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HomeMy WebLinkAbout14-0960 From:Scaringi & Scaringi 717 657 7797 02/19/2014 13:27 #896 P.002 /002 Supreme Co nnsylvania Cou f�Ccn»oo leas ForPrntlton'vtaryUseOnly t Docket No Cu rla�rfil' County The information collected on this form is used solely for court administration purposes. :This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court. - Commencement of Action: Complaint ®Writ of Summons ® Petition © Transfer from Another Jurisdiction [3 Declaration of Taking Lead Plaintiffs Name: Lead Defendant's Name: .. Cindy Emondi T & G Car Sales, LLC requested? es re Yes El No damages Are money g q Dollar Amount Requested: Swithin arbitration limits (check one r, =u p ) [3 outside arbitration limits .' Is this a Class Action Suit? M Yes El No Is this an MDJAppeal? Q Yes No Name of Plaintiff/Appellant's Attorney: Casey L. S Esquire Check here if you have no attorney (are a Self-Represented (.Pro Sep Litigant) Nature of the Case:, ' 'P.tace an " '. to. the left of the ONE case category that most accurately describes your Rgk PRIMARY CASE if you are making more than one type of claim, check the pne that r you.consider.tnost important. , TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS Intentional Buyer Plaintiff Administrative Agencies ® Malicious Prosecution ®Debt Collection: Credit Card 0 Board of Assessment E3 Motor Vehicle © Debt Collection: Other © Board of Elections Q Nuisance E3 Dept. of Transportation ® Premises Liability ® Statutory Appeal: Other © Product Liability (does not include mass tort) ® Employment Dispute: Slander/LibeV Defamation Discrimination E3 Other: © Employment Dispute: Other Q Zoning Board ® Other: _. ® Other: ' MASS TORT � Asbestos < [3 Tobacco -, ® Toxic Tort - DES © Toxic Tort - Implant 13 Toxic Waste REAL PROPERTY MISCELLANEOUS © Other: ® Ejectment ® Common Law /Statutory Arbitration El Eminent Domain/Condemnation © Declaratory Judgment i © Ground Rent Mandamus I ® Landlord/Tenant Dispute Non -Domestic Relations E3 Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY ® Mortgage Foreclosure: Commercial 13 Quo Warranto s [ Dental ® Partition Replevin i ® Legal ® Quiet Title Other: Q Medical ® Other: ll Other Professional: r r Updated 1/1/2011 f: 3 f CINDY EMONDI, : COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY rT , V. 1 AI II �Vl) rn F �q . NO. ` u sn -ra 1- w t " T & G Car Sales, LLC Defendant ; CIVIL ACTION - LAW CD`' � • � � CFA r NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1- 800 - 990 -9108 717 - 249 -3166 S CLA 0(lt ) 'e J f � ' o rl'q 4 Casey L. Sipe, Esq. Attorney ID No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657 -7770 (717) 657 -7797 (fax) casey @scaringilaw.com Attorney for Plaintiff CINDY EMONDI, COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY V . . NO. T & G Car Sales, LLC Defendant CIVIL ACTION - LAW COMPLAINT 1. Plaintiff, Cindy Emondi, is an adult individual residing at 8612 Peiper Road, Shippensburg, Cumberland County, Shippensburg, Pennsylvania 17257. 2. Defendant, T & G Car Sales, LLC, is a Pennsylvania limited liability company, with a principal place of business at 409 S. Fayette Street, Shippensburg, Cumberland County, Pennsylvania 17257. 3. On or about March 13, 2013, Plaintiff negotiated for the purchase of a 2006 BMW 3251 (hereinafter "the vehicle ") from Defendant, through salesman Edward Albright. 4. During the negotiations for the vehicle's purchase, Mr. Albright assured Plaintiff that the vehicle was in good condition, with no issues. 5. Plaintiff informed Mr. Albright that she was particularly concerned about the car's condition because she required reliable transportation for work. ti 6. On or about March 13, 2013, Plaintiff purchased the vehicle from Defendant for $10,026.00, including taxes and other fees. (See March 13, 2013 T &G Care Sales Used Vehicle Order incorporated by reference and attached hereto as Exhibit A). 7. In November 2013, as the temperatures began to drop, Plaintiff noticed that the vehicle's heat did not work properly and it would begin blowing cold air after a period of approximately twenty minutes. 8. On or about November 29, 2013, Plaintiff took the vehicle to Forest Hill Auto in Red Lion, Pennsylvania, due to the specialization with BMWs. 9. The auto technicians at Forest Hill Auto determined that the vehicle had an internal leak in the combustion chamber that was pushing air into the cooling system. (November 29, 2013 Forest Hill Auto invoice incorporated by reference and attached hereto as Exhibit B). 10. Upon information and belief, the vehicle requires a new engine to remedy its current issues, costing approximately $10,000.00. 11. Due to the significant engine issues present, the vehicle is currently not drivable. Count I: Pennsylvania Unfair Trade Practices and Consumer Protection Law 12. Paragraphs 1 -11 above are incorporated by reference as though fully stated herein. 13. The auto technicians at Forest Hill Auto noted Plaintiff's vehicle's Vehicle Identification Number (VIN) for their records when inspecting Plaintiff's vehicle. 14. After reviewing their records, the Forest Hill Auto technicians informed Plaintiff that the same vehicle was serviced at Forest Hill Auto on or about January 26, 2013, with the former owner complaining that the heat did not work properly. (See January 26, 2013 Forest Hill Auto invoice incorporated by reference and attached hereto as Exhibit C). 15. The January 26, 2013 Forest Hill invoice indicates that the air was leaking into the cooling system, and would necessitate extensive engine repair to fix the issues. 16. The Forest Hill Auto technicians informed Plaintiff that the former owner elected to sell the vehicle, rather than incur the expenses required to repair the vehicle's engine. 17. Upon information and belief, Defendant was aware of the vehicle's significant engine problems. 18. Rather than fix the existing issues Defendant chose to mask the defects, through engine additives or some other fraudulent means, in order to sell the vehicle. 19. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when selling the vehicle to Plaintiff, despite assuring her that the vehicle was in good working condition. WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff treble damages of $30,000.00 for the cost of replacing the vehicle's engine, pursuant to 73 P.S. § 201- 9.2(a); b. Award Plaintiff attorney's fees and costs, pursuant to 73 P.S. § 201- 9.2(a); C. Award Plaintiff punitive damages for Defendant's willful and wanton conduct; and d. Award Plaintiff such other and further relief as is just and proper. Count II: Fraudulent Misrepresentation 20. Paragraphs 1 -18 above are incorporated herein by reference as though fully stated herein. 21. Defendant knew that the vehicle had significant engine problems prior to selling the vehicle to Plaintiff. 22. Despite the knowledge that the vehicle had significant engine problems, Defendant, through its salesman Edward Albright, assured Plaintiff that the vehicle was in good condition. 23. Defendant knew, or should have known, that Plaintiff would rely upon the judgment of Defendant and its salesman with regard to the vehicle's condition. 24. Plaintiff, not possessing the same level of automobile knowledge as Defendant and its salesman, justifiably relied upon Defendant's assurances that the vehicle was in good condition. 25. Plaintiff paid $10,026.00 for a vehicle that she cannot currently drive without incurring an additional $10,000.00 in repair costs. WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff $10,000.00, for the cost of replacing the vehicle's engine; b. Award Plaintiff punitive damages for Defendant's willful and wanton conduct; C. Award Plaintiff attorney's fees and costs; and d. Award Plaintiff such other and further relief as is just and proper. Count III: Fraudulent Concealment 26. Paragraphs 1 -24 above are incorporated herein by reference as though fully stated herein. 27. Defendant knew that the vehicle had significant engine problems prior to selling the vehicle to Plaintiff. 28. Upon information and belief, Defendant was aware of the vehicle's significant engine problems. 29. Rather than fix the existing issues Defendant chose to conceal defects from Plaintiff, through engine additives or some other fraudulent means, in order to sell the vehicle. 30. Despite the knowledge that the vehicle had significant engine problems, Defendant, through its salesman Edward Albright, assured Plaintiff that the vehicle was in good condition. 31. Defendant knew, or should have known, that Plaintiff would rely upon the judgment of Defendant and its salesman with regard to the vehicle's condition. 32. Plaintiff, not possessing the same level of automobile knowledge as Defendant and its salesman, justifiably relied upon Defendant's assurances that the vehicle was in good condition. 33. Defendant knew, or should have known, that the ability of the car to run properly and continue running properly without significant repairs was material to the sales transaction with Plaintiff. WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff $10,000.00, for the cost of replacing the vehicle's engine; b. Award Plaintiff punitive damages for Defendant's willful and wanton conduct; C. Award Plaintiff attorney's fees and costs; and d. Award Plaintiff such other and further relief as is just and proper. Count IV: Breach of Implied Warranty of MerchantabilitX 34. Paragraphs 1 -33 above are incorporated herein by reference as though fully stated herein. 35. Defendant sold the vehicle with a 30 day warranty. (See Exhibit A). 36. At no point did Defendant explicitly disclaim implied warranties. 37. Defendant sold Plaintiff a vehicle that it knew had significant engine problems. 38. Defendant refused to rectify the vehicle's significant engine problems or pay for the required repairs. 39. As a result of Defendant's refusal to rectify or repair the vehicle, Plaintiff is in possession of a vehicle she is unable to drive. WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff $10,000.00, for the cost of replacing the vehicle's engine; b. Award Plaintiff attorney's fees and costs; C. Award Plaintiff such other and further relief as is just and proper. Count V: Breach of Fitness for a Particular Purpose 40. Paragraphs 1 -39 above are incorporated herein by reference as though fully stated herein. 41. Plaintiff specifically informed Defendant's salesman, Edward Albright, that she needed a reliable car for transportation to and from work. 42. Defendant was, therefore, aware of the particular purpose for which Plaintiff intended to utilize the vehicle. 43. At no point did Defendant explicitly disclaim implied warranties. 44. Defendant sold Plaintiff a vehicle that it knew had significant engine problems. 45. Defendant refused to rectify the vehicle's significant engine problems or pay for the required repairs. 46. As a result of Defendant's refusal to rectify or repair the vehicle, Plaintiff is in possession of a vehicle she is unable to drive. WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff $10,000.00, for the cost of replacing the vehicle's engine; b. Award Plaintiff attorney's fees and costs; C. Award Plaintiff such other and further relief as is just and proper. Respec ly submitted, Case L. Sipe, Esq. Attorney I.D. No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657 -7770 (717) 657 -7797 (fax) casey @scaringilaw.com Exhibit "A" it pea1er phone: 1 Address —��� il\i t OW 1� 1 l -, n A S FOLLO t .� LIC. H•P• purchaser r TRUCKOR�— Address . r � . Q CAA 500 ' STOCI<NO• City t J COLOR ? Y OR DER FOR ONE "MODE t f t 7 l. ENTER M ,�, j MAY �!" Q OTHER 1 DER. Lf MOTOF Q' � Q TRUCK L r (�' O J U I CAR PRICE l / USED P TOTAL URCHASE t !t7 / USE OF VEHICLE r' PRIOR DEPOSI ) 00 r•. }L CAR SALES PR USED CAR $ [2 DLING ALLO`NANCE DELIVERY & HAN LESS UEN � TAX HELD FILING EQUITY .J j LIC. PL CASH ON DELNERY $ PAyMF t REPAIR TOTAL ARK'!— ` SERVICE REM vahcteis t /i it n the window Corm tot this uon 3o k w corm overrides 0 ) kONS This inidrma' see o !' _ the wind 1 RATION I t \ It Irdorma i C. rrirad•' DO PREPA ) ( PaA ° this YJ . the contract of sa te rovistons t .t +,^stT V 1/ •�" `�! i f °` an cb�?ra t TOT PURCHASE PRICE $ _ BODY STOGY, NO DE IN R MODEL COLOR e rRA ithet MAKE a At�o N he entire ex' YEAR sold is tit any ill bea SERtAI t90 r GO This n Ptor vehic The Pur,4,asy tvt OODMETER MOTOR re sse ¢t�o r im P tint e.veh t ranteed. ex(or thattri4` p r • after delive \ J pl n ,esently e xists 1 j✓ t , L A detects that p t or correcting any this vehicle for ade in ou 1 P a of repairi dealer warranty used. (Ow In of pays me obt n 1 labor ai ed.. r et's Signature AN7Y We the arts nd used.) pairs may !? yi t 3 usto!n R on a retail basis of P a rtS and tabor wa rr t g LD T of total re A juj c of the r �eitten f er herein rya � 1T � ( �'_'•`- � , d dealer } t,,�✓' j Pays hops all(" k1 `r l service shop o l t t f ear 01 age or olds t NAMEI t�, t2h t that 1 am t B ye on actual comer FROM t °EplEn'S L j npntract, l hetab� 1'aK' predicated uP s1 l et a to Ea'S ° urchase in this ' 1 and agree to Chien •The figures AT nature and back and odometer statem S S NO• t Dea ler's Sr9 of this o 20 1 have tead ledge�eceipton the trade in vehtcte. 4 an d ackno lien due t Phone t amount of Me e 1 agree ce t dtive+Y DEA fER to ac P \ r i �. , TED BY' AE Buye r's Signa NEESS SIGNED DEALE SIGNAT gu y r Ft 1 Np'4 VALID Mc ePted by d conditions• 1 Address THIS OA / D / E, ft / l - t terms g ' ` �,mlverse side for additions AUTO LINE $43t>0 REV. tOfOt ro CL r N 0 °$ s o a o ' CS N ty . 4' N@•,� (5„ N O N <0 @ �' m r3 �_ w Co � `° c d v o �y ° "' 0 5n � u m `.P N C @ o v O • { r �5 . ° 4r, (o �� = � @ c4. 5 i 6. 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G , . :� o- m ,3 a m c; a' is o E, 57 sCi Up a to A N 3 } ° O A °- C'' 1 •C `4 f�' S ` ICJ C A� i Sil 4' O O 4� LP - �' c00 o C ad o •° W LP . Z GD G @ Exhibit "B" Forest Hill Auto Date 285 Winterstown Rd Invoice # 1112912013 Red Lion, PA 17356 8729 (717) 246-3434 Cindy Emondi Year Make Model Mileage 8612 Peiper Rd Shippensburg Pa 17257 2006 BMW 325i 110, 663 360 -2871 Catagory Complaint and Repair Mrs 9 Labor Total Parts Tech Total Heating & Air C... The customer says that the heater blows 0.5 37.50 ; Jan 37.50 cold air when the temperature is set to hot. I checked the coolie stem & it was full, I g system � noticed that the cooling system was under " pressure & the engine was running a too high in temperature. I bled the cooling system & there was air still coming out of the bleeder, The engine has an internal leak in the combustion chamber that is pushing air into the cooling system & that is why the heater is not working. This car will probably need an engine to repair the problem, because the engine either has a bad head gasket or cracked head or a cracked engine block. y 1 E Subtotal $37.50 Sales Tax (6.0 %) $2.25 j`oresthillauto&oineint net —�® -- Totall $39.75 Exhibit "C" F Forest Hill Auto Date 285 Winterstown Rd Invoice # 112612013 Red Lion, PA 17356 6427 (717) 246 -3434 Year Make Mode/ Mileage 2006 BMW 3251 101,655 — Catagory Complaint and Repair Hrs ? Labor Total Par& Tech Total Cooling system Customer states car has no heat. Found 2 150.00 76.65 I Brian 226.65 i hose on engine has blown and car is low on antifreeze. Replaced hose and refilled with i i coolant. Pressure tested no leaks now. Car 'f has heat but after driving heat goes away . i Found air leaking from head gasket into f 1 coolant system .Will need extensive engine { t ` repair to fix. Owner will trade car. Note } V1N# WBAVB13586PT08527 0.00 ? Brian 0.00 i I i S 1 j I 1 i 1 - j 1 S ^ 3 3 l s 1 i } Ott j i E f f i s i � t ! S f r Subtotal $226.65 Thank you for your business. Sales Tax (6.0 %) $13.60 foreSehiiiliut em neat nea T ot al $240.25 SHERIFF'S OFFICE OF CUMBERLAND COUNTY ;. Ronny RAnderson HE PR+O T HC N OT ,, Sheriff Jody S Smith , ,, � ,,,� 2014 FEB 28 PM 3: 3 Chief Deputy CUMBERLAND COUNT' Richard W Stewart PENNSYLVANIA Solicitor: F vks Cindy Emondi vs. Case Number T&G Car Sales, LLC 2014-960 SHERIFF'S RETURN OF SERVICE 02/21/2014 05:59 PM - Deputy Shawn Harrison, being duly sworn according to law, served the req -•ted Complaint & Notice by handing a true copy to a person representing themselves to be Eddie Al, ig t, manager,who accepted as"Adult Person in Charge"for T&G Car Sales, LLC at 409 S. F-yette St -et, '•hippensburg Township, Shippensburg, PA 17257. . A A...41 _ SH• /rN HARRISON, DEPUT SHERIFF COST: $51.06 SO ANSWERS, February 25, 2014 RONNY ANDERSON, SHERIFF TO^OSC'. Salzmann Hughes, P.C. BY: E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney I.D. No. 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 Telephone: 717- 234 -6700 Fax 717 - 249 -7334 Attorneys for Defendant H ld li T .{ AEI -3 Fi11 10: 5S AND CCUN�T'( PENNS { L ANIA Cindy Emondi, v. T & G Car Sales, LLC, Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA : NO. 14 -960 CIVIL Defendant : Civil Action — Equity DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT Defendant T & G Car Sales, LLC ( "T &G "), by and through its counsel, Salzmann Hughes, P.C., sets forth the following preliminary objections to Plaintiff's Complaint: 1. Plaintiff, Cindy Emondi ( "Emondi ") filed her Complaint in the above - captioned matter on February 19, 2014. 2. Emondi's Complaint contains the following five counts: Count I: Pennsylvania Unfair Trade Practices and Consumer Protection Law; Count II: Fraudulent Misrepresentation; Count III: Fraudulent Concealment; Count IV: Breach of Implied Warranty of Merchantability; and Count V: Breach of Implied Warranty of Fitness for a Particular Purpose. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT I OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(4) 3. Defendant incorporates by reference the averments of paragraphs 1 through 2 as though the same were set forth fully at length herein. 4. Pa.R.C.P. 1028(a)(4) permits Defendant to preliminarily object to Plaintiff's Complaint on the ground of "legal insufficiency of a pleading (demurrer)." 5. Plaintiff styled Count I of her Complaint as "Pennsylvania Unfair Trade Practices and Consumer Protection Law" (the "UTPCPL "). 6. For a private individual to bring a cause of action under the UTPCPL, she must first establish, inter alia, that the transaction at issue was of the type covered by the UTPCPL and that the defendant engaged in unfair or deceptive acts or practices. See Fazio v. Guardian Life Ins. Co. of America, 62 A.3d 396, 409 -10 (Pa. Super. 2012) (citing Keller v. Volkswagen of Am., Inc., 733 A.2d 642, 646 -47 (Pa. Super. 1999)). 7. Plaintiff s Complaint fails to allege which of the twenty -one actionable violations listed under Section 201 -2 of the UTPCPL, 73 P.S. § 201 -2, allegedly occurred. 8. Because the purpose of the UTPCpL is to prevent fraudulent practices, a majority of the violations enumerated in the UTPCPL require a Plaintiff to prove common law fraud in addition to establishing that the Plaintiff is an individual covered by the UTPCPL and that the transaction is also covered. See Fazio v. Guardian Life Ins. Co. of America, 62 A.3d at 409 -10. 9. "Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally." Pa.R.C.P. 1019. 10. The elements of a fraud claim are: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. See Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999); Presbyterian Medical Center 2 v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003) (citing Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994)). 11. "The essence of fraud is a misrepresentation fraudulently uttered with the intent to induce the action undertaken in reliance upon it, to the damage of its victim." Budd, 832 A.2d at 1072. 12. "Where a plaintiff asserts a fraudulent misrepresentation without showing that the defendant intended to mislead the plaintiff into reliance on the misrepresentation, the defendant is entitled to judgment as a matter of law." David Pflumm Paving & Excavating, Inc. v. Foundation Services Co., 816 A.2d 1164, 1171 (Pa. Super. 