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HomeMy WebLinkAbout01-5005KELLY R. CULVER and LUKE J. CULVER, Plaintiffs CARS BY GETTEL INC. and JOHN KAZOR, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW JURY TRIAL DEMANDED N.__OTIC_~E 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 (2.0) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim of relief requested by the Plaintiff, You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYERS 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 717-249.3166 800-990-9108 KELLY R. CULVER and LUKE J. CULVER, Plaintiffs CARS BY GETTEL INC. and JOHN KAZOR, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION _ LAW JURY TRIAL DEMANDED C_._OMPLAINT AND NOW COME Plaintiffs, Kelly R. Culver and Luke J. Culver, by and through their attorney, Joseph K. Goldberg, Esquire, who file this Complaint against Defendants, and in support thereof aver as follows: 1. Plaintiffs are Kelly R. Culver and Luke J. Culver, adult individuals who are husband and wife, who reside at 357 College Avenue, Lancaster, Pennsylvania 17603. 2. Defendant Cars By Gettel Inc. (hereinafter referred to as "Gettel"), is a Pennsylvania corporation, with its principal place of business located at 1143 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendant John Kazor, Jr. (hereinafter referred to as "Kazor") is an adult individual who is Vice President of Defendant Gettel, and, upon information and belief, is employed by Defendant Gettel as a salesperson at it place of business at 1143 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. 4. Defendant Gettel sells used motor vehicles from its business location listed above. 5. At all times relevant hereto, Defendant Kazor acted as the agent for, and on behalf of, Defendant Gettel. 6. The acts complained of herein all occurred in Cumberland County, Pennsylvania. 7. In mid-July, 2001, Plaintiffs were seeking to purchase a truck for personal, family or household purposes. Upon seeing an ad for a 1998 Ford Ranger XLT placed by Defendant Gettel in a local advertising publication, Plaintiffs contacted Defendant Gettel by telephone to inquire about the Ranger. 8. On July 18, 2001, Plaintiffs went to Defendant Gettel's lot at 1143 Harrisburg Pike to look at the Ranger. 9. While at the lot, Plaintiffs dealt exclusively with Defendant Kazor. 10. In the course of discussing the Ranger, Defendant Kazor revealed to Plaintiffs that the Ranger's title had an "R" brand. Plaintiffs were unaware of the meaning of an "R" brand on a Pennsylvania title. 11. Defendant Kazor explained that an "R" brand means only that an insurance company has declared a motor vehicle to be "totaled," even if the real damage to a motor vehicle is minor. 12. In truth and in fact, and known to Defendants, an "R" title is placed on a title when a motor vehicle has been reconstructed as a result of serious damage to the vehicle. 13. Defendant Kazor told the Plaintiffs that the vehicle had not suffered serious damage, and that the damages was limited to the front bumper, fenders and a 2 CAR RETAIL BUYERS oRDER Cars by Gettel, Inc. CarJJsJe. PA 17013 ~H~;~· SERIAL NO STOCK NO ~NCUMBRANCE TO: Trade-in Year ~ Make Tag No. Model Serial No. Exp. Dale Co,or Tilfe No. Equipment J BALANCE OWING TO: LICENSE OR TRANSFER $ CAT FEE TITLE $ INSURANCE CO. ENCUMBRANCE FEE DEPOSIT POLICY NO. Finance charges to accrue on The Total ol Payments shall be repaid to equal monthly installments of $ __ each on the ~ ccr)secutlve ~, Whichever ts less ~% of the Sell Shall have a security inleresl in Ihe properly until the TOtal of payments is paid in full ~tedit compuled in accordance with the rule o178's will ge made ~o Buyer If this conlracl is preDald, a refund In the amounl of ~ Will be made. In computing SUCh refund Credit, ar) acquisillon charge % Federal regulations require you to state the odometer mileage upon Federal regulations require you to the transfer of ownership. An inaccurate statement may make you liable for state Odometer upon damages to your transferee, pursuant to section 409(a) of the Motor Vehicle mileage Infon'nat/on and Cost Savings Act of 1972, Public Law 92-513. transfer of ownership. An inaccurate statement may make you liable for I damages to your transferee, pursuant to section 409(a) of the Motor Vehicle hereby state that Odometer mileage indicated on the vehicle described Information and Cost Savings Act of 1972, Public Law 92-5 t 3. above at the time of transfe~ I 1 Mi~es a~ereby slat~ that odometer m/Tea e indi . i. TolaICumul ~veMilesKnoW~ToBeOver 1 °ve at the time of transfe~ g