Bill Text: PA SB1169 | 2011-2012 | Regular Session | Amended


Bill Title: Further providing for definitions, for termination of dealer agreement and for death or incapacitation of dealer; repealing provisions relating to coercion; and providing for unlawful acts by supplier and for waiver.

Spectrum: Slight Partisan Bill (Republican 8-4)

Status: (Engrossed - Dead) 2012-04-04 - Referred to AGRICULTURE AND RURAL AFFAIRS [SB1169 Detail]

Download: Pennsylvania-2011-SB1169-Amended.html

  

 

PRIOR PRINTER'S NOS. 1415, 1863

PRINTER'S NO.  2038

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

1169

Session of

2011

  

  

INTRODUCED BY WAUGH, BAKER, SOLOBAY, SCHWANK, ALLOWAY, RAFFERTY, YAW, WOZNIAK, EICHELBERGER, FOLMER, VOGEL AND FERLO, JUNE 23, 2011

  

  

SENATOR CORMAN, APPROPRIATIONS, RE-REPORTED AS AMENDED, MARCH 26, 2012   

  

  

  

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 and for death or incapacitation of dealer;

10

repealing provisions relating to coercion; and providing for 

11

unlawful acts by supplier, for remedies and enforcement and

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12

for waiver.

13

The General Assembly of the Commonwealth of Pennsylvania

14

hereby enacts as follows:

15

Section 1.  Section 2 of the act of December 18, 1987

16

(P.L.412, No.86), known as the Pennsylvania Fair Dealership Law, 

17

is amended to read:

18

Section 2.  Definitions.

19

The following words and phrases when used in this act shall

20

have the meanings given to them in this section unless the

21

context clearly indicates otherwise:

22

"Construction equipment manufacturer."  A manufacturer of

 


1

construction, industrial, forestry, paving and mining equipment,

2

repair parts or specialized repair tools that does not

3

manufacture consumer or farming equipment either by itself or

4

through an affiliate.

5

"Consumer equipment."  Machinery designed and manufactured

6

primarily for household use.

7

"Current net price."  The price, applicable to an individual

8

dealer, listed in the printed price list or catalog or invoice

9

in use by the supplier on the date the dealer agreement is

10

terminated or canceled or has failed to be renewed.

11

"Dealer."  Any person, firm or corporation engaged primarily

12

in the business of retail sale or repair of equipment. The term

13

includes the heir or authorized representative of a person or

14

majority stockholder of a corporation operating as a dealer in

15

the event such person or stockholder dies or becomes

16

incapacitated. The term does not include a person, firm or

<--

17

corporation that complies with all of the following:

18

(1)  Has purchased new equipment from a single The term

<--

19

does not include:

20

(1)  A person, firm or corporation engaged in the

21

business of selling garden supplies, household repair or

22

maintenance products, including consumer equipment.

23

(2)  A person, firm or corporation that complies with all

24

of the following:

25

(i)  Has purchased new equipment from a single

<--

26

construction equipment manufacturer, constituting no less

27

than 75% of the person's, firm's or corporation's new

28

equipment, calculated on the basis of net cost.

29

(2)  Has an annual average sales volume in excess of 

<--

30

(ii)  Has an annual average sales volume in excess of

<--

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1

$100,000,000 over the seven-calendar-year period

2

immediately preceding the applicable determination date;

3

provided, however, the $100,000,000 threshold shall be

4

increased each year by an amount equal to the then-

5

current threshold multiplied by the percentage increase

6

in the index from January of the immediately preceding

7

calendar year to January of the current year.

8

(3)  Directly employs over 250 persons.

<--

9

(4)  Has a written agreement with a construction

10

(iii)  Directly employs over 250 persons.

<--

11

(iv)  Has a written agreement with a construction 

12

equipment manufacturer that requires the construction

13

equipment manufacturer to compensate the person, firm or

14

corporation for warranty labor costs either as:

15

(i)  a discount in the pricing of the equipment to

<--

16

(A)  a discount in the pricing of the equipment

<--

17

to the person, firm or corporation; or

18

(ii)  a lump sum payment to the person, firm or

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19

(B)  a lump sum payment to the person, firm or 

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20

corporation that is made within 90 days of the sale

21

of the construction equipment manufacturer's new

22

equipment.

