Loading...
HomeMy WebLinkAbout02-5991Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 171084268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in thc following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE CUMBERLAND BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A LIN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE CUMBERLAND BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 By: GOL/~%~KA. TZMAN & SHIPMAN, P.C. '~St~eh E. Grub~squire Attorney I.D. #75897 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 (717/ 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUIRRE, AIKMAN & BROWN, 1NC. AND LARRY A. AGUIRRE, Defendants. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY COMPLAINT Plaintiff, Eastern Recovery Systems, Inc., by and through its counsel, Goldberg, Katzman & Shipman, P.C., alleges the following in support of this Complaint: 1. Plaintiff, Eastern Recovery Systems, Inc. ("ERS"), is a Pennsylvania corporation with a principal place of business at 151 Reno Avenue, 2nd Floor, New Cumberland, York County, Pennsylvania 17070. 2. Defendant, Aguirre, Aikman & Brown, Inc. holds itself out as a Pennsylvania corporation with a registered address of 706 North Front Street, Wormleysburg, Cumberland County, Pennsylvania 17043. Aguirre, Aikman & Brown, Inc.'s Articles of Incorporation are attached hereto as Exhibit A. 3. Larry A. Aguirre is an adult individual with a last known mailing address of 706 North Front Street, Wormleysburg, Pennsylvania 17043. 4. Since October of 1999, ERS has been engaged in the business of corporate and commercial collections. Businesses, which are also creditors, retain ERS to collect amounts due from debtors. 5. 6. patent offices. 7. 8. Since October 1999, ERS has held itself out as "Aguirre, Aikman & Brown." The trade name is not registered with state or federal trademark, corporate or Larry Aguirre was a shareholder in ERS since May 24, 2000. ERS presently has over 500 clients and markets to nearly 25,000 businesses per year, throughout the country. 9. All of these clients, and potential clients, know ERS through its trade name, "Aguirre, Aikman & Brown." 10. In March 2002, two shareholders in ERS, Joshua Heicklen and Albie DeFrank, discovered evidence that Larry Aguirre had embezzled over $28,000 from ERS. 11. The amount embezzled by Larry Aguirre was in the form of fees due ERS from its customers, as well as money collected from debtors which should have been sent to ERS' customers, but which Larry Aguirre retained. 12. As a result of this discovery, the relationship between Messrs. Heicklen, DeFrank and Aguirre ended around March 29, 2002. 13. Upon the discovery of the embezzlement, Larry Aguirre is believed to have fled the jurisdiction. Efforts by ERS to locate Larry Aguirre have been unsuccessful. 14. Since the disappearance of Larry Aguirre, ERS has continued to operate in the business of corporate and commercial collection services, still utilizing the Aguirre, Aikman & Brown trade name. 15. Recently, ERS spent over $1,500.00 in capital for Aguirre, Aikman & Brown stationery, business cards and advertising. 16. In the course of business planning, ERS sought to register Aguirre, Aikman & Brown as a fictitious name with the Pennsylvania Department of State Corporations Bureau. 17. It was discovered that, unbeknownst to ERS, on January 3, 2002, Larry Aguirre, personally, had incorporated Aguirre, Aikman & Brown, Inc. 18. This made it impossible for ERS to register the Aguirre, Aikman & Brown trade name, absent permission or Larry Aguirre's consent to the use of a similar name. 19. Considering that Larry Aguirre could not be found, and considering the poor relationship between the parties, permission of this sort was impossible. 20. Larry Aguirre incorporated Aguirre, Aikman & Brown, Inc. in a direct attempt to steal business from ERS, who had been holding itself out under the Aguirre, Aikman & Brown trade name. 21. Prior to his disappearance, Larry Aguirre had hired at least one salesman and was preparing to compete for ERS' business using the trade name ERS had utilized since October of 1999. 22. The conduct by Larry Aguirre in incorporating Aguirre, Aikman & Brown, Inc. is a misappropriation of a trade name which had been used by ERS since October 1999. 23. This misappropriation has already caused confusion among various consumers and businesses as follows: a. ERS has been contacted by several ofAguirre, Aikman & Brown, Inc.'s creditors, including its telephone company. b. ERS has been contacted by a computer software company for overdue balances on software which Larry Aguirre was to have used at Aguirre, Aikman & Brown, Inc. In the course of paying for these computers, Larry Aguirre told the software company that all billing inquiries should be submitted to Joshua Heicklen at ERS. Larry Aguirre gave the software company Mr. Heicklen's e-mail address as a source of contact for Aguirre, Aikman & Brown, Inc. c. A plumber who had done work at Aguirre, Aikman & Brown, Inc.'s Wormleysburg address, had not been paid, nor had Aguirre, Aikman & Brown, Inc.'s landlord. Both contacted ERS for payment. 24. Aguirre, Aikman & Brown has had to remedy the problems Larry Aguirre's embezzlement of over $28,000 of debts that were collected, but not turned over to ERS' clients, by paying those clients, essentially a second time, the amounts Larry Aguirre collected. COUNT I - VIOLATION OF TItE LANHAM ACT 25. out in full. The averments of paragraphs 1-24 above are incorporated by reference as if set Brown" name; b. 26. The conduct of Defendants is a violation of the Lanham Act, 15 U.S.C.A. § 1125(a), in that Defendants have misappropriated the name Aguirre, Aikman & Brown, which was used, and is still being used, by ERS in its provision of collection services. 27. As described above, Defendants' use of the Aguirre, Aikman & Brown name has caused confusion. 28. Defendants' use of the Aguirre, Aikman & Brown name has caused ERS to be unable to lawfully register the name it has been using for over three years. 29. Defendants' use of the Aguirre, Aikman & Brown name was for no other reason than to disrupt the business of ERS and to misappropriate the business of ERS to this new business. 30. Section 43 of the Lanham Act is applicable to unregistered trademarks, such as this one. 31. ERS has no adequate remedy at law which would allow it to utilize the name it had been using for several years. WHEREFORE, the following relief is demanded: Defendants be permanently enjoined from using the "Aguirre, Aikman & Defendants be ordered to change the name of the registered corporation, Aguirre, Aikman & Brown, Inc., to comply with the terms of this order; c. ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part of Defendants in deliberately attempting to usurp business from ERS. full. 32. COUNT II - UNFAIR COMPETITION The allegations of Paragraphs 1-31 are incorporated by reference as if set out in 33. Defendant's conduct, as described above, is done with the intent to injure ERS' business and to unlawfully convert the business of ERS to Defendant's own business. 34. As described above, this has caused confusion in the marketplace and misrepresents the true corporate entity which is entitled to utilize the trade name, Aguirre, Aikman & Brown. 35. Defendants' actions do not permit ERS to properly and legally register the name it has been using since October of 1999, and which it has held itself out as to several thousands of people. 36. ERS has no adequate remedy at law which would allow it to properly utilize the name it had been using for several years. WHEREFORE, the following relief is demanded: a. Defendants be permanently enjoined from using the "Aguirre, Aikman & Brown" name in any sense from here forward; b. Defendants be ordered to change the name of the registered corporation, Aguirre, Aikman & Brown, Inc., to comply with the terms of this order; c ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part of Defendants in deliberately attempting to usurp business from ERS. full. 37. COUNT III - CONVERSION V. LARRY AGUIRRE The allegations of Paragraphs 1-36 are incorporated by reference as if set out in 38. During his relationship with ERS, Larry Aguirre embezzled over $28,000 worth of fees due ERS, as well as debts owed ERS' customers. 39. Larry Aguirre would divert these funds to an account he maintained in New Jersey in the name ofAguirre, Aikman & Brown, unbeknownst to the other shareholders of ERS. 40. The embezzlement was discovered in March 2002, at which point, the relationship between Larry Aguirre and the other shareholders of ERS broke down. 41. Larry Aguirre has asserted dominion and control over $28,000 worth of funds which are rightfully due ERS, and the clients of ERS, and which ERS has had to pay clients of ERS in order to preserve the relationship with its customers. 42. In addition to this $28,000 Aguirre embezzled, he also failed to pay the following to ERS: a. Fees for the year 2000 in the amount of $2,728.92. b. Personal Federal Express charges for 2000 in the amount of $261.09; for 2001 in the amount of $217.84; and for 2002 in the amount of $79.80. c. A high-back leather chair which Aguirre purchased for personal use with ERS funds, valued at $99.99. 43. Larry Aguirre's actions are without justification. WHEREFORE, Plaintiff's demand that Larry Aguirre return the amounts he has converted, in an amount in excess of the arbitration limit in Cumberland County, together with all interest, costs of court and punitive damages for Larry Aguirre's intentional embezzlement and theft of these funds, as well as attorneys fees accrued in the prosecution of this case. COUNT IV - 44. The allegations of Paragraphs 1-43 are incorporated by reference as if set out in full. 45. While Aguirre worked for ERS, ERS loaned money to Aguirre in the following amounts, on the following dates: a. $3,250.00 - January 18, 2001 b. $1,825.00 - May 31, 2001 c. $500.00 - June 6, 2001 d. $50.00 - September 20, 2001 46. ERS loaned Aguirre a total of $5,625.00. 47. The loan agreements were oral, with the simple understanding that all amounts loaned would be repaid. 48. Aguirre, at the time he ceased working for ERS, had not paid back these loans, for which demand is made. 49. Aguirre breached the loan agreement he had with ERS by failing to return the money ERS loaned him. WHEREFORE, Plaintiff's demand that Larry Aguirre return the amounts ERS loaned him, which, together with the amount demanded in Count III, exceed the arbitration limit in Cumberland County, together with all interest, costs of court, as well as attorneys fees accrued in the prosecution of this case. Respectfully submitted, y;~~TZMAN & SHIPMAN, P.C. B Sl~ven E. Grubb,'i~ssquiree Attorney I. D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff 87312.1 DEC. 9. 2888 2: 19PM GOLDBEE~G KATZMAN MO. 570 P. 13 I h~eby acknowledge that I have read the foregoing Complaint and related documu~nts and that the facts stated therein are true and correct to the best of my knowledge, information and belief and the documents produced are a complete response, to the best of my knowledge, to the document request, The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S, §agg04 relating to unswom falsifications to authorities. 2002003.1230 - PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU Articles of Incorporation-For Profit ( 15 Pa.C.SA v/'Business-stock (} 1306'~ '--- Business-nonstock I§ 2102'~ ..... Buslness-statutor.', cb.~se (., .... Conper'ati~e (3 7102/ Management (§ 2703) Professional (§ 2903) Insurance ('5 3101) Dncument will be returned to the t~me and address yot enter to left, Fee; $100 Filed m II~c I)cpartmcnt of State o,q ............................ Secretary of the Comm~a~ ' , I' In compliance ,,~ ith thc requirements of the applicable provisions (relating to corporations and unincorporated associationsL the undersigned, desiring to tncorporale a corporation tbr profit, hereby states that: I. 'Fhe name oflhe corporation/corl~uralc dc,.St,gn~llor reqlttrc'cl, / t', "cor];oraliolI "," itlco 'porated" "limited" 2 Fhe (al address of this corporatmn's current registered office in this Commonwealth (post o]fice box, alone, ts clot ac.cc?table! or (b! name of its commercial regislered office provider and the county of venue is: (a) Number and Sireel Cit.,,' State Zip County (b! Name of Commercial Registered Office Provider County CO: 3 l'hc corporauon ts incorporated under the pro: isions of lt~e Business Corporation Lay, of 1988. ' 5 The name mid address, includm,.z number and streeL if any. ot each incorporalor (all mcorRorators must l'he specified effective date. if my: O! ~m°nth'd% 5ear hour. if any Additional pro~i..ons of the a~icles, iran>, attach an ,!'rtJ/u/ot3' c'l(~xe cor?orazio~l ~m[)' Ne/tiler the corporation nor any shareholder si]all make an offer ng of any tts shares of any class Ihat would of cons lute a pubhc offering u, lthln the meamng of the Securities Act of 1033(15 IS.C 77aetseq.) ( 'oop~erotn.c ~ ~.7;o/.atttmx on~r. ( 'omp/ete and.~.trd~c out m~q~l)lic'able term: the Common bond ofmembershin arno ]g its members'shareholders is: IN TESTIMONY WI-JEREOF, the incorporator(s) Ims.'huve signed these Articles of Incorporation to be signed b.', a dui.,,, authorized officer thereof this _o_?~___ da). of o~ o~ . Signature Signature SHERIFF'S RETURN - NOT FOUND CASE NO: 2002-05991 p COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND EASTERN RECOVERY SYSTEMS INC VS AGUIRRE AIKMAN & BROWN ET AL R. Thomas Kline Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, DEFENDANT AGUIRRE AIKM_AN & BROWN INC but was unable to locate Them in his bailiwick. COMPLAINT - EQUITY He therefore returns the the within named DEFENDANT , NOT FOUND , as to , AGUIRRE AIKMAN & BROWN INC MOVED AND LEFT NO FORWARDING WITH POST OFFICE. Sheriff,s Costs: Docketing 18.00 Service 11.04 Not Found 5.00 Surcharge 10.00 .00 44.04 Sheriff of Cumberland County GOLDBERG KATZMAN SHIPMAN 01/08/2003 Sworn and subscribed to before me this ~ ~ day of~ Pr~t~nonotary , SHERIFF'S RETURN - NOT FOUND CASE NO: 2002-05991 p COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND EASTERN RECOVERY SYSTEMS INC VS AGUIRRE AIKMAN & BROWN ET AL R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, DEFENDANT AGUIRRE LARRY A unable to locate Him COMPLAINT - EQUITY in his bailiwick. but was He therefore returns the the within named DEFENDANT , NOT FOUND , as to , AGUIRRE LARRY A MOVED AND LEFT NO FORWARDING WITH POST OFFICE. Sheriff,s Costs: Docketing 6.00 Service .00 Not Found 5.00 Surcharge 10.00 .00 21.00 ~{. Thomas 7mne Sheriff of Cumberland County GOLDBERG KATZMAN SHIPMAN 01/08/2003 Sworn and subscribed to before me this, /D ~ day of q~'~,7 -- ~ A.D. Prot/hdnota~y ,~/ SHERIFF'S RETURN - NOT FOUND CASE NO: 2002-05991 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND EASTERN RECOVERY SYSTEMS INC VS AGUIRRE AIKMAN & BROWN ET AL R. Thomas Kline .Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, DEFENDANT AGUIRRE AIKMA_N & BROWN INC unable to locate Them in his bailiwick. COMPLAINT - EQUITY but was He therefore returns the , NOT FOUND , as to the within named DEFENDANT , AGUIRRE AIKMAN & BROWN INC MOVED AND LEFT NO FORWARDING WITH POST OFFICE. Sheriff's Costs: Docketing 18.00 Service 11.04 Not Found 5.00 Surcharge 10.00 .00 44.04 Sheriff of Cumberland County GOLDBERG KATZMAN SHIPMAN 01/08/2003 Sworn and subscribed to before me this /~1~ day of~~ ~z~ A.D. Pr6t;hon0t'ary ' ! ' SHERIFF'S RETURN - NOT FOUND CASE NO: 2002-05991 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND EASTERN RECOVERY SYSTEMS INC VS AGUIRRE AIFdVLAN & BROWN ET AL R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, DEFENDANT AGUIRRE LARRY A unable to locate Him COMPLAINT - EQUITY but was in his bailiwick. He therefore returns the the within named DEFENDANT , AGUIRRE LARRY A MOVED B_ND LEFT NO FORWARDING WITH POST OFFICE. , NOT FOUND , as to Sheriff's Costs: Docketing 6.00 Service .00 Not Found S.00 Surcharge 10.00 .00 21.00 So ans : ~ . Thomas K~ine Sheriff of Cumberland County GOLDBERG KATZMAN SHIPMAN 0 /08/2003 Sworn and subscribed to before me this Jo ~ day of ~ ~{.~ A.D. Prot/h~not~y Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 ~ 234-416l EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate Plaintiff's Complaint that was filed on December 17, 2002. Date: Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. ~en E. Grub~,..E~qmre Attorney I.D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff Vo AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLANT) COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate Plaintiff's Complaint that was filed on December 17, 2002. Date: Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. / / / By: //""~.~;en E. Gmbb, Esquire Attorney I.D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff Vo AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION ~ EQUITY NO. 02-5991 PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate Plaintiff's Complaint that was filed on December 17, 2002. Date: Respectfully submitted, GOLDBERG, ~IPMAN, P.C. Attorney I.D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire 1.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, IK AN &BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - EQUITY NO. 02-5991 PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate Plaintiff's Complaint that was filed on December 17, 2002. Date: Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: .... "' Steven E. Grubb, Esqmre Attorney I.D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 ~717) 2344161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, A/KMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate Plaintiff's Complaint that was filed on December 17, 2002. Date: 5///~/'02 Respectfully submitted, GOLDBERG, KATZM~ By: t enE( & SHIPMAN, P.C. irubb, ]~squire(-~/ ' Attorney I.D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff Goldberg, Katzman & Shipman, P.C. Steven E. Gmbb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 2344161 EASTERN RECOVERY SYSTEMS, lNC., Plaintiff AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 PLAINTIFF'S MOTION FOR A SPECIAL ORDER DIRECTING SERVICE BY PUBLICATION Pursuant to Pa. R.C.P. 430, Plaintiff, by and through its counsel, Goldberg, Katzman & Shipman, P.C. allege the following in support of this Motion for a Special Order Directing Service by Publication: 1. Plaintiff is Eastern Recovery Systems, Inc. 2. On or about December 17, 2002, Plaintiff filed a complaint in the above-captioned matter alleging: (1) a violation of the Lanham Act; (2) unfair competition; (3) conversion; and (4) breach of contract. 3. The complaint is attached hereto as Exhibit A. Plaintiff has reinstated the Complaint through June 16, 2003. WItEREFORE, it is respectfully requested that, based on the foregoing, and the incorporated affidavits, the court enter an order authorizing Plaintiff to serve Defendants via publication, pursuant to Pa. R.C.P. 430(b)(1). Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. Date: 96518.1 ~e~n E.)3m6b, Esq~I.D. ~75897) 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counsel for Plaintiffs Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Stmwberry Square P. O. Box I268 Harrisburg, PA 17108-1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants IN TIlE COURT OF COMMON PLEAS CUMBERL/GxrD COUNTY, PENNSYLVANIA CIVIL ~CTION - EQUITY NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the followingpages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by atlorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or ~or any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAW3~ER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR. TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE CUMBERLAND BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 TRUE COPY FROM RECORD in T. eetlm(my whereof, I hel'e unto set my ham:f Goldberg, Kalzman & Shipman, P.C. Steven E. Grubb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, pA 17108-1268 (717) 2344161 EASTERN RECOVERY SYSTEMS, ]NC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS CUMBERL~LND COUNTY, PENNSYLVANIA CIVIL ,~CTION - EQUITY NO. COMPLAINT Plaintiff, Eastern Recovery Systems, Inc., by and throug]a its counsel, Goldberg, Katzman & Shipman, P.C., alleges the following in support of this Comphdnt: 1, Plaintiff, Eastern Recovery Systems, Inc. ("ERS"), is a Pennsylvania corporation with a principal place of business at 151 Reno Avenue, 2~d Floor, New Cumberland, York County, Pennsylvania 17070. 2. Defendant, Aguirre, Aikman & Brown, Inc. holds itself out as a Pennsylvania corporation with a registered address of 706 North Front Street:. Wormleysburg, Cumberland County, Pennsylvania 17043. Aguirre, Aikman & Brown, c. s Articles of Incorporation are attached hereto as Exhibit A. 3. Larry A. Aguirre is an adult individual with a last known mailing address of 706 North Front Street, Wormleysburg, Pennsylvania 17043. 14. Since~the disappearance of Larry Aguirre, ERS has continued to operate in the business of corporate and commercial collection services, still utilizing the Aguirre, Ai!cman & Brown trade name. 15. Recently, ERS spent over $1,500.00 in capital for Aguirre, Aikman & Brown stationery, bus/ness cards and advertising. 16. In the course of business planning, ERS sought to register Aguin-e, Aikman & Brown as a fictitious name with the Pennsylvania Department of State Corporations Bureau. 17. It was discovered that, unbeknownst to ERS, on January 3, 2002, Larry Aguirre, personally, had incorporated Aguirre, ALlcman & Brown, Inc. 18. This made it impossible for ERS to register the Aguirre, Aikman & Brown trade name, absent permission or Larry Aguirre's consent to the use of a similar name. 19. Considering that Larry Aguirre could not be foand, and considering the poor relationship between the parties, permission of this sort was impossible. 20. Larry Aguirre incorporated Aguirre, Aikman & Brown, Inc. in a direct attempt to steal business f~om ERS, who had been holding itself out under the Aguirre, Aikman & Brown trade name. 21. Prior to his disappearance, Larry Aguirre had hi.red at least one salesman ;md was preparing to compete for ERS' business using the trade name I~RS had utilized since October of 1999. 22. The conduct by Larry Aguirre in incorporating Aguirre, Aikman & Brown, Inc. is a misappropriation of a trade name which had been used by ERS since October 1999. 23. This ~isappropriation has already caused confi~sion among various consumers and businesses as follows: a. ERS has been contacted by several ofAguirre, Aikman & Brown, Inc.'s creditors, including its telephone company. b. ERS has been contacted by a computer software company for overdue balances on software which Lany Aguirre was to have used at Aguirre, Aikman & Brown, Inc. In the course of paying for these computers, Larry Aguirre told the software company that ali billing inquiries should be submitted to Joshua Heicklen at ERS. Larry Aguirre gave the software company Mr. Heicklen's e-mail address as a source of contact for Aguirre, Aikman & Brown, Inc. c. A plumber who had done work at Aguin'e, Aikman & Brown, Inc.'s Wormleysburg address, had not been paid, nor had Aguirre, Aikman & Brown, Inc.'s landlord. Both contacted ERS for payment. 24. Aguirre, A/kman & Brown has had to remedy the problems Larry Aguirre's embezzlement of over $28,000 of debts that were collected, but: not turned over to ERS' clients, by paying those clients, essentially a second time, the amounts ]Larry Aguirre collected. COUNT I - VIOLATION OF TIlE LANItAM ACT 25. out in full. The averments of paragraphs 1-24 above are incorporated by reference as if set 4 26. The conduct of Defendants is a violation of the Lanham Act, 15 U.S.C.A. § 1125(a), in that Defendants have misappropriated the name Aguirre, Aikman & Brown, which was used, and is still being used, by ERS in its provision of collection services. 27. As described above, Defendants' use of the Aguirre, Aikman & Brown name has caused confusion. 28. Defendants' use of the Aguirre, Aikman & Brown name has caused ERS to be unable to lawfully register the name it has been using for over three years. 29. Defendants' use of the Aguirre, Aikman & Brown name was for no other reason than to disrupt the business of ERS and to misappropriate the business of ERS to this new business. 30. Section 43 of the Lanham Act is applicable to maregistered trademarks, such as this one. 31. ERS has no adequate remedy at law which would allow it to utilize the name it had been using for several years. WHEREFORE, the following relief is demanded: a. Defendants be permanently enjoined from using the "Aguirre, Aikman & Brown" name; b. Defendants be ordered to change the name of the registered corporation, Aguirre, Aikman & Brown, Inc., to comply with the terms of th:is order; c. ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part of Defendants in deliberately attempting to usurp business from ERS. full. 32. COUNT II - UNFAIR COMPETITION The allegations of Paragraphs 1-31 are incorporated by reference as if set out in 33. Defendant's conduct, as described above, is done with the intent to injure ERS' l~usiness and to unlawfully convert the business of ERS to Defimdant's own business. 34. As described above, this has caused confusion ia the marketplace and misrepresents the true corporate entity which is entitled to utilize the trade name, Aguirre, Aikman & Brown. 35. Defendants' actions do not permit ERS to properly and legally register the name it has been using since October of 1999, and which it has held itself out as to several thousands of people. 36. ERS has no adequate remedy at law which would allow it to properly utilize the name it had been using for several years. WHEREFORE, the following relief is demanded: a. Defendants be permanently enjoined frora using the "Aguirre, Aikman & Brown" name in any sense from here forward; 6 b. Defendants be ordered to change the mane of the registered corporation, Aguirre, Ailcrnan & Brown, Inc., to comply with the terms of this order; c ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part of Defendants in deliberately attempting to usurp business fi:om ERS. 37. COUNT m - CONVERSION V. LARRY AGUIRRE The allegations of Paragraphs 1-36 are incorporated by reference as if set out in 38. During Iris relationship with ERS, Larry Aguin'e embezzled over $28,000 worth of fees due ERS, as well as debts owed ERS' customers. 39. Larry Aguirre would divert these funds to an account he maintained in New Jersey in the name of Aguirre, Aikman & Brown, unbeknownst to the other shareholders of ERS. 40. The embezzlement was discovered in March 2(}02, at which point, the relationship between Larry Aguirre and the other shareholders of ERS broke down. 41. Larry Aguirre has asserted dominion and control over $28,000 worth of funds which are rightfully due ERS, and the clients of ERS, and which ERS has had to pay clients of ERS in order to preserve the relationship with its customers. 42. to ERS: In addition to this $28,000 Aguirre embezzled, ihe also failed to pay the following a. Fees for the year 2000 in the amount of $2,728.92. b. Personal Federal Express charges for 2000 in the mount of $261.09; for 2001 in the amount of $217.84; and for 2002 in the amount o1!$79.80. c. A high-back leather chair which Aguirre purchased for personal use with ERS funds, valued at $99.99. 43. Larry Aguirre's actions are without justification. WHEREFORE, Plaintiff's demand that Larry Agttirre return the amounts he has converted, in an amount in excess of the arbitration limit in Curnberland County, together with all interest, costs of court and punitive damages for Larry Aguirre's intentional embezzlement and theft of these funds, as well as attorneys fees accrued in th.e prosecution of this case. COUNT IV - 44. The allegations of Paragraphs 1-43 are incorporated by reference as if set out in full. 45. amounts, on the following dates: While Aguirre worked for ERS, ERS loaned money to. Aguirre in the following $3,250.00 - January 18, 2001 $1,825.00 - May 31, 2001 $500.00 - June 6, 2001 d. $50.00 - September 20, 2001 46. ERS loaned Aguirre a total of $5,625.00. 47. The loan agreements were oral, with the simple understanding that all amounts loaned would be repaid. 8 48. Aguirre, at the time he ceased working for ERS, had not paid back these loans, for which demand is made. 49. Aguirre breached the loan agreement he had with ERS by failing to return the money ERS loaned him. WHEREFORE, Plaintiff's demand that Larry Aguirre remm the amounts ERS loaned him, which, together with the amount demanded in Count III, exceed the arbitration limit in Cumberland County, together with all interest, costs of court, t~ well as attorneys fees accrued in the prosecution of this case. Date: Respectfully subraitted, GOLDB~a~G, KATZMAN & SHIPMAN, P.C. By. S~ven E. Grubb, ~rsqu/~e Attorney I. D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff 87312.1 9 I hereby acknowledge that I have read the foregoing Complaint and related documents md that the facts stated therein are true and correct to the best of my knowledge, Lnformation and belief and the doctunents produced ~re a complete response, to the best of my knowledge, to the document request. The undersign~i understands that the statements therein are made subject to the penalties of 18 Pa. C.S, §4904 relaling to unswom falsifications to authorities. Date: 20020 3..123 ., PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU Articles of Incorporation-For Profit /" ( 1.5 Pa.C.S.i Business-stock (§ 1306) Mmlagement (2 2703) Business~nonstoek I§ 21(12) ProFessional (§ 2903) ___ Business-statulor,~ close (,~ 2303) Insurance (§ 3 IOI) Cae pemtive (§ 7102} · c. 1DtDncument will be returned to the L~.