the vehicle described IUYER CERTfFI~ ~'~;'li~ga'rs -f Py of thru order c~ ~a$~a ~ ~r~'~,.,e. CARS BY GETTEL, [NC. ~ VERIFICATION We, Luke J. Culver and Kelly R. Culver, hereby state that we have reviewed the foregoing Complaint, and verify that the facts set forth in the document are true and correct to the best of our knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Dated: Dated: SHERIFF'S RETURN - REGULAR CASE NO: 2001-05005 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CULBER KELLY R ET AL VS CARS BY GETTEL INC ET AL JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KAZOR JOHN JR the DEFENDANT , at 0905:00 HOURS, at 1143 HARRISBURG PIKE CARLISLE, PA 17013 AMANDA SEIBERT on the 28th day of August , 2001 by handing to OFFICE MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /~5 ~-- day of ~,_~.~ ~ / A.D. P~c~chon~t ary So Answers: R. Thomas Kline 08/29/2001 JOSEPH GOLDBERG 7Dep~ty Sheriff SHERIFF'S RETURN CASE NO: 2001-05005 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND CULBER KELLY R ET AL VS CARS BY GETTEL INC ET AL - REGULAR JASON VIOP~AL , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CARS BY GETTEL INC the DEFENDANT , at 0905:00 HOURS, at 1143 HARRISBURG PIKE CARLISLE, PA 17013 AMANDA SEIBERT on the 28th day of August , 2001 by handing to OFFICE MJ~NAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.25 Affidavit .00 Surcharge 10.00 .00 31.25 Sworn and Subscribed to before me this )3~ day of 3~, ~ I A.D. Pfc~thonot a~- So Answers: Thomas Kline o8/29/2ooz JOSEPH GOLDBERG By: ut~ Sh~rif f'~ \05-AkLIAB~(BM\CORR\79900~JMF~ 15666\00287 KELLY R. CULVER and LUKE $. CULVER, Plaintiffs CARS BY GETTEL, INC. and JOHN KAZOR, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5005 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: PLAINTIFFS You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be filed against you. DATE: BY: MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN ~E. MAL~O, ESQUIRE I.D. NO. 68818 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorneys for Defendants, Cars by Gettel, Inc. and John Kazor, Jr. \05-A\LIAB ~BM~LLPG\79897XJMFx 15666~00287 KELLY R. CULVER and LUKE $. CULVER, Plaintiffs CARS BY GETTEL,/NC. and JOHN KAZOR, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5005 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS, ANSWER WITH NEW MATTEl[ TO PLAINTIFFS, COMPLAINT The Defendants, Cars by Gettel, Inc. and John Kazor, Jr., by and through their counsel, Marshall, Dennehey, Warner, Coleman and Goggin, hereby makes answer to Plaintiffs' Complaint, and in support thereof states the following: 1. Admitted in part; denied in part. It is admitted that Plaintiffs are who they say they are. The remaining averments are denied as Defendants are wtthout sufficient information to form a belief as to the truth of the averments, and accordingly, the same are denied and proof thereof is demanded at trial, if relevant. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied in accordance with Pa.R.C.P. 1029(e). 7. Denied. After a reasonable investigation and inquiry, Defendants are without sufficient information to form a belief as to the truth of the allegations set forth in this Paragraph, and accordingly, the same are denied and proof thereof is demanded at trial. 8. Denied in accordance with Pa.R.C.P. 1029(e). 9. Denied in accordance with Pa.R.C.P. 1029(e). 10. Denied in accordance with Pa.R.C.P. 1029(e). 11. Denied in accordance with Pa.R.C.P. 1029(e). 12. Denied. The averments contained in this Paragraph constitute conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, this Paragraph is denied in accordance with Pa.R.C.P. 1029(e). 13. Denied in accordance with Pa.R.C.P. 1029(e). 14. Denied in accordance with Pa.R.C.P. 1029(e). 15. Denied in accordance with Pa.R.C.P. 1029(e). 16. Denied in accordance with Pa.R.C.P. 1029(e). 17. Denied in accordance with Pa.R.C.P. 1029(e). 18. Admitted in part; denied in part. It is admitted only that the Plaintiffs signed an Agreement to Purchase the vehicle on July 18, 2001 and that Exhibit A to Plaintiffs' Complaint appears to be a copy of the Agreement. The remaining allegations contained in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). 19. Denied in accordance with Pa.R.C.P. 1029(e). 20. Denied. After a reasonable investigation and inquiry, Defendants are without sufficient information to form a belief as to the truth of the allegations set forth in this Paragraph, and accordingly, the same are denied and proof thereof is demanded at trial. 