PRINTER'S NO. 2130
No. 1685 Session of 2005
INTRODUCED BY J. EVANS, THOMAS, BEBKO-JONES, BELARDI, BELFANTI,
CALTAGIRONE, CAPPELLI, CREIGHTON, FABRIZIO, GERGELY, GOOD,
GOODMAN, HARHAI, HARRIS, JAMES, KILLION, NAILOR, PHILLIPS,
PICKETT, PYLE, RAPP, SHANER, STABACK, SURRA, E. Z. TAYLOR,
TIGUE AND YOUNGBLOOD, JUNE 8, 2005
REFERRED TO COMMITTEE ON COMMERCE, JUNE 8, 2005
AN ACT
1 Relating to the rights of purchasers of assistive technology
2 devices.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Short title.
6 This act shall be known and may be cited as the Assistive
7 Technology Device Warranties Act.
8 Section 2. Definitions.
9 The following words and phrases when used in this act shall
10 have the meanings given to them in this section unless the
11 context clearly indicates otherwise:
12 "Assistive device dealer." A person or entity that is in the
13 business of selling assistive devices, including a manufacturer
14 who sells assistive technology devices directly to consumers.
15 "Assistive device lessor." A person or entity that leases an
16 assistive device to a consumer or who holds the lessor's rights
1 under a written lease.
2 "Assistive technology device," "assistive device" or
3 "device." A new device, including a demonstrator, that a
4 consumer purchases or accepts transfer of in this Commonwealth
5 which is used for a major life activity or any other assistive
6 device that enables a person with a disability to communicate,
7 see, hear or maneuver. The term includes, but is not limited to:
8 (1) A hearing aid, telephone communication device for
9 the deaf (TTD/TTY), assistive listening device, visual and
10 audible signal system and other aid that enhances an
11 individual's ability to hear.
12 (2) A voice-synthesized computer module, optical
13 scanner, talking software, Braille printer and other device
14 that enhances a sight-impaired individual's ability to
15 communicate.
16 "Authorized dealer." An assistive device dealer that has
17 within a specified geographic area an exclusive distribution
18 arrangement with any person or entity that manufactures or
19 assembles assistive devices or is designated by the person or
20 entity that manufactures or assembles assistive devices to
21 repair or accept for repair assistive devices.
22 "Collateral costs." Expenses incurred by a consumer in
23 connection with the repair of a nonconformity, including the
24 reasonable costs of obtaining an alternative assistive device.
25 "Consumer." A person with a disability as defined in the
26 Americans With Disabilities Act of 1990 (Public Law 101-336, 42
27 U.S.C. § 12102 et seq.) or that person's legal representative
28 who has purchased an assistive device from an assistive device
29 dealer or manufacturer for purposes other than resale, to whom
30 the assistive device is transferred for purposes other than
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1 resale, if the transfer occurs before the expiration of any
2 warranty established by this act or who leases a new assistive
3 device from an assistive device lessor under a written lease.
4 The term includes an entity that purchases or leases an
5 assistive device using Federal or State funds for the use of a
6 person with a disability, insurer or self-insurer which
7 purchases or leases an assistive device for the use of a person
8 with a disability.
9 "Demonstrator." An assistive device used primarily for the
10 purpose of demonstration to the public.
11 "Manufacturer." A person or entity that manufactures or
12 assembles assistive devices and any agent of that person or
13 entity, including an authorized dealer, an importer, a
14 distributor, factory branch, distributor branch and any
15 warrantor of the manufacturer's assistive device. The term does
16 not include a professional who fabricates without charge an
17 assistive device for use in the course of treatment.
18 "Nonconformity." A condition or defect that significantly
19 impairs the use, value, function or safety of an assistive
20 device or any of its components but does not include a condition
21 or defect of the assistive device that is the result of:
22 (1) abuse, misuse or neglect by a consumer;
23 (2) modifications or alterations not authorized by the
24 manufacturer;
25 (3) normal wear;
26 (4) normal use which may be resolved through a fitting
27 adjustment, routine maintenance, preventative maintenance or
28 proper care; or
29 (5) a consumer's failure to follow a manufacturer's
30 written service and maintenance guidelines furnished to the
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1 consumer at the time of purchase.
2 "Reasonable attempt to repair." Within one year after the
3 date of first delivery of an assistive device:
4 (1) the same nonconformity has been subject to repair
5 three or more times by the manufacturer, assistive device
6 lessor or an assistive device dealer authorized by the
7 manufacturer to repair the assistive device and the
8 nonconformity continues to exist and interfere with the
9 device's operation; or
10 (2) the assistive device is out of service for a
11 cumulative total of at least 30 days, exclusive of any
12 necessary time in shipment, due to repair by the
13 manufacturer, assistive device lessor or an assistive device
14 dealer authorized by the manufacturer to repair the assistive
15 device, all of which is due to warranty nonconformities.
16 Section 3. Implied warranty; responsibility for repair, return
17 or replacement.
18 (a) General rule.--Notwithstanding any other provision of
19 law, in addition to any express warranty furnished by the
20 manufacturer of an assistive device, the manufacturer shall also
21 be deemed to have warranted to any consumer purchasing or
22 leasing the assistive device within this Commonwealth that for a
23 period of one year from the date of first delivery to the
24 consumer:
25 (1) The assistive device, when used as intended, will be
26 free from any nonconformity.
27 (2) Any nonconformity will be repaired, including parts
28 and labor, by the manufacturer or its agent, without charge
29 to the consumer.
30 (b) Replacement or refund.--If, after reasonable attempt to
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1 repair, a nonconformity is not repaired, the manufacturer shall
2 either accept return of the nonconformity and replace the
3 nonconformity with an assistive device of comparable market
4 value, function and usefulness or accept return of the
5 nonconformity and refund, within 14 days, the full purchase or
6 lease price.
7 Section 4. Return of nonconformity; subsequent sale or lease;
8 disclosure.
9 No assistive device returned due to a nonconformity by a
10 consumer or assistive device lessor in this Commonwealth or any
11 other state may be sold or leased again in this Commonwealth
12 unless full disclosure of the reason for the return is made to a
13 prospective buyer or lessee.
14 Section 5. Application of Unfair Trade Practices and Consumer
15 Protection Law.
16 A violation of this act shall also be a violation of the act
17 of December 17, 1968 (P.L.1224, No.387), known as the Unfair
18 Trade Practices and Consumer Protection Law.
19 Section 6. Rights preserved.
20 Nothing in this act shall limit the purchaser from pursuing
21 any other rights or remedies under any other law, contract or
22 warranty.
23 Section 7. Waiver.
24 A manufacturer's exclusion or limitation of the implied
25 warranties, consumer remedies or right to legal action or
26 arbitration by a consumer within an assistive device purchase
27 agreement shall be deemed void.
28 Section 8. Effective date.
29 This act shall take effect in 60 days.
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