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HomeMy WebLinkAbout02-1766 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Todd A. Goss, Plaintiff, V. KeyStone Auto Exchange Sales, Inc. t/d/bla Auto-Max of Mechanicsburg, Defendant : CIVIL ACTION - LAW : : JURY TRIAL DEMANDED NOTICE You have bccn 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 sewed, by entedng a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other dghts important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 UBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en law paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, ia corte tomara medidas y puede continuer ia demanda en contra suya sin previo aviso o notiflcacion. Ademas, la corte puede decidir a favor del demandante y requiem que usted cumpla con todas law provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE ELDINERO SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR IX)NDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL CUMBERLAND COUNTY BAR ASSOCIATION 2 UBERTY AVENUE CARMSLE, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Todd A. Goes, Plaintiff, KeyStone Auto Exchange Sales, Inc. t/d/bla Auto-Max of Mechanicsburg, Defendant : NO. 0,,~- / 7¢ ~ ~ '~'~.. : CIVIL ACTION - LAW : JURY TRIAL DEMANDED COMPLAINT I. Introduction 1. In this action Plaintiff seeks damages resulting from when he purchased a 1999 Ford F-350 truck at defendant's place of business. Plaintiff's claims are based on the Defendants' breach of contract, Defendants' failure to comply with the mandates of the Uniform Commercial Code, Defendants' misrepresentation, Defendants' fraud and Defendants' violation of the Pennsylvania Unfair Trade Practices ACt. Plaintiff demands trial by jury on all claims to which he is so entitled. II. Parties 2. Plaintiff Todd A. Goss is an adult individual, residing at 892 Range End Road, Dillsburg, York County, Pennsylvania. 3. Defendant KeyStone Auto Exchange Sales, Inc., t/d/b/a Auto-Max of Mechanicsburg, is, to the best of Plaintiffs' knowledge and belief, a Pennsylvania business corporation with its principal and registered offices at 5270 East Trindle Road, Mechanicsburg, Cumberland County County, Pennsylvania. III. Factual allef:lations 4. On December 26, 2001, Plaintiff visited Defendant's used car lot to look at a 1999 Ford F-350 Truck [hereinafter referred to as "truck" or "vehicle"] being offered for sale by Defendant for the price of $29,995.00. 5. Plaintiff inquired further about the 1999 Ford F-350 truck and about trading in his dodge truck and spoke with an individual who said his name was Nell Wiest and who held himself out to Plaintiff as an employee of Defendants. 6. Defendant advertises to the public that Auto-Max only features the best in quality pre-owned vehicles and that each vehicle it sells must pass a "60 Point Check Certification Procedure" and Defendant represented the aforesaid 1999 Ford F-350 truck to be in "good" condition. 7. Defendant advertises to the public that Auto-Max has a service department that is second to none, that its full service garage can handle anything from oil changes to major repairs and that Auto-Max stands behind all of its service work for 90 days. 8. After taking the truck for a test ride and listening to the vehicle while the motor was running, plaintiff inquired further about sounds the truck made and was told by Mr. Wiest, acting as Defendant's agent, that these sounds were ordinary for all Ford diesel trucks and that Defendant would perform their "60 Point Check 2 Certification Procedure" to insure that there were no problems with the truck should plaintiff decide to purchase it. 7. Plaintiff inquired if the '~0 Point Check Certification Procedure" included checking the engine, transmission and four wheel drive and Mr. Wiest, acting as Defendant's agent, indicated that it did and that such inspection was "bumper to bumper"; moreover, Defendant, through its agent, agreed to perform a state inspection, clean the interior and repair any problems found during their "60 Point" inspection. 8. Upon further inquiry, Plaintiff was told that if a problem was discovered during the "60 Point" check, Defendant would remedy the problem prior to sale or it would be covered under the remaining 6 years/100,000 miles factory warranty on the engine and drive train. 9. Plaintiff specifically inquired about the operation of the four wheel drive and interior items needing repair and Mr. Wiest, acting as Defendant's agent, represented that they would check the entire vehicle 100%, the seats would be repaired, the interior cleaned and there would be no problems with the vehicle when it was finally delivered to plaintiff. 10. Based upon the statements, representations and assertions made by Mr. Wiest, acting as Defendant's agent regarding the 1999 Ford-350 truck and the public advertisements made by Defendant to the public regarding the quality of their automobiles and "60 point" pre-sale inspections, plaintiff agreed to purchase the vehicle for $29,995.00 and to accept a $9,400.00 trade-in allowance for his dodge truck. True and correct copies of the sales agreement and MV-4ST form 3 are marked Exhibit "A" in the composite, attached hereto and incorporated by reference herein. 11. On December 28, 2001, plaintiff picked up the 1999 Ford-350 truck in the evening and one of the first problems he experienced wes that the headlights did not operate when switched to the "on" position, even though defendant claimed that they had just performed the state inspection. 12. Within two weeks of driving the truck, plaintiff discovered numerous other problems with the vehicle that either were not corrected by defendant as promised or were not disclosed to plaintiff after Defendant performed its "60 Point Check Certification Procedure". 13. On January 15th and 16th 2002, plaintiff took the vehicle to two (2) local Ford dealers, Harbold's Ford and LB. Smith, where it wes determined that the sounds Defendant's agent represented as being normal, were in fact, not normal for a Ford diesel truck, that these sounds indicated something wes wrong and that plaintiff's truck should be "checked" to determine the source of the noise. 14. On January 17, 2002, plaintiff dropped the truck off at L.B. Smith where the source of the noise wes identified and the sounds analyzed and it wes determined that the torque converter wes damaged and would have to be replaced; also, it wes recommended that the transmission be inspected and flushed in case metal shavings got into the transmission. 15. On or about January 18, 2002, plaintiff took the vehicle to Russ Hill Automotive for the needed repair work and after removing the damaged torque converter and inspecting the transmission, it wes discovered that one of the transmission gears was split and another severely damaged requiring additional repairs. 16. Prior to having the repairs performed, Plaintiff notified Defendant of the vehicles defective condition but Defendant refused to repair or correct the same other than to offer Plaintiff $300 towards the cost of the torque converter. 17. To date, plaintiff has expended the following sums to repair or make the vehicle conforming: (a) Russ Hill Automotive to replace torque converter and rebuild transmission $2,478.97; (b) LB.Smith to analyze noise $63.60; (c) hubcap $28.77; (d) ashtray $6.36; (e) switch assembly for transmission overdrive $10.62; (f) cover to hold switch assembly $3.20; (g) oil, oil filter and air filter $83.68; and (h) diesel fuel $37.00. 18. Plaintiff has requested and demanded that Defendant take the vehicle back and refund his money, or, in the alternative, pay for all of the repairs but Defendant has refused to do so. 19. Defendant informed Plaintiff that it was not responsible for the transmission rebuild or any other repairs and that it would only pay $300 toward the cost of the new torque converter. IV. Causes of Action Count 1 VIOLATION OF UNFAIR TRADE PRACTICES ACT 20. Plaintiff repeats and realleges paragraphs 1 through 19 above as if the same ware set forth herein at length. 21. At all times relevant hereto, defendant was a "person" as defined in 5 Section 201-2(2) of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73. P.S. Section 201-1 et seq. (hereinafter "CPL"). 