any, to whom the document was sent; (5) If you have possession, custody or control of the document, the location and designation of the place or file in which it is contained, and the name, address and position of the person having custody of the document; (6) If you do not have possession, custody or control of the document, the present location thereof and the name and address of the organ lzati~>n having possession, custody or control thereof; and (7) A brief statement of the subject matter of such document. (C) Whenever you are asked to "identify" an oral communication, the following information should be given as to each oral communication of which you are aware, whether or not you or others were present or participated therein: (1) The means of communication (e.g., telephone, personal conversation, etc.); (2) Where it took place; (3) Its date; (4) The names, addresses, employers and positions (a) of all persons who participated in the communication; and (b) of all other persons who were present during or who overheard that communication; INTERROGATORIESTO PLAIN'TIFF ~e~answers to Defendant's Interrogatories, numbers one throuqh seventeen~ are attached hereto and incorporated herein by reference. 1. St~ePlainfl~spartic~purpose ~rp~c~s~gaDINANc~p~om Defendant. 2. Please set forth in detail the nature of claim that the DINAN product did not meet the particular purpose as described in Interrogatory No. 1 above. Please describe and identify all witnesses you intend to call at arbitration or trial of this 4. Please list all documents you intend to use to prove :your case at arbitration or trial. 6. State in detail and with particularity, the total amom~t of money plaintiff alleges it paid for the damage plaintiff alleges resulted from the incident. 7. Please list all writings or complaints made by Plaintiffto other entities regarding the subject matter of this suit. 8. Is Plaintiff involved in any legal action other than or in addition to the present action? If your answer is "yes," then state the name of the court in which the action was filed, the caption, court term, and docket number of any such action and whether such action has been concluded, and if so, when and under what terms the action was concluded. 9. Identify those persons who witnessed the incident, who were within sight or hearing at the time of any of the incident, or who have information or knowledge concerning the facts, events, circumstances, or conditions surrounding the happening of the incident. I0. Please state if Plaintiffintends to call any expert in lxis case against Defendant. 11. Identify each person whom you expect to call as an expert wimess at the trial of this action and, as to each person so identified, state the subject matter on which the expert is expected to testify. 12. answers: As to each expert identified above, have him or her state the following and sign his/her the substance of the facts and opinions to w]hich he/she is expected to testify; and a summary of the grounds for each opinion. 13. following: With respect to each expert identified in answer to the preceding interrogatory, state the Ao Bo a brief chronological resume of the expert's education and professional background, including associations or societies of which he/she is a member, schools attended, including years of attendance and degrees received, experience in particular fields, including names and addresses of employers with inclusive years of employment; and the title, publisher, date and form of all docmnentary material published by the expert. 14. Identify any document prepared or generated by the expert which in whole or in part contain the facts and opinions to which the expert is expected to testify, for whom prepared and when, and identify further each person to whom the document or documents were given or distributed. 15. Identify all factual information supplied to the expert which was used as the basis for his opinion including correspondence, memoranda, reports, tests, plans, specifications, drawings, and/or documents of any kind as well as objects and photographs examined.. 16. Please describe any admissions or statements of Defendant you intend to use at arbitration or trial. 17. For each person identified in response to the preceding interrogatory, which wimess is expected to testify to any admissions. DATED: November 1, 2002 By: METTE, EVANS & WOODSIDE JoSh F. Yant~k, E,;quire Sup. Ct. I.D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defen:dant, Cumberland Valley Motors, Inc. CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 DATE: November 1, 2002 By: METTE, ]EVANS & WOODSIDE Jol~ F. ydki~nek, Esquire Sup. Ct. I.D. #55741 3401 North Front Street P. O. Box :5950 Harrisburg,, PA 17110-0950 (717) 232-:5000 Attorneys tbr Defendant, Cumberland Valley Motors, Inc. :309597 _l ' ", Plaintiff's Answers to Defendant's Inl~errogatories 1. The specific purpose of purchasing a DINAN chip from CVM, rather than a "Brand-X" variety, was based upon the heavily advertised reputation and preferred relationship between DINAN and BMW. This preferred relationship between DINAN and BMW, extended to the consumer via CVM as an Authorized-Exclusive DINAN dealer and Authorized BMW dealer, is marketed to the consumer as a superior means of acquiring supplemental performance accessories. These types of accessories are available via other third-party vendors, but none enjoy the cooperation of DINAN and BMW, and none are available through your local "Authorized" BMW and DINAN dealership. Stated advantages leading to the specific purpose of purchasing DINAN products through your local DINAN+BMW dealership are: 1) endorsement by BMW of the DINAN products sold by dealership franchises. 2) convenience of having DINAN products available for purchase during regular maintenance visits. 3) advertised non-confiict with BMW warranties on nearly all DINAN products. 4) after-sale familiarity with DINAN products during futurE; routine maintenance. 5) long-term financial advantage to resale value of the vehicle by using DINAN+BMW authorized products -versus "Brand-X" non-authorized products, 2. Of the five stated advantages leading to the specific purpose of purchasing DINAN products through CVM, three matters (1, 3, 5) failed to meet the particular purpose as described in Interrogatory No. 1 above. 1) BMW NA does not endorse the sale of DINAN products by BMW franchised dealerships. It is a relationship of tolerance or acceptance, not support. 3) There is ultimately a conflict caused by DIN^N products and BMW NA warranties. Documented installation of DINAN products by your BMW dealership remain archived in the vehicles electronic service records, which makes the vehicle ineligible for the BMW Certified Pre-Owned (CPO). 5) Because of this ineligibility under the CPO program, the resale value of that vehicle is significantly reduced because it can not be covered by the 6 year / 100,000 mile extended warranty and can not be financed at the more attractive purchase or leasing rates under the CPO program. It should be noted that BMW NA has changed tlheir CPO policy regarding DiNAN modified vehicles, effective 612002. However, this change in policy does nothing to benefit Plaintiff or alleviate the Defendant in this case. # ' ' , 3. Witnesses to be called at arbitration or tdal of this case. A.) David Halford, former BMW Sales Manager and lead DINAN point of contact, CVM BMW, MechanicsbUrg, PA. B.) Garth UIIom, owner, CVM BMW, Mechanicsburg, PA. C.) John Guamera, sales associate, CVM BMW, Mechanicsburg, PA. D.) The plaintiff, Justin M. Frick. Plaintiff reserves the right to supplement this list pdor to arbitration or trial. tdal. List of all documents intended for use to prove case at arbitration or Items 1-18 as provided to defendant under request for production of documents. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. Plaintiff My original email sent to Dave Halford, Sales Manager for CVM The first reply email sent by Dave Halford. Rate table for lease payments with CPO calculated by Dave Halford. Rate table for lease payments without CPO calculated by Dave Half ord. Original Civil Complaint as registered with Distdct Court 09304. Notice to Defendant. Notice of Intent to Defend. Ruling from Distdct Justice Thomas Placey. BMW Local CPO Center Iocator tool *--) CVM listed. BMW CPO Offer for free month. DINAN Exclusive Dealers Map -) CVM listed. DINAN advertisement stating, "contact Authorized Dealer." (this is from periodical published just prior to the time of purchase) CVM advertisement stating "do not have to sacdfice with DINAN & CVM." (this is from the current CVM website, but reflective of older advertisements and a visit by Mr. Steve Dinan to CVM in early 2000.) CVM Invoice for DINAN software. DINAN warranty effective 5/1/97 and at time of purchase and time of complaint. BMW Magazine article stating final acceptance of DINAN cars into CPO program. Email sent by JMF to BMW NA customer service. Check paid to Mr. Chuck Russell to cover the cost delta of the failed CPO transaction. reserves the right to supplement this list pdor to arbitration or trial. · 5. The specific item of damage was the substantial decrease in resale value of the Plaintiff's vehicle (1999 BMW 540i). The ,,specific value of the decrease in resale value is the delta between the odginal agreed upon sale price to the new owner (Chuck Russell) under the CPO progrem, and the final actual selling pdce to the new owner not under the CPO progrem. A.) This specific damage can be itemiized into three components, which are all categorized as Financial Benefits of having the 540i BMW certified via CPO: 1. Lower rates for lease factors (value $2150) 2. First month free for new leases (value $650-$850) 3. Extended Warranty 6yr/100K (value $1750) These specific values were calculated by Mr. David Halford, and can be referenced in two spreadsheets (iterns 3, 4) and the CPO Offer for Free Month (item 10). The cost of a non-BMW-CPO extended warranty was calculated and provided verbally by Mr. Halford to Plaintiff. The actual lost resale value to Plaintiff was $3,650. This value was paid to the purchaser of the 540i in the form of a check (item 18), and was calculated based on the actual cost diffi.~rential to Mr. Russell. Components of that $3,650 are: $2,150 in reduced selling pdce, $750 loss of free month (split. range of $650-$850, dependent on cap-cost- reduction by Mr. Russell), and $750 loss of '100K mile Extended Warranty ($1,750 cost of non-BMW warranty minus the cost of CPO certification of $1,000). B.) The nature of all damages is financiel. Specifically, a loss of resale value. C.) There were no repairs provided, and no repairs were available. The DINAN installation can be physically reversed, but the documentation of the odginal installation cannot be removed. Therefore, there was not any method of repair available to make the 540i eligible for the CPO program. D.) Mr. Dave Halford was involved in review of options for potential repair, but no actual repairs took place or were possible. 6. The total amount of money the plaintiff paid in damages resulting from the incident is $3,650. That amount is specific loss of resale value, and includes no other costs. The value can be itemized as follows: A.) Lower rates for lease factors (value $2150) B.,) ' First month free for new leases (value $650-$850) C.) Extended Warranty 6yr/100K (value $1750) of the incident. Neither Mr. Guamera nor Mr. Russell had full involvement, and there was no reason for their full involvement. 10. Plaintiff does not intend to call any experts in the case against the Defendant, other than defendant's own employees listed above. Plaintiff does make reference to the expert opinion of District Justice Thomas Placey, dated 14 February 2002. 11. Plaintiff does not intend to call any expert witnesses at the trial other than defendant's employees listed previously. 12. Not applicable. 13. Not applicable. 14. Not applicable. 15. Not applicable. 16. Admissions and statements of Defendant all originate with Mr. Dave Halford. Most were made verbally, during the week of the incident. A few were written into email replies to Plaintiff. All were reviewed and answered during the District Court Hearing. At the time of the original DINAN purchase and the time of the incident, Mr. Halford was the primary point of contact in three active roles. Those roles include 1) BMW New Car Sales Manager. 2) BMW CPO used car sales manager. 3) DINAN products point of contact for sales. Clearly, this puts Mr. Halford at the intersection of three critical elements, and provides him with the knowledge to advise and support client interests on all three fronts, as well as the potential interactioh between or among elements. ·, , During the incident, Mr. Halford acknowledged 'that CVM had just experienced another DINAN equipped vehicle being rejected by the CPO program. This vehicle was one that CVM had taken on trade-in and intended to sell retail. Dudng the incident Mr. Halford acknowledged that BMW and DINAN were working on a solution to the CPO rejection problems. The solution was not anticipated in time to help Plaintiff, and was ultimately reached in 6/2002. Neither of those two acknowledgements or adrnissions help the Plaintiff in any way or fashion, but do show that Mr. Halford had specific and full understanding of the situation and problems relative to the incident. Dudng the incident Mr. Halford acknowledged that, although the rules to the CPO program have always been very stdct and specific, historically there was latitude for certification under the CPO program. However, with the popularity, volume and current financial incentives of t]he CPO program there was no flexibility in circumventing problems as experienced with the Plaintiff's 540i or the other vehicle traded by CVM. During the incident Mr. Halford acknowledged that the rules of the CPO program were not new or revised, and had been in place for several years pdor to the odginal purchase of the 540i in 1999, the purchase of the DINAN products in 2000, or the incident in 2001. Also, that the rules o1: the CPO program are not published for the public, and only a BMW CPO dealer would have access to those rules. During the District Court headng on 7 February 2002, Mr. Halford acknowledged that he provided neither warning nor any disclaimers regarding the affect of authorized DINAN products on the future vehicle eligibility for the CPO program. 17. Mr. Dave Halford is expected to testify to his admissions. Mr. Garth UIIom, or Plaintiff, can also testify that these admissions were acknowledged in the District Court hearing. VERIFICATION' The foregoing answers to interrogatories are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. Section 4904, relatiing to unswom falsification to authorities. November ~--~ , 2002 JUSTIN M. FRICK, Plaintiff v. : NO. 02-0929 : CUMBERLAND VALLEY MOTORS, INC., : Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW DEFENDANT CUMBERLAND VALLEY MOTORS, INC.'S REQUEST FOR PRODUCTION OF DOCUMENTS ADDRESSED TO PLAINTIFF TO: JUSTIN M. FRICK ¢/o Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 Pursuant to Pennsylvania Rules of Civil Procedure, the Defendant, Cumberland Valley Motors, Inc., by its attorneys, METTE, EVANS & WOODSIDE, request you to produce copies of the following documents, at their expense, within thirty (30) days of service of this Request: METTE, EVANS & WOODSIDE S~I.D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. DATED: November I, 2002 DOCUMENTS REQUESTED 1. All statements, signed statements, transcripts of recorded statements or interviews of any person or witness relating to, referring to or describing any of the events relating Plaintiff's claims in this lawsuit. See attached. 