~,~ ,/~ ~-4e~..f~.~ll~re~,ame and address you enter to Fee: $100 Filed m Ihe Depamnenl of Slate on Secretary Comm~7~a~y,,,~V.~ h~' , ~'- In compliance v. ith the requirements of the applicable provisions (relating to corporations and unJnco~oratcd associadonsl, the undersigned, desiring to incorporate a corporation lbr profil, hereby states that: '; I'hc (al address of this corporation's current registered office in this Comrnonweaith/post o/flee box. alone, ts ac,'~.?t~bte/or (bi name of its commercial registered office provider and the county of venue is: Number and Street City State Zip Coumy Name orCommcrcial Registered Office Provider County C O: Name  , Address 7 Addhional prov/s:ons of the arlic{es, if any. attach an 8% by ] I sheet. Hie comi,qon bond o/me nbershin arno Itt ils members/share olders is- IN TESTIMONy W~*tEREO~ the incorporator(s) has,'have s~gned these Articles of In¢orporalion to be signed bsa du y authorized officer thereofth~s Signature Signature EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : : CWIL ACTION' - EQUITY : NO. 02-5991 AFFIDAVIT Pursuant to Pa. R.C.P. 430(a), the undersigned swears, under oath, that the following steps have been taken to investigate and determine the whereabouts of the Defendants: 1. The undersigned is counsel for Plaintiffs in the above-captioned matter. 2. After filing the Complaint on December 17, 200:2, I submitted the Complaint to the Cumberland County Sheriff's office for service. 3. The address stated in the Complaint was derived, from the Articles of Incorporation that Defendants Aguirre, Aikman & Brown, Inc. and Larry Agnirre had filed with the Pennsylvania Department of State-Corporations Bureau on January 3, 2002. 4. The Articles of Incorporation, which are attached hereto as Exhibit A, state that Agnirre, Aikman & Brown, Inc.'s registered address is 706 North Front Street, Wormleysburg, Cumberland County, Pennsylvania 17043. 5. As of this writing, Agnirre, Aikman & Brown, Inc. is still registered with the Pennsylvania Department of State-Corporations Bureau as a company in good standing listing the 706 North Front Street address as its registered office. See attached Exhibit B, which is the most recent Department of State information on the corporation available at www.dos.state.pa, us. 6. Also in the Department of State records, the company's incorporator, Lan'y Aguirre, lists his personal address as 706 North Front Street, Wormleysburg, Pennsylvania 17043. 7. Mr. Aguirre was a former business associate and employee of Eastern Recovery Systems, Inc., and this was known to be Larry Aguirre's personal address. 8. On or about January 8, 2003, the Cumberland County Sheriff's Department indicated its inability to serve Defendants because they were no longer at the address stated in the Complaint and left no forwarding address. The return of service is attached hereto as Exhibit C. 9. Plaintiff also received a cancelled check where, as of March, 2002, Aguirre, Aikman & Brown, Inc. listed an address of 230 Washington Aw:nue, Milltown, New Jersey 08850 as its mailing address. A copy of the cancelled check is attached hereto as Exhibit D. The check is signed by Larry Aguirre. 10. Since it appeared that Defendant was out of state, Plaintiff attempted service by certifted mail, restricted delivery, pursuant to Pa. R.C.P. 403, on February 3, 2003. The cover letter is attached hereto as Exhibit E. 11. After two notices, the postal authorities returned the restricted delivery mailing to our office as 'hmclaimed." A copy of the returned envelopes are attached hereto as Exhibit F. 12. Plaintiff also retained the services of a private investigator, Joel Russo, to go to the 230 Washington Avenue, Milltown, New Jersey address and attempt service. 2 13. The process server went to the address and spoke with someone who identified himself as Mr. Aguirre's "brother." Mr. Aguirre's brother, however, stated that Mr. Aguirre did not live at that address and that he "lived somewhere in New York." 14. Mr. Russo was also contacted by an individual who identified herself as Mr. Aguirre's "sister," who also claimed she did not know where Mr. Aguirre was and that he "moves around quite a bit." As of May 15, 2003, the private investigator was unable to serve process upon Mr. 15. Aguirre. 16. records. 17. 18. In March of 2003, the investigator also performed a nationwide search of public This revealed that Mr. Aguirre recently had been residing in Houston, Texas. As a result of this information, service was attempted, via certified mail, restricted delivery, to 5049 Jefferson, Houston, Texas 77023 on March 10,, 2003. The cover letter is attached hereto as Exhibit G. 19. This was, once again, returned by the postal service as being unclaimed. See copy of envelope attached hereto as Exhibit H. 3 20. Based on these attempts at service, and research of public records, and also considering that Mr. Aguirre's family has stated they do not know where he is and that he moves around a lot, Plaintiffs have exhausted all avenues available to them to serve the Complaint. Swomthis ~ dayof ~ i~L~ ' '~"' St~'~n E. Grab ,~uire Notarial Seal '"1 JerlBifcr L. Boltz, Notary Public City of Ha~isburg, Dauphin County My Commission Expires May 30, 2005 Member, Pennsylvania Association o! 2002003,123 . PE. NNSS'LVANIA DEPARTMENT OF STATE CORPO1L4T1ON BUREAU · Articles of Incorporation~For Profit ( 15 Pa.C.SA v Business-stock (,~ 1306 ___ Business-nonstock [ § 2102) ..... Business-statulor.; close {~ z.,0_*) ___ Ccoperati,.e { § 71021 Management (§ 2703) Professional (§ 2903) Ins ~rance (§ 3101 ) Fcc: $100 Secretary of the In compliance ~ith the rcquiremenls of the applicable provr~sions (relating to corporations and unincorporated associations), tile undersigned, desiring to mcorpnrate a corporation tbr profit, hereby states that: Fhe (a) address of this corporation's current registered office in this Commorlwealth (post office box, alone, ts not ~c~e/~tableJ (ir (bi name of its commercial regislered office provider and die county of venue is: Nuntber and Street ('it5' State Zip County Name of Conmlercial Registered Office Prm.'ider County Name ~ ' ~.) F_-; ~ ,,~,.r~. ~- Add,.ress lllolllhdax xear hour, if'any L? Addilkmal provi~ams o£the arlicles, i£an), altach an 8% by l I sheeL ~!'mtm'oO' d(,se ,'t~rporat.m "'~6': Neither the co~oralim~ nor any shareholder shall make an offering ~ts shares ot any class thal w~mld constitute a "public o/%ring" within d~e of any o~ 1033 (15 USC. 77a et seq.) meaning of the Securities Act of '3' N TESTIMONY WH,r~REOF, the incorporator(s) has.'have signed these Articles of Incorporation to be signed b) a dui), authorized officer thereof this _O_/~__ day of o~,. o~... Signature Corporate Records Application Page 1 of 1 DOS Homepaqe Request · New Request Free Search · General Name _Searc~h · g!d Nam_e Search · Orphan Search Entity Details Basic Entity Information Entity Type PENNSYLVANIA BUSINESS CORPORATION Entity No. 3044867 Entity Nome Letter of Filing Date 01/03/2002 Consent Address 706 N FRONT ST County 21 State Pennsylvania ZipCode 17043 - 0 Jurisdiction PA Purpose BROAD Comments Limited NO Authority AGUIRRE AIKMAN 8~ BROWM, INC. No City W Country U Corporate Officers President UNKNOWN Secretary Treasurer Vice-President Instrument History Micro# Micro# Filing Date Doc Type Microfilm# Start End AIB 2002003 1;;.30 1231 01/03/2002 Back ] Home I Site Map J i~ Feedback I View as Te)~;.On!y [ [~mDlovmentt Do you want to know when we update the content in our website? Subscribe to eAlerts or Uedate your SubscrietiQn Copyright © 2002 Pennsylvania Depa~ment of State All Rights Reserved. Commonwea th of PA Privacy Statement https://www.dos.state.pa.us/CorpsApp/.../wfl~ntityDetails.aspx?EnfityNo=3044867&FilingNo= 6/4/03 SMMRiFF'S RETURN - NOT FOUND CASE NO: 2002-059~z p COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND EASTERN RECOVERY~SYSTEMS INC VS AGUIRRE AIKMAN & BROWN ET AL R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, DEFENDANT AGUIRRE LARRY A but was ~ in his bailiwick. He therefore returns the unable to locate Him COMPLAINT - EQUITY the within named DEFENDANT , AGUIRRE LARRY A NOT FOUND , as to MOVED AND LEFT NO FORWARDING WITH POST OFFICE. Sheriff,s Costs: Docketing 6.00 Service .00 Not Found 5.00 Surcharge 10.00 .00 21.00 So a n~sf~9~..~.'~-~ /~ Rd. Thomas: Kl~ine Sheriff of Cumberland County GOLDBERG KATZMAN SHIPMAN 01/08/2003 Sworn ~nd subscribed to before me this day of A.D. Prothonotary . FfiX NO, 9205923163 P, 02 APR-y-20O2. HON 07:41 ~H SNI REV HOT F~X NO, 9205923183 O3 P,O. Box iZ~8 · H~RR SBU~G, PENNSYLVANIA 17108-i268 GOLD B ERG, KATZMAN ATTORNEYS 3. T LAW ~-~ SHIPMAN, P.C. C. OUNSEL JOSHUA ~. Loci.' ARNOLD B. KOGAiq (1951-Z000) ?AUL ]. ESP~,S/TO NEll, HENDERSHOT ]. J.a¥ COOPER February 3, 2003 VIA CERTIFIED MAIL, RESTRICTED D'ELIVERY ~7002 2410 0001 2356 2458) AND REGULAR &fAIL Aguirre Aikman & Brown c/o Larry Aguirre 230 Washington Avenue Milltown, NJ 08850 Re; Eastern Recovery Systems, Inc. v. Aguirre, Aikman 8,: Brown, Inc. and Larry A. Aguirre Dear Mr. Aguirre: Enclosed is a copy of the Reinstated Complaint in the above-referenced matter. SEG/jlb/90910.1 Encl. c: Albie DeFrank (w/o encl.) GOLDBERG, KATZMAN ~** SHfPMAN, P.C. March 10, 2003 COUNSEL VIA CERT~ZED MA?L, RESTRICTED DELIFERY (7002 2410 0001 2356 4636) Lin'fy A guirre 5049 Jeffemon Houston, TX 77023 Eastern Recovery Systems, Inc. v. Agun're, ASkman & Brown, Inc. and Larry A. Aguirre Dear Mr. Aguirre: Enclosed is a copy of the Reinstated Complaint in the above-referenced matter. Sincere~ly, i,::,,f - '( ,.'~,:~z/ . ~teven E. Gi'~tb'b SEG/jlb/9091o.2 Encl. c: Albie DeFrank (w/o encl.) EASTERN RECOVERY SYSTEMS, Plaintiff AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA C1V]~L ACTION - EQUITY NO. 02-5991 AFFIDAVIT 1. I am Joel A. Russo, a certified private investigator in the Commonwealth of Pennsylvania having license number 117MD2002. 2. On or about March 5, 2003, I was retained by counsel for Plaintiff to perform a nationwide search of public records and a motor vehicle search at the Pennsylvania Department of Transportation for Larry A. Aguirre (date of birth October 19, 1960, Social Security Number 115-60-2560), as well as his alleged common law wife, Kimberly Malcom. 3. I provided the results of my search to counsel for Plaintiff, which are attached hereto as Exhibit A. 4. I also attempted to serve a Complaint on [.any Aguirre at 230 Washington Avenue, Milltown, New Jersey 08850 on May 15, 2003. 5. Attached hereto as Exhibit B is an investigative report I prepared for counsel indicating my efforts at trying to personally serve Mr. Aguirre. 6. As the report indicates, I knocked on the door of the given address; asked for Larry Aguirre; and was told he does not live at that address and that he lived somewhere in New York. The person answering the door identified himself as Larry Aguirre's brother. 7. Later, after I left a telephone number where I could be reached, I was contacted by a female who identified herself as Larry Aguirre's sister. She called from a telephone number at (305) 757-9162, which is in Florida. 8. She claims that she does not know where the subject is and that he "moves around quite a bit." 9. Despite my investigative efforts and surveillance, I was unable to serve Larry Aguirre at the Milltown, New Jersey address. ) SO Sworn this t'A day of tary ) k~_-/J-oel A. R 2 FACES OF THE NATION SEARCH RESULTS Page 1 of 1 New Search Sign Off AutoTrack Home Feedback Results Manager Search Results Click on Name for Detail Faces of the Nation SSN Search Based on: 115-60-2560 11 exact matches, 11 match on first 9 characters Name Address DOB Age 5049 JEFFERSON HOUSTON TX 77023 111 PROSPECT AVE 4 SCRANTON PA 18505 657 MARLBORO RD OLD BRIDGE NJ 08857 5049 JEFFERSON HOUSTON TX 77023 653 MARLBORO RD OLD BRIDGE NJ 08857 5049 JEFFERSON HOUSTON TX 77023 1503 SW 118TH AVE MIAMI FL 33184 2500 SW 79TH AV MIAMI FL 33126 913 RIVER RD TEANECK NJ 07666 136 FANE ST HARTFORD CT 06119 2500 SW 79TH AV MIAMI FL 33155 10/1960 42 10/1960 42 ./ I~ AGUIRRE LARRY A ~ I~ AGUIRRE LARRY A .,,' ~1AGUIRRE LARRY A -v' I~ AGUIRRE, LARRY ~A ~ ~1AGUIRRE LARRY A -,/ ~1AGUIRRE~RRY A ~ I~ AGUIRRE LARRY A ,~' ~1AGUIRRE LARRY A .~' i~ AGUIRRE LARRY A ./ I~ HARTSTONE ERIC S *v' ~1AGUIRRE LARRY A HelplSuppmt Permissible I SSN Phone 115-60-2560 (713)360-11 115-60-XXXX 115-60-2560 115-60-2560 115-60-2560 (732)360-11 115-60-2560 (713)265-61 115-60-XXXX (305)227-78 115-60-2560 115-60-2560 115-60-2560 115-60-2560 https://atxp,dbt.online.com/at/NatF acc s/r_NatFaces.asp?KeyOpti on=5 &S SN= l 15%2D60%2 ... 2/28/03 COMHONWEALTH OF P~NNSYCVANIA DEPARTMENT OF TRANSPORTATZON SAFETY ADHINISTRATION HARRISBURG, PA 17123 3/05/03 JOEL RUSSO PO BOX 12632q HARRISBURG PA 17112-0000 0506~1796000051 001 Dear Customer: The Bureau of Motor Vehicles has received your request for information. We are not able to provide this information because the record you requested, as indicated below, does not exist in our files. NAME : MALCOLM,KIMBERLY If you have any questions concerning this information, please contact Vehicle Record Services at the address or telephone number listed below. Sincerely, Customer Service Team Bureau of Motor Vehicles ADDRESS CORRESPONDENCE TO: Department of Transportation Vehicle Record Services PO Box 68691 Harrisburg, PA 17106-8691 INFORMATION: (7:00 AM TO 9:00 PM) IN STATE 1-800-93Z-fi600 OUT-OF-STATE 717-391-6190 TDD IN STATE 1-800-Z28-0676 TDD OUT-OF-STATE 717-391-6191 www.dot.state.pa.us Joel A. Russo P.O. Box 126324, Harrisburg, PA 17112 Phone/Fax (717) 541-9570 INVESTIGATIVE REPORT DATE: SUBJECT: ADDRESS: May 19, 2003 Larry Agusto Aguirre 230 Washington Avenue Milltown, NJ 08850 DATE OF BIRTH: 10-28-1960 Eastern Recovery Systems, Inc. v. Aguirre, Aikman & Brown, Inc. and Larry A. Aguirre Cumberland County Civil Action No. 02-5991 15 May 03 O6O0 O747 083O O845 1402 Aguirre's given address of 230 Washington Avenue, Milltown, New Jersey, 08850 was located. The residence is a three-story, vinyl-sided, single-family dwelling in a residential area. A white Nissan Camry, NJ Registration MUX-90M was observed parked in the driveway. An unidentified female was observed exiting the residence and entering the vehicle. She departed operating the vehicle. The investigator knocked on the subject's door. A Hispanic male in his mid 50's answered the door and stated that the subject does not live at that address. He stated that he lives somewhere in New York. He was not sure of the exact area. He stated that he does speak to him occasionally. When asked if this male was the subject's brother, he answered "yes". The investigator provided the Hispanic individual with a contact number. Surveillance was re-established on the residence. The individual was telephonically comacted by a female who identified herself as the subject's sister. She called t~om 305-757-9162. She claimed that she does not know where the subject is and that he moves around quite a bit. She stated she does speak to him occasionally and she would have him contact the investigator when he calls her. The investigator informed her that he would be in New Jersey on this date so if she does speak to the subject, he should not hesitate to contact the investigator. End of Report EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - EQUITY NO. ORDER Having considered Plaintiffs' Motion for a S~ecial Order Directing Service by Publication, it is hereby ordered this(~day of___ ~~1~.