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HomeMy WebLinkAbout99-02840r.) ` y; 1;? 7 _ri, ,.,,?,;: i??Y ??;?. '?',tj ?'1 ??1 /fin yi:? '...,,?i ^?tl? ?r 1 );f v1 al'?t ?:A?S tj 1j.ry% .I" ?? ?ut !fi' !:'.d 1'. <r t Bruce Alan Herald, Esquire Attorney I.D. No. 27992 A Professional Corporation 120 John Robert Thomas Dr. Exton, PA 19341-2654 (610) 594-7555 ADVANCED AUTOMATION ASSOCIATESF INC. Plaintiff Vs. ADVANCED AUTOMATIONS INC. Defendant s Attorney for Plaintiff s s IN THE COURT OF COMMON PLEAS s CUMBERLAND COUNTY# PENNA. s i IN EQUITY s No. s U 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. Cumberland County Bar Association 'Z Liberty Avenue Carlisle PA 17013 717-249-3166 / 0 1-800-990-9108 Date: S I q Bruce A an Herald, Esquire Bruce Alan Herald, Esquire s Attorney for Plaintiff Attorney I.D. No. 27992 s A Professional Corporation s 120 John Robert Thomas Dr. : Exton, PA 19341-2654 (610) 594-7555 ADVANCED AUTOMATION S ASSOCIATES, INC. ; Plaintiff ; s Vs. ; ADVANCED AUTOMATION, INC. s Defendant ; IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. IN EQUITY No. - d 8vo ,;yy 7-1. 1. Plaintiff is Advanced Automation Associates, Inc., a Pennsylvania corporation with offices at 640 Rice Boulevard, Exton, Chester County, Pennsylvania. 2. Defendant is Advanced Automation, Inc., a Pennsylvania corporation with its registered office at 282 Lowther Street, Suite 102, Lemoyne, Cumberland County, Pennsylvania. 3. Plaintiff filed its Articles of Incorporation with the Pennsylvania Corporation Bureau on or about January 6, 1986. A copy of the Plaintiff's Articles of Incorporation is attached as Exhibit A. 4. Defendant filed its Articles of Incorporation with the Pennsylvania Corporation Bureau on or about March 20, 1998. A Lexis-Nexis printout of the Corporation Bureau record is attached as Exhibit B. 5. Defendant's corporate name is confusingly similar to Plaintiff's corporate name. 6. The Business Corporation Law of 1988 specifically prohibits corporate names that are the same as or confusingly similar to the name of any other domestic corporation. In pertinent part, the statute reads as follows: I'M Duplicate use of names.-The corporate name shall not be the same a3 or confusingly similar to: (1) The name of any other domestic corporation..." 13 Pa.C.S. §1303 (Corporate name). 7. on or about January 28, 1999, Plaintiff by and through its undersigned counsel demanded that Defendant cease and desist from using its confusingly similar name. A file copy of Plaintiff's counsel's demand letter is attached as Exhibit C. 8. Defendant responded by and through its counsel by letter dated February 8, 1999, a copy of which is attached as Exhibit D. The response of Defendant's counsel tacitly admits that Defendant's name is confusingly similar to Plaintiff's name. 9. On or about February 17, 1999, Plaintiff renewed its demand that Defendant cease and desist from using the confusingly similar name Exhibit E. A copy of counsel's letter is attached as 10. Notwithstanding Plaintiff's demands, Defendant has failed and refused to change its corporate name to a name that is not confusingly similar to that of the Plaintiff. 11. The Defendant's confusingly similar name is ongoing and continuous. 12. Plaintiff has no adequate remedy at law. Wherefore, Plaintiff prays: (a) That an injunction be issued requiring the Defendant to immediately change its corporate name to a name that is not confusingly similar to that of the Plaintiff and, in the absence of such immediate change of corporate name, revoking the Defendant's incorporation; (b) Restraining and enjoining the Defendant, its agents, servants and employees from using a name confusingly similar to that of the Plaintiff; (c) For such other and further relief as the Court deems just and appropriate. Dated: J S Bruce Alan Herald, E Attorney for Plainti EXHIBIT A APPLI CAN PS ACCT NO. .6C9:8CL-204 (Rev. 8.72) Filcd - ?Aelt'?FtY 19:0 Common cv alth of Pennsylvania Department ?f State Filin¢Fee: $75 (Line for numbering) AI8•7 <2 S7 29 Articles of CONEMON IL,1LTH OF PENNSYLVANIA ? Incorporation- DEPARTMENT OF STATE Domestic Business Corporation CORPORATION BUREAU Secretary of the Commonwealth (Box for Certification) In compliance with the requirements of section 204 of the Business Corporation Lau •, ac[ of May 5, 1933 (P. L. 364) (15 P. S. §1204) the undersigned, desiring to be incorporated as a business corporation, hereby certifies (certify) that: The name of the corporation is: Advanced Automation Associates, Inc 2. The location and post office address of the initial registered office of the corporation in this Common- wealth is: 8 Craiq Drive NUMBER) (STREET) Reading, CITY) 19606 (Ut m P.nnF.l The corporation is incorporated under the Business Corporation Law of the Commonwealth of Pennsvl- ania for the following purpose or purposes: To engage in and do any lawful act concerning all lawful business for which corporations may be incorporated under the Business Corporation Law of Pennsylvania and to do all things and exercise all powers, rights and privileges which a business corporation may now or hereafter be organized or authorized to do or to exercise under the Business Corporation Law of the Commonwealth of Pennsylvania. 4. The term for which the corporation is to exist is: 1 erpetual 5. The aggregate number of shares which the corporation shall have authority to issue is: 100,000 shares of common stock with no par value M. BURN NEIM COMPANY. PNIMCLPNIA 8604 580 OSCB:BCL-204 (Rev. 8.72).2 6. The name(s) and post office address(es) of each incorporatons) and the number and class of shares sub- . scribed by such incorporators) Is (are): NAME ADDRESS NUMBER AND CLASS OF SNARES I?[IYOi.O frtl,•1 doff nuTOtll it dny? Gerald R. Zeigenfuse, 8 Craig _Drive, Reading, PA 19606 One (1) - Common IN TESTIMONY WHEREOF, the incorporator(s) has (have) signed and sealed these Articles of Incor- poration this _16-:hday of December 19 85 (SEAL) . - --r I.{? .'1 ?..• ? t SEAL) Gera d R. Zei.a.enf s4-) INSTRUCTIONS FOR COMPLETION OF FORM: A. For general instructions relating to the incorporation of business corporations see 19 Pa. Code Ch. 35 (relating to business corporations generally). These instructions relate to such matters as corporate name, stated purposes. term of existence, authorized share structure and related authority of the board of directors, inclusion of names of first directors in the Articles of Incorporation, optional provisions on cumulative voting for election of directors, etc. B. One or more corporations or natural persons of full age may incorporate a business corporation C. Optional provisions required or authorized by law may he added as Paragraphs 7, S. 9 ... etc. D. The following shall accompany this form: (1) Three copies of Form DSCB:BCL-206 (Regism Statement Domestic or Foreign Business Corporation). (2) Any necessary copies of Form DSCB:17.2 (Consent to Appropriation of Name) or Forth DSCB:17.3 (Consent to Use of Similar Namel, :S) Any necessary governmental approvak. E. BCL §205 (15 Pa. S. §1205) requires that the incorporators shall advertise their intention to file or the corporation shall advertise the filing of t.rrtlcle?„olf in,?orporation. Proofs of publication of such advertising should not be delivered to the brp:+rvnirnt;daLshould be filed with the minutes of the corporation. EXHIBIT B ?tllti('iP ?'.,?n.',,?i'.)`ilr-f?.1{ !.'.,._. ? i,•, ??n`:?._'?Ia?5F(TP2?iCOR.D a PUR.A"Cllr Flll4?if.... In Sf ? u? , ?-??, l1 .2 S r 1d i(,;: llp?tlC?u?Inl?[{.i2ST . ? ?? l [4A ? flf,?? I i 7t: ne r? - CORRECTION Previous Image Refilmed to Correct Possible Error *** THIS DATA IS INFORMATIONAL, AND ANY CERTIFIED. COPIES MUST BE OBTAINED FROM THE PENNSYLVANIA DEPARTMENT OF STATE. *** PENNSYLVANIA DEPARTMENT OF STATE, CORPORATE/LTD PARTNERSHIP RECORD NAME: ADVANCED AUTOMATION, INC. TYPE: INCORPORATED BUSINESS STATUS: IN GOOD STANDING (ACTIVE) DURATION: PERP DATE OF INCORPORATION/QUALIFICATION: 03/20/1998 MAILING ADDRESS: 282 LOWTHER ST STE 102 LEMOYNE, PA 17043-0000 STATE: PENNSYLVANIA REGISTERED OFFICE: 282 LOWTHER ST STE 102 LEMOYNE, PA 17043-0000 CUMBERLAND COUNTY PURPOSE: BROAD OFFICERS: Name TIMOTHY L WINTERS DOUGLAS W MARKS TIMOTHY L WINTERS DOUGLAS W MARKK Effective 03/20/1998 Title CEO SECRETARY TREASURER VICE PRESIDENT NUMBER: 2807936 HISTORY: MICROFILM DATE TRANSACTION ROLL START/END 03/20/1998 ARTICLES OF INCORPORATION - BUSINESS 09824 0233/0234 CALL LEXIS DOCUMENT SERVICES FOR ALL YOUR CORPORATE NEEDS. 