22. The conduct of Defendant as described herein violated the Unfair Trade Practices and Consumer Protection Law in that: a. defendant represented the 1999 Ford F-350 truck to be of good standard, quality or grade when such was of poor standard, quality or grade; b. defendant failed to comply with the terms of its certification procedure and warranty after the purchase of the vehicle and it failed to inspect, fix or repair all problems with the vehicle prior to its delivery to plaintiff; c. defendant engaged in fraudulent conduct by failing to disclose the condition of the drive train and the source of the "sounds" heard by plaintiff prior to the sale of the truck; d. defendant made statements, directly or indirectly, which it knew or should have known to be untrue or misleading; e. defendant represented that no repairs ware necessary or desirable when such was not in fact true; f. defendant represented that inspections, repairs and maintenance ware performed on the truck when such was not in fact true; g. defendant failed to remedy promptly at no charge to plaintiff items of repair that should have been identified by the 60 point inspection; h. defendant failed to inspect and certify the truck in a skilled and workmanlike manner; i. defendant agreed to perform a bumper to bumper inspection, identify any problems and fix the same but then failed to perform any of these services; 23. Defendant engaged in the following conduct which constitutes a transaction, practice or course of business which operated as a fraud or deceit upon plaintiff: a. defendant did not perform the "60 Point Check Certification Procedure", defendant did not identify and disclose problems that it knew or should have known existed and defendant failed to perform its services in a skilled and workmanlike manner; b. defendant attempted to pass on to plaintiff the costs for correcting defects which should have been covered under defendant's certification procedure, warranty and express promises; c. defendant failed to disclose defects or problems it knew or should have known existed when it first obtained the vehicle; d. defendant failed to disclose defects or problems it knew or should have known existed after being asked by plaintiff about the "sounds" the truck made when it operated; e. defendant represented that the truck sounded normal when it knew or should have known that the "sounds" indicated a problem or, at a minimum, should have been investigated as part of defendant's certification procedure; f. defendant represented to perform a 60 point bumper to bumper check on the truck when it knew or should have known that such inspection wes not done; g. defendant refused to remedy at no charge to plaintiff the defective drive train components that defendant knew or should have known about prior to sale or, at a minimum, upon completing its "60 Point Check Certification Procedure"; h. Defendant failed to recognize the rights of plaintiff to revoke his acceptance of the non-conforming vehicle or to reject the same. 24. Due to defendant's conduct described above plaintiff wes required to have the truck undergo repair and maintenance at another service facility at the costs of $2,478.97 and plaintiff incurred an additional $233.23 to fix or maintain the truck in the condition it wes promised at the time of sale. WHEREFORE, Plaintiff demands judgment against Defendant for treble damages in the amount of at least $8,136.60 pursuant to 73. P.S. Section 201-9.2 plus reasonable attorney's fees and court costs and expenses incurred herein. Count 2 MISREPRESENTATION 25. Plaintiff repeats and realleges paragraphs 1 through 24 above as if the same were set forth herein at length. 26. Plaintiff's first and only time to investigate and consider his purchase of the 1999 Ford F-350 from Defendant wes on December 26, 2001. 27. On December 26, 2001, Plaintiff had an extensive conversation with Defendant's agent and Plaintiff reviewed a Ford bulletin referred to him by Defendant's agent. 28. Plaintiff signed the contract of sale with Defendant on December 26, 2001 in reliance on the verbal statements of fact and document referred to him by Defendant's agent. 29. On all occasions referred to in paragraph 26, the agent failed to disclose the actual condition of the vehicle's drive train, including the torque converter and transmission, or that an examination of the drive train components would not be covered under the "60 Point Check Certification Procedure" by its sen/ica department. 30. The agent had held himself out to Plaintiff as having superior knowledge and expertise about the vehicle in question and about Defendant's "60 Point" bumper to bumper check certification procedure and the agent knew that the Plaintiff was relying on those statements of fact made by the agent. 31. Defendant's agent and sen/ice department knew or should have known that the vehicle in question needed the torque converter replaced and transmission rebuilt and they had an obligation to disclose this fact to Plaintiff, and they failed to disclose that information. 32. Defendant's concealment was wilfull and malicious and was intended to induce Plaintiff to purchase the vehicle from Defendant and Plaintiff made such purchase on December 26, 2001. 33. Plaintiff would not have made the purchase if he had been informed that the vehicle's four wheel drive was not in good operating condition and needed a new torque converter and transmission rebuild, so Plaintiff relied to his detriment on the concealment by Defendant's agents. 34. Because of Defendant's misrepresentations and Plaintiff's reliance thereon, Plaintiff is entitled to reimbursement for all monies expended to repair, fix or maintain the vehicle in the condition it was promised to him at the time of sale. WHEREFORE, plaintiff requests that this Court determine and declare: (a) an award for damages of at least $2,478.97 to replace the torque converter and rebuild the transmission and an award of damages to repair, fix or maintain the truck in the condition it was promised at the time of sale; (b) that defendant, through its agents or employees, intentionally, wilfully and maliciously misrepresented the condition of the vehicle and that an award for punitive damages in a sum to be determined by the court be awarded to Plaintiff; 8 (c) that plaintiff be awarded such other and further relief as the Court deems just and appropriate, including reasonable attorneys' fees and the costs and disbursements incurred in this action, together with interest and costs as provided by law. Count 3 FRAUD 35. Plaintiff repeats and realleges paragraphs 1 through 34 above as if the same were set forth herein at length. 36. After Plaintiff informed Defendant's agent on December 26, 2001 that he was interested in the vehicle only if it passed the "60 Point Check Certification Procedure" and the four wheel drive wes in good working condition, the agent of the Defendant informed Plaintiff on December 28, 2001 that the certification procedure had been performed and the truck thoroughly checked by the service department and no problems were found. 37. Those representations were material and important to Plaintiff's decision about his purchase. 38. Those representations were contrary to the procedure followed by defendant while conducting their "60 Point Check Certification Procedure" and were therefore false, and Defendant's agents knew they were false. 39. In the alternative, Defendant's agent made those representations with reckless indifference as to the truth or falsity of the representations. 40. Defendant's agent made those representations with the intent of inducing Plaintiff to rely on the representations and Defendant willfully, maliciously and intentional concealed the truth in order to take unfair advantage of Plaintiff in the sale of the truck. 41. Plaintiff relied on those representations, including the agent's statement about the remaining factory warranty, and purchased the vehicle for $29,995.00, exclusive of taxes, tags and transfer. 