~2003, that Plaintiff is authorized to serve Defendants via publication, per Pa. R.C.P. 430(b)(1). Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGU1RRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Please reinstate Plaintiffs Complaint that was filed on December 17, 2002. Date: 7/,a7'5/0..~ Respectfully submitted, GOLDBERG, KATZMAN & SltIPMAN, P.C. Y~~~~ Attorney I.D. No. 7.5897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff EASTERN RECOVERY SYSTEMS, : INC., : Plaintiff : V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL, ACTION - EQUITY NO. 02-5991 AFFIDAVIT OF SERVICE I hereby certify that I served a copy of the Complaint upon the parties indicated below through publication in the Patriot News and the _Cumberland Law Journal as of August 1, 2003, as indicated in the attached Proofs of Publication of Notice: Larry Aguirre 230 Washington Avenue Milltown, NJ 08850 Aguirre, Aikman & Brown, Inc. c/o Larry Aguirre 230 Washington Avenue Milltown, NJ 08850 Notarial Seal Je~i~' L. Boliz, Nota~' Public City of Harrisburg. £~uphin County My Commission Expin.s May ~0, 2005 Member, pennsylvania AS sooteti~n of Notafles THE PATRIOT NEWS THESUNDAY PATRIOT NEWS Proof of Publication UnderAct No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin} ss Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Asst. Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of ~ and The ~ newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the 29th day(s) of July 2003. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is dui,.! authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY CityOfl-lanisbu~,DaJphinC-~un~ ~ / -" - Pemsy~a~aAs..~x:ia~onOfN(xMies~y cornm~ssion expires June 6, 2006 GOLDBERG, KATZMAN & SHIPMAN, PC ATTN: STEVEN E. GRUBB P.O. BOX 1268 HARRISBURG, PA. 17108 Statement of Advertising Costs To THE PATRIOT-NEWS CO., Dr. For publishing the notice or publication attached hereto on the above stated dates Probating same Notary Fee(s) Total $ 259.10 $ 1.75 $ 260.85 Publisher's Receipt for Advertising Cost The Patriot News Co., publisher of ~and Th und Patriot-N ws, newspapers of general circulation, hereby acknowledge receipt of the aforesaid notice and publication costs and certifies that the same have been duly paid. PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (UnderAct No. 587, approved May 16, 1929), P. L.1784 STATE OF PENNSYLVANIA : _. COUNTY OF CUMBERLAND : SS. Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cmnberland Law Journal, a legal periodical published in the Borough of Carlisle in thc County and State aforesaid, was established January 2, 1952, and designated by thc local courts as the official legal periodical for the publication of ail lcgai notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on thc following dates, Viz AUGUST 1, 2003 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are 1 day of AUGUST, 2003 GOLDBERG, KATZMAN & SHIPMAN, P.C. Steven E. Grubb, Esquire I.D. #75897 Attorney for Plaintiff 320 Market Street Sh'awberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUIRRE, AIKM~ & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - EQUITY NO. 02-5991 PRAECIPE FOR DEFAULT JUDGMENT TO THE PROTHONOTARY: Please enter judgment by default against Defendants, Larry A. Aguirre and Aguirre, Aikman & Brown, Inc., in favor of the Plaintiff, Eastern Recovery Systems, Inc., by and through its counsel, Goldberg, Katzman & Shipman, P.C. in the above-captioned matter for failure to answer the Complaint. Attached hereto are the 10-Day Notices together with certification of mailing. Date: September iq , 2003 Respectfully submitted, GOL~~HIPMAN' By:_, S~Gru~: ~f Attorney I.D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs PoE. GOLDBERG, KATZMAN & SHIPMAN, P.C. Steven E. Gmbb, Esquire I.D. #75897 Attorney for Plaintiff 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - EQUITY NO. 02-5991 AFFIDAVIT OF MAILING Personally appeared before me, a Notary Public, in and for said Commonwealth and County, Steven E. Grubb, Esquire, who being duly sworn according to law deposes and says that on August 26, 2003, he mailed the original of the attached 10-Day Notices by Certified Mail Return Receipt Requested #70022410000123564469 (to Larry Aguirre) and #70022410000123564452 (to Aguirre, Aikman & Brown, Inc.) both at 706 N. Front Street, ~ Wormleysburg, PA 17043. /~~//~////'/// 'Kt c~-~f E. GrubS, Esquir~ / Attorney for Plaintiff Sworn and Subscribed to before me this [qt:6 day of September, 2003. Notarial Seal Jennifer L. Boltz. Notary Public City of Harrigburg. Dauphin County My Comraiaaion Expires May 30, 2005 Member. Pennsv~vsnl8 ~sooMofl of Not'es GOLDBERG, KATZMAN & SI-IIPMAN, P.C, Steven E. Grubb, Esquire I.D. #75897 Attorney for Plaintiff 320 Market Street Strawberry Square P.O. Box 1268 Harr/sburg, PA ! 7108-1268 (717) 234-416l EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUI1LILE, AIKMAN & BROWN, liNC. AND LARRY A. AGUIRRE, Defendants. 1N THE COURT OF COM2VION PLEAS, CUMBE~ COUNTY, PENNSYLVANIA CIVIL ACTION - EQUiTY NO. 02-5991 IMPORTANT NOTICE TO: Aguirre Aikman & Brown, Inc. c/o Larry Aguirre 706 North Front Street Wormleysburg, PA 17043 DATE OF NOTICE: August 26, 2003 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO RESPOND TO THE COUNTERCLAIM PERSONALLY OR BY ATTORNEY AND FILE/N WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT(S) AND THEREBY LOSE PROPERTY OR OTHER EVIPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 Liberty Avenue Carlisle, PA 17013 Telephone: (800) 990-9108 DATE: August 26, 2003 GOLDBERG, KATZMAN & SHIPMAN, P.C. Steven E. Grubt~, Esquire Attorney I.D.# 75897 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Plaintiff 99958.2 GOLDBERG, KATZNIAN & SHIPMAN, P.C. Steven E. Grubb, Esquire I.D. #75897 Attorney for Plaintiff 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-I268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plahltiff AGUIRRE, A/KMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 IMPORTANT NOTICE TO: Larry A. Aguirre 706 North Front Street Wormleysburg, PA 17043 DATE OF NOTICE: August 26, 2003 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO RESPOND TO THE COUNTERCLAIM PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SBT FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WiTHOUT A HEARING, AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT(S) AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 Liberty Avenue Carlisle, PA 17013 Telephone: (800) 990-9108 DATE: August 26, 2003 GOLDBERG, KATZM_AN & SHIPMAN, P.C. ,~en E. Cmbb, Attorney I.D.g 75897 320 M~ket S~eet Smwbe~ Squ~e P.O. Box 1268 H~sb~g, PA 17108-1268 A~omey for Pl~nfiff 99958.1 Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire, LD.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Hamsburg, PA 17108-1268 (717t 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION[ - EQUITY NO. 02-5991 PETITION TO AMEND COMPLAINT Plaintiff, Eastern Recovery Systems, Inc., by and through its counsel, Goldberg, Katzman & Shipman, P.C., alleges the following in support of this Petition to Amend Complaint: 1. Petitioner is Eastern Recovery Systems, Inc. ("ERS"), the Plaintiff in the above- captioned matter. 2. Defendants are Aguirre, Aikman & Brown, Inc. and Lany A. Aguirre, the Defendants in the above-referenced matter. 3. The original Complaint in this matter was filed on December 17, 2002. 4. After several unsuccessful attempts at service upon Defendants, service was eventually accomplished by publication on August 7, 2003, per Order of Court dated June 9, 2003. 5. Absent an answer to the Complaint, a Praecipe fi)r Default Judgment was filed September 15, 2003. 6. There has been no final order on the equitable aspects of the claim, per Pa. R.C.P. 1511, nor has there been a final judgment entered on the monetm:y amounts requested, per Pa. R.C.P. 1037. 7. Based on the same core of operative facts already contained in the Complaint, Plaintiff wishes to amend its Complaint to seek, in addition to the recovery of all amounts embezzled by Larry Aguirre, a further declaration that Lan2/Aguirre's actions of embezzlement have extinguished his interest in ERS, under the appropriate sha~reholders agreement, and actions taken by ERS' officers and directors following Aguirre's embezzlement. 8. The Proposed Amended Complaint is attached hereto as Exhibit A. 9. The changes to the Amended Complaint are contained in Count III, which assert additional factual allegations, as well as an additional demand for relief. 10. Amendment to a pleading is to be liberally granted. 11. Amendment is permissible even if a verdict has been rendered; after judgment has been entered; after an award has been made; or appeal has been filed, as long as amendment will not effect a surprise or prejudice upon Defendants. See Standard Pennsylvania Practice 2d §1033:11. 12. Since there has been no final decree in equity or amount of monetary damages affixed at the present time, amendment will not prejudice the rights of Defendants. 13. Defendants, if they elect to, will have the ability to respond to the allegations of the Amended Complaint. 2 14. So as to give Defendant a full opportunity to respond to the allegations of the Amended Complaint, counsel will serve the Amended Complaint by publication as called for in the Pennsylvania Rules of Civil Procedure, as well as to all potential addresses of Defendants. 15. The amendments to the Complaint are based on the same core of operative facts as the original Complaint were. 16. In any event, since the operative facts center around events occurring in April of 2002, there is no statute of limitations issue which might serve as a bar to ERS' ability to request the relief stated in the amendments. WHEREFORE, it is respectfully requested that the Court enter a Rule upon Respondents to show cause why the Petition to Amend Complaint should not be granted and the proposed pleading, attached to this Petition as Exhibit A, not be permitted to be filed as of record. Respectfully submitted, GOLDB G, IG~TZMAN & SHIPMAN, P.C. By: - Ste~en E. Grnbb, Esqmre Attorney I. D. No. 75897 320 Market Street,, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff Date: 101989.1 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a tree and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, addressed to the following: Larry A. Aguirre 230 Washington Avenue Milltown, NJ 08850 Aguin:e, Aikman & Brown, Inc. c/o Larry Aguirre 230 Washington Avenue Milltown, NJ 08850 Larry A. Aguirre 706 North Front Street Wormleysburg, PA 17043 Aguin:e, Aikman & Brown, Inc. c/o Larry Aguirre 706 North Front Street Wormleysburg, PA 17043 By: S~ev~ C~'ubb, ]E~fi~e ' Date: October a9~ 2003 Goldberg, Katzman & Shipman, P.C. Steven E. Gmbb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 f7171 2344161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days al~er this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE CUMBERLAND BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE ]?AGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE CUMBERLAND BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 GOLDBERG, KATZMAN & SHIPMAN, P.C. By: Steven E. Grubb, [',squire Attorney I.D. #75897 320 Market Street, P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorneys for Plaintiff Goldberg, Katzman & Shipman, P.C. Stevcn E. Gmbb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. ][Iox 1268 Harrisburg, PA 17108-1268 (717) 2344161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. AMENDED COMPLAINT Plaintiff, Eastern Recovery Systems, Inc., by and through its counsel, Goldberg, Katzman & Shipman, P.C., alleges the following in support of this Complaint: 1. Plaintiff, Eastern Recovery Systems, Inc. ("ERS"), is a Pennsylvania corporation with a principal place of business at 151 Reno Avenue, 2nd Floor, New Cumberland, York County, Pennsylvania 17070. 2. Defendant, Aguirre, Aikman & Brown, Inc. holds itself out as a Pennsylvania corporation with a registered address of 706 North Front Street, Wormleysburg, Cumberland County, Pennsylvania 17043. Aguirre, Aikman & Brown, Inc.':~ Articles of Incorporation are attached hereto as Exhibit A. 3. Larry A. Aguirre is an adult individual with a last known mailing address of 706 North Front Street, Wormleysburg, Pennsylvania 17043. 4. Since October of 1999, ERS has been engaged irt the business of corporate and commercial collections. Businesses, which are also creditors, retain ERS to collect amounts due from debtors. 5. 6. patent offices. 7. 8. Since October 1999, ERS has held itself out as "Aguirre, Aikman & Brown." The trade name is not registered with state or federal trademark, corporate or Larry Aguirre was a shareholder in ERS since May 24, 2000. ERS presently has over 500 clients and markets to nearly 25,000 businesses per year, throughout the country. 9. All of these clients, and potential clients, know ERS through its trade name, "Aguirre, Aikman & Brown." 10. In March 2002, two shareholders in ERS, Joshua Heicklen and Albie DeFrank, discovered evidence that Larry Aguirre had embezzled over $28,000 from ERS. 11. The amount embezzled by Larry Aguirre was in the form of fees due ERS from its customers, as well as money collected from debtors which should have been sent to ERS' customers, but which Larry Aguirre retained. 12. As a result of this discovery, the relationship between Messrs. Heicklen, DeFrank and Aguirre ended around March 29, 2002. 13. Upon the discovery of the embezzlement, Larry Aguirre is believed to have fled the jurisdiction. Efforts by ERS to locate Larry Aguirre have been unsuccessful. 2 14. Since the disappearance of Larry Aguirre, ERS has continued to operate in the business of corporate and commercial collection services, still utilizing the Aguirre, Aikman & Brown trade name. 15. Recently, ERS spent over $1,500.00 in capital for Aguirre, Aikman & Brown stationery, business cards and advertising. 16. In the course of business planning, ERS sought to register Aguirre, Aikman & Brown as a fictitious name with the Pennsylvania Department of State Corporations Bureau. 