800-634-9738 EXHIBIT C January 28, 1999 TIMOTHY L. WINTERS, CEO ADVANCED AUTOMATION, INC. 282 LOWTHER ST, STE 102 LEMOYNE PA 17043 Re: Advanced Automation, Inc. Our File No. 2-136 Dear Mr. Winters: I represent Advanced Automation Associates, Inc., a Pennsylvania corporation formed in 1986. My client has recently learned that you are using a name confusingly similar to its name and mark. Accordingly, I demand that you • Immediately cease and desist from using any name including, the words "Advanced Automation" • Amend your corporate name to a new name, and • Acknowledge in writing that you have ceased and desisted from using the name and that you have filed the requisite documents with the Corporation Bureau to change your name. Sincerely, Bruce Alan Herald BAH/vlb e + clol? EXHIBIT TucKEK LEEC.SWAnz ARENSBERG .IP ,AM C " ? &SWApT7 SANDRA 1-MuLTb18LTC N N SCFQ STEPHENM, CREECHER JR. ??!! J W /ll\ 1 L, cil O DENNIS K SHEAFFER J. KENTCULLEY V CHARLES I. VATER JEFFREY I. LEECH CARYP. HUNT CHRisTcF,HERI.R..cHAROscN February 8, 1999 RICHARD A. FJTAGc ANNE 41. RIECLE SUSAN M. SEICHMAN STANLEY H.SIECEL •CUmm?{1G:&TwV. Vnix;?rterntl:trowni. BWMiI itNl.!lnU:?[.Y •"\l?l Nll Bruce Alan Herald, Esquire 120 John Robert Thomas Drive Exton, Pennsylvania 19341-2654 RE: Advanced Automation Dear Mr. Herald: I reviewed your letter of January 28, 1999 to my clients. Since we do business in central Pennsylvania and your firm has not reserved the words "Advanced Automation" and is different in kind, I do not see the basis for your request. Not knowing the nature of the business your clients are in, we do not believe there is anything that can cause a misunderstanding on the names. Since we do business in central Pennsylvania only, and we have not seen your company's name listed in any phone directories in our immediate area, we do not believe we are creating any confusion. I am certainly willing to discuss with you your reason for believing your clients, Advanced Automation Associates, Inc., can be confused with my clients. Please give me a call so we can discuss what, if anything, needs to be done by our clients. & SWARTZ JGMjr.pjl 13045.1 v 111 NORTH FRONT STREET PO BOX 889 HARRISBURG. PA 17108-0889 717.234.4121 800.257-4121 FACSIMILE 717.232.6602 Levnsl w Otl¢e 12 South Mem Strut PO Bo. 867 Lew¢ioem. M 1704-0867 717249.3913 Pn our;M Once 1500 One PPG Place PTSeueOn, PA 15222 412.5661212 Greeneourg Omcs 139 South MAm Street GreenWurg. PA 15501 72&.838.1212 E--ml lwatu vrm.com Ae n P,D%$% hAI OMiC. CMitl 1150 Timm Run Pwo Em. Moon Townemo. PA 15108 n. 262.3730 W.> Sml no0 /Iw+in, lueeerwwC[Yn EXHIBIT E LAW OFFICE B R U C E A L A N H E R A L D A PROFESSIONAL CORPORATION 120 JOHN ROBERT THOMAS DRIVE EXTON. PENNSYLVANIA 19341.268.1 TELEPHONE 16101504-7555 FACSIMILE 16101 504.7355 February 17, 1999 JAMES G. MORGAN, JR. TUCKER ARENSBERG & SWARTZ 111 NORTH FRONT STREET PO BOX 889 HARRISBURG PA 17108-0889 Re: Advanced Automation Associates, Inc. Our Files No -136 Dear Mr. Morgan: The Associates Code specifically prohibits the use of any name that is confusingly similar to that of a pro-existing corporation. The prohibition is contained in 15 Pa.C.S. § 1303. The statute lists four potential exceptions, none of which apply. In particular, actual confusion is not required. Your client is prohibited from using the name Advanced Automation which is indisputably confusingly similar to Advanced Automation Associates, Inc. Moreover, my client has conducted business throughout the United States and in central Pennsylvania. I again demand that your client immediately cease and desist from using the name "Advanced Automation, Inc.,' and that you promptly confirm in writing that your client is no longer using the name. Si core y, A an Herald BAH/vlb pc: Advanced Automation Associates, Inc. I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ADVANCED AUTO ION A OCIATES, INC. By: Robert A. Zeigenf e, President Dated:i-L II a a h ? s ., ? ..J Ja "cam W •r ; iL \j V y 0 ADVANCED AUTOMATION ASSOCIATES, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ADVANCED AUTOMATION, INC., DEFENDANT 99-2840 EQUITY IN RE: MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND GUIDO, J. FINAL DECREE AND NOW, this 'S?day of April, 2000, IT IS DECREED that: (1) The motion of plaintiff for summary judgment, IS GRANTED. (2) Defendant, Advanced Automation, Inc., is enjoined from using and continuing to use that name. (3) Defendant shall immediately institute good faith steps to come into compliance with this decree. By the Court, Edgar B. Bayley, J. Bruce A. Herald, Esquire For Plaintiff James G. Morgan, Jr., Esquire For Defendant :saa ? I' -_ ,..?. ,f. ?. i??q,;{?? r CUw???. ? ? , . ?\I;'? ADVANCED AUTOMATION ASSOCIATES, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ADVANCED AUTOMATION, INC., DEFENDANT 99-2840 EQUITY IN RE: MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND GUIDO J OPINION AND DECREE Bayley, J., April 5, 2000:-- Plaintiff, Advanced Automation Associates, Inc., a Pennsylvania Corporation with offices at 640 Rice Boulevard, Exton, Chester County, Pennsylvania, instituted this complaint in equity against defendant Advanced Automation, Inc., a Pennsylvania Corporation with its registered office at 282 Louther Street, Lemoyne, Cumberland County, Pennsylvania. In its complaint, plaintiff avers that it filed Articles of Incorporation with the Pennsylvania Corporation Bureau on January 16, 1986, and that defendant tiled Articles of Incorporation with the Pennsylvania Corporation Bureau on March 20, 1998. Plaintiff alleges that defendant's name is confusingly similar to its name and it seeks an order enjoining defendant from using or continuing to use its name. Defendant filed an answer denying that its name is confusingly similar to plaintiffs name. Plaintiff then filed this motion for summary judgment which was briefed 99-2840 EQUITY and argued on March 1, 2000.' In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment: [w]e must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party'must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.' Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Finally, we stress that summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). The Associations Code in reference to the incorporation of domestic business corporations provides at 15 Pa.C.S. § 1303: (a) General rule.-The corporate name may be in any language, but must be expressed in Roman letters or characters or Arabic or Roman numerals, and shall contain: (1) the word 'corporation,' 'company,' 'incorporated' or 'limited' or an abbreviation of any of them; (2) the word 'association,' 'fund' or 'syndicate'; or (3) words or abbreviations of like import in languages other than English. (b) Duplicate use of names.-The corporate name shall not be the same as or confusingly similar to: (1) The name of any other domestic corporation for profit ' No depositions, answers to interrogatories, admissions or affidavits were filed. Pa. Rule of Civil Procedure 1035.1(2). -2- 99-2840 EQUITY or not-for-profit which is either in existence or for which articles of incorporation have been filed but have not yet become effective ... (Emphasis added.) (e) Remedies for violation of section.