| HOUSE AMENDED |
| PRIOR PRINTER'S NOS. 1089, 1139 | PRINTER'S NO. 1266 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY TOMLINSON, ERICKSON, BAKER, BOSCOLA, RAFFERTY, KASUNIC, M. WHITE, ORIE, PIPPY, WOZNIAK, GREENLEAF, WASHINGTON, MELLOW, LOGAN, FERLO, WARD, DINNIMAN, FONTANA, ALLOWAY, STOUT, STACK, TARTAGLIONE AND ARGALL, JUNE 4, 2009 |
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| AS REPORTED FROM COMMITTEE ON PROFESSIONAL LICENSURE, HOUSE OF REPRESENTATIVES, AS AMENDED, JULY 7, 2009 |
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| AN ACT |
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1 | Amending the act of December 22, 1983 (P.L.306, No.84), entitled |
2 | "An act providing for the State Board of Vehicle |
3 | Manufacturers, Dealers and Salespersons; and providing |
4 | penalties," providing for the definitions of "dual" or |
5 | "dualing" and "line-make"; further providing for mediation |
6 | and arbitration, for unlawful acts by manufacturers or |
7 | distributors and for manufacturer or distributor repurchase |
8 | of inventory and equipment. |
9 | The General Assembly of the Commonwealth of Pennsylvania |
10 | hereby enacts as follows: |
11 | Section 1. Section 2 of the act of December 22, 1983 |
12 | (P.L.306, No.84), known as the Board of Vehicles Act, is amended |
13 | by adding definitions to read: |
14 | Section 2. Definitions. |
15 | The following words and phrases when used in this act shall |
16 | have the meanings given to them in this section unless the |
17 | context clearly indicates otherwise: |
18 | * * * |
19 | "Dual" or "dualing." A new vehicle dealership having two or |
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1 | more line-makes of new vehicles located in the same dealership |
2 | facilities. |
3 | * * * |
4 | "Line-make." Groups of vehicles that are offered for sale, |
5 | lease or distribution under a common name, trademark, service |
6 | mark or brand name of the manufacturer or distributor of those |
7 | same vehicles. |
8 | * * * |
9 | Section 2. Section 11 of the act, added April 19, 1996 |
10 | (P.L.104, No.27), is amended to read: |
11 | Section 11. Mediation and arbitration. |
12 | (a) Mediation of disputes between licensees.-- |
13 | (1) A dealer or distributor may not file a complaint, |
14 | petition or protest or bring an action in a court of |
15 | competent jurisdiction against a manufacturer or distributor |
16 | based on an alleged violation of this act or in a protest |
17 | action under this act regarding an establishment, relocation |
18 | or termination of a franchise agreement unless the dealer or |
19 | distributor serves a demand for mediation upon the |
20 | manufacturer or distributor before or contemporaneous with |
21 | the filing of the complaint, petition or protest or the |
22 | bringing of an action. A demand for mediation shall be in |
23 | writing and served upon the manufacturer or distributor by |
24 | certified mail at an address designated for that manufacturer |
25 | or distributor within records of the dealer or distributor. |
26 | The demand for mediation shall contain a brief statement of |
27 | the dispute and the relief sought by the dealer or |
28 | distributor filing the demand. |
29 | (2) Within 20 days after the date a demand for mediation |
30 | is served, the parties shall mutually select an independent |
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1 | mediator and meet with that mediator for the purpose of |
2 | attempting to resolve the dispute. The meeting place shall be |
3 | in this Commonwealth in a location selected by the mediator. |
4 | The mediator may extend the date of the meeting for good |
5 | cause shown by either party or upon stipulation of both |
6 | parties. |
7 | (3) The service of a demand for mediation under |
8 | paragraph (1) shall stay the time for the filing of any |
9 | complaint, petition, protest or action under this act until |
10 | representatives of both parties have met with a mutually |
11 | selected mediator for the purpose of attempting to resolve |
12 | the dispute. If a complaint, petition, protest or action is |
13 | filed before the meeting, the board or court shall enter an |
14 | order suspending the proceeding or action until the meeting |
15 | has occurred and may, upon written stipulation of all parties |
16 | to the proceeding or action that they wish to continue to |
17 | mediate under this subsection, enter an order suspending the |
18 | proceeding or action for as long a period as the board or |
19 | court considers appropriate. A suspension order issued under |
20 | this paragraph may be revoked upon motion of any party or |
21 | upon motion of the board or the court. |
22 | (4) The board shall encourage dealers, manufacturers and |
23 | distributors to establish, maintain and administer a panel of |
24 | mediators who have the character, ability and training to |
25 | serve as mediators and who have knowledge of the vehicle |
26 | industry. |
27 | (5) Mandatory mediation under this section shall not be |
28 | required of [manufacturers,] any of the following: |
29 | (i) A dealer seeking to dual two or more franchises |