17. It was discovered that, unbeknownst to ERS, on .lanuary 3, 2002, Larry Agtfirre, personally, had incorporated Aguirre, Aikman & Brown, Inc. 18. This made it impossible for ERS to register the Aguirre, Aikman & Brown trade name, absent permission or Larry Agulrre's consent to the use ora similar name. 19. Considering that Larry Aguirre could not be fouttd, and considering the poor relationship between the parties, permission of this sort was impossible. 20. Larry Aguirre incorporated Aguirre, Aikman & ~lrown, Inc. in a direct attempt to steal business from ERS, who had been holding itself out under the Aguirre, Aikman & Brown trade name. 21. Prior to his disappearance, Larry Aguirre had hired at least one salesman and was preparing to compete for ERS' business using the trade name ERS had utilized since October of 1999. 22. The conduct by Larry Aguirre in incorporating Aguirre, Aikman & Brown, Inc. is a misappropriation of a trade name which had been used by ERS since October 1999. 3 23. This misappropriation has already caused confusion among various consumers and businesses as follows: a. ERS has been contacted by several of Aguirre, Aikman & Brown, Inc.'s creditors, including its telephone company. b. ERS has been contacted by a computer software company for overdue balances on software which Larry Aguirre was to have used at Aguirre, Aikman & Brown, Inc. In the course of paying for these computers, Larry Aguirre told the software company that all billing inquiries should be submitted to Joshua Heicklen at ERS.. Larry Aguirre gave the software company Mr. Heicklen's e-mail address as a source of contact for Aguirre, Aikman & Brown, Inc. c. A plumber who had done work at Aguirre, Aikman & Brown, Inc.'s Wormleysburg address, had not been paid, nor had Aguirre, Ai[anan & Brown, Inc.'s landlord. Both contacted ERS for payment. 24. Aguirre, Aikman & Brown has had to remedy the problems Larry Aguirre's embezzlement of over $28,000 of debts that were collected, but not turned over to ERS' clients, by paying those clients, essentially a second time, the amounts Larry Aguirre collected. COUNT I - VIOLATION OF TItE LANItAM ACT 25. The averments of paragraphs 1-24 above are incorporated by reference as if set out in full. 4 26. The conduct of Defendants is a violation of the Lanham Act, 15 U.S.C.A. § 1125(a), in that Defendants have misappropriated the name Aguirre, Aikman & Brown, which was used, and is still being used, by ERS in its provision of collection services. 27. As described above, Defendants' use of the Aguirre, Aikman & Brown name has caused confusion. 28. Defendants' use of the Aguirre, Aikman & Brown name has caused ERS to be unable to lawfully register the name it has been using for over three years. 29. Defendants' use of the Aguirre, Aikman & Brown name was for no other mason than to disrupt the business of ERS and to misappropriate the business of ERS to this new business. 30. Section 43 of the Lanham Act is applicable to unregistered trademarks, such as this one. 31. ERS has no adequate remedy at law which would allow it to utilize the name it had been using for several years. WHEREFORE, the following relief is demanded: Defendants be permanently enjoined from using the "Aguirre, Aikman & Brown" name; b. Defendants be ordered to change the name of the registered corporation, Aguirre, Aikman & Brown, Inc., to comply with the terms of this order; 5 c. ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part of Defendants in deliberately attempting to usurp business from ERS. full. 32. COUNT II - UNFAIR COMPETITION The allegations of Paragraphs 1-31 are incorporated by reference as if set out in 33. Defendant's conduct, as described above, is done with the intent to injure ERS' business and to unlawfully convert the business of ERS to Defendant's own business. 34. As described above, this has caused confusion in the marketplace and misrepresents the tree corporate entity which is entitled to utilize the trade name, Aguirre, Aikman & Brown. 35. Defendants' actions do not permit ERS to properly and legally register the name it has been using since October of 1999, and which it has held itself out as to several thousands of people. 36. ERS has no adequate remedy at law which would allow it to properly utilize the name it had been using for several years. WHEREFORE, the following relief is demanded: a. Defendants be permanently enjoined from using the "Aguirre, Aikman & Brown" name in any sense from here forward; 6 b. Defendants be ordered to change the name of the registered corporation, Aguirre, Aikman & Brown, Inc., to comply with the terms of this order; c ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part of Defendants in deliberately attempting to usurp business from ERS. full. 37. COUNT III - CONVERSION V. LARRY AGUIRRE The allegations of Paragraphs 1-36 are incorporated by reference as if set out in 38. During his relationship with ERS, Larry Aguirre embezzled over $28,000 worth of fees due ERS, as well as debts owed ERS' customers. 39. Larry Aguirre would divert these funds to an account he maintained in New Jersey in the name of Aguirre, Aikman & Brown, unbeknownst to the other shareholders of ERS. 40. The embezzlement was discovered in March 200.2, at which point, the relationship between Larry Aguirre and the other shareholders of ERS broke: down. 41. Larry Aguirre has asserted dominion and control over $28,000 worth of funds which are rightfully due ERS, and the clients of ERS, and which ERS has had to pay clients of ERS in order to preserve the relationship with its customers. 42. to ERS: In addition to this $28,000 Aguirre embezzled, he also failed to pay the following a. Fees for the year 2000 in the amount of $2,728.92. b. Personal Federal Express charges for 2000 in the amount of $261.09; for 2001 in the amount of $217.84; and for 2002 in the amount of $79.80. c. A high-back leather chair which Aguirre purchased for personal use with ERS funds, valued at $99.99. 43. Larry Aguirre's actions are without justification. 44. Pursuant to the terms of the "Partnership Agreement" attached hereto as Exhibit B, Aguirre's embezzlement constituted an instance of involuntary withdrawal from ERS. 45. While Exhibit B is titled "Partnership Agreement," it is a shareholders agreement as the body of the document indicates. 46. By letter of April 2, 2002, Aguirre was notified of his involuntary withdrawal by Joshua Heicklen, CEO of ERS. See copy of letter attached hereto as Exhibit C. 47. Due to his acts of embezzlement, as stated in the April 2 letter, Aguirre was notified that he would receive no compensation for his stock recapture. 48. Additionally, the book value of the corporation, as of the time of termination was in the negative. 49. Aguirre failed to respond to the April 2, 2002 correspondence. 50. Aguirre ceased being a shareholder in ERS as of April 2, 2002. WHEREFORE, Plaintiff demands: (a) that Larry Aguin;e return the amounts he has converted, in an amount in excess of the arbitration limit in Cumberland County, together with all interest, costs of court and punitive damages for Larry Aguirre's intentional embezzlement and theft of these funds, as well as attorneys fees accrued in the prosecution of this case; and (b) 8 that, pursuant Pa. R.C.P. 1602, the court declare that Aguirre's improper actions constituted an incident of involuntary withdrawal and, thus, Aguirre's interest in ERS was terminated as of April 2, 2002. full. 50. COUNT IV - The allegations of Paragraphs 1-49 are incorporated by reference as if set out in 51. While Aguirre worked for ERS, ERS loaned money to Aguirre in the following amounts, on the following dates: a. $3,250.00 - January 18, 2001 b. $1,825.00 - May 31, 2001 c. $500.00 - June 6, 2001 d. $50.00 - September 20, 2001 52. ERS loaned Aguirre a total of $5,625.00. 53. The loan agreements were oral, with the simple understanding that all amounts loaned would be repaid. 54. Aguirre, at the time he ceased working for ERS, had not paid back these loans, for which demand is made. 55. Aguirre breached the loan agreement he had with ERS by failing to return the money ERS loaned him. 9 WHEREFORE, Plaintiff's demand that Larry Aguirre return the amounts ERS loaned him, which, together with the amount demanded in Count III, exceed the arbitration limit in Cumberland County, together with all interest, costs of court, as well as attorneys fees accrued in the prosecution of this case. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. Date: By: Steven E. Gmbb, Esquire Attorney I. D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 171108-1268 Telephone: (717) 2.34-4161 Attomeys for Plairttiff 87312.1 10 VERIFICATION I hereby acknowledge that I have read the foregoing Complaint and related documents and that the facts stated therein are tree and correct to the best of my knowledge, information and belief and the documents produced are a complete response, to the best of my knowledge, to the document request. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsifications to authorities. ALBIE DEFRANK Date: Goldberg, l{a~Zman & Shipman, P.C. Stcvcn E. Ombb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box I268 Harrisburg, PA 17108-1268 (717) 2344161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKM. AN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants IN THE COURT OF COMMON PLEAS CUMBEP, J_~ND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NOTICE YOU IIAVE BEEN SUED IN COURT. If you wish to defend against the claims set fortt in the following pages, you must take action within twenty (20) days after this Complaint and Notic are served, by entering a written appearance personally or by alIorney and filing in writing with th, Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Corn without further notice for any money claimed in the Complaint or for any other claim or relic requested by the Plaintiff. You may lose money or property or other fights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAW-YER AT ONCE. IF YOU DO NO: HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OIL TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT V,~-IER_E YOU CAN GET LEGAL I-IELP. LAWYER REFERRAL SERVICE CUMBERLAND BAR ASSOCiATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la coke. Si asted q~liere defenderse de estas demand~ e.'cpuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de ia fecha de demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogad y archivar en la corte en fonna escrita sus defensas o sus objectiones a las demaudas en contra su persona. Sea adisado que si usted no se defiende,- la sin previo aviso o nofificacion y pc cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMI~iEDIATAMENTE. SI NO TIEN] ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAY7 EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIKECCION St ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUI ASISTENCIA LEGAL. LAW'Y-ER REFERRAL SERVICE CUM2BERLAND BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 By: GO~t ~,~KATZMAN & SHIPMAN, P.C. '-~S~/~ren E. Grubl~', gsquire Attorney I.D. #75;g97 320 Market Street, P. O. Box I268 Harrisburg, PA I7'108-1268 (717) 234-4161 Attorneys for Plaintiff Goldberg~ Katzman & Shipman, P.C. Steven E. Gmbb, Esqu/re, I.D.# 75/97 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA I7108-I268 (717) 234-~161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COLrRT OF COMMON PLEAS CUMBERL2X2qD COUNTY, PENNSYLVANIA CIVIL ,~CTION - EQUITY NO. COMPLAIArr Plaintiff, Eastern Recovery Systems, Inc., bY and through its counsel, Goldberg, Katzman, Shipman, P.C., alleges the following in support of this CompLaint: 1. Plaintiff, EasternRecovery Systems, Inc. ("ERS'"), is aPeunsylvania corporation wit a principal place of business at 151 Reno Avenue, ?d Floor, New Cumberland, York County, Pennsylvama 17070. 2. Defendant, Aguirre, A/kmart & Brown, Inc. holds itself out as a Pennsylvania corporation with a registered address of 706 North Front Street, Wormleysburg, Cumberland County, Pennsylvarfia 17043. Aguirre, Aikman & Brown, Inc. 's Articles of Incorporation are attached hereto as Exhibit A. 3. Larry A. Aguirre is an adult individual with a last known mailing address of 706 North Front Street, Wormleysburg, Pennsylvania 17043. 4. Since October of 1999, ERS has been engaged in the business of corporate and commercial collections. Businesses, which are also creditoxs, retain ERS to collect amounts du from debtors. 6. patent offices. 7. 8. Since October 1999, ERS hms held itself out as "Aguirre, Aikman & Brown." The trade name is not registered with state or federal trademark, corporate or Larry Aguirre was a shareholder in ERS since May 24, 2000. ERS presently has over 500 clients and markets to nearly 25,000 businesses per year, throughout the country. 9. All of these clients, and potential clients, know ERS through its trade name, "Aguirre, Aikman & Brown." 10. In March 2002, two shareholders in ERS, Joshua Heicklen and Albie DeFrank, discovered evidence that Larry Aguirre had embezzled over $28,000 fi.om ERS. 1 i. The amount embezzled by Larry Aguirre was in the form of fees due ERS from it~ customers, as well as money collected from debtors which should have been sent to ERS' customers, but which Larry Aguirre retained. ? 12. As a result of this discovery, the relationsl-fip between Messrs. Heiclden, DeFrank and Aguirre ended around March 29, 2002. 13. Upon the discovery of the embezzlement, Larry' Aguirre is believed to have fled the jurisdiction. Efforts by ERS to locate Larry Aguirre have been unsuccessfal. 14. Since the disappearance of Larry Aguirre, E/~S has continued to operate in the business of corporate and commercial collection services, still utilizing the Agu/rre, Aikman & Brown trade name. 15. Recently, ERS spent over $1,500.00 in capital for Aguirre, Aikman & Brown stationery, business cards and advertising. 16. In the course of business planning, ERS sought to register Aguirre, A/kman & Brown as a fictitious name with the Pennsylvania DepartmenI of State Corporations Bureau. I7. It was discovered that, unbeknownst to ERS, on January 3, 2002, Larry Aguirre, personally, had incorporated Aguirre, Aikman & Brown, Inc. 18. This made it impossible for ERS to register the Aguirre, Aikman & Brown trade name, absent permission or Larry Aguirre's consent to the use ora similar name. 19. Considering that Larry Aguirre could not be found, and considering the poor relationship between the parties, permission of this sort was i~npossible. 20. Larry Agalrre irmorporated Aguirre, A/kman & Brown, Inc. in a direct attempt to steal business from ERS, who had been holding itself out under the Aguirre, Aikman & Brown trade name. ? 21. Pr/or to his disappearance, Larry Aguirre had hired at least one salesman and was preparing to compete for ERS' business using the trade name ERS had utilized since October of 1999. 