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HomeMy WebLinkAbout11-1213.r FILED-OFFICE: U` THE NRCTI-IC 'G T n, 2011 FEB -2 PM 12: r- CUMBERLAND C OU'rry PENPISYLV(a"jI1`, WILLIAM GEORGES, Plaintiff vs. CONTEMPORARY STREETWEAR, LLC., Defendant NOTICE TO DEFENDANT NAMED HEREIN: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. j/ - 0 / ?'1 ?'? ? 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 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 TELEPHONE: (717) 249-3166 I WILLIAM GEORGES, Plaintiff vs. CONTEMPORARY STREETWEAR, LLC., Defendant COMPLAINT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff is William Georges, an adult individual who resides at 607 Park Avenue in New Cumberland, Pennsylvania. 2. The Defendant is Contemporary Streetwear, LLC, a limited liability company organized under the laws of the State of Delaware, which maintains offices for the operation of its business at 205 W. 29th Street in New York, New York 10018. 3. Plaintiff is engaged in the business of design and manufacture of clothing, including denim and other clothing products. He has been so engaged at all times relevant to this action. 4. The Defendant is engaged in the business of selling clothing throughout the United States. The Defendant regularly and frequently conducts business within the Commonwealth of Pennsylvania selling, distributing and delivering clothing to retail outlets and other customers. Defendant has been so engaged in its business at all times relevant to this action. 5. Prior to July of 2010, Plaintiff and Defendant had worked together with Plaintiff designing and assisting in the manufacturing of clothing samples and products used by Defendant in its business. 6. In July of 2010, Defendant and Plaintiff entered into an oral agreement whereby Plaintiff was to have manufactured and delivered to Defendant 485 units of clothing samples, duplicate samples, and supporting technical data to be used by Defendant in its marketing and sales efforts within the United States and within the Commonwealth of Pennsylvania. The oral agreement came into being in Pennsylvania, when Plaintiff accepted Defendant offer and request that Plaintiff do the work. 7. Pursuant to the agreement between the parties, Defendant agreed to pay Plaintiff the sum of $202,680.00 for the samples, duplicate samples, and technical data to be developed, manufactured and delivered by Plaintiff. 8. Defendant paid Plaintiff the sum of $100,000.00 as a deposit on the contract between the parties. 9. Plaintiff well and truly performed his obligations under the contract between the parties and delivered to Defendant the samples, duplicate samples, and technical data prepared by Plaintiff pursuant to the agreement between the parties. Those items were delivered to Defendant in September of 2010. 10. Defendant accepted the products delivered by Plaintiff and expressed its full satisfaction with the products. Defendant repeatedly promised to pay Plaintiff for his services to Defendant pursuant to the oral agreement between the parties. 11. Contrary to its repeated promises, Defendant has failed to pay Plaintiff the balance owed Plaintiff on the contract between the parties. 12. Despite repeated demands by Plaintiff, Defendant has failed and refused to pay the monies owed Plaintiff pursuant to the agreement between the parties. 13. Defendant, by its conduct, has injured Plaintiff in the amount of $102,608.00. 14. Payments for Plaintiff's work were to be made by Defendant to Plaintiff at Plaintiff's residence in New Cumberland, Cumberland County, Pennsylvania. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $102,608.00, plus interest at the lawful rate from and after 30 September 2010, plus costs of suit. i 4S uel L. Andes Attorney for Plaintiff Supreme Court ID # 17225 525 North 12' Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unworn falsification to authorities). Date: WILL ORGES SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ,Vtttr at lilt) 7 ..a ,. , Jody S Smith Chief Deputy 1 `e L ?? i .:i% (1 ?i l Richard W Stewart Solicitor ;, t Ca !y' ?.t 9 'rR" ? 1' t F f William Georges Case Number vs. Contemporary Streetwear, LLC 2011-1213 SHERIFF'S RETURN OF SERVICE 02/03/2011 On this date Ronny R. Anderson, Sheriff mailed the within Complaint and Notice by certified mail, return receipt requested to Contemporary Streetwear, LLC. 03/14/2011 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that he served the within Complaint and Notice upon the within named defendant, Contemporary Streetwear, LLC, in the following manner: On February 3, 2011 the Sheriff mailed by certified mail, return receipt requested a true and correct copy of the within Complaint and Notice to the defendant's last known address of 205 W. 29th Street, New York, NY 10001. The certified mail return receipt card was returned to the Cumberland County Sheriff's Office as "Unclaimed". SHERIFF COST: $34.15 March 15, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF CeUnjySUite b^er fl. ffi2„s;ift. li c;. N J CS C 63 0 0 0 0 Oa Gm tr' cr W z og o} ?>??? U1 ? D? P ? D all O N? 7r ? H , till 00 A ?13 ?wl ??13 r o i l c N ?a X g 0 W. 1313 a VON M W /? G 03 5 G .m.. C) b,h '? ..k'. tU C) tNn m Ln .0 ?o N '......... Cl Cr C] C3 O C7 p co Q . O `' -N c W C P wr?cu -c m VF?> c t O 0? o a Z ,v ? N o 00 c r- R 41 N ,x 4J 3 ? 8L0 3 N Z Z P F- s i K z, I t kw WILLIAM GEORGES, Plaintiff VS. CONTEMPORARY STREETWEAR, LLC., Defendant PRAECIPE TO THE PROTHONOTARY: Please reinstate the Complaint in the above matter. 