| |
| PRIOR PRINTER'S NOS. 1415, 1863 | PRINTER'S NO. 2038 |
|
| |
| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
| |
| SENATE BILL |
|
| |
| |
| 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 | <-- |
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 | <-- |
|
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 | <-- |
19 | (B) a lump sum payment to the person, firm or | <-- |
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- | <-- |
29 | makes of equipment any of the following located in the same | <-- |
30 | dealership facilities: | <-- |
|
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. |
|
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 |
|
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 | <-- |
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 |
|
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 |
|
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 |
|
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: | <-- |
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: | <-- |
29 | Section 9.1. Unlawful acts by supplier. |
30 | (a) Unlawful coercive acts.--It shall be a violation for any | <-- |
|
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 |
|
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 |
|
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 |
|
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 |
|
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, |
|
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 |
|
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, |
|
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 | <-- |
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 | <-- |
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 | <-- |
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, |
|
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, | <-- |
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 | <-- |
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 |
|
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. |
|
1 | (b) Waiver of right to trial by jury.--No supplier may |
2 | Section 9.2. Waiver. | <-- |
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. | <-- |
|
