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HomeMy WebLinkAbout02-4215SUTLIFF AUTOPLEX WEST, V. TIMOTHY J. MARTZ, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by 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 claim or relief requested by 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 OR KNOW A LAWYER, THEN YOU SHOULD 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, PA 17013 TELEPHONE: (717) 249-3166 (800) 990-9108 NOTIClA Le hah demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paquinas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte enforma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVIClO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 (800) 990-9108 Tuc By: Atto~ 111 N 3enson Matthes, Esquire I.D. No. 67048 'th Front Street P. O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR PLAINTIFF SUTLIFF AUTOPLEX WEST, V, TIMOTHY J. MARTZ, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO. C)~ -z/2/~ COMPLAINT IN REPLEVIN AND NOW, comes Plaintiff, SUTLIFF AUTOPLEX WEST ("Sutliff'), through its counsel, Tucker Arensberg & Swartz, and respectfully states the following Complaint in Replevin: 1. Plaintiff, Sutliff, is a Pennsylvania corporation with a place of business at 6462 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant, Timothy J. Martz, is an adult individual with a current address of 314 4th Street, Summerdale, Cumberland County, Pennsylvania 17093. 3. On or about May 30, 2002, Defendant entered Sutliff's location seeking to purchase a Mitsubishi Galant automobile (the "Mitsubishi"). 4. Defendant met with a representative of Sutliff Autoplex, who worked out figures which would meet Defendant's allotted budget so that Defendant could purchase the Mitsubishi. 5. After payment negotiations, Defendant understood what his monthly payments would be. 6. Defendant returned on May 31, 2002, to bring his trade-in vehicle and complete paperwork for the transaction. 7. When Defendant returned on May 31, 2002, the Buyer's order was filled out by a part-time clerk, who had not been present for the previous negotiation terms. 8. The part-time clerk, Dru Borowsky, inadvertently entered an incorrect sale price of $12,995.00 on the Buyer's order, when Defendant had been aware from the previous negotiations that the sale price for the Mitsubishi should have been $20,895.00. A true and correct copy of the incorrect Buyer's order is attached hereto as Exhibit "A". 9. Defendant signed the Buyer's order at that time. 10. A Pennsylvania Motor Vehicle Installment Sale Contract ("Sale Contract") was simultaneously prepared with incorrect terms and signed by Defendant. A true and correct copy of the Pennsylvania Motor Vehicle Installment Sale Contract is attached hereto as Exhibit "B". 11. The Sale Contract was subject to approval by Sutliff. 12. Sutliff, upon reviewing the Sale Contract, recognized that the financial terms were other than had been negotiated with Defendant and had improperly calculated the sale price by $7,900.00. 13. As a result of this error in the documents, Sutliff could not execute the Sale Contract and contacted Defendant as to the error in documentation. 14. Ted Hoffman, Sales Manager at Sutliff, telephoned Defendant in the morning of June 1, 2002, to let him know of the error on the documents. 15. During the telephone call between Defendant and Ted Hoffman, Defendant indicated that he would be in that day to sign the corrected paperwork. 16. Defendant was aware at that time that the amount on the original Buyer's order was incorrect. 17. As further evidence of Defendant's awareness of the proper price of the vehicle, the amount to be financed was disclosed to Defendant in his negotiations with Sutliff on May 30, 2002, when he completed the Credit Application. A true and correct copy of the Credit Application is attached hereto as Exhibit "C". 18. Because the payoff amount on Defendant's trade-in vehicle was greater than Defendant had represented to Sutliff, Sutliff was required to request additional sums to pay off the trade-in vehicle. 19. On May 31, 2002, Sutliff received an approval from Members First in the amount of $19,088.00 as a revised approval evidencing the additional money owed on Defendant's trade-in. A true and correct copy of Members First finance approval for the amount agreed to between the parties is attached hereto as Exhibit "D". 20. On or about June 3, 2002, Ted Hoffman again telephoned Defendant requesting that he come in to execute the corrected paperwork so that the Sale Contract could be completed and the sale could be consummated. 21. At that time, Defendant informed Hoffman that he would not be returning to execute the paperwork or to return the Mitsubishi. 22. Hoffman requested that Defendant return the Mitsubishi as financing had not been secured for the same. 23. Financing has not been approved for the Mitsubishi and Sutliff has not been paid for the vehicle. 24. Without financing or payment for the vehicle, the sale has not been completed. It is believed and therefore averred that Defendant is still in possession of the 25. Mitsubishi. 26. Sutliff has made numerous requests to Defendant, both verbally and in writing, that Defendant return the Mitsubishi to Sutliff. Defendant has refused to return the Mitsubishi to Sutliff or complete the proper paperwork to complete the transaction. 27. By his failure to return the Mitsubishi, Defendant is adding mileage and wear and tear to the Mitsubishi, decreasing its value. 28. the Mitsubishi. 29. 30. It is believed and therefore averred that Defendant does not carry insurance on The value of the Mitsubishi is $21,540.53. Without the completion of the necessary paperwork for the proper sale of the vehicle, the Mitsubishi cannot be properly licensed within the Commonwealth. 31. Defendant has wrongful possession of personal property belonging to Plaintiff on his premises or under his control. 32. Plaintiff has requested the return of this property from Defendant and he has refused these requests. 33. Plaintiff is entitled to immediate possession of the personal property. 34. Plaintiff believes that the property is located at Defendant's residence at 314 4th Street, Summerdale, Cumberland County, Pennsylvania. 35. Pursuant to a letter dated June 5, 2002, from counsel for Plaintiff to Defendant, a demand was made for return of the property. However, Defendant has failed to deliver the property as required by the aforementioned documents. A true and correct copy of the demand letter is attached hereto, marked Exhibit "E". 36. Plaintiff believes that Defendant remains in wrongful possession of the properly. WHEREFORE, Plaintiff, Sutliff Autoplex West, respectfully requests that this Honorable Court enter judgment against Defendant, Timothy J. Martz, and provide Plaintiff the following relief: a, Awarding Sutliff immediate possession of the Mitsubishi, or in the alternative, the value set forth above for the same; Awarding Sutliff all costs of replevin bond premiums; 4 Awarding Sutliff damages pursuant to applicable law including, but not limited to, actual damage or deterioration to the value of the Mitsubishi while in Defendant's possession; All costs of suit; and Such further relief as this Court in its discretion may direct. COUNT II In the alternative, should this Honorable Court determine that an action in replevin against Defendant by Sutliff does not lie, which is denied, Sutliff pleads the following Count in quantum meruit. 