9 42. Plaintiff has requested and demanded to be reimbursed for his out of pocket expenses in the sum of $2,478.97 to fix the vehicle and make it conforming but Defendant has refused to make that restitution. WHEREFORE, plaintiff requests that this Court determine and declare: (a) an award for damages of at least $2,478.97 to replace the torque converter and rebuild the transmission and an award of damages to repair, fix or maintain the truck in the condition it was promised at the time of sale; (b) that defendant, through its agents or employees, willfully, maliciously, and intentionally engaged in fraud to conceal the condition of the vehicle and that an award for punitive damages in a sum to be determined by the court be awarded to Plaintiff; (c) that plaintiff be awarded such other and further relief as the Court deems just and appropriate, including reasonable attorneys' fees and the costs and disbursements incurred in this action, together with interest and costs as provided by law. Count 4 BREACH OF IMPLIED WARRANTY OF FITNESS FOR INTENDED PURPOSE 43. Plaintiff repeats and realleges paragraphs 1 through 42 above as if the same were set forth herein at length. 44. The Pennsylvania Uniform Commercial Code (herein the Code) mandates that all persons in Pennsylvania who sell or offer to sell a used motor vehicle must make disclosures to potential purchasers of the vehicle. 45. Prior to purchasing the vehicle on December 26, 2001, plaintiff advised Mr. Wiest, that he needed a truck for use in his trade as a contractor and needed a vehicle that was heavy duty and had a four wheel drive. 46. Defendant impliedly warranted to plaintiff that the 1999 Ford F-350 was fit for the purposes for which plaintiff intended to use it. 10 47. As demonstrated by the failure of defendant to comply with the Code, the 1999 Ford F-350 truck sold to plaintiff was not fit for the purposes for which plaintiff bought it. 48. As a result of the defendant's breach of the implied warranty of fitness for intended purpose, plaintiff was forced to spend $2,478.97 to replace the damaged torque converter and rebuild the damaged transmission, plaintiff was denied use of the vehicle and plaintiff was deprived of his means of carrying his tools and equipment as part of his job. WHEREFORE, plaintiff requests that this Court determine and declare: (a) an award for damages of at least $2,478.97 to replace the torque converter and rebuild the transmission and an award of damages to repair, fix or maintain the truck in the condition it was promised at the time of sale; (b) that defendant breached the warranty of fitness for intended purpose; and (c) that plaintiff be awarded such other and further relief as the Court deems just and appropriate, including reasonable attorneys' fees and the costs and disbursements incurred in this action, together with interest and costs as provided by law. Count 5 IMPLIED WARRANTY OF MERCHANTABILITY 49. Plaintiff repeats and realleges paragraphs 1 through 48 above as if the same were set forth herein at length. 50. Defendant impliedly warranted to plaintiff that the truck was fit for the ordinary purposes for which such trucks ara used, including its operation as a four wheel drive vehicle. 51. Defendants impliedly warranted to plaintiff that the truck was fit for the purposes for which the plaintiff purchased it, including its use as a four wheel drive vehicle. 52. Defendant knew the purpose for which the truck was intended and that plaintiff was relying on the defendant's statements and representations to furnish a suitable vehicle for that purpose. 11 53. If the torque converter and transmission did not operate properly or otherwise did not comply with Code, then the 1999 Ford F-350 was not fit for the purposes for which the plaintiff purchased it. 54. By reason of the foregoing, plaintiff was forced to spend $2,478.97 to replace the damaged torque converter and rebuild the damaged transmission, plaintiff was denied use of the vehicle and plaintiff was deprived of his means of carrying his tools and equipment as part of his job. WHEREFORE, plaintiff requests that this Court determine and declare: (a) an award for damages of at least $2,478.97 to replace the torque converter and rebuild the transmission and an award of damages to repair, fix or maintain the truck in the condition it was promised at the time of sale; (b) that defendant breached the warranty of fitness for intended purpose; and (c) that plaintiff be awarded such other and further relief as the Court deems just and appropriate, including reasonable attorneys' fees and the costs and disbursements incurred in this action, together with interest and costs as provided by law. Count 6 BREACH OF THE WARRANTY OF SUITABILITY 55. Plaintiff repeats and realleges paragraphs 1 through 54 above as if the same were set forth herein at length. 56. Defendant impliedly warranted to plaintiff that the truck was suitable for the ordinary purposes for which such trucks are used, including its use as a four wheel drive vehicle. 57. Defendant knew at the relevant time the purpose for which the truck was required and that plaintiff was relying on defendant's statements and representations that he would furnish a suitable vehicle for that purpose. 58. If the torque converter and transmission did not operate properly or otherwise comply with Code preventing plaintiff from driving the truck, then the vehicle was not suitable for the ordinary purposes for which such trucks ara sold. 12 59. If the truck did not comply with Code, then the vehicle sold to plaintiff was not suitable for the purposes for which plaintiff bought it. 60. By reason of the foregoing, plaintiff was forced to spend $2,478.97 to replace the damaged torque converter and repair the damaged transmission, plaintiff was denied use of the vehicle and plaintiff was deprived of his means of carrying his tools and equipment as part of his job. WHEREFORE, plaintiff requests that this Court determine and declare (a) an award for damages of at least $2,478.97 to replace the torque converter and rebuild the transmission and damages to repair, fix or maintain the truck in the condition it was promised at the time of sale; (b) that defendant breached the warranty of suitability; and (c) that plaintiff be awarded such other and further relief as the Court deems just and appropriate, including reasonable attorneys' fees and the costs and disbursements incurred in this action, together with interest and costs as provided by law. Dated: Respectfully submitted, St~ph~n K. Port, o, Esquire I.D. # 34538 Bratic & Portko 101 South U.S. Route 15 Dillsburg, Pennsylvania 17019 (717) 432-9706 Attorney for Plaintiff 13 T'!.:qO.Y ~: , 993 ' . ~ ~o) · __ Y-r.~q' . %'32-:1778' ?lltl~d~N:~i~l , . .';.!.', ~;~,~,:.-..,.~..~:.L .'L':. ' ' .~ . .. ...... ~ ..... APPLICANTS COPY/TEMPORARY REGISTRATION (V,.~p.~ 90 DAYS) . !. NOTE.'If a. ~o-purGh · * .' .............. ' : ' "- ' K HE E . Oth~se.~'the title. Auto-Mex of'Mechanlc'burg 5270 E. Tflndie Rd. Mechanl~burg, PA 17050 KeyStone Auto Exchange Sales, inc. DBA, Aut~Max of Cmdllle , , Auto~Mlx.of Colonial'Park · AutO-Max'o! DIItmburg, 1110 Harrisburg Pike 4220 Jone~town. Rd. 819 U.S. Rte. 15 North Carll.le, PA 17013 Harflsbu. rg .PA;17112 -. · Dlllsburg, PA 17019 (717) 2430707 (717) ~41.1.800 (717) 432-5100 (717) 6~11 ~-6888 J"'"'t"ODD A G'DS,::T I /""" "'' 1 I~ ~ M~ ~R ~ THE r-OLL~ ........ v~. ' MA~ ~ ~ J 892 !,A~iGE END RD m ~'1/26/20nl l, J I i993 ~1)/',~; ~ 2500. CMJB ' ' ~ - "'~t' , [ ' I ow.. " 0 .Gu . ~~.~:.:.~w . N, A" ~2'.. ~,'~..;'..;' . .~ ~ ~ . ' ' " '' - ' · ' ' "i "' ~'~ +~,2~.' -' .. .... ...... · PUROH~E~'S ~~'~ - . Tmd~ln . .~,.4 0u. USE~ CAR ~NT~OTUAL . =. , ~ w~--~ .... L-Y-" . THE ~NkOR~TIbN ~U'SEE ON':~E'~NOOW ~M~Fo~I~HIC~la'~ ~ .... Net'~r~e- n ~, ~ ~. o PART "OFd'THlS '~. =mNFoR~ON' ON'~'~E: WJN~ti~"~ ," ~,.. ( ' ~ · t ~ '~ t ....... xj ~SIONB IN mE CON~ OF ~LE. ;'~ CR~ De~Jt "__ ..... Pumh~r ~mes that Ihl~ order In~l~ ~t el the ~ ~d ~ndltlon. ~ ~h the f~e ~ r~er~ ~d. hem~, that thla ~et ~1~ a~ .u~r~a any prl~ and. of the date h~f ~,eJ the ~m~ate a~ ex~l~lve .~t~nt of ~e leto at ~me~ ~atl~ to. thJ Ju~.~ ~em ~er~ hem~. ~ls e~ar ah~l SlGNA~REX~ ~~' ~ ~a.~u~ z.' / -'-" ...~.-~ ..... ~..