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HomeMy WebLinkAbout94-01925 JOHN HESS, JR. IInd LORI HESS, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-1925 CIVIL TERM CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants Certificate of Service I, Ginny Massey, hcreby certify that II true and correct copy of the Brief in Support of Defendants' Preliminary Objections, in the above captioned mailer was duly served upon Jane Muller-Peterson, of Legal Services, Inc., by depositing it in the U,S. Mail, first class, on the 23rd, day of September, 1994, addressed ns follows: June Muller-Peterson Legal Services, Ine, 8 Irvine Row Carlisle, PA 17013 "I hereby verify that the stutements mude in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa,C.S. Section 4904, relating to unswom f~~~fw8tillll to uuthorities, Dated: ~/$/ Ginny MassU -:r a') - ::c: 0- m N ("") ',t.. >- ~~ .,- -, . ,.- ulr. ~~ ~:. <:-.' : - --, ~. " ~' co ':: , 0- W = :~ . '...0 <..' AND NOW, this ,....,....~_.'...d.,'.'.,."U__ ,. JOHN HESS, JR, and LORI HESS, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACfION - LAW CAL'S CARS, JULIE STOUGH, ANIlIONY J, GROSS and CALVIN ROTH, Defendants 94-1925 CIVIL TERM IN RE: PRELIMINARY OBJECfIONS OF DEFENDANTS BEFORE SHEELY. P.J, AND HESS, J, ORDER Z. 'It' day of October, 1994, thc preliminay objection of the individual defendant, Julie Stough, is SUSTAINED and the complaint against her DISMISSED, The remaining defendants' preliminary objections are resolved by Stipulation, filed of even date herewith, BY THE COURT, Jane Muller-Peterson, Esquire For the Plaintiffs Samuel L. Milkes, Esquire For the Defendants ~-tt.,..,cJ.. . ~ 10/:1.'11'1<#, ~.f, :rlm I . "; . '\ ~61 In iT f ~z 1:10 .- ":.~~~'~ ,< JOHN HESS, JR, and LORI HESS, Plaintiffs IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNlY, PENNSYLVANIA vs, CIVILACflON. LAW CAL'S CARS, JULIE STOUGH, ANTIIONY J. GROSS and CALVIN ROTIl, Defendants 94.1925 CIVIL TERM IN RE: PRELIMINARY OBJECflONS OF DEFENDANTS BEFORE SHEELY. P,J. AND HESS. J. OPINION AND ORDER This matter is before the court on the preliminary objections of the various individual defendants, The preliminary objections are presented in the form of a demurrer and the standard for determining their validity is well-established: All material facts set forth in the complaint as well as all the inferences deducible therefrom are admitted as true for the purposes of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible, When a doubt exists as to whether a demurrer should be sustained this doubt should be in favor of overruling it. Jones v, Walmer. 425 Pa, Super. 102, 104.105,624 A.2d 166, 167 (1993). The sole issue at this time is whether the complaint contains sufficient factual allegations to state a claim against Julie Stough according to the Pennsylvania theory of "participation." The facts alleged in the amended complaint arc that plaintiffs, John and Lori Hess, purchased a used ear from defendant Cal's Cars, Inc. on June I, 1994. The Hesses negotiated the purchase with defendant Anthony Gross, who is the general manager of Cal's Cars, Defendant Julie Stough is the president of Cal's Cars who, according to the complaint, directed, controlled and participated in all activities of Cal's Cars. After experiencing trouble with the car, the Hesses took 2 .' 94-1925 CIVIL TERM it to a mechanic who informed them that, among other things, the car had been reconstructed after having been extensively damaged, and that the quality of the reconstruction wa.~ poor, On June 7, 1994, John Hess called Cal's Cars and attempted to revoke acceptance of the car, An unidentified person at Cal's Cars answered the call and told John Hess that she would give the message to defendant Calvin Roth, another principal of Cal's Cars. Several days later John Hess again called Cal's Cars and attempted to revoke acceptance of the car, Julie Stough returned John's call and informed him that any decision about revocation had to be made by Calvin Roth, The law with regard to assessing the liability of a corporate officer. individually, is well-settled in Pennsylvania, A corporation is regarded as an independent entity even if its stock is owned entirely by one person, Collel!e Watercolor Groun. Ine, v, William H, Newbauer, Inc., 468 Pa, 103, 360 A.2d 200 (1976), In addition, there is a strong presumption in Pennsylvania against piercing the corporate veil, Wedner Unemnlovment Compensation Ca.~e. 449 Pa, 460, 296 A.2d 792 (1972), Notwithstanding, officers of a corporation may be held liable in tort when the participation theory is a basis of liability, Wicks v. Milzoco Builders. Inc.. 503 Pa. 614,621,470 A,2d 86, 90 (1983), The general rule of "participation" is that corporate officers arc liable for their own tortious actions as individuals, Wicks at 621, 470 A.2d at 90. The Commonwealth Court has stated: .., the participation theory imposes liability on the individual as an actor rather than as an owner. Such liability is not predicated on a finding that a corporation is a sham and a mere alter ego of the individual corporate officer. Instead, liability attaches where the record establishes the individual's participation in tortious activity. Kaites et al. v. DER, 108 Pa. Commw, 267, 273-274, 529 A,2d 1148, 1151 (1987). The officer, however, must actually participate in the wrongful acts for liability to attach. Amabile v, Auto-Kleen Car Wa.~h, 249 Pa, Super 240, 376 A.2d 247 (1977). Finally, a corporate officer may be held liable ~ ..~ . .~ 94-1925 CIVIL TERM for misfeasance, the improper performance of an act, but not for non-feasance, the omission of an act which a person ought to do. Wicks at 621, 407 A,2d at 90. It is clear from the complaint that Julie Stough is president of Cal's Cars, and that in her capacity as president she oversees the operations of the business, But, as has been stated, Julie Stough may only be included as a defendant if the allegations are that she actually participated in tortious conduct. The complaint allegcs that Julie Stough returned a phone call, telling the Hesses that any decision about revocation of acceptance of the car had to be made by Calvin Roth. We fail to see how returning a phone call can be tortious conduct. The complaint also alleges that Julie Stough directed, controlled and participated in all activities of Cal's Cars, This allegation fails to set forth a specific tortious act which she is alleged to have committed. Neither Julie Stough's position as president of Cal's Cars nor her return of John Hess's phone call constitutes actual tortious conduct that would allow recovery against her on a participation theory. ORDER AND NOW, this Z 'f~ day of October. 1994, the preliminay objection of the individual defendant, Julie Stough, is SUSTAINED and the complaint against her DISMISSED. The remaining defendants' preliminary objections arc resolved by Stipulation, filed of even date herewith. BY THE COURT, Jane Muller-Peterson, Esquire For the Plaintiffs ,AIL Samuel L. Milkes, Esquire For the Defendants 3 JOHN HESS, JR. and LORI HESS PLAINTIFFS v. : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . : NO. 94-1925 CIVD.. TERM CAL'S CARS, INC., JULIE STOUGH,ANTHONYJ.GROSS and CALVIN ROTH, DEFENDANTS . . . . . . STIPULATION RE: DEFENDANTS' PRELIMINARY OBJECTIONS At the close of argument on Defendants' Preliminary Objections, the Honorable Judges Sheely and Hess requested of counsel that they inform the Court, in writing, as to what has been agreed to by the parties and what is still at issue on Defendants' Preliminary Objections. The parties stipulate to the following: 1. As to counts II and IV of Plaintiffs' Amended Complaint, involving revocation of acceptance and claimed violations of the Motor Vehicle Sales Finance Act, the parties hereby stipulate that liability may only be considered against CaI's Cars, Inc" and not any of the individually-named Defendants. 2. On the question of whether Defendant~ Roth and GI'OSS may remain as individually- named Defendants on the remaining counts, the parties stipulate that these individuals may remain Defendants under the participation theory of liability, The equitable theory of piercing the corporate veil is not raised by Plaintiffs. 3. On the matter of whether Plaintiffs' claim of revocation of acceptance survives Defendants' Demurer, the parties are in agreement that where there exists a factual dispute on the ~ question of whether Plaintiffs revoked, within a reasonable time, and whether their continued possession of the automobile voids any revocation argument, the issue survives Demurrer, Accordingly, this issue survives Defendants' Preliminary Objections and remains a viable issue. Accordingly, the parties submit to the Court that the only matter still in dispute, for resolution by the Court, would be Defendants' Demurrer as to individual liability of Julie Stough, The Court must determine whether the Complaint states sufficient facts which, if proven, would allow Julie Stough to be considered liable, under a participation theory, for the acts complained of in Plaintiffs' Amended Complaint, ,~~$ -SAMUEL W. MILKES, ESQUIRE JACOBSEN & MILKES 52 E. HIGH STREET CARLISLE, PA 17018 (717) 249-6427 ATTY. I.D. #88180 Dated: \ O(){. y^" MULLER-PETERSON, ESQUmE LE AL SERVICES, INC. B ffiVINE ROW CARLISLE, PA 17018 (717) 248.9400 ATTY. I.D. #82651 Dated: LO{'7/&if v. : IN THE COURT OF COMMON PLEAS : CUMBERLANDCOUNTY,PENNSYLVANIA NO, 94-1925 CML TERM JOHN HESS, JR. and LORI HESS, Plaintiffs CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants ANSWER TO AMENDED COMPLAINT COME NOW, the Defendants in the above-captioned action. by their attorney, Samuel W. Milkes, Jacobsen & Milkes, and submit their Answer to the Plaintiffs' Amended Complaint, as follows: 1. Denied, to the best of Defendants' knowledge, According to the Used Vehicle Purchase Order signed by Plaintiffs, the Plaintiffs' address is 27 Chestnut Street, Mt, Holly Springs, Cumberland County, Pennsylvania, 17065. 