23

"Dealer agreement."  An oral or written contract, franchise

24

agreement or security agreement between a dealer and supplier

25

whereby the dealer agrees to acquire from the supplier and to

26

maintain an inventory of equipment, repair parts or specialized

27

repair tools.

28

"Dual" or "dualing."  A dealership having two or more line-

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29

makes of equipment any of the following located in the same

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30

dealership facilities:

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1

(1)  Two or more line-makes of equipment.

2

(2)  Repair parts.

3

(3)  Warranty or repair services.

4

"Equipment."  Machines, implements of husbandry, golf, turf

5

and grounds maintenance machines, outdoor power equipment,

6

utility vehicles and machine attachments, accessories,

7

completing packages and bundles designed for or adapted and used

8

for agriculture, horticulture, floriculture, construction, 

9

livestock raising, silviculture, landscaping and grounds

10

maintenance, even though incidentally operated or used upon the

11

highways, including, but not limited to, tractors, farm

12

implements, loaders, backhoes, lawn mowers, rototillers, etc.,

13

and any business signs purchased by requirement of the supplier

14

which are less than five years old. The term shall not include[:

15

(1)  equipment manufactured solely for the purpose of

16

industrial construction; or

17

(2)]  all-terrain vehicles as defined in 75 Pa.C.S. §

18

7702 (relating to definitions).

19

"Farming equipment."  Machinery designed and used for

20

agricultural operations, including farm tractors, choppers,

21

balers, reapers, mowers, pickers, threshers, combines, plows,

22

harrows, planters and any other vehicles or machines primarily

23

designed for use as implements of husbandry or multipurpose

24

agricultural vehicles.

25

"Index."  The producer price index prepared by the United

26

States Department of Labor, Bureau of Labor Statistics, as it

27

relates to construction, mining and forestry equipment.

28

"Line-make."  Groups of equipment that are offered for sale,

29

lease or distribution under a common name, trademark, service

30

mark or brand name of the supplier of the same equipment.

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1

"Mining equipment."  Machinery designed and used in the

2

production process at a mine site, including off-highway mining

3

trucks, large-wheel loaders, large track-type tractors, large-

4

wheel dozers, mining motor graders, open bowl scrapers and

5

underground mining trucks.

6

"Net cost."  The amount paid by the dealer to the supplier,

7

plus the cost of freight, if any, incurred by the dealer[.], as

8

long as the manufacturer initiates the termination or

9

nonrenewal. The term does not include the cost of freight if the

10

dealer initiates the termination or nonrenewal.

11

"Nonservicing dealer."  A dealer that sells equipment but

12

does not provide parts and service.

13

"Paving equipment."  Machinery designed and used for asphalt

14

paving, including asphalt pavers, cold planers, asphalt

15

compactors, pneumatic compactors and rotary mixers.

16

"Repair parts."  All parts, component parts and superseded

17

parts related to a sale and related to repair of equipment. The

18

term includes bundled parts, which means several related parts,

19

components or accessories, bound together as one inclusive item

20

or priced as an inclusive item.

21

"Site-control agreement" or "exclusive use agreement."  An

22

agreement that, regardless of its name, title, form or the

23

parties entering into it, has the effect of:

24

(1)  controlling the use and development of the premises

25

of a dealer's facility;

26

(2)  requiring a dealer to establish or maintain an

27

exclusive dealership facility on the premises of a dealer's

28

facility;

29

(3)  restricting the power or authority of the dealer or

30

the lessor if the dealer leases the dealership premises to

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1

transfer, sell, lease, develop, redevelop or change the use

2

of the dealership premises, whether by sublease, lease,

3

collateral pledge of lease, right of first refusal to

4

purchase or lease, option to purchase or lease or any similar

5

arrangement; or

6

(4)  preventing the dealer from dualing a competitive

7

line-make of equipment at the same facility.

8

"Specialized repair tools."  Tools and equipment, including

9

diagnostic equipment, designed to be used or useful only in the

10

maintenance and repair of equipment.