37. Paragraphs 1 through 36 are incorporated herein by reference as if set forth in full. 38. Having requested that Sutliff provide him with a particular Mitsubishi automobile, Defendant became liable to Sutliff for the proper purchase value of said Mitsubishi. 39. Having taken possession of and receiving the use of the Mitsubishi as requested by Defendant from Sutliff, Defendant has received the benefits from the use of the Mitsubishi. 40. Sutliff relied, to its detriment, on Defendant's promises of payment. 41. As a result of its reliance upon Defendant's promises of payment, Sutliff has been damaged in the amount of $21,540.53, the amount due upon delivery of the Mitsubishi. 42. Sutliff has demanded that Defendant make payment of the above sum, but Defendant has refused to do so. 43. premises. 44. Sutliff has requested that Defendant remove his trade-in vehicle from Sutliff's Defendant has refused to pick up his trade-in vehicle. 45. Storage fees of $15.00 per day from June 5, 2002, when Sutliff formally requested Defendant to pick up his trade-in vehicle, are accruing. 46. Sutliff has demanded that Defendant return the Mitsubishi. 47. Defendant has refused to return the Mitsubishi to Sutliff. WHEREFORE, Plaintiff, Sutliff Autoplex West, respectfully requests this Honorable Court to enter judgment in its favor and against Defendant, Timothy J. Martz, in the amount of $21,540.43 for the value of the Mitsubishi, together with storage costs in the amount of $15.00 per diem running from June 5, 2002, together with any and all relief that this Court deems appropriate. COUNT III In Quantum Meruit In the alternative, should this Honorable Court determine that an action in replevin against Defendant by Sutliff does not lie, which is denied, Sutliff pleads the following Count in quantum meruit. 48. Paragraphs 1 through 47 are incorporated herein by reference as if set forth in 49. Having requested that Sutliff provided him with a particular Mitsubishi automobile, Defendant became liable to Sutliff for the proper purchase value of said Mitsubishi. 50. Having taken possession of and receiving the use of the Mitsubishi as requested by Defendant from Sutliff, Defendant has received the benefits from the use of the Mitsubishi. 51. Sutliff relied, to its detriment, on Defendant's promises of payment. 52. Defendant has had the use of the Mitsubishi since May 31, 2002, preventing Sutliff from being able to use, sell or otherwise generate income from said vehicle. 53. The estimated rental cost for a similar Mitsubishi model and year is $45.90 per day for a rental vehicle. 54. As a result of Defendant's use of the vehicle, Plaintiff estimates that it has been damaged in the amount of $45.90 per diem since May 31, 2002. WHEREFORE, Plaintiff, Sutliff Autoplex West, respectfully respects this Honorable Court enter judgment in its favor and against Defendant in the amount of $2,845.80, representing the daily rental amount for the Mitsubishi from May 31, 2002 through July 31, 2002, and continuing at the rate of $45.90 per diem thereafter. Respectfully submi~ed, Tuc By: F.~tt Attoh"r ', ARENSBERG & SWARTZ I.D. No. 157048 111 North Front Stmet P. O. Box 889 Harrisbu~, PA 17108-0889 (717)234-4121 A'i-fORNEYS FOR PLAINTIFF DATE: ~-2l-o'~ 52151.1 Exhibit A ?,~.7-73z-9~_~.__o ~U I I. iFF Pho,.U6~ Carli,le Pike * Mechanicsburg. PA 17055 ~Y~0-sg00 314 4TH ST~B~AL~ 17093 ENTER MY ORDER FOR: ~ ~EW ~ DEMO ~ ~ u~cn ~ RENTAL C FLE~TM ,P,OR DELIVERY ON 05 4 1 DESCRIPTION: ~'~ ~ 1997 FO~ TRUCK ZXP~ITZON ~D 4X4 S~ 50~21650503 ............. · ~"r~t pNEU1BWi~A 13303 ..... "~ri T~TZY 10203 [ 63887 ..... A~A CO~RE~NBIVE ZNSU~CE AGEN .... 309 3 ST~ET ADDITIONAL ITEMS ADDED: T~pH~E 7~7.7~%_192~ ...... ~ .... , CONTRACTUAL D 8CLOSURE STATEMENT FOR USED VEH CLE ONLY WE OWE YOU; ADDITIONAL ITEMS TO BE ~DDED:~ conu~ of sale," on both Ihe face and reverse aide hereof, that ~hle order cancels 0~/00~8000 100. O0 D~, ~ ~ ~9~. )0 ~lndlng until ~epted by ~e dealer or..hi~ autheg~ed r~reeenlallv- CHOOSE ToX~ PURCHASE or ~ DECLINE_~. tl~ Del~re reeelpl of a cop~ of thle contract el~nad by an THE OPTIONAL EXTENDED WARRANTY PROTECTION de,er representative by ~ivJng wdRen notice of canceflalion ~o the ...... ~_ de~ler. Pumhsser by his execullon Of ~ a~r acknowledges t~al he Pa TIRE S__ 4-= lOOP D~UMENTARY FEE ~S.O0 TAX N/A SS. )0 I~NSE 6.00 FEE 22.5~ F~ 5.00 33. ~0 205 240 306 TITLE cu~a~*Nca ~ ~ 1 231 305 TOTAL AMOUNT iNCLUDING FEES LISTED S 5,121., i O- 2~0 104L ~ 905 AMOUNT OWED ON T~DE-IN 20, O00. Ii3 261F 324L AMOUNT DU~ ON DELIVERY $ 13; 479., 3 '::II 06/04/02 'UE 12:29 Exhibit B JUN--O'¢L02 01 .'Z5 pl'l SUTI-IFF AUTOPLEX WEST ?17 691 S$$$ P. 05 FORM PA 13-SLC IRev. 4/00) SIMPLE INTEREST PENNSYLVANIA MOTOR VEHICLE INSTALLMENT SALE CONTRACT, Dated .~,.~..v ~_!_-~, _~AA't ANNUAL FINANCE Amount Financed Total of Payments Total Sale Price PERCENTAGE RATE CHARGE The amount of credil provided T~e Amount you will have paid after you The total cost cE your purchaie on ~,Sg.. % .~'799'11. 'J3,479.13 $16,278.24 $ 18~177.61 Jntnis Confract IF YOU DO NOT MEET YOUR CONTRAC wa ere OBLIGATIONS, YOU MAY LOSE THE MOTO ~ ~.~Z[p_~od VEHICLE AND PROPERTY THAT YO the SELLER. -~U"P~.T~'I;' C'~4]~V1a~t.tq~ ~ .... [~?.~~~,. ~ 8OUGHT WITH THIS CONTRkCT, AND/O Nime ~ONEY ON DEPOSIT WITH THE Nam~i) ..... 3 ~4~ ~_~.~, ~ ~ ?~ lip Co~e~' t]~[osums have ~en made by SoliD,. ~lh iambs ~ as~ig~ ~is ~ntract ~ ~e kssigne If there is more than one 9uyer, each premises separately 1nd oGethe,~,,to p~y ali sums due us end to ~Morm all agreements in Lhis Contract, Itemization of Amount Hnanced T~DE-IN: Cash Pdce You have tradedin $ ~2 :~ '~ the following vehicJe: 1QQ? / PA~ PRITe~ t~?~ Cash ~wd~ay~ant Year and M~ke Oe~ription $ 1, :CC. CC I~ ~ balance is stilt owing ~ the vehicle you Have traded in, the Seger wirl pay off this amount on your behalf, You warrant and represent to us that Trade-la any trade. Ed is free from lien. claim, encumbrance or security interest, except as Shown ~d the Item~atiofl of Amount F[nanc~ as the "Lie~ Payoff," Value or Tr~de-ln PROPERTY iNSURANCE: You may choose the pence t~rouEh whom insurance is obtained Biainst lose or Uams8e to the Vehicle ~n~ aiaJnst llabdity arisinE out of ~ or ownership ol the Vehicle, In this Contract, you are pro~isin8 to insure ~e Vehlcie a~d keep R insured, $ ~0, ~00. O0 CREDIT iNSURANCE IS NOT REQUIRED: Cred~ Life Insu~lnce and Credit Accident & Health (Disability) IAsura'~'ce are fief requked Lo obtain CEca cr~it, eAU wiil not be p~ovi~ed unia&s you siEn below ah~ agree {o ply the a~dJtional cost(sJ, Pleese read the NOTICE OF PROPOSED CREDIT S ~0 ~"~ =~ iNSURANCE on the reverse side, Your insurance cedificate or poi&tV will ~el[ you the M~IMUM amount DP insurin=e available, All insurance Unpsld~as~}f&~ purchased will be f,~ the term of the credJt. ,_~ To Public Ol~ls for: -.