| |
|
| |
| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
| |
| HOUSE BILL |
|
| |
| |
| INTRODUCED BY TALLMAN, HANNA, M.K. KELLER, CALTAGIRONE, CONKLIN, FLECK, GEIST, GIBBONS, HARKINS, HELM, HORNAMAN, KAUFFMAN, LONGIETTI, MARSHALL, METZGAR, MILLARD, O'NEILL, PICKETT, REICHLEY, STERN AND YOUNGBLOOD, FEBRUARY 28, 2011 |
| |
| |
| REFERRED TO COMMITTEE ON AGRICULTURE AND RURAL AFFAIRS, FEBRUARY 28, 2011 |
| |
| |
| |
| AN ACT |
| |
1 | Amending the act of December 18, 1987 (P.L.412, No.86), entitled |
2 | "An act providing for the repurchase by the wholesaler, |
3 | manufacturer or distributor, from dealers or heirs of |
4 | dealers, of certain equipment, certain attachments and parts |
5 | held for sale upon termination of agreement whereby the |
6 | dealer agrees to maintain a stock of such implements, |
7 | attachments and parts, and for the repurchase of certain |
8 | tools," further providing for definitions, for termination of |
9 | dealer agreement, for death or incapacitation of dealer and |
10 | for repurchase of unused specialized repair tools; repealing |
11 | provisions relating to coercion; and providing for violations |
12 | of act, for warranty, for remedies and enforcement and for |
13 | waiver. |
14 | The General Assembly of the Commonwealth of Pennsylvania |
15 | hereby enacts as follows: |
16 | Section 1. Section 2 of the act of December 18, 1987 |
17 | (P.L.412, No.86), known as the Pennsylvania Fair Dealership Law, |
18 | is amended to read: |
19 | Section 2. Definitions. |
20 | The following words and phrases when used in this act shall |
21 | have the meanings given to them in this section unless the |
22 | context clearly indicates otherwise: |
|
1 | "Construction equipment manufacturer." A manufacturer of |
2 | construction, industrial, forestry, paving and mining equipment, |
3 | repair parts or specialized repair tools that does not |
4 | manufacture consumer or farming equipment either by itself or |
5 | through an affiliate. |
6 | "Consumer equipment." Machinery designed and manufactured |
7 | primarily for household use. |
8 | "Current net price." The price, applicable to an individual |
9 | dealer, listed in the printed price list or catalog or invoice |
10 | in use by the supplier on the date the dealer agreement is |
11 | terminated or canceled or has failed to be renewed. |
12 | "Dealer." Any person, firm or corporation engaged |
13 | primarily in the business of retail sale or repair of |
14 | equipment. The term includes the heir or authorized |
15 | representative of a person or majority stockholder of a |
16 | corporation operating as a dealer in the event such person or |
17 | stockholder dies or becomes incapacitated. The term does not |
18 | include a person, firm or corporation that complies with all of | <-- |
19 | the following: |
20 | (1) Has purchased new equipment from a single |
21 | construction equipment manufacturer, constituting no less |
22 | than 75% of the person's, firm's or corporation's new |
23 | equipment, calculated on the basis of net cost. |
24 | (2) Has an annual average sales volume in excess of |
25 | $100,000,000 over the seven-calendar-year period immediately |
26 | preceding the applicable determination date; provided, |
27 | however, the $100,000,000 threshold shall be increased each |
28 | year by an amount equal to the then-current threshold |
29 | multiplied by the percentage increase in the index from |
30 | January of the immediately preceding calendar year to January |
|
1 | of the current year. |
2 | (3) Directly employs over 250 persons. |
3 | (4) Has a written agreement with a construction |
4 | equipment manufacturer that requires the construction |
5 | equipment manufacturer to compensate the person, firm or |
6 | corporation for warranty labor costs either as: |
7 | (i) a discount in the pricing of the equipment to |
8 | the person, firm or corporation; or |
9 | (ii) a lump sum payment to the person, firm or |
10 | corporation that is made within 90 days of the sale of |
11 | the construction equipment manufacturer's new equipment. |
12 | "Dealer agreement." An oral or written contract, franchise |
13 | agreement or security agreement between a dealer and supplier |
14 | whereby the dealer agrees to acquire from the supplier and to |
15 | maintain an inventory of equipment, repair parts or specialized |
16 | repair tools. |
17 | "Equipment." Machines, implements of husbandry, golf, turf |
18 | and grounds maintenance machines, outdoor power equipment, |
19 | utility vehicles and machine attachments, accessories, |
20 | completing packages and bundles designed for or adapted and used |
21 | for agriculture, horticulture, floriculture, construction, |
22 | livestock raising, silviculture, landscaping and grounds |
23 | maintenance, even though incidentally operated or used upon the |
24 | highways, including, but not limited to, tractors, farm |
25 | implements, loaders, backhoes, lawn mowers, rototillers, etc., |
26 | and any business signs purchased by requirement of the supplier |