2. The entire contents of any investigation file and any documentary material in your possession which relates to Plaintiff's claim, see attached. 3. All photographs taken or diagrams prepared concerning Plaintiff's claim. None taken or relevant. 4. Copies of all documents in which you intend to use at arbitration or trial. See attached. 5. Copies of all letters, complaint forms or other writings in Plaintiff's possession relatedt0thislawsuit. See attached. Also, other letters between counsel,. and pleadings, all in possession of Defendant's Counsel and not separately reproduced here; letters from Plaintiff's Counsel to Plaintiff and from Plaintiff to Plaintiff's Counsel are not attached 5. Copyofallexpe~repo~sofany witnessco~emplatedtotesti~ at Hal. and:will not be provided. None. 6. Alllit~aturerelatedtoPlaintiff'sDINAN product. See attached. 7. Copiesofdocumentswhich are inPlaintiff'spossessionthatrelateto thislawsuit. See attached. NOTE: As referred to herein, "document" includes written, printed, typed, recorded, or graphic matter, however produced or reproduced, including correspondence, telegrams, other written communications, data processing storage units, computer disks, tapes, contracts, agreements, notes, memoranda, analyses, projections, indices, work papers, studies, reports, surveys, diaries, calendars, films, photographs, diagrams, drawings, minutes of meetings, or any other writing (including copies of any of the foregoing, regardless of whether you are now in possession, custody, or control of the original) now in your possession, custody, or control, your former or present counsel, agents, employees, officers, insurers, or any other person acting on your behalf. By: METTE, EVANS & WOODSIDE Jq~ F. Y~al~ek, Esquire Sup. Ct. I.D. No. 55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. DATED: November 1, 2002 CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Harold S. Irwin, III, Esquire 35 East High Street Carlisle, PA 17013 DATE: November 1, 2002 By: METTE, EVANS & WOODSIDE SUlE. Ct. I.D. #55741 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant, Cumberland Valley Motors, Inc. :309598 _1 Frick, Justin M, BMSLS Set, t: To: Subject: Fricl(,.Justin M, BMSLS ~onday, December 0,3, 2001 11:32 AM dhalf42055~aol.com CPO Fiasco Settlement justinfrick ~. ~. 200 [ .XLS Dave, Attached below is your odginal .xls that showed the lease rates for the 540i with the CPO package in place. (Actual Selling Pdce is $45,000, but there was $1000 included for the CPO cost.) The second tab is a copy of the lease rates you Pdce now correct at $42850.) faxed me that were set without the CPO package in place. (Actual Selling Bas. ed upon the change in lease .factors ~ 36 months (0.00145 vs 0.0027), in order to keep the month costs and residual values the same, the selling pdce had to be lowered. Hence the change from $45,000 to $42,~/~0. the That is not new information to you. Actually, you helped develop it. Thanks. .L.es,,s. ad. vantagecus lease rates. See above. 321 ,x o,,a.~y mr aoamonal :z years and 50,000 miles from end of original warranty. ~o nrst month lease payment" from BMW Financial Services. See BMW FS offer via home page or other literature. What these items cost: ~e ) Mus.t buy "used car" non-SMW warranty. Cost is approximately $1500-$2000 depending on when initiated and tm/mileage.. 2) Must lower selling pdce to keep leasepayments the same. Cost is $2150. 3) Must pay first month lease paymenL ~, par you~was slightly less due to cap-cost reduction. We discussed my position relative to CVM building the deal an3und the 540i being CPO'ed from the beginning, as well as CVM selling me both the 540i and the DINAN upgrades. Without going in to the actual details of my bdef, the current cost to me for completing the transaction for my customer was over three thousand dollars. We did discuss (Fdday 11/30) of -$2800, as the total of lease ~te cost".and "loosing the free month." At the time, you did not feel that you were inclined to cover that $2800. There may oe a numser you nave considered in the mean time, as stated you would "think about it." At this point, the new owner has the 540i and is a Satisfied customer (of mine, and now CVM as well). However, I am no where near satisfied. About $2800 away from being there. By Wednesday, 12/5, I nccd to understand - in writing - what you are going to do about this situation. By Friday, 12/7, I need a check for an agreed upon amount, or I will complete the filing of documentation for "plan B." I do want to forget about this incident and go back to my status as an "alwa. ys pleased CVM customer." I do want to remain friends and fellow enthusiasts, as we both have a greater appreciation for the cars than most ddvers. I do want to continue to brag about CVM and your sales and service, and help you build new customer relationships. But, I must. have a good feeling a~.ui this problem and its resolut on, and I am willing to push eve avenue to et th tLh°e rCaelliYs' e~tohu~hh® aSr ~tt~l~ea?od jeu~.~y ~tlth BMW on. national custom ............... . ....... ri/ g at. · ' ~,-o=, .k.= ,~v~, t.,~eany mat is a lousy route to take, but I do look fonvard to your response. Regards, Juan . Justin Frick 717-731-6692 v. 717-731-6696 f. jfrickQattcom ----Original Message---- From: DHalf42055Qaol. com [mailto:DHalf42055~aol.com] Sent: Tuesday, November 20, 2001 5:44 PM To: Frick, Justin M, BMSLS Subjeck Lease Payments '99 540is DATE-11/20/01 LEASE QUOTE FOR: Justin Frick 99 S40is 24 30 38 42 SELLING PRICE 46000 46000 .4~__.m~_ 46000 FEDERAL TAX 0 0 0 0 CAP COST REDUCTION 0 0 0 0 TOTAL SELLING PRICE 46000 46000 46000 46000 ASSIGNMENT FEE 62~ $2~ 626 825 TOTAL CAP COST 46525 46525 46525 46525 M.S.R.P. 0 0 0 0 ADDS 0 0 0 0 TOTAL M.S.R.P. 0 0 0 RESIDUAL % (15000 MILES/YEAR) 0 0 0 0 ~,-=ilDUAL VALUE 24400 22775 21150 19575 EXCESS MILEAGE CHARGE 817.S 817.5 817.5 817.5 TOTAL RESIDUAL 25217.5 23592.5 21967.5 20392.5 RATE FACTOR 0.00145 0.00145 0.00146 0.0029 MONTHLY LEASE CHARGE 104.03 101.67 99.31 194.06 MONTHLY ~F-.PRECIATION ~ 887.81 764.42 682.15 622.20 MONTHLY SALES TAX 6% 59.51 51.97 46.89 48.98 MONTHLY USE TAX 3% 29.76 25.98 23.44 24.49 TOTAL MONTHLY PAYMENT 1081.10 944.03 8~1.80 889.73 TOTAL OF PAYMENTS 25946.51 ; 28321.05 30664.76! 37368.53 INCEPTIONS: ADVANCE MONTHLY PAYMENT 1081.10 944.03 851.80 889.73 SECURITY DEPOSIT 1100 980 900 900 FIRST YEAR LICENSE/TAG FEES 133.5 · 133.5 133.5 133.5 VALUE OF TRADE 0 0 0 0 CASH 0 0 0 0 TOTAL 0 0 0 0 SALES TAX ON CASH 0 0 0 0 TOTAL OF INITIAL PAYMENTS 2314.60 2027.53 1885.30 1923~23 TRADE EQUITY 0 0 0 0 DUE AT DELIVERY 2314.60 2027.53 1885.30 t 1923.23 ..., r..- ~ )'120/01 LEASE QUOTE FOR: Justin Frick 99 540is SELLING PRICE FEDERAL TAX CAP COST REDUCTION TOTAL SELLING PRICE ASSIGNMENT FEE TOTAL CAP COST M.S.R.P. ADDS TOTAL--Ji~.S.R.p. RESIDUAL , (15000 RESIDUAL VALUE EXCE .~HARGE TOTAL RESIDUAL RATE FACTOR MONTHLY LEASE CHARGE MONTHLY DEPRECIATION MONTHLY SALES TA) MONTHLY USE TAX 3% TOTAL MONTHL'~ TOTAL OF PAYMENTS INCEPTIONS: ADVANCE MONTHLY PAYMENT SECURITY DEPOSIT FIRST YEAR LICENSFJTAG FEES VALUE OF TRADE CASH TOTAL SALES TAX ON CASH TOTAL OF INITIAL PAYMENTS TRADE EQUITY DUE AT DELIVERY 24 30 36 42 43625 43200 42860 44300 0' 0 0 0 0 0 0 0 43625 43200 42850 44300 629 526 $25 926 44150 43725 43375 44825 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 24000 22375 20750 19175 817.5 817.S 8t7.9 817.5 23192,5 19992.5 0.0027 0.0027 0.0027 0.0029 186.21 180.68 175.34 187.97 805.52 684.42 605.76 591.25 59.50 51.91 46.87 46.75 29.75 25.95 23.43 23.38 1080.99 942.95 86t.41 849.35 25943.74 942.95 851.41 849.35 1100 960 900 900 133.S 133.5 133.5 133.5 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2026.45 1882.85 0 0 0 0 2314.49 1882.85 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: .