-o~E" VERIFICATION I, Todd A. Goss, hereby acknowledge that I am Plaintiff in the foregoing Complaint, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Todd A. Goss Timothy J. Nieman, Esquire Attorney I.D. No. 66024 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant TODD A. GOSS Plaintiff KEYSTONE AUTO EXCHANGE SALES, INC. d/b/a AUTO-MAX OF MECHANICSBURG Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION LAW : NO. 02-1766 Civil Term PRELIMINARY OBJECTIONS AND NOW COMES Defendant, Keystone Auto Exchange Sales, Inc. d/b/a Auto-Max of Mechanicsburg and files its Preliminary Objections, stating as follows: 1. Plaintiff initiated this action on or about April 9, 2002. Plaintiff's claim arises out of his purchase ora 1999 Ford F-350 truck (the "Truck") from Defendant. (Complaint, ¶1). 2. Plaintiffs Complaint contains the following Counts: Count 1: Violation of the Unfair Trade Practices Act; Count 2: Misrepresentation; Count 3: Fraud; Count 4: Breach of Implied Warranty of Fitness for Intended Purpose; and Count 5: Implied Warranty of Merchantability. 3. Attached to Plaintiffs Complaint is the Sales Agreement between Plaimiff and Defendant. (Complaint, ¶10, Exhibit "A"). 428110.1 4. In the Sales Agreement, Plaintiff specifically recognized, by checking the appropriate box and signing immediately underneath, that he was only receiving the balance of the factory warranty on the Truck. The Sales Agreement states: WARRANTY INFORMATION FACTORY WARRANTY - The factory warranty constitutes all of the warranties with respect to the sale of this item/items. The seller hereby expressly disclaims all warranties, either expressed or implied including any implied warranty of merchantability or fitness for a particular purpose, and the seller neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of this item/items. (Complaint, Exhibit "A"). Also, the Sales Agreement is fully integrated: "Purchaser agrees that this order includes all of the terms and conditions on both the face and reverse side hereof, that this order cancels and supercedes any prior agreement and as of the date hereof comprises the complete and exclusive statement of the terms of agreement relating to the subject matters contained hereby." (Complaint, Exhibit "A"). Preliminat3~ Objection I - t 5. Paragraphs 1 through 4 above are incorporated herein by reference. 6. Plaintiff's Count 1 alleges a claim for violation of the Pennsylvania Unfair Trade Practices Act, 73 P.S. §201-1 et seq. 7. Plaintiff's Count 1 is barred as a matter of law because the relationship between Plaintiff and Defendant is governed by a fully integrated, written contract and the gist of the action between the Plaintiff and Defendant sounds in contract. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. t/d/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 1. Preliminary Objection II 8. Paragraphs 1 through 7 above are incorporated herein by reference. 9. Plaintiff's Count 2 alleges a claim for misrepresentation. 10. Plaintiff's Count 2 is barred as a matter of law because thc relationship between Plaintiff and Defendant is governed by a fully integrated, written contract and the gist of the action between thc Plaintiff and Defcndatn sounds in contract. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. ffd/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 2. Preliminary Objection III 11. Paragraphs 1 through 10 above are incorporated herein by reference. 12. Plaintiff's Count 3 alleges a claim for fraud. 13. Plaintiffs Count 3 is barred as a matter of law because the relationship between Plaintiff and Defendant is governed by a fully integrated, written contract and the gist of the action between the Plaintiff and Defendant sounds in contract. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. t/d/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 3. Preliminary Objection IV 14. Paragraphs 1 through 13 above are incorporated herein by reference. 15. Plaintiff s Count 4 alleges a claim for breach of implied warranty of fitness for intended purpose. 16. Plaintiff's Count 4 is barred as a matter of law because, pursuant to 13 Pa.C.S.A. §2316, the implied warranty of fitness for intended purpose is expressly excluded from the contract between Plaintiff and Defendant. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. t/d/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 4. Preliminary Objection V 17. Paragraphs 1 through 16 above are incorporated herein by reference. 18. Plaintiff's Count 5 alleges a claim for breach of implied warranty of merchantability. 19. Plaintiff's Count 5 is barred as a matter of law because, pursuant to 13 Pa.C.S.A. §2316, the implied warranty of merchantability is expressly excluded from the contract between Plaintiff and Defendant. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. tJdgo/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 5. Respectfully submitted, RHOADS & SINON LLP By: Timothy J. Nieman One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on this ~q~P/~day of April, 2002, a tree and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Stephen K. Portko, Esquire Bratic & Portko 101 South U.S. Route 15 Dillsburg, Pennsylvania 17019 PRAECIPE FOR LISTING CASE FOR ARGUMENT (~USt be typewritten and su~nitted in dupl{cate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please l~t the within matter for the next Argunent Court. CAPTION OF CASE (e~tire captic~ must be stated in ~,]1) TODD A. GOSS, (Plaintiff) KKEYSTONE AUTO EXCHANGE SALES, INC. d/b/a AUTO-MAX OF MRDC~ANICS BURG, ( Defe~w~nt ) 02-1766 Civi% T..erm 19 State matter to be argued (i.e., plaintiff's motion for new tr-i~l, defendant's demeter to c~,%,]a!nt, etc.): Defendant's d~nurrer to Counts I through V of Plaintiff's Cc~plaint 2. Identify counsel who w~ll argue ~ase: J (a) for p1 ~,tiff: Address: (b) for defendant: Stephen Portko, Esquire 101 South U.S. Route 15 Dillsburg, PA 17019 Timothy J. Ni~man, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Iw411 notif~a11 parties in writingwithin two dal~ that th/s case has been l~ted for arc3am~t. 4. Ar~t Court ~te: (l~ Z2, Z(Z)2_ D~ted: April 30, 2002 Attorney for IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Todd A. GOSS, Plaintiff, KeyStone Auto Exchange Sales, Inc. t/d/b/a Auto-Max of Mechanicsburg, Defendant NO. 02-1766 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I RK~REBY CERTH~Y, that I served a true and correct copy of the PRAECIPE FOR LISTING CASE FOR ARGUMENT in the above captioned matter upon the individual listed below as follows: Timothy I. NiemAn~ Esquire RHOADS & SINON LLP Twelt~h Floor One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Date: nko, Esquire 10l SouthU. S. Route 15 Dillsburg, PA 17019 Timothy J. Nieman, Esquire Attorney I.D. No. 66024 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant TODD A. GOSS Plaintiff KEYSTONE AUTO EXCHANGE : SALES, INC. d/b/a AUTO-MAX OF : MECHANICSBURG : Defendant : : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION LAW : NO. 02-1766 Civil AMENDED PREI,IMINARY OBJECTIONS AND NOW COMES Defendant, Keystone Auto Exchange Sales, Inc. d/b/a Auto-Max of Mechanicsburg and files its Amended Preliminary Objections, stating as follows: 1. Plalntiffinitiated this action on or about April 9, 2002. Plaintiff's claim arises out of his purchase of a 1999 Ford F-350 truck (the "Truck") from Defendant. (Complaint, ¶1). 2. Plaintiff's Complaint contains the following Counts: Count 1: Violation of the Unfair Trade Practices Act; Count 2: Misrepresentation; Count 3: Fraud; Count 4: Breach of Implied Warranty of Fimess for Intended Purpose; Count 5: Implied Warranty of Merchantability; and Count 6: Breach of the Warranty of Suitability. 3. Attached to Plaintiff's Complaint is the Sales Agreement between Plaintiff and Defendant. (Complaint, ¶10, Exhibit "A"). 