-- 2, 2 ,~ ~ To Insure~ ~ $ VEHICLE: Yo~ have aQreed to purchase, under the terms of this Contrsct, the following motor vehicle a~d its extra equipmenl, which is called ~ To the'Vehicte"inthi~Cont~act. $ ~ ~= AA ~ ~ ~ Make Series ~odv ~ ~ ~ Truck ~ CaoacRv ~ Number Amount ~l~n~ ' -- with ~ A.C. ~ P,W, __ AM-FM Tape _._ Vinyl Top --. ' ' lcfii'or ~s*(~. the ~ntrlct to a subsequeM a~aigflee, the term also refers to such subsequent assignee, After the ass Payme~c~d~t~T~eu airs~ la pa Seller i~ This ConUact and in the Security Agreement shall belofli to and be enforceable by lhe Assigr ~ to us the Amou~ fiflanc~ plus 06 'l/RI NO 75051 ~005 IolWwin~. ~..~ .e ~ ma,e Ihe place or to J ARE OBLI~TED TO ALL TME TERMS CONTRACT WHICH APPEAR ch he Assignee mos r~e~tl~ s ~to you. FRONT AND EEVERSE ~gtee to sell [he Vehicle [~ you u.der the terms o~ this con/facNOTICE TO BUYER~DO NOT SIGN THIS CONTRACT IN 8~NK, YOU ARE ENTITLE~ TO AN EXACT COPY OF THE C~TR~T YOU SIGN, KEEP tT TO PROTECT YO~A~H~. [SEAL) ~Jg~al~ (SEAL) Ce. Owner'~ $i~nalure (SEAL) Date CO,SIQNEE CO.SIGN[R OR CO-OWNER ~c~su~ ~o~ ~ ~3.SLC {~V. ~/0O) NOTI CK: SEE REVERSE SIDE FOR IMPORTANT INFORMATION. ORIGINAL Any Co-Signer must receive and read a copy of this dezachable notice before becoming obligated to thhi ConrracL 06/04/02 TUE 12:29 [TX/RX NO 7505] ~006 Exhibit C _ 7/7- 73Z~- .... : ~ nu: w ~H TO 1AVE IT CQN~LBE~ , ' JOIHI' ~PPLICANT GAT~ Exhibit D APPROVED Data: ny 31, ~002 Dealer; SUlllff Autoplex We,:* 8ales ReD: Member's Name; TIMOTHY j M~TZ Rate; 6.80% Term: ~ Months Collateral: ~1 MITSUBISHI ~A~NT~ CYL. APPROVAL PENDING NEW ACCOUNT OPF. NED REVI~ED APPI~OVAL 8HOWiNC~ ADDITIONAL MONEY OWED ON T!~[.ADE A8" WELL A8 $1000 DOWN P.O. Box 40 ~CO Loulae Drive MechaNc.'~burg. PA 17055 Phone: ['717) 897-1 06/04/02 TIlE 12:29 [TX/R][ NO 7505] ~]019 Exhibit E Tu CICE P,, AR. ENSBER.G James G Morgan, Jr Imorgan@tuckerlaw com June 5,2002 Mr. Timothy J. Martz 314 4th Street Summerdale, PA 17093 RE: Sutliff Autoplex/Martz Dear Mr. Martz: Please be informed that on behalf of Sutliff Autoplex West, we are advising you of our intent to terminate our proposed agreement relative to the purchase of a 2001 Mitsubishi Galant and the trade-in of the 1997 Ford Expedition. At the time you took delivery of a 2001 Mitsubishi Galant from Sutliff Autoplex West on May 31, 2002, and certain documents were signed, it is clear that those documents did not represent the true cost of the trade-in and payoff of the 1997 Ford Expedition. At that time, the documents signed in the process of the agreement were incorrect and the cost of the payoff of your vehicle was understated by $8,000. You were advised of the same and indicated that you would come in and sign the paperwork which would correct that matter, but you have refused to do so. At the time of the transaction of May 31, 2002, although you signed a Buyer's Order for the vehicle, you did not tender funds upon delivery. We therefore believe the contract is void for that reason as well as the incorrect terms. You left a check dated May 31, 2002 with instructions that the check could 'not be cashed until after June 6, 2002. There was no consideration or downpayment made and beyond that, the Pennsylvania Motor Vehicle Installment Sales Contract was not accepted by Suttiff Chevrolet Company. There is no financing providing for this vehicle. We would ask that you immediately come into our premises to resolve this matter or return the 2001 Mitsubishi Galant, Serial No. 4A3AA46G21E164932 to Sutliff Autoplex West, 6462 Carlisle Pike, Mechanicsburg, PA 17055, on or before the close of business on Friday, June 7, 2002, and retrieve your 1997 Ford Expedition, Sedal No. 1FMEU18W1VLA13303, at that time or sign the appropriate paperwork to complete this matter in good faith. If you fail to come in and sign the necessary financing documents, including the necessity of good funds, or return the vehicle for your vehicle, we will take the appropriate measures to recover the Mitsubishi and any losses occasioned. Any damage or excessive wear to the Mitsubishi occurring while in your possession will be your responsibility. 111 NORTH FRONT STREET PO BOX 889 HARRISBURG, PA 17108-0889 717-2344121 800@57-4121 Pittsburgh · Piltsburgh Airport Area · Lewistown E mail: [apo@tuokerlaw. com www.t~ckerlaw,com TUCKER ARENSBERC ~ 5' ,RTZ Mr. Timothy J. Martz June 5, 2002 Page 2 We would like to resolve this matter and ask that you promptly contact Mr. Ted Hoffman at Sutliff Autoplex or the undersigned. ' Very truly yours, JGMjr:jz F~ j~sE~WARTZ CC: Mr. Ted Hoffman, Sutliff Mr. Jack Benner, Sutliff CERTIFIED MAIL RETURN RECEIPT REQUESTED 50381.1 SHERIFF'S RETURN - CASE NO: 2002-04215 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUTLIFF AUTOPLEX WEST VS MARTZ TIMOTHY J REGULAR RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MARTZ TIMOTHY Jthe DEFENDANT , at 1311:00 HOURS, on the at 301 WAYNE STREET 9th day of .~eptember, 2002 SUNMERDALE, PA 17093 STEVEN MARTZ by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.04 Affidavit .00 Surcharge 10.00 .00 39.04 Sworn and Subscribed to before me this ./~ day of ~J ~'.~ ~ A.D. / ~rott~notary ' So Answers: R. Thomas Kline 09/10/2002 TUCKER ARENSBERG SWARTZ Deputy Sh~ri f f SUTLIFF AUTOPLEX WEST, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION TIMOTHY J. MARTZ, Defendant NO. 02-4215 CIVIL TERM JURY TRIAL DEMANDED 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 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 of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYERS 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, PA 170'13 (717) 249-3'166 (800) 990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demana y la notificacion. Usted debe presentar una apariencia escrita o en persona or por abogado y archivar in la corte en forma escrita sus defensas o sus objeciones a las demandas in contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o aliviw que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFIClENTE DI PAGAR TAL SERVlClA, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIClNA CUYA DIRECCION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASlSTENClA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 SUTLIFF AUTOPLEX WEST, Plaintiff V, TIMOTHY J. MARTZ, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO. 02-4215 CIVIL TERM JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW COMES Defendant, Timothy J. Martz, by and through his attorney, Joseph K. Goldberg, Esquire, and files this Answer to the Plaintiff's Complaint, and his New Matter and Counterclaim, as follows: 1. It is denied that Plaintiff is a corporation. To the contrary, according to the records of the Pennsylvania Department of State, "Sutliff Autoplex West" is a fictitious name that is owned by Gregory L. Sutliff. Therefore, the Plaintiff, who is also the Counterclaim Defendant, is an individual. admitted. 2. 