~iU]]Ja~ll]~,~ 09304 D~trlct Justice Name: ;Ho~. ' Thomas Placey · d,,...: 104 South Sporting Hill Road Mechanicsburg, PA 17050 (717)761-8230 CIVIL COMPLAINT PLAINTIFF: I. Justin M. Frick NAME md ADDRE~8 1129 Country Club Road Camp Hill, PA 17011 717-731-6692 ' VS. · I DEFENDANT: NAME ~d Am~.SS Cumberland Valley Motors BMW/DINAN Sales 6714 Carlisle Pike Mechanicsburg, PA 17050 717-697-9448 dV-&//-Ol D.F,,.(,: 1 1; /10/ AMOUNT DATE PAID FLUNG COSTS $ 93.50 / / SERVING COSTS $ 4.00 / / TOTAL $ 97.50 /~./~l/OI TO THE DEFENDANT: The above named plaint]fi(l) Illin Judgment Iglirmt you for $ 4.900 together with upon the following claim (Civil finn mu~t Include citat]on of the etatute or ordinance violated): Failure, by the BMW + DINAN dealer, to disclose negative long-term effects of installing "BMW authorized" DINAN software to a new BMW. Through the sale and installation of this performance Software, CVM allowed a 1999 540i BMW to become ineligible for BMW Pre-Owned Certification (BMW CPO). Failure to pass this BMW CPO program resulted in a loss in resale market value to the plaintiff. It is unclear whether CVM withheld this information knowingly or unknowingly. At that time, policies were in place by BMW, and ramifications should have been conveyed to potential BMW + DINAN customers. . . The DINAN accessories were marketed in a manner which implies no adverse affects on BMW Warranties, and sold through BMW Dealerships in a manner which implies BMW"authorization and acceptance." This is not true. At the point of sale, the car owner/consumer (Justin Frick) was not presented with the full facts to make a proper, responsible purchase decision on this new vehicle enhancement. coe~ I, JImfln M. Frick verify that the'fact~ eet forth In thla complaint are btm and correct to the be~t of my knowledge, information, and belief. Thee etatement la made lubJect to the penalt]ee of Sect]on 4904 of the Crimea Code (18 PA. C.S. § 4904) related to urmwom falalflcatlon to authorities. /t$;~-eiu~ bl"Pliir~;; or AUthorized Agent) Address: Plaintiff's Attorney: Telephone: ( IF YOU INiCND TO ENTER A DEPENSE TO THIS COMPLAINT, NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE 'HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAUL:I'. If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend to assert at the hearing, you must file it on a cOmplaint form at this office at least five (5) days before the date set for the hearing. If you have a claim against the plaintiff which is not within district justice jurisdiction, you may request information from this office as to the procedures you may follow. If you are disabled and require aselatance, plesee contact the Magi~teHal District office at the address above. COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMB~ Mag. DiSL NO.: 09-3-04, D~ Name: Hoar ,~e.: 104 8. ~PO~TZNG HZr.r. RD. MECHANICBBURG, PA (717) 761-8230 17050 JUBTIN M. FRICK 1129 COUIVi-aY CIaUB RD CAMP HILL, PA 17011 RECEIPT OF PAYMENT Docket No.: CV'- 0000611- 01 Date Filed: 12/21/01 RECEIPT NO: 073601 SOURCE: PAID AT W~ DATE: 12/21/01 PAGE: 1 AMOUNT RECEIVED: $ 97.50 METHOD: PUD BY CHECK#: 01197 MANUAL RECEIPT#: CITATION#: COSTS INCLUDED ON: AMOUNT APPLIED: $ COLLATERAL APPLIED: $ CHANGE: $ NEXT PAYMENT AMOUNT: . NEXT PAYMENT DATE: NEXT PMT TYPE: 97.50 .00 .00 PA~DEBCRIPTION JUDICIAL COMPUTER PROJECT POSTAGE COMMONWEALTH COST- HB627 FILING FEES 21-CTY TOTAL CURRENT BAT.~NCE DUE RECVD FROM FRICK, JUSTIN M. KP 1.50 4.00 61.33 30.67 97.50 .00 AMTAPPLIED 1.50- 4.00- 61.33- 30.67- 97.50- .00 .00 .00 .00 .00 AOPC 450-99 COMMONWEALTH OF PENNSYLVANIA · COUNTY DP: Cl3~B~ MiO. Dilt. NO.: 09-3-04 DJ Name: Non'. THOMAS A. PLACEY A,~,a.: 104 S. SPORTING HIr.r. RD. MECHANICSBURO, PA Ta~,~o~.: (717) 761-8230 17050 JUIlTIN M. FRICK 1129 COU~'z'*(~ CLUB RD CAMP HILL, PA 17011 CIVIL ACTION HEARING NOTICE PLAINTIFF: NAME and ADDRESS FFRICK, JUSTIN M. 1129 CO;T~'z'K~ CLUB RD CAMP HILL, PA 17011 · VS. DEFENDANT: NAME end ADDRESS FCUMB VALLE~ MOTORIl BMW/DINAN ilALEil'~ 6714 CARLIIlT.~ PIKE M~CHANIC~BUHG, PA 17050 Docket No.: CV-0000611-01 I ~'~ Date Filed: 12/21/01 A civil complaint has been filed against you in the above captioned case. A hearing has been set in this matter for: Date: 1/24/02 IIPlace: DISTRZCT COUBT 09'3'04104 II. IlPORTING Hill, RD. I Time: 8:45 AM M~::~iAN/~B~G, PA 17050 NOTICE TO DEFENDANT If you intend to enter a defense to this complaint, you should so notify this office Immediately at the above phone number. You must appear at the hearing and present your defense. UNLESS YOU DO, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT. · -,. ~ If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five (5) days before the date set for the · .. hearing. If you have a claim against the plaintiff which is not within district justice jurisdiction, you may request · information from this office as to the procedures you may follow. NOTICE TO PLAINTIFF If the defendant enters a Notice of Intent to Defend, you will be notified of the date and time of the scheduled hearing and must appear. If you are disabled and require aa~i~tance, please contact the Magisterial District office at the address above. DATH PP. ZN'i"BD: 12/21/01 AOPC 3088-94 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: Mag. Dial NO.: 09 - 3 - 04 DJ Name: Non.' A,~,.: 104 8. 8POIITING HZLL I~CIh~TZCSBUEG, p& JUBTINM. FRICK 1129 CODI~-r~YCLUBRD CAMP HILL, PA 17011 NOTICE OF INTENT TO DEFENI . PLAINTIFF: NAME I~ AODRE~ FFRICK, JUSTIN M. 1129 COUNTRY CLUB CAMP HILL, PA 17011 ' VS. DEFENDANT: NAME and ADDRES~ i-CUrB V'~,?.v.~,y MOTOR8 BMW/D~ BALm8-1 6714 CARLIBLE PIKE MECHANICBBUBG, PA 17050 IDocket No.: CV-0000611-01 Date Filed: 12/21/01 _J HEARING: CML ACTI(~q RI~2~TWG Date.-. 02/97/02 Tme: 1:15 I'M. Place:DIB~EZCT COUBT 09-3-04 104 8. BPORT~G HI[~ ~O. Lq~C~t3~ZCBBUBG, PA 17050 PLAINTIFF: F~.TCK, J0*ST]iN M ..... You are hereby notified that the defendant named below has given notice of his intent to present a defense at the hearing in the above case. DEFENDANT: COMB V~~OaB BMW/DZX*~d~ SALES My commission expires first Monday of January, 2004. SEAL AOPC 623-93 .IUSTIN M. FRICK, Plaintiff CUMBERLAND VALLEY MOTORS BMW/DINAN SALES, Defendant DISTRICT COURT 09-3-04 CV-0611-01 ,FACTS FROM TRIAl Plaintiff was the owner of a 1999 BMW 540i that was purchased new from Defendant. Plaintiff had previously bought and sold several vehicles from Defendant. Defendant's automotive dealership includes the sale of new BMW vehicles and DINAN products. DINAN produces a line of enhancement products for BMWs but it is not a corporate entity of BMW. Plaintiff learned of DINAN from their print ads and the Internet. DINAN literature advised that Defendant was the local area retailer. Plaintiff obtained the DINAN modifications from Defendant. The modification in generic terms was a computer chip designed by DINAN to enhance engine Performance. The modifications did not void the BMW warranty but subsequently made the vehicle ineligible for future certification under BMW's certified pre-owned sales program (CPO). CPO eligibility is determined by standards set by BMW and proscribed to Defendant for vehicles it sells. Plaintiff sought to sell this car through Defendant and its "courtesy sale" program, which