27 | which are less than five years old. The term shall not include: |
28 | (1) equipment manufactured solely for the purpose of |
29 | industrial construction; or |
30 | (2) all-terrain vehicles as defined in 75 Pa.C.S. § 7702 |
|
1 | (relating to definitions). |
2 | "Farming equipment." Machinery designed and used for |
3 | agricultural operations, including farm tractors, choppers, |
4 | balers, reapers, mowers, pickers, threshers, combines, plows, |
5 | harrows, planters and any other vehicles or machines primarily |
6 | designed for use as implements of husbandry or multipurpose |
7 | agricultural vehicles. |
8 | "Index." The producer price index prepared by the United |
9 | States Department of Labor, Bureau of Labor Statistics, as it |
10 | relates to construction, mining and forestry equipment. |
11 | "Mining equipment." Machinery designed and used in the |
12 | production process at a mine site, including off-highway mining |
13 | trucks, large-wheel loaders, large track-type tractors, large- |
14 | wheel dozers, mining motor graders, open bowl scrapers and |
15 | underground mining trucks. |
16 | "Net cost." The amount paid by the dealer to the supplier, |
17 | plus the cost of freight, if any, incurred by the dealer[.], as |
18 | long as the manufacturer initiates the termination or |
19 | nonrenewal. The term does not include the cost of freight if the |
20 | dealer initiates the termination or nonrenewal. |
21 | "Nonservicing dealer." A dealer that sells equipment | <-- |
22 | but does not provide parts and service. |
23 | "Paving equipment." Machinery designed and used for asphalt |
24 | paving, including asphalt pavers, cold planers, asphalt |
25 | compactors, pneumatic compactors and rotary mixers. |
26 | "Repair parts." All parts, component parts and superseded |
27 | parts related to a sale and related to repair of equipment. The |
28 | term includes bundled parts, which means several related parts, |
29 | components or accessories, bound together as one inclusive item |
30 | or priced as an inclusive item. |
|
1 | "Specialized repair tools." Tools and equipment, including |
2 | diagnostic equipment, designed to be used or useful only in the |
3 | maintenance and repair of equipment. |
4 | "Supplier." [A manufacturer of equipment or repair parts or |
5 | a wholesaler or distributor of equipment or repair parts who has |
6 | a valid existing contract with a manufacturer of equipment or |
7 | repair parts, including the successors or assigns of such |
8 | manufacturer, wholesaler or distributor.] A distributor, |
9 | manufacturer or wholesaler of equipment, repair parts or |
10 | specialized repair tools who enters into a dealer agreement with |
11 | a dealer. |
12 | Section 2. Section 3(a) and (f) of the act are amended and |
13 | the section is amended by adding a subsection to read: |
14 | Section 3. Termination of dealer agreement. |
15 | (a) General provisions.-- |
16 | (1) A dealer may terminate a dealer agreement |
17 | with good cause. A dealer shall give the supplier at | <-- |
18 | least 30 days' prior notice via registered letter mailed to | <-- |
19 | the last known address of the supplier. |
20 | (2) It shall be unlawful for a supplier to |
21 | terminate, cancel or fail to renew a dealer agreement or |
22 | substantially change the competitive circumstances of a | <-- |
23 | dealer agreement without good cause except as provided in |
24 | subsection (b) or (c). |
25 | * * * |
26 | (f) Deficiencies may be cured.--Except for termination, |
27 | cancellation or discontinuance for reasons set forth in |
28 | subsection (b)(3) through (7), the supplier shall allow the |
29 | dealer no less than [60] 90 days to cure the deficiencies set |
30 | forth in the notice required under subsection (e). Any such time |
|
1 | provided to the dealer to cure deficiencies shall be calculated |
2 | from the date of receipt of notice. |
3 | (g) Definition.--As used in this section, the term "good |
4 | cause" means the failure by a dealer to substantially comply |
5 | with the requirements imposed upon the dealer by the dealer |
6 | agreement, as long as the requirements are not different from |
7 | requirements imposed on other dealers of the same size, |
8 | geographic region and market demographics, either by their terms |
9 | or in the manner of their enforcement. |
10 | Section 3. Sections 5 and 6 of the act are amended to read: |
11 | Section 5. Death or incapacitation of dealer. |
12 | In the event of the death or incapacity of a dealer, the |
13 | supplier shall repurchase, at the option of the heir or |
14 | authorized representative of such person or stockholder, the |
15 | equipment, repair parts and specialized repair tools of the |
16 | dealer as if the supplier had terminated, canceled or failed to |
17 | renew the contract. The heir or authorized representative shall |
18 | have [120 days] one year from the date of the death of such |
19 | dealer or from the date such dealer is determined to be |
20 | incapacitated or becomes totally disabled, as applicable, to |