-The use of a name in violation of this section shall not vitiate or otherwise affect the corporate existence but any court having jurisdiction, upon the application of... (2) any person adversely affected; may enjoin the corporation from using or continuing to use a name in violation of this section. Section 1303(b), which provides that the corporate name shall not be the same or confusingly similar to the name of any other domestic corporation, was enacted in 1988, and effective on October 1, 1989. Neither we nor counsel have found any cases interpreting this section. Section 1303 replaced Section 202 of the Business Corporation Law of 1933, 15 P.S. Section 1202, which at Section 2026 provided: The corporate name [of a Pennsylvania corporation] shall not be the same as, or deceptively similar to: (1) The name of any other domestic corporation .... (Emphasis added.) In Virginia Manor Land Co, v. Virginia Manor Apartments, Inc., 444 Pa. 351 (1971), the Virginia Manor Land Co., which sold building lots, incorporated in 1956. The Virginia Manor Apartments, Inc. incorporated in November, 1965. The Virginia Manor Apartments, Inc. purchased land adjacent to property owned by Virginia Manor Land Co. with the intent of constructing an apartment complex. The Virginia Manor Land Co, brought a suit in equity under the then Section 202 of the Business Corporation Law to enjoin the Virginia Manor Apartments, Inc. from using its name. -3- 99-2840 EQUITY The issue, under the now repealed Section 202 of the Business Corporation Law of 1933, was whether Virginia Manor Apartments, Inc.'s corporate name was the same as or deceptively similar to the Virginia Manor Land Co. The trial court held that the name was deceptively similar, finding that the name Virginia Manor had been used exclusively by the corporation, had become associated with its developments, was not the name of a general geographic area, and had been selected because of its local importance and because it would associate its enterprise in the public mind. The Supreme Court of Pennsylvania affirmed the trial court, stating: Section 202 of the Business Corporation Law clearly grants a corporation the right to act to prevent another from operating under the same or a deceptively similar name. As this Court has previously said, 'The right of the corporation to the exclusive use of its own name exists at common law, and includes the right to prohibit another from using a name so similar to the corporate name as to be calculated to deceive the public'; the proscription and the remedy of §202 are but the statutory recognition of that common law right. Consolidated Home Specialities [sic] Company v. Plotkin, 358 Pa. 14, 19, 55 A.2d 404 (1947). See, also, American Clay fvlfg, Co. v. American Clay Mfg. Co., 198 Pa. 189, 193-4, 47 Alt. 938 (1901). Under Pennsylvania law protection of a corporate name may be sought and will be given without regard to the existence of a technical trademark where the name chosen by a defendant is the same as or deceptively similar to one already in use .2 z As the court noted in Consolidated Home Specialties v. Plotkin, supra, 358 Pa. at 29, the fact that the Department of State permitted the use of the challenged corporate name by granting a certificate of incorporation is not res adjudicate of the question whether the name adopted is deceptively similar to the name of another corporation. 'Whether [the Department] considered the name whose use it 'permitted' 'deceptively similar' to the name already lawfully in use or did not consider the question at all, is immaterial to the proceeding.' -4- 99-2840 EQUITY It was not necessary in this case for appellees to prove the existence of a secondary meaning of the words'Virginia Manor.' The concept of secondary meaning has developed as a means of determining when a word in common parlance, i.e., a word with a 'primary' meaning, may nevertheless be reserved and protected as a trade name for the exclusive commercial use of a party. See Zimmerman v. Holiday inns of America, Inc., 438 Pa. 528, 266 A,2d 87 (1970), cert. denied, 400 U.S. 992 (1970), Zimmerman v. B & C Motel Corporation, 401 Pa. 278, 163 A.2d 884 (1960); and KoolVent Metal Awning Corp. v. Price, 368 Pa. 528, 84 A.2d 296 (1951). In the present case we are dealing with a matter of the similarity of corporate names rather than with the use of a common word as part of a trademark, The record is clear that the phrase in question-'Virginia Manor'- was first used to describe the plans of the appellees' predecessors in interest and was the principal element of their corporate name; the phrase was carried over by the appellees and has been used continuously by them since their incorporation. The similarity of the corporate names here in question and the likelihood of resultant confusion appear to us to be clear. Moreover, as noted above, the court below found on ample evidence that appellants adopted their corporate name, intending thereby to associate their enterprise with the activities of the appellees; the prevention of this sort of confusion is, of course, a principal policy underlying the restriction of §202. On the record before us the lower court's finding of deceptive similarity and its grant of injunctive relief were fully justified. In the case sub judice, defendant argues that the focus of the current Section 1303(b) of the Associations Code is on situations involving unfair competition between parties in the same business. It maintains in its briefs that because the record consists of only the pleadings and is devoid of facts to indicate what type of business both parties are in, who their customers are and what their customer base is, that plaintiff has not established as a matter of law that "the general public would either be confused by the corporate names or what customers comprise the customer base for either corporation, which is essential to a determination of whether a corporation is entitled to i -5- 99-2840 EQUITY injunctive relief in this action." Plaintiff counters by arguing that under the statutory provision in Section 1303(b) that protects its corporate name there is no issue of whether its name is entitled to protection as a trademark, or has acquired a secondary meaning, and that the protection afforded in Section 1303 eliminates any requirement, as there was under the Act of 1933, of proving, as occurred in Virginia Manor Land Co., that the public would be deceived by the corporate names when the names are so similar on their face as to be confusing. We agree with plaintiff. Although it is a trademark case, the decision of the Superior Court of Pennsylvania in Conti, t/d/b/a Shear Perfection v. Anthony's Shear Perfection, Inc., 350 Pa. Super. 606 (1986), is illuminating on the issue in the present case. The Court reversed a decision of a Chancellor in equity that denied injunctive relief to appellant, who operated a hairstyling salon "Shear Perfection," against appellee who opened a similar establishment "Anthony's Shear Perfection." The Court noted: There can be no doubt in common sense that 'Anthony's Shear Perfection' is deceptively similar to 'Shear Perfection.' The law concurs. '... the infringement of a trade name lies in the similarity of the names involved and not in their identity.' Therefore, the addition of the word 'Anthony's' before the two words in question does not protect appellee. The essential violation is still present; that an average customer could be led by the similarity into using the services of appellee rather than appellant's. (Footnote and Citations omitted.) (Emphasis added.) The State of Michigan has a business corporation law that provides at M.C.L.A. 450.1212(1) that a corporation: (b) Shall distinguish the corporate name from ... (i) The corporate name of any other domestic corporation or foreign corporation authorized to -6- 99-2840 EQUITY transact business in this state. In Educational Subscription Service, Inc. v. American Educational Services, Inc., 115 Mich. App 413, 320 M.W.2d 684 (1982), the Michigan Court of Appeals stated that under this statute the Supreme Court of Michigan, although not definitively announcing a particular formula for determining whether names are confusingly similar, has generally concluded that corporate names are confusingly similar when the first two words of a compound name are identical and in the same sequence. The Court has held that subject to two exceptions, corporate names are not confusingly similar when only one of the first two words of the name is the same. In other words, there are only two conditions under which the Court has found corporate names to be confusingly s m!!ar in situations where only one of the first two words in each name is the same. The first is when one or more words of the plaintiffs corporate name has acquired a secondary meaning which would in and of itself serve to identify plaintiff with that word regardless of the context in which it was used, and the second is when the first word of each corporate name is identical and particularly prominent or distinctive and, in addition, the third word of one company's name is the same as the second or third word of the other company's name. In Pennsylvania, Section 1303 of the Associations Code prohibits a corporation from operating in