16 March 2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-1213 Civil Term 'Safnuel L. Andes Attorney for Plaintiff Supreme Court ID # 17225 525 North 12' Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 sGl & #'i's&. -/-;? y lop l &, GV-Z) V, vs 17 In the Court of Common Pleas of Cumberland County, Pennsylvania No. ) ) ^ 1 2-175 Civil Term PRAECIPE ???e. Pe.iws? '?Ce CJwt ???? rh `iii 5 C--) c: "., c ? - ? CO r- ;3 `-- -0r M :?J L, CS o > David D. Buell, Prothonotary Attorney Info: 25v- 41k ? Arnfor "Plaintiff 'G/ f" `G/ C,U #/4':ei" f71 (ys Zucker. Goldberg & gckerrnan l.LC FCP_138746 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unworn falsification to authorities). Date: WILL ORGES EXHIBIT B Zucker, Goldberg & Ackerman, !1C FCP-138746 k THOMAS, THOMAS & HAFER, LLP John F. Yaninek, Esquire Attorney ID #55741 Corey J. Adamson, Esquire Attorney ID #204508 PO Box 999 Harrisburg, PA 17108-0999 717.267.7100 f i ! 1 = 15 Aim H: r',UMBEPIAND CO Attorneys for Defendant WILLIAM GEORGES, IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA Plaintiff V. CONTEMPORARY STREETWEAR, LLC, NO. 11-1213 CIVIL TERM CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED PETITION TO OPEN/STRIKE DEFAULT JUDGMENT AND NOW comes the Defendant, Contemporary Streetwear, LLC, by and through its counsel, Thomas, Thomas & Hafer, LLP, and respectfully files the instant Petition, stating and averring as follows: 1. Plaintiff William Georges initiated this matter by filing a Complaint on or about February 2, 2011. A copy of Plaintiffs Complaint is attached hereto as Exhibit A. 2. Generally speaking, the Complaint alleges that Plaintiff and Defendant entered into an oral agreement for the production and sale of clothing samples. Ex. A. 3. According to the Complaint, Defendant did not fully pay Plaintiff for the clothing samples provided, in breach of the agreement. Ex. A, T¶9-13. ti 4. The Complaint was served upon Defendant via certified mail on or about April 26, 2011. See copy of Affidavit of Service by Certified Mail, attached hereto as Exhibit B. 5. On or about May 19, 2011, Plaintiff mailed to Defendant an "Important Notice", giving a 10-day warning of Plaintiffs intent to take a default judgment. A copy of the notice is attached hereto as Exhibit C. 6. On or about June 2, 2011, Plaintiff filed a Praecipe seeking entry of default judgment against Defendant. A copy of the Praecipe is attached hereto as Exhibit D. 7. Defendant now respectfully requests this Honorable Court open or strike the default judgment entered against him, for the reasons that follow. 8. Defendant has a meritorious defense to Plaintiffs claims. A copy of the Proposed Answer Defendant will file if this Honorable Court opens or strikes the default judgment is attached hereto as Exhibit E. 9. Defendant has a reasonable explanation and legitimate excuse for its inactivity and delay, to wit: Defendant is an out-of-state entity, and its retention of the undersigned counsel was not formalized and finalized until very recently (June 14, 2011). 10. Defendant's Petition is filed only three days after the expiration of the "automatic" presumption of timeliness under Rule 237.3. Defendant respectfully submits that the instant; Petition is prompt, given Defendant's locale out-of-state (and despite the Praecipe lacking a Certificate of Service indicating when the same was served upon Defendant). 11. No prejudice will be fall Plaintiff by opening the default judgment. Rather, the matter will thus be able to be decided on its merits. 12. Moreover, no judgment by default may be entered by the Prothonotary in a civil case unless a 10-day "IMPORTANT NOTICE" of intent to do so is mailed or delivered to the defendant. Pa.R.C.P. 237.1(a)(2). 13. Pa.R.C.P. 237.5 provides the specific form of "IMPORTANT NOTICE" for parties to give under Rule 237.1. The required notice warns a defendant who has failed to enter a defense to civil suit that specific consequences will follow further inactivity. The "IMPORTANT NOTICE" also provides direction to a defaulting party who is unrepresented and who does not know what to do. 14. The "IMPORTANT NOTICE" filed with this Court on May 19, 2011, and sent to Defendant does conform to Rule 237.5 and is in a substantially different form from what is required by Rule 237.5. Compare the defective "IMPORTANT NOTICE", Ex. C, with the copy of the form of "IMPORTANT NOTICE" required by Rule 237.5, attached hereto and marked Exhibit F. 15. Parties attempting to secure a default judgment must strictly comply with the rules governing notice. In this instance, Plaintiff has not provided a proper "IMPORTANT NOTICE" under Rule 237.5 and, therefore, the default judgment entered June 2, 2011, should be stricken. • 16. Additionally, the Praecipe seeking entry of default judgment is not accompanied by a Certificate of Service. Thus, there is no record of proper service of the notice of entry of default upon Defendant, and the default judgment should be stricken or opened. WHEREFORE, Defendant Contemporary Streetwear, LLC, respectfully requests this Honorable Court grant its Petition to Strike/Open Default Judgment, and allow this matter to proceed upon its merits. Respectfully submitted, [*S, THOMAS & HAFER, LLP -- - - J F. Yaningk, Esquire QKID-#55741 orey J. Adamson, Esquire Attorney ID # 204508 P. O. Box 999 Harrisburg, PA 17108 717.441.3952 717.237.7105 facsimile Date: June 15, 2011 ?X? ???? .r FILED-OFFICE OF THE PRO I Votlo TA y 2011 FED -2 PM 12: p5 CUMBERLAND COLJt:T'( PENNSYLV4kNI , WILLIAM GEORGES, Plaintiff vs. CONTEMPORARY STREETWEAR, LLC., Defendant NOTICE TO DEFENDANT NAMED HEREIN: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. // - 01.3 ?'I G'i 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 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 TELEPHONE: (717) 249-3166} Tt/# ,E<<15-t13 WILLIAM GEORGES, Plaintiff vs. CONTEMPORARY STREETWEAR, LLC., Defendant COMPLAINT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and makes the following Complaint in this matter: 1. The Plaintiff is William Georges, an adult individual who resides at 607 Park Avenue in New Cumberland, Pennsylvania. 