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HomeMy WebLinkAbout14-5459 } Supreme Co . 4-6 f�Pennsylvania Cour `of, ammo Tleas For Prothonotary Use Only; Cl<vilC�ver Sheet Docket No: 44t4 sr CUMBERLAND County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace thefiling and service ofpleadings or other papers as required bylaw or rules of court. y Commencement of Action: = [M Complaint ® Writ of Summons Q Petition S ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking Lead Plaintiff's Name: Lead Defendant's Name: ,T MICHAEL BARTON FORD MOTOR COMPANY Are money damages requested? D Yes No Dollar Amount Requested: Qwithin arbitration limits T 0 (check one) []outside arbitration limits N Is this a Class Action Suit? Q Yes Q No Is this an MDJAppeal? 0 Yes :1 No I"A' Name of Plaintiff/Appellant's Attorney: David J. Gorberg, Esquire Q Check here if you have no attorney(are a Self-Represented [Pro Se) Litigant) Nature of the Case: Place an."X"to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS j Q Intentional 9 Buyer Plaintiff Administrative Agencies Q Malicious Prosecution Q Debt Collection: Credit Card Q Board of Assessment Q Motor Vehicle Q Debt Collection:Other ❑ Board of Elections Q Nuisance Q Dept.of Transportation Q Premises Liability Q Statutory Appeal:Other S Q Product Liability(does not include mass tort) © Employment Dispute: Q SlanderlLibel/Defamation Discrimination C Q Other. n Employment Dispute:Other Q Zoning Board ,T Q Other: Q Other: O MASS TORT © Asbestos N: ® Tobacco Q Toxic Tort-DES ❑ Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS Q Toxic Waste ❑ Ejectment ® Common Law/Statutory Arbitration Q Other: Q Eminent Domain/Condemnation Q Declaratory Judgment i Q Ground Rent Q Mandamus Q Landlord/Tenant Dispute Non-Domestic Relations Q Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure:Commercial Q Quo Warranto Q Dental © Partition Q Replevin Q Legal Q Quiet Title ®Other: ❑ Medical ❑ Other: ( ❑ Other Professional: f Updated 1/1/1011 iUrT�ri�,,, 1lONO4Ti'i SEP I, Pt`s �: t�� CUP 5�yN17 COUNTY CVAt41 ; MICHAEL BARTON : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA FORD MOTOR COMPANY NO. 4 S9S9 to Defendant , Civil Term 1V t NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 GLY1 s S c$ dot � � 3ti ttg DAVID J. GORBERG&ASSOCIATES,P.C. By: DAVID J. GORBERG Attorney for Plaintiff Identification No.: 53084 32 Parking Plaza Suite 700 Ardmore, PA 19003 215-665-7660 MICHAEL BARTON 211 FIRST STREET ENOLA,PA 17025 COURT OF COMMON PLEAS VS. CUMBERLAND FORD MOTOR COMPANY C/O CT CORPORATION 116 PINE STREET SUITE 320 HARRISBURGH PA 17101 COMPLAINT 1. Plaintiff,Michael Barton, is an adult individual citizen an legal resident of the Commonwealth of Pennsylvania residing at 211 First Street Enola, PA 17025. 2. Defendant, Ford Motor Company is a business corporation qualified to do business and regularly conducts business in the Commonwealth of Pennsylvania and can be served c/o CT Corporation, 116 Pine Street, Suite 320,Harrisburg, PA 17101. BACKGROUND 3. Plaintiff incorporates by reference paragraphs 1 and 2 as fully as if set forth here length. 4. On or about December 2013, Plaintiff purchased a new 2013 Ford F-150 (hereinafter referred to as the"vehicle"), manufactured and warranted by Defendant bearing the Vehicle Identification Number 1FTFW IETXDFA41644. The vehicle was purchased and registered in the Commonwealth of Pennsylvania. 5. The price of the vehicle, including registration charges, document fees, sales tax, but, excluding other collateral charges not specified,totaled $45,000.00. 6. Plaintiff avers that as a result of the ineffective repair attempts made by Defendant through its authorized dealer,the vehicle cannot be utilized for the purposes intended by Plaintiff at the time of acquisition and as such, the vehicle is worthless. 7. In consideration of the purchase of the above vehicle, Defendant, issued to Plaintiff several warranties, fully outlined in the warranty booklet. 8. On or about December 2013, Plaintiff took possession of the above mentioned vehicle and experienced nonconformities,which substantially impaired the use, value and/or safety of the vehicle. 9. Said nonconformities consisted of but was not limited to, defective HVAC and or defective blower unit. 10. The nonconformities violate the express written warranties issued to Plaintiff by Defendant. 