would certi~ this car with the CPO designation and provide buyer and seller with additional sales options that cannot be obtained in a traditional non-dealer straight sale. Plaintiff and Defendant, unaware of the car's ineligibility, prepared estimates for the sale under the more favorable terms of a CPO sale. Upon learning the car was ineligible and could not be made eligible Plaintiff modified the terms of the sale. Plaintiff gave buyer $3650.00 to cover the difference between CPO sale and non-CPO sale still using Defendant's courtesy sale program. The diminution in value of the sale has been broken down into three (3) value items: $2150.00 in lease rate costs difference, $650.00 in first month lease rebate and $1750.00 in costs for a protection plan given with the CPO. Plaintiff paid approximately $350.00 for the DINAN modifications. Plaintiff seeks the valuation difference and cost of the modification in this suit solely against Defendant. Plaintiff avers that the failure of Defendant to advise of the consequences of the DINAN modification I~, ~v~n~ea nlm from making an informed decision on its installation that has resulted in the damages at time of resale. The narrow issue presented is whether this lone Defendant can b~ held ' liabl~ for the failure to advise Plaintiff of the detrimental consequences ' could occur to the merchantability of the car with this medi~ication ~ that Defendant is an agent for both BMW and D[NAN. This unique relationship places Defendant in the middle of two corporations that are not necessarily symbiotic but when combined in Defendant creates the impression that it acts on behalf of both. Thus, this lone Defendant is the agent of BHW and D[NAN and responsible for their action or inaction. The Uniform Commercial Code at section 2314 warrants that goods shall be merchantable. This warranty is implied in a contract for sale if the seller is a merchant with respect to goods of that kind. Further it provides that for the goods to be merchantable must at least pass without objection in the trade under the contract description. The installation of the computer chip is a good and its installation does cause objection within the automotive resale trade. The course of conduct with this specific Plaintiff imposes a dub/ on Defendant, more specifically as agent for D[NAN, to warn or advise of the potential adverse impact. Other buyers purchase this type of modification routinely via outside merchants with or without an impact disclaimer. Those merchants do not have the backing and support of this authorized agent of both BMW and D]NAN, which creates in the reasonable person the expectation that Defendant would inform Plaintiff of the irreversible consequences of this modification. ' The damage caused by this failure to inform is readily determined as the cost Plaintiff had to pay to save the sale. This is in mitigation of the damages for individual item values associated with the ineligibility for the CPO program. Judgement is in favor of the Plaintiff in the amount of $3650.00 together with the costs of this action. The parties have previously been advised of their appeal rights and the original exhibits are being returned to the presenting party. --4 Feb 02 Date Thom )lacey D z [t is recognized that there are other issues involved in this case. The informal and the strict time constraints imposed at the District Court do not permit detail pleading requirements analysis of each. These issues include but are not limited to agency law, Restatement (Second) of Torts, § 402A (1), strict product liability, the Hagnuson-Hoss Federal Trade Commission Warranty [mprovement Act, the Unfair Trade Practices, the UCC, and Consumer Protection Law. Only the basis for the ~iud~ment is included above. The district justice did obtain legal advice on the applicable agency law from disinterested legal experts, [vo Otto, Esq. and Joseph Metz, Esq., in accordance with the D.-~.R.C.P #4. If the center you are searching for is not listed, click on "Back to Center Locator." CVM Autopark 6643 Carlisle Pike Mechanicsburg, PA 17050-0000 717-697-2300 Phone 717-697-5732 Fax www.cvmbrmv.com * These centers have been ~lualifled as BMW SAV centers (pending government approval where applicable and product availability.) Please check bac~ at a later time. aa additional BM~N SAV qualil'md canters will be added on an ongoing basis. http://ntisweb2.salessupport.com/bmw_locator/center_search.asp 02/07/2002 , Connecticut , 61~ Waahlngton Ave.. North Haven, CT 0~473 203.239.7878 Contac*-: Tlno Suraee-Parta Amle Schloemann-Part~ & ~ervloa Director Competition & Sporls Cars~ Ltd. 355 West Putnam Ave. Greenwich, CT 06830 203.661.1725 Contacts: Bill Skorvanek-parts mgr Tim Granlick-Service John Burgess * Parts I Weston Pad[ Rd. Hartford, CT 06120 860.522.6134 Contacts: Darin Stdcker-parts mgr. Mauachusett~ ~MI/V Gallery 918 Providence I-key. No.rood, MA 020~2 781.762.2691 B,.M? GallaP/South 98 ,,~ccord Pa~t Drive Norell, MA 02061 781.982.4558 Contacts: Chds Kielty Parts & Service Director New Jemey ~.lotor Works West 471 W. Main St. VVyckoff, NJ 07481 201.847.1982 Contact: Dave Bngert-Owner New York 945 E Jericho Turnpike Huntington Station. NY 11746 631 271.7177; Enc Habberstadt Demitrious-motorsports Rob and Jim-Parts 4250 W. Henrietta Rd Rochester, NY 14623 716.424.4740 Contact: John Holtz Pat-Parts Mgr. DinanExclusi - '-~'"'"'~ ve Uealem .~ -" ' In-Houle Performance Repr#entat ve: (at ~nan in Cal~mia) ~b Bmn~ ~-~1; E~ ~3 Cli~ on map to go ~. Ohio' 'h~ f~': ~ore 6131 ~a~ A~. Cin~n~, OH ~227 513.271.87~ Con~: ~ S~s ~r. Ray-t~ ~?;1W C~eveland 6135 K~ Dr. Solon, OH ~139 ~0~2.~ ~P Gi~denmistar-Pa~s 4050 Morse Toad Columbus, OH 43230 614.471.2277 Contact: Kip Gildenmister-Parts Pennsylvania Cumberland Valley Motorq 6714 Carlisle Pike Mechanicsburg, PA 17055 717.697.9448 Contact: Dave Halford-Sales Mrg. 13~ St. Allentown, PA 18102 610.820.2950 Car Sales: Richard Hughes Set.ce: Web Lingle or Joseph Millington 20 W. Lancaster Ave. Devon, PA 19333 610.687.9350 Contact: Fred Ray http://www.dinanbmw.com/html/maps/ne_map.htm 02/07/2002 Certified Prc-G,,ased Offer Page 1 of 1 8MW i. nM eneu~, ~'~'?-~"~ [~:~nbM 31.t. we1 roMA y~wr Irit monedy paym4~ M~n you iou~d~.l, er leaa4 · C4dlled I~.-~ 8MW tom EIMW Ftnandd Se4~lce~ Gmat Ieee and Mamme p~ogram, i~. ake.~ 6 yl~am ca' 10O.(X]0 mime.,, Onl~ M M~ MJel~l BMW Genim. ne,l~ you. http://www.bmwusa.conffsite_layout/cpo/cpo_offer.cfm 11/20/2001 ~like One, ~til-- ovely :hack of a · Both ~e and ~tgain. ~d my ~in as I ,rk cal~ everal Dinan Performance Engine Software gives your BMW the extra power to perform. And thanks to the new Mobile Instant Power Programm.er, you can get that extra power faster than ever because it reprograms your computer right in the car. In addition to power, you get increased rev-limits, top speed governor eliminated, free software updates, a lifetime warranty and a 30 day performance satisfaction guarantee. And don't worry about your new car warranty coverage, because with Dinan yo~ :e covered year to year, mile to mile and bumper to bumper. the car programming ie currently available for: - '99 M:5 199~ - 2000 M Roadst, er and Coupe 1996 - 2000 52Bi t1990-2000 32~i 1996 - 2000 Z~ 2.t~ 1996 - 2000 540i 19~,3-2000 323i 1999 - 2000 7_,3 2.3 1990 - 2000 740i 1996 - '9l~ Z3 1.9 1996 - Dinah Performance Engine Chips are available for nearly every I~MW produced since 19~. For more information about Dinan Performance Engine Software and our extensive line of BMW Engine, Orwline and Chassis Tuning Products, contact your Dinah performance representative or the ^ut~ ~orized Dealer nearest you. DINAN I$0 SOUTHWHISI'tAN r"IOUNTAINVIEW CALIFORNIA 94.041 TEL 650.962.9401 FAX 6S0.962.0133 WEB din:mbmw, com CVM BMW -Dinan Performance Products DINAN Page 1 of I ENGINE TUNING DRIVELINE TUNING INFO: CHASSIS TUNING Performance Products COMPLETE DINAN VEHICLES CVM IS PROUD TO BE ASSOCIATED WITH DINAN PERFORMANCE PRODUCTS WHOSE COMPANY MOTI'O 'P_P_ERFORMANCE WITH OUT SACRIFICt-'. AS THE MOTTO INDICATES, WITH CVM & DINAN, YOU DO NOT HAVE TO SACRIFICE IN ORDER TO CUSTOMIZE THE PERFORMANCE OF YOUR BMW. WHETHER ITS QUICKER ACCELERATION, BETTER HANDLING OR BRAKING, OR JUST AN INDIVIDUAL S BIMMER, BMW AND DINAN WILL PROT T v,~,, ._. ET OF WHEELS FOR YOUR EC_ -,.,uR INVESTMENT WITH THE FINEST PRODUCT TECHNICIANS, AND WARRANTIES FROM BO S, THE BEST CALL US OR EMAIL US FOR DETAILS OR A CATALOG. 