2. The Defendant is Contemporary Streetwear, LLC, a limited liability company organized under the laws of the State of Delaware, which maintains offices for the operation of its business at 205 W. 29' Street in New York, New York 10018. 3. Plaintiff is engaged in the business of design and manufacture of clothing, including denim and other clothing products. He has been so engaged at all times relevant to this action. 4. The Defendant is engaged in the business of selling clothing throughout the United States. The Defendant regularly and frequently conducts business within the Commonwealth of Pennsylvania selling, distributing and delivering clothing to retail outlets and other customers. Defendant has been so engaged in its business at all times relevant to this action. 5. Prior to July of 2010, Plaintiff and Defendant had worked together with Plaintiff designing and assisting in the manufacturing of clothing samples and products used by Defendant in its business. 6. In July of 2010, Defendant and Plaintiff entered into an oral agreement whereby Plaintiff was to have manufactured and delivered to Defendant 485 units of clothing samples, duplicate samples , and supporting technical data to be used by Defendant in its marketing and sales efforts within the United States and within the Commonwealth of Pennsylvania. The oral agreement came into being in Pennsylvania, when Plaintiff accepted Defendant offer and request that Plaintiff do the work. 7. Pursuant to the agreement between the parties, Defendant agreed to pay Plaintiff the sum of $202,680.00 for the samples, duplicate samples, and technical data to be developed, manufactured and delivered by Plaintiff. 8. Defendant paid Plaintiff the sum of $100,000.00 as a deposit on the contract between the parties. 9. Plaintiff well and truly performed his obligations under the contract between the parties and delivered to Defendant the samples, duplicate samples, and technical data prepared by Plaintiff pursuant to the agreement between the parties. Those items were delivered to Defendant in September of 2010. 10. Defendant accepted the products delivered by Plaintiff and expressed its full satisfaction with the products. Defendant repeatedly promised to pay Plaintiff for his services to Defendant pursuant to the oral agreement between the parties. 11. Contrary to its repeated promises, Defendant has failed to pay Plaintiff the balance owed Plaintiff on the contract between the parties. 12. Despite repeated demands by Plaintiff, Defendant has failed and refused to pay the monies owed Plaintiff pursuant to the agreement between the parties. 13. Defendant, by its conduct, has injured Plaintiff in the amount of $102,608.00. 14. Payments for Plaintiffs work were to be made by Defendant to Plaintiff at Plaintiff's residence in New Cumberland, Cumberland County, Pennsylvania. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $102,608.00, plus interest at the lawful rate from and after 30 September 2010, plus costs of suit. 4Suel L. Andes Attorney for Plaintiff Supreme Court ID # 17225 525 North 12th Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unworn falsification to authorities). Date: WIL ORGES X ?I 5-- !? J FILE l-OFFICE QF THE P R0TH, ON r, `Y 2011 MAY 25 PM 2: t;6 CUMBERLAND COUNT)' PENNSYLVANIA WILLIAM GEORGES, ) IN THE COURT OF COMMON Plaintiff } PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ) j ) CIVIL ACTION - LAW CONTEMPORARY STREETWEAR, LLC., ) j Defendant ) NO. 11-1213 CIVIL TERM AFFIDAVIT OF SERVICE BY CERTIFIED MAIL AMY M. HARKINS, being duly sworn according to law, deposes and says as follows: 1. That she is an employee of Samuel L. Andes, attorney for the Plaintiff herein. 2. That on April 21, 2011 she delivered to the U.S. Postal Service in Lemoyne, Pennsylvania, as certified mail (Receipt No. 7010 2780 0002 9185 0819) return receipt requested, addressed to the Defendant herein, a true and correct copy of the reinstated Complaint filed in the above-captioned action, together with a letter directed to the Defendant, copies of which are attached hereto and marked as EXHIBIT A. 3. Said return receipt card is attached hereto as EXHIBIT B showing a date of delivery to the Defendant on April 26, 2011. AMY M. S N Sworn to and subscribed before me this 2S4 day of 114.4Y Mi 1 ?xN iii WILLIAM GEORGES, Plaintiff vs. CONTEMPORARY STREETWEAR, LLC., Defendant TO: Contemporary Streetwear, LLC 169 Pulaski Street Bayonne, NJ 07002-5003 DATE: 19 May 2011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-1213 CIVIL TERM IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN 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 PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 4 S L L. D S ATTORNEY FOR PLAINTIFF SUPREME COURT ID # 17225 525 NORTH 12TH STREET P.O. BOX 168 LEMOYNE, PA 17043 (717) 761-5361 ?x?????? AM Ill: 3 1 EtlM8EI t.AN0 0ou11j ? .,, PENNSYLVA.N1A WILLIAM GEORGES, Plaintiff ) vs.. CONTEMPORARY STREETWEAR, LLC., ) Defendant ) TO THE PROTHONOTARY: PRAECIPE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO- 11- 1213 CIVIL TERM Please enter judgment in the above matter in favor of the Plaintiff William against the Defendant Contemporary Streetwear, LLC, for the Defendant's f Georges and Answer to Plaintiff's Complaint, in the amount of $102,608.00, allure to file an from 30 September 2010 until paid, plus costs of suit. Plus interest at the lawful rate I certify that the attached Notice of Default was mailed to the Defendant at which the Complaint was served on 19 May 2011. the address of Date: Z Vb,!1 e i ATTORNEY FOR PLAINTIFF SUPREME COURT ID 4 17225 525 NORTH 12TH STREET P-O- BOX 168 S L L. AN ES LEMOYNE, PA 17043 (717) 761-5361 /yOd"Od • af 4& 974-1 ,,? oo/le" ?x??? ?' THOMAS, THOMAS & HAFER, LLP John F. Yaninek, Esquire Attorney ID #55741 Corey J. Adamson, Esquire Attorney ID #204,508 PO Box 999 Harrisburg, PA 17108.0999 717-267-7100 WILLIAM GEORGES V. Plaintiff CONTEMPORARY STREETWEAR, LLC, Defendant Attorneys for Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 11-1213 CIVIL TERM CIVIL ACTION - LAU' JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Plaintiff William Georges c/o Samuel L. Andes, Esquire 525 North 12th Street PO Box 168 Lemoyne, PA 17043 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RE ENCLOSED ANSWER WITH NEW SPONSE TO THE SERtiZCE HEREOF OR A JUDGMENTT"1"ER WITHIN TWENTY (20) DAYS OF ? MAYBE ENTERED AGAINST YOU. THOMAS, THOMAS & HAFER, LLP By.- Date: John F. Yaninek, Esquire Attorney ID 4 55741 Corey J. Adamson, Esquire Attorney ID # 204508 P. O. Box 999 Harrisburg, PA 17108 717.441.3952 717.237.7105 facsimile THOMAS, J THOMAS & HAFER, LI.P ohn F. Yaninek, Esquire Attorney ID #55741 Corey J. Adamson, Esquire Attorney ID #204508 PO Box 999 Harrisburg, PA 17108-0999 717.267.7100 Attorneys for Defendant WILLIAM EG ORGES, IN THE COURT OF COMMON V. PLEAS Plaintiff CUMBERLAND CO., PENNSYLVANIA . NO. 11-1213 CIVIL TERM CONTEMPORARY STREETWEAR, CIVIL LLC, ACTION - LAW Defendant JURY ?TRIALDEMANDED NOTICE TO PLEAD AND NOW comes the Defendant, Contemporary through its counsel, Thomas, Thomas & Hafer Streetwear LLC, by and , LLP, and respectfully files the instant Petition, stating and averring as follows: 1 It is admitted based upon informati he says he is. on and belief that Plaintiff is who . 2• Denied as stated. Defendant's offices are located at 205 W. 39th New York, NY. Street, 3. Admitted based upon information and belief. 4. Admitted in part and denied in part. It is ad engaged in the business of selling clothing. matted that Defendant is The remaining averments of this paragraph are conclusions of law to which no response is required, and are deemed denied pursuant to Pa.R.C.P. 1029(4). 5- Admitted. 6. Denied. The averments of this which paragraph are conclusions of law to no response is required, and are deemed denied pursuant to Pa-R.C.P. 7• Denied. The averments of this which paragraph are conclusions of law to no response is required, and are deemed deni 1029(d). ed Pursuant. to Pa.R.C.P. 8. Admitted in part and denied in Defendant paid part. It is admitted only that Plaintiff $100,000 for development and samples. All other averments of this manufacture of clothing paragraph are conclusions of law to which no response is required, and are deemed denied pursuant to Pa-R.C.P. 1029(4). 9 Admitted in part and denied in part. delivered clothin It is admitted only that Plaintiff g samples and data to Defendant. All other av paragraph are conclusions of law to which no response erments of this denied is required, and are deemed pursuant to Pa.R.C.p_ 1029(d). 10. Denied pursuant to Pa-R.C.P. 1029(e Plaintiff was ). BY way of further res paid $100,000 by Defendant. Ponse, 11. Denied. The averments of this paragraph are conclusions of law to which no response is required, and are 1029(4), deemed denied pursuant to Pa-R.C.P. 12. Denied. The averments of this para which g-raph are conclusions of law to no response is required, and are deemed denie 1029(4). d pursuant to Pa-R.C.P. 13. Denied. The averments of this which no paragraph are conclusions of law to response is required, and are deemed denied pursuant to Pa.R.C.P. 14. Denied pursuant to Pa.R.C.P, 10 Plaintiff w 29(e)' By way of further as paid $100,000 by Defendant. response, WHEREFORE, Defendant Contem LLC, respectfully requests this Honorable Court enter judgment judgment in its favor and against Plaintiff. NEW MATTER lb• All foregoing paragraphs are incorporated fully set forth at length herein by reference as if 16. Plaintiff has failed to set forth a cl aim for which relief may be granted. 17. Plaintiff may have failed to mitigat e his damages. 