2003). 13. While Plaintiff's Complaint contains naked averments of knowingly false misrepresentations, justifiable reliance, and resulting damage, Plaintiff failed to aver any intent on Defendant's part to mislead Plaintiff into reliance. 14. Moreover, Plaintiff failed to aver that any alleged misrepresentation was material to the transaction. 15. Accordingly, although her Complaint is unclear, to the extent Plaintiff is asserting that Defendant engaged in unfair conduct enumerated under Section 201 of the UTPCPL that requires her to establish fraud, Plaintiff's Complaint fails to state a cause of action under the UTPCPL upon which relief can be granted. WHEREFORE, Defendant respectfully requests that the Court sustain its preliminary objection as to Count I of Plaintiffs Complaint and issue an order dismissing Count I of Plaintiff's Complaint with prejudice. 3 PRELIMINARY OBJECTION IN THE NATURE OF A MOTION FOR A MORE SPECIFIC PLEADING AS TO COUNT I OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(3) 16. Defendant incorporates by reference the averments of paragraphs 1 through 15 as though the same were set forth fully at length herein. 17. Pa.R.C.P. 1028(a)(3) permits Defendant to preliminarily object to Plaintiff's Complaint on the ground of "insufficient specificity in a pleading." 18. Plaintiff styled Count I of her Complaint as "Pennsylvania Unfair Trade Practices and Consumer Protection Law." 19. The facts alleged in a Complaint must be "sufficiently specific to enable a defendant to prepare [its] defense." Unified Sportsmen of Pennsylvania v. Pennsylvania Game Comm'n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008). 20. "Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally." Pa.R.C.P. 1019. 21. In paragraph 18 of her Complaint, plaintiff avers that "[r]ather than fix the existing issues Defendant chose to mask the defects, through engine additives or some other fraudulent means ...." Plaintiff does not specifically state the type of "engine additive" used or to what "other fraudulent means" she is referring. 22. In paragraph 19 of her Complaint, Plaintiff avers that Defendant "assure[ed] her that the vehicle was in good condition." Plaintiff does not state with particularity what representations or assurances she alleges Defendant made contemporaneous to the sale of the vehicle. 23. Moreover, as noted above, Plaintiff's Complaint fails to allege which of the actionable violations of the UTPCPL allegedly occurred here. 4 24. As observed in paragraphs 9 -12, above, to the extent Plaintiff's alleged violation of the UTPCPL requires proof of fraud, Plaintiff failed to aver facts demonstrating Defendant's alleged intent or the materiality of any alleged misrepresentation, necessary elements for establishing fraud. 25. Defendant is, therefore, unable to adequately prepare a response based on the averments of Plaintiff's Complaint as presently stated. WHEREFORE, Defendant respectfully requests that the Court sustain its preliminary objection as to Count I of Plaintiff's Complaint and issue an order dismissing Count I of Plaintiff's Complaint with prejudice or, alternatively, requiring Plaintiff to file a more specific pleading. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT II OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(4) 26. Defendant incorporates by reference the averments of paragraphs 1 through 25 as though the same were set forth fully at length herein. 27. Pa.R.C.P. 1028(a)(4) permits Defendant to preliminarily object to Plaintiff's Complaint on the ground of "legal insufficiency of a pleading (demurrer)." 28. In Count II of her Complaint, Plaintiff alleges that Defendant engaged in fraudulent misrepresentation in conjunction with the sale of the vehicle in question. 29. "Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally." Pa.R.C.P. 1019. 30. The elements of a fraudulent or intentional misrepresentation claim are: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting 5 injury was proximately caused by the reliance. See Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999); Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003) (citing Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994)). 31. "The essence of fraud is a misrepresentation fraudulently uttered with the intent to induce the action undertaken in reliance upon it, to the damage of its victim." Budd, 832 A.2d at 1072. 32. "Where a plaintiff asserts a fraudulent misrepresentation without showing that the defendant intended to mislead the plaintiff into reliance on the misrepresentation, the defendant is entitled to judgment as a matter of law." David Pflumm Paving & Excavating, Inc. v. Foundation Services Co., 816 A.2d 1164, 1171 (Pa. Super. 2003). 33. While Plaintiff alleged a knowingly false misrepresentation, justifiable reliance, and resulting injury, Plaintiff failed to aver any intent on Defendant's part to mislead Plaintiff into reliance. 34. Moreover, Plaintiff failed to aver that any alleged misrepresentation was material to the transaction. 35. Consequently, Plaintiff has failed to plead a cause of action for fraudulent misrepresentation upon which relief can be granted. WHEREFORE, Defendant respectfully requests that the Court sustain its preliminary objection as to Count II of Plaintiff's Complaint and issue an order dismissing Count II of Plaintiff's Complaint with prejudice. 6 PRELIMINARY OBJECTION IN THE NATURE OF A MOTION FOR A MORE SPECIFIC PLEADING AS TO COUNT II OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(3) 36. Defendant incorporates by reference the averments of paragraphs 1 through 35 as though the same were set forth fully at length herein. 37. Pa.R.C.P. 1028(a)(3) permits Defendant to preliminarily object to Plaintiff's Complaint on the ground of "insufficient specificity in a pleading." 38. In Count II of her Complaint, Plaintiff alleges that Defendant engaged in fraudulent misrepresentation in conjunction with the sale of the vehicle in question. 39. "Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally." Pa.R.C.P. 1019. 40. The facts alleged in a Complaint must be "sufficiently specific to enable a defendant to prepare [its] defense." Unified Sportsmen of Pennsylvania v. Pennsylvania Game Comm'n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008). 41. In paragraph 30, Plaintiff avers that Defendant "assured Plaintiff that the vehicle was in good condition." Plaintiff does not state with particularity what representations or assurances she alleges Defendant made contemporaneous to the sale of the vehicle. 42. Moreover, as stated above, intent is a required element of a fraud claim. Plaintiff's Complaint pleads no facts with respect to the intent element of a fraudulent misrepresentation claim. 43. Likewise, materiality is a required element of a fraud claim. Plaintiff s Complaint pleads no facts with respect to the materiality element of a fraudulent misrepresentation claim. WHEREFORE, Defendant respectfully requests that the Court sustain its preliminary objection as to Count II of Plaintiffs Complaint and issue an order dismissing Count II of 7 Plaintiff's Complaint with prejudice or, alternatively, requiring Plaintiff to file a more specific pleading. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT III OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(4) 44. Defendant incorporates by reference the averments of paragraphs 1 through 43 as though the same were set forth fully at length herein. 45. Pa.R.C.P. 1028(a)(4) permits Defendant to preliminarily object to Plaintiff's Complaint on the ground of "legal insufficiency of a pleading (demurrer)." 46. In Count III of her Complaint, Plaintiff alleges that Defendant engaged in fraudulent concealment in conjunction with the sale of the vehicle in question. 47. "The tort of intentional non - disclosure has the same elements as intentional misrepresentation `except in the case of intentional non - disclosure, the party intentionally conceals a material fact rather than making an affirmative misrepresentation. ' Bortz, 556 Pa. at 499, 729 A.2d at 560. 48. Accordingly, the same elements referred to in paragraph 30, above, apply to Plaintiff s fraudulent concealment claim. 49. While Plaintiff has alleged concealment, justifiable reliance, and resulting injury, Plaintiff has failed to aver any intent on Defendant's part to mislead Plaintiff into reliance. 50. Likewise, Plaintiff pled no facts regarding the materiality element of a fraud claim. 51. Consequently, Plaintiff has failed to plead a cause of action for fraudulent concealment upon which relief can be granted. WHEREFORE, Defendant respectfully requests that the Court sustain its preliminary objection as to Count III of Plaintiff's Complaint and issue an order dismissing Count III of Plaintiff s Complaint with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION FOR A MORE SPECIFIC PLEADING AS TO COUNT III OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(3) 52. Defendant incorporates by reference the averments of paragraphs 1 through 51 as though the same were set forth fully at length herein. 53. Pa.R.C.P. 1028(a)(3) permits Defendant to preliminarily object to Plaintiff s Complaint on the ground of "insufficient specificity in a pleading." 54. In Count III of her Complaint, Plaintiff alleges that Defendant engaged in fraudulent concealment in conjunction with the sale of the vehicle in question. 55. "Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally." Pa.R.C.P. 1019. 56. The facts alleged in a Complaint must be "sufficiently specific to enable a defendant to prepare [its] defense." Unified Sportsmen of Pennsylvania v. Pennsylvania Game Comm'n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008). 57. In paragraph 29 of her Complaint, plaintiff avers that "Mather than fix the existing issues Defendant chose to conceal defects from Plaintiff, through engine additives or some other fraudulent means ...." Plaintiff does not specifically state the type of "engine additive" used or to what "other fraudulent means" she is referring. 58. In paragraph 30, Plaintiff avers that Defendant "assured Plaintiff that the vehicle was in good condition." Plaintiff does not state with particularity what representations or assurances she alleges Defendant made contemporaneous to the sale of the vehicle. 9 59. As stated above, intent is a required element of a fraud claim. Plaintiff's Complaint pleads no facts with respect to the intent element of a fraudulent concealment claim. 60. Likewise, materiality is a required element of a fraud claim. Plaintiff's Complaint pleads no facts with respect to the materiality element of a fraudulent concealment claim. WHEREFORE, Defendant respectfully requests that the Court sustain its preliminary objection as to Count III of Plaintiffs Complaint and issue an order dismissing Count III of Plaintiffs Complaint with prejudice or, alternatively, requiring Plaintiff to file a more specific pleading. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT IV OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(4) 61. Defendant incorporates by reference the averments of paragraphs 1 through 60 as though the same were set forth fully at length herein. 62. Pa.R.C.P. 1028(a)(4) permits Defendant to preliminarily object to Plaintiff's Complaint on the ground of "legal insufficiency of a pleading (demurrer)." 63. Count IV of Plaintiffs Complaint alleges a breach of an implied warranty of merchantability. 64. The Uniform Commercial Code provides for an implied warranty that "goods shall be merchantable ... if the seller is a merchant with respect to goods of that kind." 13 Pa.C.S. § 2314. 65. Plaintiff has failed to allege that she is a "buyer," her automobile is a "good," or that Defendant is a "merchant" as those terms are specifically defined under the Uniform Commercial Code. 66. Additionally, Plaintiff failed to allege that the vehicle in question was not fit for its ordinary purpose or that the vehicle was not "merchantable." In fact, Exhibits A and B to 10 Plaintiff s Complaint demonstrate that Plaintiff used the car for its ordinary purpose for more than 8,000 miles following the date of purchase, facts that preclude her claim. 67. Finally, paragraph 38 of the Complaint alleges, as a basis for a breach of an implied warranty of merchantability that "Defendant refused to rectify the vehicle's significant engine problems or pay for the required repairs." Plaintiff seems to confuse an implied warranty of merchantability claim with a breach of express warranty claim. An averment that some duty to repair has been breached is misplaced outside of a claim involving breach of a contractual duty or a duty under an express warranty. 68. Consequently, Plaintiff has failed to state a claim for breach of an implied warranty of merchantability, upon which relief can be granted. WHEREFORE, Defendant respectfully requests that the Court sustain its preliminary objection as to Count IV of Plaintiffs Complaint and issue an order dismissing Count IV of Plaintiff's Complaint with prejudice. PRELIMINARY OBJECTION .IN THE NATURE OF A DEMURRER TO COUNT V OF PLAINTIFF'S COMPLAINT PURSUANT TO Pa.R.C.P. 1028(a)(4) 69. Defendant incorporates by reference the averments of paragraphs 1 through 68 as though the same were set forth fully at length herein. 70. Pa.R.C.P. 1028(a)(4) permits Defendant to preliminarily object to Plaintiffs Complaint on the ground of "legal insufficiency of a pleading (demurrer)." 71. Count V of Plaintiffs Complaint alleges a breach of an implied warranty of fitness for a particular purpose. 72. Under the Uniform Commercial Code, there is an implied warranty that goods shall be fit for a particular purposes where at the time of contracting the seller has reason to know: (1) any particular purpose for which the goods are required; and (2) that the buyer is 11 relying on the skill or judgment of the seller to select or furnish suitable goods. See 13 Pa.C.S. § 2315. 73. The Uniform Commercial Code Comment appended to 13 Pa.C.S. § 2315 states that "[a] `particular purpose' differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purpose for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question." 74. Plaintiff, throughout her Complaint, endeavors to allege that having a car suitable to drive to and from work constitutes a "particular purpose" sufficient to invoke an implied warranty for a fitness for a particular purpose. The allegation that Plaintiff informed defendant that she "needed a reliable car for transportation to and from work" is not a "particular purpose "; it is a vehicle's ordinary purpose. 75. Plaintiff makes no averment in her complaint that she had a peculiar need for a specific type of vehicle. 76. Additionally, Plaintiff does not aver that Defendant used special "skill or judgment" to furnish goods suited to a valid particular purpose. 77. Finally, paragraph 45 of Plaintiff's Complaint alleges, as a basis for a breach of warranty for a particular purpose that "Defendant refused to rectify the vehicle's significant engine problems or pay for the required repairs." Plaintiff seems to confuse an implied warranty claim with a breach of express warranty claim. An averment that some duty to repair has been breached is misplaced outside of a claim involving breach of a contractual duty or a duty under an express warranty. 12 78. Consequently, Plaintiff has failed to state a claim for breach of an implied warranty of fitness for a particular purpose upon which relief can be granted. WHEREFORE, Defendant respectfully requests that the Court sustain its preliminary objection as to Count V of Plaintiff's Complaint and issue an order dismissing Count V of Plaintiffs Complaint with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PLAINTIFF'S COMPLAINT FOR FAILURE TO CONFORM TO LAW OR RULE OF COURT 79. Defendant incorporates by reference the averments of paragraphs 1 through 78 as though the same were set forth fully at length herein. 80. Pa. R.C.P. 1028(a)(2) permits Defendant to preliminarily object on the grounds of "failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter." 81. Pa.R.C.P. 1024(a) requires "[e]very pleading containing an averment of fact not appearing of record ... shall state that the averment ... is true upon the signer's personal knowledge or information and belief and shall be verified ...." 82. Plaintiff has failed to include a verification of the factual averments of the Complaint in this matter. WHEREFORE, Defendant respectfully request that this Court sustain the Defendant's Preliminary Objections and strike Plaintiff's Complaint for failure to conform to law or rule of court. 13 PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PLAINTIFF'S REQUEST FOR ATTORNEY'S FEES PURSUANT TO Pa.R.C.P. 1028(a)(4) 83. Defendant incorporates by reference the averments of paragraphs 1 through 82 as though the same were set forth fully at length herein. 84. Count II, Count III, Count IV, and Count V of Plaintiffs' Complaint each contain improper request for the award of attorneys' fees and costs. 85. Parties to litigation are responsible for their own counsel fees unless otherwise provided by statutory authority, agreement of the parties or some other recognized exception. See Hart v. O'Malley, 781 A.2d 1211, 1216 (Pa. Super. 2001). 86. Counts II through V of Plaintiff's Complaint fail to identify any statutory authority or agreement of the parties sufficient to provide an exception from the general rule that parties to litigation are responsible for their own counsel fees. 87. There is no statutory authority or other recognized exception supporting an award of counsel fees with respect to the claims averred in Counts II through V of Plaintiff's Complaint. WHEREFORE, Defendant respectfully request that this Court sustain the Defendant's Preliminary Objections and strike Plaintiff's request for counsel fees and costs contained in Count II, Count III, Count IV, and Count V of Plaintiffs Complaint. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PLAINTIFF'S REQUEST FOR PUNITIVE DAMAGES PURSUANT TO Pa.R.C.P. 1028(a)(4) 88. Defendant incorporates by reference the averments of paragraphs 1 through 87 as though the same were set forth fully at length herein. 14 89. Counts I through V of Plaintiffs' Complaint request that the Court award punitive damages. 90. The Pennsylvania Supreme Court has held that "[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Hutchinson ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005) (quoting Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984)). 91. Punitive damages are "penal in nature and are proper only in cases where the defendant's actions are so outrageous as to demonstrate willful, wanton or reckless conduct." Hutchinson, 870 A.2d at 770. 92. Beyond a general invocation to the standard and a bald assertion that Defendant engaged in willful, wanton or reckless conduct, Plaintiff has failed to aver facts sufficient to establish that any alleged conduct on the part of the defendant was so outrageous or involved such an evil motive as to justify an award of punitive damages. 93. Additionally, Count I of Plaintiff's Complaint alleges an entitlement to treble damages and punitive damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. No punitive damages beyond the discretionary treble damages are available under the Consumer Protection Law. See Samuel - Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 401 -402 (3d Cir. 2004) (citing McCauslin v. Reliance Finance Co., 751 A.2d 683, 686 (Pa. Super. 2000). Accordingly, the Court should strike Plaintiff's duplicative request. WHEREFORE, Defendant respectfully requests that the Court sustain is Preliminary Objection and strike Plaintiff's requests for punitive damages in Counts I through V of Plaintiffs Complaint. 