22. The conduct by Larry Aguirre in incorporating Aguirre, Aikman & Brown, [nc. is a misappropr/ation ora trade name which had been used by ERS since October 1999. 3 23. This misappropriation has ah'eady caused coxffusion among various consumers and businesses as follows: a. ERS has been contacted by several of Aguirre, 'A/kman & Brown, Inc.'s creditors, including its telephone company. b. ERS has been contacted by a computer software company for overdue balances on software which Larry Aguirre was to have used at Aguirre, Ailcman & Brown, Inc. In the course of paying for these computers, Larry Aguirre told the software company that all billing inquir/es should be submitted to Joshua Heicklen at ERS. Larry Aguirre gave the software company Mr. Heicklen's e-mail address as a source of contact for Aguirre, A/kman & Brown, Inc. 25. out in full. c. A plumber who had done work at Aguirre, A/kman & Brown, Inc.'s Wormleysburg address, had not been paid, nor had Aguirre, A/kman & Brown, Inc.'s landlord. Both contacted ERS for payment. 24. Aguirre, A/kman & Brown has had to remedy the problems Larry Aguirre's embezzlement of over $28,000 of debts that were collected, but not turned over to ERS' clients, by paying those clients, essentially a second time, the amounts Larry Aguirre collected. COUNT I - VIOLATION OF THE LANHANI ACT The averments of paragraphs 1-24 above are incorporated by reference as if set 26. The conduct of Defendants is a violation of the Lanham Act, 15 U.S.C.A. § 1125(a), in that Defendants have misappropriated the name Aguirre, Aikman & Brown, which was used, and is still being used, byERS in its provision of collection services. 27. As described above, Defendants' use of the Agu~e, Ailcman & Brown name has caused confusion. 28. Defendants' use of the Aguirre, Aikman & Brown name has caused ERS to be unable to lawfully register the name it has been using for over' three years. 29. Defendants' use of the Aguirre, Aikrnan & Brc,wn name was for no other reason than to disrupt the bus/ness of ERS and to misappropriate the business of ERS to this new business. 30. Section 43 of the Lanham Act is applicable to rmregistered trademarks, such as tiffs one. 31. /~RS has no adequate remedy at law which would allow it to utilize the name it had been using for several years. WHEREFORE, the following relief is demanded: a. Defendants be permanently enjoined from using the "Aguirre, Aikman & Brown" name; b. Defendants be ordered to change the name of the registered corporation, Aguirre, Aikman & Brown, Inc., to comply with the terms of this order; c. ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part of Defendants in deliberately attempting to usurp business from ERS. full. 32. COUNT II - UNFAIR COMPETITION The ailegations of Paragraphs 1-31 are incorporated by reference as if set out in 33. Defendant's conduct, as described above, is done with the iment to injure ERS' t~usiness and to unlawfully convert the business of ERS to Det~ndant's own business. 34. As described above, this has caused confusion in the marketplace and misrepresents the true corporate entity which is entitled to utilize the trade name, Aguirre, Aikman & Brown. 35. Defendants' actions do not permit ERS to properly and legally reg/ster the name it has been using since October of 1999, and which it has held itself out as to several thousands of people. 36. ERS has no adequate remedy at law which would allow it to properly utilize the name it had been using for several years. WttEREFORE, the following relief is demanded: a. Defendants be permanently enjoined from using the "Aguirre, Aikman & Brown" name in any sense from here forward; b. Defendants be ordered to change the name of the reg/stered corporation, Aguirre, Aikman & Brown, Inc., to comply with the terms o~?this order; c ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part ~fDefendants in deliberately attempting to usurp business from ERS. 37. COUNT 1II - CONVERSION V. LARRY AGUIRRE The allegations of Paragraphs 1-36 are incorporated by reference as if set out in 38. During his relationship with ERS, Larry Aguirre embezzled over $28,000 worth of fees due ERS, as well as debts owed ERS' customers. 39. Larry Aguirre would divert these funds to an account he maintained in New Jerse in the name of Aguirre, A/lm~an & Brown, unbeknownst to the other shareholders of ERS. 40. The embezzlement was discovered in March 2002, at which point, the mlationshi between Larry Aguirre and the other shareholders of ERS broke down. 41. Larry Aguirre has asserted dominion and control over $28,000 worth of funds which are rightfully due ERS, and the clients of ERS, and which ERS has had to pay clients of ' ERS in order to preserve the relationship with its customers. 42. hi addition to this $28,000 Aguirre embezzled, he also failed to pay the following ti) ERS: a. Fees for the year 2000 in the amount of $2,728.92. 7 full. 45. b. Personal Federal Express charges for 2000 in the mount of $261.09; for 2001 in the amount of $217.84; and for 2002 in the amount of $79.80. c. A high-back leather chair which Aguirre purchased for personal use with ERS funds, valued at $99.99. 43. Larry Aguirre's actions are without justification. WHEREFORE, Plaintiff's demand that Larry Agate return the a-mounts he has converted, in an mount in excess of the arbitration limit in Cumberland County, together with all interest, costs of court and punitive damages for Larry Agairre's intentional embezzlement and theft of these funds, as well as attorneys fees accrued in the prosecution of this case. COUNT IV - The allegations of Paragraphs 1-43 are incorpemted by reference as if set out in While Aguirre worked for ERS, ERS loaned money to Aguirre in the following mounts, on the following dates: $3,250.00 - January 18, 2001 $1,825.00 - May 31, 2001 $500.00 - June 6, 2001 $50.00 - September 20, 2001 46. ERS loaned Aguirre a total of $5,625.00. 47. The loan agreements were oral, with the simple understanding that all amounts loaned would be repaid. 8 48. Aguirre, at the time he ceased working for ERS, had not paid back these loans, fo which demand is made. 49. Aguirre breached the loan agreement he had with ERS by failing to return the money ERS loaned him. WHEREFORE, Plaintiffs demand that Larry Aguirre return the amounts ERS loaned him, which, together with the amount demanded in Cou~t ~ exceed the arbitration I/mit in Cumberland County, together with all interest, costs of court, as well as attorneys fees accrued in the prosecution of this case. Date: Respectfully submitted, GOLDB..~IZG, KATZMAN & SHIPMAN, P.C. Attorney L D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 1.7108-1268 Telephone: (717) 234-4161 Attorneys for Plaintiff 87312.1 I hcrcby acknowledge that I have mad the foregoing Complaint and related documcms and that the facts stated th~in are lr~e and correct to the be.st of my knowledge, ir~ormation and b¢lie£ and the documents producc, d are a complete response, ~o the b~st of my knowledge, to the document mques~, The undersi~'n~ unde~t~nds that the statements therein ~r~ made subject to the penalties of C.S, §lflO,~ relalin~ to uriswom falsifications to authorities. PLNNS't Lb ANIA DEPARTMENT OF STATE CORPORATION BUREAU Articles of Incorporation-For Profit j' (15 Pa.C.S.t v Business-stock (§ 1306) Management (~ 2703) Business-nonstock (~ 21021 Professional (§ 2903) gusiness-statulory close § 2303 } Insurance (§ 3 lOll Cooperative (§ 7102) -~0 t. .¥, ff~o,-.-r 3'r' · Fee: $100 Filed m Ihe Dcpanmeat uf State on Jn compliance ~ ith the requirements of the applicable provisions (relating lo corporations and unincorporated associations), the undersigned, desiring Lo ~ncorpnrme a corporation Jbr prolit hereby states thac 2 Fhe (al address ofdlis corporatmR's current registered oftice in this Commonwea}th Fpo,vt o/flee box, a/one, t.~ not ~c:c'ptablel or (b I name of its commercial registered office provider and tile county of venue is: Number and Street /6. ~' ~ Cit.,., SLate Zip County (b Nan e ut (ommercuLI Reglstered Office Provider County C O: 2 ..... Name ~~ ecified effective date. i£anv, month/day.year hour, ffanv L 7 Additionalprov ~ OhS of the a~icies its shares oFanv class ihat wouid Nenher the corporation mr any s lareholder si a I make an offering o£any / 1o33 (15 U,S.~. 77a et seq.} of consti[u e a "public offering with/n tim meaning of the Securities Act of eral. ire tr. Noratttms tilt(l:. ( 'uag#ete andstrike tn I mipfl/&ab& term. Fhe common bond of'membership among its membe~"shareholde~ is:~ ~ f IN TESTIMONY WH'EREOF, lhe incorporalor(s) b.a./have signed these Articles of Incorporation to be stgned b) a duly authorized officer thereof this o / davof o~. o~. Signature Signature -/ 04/20/00 12:33 '~'717 236 9316 m :',,homeklt ~m~,~-m~am~. 4/19/00 I~TP&W ~002/006 PAltT~qme *cm~*eM~:ST ./~L'~/ '[HIS AG~~, ~ ~is ~ Sy of 2~, ~ ~ ~ P~n~lvmia ~ ~ i~ ~o~ pl~ of~ ~ ]51 R~ Ave~ ~ ~ New C~b~m~ C~b~md ~W, P~ia 17070, md ~Y A~ ~ina~r ~ ~ ~ ~) ~ 657 ~ ~ OM ~ N~ ~ ~50, ~c, N~ ~i~d, Y~ C~, P~I~ 17070. ~S, ~e ~s h~ ~ p~ ~ a~ ~ ~ ~ ~ ~11~ o~ ~ md ~3 ~. 1. N~ ~ P~ OF BUS~. ~ ~ of ~ ~ ~ ~ ~a~ R~v~ Sy~, he. ~c p~ p~ oF~*~ ~1 ~ ~ ISI ~ Ave., S~ond ~, New ~b~ ~b~d ~, P~~ ~ ~ ~ ~ I~a~o~ as ~y ~ a~ u~ by ~e ~. debts. 3. CAPITAL. The capital of d~e corporation shall ~ons/st of S46,115.65, conm'but~d by thc pattic~ hereto as set forth. 04/20/00 12:8,3 '{~'?17 236 9,316 BTP&W mloo /oos o Follows: loshua Heicklm AFoctt I)eFrank The ownership and titles of *he principals shall be as 5. MAJqAGEMENT AND OPERATIONS. Aguln~ shall be respoem'ole on a day-to-day bas~s the Colleciio~ D~vision of the business. Heicklen shall be nnspomn'ble on a day-to-day basis for the Sales D/vision of the business. DeFmnk shall be nsspoudbln on a day-to-day buis for outside sales and ~nnncial reporting m~t~s of thc 5usineas. 6. COlkH~ENSATION. The principals will di~m~ Fifty ($0~) ~ oF tl~dr revenue by their share, after monthly mpenses arc paid. The nnnainm' g scvenuc will be set-m= side for company l~rowth and development. 7. TRANSFER OF OWN'KRS~ INTIF. J~ST. All principals aSree that the will not mmsfer, assign, or sell their ownership interest to any penou or company without I~ unanimous consent of ali the parties here~. 8. DEATH. Should any of thc principals here~ die, the co~ ~ ninety (90) days a~r the date of death, shall purchase the deceased p.:.,cipals's imer~ for a pttrchase price to be dete.,~ined each year at the coqx,rate ~..~c-~,g, by a vote of the principals and det~,,.~nation of accountant. The principals agree to the deceaasd lwincipal's heirs' share will be amortized and shall be paid !/3 as a downpaymcnt and the re~ balance over a period of f~ve (5) years 9o the buy-out of the clceeased lwineipal's shs~ does not impose a financial hardship on the remaining principals or the co~. 04/20/00 12:34 '~717 236 9316 BTP&W I~ o04/005 9. BUY-OUT. VOLUNTARY WITHDR,4W'AL. Should any of ~e t~pals hercto voluntarily withdraw from ~is ~,,l, oration (except upon vohmtm'y d/moluti~ of the corporation), either one or both agrees to accept the book value of his intent at th~ time, less 25%. Purchase price shall be paid in cash 1/3 of the intet~t within nine~ (90) days of withdrawal and the ~ei~-,aining balance will be paid over a five (5) year period. INYOLLWTAR¥ W/'/'H'DR~W'AL - Should any of the pfinci~ be~o involnnt~ withdraw from this corporation, each one alpaca to accept book value at that tin~ of his interest. Purchase pr/ce shall be paid in ten (10) semiannual pa3nnena. 10. CORFORATE BOOI~.q. The principals agree ~o n~,,~..h, complete book~ of account at all times. They shall bc open to inspection by. all p~t,,er~ er by his ncczedlted r~-presentativ¢ at any time during reportable business houri.. The books of nccmmt shall be cxaminad and r~icwcd as of the closed of each quarter and end of fiscal year. i i. EXECUTION OF CHECKS/BANK ACCO~. All disl~nzm~ts made by the corporation by the form of business check shall be signcd by two of Ihe ~ officers. One of the signing officen mast be Aguirre. A new Trust Fund Account will be cstablishcd under thc name of Eastern gecoveo/ Systems, Inc., at a local and agrced-upon financial institution. 12. AS,qUMPTION OF DKBT. Agx~re agrees to assume any and all dcbt and liability of Eastern Recovery Systems, Inc., as determined by his share of the company, which is Forty (40%) Percent. 04/20/00 12:34 ~717 236 9316 B'rP&W {3. PAYMENT OF DEBT A]MI) LJABH,FFY. The decbt and {iatn-tily mum be p~d as per thc previous teru~ and conditions established by Eastern RecovcFy Syfteu~, Inc. Any and all losses incurred must be shared by the principals, aa per their percentage of ownersh/p of the coi~4,any, az listed in Para~'aph 4 above. I4. NON COMPETE. The princi{~ls further agree {hat they will uo~ wo~ for, invest in, form or be affiliated wilh any person, parlilen~hip or corporalio~ that directly or indirectly competes w~th this corporation or it~ assigns during their affiliation wi~ said corporation or upon termination of their affiliation for any came fro' a period of on~ (1) year. Area defmed as within a 100 lm]e r&dius of the parmer~ip. Aguirre agrc-es that he will dissolve his New hw~3~ {,%~m~afion - Aguirm, A~nan and Brown, Inc., and close the financial mist fhnd in New J~,y upon the e0toomion of Ibis Agreement 15. ADDITIONAL EXECUTION~. The principnis agree to exncu~ any ~'u,~ installments and to perform any acts necessary lo effectua~ and carry on ~e ~ created by this Agreement. 16. MOI)IlmlCATION. No modifications of {his A~e~mmt ~ be bi~ or ~forceable un{ess in wHfng mud ~igned by all princi{mah. This writing re~l~sm~- the emire agreement and understanding of the princilUals wiih reSl~t to the sub~ matS, hereof. 17. AI'~LICA~LE LAWS, The laws of th~ C~mmonwna{~ of Pemsy{vani~ shall be utilized in applying and inm'pm6ng the i~,ovislons of this Aii~oemant. I~ o05/005 04/20/00 12:34 ~T717 236 9316 BTP&W ~O06/OOS 18. SA~ING~ PROVISION. If any provision of this Agreement shall ~ ~1~1 ~ ~ble, in ~ole or ~ ~ ~ ~y ~ ~, ~n~g p~ons sh~l be d~ ~v~ ~ ~d ~ ~ ~ p~ of a b~O or ~oI~ of ~is ~t ~ n~ ~ ~ ~ ~ of ~y ~b~u~t b~ch ~ ~ola~ &~ 19. ~~ DA~. ~is ~t ~1 ~ ~ ~ Eq WITN~S WI~I~OF, and intending to be lewdly bound hea~y, the partita set their hands ~md seals on this day and year ;"..~ above memtionezL WITNE~q$: oct 21 03 09:57a R~uipp~ Ri k~an & Brown 7179090518 April 2, 2002 151 Reno Avenu~ SQcond Floor New Cumberland, PA 17070 Phone: 717.909-0670 tax; 717-909-0618 TollFree:877-909.6EOO Emoll: Alkman[nc~aol.com Larry AguhTe 230 Washiugton Ave Milltown, NJ 08850 Ro: iNVOLUNTARY TERMINATi'ON AND KETENDER OF gTOCK CEASE AND DESIST DEMAND Dear Mr. Aguirr¢: On March 29, 2002, this office received indisputable evidence that you committed lYaud and thor against Eastern Recovery Systems, Inc. DBA Aguirre, Aikman and Brown ("Corporaliou"), ~ld it.s offieers ownership, have ~vertcd to the Corporation pursuant to page 3, paragraph 9. of our Partnership A greoment ("Agreement"), - An audit has shown Ihat tile ~'alr market value of Lbo Corporation, at the thnc nl'your thel]., was less than thc value oft[lc damage you caused. Therefore, you will not receive any compensation tot' the stock recapture It is ['urther hereby demanded that you cease and desist all contact with ':he Corporation's clients, debtors, If you want your personal items back, which we boxed and stored, please fbrward a carti fled cheo!