18• Plaintiffs claims may be barred statute of limitations. by the expiration of the applicable 19. Plaintiff is not entitled to interest or costs of suit. 20. Plaintiff's claims may be barred b collateral estoppel, y the affirmative defenses of lathes, peel, release, accord and satisfaction, wain 21. er and/or rescission. Plaintiffs averred damages are over-valued, speculative. over stated and/or WHEREFORE, Defendant Contemporary Streetwear, requests this Honorable Court enter judgment in LLC, respectfully its favor and against Plaintiff. Respectfully submitted, Date THOMAS, THOMAS, HAFEP LLp John F. Yaninek, Esquire Attorney ID # 55741 Corey J. Adamson, Esquire Attorney ID # 204508 P. O. Box 999 Harrisburg, PA 17108 717.441.3952 717.237.7105 facsimile CERTIFICATE OF SERVICE I, Angela Kelly, an employee of the law firm of Thomas, Thomas & LLP, hereby certify that I sent a true and c Hafer, orrect copy of the foregoing document by placing a copy of the same in the Unite d States Mail, postage prepaid, to the following: Samuel L. Andes, Esq. 525 North 12th Street PO Box 168 Lemoyne, PA 17043 Angela K le ly Date: VERIFICATION I' Wayne Rutkay, Chief Financial Office have read the foregoin r of Contemporary Streetwear, LLC, and correct to the Matter, and hereby best of Y affirm that hat is true Verification MY Personal knowledge and statement is , information and belie it f. This relatin made subject to the g to unsworn falsificai;Is to penalties of 18 Pa.C.S. in the fore authorities; I veri § 4904 going are true fY that all the statements and correct and that false statements ma the penalties of 18 Pa. C S § 4904. Y subject made me to Wayne Rutkay, Chief Financial Officer Ex, 0 13 m x m ,n Page 1 PENNSYLVANIA RULES OF COURT, ANNOTATED BY * THIS DOCUMENT IS CUS LEXISNEXIS(R) *** ENT THROUGH AMENDMENTS MARCH 8, 2011 ANNOTA MENTS RECEIVED AP TION SERVICE *** APRIL 15, 2011 PENNSYLVANIA RULES OF CIVIL PROCEDURE BUSINESS OF COURTS 1'a. R. C.P. No. 237. S Rule 237.5, Form of Notice of Praecipe to Enter Jud (2011) The notice re gment by Default quired by Rule 237.1 (a)(2) shall be substantially in the following form: (CAPTION) To: ---------------- '-" (Defendant) Date of Notice: IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED WRITTEN PERSONALLY OR By B AND FILE OBJECTIONS TO THE ATTORS S T FOR TH AGA TO ENTER A COURT YOUR AD THE DATE OF THIS NOTICE, WRITING WITH THE COURT APPEARANCE AND YOU MAY JUDGMENT INST YOU' UNLESS YOU DEFENSES OR MAY BE ENT MAY LOSE YOUR PROPERTY OR OTHER IMPORWTgNTG ACT WITHIN TEN DAYS FROM AINST YOU WITHOUT A HEARING YOU SHOULD TAKE THIS PAPER TO YOUR RIGHTS. TO OR TELEPHONE THE OFFICE SET FO INFORMATION ABOUT . W. AT ONCE. IF YOU DO R BELOW, LAWYER NOT HIRING A LAWYER. THIS OFFICE CAN PROVIDE YOUE A LAWYER GO IF YOU CANNOT AFFO WITH INFORMATION ABOUT G TO HIRE LAWYER T REDUCED FEE OR AGENCIES THAT MAY HIS OFFICE MAY BE ABLE TO PROVIDE YOU NO FEE. OFFER LEGAL SERVICES WITH TO ELIGIBLE PERSONS AT (Name of Office) -------------------- (Address of Office) -------------------- (Telephone Number) Pa. R.C.P. No. 237.5 (Signature of'Plaintiff or Attorney) (Address) Note: The office shall be that designated 1018.1(c). by the court under Rule EXPLANATORY COMMENT-- 1994 Form ofNotice Page 2 Rule 237.4 prescribes the form of notice when a ' of notice when a as the case judgment by default is sou judgment of non pros is to be entered; may be, whether represented or ohtanach form of notice is Rule 237.5 As in Rule 8.1 without distinction asn t vtheir applying to all plaintiffscorb defendants involved. 101' no attempt is made to apply the notices selectively based h the nature grtu of education or sophistication. Of the action or park' The form of notice to be 1018.1 requires given when a default judgment is sought is adapted from the notice on every complaint. It informs he can obtain a lawyer. the defendant of the need for action repetition of the notice to defend Since in the notice will in to defend which Rule many cases be sent to an as , yet the consequences of default and default judgments. modified form helps to stimulate action and stem urepre ofpet defendant, the tide of petitions to open The form Of notice to be given to a Plaint default judgment is sought but is adapted toiff, the non prosgrn ent of non pros is m sought is similar to that given when a Exception to requirement of notification scenario. The requirement of notice does not apply to a 'ud order of court or pursuant to a j gment entered b the court itself or is directed b rule to show cause. Y an order of court, Additional notice serves no upon Praeci e by the court. cause. Purpose when a ' P nt is entto Y, a rule ered an Actions under Act No to show cause is itself notice of action to be taken by . 6 of 1974, the Loan requirement of notice. The notices required b an Interest and Protection Law, ql p S 6 relates to matters prior to , e.g. and Rule 237.1 are not duplicative. The notice under Act No. , the default 237.1 is directed to procedural rights after suit has Y the been Act § 1?I et seq., are not exempted from suit and the right to cure the default, whereas the ten commenced. -day notice of Rule CERTIFICATE OF SERVICE I, Angela Kell Y, an employee of the law firm of LLP, hereby certi Thomas, Thomas & Hafer, f3' that I sent a true and correct co Placing a co PY of the foregoing docu PY of the same in the United document by following: States Mail, postage prepaid, to the Samuel L. Andes, Es 525 North 12th q' Street POB 168 Lemoyne, PA 17043 Date: June 15, 2011 956480.1 IL THOMAS, THOMAS & HAFER, LLP John F. Yaninek, Esquire Attorney ID #55741 Corey J. Adamson, Esquire Attorney ID #204508 PO Box 999 Harrisburg, PA 17108-0999 717-267-7100 is!! JUI 15 AM II: I :'UM6ERLA?/Op !° tGGUr l `. (3r?1NS i I- Y !414 Attorneys for Defendant WILLIAM UEORGES, Plaintiff V. CONTEMPORARY STREETWEAR, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 11-1213 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of John F. Yaninek, Corey J. Adamson and Thomas, Thomas & Hafer LLP, 305 North Front Street, P.O. Box 999, Harrisburg, PA 17108, on behalf of Defendant Contemporary Streetwear, LLC. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP ohn Ya inek, Esquire Attorney ID # 55741 Corey J. Adamson, Esquire Attorney ID # 204508 P. O. Box 999 Harrisburg, PA 17108 717.441.3952 717.237.7105 facsimile Date: June 15, 2011 4 CERTIFICATE OF SERVICE I, Angela Kelly, an employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: Samuel L. Andes, Esq. 525 North 12th Street PO Box 168 Lemoyne, PA 17043 Bela Kelly Date: June 15, 2011 WILLIAM GEORGES, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ' C= . c, c? a " CONTEMPORARY STREETWEAR, r LLC, u, DEFENDANT NO. 11-1213 CIVIL r*' a ?w zc, ORDER OF COURT"' -: AND NOW, this 22nd day of June, 2011, upon consideration of Defendant Petition to Open/Strike Default Judgment, IT IS HEREBY ORDERED AND DIRECTED that: ^. i - ? w cD , - -ri 1. A Rule is issued upon William Georges to show cause why the Petitioner is not entitled to the relief requested; 2. William Georges shall file an Answer to the Petition on or before July 8, 2011; 3. The Petition shall be decided under Pa.R.C.P. No. 206.7; 4. Depositions shall be completed by July 29, 2011; 5. Argument shall be held on Tuesday, August 23, 2011, in Courtroom No. 2 of the Cumberland County Courthouse; 6. Notice of the entry of this Order shall be provided to all Parties by the Petitioner. Samuel L. Andes, Esquire Attorney for Plaintiff John F. Yaninek, Esquire Attorney for Defendant By the Court, M. L. Ebert, Jr., J ,,P, MatUd 00/11 bas WILLIAM GEORGES, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CO ,.? rr, CONTEMPORARY STREETWEAR, -' LLC, DEFENDANT NO. 11-1213 CIVIL AMENDED ORDER OF COURT AND NOW, this 23rd day of June, 2011, the Order of Court dated June 22Y, 2011, ^ setting argument for August 23, 2011 is amended to provide that the argument will take place at 8:30 a.m. The remainder of the Order will be in full force and effect. By the Court, M. L. Ebert, Jr., J. Samuel L. Andes, Esquire Attorney for Plaintiff John F. Yaninek, Esquire Attorney for Defendant fain" OP 001t( p bas {,_.{tLED-y` FFICE .r -ilE -oil Jlu.-1 Ki 2:2i t,,1JMBERLAN0 COUNTY WILLIAM GEORGES, ) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ) CIVIL ACTION - LAW CONTEMPORARY STREETWEAR, LLC., ) Defendant ) NO. 11-1213 CIVIL TERM PLAINTIFF'S ANSWER TO DEFENDANT'S PETITION TO OPEN/STRIKE DEFAULT JUDGMENT AND NOW comes the above-named Plaintiff by his attorney, Samuel L. Andes, and makes the following Answer to Defendant's Petition: 1. Admitted 2. Denied as stated. The Plaintiff's Complaint speaks for itself without the need for characterization. 3. Denied for the reasons set forth in Paragraph 2 above. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted although Plaintiff denies that Defendant is entitled to the relief it requests. 8. Denied. Defendant does not have a meritorious defense to Plaintiff's Complaint. Defendant has not effectively denied the material averments in Plaintiff's Complaint or raised, with sufficient specificity, any valid affirmative defenses to Plaintiff's claim. Plaintiff incorporates herein, by reference, the averments in his Complaint. 9. Denied. Defendant was in contact with its present counsel as early as 12 May 2011 and had more than sufficient time after that date, and before the entry of the judgment in this matter to retain counsel and raise a defense by filing an answer. By way of further answer, Plaintiff states that Defendant did not, at any time, contact Plaintiff's counsel to request additional time to secure counsel and file a pleading in response to Plaintiff s Complaint. 10. Plaintiff admits that Defendant's Petition was filed on 15 June 2011, which was thirteen days after the judgment was entered in this matter. Plaintiff denies that Defendant has a meritorious defense, that Defendant's proposed Answer raises or states a meritorious defense, or that Defendant otherwise complies with the requirements of Pa. R.C.P. 237.3 (b). 11. Denied. Granting Defendant's Petition to Open will subject Plaintiff to the cost, delay, and effort of a trial when Defendant has no legitimate or lawful defense to Plaintiff's claim and has not set forth a valid defense in its proposed Answer or in this Petition. 12. Plaintiff admits that Pa. R.C.P. 237.1 (a) (2) requires the mailing of a Notice of Default to a Defendant who has failed to file an Answer to a Complaint before a default judgment can be entered. By way of further answer, however, Plaintiff states that he did mail such a Notice, sufficient under the circumstances of this case, before entering judgment against Defendant. 13. The Rules of Civil Procedure speak for themselves and no factual response is required. However, Plaintiff points out that Defendant suffered no prejudice by any technical non-compliance with the Rules because Defendant was notified of the risk of default by the Notice sent by Plaintiff and Defendant had already consulted with counsel more than a week prior to Plaintiff mailing the Notice to Defendant. 14. Denied as stated. The Notice sent to Defendant is in substantial compliance with the Notice required by the Rules of Civil Procedure and notified Defendant adequately of the risk of a default judgment. Moreover, the Notice to Plead attached to the original Complaint served upon Defendant advised Defendant of its right to counsel and means to obtain counsel if Defendant did not have one. Most significantly, Defendant had consulted with counsel more than a week prior to the mailing by Plaintiff of the Notice. Defendant can point to no prejudice which it suffered as a result of any technical non compliance with the Rules of Civil Procedure. 