15 Dated: Y / /r' Y By: Respectfully submitted, SALZMANN HUGHES, P.C. E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney ID: 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 (717) 234 -6700 Attorneys for Defendant 16 CERTIFICATE OF SERVICE I, E. Lee Stinnett II, hereby certify that I served a true and correct copy of Defendant's Preliminary Objections to Plaintiff's Complaint by first class mail, postage prepaid, this / day of April, 2014,011 the following: Casey L. Sipe, Esq. Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 E. Lee Stinnett II CINDY EMONDI, : COURT OF COMMON PLEAS OIL Plaintiff : CUMBERLAND COUNTY rn 'v tor- CA) V. Q : NO. 14 -960 CIVIL c x' T & G CarSales,LLC �' ,--, Defendant : CIVIL ACTION - LAW ,.‹ NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1- 800 - 990 -9108 717 - 249 -3166 +" rn CD Y � Casey L. Sipe, Esq. Attorney ID No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657 -7770 (717) 657 -7797 (fax) casey @scaringilaw.com Attorney for Plaintiff CINDY EMONDI, Plaintiff : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY v. : NO. 14-960 CIVIL T & G Car Sales, LLC Defendant : CIVIL ACTION - LAW AMENDED COMPLAINT 1. Plaintiff, Cindy Emondi, is an adult individual residing at 8612 Peiper Road, Shippensburg, Cumberland County, Shippensburg, Pennsylvania 17257. 2. Defendant, T & G Car Sales, LLC, is a Pennsylvania limited liability company, with a principal place of business at 409 S. Fayette Street, Shippensburg, Cumberland County, Pennsylvania 17257. 3. On or about March 13, 2013, Plaintiff negotiated for the purchase of a 2006 BMW 325i (hereinafter "the vehicle ") from Defendant, through salesman Edward Albright. 4. During the negotiations for the vehicle's purchase, Mr. Albright assured Plaintiff that the vehicle was in good condition, with no issues, and would provide her reliable transportation to and from work. 5. On or about March 13, 2013, Plaintiff purchased the vehicle from Defendant for $10,026.00, including taxes and other fees. (See March 13, 2013 T &G Car Sales Used Vehicle Order incorporated by reference and attached hereto as Exhibit A). 6. In November 2013, as the temperatures began to drop, Plaintiff noticed that the vehicle's heat did not work properly and it would begin blowing cold air after a period of approximately twenty minutes. 7. On or about November 29, 2013, Plaintiff took the vehicle to Forest Hill Auto in Red Lion, Pennsylvania, due to their specialization with BMWs. 8. The auto technicians at Forest Hill Auto determined that the vehicle had an internal leak in the combustion chamber that was pushing air into the cooling system. (November 29, 2013 Forest Hill Auto invoice incorporated by reference and attached hereto as Exhibit B). 9. The vehicle requires a new engine to remedy its current issues, which would cost Plaintiff approximately $16,186.38. (March 27, 2014 Forest Hill Auto estimate incorporated by reference and attached hereto as Exhibit C). 10. The auto technicians at Forest Hill Auto noted Plaintiff's vehicle's Vehicle Identification Number (VIN) for their records when inspecting Plaintiffs vehicle. 11. After reviewing their records, the Forest Hill Auto technicians informed Plaintiff that the same vehicle was serviced at Forest Hill Auto on or about January 26, 2013, with the former owner also complaining that the heat did not work properly. (See January 26, 2013 Forest Hill Auto invoice incorporated by reference and attached hereto as Exhibit D). 12. The January 26, 2013 Forest Hill invoice indicates that the air was leaking into the cooling system, and would necessitate extensive engine repair to fix the issues. 13. The Forest Hill Auto technicians informed Plaintiff that the former owner elected to sell the vehicle, rather than incur the expenses required to repair the vehicle's engine. 14. Upon information and belief, Defendant purchased the vehicle and became aware of its significant engine issues, prior to the sale to Plaintiff. 15. Due to the significant engine issues present, Plaintiff has not been able to drive the vehicle since November 2013. 16. Despite not being able to drive the vehicle, Plaintiff must make monthly payments on the vehicle, including interest. Count I: Violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law. 73 P.S. 4 201- 2(4)(vii) & (xxi) 17. Paragraphs 1 -16 above are incorporated by reference as though fully stated herein. 18. Upon information and belief, the vehicle's engine block was cracked at the time Defendant purchased the vehicle. 19. During the negotiation for the vehicle's sale, salesman, Edward Albright, informed Plaintiff that the vehicle was in good condition and would provide reliable transportation for Plaintiff to and from work. 20. Plaintiff would not have purchased the vehicle if she was aware it had significant engine issues or that it would not reliably transport her to and from work. 21. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when Edward Albright told Plaintiff that the vehicle was in good condition and would provide reliable transportation. 22. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when it sold the vehicle to Plaintiff. 23. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when selling the vehicle to Plaintiff, despite assuring her that the vehicle was in good working condition. 24. Upon information and belief, Defendant failed to disclose the significant engine problems because Defendant knew that Plaintiff would not purchase the vehicle if she was aware of the vehicle's defects. 25. Upon information and belief, Defendant knew that Plaintiff would rely upon the assertions of Edward Albright when inquiring into the vehicle's condition. 26. Plaintiff, not possessing the same level of automobile knowledge as Defendant and its salesman, justifiably relied upon Defendant's assurances that the vehicle was in good condition and would provide reliable transportation to and from work. 27. Defendant knew, or should have known, that the ability of the vehicle to run properly and continue running properly without significant repairs was material to the sales transaction with Plaintiff. 28. Plaintiff would not have purchased the vehicle if she was informed of its significant engine issues. 29. Plaintiff now possesses a vehicle that she cannot drive, unless she pays approximately $16,186.38 for repairs. 30. Defendant represented that the vehicle was of a particular standard, quality or grade, when it was of another, constituting an unfair or deceptive practice under 73 P.S. § 201- 2(4)(vii). 31. Defendant engaged in fraudulent and deceptive conduct that created a likelihood of confusion or misunderstanding, constituting an unfair or deceptive act or practice under § 201- 2(4)(xxi). WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff treble damages of $48,559.14 pursuant to 73 P.S. § 201- 9.2 (a); b. Award Plaintiff attorney's fees and costs, pursuant to 73 P.S. § 201- 9.2(a); and c. Award Plaintiff such other and further relief as is just and proper. Count II: Fraudulent Misrepresentation 32. Paragraphs 1 -31 above are incorporated herein by reference as though fully stated herein. 33. Upon information and belief, the vehicle's engine block was cracked at the time Defendant purchased the vehicle. 34. During the negotiation for the vehicle's sale, salesman, Edward Albright, informed Plaintiff that the vehicle was in good condition and would provide reliable transportation for Plaintiff to and from work. 35. Plaintiff would not have purchased the vehicle if she was aware it had significant engine issues or that it would not reliably transport her to and from work. 36. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when Edward Albright told Plaintiff that the vehicle was in good condition and would provide reliable transportation. 37. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when it sold the vehicle to Plaintiff. 38. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when selling the vehicle to Plaintiff, despite assuring her that the vehicle was in good working condition. 39. Upon information and belief, Defendant failed to disclose the significant engine problems because Defendant knew that Plaintiff would not purchase the vehicle if she was aware of the vehicle's true condition. 40. Upon information and belief, Defendant knew that Plaintiff would rely upon the assertions of Edward Albright when inquiring into the vehicle's condition. 41. Plaintiff, not possessing the same level of automobile knowledge as Defendant and its salesman, justifiably relied upon Defendant's assurances that the vehicle was in good condition and would provide reliable transportation to and from work. 42. Defendant knew, or should have known, that the ability of the vehicle to run properly and continue running properly without significant repairs was material to the sales transaction with Plaintiff. 43. Plaintiff would not have purchased the vehicle if she was informed of its significant engine issues. 44. Plaintiff now possesses a vehicle that she cannot drive, unless she pays approximately $16,186.38 for repairs. WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff $$16,186.38; b. Award Plaintiff punitive damages for Defendant's willful and wanton conduct; and c. Award Plaintiff such other and further relief as is just and proper. Count III: Fraudulent Concealment 45. Paragraphs 1 -44 above are incorporated herein by reference as though fully stated herein. 46. Upon information and belief, the vehicle's engine block was cracked at the time Defendant purchased the vehicle. 47. During the negotiation for the vehicle's sale, salesman, Edward Albright, informed Plaintiff that the vehicle was in good condition and would provide reliable transportation for Plaintiff to and from work. 48. Plaintiff would not have purchased the vehicle if she was aware it had significant engine issues or that it would not reliably transport her to and from work. 49. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when Edward Albright told Plaintiff that the vehicle was in good condition and would provide reliable transportation. 50. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when it sold the vehicle to Plaintiff. 51. Upon information and belief, Defendant was aware of the vehicle's significant engine problems when selling the vehicle to Plaintiff, despite assuring her that the vehicle was in good working condition and would provide reliable transportation to and from work. 52. Upon information and belief, Defendant failed to disclose the significant engine problems because Defendant knew that Plaintiff would not purchase the vehicle if she was aware of the vehicle's true condition. 53. Upon information and belief, Defendant knew that Plaintiff would rely upon the assertions of Edward Albright when inquiring into the vehicle's condition. 54. Plaintiff, not possessing the same level of automobile knowledge as Defendant and its salesman, justifiably relied upon Defendant's assurances that the vehicle was in good condition. 55. Defendant knew, or should have known, that the ability of the vehicle to run properly and continue running properly without significant repairs was material to the sales transaction with Plaintiff. 56. Plaintiff would not have purchased the vehicle if she was informed of its significant engine issues. 57. Plaintiff now possesses a vehicle that she cannot drive, unless she pays approximately $16,186.38 for repairs. WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff $16,186.38; b. Award Plaintiff punitive damages for Defendant's willful and wanton conduct; and c. Award Plaintiff such other and further relief as is just and proper. Count IV: Breach of Implied Warranty of Merchantability 58. Paragraphs 1 -57 above are incorporated herein by reference as though fully stated herein. 59. The vehicle is a good pursuant to 13 Pa.C.S. § 2105. 60. Plaintiff is a buyer pursuant to 13 Pa.C.S. § 2103. 61. Defendant is a merchant pursuant to 13 Pa.C.S. § 2104. 62. Upon information and belief, the vehicle's engine block was cracked at the time Defendant purchased the vehicle. 63. Defendant sold the vehicle with a 30 day warranty. (See Exhibit A). 64. At no point did Defendant explicitly disclaim implied warranties. 65. Upon information and belief, Defendant sold Plaintiff a vehicle that it knew had significant engine problems. 66. The vehicle is not drivable, due to its significant engine issues and, therefore, not merchantable. 67. Plaintiff now possesses a vehicle that she cannot drive, unless she pays approximately $16,186.38 for repairs. WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff $16,186.38; b. Award Plaintiff such other and further relief as is just and proper. Count V: Violation of Automotive Industry Trade Practices Law. 37 Pa. Code &, 301.2(5)(ii) & (6) 68. Defendant placed the vehicle for sale, thereby representing that it was roadworthy. 69. Upon information and belief, the vehicle's engine block was cracked at the time Defendant purchased the vehicle. 70. Upon information and belief, Defendant knew or should have known of the vehicle's significant engine problems when Edward Albright told Plaintiff that the vehicle was in good condition and would provide reliable transportation to and from work. 71. During the negotiation for the vehicle's sale, salesman, Edward Albright, informed Plaintiff that the vehicle was in good condition and would provide reliable transportation for Plaintiff to and from work. 72. Defendant failed to disclose the vehicle's cracked engine block to Plaintiff prior to the sale of the vehicle. 73. Alternatively, Defendant did not possess the requisite information required to make a representation that the vehicle was in good condition and would provide reliable transportation to and from work. 74. Plaintiff would not have purchased the vehicle if she was aware it had significant engine issues or that it would not reliably transport her to and from work. 75. Upon information and belief, Defendant failed to disclose the significant engine problems because Defendant knew that Plaintiff would not purchase the vehicle if she was aware of the vehicle's defects. 76. Upon information and belief, Defendant knew that Plaintiff would rely upon the assertions of Edward Albright when inquiring into the vehicle's condition. 77. Plaintiff, not possessing the same level of automobile knowledge as Defendant and its salesman, justifiably relied upon Defendant's assurances that the vehicle was in good condition and would provide reliable transportation to and from work. 78. Defendant knew, or should have known, that the ability of the vehicle to run properly and continue running properly without significant repairs was material to the sales transaction with Plaintiff. 79. A motor vehicle which is offered for sale is represented to be roadworthy, and the advertiser or seller shall disclose prior to sale the following conditions if the advertiser or seller knows or should know that the conditions exist in the motor vehicle: Engine block or head cracked. 37 Pa. Code § 301.2(5)(ii). 80. With respect to a sales presentation offering a used motor vehicle, it is considered an unfair or deceptive act or practice if the dealer makes a representation or statement of fact if the salesperson knows or should know that the representation is false and misleading or if the salesperson does not have sufficient information upon which a reasonable belief in the truth of the representation could be based. 37 Pa. Code § 301.2(6). WHEREFORE, Plaintiff respectfully requests this Honorable Court: a. Award Plaintiff $16,186.38; b. Award Plaintiff punitive damages for Defendant's willful and wanton conduct; and c. Award Plaintiff such other and further relief as is just and proper. Respejt fully s ubmit�ed, asey L. Sipe, Esq. Attorney I.D. No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657 -7770 (717) 657 -7797 (fax) casey @scaringilaw.com VERIFICATION I, Cindy Emondi, verify that the statements made in the fd egoing Amended Complaint are true and correct. I understand that false statements here are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsific ion to authorities. Date: L\ \lv — \y Cindy SERIAL NO MOTOR CO USED VEHICLE ORDER Dealer Address r City ' ► St Purchaser .. Address - t City ENTER MY ORDER FOR ONE ❑ CAR ❑ TRUCK OR YEAR MAKE' MQPEL • ODOMETER. , ; SERIAL NO •"' x, •t MOTOR CO Date 20 Phone' • Phone; St, AS FOLLOWS PRIOR USE OFVEHIr:LE .•"'DUSED , •❑ CAR BODY COLOR LIC. H.P. STOCK NO. CAR SALES PRICE TOTAL PURCHASE PRICE DELIVERY &:- ANDLINta DEPOSIT -Tr• TAX �} f 11 USED CAR ALLOWANCE $ LESS LIEN jet ; r FILING 3 Lli. PLAT �,, HELD L'Y a , - , , REPAIR EOUITY r i ±- SERVICE CASH ON DELIVERY OPTIONS TOTAL PAYMENT ' $ COG PREPARATION REMARKS This infr r nation' jvt 4 oee on the anndow form for this vehicle is i x x • j pert ol this c ,ntIrci . infe[milt,on on the window fnm, overrides any ,.prrrrarj Oros eons mine contract of sale. TOTAL PURCHASE PRICE $ YEAR MAKE ODOMETER MODEL BODY LIC H.P COLOR STOCK NO. 1 SOLD AS IS. absolutely not guaranteed, nn's n "`'' "dP w 30 n wa►ra enhe• asns,>writottt ar lily is or that In r irreilitd The v hicle;.-- jr tll bear the entire ex- pe�rsi td iepamng or crnre:5mq any detefte that pI>:sentry musts or then fns; nt'x.1rr m >I}t+ vehicle. Gusforaaers Sionatu e ( • 7 S,_OLD WITH WARRANTY !fetes dealer warranty thtovehicletor after delivery • It port - ona ,•stailbustsofpa'.+ndlaborused (Dame pays and dallier paves .•f total retail coax iri�}t pars and IaL -x used.) qII repairs must be made in stn . er naa shop tit shops authomeet! tie 4. er lreeni nomnd. A tulf espy of-the written warranty may be obtained FROM i r` <' : e7, r : , DE"e ^A ^_ NAME) „. . ' AT •1 ' • • ! . j k i9EN.EnuABPRESSt Oeslore Signature __._ —,. • .'. I ba � lags an:± tuck al .hi txter. and se to this purchase contract I hereby certify tire* I am 18 years of age or older amount of the lien due on the ade-m vehicle, odometer statenw tt The hqurss in this order are predicated upon actual correct I aprea tc ic' pt deln`<rj Buyers ti natu.E; kldresa 20 S.S NO Phone THIS ORDER ?SNOT VAUD UNLESS =NEDAND ACCEPTED FsY DEALER Salesman _ ad by AUTO LINE 14300 REV, 10/01 See reverse aide for additional terms and conditions- DEALER'S SIGNATURE " 4. {".1•4 7A. . r.w'-4', t • t it 74044-7,..--,,. 4'..• • 4.• .,',' • 0 , • t: . • 14 .44 rlor. 44 r4-4 .104 v.*. kr,. -•■• r OA .,1114..4,7,..,r0 ,* .1 t • 41,. • r4•1240,4, 'air • • .! ;41..-r.4' 411 • r •..• I • • 0. 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WO.. 444 4444 41,;• f44H1 ma• .44.01.4340A i•M 140.; fl• ft::•17/ ;Ir kr.41 •4<•t,r1 041.1rI/i *'I4 •0•••14• 141,-", see 4,441r.04,4 alyif 4 artqfl"1 mgr.= wt. 44unt oh. 4.*.re.-svintier4- NI LAO ILO. oh el Au," n4L„ *or "mu .••••,11e4i *p irs./...-•041 IV 411 aboldIrts t* Imp* Pi 941401., 000 S A III I C A *III l I C I r a i k i d e e OP 4 4 1 1 1 1 1 1 40110.044044±6 I N * 11414* I 0:46 OSCAN 401ftit wriaarit4 tes.rry• owt.r."