11

"Supplier."  [A manufacturer of equipment or repair parts or

12

a wholesaler or distributor of equipment or repair parts who has

13

a valid existing contract with a manufacturer of equipment or

14

repair parts, including the successors or assigns of such

15

manufacturer, wholesaler or distributor.] A distributor,

16

manufacturer or wholesaler of equipment, repair parts or

17

specialized repair tools who enters into a dealer agreement with

18

a dealer.

19

Section 2.  Section 3(a), (c) and (f) of the act are amended

<--

20

and the section is amended by adding a subsection to read:

21

Section 2.  Sections 3(c) introductory paragraph and (f) and

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22

5 of the act are amended to read:

23

Section 3.  Termination of dealer agreement.

24

(a)  General provisions.--

<--

25

(1)  A dealer may terminate a dealer agreement with good

26

cause. A dealer shall give the supplier at least 30 days' 

27

prior notice via registered letter mailed to the last known

28

address of the supplier.

29

(2)  It shall be unlawful for a supplier to terminate,

30

cancel or fail to renew a dealer agreement or substantially 

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1

change the competitive circumstances of a dealer agreement

2

without good cause except as provided in subsection (b) or

3

(c).

4

* * *

5

(c)  Other exceptions.--[Subject to the provisions of this

<--

6

subsection, a supplier may terminate, cancel or fail to renew a

7

dealer agreement under such conditions as may be provided for in

8

[the] a dealer agreement that complies with this act. When a

<--

9

dealer agreement is terminated or canceled or has failed to be

10

renewed by the supplier under a condition provided for in the

11

dealer agreement, other than a condition set forth in subsection

12

(b), the] The supplier, upon written request of the dealer,

<--

13

shall pay to the dealer, or credit to the dealer's account if

14

the dealer has outstanding any sums owing the supplier:

15

(1)  A sum equal to 100% of the net cost of all equipment

<--

16

that the dealer purchased from the supplier and not

17

previously sold and put into regular use or service preceding

18

notification by either party of intent to cancel, terminate

19

or fail to renew the dealer agreement.

20

(2)  A sum equal to 100% of the current net price of

21

repair parts, including superseded repair parts, previously

22

purchased from the supplier and 75% of the current net price

23

of specialized repair tools previously purchased pursuant to

24

the requirements of the supplier and held by the dealer on

25

the date of termination, cancellation or failure to renew the

26

dealer agreement. In addition, the supplier shall pay the

27

dealer, or credit to the dealer's account if the dealer has

28

outstanding any sums owing the supplier, a sum equal to 5% of

29

the current net price of all repair parts, excluding incoming

30

freight cost, and specialized repair tools returned to the

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1

supplier to compensate the dealer for the inventory, packing

2

and loading of the same to the supplier, provided that the

3

supplier may perform such inventory, packing and loading in

4

lieu of paying 5% to the dealer. Upon the payment or

5

allowance of credit to the dealer's account, as applicable,

6

in the sum required by this section, all of the dealer's

7

title and interest in and to the equipment, repair parts and

8

specialized repair tools shall pass to the supplier, and the

9

supplier shall be entitled to the possession of the same.

10

Payments or allowance of credit to the dealer, as applicable,

11

required by this section shall be made no later than 90 days

12

after such termination, cancellation or discontinuance or 60

13

days after the supplier's receipt of the equipment, repair

14

parts or specialized repair tools.

15

(3)  In the event a dealer terminates a dealer agreement,

16

the obligation of the supplier to repurchase equipment,

17

repair parts and specialized repair tools shall be governed

18

by the terms and conditions then in effect in the dealer

19

agreement between the supplier and the dealer and not by the

20

provisions of this act.

21

* * *

22

(f)  Deficiencies may be cured.--Except for termination,

23

cancellation or discontinuance for reasons set forth in

24

subsection (b)(3) through (7), the supplier shall allow the

25

dealer no less than [60] 90 days to cure the deficiencies set

26

forth in the notice required under subsection (e). Any such time

27

provided to the dealer to cure deficiencies shall be calculated

28

from the date of receipt of notice.

29

(g)  Definition.--As used in this section, the term "good

<--

30

cause" means the failure by a dealer to substantially comply

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1

with the requirements imposed upon the dealer by the dealer

2

agreement, as long as the requirements are not different from

3

requirements imposed on other dealers of the same size,

4

geographic region and market demographics, either by their terms

5

or in the manner of their enforcement.