30 | or a dealer seeking a relocation involving a request to |
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1 | dual two or more franchises unless another dealer of the |
2 | same line-make has a right to protest the proposed |
3 | relocation under section 27. |
4 | (ii) Manufacturers, distributors or dealers of |
5 | motorcycles. |
6 | (b) Arbitration of disputes between licensees.--After a |
7 | dispute arises, the licensees may voluntarily agree to submit a |
8 | dispute arising under this act pertaining to a complaint, |
9 | petition, protest or action to binding or nonbinding |
10 | arbitration. Any arbitration proceeding shall be voluntary, |
11 | initiated by serving a written demand for arbitration on the |
12 | other party, and shall be conducted under the provisions of 42 |
13 | Pa.C.S. Ch. 73 Subch. A (relating to statutory arbitration) and |
14 | administered by representatives of dealers, manufacturers or |
15 | distributors. |
16 | (c) Immunity and presumption of good faith by mediators and |
17 | arbitrators.--A mediator or arbitrator is immune from civil |
18 | liability for any good faith act or omission within the scope of |
19 | the mediator's or arbitrator's performance of his powers and |
20 | duties under this section. Every act or omission of a mediator |
21 | or arbitrator is presumed to be a good faith act or omission. |
22 | This presumption may be overcome only by clear and convincing |
23 | evidence. |
24 | Section 3. Section 12 of the act, amended October 18, 2000, |
25 | (P.L.577, No.75), is amended to read: |
26 | Section 12. Unlawful acts by manufacturers or distributors. |
27 | (a) Unlawful coercive acts.--It shall be a violation for any |
28 | manufacturer, factory branch, distributor, field representative, |
29 | officer, agent or any representative whatsoever of such |
30 | manufacturer, factory branch or distributor licensed under this |
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1 | act to require, attempt to require, coerce or attempt to coerce |
2 | any new vehicle dealer in this Commonwealth to: |
3 | (1) Order or accept delivery of any new vehicle, part or |
4 | accessory thereof, equipment or any other commodity not |
5 | required by law which shall not have been voluntarily ordered |
6 | by the new vehicle dealer, except that this paragraph is not |
7 | intended to modify or supersede any terms or provisions of |
8 | the franchise requiring new vehicle dealers to market a |
9 | representative line of those vehicles which the manufacturer |
10 | or distributor is publicly advertising. |
11 | (2) Order or accept delivery of any new vehicle with |
12 | special features, accessories or equipment not included in |
13 | the list price of such vehicles as publicly advertised by the |
14 | manufacturer or distributor. |
15 | (3) Participate monetarily in an advertising campaign or |
16 | contest or to purchase unnecessary or unreasonable quantities |
17 | of any promotional materials, training materials, showroom or |
18 | other display decorations or materials at the expense of the |
19 | new vehicle dealer. |
20 | (4) Enter into any agreement with the manufacturer or to |
21 | do any other act prejudicial to the new vehicle dealer by |
22 | threatening to terminate or not renew a franchise or any |
23 | contractual agreement existing between the dealer and the |
24 | manufacturer or distributor, except that this paragraph is |
25 | not intended to preclude the manufacturer or distributor from |
26 | insisting on compliance with the reasonable terms or |
27 | provisions of the franchise or other contractual agreement |
28 | and notice in good faith to any new vehicle dealer of the new |
29 | vehicle dealer's violation of such terms or provisions shall |
30 | not constitute a violation of the act. |
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1 | (5) Change the capital structure of the new vehicle |
2 | dealer or the means by or through which the new vehicle |
3 | dealer finances the operation of the dealership, provided |
4 | that the new vehicle dealer at all times meets any reasonable |
5 | capital standards determined by the manufacturer or |
6 | distributor in accordance with uniformly applied criteria, |
7 | and also provided that no change in the capital structure |
8 | shall cause a change in the principal management or have the |
9 | effect of a sale of the franchise without the consent of the |
10 | manufacturer or distributor. The consent shall be granted or |
11 | denied within 60 days of receipt of a written request from |
12 | the new vehicle dealer. |
13 | (6) (i) Refrain from participation in the management |
14 | of, investment in or the acquisition of any other line of |
15 | new vehicle or related products. This paragraph does not |
16 | apply unless the new vehicle dealer maintains a |
17 | reasonable line of credit for each make or line of new |
18 | vehicle, the new vehicle dealer remains in compliance |
19 | with the reasonable terms of the franchise agreement and |
20 | any reasonable facilities requirements of the |
21 | manufacturer or distributor, and no change is made in the |
22 | principal management of the new vehicle dealer. The |