this state under either the same name or a confusingly similar name of another corporation. In the case sub judice, the first two words of the name of both plaintiff and defendant are "Advanced Automation." The fact that plaintiff has the word -7- 99-2840 EQUITY "Associates" in between the words "Advanced Automation" and "Inc.," does not change what is obvious and which common sense dictates, which is that the name Advanced Automation, Inc. is confusingly similar to Advanced Automation Associates, Inc. It would be hard find two names that are not exactly the same that could be more confusingly similar. Accordingly, we are satisfied that plaintiff is entitled to summary judgment. FINAL DECREE AND NOW, this S*- day of April, 2000, IT IS DECREED that: (1) The motion of plaintiff for summary judgment, IS GRANTED. (2) Defendant, Advanced Automation, Inc., is enjoined from using and continuing to use that name. (3) Defendant shall immediately institute good faith steps to come into compliance with this decree. By the Court, Edgar B. Bayley, J. Bruce A. Herald, Esquire For Plaintiff James G. Morgan, Jr., Esquire For Defendant saa -8- ,,, ,..,..,F=,;:7 ., PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) ADVANCED AUTOMATION ASSOCIATES, INC. (Plaintiff) VS. ADVANCED AUTOMATION, INC. (Defendant) No. 2840 Civil Equity _ 19 99 1. State mattes to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Bruce Alan Herald, Esquire Address: 120 John Robert Thomas Drive Exton PA 19341-2654 (b) for defendant: James G. Morgan, Jr., Esquire Address: 111 North Front Street P.O. Box 889 Harrisburg PA 17108-0889 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: March 1, 2000 Dated: Attorney for /1 4z ?? ?- ?? ?` . ` ?_.? ? -? ,_, ;;-; ?... ?y ?, `5 > ? ,_. .. Ir r Bruce Alan Herald, Esquire , Attorney I.D. No. 27992 A Professional Corporation 120 John Robert Thomas Dr. , Eaton, PA 19341-2654 (610) 594-7555 Attorney for Plaintiff ADVANCED AUTOMATION , ASSOCIATES, INC. , Plaintiff , VS. , ADVANCED AUTOMATION, INC. , Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. IN EQUITY No. 99-2840 CERTIFICATE OF SERVICE Attached is the Service of Process of Michael P, Maugans, Pennsylvania State Constable and accepted by the President of Advanced Automation Associates, Inc Bruce Alan Herald, COMMONWEALTH OF PENNSYLVANIA SERVICE OF PROCESS ?? sP?iG?ICCd ?? Advanced Automation Associates, Inc. 640 Rice Boulevard Exton, Penna. WEIR VS. DEFENDANT: NAME and ADDRESS 1822 Walnut Stied Thwnaa 11394 f HatritbuMPA.17103 Miducllvfau93n3 Advanced Automation, Inc. Tdryhcou(717) 224-3331 D=is PlaZ 282 Lowther Street Suite 102 Fax(717)234-0832 Ridiard ShoUbarga Lemoyne, Penna. Docket No.: 99-2840 Date Filed: Served upon Advanced Automation., Inc. by handing a copy of Describe Document(s): (Person to be Served) Notice of Civil Suit and Complaint to (Relationship) on j , at LO-ST A .M., at (Date) (Time) I d? ?.O 1,,/ C7_ j44 i?,c /e..2. ?C ?/9. y/?L' ?j'>. (Location) For Landlord/Tenant complaints: Since none of the above found, served by posting a copy of the complaint conspicuously on the premises on at (Date) (Time) M., at (Location) z Miles Traveled: F - c <? `? ? c? -; j, (Signature) Michael P. Maugans-Pa. State Constable _ AOPC 624-95 (Print Name and Title) ADVANCED AUTOMATION ASSOCIATES, INC., Plaintiff V. ADVANCED AUTOMATION, INC. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA IN EQUITY NO. 99-2840 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND NOW, comes the Defendant, Advanced Automation, Inc. ("Defendant") and through its attorneys, F. Stephenson Matthes, Esquire and Tucker Arensberg & Swartz, hereby avers as follows: 1. Admitted in part and denied in part. It is admitted that Plaintiff filed its Complaint on May 10, 1999, however, it is strictly denied the Defendant has violated 13 Pa.C.S. §1303, or even that said statute exists in Title 13. By way of further answer, it is denied that Defendant has used a name which is confusingly similar to Plaintiff. 2. Admitted. 3. Admitted in part, denied in part. It is admitted that Defendant's Answer admits the averments in subparagraphs a) and b). By way of further answer: c) Denied as stated. It is admitted that the Business Corporation Law of Pennsylvania does not allow names that are the same or "confusingly similar" to the name of an existing domestic corporation, however, it is denied that Defendant's business name is "confusingly similar" according to relevant and authoritative caselaw. d) Admitted in part and denied in part. It is admitted that Plaintiff demanded through counsel that Defendant cease and desist from using the name "Advanced Automation, Inc." in a letter dated January 28, 1999. By way of further answer, it is denied that Defendant is using a "confusingly similar" name to that of Plaintiff; e) Admitted in part, denied in part. It is admitted that Defendant's use of the name "Advanced Automation, Inc." is ongoing and continuous, however, it is denied that Defendant's name is "confusingly similar" to Plaintiff. By way of further answer, the averments contained in paragraph 3 of Defendant's Motion are misleading or incomplete as they conspicuously delete the fact that Defendant has specifically denied in its Answer and in correspondence of record. Therefore, Plaintiffs inference in paragraph 3 of its Motion that "virtually all" material facts are admitted by Defendant's not only incorrect, but insufficient to bring a Motion for Summary Judgment. 4. Admitted. 5. Denied. There are certainly necessary issues of material fact which are in question in this matter which cannot be resolved by the pleadings filed and the record established to date. There are numerous factors which must be taken into consideration in determining whether or not Defendant's name is "confusingly similar" to Plaintiffs as established by relevant caselaw on the matter. Material facts which must be considered for this determination and which can only be properly established by additional discovery or expert report include the nature and scope of the parties' respective businesses; the products produced by the parties; the similarity between the parties' names; the strength of the parties' names; the prices of the goods and factors indicative of the care and attention expected of consumers; the intent of Defendant when adopting its business name; evidence of actual confusion; and whether the parties engage in the same channels of trade or advertise through the same media. 6. Denied. As issues of material fact are disputed in this matter and additional relevant discovery is necessary in this matter, it is specifically denied that Plaintiff is entitled to judgment as a matter of law and Defendant believes and therefore avers that Plaintiffs Motion is at best premature. WHEREFORE, Defendant, prays this Honorable Court to deny Plaintiffs Motion for Summary Judgment and grant any and all such relief to Defendant as this Court deems appropriate. Respectfully submitted, TUCKER ARENSBERG & SWARTZ Date: ( z - 20 - 99 By: F. S henson Matthes. Attorney I.D. No. 67408 111 North Front Street P.O. Box 889 Harrisburg, PA 17101 (717) 234-4121 ATTORNEYS FOR DEFENDANT 23796.5 CERTIFICATE OF SERVICE AND NOW, this [l/ gay of December, 1999, I, Penelope J. LaFoe, Legal Secretary, for the firm of Tucker Arensberg & Swartz, hereby certify that I have this day served the foregoing Document by mailing a copy by first class mail, postage prepaid, to the addressed below: Bruce Alan Herald, Esquire 120 John Robert Thomas Drive Exton, Pennsylvania 19341-2554 / Penelope J. LaFoe 23796.5 L ? . 11.1 ' .... ? C t7 C L. FF w ? y _y / ? ? a N w M Z N L a C ? S F ADVANCED AUTOMATION ASSOCIATES, INC., Plaintiff V. ADVANCED AUTOMATION, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA IN EQUITY NO. 99-2840 NOTICE TO PLEAD To: Advanced Automation Associates, Inc. c/o Bruce Alan Herald, Esquire 120 John Robert Thomas Drive Extort, Pennsylvania 19341-2554 You are hereby notified to file a written response to the enc within twenty (20) days of service hereof or a judgment may be entered By: DATE: -?? 17579.1 you. Answer Ja WYMorga r., squire LD. No. 06897 1 1 orth Front Street .O Box 889 a isburg, PA 17108-0889 ? 