..47z %Loll y• tr!A, :4•0 00.40•400 0,0 444 Ii410 oby ism 40 PcsimAsetiti 0•441.1.4 " EXHIBIT B Date 11/29/2013 Cindy Emondi 8612 Peiper Rd Shippensburg Pa 17257 360-2871 Forest Hill Auto 285 Winterstown Rd Red Lion, PA 17356 (717) 246-3434 Year Make 2006 BMW Invoice # 8729 Model Mileage 325i 110,663 I , Catagoty Complaint and Repair Hrs i Labor Total i Parts Tech Total ) Heating & Air C... The customer says that the heater blows 0.5 37.50 P. jan _ cold air when the temperature is set to hot. 13 , I checked the cooling system & it was full, I ; 1 noticed that the cooling system was under pressure & the engine was running a too I high in temperature. I bled the cooling system & there was air still coming out of the bleeder, The engine has an internal leak I in the combustion chamber that is pushing air into the cooling system & that is why the heater is not working. This car will probably need an engine to repair the problem, because the engine either has a bad bead gasket or cracked head or a cracked engine block. foresthillauto@comeast net Subtotal Sales Tax (6.0%) Total 37:50 $37.50 $2.25 $39.75 EXHIBIT C Date 1/26/2013 Forest Hill Auto 285 Winterstown Rd Red Lion, PA 17356 (717) 246-3434 Invoice # 6427 Year Make Model Mileage 2006 BMW 325 1 101,655 Category Complaint and Repair His Labor Total Parts Tech ; Total Cooling system Note 1 • ' Customer states car has no heat. Found hose on engine has blown and car is low on antifreeze. Replaced hose and refilled with coolant. Pressure tested no leaks now. Car has heat but after driving heat goes away. ! Found air leaking from head gasket into coolant system. Will need extensive engine I repair to fix . Owner. will trade car . VIN# WEAVB135867T08527 1 21 • Thank you for your business. foresthillauto@comeast net 150.00 0.00 76.65 IBrian Brian 226.65 0.00 j Subtotal $226.65 Sales Tax (6.0%) $13.60 Total $240.25 EXHIBIT D Date 3/27/2014 Cindy Emondi 8612 Peiper Rd Shippensburg Pa 17257 360-2871 Category Forest Hill Auto 285 Winterstown Rd Red Lion, PA 17356 (717) 246-3434 Invoice # 9550 Year Make Model Mileage 2006 BMW 325i 110,663 Complaint and and Repair I Hrs I Labor Total Parts I . Tech - - 0 . ; Jan i Total 00 o.00 P i Engine Mechanical The customer requested an estimate to install a new engine in her car. The items below will be needed. Factory BMW engine (short Block ) with new aluminum bolt sets for the engine and transmission. $11,870.27 ÷ Tax New engine coolant $24.00 + Tax New oil & filter. $90.00 + Tax Labor 45 hours @ $75.00 per hour $3375.00 + Tax The total cost including Tax is $16,186.38 Thank you for your business. foresthillauto*onwast.net Subtotal $0.00 Sales Tax (6.0%) $0.00 Total $0.00 CINDY EMONDI, : COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY v. T & G Car Sales, LLC Defendant • • : NO. : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Amy M. Brady, Paralegal, at Scaringi & Scaringi, P.C., hereby certify that I have this date served the foregoing Amended Complaint via facsimile only to (717) 249 -7334: E. Lee Stinnett, II Salzmann Hughes, P.C. Isaac P. Wakefield Salzmann Hughes, P.C. Amy M. rady, alegal to Marc A. Scaringi, Esquire Salzmann Hughes,P.C. j t' L T H By:E.Lee Stinnett II Attorney I.D.No.307128 tt tr,1 � ` 2: f, Isaac P.Wakefieldig Attorney I.D.No.311909 9' 105 North Front Street,Suite 205 CUMBERLAND c O U, T' Harrisburg,PA 17101 PENNSYLVANIA Telephone:717-234-6700 Fax:717-249-7334 Attorneys for Defendant Cindy Emondi, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY : PENNSYLVANIA v. : NO. 14-960 CIVIL T & G Car Sales, LLC, Defendant : Civil Action—Equity To: Casey L. Sipe, Esq. Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Answer to Amended Complaint with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, SALZMANN H Ai. ES, P.C. Dated: W29/1/ By: . Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney ID: 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 (717) 234-6700 Attorneys for Defendant Salzmann Hughes,P.C. BY:E.Lee Stinnett H Attorney I.D.No,307128 Isaac P.Wakefield Attorney 1.D.No.311909 105 North Front Street,Suite 205 Harrisburg,PA 17101 Telephone:717-234-6700 Fax:717-249-7334 Attorneys for Defendant Cindy Emondi, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY : PENNSYLVANIA v. : NO. 14-960 CIVIL T & G Car Sales, LLC, Defendant : Civil Action—Equity DEFENDANT'S ANSWER TO PLAINTIFF'S AMENDED COMPLAINT Defendant T & G Car Sales, LLC ("T&G"), by and through its counsel, Salzmann Hughes, P.C., files this Answer to Plaintiff Cindy Emondi's ("Emondi")Amended Complaint. 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. It is admitted only that Mr. Albright assured Plaintiff that he understood that the vehicle was in good condition, with no issues, and would provide her with reliable transportation to and from work. To the extent paragraph 4 of the Amended Complaint implies that Mr. Albright made a misrepresentation, the same is specifically denied and strict proof thereof is demanded at trial. 5. Admitted. By way of further response, the Vehicle Order attached as Exhibit "A" to the Amended Complaint is a written document that speaks for itself. 6. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. 7. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. 8. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. By way of further response, the Invoice attached as Exhibit "B" to the Amended Complaint is a written document that speaks for itself. 9. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. By way of further response, the Invoice attached as Exhibit "C" to the Amended Complaint is a written document that speaks for itself. Moreover, Plaintiff purchased the vehicle with 102,024 miles on the odometer and under no circumstance would Plaintiff be entitled to a"new engine." 10. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. 11. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. By way of further response, the Invoice attached as Exhibit "D" to the Amended Complaint is a written document that speaks for itself. 2 12. Denied. The invoice is a written document that speaks for itself. Paragraph 12 is specifically denied to the extent it attempts to characterize the written document. Strict proof thereof is demanded at the time of trial. 13. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. 14. Admitted in part and denied in part. It is admitted only that Defendant purchased the vehicle. It is specifically denied that Defendant was aware of any"significant engine issues" prior to sale of the vehicle. Strict proof thereof is demanded at the time of trial. 15. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. 16. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. Count I: Violation of Pennsylvania Unfair Trade Practices and Consumer Protection Laws 73 P.S. § 201-2(4)(vii) & (xxi) 17. Defendant's responses to paragraphs 1 through 16 above are incorporated herein by reference as though set forth at length here. 18. Denied. It is specifically denied that the vehicle's engine block was cracked at the time Defendant purchased the vehicle. Strict proof thereof is demanded at the time of trial. 19. Admitted in part and denied in part. It is admitted only that Mr. Albright assured Plaintiff that he understood that the vehicle was in good condition and would provide her with reliable transportation to and from work. To the extent paragraph 19 of the Amended Complaint 3 implies that Mr. Albright made a misrepresentation, the same is specifically denied and strict proof thereof is demanded at trial. 20. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 21. Denied. It is specifically denied that Defendant was aware of any significant engine problems with the vehicle prior to the sale to Plaintiff. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 22. Denied. It is specifically denied that Defendant was aware of any significant engine problems with the vehicle prior to the sale to Plaintiff. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 23. Denied. It is specifically denied that Defendant was aware of any significant engine problems with the vehicle prior to the sale to Plaintiff and that Defendant assured Plaintiff that the vehicle was in good working condition. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 24. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. By way of further response, it is specifically denied that the vehicle has significant engine issues, that Defendant 4 was aware of any significant engine issues, and that Defendant failed to disclose the same prior to sale of the vehicle to Plaintiff. Strict proof thereof is demanded at the time of trial. 25. Denied. It is specifically denied that Defendant knew that Plaintiff would rely on any assertions and that Defendant made any assertions. Strict proof thereof is demanded at the time of trial. 26. Paragraph 26 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 27. Paragraph 27 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 28. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. 29. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. 30. Paragraph 30 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 31. Paragraph 31 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 5 Count II: Fraudulent Misrepresentation 32. Defendant's responses to paragraphs 1 through 31 above are incorporated herein by reference as though set forth at length here. 33. Denied. It is specifically denied that the vehicle's engine block was cracked at the time Defendant purchased the vehicle. Strict proof thereof is demanded at the time of trial. 34. Admitted in part and denied in part. It is admitted only that Mr. Albright assured Plaintiff that he understood that the vehicle was in good condition and would provide her with reliable transportation to and from work. To the extent paragraph 34 of the Amended Complaint implies that Mr. Albright made a misrepresentation, the same is specifically denied and strict proof thereof is demanded at trial. 35. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 36. Denied. It is specifically denied that Defendant was aware of any significant engine problems with the vehicle prior to the sale to Plaintiff. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 37. Denied. It is specifically denied that Defendant was aware of any significant engine problems with the vehicle prior to the sale to Plaintiff Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 6 • 38. Denied. It is specifically denied that Defendant was aware of any significant engine problems with the vehicle prior to the sale to Plaintiff and that Defendant assured Plaintiff that the vehicle was in good working condition. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 39. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. By way of further response, it is specifically denied that the vehicle has significant engine issues, that Defendant was aware of any significant engine issues, and that Defendant failed to disclose the same prior to sale of the vehicle to Plaintiff. Strict proof thereof is demanded at the time of trial. 40. Denied. It is specifically denied that Defendant knew that Plaintiff would rely on any assertions and that Defendant made any assertions. Strict proof thereof is demanded at the time of trial. 41. Paragraph 41 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 42. Paragraph 42 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 43. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle had significant engine issues. 7 • 44. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. Count III: Fraudulent Concealment 45. Defendant's responses to paragraphs 1 through 44 above are incorporated herein by reference as though set forth at length here. 46. Denied. It is specifically denied that the vehicle's engine block was cracked at the time Defendant purchased the vehicle. Strict proof thereof is demanded at the time of trial. 47. Admitted in part and denied in part. It is admitted only that Mr. Albright assured Plaintiff that he understood that the vehicle was in good condition and would provide her with reliable transportation to and from work. To the extent paragraph 47 of the Amended Complaint implies that Mr. Albright made a misrepresentation, the same is specifically denied and strict proof thereof is demanded at trial. 48. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 49. Denied. It is specifically denied that Defendant was aware of any significant engine problems with the vehicle prior to the sale to Plaintiff. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 50. Denied. It is specifically denied that Defendant was aware of any significant engine problems with the vehicle prior to the sale to Plaintiff. Strict proof thereof is demanded at 8 • the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 51. Denied. It is specifically denied that Defendant was aware of any significant engine problems with the vehicle prior to the sale to Plaintiff and that Defendant assured Plaintiff that the vehicle was in good working condition. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 52. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. By way of further response, it is specifically denied that the vehicle has significant engine issues, that Defendant was aware of any significant engine issues, and that Defendant failed to disclose the same prior to sale of the vehicle to Plaintiff. Strict proof thereof is demanded at the time of trial. 53. Denied. It is specifically denied that Defendant knew that Plaintiff would rely on any assertions and that Defendant made any assertions. Strict proof thereof is demanded at the time of trial. 54. Paragraph 54 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 55. Paragraph 55 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 9 56. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. 57. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. Count IV: Breach of Implied Warranty of Merchantability 58. Defendant's responses to paragraphs 1 through 57 above are incorporated herein by reference as though set forth at length here. 59. Paragraph 59 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 60. Paragraph 60 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 61. Paragraph 61 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 62. Denied. It is specifically denied that the vehicle's engine block was cracked at the time Defendant purchased the vehicle. Strict proof thereof is demanded at the time of trial. 63. Admitted. 10 64. Paragraph 64 contains a conclusion of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 65. Denied. It is specifically denied that Defendant sold Plaintiff a vehicle that it knew had significant engine problems. Strict proof thereof is demanded at the time of trial. By way of further response, Defendant understood the vehicle to be in good working condition when he sold it to Plaintiff. 66. Paragraph 66 contains a conclusion of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 67. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. Count V: Violation of Automotive Industry Trade Practice Laws 37 Pa. Code 4 301.2(5)(ii) & (6) 68. Defendant's responses to paragraphs 1 through 67 above are incorporated herein by reference as though set forth at length here. 69. Denied. It is specifically denied that the vehicle's engine block was cracked at the time Defendant purchased the vehicle. Strict proof thereof is demanded at the time of trial. 70. Denied. It is specifically denied that Defendant knew or should have known of the alleged significant engine problems with the vehicle. Strict proof thereof is demanded at the time of trial. 71. Admitted in part and denied in part. It is admitted only that Mr. Albright assured Plaintiff that he understood that the vehicle was in good condition and would provide her with 11 reliable transportation to and from work. To the extent paragraph 71 of the Amended Complaint implies that Mr. Albright made a misrepresentation, the same is specifically denied and strict proof thereof is demanded at trial. 72. Denied. It is specifically denied that the vehicle's engine block was cracked. By way of further response, it is specifically denied that Defendant failed to disclose the same to Plaintiff prior to the sale. Strict proof thereof is demanded at the time of trial. 73. Denied. It is specifically denied that Defendant did not possess the requisite information to represent that the vehicle was in good condition. Strict proof thereof is demanded at the time of trial. By way of further response, Defendant understood the vehicle to be in good working condition at the time of sale and it is specifically denied that Defendant made any representations to Plaintiff regarding the condition of the vehicle's engine block. 74. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. Strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that the vehicle has significant engine issues. 75. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the matter asserted. By way of further response, it is specifically denied that the vehicle has significant engine issues, that Defendant was aware of any significant engine issues, and that Defendant failed to disclose the same prior to sale of the vehicle to Plaintiff. Strict proof thereof is demanded at the time of trial. 76. Denied. It is specifically denied that Defendant knew that Plaintiff would rely on any assertions and that Defendant made any assertions. Strict proof thereof is demanded at the time of trial. 12 77. Paragraph 77 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 78. Paragraph 78 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 79. Paragraph 79 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. 80. Paragraph 80 contains conclusions of law to which no response is required. To the extent a response is required, the averments are specifically denied. Strict proof thereof is demanded at the time of trial. New Matter 81. Paragraphs 1 through 80 of Defendant's Answer are incorporated herein by reference as if set forth at length. 82. Plaintiffs Complaint fails to state a claim upon which relief may be granted. 83. Plaintiffs Complaint is barred by the doctrine of estoppel. 84. Plaintiff's Complaint is barred by the doctrine of fraud. 85. Defendant sells automobiles and does not offer diagnostic or mechanic services. 86. Defendant permits all buyers, including Plaintiff, to have the vehicle that they intend to purchase examined by a qualified mechanic before purchasing. 87. Defendant offers extended warranties to all vehicle purchasers. 13 88. When Plaintiff purchased her vehicle, Defendant made available to her a one-year extended warranty at a cost of either $300.00 or $695.00, depending upon the desired level of coverage. 89. At the time she purchased the vehicle, Plaintiff declined to pay for either one- year extended warranty referenced in paragraph 88, above. 90. Defendant, at Plaintiffs request, agreed to provide Plaintiff with an express thirty-day 50/50 drivetrain warranty. 91. Upon information and belief, Plaintiff did not begin experiencing the alleged problems with the vehicle until eight months after she purchased the vehicle from Defendant. 92. Upon information and belief, at all times since the March 13, 2013 date of purchase, the vehicle has been in the Plaintiffs possession, care, custody, and control. 93. Defendant received no complaint from Plaintiff regarding the vehicle's condition between March 13, 2013, and November 29, 2013. 94. Plaintiff never brought the vehicle to Defendant for service under the express warranty that Defendant supplied at the time of purchase. 95. Upon information and belief, Plaintiff took the vehicle to CR's Motor Car Co., Inc., located in Newville, Pennsylvania, in or around early November 2013, complaining about a problem with the vehicle's heat. 96. Upon information and belief, a CR's employee found that Plaintiff had the heat controls in the wrong configuration and adjusted them, after which the heat worked properly. 97. On November 29, 2013, Plaintiff brought the vehicle to Defendant and Defendant noted that the vehicle had accrued 8,710 miles since the March 13, 2013 date of purchase. 14 98. Upon information and belief, the vehicle's engine was fully functional as of November 29, 2013, as evidenced by the fact that Plaintiff was able to drive the vehicle to and from Defendant's place of business on that date. 99. On November 29, 2013, Plaintiff complained to Defendant about the vehicle, but refused Defendant's offer to set up an appointment to have the vehicle examined by the mechanic that Defendant uses to service its vehicles. 100. Upon information and belief, Plaintiff continued driving the vehicle after November 29, 2013. 101. Upon information and belief, any problems with the vehicle's engine are solely attributable to Plaintiff's use of the vehicle since the date of purchase, the acts or omissions of Plaintiff, or the acts or omissions of persons other than Defendant. 