2, Admitted, 3. Admitted, although Defendants are in the process of moving their operations to 1207 Trindle Road, Carlisle, Cumberland County, Pennsylvania. 4, It is admitted that Julie Stough is the President of Cal's Cars, Inc, It is denied that Julie Stough personally took part in the particular sale of a 1987 Renault Alliance Sedan to John and Lori Hess, 5. It is admitted that Anthony Gross is the General Manager of Cal's Cars, Inc. and that he was the salesperson with regard to the 1987 Renault Alliance Sedan at issue in this litigation. The extent to which he directed, controlled, and participated l-i<':-~;';:~;;:,~~"",~~~ in the activities alleged within the Complaint is addressed specifically within each paragraph oC the Complaint. Anthony Gross otherwise generally denies having participated in all activities described within the Complaint. 6. Denied, Calvin Roth is an employee oC Cal's Cars, Inc. He took no part in the sale oC the 1987 Renault Alliance Sedan at issue in this litigation and generally did not direct, control, or participate in the activities surrounding the sale of this motor vehicle, although he did participate in some discussions with Plaintiffs after the date oC sale oC the vehicle, 7. Admitted, 8. Admitted. 9. Admitted, 10. Denied, They asked if there was anything DUljor wrong with the car that he knew oC and deCendant Gross responded there was nothing that he knew oC, 11, Denied, Anthony Gross stated to the Plaintiffs that he was not aware oC any DU\ior Q8mllge which had occurred to the 1987 Renault Alliance. Mr, Gross could not have had and did not have personal knowledge which would have allowed him to assure Plaintiffs, or which would have Cormed a basis Cor the Plaintiffs accepting an assurance that the motor vehicle had never had any major damage done to it. 12, Admitted, 13. Denied, Because the Cace oC the title would have made it clear that there had been more than one prior owner, Mr. Gross did not make this statement and would not have made such a statement which could so easily be verifiable to the contrary, t1 _ .~., 14. Denied that Anthony Gross told Plaintiffs the car was in good condition, While Mr. Gross was not aware of any problems with regard to said vehicle, his assurance was that to the best of his knowledge, he was not aware of any problems with the vehicle, 15. Denied that Defendant Anthony Gross acted as an agent for the other Defendants, It has been admitted above the Anthony Gross is an employee of Cal's Cars, Inc" and Mr. Gross acted in this capacity. 16, Denied. It is denied that any false representations were made by any of the Defendants, Defendants are further unable to express an opinion as to what statements were relied upon by Plaintiffs in deciding to purchase the vehicle and, therefore, deny generally Plaintiffs' assertions of their state of mind. 17, Denied that the purchase price of the vehicle was $3,412.00, It is admitted that the purchase price of the vehicle was $3,200 and that after inclusion of taxes, filing fees, license plate charges, and notary fees, the total of the purchase price and costs amounted to $3,412,00, It is admitted that the Plaintiffs traded in a vehicle and received a used car allowance of $400,00. It is further admitted that Plaintiffs paid a cash down payment of $712.00. 18, Admitted, 19, Denied, Defendants are unable to know whether Plaintiff took the automobile which they purchased to the uncle of Lori Hess for his inspection, They also are unable to know whether this individual is a qualified mechanic. They further are unable to know whether the uncle of Lori Hess informed Plaintiffs of items (a) through (d) of this paragraph. Therefore, Defendants deny said allegations and demand strict proof at trial, The Defendants further deny that the items listed at paragraphs (a) through (d) accurately describe the condition of the vehicle in question. 20. Denied. Defendants are unable to know of Plaintiffs' state of mind and strict proof is demanded at trial, 21. It is denied that the "true history and condition of the car" would have formed any basis for the Plaintiffs deciding not to purchase said vehicle and because Defendants are unable to know of Plaintiffs' state of mind, this assertion is further denied and strict proof is demanded at trial. 22. Admitted, 23, Defendants are neither able to admit nor deny this allegation since knowledge regarding this paragraph is completely within control of the Plaintiffs, Therefore, said paragraph is denied, 24, While Defendants deny that Plaintiffs revoked their acceptance of the vehicle, It is admitted that Plaintiffs continued to make payments on said vehicle, as described below, 25, It is denied that any false representations were made by Defendants or that Plaintiffs were damaged in connection with the purchase of said vehicle, 26, It is denied that Defendants in any way misrepresented the automobile's prior use and c1AmAge in that Defendants only described what they were aware of with respect to the vehicle. It is further denied that any conduct of Defendants was outrageous or that any evil motive or reckless indifference to the Plaintiffs' rights was involved in this transaction. 27, No further response required, see above responses. 28. Denied that any notification of this sort took place on this date. 29. Admitted that he called on about June 18, 1993 and that he came in that same day, at first demanding that Oal's Cars take the car back. After looking over the car with Calvin Roth and Tong Gross, Mr, Hess agree to certain repairs and agreed to keep the car, 80. Admitted that this is possible, Defendants are uncertain as to whether this call took place. 81, Admitted that Plaintiffs were given the opportunity to trade the car in for another but see also answer to '1129, 82, Denied that any more than one conversation occurred with Lori Hess or that she reiterated any revocation after the June 18, 1998 repairs were made and after, on this same date, Mr, Hess agreed to keep the car, 83, Denied that any such conversation occurred, 84, Admitted that the car was not taken back but this was with the agreement of Mr, Hess, 85, It is denied that any "nonconformity" existed with regard to this vehicle or that the condition of the vehicle impaired its value. To the contrary, the Plaintiffs agreed to have some modifications made to the vehicle on June 18, 1998, including four tires which were put on the car, a front end alignment, and repair, by sealing of a crack in the left side of the trunk, The Defendants were satisfied on June 18 that these modifications met any concerns they had, Denied that the car's value was impaired. 86. Admitted. 87. No further response required, see above responses, 88, This vehicle was purchased "as-is" and was acknowledged by Plaintiffs to have been purchased "as-is" at the time of purchase. No express or implied warranty 'lxisted, 89. It is denied that any express warranty existed, that there was any nonconformity with any suggested express warranty and it is further denied that there exists any ditTerence between the value of the vehicle received and the value of the vehicle which is alleged to have been expressly warranted, 40, Admitted that this Motor Vehicle Installment Sale Contract is governed by the Motor Vehicle Sales Finance Act. It is not necessarily admitted that the specific terms described in this paragraph bring this purchase under the governance of the Motor Vehicle Sales Finance Act, 41. Denied, The Defendants assert that in connection with the purchase of the vehicle in question, all of the items (a) through (h) were made known to the Plaintiffs, The vehicle was purchased at no interest, and therefore, issues such as finance charges and prepayment penalties were of no significance, 42, Denied, The Defendants assert that in connection with the purchase of the vehicle in question, all of the items (a) through (i) were made known to the Plaintiffs. The vehicle was purchased at no interest, and therefore, issues such as finance charges and prepayment penalties were of no significance. 48. No further response required, see above responses, 44. Admitted. 45. Admitted, 46, Denied. a, The Plaintiffs were specitica1lyinformed, both orally and in writing, that the vehicle being purchased had an R Title and this meant that the vehicle was regarded as a reconstructed vehicle. b. Denied. No afllrmative misrepresentation of the vehicle's prior history took place, c. It is denied that the motor vehicle was misrepresented and further it is denied that the vehicle was not roadworthy, d. It is denied that the items as specified in paragraphs 40 and 41 were not made known to Plaintiffs, e, It is denied that Defendants made any false statements to Plaintiffs, f. It is denied that the vehicle in question was mechanically unsound or that the purchase price was in excess of the vehicle's value. 47. Admitted. 