6

Section 3.   Section 5 of the act is amended to read:

7

Section 5.  Death or incapacitation of dealer.

8

In the event of the death or incapacity of a dealer, the

9

supplier shall repurchase, at the option of the heir or

10

authorized representative of such person or stockholder, the

11

equipment, repair parts and specialized repair tools of the

12

dealer as if the supplier had terminated, canceled or failed to

13

renew the contract. The heir or authorized representative shall

14

have [120 days] one year from the date of the death of such

15

dealer or from the date such dealer is determined to be

16

incapacitated or becomes totally disabled, as applicable, to

17

exercise the option under this section. Nothing in this act

18

requires the repurchase of any equipment, repair parts and

19

specialized repair tools if the heir and supplier enter into a

20

new contract to operate the retail dealership.

21

Section 4 3.  Section 9 of the act is repealed:

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22

[Section 9.  No coercion.

23

It shall be a violation for any supplier to require, attempt

24

to require, coerce or attempt to coerce any dealer in this

25

Commonwealth to order or accept delivery of any equipment or

26

repair parts not required by law which shall not have been

27

voluntarily ordered by the dealer.]

28

Section 5 4.  The act is amended by adding sections to read:

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29

Section 9.1.  Unlawful acts by supplier.

30

(a)  Unlawful coercive acts.--It shall be a violation for any

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1

supplier, or any representative, officer or agent whatsoever of

2

such supplier to require, attempt to require, coerce or attempt

3

to coerce any dealer in this Commonwealth to:

4

(a)  Unlawful acts.--It shall be a violation for any supplier

<--

5

or any representative, officer or agent of the supplier to cause

6

or require any dealer, prospective dealer or owner of an

7

interest in a dealership or facility in this Commonwealth to:

8

(1)  Enter into a site-control agreement or exclusive use

9

agreement.

10

(2)  Provide for equipment repair parts or warranty or

11

repair services to be sold or provided in separate or

12

exclusive facilities.

13

(1) (3)  Order or accept delivery of any equipment, part

<--

14

or accessory thereof, equipment or any other commodity not

15

required by law which shall not have been voluntarily ordered

16

by the dealer, except that this paragraph is not intended to

17

modify or supersede any terms or provisions of the dealer

18

agreement requiring dealers to market a representative line

19

of equipment which the supplier is publicly advertising.

20

(2) (4)  Order or accept delivery of any equipment with

<--

21

special features, accessories or equipment not included in

22

the list price of such equipment as publicly advertised by

23

the supplier.

24

(3)  Participate monetarily in an advertising campaign or

<--

25

contest or to purchase unnecessary or unreasonable quantities

26

of any promotional materials, training materials, showroom or

27

other display decorations or materials at the expense of the

28

dealer.

29

(4)  Enter into any agreement with the supplier or to do

30

any other act prejudicial to the dealer by threatening to

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1

terminate or not renew a dealer agreement or any other

2

contractual agreement existing between the dealer and the

3

supplier, except that this paragraph is not intended to

4

preclude the supplier from insisting on compliance with the

5

reasonable terms or provisions of the dealer agreement or any

6

other contractual agreement and notice in good faith to any

7

dealer of the dealer's violation of such terms or provisions

8

shall not constitute a violation of this act.

9

(5)  Change the capital structure of the dealer or the

10

means by or through which the dealer finances the operation

11

of the dealership, provided that the dealer at all times

12

meets any reasonable capital standards determined by the

13

supplier in accordance with uniformly applied criteria, and

14

also provided that no change in the capital structure shall

15

cause a change in the principal management or have the effect

16

of a sale of the dealership without the consent of the

17

supplier. The consent shall be granted or denied within 60

18

days of receipt of a written request from the dealer.