428110,1 4. In the Sales Agreement, Plaintiff specifically recognized, by checking the appropriate box and signing immediately underneath, that he was only receiving the balance of the factory warranty on the Truck. The Sales Agreement states: WARRANTY INFORMATION FACTORY WARRANTY - The factory warranty constitutes all of the warranties with respect to the sale of this item/items. The seller hereby expressly disclaims all warranties, either expressed or implied including any implied warranty of merchantability or fitness for a particular purpose, and the seller neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of this item/items. (Complaint, Exhibit "A"). Also, the Sales Agreement is fully integrated: "Purchaser agrees that this order includes all of the terms and conditions on both the face and reverse side hereof, that this order cancels and supercedes any prior agreement and as of the date hereof comprises the complete and exclusive statement of the terms of agreement relating to the subject matters contained hereby." (Complaint, Exhibit "A"). Preliminary Objection I Demurrer to Count 1 5. Paragraphs 1 through 4 above are incorporated herein by reference. 6. Plaintiff's Count 1 alleges a claim for violation of the Pennsylvania Unfair Trade Practices Act, 73 P.S. §201-1 et seq. 7. Plaintiff's Count 1 is barred as a matter of law because the relationship between Plaintiff and Defendant is governed by a fully integrated, written contract and the gist of the action between the Plaintiff and Defendant sounds in contract. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. tJd/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 1. Preliminary Objection II Demurrer to Count 2 8. Paragraphs 1 through 7 above are incorporated herein by reference. 9. Plaintiff's Count 2 alleges a claim for misrepresentation. 10. Plaintiff's Count 2 is barred as a matter of law because the relationship between Plaintiff and Defendant is governed by a fully integrated, written contract and the gist of the action between the Plaintiff and Defendant sounds in contract. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. ffd/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 2. Preliminary Objection III Demurrer to Count 3 11. Paragraphs 1 through 10 above are incorporated herein by reference. 12. Plaintiff's Count 3 alleges a claim for fraud. 13. Plaintiff's Count 3 is barred as a matter of law because the relationship between Plaintiff and Defendant is governed by a fully integrated, written contract and the gist of the action between the Plaintiff and Defendant sounds in contract. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. t/d/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 3. Preliminary Objection IV Demurrer to Count 4 14. Paragraphs 1 through 13 above are incorporated herein by reference. 15. Plaintiff's Count 4 alleges a claim for breach of implied warranty of fitness for intended purpose. 16. Plaintiff's Count 4 is barred as a matter of law because, pursuant to 13 Pa.C.S.A. §2316, the implied warranty of fitness for intended purpose is expressly excluded from the contract between Plaintiff and Defendant. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. t/d/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 4. Preliminary Objection V Demurrer to Count ~ 17. Paragraphs 1 through 16 above are incorporated herein by reference. 18. Plaintiff's Count 5 alleges a claim for breach of implied warranty of merchantability. 19. Plaintiff's Count 5 is barred as a matter of law because, pursuant to 13 Pa.C.S.A. §2316, the implied warranty of merchantability is expressly excluded from the contract between Plaintiff and Defendant. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. t/d/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 5. Preliminary Objection VI Demurrer to Count 6 20. Paragraphs 1 through 19 above are incorporated herein by reference. 21. Plaintiff's Count 6 alleges a claim for breach of implied warranty of Suitability. 22. Plaintiff's Count 6 is barred as a matter of law because, pursuant to 13 Pa.C.S.A. §2316, the implied warranty of suitability is excluded from the contract between Plaintiff and Defendant. WHEREFORE, Defendant Keystone Auto Exchange Sales, Inc. t/d/b/a Auto-Max of Mechanicsburg requests that this Court dismiss Plaintiff Todd A. Goss' Count 6. Respectfully submitted, RHOADS & SINON LLP By: [ - One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on this 7th day of May, 2002, a tree and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Stephen K. Portko, Esquire Bratic & Portko 101 South U.S. Route 15 Dillsburg, Pennsylvania 17019 TODD A. GOSS, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEYSTONE AUTO EXCHANGE SALES, INC. d~ AUTO-MAX OF MECHANICSBURG, DEFENDANT : 02-1766 CIVIL TERM BEFORE BAYLEY, J. AND HESS,& ORDER OF COURT AND NOW, this ~day of September, 2002, the preliminary objections of defendant to plaintiff's complaint, ARE DISMISSED.~ ,,"Stephen K. Portko, Esquire For Plaintiff /Timothy J. Nieman, Esquire For Defendant Edgar B. Bayley, J. ~) :saa ~ We reject defendant's contention that plaintiff's causes of action for a violation of unfair trade practices, misrepresentation and fraud are barred by the economic loss doctrine. At this pleading stage, we are not satisfied that if plaintiff can recover for misrepresentation and/or fraud, he does not have a remedy for a breach of an implied warranty of fitness for intended purpose and/or merchantability under 13 Pa.C.S. § 2721. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD A. GOSS, Plaintiff V. KEYSTONE AUTO EXCHANGE : SALES, INC. d/blaAUTO-MAXOF : MECHANICSBURG, : D~endant : : CIVIL ACTION - LAW : NO. 02-1766 Civil Term TO: Keystone Auto Exchange Sales, Inc. d/bla Auto-Max, Defendant and their attorney, Timothy J. Neiman, Esquire DATE OF NOTICE: 09111/02 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 UBERTY AVENUE CARUSLE, PA 17013 (717) 249-3166 Date: Stephen I~. Portko, Esquire 101 South U.S. Route 15 Dillsburg, PA 17019 (717) 432-97O6 Attorney for Plaintiff C~MBETHE COURT OF COMMON PLEAS OF RLAND COUNTY, PENNSYLVANIA TODD A. GOSS, Plaintiff KEYSTONE AUTO EXCHANGE SALES, INC. d/b/a AUTO-MAX OF MECHANICSBURG, Defendant : CIVIL ACTION. LAW : NO. 02-1766 Civil Term I HI~_~REBY CERTIFY, that I served a true and correct copy of the foregoing Defendant's IMPORTANT NOTICE OF DEFAULT in the above captioned matter upon the individuals or persons listed below as follows: KeyStone Auto Exchange Sales, Inc. t/d/b/a Auto-Max of Mechancisburg 5270 East Trindle Road Mechanicsburg, PA 17055 Timothy j. Niem~% Esquire RHOADS & SINON LLP Twelfth Floor One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Date: ep en K Portico, Esqmre I01 South U.S. Route 15 Dillsburg, PA 17019 Timothy J. Nieman, Esquire Attorney I.D. No. 66024 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant TODD A. GOSS Plaintiff Vo KEYSTONE AUTO EXCHANGE SALES, INC. d/b/a AUTO-MAX OF MECHANICSBURG Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION LAW : NO. 02-1766 Civil Term : : . ANSWER AND NEW MATTER AND NOW COMES Defendant, Keystone Auto Exchange Sales, Inc. d/b/a Auto-Max of Mechanicsburg and files this Answer and New Matter, stating as follows: 1. The damages, legal theories and factual allegations that comprise Plaintiff's claim are outlined in the Complaint which, being a writing, speaks for itself. By way of further answer, and as explained in detail below, it is denied that Defendant is liable to Plaintiff for damages. It is further denied that Defendant breached a contract with Plaintiff, failed to comply with the mandates of the Uniform Commercial Code, made any misrepresentations, made any fraudulent statements and/or violated the Pennsylvania Unfair Trade Practices Act. Additionally, the allegations of this Paragraph are legal conclusions to which no response is required. 2. Admitted on information and belief. 3. Admitted. 4. Admitted. 5. Admitted. 428905.1 6. Admitted in part and denied in part. It is admitted that the Defendant represented that the 1999 Ford F-350 truck was in good condition and that Defendant features quality pre- owned vehicles. The remaining allegations of this Paragraph are denied. To the contrary, Defendant does not advertise that each vehicle it sells must pass a "60 Point Check Certification Procedure". 