3. The remaining averments of paragraph 1 are Admitted. It is denied that Defendant went to Sutliff's location specifically to purchase a Mitsubishi Galant. The remaining averments of paragraph 3 are admitted. 4. Admitted. By way of clarification, at that time the representative of Plaintiff, Jack Kranzel, also informed the Defendant that the asking price of the Mitsubishi was $12,995. 5. Defendant does not understand the phrase "payment negotiations," and therefore the averments with respect to that term are denied, and strict proof thereof demanded. It is admitted that Defendant understood what his monthly payments would be, but only when he returned to the lot on May 31, 2002 to consummate the transaction. 6. 7. Admitted. After reasonable investigation, Defendant is without sufficient information with which to admit or deny the averment as to who "filled out" the Buyer's Order, and the averments of paragraph 7 are therefore denied. According to PlaintifFs agent and employee, Jack Kranzel, all of the financial information placed on the Sales Order was already "in the computer" when the alleged part-time clerk produced the financial documents. The averments are irrelevant, however, as the Buyer's Order accurately reflects the terms agreed to by the parties. 8. It is denied that $12,995 is the incorrect sale price of the Mitsubishi. To the contrary, that was the price originally asked by Plaintiff for the vehicle, and was the price agreed to by the parties. It is denied that Defendant was aware that the vehicle was priced at anything other than $12,995. It is admitted that the Exhibit A is a true and correct copy of the front side only of the Buyer's Order, including the signature of an authorized representative of the Plaintiff accepting the agreement between the parties at the terms set forth on the Buyer's Order. 9. Admitted. 10. After reasonable investigation, Defendant is without sufficient information 2 or knowledge with which to admit or deny the averment as to when the Sale Contract was prepared, and the averment as to the time of preparation is therefore denied. It is denied that the Sale Contract has any incorrect terms on it. To the contrary, all the terms are correct and consistent with the agreement of the parties. It is denied that Exhibit B is a true and correct copy of the Sale Contract. 11. Denied. To the contrary, none of the written terms of the Sale Contract state that it subject to approval by Plaintiff. The Sale Contract implies that it is to be accepted by Sutliff Chevrolet Co., an entity that is not a party to this action. To the extent that the averments of paragraph 11 imply that the Sale Contract was not approved by Plaintiff, the averment is denied. To the contrary, the Plaintiff and Defendant fully performed the conditions of their agreement on May 31, 2002, including delivery of the Mitsubishi to Defendant with his temporary registration. 12. It is denied that the Sale Contract contains terms other than those agreed to by the parties, and which comport with all negotiation and discussion between the Defendant and the agents and employees of Plaintiff. It is denied that the sale price was improperly calculated, as it accurately reflects the sale price agreed to by Defendant and Plaintiff's agents and employees. After reasonable investigation, the Defendant is without sufficient information or knowledge with which to admit or deny the averment that "Sutliff' reviewed the Sale Contract, and the averment is therefore denied. As Plaintiff alleges that "Sutliff' is a corporation, the Defendant is unable to adequately respond to an allegation that a corporation is alleged to have reviewed a document. By way of further denial, the Defendant is without any information as to what Plaintiff recognized, and the averment is therefore denied. 13. It is denied that there is any error in the documents, for the reasons set forth above. After reasonable investigation, the Defendant is without sufficient information or knowledge with which to admit or deny the averment as to a reason why a representative of Plaintiff allegedly could not sign the Sale Contract, and the averments are therefore denied. To the extent that the averments imply that there was no binding agreement between the parties, the averments are denied, as there was such a binding agreement under the terms contained in the Sale Contract. It is admitted that the Defendant was contacted by the Plaintiff on June 1, 2002. 14. It is admitted that Ted Hoffman telephoned the Defendant on the morning of June 1, 2002, as Defendant was about to leave his house to attend an out-of-town wedding. Mr. Hoffman told Defendant that Plaintiff asserted there was some type of error on the paperwork in the amount of $6,000. To the extent that the averments imply that there was such an error, the averments are denied for the reasons set forth above. 15. Denied. To the contrary, the Defendant informed Mr. Hoffman that he was leaving for an out-of-town wedding and that he would not be available until after the weekend. 16. Defendant does not understand which "amount" was alleged to have been incorrect on the original Buyer's Order. In any case, the averments are denied, as all of the amounts listed on the original Buyer's Order and Sale Contract are correct and as agreed to by the parties. 17. Denied. To the contrary, when the Defendant filled out and signed the Credit Application, the section titled "Purchase" was completely blank. It is denied that Exhibit C is a true and correct copy of the Credit Application, as the only copy that the Defendant had seen did not contain any figures in the "Purchase" section. By way of further denial, the figures contained in the "Purchase" section on Exhibit C are not consistent with the averments set forth in the Plaintiff's Complaint. 18. Denied. To the contrary, Defendant, on May 30, 2002, provided the Plaintiff with an estimated payoff amount that was very close to the actual payoff amount. Regardless, on the morning of May 31, 2002, at approximately 9:11 a.m., the Plaintiff independently obtained the actual payoff amount for the Defendant's trade-in vehicle. Approximately 45 minutes later, Jack Kranzel, the employee and agent of the Plaintiff, telephoned the Defendant to inform him that he had been approved for financing. It is denied that Plaintiff was required to request additional sums to pay off the trade-in vehicle. 19. To the extent that the approval referenced in paragraph 19 are relevant, the averments are denied. To the contrary, the amounts reflected on Exhibit D do not reflect any "amount agreed to between the parties..." and those averments are therefore denied. After reasonable investigation, the Defendant is without sufficient information or knowledge with which to admit or deny the remaining averments of paragraph 19, and therefore those averments are denied. 