102. At no time did Defendant make any representations regarding what the vehicle's reliability would be more than eight months after purchase and after the vehicle accrued in excess of 8,000 additional miles. 15 WHEREFORE, Defendant, T&G Car Sales, respectfully requests this Honorable Court to enter judgment in favor of Defendant and against Plaintiff. Respectfully submitted, SALZMANN HU HES, P.C. Dated: /z±/ / By: dz._,, ,z9 E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney ID: 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 (717) 234-6700 Attorneys for Defendant 16 VERIFICATION I have read the statements made in this document and they are true and correct to the best of my knowledge,information,and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. T&G Car Sales,LLC Dated: 9/1/ By: Edward Albright,Owner 31 j., jt iy CERTIFICATE OF SERVICE I, E. Lee Stinnett II, hereby certify that I served a true and correct copy of Defendant's Preliminary Objections to Plaintiffs Complaint by first class mail,postage prepaid,this 244ay of June,2014,on the following: Casey L. Sipe, Esq. Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 ' f/e jgy717/( " E. Lee Stinnett II Casey L. Sipe, Esq. Attorney ID No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com Attorney for Plaintiff HP PRC T !il!iiU IL, JUL 1 1 PH 1: ! CUMBERLAND COUNTY PENNSYLVANIA CINDY EMONDI, Plaintiff v. T & G Car Sales, LLC Defendant : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY : NO. 14-960CIVIL : CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO NEW MATTER 81. Paragraphs 1-80 of Plaintiffs Complaint are incorporated by reference as though fully stated herein. 82. Paragraph 82 is a conclusion of law to which no response is required. To the extent deemed to be an allegation of fact, it is denied that Plaintiff's Complaint failed to state a claim upon which relief may be granted. The allegation is otherwise denied based upon information and belief. 83. Paragraph 83 is a conclusion of law to which no response is required. To the extent deemed to be an allegation of fact, it is denied that Plaintiff's Complaint is barred by the doctrine of estoppel. The allegation is otherwise denied based upon information and belief. J 84. Paragraph 84 is a conclusion of law to which no response is required. To the extent deemed to be an allegation of fact, it is denied that Plaintiff's Complaint is barred by the doctrine of fraud. The allegation is otherwise denied based upon information and belief. 85. After reasonable investigation, Plaintiff is without sufficient knowledge to form a belief as to the specific services offered by Defendant. Same is therefore denied, with strict proof demanded at trial. 86. Admitted. 87. Admitted in part, denied in part. It is admitted that Defendant offered Plaintiff an extended warranty on her vehicle purchase. After reasonable investigation, Plaintiff is without sufficient knowledge to form a belief as to whether Defendant offers extended warranties to all vehicle purchasers, and as such is therefore denied with strict proof demanded at trial. 88. Admitted. 89. Admitted. 90. Admitted. 91. Admitted. 92. Admitted. 93. Admitted. 94. Admitted. 95. Admitted. 96. Admitted. 97. Admitted in part, denied in part. Admitted that a CR's employee adjusted the heat controls on Plaintiffs vehicle. Denied that the heat worked properly after the CR's employee adjusted the heat controls. By way of further answer, after the CR's employee adjusted the heat controls, the heat would work for approximately twenty minutes and discontinue working again. 98. Denied. By way of further answer, in the weeks leading up to November 29, 2013, Plaintiff was beginning to experience the symptoms of a cracked head gasket, and very soon thereafter the car would not start. The fact that an engine is able to run and propel a car does not render it "fully functional." 99. Denied. By way of further answer, Plaintiff requested that Defendant repair the issues she was having with the vehicle's engine, but Defendant refused. On November 29, 2013, Plaintiff informed Edward Albright of the cracked head gasket diagnosis but he refused to assist Plaintiff in any way. 100. Admitted. By way of further answer, Plaintiff drove the vehicle until the first week of December 2013, at which point it would no longer run. 101. Denied. By way of further answer, the Forest Hill Auto records establish that the vehicle had a cracked head gasket prior to the date Defendant purchased the vehicle. 102. Denied. Defendant, by and through Edward Albright, specifically told Plaintiff that the vehicle was in good condition and would provide reliable transportation to and from work. As such, the vehicle should not have possessed any major problems, like the vehicle's cracked head gasket, on the date Plaintiff purchased the vehicle. WHEREFORE, Plaintiff requests this Honorable Court enter judgment in Plaintiffs favor. Resp e tfullsubmitted, C -ase L. Sipe, Es Attorney I.D. No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com 1rom:SU PRESIDENT'S OFFICE 717 477 4005 07/08/2014 #874 P.0021002 I, Cindy Emondi, verify that the statements made in the foregoing Answer to New Matter are true and correct I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: k -46 Cindy Emo CINDY EMONDI, : COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY v. T & G Car Sales, LLC Defendant : CIVIL ACTION - LAW : NO. 14-960 CIVIL CERTIFICATE OF SERVICE I, Casey L. Sipe, at Scaringi & Scaringi, P.C., hereby certify that I have this date served the foregoing Answer to New Matter via U.S. Mail to: Date: 7/yrf E. Lee Stinnett, II Isaac P. Wakefield Salzmann Hughes, P.C. 105 N. Front Street, Suite 205 Harrisburg, PA 17101 Casey L. Sipe, Esq. Attorney ID No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com Attorney for Plaintiff qJ _lig l(i� J" C:),i IU�L i"�Lf-i6'r4 lrU n PENNSYLVANIA CINDY EMONDI, Plaintiff v. T & G Car Sales, LLC Defendant : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY • • : NO. 14-960 CIVIL • • : CIVIL ACTION - LAW • • PLAINTIFF'S ANSWER TO NEW MATTER 81. Paragraphs 1-80 of Plaintiffs Complaint are incorporated by reference as though fully stated herein. 82. Paragraph 82 is a conclusion of law to which no response is required. To the extent deemed to be an allegation of fact, it is denied that Plaintiffs Complaint failed to state a claim upon which relief may be granted. The allegation is otherwise denied based upon information and belief. 83. Paragraph 83 is a conclusion of law to which no response is required. To the extent deemed to be an allegation of fact, it is denied that Plaintiffs Complaint is barred by the doctrine of estoppel. The allegation is otherwise denied based upon information and belief. •� 84. Paragraph 84 is a conclusion of law to which no response is required. To the extent deemed to be an allegation of fact, it is denied that Plaintiffs Complaint is barred by the doctrine of fraud. The allegation is otherwise denied based upon information and belief. 85. After reasonable investigation, Plaintiff is without sufficient knowledge to form a belief as to the specific services offered by Defendant. Same is therefore denied, with strict proof demanded at trial. 86. Admitted. 87. Admitted in part, denied in part. It is admitted that Defendant offered Plaintiff an extended warranty on her vehicle purchase. After reasonable investigation, Plaintiff is without sufficient knowledge to form a belief as to whether Defendant offers extended warranties to all vehicle purchasers, and as such is therefore denied with strict proof demanded at trial. 88. Admitted. 89. Admitted. 90. Admitted. 91. Admitted. 92. Admitted. 93. Admitted. 94. Admitted. 95. Admitted. 96. Admitted. 97. Admitted in part, denied in part. Admitted that a CR's employee adjusted the heat controls on Plaintiffs vehicle. Denied that the heat worked properly after the CR's employee adjusted the heat controls. By way of further answer, after the CR's employee adjusted the heat controls, the heat would work for approximately twenty minutes and discontinue working again. 98. Denied. By way of further answer, in the weeks leading up to November 29, 2013, Plaintiff was beginning to experience the symptoms of a cracked head gasket, and very soon thereafter the car would not start. The fact that an engine is able to run and propel a car does not render it "fully functional." 99. Denied. By way of further answer, Plaintiff requested that Defendant repair the issues she was having with the vehicle's engine, but Defendant refused. On November 29, 2013, Plaintiff informed Edward Albright of the cracked head gasket diagnosis but he refused to assist Plaintiff in any way. 100. Admitted. By way of further answer, Plaintiff drove the vehicle until the first week of December 2013, at which point it would no longer run. 101. Denied. By way of further answer, the Forest Hill Auto records establish that the vehicle had a cracked head gasket prior to the date Defendant purchased the vehicle. 102. Denied. Defendant, by and through Edward Albright, specifically told Plaintiff that the vehicle was in good condition and would provide reliable transportation to and from work. As such, the vehicle should not have possessed any major problems, like the vehicle's cracked head gasket, on the date Plaintiff purchased the vehicle. WHEREFORE, Plaintiff requests this Honorable Court enter judgment in Plaintiffs favor. Resp tful se y submi L. Sipe, Esq. Attorney I.D. No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com • From:SU PRESIDENT'S OFFICE 717 477 4005 07108/2014 11:13 #874 P.002/002 VERIFICATION I, Cindy Emondi, verify that the statements made in the foregoing Answer to New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: t _ \ LI CINDY EMONDI, Plaintiff v. T & G Car Sales, LLC : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY : NO. 14-960 CIVIL Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Casey L. Sipe, at Scaringi & Scaringi, P.C., hereby certify that I have this date served the foregoing Answer to New Matter via U.S. Mail to: Date: E. Lee Stinnett, II Isaac P. Wakefield Salzmann Hughes, P.C. 105 N. Front Street, Suite 205 Harrisburg, PA 17101 Casey L. Sipe, Esq. Attorney ID No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com Attorney for Plaintiff la-OFF/Cr: Cr THEPRO THC,),NbTAR fi OCT - AN I I : 30 CUMPERLAND COUNTY PENNSYLVANIA CINDY EMONDI, Plaintiff V. T & G Car Sales, LLC Defendant : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY : NO. 14-960 CIVIL : CIVIL ACTION - LAW MOTION FOR SUMMARY JUDGMENT AND NOW, Plaintiff, Cindy Emondi, by and through her counsel, Casey L. Sipe and Scaringi & Scaringi, P.C., move this Honorable Court for entry of summary judgment in her favor and, in support, avers as follows: 1 On April 30, 2014, Plaintiff filed an Amended Complaint, wherein she raised five causes of action. 2. In Count I, Plaintiff alleged that Defendant violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq, and specifically that Defendant engaged in an "unfair or deceptive act or practice" by "representing that goods ... are of a particular standard, quality or grade ... if they are of another." 73 P.S. § 201-2(4)(vii). 3. In Count V, Plaintiff further alleged that Defendant engaged in "unfair or deceptive acts or practices," as defined by the Automotive Industry Trade Practices Law, 37 Pa. Code § 301.1, et seq. Specifically, Plaintiff alleged that Defendant offered a vehicle for sale, representing it to be roadworthy, and failed to disclose that the vehicle had a cracked engine block or head, and that Defendant made a representation during the sales presentation that the salesperson did not have sufficient information upon which a reasonable belief in the truth of the representation could be based. 37 Pa. Code §§ 301.2(5)(ii) & (6). 4. Defendant filed an Answer with New Matter to Plaintiff's Amended Complaint on June 24, 2014. 5. In Paragraphs 19 and 71 of Defendant's Answer, Defendant admitted that "Mr. Albright assured Plaintiff that he understood the vehicle was in good condition and would provide her with reliable transportation to and from work." 6. On or about June 30, 2014, Plaintiff served Interrogatories, Request for Production of Documents and Request for Admissions on Defendant. 7. In response to Plaintiffs Interrogatory 17, Defendant states that it has no standard practice when receiving newly purchased vehicles, except to wash and detail the vehicles. (Attached hereto as Exhibit A is a true and correct copy of Defendant's Answers to Plaintiffs Interrogatories). 8. In response to Plaintiffs Interrogatory 18, Defendant states that it performs no mechanical work or detailed inspections of vehicles prior to sale. (See Exhibit A). 9. In response to Plaintiffs Request for Admissions No. 1, Defendant admits that Edward Albright represented to Plaintiff that he understood and believed that the vehicle was in good condition, with no issues, and would provide Plaintiff with reliable transportation to and from work. (Attached hereto as Exhibit B is a true and correct copy of Plaintiff's Request for Admissions; attached hereto as Exhibit C is a true and correct copy of Defendant's Answers to Plaintiff's Requests for Admissions). 10. In response to Plaintiff's Requests for Admisswns Nos. 2-8, Defendant admits that a vehicle with the Vehicle Identification Number WBAVB12586PT08527 was inspected prior to Defendant purchasing the vehicle for a problem with the heat and the diagnosis of "air leaking from the head gasket in to the coolant system" would require "extensive engine repair, and as a result, the owner chose to trade the vehicle in. (See Exhibit C). 11. In response to Plaintiff's Requests for Admissions Nos. 9-13, Defendant admits that Plaintiff's vehicle, with the Vehicle Identification Number WBAVB12586PT08527, was experiencing difficulties with the heat and was diagnosed as having an internal leak pushing air into the coolant system, requiring a new engine. (See Exhibit C). 12. In response to Plaintiffs Request for Admissions No. 14, Defendant admits that the vehicle referenced in Requests for Admissions Nos. 2-8 is the same vehicle as Plaintiffs vehicle. (See Exhibit C). 13. In Defendant's Answer with New Matter, Interrogatories and Answers to Requests for Admissions, Defendant admits that Edward Albright represented the vehicle was in good condition, and then further admits that Plaintiff's vehicle had a problem with air leaking into the coolant system both before and after Plaintiff purchased the vehicle. 14. Under the Unfair Trade Practices and Consumer Protection Law it is an unfair or deceptive trade practice to represent goods to be of a particular standard, quality or grade when they are of another. 73 P.S. § 201-2(4)(vii). 15. Defendant admits that it represented that the vehicle in question was in good condition, when it was not in good condition and, specifically, possessed a significant engine defect. 16. As a result, there is no genuine issue of material fact that Defendant represented that the vehicle was of a particular standard, quality or grade, when it was of another. 17. Under the Automotive Industry Practices Act, it is an unfair or deceptive trade practice to offer a car for sale, representing that it is roadworthy, and fail to disclose that it has a cracked engine block or head. 37 Pa. Code §§ 301.2(5)(ii). 18. Defendant admits that it placed the vehicle for sale, thereby representing that it is roadworthy, and did not disclose that the vehicle had a cracked engine block or head. 19. As a result, there is no genuine issue of material fact that Defendant sold Plaintiff a vehicle that had a cracked engine block or head. 20. Further, under the Automobile Industry Practices Act, it is an unfair or deceptive trade practice for a salesman to make a representation during the sales presentation that the salesperson did not have sufficient information upon which a reasonable belief in the truth of the representation could be based. 37 Pa. Code §§ 301.2(6). 21. Defendant admits that it represented that the vehicle was in good condition during the sales presentation to Plaintiff, yet it did not undertake any efforts to inspect or review the mechanical soundness of the vehicle. 22. As a result, there is no genuine issue of material fact that Defendant represented that the vehicle was in good condition during the sales presentation but did not have sufficient information upon which a reasonable belief in the truth could be based. Respectfully submitted, asey L. Sipe, Esq. Attorney I.D. No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com CINDY EMONDI, : COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY v. T & G Car Sales, LLC Defendant : NO. 14-960 CIVIL : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Sherry A. Clark, at Scaringi & Scaringi, P.C., hereby certify that I have this date served the foregoing Plaintiffs Motion for Summary Judgment via U.S.. Mail to: Date: /0/I Ii'I E. Lee Stinnett, II Isaac P. Wakefield Salzmann Hughes, P.C. 105 N. Front Street, Suite 205 Harrisburg, PA 17101 EXHIBIT A E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney I.D. No. 311909 SALZMANN HUGHES, P.C. 105 N. Front St., Ste. 205 Harrisburg, PA 17101 (717) 234-6700 Cindy Emondi, v. T & G Car Sales, LLC, Plaintiff Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA : NO. 14-960 CIVIL : Civil Action — Equity TO: Casey L. Sipe, Esq. Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 DEFENDANT'S REPONSE TO PLAINTIFF'S FIRST SET OF INTERROGATORIES TO DEFENDANT T&G Car Sales, LLC ("Defendant") hereby responds to Cindy Emondi's ("Plaintiffs") First Set of Interrogatories to Defendant. GENERAL OBJECTIONS 1. Defendant objects to these interrogatories, and each part thereof, to the extent that they purport to impose any obligation to provide responses beyond that required by Rule 4006 of the Pennsylvania Rules of Civil Procedure. 2. Defendant objects to these interrogatories, and each part thereof, to the extent that they seek information that can be derived from business records, and other documents, and the burden of deriving or ascertaining the answer would be substantially the same for Defendant as for Plaintiff. 3 Defendant objects to each and every interrogatory which asks for information that is not within the Plaintiff's knowledge, information or control. 4. Defendant objects to these interrogatories, and each part thereof, to the extent that they are vague, ambiguous, overbroad and/or responding thereto would be oppressive and unduly burdensome. 5. Defendant objects to any and all interrogatories to the extent that they seek information protected from disclosure by the attorney/client, attorney work product, or any other applicable privilege. 6. Defendant objects to any and all interrogatories to the extent that they seek disclosure of mental impressions, conclusions, opinions, legal research and legal theories of counsel. 7. Defendant objects generally to the instructions and definitions contained in the interrogatories as imposing upon Defendant obligations inconsistent with the Pennsylvania Rules of Civil Procedure, as being overbroad, unduly burdensome and oppressive. 8. Defendant objects to these interrogatories, and each part thereof, to the extent that they seek to impose obligations on Defendant that are inconsistent with the obligations imposed by the Pennsylvania Rules of Civil Procedure. 9. Defendant objects to these interrogatories, and each part thereof, to the extent that they seek information or documents not relevant to the time period and issues involved in this litigation, and are not likely to lead to the discovery of relevant, admissible evidence. 10. Defendant objects to these interrogatories, and each part thereof, to the extent that they are duplicative. 11. Any failure by Defendant to assert a particular objection to any of the following interrogatories shall not constitute a waiver of said objection. 