48, Denied. WHEREFORE, for the above reasons, Defendants respectfully request of this Honorable Court that the relief sought by Plaintiffs be denied. COUNTERCLAIM 49. To date, Plaintiffs continue to retain the 1987 Renault Alliance Sedan at issue in this litigation, 50, To date, Plaintiffs continue to elijoy the benefit of continued use of the vehicle at issue in this Cll8e, attorney fees 51. Of the total amount financed in connection with this vehicle, $2,300.00, Plaintiffs have paid the entire amount. WHEREFORE, for the above-referenced reasons, Defendants respectfully request of this Honorable Court that it award them dAmAges in the form ofreasonable Respectfully submitted, ~l \ l~tCf\ amue es, Esquire JACOBSEN & MILKES 52 East High Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 30130 . -"""""_2"'""/",,,., I hereby verify that the statements made in the foregoing are true and correct, I understand that false statements herein are made subject to the penalties of 18 Pa,C.S, Section 4904, relating to unsworn falsification to authorities. .,-.;;.;., ..'C.,,,,",.,_,.,___.,._,., I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C,S. Section 4904, relating to unsworn falsification to authorities. (7~~ CALVIN ROTH I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C,S. Section 4904, relating to unsworn falsification to authorities. ~.- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN HESS, JR., and LORI HESS, Plaintiff NO. 94-1925 CIVIL TERM v, CAL'S CARS, INC., JULIE STOUGH,ANTHONYJ, GROSS, and CALVIN ROTH, Defendants CERTIFICATE OF SERVICE I, Samuel W. Milkes, hereby certify that a true and correct copy of the Defendants' Answer to Amended Complaint, in the above-captioned matter was duly served upon Jane Muller-Peterson, counsel for Plaintiffs, by depositing it in the U,S, Mail, first class, on ~t~~~dreSSed as follows: JANE MULLER-PETERSON LEGAL SERVICES, INC, 8 IRVINE ROW CARLISLE, PA 17013 I hereby verify that the statements made in the foregoing are true and correct, I understand that false statements herein are made subject to the penalties of 18 Pa.C,S, Section 4904, relating to unsworn falsification to authorities, Dated: \ \ {V" \ 7'f ~..~x;....~~.._'. -=r en . a .... .... ~~ ." ':r.; t-.;.f ""l."\~_;".::: U;7:0...t ~o .9 l,--=e:...; ot-....~. ~ -;~~ ~~~ ~ Jld~J - ~. XI ~ !A.;-:::::_ => ....c <> - - -:r - ... C> = .""";".-...-- '~ :...--.-- -~-~ r~~/--,;, ,,', !';<; JOHN HESS, JR. and LORI HESS, Plaintiff VS. : IN THE COURT OF COMMON PLEAS OF . . : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION - LAW . . CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants : NO. 94-1925 CIVIL TERM : . . I f I PLAINTIFFS' ANSWER TO DEFENDANT'S COUNTERCLAIM AND NEW MATTER COME NOW, the Plaintiffs in the above-captioned action, by their attorney, Jane Muller-Peterson, Legal Services, Inc., and submit their Answer to Defendants' Counterclaim, as follows: 49. Admitted. However, the Plaintiffs have wished to return the car for their money back since the weekend after the purchase. Plaintiffs were told if they left the car on the lot, they would incur a $100.00 repossession charge and be sued in district justice court for the balance. Because of their poverty, they were unable to return the vehicle and acquire an alternate vehicle without the return of their money. 50. Admitted in part and denied in part. The Plaintiffs admit they continue to use the vehicle at issue in this case but deny that they have enjoyed the benefit of continuous use of the car because of its defects and their fear of driving it. 51. Admitted. NEW MATTER The Defendants have stated no basis in statute, contract, or any exception to the "American" rule which would warrant the award of attorney's fees against the Plaintiffs. e, ~ u. ,'T ,... '''.'','' '<C._ ~_' _.__.~ 'C"~ .,.__""_"..,~:.,-..".,.".,...,, ~... '"~'.,' ,: ".,!:~' '_~"_"',;~~.'1i;:.'f'~'~';(:'; ",:!,::.-c.':'"....J..": ::,".,",".' . ..,~::t.. .. WHEREFORE, The plaintiffs request that the Defendftnts' Counterclaim be dismissed. Respectfully submitted, ~S?~ uller-Peterson Att rney for Plaintiffs LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 - .' The above-named plaintiffs, John Hess, Jr. and Lori Hess, verify that the statements made in the above Answer are true and correct. The plaintiffs understand that false statements herein are made subject to the penalties of 18 Pa. C.s. section 4904, relating to unsworn falsification to authorities. Date: /.Q_/_clLl ~~~ John Hess, Jr., Plai~tiff Date: I ~ - I - 1LI ~; ~{j~J- Lori Hess, plaintiff . << ~ ,. JOHN HESS, JR. and LORI HESS, Plaintiff : IN THE COURT OF COMMON PLEAS OF . . : CUMBERLAND COUNTY, PENNSYLVANIA . . VS. : CIVIL ACTION - LAW . . CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants : NO. 94-1925 CIVIL TERM . . . . CERTIFICATE OF SERVICE I, Jane HUller-Peterson, hereby certify that a true and correct copy of the Plaintiffs Answer to Defendants' Counterclaim and New Hatter in the above-captioned case was duly served upon Samuel W. Hilkes, counsel for Defendants, by depositing it in the U.S. Hail, first class, on December 2, 1994, addressed as follows: Samuel W. Hilkes Law Offices of Jacobsen & Hilkes 52 East High Street Carlisle PA 17013 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 1a Pa. C.S. 54904, relating to unsworn falsification to authorities. Date: OlZ<.. 2, ICjC, l.f ~ fk~.~~",--\?~ Jane uller-Peterson Attorney for Plaintiffs LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 "::r c:;r, >;,... ~.- "..\; ,: = "- .... .=r (Y). .- C"-.: d~..i, ': . ;: ~ ~~ c.> u. <= . JOHN HESS, JR. and LORI HESS, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94- tq2.S CIVIL TERM . . . . v. . . . . CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, CALVIN ROTH, Defendants . . and : . . . . AMENDED COMPLAINT Plaintiffs John Hess, Jr. and Lori Hess set forth their Amended Complaint as follows: PARTIES 1. Plaintiffs, John Hess, Jr. and Lori Hess, are individuals residing at 28 Chestnut street, Apartment 8, Mt. Holly springs, Cumberland county, Pennsylvania 17065. 2. plaintiffs are the purchasers of a used motor vehicle. 3. Defendant Calls Cars, Inc. (hereinafter "Cal's Cars") is a corporation whose principal place of business is at 1419 Trindle Road, Carlisle, Pennsylvania. 4. Defendant Julie stough is the president of Cal's Cars. She directed, controlled, and participated in the activities of Defendant Cal's Cars described below. 5. Defendant Anthony Gross is the General Manager of Cal's Cars. He directed, controlled, and participated in the activities of Defendant Cal's Cars described below. 6. Defendant Calvin Roth is a principal of Cal's Cars and directed, controlled and participated in the activities of Defendant Cal's Cars described below. ~~ COUNT I FRAUD 7. On June 1, 1993, Plaintiffs went to Cal's Cars to purchase a vehicle. 8. Plaintiffs told Defendant Anthony Gross that they were students and needed reliable transportation to get to and from school. They stated they knew little of cars and had "been taken" twice before. 9. Defendant Anthony Gross told them there were three cars on the lot which would be suitable for them and offered to let them test drive those vehicles, which they did. 10. They selected a 1987 Renault Alliance and asked the salesman, Defendant Anthony Gross, if the car had ever had any major damage done to it. 11. Anthony Gross answered that it had not, knowing his answer to be untrue and intending that Plaintiffs rely on it to their detriment. 12. Plaintiff John Hess then asked how many prior owners the car had had. 13. Defendant Anthony Gross said he would have to go to the office to get that information. When he came back, he told the plaintiffs that the car had had only one prior owner, knowing his answer to be untrue and intending that Plaintiffs rely on it to their detriment. 14. Defendant Anthony Gross further told Plaintiffs that the car was in good condition, knowing this to be untrue and intending that Plaintiffs rely on it to their detriment. 15. Defendant Anthony Gross made these representations acting as an agent and pursuant to the direction and control of the other defendants. 16. Plaintiffs reasonably relied upon the false representations in deciding to purchase the vehicle. 17. On June 1, 1994, Plaintiffs purchased the vehicle at a total purchase price of $3,412.00. They traded in a vehicle for which they received a used car allowance of $400.00, and paid a cash downpayment of $712.00. This transaction is evidenced by a "Used Vehicle Order," attached hereto as Exhibit "A," and incorporated herein by reference. 18. Plaintiffs financed $2,300.00 in installments of $45.00 for 52 weeks. This arrangement is evidenced by a "Contract _ statement of Understanding," attached hereto as Exhibit "B" and incorporated herein by reference. 19. The weekend after Plaintiffs purchased the vehicle, they took the car to Plaintiff Lori Hess's uncle, a qualified mechanic, and discovered that the car had been in an accident that had caused damage to its rear end. After examining the car and the paperwork, he informed them that: a. The car had been reconstructed after extensive damage. b. The bottom of the car had been pushed up against the gas tank. c. There was evidence of a poor reconstruction job. d. Thumping noises came from the car 'when it was driven. 20. since learning this information, Plaintiffs have been in tear that their car is unsafe. 21. Had plaintiffs known the true history and condition of the car, they would not have purchased it. 22. Upon Plaintiffs' demands that Defendant Cal's Cars take the vehicle back and return their money, Defendants performed a "safety check," and as a result of that check, fixed a crack, put another set of tires on, and did a front end alignment. 23. within three months of purchase, the transmission needed to be replaced at a cost to Plaintiffs of $804.00. As a result of that and other repairs including replacement of the alternator, Plaintiffs' repair bills within the first four months totalled $1,019.43. 