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HEFFLER v. JOE BELLS AUTO SERV.

October 24, 1996

ALLAN HEFFLER and CHERYL HEFFLER, h/w
v.
JOE BELLS AUTO SERVICE, MARTEL LEASING LIMITED and JOHN KENNEDY FORD



The opinion of the court was delivered by: HUTTON

 HUTTON, J.

 October 24, 1996

 Presently before the Court is defendant John Kennedy Ford's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and plaintiffs' opposition.

 I. INTRODUCTION

 This is an odometer rollback and fraudulent representation case arising from the sale of a used automobile, a 1992 Ford Taurus, by defendant John Kennedy Ford ("Kennedy Ford") to plaintiffs, Dr. Allan Heffler ("Dr. Heffler") and his wife Cheryl Heffler. On July 13, 1993, the plaintiffs purchased the vehicle from Kennedy Ford, the same day they first saw the vehicle. This vehicle was purchased from Mr. Gus Petratos, the General Manager of Kennedy Ford, who was a close friend and a patient of Dr. Heffler. The plaintiffs claim that the only reason they went to Kennedy Ford to purchase the vehicle was because Mr. Petratos was Dr. Heffler's patient. The plaintiffs had purchased several other vehicles from Kennedy Ford, but discontinued their patronage because of Kennedy Ford's Service Department's purported poor service. *fn1" On the date of the purchase, the car's odometer read 23,613 miles. The plaintiffs' claim that the car appeared to have a higher mileage than that. Specifically, the plaintiffs point out the damage to the rear of the driver's seat, a permanent impression on the rear seat, as well as wrappers and litter throughout the car. Additionally, Mrs. Heffler complained that she did not like the salesmen's attitude.

 The plaintiffs claim that they made warranty repair claims for a broken hose, a module, and the air conditioning. Other problems not covered by warranty also developed. The plaintiffs' contend that these defects demonstrate that the car was defective from the date of their purchase. The Odometer Disclosure statement completed on the date of sale by Kennedy Ford indicated that the odometer reading was 23,613 miles. Also, the plaintiffs contend that the sales manager, Gus Petratos, informed them that the 23,613 miles was indeed correct. This was not, however, the correct mileage.

 The odometer rollback involves two other defendants, Joe Bells Auto Service ("Joe Bells") and Martel Leasing Limited ("Martel"). On or about June 7, 1993, Joe Bells Auto Service purchased the automobile from Gelco Corporation d/b/a McCullagh Leasing ("Gelco"). At the time of the purchase, the odometer in the automobile read approximately 61,900 miles. Joe Bells received a title certificate from Gelco that certified that the 61,900 miles, to the best of Gelco's knowledge, reflected the actual mileage of the automobile.

 Sometime between June 7, 1993 and June 16, 1993, Joe Bells allegedly altered or caused to be altered the odometer mileage on the automobile so that it read approximately 21,900 miles. On or about June 24, 1993, Joe Bells sold the automobile to Martel. Joe Bells prepared and gave to Martel an Odometer Disclosure Statement which stated that the odometer reading was 21,917 miles, certified that the odometer reading, to the best of its knowledge, reflected the actual mileage of the automobile and certified that the odometer was not altered. After Martel acquired possession of the vehicle, Martel transferred the automobile to Kennedy Ford and certified that the 23,535 miles on the odometer represented the correct mileage.

 The plaintiffs allege that Kennedy Ford made a false representation of fact as to the true mileage of the automobile with full knowledge of its falsity or with reckless disregard of the truth, and intended future purchasers to rely on the representation of the odometer reading.

 Kennedy Ford contends that it had no knowledge, or reason to know, of the previous odometer rollback by co-defendants, Joe Bell and Martel, because Martel had provided a false odometer mileage certificate to Kennedy Ford, without disclosing any other information about the true mileage on the vehicle. Furthermore, Kennedy Ford asserts that an odometer mileage certificate was prepared for plaintiffs in reliance on the mileage information that it had received from Martel. Additionally, Kennedy Ford notes that the plaintiffs and Kennedy Ford have both completed discovery in this case. The plaintiffs have given depositions and answered the defendant's interrogatories. Nevertheless, the defendant contends that the plaintiffs have failed to reveal evidence of any intent to defraud, gross negligence or constructive notice of the prior odometer rollback on the part of Kennedy Ford. Accordingly, the defendant moves this Court to grant it Summary Judgment.

 II. DISCUSSION

 A. Summary Judgment Standard

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

 The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. Id. at 324. A genuine issue is one in which the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 When deciding a motion for summary judgment, a court must draw all reasonable inferences in the light most favorable to the nonmovant. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 122 L. Ed. 2d 659, 113 S. Ct. 1262 (1993). Moreover, a court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. Id. Nonetheless, a party opposing summary judgment must do ...


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