PENNSYLVANIA LEGAL UPDATE
WINTER 2002 ISSUE

AUTOMOBILE LEMON LAW

The Pennsylvania Automobile Lemon Law applies to any new car purchased and registered in Pennsylvania that is used or bought for personal, family, or household purposes. The law does not cover motorcycles, motor homes, or off-road vehicles. It does not cover leased cars. It protects car buyers only.

Under the Lemon Law, a manufacturer of a new car must repair without charge any "nonconformity" that occurs (1) within a period of one year following the actual delivery of the vehicle to the buyer, (2) within the first 12,000 miles of use, or (3) during the term of the warranty. A "nonconformity" means any defect or condition that substantially impairs the use, value, or safety of the car and does not conform to the manufacturer's express warranty. Nonconformities even include defects that cannot be repaired and those that render the car worthless.

To comply with the Lemon Law, the buyer must deliver the car to an authorized dealer in Pennsylvania. If the buyer is unable to physically return the car due to the nonconformity, written notice to the manufacturer is sufficient. The manufacturer may then service or repair the car at the owner's location or pick it up for service and repair. Each time the car is returned from being serviced or repaired, the manufacturer or dealer must provide to the buyer a statement itemizing all work performed on the car. When a new car is delivered to the same dealer for the second time for repair of the same nonconformity, the dealer must notify the manufacturer of the existence of the nonconformity within seven days of such delivery.

If a manufacturer fails to repair the car, the manufacturer must, at the option of the buyer, replace the car with a comparable car of equal value or accept the return of the car from the buyer and refund the full purchase price. Once the manufacturer has tried to repair the same nonconformity three times and the nonconformity still exists, or once the car is out of service by reason of any nonconformity for a total of 30 or more calendar days, the buyer may elect a refund of the purchase price.

A buyer who has abused, neglected, modified, or altered a new car cannot collect under the Lemon Law. Once a car is returned to a dealer or manufacturer under the Lemon Law, it may not be resold unless the manufacturer provides the same express warranty it provided to the original buyer, except that such warranty need only last for 12,000 miles or 12 months, whichever is earlier. If a new car has been returned because of a nonconformity resulting in a complete failure of the braking or steering system, it may not be resold in Pennsylvania.

Car buyers who have to sue to enforce their Lemon Law rights must sue the manufacturer, not the dealership. If the manufacturer has established an informal dispute settlement procedure, the buyer must go through the dispute settlement procedure before suing. The procedure must be nonbinding, and the buyer may sue if not satisfied.

If you have a new car that may be impaired by a "nonconformity," be sure to comply with all of your obligations under the Lemon Law. If you do not maintain the service schedule set out in your warranty documents, you could be found to have abused or neglected the car. Responsible dealers are protected by the ultimate liability of the manufacturer and are aware of the Lemon Law. Addressing nonconformities with your dealer during the period of the Lemon Law's protection is essential to preserving your rights.

DO YOU HAVE A POWER OF ATTORNEY?

A power of attorney gives someone designated by you broad authority to manage your property, money, and affairs. Especially useful if you are temporarily or permanently disabled, a properly drafted, valid power of attorney permits someone you trust to avoid court proceedings and to take over your finances smoothly.

The person you appoint is called your "attorney in fact" and need not be an attorney at all. Different from an "attorney at law," an attorney in fact is a person you trust and to whom you give the power to act for you.

Your power of attorney can be tailored to your preferences. It may be effective immediately, or it may be drafted to go into effect only upon your disability or incapacity. You can permit your attorney in fact to engage in any and all financial transactions or you may specifically limit the scope of his or her authority. You may give your attorney in fact the authority to make medical decisions, authorize surgery, or enter into agreements for your admission to nursing care or other facilities. You can decide whether your attorney in fact can borrow money in your name, enter your safe-deposit box, manage your government benefits, or sell your real estate.

It is sometimes wise to give an attorney in fact the broadest possible powers since most powers of attorney are used only after the grantor becomes disabled or incapacitated. A power of attorney is a significant document and therefore it should be drafted thoughtfully and reviewed periodically. If you do not have a power of attorney, or have not reviewed yours for some time, you should speak to your most trusted friend or family member and consider taking care of this important detail soon.

LIGHTERS CAN BE DANGEROUS TO CHILDREN

Disposable butane lighters can be dangerous products in the hands of children. Recently, the Pennsylvania Superior Court found that manufacturers who make disposable butane lighters without child-resistant safety features may be sued by people injured in fires started by children using those lighters.

There are three elements in such a products liability action: (1) the product must be defective; (2) the defect must be a substantial factor in causing the injury; and (3) the defect must exist at the time the product left the defendant's control. A defect can be shown in one of two ways. First, a plaintiff can prove a defect if the product or one of its components had a breakdown (a "manufacturing defect"). Second, a plaintiff can prove a case by demonstrating that the design of the product resulted in an unreasonably dangerous product (a "design defect"). The Pennsylvania Superior Court found that butane lighters without safety features may qualify as dangerously designed products.

The suit arose from an apartment fire started by a two-year-old who found an old disposable butane lighter in his mother's purse. The sole surviving family member claimed that the lighter was designed defectively. Because the lighter used by the child was manufactured before federal safety regulations were issued in 1994, it was not made or sold in violation of federal safety laws. Nevertheless, the court found that the remedies of the products liability law were available to the survivor.