24. Although Plaintiffs revoked their acceptance, (See Count II), they continued to make payments while awaiting legal assistance because they would not be able to acquire a new vehicle until Defendants returned their money to them. 25. As a consequence of Plaintiffs' reliance on Defendants' false representations, they have been damaged in the amount of all sums expended toward the purchase and repair of the car. 26. Defendants' acts in misrepresenting the car's prior use and damage were outrageous because of Defendants' evil motive or reckless indifference to the Plaintiffs' rights. COUNT II REVOCATION OF ACCEPTANCE 27. The preceding averments of this complaint are incorporated herein by reference. 28. On June 7, 1993, having discovered that they had been deceived about the car's history, Plaintiff John Hess called Cal's Cars, revoked his acceptance of the car, and and demanded his money back. The person on the telephone said she would give Defendant Calvin Roth a message. 29. A few days later, Plaintiff John Hess called again and reiterated the revocation of his acceptance, again demanding that Cal's Cars take the car back and return his money. 30. Defendant Julie stough returned the call and said the decision was Calvin Roth's to make. 31. On June 18, Plaintiff Lori Hess called and spoke to Defendant calvin Roth, who told her Cal's Cars would not take the car back and return Plaintiffs' money to them, but would allow them to trade the car for another on the lot. 32. Defendant Lori Hess reiterated the revocation of acceptance and refused to exchange the car for another on the lot, not wishing to deal with Cal's Cars again. 33. When Lori Hess told John Hess of this conversation, he called Cal's Cars again repeating the revoca~ion of his acceptance, demanding his money back, and stating he would not exchange the car for another of their cars. 34. Defendant Calvin Roth refused to take the car back. ~'- 35. The car's nonconformity to the car promised sUbstantially impaired its value to Plaintiffs. 36. On November 2, 1993, Plaintiffs, through counsel Jane Muller-Peterson of Legal services, wrote Defendant a letter reiterating and confirming their revocation of acceptance as authorized by 13 Pa.C.S.A., S2608. A copy of this letter is attached hereto as "Exhibit C" and incorporated by reference. Count III BREACH OF EXPRESS WARRANTY 37. Plaintiffs repeat and incorporate by reference all preceding averments in this Complaint. 38. Defendant Anthony Gross's statements regarding condition and prior use of the vehicle created an express warranty. 39. As a result of the car's nonconformity with this warranty, Plaintiffs have been damaged in the amount of the difference in value between the car promised and the car received. COUNT IV VIOLATIONS OF THE MOTOR VEHICLE SALES FINANCE ACT 40. The "Used Vehicle Order" (Plaintiff's Exhibit "A") and "Contract- Statement of Understanding" (Plaintiff's Exhibit "B") executed by the parties constitute motor vehicle installment sale contracts as defined by 69 P.S. S603, and are governed by the Motor Vehicle Sales Finance Act (hereinafter referred to as MVSFA), 69 P.S. S601 et ~ 41. The "Used Vehicle Order" for this vehicle fails to '" ~~ I' . ;j. f:' l,. ,. , . conform to the MVSFA's requirements for every installment sale contract, as set forth under 69 P.S. 5614, in that it lacks the following disclosures: a. The seller's address. b. The unpaid cash balance. c. The principal amount financed. d. The finance charge. e. The time balance. f. A payment schedule. q. A summary notice of the buyer's principal legal rights respecting prepayment of the contract, rebate of finance charges and reinstatement of the contract in the event of repossession. h. specific provisions as to the buyer's liability respecting default charges, repossession and sale of the motor vehicle in case of default or other breach of contract. 42. The "contract- statement of Understanding" fails to conform to the MVSFA's requirements for every installment sale contract as set forth under 69 P.S. 5614, in that it lacks the following disclosures: a. The buyer's address. b. The cash price of the motor vehicle. c. Any down payment made, and whether the down payment was cash or the agreed value of a "trade-in" motor vehicle, or both. d. A description of the "trade-in" vehicle. e. The unpaid cash balance. f. The principal amount financed. g. The finance charge. h. A summary notice of the buyer's principal legal rights respecting prepayment of the contract, rebate of finance charges, and reinstatement of the contract in the event of repossession. i. specific provisions as to the buyer's liability respecting sale of the motor vehicle following repossession in case of default or other breach of the contract. COUNT V VIOLATIONS OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 43. Plaintiffs repeat and incorporate by reference all of the preceding averments in this Complaint. 44. Defendant Cal's Cars is engaged in "trade or commerce" as defined by the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 5201-1 et sea. 45. Defendant is a motor vehicle dealer as defined in the regulations governing Automotive Industry Trade Practices, 37 Pa. Code 5301.1 et sea., and is subject to those regulations. 46. Defendants have violated the Unfair Trade practices and Consumer Protection Law, 73 P.S. 5201-1 ~ sea.; and the regulations promulgated pursuant thereto, by engaging in unfair methods of competition and unfair or deceptive acts or practices t ! t in the conduct of trade or commerce, as follows: a. Defendants violated 37 Pa. Code 5301.4(a)(1) in failing to give Plaintiffs a written description of the Renault Alliance's prior use, including that its title had been reconstructed after it had been declared totalled and in failing to prepare a contract including that information and other information specified in the regulation. b. Defendants violated 73 P.B. 5201-2(4(V) and (vii) and 37 Pa. Code 5301.2(5) and (6) by affirmatively misrepresenting the prior use and prior history of the vehicle. c. Defendants violated 37 Pa. Code 5301.2(5) and 73 P.B. 5201-2 (4)(v) and (vii) in representing the motor vehicle to be of one quality when it was of another and in offering for sale a vehicle which was not roadworthy. d. Defendants violated 73 P.B. 5201-2(4) by failing to enumerate in a contract the items specified in averments 40 and 41. e. Defendants violated 73 P.B. 5201-2(4) (v) and (vii) and 37 Pa. Code 5301.2(6) in making statements of fact Defendants knew to be false or had insufficient information upon which a belief in the truth of which could be based. f. Defendants violated 73 P.B 5201-2(4) (v), (vii), and (xvii) in offering for sale a mechanically unsound used motor vehicle at a price far in excess of the vehicle's value. COUNT VI VIOLATIONS OF THE TRUTH IN LENDING ACT 47. The "Contract- Statement of Understanding" (Plaintiff's Exhibit "B") required the plaintiff to make more than four installment payments, rendering this transaction a consumer credit transaction subject to the Truth in Lending Act (hereinafter TlLA), 15 U.S.C. 51601 gt~, and Regulation Z, 12 CFR 5226.1 gt ~. 48. The defendant failed to provide the disclosures required by the TlLA and Regulation Z. DAMAGES WHEREFORE, the plaintiffs request the following relief: 1. On Count I, Fraud, actual damages in the amount of $4,431.00 plus punitive or exemplary damages. 2. On Count II, Revocation of Acceptance, damages in the amount of $4,431.00. 3. On Count III, Breach of Express Warranty, damages in the amount of $4,431.00. 4. On Count IV, violations of the Motor Vehicle Sales Finance Act, a determination that there was no valid contract for the installment sale of this motor vehicle, and damages in the amount of $4,431.00. 5. On Count V, violations of the Unfair Trade Practice and Consumer Protection Law, $4,431.00 trebled pursuant to 73 P,S. 5201-9.2, making the total $13,293.00, plus reasonable attorney's fees. 6. On Count VI, violations of the federal Truth in Lending Act, statutory damages pursuant to 15 U.S.C. 51640 in the amount of $100.00 and reasonable attorney's fees. 7. Such other and further relief as this Court may deem reasonable and just. Respectfully submitted, ~.. ~~kV\_~_ Jan Muller-Peterson Attorney for Plaintiffs LEG!L SERVICES, INC. a Irvine Row Carlisle, pa 17013 (717) 243-9400 The above-named plaintiffs, John and Lori Hess, verify that the statements made in the above Amended Complaint are true and correct. Plaintiffs understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: 5- 2.~-l:\\1". ~b~~tiff Date: ,1)-;;;J4 - q~_ Itu r: ~ Lori Hess, plaintiff .-..,., . .. ....-...... ~-_.. ._~- -'-'-.--: -- _. -;' .~. ~ --------. - , USED VEHICLE ORDER 18 93 PHONr:.l/.,7 r.- 7;:; Cj<../ I . ~ 1JP J7CY",c, I!HTI!R MY ORDI!R FOR ONE AS FOLLOWS: uc. HI'. CAR SAl.ES PRICE r DEUVERV & HANDUNG /: ~~ uc. PlATES I 0 I I I t ! . . - TOTAL PURCHASE PRICE DEPOSIT - USED CAR AU.lMIlNCE S - LESS UEN . - 'HaD BY - EQUITY CASH ON DEUVERV - DO - TOTAL PAYMENT" S The InIannaIloli you ...In lItewlndowlonn lor litis vehlcIe II pan tJllItIs c:ontrIcl. InIonnaIIon on lite window Ionn oven1dea lIIlY c:onlrIty provIIlona 10 _ lite COIlhC1 tJI sale. TOTAL PURCHASI! PRICE . 18 uc. HI'. lmlCtC NO. SOLD .....,,-..... AS IS. c...nor'.___ , Wtlll__...._.... _-,.... __"'_ O SOLD WITH 1Ild__lo.w_ 1Ild__ "'___"'_ W,'ARRA"'-' IIldlOlXlr_M__bO.-"...__OI",-_..,___ .. ... I. WtdOllllI_.,.....~.gtou.__OI_ 0....-. SIonIUa I.....,..,.... Met DICII ClI"ordIf. w..................... c:cntlIar'e.... ~ClClrlhII.I_ ,....."... ....... AaOlOWlIIlCIEAEaPJOfACOIMUTfCllPYOfnosOAOblONIHfDAIt__ ...._~.._...