21 | exercise the option under this section. Nothing in this act |
22 | requires the repurchase of any equipment, repair parts and |
23 | specialized repair tools if the heir and supplier enter into a |
24 | new contract to operate the retail dealership. |
25 | Section 6. Repurchase of [unused specialized repair tools] |
26 | specialized support products required by |
27 | manufacturer. |
28 | (a) General rule.--A supplier shall repurchase, upon the |
29 | written request of a dealer, any specialized repair tool |
30 | purchased by the dealer pursuant to the requirements of the |
|
1 | supplier which remains unused for more than a 12-month period |
2 | after the dealer receives the same. The repurchase price payable |
3 | to the dealer under this section shall be the original cost to |
4 | the dealer plus a handling charge equal to 10% of such original |
5 | cost. A supplier shall repurchase at fair market value any |
6 | specific signage, data processing hardware, computer equipment, |
7 | communications equipment or software the supplier required the |
8 | dealer to acquire or purchase to satisfy the requirements of the |
9 | supplier. Fair market value of property subject to repurchase |
10 | pursuant to this section shall include the acquisition cost, |
11 | including any installation, shipping, handling, and set-up fees, |
12 | less straight line depreciation of such acquisition cost over |
13 | five years. |
14 | (b) Amount.--Specialized repair tools shall be |
15 | repurchased at a sum equal to 75% of the last published net |
16 | cost, including shipping, handling and set-up fees, of all |
17 | specialized repair tools previously purchased pursuant to |
18 | requirements of the supplier. The specialized repair tools must |
19 | be complete and in working condition and must have been |
20 | purchased within ten years prior to the date of notification of | <-- |
21 | termination of the dealer agreement. |
22 | Section 4. Section 9 of the act is repealed: |
23 | [Section 9. No coercion. |
24 | It shall be a violation for any supplier to require, attempt |
25 | to require, coerce or attempt to coerce any dealer in this |
26 | Commonwealth to order or accept delivery of any equipment or |
27 | repair parts not required by law which shall not have been |
28 | voluntarily ordered by the dealer.] |
29 | Section 5. The act is amended by adding sections to read: |
30 | Section 9.1. Violations of act. |
|
1 | It shall be a violation for any supplier: |
2 | (1) To mandate or coerce a dealer concerning | <-- |
3 | the opportunity to represent, purchase or sell |
4 | competitive equipment. |
5 | (2) To mandate or coerce a dealer to order or | <-- |
6 | accept delivery of equipment or repair parts not required |
7 | by law which have not been voluntarily ordered by the dealer |
8 | unless the equipment or repair parts are safety features |
9 | required by the supplier. |
10 | (3) To refuse a dealer the opportunity to participate in |
11 | the management or investment to acquire any other business. |
12 | (4) To refuse to deliver in reasonable quantities and |
13 | within a reasonable time, after receipt of the dealer's |
14 | order, to a dealer having a dealer agreement for the retail |
15 | sale of new equipment sold or distributed by the supplier, |
16 | equipment covered by the dealer agreement specifically |
17 | advertised or represented by the supplier to be available for |
18 | immediate delivery. The failure to deliver the equipment |
19 | shall not be considered a violation of this act if the |
20 | failure is due to prudent and reasonable restrictions on |
21 | extension of credit by the supplier to the dealer, an act of |
22 | God, work stoppage or delay due to strike or labor |
23 | difficulty, a bona fide shortage of materials, freight |
24 | embargo or other cause over which the supplier has no |
25 | control. |
26 | (5) To discriminate, directly or indirectly, in filling |
27 | an order placed by a dealer for retail sale or lease of new |
28 | equipment under a dealer agreement as between dealers of the |
29 | same product line. |
30 | (6) To discriminate, directly or indirectly, in price |
|
1 | between different dealers with respect to purchases of |
2 | equipment or repair parts of like quality, if the effect of |
3 | the discrimination may be to substantially lessen |
4 | competition; to tend to create a monopoly in a line of |
5 | commerce; or to injure, destroy or prevent competition with a |
6 | dealer that either grants or knowingly receives the benefit |
7 | of the discrimination. However, different prices may be |
8 | charged if: |
9 | (i) the differences are due to the cost of |
10 | manufacture, sale or delivery of the equipment or repair |
11 | parts; |
12 | (ii) the supplier can show that its lower price was |
13 | made in good faith to meet an equally low price of a |
14 | competitor; or |
15 | (iii) the supplier can show that the difference in |
16 | price is due to a volume-based incentive program or |
17 | volume-based discounts. |
18 | (7) To require a dealer to assent to a release, |