19

(6)  Refrain from participation in the management of,

20

investment in or the acquisition of any other line-make of

21

equipment or related products. This paragraph does not apply

22

unless the dealer maintains a reasonable line of credit for

23

each line-make of equipment, the dealer remains in compliance

24

with the reasonable terms of the dealer agreement and any

25

reasonable facilities requirements of the supplier, and no

26

change is made in the principal management of the dealer. The

27

reasonable facilities requirements shall not include any

28

requirement that a dealer establish or maintain exclusive

29

facilities, personnel or display space when such requirements

30

or any of them would be unreasonable in light of economic

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1

conditions and would not otherwise be justified by reasonable

2

business considerations. Before the addition of a line-make

3

to the dealership facilities, the dealer shall first request

4

the consent of supplier if required by the dealer agreement.

5

Any decision of the supplier with regard to dualing of two or

6

more line-makes shall be rendered within 60 days of receipt

7

of a written request from the dealer. Failure on the part of

8

the supplier to timely respond to a dualing request shall be

9

deemed an approval of the dealer's request. No supplier shall

10

limit or restrict the addition of a line-make to the

11

dealership facilities where the dealer maintains a reasonable

12

line of credit for that supplier's like-make of equipment and

13

the dealer remains in compliance with the reasonable terms of

14

the dealer agreement and any reasonable facilities

15

requirements of a supplier.

16

(7)  Prospectively assent to a release, assignment,

17

novation, waiver or estoppel which would relieve any person

18

from liability to be imposed by this act or to require any

19

controversy between a dealer and a supplier to be referred to

20

any person other than the duly constituted courts of this

21

Commonwealth or the United States, if such referral would be

22

binding upon the dealer. A dealer and the supplier, by

23

themselves or through their respective counsel, are permitted

24

to agree to execute a written agreement or to arbitrate in a

25

binding or nonbinding manner after a controversy arises.

26

(5)  Except as provided under section 3(b), to enter into

<--

27

any agreement by requiring the waiver of any provision of

28

this act or to do any other act prejudicial to the dealer by

29

threatening to terminate or not renew a dealer agreement or

30

any other contractual agreement existing between the dealer

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1

and the supplier.

2

(8) (6)  Expand, construct or significantly modify

<--

3

facilities without assurances that the supplier will provide

4

a reasonable supply of equipment within a reasonable time so

5

as to justify such an expansion in light of the market and

6

economic conditions or require a separate facility for the

7

sale or service of a line-make of equipment if the market and

8

economic conditions do not clearly justify the separate

9

facility.

10

(b)  Violations.--It shall be a violation for any supplier,

11

or any representative, officer or agent whatsoever of such

12

supplier under the act to:

13

(1)  Delay, refuse or fail to deliver equipment or parts

14

or accessories in a reasonable time and in reasonable

15

quantity relative to the dealer's facilities and sales

16

potential after acceptance of an order from a dealer having a

17

dealer agreement for the retail sale of any equipment sold or

18

distributed of an order from a dealer having a dealer

<--

19

agreement for the retail sale of any equipment sold or

20

distributed by the supplier as are covered by such dealer

21

agreement, if such equipment, parts or accessories are

22

publicly advertised as being available for immediate

23

delivery. There is no violation if the failure is caused by

24

acts or causes beyond the control of the supplier.

25

(2)  Unfairly discriminate among its dealers with respect

26

to warranty, recall, service contract or any other service

27

required by the supplier with regard to labor or parts

28

reimbursement.

29

(3)  Unreasonably withhold consent to the sale, transfer

30

or exchange of the dealership to a qualified buyer capable of

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1

being a dealer in this Commonwealth who meets the supplier's

2

reasonable requirements for appointment as a dealer.

3

(4)  Arbitrarily and capriciously Unreasonably withhold

<--

4

consent to the relocation of an existing dealership.

5

(5)  Fail to respond approve or deny in writing to a

<--

6

request for consent as specified in paragraphs (3) and (4)

7

within 60 days of receipt of a written request on the forms,

<--

8

if any, generally utilized by a supplier for such purposes

9

and containing the information required. The failure to

10

respond shall be deemed to be approval of the request. A

11

supplier shall acknowledge in writing to the applicant the

12

receipt of the forms, and, if the supplier requires

13

additional information to complete its review, the supplier

14

shall notify the applicant within 15 days of the receipt of

15

the forms. If the supplier fails to request additional

16

information from the applicant within 15 days after receipt

17

of the initial forms, the 60-day time period for approval

18

shall be deemed to run from the initial receipt date,

19

otherwise, the 60-day time period for approval shall run from

20

receipt of the supplemental requested information. In no

21

event shall the total time period for approval exceed 75 days

22

from the date of the receipt of the initial forms.

