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HomeMy WebLinkAbout01-5576CRAIG A. KUHN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 01- ~, CIVIL TERM C.A.R.S. PROTECTION PLUS, INC., Defendant CIVIL ACTION LAW 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 within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 CRAIG A. KUHN, Plaintiff C.A.R.S. PROTECTION PLUS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01- 55"~ CIVIL TERM CIVIL ACTION LAW COMPLAINT AND NOW, comes the plaintiff, Craig A. Kuhn, by and through his attorney, Michael A. Scherer, Esquire, and respectfully represents as follows: 1. The plaintiff, Craig A. Kuhn (hereinafter "Kuhn") is an adult individual who resides at 233 Red Tank Road, Boiling Springs, Cumberland County, Pennsylvania. 2. The defendant, C.A.R.S. Protection Plus, Inc., (hereinafter "Defendant"), is a Pennsylvania Corporation with a principal place of business at 7408 Saltsburg Road, Pittsburgh, Allegheny County, Pennsylvania. 3. On March 16, 2001, Kuhn purchased a 1990 Jeep Cherokee, VIN Number 1J4FJ38L7LL114064 (hereinafter "vehicle") from H. L. Clouse Motor Cars and Trucks, of 4990 Spring Road, Shermansdale, PA for the sum of $4,195.00. A copy of the purchase contract is attached hereto as "Exhibit A' and is incorporated herein by reference. 4. The vehicle was sold with a three month/4500 mile warranty issued by the defendant. A copy of the warranty document is attached hereto as "Exhibit B" and incorporated herein by reference. 5. In or about April, 2001, the defendant solicited Kuhn, at his residence, to purchase an upgrade to the warranty, which Kuhn did, at a cost of $210.94. The upgrade made the warranty a twelve month/18,000 mile warranty. A copy of the warranty upgrade and letter with the warranty card are attached hereto as "Exhibit C." 6. On or about August 24, 2001, Kuhn began hearing an unusual noise coming from the engine compartment, and immediately thereafter, took the vehicle to a local mechanic for a diagnosis of the problem. 7. Kuhn was informed that the bearings were worn in the engine, and needed replaced, at an estimated cost of $2,500.00. 8. Kuhn thereafter contacted the defendant to arrange for the repairs to be paid through use of the warranty protection, and the defendant refused authorize the repairs to be paid through use of the warranty. 9. The vehicle has not been repaired because the defendant has refused to authorize payment of the repairs. 10. As a result of the vehicle needing repairs and being inoperable, Kuhn has rented a vehicle at a cost of $40.00 per day, which rental charge continues to accrue daily while the vehicle is inoperable. COUNT I BREACH OF WARRANTY 11. Paragraphs one through ten above are incorporated herein by reference. 12. The defendant has breached the terms of the warranty issued to Kuhn by virtue of the defendant's refusal to authorize repair of the vehicle. WHEREFORE, Kuhn demands judgment against the defendant for the cost of the repair of the vehicle as set forth above and the cost of the rental vehicle, plus costs of suit. COUNT II VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW Paragraphs one through twelve above are incorporated herein by 13. reference. 14. The defendant issued Kuhn a written warranty in connection with Kuhn's purchase of the vehicle, and the defendant has failed to comply with the terms of the warranty it issued to Kuhn. 15. The defendant's conduct as set forth in this Complaint is in direct violation of the Unfair Trade Practice and Consumer Protection Law, 73 P.S. section 201- 2(4)(xiv) (hereinafter "UTPCPL"), in that the defendant has sold Kuhn a warranty and now refuses to honor it. 16. The UTPCPL permits Kuhn to recover three times his actual damages and recover his attorney fees, which are estimated to be $5,000.00. WHEREFORE, Kuhn demands judgment be entered against the defendant for three times the cost to repair the vehicle ($7,500.00), plus attorney's fees ($5,000.00) for a total of $12,500.00, plus costs of suit. Respectfully submitted, O'BRIEN, BARIC & SCHERER Date: ?./~,. ~/ ID. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for the plaintiff, Craig Kuhn mas.dir/genlit~kuhnlku h n.com VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. - ./Craig A. Kuhn ~ DATED: H. 1:. CLOUSE Motor Cars and Trucks 4990 Spring Road Shermans Dale, PA 17090 ~'" (717) 582-4542 State IUsed ~ TK ,Zip · Purchaser Name City Vehicle Pu~chasin~ Into. ~1 CAR I--) TRI I ~t ~,)ct: [¢ F~ J Stock Number~/~/ Used Car Warranty ~ *See Attached Sheets Total ~1 ling Price Less Trade in eAHowance son, Taxable Subtota 1 e PA Sales Tax LiCense, Title,& ~her State F~s Total Price  Less Oepos~t Balance Due ~ on ~livery If Trading Make ~[~ lqear ~:.