7) 234-4121 4TTORNEYS FOR DEFENDANT ADVANCED AUTOMATION IN THE COURT OF COMMON PLEAS ASSOCIATES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff INEQUITY V. NO. 99-2840 ADVANCED AUTOMATION, INC. ANSWER TO COMPLAINT AND NOW, comes the Defendant, Advanced Automation, Inc., by and through its attorneys, James G. Morgan Jr., Esquire and Tucker Arensberg & Swartz, and hereby avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. It is specifically denied that there is anything confusing between AAA and AAI. One clearly is the word Associates and the word Advanced Automation has no specific identification to the one company and by the correspondence attached to the Complaint, it is clear that counsel requested information as to why it should be changed. 6. While it is agreed that statutory language is the same, the key to the issue is the question of confusing and it is contrary that, in fact, there is anything confusing about the names. 7. Admitted, 8. Denied as stated. It is denied that there was any admission that Defendant's name is confusing. But, in fact, was a question of why counsel for the Plaintiff believed it was confusing. The Defendant denies that there was anything confusing or that, in fact, it is in violation of statutory language. 9. It is admitted that the letter is an exhibit. It is denied it was ever received or that, in fact, it is responsive to the letter of counsel for the Defendant. 10. It is specifically denied that Defendant's name is in any way confusing to the Plaintiff or that its corporate name has any effect. Further, nothing in the pleadings in this case nor in counsel's request of February 8, 1999 has been responded to by stating in what way there is confusion by any person dealing with either corporation. 11. Denied. It is denied that Defendant's name is confusingly similar. 12. Defendant prays that this case be dismissed. There is no basis on the issue of the matter nor any basis in the Complaint for indicating confusion. WHEREFORE, Defendant requests the action be dismissed. Respectfully submitted, & SWARTZ By: DATE:J Z-?- _ 17579.1 G. M jAaXJr., Esquire LM No. 06897- 1)1 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 (717) 2344121 ATTORNEYS FOR DEFENDANT 05/25/99 TUE 15:55 FA.Y 717 232 08112 T A & S - Wig, PA lih 005 VERIFICATION I, Douglas W. Marks, Vice President of Advanced Automation, Inc„ acknowledge that the fads stated in the within Answer are true and correct to the hest of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. ADVANCED AUTOMATION, INC. By: 264,3 L. / r`t 4 Douglas W. Marks, Vice President DATED: 5/2(o/99 17579.1 0L CERTIFICATE OF SERVICE AND NOW, this 27th day of May, 1999, I, Penelope J. LaFoe, Legal Secretary, for the firm of Tucker Arensberg & Swartz, hereby certify that I have this day served the Answer by mailing a copy by first class mail, postage prepaid, to the addressed below: Bruce Alan Herald, Esquire 120 John Robert Thomas Drive Exton, Pennsylvania 19341-2554 Penelope J. LaFoe 17579.1 a: cr r. lJf 4 0 Qi ? m ? y w 0O }C ?' o W ? ADVANCED AUTOMATION IN THE COURT OF COMMON PLEAS ASSOCIATES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff INEQUITY V. NO. 99-2840 ADVANCED AUTOMATION, INC. ANSWER TO COMPLAINT AND NOW, comes the Defendant, Advanced Automation, Inc., by and through its attorneys, James G. Morgan Jr., Esquire and Tucker Arensberg & Swartz, and hereby avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. It is specifically denied that there is anything confusing between AAA and AAI. One clearly is the word Associates and the word Advanced Automation has no specific identification to the one company and by the correspondence attached to the Complaint, it is clear that counsel requested information as to why it should be changed. 6. While it is agreed that statutory language is the same, the key to the issue is the question of confusing and it is contrary that, in fact, there is anything confusing about the names. 7. Admitted. 8. Denied as stated. It is denied that there was any admission that Defendant's name is confusing. But, in fact, was a question of why counsel for the Plaintiff believed it was confusing. The Defendant denies that there was anything confusing or that, in fact, it is in violation of statutory language. 9. It is admitted that the letter is an exhibit. It is denied it was ever received or that, in fact, it is responsive to the letter of counsel for the Defendant. 10. It is specifically denied that Defendant's name is in any way confusing to the Plaintiff or that its corporate name has any effect. Further, nothing in the pleadings in this case nor in counsel's request of February 8, 1999 has been responded to by stating in what way there is confusion by any person dealing with either corporation. 11. Denied. It is denied that Defendant's name is confusingly similar. 12. Defendant prays that this case be dismissed. There is no basis on the issue of the matter nor any basis in the Complaint for indicating confusion. WHEREFORE, Defendant requests the action be dismissed. & SWARTZ DATE:_ 17579.1 By: Ja G. Morgan, J?squire I.D o. 08897 1 North Front Street 0. Box 889 arrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR DEFENDANT VERIFICATION I, Douglas W. Marks, Vice President of Advanced Automation, Inc., acknowledge that the facts stated in the within Answer are true and correct to the best or my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. ADVANCED AUTOMATION, INC. By: k L. n" Douglas W. Marks, Vice President DATED: I 1 -1 7 17579.1 CERTIFICATE OF SERVICE AND NOW, this 15th day of November, 1999, I, Penelope J. LaFoe, Legal Secretary, for the firm of Tucker Arensberg & Swartz, hereby certify that I have this day served the Answer by mailing a copy by first class mail, postage prepaid, to the addressed below: Bruce Alan Herald, Esquire 120 John Robert Thomas Drive Exton, Pennsylvania 19341-2554 17579.1 I Iii C)r.. fr)? Li.,lr m q 3 0 W O w O N N 0 r_ 9 C w ? 0 ? a ] ] m ADVANCED AUTOMATION ASSOCIATES, INC. Plaintiff Vs. ADVANCED AUTOMATION, INC. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. IN EQUITY No. 99-2840 FINAL DECREE And now this __ day of 1999, upon consideration of Plaintiffs Motion for Summary Judgment Pursuant to Pa. R.C.P. 1035.2, the Defendant's Answer, and the pleadings in this case it is hereby ORDERED and DECREED that the Defendant (a) shall immediately change its name to a name that is not confusingly similar to the Plaintiffs name; (b) is enjoined from using a name confusingly similar to the Plaintiffs name; and (c) shall pay to the Plaintiff its costs incurred in bringing this action in the amount of $70.25. BY THE COURT: J. Bruce Alan Herald, Esquire Attorney J.D. No. 27992 A Professional Corporation 120 John Robert Thomas Dr. Eaton, PA 19341-2654 (610) 594-7555 Attorney for Plaintiff ADVANCED AUTOMATION ASSOCIATES, INC. Plaintiff va. ADVANCED AUTOMATION, INC. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. INEQUITY No. 99-2540 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO Pa. R.C.P. 1035.2 Plaintiff Advanced Automation Associates, Inc. by and through its counsel Bruce Alan Herald, Esquire moves the Court for entry of a summary judgment against Defendant Advanced Automation, Inc., for the following reasons: 1. Plaintiff filed a Complaint in Equity on May 10, 1999 alleging that the Defendant filed Articles of Incorporation for itself, using a name confusingly similar to the Plaintiffs name in violation of 13 Pa.C.S. § 1303. A copy of the Plaintiffs Complaint is attached as Exhibit A. 2. On or about November 12, 1999, the Defendant filed its Answer, a copy of which is attached as Exhibit D. 3. The Defendant's Answer admits virtually all of the material facts. In particular, Defendant admits that (a) Plaintiff filed its Articles of Incorporation as Advanced Automation Associates, Inc. with the Pennsylvania Corporation Bureau on or about January 6, 1986. (13) (b) Over twelve (12) years later, Defendant filed its Articles of Incorporation as Advanced Automation, Inc. on or about March 20, 1998. (14) (c) The Business Corporation law specifically prohibits corporate names that are confusingly similar to the name of any domestic business corporation. (16) (d) Plaintiff demanded through counsel that Defendant cease and desist from using its confusingly similar name by letter dated January 28, 1999.