23 | reasonable facilities requirements shall not include any |
24 | requirement that a new vehicle dealer establish or |
25 | maintain exclusive facilities, personnel or display space |
26 | when such requirements or any of them would be |
27 | unreasonable in light of economic conditions and would |
28 | not otherwise be justified by reasonable business |
29 | considerations. [Before the addition of a line-make to |
30 | the dealership facilities, the new vehicle dealer shall |
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1 | first request the consent of the manufacturer or |
2 | distributor if required by the franchise agreement. Any |
3 | decision of the manufacturer or distributor with regard |
4 | to dualing of two or more franchises shall be rendered |
5 | within 60 days of receipt of a written request from the |
6 | new vehicle dealer. Failure on the part of the |
7 | manufacturer or distributor to timely respond to a |
8 | dualing request shall be deemed to be an approval of the |
9 | new vehicle dealer's request. No automobile, motorcycle |
10 | or truck manufacturer or distributor shall limit or |
11 | restrict the addition of a line-make to the dealership |
12 | facilities where the new vehicle dealer maintains a |
13 | reasonable line of credit for each make or line of new |
14 | vehicle and the new vehicle dealer remains in compliance |
15 | with the reasonable terms of the franchise agreement and |
16 | any reasonable facilities requirements of an automobile, |
17 | motorcycle or truck manufacturer or distributor.] |
18 | (ii) (A) Nothing in this paragraph shall permit the | <-- |
19 | dualing or relocation and addition of a line-make to | <-- |
20 | the dealership facilities without the new vehicle |
21 | dealer providing written certification to the |
22 | manufacturer or distributor that the new vehicle |
23 | dealer, with the addition of a line-make by the new |
24 | vehicle dealer, will maintain a reasonable line of |
25 | credit for each make or line of new vehicle and the |
26 | new vehicle dealer will remain in compliance with the |
27 | reasonable terms of the franchise agreement and any |
28 | reasonable facilities requirements of the |
29 | manufacturer or distributor, excluding any exclusive |
30 | facility or nondualing requirements. |
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1 | (B) The dealer shall provide the following | <-- |
2 | information: |
3 | (I) the address of the proposed new |
4 | location, if applicable; |
5 | (II) a brief description of the proposed |
6 | facility; and |
7 | (III) the owner of the proposed new |
8 | location. |
9 | (C) Any objection by the manufacturer or distributor |
10 | with regard to the dualing or relocation and dualing | <-- |
11 | of two or more franchises shall be delivered to the |
12 | dealer within 30 45 days of receipt of the written | <-- |
13 | certification from the new vehicle dealer. Failure on |
14 | the part of the manufacturer or distributor to timely |
15 | respond to a dualing or relocation and dualing | <-- |
16 | certification shall be deemed to be an approval of |
17 | the new vehicle dealer's certification notice of |
18 | dualing or relocation and dualing of two or more | <-- |
19 | franchises. The manufacturer or distributor shall |
20 | execute and deliver a franchise reflecting the |
21 | relocated address of the dealership facilities to the |
22 | new vehicle dealer within 30 days of the date of the |
23 | deemed approval. |
24 | (iii) A dealer may file a complaint, petition or |
25 | protest, or bring an action in a court of competent |
26 | jurisdiction against a manufacturer or distributor, based |
27 | on a denial of a request by a dealer to dual or relocate | <-- |
28 | and dual two or more franchises without first going |
29 | through mediation required under section 11. If a dualing | <-- |
30 | or relocation and dualing denial protest is filed with |
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1 | the board, a hearing shall be held within 45 days of the |
2 | protest's filing and a final determination issued by the |
3 | board within 90 days of the protest filing. The burden of |
4 | proof shall be on the manufacturer or distributor to show |
5 | that the dualing or relocation and dualing is | <-- |
6 | unreasonable. No automobile, motorcycle or truck |
7 | manufacturer or distributor may limit or restrict the |
8 | addition of a line-make to the dealership facilities if |
9 | the new vehicle dealer maintains a reasonable line of |
10 | credit for each make or line of new vehicle and the new |
11 | vehicle dealer remains in compliance with the reasonable |
12 | terms of the franchise agreement and any reasonable |
13 | facilities requirements of an automobile, motorcycle or |
14 | truck manufacturer or distributor. Notwithstanding this | <-- |
15 | subparagraph, this This paragraph shall also apply if the | <-- |
16 | dealer seeks to dual two or more line-makes and no |
17 | relocation will occur, but this subparagraph. This | <-- |
18 | paragraph shall not impair the rights of another dealer |
19 | of the same line-make to protest a proposed relocation |
20 | under section 27. |