11. Plaintiff avers the vehicle has been subject to repair more than two(2)times for the same nonconformity, and the nonconformity remains uncorrected. 12. Plaintiff has delivered the nonconforming vehicle to an authorized service and repair facility of the defendant on numerous occasions. After a reasonable number of attempts, Defendant was unable to repair the nonconformities. 13. In addition,the above vehicle has or will in the future be out of service by reason of the non-conformities complained of for a cumulative total of thirty(30) days or more. 14. The vehicle continues to exhibit defects and nonconformities which substantially impair it's use, value and/or safety. 15. Plaintiff avers the vehicle has been subject to additional repair attempts for defects and/or nonconformities and/or conditions for which the Defendant and or it's authorized service center, may not have maintained records. 16. Plaintiff has been and will continue to be financially damaged due to Defendant's failure to comply with the provisions of its'warranty. 17. Plaintiff seeks relief for losses due to the nonconformities and defects in the above mentioned vehicle in addition to attorney fees and all court costs. COUNT PENNSYLVANIA AUTOMOBILE LEMON LAW CLAIM 18. Plaintiff hereby incorporates all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 19. Plaintiff is a "Purchaser" as defined by 73 P.S. §1952. 20. Defendant is a "Manufacturer" as defined by 73 P.S. §1952. 21. Plaintiffs vehicle is a"New Motor Vehicle" as defined by 73 P.S. §1952. 22. Said vehicle experienced non conformities within the first year of purchase, which substantially impairs the use, value and safety of said vehicle. 23. Defendant failed to correct and or repair said nonconformities. 24. The vehicle continues to exhibit defects and nonconformities which substantially impair it's use, value and/or safety. 25. Defendant does not require participation in any informal dispute settlement program prior to filing suit. 26. As a direct and proximate result of Defendant's failure to repair the nonconformities, Plaintiff has suffered damages and, in accordance with 73 P.S. §1958, Plaintiff is entitled to bring suit for such damages and other legal and equitable relief. 27. Plaintiff avers that upon successfully prevailing upon the Lemon Law claim herein, all attorney fees are recoverable and are demanded against the Defendant. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three(3)times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees.Amount not in excess of$50,000.00. COUNT II MAGNUSON-MOSS FEDERAL TRADE COMMISSION IMPROVEMENT ACT 28. Plaintiff hereby incorporates all facts and allegations set forth in this Complaint by reference as if fully set forth at length herein. 29. Plaintiff is a"Consumer"as defined by 15 U.S.C. §2301(3). 30. Defendant is a"Warrantor"as defined by 15 U.S.C. §2301(5). 31. Plaintiff uses the subject product for personal, family and household purposes. 32. By the terms of the express written warranties referred to in this Complaint, Defendant agreed to perform effective warranty repairs at no charge for parts and/or labor. 33. Defendant failed to make effective repairs. 34. As a direct and proximate result of Defendant's failure to comply with the express written warranties,Plaintiff has suffered damages and, in accordance with 15 U.S.C. §2310(d) (1),Plaintiff is entitled to bring suit for such damages and other legal and equitable relief. 35. Section 15 U.S.C. §2310 (d) (1)provides: If a consumer finally prevails on an action brought under paragraph (1) of this subsection, he may be allowed by the Court to recover as part of the judgment a sum equal to the amount of aggregate amount of costs and expenses (including attorney fees based upon actual time expended), determined by the Court to have been reasonably incurred by the Plaintiff for, or in connection with the commencement and prosecution of such action,unless the Court, in its discretion shall determine that such an award of attorney's fees would be inappropriate. 36. Plaintiff avers that upon successfully prevailing upon the Magnuson-Moss claim herein, all attorney fees are recoverable and are demanded against the Defendant. WHEREFORE, Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3)times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of$50,000.00. COUNT III UNIFORM COMMERCIAL CODE 37. Plaintiff hereby incorporates all the paragraphs of this Complaint by reference as if fully set forth at length herein. 