~ .....J'!"-- "...era...flItcaIICI.....ClIflItIllnMIO................M...........-...aIOIfwaCDllllllrJJ... .......... flIt............an N~. Ill.... ,,-.no.....,. ..,.._~..... .............,..,.... tlIInUllld....... \ . r i f ,_ III 0CC0IlI clofivwy IkIyor'I SIgnoUe -.. /8 _ s.s. No. Pllane -... AUTOlH! F<RIII3OlI EXHIBIT A .. . .-. , ...........'~..'...-_... .~f.~ --- - - --' - ---- 141 g. TrlDdl~ Bd , carlisle. Pa 17013 . '717-258-5152 Contract- Statement or UnderstandinEf 1~!:\..~~i\-_1k~_havinEf purchased a 19.B.l C.ake)~~~~i__ ____ Caodel) J:iDl.q,~f.._~ , VIN.~~9~~D~~~_________on~_~~~~. Hereby understand that I amobli~ated to Cars Cars {or the total amount or $_c::!~O~Q.Q. This obli~ation is due and payable in the a.aunt $__~5..__{or __~____l1eek.s. I further understand that if I should become 1 day in delault or my payment I am subject to havinsi' this vehicle repossessed. And I am responsible Cor a $100.00 repo charEfe,and'all resonable Attorney fees resultin~ in collect- ion. 'There is $10.00 a day late charE'e after payment date, untill judsi'ement is entered. r. t t J \. I I g ~ 9 '7,. . Irs payaen y~~=_____~____________ SiE'natur~~~~~:....kutf~J. Date__&_~L~~~______ ~qD ~\ ~ ~d~ .'. " , . . EXHIBIT B LEGAL SERVICES, INC. II Irvine Ruw Carlisle.I'ennsylvuniu 171113 (717) 243.l)41KI FlIx (717) 243.11112(, West Shure (717) 76(,.11475 fr.Il"'". .'.".. LAM (lNIrnhenbu'&. Pcnftt)h..nia 1T:l:1I (7171:M.'J~ 19W.lli1hSlrttl Octty'lhw..I"cnM)'t..llillllU5 (111)]J.4.7W IlIJ Un,,,ln W., rwl r.u.I~,"'45 Md'nllnrlhhw.. PclUll)'hulllnn <<71714"'..uJ15 November 2, 1993 Calvin Roth 1419 Trindle Road Carlisle PA 17013 Re: John Hess, Jr. Notice of Revocation Dear Mr. Roth: On June 18, 1993, Mr. Hess purchased a 1987 Renault Alliance from Cal's Cars, Inc. Prior to purchasing the car, my client asked the salesman whether there had ever been any prior major damage done to the car. He answered that there had not. The weekend after purchase, my client discovered that the car had had major damage. He learned at that time what an "R-Title" was. When an "R- Title" appeared on his used vehicle order, he had assumed this term related to internal recordkeeping at Cal's Cars. Having discovered he had been deceived at the time of purchase, he returned to Cal's Cars and demanded that he be allowed to return the car and get his money back. He was told this would not be possible. When your salesman told my client that the car had never had major damage, he violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 5201-1 ~~. and committed fraud. 37 Pa. Code 5301.2(6) provides that "[t]he making of a . . . statement of fact in . . . [a] sales presentation if the . . . salesperson knows or should know that the representation is false and misleading or if the . . . salesperson does not have sufficient information upon which a reasonable belief in the truth of the representation could be based" is an unfair or deceptive practice under the Act. Exhibit C SERVING ADAMS, CUMBERLAND, ~'RA:'<lKLlN AND FULTON COUNTIES . UnGIlI Calvin Roth November 2, 1993 Page 2 Hy client relied on the salesman's statement. He would not have bought the car if he had known the truth about it. He continues to demand that you take the car back and return his money to him. The amount he has paid to you is $2,212.00, and this is what he is asking for. At this point, he is not asking for his other damages, including more than $1,000.00 in repairs which he believes are attributable to a prior accident the car had been in. If you do not agree to refund what my client has paid, and take the car back, my client intends to file a lawsuit asking for all of his damages trebled. Please let me know as soon as possible what you will do to resolve this. sincerely, LEGAL SERVICES, INC. Jane Huller-Peterson Attorney at Law cc: John Hess JHP:da JOHN HESS, JR. and LORI HESS, plaintiffs IN THE COURT OF COMMON PLEAS OF . . CUMBERLAND COUNTY, PENNSYLVANIA v. . . . . NO. 94- CIVIL TERM CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, CALVIN ROTH, . . and : Defendants . . CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Amended Complaint has been served this 25th day of May, 1994, by United States Mail first-class, postage prepaid, upon: Cal's Cars, Inc., Julie Stough, Anthony Gross and Calvin Roth in care of: Samuel Milkes, Esquire Jacobsen and Milkes 36 South pitt Street Carlisle PA 17013 Date: r1~ .J.~. . ''IN ~ II~-G:,;A-- Jan Muller-Peterson Attorney for plaintiffs LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 >~-:;",' , < '~', - ~";","J -=r en - ~>- .' >- ~,:. :;.: .....(._,:.'1.\ t' ___ l ., U'0V> ~': c. "':, ., . ",---. .~ :2::: ..-,c ... :or <= - . '. '.,,", ..... d " >- ~. = HESS, JR. and LORI HESS, : IN THE COURT OF COMMON PLEAS OF Plaintiffs v. CUMBERLAND COUNTY, PENNSYLVANIA NO. 94- Iq~)'CIVIL TERM : CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and: CALVIN ROTH, Defendants NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action promptly after this Petition, Order and Notice are served, by appearing personally or by attorney at the hearing scheduled by the Court and presenting to the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the Court may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Petition or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR, 4TH FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 TELEPHONE NUMBER: (717) 240-6200 .' .' JOHN HESS, JR. and LORI HESS, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 94- CIVIL TERM CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants Co m Pl.-AI NI PARTIES Plaintiffs John Hess, Jr. and Lori Hess set forth their Complaint as follows: 1. Plaintiffs, John Hess, Jr. and Lori Hess, are individuals residing at 28 Chestnut Street, Apartment 8, Mt. Holly Springs, Cumberland County, Pennsylvania 17065. 2. Plaintiffs are the purchasers of a used motor vehicle. 3. Defendant Cal's Cars, Inc. (hereinafter "Cal's Cars") is a corporation whose principal place of business is at 1419 Trindle Road, Carlisle, Pennsylvania. 4. Defendant Julie Stough is the President of Cal's Cars. She directed, controlled, and participated in the activities of Defendant Cal's Cars described below. 5. Defendant Anthony Gross is the General Manager of Cal's Cars. He participated in the activities of Defendant Cal's Cars described below. 6. Defendant Calvin Roth is a principal of Cal's Cars and directed or participated in the activities of Defendant Cal's Cars described below. , COUNT I FRAUD 7. On June 1, 1993, Plaintiffs went to Ca1's Cars to purchase a vehicle. 8. Plaintiffs told Defendant Anthony Gross that they were students and needed reliable transportation to get to and from school. They stated they knew little of cars and had "been taken" twice before. 9. Defendant Anthony Gross told them there were three cars on the lot which would be suitable for them and offered to let them test drive those vehicles, which they did. 10. They selected a 1987 Renault Alliance and asked the salesman, Defendant Anthony Gross, if the car had ever had any major damage done to it. 11. Anthony Gross answered that it had not, knowing his answer to be untrue and intending that Plaintiffs rely on it to their detriment. 12. Plaintiff John Hess then asked how many prior owners the car had had. 13. Defendant Anthony Gross said he would have to go to the office to get that information. When he came back, he told the plaintiffs that the car had had only one prior owner, knowing his answer to be untrue and intending that Plaintiffs rely on it to their detriment. 14. Defendant Anthony Gross further told Plaintiffs that the car was in good condition, knowing this to be untrue and J - .i'.~ -. ,-co,. k " 1;,,'> ~~. intending that Plaintiffs rely on it to their detriment. 15. Defendant Anthony Gross made these representations acting as an agent of the other defendants. 16. Plaintiffs reasonably relied upon Defendant's false representations in deciding to purchase the vehicle. 17. On June 1, 1994, Plaintiffs purchased the vehicle at a total purchase price of $3,412.00. They traded in a vehicle for which they received a used car allowance of $400.00 and paid $712.00. This transaction is evidenced by a "Used Vehicle Order," attached hereto as Exhibit "A," and incorporated herein by reference. 18. Plaintiffs financed $2,300.00 in installments of $45.00 for 52 weeks. This arrangement is evidenced by a "Contract - Statement of Understanding," attached hereto as Exhibit "B" and incorporated herein by reference. 19. The weekend after Plaintiffs purchased the vehicle, they took the car to Plaintiff Lori Hess's uncle, a qualified mechanic, and discovered that the car had been in an accident that had caused damage to its rear end. After examining the car and the paperwork, he informed them that: a. The car had been reconstructed after extensive damage. b. The bottom of the car had been pushed up against the gas tank. c. There was evidence of a poor reconstruction job. d. Thumping noises came from the car when it was driven. 20. Since learning this information, Plaintiffs have been in ,'..l. ~~.- fear that their car is unsafe. 21. Had Plaintiffs known the true history and condition of the car, they would not have purchased it. 22. Upon Plaintiffs' demands that Defendant Cal's Cars take the vehicle back and return their money, Defendants performed a "safety check," and as a result of that check, fixed a crack, put another set of tires on, and did a front end alignment. 