21 | (7) Prospectively assent to a release, assignment, |
22 | novation, waiver or estoppel which would relieve any person |
23 | from liability to be imposed by this act or to require any |
24 | controversy between a new vehicle dealer and a manufacturer, |
25 | distributor or representative to be referred to any person |
26 | other than the duly constituted courts of the Commonwealth or |
27 | the United States of America, if such referral would be |
28 | binding upon the new vehicle dealer. A dealer and the |
29 | manufacturer, distributor or representative, by themselves or |
30 | through their respective counsel, are permitted to agree to |
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1 | execute a written agreement or to arbitrate in a binding or |
2 | nonbinding manner after a controversy arises. |
3 | (8) Expand, construct or significantly modify facilities |
4 | without assurances that the manufacturer or distributor will |
5 | provide a reasonable supply of new vehicles within a |
6 | reasonable time so as to justify such an expansion in light |
7 | of the market and economic conditions [or require a separate |
8 | facility for the sale or service of a line-make of a new |
9 | vehicle if the market and economic conditions do not clearly |
10 | justify the separate facility]. |
11 | (8.1) Unreasonably expand, construct or significantly |
12 | modify facilities in light of the market and economic |
13 | conditions or require a separate facility for the sale or |
14 | service of a line-make of a new vehicle if the market and |
15 | economic conditions do not clearly justify the separate |
16 | facility. |
17 | (9) Agree as a condition to granting or renewing a |
18 | franchise to waive, limit or disclaim a right that the dealer |
19 | may have to protest the establishment or relocation of |
20 | another vehicle dealer in the relevant market area as |
21 | provided in section 27, unless such agreement is voluntary. |
22 | (b) Violations.--It shall be a violation of this act for any |
23 | manufacturer, factory branch, distributor, field representative, |
24 | officer, agent or any representative whatsoever of such |
25 | manufacturer, factory branch or distributor licensed under this |
26 | act to: |
27 | (1) Delay, refuse or fail to deliver new vehicles or new |
28 | vehicle parts or accessories in a reasonable time and in |
29 | reasonable quantity relative to the new vehicle dealer's |
30 | facilities and sales potential after acceptance of an order |
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1 | from a new vehicle dealer having a franchise for the retail |
2 | sale of any new vehicle sold or distributed of an order from |
3 | a new vehicle dealer having a franchise for the retail sale |
4 | of any new vehicle sold or distributed by the manufacturer or |
5 | distributor as are covered by such franchise, if such |
6 | vehicle, parts or accessories are publicly advertised as |
7 | being available for immediate delivery. There is no violation |
8 | if the failure is caused by acts or causes beyond the control |
9 | of the manufacturer or distributor. |
10 | (2) Unfairly discriminate among its new vehicle dealers |
11 | with respect to warranty, recall, service contract or any |
12 | other service required by the manufacturer or distributor |
13 | with regard to labor or parts reimbursement. |
14 | (3) Unreasonably withhold consent to the sale, transfer |
15 | or exchange of the franchise to a qualified buyer capable of |
16 | being licensed as a new vehicle dealer in this Commonwealth |
17 | who meets the manufacturer's or distributor's reasonable |
18 | requirements for appointment as a dealer. |
19 | (4) [Arbitrarily and capriciously] Unreasonably withhold |
20 | consent to the relocation of an existing new vehicle dealer. |
21 | If the relocation involves dualing of two or more franchises, |
22 | the requirements of subsection (a)(6)(ii) and (iii) shall |
23 | apply and paragraph (5) shall not apply. |
24 | (5) Fail to respond in writing to a request for consent |
25 | as specified in paragraphs (3) and (4) within 60 days of |
26 | receipt of a written request on the forms, if any, generally |
27 | utilized by the manufacturer or distributor for such purposes |
28 | and containing the information required. The failure to |
29 | respond within the time period set forth in this paragraph |
30 | shall be deemed to be approval of the request, and the |
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1 | manufacturer or distributor shall execute and deliver a |
2 | franchise to the applicant within 30 days of the expiration |
3 | of this time period. A manufacturer or distributor shall |
4 | acknowledge in writing to the applicant the receipt of the |
5 | forms, and, if the manufacturer or distributor requires |
6 | additional information to complete its review, the |
7 | manufacturer or distributor shall notify the applicant within |
8 | 15 days of the receipt of the forms. If the manufacturer or |
9 | distributor fails to request additional information from the |
10 | applicant within 15 days after receipt of the initial forms, |
11 | the 60-day time period for approval shall be deemed to run |