38. The defects and nonconformities existing within the vehicle constitute a breach of contractual and statutory obligations of the Defendant, including but not limited to the following; a. Breach of Express Warranty b. Breach of Implied Warranty of Merchantability; C. Breach of Implied Warranty of Fitness For a Particular Purpose; d. Breach of Duty of Good Faith. 39. The purpose for which Plaintiff purchased the vehicle include but are not limited to his personal, family and household use. 40. At the time of this purchase and at all times subsequent thereto, Plaintiff has justifiably relied upon Defendant's express warranties and implied warranties of fitness for a particular purpose and implied warranty of merchantability. 41. At the time of the purchase and at all times subsequent thereto, Defendant was aware Plaintiff was relying upon Defendant's express and implied warranties, obligations, and representations with regard to the subject vehicle. 42. Plaintiff has incurred damages as a direct and proximate result of the breach and failure of Defendant to honor its express and implied warranties. 43. Such damages include, but are not limited to,the purchase price of the vehicle plus all collateral charges, including attorney fees and costs, as well as other expenses, the full extent of which are not yet known. WHEREFORE,Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3)times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of$50,000.00. COUNT IV PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION CLAIM 44. Plaintiff hereby incorporates all the paragraphs of this Complaint by reference as if set forth at length herein. 45. The Unfair Trade Practices and Consumer Protection Law defines unfair methods of competition to include the following: (xiv). Failing to comply with the terms of any written guarantee or warranty given to the buyer at,prior to, or after a contract for the purchase of goods or services is made. 46. Plaintiff, as a Pennsylvania resident, believes, and therefore, avers Defendant's failure to comply with the terms of the written warranty constitutes an unfair method of competition. 47. Section 201-9.2(a) of the Unfair Trade Practices and Consumer Protection Law, authorizes the Court, in its discretion, to award up to three(3)times the actual damages sustained for violations of the Act. WHEREFORE,Plaintiff respectfully demands judgment in his favor and against the Defendant in an amount equal to three (3)times the purchase price of the subject vehicle, plus all available collateral changes and attorney fees. Amount not in excess of$50,000.00. DAVID J. GORBERG&ASSOCIATE C. BY: DAVID ORBERG, ESQUIRE Attorney for Plaintiff VERIFICATION The undersigned, after having read the attached pleading verifies that the within Civil Action Complaint is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the Civil Action Complaint is that of counsel and not of signer. Signer verifies that he has read the within Civil Action Complaint and that they are true and correct to the best of the signer's knowledge, information and belief. To the extent that the contents of the Civil Action Complaint are that of counsel, verifier has relied upon counsel in taking this verification. This verification is made subject to the penalties of 1 4904 relating to unsworn falsification to authorities. X DAVI J. RBERG, ESQUIRE Date: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MICHAEL BARTON, Plaintiff, CASE NO. 14-5459 Civil v. FORD MOTOR COMPANY, Defendant.2 ::47c. Cil r no PRAECIPE FOR ENTRY OF APPEARANCE t- =c zcD W Kindly enter my appearance in the above -captioned matter on behalf of Civil Action TO THE PROTHONOTARY/CLERK OF SAID COURT: Defendant, Ford Motor Company. Papers may be served at the address set ford below. JA S P. PETERSON, ESQ. (ID No. 77315) torney for Defendant, Ford Motor Company DOBIS, RUSSELL & PETERSON, P.C. 213 Yates Avenue Woodlyn, PA 19094 Phone: 610-689-8698 Fax: 973-740-2474 Email: jpeterson@drp-law.com Date: October 17, 2014 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION MICHAEL BARTON, Plaintiff, CASE NO. 14-5459 Civil v. FORD MOTOR COMPANY, Defendant. Civil Action ANSWER AND NEW MATTER AND NOW, comes defendant, Ford Motor Company ("Ford"), by its attorneys, Dobis, Russell & Peterson, P.C., and files the within Answer and New Matter as follows: ANSWER 1. Upon reasonable investigation, Ford Motor Company does not have enough information to admit or deny. Strict proof is therefore demanded at trial if material. 