< tbr $250.00 in slorage fee~ ($10,00 pet' day slnee Mm'eh ~, 2002). Once the d~¢ck clears, we will urrangu to retm'n th~ items to y.ou. l,ast you }lave until April 8, 2002 :o return all proprietary Corporate in15rmation ~nd property under your comrol. Faihtre to II)eot any of these terms Ired co d tions will result in us seekillg civil, equitable, and criminal remedies. Regards. ~__:.... .,'~ .=~"" . - ,/Easte~ Recovery Systems, Inc. DBA Agui~e, Aikman & ~rOWU A~u~rre Atk~an & Brown 717GOSOB18 · Complete items 1, 2, and 3, Also ~pi~t6 Item 4 if Restr~ste~ Delivery ie desl~.~d. · Pdnt your name ahd addrese on the reverse so that we can return the-card to you. m Attach this card to the back of the mailpiece, or on tt~e f~nt if space permits. n Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 t717) 2344161 EASTERN RECOVE INC., AGUIRRE, AIY. MA~ AND LARRY A. AG And now, this cause why Petitioner [~Y SYSTEMS, Plaintiff ' & BROWN, INC. : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - EQUITY : NO. 02-5991 RULE day of~,,.2.003, a Rule is issued upon Respondents to show ,uld not be permitted to amend its Complaint. Rule returnable ~ ~ays .'~h"t'~ Cr~er. ~ff~4.)! I-.~ Goldberg, Katzman & Shipman, P.C. Steven E. Gmbb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. : AND LARRY A. AGUIRRE, : Defendants : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - EQUITY NO. 02-5991 MOTION TO MAKE RULE ABSOLUTE Petitioner Eastern Recovery Systems, Inc., by and through its counsel, Goldberg, Katzman & Shipman, P.C. allege the following in support of this Motion to Make Rule Absolute: 1. Petitioner is Eastern Recovery Systems, Inc. (ERS), plaintiff in the above- captioned matter. 2. Respondents are Aguirre, Aikman & Brown, Inc. and Lan'y A. Aguirre, defendants in the above-captioned matter. 3. On October 22, 2003, ERS filed a Petition to Amend Complaint seeking leave of court to file an amended pleading in the above-captioned case. 4. On October 23, 2003, a rule was issued upon Respondents to show cause why Petitioner should not be permitted to amend its Complaint. The Rule was returnable fifteen (15) days from service of the Order. 5. Per the procedure utilized by Cumberland County, envelopes were provided to the Cumberland County prothonotary, who presumably served the Court's Rule at some point on or about October 23, 2003. 6. Service of the Petition was handled by counsel who mailed the Petition, both via regular U.S. Mail and certified mail to all known addresses of Defendants. 7. While the mailing sent to the address of Respondents in Wormleysburg was returned as undeliverable, service was effectuated at the New Jersey address, since the U.S. Postal Service has not notified counsel that the Petition was not delivered to that address. 8. Respondents have shown no cause why amendment should not be permitted, in the allotted 15-day time period. V~IEREFORE, it is respectfully requested that the Court make the Rule absolute and enter the attached order granting Petitioner leave to file an amended complaint. Respectfully submitted, Date: November t g~, 2003 GOLDBERG, KATZMAN & SHIPMAN, P.C. '-~e~ E. Gmbb, ~qt~ire iI.D. #75897) 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Counsel for Plaint[frs 103118.1 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Hamsburg, Pennsylvania, first-class postage prepaid, addressed to the following: Larry A. Aguirre 230 Washington Avenue Milltown, NJ 08850 Aguirre, Aikman & Brown, Inc. c/o Larry Aguirre 230 Washington Avenue Milltown, NJ 08850 Date: November [~', 2003 GOLDBERG, KATZMAN & SHIPMAN, P.C. Steven E. Grubb, Esquire I.D. #75897 Attorney for Plaintiff 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-416l EASTERN RECOVERY SYSTEMS, 1NC., Plaintiff AGUIRRE, AIKMAN & BROWN, 1NC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERL.~qD COUNTY, PENNSYLVANIA CW]L ACTION - EQUITY NO. 02-5991 ORDER. idered Petitioner's Motion to Make Rule Absolute, it is hereby ordered this 2003, that the Rule is absolute and Petitioner is granted leave to file an amended complaint. 4 lO:n X~t 9ZAON£O Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P. O. Box 1268 Harrisburg, PA 17108-1268 t717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - EQUITY NO. 02-5991 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE CUMBERLAND BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Goldberg, Katzman & Shipman, P.C. Steven E. Grubb, Esquire, I.D.# 75897 Attorneys for Plaintiff 320 Market Street Stcawbeffy Square P. O. Box 1268 Harrisburg, PA 17108-1268 ~717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff V. AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COLrNTY, PENNSYLVANIA CWIL ACTION - EQUITY NO. 02-5991 AMENDED COMPLAINT Plaintiff, Eastern Recovery Systems, Inc., by and through its counsel, Goldberg, Katzman & Shipman, P.C., alleges the following in support of this Complaint: 1. Plaintiff, Eastem Recovery Systems, Inc. ("ERS"), is a Pennsylvania corporation with a principal place of business at 151 Reno Avenue, 2~a Floor, New Cumberland, York County, Pennsylvania 17070. 2. Defendant, Aguirre, Aikman & Brown, Inc. holds itself out as a Pennsylvania corporation with a registered address of 706 North Front Street, Wormleysburg, Cumberland County, Pennsylvania 17043. Aguirre, Aikman & Brown, Inc."s Articles of Incorporation are attached hereto as Exhibit A. 3. Larry A. Aguirre is an adult individual with a last known mailing address of 706 North Front Street, Wormleysburg, Pennsylvania 17043. 14. Since the disappearance of Larry Aguirre, ERS has continued to operate in the business of corporate and commercial collection services, still utilizing the Aguirre, Aikman & Brown trade name. 15. Recently, ERS spent over $1,500.00 in capital for Aguirre, Aikman & Brown stationery, business cards and advertising. 16. In the course of business planning, ERS sought to register Aguirre, Aikman & Brown as a fictitious name with the Pennsylvania Department of State Corporations Bureau. 17. It was discovered that, unbeknownst to ERS, on January 3, 2002, Larry Aguirre, personally, had incorporated Aguirre, Aikman & Brown, Inc. 18. This made it impossible for ERS to register the Aguirre, Aikman & Brown trade name, absent permission or Larry Aguirre's consent to the use of a similar name. 19. Considering that Larry Aguirre could not be found, and considering the poor relationship between the parties, permission of this sort was impossible. 20. Larry Aguirre incorporated Aguirre, Aikman & Brown, Inc. in a direct attempt to steal business from ERS, who had been holding itself out under the Aguirre, Aikman & Brown trade name. 21. Prior to his disappearance, Larry Aguirre had hired at least one salesman and was preparing to compete for ERS' business using the trade name ERS had utilized since October of 1999. 22. The conduct by Lan'y Aguirre in incorporating Aguirre, Aikman & Brown, Inc. is a misappropriation of a trade name which had been used by ERS since October 1999. 3 23. This misappropriation has already caused confusion among various consumers and businesses as follows: a. ERS has been contacted by several of Aguirre, A~kman & Brown, Inc. creditors, including its telephone company. b. ERS has been contacted by a computer software company for overdue balances on software which Larry Aguirre was to have used at Aguirre, Aikman & Brown, Inc. In the course of paying for these computers, Larry Aguirre told the software company that all billing inquiries should be submitted to Joshua Heicklen at ERS. Larry Aguirre gave the software company Mr. Heicklen's e-mail address as a source of contact for Aguirre, Aikman & Brown, Inc. c. A plumber who had done work at Agmrre, Aikman & Brown, Inc. Wormleysburg address, had not been paid, nor had Aguirre, Aikman & Brown, Inc.'s landlord. Both contacted ERS for payment. 24· Aguirre, Aikman & Brown has had to remedy the problems Larry Aguirre's embezzlement of over $28,000 of debts that were collected, but: not mined over to ERS' clients, by paying those clients, essentially a second time, the amounts iLarry Aguirre collected· COUNT I - VIOLATION OF TIlE LANIlAM ACT 25. The averments of paragraphs 1-24 above are incorporated by reference as if set out in full. 4 c. ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part of Defendants in deliberately attempting to usurp business from ERS. 32. COUNT II - UNFAIR COMPETITION The allegations of Paragraphs 1-31 are incorporated by reference as if set out in full. 33. Defendant's conduct, as described above, is done with the intent to injure ERS' business and to unlawfully convert the business of ERS to Defendant's own business. 34. As described above, this has caused confusion in the marketplace and misrepresents the true corporate entity which is entitled to utilize the trade name, Aguirre, Aikman & Brown. 35. Defendants' actions do not permit ERS to properly and legally register the name it has been using since October of 1999, and which it has held itself out as to several thousands of people. 36. ERS has no adequate remedy at law which would allow it to properly utilize the name it had been using for several years. WHEREFORE, the following relief is demanded: a. Defendants be permanemly enjoined from using the "Aguirre, Aikman & Brown" name in any sense from here forward; 6 b. Defendants be ordered to change the name of the registered corporation, Aguirre, Aikman & Brown, Inc., to comply with the terms of this order; c ERS be awarded any and all costs of suit, including reasonable attorneys fees, due to the bad faith and intentional conduct on the part of Defendants in deliberately attempting to usurp business from ERS. full. 37. COUNT III - CONVERSION V. LARRY AGUIRRE The allegations of Paragraphs 1-36 are incorporated by reference as if set out in 38. During his relationship with ERS, Larry Aguirre embezzled over $28,000 worth of fees due ERS, as well as debts owed ERS' customers. 39. Larry Aguirre would divert these funds to an account he maintained in New Jersey in the name of Aguirre, Aikman & Brown, unbeknownst to the other shareholders of ERS. 40. The embezzlement was discovered in March 2002, at which point, the relationship between Larry Aguirre and the other shareholders of ERS broke down. 41. Larry Aguirre has asserted dominion and control over $28,000 worth of funds which are rightfully due ERS, and the clients of ERS, and which ERS has had to pay clients of ERS in order to preserve the relationship with its customers. 42. In addition to this $28,000 Aguirre embezzled, he also failed to pay the following to ERS: Fees for the year 2000 in the amount of $2,728.92. 7 b. Personal Federal Express charges for 2000 in the amount of $261.09; for 2001 in the amount of $217.84; and for 2002 in the amount of $79.80. c. A high-back leather chair which Aguirre purchased for personal use with ERS funds, valued at $99.99. 43. Larry Aguirre's actions are without justification. 44. Pursuant to the terms of the "Partnership Agreement" attached hereto as Exhibit B, Aguirre's embezzlement constituted an instance of involuntary withdrawal from ERS. 45. While Exhibit B is titled "Partnership Agreement," it is a shareholders agreement as the body of the document indicates. 46. By letter of April 2, 2002, Aguirre was notified of his involuntary withdrawal by Joshua Heicklen, CEO of ERS. See copy of letter attached hereto as Exhibit C. 47. Due to his acts of embezzlement, as stated in the April 2 letter, Aguirre was notified that he would receive no compensation for his stock recapture. 48. Additionally, the book value of the corporation, as of the time of termination was in the negative. 49. Aguirre failed to respond to the April 2, 2002 correspondence. 50. Aguirre ceased being a shareholder in ERS as of April 2, 2002. WHEREFORE, Plaintiff demands: (a) that Larry Aguirre return the amounts he has converted, in an amount in excess of the arbitration limit in Cumberland County, together with all interest, costs of court and punitive damages for Larry Aguirre's intentional embezzlement and theft of these funds, as well as attorneys fees accrued in the prosecution of this case; and (b) 8 that, pursuant Pa. R.C.P. 1602, the court declare that Aguirre's improper actions constituted an ...... ,- -- ^-.;.-~'~ interest in ERS was terminated as of incident of involuntary w~tl~arawm ana, tnu~, ~,,,,~ ~ · April 2, 2002. full. 50. COUNT IV - The allegations of Paragraphs 1-49 are incorporated by reference as if set out in 51. While Aguirre worked for ERS, ERS loaned money to Aguirre in the following amounts, on the following dates: a. $3,250.00 - January 18, 2001 b. $1,825.00 - May 31, 2001 c. $500.00 - June 6, 2001 d. $50.00 - September 20, 2001 52. ERS loaned Aguirre a total of $5,625.00. 53. The loan agreements were oral, with the simple understanding that all amounts loaned would be repaid. 54. Aguirre, at the time he ceased working for ERS, had not paid back these loans, for which demand is made. 55. Aguirre breached the loan agreement he had with ERS by failing to return the money ERS loaned him. WHEREFORE, Plaintiff's demand that Larry Aguirre return the mounts ERS loaned him, which, together with the amount demanded in Count III, exceed the arbitration limit in Cumberland County, together with all interest, costs of court, as well as attorneys fees accrued in the prosecution of this case. Respectfully submitted, GOLDB RG, KATZMAN S PMAN, P.C. S~n E. Gmbb, Esqh~e Attorney I. D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Date: Attorneys for Plaintiff 87312.1 10 12/02/2003 15 O0 FAX 717 234 8808 80LDBERG KATZMAN & SHIP~ ~014/014 VERIFICATION I hereby acknowledge that I have read the foregoing Complaint and related documents and that the facts stated therein are true and conect to the best of my knowledge, information a~d belief and thc documents produced are a complctc r~sponsc, to the best of my knowledge, to the document request. The undersigned understands that thc statements therein are made subject to thc penalties of 1 $ Pa. C.$. §4904 relating to unswom falsifications to authorities. Date: 2002003'1230 PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU Articles of Incorporation-For Profit - (I 5 Pa.C.S3 Management (~ 2703) ~ v/Business'stock f~ 1306.}0.