19 | assignment, novation, waiver or estoppel which would relieve |
20 | any person from liability imposed by this act. |
21 | Section 9.2. Warranty. |
22 | (a) General rule.--Warranty obligations include |
23 | product improvement programs, product upgrade programs and | <-- |
24 | recalls and warranty work. Warranty compensation shall include |
25 | compensation for diagnostic time, repair service time, parts and | <-- |
26 | a dealer's transportation costs of equipment to the dealership |
27 | for needed warranty repairs and the return of the equipment to |
28 | the customer. Transportation costs paid by the supplier must be |
29 | based upon the distance to the nearest in-line dealer from the |
30 | customer's location. Compensation and labor rate shall be at the |
|
1 | publicly posted shop labor rate. |
2 | (b) Payment of warranty claim.--Whenever a supplier |
3 | and a dealer enter into an agreement providing the |
4 | dealer's customer warranties, the supplier shall pay any |
5 | warranty claim made by the dealer for warranty parts or service |
6 | within 30 days after its receipt and approval. The supplier |
7 | shall approve or disapprove a warranty claim within 30 days |
8 | after its receipt. If a claim is not specifically disapproved in |
9 | writing within 30 days after its receipt, it is deemed to be |
10 | approved and payment shall be made by the supplier within 30 | <-- |
11 | days. The following apply: |
12 | (1) A dealer that performs warranty work as |
13 | provided for in this section shall be compensated for the | <-- |
14 | dealer's labor in an amount that is not less than the |
15 | reasonable and customary amount of time required to complete |
16 | the work, expressed in hours and fraction of hours, |
17 | multiplied by the dealer's posted hourly labor rate. |
18 | (2) A dealer that performs warranty work as |
19 | provided for in this section shall be compensated for | <-- |
20 | parts used in fulfilling the warranty work in accordance with |
21 | the manufacturer's stated warranty policy but in no case in |
22 | an amount that is less than the dealer's costs for the parts |
23 | plus 20%, plus all freight and handling charges applicable to |
24 | such parts, to reimburse the dealer's reasonable costs of |
25 | doing business and providing the warranty service on behalf |
26 | of the supplier. If the warranty work is provided on behalf | <-- |
27 | of the supplier on a product sold by a nonservicing dealer, |
28 | the compensation for parts used in fulfilling the warranty |
29 | work must be at an amount that is not less than the |
30 | supplier's suggested list price or dealer's cost plus a |
|
1 | minimum of 30%, whichever is greater, plus freight and |
2 | handling charges applicable to the parts. |
3 | (c) Indemnity.--If a supplier and a dealer enter into a |
4 | dealer agreement, the supplier shall indemnify and hold harmless |
5 | the dealer against any judgment for damages arising from breach |
6 | of warranty or rescission of the sale by the supplier as long as |
7 | the dealer has no independent liability for misstatement or |
8 | misrepresentation to the customer regarding the supplier's |
9 | product or product warranty. |
10 | Section 9.3. Remedies and enforcement. |
11 | The provisions of this act shall be supplemental to any |
12 | dealer agreement between the dealer and the supplier which |
13 | provides the dealer with greater protection. The dealer may | <-- |
14 | elect to pursue its contract remedy or the remedy provided by |
15 | State law, or both; and an election by the dealer to pursue such |
16 | remedies shall not bar its right to exercise any other remedies |
17 | that may be granted at law or in equity. If a supplier violates |
18 | this act, a dealer may bring an action against the supplier in a |
19 | court of competent jurisdiction for damages sustained by the |
20 | dealer as a consequence of the supplier's violation, including |
21 | consequential damages and incidental damages, court costs, |
22 | attorney fees and costs of arbitrators. The dealer also may be |
23 | granted injunctive relief against unlawful termination, |
24 | cancellation, nonrenewal or substantial change of competitive |
25 | circumstances. The remedies set forth in this section shall not |
26 | be deemed exclusive and shall be in addition to any other |
27 | remedies permitted by law. |
28 | Section 9.4. Waiver. |
29 | (a) Waiver of act void.--An attempted waiver of a provision |
30 | of this act shall be void. Any provision in a dealer agreement |
|
1 | that purports to elect the application of the law of a state |
2 | other than Pennsylvania shall be void. Any provision in a dealer |
3 | agreement that requires a dealer to pay attorney fees incurred |
4 | by a supplier shall be void. |
5 | (b) Waiver of right to trial by jury.--No supplier may |
6 | require a dealer to waive the right to a trial by jury as a |
7 | remedy to a supplier and dealer contract or agreement dispute. |
8 | Section 6. This act shall take effect immediately. |
|