20. To the extent that the averments of paragraph 20 imply that there was anything incorrect on the original paperwork, the averments are denied for the reasons set forth above. To the extent that the averments of paragraph 20 imply that the transaction had not been consummated, or that the Sale Contract was not previously completed, the averments are denied for the reasons set forth above. It is admitted that Mr. Hoffman telephoned the Defendant and requested that he return to the dealership to sign documents with figures that did not reflect the agreement between the parties. 21. Admitted. 22. It is denied that Mr. Hoffman informed that Defendant that the Plaintiff had not secured financing for the vehicle. The remaining averments of paragraph 22 are admitted. 23. Denied. To the contrary, financing was provided by the Plaintiff, and/or Sutliff Chevrolet Co., and was intended to be assigned by the Plaintiff and/or Sutliff Chevrolet Co. to another party. Plaintiff is to be paid for the vehicle through installment payments by the Defendant, but has failed to properly instruct the Defendant as to the timing and place of payment. 24. Denied. To the contrary, the sale has been consummated and financing provided by the Plaintiff and/or Sutliff Chevrolet Co. Any failure of the Plaintiff to assign the financing is purely the fault of the Plaintiff, which terminated the assignment process of its own accord, and irrelevant as to whether financing was provided. 25. Admitted. 26. To the extent that the averments of paragraph 26 imply that the Defendant was in any way required to return the Mitsubishi to the Plaintiff, the averments are denied. To the extent that the averments imply that the agreement 6 are denied. vehicle. 28. between the parties was not accurately reflected in the paperwork, and that there was any need or legal requirement to complete any other paperwork, the averments are denied. It is admitted that Plaintiffs agent and employee made one written request for the Defendant to return the Mitsubishi; however, that request alleged that the Defendant misrepresented the cost of his payoff by $8,000, and makes no mention of the unilateral mistake made by the Plaintiff, which Plaintiff now alleges is the basis for this lawsuit. It is admitted that the Plaintiff's agent and employee made one verbal request for the Defendant to return the Mitsubishi to the Plaintiff. It is admitted that Plaintiff's attorney stated that "it would be best" if Defendant returned the vehicle. It is denied that Plaintiff has made numerous requests to Defendant. 27. To the extent that the averments of paragraph 27 imply that the Defendant is under any obligation to return the Mitsubishi to the Plaintiff, the averments It is admitted that the Defendant is adding mileage and wear and tear to his 29. $13,000. 30. Denied. To the contrary, the Defendant has maintained insurance on the Mitsubishi since he became its owner, and continues to do so. Denied. To the contrary, the value of the vehicle is approximately The averments of paragraph 30 are conclusions of law to which no response is required. To the extent that a response is required, the averments are denied as they relate to this matter, as the appropriate paperwork has been signed by the Defendant and the Plaintiff, including the MV-4ST, the temporary registration for the Mitsubishi. 31 The averments of paragraph 31 are conclusions of law to which no response ~s required. To the extent that a response is required, it is denied that the Defendant has wrongful possession of any property belonging to the Plaintiff. To the contrary, the Mitsubishi was sold and transferred to the Defendant. 32. Admitted. 33. The averments of paragraph 33 are conclusions of law to which no response is required. To the extent that a response is required, it is denied that the Plaintiff is entitled to possession of the Mitsubishi, which was lawfully purchased by the Defendant. 34. Denied. To the contrary, the car is kept at the Defendant's temporary residence. 35. The averments of paragraph 35 with respect to any requirement on the part of the Defendant to return the Mitsubishi to the Plaintiff are conclusions of law to which no response is required. To the extent that a response is required, it is denied that the Defendant is under any obligation to return property which he lawfully purchased. After reasonable investigation, the Defendant is without sufficient information or knowledge with which to admit or deny that any document requires him to return the Mitsubishi. To the contrary, all relevant documents confer title, interest and possession of the vehicle to the Defendant. It is admitted that the Plaintiff's attorney sent the letter attached to the Complaint as Exhibit E, in which a demand was made for return of the Mitsubishi for the reason that the Defendant allegedly 8 understated the value of his trade vehicle by $8,000, and not for reason of the unilateral mistake made which the Plaintiff now alleges it made. 36. The averments of paragraph 36 are conclusions of law to which no response is required. To the extent that a response is required, it is denied that the Defendant has wrongful possession of any property. WHEREFORE, the Defendant respectfully requests that the Plaintiff's Complaint be dismissed. COUNT II 37. The Defendant incorporates by reference his answers in paragraphs 1 through 36 as if fully set forth. 38. The averments of paragraph 38 are conclusions of law to which no response is required. To the extent a response is required, it is admitted that Defendant agreed to make a proper purchase for full value of the Mitsubishi, despite the Plaintiff's attempts to renege on its obligation to provide financing under the terms agreed upon by the parties. 39. Admitted. 40. The averments of paragraph 40 are conclusions of law to which no response is required. To the extent that a response is required, the averments are denied. To the contrary, there was no detrimental reliance on the part of the Plaintiff. To the contrary, despite the firm agreement between the parties, the Plaintiff has refused to honor its obligation and has refused to accept the financing arrangement agreed to for the purchase. 41. The averments of paragraph 41 are conclusions of law to which no response is required. To the extent that a response is required, it is denied that the Plaintiff has suffered any damage as a result of any act or omission on the part of the Defendant. Any damage has been caused by the failure of the Plaintiff to fulfill its legal obligations to the Defendant. By way of further denial, the Mitsubishi is worth far less than the amount claimed by the Plaintiff. 42. To the extent that the averments of paragraph 42 imply that the Defendant is obligated to the Plaintiff for full payment of the amount claimed, the averments are denied. To the contrary, the Defendant is only obligated to make installment payments to the Plaintiff as agreed to by the parties, and has been willing and ready to do so since May 31, 2002. 43. To the extent that the averments of paragraph 43 imply that the Defendant has any legal obligation to remove the trade vehicle from the Plaintiff's premises, the averments are denied. To the contrary, the trade vehicle is the property of the Plaintiff, as the Defendant has fulfilled all his obligations under the parties' agreement, and has executed all documents necessary to effectuate transfer of title for the trade vehicle to the Plaintiff. 