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GAMBRILL v. ALFA ROMEO

September 23, 1988

PAUL W. GAMBRILL, PAULA N. GAMBRILL
v.
ALFA ROMEO, INC.


Raymond J. Broderick, United States District Judge.


The opinion of the court was delivered by: BRODERICK

RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE.

 A non-jury trial was held in this diversity action in which the plaintiffs ("Gambrills"), who purchased a new 1987 Alfa Romeo, seek recovery pursuant to the Automobile Lemon Law, 73 P.S. § 1951 et seq.; Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq.; Uniform Commercial Code, 13 P.S. § 2715; and the Magnuson-Moss Warranty Federal Trade Commission Improvement Act, 15 U.S.C. § 2310. The defendant ("Alfa Romeo"), a foreign corporation with its principal place of business in New Jersey, claims that the automobile was not defective when sold and that the malfunction was caused by the Gambrills' misuse of the car.

 The Court makes the following findings of fact and conclusions of law: On June 11, 1987, plaintiffs, who are residents of Pennsylvania, purchased a new 1987 Alfa Romeo Graduate Coupe from YBH Porsche-Audi ("YBH"), a dealer located in Edgemont, Pennsylvania. The total sales price was $ 18,669.60, itemized as follows: Cash Price $ 15,200.00 Tags 19.00 Lien Fee 5.00 Sales Tax 642.00 Document Fee 11.00 Finance Charge 2,792.60 Total $ 18,669.60

 Plaintiffs have not paid $ 1,512.69 of the finance charges which reduces the amount claimed to $ 17,156.91. The car was purchased for personal use primarily by Mr. Gambrill. The car was manufactured and/or imported by defendant Alfa Romeo. Included with the car sold to plaintiffs was defendant's 1987 New Car Limited Warranty for 12 months or 36,000 miles covering parts and labor necessary to correct any manufacturing defects and excluding failures or damage caused by misuse.

 On October 9, 1987, Mr. Gambrill drove the car home and parked it in the garage. The next morning he was unable to start the car and he telephoned YBH, the authorized dealer, who sent a tow truck and towed the automobile to its garage on October 10, 1987. At that time, the car was four months old and had been driven 6,251 miles.

 Mr. Gambrill telephoned or visited YBH on many occasions in the following weeks. YBH personnel informed him that they were in the process of repairing the car. At no time did YBH provide the Gambrills with an estimate for the work on the car, nor did anyone seek or obtain their consent for any repair work. The Gambrills were told by YBH that the repairs would be covered by the warranty. On December 7, after two months of waiting for the repairs to be completed, Mr. Gambrill had the car removed from YBH and towed to his house. When removed from YBH, the car's engine was disassembled, with some component parts in the trunk, some in the passenger compartment, and others left at YBH. The car remains inoperable.

 The Alfa Romeo Graduate is powered by a four cylinder engine similar to engines manufactured by Alfa Romeo since 1954 and is equipped with a tachometer and a five-speed manual transmission.

 The Court also finds the plaintiffs were never warned that the engine would be damaged in the event it was over-revved. The words "over-rev" or "over-revved" do not appear in the Owner's Manual. It does state on page 25 of the Owner's Manual under the section entitled "Driving Precautions":

 
These recommendations should also be followed:
 
-- Take care not to run the engine beyond the maximum RPM range shown as a red area on rev. counter dial.

 Plaintiffs' Exhibit 6, p. 25. Such precatory language sharply contrasts with the evidence presented by Alfa Romeo at trial that a single instance of over-revving could cause instantaneous loss of compression and major engine damage. If this is indeed the case, Alfa Romeo cannot expect a consumer to exercise the caution necessary to avoid such a danger with the mere "recommendation" that the driver "should" "take care" not to over-rev the engine.

 YBH installed new valves but when the engine was assembled "lower end noises" were detected and the engine was again disassembled and new parts were ordered. When the new parts arrived from Italy, it was found that some of the parts were defective and it became necessary to order new parts. After 59 days of being told that his car was being worked on, ...


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