12. Defendant objects to these interrogatories to the extent that they purport to impose an obligation to supplement responses beyond that required by Rule 4007.4 of the Pennsylvania Rules of Civil Procedure. INTERROGATORIES 1. Identify all person(s) responding to, or assisting in any way in the responses to these discovery requests, including persons supplying documents requested in Plaintiff's Request for Production of Documents. RESPONSE: Edward Albright, T&G Car Sales, LLC, 409 S. Fayette Street, Shippensburg, PA 17257. E. Lee Stinnett and Isaac P. Wakefield, Salzmann Hughes, P.C.; 105 N. Front Street, Suite 205, Harrisburg, PA 17101, counsel for Defendant. 2. For each person identified in response to Interrogatory No. 1 above, identify which specific interrogatories and/or requests for production of documents each such person responded; and identify whether the person(s) identified has/have first-hand knowledge of the facts, or whether the information for his/her response(s) were obtained even in part from records and/or other persons. If from records, identify the records; if from other persons, identify such persons. RESPONSE: Edward Albright, with the assistance of Salzmann Hughes, P.C., responded to each and every interrogatory and/or request for production of documents based on Mr. Albright's first-hand knowledge of the facts. 3. Identify if and when a litigation hold was placed on any and all information - digital or otherwise - relevant to the Plaintiffs claims against Defendant, and/or the allegations set forth in Plaintiffs Complaint. RESPONSE: The term "litigation hold" is undefined. No "litigation hold" has been placed on any information. To the extent Interrogatory No. 3 seeks to ensure that Defendant has maintained relevant records in its possession, Defendant has preserved all relevant information and documentation found to bein its possession and control. 4. Identify any person who has or may have knowledge of the facts alleged in Plaintiffs Complaint. RESPONSE: Defendant understands that the following persons have or may have knowledge of the facts alleged in the Amended Complaint: Cindy Emondi. 8612 Peiper Road Shippensburg, PA 17257 Anthony Emondi 8612 Peiper Road Shippensburg, PA 17257 Edward Albright T&G Car Sales, LLC 409 S. Fayette Street Shippensburg, PA 17257 Wende Shatzer T&G Car Sales, LLC 409 S. Fayette Street Shippensburg, PA 17257 Wyatt Shatzer T&G Car Sales, LLC 409 S. Fayette Street Shippensburg, PA 17257 Christopher Roth CR's Motor Car Co., Inc. 600 Centerville Road Newville, PA 17241 - Jan Schwartz Forest Hill Auto 285Winterstown Road Red Lion, PA 17356 Eric Thomas Thomas Automotive • 9974 Molly Pitcher Hwy. Shippensburg, PA 17257 5. Identify any and all statement(s) given by any individual concerning this legal action. RESPONSE: Objection. "Statement" is an undefined term. Accordingly, Defendant objects to the Interrogatory as overly broad and unduly burdensome because it is not limited in time, scope, or subject matter. 6. Identify any and all legal actions against Defendant within the last 10 years with regard to the quality of vehicles sold by Defendant, including (a) the county the action was filed, (b) the case number, (c) the date the complaint was filed, (d) the current status of the legal action, and (e) the disposition of the legal action. RESPONSE: Defendant objects to this request, and each part thereof, to the extent that it seeks information and/or documents not relevant to the time period and issues involved in this litigation, and is not likely to lead to the discovery of relevant, admissible evidence. Subject to the above -stated objection, Defendant supplies the following information regarding a legal action brought against Defendant within the last 10 years. Defendant has included a copy of the Magisterial District Justice Complaint and the Cumberland County Court of Common Pleas Writ of Execution in response to Plaintiffs Request for Production of Documents. - Silvia O'Haro v. T&G Car Sales, Eddie Albright, MJ -09301 -CV -0000082-2013 (filed May 31, 2013). - Writ of Execution, Silvia O'Haro v. T&G Car Sales, Eddie Albright, Case No. 2013- 5894 (C.C.P. Cumberland 2013). - Concluded by full payment of the judgment imposed. 7. Identify each and every document that Defendant will use as evidence in this matter in support of the defenses to the allegations in Plaintiffs Complaint. RESPONSE: Objection. Defendant objects to this Interrogatory as premature. Defendant has not yet identified what documents it will use as evidence in this matter to support its defenses. At this time, Defendant anticipates using the bill of sale from Plaintiff's purchase of the Vehicle as evidence in this matter. Moreover, to the extent that they are responsive to this Interrogatory, see the documents attached to Defendant's Response to Plaintiff's Request for Production of Documents. 8. Identify any other documents within Defendant's possession, custody or control that relates to the subject matter of this legal action. RESPONSE: Any documents required to be identified and or provided to Plaintiff under the Pennsylvania Rules of Civil Procedure are attached.to Defendant's Response to Plaintiffs Request for Production of Documents. The relevant documents in Defendant's possession include title and ownership information, receipts and bills of sale, and photographs related to the Vehicle that is the subject of this litigation. These documents are kept in Defendant's records and have been supplied in response to Plaintiff's Request for Production of Documents. 9. Identify any other evidence within Defendant's possession, custody or control - documentary, testimonial, oral, anecdotal or otherwise - that Defendant will use to support its defenses to the allegations in Plaintiffs Complaint. RESPONSE: Objection. Defendant objects to this Interrogatory as premature. Defendant has not yet identified all evidence that it will use in this matter to support its defenses. Defendant further objects to this interrogatory as vague, ambiguous, and overbroad. Finally, Defendant objects to this interrogatory to the extent it seeks information protected from disclosure by the attorney/client, attorney work product, or any other applicable privilege. To the extent that they are responsive to this Interrogatory, see the documents attached to Defendant's Response to Plaintiffs Request for Production of Documents. 10. Identify each person you intend to call as a non -expert witness at the trial of this legal action. RESPONSE: Objection. Defendant objects to this Interrogatory as premature. Defendant has not yet identified each person that it intends to call as non -expert witnesses at the trial of this legal action. By way of further response, at this time, Defendant anticipates calling Eddie Albright of T&G Car Sales. 11. Identify each expert you intend to call as witness at the trial of this legal action. RESPONSE: Objection. Defendant objects to this Interrogatory as premature. Defendant has not yet identified each person that it intends to call as an expert witness at the trial of this legal action. 12. Identify any book, magazine or other writing you, or any witness, intend to use or rely upon at the trial of this legal action. RESPONSE: Objection. Defendant objects to this Interrogatory as premature. Defendant has not yet identified any book, magazine, or other writing that it or its witnesses intend to use or rely upon at the trial of this legal action. 13. Identify each and every admission of a party you intend to use at the trial of this legal action. RESPONSE: Objection. Defendant objects to this Interrogatory as premature. Defendant has not yet identified what admissions of a party that it intends to use at the trial of, this legal action. 14. Identify the party from whom Defendant acquired the 2006 BMW 325i, sold to Plaintiff. RESPONSE: Koons of Owings Mills, 9610 Resisterstown Road, Owings Mills, Maryland 21117. 15. Identify the date and manner in which Defendant acquired the 2006 BMW 325i, sold to Plaintiff. RESPONSE: Defendant purchased the Vehicle at an auction held at the Gettysburg Auto Auction on February 7, 2013. A copy of the document evidencing the sale is attached to Defendant's response to Plaintiff's Request for Production of Documents. 16. Identify the amount Defendant paid for the 2006 BMW 325i, sold to Plaintiff. RESPONSE: As shown on the document reflecting the sale, the purchase price at auction was $8,300.00. 17. Identify the process Defendant utilizes to prepare a newly purchased vehicle .for sale. RESPONSE: Defendant has no standard practice other than washing and detailing the vehicles unless Defendant receives a specific request from the customer who is purchasing the vehicle. If necessary, Defendant will perform a State inspection and fluid check through Thomas Automotive. Defendant willingly permits prospective buyers .to have any vehicle examined by a qualified mechanic of the buyer's choosing prior to sale. 18. Identify the party Defendant utilizes to inspect or review newly purchased vehicles prior to sale. RESPONSE: As stated, Defendant performs no mechanical work or detailed inspections of vehicles prior to sale, but allows prospective buyers to have a vehicle examined by a qualified mechanic of the buyer's choosing. As needed, Defendant will have Thomas Automotive perform State inspections or mechanical work under certain circumstances. Defendant also occasionally sends vehicles to Rock's Automotive, 3548 Orrstown Road, Orrstown, Pennsylvania 17244. 19. Identify any and all problems, issues, or concerns Defendant knew about when purchasing the 2006 BMW 325i, sold to Plaintiff. RESPONSE: At the time Defendant purchased the 2006 BMW 325i, Defendant was not aware of any problems, issues, or concerns with the vehicle. As specified on the sale documentation from the Gettysburg Auto Auction, the vehicle was purchased in "Sound" condition. 20. Identify any and all problems, issues or concerns Defendant discovered after purchasing the 2006 BMW 325i, sold to Plaintiff. RESPONSE: Defendant did not discover any problems, issues, or concerns with the 2006 BMW 325i between the date that it purchased the Vehicle and that date that it sold the vehicle to Plaintiff. 21. Identify any and all inspections, repairs, tune-ups or other work performed on the 2006 BMW 325i prior to the date Defendant sold the vehicle to Plaintiff. With regard to each repair, tune-up or other work, identify: (a) the party conducting the repair, tune-up or other work; (b) the date the repair, tune-up or other work was performed; (c) the problem diagnosed, (d) the solution used to fix the problem; (e) the success or failure of the repair, tune-up or other work; and (f) the cost of the repair, tune-up or other work. RESPONSE: Defendant has no records of any inspections, repairs, tune-ups, or other work performed on the Vehicle at any date prior to the date that Defendant sold the Vehicle to Plaintiff. All relevant records in Defendant's possession related to the Vehicle in question have been produced in response to.Plaintiff's Request for Production of Documents. 22. Identify each of Defendant's employees involved in the purchase, review, inspection, or in any other aspect with the 2006 BMW 325i, sold to Plaintiff. With regard to each employee, identify: (a) the employee's name; (b) the number of years the employee has worked for Defendant; (c) the employee's job title; (d) the employee's job duties; and (e) the number of years of experience the employee has in those job duties. RESPONSE: Eddie Albright Owner of T&G Participates in all business operations from purchase to resale of vehicles. Experience — from 1988 to the present. Wende Shatzer T&G Car Sales, LLC Office Manager/Salesperson Participates in various day-to-day activities of T&G Car Sales including management, sales, processing of paperwork, and customer service. Experience — From 1998 to the present. 23. Identify any person, not included in the answer to Interrogatory 23, involved in the purchase, review, inspection, or in any other aspect with the 2006 BMW 325i, sold to Plaintiff. With regard to each person, identify: (a) the person's name; (b) the number of years the person has provided services to Defendant; (c) the person's job title; (d) the duties performed for Defendant; and (e) the number of years of experience the person has in those duties. RESPONSE: Defendant does not possess information responsive to this inquiry. To the extent that they were involved or have information regarding the matter, Defendant refers Plaintiff to those persons identified in response to Interrogatory No. 4, above. 24. Identify the specific statements Defendant's representatives made to Plaintiff regarding the vehicle or the condition of the vehicle. With regard to each statement, identify: (a) the person making the statement; (b) the date the statement was made; (c) the location where the statement was made; and (d) the knowledge or information upon which the statement was based. RESPONSE:_ Defendant cannot recall the specific language used in any statements that Defendant's representatives made to Plaintiff regarding the Vehicle's condition. Accordingly, Defendant cannot provide direct quotations of any statements made by its representatives. Defendant recalls, however, that Eddie Albright explained that the Vehicle was in good condition to the best of his knowledge and would supply Plaintiff with suitable transportation to and from work. Moreover, Defendant recalls that Wende Shatzer discussed with Plaintiff the extended warranties offered by Defendant, and upon Plaintiff's refusal to pay for said warranties, Ms.. Shatzer, together with Mr. Albright, negotiated a thirty -day 50/50 warranty to which Plaintiff agreed. Date: By; SALZMANN HUGHES, P.C. ee Stinnett Attorney I.D. No. 307128 Isaac P. Wakefield Attorney I.D. 311909 105 N. Front Street, Suite 205 Harrisburg, PA 17101 (717) 234-6700 Attorneys for Defendant Casey L. Sipe, Esq. Attorney ID No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com Attorney for Plaintiff CINDY EMONDI, : COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY • • v. : NO. 14-960 CIVIL • T & G CarSales,LLC Defendant : CIVIL ACTION - LAW • • TO: E. Lee Stinnett Isaac Wakefield 105 North Front Street, Suite 205 Harrisburg, PA 17101 PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS You are directed to file an answer to these requests, in compliance with Pennsylvania Rule of Civil Procedure 4014(b) within thirty days after service of these requests. (ollofiq Date SCARINGI & SCARINGI, P.C. CL. Sipe, Esquire Attorney I.D. No. 208118 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 717.657.7770 717.657.7797 (fax) casey@scaringilaw.com Attorney for Plaintiff REQUESTS FOR ADMISSIONS Pursuant to Pennsylvania Rule of Civil Procedure 4014, you are hereby requested to admit, for the purposes of this action only: 1. Edward Albright represented to Plaintiff that the 2006 BMW 325i was in good condition, with no issues, and would provider Plaintiff with reliable transportation to and from work. 2. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, was inspected by Forest Hill Auto. 3. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number. WBAVB13586PT08527, was inspected on January 26, 2013. 4. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, was inspected on a date prior to Defendant purchasing the vehicle. 5. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, was experiencing problems with the heat. 6. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, was diagnosed with "air leaking from head gasket into coolant system." 7. • The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, would require "extensive engine repair" to fix the vehicle's problem. 8. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, would be traded in, rather than fixed. 9. The attached Exhibit B indicates that Plaintiffs 2006 BMW 325i, purchased from Defendant, was inspected by Forest Hill Auto on November 29, 2013. 10. The attached Exhibit B indicates that Plaintiff's 2006 BMW 325i, purchased from Defendant, was experiencing problems with the heat. 11. The attached Exhibit B indicates that Plaintiffs 2006 BMW 325i,. purchased from Defendant, had an internal leak pushing air into the coolant system. 12. The attached Exhibit B indicates that heater problems with Plaintiffs 2006 BMW 325i, purchased from Defendant, were the result of the internal leak pushing air into the coolant system. 13. The attached Exhibit B indicates that Plaintiff's 2006 BMW 325i, purchased from Defendant, will require an engine to repair the problem due to a bad head gasket, cracked head or cracked engine block. 14. The vehicle referenced in Exhibit A; with the Vehicle Identification Number WBAVB13586PT08527, has the same Vehicle Identification Number as Defendant's 2006 BMW 325i purchased from Defendant. 15. The vehicle referenced in Exhibit A and Plaintiffs vehicle, referenced in Exhibit B, are the same vehicle. CINDY EMONDI, : COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY v. T&G Car Sales, LLC Defendant : CIVIL ACTION - LAW : NO. 14-960 CIVIL CERTIFICATE OF SERVICE I, Casey L. Sipe, at Scaringi & Scaringi, P.C., hereby certify that I have this date served the foregoing Plaintiff's First Request for Admissions via U.S. Mail to: Date: E. Lee Stinnett, II Isaac P. Wakefield Salzmann Hughes, P.C. 105 N. Front Street, Suite 205 Harrisburg, PA 17101 EXHIBIT C E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney I.D. No. 311909 SALZMANN HUGHES, P.C. 105 N. Front St., Ste. 205 Harrisburg, PA 17101 (717)234-6700 Cindy Emondi, v. T & G Car Sales, LLC, Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA : NO. 14-960 CIVIL Defendant : Civil Action — Equity TO: Casey L. Sipe, Esq. Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 DEFENDANT'S RESPONSE TO PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS T&G Car Sales, LLC ("Defendant") hereby responds to Cindy Emondi's ("Plaintiff's") First Request for Admissions. GENERAL OBJECTIONS T&G Car Sales, LLC objects to Plaintiff's Request for Admissions, and to each of them, to the extent that they require disclosure of matters and communications that are protected by the attorney-client privilege, work product immunity, or any other applicable privilege, immunity, or exemption from discovery. To the extent the Request for Admissions can be construed to seek privileged or exempt information, T&G Car Sales, LLC objects and will provide only non - privileged and non-exempt responses and documents. REQUESTS FOR ADMISSIONS 1. Edward Albright represented to Plaintiff that the.2006 BMW 325i was in good condition, with no issues, and would provider Plaintiff with reliable transportation to and from work. RESPONSE: Admitted in part and denied in part. It is admitted that Edward Albright represented to Plaintiff that he understood and believed that the 2006 BMW 325i was in good condition, with no issues, and would provide Plaintiff with reliable transportation to and from work. To the extent that Request for Admission No. 1 suggests that any such representation was knowingly false, the same is specifically denied. 2. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, was inspected by Forest Hill Auto. RESPONSE: Admitted. 3. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle . Identification Number WBAVB13586PT08527, was inspected on January 26, 2013. RESPONSE: Admitted. 4. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, was inspected on a date prior to Defendant purchasing the vehicle. RESPONSE: Admitted. 5. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, was experiencing problems with the heat. RESPONSE: Admitted. 6. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, was diagnosed with "air leaking from head gasket into coolant system." RESPONSE: Admitted. 7. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, would require "extensive engine repair" to fix the vehicle's problem. RESPONSE: Admitted. 