7. Admitted in part and denied in part. It is admitted that Defendant has a good service department, that it can handle most, but not all, repairs and that it stands behind its service work for 90 days. The remaining,allegations of this Paragraph are denied. To contrary, Defendant cannot handle all repairs, including transmission work. 8. Denied. To the contrary, Mr. Wiest never told Plaintiff that Defendant would perfomi a "60 Point Check Certification Procedure" to insure that there were no problems with the truck should Plaintiff decide to purchase it. Mr. Wiest did tell Defendant that a state inspection would be perfomxed on the truck. When the state inspection was performed, there was no indication of the problems alleged by Plaintiff in the Compalint. 7.~ Admitted in part and denied in part. It is admitted that a state inspection was perfonaed on the vehicle and that the interior was cleaned. The remaining allegations are denied. To the contrary, Plaintiff never inquired about a "60 Point Check Certification Procedure" and whether such test included the engine, transmission and four wheel drive. 8. Denied. To the contrary, Plaintiff was never told that if a problem was discovered during the "60 Point" check, Defendant would remedy the problem prior to sale or it would be ~ Plaintiff includes two Paragraphs 7 and 8 in his Complaint. -2- covered under the remaining 6 year/100,000 miles factory warranty on the engine and drive train. By way of further answer, at all times Plaintiff was aware that the remaining 6 year/100,000 miles factory warranty was through Ford Motors and not Defendant. Additionally, Plaintiff expressly declined additional warranty coverage on this vehicle. 9. Admitted in part and denied in part. It is admitted that Mr. Wiest told Plaintiff that the seat would be repaired and the interior cleaned, both of which were done by Defendant. The remaining allegations are denied. To the contrary, outside of the items admitted, the conversation outlined in this Paragraph did not occur. 10. Admitted in part and denied in part. It is admitted that Plaintiffpurchased the vehicle and accepted a $9,400 trade-in allowance for his Dodge truck. After reasonable investigation, Defendant is unable to determine the truth or falsity of the remaining allegations of this Paragraph and denies the same. By way of further answer, the documents referenced in this Paragraph, being writings, speak for themselves. 11. Admitted in part and denied in part. It is admitted that Plaintiffpicked up the vehicle on or about December 28, 2001 in the evening, that he experienced problems with the headlights and that a state inspection had just been performed on the vehicle. The remaining allegations of this Paragraph are denied. It is also denied that the headlights not working was attributable to Defendant. To the contrary, the headlights did not work because Plaintiff did not know how to operate headlights on a vehicle equipped for a snowplow. Once Plaintiffw~ shown how to properly operate the headlights, they worked. 12. After reasonable investigation, Defendant is unable to determine the troth or falsity of these allegations and denies the same. By way of further answer, within two weeks of driving the truck, Defendant had put approximately 1,000 miles on the vehicle. -3- 13. After reasonable investigation, Defendant is unable to determine the troth or falsity of these allegations and denies the same. By way of further answer, within two weeks of driving the track, Defendant had put approximately 1,000 miles on the vehicle. 14. After reasonable investigation, Defendant is unable to detexmine the truth or falsity of these allegations and denies the same. By way of further answer, within two weeks of driving the track, Defendant had put approximately 1,000 miles on the vehicle. 15. After reasonable investigation, Defendant is unable to determine the truth or falsity of these allegations and denies the same. By way of further answer, within two weeks of driving the truck, Defendant had put approximately 1,000 miles on the vehicle. 16. Admitted in part and denied in part. It is admitted that prior to having repairs performed, Plaintiffnotified Defendant of what he alleged to be the vehicle's condition. The remaining allegations are denied. To the contrary, the vehicle was not defective when it left Defendant's lot. Additionally, when Plaintiff approached Defendant about the alleged problems with the vehicle, he told Defendant that he had a quote for the allegedly required work and that it would cost approximately $600 to perform the repairs. After discussing the situation, Defendant agreed to split the cost for the alleged repairs. Plaintiff, apparently recognizing that he had declined warranty coverage, agreed to accept $300 from Defendant as a final release of all claims. 17. After reasonable investigation, Defendant is unable to determine the truth or falsity of these allegations and denies the same. By way of further answer, within two weeks of driving the truck, Defendant had put approximately 1,000 miles on the vehicle. 18. Admitted in part and denied in part. It is admitted that at one time Plaintiff requested and demanded that Defendant take the vehicle back and refund his money, or, -4- alternatively, pay for the repairs that he alleges were necessary. The remaining allegations are denied. To the contrary, Defendant offered to pay $300 toward Plaintiff's alleged repairs to the vehicle. Plaintiff accepted this offer. Additionally, Defendant offered to trade the vehicle at issue in this case for another vehicle. 19. Admitted as outlined above. 20. 21. Count 1 VIOLATION OF UNFAIR TRADE PRACTICES ACT Paragraphs 1 through 19 above are incorporated herein by reference. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. 22. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. Specifically: a. Denied. To the contrary, the truck was not of poor standard quality or grade. Plaintiff. b. Denied. To the contrary, the Defendant perfomied all repairs promised to c. Denied. To the contrary, Defendant did not fail to disclose the condition of the drive train and source of the sounds allegedly heard by Plaintiffprior to buying the truck. By way of further answer, Defendant could have performed any inspection on the truck that he desired. statements. Denied. To the contrary, Defendant did not make any false or misleading -5- e. Denied. To the contrary, Defendant did not make any false or misleading statements concerning vehicle repairs. f. Denied. To the contrary, Defendant did not make any false or misleading statements concerning vehicle repairs. Denied. To the contrary, the Defendant performed all repairs promised to Plaintiff. h. Denied. To the contrary, Defendant at all times relevant hereto acted in a skilled and workmanlike manner. i. Denied. Denied. To the contrary, the Defendant performed all inspections and repairs promised to Plaintiff. 23. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. Specifically: a. Denied. To the contrary, Defendant performed all inspections promised to Plaintiff, did not make any false or misleading statements concerning the vehicle's condition and perfmmed its services in a skilled and workmanlike manner. b. Denied. To the contrary, Defendant did not attempt to pass on to Plaintiff the costs for correcting alleged defects that should have been covered under Defendant's certification procedure, warranty and express promises. Additionally, Plaintiff disclaimed the warranties of merchantability, fitness for intended purpose and suitability. c. Denied. To the contrary, Defendant did not make any false or misleading statements concerning alleged defects or problems with the vehicle. -6- d. Denied. To the contrary, Defendant did not make any false or misleading statements concerning alleged defects or problems with the vehicle. e. Denied. To the contrary, Defendant did not make any false or misleading statements concerning alleged defects or problems with the vehicle. f. Denied. To the contrary, Defendant never represented that it did a 60 point inspection of the track. g. Denied. To the contrary, Defendant never represented that it did a 60 point inspection of the truck and perfmmed all repairs promised to Plaintiff. h. Denied. To the contrary, the vehicle confmmed to the contract and Plaintiff was not entitled to revoke acceptance. 