15. The averments in this Paragraph are conclusions of law to which no factual response is required. Nevertheless, Plaintiff states that Defendant misquotes or misstates the law as it relates to this situation. Further, Plaintiff incorporates herein, by reference, the averments set forth in Paragraphs 13 and 14 above. Plaintiff denies that its default judgment should be stricken. 16. Denied. The Praecipe by which Plaintiff entered default judgment on 2 June 2011 specifically certifies that the Notice of Default was mailed to Defendant on 19 May 2011. As a result, there is a record of service of the Notice of Default upon Defendant. WHEREFORE, Plaintiff prays this Court to deny and dismiss Defendant's Petition and to confirm the judgment entered against Defendant in this matter. Sainudl L. Ai'ldes Attorney for Plaintiff Supreme Court ID # 17225 525 North 12' Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsification to authorities). Date: WILLIAM GEORGES CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upon counsel for the herein by regular mail, postage prepaid, addressed as follows: John F. Yaninek, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 Amy M. kins Secretary for Samuel L. Andes WILLIAM GEORGES, P AINTIFF V. CONTEMPORARY STREETWEAR, LLC, DEFENDANT August 19, 2011. ORDER OF COURT AND NO? V, this 1St day of August, 2011, upon consideration of the Defendant's Motion to Extend Deadlines and the Plaintiff's Answer thereto, IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Motion to Extend Deadlines is DENIED. The argument previously scheduled for 8:30 a.m. on August 23, 2011, will be held as directed. The Parties may file briefs in support of their positions on or /Samuel L. An, Attorney for P John F. Yanin Attorney for D bas IN THE COURT OF COMMON PLEAS s' CUMBERLAND COUNTY, PENNSYL / AXIA t -. NO. 11-1213 CIVIL By the Court, M. L. Ebert, Jr., J. Esquire tiff Esquire Cop ndant $Io??? OK$ f l AUG -2 Vi 10: 2 'UMBERLAQ COU`4 PENNSYLVANIA WILLIAM GEORGES, ) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. ) CIVIL ACTION - LAW CONTEMPORARY STREETWEAR, LLC., ) Defendant ) NO. 11-1213 CIVIL TERM PLAINTIFF'S ANSWER TO PLAINTIFF'S MOTION TO EXTEND DEADLINES AND NOW comes the above-named Plaintiff by his attorney Samuel L. Andes, and makes the following Answer to the Defendant's Motion to Extend Deadlines: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied for the following reasons: A. Plaintiff's Complaint was served upon Defendant on 26 April 2011, which service is confirmed by an Affidavit of Service previously filed by Plaintiff. As a result, Defendant has known, for more than three months, that it was obligated to assert any defense it had to Plaintiff's Complaint. B. Defendant contacted its present counsel in May of 2011, as confirmed by an e-mail which Mr. Yaninek sent to Plaintiff's counsel on 12 May 2011. C. Although Defendant claims to have a meritorious defense to Plaintiffs Complaint, it has not set forth any facts on which it bases that claim. To the contrary, the proposed Answer to Plaintiff's Complaint which Defendant attached to its Motion to Strike or Open the Judgment contains only general denials and claims unsupported by any averred facts. The law of Pennsylvania requires a party answering a Complaint to make a specific denial of facts alleged in the complaint and general denials are inadequate. The law of Pennsylvania also requires that all material facts on which an affirmative defense is based must be sent. out in the pleading raising the affirmative defense. Defendant's proposed Answer failed to comply with Pennsylvania law and, as such, does not raise a defense from which this court can accept. D. Defendant was aware of the deadlines establish by this court's order of 23 June 2011 and failed to take any action to request additional time for more than a month. Because of the length of time Defendant has been aware of this claim, Defendant has had more than adequate time to communicate with its attorney the factual basis for the defense it now claims to have. Defendant has failed to do so despite having more than three months to submit that information. 8. It is admitted that Defendant seeks an extension of time, but denies an extension is appropriate under the circumstances. Plaintiff in this matter is a small business man who must support his wife and three children from the income he derives from his services. The loss of more than 5100,000.00 in services for which he has not been paid, which payment is the subject of this action, has created a serious and overwhelming hardship for Plaintiff. Delaying the resolution of this matter any further will only aggravate that hardship. 9. Admitted. 