8. The attached Exhibit A indicates that a 2006 BMW 325i, with the Vehicle Identification Number WBAVB13586PT08527, would be traded, in, rather than fixed. RESPONSE: Admitted. 9. The attached Exhibit B indicates that Plaintiffs 2006 BMW 325i, purchased from Defendant, was inspected by Forest Hill Auto on November 29; 2013. RESPONSE: Admitted. 10. The attached Exhibit B indicates that Plaintiffs 2006 BMW 325i, purchased from Defendant, was experiencing problems with the heat. RESPONSE: Admitted. 11. The attached Exhibit B. indicates that Plaintiffs 2006 BMW 325i, purchased from Defendant, had an internal leak pushing air into the coolant system. RESPONSE: Admitted. 12. The attached Exhibit B indicates that heater problems with Plaintiffs 2006 BMW 325i, purchased from Defendant, were the result of the internal leak pushing air into the coolant system. RESPONSE: Admitted. 13. The attached Exhibit B indicates that Plaintiffs 2006 BMW 325i, purchased from Defendant, will require an engine to repair the problem due to a bad head gasket, cracked head or cracked engine block. RESPONSE: Admitted. 14. The vehicle referenced in Exhibit A, with the Vehicle Identification Number WBAVB13586PT08527, has the same Vehicle Identification Number as Defendant's 2006 BMW 325i purchased from Defendant. RESPONSE: Admitted. 15. The vehicle referenced in Exhibit A and Plaintiffs vehicle, referenced in Exhibit B, are the same vehicle. Date: RESPONSE: Admitted. By: SALZ ANN HUGHES, P.C. E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney I.D. 311909 105 N. Front Street, Suite 205. Harrisburg, PA 17101 (717) 234-6700 Attorneys for Defendant Salzmann Hughes, P.C. BY: E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney I.D. No. 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 Telephone: 717-234-6700 Fax: 717-249-7334 Attorneys for Defendant FILED -OFFICE CE C,F THE PROTHONOTARY ZDi4 OCT 31 PM 2:57 CUMBERLAND COUNTY PENNSYLVANIA Cindy Emondi, v. T & G Car Sales, LLC, Plaintiff : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA : NO. 14-960 CIVIL Defendant : Civil Action — Equity DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Defendant T & G Car Sales, LLC, by and through its counsel, Salzmann Hughes, P.C., files this Response to Plaintiff Cindy Emondi's Motion for Partial Summary Judgment, responding as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied. Plaintiff omits the entirety of Defendant's response to Interrogatory No. 17, wherein Defendant stated that it "has no standard practice other than washing and detailing the vehicles unless Defendant receives a specific request from the customer who is purchasing the vehicle." (Emphasis added). Defendant further explained that it "will perform a State 2 inspection and fluid check." Finally, Defendant stated that it "willingly permits prospective buyers to have any vehicle examined by a qualified mechanic of the buyer's choosing prior to sale." Plaintiff admitted that Defendant afforded her the opportunity to have the Vehicle examined by her own mechanic and that she chose not to. (Answer to Amended Complaint and New Matter ¶ 85; Plaintiff's Answer to New Matter ¶ 85; Plaintiffs Response to Defendant's Interrogatory No. 14). A true and correct copy of relevant excerpts of Defendant's Interrogatories and Plaintiff's Responses thereto is attached hereto as Exhibit "A" and incorporated herein by this reference.1 8. Denied. Plaintiff omits the entirety of Defendant's response to Interrogatory No. 18, wherein Defendant stated that it "performs no mechanical work or detailed inspection ... but allows prospective buyers to have a vehicle examined by a qualified mechanic of the buyer's choosing." As stated in Paragraph 7, above, Plaintiff elected not to have the Vehicle examined. 9. Admitted. 10. Denied. Defendant's response to Plaintiff's Requests for Admissions is a written document that speaks for itself. Paragraph 10 is specifically denied to the extent that it may be inconsistent with or an attempt to characterize the written document. By way of further response, Defendant's responses to Plaintiff's Requests for Admissions Nos. 2-8 were responsive to Plaintiffs inquiries regarding the content of a written document appended to her Requests for Admissions. Defendant's admissions related only to the information appearing on the face of the written document. Defendant's responses were not substantive admissions of any fact at issue in this matter and, to the extent Plaintiff mischaracterizes Defendant's responses as such, genuine issues of material facts remain in dispute. Nor may the opinions regarding the Vehicle's 1 A copy of Defendant's Interrogatories to Plaintiff is included as an exhibit because Plaintiff did not restate each Interrogatory in providing her responses. 3 condition and necessary repairs expressed in the document appended to the Request for Admissions be relied upon for summary judgment purposes. Such opinions do not meet the requirements for opinion evidence under Pa.R.E. 702 and are not expressed with the requisite degree of certainty. See McMahon v. Young, 276 A.2d 534 (Pa. 1971). 11. Denied. Defendant's response to Plaintiff's Requests for Admissions is a written document that speaks for itself. Paragraph 11 is specifically denied to the extent that it may be inconsistent with or an attempt to characterize the written document. By way of further response, Defendant's responses to Plaintiff's Requests for Admissions Nos. 9-13 were responsive to Plaintiff's inquiries regarding the content of a written document appended to her Requests for Admissions. Defendant's admissions related only to the information appearing on the face of the written document. Defendant's responses were not substantive admissions of any fact at issue in this matter and, to the extent Plaintiff mischaracterizes Defendant's responses as such, genuine issues of material facts remain in dispute. Nor may the opinions regarding the Vehicle's condition and necessary repairs expressed in the document appended to the Request for Admissions be relied upon for summary judgment purposes. Such opinions do not meet the requirements for opinion evidence under Pa.R.E. 702 and are not expressed with the requisite degree of certainty. See McMahon v. Young, 276 A.2d 534 (Pa. 1971). 12. Admitted. 13. Denied. The averments of Paragraph 13 are specifically denied. By way of further response, Plaintiff has mischaracterized the record in this matter. While Defendant admits that it represented to Plaintiff its understanding of the Vehicle's condition, and while Defendant admitted the contents of written documents appended to Plaintiffs Requests for Admissions, Defendanthas expressly denied that it had knowledge of any problems with the 4 Vehicle or made any misrepresentation regarding its condition. (Answer to Amended Complaint and New Matter ¶¶ 4, 14, 19, 21 — 23, 34, 36 — 38, 47, 49 — 51, 65, 70). Accordingly, genuine issues of material fact remain in dispute regarding the Vehicle's alleged condition, Defendant's alleged knowledge thereof, and the accuracy of Defendant's representations regarding the same. 14. Denied. Paragraph 14 contains a conclusion of law to which no response is required. 15. Denied. The averments of Paragraph 15 are specifically denied. By way of further response, Defendant admitted only that it represented to Plaintiff that it understood the Vehicle to be in good condition and has expressly denied knowledge of any defect in the Vehicle. Defendant has not admitted and Plaintiff has not produced any facts to support the Plaintiff's allegations that Defendant had knowledge of any defect, at the time of sale, with the Vehicle or made a misrepresentation to Plaintiff regarding the same. Defendant denies knowledge of any defect and denies that it made any misrepresentation to Plaintiff. Accordingly, genuine issues of material fact remain in dispute. 16. Denied. Genuine issues of material fact remain in dispute regarding Defendant's alleged knowledge regarding the condition of the Vehicle, and the content and accuracy of Defendant's alleged representations to Plaintiff regarding the Vehicle's condition. 17. Paragraph 17 contains a conclusion of law to which no response is required. 18. Admitted in part and denied in part. It is admitted only that Defendant put the Vehicle up for sale. The remaining averments of paragraph 18 are specifically denied for the above-stated reasons. Moreover, Defendant has expressly denied that the Vehicle had a "cracked engine block or head" and there is no dispositive evidence of record establishing that the alleged problems with the Vehicle are attributable to a "cracked engine block or head" existing at the 5 time Defendant sold the Vehicle. (Answer to Amended Complaint IN 18, 33, 46, 62, 69). The estimate document (obtained by Plaintiff after she drove the car for several thousand miles) included as Exhibit "B" to Plaintiff's Amended Complaint and Exhibit "B" to Plaintiff's Requests for Admissions, indicates only the possibility that alleged engine repairs are need because of "a bad head gasket or cracked head or cracked engine block." Genuine issues of material fact remain in dispute with respect to the nature of any alleged defect with the Vehicle's engine. 19. Denied. Genuine issues of material fact remain in dispute regarding Defendant's knowledge regarding the condition of the Vehicle, and the content and accuracy of Defendant's alleged representations to Plaintiff regarding the Vehicle's condition. 20. Paragraph 20 contains a conclusion of law to which no response is required. 21. Denied. It is admitted only that Defendant represented that it understood the used Vehicle to be in good condition. By way of further response, Plaintiff admitted that Defendant afforded her the opportunity to have the Vehicle inspected by a mechanic of her choosing and Plaintiff chose not to. 22. Denied. Defendant has denied that it "did not possess the requisite information to represent that the vehicle was in good condition." (Answer and New Matter ¶ 73). Genuine issues of material fact remain in dispute regarding Defendant's knowledge regarding the alleged condition of the Vehicle, and the content and accuracy of Defendant's alleged representations to Plaintiff regarding the Vehicle's condition. FURTHER RESPONSE 23. Defendant incorporates by reference the responses stated in Paragraphs 1 through 22 as though the same were set forth fully at length herein. 6 24. Plaintiff is not entitled to summary judgment in her favor as to Counts I and V of her Amended Complaint because she failed to establish the facts necessary to support summary judgment in her favor on either claim. 25. Defendant has denied knowledge of any defect in the Vehicle prior to sale. (Answer to Amended Complaint and New Matter ¶¶ 14, 21 — 23, 36 — 38, 49 — 51, 65, 70). 26. Defendant has denied making any misrepresentation to Plaintiff regarding the Vehicle's condition. (Answer to Amended Complaint and New Matter ¶¶ 4, 19, 34, 47; Defendant's Response to Plaintiff's Request for Admission No. 1, attached as Exhibit "C" to Plaintiff's Motion). 27. As indicated in the sales receipt provided upon Defendant's purchase of the Vehicle at the Gettysburg Auto Auction, Defendant purchased the vehicle in "sound" condition. A true and correct copy of the Gettysburg Auto Auction Sales Receipt is attached hereto as Exhibit "B," and was provided to Plaintiff in response to her Requests for Production of Documents. (See also Defendant's Response to Plaintiff's Interrogatory No. 19, attached hereto as Exhibit "A"). 28. Plaintiff admitted that Defendant afforded her the opportunity to have the Vehicle examined by her own mechanic prior to sale and that Plaintiff chose not to do so. (Answer to Amended Complaint and New Matter ¶ 85; Plaintiff's Answer to New Matter ¶ 85; Plaintiff's Response to Interrogatory No. 14, attached hereto as Exhibit "A"). 29. Plaintiff admitted that she turned down year-long extended warranties offered by Defendant and negotiated a thirty -day 50/50 warranty. (Answer to Amended Complaint and New Matter ¶¶ 87 — 90; Plaintiffs Answer to New Matter ¶¶ 87 — 90). 7 30. Plaintiff admitted that she never brought the Vehicle to Defendant under the written warranty. (Answer to Amended Complaint and New Matter ¶ 94; Plaintiffs Answer to New Matter ¶ 94; Plaintiff's Response to Defendant's Interrogatory No. 23, attached hereto as Exhibit "A"). 31. Defendant has admitted that she drove the Vehicle in excess of 8,000 miles after purchasing it from Defendant. (Plaintiffs Response to Interrogatory Nos. 17 — 18, attached hereto as Exhibit "A"). 32. Plaintiff admitted that she did not begin experiencing alleged problems with the Vehicle until eight months after purchase from Defendant. (Answer to Amended Complaint and New Matter ¶ 92; Plaintiff's Answer to Defendant's New Matter ¶ 92). 33. As to Count I of her Amended Complaint, Plaintiff seeks summary judgment with respect to her claims that Defendant violated Sections 201-2(4)(vii) and 201-2(4)(xxi) of "Pennsylvania Unfair Trade Practices and Consumer Protection Law" (the "UTPCPL"), 73 P.S. § 201-2(4)(vii) and (xxi). 34. Because the purpose of the UTPCPL is to prevent fraudulent practices, a majority of the violations enumerated in the UTPCPL require a Plaintiff to prove common law fraud in addition to establishing that the Plaintiff is an individual covered by the UTPCPL and that the transaction is also covered. See Fazio v. Guardian Life Ins. Co. of America, 62 A.3d at 409-10. This requirement applies to Plaintiff s claim under Section 201-2(4)(vii). The requirement would also apply to Plaintiff's Section 201-2(4)(xxi) claim to the extent it is based on fraudulent rather than deceptive conduct. 35. The elements of a fraud claim are: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to 8 whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. See Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999); Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003) (citing Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994)). 36. At the very least, while Defendant denies any such statement, a genuine issue of material fact remains with respect to whether Defendant's representations to Plaintiff were knowingly false. Plaintiff, therefore, has not established the facts necessary to support summary judgment. 37. Additionally, Plaintiff admitted that she had the opportunity to have the Vehicle examined prior to sale and did not. Plaintiff further admits that she turned down extended warranties in favor of a 30 -day, 50/50 warranty, which expired by its terms without Plaintiff making a claim thereunder. Under such conditions, Plaintiff could not have justifiably relied on any alleged misrepresentation. At the very least, a genuine issue of material fact remains in dispute regarding whether Plaintiff justifiably relied on any alleged misrepresentation by Defendant. 38. Finally, Defendant admitted that she drove the Vehicle for more than 8,000 miles after purchase. Accordingly, Plaintiff has not established that the resulting injury was proximately caused by any reliance on Defendant's statements. At the very least, a genuine issue of material fact remains in dispute regarding whether an alleged misrepresentation by Defendant proximately caused any alleged loss by Plaintiff in this case. 39. It should also be noted that Plaintiff alleges a violation of 201-2(4)(xxi), the UTCPL's "catch all" provision, under which a claim may be cognizable where there is 9 "deceptive conduct which creates a likelihood of confusion or misunderstanding." See Fazio, 62 A.3d at 409-10. Plaintiff has failed to aver that Defendant engaged in deceptive conduct that could have confused or misled Plaintiff. Moreover, Plaintiff has failed to establish facts to demonstrate that Plaintiff engaged in such deceptive conduct that would confuse or mislead Plaintiff. At the very least, genuine issues of material fact remain in dispute regarding whether Defendant engaged in deceptive conduct, particularly in light of Defendant's evidence demonstrating its understanding that the Vehicle was in "sound" condition. 40. Plaintiff, therefore, has failed to support her Motion for Summary Judgment as to Count I of her Amended Complaint and her motion should be denied. 41. As to Count V of her Amended Complaint, Plaintiff seeks summary judgment with respect to her contention that Defendant failed to disclose engine problems with the Vehicle at the time of sale and thereby violated the Automotive Industry Trade Practices Law (the "AITP"), 37 Pa. Code § 301.2(5)(ii) and (6). 42. As a matter of law, the AITP does not provide Plaintiff with an independent cause of action, separate and apart from her UTPCPL claim in Count I of her Amended Complaint. The AITP are regulations that Pennsylvania's Bureau of Consumer Protection adopted pursuant to the UTPCPL that more narrowly define practices deemed unfair and deceptive specifically within the automotive industry. See Sanchez v. Feretti, Inc., CIVA 07-4255, 2008 WL 2517177 (E.D. Pa. June 20, 2008) (unreported) (granting summary judgment on an AITP claim). Consequently, Defendant is not entitled to summary judgment on her AITP claim as a matter of law. 10 43. Additionally, because the AITP more narrowly defines the UTCPL, the same standard of proving common law fraud applies or deceptive conduct applies. For the reasons stated above, Defendant has failed to establish the facts necessary to support her claim. 44. Moreover, the AITP, 37 Pa. Code § 301.2(5)(ii) states, in relevant part, "For purposes of this chapter, a motor vehicle which is offered for sale is represented to be roadworthy, and ... the seller shall disclose prior to sale the following conditions if the .. . seller knows or should know that the conditions exist ... (ii) Engine block or head crack." 37 Pa. Code § 301.2(5)(ii) (emphasis added). Defendant has denied knowledge of any defect with the Vehicle prior to sale and has denied making any misrepresentations to Plaintiff. At the very least, genuine issues of material fact remain regarding the alleged condition of the Vehicle, Defendant's alleged knowledge thereof, and the accuracy of any representations made by Defendant regarding the Vehicle's condition. 45. Similarly Defendant has denied that there was a cracked engine block or head crack when it sold the vehicle to Plaintiff. Plaintiff relies on a document produced after an inspection several months and thousands of miles after sale which indicates the possibility that any alleged problems with the Vehicle are attributable to a cracked engine block or engine head, and Defendant's admissions as to what that document says on its face, which were in no way related to its veracity. (Exhibit B to Plaintiffs Amended Complaint; Exhibit B to Plaintiff's Requests for Admissions; Defendant's Response to Plaintiff's Requests for Admissions Nos. 9- 13). Accordingly, at the very least, disputed issue of material fact remain regarding the nature of the alleged defect and Defendant's alleged knowledge thereof. 46. Additionally, the AITP, 37 Pa. Code § 301.2(6) makes the following an unfair trade practice: "The making of a representation or statement of a fact in ... [a] sales presentation 11 if the ... salesperson knows or should know that the representation or statement is false and misleading or if the advertiser or salesperson does not have sufficient information upon which a reasonable belief in the truth of the representation could be based." Defendant has denied knowledge of any problems with the Vehicle. Accordingly, genuine issues of material fact remain regarding whether the seller in this case knew or should have known of any alleged condition with the Vehicle. 47. Plaintiff's Motion rests solely upon her incomplete recitation of the record and fabricated admissions that Plaintiff improperly endeavors to attribute to Defendant. Despite Plaintiff's efforts to rely upon Defendant's admissions as to the content of written documents appended to Plaintiff's Requests for Admission, Defendant made no substantive admissions regarding facts material to Plaintiff's causes of action. 