44. To the extent that the averments of paragraph 43 imply that the Defendant has any legal obligation to remove the trade vehicle from the Plaintiffs premises, the averments are denied. It is admitted that the Defendant has not picked up the trade vehicle, which now belongs to the Plaintiff. 45. The averments of paragraph 45 are conclusions of law to which no 10 response is required. To the extent that a response is required, it is denied that any storage fees are owed to the Plaintiff, as the trade vehicle belongs to the Plaintiff. By way of further denial, the Plaintiff has no legal basis for arbitrarily imposing such a fee on the Defendant. 46. Admitted. 47. Admitted. WHEREFORE, for the reasons set forth above, the Defendant respectfully requests that the Plaintiffs Complaint be dismissed. COUNT III In Quantum Meruit 48. The Defendant incorporates by reference his answers in paragraphs 1 through 47 as if fully set forth. 49. The averments of paragraph 49 are conclusions of law to which no response is required. To the extent a response is required, it is admitted that Defendant agreed to make a proper purchase for full value of the Mitsubishi, despite the Plaintiffs attempts to renege on its obligation to provide financing under the terms agreed upon by the parties. 50. Admitted in part and denied in part. It is admitted that the Defendant had full use of the Mitsubishi since he became its rightful owner on May 31, 2002. It is denied that since September 2, 2002 he has had any use of the vehicle. To the contrary, the temporary registration expired on that date, and he has been unable to use the vehicle. 51. The averments of paragraph 51 are conclusions of law to which no response is required. To the extent a response is required, the averments are denied. To the contrary, the Defendant has stood ready to make all payments due under the terms of the agreement of the parties, which the Plaintiff has wrongfully refused to honor, and therefore, any detriment suffered by the Plaintiff has been of its own doing. 52. To the extent that the averments of paragraph 52 imply that the Plaintiff has been entitled to the use of the Mitsubishi since May 31, 2002, the averments are denied, as the Mitsubishi has been the property of the Defendant since that date. The remaining averments are admitted. 53. After reasonable investigation, the Defendant is without sufficient information or knowledge with which to admit or deny the averments of paragraph 53, and they are therefore denied. 54. The averments of paragraph 51 are conclusions of law to which no response is required. To the extent a response is required, the averments are denied, as the Plaintiff has suffered no damages as a result of any act or omission of the Defendant. WHEREFORE, for the reasons set forth above, the Defendant respectfully requests that the Plaintiff's Complaint be dismissed. NEW MATTER 55. The claims of the Plaintiff are barred by virtue of the unilateral mistake made by the Plaintiff, which was in no way attributable to the Defendant. 56. The claims of the Plaintiff are barred by estoppel resulting from the illegal 12 acts of the Plaintiff. 57. The claims of the Plaintiff are barred as a result of the fraud committed by the Plaintiff. 58. The claims of the Plaintiff are barred, as the Defendant was justified in his actions. WHEREFORE, for the reasons set forth above, the Defendant respectfully requests that the Plaintiffs Complaint be dismissed. COUNTERCLAIM Defendant, by and through his attorney, Joseph K. Goldberg, Esquire, hereby files this Counterclaim against the Plaintiff, and in support thereof avers as follows: 59. Counterclaim Plaintiff is Timothy J. Martz, Defendant in the Complaint filed under this captioned, who, for the sake of consistency, will be referred to herein as "Martz." 60. Counterclaim Defendant is, Gregory L. Sutliff, Plaintiff in the Complaint filed under this caption who is, according to the records of the Corporation Bureau, the owner of the fictitious name Sutliff Autoplex West, and referred to herein as "Sutliff." 61. On May 30, 2002, Martz went to Sutliff's used car lot for the purpose of trading in his current vehicle in order to reduce his monthly car payment. 62. Martz met with Sutliffs agent and employee, Jack Kranzel, and told Kranzel that he wanted to reduce his current car payment to somewhere in the range of $250 - $350 per month. 63. Kranzel suggested Martz consider the 2001 Mitsubishi, and told him that 13 the list price was $12,995. 64. Kranzel and other employees of Sutliff examined Martz' trade vehicle to determine its value. 65. Martz informed Kranzel that he thought the balance owed on the loan for the trade vehicle was approximately $19,000, although he also told him he was not sure of that figure. At that time, Martz gave Kranzel all necessary information for Sutliff to obtain the exact amount of the balance owed on the trade vehicle. 66. Based on the above information, Kranzel informed Madz that at a purchase price for the Mitsubishi of $12,995, it was likely that Martz' monthly payment for a new loan would be well within his anticipated range. Martz orally agreed to purchase the vehicle at the price of $12,995. As it was late in the evening, Kranzel told Martz to leave and that he would contact Martz the next day. 67. On May 31, 2002, at approximately 10:00 a.m., after obtaining the exact payoff value for the trade vehicle, Kranzel telephoned Martz and told him that he had been approved for financing at a great rate. He also told Martz that he would need to open an account at Members 1st Federal Credit Union. 68. Martz immediately contacted Members 1st Federal Credit Union and successfully took the steps necessary to open an account. 69. Kranzel later telephoned Martz and informed him that based on the purchase price of $12,995, Martz would be required to make a cash down payment of $1,ooo. 70. On that same day, at approximately 5:00 p.m., Martz returned to Sutliff for 14 the purpose of finalizing the transaction. When he arrived, he met with Kranzel, who informed him that in order to purchase the Mitsubishi, he would have to pay $1,400 down rather than $1,000. Kranzel attempted to switch Martz to another vehicle which he could purchase under the same terms but with only a $1,000 down payment. Martz declined and agreed to purchase the Mitsubishi and pay the $1,400 down payment. 71. At that time, as the car was being prepared for delivery to him, Kranzel had Martz meet with a woman known to him as "Dru" for execution of all the paperwork with him. Kranzel informed "Dru" that all of the financial information was already "in the computer." At that time, Martz signed numerous documents, including a Buyer's Order, a Motor Vehicle Installment Sale Contract, a Secure Power of Attorney, and the Contract Registration for the extended warranty he purchased for the Mitsubishi. 