2002 BMW of North ^medca, Inc. The BMW name and logo are regis't enid Trademarks. http://www.cvmbmw, com/CVMBMW/dinan/dinanproducts.html 11/12/2002 12958 JUSTIN M.' FRIC~ 1129.C.~RY CLUB RD CA~P HILL, PA 17011 HOME: 717-731-6692 BUS: COLOR JYEARI MAKE/MODEL BLUE I1 99~ BMW 540I DEL DATE r PROD. DATEI WARR. EXp. I 01 JAN1999 R.O. OPENED I READY 07:19 13M_A. R00116:10 13MAR00 LINE OPCODE TECH TYPE HOURS A u~[CK SERVICE DUE 158~-63 *INVOICE* DUPLICATE 1 PAGE 1 SERVICE ADVISOR: WBADN5342XGC92671 CUMBERL I) VALLEY MOTORS 6714/26 Carlisla P,ike Mechanicsburg. PA 17055 , (717) 697-9448 / (800) 382-1436 Website: www.cvmbmw.com 370 TIMOTHY POWELL LICENSE I MILEAGE IN/OUT TAG I 12566/12568 PROMISED I PO:NO; :l RATE PAYMENT~'~TE LIST NET TOTAL CAUSE: SCHED MAINT 00002-50 OIL SERVICE 347WB94M 0.60 1 11-42-1-745-390 FILTER INSERT 9 07-51-0-002-545 5W40 HIGH PERFORMANCE SYN 2 64-11-9-070-073 MICRO FILTER 1 82-14-1-458-858 WIND WASH SINGLE BOTTLE FC: 859900915P ....... "~:':~:~' ~ PART#: CLAIM TYPE: ! (N/C) (N/C} (N/C) (N/C) PARTS: 0.00 LABOR: 0!:~'.iO:O !~[~'" 0.0:G~iJ :~OTAL LINE A: 0.00 B REPLACE MUFFLER EX02 INSTALL CUSTOMER'S.EXHAUST 347 CB10 ~.00 57.60 PARTS: 0.00 LABOR: 57::.60 OTHER: O'i.00 :TO~AL LINE B: ***********************__******************************** DINg2q' DOWNLOAD-STAGE I1-$350.00 YEEH3~I INSTALL PERFORI~NCEC~i.~:::~ 347 CB 0.50 32.00 32.00 l D900-4452 DINgN STAGE II DOgOAD 49'9.00 3~8.00 ~ 3~8.00 PARTS: 318.00 LABOR: 32.00 OTHER: 0.00 TOTAL LINE C: 350.00 D PUT WIPER INSERTS IN VEHICLE INC INCLUDED IN SERVICE OR OTHER REPAIR 347 CB10 0.00 0.00 2 61-61-8-217-71~ WIPER RUBBER 639HHI~ '1 57.60 57.50 0.00 TO OUR VALUED CUSTOMERS: STATEMENT OF DISCLAIMER DESCRIPTION TOTALS BMW MA Y CONTACT YOU TO EVALUATE THIS o~ ~ wa.an,, with re~t tO SERVICE EXPERIENCE. THE GRADING SYSTEM/S A ~,~ ho~y ox,o,~ d~*~ ~, MOD~FlED "PASS/FA/~ ~' AN EXCEllENT RA TING IS w~, ~ ,~p~m o~ GAS. OIL. A PASS, ANYTHING ~ESS/S CONS/DEEEO FAIlUrE. warra.~ O~ m~c~onto~li~ ~ SUSL~T AUOUNT /F YOU CANNOT RATE THIS SERVICE EXPERIENCE s,,,~ ~,, ~, ,o~ MISC. CHA~GES aut~rizes ony oth~ ~ ~ TOTAL CHARGES ~XCE~E~T/ ~EASE CA~ THE D~R~CTO~ OF F~ED ~sume ~ it any li~ili~ in c~n~ wi~ the ale o~ ~i8 [~SS INSURANCE OPERA TIONS NOW. WE ARE DEDICA TED TO EXCELLENt. CUSTOMER SIGNATURE PL~SE PAY THIS AMOUNT CUSTOMER COPY Dinah Warranty Page 1 of 3 Product support is another important aspect of the Dlnan philosophy since we insist on equaling the after-sale service and support that BMW owners expect. With that in mind, we offer the best warranty available anywhere. Dinan's warranty matches whatever period re'rains on the individual New Vehicle Limited Warranty for up to 4 years or 50,000 miles. Exceptions ars turbocharged, supercharged or stroker engines for which a Dinan Drivetrain Warranty is available. Our current 2 year/unlimited mileage warranty applies to products installed on those vehicles no longer covered by the manufacturer's New Vehicle Limited Warranty. ~on~othue~lmnm~c~lv/a~r~ of.D_ i?_en~roduc~ will not a .ff.ec, your.ne.w car warranty coverage. ~ -,,, w,u, uu m,:e co me,e, year to year eno Dumper to Dumper DINAN PERFORMANCE PRODUCTS WARRANTY We consider our warranty to be a very important component of each Dinah Performance Product and we want you to understand it Dinan's objective is to enhance the enthusiast's driving experience by designing and manufacturin the best rformin ' products possible. Our warranty is nten ed .... ~ ...... ,, ....... g pe .g and highest quality automot ve -.-, d to wv~ ...... ~,,,~u<,~, when they are used in the manner for which they were originally designed http://www.dinsnbmw.com/html/warranty.htm 11/29/2001 Dinah Warranty Page 2 of 3 Like any manufacturer, we cannot be responsible when our products are subjected to misuse, improper installation, misapplication, modification or neglect. For cars covered by the vehicle manufacturer's new car warranty. If your vehicle is To obtain service under this wan'anty, the vehicle must be brought upon discovery of a defect in m ' any Dinan Authorized Dealer dudng norma business hours T~,. ;~,.+.A,~...~ .4_., ......... atari.al and workmanship to the workshop of the defective Dinan and/or the ofig na vehicle manufacturer's ~.,+~,:~,,,~,,~=.~.u.~..a.~.~,._w?~nou~ charge ~r paris or labor either repair or re lace replace said parts is solely th., ,~,~,.,'~*~,-- ^, m ..... .,-- .,_?'-...~ -~.,,,~.,~=w u. =uu,unze~ remanm'actured parts cisic~n tn r~n~ir n? property of Dinah and/or the orig .al veh cie manufacturer In all ~c~gs~ v.e. I?cl_e__m_a_n~,u_fa_ct~re~r, P..a. ds for which replacements are made become the completed after the vehicle is received by the dealer. · ...... ~ ~eau~eul~ penoo OT time must be allowed for warranty repairs to be For cars not covered by the vehicle manufacturer's new car warranty. Dinan Performance Products are warranted for a 2 year, unlimited mileage pedod from the date of original purchase. Dtnan Performance Engine aw~dmT~igr~nr~ilTySiir~taCiih~Sisa,~eolgd.uaranteed for life. Dinah's warranties are transferable when ownership of the vehicle into which the Dinan products In the event of a warranty claim, Dinah will repair or replace at its sole discretion any defective Dinen com proof of the odginal purchase date. Labor chames associat~.(~ with "- ........ '" ....... ponent upon receipt of the item and Dinah Authorized Dealer's standard houflv r~t~~ ~-o,,~ .-? ~=la.,[ ur lup~,acernem OT a [31nan component will be reimbursed .... . ......... upon the ong;nel yah;cie manufacturer's and/or Dinah's schedule of flat rate laboa~ ~i~mes. The defective component must be returned to Dinen for verification of the defect before any reimbursement will be made. A reasonable period of time must be allowed for warranty replacement, shipping and/or repairs 1o be completed after the product or vehicle is received. Dinan's product warranty specifically excludes: · return shipping cha~ges, .towing charges, 'damage to a component or assembly due to the installation of re lacement ads ruth tha~t.._differ in. any matedal respect from the original vehicfe manufacturer's or Din ................ ~p~; P ' specifications a ~lnen pan or assembly 'damane resulting from th., ,,.- ~ ^,,. ...... .~.~ -- ~.,=,~a, -uamage resumng .'om the unauthorized modification f .da.mage to the c~utch du~ to p0~v.~r shiffirm%r abut.. ,_.b.~,al~,., ~ ,~,,.,,,~,uta.~ct~_r's_p_._r~l_._,u,_c_fe_ in cpnjunctio~ with, Dinah products or systa ms, o du..nng maintenance such as spark plugs I~bricants ~uid; [1~ ?u"r~u-~'~'~,~ m__a_?_~r~l~ls_,__m!.a,.nt.e..nance senacss end parts when replaced aojustments or repairs which result from 'norm=l ~,.,'-'. -..., ;-'-"~...- ~2~'_~ "T.L':" ,..~.~,~mem O~ n~m'S, coolant end refrigerant, .mechanical services at the specified intervals or in acco ~n~,~'~'~ '~'~" u...ve- .u~s, *l~get bulbs, 'dame · due to ~ failure to perform maintenen -- __rd ........ he ~nstruct~ons m the owner's manual ~ the onginal vehicfe manufacturer or ~iC~nan's product instructions, ,damage attributable to negligence, improper installation impro r treatment or o~.v. ner's manual from the original vehicle menu[ ,~. ~. r~ ............... , .. be treatment contrary to the instructions in e · oe · . actu,..v.~,,a.=p~.~uu~;[ nsimcaona 'e iueda · th .~._m~._g_e ._m.s_u~pg from the use. of ,mproper or contam neted fuel, 'damm~ occorfi,~ ~.e....ng_l~. ~.,~ne_..m~=__ _ms.u~[ng .from alta .r~d b~at pressure, ---,_,.,,=t~ .~u ~. uman component as a result of a co sion or imnrm-mr ~.~'on ,~-~'~-""~--'~- '--' -~"~--~-*~* -~ ?sumng ~om weal< or improper coo ant, · cu.s.[om-~es~gned competition parts, · ncidental end/.,. ,.~,~.~:,~:~'-, .,----": "-'..'__"Tf%'.-P?~-,, -any ven)cJe operated in any comnetitive event, vemcle, 'damage resulting from envi nmenta influ~.~'~'~'~-?.,u-a-~a..g-e's.,' Inc~uoing lOss.of U..me, inconvenience or loss of {he use of the _ ro ._1 .......... ,,w.~, .~.~u~.r, m= uamege, or roa~ sal~ corrosion. .?_'ne"2."o..,.-- .,.,,me .., ... fefe .............. comBanenm -~+..-~.-., o..,~_rr~._m~, .,_m~/. ~ot. apl~Jy to modifications oftbe vehlcfe or Inetallation of.,-- ~"4'-~n~/---ca-r-~--rmnly: The vemcm .~.;;:-~:2 ._ .~'_ --'L""" ~' u,. v~mCm wn~n aul~ltontlallv liter ,~H.,i,,.~ ...:.~. ....... ,?. ~,-,,v,,,,an~u accseaorrea or ..,.,,,m_.~ ru u~. o_~r original ¢omporlent~. 1= ~'~,lll~ll O~'l~llllt~e,~o;',,~'~,.',~'u ....... U..~n,~r o__P??.~n~l Ipeclficationa or which result in VemCm mlnurecturer'l new car wlrrentv , ~-,~,;~*~k;--.. c,:--~--.--'"'----.,'='._'_~''"--''~ wmOn WOUm likely void Iome II ___. are 8.~,....,_,¥,.. ,a},~m~m .flu oO'oKar Eltgilrel. patti of the This warranty shall be null and void if the vehicle identification number has been altered or cannot be read, if the odometer has been replaced or altered and the true mileage cannot be determined, if the vehicle has been declared a total loss or sold for selvage purposes, or if the vehicle has been used in any competitive event. General These warranties give you specific legal dghts, and you may also have other dghts which vary from state to state. The duration of any imp ed warranties, including the implied warranty of merchantabilit . is limited to the duration of the express warranties herein. Dinen hereby excludes incidental and consequential damanes including loss o~t me. inconvenience, or loss of the use of the vehicle, for any breach of any express or implied warranty, including the impli~ ~arranty of merchantability, applicable to the product. htt'p://www.dinanbmw.com/html/warranty.htm 11/29/2001 Page 3 of 3 Sorr~ stands db not allow limitations, on how long an implied warranty asts, or the excJusion or limitation of incidental or consequential daroages, so ~he above ~imitafions and exclusions may not apply to you. SUPPLEMENTAL POWERTRAIN WARRANTY ~nv~rna~.~.n~a~rgoeff~2 andn oS~okne.rlEs~u ir~ow~ert~innSV~/fathe ~Ori~l Vehic~ Manufa .c.~u.rer's Warranty. In on:ler to provide full warranty installation1 of the Sueerche~er or S;~-~r ~:m~in~ .~,.~u.a_~_vv~.a._r~_,n_ry~_l_n.?, ~warra~nty,m~..~ only ~ purchased at the time of purchase and et~ible failed com-o~lent i-~ :_::.;zz% ~?_'L~.;_ _' '=~P";'. ?~F~.~'?n~a: ~-owenraln warranty covem the cost of replacement or repair of an ~,~ ~. . uR i~uam w~/1 in~ Ullgmal venlc~e MenUmCturer's Wan'anty has been affecte~l by the insfallatinn of ~ nin=n ?.upercharger or Stroker Engine. The term of the Dinen Supplemental Powertrain Warranty matches the rem=inine '~m n; ~,* ~,~'-~-~'.';,~;;'- Manufacturer's Warranty, up to 4 years or 50,000 miles. -- - "= ............. '~ ....... ;"'~ For the purposes of the Dtnan Supplemental Powortrain Warranty, the powertrain is defined as; the engine (including all internal parts, seals and gaskets), engine mounts, clutch (when the failure is not due to normal wear am:l tear), transmission (including all internal parts, seals and gaskets), transmission mounts, ddveahaff, flex disc, center bearing, U-joint, dif~rontial (including all internal parts, seals end gaskets), differential mounts, half shafts and constant velocity joints. Any additional labor charges incurr~:l as s result of the installation of a Dinan component or modification, and not covered by the O~ginal Vehicle Manufacturer's Warranty, sro also covered by the Dinah Supplemental Warranty. The specific terms, crmdltions and exclusions of Dinan's Producl Warranty apply to the Dinan Supplemental Warrantl~ as well. Please r~mr to the Original Vehicle Manufacturer's warranty statement for the terms, conditions and exclusions to that warranty. i'h.e Dinen Supplemental Powertrain Warranty is available only at the time of purchase and installation of a Oinen Supercharger Stroker E ina. it i~n~nP°srtuapn~thr~n~alChpo~S~iinr~/aOrra~nr~ Fttoh~S~sp.Ple~.n~.~_n~[_w~rra~n~_w_h?n.~a Di.'na?_Su .perc. h. arg.er S?o~er Engine is purchased. To t.h~. e~, the in writing and provide the necessary ,n~;~'n~ation ;o~'r~at~;;h~u~;~/~°wn~ise~ ,oUepau~er~on~urp~len~enn~:~wr~ tn~° na~apt or decl,ne the offer i 490 http://www, dinanbmw.com/html/warranty.htm 11/29/2001 Die, Yuppie scum BMW's Financial Services ann has pushed the boundaries in a recent direct- mail solicitation for Platinum Visa cards to BMW owners. A leader in applying "brand ful management of its tradem.,uJc roundel and "M" brand throughout the world-- BMW now off'em to lend you the full cachet of the world's finest automotive marque-- so you can impress the parking attendant and the waiter a[ your favorite bism~. Appar- ently the Ford guys finally saturated the decision-making ranks at BMW NA. or BMW has begun to take their marketing ideas flora Harley-David.so,: can we expect BMW cigarettes next? BMW has tried snob appeal over driving appeal betbre, t~..aturing the then- new E32 7 Series in a snooty "Heritage" advertising campaign in 1987: that effort. featuring the car in and around the finest horse parks of the South. implied a smug thoroughbred pedigree--and came just before the company had to launch a driveability campaign to fix what was wrong with the cars built during the first year of production. Maybe the sell-some-status-to-the- nouveau-fiche marketers are onto some- thing, howevex. Worldwide. BMW F'man- cial Services reported profits excel:ling $400.000.000 in 2001. If you build it, Brits will ceme maybe A rumor f~m certain British sources had BMW GB requesting 500 of the new M3 CSLs fi~ seen at the Frank~ show last Sep. tembea'. Tbe Brits, yon may recall, bought 500 of are original 3.0CSLs, so perhaps they felt tbey had first dibs on the newcomer--which, while presented as a design study, needs veq, few non-preduction bits to make it a reality. But BMWAG was quick to squelch the fan- tasy: "Somebody at BMWGB is talking non- sense," said an M spokesman, who pointed out that the BMW board had not yet made Nonsense or not, apparently some GB d_e~ers have already taken deposits on the CSL, which would cost in the range of half again as much as a standard M3. "IF we make tbe CSL--and we all hope this will be so--it will be a more exclusive car than many people thought; there will be a pro- duction limit between 1000 and 2000 cars," said our source. "So it is nonsense to say the UK will get 500." By the time you read this, the deci- sion will have been made; the Roundel guess is that the CSL is a done deal, since M-selling coUntries were asked if they thought they could sell them and we can't imagine any hesitation for such an exclusive car. How- ever, the real road-going versions will prob- ably be heavier than the show car, which boasted a 450-poond reduction offthe weight of the E.46 M3, redistributing the mass with lightweight roof and hood panels to lower the roll center and center of gravity. You