12 | from the initial receipt date. Otherwise, the 60-day time |
13 | period for approval shall run from receipt of the |
14 | supplemental requested information. In no event shall the |
15 | total time period for approval exceed 75 days from the date |
16 | of the receipt of the initial forms. |
17 | (6) Prevent or attempt to prevent by contract or |
18 | otherwise, any new vehicle dealer from changing the executive |
19 | management control of the new vehicle dealer unless the |
20 | manufacturer or distributor, having the burden of proof, can |
21 | show that such change of executive management will result in |
22 | executive management or control by a person or persons who |
23 | are not of good moral character or who do not meet |
24 | reasonable, preexisting, and, with consideration given to the |
25 | volume of sales and service of the dealership, uniformly |
26 | applied minimum business experience standards. Where the |
27 | manufacturer or distributor rejects a proposed change in |
28 | executive management control, the manufacturer or distributor |
29 | shall give written notice of its reasons to the dealer within |
30 | 60 days of notice to the manufacturer by the dealer of the |
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1 | proposed change; otherwise the change in the executive |
2 | management of the new vehicle dealer shall be presumptively |
3 | deemed approved. |
4 | (7) Offer in connection with a sale of a new vehicle or |
5 | vehicles to the Federal Government, the Commonwealth or any |
6 | political subdivision thereof, any discounts, refunds or any |
7 | other type of inducement to any new vehicle dealer without |
8 | making the same offer or offers available to all other of its |
9 | new vehicle dealers within this Commonwealth. This paragraph |
10 | shall not be construed to prevent the offering of incentive |
11 | programs or other discounts if the discounts are equally |
12 | available to all franchised vehicle dealers in this |
13 | Commonwealth on a proportionally equal basis. |
14 | (8) Fail to indemnify its franchised dealers, |
15 | notwithstanding the terms of any franchise agreement, against |
16 | any judgment for damages or settlement approved in writing by |
17 | the manufacturer or distributor, including, but not limited |
18 | to, court costs and reasonable attorney fees of the new |
19 | vehicle dealer, arising out of complaints, claims or |
20 | lawsuits, including, but not limited to, strict liability, |
21 | negligence, misrepresentation, express or implied warranty or |
22 | rescission of the sale as defined in 13 Pa.C.S. § 2608 |
23 | (relating to revocation of acceptance in whole or in part) to |
24 | the extent that the judgment or settlement relates solely to |
25 | the alleged defective or negligent functions by the |
26 | manufacturer or distributor beyond the control of the dealer. |
27 | (9) Sell or exchange with a second or final stage |
28 | manufacturer, retail consumer or end user except through a |
29 | licensed new vehicle dealer. This paragraph shall not apply |
30 | to manufacturer or distributor sales of new vehicles to the |
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1 | Federal Government, charitable organizations and employees of |
2 | the manufacturer. |
3 | (10) (i) Modify a franchise during the term of the |
4 | franchise or upon its renewal if the modification |
5 | substantially and adversely affects the new vehicle |
6 | dealer's rights, obligations, investment or return on |
7 | investment without giving 60 days' written notice of the |
8 | proposed modification to the new vehicle dealer unless |
9 | the modification is required by law, court order or the |
10 | board. Within the 60-day notice period, the new vehicle |
11 | dealer may file with the board and serve notice upon the |
12 | manufacturer or distributor a protest requesting a |
13 | determination of whether there is good cause for |
14 | permitting the proposed modification. The board shall |
15 | promptly schedule a hearing and decide the matter within |
16 | 180 days from the date the protest is filed. Multiple |
17 | protests pertaining to the same proposed modification |
18 | shall be consolidated for hearing. The proposed |
19 | modification shall not take effect pending the |
20 | determination of the matter. In determining whether there |
21 | is good cause for permitting a proposed modification, the |
22 | board shall consider any relevant factors, including, but |
23 | not limited to: |
24 | (A) The reasons for the proposed modification. |
25 | (B) Whether the proposed modification is applied |
26 | to or affects all new vehicle dealers in a |
27 | nondiscriminatory manner. |
28 | (C) Whether the proposed modification will have |
29 | a substantial and adverse effect upon the new vehicle |
30 | dealer's investment or return on investment. |
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1 | (D) Whether the proposed modification is in the |
2 | public interest. |
3 | (E) Whether the proposed modification is |
4 | necessary to the orderly and profitable distribution |
5 | of products by the manufacturer or distributor. |
6 | (F) Whether the proposed modification is offset |