21. Denied. After a reasonable investigation and inquiry, Defendants are without sufficient information to form a belief as to the truth of the allegations set forth in this Paragraph, and accordingly, the same are denied and proof thereof is demanded at trial. 22. Admitted. 23. Denied in accordance with Pa.R.C.P. 1029(e). 24. Denied in accordance with Pa.R.C.P. 1029(e). 25. Denied. The allegations contained in this Paragraph constitute conclusions of law to which no further responsive pleading is required. COUNT I RESCISSION 26. Defendants incorporate by reference its responses to Paragraphs 1 through 25 above as though set forth at length herein. 27. Denied. The allegations contained in this Paragraph constitute conclusions of law to which no further responsive pleading is required. To the extent further responsive pleadings are deemed required, this Paragraph is den/ed in accordance with Pa.R.C.P. 1029(e). 28. Den/ed. After a reasonable investigation and inquiry, Defendants are without sufficient information to form a belief as to the truth of the allegations set forth in this Paragraph, and accordingly, the same are den/ed and proof thereof is demanded at trial. 29. Denied in accordance with Pa.R.C.P. 1029(e). WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. COUNT II 30. UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW Defendants incorporate by reference their responses to Paragraphs 1 through 29 as though set forth at length herein. 31. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. 32. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, Defendants specifically deny making any false and/or misleading statements as alleged~ 33. Denied. This Paragraph is denied as it constitutes conchisions of law to which no further responsive pleading is required. 34. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, Defendants specifically deny that they violated the Consumer Protection Law as alleged. 35. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. COUNT III AUTOMOTIVE INDUSTRY~RACTiCES REGULATIONS 36. Defendants incorporate by reference their responses to Paragraphs 1 through 37 as though set forth at length herein. 37. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. 38. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, the allegations contained in this Paragraph are denied in accordance with Pa.R.C.P. 1029(e). 39. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. 40. Denied in accordance with Pa.R.C.P. 1029(e). By way of further Answer, Defendants specifically deny violating the Automotive Industry Trade Practices Regulations and/or the Consumer Protection Law. WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. COUNTIV FRAUD 4 I. Defendants incorporate by reference their responses to Paragraphs 1 through 40 as though set forth at length herein. 42. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, Defendants specifically deny making false statements to Plaintiffs as alleged. 43. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, Defendants specifically deny making false statements to Plaintiffs as alleged. 44. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, this Paragraph is denied as, Defendant is without sufficient information to form a belief as to the troth of the allegations, and accordingly proof thereof is demanded at trial. 45. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, this Paragraph is denied as, Defendant is without sufficient information to form a belief as to the truth of the allegations, and accordingly proof thereof is demanded at thai. 46. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, this Paragraph is denied as, Defendant is without sufficient information to form a belief as to the truth of the allegations, and accordingly proof thereof is demanded at trial. WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. .COUNT VI .REVOCATION OF ACCEPTANCE 47. Defendants incorporate by reference their responses to Paragraphs 1 through 46 above as though set forth at length herein. 48. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, this Paragraph is denied in accordance with Pa.R.C.P. 1029(e). By way of further Answer, Defendants specifically deny misleading the Plaintiffs as alleged. 49. Denied in accordance with Pa.R.C.P. 1029(e). 50. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. 51. Denied. This Paragraph is denied as it constitutes conclusions of law to which no further responsive pleading is required. To the extent a responsive pleading is deemed required, and by way of further Answer, Defendants specifically deny violating 13 Pa.C.S. § 2608. WHEREFORE, Defendants, Cars by Gettel, Inc. and John Kazor, Jr., demand judgment in their favor and against Plaintiffs, together with such other relief as this Honorable Court shall deem appropriate. 