(17) (e) Defendant's use of the name is ongoing and continuous. (111) (t) Plaintiff has no adequate remedy at law. (112) 4. As the sole basis for its defense, Defendant alleges that the name "Advanced Automation, Inc." is not confusingly similar to the Plaintiffs name "Advanced Automation Associates, Inc.". 5. There is no genuine issue of any material fact as to a necessary element of the Plaintiffs cause of action which could be established by additional discovery or expert report. 2 6. Plaintiff is entitled to judgment as a matter of law. WHEREFORE, Plaintiff prays your Honorable Court to enter a summary judgment in favor of the Plaintiff and against the Defendant granting the relief requested in the Complaint. Dated: November 22. 199 Bruce Alan Herald, Esquire 3 EXHIBIT A Bruce Alan Herald, Esquire Attorney for Plaintiff Attorney I.D. No. 27992 A Professional Corporation 120 John Robert Thomas Dr. , EBton# PA 19341-2654 (610) 594-7555 , ADVANCED AUTOMATION s IN THE COURT OF COMMON PLEAS ASSOCIATESp INC. CUMBERLAND COUNTY , PENNA. Plaintiff , , IN EQUITY VS. No. Ay- a?alc1l) ADVANCED AIITOMATIONt INC. Defendant m NOTICE » rJ w rn 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 LA14YER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle PA 17013 717-249-3166 JJ a 1-800-990-9108 Date: / (9 Bruce A.an Herald, Esquire Bruce Alan Herald, Esquire Attorney for Plaintiff Attorney I.D. No. 27992 i A Professional Corporation ; 120 John Robert Thomas Dr. Exton, PA 19341-2654 ; (610) 594-7555 ADVANCED AUTOMATION , ASSOCIATES, INC. Plaintiff Vs. _ ADVANCED AUTOMATION, INC. Defendant , IN THE COURT OR COMMON PLEAS CUMBERLAND COUNTY, PENNA. IN EQUITY No. COMPLAINT 1. Plaintiff is Advanced Automation Associates, Inc., a Pennsylvania corporation with offices at 640 Rice Boulevard, Exton, Chester County, Pennsylvania. 2. Defendant is Advanced Automation, Inc., a Pennsylvania corporation with its registered office at 282 Lowther street, Suite 102, Lemoyne, Cumberland County, Pennsylvania. 3. Plaintiff file4 its Articles of Incorporation with the Pennsylvania Corporation Bureau on or about January 6, 1986. A copy of the Plaintiff's Articles of Incorporation is attached as Exhibit A. 4. Defendant filed its Articles of Incorporation with the Pennsylvania Corporation Bureau on or about March 20, 1998. A Lexis-Nexis printout of the Corporation Bureau record is attached as Exhibit B. 5. Defendant's corporate name is confusingly similar to Plaintiff's corporate name. 6. The Business Corporation Law of 1988 specifically prohibits corporate names that are the same as or confusingly similar to the name of any other domestic corporation. In pertinent part, the statute reads as follows: "(b) Duplicate use of names.-The corporate name shall not be the same as or confusingly similar to: (1) The name of any other domestic corporation..." 13 Pa.C.S. §1303 (Corporate name). 7. On or about January 28, 1999, Plaintiff by and through its undersigned counsel demanded that Defendant cease and desist from using its confusingly similar name. A file copy of Plaintiff's counsel's demand letter is attached as Exhibit C. 8. Defendant responded by and through its counsel by letter dated February 8, 1999, a copy of which is attached as Exhibit D. The response of Defendant's counsel tacitly admits that Defendant's name is confusingly similar to Plaintiff's name. 9. On or about February 17, 1999, Plaintiff renewed its demand that Defendant cease and desist from using the confusingly similar name. A copy of,counsel's letter is attached as Exhibit E. 10. Notwithstanding Plaintiff's demands, Defendant has failed and refused to change its corporate name to a name that is not confusingly similar to that of the Plaintiff. 11. The Defendant's confusingly similar name is ongoing and continuous. 12. Plaintiff has no adequate remedy at law. Wherefore, Plaintiff prays: (a) That an injunction be issued requiring the Defendant to immediately change its corporate name to a name that is not confusingly similar to that of the Plaintiff and, in the absence of such immediate change of corporate name, revoking the Defendant's incorporation; (b) Restraining and enjoining the Defendant, its agents, servants and employees from using a name confusingly similar to that of the Plaintiff; (c) For such other and further relief as the Court deems just and appropriate. Dated: s Hruce Alan Herald, Esquire Attorney for Plaintiff ,r ? r Y? 1 a_ a EXHIBIT A l APPUCANPS ACCT N0. .4C9;8CL-204 (Rev. 8.72) Filed this i. !N day of -+_ n.lunAY . 19s fo Commonwealth of Pennsylvania Department )f State Filing Feel S75 (Line for numbering) r( Alen 0 S? 2G1 ?Y? r 0 ?i(ALG'U n Articles of COMN'IONWE.ALTH OF PENNSYLVANIA , Incorporation- DEPARTMENT OF STATE Domestic Business Corporation CORPORATION BUREAU Secretary of the Commonwealth In compliance with the requirements of section 204 of the Business Corporation Law (ox Bactfof Mayt5.c1933 ) (P. L. 3641 (15 P. S. §1204) the undersigned. desiring to be incorporated as a business corporation. hereby certifies (certify) that: 1. The name of the corporation is: - Advanced Automation Associates, Inc. 2. The location and post office address of the initial registered office of the corporation in this Common. wealth is: Reading, 19606 (OL The corporation is incorporated under the Business Corporation Law of the Commonwealth of Pennsyl . ania for the following purpose or purposes: To engage in and do any lawful act concerning all lawful business for which corporations may be incorporated under the Business Corporation Law of Pennsylvania and to do all things and exercise all powers, rights and privileges which a business corporation may now or hereafter be organized or authorized to do or to exercise under the Business Corporation Law of the Commonwealtfi of Pennsylvania. 4. The term for which the corporation is to exist is: per pptua 1 5. The aggregate number of shares which the corporation shall have authority to issue is: 100,000 shares of common stock with no par value M. BURR RtIM COMPANY. PHILADELPHIA 8604 580 0SMEICL-204 (Rev. B-721.2 6. The name(s) and post ofiice addressiesi of each incorporatonsl°and the number and class of shares sub- . scribed by such incorporators) Is (are): NAME ADDRESS NUMBER AND CLASS OF SNARES iN[IU01n? mW ,n. nu 0.' d inyl Gerald R. Zeigenfuse, 8 Craig Drive, Reading, PA 19606 One (1) - Common IN TESTIMONY WHEREOF. the incorporators) has (have) signed and sealed these Articles of Incor- poration this16th day of December Ig 85 -(SEAL,) ?c{SEAL) Gera d R. Zei'.enfus?i {SEAL) INSTRUCTIONS FOR COMPLETION OF FORM: A. For general instructions relating to the incorporation of business corporations see 19 Pa. Code Ch. 35 (relating to business corporations generally). These instructions relate to such matters as corporate name, stated purposes. term of existence. authorized share structure and related authority of the board of directors. inclusion of names of first directors in the Articles of Incorporation, optional provisions on cumulative voting for election of directors, etc. B. One or more corporations or natural persons of full age may incorporate a business corporation C. Optional provisions required or authorized by late may he added as Paragraphs 7.8. 9 ... etc. D. The following shall accompany this form: (1) Three copies of Form DSCB:BCL-206 (Registry Statement Domestic or Foreign Business Corporation). (2) Anv necessary copies of Form DSCB:17.2 (Consent to Appropriation of Name; or Form DSCB:17.3 (Consent to Use of Similar Name1. (39 Anv necessary governmental approvals. E. BCL Q05 (15 Pa. S. 312051 requires that the incorporators shall advertise their intention to file or the corporation shall advertise the filing of a,ocjej„of,ingorporanon. Proofs of publication of such advertising should not be delivered to the bepatvrnvnt.-l3trLshould be filed with the minutes of the corporation. EXHIBIT B "•" THIS DATA IS INFORMATIONAL, AND ANY CERTIFIED COPIES MUST BE OBTAINED FROM THE PENNSYLVANIA DEPARTMENT OF STATE. "•• PENNSYLVANIA DEPARTMENT OF SPATE, COP.PORATE/LTD PARTNERSHIP RECORD NAME: ADVANCED AUTOMATION, INC. TYPE: INCORPORATED BUSINESS STATUS: IN GOOD STANDING (ACTIVE) DURATION: PERP DATE OF INCORPORATION/QUALIFICATION: 03/20/1998 MAILING ADDRESS: 282 LOWTHER ST STE 102 LEMOYNE, PA 17043-0000 STATE: PENNSYLVANIA REGISTERED OFFICE: 282 LOWTHER ST STE 102 LEMOYNE, PA 17043-0000 CUMBERLAND COUNTY PURPOSE: BROAD OFFICERS: Name TIMOTHY L WINTERS DOUGLAS W MARKS TIMOTHY L WINTERS DOUGLAS W MARSK Effective 03/20/1998 NUMBER: 2807936 HISTORY: Title CEO SECRETARY TREASURER VICE PRESIDENT MICROFILM DATE TRANSACTION ROLL START/END 03/20/1998 ARTICLES OF INCORPORATION - BUSINESS 09824 0233/0234 CALL LE-XIS DOCUMENT SERVICES FOR ALL YOUR CORPORATE: NEEDS. 