-~--~iMake I Mod( c)~ J iT',,F~J~ J CHl~j~ )< ~ jlype _~-~ I ber .... [---1 AS IS If you do not take delivery of this vehicle by ~ or if you choose to cancel this agreement for any you (the purchaser) shall forfeit the ~ney placed as deposit. Customer's Signature X This o'~er shall no~e by his execution of this order acknowledgl$ that he has read its ' and conditions and has received a true "EXHIBIT A" BUYERS GUIDE IMPORTANT: Spoken promises are difficult to enforce. A~k the desist to put sll promises In writing. Keep this form. ~,~J~:~.~:LOtom boR~-~!~'~,.~_o_° ¥~m t~rl! ~!~t~b ~o~r,~ ~ ~mo~ lO ~;t~ ~ You will pay all costs f0~ anY repairs:~he~ealer assumes no responsibility for any repairs regard ess o~ny~ 0r~ WARRANTu Lx Thru means that the dealer ~oes not make any specific promises to fix things that need re,air ~h~n~ buy t~;~ vehicle or after the t;me of sal~:~B~t~state a~" mp ed warrant es" may ~ ye vou some r ~hts to bav~ t~e d~a er take care of serious problems that were not apparent when you bought the veh c e WARRANTY ........ ' .~.' COMPLETE AUTOMOyIVE ~PAIR '~'~Vi~'~' PROTECTION PLUS INC ,. .: ASK THE DEALER FoR ACOPY OF THE WARRAN~ CONTRACT ON THIS VEHICLE ~FULL ~IM~ED WAR~ ~e d~aler ~li:pay .A :/o of tbs lair a~d ~A for the ~vered s~ste~s that fail during the warran~ Per ~: Ask ~dea er for ~-~opy document for a ~11 e~lanation of warmn~ coverage exclusions, and the dealers repair Under state law, "impl.ied wa~an~es" may give you even more SYSTEMS COVERED: COVERED SYSTEMS ". ~, .... Engine Transmissions Drive Axle Towi.g · ~ Cooling System ~teering Systems Suspensio. Rental Brakes Electrical Labor Seals ~ Gaske~ DURA~ON OF COVERAGE MARKED BELOW ~12 MONTH/18,000 UILES ~24 MONTH/~0,0~ UiLES ~ 12 MONTH/UNLIMITED UILES ~ 24 MONTH/UNLIUITED MILES READ THEWARRAN~CONTRACT FORTHE SPECIFICS ON SYSTEM COVERAGE ~ SERVICE CO~A~ ~~a~ is available at an e~a ~ar~ on ~is vehicle. Ask for de~ils as to ~vemge, ~du~ble, p~, and ex~usions. If you bW a se~ ~ntra~*w~In ~ daYS of ~e ~me of ~le ~ate law 'impli~ warmn~es' may give you a~on~ ~hts, ' SEE THE BACK OF THIS FORM for Important additional Information, Including a list of some major defects that may occur In used motor ~hicle~s. ~ ~ Below Je ~, list o! some major defects that may ~r in .u~sed F~& Flame--cracks, corrective welds, or ruslecl through ~tracks--bent or twisted frame Oil leakage, excluding normal seepage Craeked block or head Knocks or misses related to camshaft lifters and push rods Abnormal exhaust discharge Improper fluid level o~ leakage, excluding normal seepage Manual~q{~ s~ p~ cha ers~.~ ~ j~d~ ~{,. d' ~ Does not stop vehicle in strai .... level ~ ~t,- Aa o?,t~ ~< ~ma F~ , Improper fiu,d or leakage Abnormal noise or vibration caused b~ faulty differenhal Spring b~oken~ Coellng Syetem Leakage including radiator -- Improperly functioning water pump Electrical System Improperly funcho~ing alle?ator~g.e~er~Qr.~at terv consumer purchase (except for purpose of tesbdnwng) ~ a v o ahon of federal :iCAL-COMI)ONENTS · · , E RV ICE "EXHIBIT CT' Upgrade Now and Save!!! The Power train Limited Warranty that you have just purchased may be upgraded within the next 30 days. To upgrade your C.A.R.S. Protection Plus Inc. Power Train limited Warranty you must com- plete the following upgrade form and return it with your payment within the next 30 days. You may also Upgrade your Warranty by phone!!! For your convenience simply call 1-888-335~6838. A copy of the value contract which you may upgrade to is on the back of this form. You owe it to yourself to have the best coverage out there. With this upgrade you have added coverage such as suspension, steering components, brake compo- nents, ,cooling system and electrical components. If you look at the cost to upgrade compared to the cost of a repair you will agree that this is the best value out there. COMPLETE AUToMOTiVE REPAIR SERVICES 7408 Saltsburg Road, Pittsburgh, PA 15235 toll free: 1'888-335-6838 fax: 724-387-2344 VALUE CONTRACT UPGRADE [] 3 MONTH 4,500 MILES $49.00 [] 6 MONTH J~ 12 MONTH [] 24 MONTH [] 36 MONTH [] 48 MONTH 7,500 MILES $99.00 18,000 MILES $199.00 30,000 MILEs $329.00 45,000 MILES $429.00 55,000 MILES $529.00 DATE ~ OWNER'S NAME~ ADDRESS~-'---~ STATE P4 ~J '- -- For Your Convenience We Also Accept' MasterCard, Visa, American Express and Discover for Extensions. Charge Card// EXpiration Date: Card Holder's Signature