The Pennsylvania court emphasized that designers, manufacturers, and distributors of disposable butane lighters have been well aware, since at least the early 1970s, that there was a potential serious hazard of catastrophic injury and death, particularly to the young, as a result of children using or playing with disposable butane lighters. For many years prior to the passage of the federal safety regulations, it was technologically, commercially, and economically feasible to manufacture and distribute a reasonably designed child-resistant lighter at only a nominal additional cost. While adult purchasers can be expected to avoid the dangers posed by lighters, a substantial risk of injury to children exists since children have a natural curiosity about fire and a desire to play with the lighters. Thus, the court found that the danger posed by the design was of the gravest kind and that the likelihood that the danger would occur, due to the nature of children and the product involved, was substantial and known to the manufacturers.

The principles of products liability law are complex and seek to balance the consumer's entitlement to safe products against the market's need for product innovation. Where sophisticated products cannot be made safer without considerable expense, or where it is less likely that the product will cause injuries, product liability may be denied by the courts. However, where it is cheap and easy to make a product much safer, the law expects manufacturers to do so.

CHILD SUPPORT MAY INCLUDE PRIVATE SCHOOL TUITION

A Pennsylvania parent may be ordered to pay private school tuition as part of a child support order if the court determines that the child has a reasonable need for private tuition. Like day-care expenses and uninsured medical costs, the responsibility for private school tuition is assigned to each parent in proportion to the parties' net incomes.

A private school education may be a "reasonable need" for a child if the child will benefit from private schooling and if private schooling is consistent with the family's standard of living and station in life before the separation. In the eyes of the courts, parents have the legal duty to give their children the advantages they can afford. The court assesses each parent's financial status and does not rely upon the parent's preferences for financial priorities. This is particularly true when it appears that a parent's "frugal inclinations" may unfairly limit fair expectations.

Pennsylvania courts have overridden the spending preferences of separated, support-paying parents, noting that the desire to live during the marriage in a fashion designed to reduce expenditures and accumulate wealth cannot be a basis for depressing the living standard of the family. The critical factor in determining the standard of living available to a family is the financial circumstances of the support-paying parent. Where children have a history of private school attendance prior to their parents' separation, it is even more likely that the court will find private schooling reasonable and affordable.

PARENTAL LIABILITY

Parents are not generally liable for the negligence of their children. Parents do have a duty to use reasonable care to control their children when they know, or should know, of the necessity to exercise control and if they have the ability and the opportunity to exercise such control at the time it is needed. In several recent cases, Pennsylvania courts have examined parents' liability to people injured by children's use of pellet or air guns.

Air guns, considered by some parents to be suitable for children's use, fire pellets that can cause serious injuries. Where parents share custody, the parent with physical custody of the child can be held legally liable when the child injures a person with an air gun. If, however, the noncustodial parent has provided the child with an air gun without adequately communicating with the other parent about the need for supervision, the noncustodial parent may be liable even for incidents that occur during the other parent's custodial time. Where both parents reside together, both can be held liable if they do not carefully supervise the child when the gun is used.

Whatever the custodial arrangement, parents are never automatically held liable for a child's negligence. Parental liability can only flow from a parent's failure to supervise when the parent had reason to know supervision was clearly necessary. In the cases involving air guns, the courts' extension of liability to parents is based on a finding that reasonable, prudent parents realize that injuries can easily result from a child's unsupervised use of a dangerous weapon.

Parents can also be liable for the negligent driving of their children. A parent is held liable if he or she "negligently entrusts" a car to the child. Negligent entrustment of a car occurs when the parent has some actual knowledge that the child is intoxicated or otherwise incapable of safe driving and, despite that knowledge, gives the child permission to drive. "Generalized misgivings" about a child's driving habits are not sufficient to shift liability to a parent. A parent is only liable for ignoring or disregarding specific knowledge of facts relating to the child's inability to drive on the occasion in question. Minors are independently legally responsible for their own driving. Their parents can be sued only if some specific parental negligence can be identified.

Minors can be sued directly for negligent conduct of any kind. When minors are sued, their parents have some financial responsibility to contribute toward any damages awarded. When damages are awarded to a person injured by a child, the child's custodial parents are responsible in each incident for a maximum of $1,000 for each injured person or $2,500 total per incident. Any damages awarded against a minor over these amounts cannot be collected from the child's parents. Despite these limitations of law, it is wise to make sure that your automobile and home insurance policies properly identify the children in your custody. Most of the incidents that lead to litigation against minors can be covered by a well-planned policy. Whenever children are permitted to engage in dangerous activities, parental supervision is a must.

WORKERS' COMPENSATION

In workers' compensation disputes, courts sometime struggle to determine whether an employee was actually in the course and scope of employment when the injury occurred. For example, an employee of a rural Pennsylvania university left work after a winter snowfall and found piles of snow in the parking lot. A truck parked next to the employee's car was so close that it prevented her from entering her car on the driver's side. Instead, she entered from the passenger side and injured her back when she crossed over the center console climbing into the driver's seat.

Generally, an employee who is injured while not actively engaged in work activities still is entitled to workers' compensation benefits if the employee can prove three factors. First, the injury must have occurred on the employer's premises. Second, it must have occurred at a time when the employee had to be at the work premises. Third, the injury must have been caused by the condition of the premises or by the operation of the employer's business.