2. Admitted. BACKGROUND 3. Ford repeats and reiterates its answers to the allegations of paragraphs 1 and 2 with full force and effect as though more fully set forth. 4. Upon reasonable investigation, Ford Motor Company does not have enough information to admit or deny. Strict proof is therefore demanded at trial if material. 5. Upon reasonable investigation, Ford Motor Company does not have enough information to admit or deny. Strict proof is therefore demanded at trial if material. 6. Denied. Ford denies ineffective repairs. Ford also denies that the vehicle cannot be utilized for its intended purposes and is worthless. 7. Denied. Ford Motor Company was not a party to the retail sales transaction. 8. Defendant denies the existence of any defects or non -conformities that substantially impair the use, value or safety of the subject vehicle. 9. Defendant denies the existence of any defects or non -conformities that substantially impair the use, value or safety of the subject vehicle. Without waiving the denial, upon reasonable investigation, Ford does not have enough information to admit or deny. Strict proof is therefore demanded at trial if material. 10. Defendant denies the existence of any defects or non -conformities that substantially impair the use, value or safety of the subject vehicle. 11. Defendant denies the existence of any defects or non -conformities that substantially impair the use, value or safety of the subject vehicle and that the vehicle was subject to two (2) repair attempts. 12. Defendant denies the existence of any defects or non -conformities that substantially impair the use, value or safety of the subject vehicle. 13. Defendant denies the existence of any defects or non -conformities that substantially impair the use, value or safety of the subject vehicle and 30 days out of service. 14. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 15. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 16. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 17. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. AS TO COUNT I 18. Ford repeats and reiterates its answers to the allegations of paragraphs 1 — 17 with full force and effect as though more fully set forth. 19. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 20. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 21. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 22. Defendant denies the existence of any defects or non -conformities that substantially impair the use, value or safety of the subject vehicle. 24. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 25. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 26. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 27. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. ASTOCOUNTII 28. Ford repeats and reiterates its answers to the allegations of paragraphs 1 — 27 with full force and effect as though more fully set forth. 29. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 30. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 31. Upon reasonable investigation, Ford Motor Company does not have enough information to admit or deny. As such, this averment is denied. Strict proof is demanded at trial. 32. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 33. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 34. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 35. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 36. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. AS TO COUNT III 37. Ford repeats and reiterates its answers to the allegations of paragraphs 1 — 36 with full force and effect as though more fully set forth. 38. Defendant denies the existence of any defects or non -conformities that substantially impair the use, value or safety of the subject vehicle. Ford also denies breach of warranties, express and implied. 39. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 40. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 41. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 42. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 43. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. AS TO COUNT IV 44. Ford repeats and reiterates its answers to the allegations of paragraphs 1 — 43 with full force and effect as though more fully set forth. 45. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 46. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. 47. This is a conclusion of law to which no responsive pleading is required. Strict proof is demanded at trial. NEW MATTER 48. The subject vehicle does not have a non -conformity, defect or condition which substantially impairs its use, value or safety. 49. Plaintiff has failed to state a claim upon which relief may be granted. 50. The alleged non -conformity, defect or condition is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle. 51. Plaintiff has failed to meet the Pennsylvania jurisdictional Lemon Law requirements. 52. Plaintiffs claims are barred by the Doctrine of Res Judicata. 53. Plaintiffs claims are barred by the commercial use/nature of the vehicle. 54. The warranty given to the plaintiff at the time of sale has expired by its express terms and conditions. WHEREFORE, this defendant requests this Honorable Court to enter judgment in its favor. DESIGNATION OF TRIAL COUNSEL PLEASE TAKE NOTICE that JAMES P. PETERSON, ESQ., is hereby designated as trial counsel. CERTIFICATION OF COUNSEL I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. CERTIFICATION I hereby certify that a copy of the within document has been filed with the Prothonotary's Office in the Court of Common Pleas of Cumberland County, PA, Civil Action and that a copy of the same was served upon all interested attorneys within the period of time allowed in accordance with the Rules of the Court. DOBIS, RUSSELL & PETERSON, P.C. Attorneys for defendant, Ford Motor Company BY: DATED: October 17, 2014 _............._______ ES P. PETERSON, ESQ. .D. #77315 213 Yates Avenue Woodlyn, Pennsylvania 19094 (610) 689-8698 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CML DIVISION MICHAEL BARTON, Plaintiff, CASE NO. 14-5459 Civil v. FORD MOTOR COMPANY, Defendant. Civil Action CERTIFICATE OF MAILING I, JAMES P. PETERSON, do hereby certify that service of a true and correct copy of the within defendant's, Ford, Answer with New Matter to Plaintiffs Complaint and Entry of Appearance was made on this 17th day of October, 2014 to the below listed counsel by United States mail, postage prepaid. David J. Gorberg, Esq. DAVID J. GORBERG & ASSOCIATES, P.C. 32 Parking Plaza Suite 700 Ardmore, PA 19003 - ----,....____-,- JAMES P. PETERSON DAVID J. GORBERG & ASSOCIATES, P.C. By: DAVID J. GORBERG Attorney for Plaintiff .- Identification No. 53084 32 Parking Plaza Suite 700 Ardmore, PA 19003 215-665-7660 MICHAEL BARTON COURT OF COMMON PLEAS VS. FORD MOTOR COMPANY : NO. 14-5459 PLAINTIFFS' RESPONSE TO DEFENDANT'S NEW MATTER Plaintiff, Michael Barton, through his attorney, DAVID J. GORBERG, hereby responds to defendant's New Matter as follows: 48-54. Denied. The allegations contained in paragraphs 48 through 54 inclusive, of defendant's New Matter are conclusions of law to which no specific response is required under the Pennsylvania Rules of Civil Procedure and strict proof thereof is demanded at trial. WHEREFORE, Plaintiff demands judgment in his favorand against t efe ant. / avid J. G e AVID J. G G, ESQ. Attorney for Plaintiff i VERIFICATION I, DAVID J. GORBERG, verify that I am the attorney for the Plaintiff and that the statements made in the attached ANSWER TO NEW MATTER is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit; and that the language of this pleading is that of counsel. Signer verifies that he has read the within pleading and that it is true and correct to the best of his knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S. 4904 relating to unsworn falsification to authorities. �aid J. orber AVID J. GORBERG, ESQ. Attorney for Plaintiff DATE: October 21, 2014 . f CERTIFICATION OF SERVICE I, DAVID J. GORBERG, ESQUIRE, do hereby certify that service of a true and correct copy of the within ANSWER TO NEW MATTER was made on October 21, 2014 all interested parties by Regular First Class Mail. / avi rb'erag DAVID J. GORBERG, ESQ. Attorney for Plaintiff INTERESTED PARTIES: James P. Peterson, Esquire 326 South Livingston Avenue Livingston,N.J. 07039