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Beaver County Times Story On Pennsylvania Lemon Law

Beaver County Times

It became clear, as Sally Pander was driving through Eastvale one memorable day, that her beautiful $36,000 metallic grey 2001 Cadillac DeVille was not fit to drive.

She’d just gotten allergy shots in Beaver Falls and was headed home to Franklin Township. Strapped into a car seat was her granddaughter, then-9-month-old Taylor Petrak.

The car radio was tuned to Mike Pintek’s KDKA-AM talk show. Then suddenly, it wasn’t. Her CD player began playing. Mrs. Pander had not touched either dial.

She started up the steep hill to North Sewickley Township. Her seat flopped down into a reclining position.

She pulled off the road and turned the car off. The car doors locked. She couldn’t open them.

By this time, she was in a panic. What if the car caught fire? She took out her cell phone and called her husband, Harold “Hap” Pander, and the Ellwood City dealership where they’d bought the car.

As Mrs. Pander sat waiting, with the car turned off and the keys on the seat beside her, the radio came on. Then it flipped off and the CD player came on.

It was playing her favorite hymn, “Amazing Grace.”

“I’d been trying not to cry, but I was really stressed.” As she listened, she felt that “it was God’s way of telling me that everything was going to be OK. I will never, until the day I die, forget ‘Amazing Grace’ playing.”

Her husband arrived shortly, as did dealership owner Floyd McElwain, with a mechanic in tow. By this time, the locks had decided to open. Go ahead and drive back to the dealership, McElwain said. We’ll be right behind you.

No way, said Mrs. Pander. “I am never going to drive this car again.”

You don’t have to, McElwain said. He got her a rental from the dealership, which carried her about reliably until divine intervention arrived in the form of the Pennsylvania Lemon Law.

The Lemon Law has helped Pennsylvanians with defective cars for more than 20 years. In the last 10 years, lawyers have increasingly been helping people pursue Lemon Law claims.

Most prominent among them is Kimmel & Silverman of Ambler, in the Philadelphia suburbs. Launched in 1991, the firm has a Web site, www.lemonlaw.com, and toll-free number, (800) LEMON-LAW. Its phone book ad includes a likeness of a lemon on wheels, along with three words quite welcome to the ears of any potential plaintiff: Never A Fee.

Kimmel & Silverman employs 18 lawyers working solely on Lemon Law cases, and opened a one-lawyer office on Pittsburgh’s Grant Street in November.

Craig Kimmel said the firm handles about 6,000 Lemon Law cases a year in Pennsylvania and New Jersey, probably 85 percent of the total.

“Very few people represent themselves,” Kimmel said.

The Panders used Kimmel & Silverman to pursue their Lemon Law claim. A friend found the firm via an Internet search. The Panders called the 800 number, spoke with someone at the firm, and faxed documentation to the firm on their DeVille’s cantankerous history.

Soon afterward, on April 10, 2001, they got a letter back stating, “Based on the information you have provided, you have an excellent claim under the automotive Lemon Law.” The day would soon arrive when Mrs. Pander could drive to the store without worrying about falling backward.

It’s the law!

The Lemon Law is just that: a law. It’s not a program run by a state agency. You can’t drop into some office and fill out a Lemon Law claim form. Basic Lemon Law information is available on the state attorney general’s Web site at www.attorneygeneral.com, but the office doesn’t run or oversee the Lemon Law.

Here are the basics:

• The Pennsylvania Lemon Law Statute applies to new vehicles, purchased or leased, registered in Pennsylvania and used for personal, family or household purposes. It does not apply to commercial vehicles, motorcycles, motor homes or off-road vehicles.
• It covers problems that occur during the first 12 months or 12,000 miles of ownership, problems that “substantially impair the value, use or safety of the vehicle” and cannot be fixed by the dealer in three attempts.
• The dealer must notify the manufacturer when a vehicle has been brought in a second time for the same problem. (As long as the problem first occurs during the first 12 months or 12,000 miles, you are covered if the problem recurs after that time.)
• The dealer is required to provide you with an invoice, which you should save, every time you visit.
• If the problem is not fixed after three attempts, you may demand a refund or replacement vehicle. You may also proceed directly to the manufacturer’s arbitration program. Directions on how to pursue an arbitration claim are included in your owner’s manual.
• You and a representative of the manufacturer go before an impartial arbitrator who will hear both sides and decide who gets what. If you are not satisfied with the arbitrator’s decision, you retain the right to file a lawsuit.
• The attorney general is responsible for enforcing manufacturers’ compliance with the law. For instance, the office will investigate if you are not provided with information on how to pursue arbitration, or if a dealer does not provide you with an invoice, said Deputy Attorney General Jim Sysko. (The Bureau of Consumer Protection can be reached at (800) 441-2555.)
• For other questions you may have, please see our PA Lemon Law FAQ page.

The attorney general favors a state-supervised independent arbitration program to resolve Lemon Law claims, Sysko said. But with lawyers having “really carved out a niche for themselves” in Lemon Law cases, it seems unlikely that will happen.

The lawyers “have been very successful for the consumer,” Sysko said. “They’ve also created a lot of anxiety among auto manufacturers.”