~ ~ Professional (~ 2903) --~ Insurance (~ 3101) . Business-nonst°ck (~ ' ---- Business.statutor5 close {~ 2303) t oopemt~u (~ 710_/ c ~ '~ Document will be returned {o the ~'~*~ * ~ ~ '"l~~'a'' Fcc: $100 J~l - 3 200~ L 2 Phc fa} address of this corporamm's current registered off]cc in this Commonwealth (post office box. alone, z.v not a,.c,_'?tabl,.'J or (bi name of its commercial registered otfice provider and lc county of venue is: Number and S{reet City State Zip County Count.',' CO: 3 Thc corporamm is ,ncorporated under file pro~lsio s lt'lhe Business Co, voration Law of 1988. 04/20/00 12:$3 ~717 236 9316 . m:khome~ltk:ml~ _~,-~u'~:u~r 4/19/00 B'I?&W . ~002/006 P~n~lvmia co~ ~ i~ p~ pl~ of~ New Cumb~d, C~b~md ~W, P~b~ia 17070, md ~Y ~ina~r ~ ~ ~ A~) of 657 ~ JOS~A ~~ ~ina~ m~ ~ ~ H~ffi) of 37 T~ ~, N~ Cmbefl~d, Yo~ ~W, P~b~ 17070, ~e, N~ ~l~d, Y~ Co, W, P~I~ 17070. ~11~6~ of ~ md ~ ~. ~O~ in ~fi~ of in~t m be l~ly ~ ~ ~ a~ ~ fo~: 1. N~ ~ P~ O~ BUS~. ~e ~st~ R~v~ Sys~, h~. ~e p~ p~ of~ ~1 ~ ~ 151 ~ A~e., S~mnd ~, New ~b~ ~b~d l~afiom aa ~y ~ a~ u~ ~ ~e ~. debts. C.~tPrrAL. The cap/iai of the co~pomfion shall consist of $46,115.65, conm'butcd by thc paxties herelo a~ ~ forth. 04/20/00 236 93~6 ~003/006 o follows: OW . The ownmhip andof the principals shall be as t.any ^_suirre loshua HcicMc~ Aro~ DeFrank 5. MANAGItl~NT A.ND OFF, RATIONS. Aguirre shall be reqmnm~lc o~ a clay-~-day b~s the Collection Division of Ihe business. Heickim droll be req~m~le m~ a day-m-day basis for the Sales Division of the business. DeFrsnk droll be ~ie on a day-W-day basis for outside sales and ~mancial ~sling ~-/,s of the busines~ 6. COMPENSATION. Thc principals will dism'bu~ Fiity (50~) ~ of d~eir rcv~uc by their sharc, affcr monthly expenses arc paid, Thc n:malnm' g mvcm~e will be se*~. side for company growth snd dcvclopmcnt. ~11 not tnmsfer, assign, or sell their owner&hip inin~st m ~ ~ or com[~ wi~out thc unanimous consent of all the parties herein. 8. DEATI-I. Should any of the principals herelo die, the corlxn'ation, ~ ninety (90) da?s al~r the date of death, shall pu~ the de~ pdncilnb's in=rest ~r a purchase price to be detsnnined es~h year ~t the corporate mm~g, by a yom of the principals and det;,.,Mation or' accountant. The prineipals agree ~o ~e deck-and lninci[mi's heirs' share will be a_,nor6zed and shall be paid I/3 as a dovaq~tymmt and d~e remaining balance over a period of five (5) years so ~e buy-om of the ~=eessed lxincipars sham does not impose a financial hardship on &e remaining principals or the corpon~ion. 04/20/00 12:34 ~717 236 9319 BTP&W ~004/006 9. BUY-OUT. VOLU~T,4RY WITHDR.4WAL - he~ volubly ~dmw ~m ~is ~o~n), less 25%. ~h~ ~d~wal ~d ~OL~r~Y ~w in~. ~ch~ pfiee shall be p~d ~ ~ (10) ~ ~- 10. COYOTE ~a~ ~d ~i~ A n~ T~t F~d A~t ~11 be ~li~ Sys~, ~., ~ a I~ ~d ~-~ fin~ ~. 12. ~ON OF D~T. and liab~i~ of which is Forty 04/20/00 12:34 '~'717 236 9316 BTP&W ~005/006 · 13. PAYM'~ OF DRBT AND LIA~ll.s'i-f. The debt bc p~d ~ ~ ~c p~io~ m md ~n~fions ~li~ ~ ~ ~ Inc. Any ~d all Io~s in~ ~ be ~ by ~e ~ ~ ~ ~ o~hip of ~e ~my, m lis~ ~ P~h 4 ~c. 14. NON CO~. ~e ~n~s ~ ~ ~ ~ invest ~, fo~ ~ be ~i~ ~ ~y ~, p~ip ~ ~ indi~fly ~ ~ ~is ~6~ ~ i~ ~s ~'hag ~ ~ ~fion or u~ ~on of ~r a~ ~ ~ ~ ~ a ~ ~a d~ ~ ~ a 100 mqc ~us of ~c ~ip. A~ ages ~ he ~11 di~e his N~ ~ ~ - ~,~ ~d Bmr, Inc., ~d clO~ ~e fin~fl ~ ~ ~ N~ ~ ~ ~ A~t 15. ~ by ~is A~ 16. ~OD~CA~O~. No ~fi~ of ~ ~t 17. ~PLIC~ ~WS. ~c laws of ~ ~~ shall be ufil~ ~ ~nS ~d ~g ~e ~s ~ ~s A~C ADDITIONAL ~,XECUTIONS. Thc principals a~ee to cxccut= ~ny 04/20/00 236 9316 BTP&W 1~1005/006 18. SAVINGS PROVISION. If any provision of this Agrcctmnt shall bc ar shall become illegal or unenforceable, in whole or in ~ for any reason wtia~, the remaining provisions shall be deemed invalid, binding and subsi~ii~,$. The waiver by either parr/of a breach or viola~on of this Agreement shall not operate or bc eensuued as a waivar of any subsequent breach or violalion thercof. 19, EFI~KCTIVE DATE. This Agreement shall be effective in~ upon execution by thc parties. 1N WITNESS %~rIIEREOF, and intending to be legally bound hereby, d~e paflies hereunto set their hands and seals on Ibis day ~td year ~',,~ above menlion~d. April 2, 2002 Reno Avenue S:~on4 Floor liew Cumberland, PA 17070 Pho,e: 717,999-0670 F~x; 717-909-0618 TollFree:877-gog.6500 Emeih AikmonJnc~aol,com Larry Aguh're 230 Weshh~gton Ave Milltown, NJ 08850 Re: iNVOLUNTARY TERMINATION AND RETENDER OF STOCK GF. ASE AND DESIST DEMAND Dear Mr. Agnirre: On March 29, 2002, this ot'l'~ce received indisputable evidence that you eommkted fraud end the/'t against Eastern Recovery Systems, Inc. DBA Aguitre, Aikman and Brown ("Corporation"), and its c,f'lScers ownership, have reverted to the Corporation pursuant to page 3, pm-agraph 9. of our Pormership Agreement ("Agreement"). An audit has shown that the fair market value or the Corporation, at thc time of'your theft, was less than thc value of the damage you caused. Therefore, you will not receive any compensation for the stock recapture IL b f%rther hereby demanded that you cease and desist ali contact with the Corporation's clients, debtor% Il'you want your personal items back, which we boxed and stored, please tbrward a certified check for $250.00 in t.;Iorage fee~ ($10,00 per day sln** March 8, 2002). Once the *heg;k clears, we will itrrange Ltl return the items to you. l.ast, you have until April $. 2002 1o return all proprietary Corporate [nforrnution and property uuder your control. Fuihu'e to meet any of'these terms and Collditions will resuJt in us seekJllg civil, equitable, and criminal remedies. Regards. ,.- , - ,..,?/'. ..... , ..... C~ief F.~ccdtive Officer ,/,Easted~ Recovery Systems, lng. DBA Aguin'e, Aikman & Brown · Coml~le~.e items 1,2, and 3. Also ~ompi=te item 4 i~ FtestHote~ De{iver/~e desired. · P~n! you~ ~arne ~,l~d ~ddress on the reverse so that we can return the.card to you. II Attach th s card to the bsck ?f '(ha m~flpiece, or on the front if space / * ~1 Agen{ [] C.O,D. ..... CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a tree and correct copy of the foregoing document upon all parties or counsel of record by depositing a copy of same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, addressed to the following, as well as via publication in the Cumberland Law Journal and the Harrisburg Patriot News: Larry A. Aguirre 230 Washington Avenue Milltown, NJ 08850 Aguirre, Aikman & Brown, Inc. c/o Larry Aguirre 230 Washington Avenue Milltown, NJ 08850 Date: December ~ ,2003 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 AFFIDAVIT OF SERVICE I hereby certify that I served a copy of the Amended Complaint upon the parties indicated below through publication in the Patriot News on December 10, 2003 and the Cumberland Law Journal on December 19, 2003, as indicated in the attached Proofs of Publication of Notice: Larry Aguirre 230 Washington Avenue Milltown, NJ 08850 Aguirre, Aikman & Brown, Inc. c/o Larry Aguirre 230 Washington Avenue Milltown, NJ 08850 Additionally, the Amended Complaint was served via regular U.S. Mail on December 3, 2003 and has not been returned as undeliverable. / ~' ~~'~ -/~'StevenE. G~' / ity of Haffisburg, Dauphin County ] y Commission Expires May 30, 2~5 ~ Morner, Pennsylvania A~o~a~on ol No~es THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication UnderAct No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin} ss Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Asst. Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general cimulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and ail have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the 10th day(s) of December 2003. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY IN THEcuCOURI' OFNDC~co~ pi.lbS, N~l~eal ............ Teny L. Rassdl, Notary Public ~~Y C~ Of Harrisburg, Dauphin County MyCommissionExpiresJune6,2006 I NOT.~RY P'UBLI{~~ Member, PennsylvaniaAssec~OfNota~es My commission expires June 6, 2006 GOLDBERG, KATZMAN & SHIPMAN, PC 320 MARKET STREET P.O. BOX 1268 HARRISBURG, PA. 171081268 Statement of Advertising Costs To THE PATRIOT-NEWS CO., Dr. For publishing the notice or publication attached hereto on the above stated dates Total $ 288.43 circulation, hereby been duly paid. Publisher's Receipt for Advertising Cost publisher of The Patriot-News and The Sunday Patriot-News. newspapers of general ge receipt of the aforesaid notice and publication costs and certifies that the same have PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 STATE OF PENNSYLVANIA : : COUNTY OF CUMBERLAND : SS. Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, Viz December 19, 2003 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. {sa Made Qoyne,-~ditor S~A¥(~RN TO AND SUBSCRIBED before me this 19 _day of DECEMBER, 2003 I NOTXRIALSEAL V I LOIS E. SNYDER, Notary Public i Cadisle ~o, Cumberland County i My Commission Expires March 5, 20051 CUMBERLAND LAW JOURNAL NOTICE In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Action--Equity No. 02-5991 EASTERN RECOVERY SYSTEMS, INC. Plaintiff AGUIRRE, AIKMAN & BROVv'N, 1NC. AND LARRY A. AGUIRRE, Defendants. NOTICE OF SERVICE OF PROCESS BY PUBLICATION TO: Agulrre, Alkman & Brown, Inc. and Larry A. Aguirre, Defendants You are hereby notified that on December 4, 2003, Plaintiff, East- em Recovery Systems, Inc., filed an Amended Complaint endorsed with a Notice to Defend against you in the Court of Common Pleas of Cum- berland County, Pennsylvania, doc- keted at number 02-5991, Civil Ac- tion-Equity, and wherein Plaintiff seeks to enjoin you from using the name Aguirre, Alkman & Brown and compel you to change the name, Aguirre, Aikman & Brown, Inc. to a different name. The Amended Com- plaint also seeks a declaration that you have no further interest in East- em Recovery Systems, Inc. These requested remedies stem from your violations of the Lanham Act, 15 U.S.C.A. §1125(a), and because you have engaged in practices of unfair competition. Additionally, amounts in excess of $25,000 are sought against Larry A. Agulrre, individu- ally, for acts of conversion and breach of loan contracts with the Plaintiff. NOTICE If you wish to defend, you must enter a written appearance person- ally or by attorney and file your de* lenses or objections in writing with the court. You are warned that if you fail to do so, the case may pro- ceed without you and a judgment may be entered against you without further notice for the relief re- quested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS NO- TICE TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, LAWYER REFERRAL SERVICE CUMBERLAND BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 {717) 249-3166 GOLDBERG KATZMAN & SHIPMAN, P.C. STEVEN E. GRUBB, ESQUIRE Attorney 1.1). No. 75897 Attorneys for Plaintiff 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Dec. 19 GOLDBERG, KATZMAN & SHIPMAN, P.C. Steven E. Grubb, Esquire I.D. #75897 Attorney for Plaintiff 320 Market Street Strawberry Square P.O. Box 1268 Harr/sburg, PA 17108- 1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 PRAECIPE FOR DEFAULT JUDGMENT TO THE PROTHONOTARY: Please enter judgment by default against De£endants, Larry A. Aguirre and Aguirre, Aikman & Brown, Inc., in favor of the Plaintiff, Eastern Recovery Systems, Inc. in the above-captioned matter for failure to answer the Amended Complaint. Attached hereto are the 10-Day Notices together with certification o£ mailing. Date: January 23, 2004 By: Respectfully submitted, 7 GOLDBERG,~TZM.&N & SHIPMAN, P.C. S~even E. Grubb,~4uire Attorney I.D. No. 75897 320 Market Street, Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Telephone: (717) 234-4161 Attorney for Plaintiffs GOLDBERG, KATZMAN & SHIPMAN, P.C. Steven E. Grubb, Esquire I.D. #75897 Attorney for Plaintiff 320 Market Sireet Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUIRRE, AIKMAN & BROWN, INC. AND LARRY A. AGUIRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 AFFIDAVIT OF MAILING Personally appeared before me, a Notary Public, in and for said Commonwealth and County, Steven E. Gmbb, Esquire, who being duly sworn according to law deposes and says that on January 12, 2004, he mailed the original of the attached 1 O-Day Notices by U.S. Mail to Larry Aguirre and Aguirre, Aikman & Brown, Inc., both at 230 Wa~shington Avenu~TMilltown, NJ o 8 o. By: · Ste¥~n E. Grubb, ~quire Attorney for Plaintiff Sw, om and Subscribed to before me this of January, 2004 Notarial Seal Jennifer L. Boltz. Notary Public City of Han'isburg, Dauphin County My Commission Expires May 30. 2005 Member, Pennsylvania Association o~No'zaries GOLDBERG, KATZMAN & SHIPMAN, P.C. Steven E. Grubb, Esquire I,D. #75897 Attorney for P~aintiff 320 Market Street Strawberry Square P.O. Box 1268 Hamsburg, PA 17108-1268 (717) 234~416I EASTERN RECOVERY SYSTEMS, INC,, Plaintiff AGUTR1LE, AJX_MAN & BROWN, 1-NC, AND LARRY A. AGUTRRE, Defendants. IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 02-5991 IMPORTANT NOTICE TO: Aguirre Aikman & Brown, Inc. c/o Larry Aguirre 230 Washington Avenue Milltown, NJ 08850 DATE OF NOTICE: January 12, 2004 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO RESPOND TO THE COL2'4TERCLAIM PERSONALLY OR BY ATTORNEY AND FILE/N WP,2TING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAI2MS SET FORTH AGAINST YOU. L2qLESS YOU ACT WITHIN TEN (I0) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT(S) AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOCR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT :~VFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 2 Liberty Avenue Carlisle, PA 17013 Telephone: (800) 990~9108 DATE: January 12, 2004 99958.4 GOLDBERG, KATZMAN & SHZPMAN, P.C. .. St'even E. Orubb, Esqmre : Attorney I.D.# 75897 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Plaintiff GOLDBERG, KATZMAN & SHIPMAN, P.C. Steven E. Gmbb, Esquire I.D. #75897 Attorney for Plaint/fl 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 2344161 EASTERN RECOVERY SYSTEMS, INC., Plaintiff AGUI2OdLE, AIKMAN & BROWN, ]NC. AND LARRY A. AGUIRRE, Defendants. 1N THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVA~NIA CIVIL ACTION - EQUITY NO. 02-5991 IMPORTANT NOTICE TO: Larry A. Aguirre 230 Washington Avenue Milltown, NJ 08850 DATE OF NOTICE: January 12, 2004 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO RESPOND TO THE COUNTERCLAEVi PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIiMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT(S) AND THEREBY LOSE PROPERTY OR OTHER 12vlPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT )d~FORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO F1ND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER R~EFERRAL SERVICE 2 Liberty Avenue Carlisle, PA 17013 Telephone: (800) 990-9108 DATE: 99958.3 January 12, 2004 GOLDBERG, KATZMAN & SHAMAN, P.C. Attorney I.D.# 75897 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Plaintiff