72. The only financial terms discussed with Kranzel, i.e., the $12,995 purchase price and the $1,400 down payment, were accurately reflected on the documents. 73. 74. Martz was given written disclosures of the financial terms of the purchase. The transaction was consummated when Martz paid the required down payment, and was given the vehicle by Sutliff, along with an MV-4ST (which is also known as a temporary vehicle registration). 75. The following day, as Martz was leaving for a wedding, he received a telephone call from a Ted Hoffman, an agent and employee of Sutliff, who told Martz that there had been a mistake in the valuation of Martz' trade vehicle in the amount of $6,000. Martz informed Hoffman that he was leaving for a wedding and was 15 unavailable for the remainder of the weekend. 76. Martz had no role whatsoever in valuing the trade vehicle. 77. Sutliff independently confirmed the exact amount of the balance owed on the trade vehicle. 78. On Monday, June 3, 2002, Jack Kranzel and Ted Hoffman called and told Martz that due to the mistake, Martz would have to come in that day and sign a new contract. Despite several threats by Kranzel, Martz refused and told Kranzel that he intended to abide by the terms of the agreement between the parties. 79. On Saturday, June 8, 2002, Martz received the letter attached to Sutliffs Complaint as Exhibit E, in which Sutliff's attorney erroneously states that Martz had understated the value of his trade vehicle by $8,000. 80. The letter also erroneously states that Martz instructed Sutliff not to deposit his down payment check until June 6, 2002, which is false. 81. Despite Martz fulfilling all of his obligations under the terms of the agreement between the parties, Sutliff has refused to abide by the agreed-upon terms. 82. Sutliff has failed to pay off the balance of the loan on Martz' trade vehicle, thereby causing significant financial harm to Martz. 83. Sutliff has failed to properly process the title work for the Mitsubishi, thereby causing significant financial harm to Martz. 84. Sutliff has failed to forward to the proper Commonwealth agency all amounts and forms, including sales tax, transfer and registration fees. 85. All of the aforesaid acts and omissions on the part of Sutliff were 16 intentional. 86. All of the aforesaid acts and omissions on the part of Sutliff were committed with the intent of attempting to cause Martz to agree to pay more money for the Mitsubishi that the amount agreed to by the parties. 87. Any alleged discrepancy between the figures agreed to by the parties and those contained in the Buyer's Order and the Installment Sale Contract were solely caused by the mistake of Sutliff, and in no way were caused by or the responsibility of Martz. 88. 89. by Sutliff. The aforesaid conduct of Sutliff is deceptive. Martz reasonably relied upon all of the statements, oral and written, made 90. In order to protect his personal financial record, Martz has continued to make all monthly payments due on the trade vehicle. 91. Martz has not had use of the Mitsubishi since September 2, 2002, due to the failure of Sutliff to process title paperwork. COUNT I Violation of the Consumer Protection Law 92. The answers contained in paragraphs 1 through 58 and the averments of paragraphs 59 through 91 are incorporated herein by reference as if fully set forth. 93. As set forth above, Sutliff made an agreement with Martz that it refuses to honor. 17 94. Sutlif'Fs acts were in violation of § 201~3 of 73 P.S. § 201-1, et seq., the Unfair Trade Practices and Consumer Protection Law (hereinafter the "Consumer Protection Law"), and were unfair or deceptive acts or practices as defined in the following subsections of § 201-2(4) of the Consumer Protection Law: (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; (ix) Advertising goods or services with intent not to sell them as advertised; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 95. As a result of Sutlift's wrongful conduct, Martz has suffered an ascertainable loss of money and property. WHEREFORE, Martz respectfully requests that this Court enter judgment against Sutliff, and provide Martz with the following relief, as provided by the Consumer Protection Law: a) a judgment in the amount of Martz' damages, in an amount to be determined at trial, but which is not less than $20,000.63, plus interest paid on the loan for the trade vehicle, the loss of use of the Mitsubishi, and other damages; b) a money judgment in an amount of three times the Martz' loss, as determined at trial in this matter, but which is not less than $60,001.89; 18 c) an award of costs and reasonable attorney fees; d) an Order requiring Sutliff to comply with the terms of the agreement between the parties, including, but not limited to, processing all required title and registration paperwork with the Department of Transportation, payoff of the loan on Martz' trade vehicle, establishing the extended warranty and establishing the installment sale financing; and, e) such additional relief as the court deems necessary or proper. COUNT II Violation of the Consumer Protection Law (Auto Regs.) 96. The answers contained in paragraphs 1 through 58 and the averments of paragraphs 59 through 95 are incorporated herein by reference as if fully set forth. 97. By virtue of the acts and omissions detailed above, Sutliff has committed several violations of the Automotive Industry Trade Practices Regulations (hereinafter the "Auto Regs."), 37 Pa. Code Chap. 301. 98. The acts and omissions of Sutliff constitute unfair or deceptive practices as defined in the following sections of the Auto Regs.: § 301.2(4) The failure or refusal to sell a motor vehicle or other goods or services under the terms or conditions, including price or warranty, which a motor vehicle manufacturer or dealer or repair shop has advertised or otherwise represented. § 301.2(6) The making of a representation or statement of a fact in an advertisement or sales presentation if the advertiser or salesperson knows or should know that the representation or statement is false and misleading or if the advertiser or salesperson does not have sufficient information upon which a reasonable belief in the truth of the representation could be based. § 301.4(7) Increasing the contract price of a motor vehicle after the contract has 19 been accepted by the dealer or the authorized dealer representative unless the increase is due to the passage of a law or regulation of the United States or the Commonwealth which: requires the addition of new equipment to certain vehicles; changes transportation costs or existing tax rates; or, in the case of foreign-made vehicles, is due to a revaluation of the United States dollar vis-a-vis the currency of the country of manufacture. § 301.4(10) Failing to forward to the proper Commonwealth agency amounts and forms tendered by a purchaser, such as sales tax and transfer and registration fees, within the time prescribed by law. 99. The Auto Regs. were promulgated under § 201-3.1 of the Consumer Protection Law, have the force and effect of law, and are violations of the Consumer