52. Defendants. .NEW MATTER DIRECTED TO PLAINTIFFS Plaintiffs' Complaint fails to state a claim for which relief may be granted against 53. Plaintiffs' claims are barred and/or limited by the applicable Disclaimers of Warranty and Limitations of Damages Provisions. 54. Plaintiffs' claims are barred and/or limited by their neglect, misuse, abuse, modification, and/or alteration of the subject vehicle. 55. Plaintiffs' claims are barred and/or limited by their failure to mitigate damages. 56. If the Plaintiffs sustained any alleged damages or losses, those damages or losses being expressly denied, then those damages or losses were caused by persons and/or entities over whom Defendants had no control, nor right of control. 57. Plaintiffs alleged claims of non-conformity do not substantially impair the use, value, or safety of the vehicle. 58. Plaintiffs' claims are or may be barred by the applicable doctrine of laches, estoppel, or waiver. 59. Plaintiffs are not entitled to recover treble damages. 60. Plaintiffs' claims may be barred and/or limited by the Unfair Trade Practices and Consumer Protection Law, and the Uniform Commercial Code. WHEREFORE, Answering Defendant hereby demands judgment in its favor and against Plaintiffs, Kelly R. Culver and Luke J. Culver, together with such other relief as this honorable Court shall deem appropriate. DATE: Respectfully submitted, MARSHALL, DENNEHEY, WARNER~ COLEMAN & GOGGIN, BY: Ke~E~. ~re I.D. # 68818 ~ 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Phone: (717) 651-3504 Attorneys for Defendants, Cars by Gettel, Inc. and John Kazor, Jr. VERIFICATION The undersigned hereby verifies that the statements in the foregoing Answer with New Matter are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of the Answer with New Matter is that of counsel and not my own. I have read the Answer with New Matter, and to the extent that it is based upon information which I have given to counsel, it is tree and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer with New Matter are that of counsel, I have relied upon my counsel in making this verification. The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. DATE: ~Kazor, Jr. r VERIFICATION The undersigned hereby verifies that the statements in the foregoing Answer with New Matter are based upon information which has been furnished to counsel by me and information which has been gathered by counsel in the preparation of the defense of this lawsuit. The language of the Answer with New Matter is that of counsel and not my own. I have read the Answer with New Matter, and to the extent that it is based upon information which I have given to counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Answer with New Matter are that of counsel, I have relied upon my counsel in making this verification. The undersigned also understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. DATE: ~'Cars by Gettel, Inc. KELLY R. CULVER and LUKE J. CULVER, Plaintiffs CARS BY GETTEL, INC. and JOHN KAZOR, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5005 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Joanne M. Farrell, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this ~,B~ day ofl~~, 2001, served a copy of the foregoing document via First Class United States mail, postage prepaid as follows: Joseph K. Goldberg, Esquire The Law Office of Joseph K. Goldberg 2080 Linglestown Road Suite 106 Harrisburg, PA 17110 JOSEPH K. GOLDBERG,, ESQUIRE 2080 Le,C~ESTOW~ ROAD, S~'E 1 Ok ' I"IARRISBUI~C;, PA 17110 717-703-3600 ' 717-540-5481 (fax) jgoldberg@ssbc-law, com ID #46782 KELLY R. CULVER and LUKE J. CULVER, Plaintiffs CARS BY GE'ri'EL INC. and JOHN KAZOR, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5005 : CIVIL ACTION - LAW JURY TRIAL DEMANDED REPLY TO NEW MATTER Plaintiffs, by and through their attorney, Joseph K. Goldberg, Esquire, hereby reply to the Defendants' New Matter as follows: 52. Paragraph 52 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that Plaintiffs have sufficiently pled all causes of action as set forth in their Complaint. 53. Paragraph 53 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that the fraud, deceit, misrepresentation, violations of laws and regulations and other wrongful acts of the Defendants are not in any way barred by the disclaimer and limitation cited by Defendants. 