23

(6)  Prevent or attempt to prevent by contract or

24

otherwise any dealer from changing the executive management

25

control of the dealer unless the supplier, having the burden

26

of proof, can show that such change of executive management

27

will result in executive management or control by a person or

28

persons who are not of good moral character or who do not

29

meet reasonable, preexisting, and, with consideration given

30

to the volume of sales and service of the dealership,

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1

uniformly applied minimum business experience standards.

2

Where the supplier rejects a proposed change in executive

3

management control, the supplier shall give written notice of

4

its reasons to the dealer within 60 days of notice to the

5

supplier by the dealer of the proposed change, otherwise, the

6

change in the executive management of the dealer shall be

7

presumptively deemed approved.

8

(7)  Offer in connection with a sale of equipment to the

9

Federal Government, the Commonwealth or any political

10

subdivision thereof any discounts, refunds or any other type

11

of inducement to any dealer without making the same offer or

12

offers available to all other of its dealers within this

13

Commonwealth. This paragraph shall not be construed to

14

prevent the offering of incentive programs or other discounts

15

if the discounts are equally available to all dealers in this

16

Commonwealth on a proportionally equal basis.

17

(8)  Fail to indemnify its dealers, notwithstanding the

18

terms of any dealer agreement, against any judgment for

19

damages or settlement approved in writing by the supplier,

20

including, but not limited to, court costs and reasonable

21

attorney fees of the dealer, arising out of complaints,

22

claims or lawsuits, including, but not limited to, strict

23

liability, negligence, misrepresentation, express or implied

24

warranty or rescission of the sale as defined in 13 Pa.C.S. §

25

2608 (relating to revocation of acceptance in whole or in

26

part) to the extent that the judgment or settlement relates

27

solely to the alleged defective or negligent functions by the

28

supplier beyond the control of the dealer.

29

(9) (6)  Sell or exchange with a second or final stage

<--

30

supplier, retail consumer or end user except through a

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1

licensed dealer. This paragraph shall not apply to supplier

2

sales of equipment to the Federal Government, charitable

3

organizations and employees of the supplier.

4

(10) (7)  Modify a dealer agreement during the term of

<--

5

the dealer agreement or upon its renewal if the modification

6

substantially and adversely affects the dealer's rights,

7

obligations, investment or return on investment without

8

giving 60 days' written notice of the proposed modification

9

to the dealer unless the modification is required by law or

10

court order. The supplier shall provide in the written notice

11

the good cause and relevant factors of the proposed dealer

12

agreement modification, including, but not limited to:

<--

13

(i)  The reasons for the proposed modification.

14

(ii)  Whether the proposed modification is applied to

15

or affects all dealers in a nondiscriminatory manner.

16

(iii)  Whether the proposed modification will have a

17

substantial and adverse effect upon the dealer's

18

investment or return on investment.

19

(iv)  Whether the proposed modification is in the

20

public interest.

21

(v)  Whether the proposed modification is necessary

22

to the orderly and profitable distribution of products by

23

the supplier.

24

(vi)  Whether the proposed modification is offset by

25

other modifications beneficial to the dealer.

26

(11)  Fail or refuse to offer to its dealers all new

27

model equipment manufactured for that line-make or require

28

any of its dealers to pay an unreasonable fee, unreasonably

29

remodel or renovate the dealer's existing facilities,

30

unreasonably purchase or construct a new facility,

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1

unreasonably purchase parts, supplies, tools, equipment,

2

operational services, other merchandise or unreasonably

3

participate in training programs in order to receive any

4

equipment, parts or accessories. It shall not be a violation

5

of this paragraph if the supplier fails to supply dealers

6

with equipment, parts or accessories due to circumstances

7

beyond the control of the supplier, including, but not

8

limited to, strike or labor difficulty, shortage of

9

materials, freight embargo or temporary lack of capacity.