24. After reasonable investigation, Defendant is unable to detemdne the troth or falsity of these allegations and denies the same. By way of further answer, within two weeks of driving the truck, Defendant had put approximately 1,000 miles on the vehicle. WHEREFORE, Defendant requests that Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded its costs, including reasonable attorneys' fees, and any other relief that this Court deems appropriate. Count 2 MISREPRESENTATION 25. Paragraphs 1 through 24 above are incorporated herein by reference. 26. Denied. To the contrary, Plaintiff could have investigated and considered his purchase of the 1999 Ford F-350 from Defendant on as many occasions as he deemed necessary. 27. Admitted in part and denied in part. It is admitted that Defendant's agents and Plaintiff had a conversation on December 26, 2001. The remaining allegations are denied. -7- 28. Admitted in part and denied in part. It is admitted that Plaintiff signed his contract of sale with Defendant on December 26, 2001. The remaining allegations of this Paragraph are denied. To the contrary, the Defendant signed the contract based upon his own inspection of the vehicle. 29. Denied. To the contrary, at all times Defendant's agents were truthful with Plaintiff regarding the condition of the vehicle. 30. Denied. By way of further answer, outside of Plaintiff's inspection of the vehicle, Defendant does not know what, if anything, Plaintiff relied upon when deciding to purchase the vehicle and denies these allegations. 31. Denied. To the contrary, the inspection of the vehicle performed by Defendant did not reveal a problem with the torque converter and transmission. As such, there was no obligation for Defendant to disclose these alleged problems to Plaintiff since no such problems existed. 32. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate these allegations are denied. To the contrary, Plaintiff is not entitled to damages because Defendant made no misrepresentations to Plaintiff. 33. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate these allegations are denied. To the contrary, Defendant made no misrepresentations to Plaintiff. 34. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate these allegations are denied. To -8- the contrary, Plaintiff is not entitled to damages because Defendant made no misrepresentations to Plaintiff. WHEREFORE, Defendant requests that Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded its costs, including reasonable attorneys' fees, and any other relief that this Court deems appropriate. Count 3 FRAUD 35. Paragraphs 1 through 35 above are incorporated herein by reference. 36. Denied. To the contrary, Defendant never promised that a 60 point inspection would be performed on the truck. Plaintiffknew that Defendant was only performing a state inspection on the vehicle. \ 37. After reasonable investigation, Defendant is unable to determine the troth of these allegations and denies the same. By way of further answer, the allegations of this Paragraph are legal conclusions to which no response is required. 38. Denied. To the contrary, at all times Defendant's agents were truthful with Plaintiff regarding the condition of the vehicle and the inspection of the vehicle. 39. Denied. To the contrary, at all times Defendant's agents were truthful with Plaintiff regarding the condition of the vehicle and the inspection of the vehicle. 40. Denied. To the contrary, at all times Defendant's agents were truthful with Plaintiff regarding the condition of the vehicle and the inspection of the vehicle. 41. Admitted in part and denied in part. It is admitted that the Plaintiff purchased the vehicle. After reasonable investigation, Defendant is unable to determine what representations Plaintiff relied upon when purchasing the vehicle. By way of further answer, at all times -9- Defendant's agents were truthful with Plaintiffregarding the condition of the vehicle and the inspection of the vehicle. 42. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate these allegations are denied. To the contrary, Plaintiff is not entitled to damages because Defendant made no misrepresentations to Plaintiff. WHEREFORE, Defendant requests that Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded its costs, including reasonable attorneys' fees, and any other relief that this Court deems appropriate. Count 4 BREACH OF IMPLIED WARRANTY OF FITNESS FOR INTENDED PURPOSE Paragraphs 1 through 42 above are incorporated herein by reference. The allegations of this Paragraph are legal conclusions to which no response is 43. 44. required. 45. 46. Admitted. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. To the contrary, Plaintiff disclaimed the implied warranty of fitness for an intended purpose. 47. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. To the co~atrary, Plaintiff disclaimed the implied warranty of fitness for an intended purpose. Additionally, the truck was fit for the purpose for which Plaintiff bought it. -10- 48. After reasonable investigation, Defendant is unable to determine the troth or falsity of these allegations and denies the same. Additionally, Plaintiff is not entitled to damages in this case. WHEREFORE, Defendant requests that Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded its costs, including reasonable attorneys' fees, and any other relief that this Court deems appropriate. Count 5 IMPLIED WARRANTY OF MERCHANTABILITY 49. Paragraphs 1 through 48 above are incorporated herein by reference. 50. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. To the contrary, Plaintiff disclaimed the implied warranty of merchantability. Additionally, the track was fit for the purpose for which Plaintiffbought it. 51. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. To the contrary, Plaintiff disclaimed the implied warranty of fitness for an intended purpose. Additionally, the track was fit for the purpose for which Plaintiffbought it. 52. Admitted in part and denied in part. After reasonable investigation, Defendant is unable to determine what Plaintiffwas relying upon when he purchased the truck. Additionally, the track was fit for the purpose for which Plaintiffbought it. 53. Denied. To the contrary, the track was fit for its intended purpose. -11- 54. After reasonable investigation, Defendant is unable to determine the truth or falsity of these allegations and denies the same. Additionally, Plaintiffis not entitled to damages in this case. WHEREFORE, Defendant requests that Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded its costs, including reasonable attorneys' fees, and any other relief that this Court deems appropriate. .Count 6 BREACH OF WARRANTY OF SUITABILITY 55. Paragraphs 1 through 54 above are incorporated herein by reference. 56. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. To the contrary, Plaintiff disclaimed the warranty of suitability. Additionally, the track was suitable for the purpose for which Plaintiff bought it. 57. Admitted in part and denied in part. After reasonable investigation, Defendant is unable to determine what Plalntiffwas relying upon when he purchased the mack. Additionally, the mack was suitable for the purpose for which Plaintiffbought it. 58. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. To the contrary, Plaintiff disclaimed the implied warranty of fitness for an intended purpose. Additionally, the mack was suitable for the purpose for which Plaintiff bought it. 59. The allegations of this Paragraph are legal conclusions to which no response is required. To the extent that a response is deemed appropriate, these allegations are denied. To -12- the contrary, Plaintiff disclaimed the implied warranty of fitness for an intended purpose. Additionally, the truck was suitable for the purpose for which Plaintiffbought it. 60. After reasonable investigation, Defendant is unable to determine the truth or falsity of these allegations and denies the same. Additionally, Plaintiff is not entitled to damages in this case. WHEREFORE, Defendant requests that Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded its costs, including reasonable attorneys' fees, and any other relief that this Court deems appropriate. NEW MATTER Paragraphs 1 through 60 above are incorporated herein by reference. Plaintiffs Complaint fails to state a cause of action upon which relief can be 61. 62. granted. 