7 | by other modifications beneficial to the new vehicle |
8 | dealer. |
9 | (ii) This paragraph shall not apply to recreational |
10 | vehicle manufacturers, distributors or dealers. |
11 | (11) Fail or refuse to offer to its new vehicle dealers |
12 | all new model vehicles manufactured for that line-make |
13 | franchise or require any of its new vehicle dealers to pay an |
14 | unreasonable fee, unreasonably remodel or renovate the new |
15 | vehicle dealer's existing facilities, unreasonably purchase |
16 | or construct a new facility, unreasonably purchase parts, |
17 | supplies, tools, equipment, operational services, other |
18 | merchandise or unreasonably participate in training programs |
19 | in order to receive any new model vehicles, parts or |
20 | accessories. It shall not be a violation of this paragraph if |
21 | the manufacturer or distributor fails to supply new vehicle |
22 | dealers with model vehicles, parts or accessories due to |
23 | circumstances beyond the control of the manufacturer or |
24 | distributor, including, but not limited to, strike or labor |
25 | difficulty, shortage of materials, freight embargo or |
26 | temporary lack of capacity. |
27 | (12) Operate a system for the allocation of new vehicles |
28 | which is not reasonable or fair to a new vehicle dealer. Upon |
29 | the written request of any of its new vehicle dealers, a |
30 | manufacturer or distributor shall disclose to the new vehicle |
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1 | dealer the method on which new vehicles are allocated among |
2 | the new vehicle dealers of the same line-make. The |
3 | manufacturer distributor has the burden of establishing the |
4 | fairness of its allocation. |
5 | (13) Own, operate or control, either directly or |
6 | indirectly, any vehicle warranty facility. Nothing in this |
7 | subsection shall prohibit any manufacturer or distributor |
8 | from owning, operating or controlling any warranty facility |
9 | for warranty repairs on vehicles owned or operated by the |
10 | manufacturer or distributor. |
11 | (14) Compel a dealer through a finance subsidiary of the |
12 | manufacturer or distributor to agree to unreasonable |
13 | operating requirements or to directly or indirectly terminate |
14 | a new vehicle dealer through the actions of a finance |
15 | subsidiary of the manufacturer or distributor. This paragraph |
16 | shall not limit the right of a financing entity to engage in |
17 | business practices in accordance with the trade of retail or |
18 | wholesale vehicle financing. |
19 | (15) Use any subsidiary corporation, affiliated |
20 | corporation or any other controlled corporation, partnership, |
21 | association, entity or person to accomplish what would |
22 | otherwise be illegal conduct under this act on the part of |
23 | the manufacturer or distributor. |
24 | (16) Release to any third party any customer information |
25 | which has been provided by the new vehicle dealer to the |
26 | manufacturer or distributor if the customer objects in |
27 | writing to releasing the information, unless the information |
28 | is necessary for the manufacturer or distributor to meet its |
29 | obligations to customers or new vehicle dealers under |
30 | requirements imposed by Federal or State law. |
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1 | (17) Require or coerce or attempt to require or coerce a |
2 | new vehicle dealer to pay attorney fees of the manufacturer |
3 | or distributor related to hearings and appeals brought under |
4 | this act. |
5 | (18) Vary the price charged to any of its new vehicle |
6 | dealers, which has the effect of causing a difference in the |
7 | price of any similarly equipped new vehicle to its new |
8 | vehicle dealers or to the ultimate purchaser. This paragraph |
9 | shall not be construed to prevent the offering of incentive |
10 | programs or other discounts if the incentive or discounts are |
11 | available to all competing new vehicle dealers of the same |
12 | line-make in this Commonwealth on a proportionately equal |
13 | basis. |
14 | (c) Restriction on ownership of dealer.-- |
15 | (1) Except as otherwise provided in this subsection, a |
16 | manufacturer or distributor shall not: |
17 | (i) own or hold an interest, other than a passive, |
18 | minority interest in a publicly traded dealer held for |
19 | investment purposes, in a dealer licensed under this act |
20 | which is engaging in the business of buying, selling or |
21 | exchanging vehicles; or |
22 | (ii) operate or control a dealer licensed under this |
23 | act which is engaging in the business of buying, selling |
24 | or exchanging vehicles. |
25 | (2) A manufacturer or distributor may own or hold an |
26 | interest in a dealer or otherwise operate or control a dealer |
27 | for a period not to exceed 12 months from the date the |
28 | manufacturer or distributor acquires an interest in the |
29 | dealer if: |
30 | (i) The person from whom the manufacturer or |
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1 | distributor acquired the dealer was a franchised dealer. |
2 | (ii) The dealer is for sale by the manufacturer or |