54. Paragraph 54 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that no such acts were performed by the Plaintiffs, as set forth in the Plaintiffs Complaint. 55. Paragraph 55 is a conclusion of law to which no response is required. To JOSEPH K. GOLDBERG,, ESQUIRE 2080 Lt,CZ~STOW~ RC~D, S~rE 10'6 o'I-I~SBU~C;, PA 17110 717-703-3600 · 717-540-5481 (fax) jgoldberg@ssbc-law, com ID #46782 KELLY R. CULVER and LUKE J. CULVER, Plaintiffs CARS BY GETTEL INC. and JOHN KAZOR, JR., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5005 CIVIL ACTION - LAW JURYTRIALDEMANDED REPLY TO NEW MATTER Plaintiffs, by and through their attorney, Joseph K. Goldberg, Esquire, hereby reply to the Defendants' New Matter as follows: 52. Paragraph 52 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that Plaintiffs have sufficiently pled all causes of action as set forth in their Complaint. 53. Paragraph 53 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that the fraud, deceit, misrepresentation, violations of laws and regulations and other wrongful acts of the Defendants are not in any way barred by the disclaimer and limitation cited by Defendants. 54. Paragraph 54 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that no such acts were performed by the Plaintiffs, as set forth in the Plaintiffs Complaint. 55. Paragraph 55 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that Plaintiffs had no such duty in this case. 56. Paragraph 56 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that the wrongful acts complained of were committed by the Defendants themselves. By way of further denial, Plaintiffs, after reasonable investigation, have no knowledge of any such acts of other pereons, and strict proof thereof at trial is demanded. 57. Paragraph 57 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reasons set forth in Plaintiffs' Complaint, i.e., that the vehicle is not driveable or capable of passing inspection, and has virtually no value to the Plaintiffs. 58. Paragraph 58 is a conclusion of law to which no response is required. To the extent that a response is required, the averment as to laches is denied, for the reason that Defendants have no basis whatsoever to substantiate this completely frivolous "defense." They have no basis whatsoever to claim any type of delay on the part of the Plaintiffs, nor any prejudice of any kind, in light of the admission by the Defendants that the Plaintiffs returned the vehicle within two days of taking possession of it from the Defendants. The defenses of waiver and estoppel are not applicable to the claims herein, and those averments are therefore denied. 59. Paragraph 59 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that, as set forth in the Plaintiffs' Complaint, the type of fraud, deceit, misrepresentation, 2 violations of laws and regulations, and other wrongful acts performed by Defendants are of the nature which permit the court to impose treble damages as provided by 73 P.S. § 201-9.2(a). 60. Paragraph 60 is a conclusion of law to which no response is required. To the extent that a response is required, the averments are denied, for the reason that both the Unfair Trade Practices Act and the Uniform Commercial Code provide the legal basis for the claims asserted and relief sought by Plaintiffs. WHEREFORE, Plaintiffs demand the court dismiss Defendants' New Matter, and grant judgment in favor of Plaintiffs and against Defendants as demanded in Plaintiffs' Complaint. Date: Respectfully submitted, Suite 106 Harrisburg, PA 17110 (717)703-3600 Attorney for Plaintiffs 3 CERTIFICATE OF SERVlCF ,, the undersigned, hereby certify that on the ?~day of ~, 2001, served a copy of the foregoing Plaintiffs' Reply To New Matter, by first-class mail, postage prepaid, upon the following: Kerry E. Maloney, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendants KELLY R. CULVER and LUKE J. CULVER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 01-5005 CARS BY GETTEL INC. and JOHN KAZOR, JR., Defendants · CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO MARK CASE SETTLED AND DISCONTINUED TO THE PROTHONOTARY: Please mark the above-captioned case settled and discontinued. ubm~ ~'~'oldbe~, Es~qt. Att. e~ey ID No. 46782 S21~u i810e ~i(~6g ,estown Road Harrisburg, PA 17110 (717)703-3600 Attorney for Plaintiffs CERTiFiCATE OF SERVICE_ I, the undersigned, hereby certify that on the~-~~ day of t__~-, 2002, served a copy of the foregoing plaintiffs' Praecipe to Mark Case Settled and Discontinued, by first-class mail, postage prepaid, upon the following: Matthew L. Owens, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 Attorney for Defendants