63. 64. 65. 66. 67. estoppel. 68. satisfaction. 69. Plaintiffhas not alleged the requisite elements of his claims. Plaintiff lacks standing to maintain his claims. Plaintiff's claims are barred, in whole or in part, by the statute of limitations. Plaintiff's claims are barred, in whole or in part, by the doctrine of laches. Plaintiff's claims are barred, in whole or in part, by the doctrines of waiver and Plaintiff's claims are barred, in whole or in part, by the doctrine of accord and In the event that Plaintiff has suffered damages, which is denied, such damages were caused, in whole or in part, by Plaintiff's own actions. -13- 70. In the event that Plaintiff has suffered damages, which is denied, such damages were caused, in whole or in part, by the acts of third parties, over whom Defendants had no control. 71. Plaintiff had the opportunity, and took the opportunity, to thoroughly inspect the van before purchasing it. 72. To the extent there are any defects with the vehicle (which Defendant denies), Plaintiff knew, of through reasonable investigation could have discovered, the alleged defects before purchasing the used vehicle. 73. The vehicle would pass without objection in trade. 74. The vehicle was fit for the ordinary purpose for which it was used. 75. The vehicle was fit for the purpose for which Plaintiffintended to use it. 76. The Plaintiff was not relying on the skill or judgment of Defendant to select or furnish the vehicle. 77. The only warranty applicable to the vehicle was the remainder of the factory warranty selected by Plaintiff. third party. 78. This warranty is Plaintiff's sole remedy and is administered by a Plaintiff examined the vehicle before entering into the Agreement of Sale as fully as he desired and thus there are no implied warranties on the vehicle. 79. Defendant expressly reserves the right to raise additional defenses that become known after discovery. WHEREFORE, Defendant requests that Plaintiff's Complaint be dismissed with prejudice and that Defendant be awarded its costs, including reasonable attorneys' fees, and any other relief that this Court deems appropriate. -14- Respectfully submitted, RHOADS & SINON LLP One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant -15- 0G/18/~2 17:23 FAX 717 231 6626 ~034 RHOADS&$LWON LLP Rick Northcrai~, Sales Man.er for Keystone Auto Bxch~u~e Sales, Iu¢. t/d/b/a Auto- Max of Mcchanicsburg~ deposes ~d s~ys, ~ubjcct ~o th~ p~nalties of 12 Pa~ C.S. § 4904 re~ating to unswom falsification to aufhoritics, that th~ facts set forth in thc foregoing documen! are true ~nd correct to ~¢ bes~ of his knowlcdg% information and belief. Keystone Auto Exchaage Sales,/nc. ~/d/b/a Auto- Max of~g .------ Sal~s M~g~ 411481.1 CERTIFICATE OF SERVICE I hereby certify that on this 24th day of September, 2002, a tree and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Stephen K. Portko, Esquire Bratic & Portko 101 South U.S. Route 15 Dillsburg, Pennsylvania 17019 427863.1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA TODD A. GOSS, Plaintiff KEYSTONE AUTO EXCHANGE SALES, INC. d/b/a/AUTO-MAX OF : MECHANICSBURG, : Defendants : NO. 02-1766 Civil Term C1VIL ACTION - LAW PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW, comes Plaintiff, TODD A. GOSS, by and through his attorneys, BRATIC & PORTKO, and states the following: 61. The facts and statements of Paragraphs 1 through 60 of Plaintiffs Complaint are incorporated herein by reference and made a part hereof. 62. Denied. The allegations of paragraph 62 of Defendant's New Matter are legal conclusions to which no response is required. To the extent an answer may be appropriate the allegation is denied. 63. Denied. The allegations of paragraph 63 of Defendant's New Matter are legal conclusions to which no response is required. To the extent an answer may be appropriate the allegation is denied. 64. Denied. The allegations of paragraph 64 of Defendant's New Matter are legal conclusions to which no response is required. To the extent an answer may be appropriate the allegation is denied. Defendant's allegation is unintelligible and without basis in fact. 65. Denied. The allegations of paragraph 65 of Defendant's New Matter are legal conclusions to which no response is required. To the extent an answer may be appropriate the allegation is denied. Defendant's allegation is unintelligible and without basis in fact. 66. Denied. The allegations of paragraph 66 of Defendant's New Matter are legal conclusions to which no response is required. To the extent an answer may be appropriate the allegation is denied. Defendant's allegation is unintelligible and without basis in fact. 67. Denied. The allegations of paragraph 67 of Defendant's New Matter are legal conclusions to which no response is required. To the extent an answer may be appropriate the allegation is denied. Defendant's allegation is unintelligible and without basis in fact. 68. Denied. The allegations of paragraph 68 of Defendant's New Matter are legal conclusions to which no response is required. To the extent an answer may be appropriate the allegation is denied. Defendant's allegation is unintelligible and without basis in fact. 69. Denied. The allegations of paragraph 69 of Defendant's New Matter are legal conclusions to which no response is required. To the extent an answer may be appropriate the allegation is denied. Defendant's allegation is unintelligible and without basis in fact. 70. Denied. The allegations of paragraph 70 of Defendant's New Matter are legal conclusions to which no response is required. To the extent an answer may be appropriate the allegation is denied. Defendant's allegation is unintelligible and without basis in fact. 71. Denied. On the contrary, the vehicle is a 1999 Ford F-350 truck, not "van", and Defendant purposely misled Plainfiffto prevent discovery of the alleged defects. 72. Denied. On the contrary, Defendant purposely misled Plaintiffto prevent discovery of the alleged defects. 73. Denied. On the contrary, the vehicle had material and substantial defects and would not pass without objection in trade. 74. Denied. On the contrary, the vehicle had material and substantial defects and was not fit for the ordinary purpose for which Plaintiff purchased it. 75. Denied. On the contrary, the vehicle had material and substantial defects and was not fit for the purpose for which Plaintiff purchased it. 76. Denied. On the contrary, Defendant knew the purpose for which the truck was intended and that plaintiff was relying on the defendant's statements and representations to furnish a suitable vehicle for that purpose. 77. Denied. On the contrary, defendant gave express and implied warranties that the vehicle was free from any defects, of good quality and merchantable, and fit for the intended purpose for which plaintiff purchased it. 78. Denied. Plaintiff specifically asked about the condition of the vehicle and defendant fraudulently misrepresented its condition or concealed facts from plaintiff regarding the "60 Point" bumper to bumper inspection that defendant promised to perform on the vehicle. 79. No response required. WHEREFORE, Plaintiff requests this Honorable Court to find in his favor and against Defendants and deny Defendant's demand for relief. Date: BRATIC & PORTKO StephenVI~ Portko, Esquire #34538 101 South U.S. Route 15 Dillsburg, PA 17019 (717) 432-9706 Attorney for Plaintiff VERIFICATION I, Todd A. Goss, hereby acknowledge that I am Plaintiff in the foregoing Reply to Defendant's New Matter , that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATE: Oct. 11, 2002 T6dd A, Goss IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Todd A. Goss, Plaintiff, KeyStone Auto Exchange Sales, Inc. t/dlbla Auto-Max of Mechanicsburg, Defendant NO. 02-1766 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I HEREBY CERTIFY, that I served a true and correct copy of the PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER in the above captioned matter upon the ~i~dividual listed below as follows: Timothy J. Nieman, Esquire RHOADS & SINON LLP Tweffih Floor One South Market Square piO. Box 1146 Harrisburg, PA 17108-1146 Date: Stephen K. Portko, Esquire t01 South U.S. Route,15 Dillsburg, PA 17019