23. Within three months of purchase, the transmission needed to be replaced at a cost to Plaintiffs of $804.00. As a result of that and other repairs including replacement of the alternator, Plaintiffs' repair bills within the first four months totalled $1,019.43. 24. As a consequence of Plaintiffs' reliance on Defendants' false representations, they have been damaged in the amount of all sums expended toward the purchase and repair of the car. 25. Defendants' acts in misrepresenting the car's prior use and damage were outrageous because of Defendants' evil motive or reckless indifference to the Plaintiffs' rights. COUNT II REVOCATION OF ACCEPTANCE 26. The preceding averments of this Complaint are incorporated herein by reference. 27. On June 7, 1993, the Monday fOllowing the weekend when Plaintiffs discovered they had been deceived about the car's history, Plaintiff John Hess called Cal's Cars and demanded his money back. The person on the telephone said she would give Defendant Calvin Roth a message. 28. A few days later, Plaintiff John Hess called again to demand that Cal's Cars take the car back and return his money. 29. Defendant Julie Stough returned the call and said the decision was Calvin Roth's to make. 30. On June 18, Plaintiff Lori Hess called and spoke to Defendant Calvin Roth, who told her Cal's Cars would not take the car back and return Plaintiffs' money to them, but would allow them to trade the car for another on the lot. 31. Defendant Lori Hess refused to exchange the car for another on the lot, not wishing to deal with Cal's Cars again. 32. When Lori Hess told John Hess of this conversation, he called Cal's Cars demanding his money back and stating he would not exchange the car for another of their cars. 33. Defendant Calvin Roth refused to take the car back. 34. The car's nonconformity to the car promised substantially impaired its value to Plaintiffs. 35. On November 2, 1993, Plaintiffs, through counsel Jane Muller-Peterson of Legal Services, notified Defendant in writing of their revocation of acceptance as authorized by 13 Pa.C.S.A., 62608. Count III BREACH OF EXPRESS WARRANTY 36. Plaintiffs repeat and incorporate by reference all preceding averments in this Complaint. 37. Defendant Anthony Gross's statements regarding condition and prior use of the vehicle created an express warranty. 38. As a result of the car's nonconformity with this warranty, Plaintiffs have been damaged in the amount of the difference in value between the car promised and the car received. COUNT IV VIOLATIONS OF THE MOTOR VEHICLE SALES FINANCE ACT 39. The "Used Vehicle Order" (Plaintiff's Exhibit "A") and "Contract- Statement of Understanding" (Plaintiff's Exhibit "B") executed by the parties constitute motor vehicle installment sale contracts as defined by 69 P.S. 6603, and are governed by the Motor Vehicle Sales Finance Act (hereinafter referred to as MVSFA), 69 P.S. 6601 et ~ 40. The "Used Vehicle Order" for this vehicle fails to conform to the MVSFA's requirements for every installment sale contract, as set forth under 69 P.S. 6614, in that it lacks the following disclosures: a. The seller's address. b. The unpaid cash balance. c. The principal amount financed. d. The finance charge. e. The time balance. f. A payment schedule. g. A summary notice of the buyer's principal legal rights respecting prepayment of the contract, rebate of finance charges and reinstatement of the contract in the event of repossession. h. Specific provisions as to the buyer's liability respecting default charges, repossession and sale of the motor vehicle, in case of default or other breach of contract. 41. The "Contract- Statement of Understanding" fails to conform to the MVSFA's requirements for every installment sale contract as set forth under 69 P.S. 6614, in that it lacks the following disclosures: a. The buyer's address. b. The cash price of the motor vehicle. c. Any down payment made, and whether the down payment was cash or the agreed value of a "trade-in" motor vehicle, or both. d. A description of the "trade-in" vehicle. e. The unpaid cash balance. f. The principal amount financed. g. The finance charge. h. A summary notice of the buyer's principal legal rights respecting prepayment of the contract, rebate of finance charges, and reinstatement of the contract in the event of repossession. i. Specific provisions as to the buyer's liability respecting sale of the motor vehicle following repossession in case of default or other breach of the contract. ;:..... v.....,: " . . .. . "', .,.~ .,.. ",_" \ .-.'}' (oi-,:;''Cif.,.;j;,,",1?'.I~,i:::,:,:',f.-'-;~,i :;<;,~;.h;P7'1;,::~;:.~~~_~it1#F~~;1_~Ji'~,;~~(,~~r;;"':_~,,_-<~~W{~ .~~.J!r.~'i?lX;t.1'i~'*~'_~?;;>.";'i~;"'~6'::~-':_~'-~~:!:':';-'';~"t~;~'~~;:;,>~~,~;c:;'''-'::,,-, ,-........... ,,-_.,' ,,-,' .". - _~1fiP: -, r'- ..,,, . ~ COUNT V VIOLATIONS OF THE UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 42. Plaintiffs repeat and incorporate by reference all of the preceding averments in this Complaint. 43. Defendant Ca1's Cars is engaged in "trade or commerce" as defined by the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 6201-1 et sea. 44, Defendant is a motor vehicle dealer as defined in the regulations governing Automotive Industry Trade Practices, 37 Pa. Code 6301.1 et sea., and is sUbject to those regulations. 46. Defendants have violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. 6201-1 et sea.; and the regulations promulgated pursuant thereto, by engaging in unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce, as follows: a. Defendants violated 37 Pa. Code 6301.4 in failing to describe to Plaintiffs the Renault Alliance's prior use, including that its title had been reconstructed after it had been declared totalled and in failing to prepare a contract including that information and other information specified in the regulation b, Defendants violated 37 Pa. Code 6301.2(5) and 73 P.S. 6201-2 (4) (vii) in representing the motor vehicle to be of one quality when it was of another and in offering for sale a vehicle which was not roadworthy. "><' ...... .....---...".-,,'. ~~el;~\'=t~ ...- c. Defendants violated 73 P.S. 6201-2(4) by failing to enumerate in a contract the items specified in averments 49 and 60. d. Defendants violated 37 Pa. Code 6301.2(6) in making statements of fact Defendants knew to be false or had insufficient information upon which a belief in the truth of which could be based. e. Defendante violated 73 P.S 6201-2(4)(v),(vii), and (xvii) in Offering for sale a mechanically unsound used motor vehicle at a price far in excess of the vehicle's value. COUNT VI VIOLATIONS OF THE TRUTH IN LENDING ACT 46. The "Contract- Statement of Understanding" (Plaintiff's Exhibit "B") required the plaintiff to make more than four installment payments, rendering this transaction a consumer credit transaction sUbject to the Truth in Lending Act (hereinafter TILA), 16 U.S.C. 61601 et ~, and Regulation Z, 12 CFR 6226.1 et sea. 47. The defendant failed to provide the disclosures required by the TILA and Regulation Z. DAMAGES WHEREFORE, the plaintiffs request the following relief: 1. On Count I, Fraud, actual damages in the amount of $4,431.00 plus punitive or exemplary damages. 2. On Count II, Revocation of Acceptance, damages in ;lf~!.> the amount of $4,431.00. 3. On Count III, Breach of Express Warranty, damages in the amount of $4,431.00. 4. On Count IV, violations of the Motor Vehic1s Sales Finance Act, a determination that there was no valid contract for the installment sale of this motor vehicle, and damages in the amount of $4,431.00. 5. On Count V, violations of the Unfair Trade Practice and Consumer Protection Law, $4,431.00 trebled pursuant to 73 P.S. 6201-9.2, making the total $13,293.00. 6. On Count VI, violations of the federal Truth in Lending Act, statutory damages pursuant to 15 U.S.C. 61640 in the amount of $100.00 and reasonable attorney's fees. 7. Such other and further relief as this Court may deem reasonable and just. Respectfully submitted, ~. ~_9.z.. Ja Muller-Peterson At rney for Plaintiffs LEGAL SERVICES, INC. a Irvine Row Carlisle, Pa 17013 (717) 243-9400 The above-named Plaintiffs, John and Lori Hsss, verify that the statements made in the above Complaint are true and correct. Plaintiffs understands that false statements herein are made sUbject to the penalties of 18 Pa. C.S. 64904, relating to unsworn falsification to authorities. Date: 01..>.,-".",,,, '" Date: <!-/{-q1 John He , Jr., Plaint \ ftJ7 f ~. ~Jt'A1__4 COri Hess, P aintiff . ....;.;J:.~,/ .. . ..,......' ----_.._. - -. ...- . -. - .-., ---- . USED VEHICLE ORDER 19 93 PHONF.l/,\( r.- 7;) '5<./ I . I CITY: ENTER MY ORDER FOR ONE 14 ZlP J7u,,'S AS FOLLOWS: ~ ....E ~_19 .:!:J @nCtu 1+ L l./ 8'qlj'b t. ~. I I I , I I i uc.H.P. CAR SALES PRICE DEUVERY & HANDUNG TAX FlUNG UC. PLATES o _ TOTAL PURCHASE PRICE DEPOSIT - USED CAR AU.OWANCE S - LESS UEN S - 'HELD BY EaUITY CASH ON DEUVERY S 00 - - TOTAL PAYMENT .. S The InformaUon you see In Iha wlndowlorm forthls vehicle Is part 01 this contracllnformaUon on the window form overrides any contrary provisions 10 _ tho contract 01 sale. , . TOTAL PURCHASE PRICE S 19 19 LJC,H.P. .+ SOLD Ihefeby_'llliI AS IS. ~'. Signaluro STOCK NO. , Wlll1IdIaIIr_lhia_Iot _dIllvtIyon, __ol_ D SOLD WITH and labor Ulld.10wn0r pays told dolll< pays 01_ __01_ ondIaborUlldI.All""""lI1UIIblmodI Olour_IhopOl__1d bydlallr___ WARRANTY. Wldonol_.....~.8_clock,_OIr1diO. Dealer', SIgnnn I have read "lIcel/'ld bKl of IllI order, nil aAWO't'I d lawn. tItfN Ind ccnteonIln" c:uchUI caract.ltm 11,... 019 or 0IdIr n ACKNOWLEDGERECEJPTOF ACOUPIDECOPYOFTlISOROERONTHEDATESHOWNABOVE. n.rontll'l"ordIf .... ;'~:=IClIIICClII DlilIufanctl/'ld"'corrtd lftlCUllollhe.."Mkl....IdIlktIl'iCb\Wlldl.AI.........MItlIIdIOINnet~Otblr* Algltdlaal hllfllMglllj:lpIImQ on .. odomlIeIt. .. ....1NkeI no WIITW'tf lII' '........ -.... U 10" tdInI 01... nUlr YIhdt tiu bMn UMd Ot 01vIn. \ 1_ to OCCepl delivery 1Iuyef'. Slgnolunt - 18_ s.s.No. Phone "--' SaIesmIn AUTOUNE FORM IM300 EXHIBIT A .. ,. -, . '." -.......---'- ~. - -- - - -- - ---. 1419 Trlndle Bd . . carlisle.' Pa 17013 "717-258-5152 Contract- statement of UnderstandinE' ~~"!.~i,-_1k~_havinE' purchased a 19.al (.ake )~.9-l ~ U_ _ _ ___ (JlodeD J1 Dl.Q.~f- _0- VIN- ~~9lR.~D.${.e~_________onLcL:J_-9...~. Hereby understand that I am obliElated to Cal.s Cars {or the total amount of $_c.i~.P~Q.Q. This oblieation is due and payable in the a_aunt $__~5..__{or __~____1I1eek.s. I further understand that if I should become 1 day in default of my payment I am subject to havine this vehicle repossessed. And I am responsible {or a $100.00 repo charee.and 'all resonable Attorney fees resultine in collect- ion. .There is $10.00 a day late charE'e after payment date. untill judeement is entered. F. t t d \. I I g - 9 '7.. . Irs pay.en ~~=_____~____________ SiEfnatur~~~~~~.k.i.ti~J- Date __&_-:..L__9..~______ ~qD ~\ ~ ~d~ ." " , . . !;XlIllllT Il ":I'" en >, - r.L:1'- ':l!: -t;; ~ oc:z: wb~..;.r IJ'J t;) r.: '"':r LL' .~i'3u..i . . .. .... "'. .f".')~" - f");..:.-:_' .. . - ,)~.,.. ~;-: .iLd H l../') . : : J ~ J, ....:':; - - c.:::.:'!J ~ ._~.-..l.o. ... :~ .... I.~ <.." ""'" ~, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION - LAW No. ql./. ('1/),S till." TufY\ JOHN HESS. JR.. and LORI HESS, Plaintiffs CAL'S CARS. INC., JULIE STOUGH ANTHONY J. GROSS, and CALVIN ROTH, Defendants PRAECIPE TO PROCEED IN FORMA PAUPERIS To the Prothonotary: Kindly allow. John and Lori Hess, Plaintiffs, to proceed in forma oauoeris. I. Jane Muller-Peterson, attorney for the parties proceeding in forma pauperis. certify that I believe the parties are unable to pay the costs and that I am providing free legal services to them. The partys' affidavit showing inability to pay the costs of litigation is attached hereto. Muller-Peterson At rney for Plaintiffs LEGAL SERVICES, INC. a Irvine Row Carlisle. PA 17013 (717) 243-9400 . " V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN HESS, JR., and LORI HESS, Plaintiffs CAL'S CARS, INC., JULIE STOUGH ANTHONY J. GROSS, and CALVIN ROTH, Defendants AFFIDAVIT IN SUPPORT OF PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 1. We are the defendants in the above matter and because of our financial condition are unable to pay the fees and costs of prosecuting, defending, or appealing the action or proceeding. 2. We are unable to obtain funds from anyone, including our family and associates, to pay the costs of litigation. 3. We represent that the information below relating to our ability to pay the fees and costs is true and correct. (a) Name: John and Lori Hess Address: 27 Chestnut Street. Aot. 8 Mt. Holly Sorings PA 17065 Social Security Number: 181-64-5339(H)/163-64-5933(W) (b) If you are presently employed, state Employer: HACC (H) Address: Harrisburg PA Salary or wages per month: $148.80 Type of work: Student worker in admissions If you are presently unemployed, state Date of last employment: Salary or wages per month: Type of work: (c) Other income within the past twelve months Business or profession: N/A Other self-employment: N/A Interest: Dividends: Pension and annuities: Social Security benefits: Support payments: Disability payments: Unemployment compensation and supplemental benefits: N/A N/A N/A N/A N/A N/A N/A Workman's compensation: N/A '4 -.Iro _ (d) Other contributions to household support (Wife (Husband) Name: lori Hess If your (husband) (wife) is employed, state Employer: Full-time student Salary or wages per month: Type of work: Contributions from children: (e) Property owned Cash: $30.00 Checking Account: N/A Savings Account: N/A Certificates of Deposit: N/A Real Estate (including home): N/A Motor vehicle: Make Renault Alliance Year 1987 Cost $3200.00 Amount owed$180.00 Stocks; bonds: N/A N/A Other: (f) Debts and obligations . < . . . ...~,..~~",.,_.,..,--..- Mortgage: Rent: N/A Loans: Monthly Expenses: IItiHtif>R $1<)4.00; t"nr inRllrnnt"P S?~ 00; Car payment $194.00: Credit cards $40.00: Taxes & miscellaneous $25.00 (g) Persons dependent upon you for support (Wife) (Husband) Name: Lori Hess Children, if any: Name: Nicholas Hess Other persons: Name: Dustin Eckman and Justin Hess Age: 3 vears RelatioMhip: children 4. We understand that we have a continuing obligation to inform the court of improvement in our financial circumstances which would permit us to pay the costs incurred herein. 5. We verify that the statements made in this affidavit are true and correct. We understand that false statements herein are made sUbject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Date: L/_ .: I - '-1~1 ~"~~',,"~"" JOhn-Hess, Jr., Plainti~f ./iu ~ ~J- Lori Hess, Plaintiff Date: 4-; {- '}i/ " l.J") - Q:: .... """ ~ . t:',..,,: ~ In ... ?:>- -.,'- ........: t:n~...r _ :e(,,',;: ....o(.)~ k :t:.o;. ?6Z:.:! ""i"rr~'J) .j.....,.:;.oe _ll.4W:t': ..... ..,... C)W ,:-~o.. ;:;, tu - - .' .~ SHERIFF'S RETURN CCM-IONWEAL'Ill OF PENNSYLVI\NIA. COlMl'Y OF CIJ.IBERLAND In The Cou=t of Common Pleas of Cumberland County, Pennsylvania No. 94-l925 Civil Notice, Complaint John Hess, Jr. and Lori Hess VS Cal's Cars Inc., Julie Stough, Anthony J. Gross and Calvin Roth Michael Barrick , ZK~~ Deputy Sheriff of Cunberland County, Pennsylvania, who being duly sworn according to law, says, that he served the within Notice, Complaint Cal's Cars Inc., Julie Stough, uponJ\.nthony J. Gross & Calvin Roth, the defendant, at 3:37 o'clock p .M.X~ / EOST, on the l8 day of April , 19 94at 1419 Trindle Road. Carlisle . Cumberland County, Pennsylvania, by handing to Jim Connelly, Manager and adult in charge, acceoted for all defendants a true and attested copy of the Notice, Complaint and at the same tUnc directing his attention to the contents thereof and the "Notice to Plead" endorsed thereon. Sheriff's Costs: Docketing Service Affidavit Surcharge 26.00 2.80 28.80 So answers. ~J?~ ~~~~ R. Thomas Kline, Sheriff bY~/~-?( ~ Deputy Sheriff Sworn and subscribed to before 100 thin .)() -t(... day of ~ 19 q ,/ I\.D. YMt' . Q ht<-ri... . &1'1' Prothonotary JOHN HESS, JR, and LORI HESS, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-1925 CML TERM v. CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS CAL'S CARS. INC.. JULIE STOUGH. ANTHONY J, GROSS. ANP CALVIN ROTH TO PLAINTIFF'S COMPLAINT COME NOW, the Defendants to the above-captioned action, by their attorney, Samuel W, Milkes, Jacobsen & Milkes, and submit theBe preliminary objections to the Plaintiffs' Complaint on the following groundB: I. LACK OF JURISDICTION OVER THE PERSONS OF THE DEFENDANTS The Plaintiffs' Complaint sues a corporation, Cars Cars, Inc" and additionally sues Defendants named as the President of Cars Cars, Inc" the General Manager of Cal's Cars, Inc" and "a principal" ofCal's Cars, Inc, Because the actions alleged within the Complaint involve official action on behalf of the corporation of Cal's Cars, Inc., and/or specific acts pursuant to Defendants' employment at or as agent for Cal's Cars, Inc., there is no personal jurisdiction over the individually named Defendants, Julie Stough, Anthony J, Gross, and Calvin Roth. .'. .' D. DEMURRER TO SUFFICIENCY OF PLEADING Plaintiffs raise as Count II within their Complaint the allegation of revocation of acceptance of the vehicle at issue in this action, Said revocation is ineffective because it did not take place until five months after Plaintiffs took possession of the vehicle and five months after Plaintiffs' claim to have discovered the defective nature of said vehicle. Said revocation is also defective and of no force or effect since the Complaint fails to allege that the vehicle has in fact been returned to Defendants in connection with the claimed revocation of acceptance. In fact, the Complaint suggests, as is the case, that Plaintiffs continue to retain said vehicle, m. FAD..URE OF PLEADING TO CONFORM TO RULE OF COURT Pursuant to Rule l019(h) of the Pennsylvania Rules of Civil Procedure, if a pleading sets forth a claim which is based upon a writing, the pleading shall attach a copy of the writing, At paragraph 35 of Plaintiffs' Complaint, Plaintiffs allege that through their attorney, they revoked acceptance of the vehicle at issue in this action and that such revocation was communicated to Defendants in writing, The writing is not attached to the Complaint and, therefore, the Complaint fails to comply with this rule of procedure. WHEREFORE, the Defendants request this Court to sustain their preliminary objections and to dismiss the Plaintiffs' Complaint with prejudice. Respectfully submitted, ~fd::~ JACOBSEN & MILKES 36 South Pitt Street Carlisle, PA 17013 . (717) 249-6427 Attorney No, 30130 '. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN HESS, JR., and LORI HESS, Plaintiff NO. 94-1925 CML TERM v. CAL'S CARB, INC" JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants CERTIFICATE OF SERVICE I, Samuei W. Milkes, hereby certifY that a true and correct copy of the Defendants' Preliminary Objections to Plaintiffs' Complaint, in the above-captioned matter was duly served upon Jane Muller-Peterson, counsel for Plaintiffs, by depositing it in the U.S, Mail, first class, on May 5, 1994, addressed as follows: JANE MULLER-PETERSON LEGAL SERVICES, INC. 8 IRVINE ROW CARLISLE, PA 17013 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C,S, Section 4904, relating to unsworn falsification to authorities. Dated: S1 s(91 ~~ SAMUEL W. MILKES i!t ~ ~ ~ Jo.. ",,,- te:;,'...... to,... .:;- -::',1 ~\.:.I~t o..t,,;;).,-,ooI':' ."'