The law makes manufacturers pay attorneys’ fees in Lemon Law cases. Lawyers are also encouraging plaintiffs to file post-warranty claims under the Magnuson-Moss Act, which says consumers have “implied warranties” beyond the written one.

Sysko said he doesn’t have a problem with law firms like Kimmel & Silverman. They’ve figured out a way to make money, and that’s capitalism. They’re performing a service, and it costs people nothing.

Still, he said, most anyone can successfully pursue a Lemon Law claim without outside help. “No one knows the car better than the person who owns and drives it,” he said.

The Western Pennsylvania Better Business Bureau, for example, offers a free service for out-of-court settlements called BBB Auto Line. (More information is available by calling (800) 955-5100 or visiting www.dr.bbb.org.) Cases that go to arbitration can be resolved in as little as 45 days, Sysko said.

If you do go it alone, he said, the most important thing to do is “Document, document, document.” Keep a notebook, writing down the times and dates of problems as they occur. Insist that the invoice describe the problem precisely.

“Manufacturers today do far more to try to resolve consumer complaints than they did 15 years ago,” Sysko said.

Kimmel, not surprisingly, takes a less charitable view, saying consumers are often treated in “dastardly ways.” For example, “Never keep your documents in the glove compartment,” he said. “It’s funny how documents can disappear.”

Winning your own Lemon Law case, he said, is “nearly impossible … like yanking out your own tooth with a piece of string.” Dealers or manufacturers can work technicalities against the consumer, he said.

Kimmel & Silverman don’t take cases they don’t believe in, he said. Beware of lawyers who will say you have a great case, but suddenly change that view when a court date approaches.

Since he started handling Lemon Law cases in 1991, the quality of cars has improved, he said. That’s changed a bit as the economy, and automakers, have struggled over the past few years.

Kimmel wouldn’t give a ballpark figure on how much he makes on an average case. His fee is based on an hourly rate times the number of hours worked.

“It doesn’t matter to me if the client has a Rolls Royce or a Kia,” he said.

In fact, well-heeled folks sometimes call the office and demand to be represented by Kimmel himself. But unless they drive a BMW, Nissan, Mitsubishi, Toyota or Honda, it’s not going to happen. He limits his practice to those cars.

The Panders’ experience with Kimmel & Silverman was about as painless, and productive, as a legal action can possibly be. They never even saw a lawyer face to face, or walked into a courtroom. They communicated with the lawyers by phone or by fax.

They bought the Cadillac DeVille on Oct. 31, 2000, an appropriate purchase date for a car they would jokingly describe as being possessed.

That winter, they went to the Kaufmann House restaurant in Zelienople for breakfast. When they came out, the driver’s seat was in the reclining position. They didn’t give it much thought at the time; they just assumed they had hit the wrong button on their way out.

Then the seat began moving as Mrs. Pander was driving. It would slide backward before dropping into the reclining position, and she remembered with a laugh her grandson yelling out, “Whoa, Grandma, where you going?”

They took the car back to the McElwain dealership. Mechanics hooked it up to the diagnostic computer and found nothing. The Panders had the same problem experienced by many a car owner: The car wouldn’t misbehave in the presence of a mechanic.

Then the locks began going haywire. Hap would be walking to the car with the keys in his pocket, and hear the locks click shut.

By this time, the Panders’ friends at Wurtemburg Presbyterian Church were praying for the Panders and their mysterious car. One day, Mrs. Pander and three other women went to prepare a post-funeral meal; their plans nearly went awry when the car locked up and wouldn’t let them out for a half-hour.

An even more harrowing experience came when the driver’s seat fell down atop little Taylor as she sat in the back seat in her car seat, bruising her legs.

Hysterical, Mrs. Pander drove directly to McElwain’s dealership, which then had a location in Beaver Falls.

Floyd McElwain got into the driver’s seat and tried to make the seat go back as a mechanic watched.

“Then all of a sudden, there goes Floyd” as the seat flew back, Mrs. Pander recalled. The mechanic’s eyes looked as if they would pop.

McElwain and the entire dealership staff were extremely helpful in trying to resolve the problem, the Panders said, doing everything from providing rental cars to showing up in person when the car malfunctioned.

There were periods of time when things seemed to be OK, when it seemed as if whatever the dealership did had worked. Those times didn’t last long.

The Panders don’t blame Cadillac, either. The way they see it, the car was just a lemon. Kimmel & Silverman saw it that way, too.

The Panders never went through the arbitration process or demanded a refund from the manufacturer. They simply went straight to the lawyers.

The firm took the case on April 10, 2001, and it was resolved on July 13, 2001. The Panders got a check for the full value of the car, minus $500. (The law entitles manufacturers to compensation for the time the consumer used the vehicle.)

Proving without a doubt they harbored no bad feelings, the Panders spent the money on another Cadillac from McElwain, a red Seville. The seat position wasn’t kind to their backs, so they traded it in for a black 2002 Cadillac Escalade.

“I love it,” Mrs. Pander said. “It practically drives itself.” And she means that in the best possible way.