3 | distributor at a reasonable price and on reasonable terms |
4 | and conditions. |
5 | (3) On a showing by a manufacturer or distributor of |
6 | good cause, the board may extend the time limit set forth in |
7 | paragraph (2). An extension under this paragraph may not |
8 | exceed 12 months. Where an extension under this paragraph is |
9 | sought, the manufacturer or distributor shall provide notice |
10 | delivered 30 days before the extension request is filed with |
11 | the board to all the same line-make dealers within a ten-mile |
12 | radius of the manufacturer or distributor owned, operated or |
13 | controlled dealer. An application for an extension is subject |
14 | to protest by a dealer of the same line-make who is within |
15 | the ten-mile radius of the manufacturer or distributor owned, |
16 | operated or controlled dealer. |
17 | (4) For the primary purpose of broadening the diversity |
18 | of its dealer body and enhancing opportunities for qualified |
19 | persons who are part of a group who have historically been |
20 | underrepresented in its dealer body or other qualified |
21 | persons who lack the resources to purchase a dealer outright, |
22 | a manufacturer or distributor may temporarily own an interest |
23 | in a dealer if the manufacturer's or distributor's |
24 | participation in the dealer is in a bona fide relationship |
25 | with a franchised dealer who: |
26 | (i) At or prior to the time the prospective dealer |
27 | takes an equity interest in the dealer, the prospective |
28 | dealer is obligated to make a significant investment in |
29 | the dealer, subject to loss. |
30 | (ii) Has an ownership interest in the dealer. |
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1 | (iii) Operates the dealer under a written agreement |
2 | to acquire full ownership of the dealer within a |
3 | reasonable time and under reasonable terms and |
4 | conditions. |
5 | (5) A manufacturer or distributor shall not unfairly |
6 | discriminate or compete in terms of any sales, service or |
7 | operational activities with a new vehicle dealer of the same |
8 | line-make when a manufacturer or distributor operates a new |
9 | vehicle dealer under this subsection. |
10 | (6) A manufacturer may own, directly or indirectly, an |
11 | interest in an entity that owns, operates or controls a motor |
12 | vehicle dealership trading solely in motor vehicles having a |
13 | gross vehicle weight less than 8,500 pounds that are of the |
14 | same line-make franchised by the manufacturer, provided that |
15 | each of the following conditions are met: |
16 | (i) All of the motor vehicle dealerships selling |
17 | such manufacturer's motor vehicles in this Commonwealth |
18 | trade exclusively in the manufacturer's line-make. |
19 | (ii) All of the manufacturer's franchise agreements |
20 | confer rights on the dealer of the line-make to develop |
21 | and operate, within a defined geographic territory or |
22 | area, as many dealership facilities as the dealer and |
23 | manufacturer shall agree are appropriate. |
24 | (iii) Not fewer than half of the dealers of the |
25 | line-make within this Commonwealth own and operate two or |
26 | more dealership facilities in the geographic territory or |
27 | area covered by the franchise agreement with the |
28 | manufacturer. |
29 | (iv) During any period in which the manufacturer has |
30 | such an ownership interest, the manufacturer has no more |
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1 | than 12 franchise agreements with new motor vehicle |
2 | dealers licensed by the board to do business within this |
3 | Commonwealth. |
4 | (v) Except as otherwise permitted under other |
5 | provisions of this act, the manufacturer does not acquire |
6 | or hold, either directly or indirectly, an ownership |
7 | interest of more than 45% in any motor vehicle dealership |
8 | that the manufacturer did not already own, directly or |
9 | indirectly, as of the effective date of this subsection. |
10 | (vi) As of the effective date of this subsection, |
11 | the manufacturer shall have continuously owned, directly |
12 | or indirectly, for a period of not less than 18 months, |
13 | one or more new motor vehicle dealerships in this |
14 | Commonwealth of the same line-make as the manufacturer. |
15 | (d) Applicability.-- |
16 | (1) Subsections (b)(11) through (17) and (c) shall not |
17 | apply to manufacturers, distributors or dealers of |
18 | manufactured housing or recreational vehicles. |
19 | (2) Subsections (b)(13) and (15) and (c) shall not apply |
20 | to the ownership or activities of a manufacturer in the |
21 | operation of a licensed dealer or a licensed dealer that |
22 | fulfills the following conditions: |
23 | (i) The manufacturer maintains an ownership interest |
24 | in, operates or controls a licensed dealer whose primary |
25 | business purpose is the rental of vehicles. |
26 | (ii) Vehicles sold by the licensed dealer primarily |
27 | engaged in the business of rental vehicles are limited to |
28 | those vehicles used for rental purposes or vehicles |
29 | obtained in trade for such vehicles. |
30 | (iii) Any warranty repairs are limited to those |