will get air conditioning whether you want it or not--though perhaps as a delete option-- along with the SMG[I geafl~x. The rear seats will probably be eliminated as well. According to BMW AG, the car's mod- ified 3.2-1iter in-line six produces over 350 horsepower, delivered to tat gumballs on nineteen-inch wheels--which cover eigh- teen-inch brakes. Claimed performance is 0-60 mph in about 4.6 seconds, 0-100 in less than eleven--and that's just straight- line acceleration. With its redistributed mass, the CSL should make your E46 M3 feel like a Buick in the twisties. aOUNDEL · JUNE 2002 9id'Ferd boot Reitzle, or did he jump? There are at least two versions to the why-Wolfgang-Reitzle-left-Ford story. Until 1999, Reitzle, you recall, was BMW's wunderkind bead of sales, marketing, design, and develop- ment--not to mention heir-apparent to B MW's chairmanship--when he and chairman Bemd Pischetsrieder were ousted in the somebody's-got-to-be-blamed- for-buying-Rover boardroom coup. Reit:fie went to Ford. where he became vice-president of the newly-created Premier Auto- motive Group. operating out of a stylish London townhouse and overseeing what eventually included the Jaguar, Volvo, Aston Martin, Land Rover, and Lincoln brands. He resigned in April to return to Germany and run his own show, as CEO of Linde AG, maker of industrial gases. The alternative vexsiou is t/mt Reitzle go~ tired of the penny-pinching and cost.cutting at Ford. He felt PAG needed $2,000,000,000 in R&D to transform Lincoln into a world-class car; Ford believed $750,000,000 would do the n'ick---at which point Rcitzle told Ford that Lincoln wouldn't cut it as a world car and should be handed back to North American operations (thc Taurus/FI S0 part of Ford). Shortly thereafter he left. As it stands now, much of what was built up by ousted Ford CEO Jacques Nas~r has been undone; Lincoln has been moved out of PAG-- ReilzJe's depatfng wis was granmd--- and has effectively given up trying to compete with luxury imports; and it's open to speculation how long Linde holds Reitzle's attention. (Automobile Woche. Dow Jones) 50k miles in a Seven--witheut emissiens Navigate the equivalent of twice around the world and you're bound to leave a lot of poilu: tams in the air. The shining exception is Bh,D/q test driver Karl Kara, who has now racked up 50,000 miles without a single carbon dioxide emission. His cars are the experimental 750hL sedans that run on liquid hydrogen and emit only water vapor from the tailpipe, fln a pinch, the cars could also run on gasoline: they essentially have two fuel systems connected to the VI2 engine.) The 37-gallon supercouled-hydrogen tank gives the car a range of 219 miles. BMW Group has announced it will build production ca~ "within the lifecycle of the [E65] 7 Series," mean- ing before 2009 or 2010 given the 7 Series' typical seven-to-eight-year life cycle. 4, Yuppie la _rge~___? I ,~ in Ohio gives ( esoh ~a~ to palticipate assnciat~ took part in t ~ril program to lay a ~ helps her s~ Ot~r BMW FS-sponsored coOwlunity projects inclu~ Big Brothers and Big Sis- , lets, Metro Parl~. and Children's Ho~ital. ,Q, Tim goat that ~ouldfl't die: In 2003, GM will resurtectthe Pontiac GTO--- well, the name, at least--by rebaflging Australia's Holden Monaro, a 300-tip car that stlares con~oonantt with the poorly- rego~Oed Holdefl Comrno~ote. ff it flops, GM had lair warning about rebadged semi-.pedormance cars; previous flops include the 1987-90 Merkur Scorpio (t'~e Ford Scorpio of Gem'S), the 1990-95 Mercury Capri (Ford Capri of Auslratla), and the 1997-2001 Cadillac Catera (Opel Omega of Germany). (Forbes) · . Ouafldl~ got oelt: Johanna Ouandt and her lamily rank No. 2 in Europe and No. 12 overall on Fo(oes'lisl of the wodd's billionaires, with a fortune esti- mated at $18,400,0(X],000 and rising. They control just under half of all BMW stock. Much-beloved Formula 1 honcho Bernie EcciEStOne is No. 127 overall with a paltry three billion. Fiat's Giovanni Agoefli and farmly rank No. 180 ($2,300.000.000), while Bill Gates at No. 1 is clown to his last $52,800,000,000. caught up in the horse~:~,,m' race agath. Jaguar claims 400 hp for its coming-lo- America S Tyl)e R. which would put it atmad of BMWs M5 with its lowly 394. That claim eamsd Jag a co~f shot at Car and Dti~ but inside the magazine Que~ianed why it wasn't Quic~ tor a $65,000 cat. The answer: Jaguar QUOtes power in DIN ho~e- power, while 8MW in the U.S. uses U.S. horsedewer, which is 1%-2% less opti- mistic Comened to U.S. hor~, the Jag will c~me in around 390 hHnd nonvatly.-aspirated VS. 4, Look for Chine~., Yuppies: BMW hopes to build cars in China by yea(s end in con junioR with minibus maker Bril- liance China Automotive Holdings Despite 100% tariffs on impofled cars, 8MW sold 5,7'42 cars ~ in 2001,14% of the 42,200 cars that China aJlowefl to he imported. With its expanding economy and a papolation of 1.3 billion--nearly five times that of the U.S.--China hos the polmltial to he a msior market for BMW over the next decade. In ksia, it's second only to JapaA (36,266} in BMW sales. BMW says it dnesn't ~ve future sales pro- jections for China: analysts say BMW hopes for 30,000 sales by 2005, meaning 5e% growth each year, wh!ch it reac~ going Irom 3,~7 sales in 2000. ROUNDEL · JUNE 2002 25 FHck, Jus~n M, RTLSL From: Sent: To: Subject: Cus.tomerRelaflons~bmwusa.com Monday, August 12, 2002 8:24 AM Frick, Justin M, RTLSL RE:Products and Services [#220757] I'm with BMW of North America, LLC. I read your message regarding CVM Autopark and forwarded your comments to the attention of the Legal Dept. Thank you for contacting BMW. --Original Message-- 0S-Aug-02 06:52 AM Name: Justin Frick Address: 1129 Country Club Road City: Camp Hill State: PA Zip: 17011 E-mail: jfrick@att.com Day Phone: Second Phone: Fax: Model: M3 Year: 2002 VIN: 7177316692 From 9 A.M. Eastern Time to 6 P.M. From 9 A.M. Eastern Time to 9 A.M. Eastern Time 7177316696 Date Purchased: 11/23/01 Purchased From: CVM BMW State: PA Servicing Dealer: CVM BMW City: Mechanicsburg State: PA Question: The car is fantastic. It is my 3rd new BMW since 1995, and I look forward to a new 6- series in two years. That said, the dealer behavior is not in line with BMW standards. In fact, it is the owner of the dealership that shows no regard for customer satisfaction. I have already won a judement for $3,750 (at the PA district justice leve) against CVM. However, they have refused to pay this judgement, and continue to drag out the higher- level legal process through baseless objections. They are not treating me with the courtesy or respect that I would expect from a BMW dealer, nor do they represent BMW NA in a positive manner. I understand this problem is not rooted with BMW NA. But, I do look to BMW NA to support me (as your ultimate customer) and apply appropriate pressure on a dealer that exhibits poor behavior. CVM needs to allow this issue to enter the higher county court, be resolved by the court, ! and pay any .judgments rendered by that court. I would like BMW NA Executive assistance on this matter. Who from BMW,NA will work with me on this topic? Thanks for your support. I can be called at any time. 717-731-6692 HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA t 70t 3 (7t7) 243-6090 ATTORNEY FOR PLAINTIFF JUSTIN M. FRICK, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION - LAW : CUMBERLAND VALLEY MOTORS, INC.: NO. 02 - 0929 CIVIL TERM Defendant : PRAECIPE TO SETTLE AND DISCONTINUE To the Prothonotary: Please settle and discontinue the May 2, 2003 above matter with prejudice. H~Attorney for Plaintiff 35 East High Street, Suite 202 Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920