Congratulations! REMOVE CARD AND SAVE. CARD MUST BE SHOWN WHEN FILING A CLAIM. Your vehicle has been accepted by the C.A.R.S. Protection Plus, Inc. for the Warranty on your pre-owned vehicle. This is your customer identifica- tion card. It is to be used each time you file a claim. When filing a claim, follow the procedures outlined on the back of your I.D. card. Also with your C.A.R.S. Limited Warranty viding you with a Road America we are pro- ' Auto Assist Contract m conjunction with your limited warranty. If you need roadside assistance call 1-800-418-9836. Thank you for selecting a C.A.R.S. limited Warranty. CRAIG A. KUHN, Plaintiff C.A.R.S. PROTECTION PLUS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-5576 CIVIL TERM ClVIL ACTION LAW ACCEPTANCE OF SERVlCF I accept service of the Complaint captioned at the above term and number pursuant to Pennsylvania Rule of Civil Procedure 402 on behalf of the defendant, C.^.R.S. Protection Plus, Inc., and certify that I am authorized to do so. Date: /~.~,/O/' ~Davi~d ~' · '. I~oli, Esquire CRAIG A. KUHN, Plaintiff, C.A.R.S. PROTECTION PLUS, INC., Defendant, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 0~ O~ - s-~ -~k- CIVIL TERM CIVIL ACTION - LAW Type of Pleading: Answer and New Matter Filed on Behalf of: Defendant Counsel of Record for this Party: David A. Regoli, Esquire PA ID# 61970 2300 Freeport Road Suite 10 New Kensington, PA 15068 724-339-1023 CRAIG A. KUHN, : Plaintiff, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. No. 01-5579 CIVIL TERM C.A.R.S. PROTECTION PLUS, INC., Defendant, CIVIL ACTION - LAW ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendant, C.A.R.S. Protection Plus, Inc., by and through their attorney, David A. Regoli, Esquire, and respectfully represents as follows: 1. Admitted. 2. Admitted in part and denied in part. It is admitted that the correct legal name of the Defendant is C.A.R.S. Protection Plus, Inc. who is a Pennsylvania corporation. However, the principal place of business is 4431 William Penn Highway, Murrysville, Westmoreland County, Pennsylvania. 3. Admitted. 4. It is admitted that at the time the vehicle was sold, the Plaintiff also applied for a three month/4,500 mile Power Train Warranty with the Defendant. 5. It is admitted that in or about April 2001, the Defendant mailed to the Plaintiff at his residence information on upgrading the warranty that he purchased to a more comprehensive warranty. It is admitted that the Plaintiff did purchase the upgrade warranty at a cost of $199.00. 7, 10. After reasonable investigation, the Defendant is unable to either admit or deny this paragraph. Therefore, it is denied and strict proof of the same is demanded at the time of trial. After reasonable investigation, the Defendant is unable to either admit or deny this paragraph. Therefore, it is denied and strict proof of the same is demanded at the time of trial. Admitted in part and denied in part. It is admitted that the Plaintiff attempted to open a claim by calling the Defendant. It is denied that the repairs that the Plaintiff requested were covered under the terms and conditions of the warranty. To the contrary, the repairs were not covered under the terms and conditions of the warranty. After reasonable investigation, the Defendant is unable to either admit or deny this paragraph. Therefore, it is denied and strict proof of the same is demanded at the time of trial. After reasonable investigation, the Defendant is unable to either admit or deny this paragraph. Therefore, it is denied and strict proof of the same is demanded at the time of trial. 11. 12. COUNT I BREACH OF WARRANTY This paragraph does not require an answer. It is denied that the Defendant has breached any of the terms of the warranty issued to the Plaintiff. WHEREFORE, Defendant demands that the complaint against them be dismissed and the cost of prosecution be levied against the Plaintiff. COUNT II VIOLATION OF UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW 13. This paragraph does not require an answer. 14. Admitted in part and denied in part. It is admitted that Kuhn purchased a warranty when he purchased his used automobile. It is denied that the Defendant has failed to comply with any of the terms of the warranty that the Plaintiff has purchased. 15. This paragraph is a legal conclusion to which no answer is required. However, if such answer is required, it is specifically denied. 