.... ., I:~!t;.?:: . -.(,)0.. .", I..., ... ~ .:.1:\;'.;-/ :..:,. .....-, (.:.~, v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. 94.1925 CML TERM JOHN HESS, JR. and LORI HESS, Plaintiffs CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS CAL'S CARS. INC.. JULIE STOUGH. ANTHONY J. GROSS. AND CALVIN ROTH TO PLAINTIF'.F'S AMENDED COMPLAINT COME NOW, the Defendants to the above-captioned action, by their attorney, Samuel W. Milkes, Jacobsen & Milkes, and submit these preliminary objections to the Plaintiffs' Amended Complaint on the following grounds: I. DEMURER ON LIABILITY OF INDIVIDUALLY NAMED DEFENDANTS The Plaintiffs' Amended Complaint seeks damages against a corporation, Cal's Cars, Inc., and additionally against individual Defendants named as the President of Cal's Cars, Inc. (Julie Stough), the General Manager of Cal's Cars, Inc. (Calvin Roth), and "a principal" of Cal's Cars, Inc. (Anthony Gross). None of the individuals are alleged to be "officers" of the corporation. Because the actions alleged within the Amended Complaint involve allegations of official action on behalf of the corporation of Cal's Cars, Inc., and/or specific acts pursuant to Defendants' employment at or as ~ . agent for Cal's Cars, Inc., there is no basis for any claims against the individually named Defendants, Julie Stough, Anthony J. Gross, and Calvin Roth. The Amended Complaint does not allege that the corporation is in any way simply a facade to protect the operations of any dominant shareholders or other parties (and indeed it is not), nor does it allege that any of the parties acted outside their respective authority within the corporate structure. At 1145 of the Amended Complaint, a key allegation relating to the applicability of the Unfair Trade Practices and Consumer Protection Law to the transaction at issue, the allegation is only that "Defendant is a motor vehicle dealer," without specifying which Defendant is a motor vehicle dealer, when in fact it is Cal's Cars that is the Motor Vehicle Dealer, not the individual Defendants. The Amended Complaint fails to state any basis for piercing the corporate veil so as to allow an action against the individual Defendants. n. DEMURRER TO SUFFICIENCY OF PLEADING REGARDING REVOCATION OF ACCEPTANCE Plaintiffs raise at Count II within their Amended Complaint the allegation that they revoked acceptance of the vehicle at issue in this action. Said allegation of revocation is ineffective because to date it has still not taken place. The Amended Complaint alleges at 1117 that "on June 1, 1994 [sic], Plaintiffs purchased the vehicle at a total purchase price of $3,412.00." This paragraph should read 1993, not 1994. In any event, a comparison of the alleged purchase price, plus the additional damages alleged in '1123, to 111 of the Damages claim, makes it clear that despite Plaintiffs' claim of revocation of acceptance, they paid off the full purchase price, plus costs for the purchase of the vehicle, over a payment period of 52 weeks (see also UB). Moreover, the Amended Complaint makes it clear that to date, the Plaintiffs continue to eJijoy , -. the full use of the vehicle, more than one year after its initial purchase (compare ".11124, 36, and other paragraphs, asserting supposed repeated attempts by Plaintiffs to revoke acceptance, but never asserting that Plaintiffs in fact returned the car). See. also. 1122, alleging that instead of returning the vehicle, Plaintiffs accepted the vehicle with significant improvements performed by Defendants on the vehicle. WHEREFORE, the Defendants request this Court sustain their preliminary objections and to dismiss the Plaintiffs' Complaint with prejudice. Respectfully submitted, 6/2p(9't -!fZ~ JACOBSEN & MILKES 52 East High Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 30130 -. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN HESS, JR., and LORI HESS, Plaintiff NO. 94-1925 CML TERM v. CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants CERTIFICATE OF SERVICE I, Samuel W. Milkes, hereby certify that a true and correct copy of the Defendants' Preliminary Objections to Plaintiffs' Amended Complaint, in the above-captioned matter was duly served upon Jane Muller-Peterson, counsel for Plaintiffs, by depositing it in the U.S. Mail, fll'st class, 0~3:11994, addressed as follows: JANE MULLER-PETERSON LEGAL SERVICES, INC. B IRVINE ROW CARLISLE, PA 17013 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 1B Pa.C.S. Section 4904, relating to unsworn falsification to authorities. na.." (fv( <ti C~ -::r en = c:... .... rl ','-I C=_'l. ',-'-' >..:- .a:;.- ut~';.. ::~~~ '." .; ~ . ". ; "~ -.;,~ '" :""'1 '" c. T' PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Arg\IIlent ccurt:. --------------------------------------------------------------------------------------- CAPTION OF CASE (ent.iJ:e caption nust be stated in full) John Hess, Jr. and Lori Hess, (Plaintiff) VB. Cal's Cars, Inc., Julie Stough, Anthony J. Gross, and Calvin Roth (Defendant) No. 11j?~ Civil 'rl'rm 1994 1. state matter to be argued (i.e.. plaintiff's motion for new trial. defendant's de1IJrrer to CCIlplaint. etc.): Defendants' preliminary objections to plaintiffs' complaint 2. Identify counsel. who will argue case: (a) for plaintiff: Address : Jane Huller-Peterson Legal Services, Inc. S Irvine Row Carlisle PA 17013 (b) for defendant: Samuel Milkes Jacobsen & Milkes 52 E. High Street Carlisle PA 17013 I will notify all parties in writing within bolo days that this c:ase has been listed for arggnent. Address : 3. 4. Argunent 0Jurt Date: AuCr...... T '0, ,'1q.,. Dated: ~mey~~~~ Ie""".:':.'...,,';.... -,:"'~;"'..';"~. = ..-..: ~ ", '" -. ~: -::r O"l - -:... ":r ~; = ("...... ~ = -, f: I, , i !~., , .. , , JOHN HESS, JR. and LORI HESS, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA NO. 94-1925 CML TERM v. CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants ORDER AND NOW, this ,l"" day of 1"7 , 1994, upon presentation and consideration of the Motion for Continuance of Argument, it is hereby ordered that argument on Defendant's Preliminary Objections be rescheduled as follows: ~.t.:.1- /", Or..hw !f'" Ir91 tM,"fI. ~tI'" , ,"",~i.J'L&.. . , I .-:IV ,1111:"'# ./r, ~IIL~ -J-f... J. ,"" 4.- f'''''~ 1-<-1' BY THE COURT: A J. , .-.;....."....<. .- JUt 28 I 44 PH 'S~ . -: i JU'CE Of I.;: liIOH~T"~'r CUlib:';,f;,~O C(lll.~rr Ffh'/iSYLVAII14 . JOHN HESS, JR. and LORI HESS, : IN THE COURT OF COMMON PLEAS Plaintiffs : CUMBERLANDCOUNTY,PENNSYLVANIA v. NO. 94-1925 CML TERM CAL'S CARS, INC., JULIE STOUGH, ANTHONY J, GROSS, and CALVIN ROTH, Defendants MOTION FOR CONTINUANCE OF ARGUMENT COME NOW, the Defendants in the above-captioned action, Cal's Cars, Inc., et al., by their attorney, Samuel W. Milkes, Jacobsen & Milkes, and formally request of this Honorable Court that it continue the argument presently scheduled on Defendants' Preliminary Objections for August 10, 1994. In support of this Motion, Defendants assert as follows: 1. This matter was listed for argument by Counsel for Plaintiffs on July 20, 1994, the last date for listing for the present Argument Court. 2, The Preliminary Objections rued by Defendants in response to Plaintiffs' Amended Complaint were just rued as of June 30, 1994. 3. Counsel for Defendants has long standing plans to be on vacation on the date for which argument has been scheduled, August 10, 1994. Respectfully submitted, v7~ -BY: Samuel W. Milkes, Esq. JACOBSEN & MILKES 62 East High Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 33130 4. Counsel for Defendants has no objection to the special scheduling of argument in this matter or otherwise to the scheduling of this matter for the next Argument Court. 6. Counsel for Defendants has attempted to gain the concurrence of Jane Muller-Peterson, Counsel for Plaintiffs, by calls to her office this week. Ms. Muller-Peterson is on vacation for this week and a law student handling the case has been unable to gain the concurrence of the named Plaintiffs for this Motion. WHEREFORE, Defendants respectfully request that argument on this matter be rescheduled. JOHN HESS, JR. and LORI HESS, : IN THE COURT OF COMMON PLEAS Plaintiffs : CUMBERLANDCOUNTY,PENNSYLVANIA v. NO. 94-1925 CML TERM CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants CERTIFICATE OF SERVICE I, Samuel W. Milkes, hereby certify that a true and correct copy of the Defendants' Motion for Continuance of Argument, in the above-captioned matter was duly served upon Jane Muller-Peterson, counsel for Plaintiffs, by depositing it in the U.S. Mail, first class, on July 28, 1994, addressed as follows: JANE MULLER-PETERSON LEGAL SERVICES, INC. 8 IRVINE ROW CARLISLE, PA 17013 I hereby verify that the statements made in the foregoing are true and correct. I understand that false statements herein are made subject to the penalties of 1B Pa.C.S, Section 4904, relating to unsworn falsification to authorities. Dated: '7 f'Yf/1 ~p IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA JOHN HESS, JR. and LORI HESS, Plaintiffs v, NO. 94.1926 CML TERM CAL'S CARS, INC., JULIE STOUGH, ANTHONY J. GROSS, and CALVIN ROTH, Defendants PRAECIPE To the Prothonotary: Please note my change of address effective immediately. Respectfully submitted, &~ JACOBSEN & MILKES 62 East High Street Carlisle, PA 17013 (717) 249-6427 Attorney No. 33130 Counsel for Defendants Cal's Cars, Inc., et al. t.,.:". _._ .,.- -:r ~ - >->- ~t- ...% l:aJlo:'~ UZOz ~oU-'t ~:O~ ~J' ":: ::a: ;:. " :: -~1Jl ;,:..,-..:~ " 10";-. :"'c">LIJ -. .xrL- .. => ~<.> iE 3' o ~ en <.:t => -=<