10

(12) (8)  Operate a system for the allocation of

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11

equipment which is not reasonable or fair to a dealer. Upon

12

the written request of any of its dealers, a supplier shall

13

disclose to the dealer the method on which the equipment is

14

allocated among the dealers of the same line-make. The

15

supplier has the burden of establishing the fairness of its

16

allocation.

17

(13) (9)  Own, operate or control, either directly or

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18

indirectly, any equipment warranty facility. Nothing is this

19

subsection shall prohibit any supplier from owning, operating

20

or controlling any warranty facility for warranty repairs on

21

equipment owned or operated by the supplier.

22

(14)  Compel a dealer through a finance subsidiary of the

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23

supplier to agree to unreasonable operating requirements or

24

to directly or indirectly terminate a dealer through the

25

actions of a finance subsidiary of the supplier. This

26

paragraph shall not limit the right of a financing entity to

27

engage in business practices in accordance with the trade of

28

retail or wholesale equipment financing.

29

(15)  Use any subsidiary corporation, affiliated

30

corporation or any other controlled corporation, partnership,

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1

association, entity or person to accomplish what would

2

otherwise be illegal conduct under this act on the part of

3

the supplier.

4

(16) (10)  Vary the price charged to any of its dealers,

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5

which has the effect of causing a difference in the price of

6

any similarly equipped equipment to its dealers or to the

7

ultimate purchaser. This paragraph shall not be construed to

8

prevent the offering of incentive programs or other discounts

9

if the incentive or discounts are available to all competing

10

dealers of the same line-make in this Commonwealth on a

11

proportionately equal basis.

12

(17)  (i)  Directly or indirectly condition any of the

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13

following actions on a dealer, prospective dealer or

14

owner of an interest in a dealership or facility to enter

15

into a site-control agreement or exclusive use agreement:

16

(A)  awarding of a dealership to a prospective

17

dealer;

18

(B)  adding of a line-make or dealership to an

19

existing dealer's facility;

20

(C)  renewal of an existing dealer's dealer

21

agreement;

22

(D)  approving of the relocation of an existing

23

dealer's facility; or

24

(E)  approving of the sale or transfer of a

25

dealer's ownership of a dealership or facility.

26

(ii)  Nothing in this paragraph prohibits a dealer,

27

prospective dealer or owner of an interest in a

28

dealership or facility from voluntarily entering into

29

such an agreement for other consideration. However, a

30

provision contained in an agreement which is not

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1

voluntarily entered into by a dealer, prospective dealer

2

or owner of an interest in a dealership or facility on or

3

after the effective date of this paragraph that is

4

inconsistent with the provisions of this section shall be

5

a violation of this act.

6

Section 9.2.  Remedies and enforcement.

7

The provisions of this act shall be supplemental to any

8

dealer agreement between the dealer and the supplier which

9

provides the dealer with greater protection. The dealer may 

10

elect to pursue its contract remedy or the remedy provided by

11

State law, or both; and an election by the dealer to pursue such

12

remedies shall not bar its right to exercise any other remedies

13

that may be granted at law or in equity. If a supplier violates

14

this act, a dealer may bring an action against the supplier in a

15

court of competent jurisdiction for damages sustained by the

16

dealer as a consequence of the supplier's violation, including

17

consequential damages and incidental damages, court costs,

18

attorney fees and costs of arbitrators. The dealer also may be

19

granted injunctive relief against unlawful termination,

20

cancellation, nonrenewal or substantial change of competitive

21

circumstances. The remedies set forth in this section shall not

22

be deemed exclusive and shall be in addition to any other

23

remedies permitted by law.

24

Section 9.3.  Waiver.

25

(a)  Waiver of act void.--An attempted waiver of a provision

26

of this act shall be void. Any provision in a dealer agreement

27

that purports to elect the application of the law of a state

28

other than Pennsylvania shall be void. Any provision in a dealer

29

agreement that requires a dealer to pay attorney fees incurred

30

by a supplier shall be void.

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1

(b)  Waiver of right to trial by jury.--No supplier may

2

Section 9.2.  Waiver.

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3

No supplier may require a dealer to waive the right to a

4

trial by jury as a remedy to a supplier and dealer contract or

5

agreement dispute.

6

Section 6 5.  This act shall take effect immediately.

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