Protection Law as set forth in § 201-3 of the Consumer Protection Law. 100. As a result of Sutlifrs violations of the Auto Regs., Martz has suffered an ascertainable loss of money. WHEREFORE, Martz respectfully requests that this Court enter judgment against Sutliff, and provide Martz with the following relief, as provided by the Consumer Protection Law: a) a judgment in the amount of Martz' damages, in an amount to be determined at trial, but which is not less than $20,000.63, plus interest paid on the loan for the trade vehicle, the loss of use of the Mitsubishi, and other damages; b) a money judgment in an amount of three times the Martz' loss, as determined at trial in this matter, but which is not less than $60,001.89; c) an award of costs and reasonable attorney fees; d) an Order requiring Sutliff to comply with the terms of the agreement 20 between the parties, including, but not limited to, processing all required title and registration paperwork with the Department of Transportation, payoff of the loan on Martz' trade vehicle, establishing the extended warranty and establishing the installment sale financing; and, e) such additional relief as the court deems necessary or proper. COUNT III Breach of Contract - Specific Performance 101. The answers contained in paragraphs 1 through 58 and the averments of paragraphs 59 through 100 are incorporated herein by reference as if fully set forth. 102. The parties entered into a contract pursuant to the terms of the Buyer's Order and the Sale Contract. 103. Sutliff has refused to abide by the terms of parties' contract, thereby breaching the contract. 104. The breach by Sutliff is unjustified and intentional. 105. Any discrepancy alleged by Sutliff in the amount of the purchase price of the Mitsubishi is solely due to the unilateral mistake of Sutliff, and is unknown to Martz. 106. Martz is entitled to enforcement of the contract between the parties. 107. As a direct result of Sutliffs breach of contract, Martz has suffered direct and consequential damages, including, but not limited to, the amount of the payoff for his trade vehicle and the inability to obtain title to the Mitsubishi. WHEREFORE, Martz respectfully requests that judgment be entered in his favor and against Sutliff, as follows: 21 a) a judgment in the amount of Martz' damages, in amount to be determined at trial, but not less than $20,000.63, plus interest paid on the loan for the trade vehicle, the loss of use of the Mitsubishi, and other damages; b) an Order requiring Sutiiff to comply with the terms of the agreement between the parties, including, but not limited to, processing all required title and registration paperwork with the Department of Transportation, payoff of the loan on Martz' trade vehicle, establishing the extended warranty and establishing the installment sale financing; and, c) an award of costs of this action. COUNT IV Violation of TILA 108. The answers contained in paragraphs 1 through 58 and the averments of paragraphs 59 through 107 are incorporated herein by reference as if fully set forth. 109. This Count IV is pled in the alternative. 110. The transaction between Sutliff and Martz is subject to the provisions of the federal Truth in Lending Act, 16 U.S.C. § 1601, etseq. (hereinafter "TILA"), as implemented through regulations promulgated thereunder contained in 12 C.F.R. Part 226, known as Regulation Z. 111. In connection with this transaction, Sutliff provided Martz with disclosures of certain financing terms prior to consummation of the transaction. Those disclosures are contained in the Sale Contract. 112. The disclosures made by Sutliff to Martz are incorrect and thereby violate 22 various provisions of TILA and Regulation Z. 113. By failing to properly and accurately disclose the "amount financed" as that term is defined by TILA and Regulation Z, Sutliff has violated § 1638(a)(2)(A) of TILA and § 226.18(b) of Regulation Z. 114. By failing to properly and accurately disclose the "finance charge" as that term is defined by TILA and Regulation Z, Sutliff has violated § 1638(a)(3) of TILA and §§ 226.4 and 226.18(d) of Regulation Z. 115. By failing to properly and accurately disclose the "annual percentage rate" as that term is defined by TILA and Regulation Z, Sutliff has violated § 1638(a)(4) of TILA and § 226.18(e) of Regulation Z. 116. By failing to properly and accurately disclose the amounts of payments scheduled to repay the obligation, Sutliff has violated § 1638(a)(6) of TILA and § 226.18(g) of Regulation Z. 117. By failing to properly and accurately disclose the "total of payments" as defined by TILA and Regulation Z, Sutliff has violated § 1638(a)(5) of TILA and § 226.18(h) of Regulation Z. 118. As a result of the violations of TILA and Regulation Z, Martz has suffered damages., and Sutliff is liable to him for actual and statutory damages. WHEREFORE, Martz demands judgment against Sutliff as follows: a) twice the finance charge connected with the transaction, but not less than $200 nor more than $2,000; b) actual damages in an amount to be determined at trial; and, 23 c) 119. arbitration. 120. costs of this action and reasonable attorney's fees. COMPULSORY ARBITRATION; JURY DEMAND The amounts claimed herein by Martz exceed the limits for compulsory Martz hereby demands a trial by jury in this matter. Date: Suite 106 Harrisburg, PA 17110 (717)703-3600 Attorney for Defendant 24 VERIFICATION I, Timothy J. Martz, hereby state that I have reviewed the foregoing Complaint, and verify that the facts set forth in the document are true and correct to the best of my knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Dated: CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on th__~J day of ,2002, I served a copy of the foregoing Answer with New Matter and Counterclaim, by first-class mail, postage prepaid, upon the following: F. Stephenson Matthes, Esquire Tucker Arensberg & Swartz 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 Attorneys for Plaintiff J..o~ K./~oldl SUTLIFF AUTOPLEX WEST, Plaintiff V. TIMOTHY J. MARTZ, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO. 02-4215 CIVIL TERM JURY TRIAL DEMANDED PRAECIPE TO MARK CASE SETTLED AND DISCONTINUED TO THE PROTHONOTARY: Please mark the above-captioned case settled and discontinued. For the Plaintiff and Counterclaim Defendant F.~phenson M~a~he~s, quire Tucker Arensberg & Swartz 111 N. Front Street P.O. Box 889 Harrisburg, PA 17108-0889 For the Defendant and / Counterclaim Plaintiff _ / ~Jo~1(~'¢1. oldl~rg, Esqu~ /2080 Linglestown Road~j ' Suite 106 ~J Harrisburg, PA 171~[V' CERTIFICATE OF SERVICE AND NOW, this ,~,0 ~ day of NOVEMBER, 2002, I, JACQUELYN A. ZETTLEMOYER, Secretary to F. STEPHENSON MATTHES, ESQUIRE, for the firm of Tucker Arensberg & Swartz, attorneys for Sutliff Autoplex West, hereby certify that I have this day served the within document by depositing a true and correct copy of the same, in the United States Mail, first class, postage prepaid, addressed to: Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 ATTORNEY FOR TIMOTHY J. MARTZ 54676.1