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1 | repairs conducted on the vehicles used in the vehicle |
2 | rental business or vehicles sold by the licensed dealer. |
3 | Section 4. Section 17 of the act, added April 19, 1996 |
4 | (P.L.104, No.27), is amended to read: |
5 | Section 17. Manufacturer or distributor repurchase of inventory |
6 | and equipment. |
7 | (a) Return of property for repurchase.--A new vehicle dealer |
8 | shall return property, including, but not limited to, vehicle |
9 | inventory, parts, equipment, tools and signs, as permitted under |
10 | this section or as set forth in the franchise agreement, to the |
11 | manufacturer or distributor within 90 days of the effective date |
12 | of any termination or nonrenewal of a franchise or upon a |
13 | termination or cessation of a part of a manufacturer's or |
14 | distributor's business operations throughout the United States |
15 | which is not part of any change in ownership, operation or |
16 | control of all or any part of the manufacturer's or |
17 | distributor's business under section 14. The manufacturer or |
18 | distributor shall supply the new vehicle dealer with |
19 | instructions on the method by which the new vehicle dealer must |
20 | return the property to the manufacturer or distributor. Within |
21 | 60 days of tender of the property to the manufacturer or |
22 | distributor, the manufacturer or distributor, including medium |
23 | and heavy-duty truck component and engine manufacturers or |
24 | distributors who provide integral parts of vehicles or provide |
25 | major components by selling directly to dealers, shall |
26 | repurchase from the new vehicle dealer and remit payment to the |
27 | new vehicle dealer in accordance with their respective interest |
28 | in: |
29 | (1) Any new, undamaged and unsold vehicle inventory [of |
30 | the current model year or purchased from a manufacturer or |
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1 | distributor within 120 days prior to receipt of notice of |
2 | termination or nonrenewal], whether acquired from the |
3 | manufacturer or distributor or from another dealer of the |
4 | same line-make in the ordinary course of business within 18 | <-- |
5 | months of the termination date, provided the vehicle has less |
6 | than [500] 750 miles registered on the odometer, not |
7 | including mileage incurred in delivery from the manufacturer |
8 | or in transporting the vehicle between dealers for sale, at |
9 | the dealer's net acquisition cost, plus any cost to the |
10 | dealer for returning the vehicle inventory to the |
11 | manufacturer or distributor. A dealer shall be entitled to |
12 | the payment under this paragraph for new and undamaged motor |
13 | vehicles having a gross vehicle weight rating of at least |
14 | 10,001 pounds of current and two prior model years as |
15 | determined on a model-by-model basis within the line-make. |
16 | (2) All new, unused, undamaged parts listed in the |
17 | current price catalog acquired from a manufacturer or |
18 | distributor or a source approved or recommended by the |
19 | manufacturer or distributor at the dealer price listed in the |
20 | current parts catalog, less applicable allowances, plus 5% of |
21 | the catalog price of the part for the cost of packing and |
22 | returning the parts to the manufacturer or distributor. |
23 | Reconditioned or core parts shall be valued at their core |
24 | value, the price listed in the current parts catalog or the |
25 | amount paid for expedited return of core parts, whichever is |
26 | higher. |
27 | (3) Any special tools or equipment offered for sale |
28 | during the three years preceding termination or nonrenewal |
29 | and each trademark or trade name bearing signs which was |
30 | recommended or required by the manufacturer or distributor at |
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1 | fair market value at the time the notice of termination or |
2 | nonrenewal is given. |
3 | In the event the inventory is subject to a security interest, |
4 | the manufacturer may make payment jointly to the dealer and the |
5 | holder of the security interest. |
6 | (b) Failure to pay sums due.--A manufacturer or distributor |
7 | who fails to pay those sums due the dealer within the prescribed |
8 | time or at such time as the dealer proffers good title prior to |
9 | the prescribed time for payment is liable to the new vehicle |
10 | dealer for: |
11 | (1) the greater of dealer net acquisition cost, fair |
12 | market value or current price of inventory; |
13 | (2) interest on the amount due, calculated at the rate |
14 | applicable to a judgment of court; and |
15 | (3) reasonable attorney fees and costs. |
16 | (c) Limited applicability.--This section shall not apply to |
17 | manufacturers, distributors or dealers of recreational vehicles |
18 | or manufactured housing, nor shall it apply to motorcycle |
19 | manufacturers, distributors or dealers except when the |
20 | unilateral termination or failure to renew is by the |
21 | manufacturer or distributor. |
22 | Section 5. This act shall take effect in 60 days. |
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