48. Plaintiff has not and cannot produce facts sufficient to support summary judgment in her favor as to Counts I and V of her Amended Complaint. 12 WHEREFORE, Defendant, T&G Car Sales, LLC, respectfully requests that this Honorable Court deny Plaintiff Emondi's Motion for Partial Summary Judgment as to Counts I and V of her Amended Complaint. Dated: October 31, 2014r\ By: 'p.(' E. Lee Stinnett II Aforney I.D. No. 307128 Isaac P. Wakefield Attorney ID: 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 (717) 234-6700 Attorneys for Defendant Respectfully submitted, SALZMANN HUGHES, P.C. 13 CERTIFICATE OF SERVICE I, E. Lee Stinnett, certify that on this 31st day of October, 2014, I have served the foregoing document via United States First Class Mail, postage prepaid, addressed as follows: Casey L. Sipe, Esquire Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 f'v . 0.`( E. Lee Stinnett II Cindy Emondi, T & G Car Sales, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 14-960 CIVIL Defendant Civil Action — Equity PRAECIPE TO APPEND Dear Prothonotary: Kindly append the attached Exhibits to Defendant's Response to Plaintiff's Motion for Summary Judgment, which was filed on October 31, 2014. Dated: 1 1 31 Zoiy By: Respectfully submitted, SA Z ANN HUGHES, P.C. E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney ID: 311909 105 North Front Street, Suite 205 Harrisburg, PA 17101 (717) 234-6700 Attorneys for Defendant CA) ru SALZMANN HUGHES, P.C. E. Lee Stinnett II Attorney I.D. No. 307128 Isaac P. Wakefield Attorney LD No. 311909 105 North Front Street. Suite 205 Harrisburg, PA 17101 Telephone: 717-234-6700 Fax 717-249-7334 Attorneys for Defendant ::::.:::::::.......... Cindy Emondi, T & G Car Sales, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 14-960 CIVIL Defendant Civil Action — Equity DEFENDANT'S INTERROGATORIES DIRECTED TO PLAINTIFF - FIRST SET PURSUANT TO THE PROVISIONS of Pennsylvania Rules of Civil Procedure 4005 and 4006, as amended, you are required to answer the within interrogatories and serve a copy of your answers and objections, if any, in writing and under oath, on the undersigned within thirty (30) days after service of the Interrogatories. The answers shall be inserted in the spaces provided following each Interrogatory. If there is insufficient space to answer an Interrogatory, the remainder of the answer shall follow on a supplemental sheet. These Interrogatories shall be deemed to be continuing in nature pursuant to Pennsylvania Rules of Civil Procedure 4005 and 4006. If between the time of filing your original answers to these Interrogatories and the time of trial of this matter, you or anyone acting on your behalf learns the identity and location of additional persons having knowledge of discoverable facts and the identity of persons expected to be called as an expert witness at trial not disclosed in your answers, or if you or an expert witness obtains information upon the basis 13. State each and every representation that you allege that Defendant made to you regarding the vehicle in conjunction with the sale of the vehicle and for each identified representation state: a. Which of Defendant's agents, representatives, or employees made the representation; b. The date, time, and place of the representation; and c. The exact statement by the Defendant or its agents, representatives, or employees. ANSWER: 14. Did you engage an independent party to inspect the vehicle prior to purchasing it from Defendant? ANSWER: 15. Have you received a written estimate regarding the repairs that you allege are necessary for the vehicle? ANSWER: 16. State the last date on which you drove the vehicle. ANSWER: 17. As of the date of your response to these Interrogatories, what is the vehicle's current mileage as reflected on the vehicle's odometer? ANSWER: 18. How many miles has the car been driven by any individual since the date that you purchased it from Defendant? ANSWER: 19. State the date that you first noticed the alleged issues with the car that now serve as the basis of your Complaint. ANSWER: 22. In whose possession is the vehicle presently and what is its current location? ANSWER: 23. Did you ever request Defendant to undertake any work under the vehicle's express warranty? ANSWER: 24. State the facts on which you rely to support you allegation that "the vehicle requires a new engine to remedy its current issues, costing approximately $10,000.00." ANSWER: Casey L. Sipe, Esq. Attorney ID No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com Attorney for Plaintiff CINDY EMONDI, Plaintiff v. COURT OF COMMON PLEAS OF ;: CUMBERLAND COUNTY : NO. 14-960 CIVIL T & G Car Sales, LLC Defendant : CIVIL ACTION - LAW PLAINTIFF'S ANSWERS TO DEFENDANT'S FIRST SET OF INTERROGATORIES 1. Plaintiff's name is Cindy Emondi. Plaintiffs maiden name is Cindy Nenninger. Plaintiff currently lives at 8612 Peiper Road, Shippensburg, PA 17257. 2. Plaintiff, Cindy Emond, and her legal counsel, Casey Sipe, participated in answering Defendant's Interrogatories. 3. The following persons have knowledge regarding the facts or circumstances at issue here: a. Cindy Emondi 8612 Peiper Road, Shippensburg, PA 17257 717-477-1158 Plaintiff The sale of the vehicle, the difficulties with the vehicle, cause of the vehicle's difficulties, Defendant's knowledge of the vehicle's state when sold to Plaintiff b. Anthony Emondi 8612 Peiper Road, Shippensburg, PA 17257 717-477-1158 Plaintiff's spouse The sale of the vehicle, the difficulties with the vehicle, cause of the vehicle's difficulties, Defendant's knowledge of the vehicle's state when sold to Plaintiff 8. Identification of non -expert witnesses: a. Cindy Emondi — See 3(a) hereinbefore h. Anthony Emondi — See 3(b) hereinbefore Plaintiff reserves the right to supplement this list at any time and, pursuant to the Pennsylvania Rules of Civil Procedure, will provide notice to Defendant's counsel. 9. Identification of expert witnesses: a. Jan Schwartz: See 3(d) hereinbefore Plaintiff reserves the right to supplement this list at any time and, pursuant to the Pennsylvania Rules of Civil Procedure, will provide notice to Defendant's counsel;. 10. At this tune neither Plaintiff nor Plaintiff's witnesses intend to rely on any book, magazine or other writing at trial. In the event Plaintiff's, or Plaintiff's witnesses', intent changes, notice will be provided to Defendant's counsel pursuant to the Pennsylvania Rules of Civil Procedure. 11 Identify all exhibits for use at trial: a. Used Vehicle Order — liability and damages b. Forest Hill Auto 11/29/13 invoice — liability and damages c. Forest Hill Auto 1/26/13 invoice - liability d. Forest Hill Auto 3/27/14 invoice - damages e. CR's Motor Car Co., Inc. Repair Order 9/26/13 - liability f. CarFax Vehicle History Report — liability Plaintiff reserves the right to supplement this list at any time and, pursuant to the Pennsylvania Rules of Civil Procedure, will provide notice to Defendant's counsel. 12. Plaintiff does not intend to use any admissions of a party at trial. Plaintiff reserves the right to supplement this answer at any time and, pursuant to the Pennsylvania Rules of Civil Procedure, will provide notice to Defendant's counsel. 13. Representations made by Defendant: Edward Albright, Plaintiff cannot recall the exact date but believes said statements occurred between March 7, 2013 and March 13, 2013 at T&G Auto Sales i. The vehicle would run well. ii. BMWs arc reliable cars and would not break down on Plaintiff iii. The vehicle would be reliable transportation for Plaintiff. 14. Plaintiff did not engage an independent party to inspect the vehicle prior to purchasing it from Defendant. 15. Plaintiff received a written estimate for repairs from Forest Hill Auto, 16. Plaintiff last drove the vehicle in the first week of December 2013, but cannot recall the exact date. 17. Plaintiff was unable to check the mileage as of the date of these Answers, because the vehicle's battery is dead. At last record, on November 29, 2013, the vehicle had 110,663 miles on the odometer. 18. Plaintiff put approximately 8,639 miles on the vehicle from the date of purchase until the last recorded mileage. on November 29, 2013. 19. Plaintiff first noticed that the heat was not properly working in October 2013 but cannot recall the exact date. Plaintiff learned that the vehicle had a cracked head gasket on November 29, 2013. 20. Plaintiff informed Defendant of the cracked head gasket diagnosis on November 29, 2013, but Edward Albright refused to assist Plaintiff in any way. 21. Plaintiff serviced the vehicle on the following occasions: a. September 26, 2013. — CR's Motor Car Co. — Inspection, oil and filter change and replace rear brake pads b. Plaintiff took the vehicle to CR's Motor Car Co. between September 2013 and November 2013 to determine the cause for the heater blowing cold air c. November 29, 2013 - Forest hill Auto — Examine the vehicle to determine the cause for the heater blowing cold air 22. The"vehicle is currently in Plaintiff's possession at 8612 Peiper Road, Shippensburg, PA 17257. 23. Plaintiff requested Defendant repair the engine issues on November 29, 2013. 24. Plaintiff took the vehicle to Forest Hill Auto to determine the cause of the vehicle's lack of heat. Upon inspection, Forest Kill Auto determined that the vehicle had a cracked head gasket. Upon review of their records, Forest Hill Auto determined that the vehicle was previously serviced at Forest Hill Auto and was diagnosed with a cracked head gasket. 25. Pursuant to discussions with counsel, no answer is required here because Plaintiff removed this allegation from her Amended Complaint. Respectfully submitted, y L. Sipe, Esq. Attorney for Plaintiff -❑ ❑ DATE Gettysburg Auto Auction A Public Auto Auction 3580 Emmitsburg Rd Gettysburg, PA 17325 717-338-1516 877-338-1536 Fax 717-338-9060 NAME AND ADDRESS OF BUYER ENTRY NO. Reg. Pd. CAST CHECI Both the BUYER and SELLER agree that they h BUYER AGREES: I, the Buyer of the above described vehicle do hereby consider the purchase of this vehicle as fully consummated and accept same In the condition set forth in this contract, and that the Auction Is acting us the mutual agent for both parties and that the Aucdon shall not be liable to either the Buyer or Seller for any mechanical or other defects found In said motor vehicle. and that any check y me to the Auctiontor above described vehicle la hereby uetondklotutly gueraetred br the Buyer and that under .,o Cfrissounsincet shad the Ebner have any rgit w atop-paymeiht of check regardless of reason; and atop payment order of check or giving a thornvifdch is marked "Insufdeemed fundi" shall be by Or *ibis to be prima fad. evidence as of fruid eiticibtg at the time the transaction was wnsummitted,.and shill be coestntgd by the pietist as an gni mt to defraud In order to consummate the transaction SELLER AGREES: That he Is the true and lawful owner of the herein described vehicle, that same is free from all liens and encumbrances;thac he has perfect right and full power to sell and transfer title to same; and that he will warrant and defend rhe same against the lawful claims and demands of all persons whomsoever. PUBLIC SALE BID -DRIVE -BUY Public buyers have ONE hour from dine of purchase to drive their vehicle & Vnecessary arbitrate It. NOTE A vehicle must have sold for $1201.00 or higher to be eligible for a drive and/or arbhradon. ODOMETER DISCLOSURE STATEMENT Section 580.5 Disclosure form. FEDERAL LAW REQUIRES THAT YOU STATE THE MILEAGE UPON TRANSFER OF OWNERSHIP FAILURE TO COMPLETE OR PROVIDING A FALSE STATEMENT MAY RESULT IN FINES AND/OR IMPRISONMENT. -;•,;i -l--: C;,-: ,.,h - • ❑ (I) I hereby certify to the best of my knowledge the odometer reading reflects the amount of mileage in excess of its mechanical limits. ❑ (2) I hereby certify that the odometer reading is NOT the actual reading. WANING - ODOMETER DISCREPANCY. I. lb-) state that the odometer PrintTransferors Name (seller) now reads U' i.? miles (no tenths) and to the best of my knowledge that It itflects the actual mileage of the vehicle described above, unless one of the above statements is checked. Transferor's 1. Signature (seller): 3 I Time Sold rr` 5 -Lf Auctioneer. CA CHECKe 100 50 20 10 5 I CHANGE The GettysburgAuteAuction assumes no MOW The AumAucekxMOWno w , welt near* to my kic waG 4t! h�exteod b y rad dose des porecohrwt loa+b heiurwt In all disputes, regardless of circumstances Qnclud NAME. i ' ..�_. �• ADDRESS CITY TELEPHONE ( ASE P STATE ZIP Buyer's Signature X::.1: •.•,. I hereby certify that I have received a copy of the odometer statement d accept the provisions set forth on this documen DEPOSIT Initials I UNDERSTAND THAT MY DEPOSIT WILL BE FORFEITED IF I BREACH THE CONTRACT AND THAT I HAVE TWO BUSINESS DAYS FROM SALE DATE TC PAY FORTHEVEHICLE AND ALL FEES IN FULL. AS IS THIS VEHICLE IS SOLD "AS IS" WITHOUT AN` WARRANTY EXPRESSED OR IMPLIED. THE PUR CHASER WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY DEFECTS THAT PRESENTLY EXIST OR THAT MA' OCCUR IN THISVEHICLEANY VEHICLE NOT SOLD ONTHEAUCTION BLOCK I! CONSIDERE D TO BE SOLD OUTSIDE OFTHE SALEAND IS CONSIDERED "AS IS". AS IS $1200 or less THIS VEHICLE IS SOLD "AS 15" WITS NO WARRANTY EXPRESSED Of IMPLIED OF ANY KIND. PURCHASEF ASSUMES FULL RESPONSIBILITY FOR ANY & ALL REPAIRS NECESSARY. AN1 VEHICLE NOT SOLD ON THE AUCTION BLOCK IS SOLD "AS IS". SOUND THIS VEHICLE IS SOLD "SOUND". IT SHOULC NOT HAVE ANY DRIVETRAIN DEFECT THAI WILL COST MORE THAT $1000 TO REPAIR, NOF SHOULD IT BE TOTALLY UNSAFE TO DRIVE (AT THE DISCRETION Of OUR ARBITRATOR AND AUCTION MANAGEMENT IN ALL DISPUTES AUCTION MANAGEMENT DECISIONS ARE FINAL & BINDING. RTITLE, FRAME DAMAGE FRAME DAMAGE, SALVAGE 8 REBUILD TITLE MUST BE ANNOUNCED BY SELLER. IE SELLER MAKES NO ANNOUNCEMENT & VEHICLE IS SOLD - BUYER HAS DAYS TO IDENTIFY A PROBLEM & RETURN THE VEHICLE TO GAA FOP INSPECTION. AFTER 7 DAYS. ALL SALES ARE FINAL AND BUYER MU51 DEAL WITH SELLER TO MEDIATE ANY PROBLEM.AFTER 7 DAYS GAA ASSUME'. NO RESPoNSIBlLITYTOACT AS INTERMEDIARY YEAR MAKE BODY MODEL CYL AUTO STD rSTEDR _' BRAKES AIR SOB AS IS DEFECT TmE DELAY -rr's h VIN NUMBER •,. TITLE FEE COMMENTS TAG FEE TEMP.TAG f ON LINE REG. PRICE OF VEHICLE I•_.., CHECK NO. CARRIER FEE; SALESTAX BUYERS FEE TOTAL 'TOTAL TOTAL curacy of odometeryreading on any consigned vehicles. dde and ay wan tities.irrikn$vdwirremiesiv rchanabMy, Rt of n dna attda are akan'Ss n" and"v ith faun•.Fhittherdtere aro OAA o nm nnpotini ria far missing ration, aa. decisions are final & binding on both Buyer and Seller. any transaction. Cindy Emondi, T & G Car Sales, LLC, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 14-960 CIVIL Defendant Civil Action — Equity CERTIFICATE OF SERVICE I hereby certify that on the 5 day of November, 2014, I served a true and correct copy of the foregoing Praecipe via United States mail, first class, postage prepaid, addressed as follows: Casey L. Sipe, Esquire Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, P 7110 E. Lee Stiiin Attorney I.D. No. 307128 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Cindy Emondi VS. T & G Car Sales, LLC No. 960 MCA r-- u") y c) 2014Terri, 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Casey L. Sipe, Esquire, Scaringi & Scaringi,.P.C. (Name and Address) 2000 Linglestown Road, Suite 106, Harrisburg, PA 17110 (b) for defendants: E. Lee Stinnett, Esquire (Name and Address) 105 N. Front Street, Suite 205, Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 19, 2014 Date: t 1 INSTRU ' TION 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 14 days prior to argument. 3. The responding party shall file their brief 7 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Wm Casey L. Sipe Print your name Cindy Emondi, Plaintiff Attorney for C,*t1 1, 71=-71 CD r .1Q 447 a i5y93 3) 235' CINDY EMONDI, : COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY v. T & G Car Sales, LLC Defendant : CIVIL ACTION - LAW : NO. 14-960 CIVIL CO G rt-; CO PRAECIPE TO WITHDRAW MOTION FOR SUMMARY JUDGMENT TO THE PROTHONTARY: Kindly withdraw the Motion for Summary Judgment filed by Plaintiff in the above matter on October 1, 2014. Date: Respectfully submitted, asey L. pe, Esq. Attorney I.D. No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com CINDY EMONDI, : COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY v. : NO. 14-960 CIVIL T & G Car Sales, LLC Defendant : CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Sherry A. Clark, Paralegal at Scaringi & Scaringi, P.C., hereby certify that I have this date served the foregoing Praecipe to Withdraw Motion for Summary Judgment via U.S. Mail to: Date: E. Lee Stinnett, II Isaac P. Wakefield Salzmann Hughes, P.C. 105 N. Front Street, Suite 205 Harrisburg, PA 17101 CINDY EMONDI, : COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY v. T & G Car Sales, LLC Defendant : NO. 14-960 CIVIL : CIVIL ACTION - LAW at - (-, c= rn cc) I- Y �C) 2: (77 PRAECIPE TO WITHDRAW FROM ARGUMENT COURT TO THE PROTHONTARY: Kindly withdraw this matter from Argument Court on December 19, 2014. Date: Respectfully submitted, Asey L. Sipe, Esq. Attorney I.D. No. 208118 Scaringi & Scaringi, P.C. 2000 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 657-7770 (717) 657-7797 (fax) casey@scaringilaw.com CINDY EMONDI, Plaintiff : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY v. : NO. 14-960 CIVIL • • T & G Car Sales, LLC Defendant : CIVIL ACTION - LAW • • CERTIFICATE OF SERVICE I, Sherry A. Clark, Paralegal at Scaringi & Scaringi, P.C., hereby certify that I have this date served the foregoing Praecipe to Withdraw From Argument Court via U.S. Mail to: Date: E. Lee Stinnett, II Isaac P. Wakefield Salzmann Hughes, P.C. 105 N. Front Street, Suite 205 Harrisburg, PA 17101 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Cindy Emondi Plaintiff VS T & G Car Sales, LLC Defendant RULE 1312-1 following form: : NO. 14-960 CIVIL TERM c, rn P, • The Petition for Appointment of Arbitrators shall be substantially in tl iez 3- cit THE PETITION FOR APPOINTMENT OF ARBITRATORS 3> TO THE HONORABLE, THE JUDGES OF SAID COURT: Casey L. Sipe , counsel for the plaintifUdefendant in the above action (or actions), respectfully represents that: 1. The above -captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 48,559.14 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Casey L. Sipe, E. Lee Stinnett, II, Isaac P. Wakefield, Scott T. Wyland WHEREFORE, your petitioner prays your Honorable Court ,to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ORDER OF COURT E'*aT OD fag.mord9 C#--0203.2-0 tc3 szsz AND NOW, , 20 , in consideration of the foregoing petition, Esq., and Esq., and Esq., are appointed arbitrators in the above captioned action (or actions) as prayed for. By the Court, KEVIN A. HESS, P.J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Cindy Emondi Plaintiff VS : NO. 14-960 CIVIL TERM t 5 ra T & G Car Sales, LLC -0 Defendant rig r RULE 1312-1 The Petition for Appointment of Arbitrators shall be substantially in tl following form: c-Npj THE PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Casey L. Sipe , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above -captioned action (or actions) is (are) at issue. 2. The claim of plaintiff in the action is $ 48,559.14 The counterclaim of the defendant in the action is The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Casey L. Sipe, E. Lee Stinnett, II, Isaac P. Wakefield, Scott T. Wyland WHEREFORE, your petitioner prays your. Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, ORDER OF COURT SQA co tae. soPd 9/6 c# 4,2 033c Rh4.(CZCZ AND OW,Qi2-!� , 20/s , in consideration of the foregoing petition, Esq., and Esq., and C g Esq., are appointed arbitrators in the ab captioned action (or actions) as praye for. Lee --ease,/ L, eq: Z.e7j of mai//' /4/ /j-- By the Court, KEVIN A. I.: S, P.J.