800-634-9738 EXHIBIT C January 28, 1999 TIMOTHY L. WINTERS, CEO ADVANCED AUTOMATION, INC. 282 LOWTHER ST, STE 102 LEMOYNE PA 17043 Re: Advanced Automation, Inc. Our Pile No. Z-136 Dear Mr. Winters: I represent Advanced Automation Associates, Inc., a Pennsylvania corporation formed in 1986. My client has recently learned that you are using a name confusingly similar to its name and mark. Accordingly, I demand that you • Immediately cease and desist from using any nase including, the words "Advanced Automation" • Amend your corporate name to a new name, and • Acknowledge in writing that you have ceased and desisted from using the name and that you have filed the requisite documents with the Corporation Bureau to change your name. Sincerely, Bruce Alan Herald BAH/vlb EXHIBIT TucK.R LEC.5wAAT2 « IFL ARENSBERG IA CRCAN. f^ SANom NDRA L b1BLTCN LJSWARTZ ??v a STEPHEN M. CREECHER IR. .(0 DENN15 P SHEIFFER • %?9 I. KENTCULLEY CHARIPS 1. VATE4 JEFFREY 1. LEECH CARYP HUNT CHR6TCPHER I.R.'41ADSC., February 8, 1999 RICHARD A. Jim= ANNE .NI. R1EClE SU5AN M.SEICHHAN STANLEY H.SIECEL •CUrvmnf..i.:ATMu +mvclrtnneN:rn«I. BaW a Tu"..•0wC•cr •'.Ir:aem Bruce Alan Herald, Esquire 120 John Robert Thomas Drive Exton, Pennsylvania 19341-2654 RE: Advanced Automation Dear Mr. Herald: I reviewed your letter of January 28, 1999 to my clients. Since we do business in central Pennsylvania and your firm has not reserved the words "Advanced Automation" and is different in kind, I do not see the basis for your request. Not knowing the nature of the business your clients are in, we do not believe there is anything that can cause a misunderstanding on the names. Since we do business in central Pennsylvania only, and we have not seen your company's name listed in any phone directories in our immediate area, we do not believe we are creating any confusion. I am certainly willing to discuss with you your reason for believing your clients, Advanced Automation Associates, Inc., can be confused with my clients. Please give me a call so we can discuss what, if anything, needs to be done by our clients. Very TUCKE ENS13ERG & SWARTZ James G. MO gan, Jr. JGMjrpjl 13045.1 111 NORTH FRONT STREET PO BOX 889 HARRISBURG. PA 17108-0889 717.234-4121 800-257.4121 FACSIMILE 717.232.6602 Lsw =m Den 12 Soum M" SlM PO 60. 667 l 10wn. FK 170"-0667 7174"-3213 PfiWur0n O61n 1500 Om PPG PU Pe66urpn. PA 1222 112.566.1212 GrAw ,g0f" 1355ouNM&w SO GrM %.PA 15601 724606-1212 E•m". IWCOIUWruwcom AP R ftW w w Oran Cwmw 1160I` W Run OMO En. Mp Tawnsnm. PA 15106 4125623730 *N511. nitp:r/ww 1Y:Fnuw 00m EXHIBIT E LAW OFFICE B R U C E A L A N H E R A L D A PgOFESSICNAL CORPORATION ?0 JOHN ROBERT THOMAS DRIVE EXTON. PENNSYLVANIA 19341.2554 TELEPHONE (610) 594.7555 FACSIMILE (610) 594.7955 February 17, 1999 JAMES G. MORGAN, JR. TUCKER ARENSBERG & SWARTZ 111 NORTH FRONT STREET PO BOX 889 HARRISBURG PA 17108-0889 Re: Advanced Automation Associates, Inc. Our File No. 2-136 Dear Mr. Morgan: The Associates Code specifically prohibits the use of any name that. is confusingly similar to that of a pre-existing corporation. The prohibition is contained in 15 Pa.C.S. § 1303. The statute lists four,potential exceptions, none of which apply. In particular, actual confusion is not required. Your client is prohibited from using the name Advanced Automation which is indisputably confusingly similar to Advanced Automation Associates, Inc. Moreover, my client has conducted business throughout the United States and in central Pennsylvania. I again demand that your client immediately cease and desist from using the name "Advanced Automation, Inc." and chat you promptly confirm in writing that your client is no longer using the name. aa , n Herald BAH/vlb pc: Advanced Automation Associates, Inc. VERIFICATION I verify that the statements made herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. ADVANCED AUT014TION A SOCIATES, INC. By: Robert A•. Zeigenf{yse, President Dated: 5 3/1` EXHIBIT B ADVANCED AUTOMATION ASSOCIATES, INC., Plaintiff V. ADVANCED AUTOMATION, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA IN EQUITY NO. 99-2840 ANSWER TO COMPLAINT AND NOW, comes the Defendant, Advanced Automation, Inc., by and through its attorneys, James G. Morgan Jr., Esquire and Tucker Arensberg & Swartz, and hereby avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. It is specifically denied that there is anything confusing between AAA and AAI. One clearly is the word Associates and the word Advanced Automation has no specific identification to the one company and by the correspondence attached to the Complaint, it is clear that counsel requested information as to why it should be changed. 6. While it is agreed that statutory language is the same, the key to the issue is the question of confusing and it is contrary that, in fact, there is anything confusing about the names. 7. Admitted. 8. Denied as stated. It is denied that there was any admission that Defendant's name is confusing. But, in fact, was a question of why counsel for the Plaintiff believed it was confusing. The Defendant denies that there was anything confusing or that, in fact, it is in violation of statutory language. 9. It is admitted that the letter is an exhibit. It is denied it was ever received or that, in fact, it is responsive to the letter of counsel for the Defendant. 10. It is specifically denied that Defendant's name is in any way confusing to the Plaintiff or that its corporate name has any effect. Further, nothing in the pleadings in this case nor in counsel's request of February 8, 1999 has been responded to by stating in what way there is confusion by any person dealing with either corporation. 11. Denied. It is denied that Defendant's name is confusingly similar. 12. Defendant prays that this case be dismissed. There is no basis on the issue of the matter nor any basis in the Complaint for indicating confusion. WHEREFORE, Defendant requests the action be dismissed. & SWARTZ DATE: I Z q 17579.1 By: JaFn)lf G, Morgan, ,V,E.,Xsquire 1.13/14o. 08897 1 North Front Street O. Box 889 Harrisburg, PA 17108-0889 (717) 234-4121 ATTORNEYS FOR DEFENDANT VERIFICATION I, Douglas W. Marks, Vice President of Advanced Automation, Inc., acknowledge that the facts stated in the within Answer are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. ADVANCED AUTOMATION, INC. By: L?4k (0. mtk Douglas W. Marks, Vice President DATED: I 1 -1 Z ""g- I 17579.1 CERTIFICATE OF SERVICE AND NOW, this 15th day of November, 1999, I, Penelope J. LaFoe, Legal Secretary, for the firm of Tucker Arensberg & Swartz, hereby certify that I have this day served the Answer by mailing a copy by first class mail, postage prepaid, to the addressed below: Bruce Alan Herald, Esquire 120 John Robert Thomas Drive Exton, Pennsylvania 19341-2554 Penelope J. LaFoe 17579.1 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CHESTER : SS AFFIDAVIT IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO Pa. R.C.P. 1035.2 Robert A. Zeigenfuse, being first duly sworn according to law, deposes and says that he is the President of Advanced Automation Associates, Inc. and that as such he is authorized to make this affidavit, and that the facts recited in the following affidavit are true and correct based on his personal knowledge. (a) Advanced Automation Associates, Inc. is a duly organized and existing Pennsylvania corporation, having been formed on January 6, 1986 by the filing of Articles of Incorporation with the Pennsylvania Corporation Bureau. (b) Defendant Advanced Automation, Inc. filed its Articles of Incorporation with the Pennsylvania Corporation Bureau twelve (12) years later on March 20, 1998. (c) Plaintiff has incurred costs in bringing this action consisting of the following: Prothonotaiy's filing fee $45.50 Constable's fee for service $25.00 Constable's mileage fee 9.7 Total $70.25 Further, deponent sayeth naught. Sworn to or affirmed and subscribed before me this dploday of Nyak-'r-, 1999 ?ddZ 8 Pula Notary Public H3Ti?Ti ADOIE D. NOT?? ? T ?4?fI1ElAND TN t ?W!, CHESTER COUNTY IRES BEPT. D 2002 M Bruce Alan Herald, Esquire Attorney I.D. No. 27992 A Professional Corporation 120 John Robert Thomas Dr. Exton, PA 19341-2654 '610) 594-7555 Attorney for Plaintiff ADVANCED AUTOMATION ASSOCIATES, INC. Plaintiff' Vs. ADVANCED AUTOMATION, INC. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. IN EQUITY No. 99-2840 BILL OF COSTS 1. II. Record Costs A. Prothonotary's Fees $45.50 Non-Record Costs A. Constable's Service Fee $25.00 B. Constable's Mileage 9.75 TOTAL OF ALL COSTS $80.25 Bruce Alan Herald, Esquire Attorney for Plaintiff VERIFICATION I, BRUCE ALAN HERALD, being duly sworn according to law, hereby depose and say that the foregoing costs are correct and were necessarily incurred in this action and that the services for which fees have been charged were actually and necessarily performed. I understand that the statements made herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date: June 1, 2000 Bruce Alan Herald, Esquire Attorney for Plaintiff Bruce Alan Herald, Esquire Attorney I.D. No. 27992 A Professional Corporation 120 John Robert Thomas Dr. Exton, PA 19341-2654 (610) 594-7555 : Attorney for Plaintiff ADVANCED AUTOMATION ASSOCIATES, INC. Plaintiff Va. ADVANCED AUTOMATION, INC. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. IN EQUITY No. 99-2840 CERTIFICATE OF SERVICE I, Bruce Alan Herald, Esquire, do certify that a copy of the attached Bill of Costs was sent by first class mail, postage prepaid, this day to: F. Stephenson Matthes, Esquire 111 North Front Street P.O. Box 889 Harrisburg PA 17108-0889 Dated: June 1. 2000 Bruce Alan Herald, Esquire ?r r? U C :n (i Q -J CD U I Bruce Alan Herald, Esquire Attorney for Plaintiff Attorney I.D. No. 27992 , A Professional Corporation , 120 John Robert Thomas Dr. Easton, PA 19341-2654 (610) 594-7555 ADVANCED AUTOMATION ASSOCIATES, INC. Plaintiff Vs. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNA. INEQUITY ADVANCED AUTOMATION, INC. Defendant no. WV-ZkS40 PRAECIPE TO TAX COSTS To the Prothonotary: Please tax costs in favor of the Plaintiff and against the Defendant in accordance with Pa.R.C.P. 1526 and 1527 in the amount of $80.25. The Plaintiff has filed a Bill of Costs this date Dated: June 1, 2000 of the costs. Bruce Alan Herald, Esquire Attorney for Plaintiff COSTS TAXED Costs are hereby taxed in favor of the Plaintiff and against the Defendant in the amount of $80.25. Dated: S Prothonotary Bruce Alan Herald, Esquire Attorney I.D. No. 27992 A Professional Corporation 120 John Robert Thomas Dr. Exton, PA 19341-2654 (610) 594-7555 : Attorney for Plaintiff ADVANCED AUTOMATION : IN THE COURT OF COMMON PLEAS ASSOCIATES, INC. : CUMBERLAND COUNTS, PENNA. Plaintiff' IN EQUITY vs. No. 99-2840 ADVANCED AUTOMATION, INC. Defendant CERTIFICATE OF SERVICE I, Bruce Alan Herald, Esquire, do certify that a copy of the attached Praecipe to Tax Costs was sent by first class mail, postage prepaid, this day to: F. Stephenson Matthes, Esquire 111 North Front Street P.O. Box 889 Harrisburg PA 17108-0889 Dated: June 1. 2000 (00 - Bruce Alan He,-ald, Esquire J ! kj- i u j rJ C'Y _ j ? C> IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Caption: ( ) Confessed Judgment ADVANCED AUTOMATION ASSOCIATES, INC. ( X) Other File No. 99-2840 VS. ADVANCED AUTOMATION, INC. Amount Due $80.25 Interest from June 5, 2000 Atty's Comm Costs to be added TO THE PROTHONOTARY OF THE SAID COURT: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to Act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. Issue writ of execution in the above matter to the Sheriff of Cumberland County, for debt, interest and costs, upon the following described property of the defendant(s) All of the property of the Defendant Advanced Automation, Inc. n/k/a InterCon Automation, Inc. located at 282 Lowther Street, Suite 102, Lemoyne, PA 17043, including but not limited to all office furniture and equipment. PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of County, for debt, interest and costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personalty list) _ and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s). (Indicate) Index this writ against the garnishee(s) as a lis pendaa estate of the defendant(s) described in the attached exhibit. Date 8/4/2000 Signature: Print Name: Bruce Alan Herald, Esq. Address: 120 John Robert Thomas Drive. Exton PA 19341-2654 Attorney for: plaintiff Telephone: (610) 594-7555 Supreme Court ID No.: 27992 _ (over) PRAECIPE FOR WRIT OF EXECUTION p Notes: If real property, supply six copies of description including improvements and an original and copy of affidavit of ownership (PaR.C.R No. 3129). If lengthy personalty list, supply four copies of list. To index writ, file separate praecipe with writ. I *** THIS DATA IS INFORMATIONAL, AND ANY CERTIFIED COPIES MUST BE OBTAINED FROM THE PENNSYLVANIA DEPARTMENT OF STATE. *** PENNSYLVANIA DEPARTMENT OF STATE, CORPORATE/LTD PARTNERSHIP RECORD NAME: INTERCON AUTOMATION, INC. PRIOR-NAME: ADVANCED AUTOMATION, INC. TYPE: INCORPORATED BUSINESS STATUS: IN GOOD STANDING (ACTIVE) DURATION:PERP DATE OF INCORPORATION/QUALIFICATION: 03/20/1998 MAILING ADDRESS: 282 LOWTHER ST STE 102 LEMOYNE, PA 17043-0000 STATE: PENNSYLVANIA REGISTERED OFFICE: 282 LOWTHER ST STE 102 LEMOYNE, PA 17043-0000 CUMBERLAND COUNTY PURPOSE: BROAD OFFICERS: Title Name CEO TIMOTHY L WINTERS SECRETARY DOUGLAS W MARKS TREASURER TIMOTHY L WINTERS VICE PRESIDENT DOUGLAS W MARSK Effective 03/20/1998 4 NUMBER: 2807936 HISTORY: MICROFILM DATE TRANSACTION ROLL START/END 06/21/2000 AMENDMENT - BUSI14ESS 20000 4812/7012- COMMENTS: 71NCFR: ADVANCED AUTOMATIO14 INC 03/20/1998 ARTICLES OF INCORPORATION - BUSINESS 09824 0233/0234 CALL LEXIS DOCUMENT SERVICES FOR ALL YOUR CORPORATE NEEDS. 800-034-9738 V) Ln •% O o U Z0. r' l _'1 'R, ry CJ f F07 R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned SATISFIED. Sheriff's Costs: Docketing Poundage Law Library Prothonotary Service Surcharge $18.00 1.61 .50 1.00 9.92 10.00 $4 Pd by defendant Sworn and subscribed to before me This or& day of 2000, A. D. Qla t 71t,?A? ?p rothonotary -'?- S?n R. Thomas Kline; Sheriff By? P I 4 J' N DeVuty Sheriff .o c q ch gll . WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO. 99-2840 Equity Term_ COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF Cumberland COUNTY: To satisfy the debt, interest and costs due Advanced Automation Associates, Inc. from Advanced Automation, Inc., n/k/a InterCon Automation, Inc., 282 Lowther Street, Suite 102, Lermyne, PA 17043 DEFENDANT(S) (1) You are directed to levy upon the property of the defendant(s) and to sell All of the property of the Defendant Advanced Automation, Inc. n/k/a InterCon Automation Inc located at 282 Lowther Street, Suite 102, Lemyne, PA 17043, including but not limited to all office furniture and equipment. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of -GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is/are enjoined from paying any debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing thereof; (3) If properlyof thedefendant(s) notleviedupon an subject to attachment isfound in the possession of anyoneother than a named garnishee, you are directed to notify hinvher that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $80.25 Interest from Jnnp 5, 2000 Atty's Comm Atty Paid $17.50 Plaintiff Paid Date: August 7, 2000 REQUESTING PARTY: Name Bruce Alan Herald, Esq. Address: 120 John Robert Thomas Drive Exton. PA 19341-2654 Attorney for: Plaint Telephone: 610_594-7555 ____ Supreme Court ID No. 27992 L.L. $.50 Due Prothy_ $1.00 Other Costs Curtis R. Long _ Prothonotary, Civil Division ~_4? Deputy DISTRIBUTION ATTORNEY: Bruce Alan Herald WRIT NO. 1999-2840 Civil Term Advance Automation Associates, Inc. VS Advanced Automation Inc. n/k/a Intercon Automation Inc. REAL DEBT $80.25 INTEREST .66 ATTORNEY'S COMM. WRIT COSTS, ATTY. 17.50 WRIT COSTS, PLIFF. MISCELLANEOUS $98.41 SHERIFF'S COSTS: DOCKETING $ 18.00 POUNDAGE 23.07 POSTING SALE BILLS ACUTIONEER LAW LIBRARY PROTHONOTARY 1.00 SERVICE 9,92 POSTPONE SALE SURCHARGE 10.00 BAD CHECK FEE LEVY $41.03 DEFENDANT PAID TO SHERIFF ADVANCE COSTS TOTAL COLLECTED: $139.44 150.00 $289.44 DISTRIBUTION Pd. To Pltff. $ 98.41 Refund of Adv. Costs 150.00 Pd. To Prothonotary 1.00 So answers: .-P R. Thomas Kline, Sheriff By adtj S/tL n Dept Sheriff