16. This paragraph is a legal conclusion to which no answer is required. However, if such answer is required, it is specifically denied. WHEREFORE, Defendant demands that the complaint against them be dismissed and the cost of prosecution be levied against the Plaintiff. NEW MATTER 17. The Plaintiff's Complaint fails to state a cause of action for which relief can be granted. 18. The claim was denied because of improper previous repairs made to the vehicle for which the Defendant is not liable. 19. The Plaintiff's claim is not covered under the terms and conditions of the warranty contract. 20. The claims complained of by the Plaintiff are the result from damage that occurred from non-covered components. 21. The Plaintiff's claims are barred by the doctrine of statute of limitations. WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss the Plaintiff's Complaint and award damages in favor of the Defendant. Respectfully submitted, Feldarelli Square 2300 Freeport Road Suite 10 New Kensington, PA 15068 (724) 339-1023 Attorney for Defendant, C.A.R.S. Protection Plus, Inc. VERIFICATION I verify that the statements made in this Answer and New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. S.C. Section 4904 relating to unsworn falsification to authorities. Date: C.A.R.S. Protection Plus, Inc. CERTIFICATE OF SERVICE The undersigned certifies that he has served a true and correct copy of the foregoing Answer and New Matter to Plaintiff's Complaint via Certified Mail, postage prepaid to the following counsel of record addressed as follows: Michael A. Scherer, Esquire O'BRIEN, BARIC & SCHERER 17 West South Street Carlisle, PA 17013 (Attorney for Plaintiff, Craig A. Kuhn) DaY, id A.~Re~g~squire 0 ¥ CRAIG A. KUHN, Plaintiff C.A.R.S. PROTECTION PLUS, INC., Defendant 17. Denied. 18. Denied. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-55'79 CIVIL TERM CIVIL ACTION LAW REPLY TO NEW MATTER Plaintiff sets forth a legal claim upon which relief can be granted. Improper previous repairs were not made to the vehicle, and if they were, those repairs did not void the warranty. 19. Denied. Plaintiffs claim is covered under the terms and conditions of the warranty contract. 20. Denied. The claims complained of by Plaintiff are covered by the terms of the warranty. 21. Denied. Plaintiffs action was filed within the applicable statute of limitations. Respectfully submitted, O'BRIEN, BARIC & SCHERER Michael A. Scherer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dirlgenlit/kuhnlnewmatter, rep VERIFICATION The statements in the foregoing Reply To New Matter are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. J '~raig ~,. Ku CERTIFICATE OF SERVICE I hereby certify that on December ~'7 , 2001, I, Jennifer S. Lindsay, secretary to Michael A. Scherer, Esquire, did serve a copy of the Reply To New Matter, by first class U.S. mail, postage prepaid, to the party listed below, as follows: David A. Regoli, Esquire 2300 Freeport Road, Suite 10 New Kensington, Pennsylvania 15068 CRAIG A. KUHN, Plaintiff C.A.R.S. PROTECTION PLUS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01- ~ CIVIL TERM CIVIL ACTION LAW ORDER OF COURT AND NOW, this /~ day of_~ ,2002, in consideration of the foregoing Petition For Appointment o~Arbitrators,~ .~'/'~-'~ ,Esq., ~c~'(~ ~ ,Esq. and ~/,~__~~f~~Esq. are appointed arbitrators in the above-captioned action as prayed for. BY THE COURT, CRAIG A. KUHN, Plaintiff C.A.R.S. PROTECTION PLUS, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-~ CIVIL TERM CIVIL ACTION LAW PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, JUDGES OF SAID COURT: Michael A. Scherer, Esquire, counsel for the Plaintiff in the above-captioned action, respectfully represents that: 1. The above-captioned action is at issue. 2. The cla!m of the Plaintiff in the action is $12,500.00. The followingattorheys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: ' Michael A. Scherer, Esquire David A. Regoli, Esquire WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Respectfully submitted, O'BRIEN, BARIC & SCHERER ~i~hael/~. Scherer, Esquire I.D. # 61974 17 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 mas.dirlgenlit/kuh nlarbitration.pet CRAIG A. KUHN · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA v. ' 01-5576 CIVIL TERM C.A.R.S. PROTECTION PLUS, INC. IN RE: ARBITRATION ORDER OF COURT AND NOW, May 6, 2002, the Court having been informed that the above-case has been settled prior to the scheduled hearing, the panel of arbitrators previously appointed is vacated and the chairman, Fred H. Halt, Esquire, shall be paid the sum of $50.00. By the Court, G eCer[l~li~. ~ofC~er, -~p j. Fred H. Hait, Esquire Chairman Court Administrator _