10. Denied. Resolution of this matter has already been delayed several months by Defendant's cavalier response, or lack of response, to Plaintiff's efforts to collect what Plaintiff is owed. As noted above, the income generated by Plaintiff from his professional work is all that is available to support himself and his family. Further delay of this matter aggravates the hardship which Defendant has already caused Plaintiff. Furthermore, Plaintiff believes that Defendant will transfer, conceal, or expend assets while this matter is delayed, which assets would otherwise be available to pay Plaintiff what he is owed. For these two reasons, delay of this matter, even by thirty days, represents substantial prejudice to Plaintiff. WHEREFORE, Plaintiff prays this court to deny Defendant's Motion to Extend I Deadlines and continue with the schedule set out in this court's orders of 22 June 2011 and 23 June 2011. Samuel L. A es Attorney for Plaintiff Supreme Court ID # 17225 525 North 12" Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upon counsel for the Defendant herein by regular mail, postage prepaid, addressed as follows: John F. Yaninek, Esquire Thomas, Thomas & Hafer 305 North Front Street P.O. Box 999 Harrisburg, Pa 17108 Date: 1 August 2011 :3blibi it Har ins Secretary for Samuel L. Andes WILLIAM GEORGES, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. CONTEMPORARY STREETWEAR, LLC, DEFENDANT NO. 11-1213 CIVIL IN RE: PETITION TO OPEN/STRIKE DEFAULT JUDGMENT ORDER OF COURT AND NOW, this 12th day of September, 2011, upon consideration of the Petition to Open/Strike Default Judgment filed on behalf of Contemporary Streetwear, LLC, William Georges' Response thereto, and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that the Petition is DENIED. By the Court, *--? M. L. Ebert, Jr., J. Samuel L. Andes, Esquire Attorney for Plaintiff V John F. Yaninek, Esquire Attorney for Defendant ?p?es )K,7.'Ied 411411 n - 7 - y , C- .,yl _i' C,J WILLIAM GEORGES, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA V. CONTEMPORARY STREETWEAR, LLC, DEFENDANT NO. 11-1213 CIVIL IN RE: PETITION TO OPEN/STRIKE DEFAULT JUDGMENT OPINION AND ORDER OF COURT Ebert, Jr., September 12, 2011 - Background Pending before this Court is Defendant's, Contemporary Streetwear, LLC, Petition to Open/Strike Default Judgment. On June 2, 2011, a judgment was entered against Defendant in favor of Plaintiff, William Georges.I Judgment arises from the failure of Defendant to pay monies owed to Plaintiff under an agreement between the parties.2 A brief procedural history is provided to better illustrate the timeframe of events before this Court. This civil action commenced with a Notice and Complaint filed on February 2, 2011. On March 17, 2011, the Sheriff's Return of Service was filed and stated that the Notice and Complaint was unclaimed. On March 17, 2011, Plaintiff filed a Praecipe to reinstate the Complaint. On May 25, 2011, Plaintiff filed an Affidavit of Service by Certified Mail with a return receipt card showing a date of delivery to Defendant on April 26, 2011. On June 2, 2011, Plaintiff filed a Praecipe to enter default judgment ("Praecipe") against Defendant for failure to file an Answer to Plaintiff's Complaint. The Praecipe stated that Notice of Default was served to Defendant on May 19, 2011. That document bore the heading IMPORTANT NOTICE. 1 Plaintiff's Praecipe Requesting Judgment, filed Feb. 2, 2011. 2 Plaintiff's Complaint, filed Feb. 2, 2011, ¶¶ 6-13. 1 On June 15, 2011, Defendant filed a Petition to Open/Strike Default Judgment ("Petition"). On July 7, 2011, Plaintiff filed an Answer to Defendant's Petition. Oral argument on the matter was held on August 23, 2011. Discussion A. Petition to Strike In US Bank N.A. v. Mallory, 982 A.2d 986 (Pa. Super. 2009), the Superior Court of Pennsylvania described a petition to strike judgment as follows: A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike the judgment may be granted only for a fatal defect or irregularity appearing on the face of the record .... An order of the court striking a judgment annuls the original judgment and the parties are left as if no judgment had been entered. Cintas Corp. v. Lee's Cleaning Servs., 549 Pa. 84, 89-90, 700 A.2d 915, 917 (1997). Also, "[w]hen deciding if there are fatal defects on the face of the record for the purpose of a petition to strike a judgment, a court may only look at what was in the record when the judgment was entered." Id. at 90, 700 A.2d at 917. Id. at 991 (emphasis added). A case-by-case analysis has been used when determining whether a "fatal defect" existed to warrant the grant for a petition to strike a judgment. See, e.g., Erie Ins. Co. v. Bullard, 839 A.2d 383 (Pa. Super. 2003) (finding a fatal defect where insurer failed to comply with Rule 237.1 in forwarding notice of intent to enter a praecipe for default judgment to insured); Malizia v. Beckley, 513 A.2d 417 (Pa. Super. 1986) (finding no fatal defect where typed signature of attorney was in substantially the form required by Rule 237.1(c)); George H. Althof, Inc., v. Spartans Inns of America, Inc., 441 A.2d 1236 (Pa. Super. 1982) (finding no fatal defect where verification by attorney failed to set forth information required by Rule 1024(c)); Monroe Contract Corp. v. Harrison Square Inc., 405 A.2d 954 (Pa. Super. 1979) (finding no fatal defect where verification by attorney was not in strict compliance with the language of Rule 1024). 2 Although a fact specific analysis, done in conjunction with the Pennsylvania Rules of Civil Procedure ("Pa.R.C.P."), is applied when determining if a fatal defect exists on the face of the record, "courts should not be astute in enforcing technicalities to defeat apparently meritorious claims[.]" West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84, 86 (Pa. 1951). When a defect does not lead to confusion, or is inconsequential to a meritorious claim, a petition to strike a judgment should not be granted. See Malizia, 513 A.2d at 419; Monroe Contract Corp., 405 A.2d at 957. An error can be classified as a non-fatal defect when the error on the face of the record would not prejudice the defendant. See Atlantic Nat'l Trust, L.L.C. v. Stivala Invs., Inc., 922 A.2d 919, 923 (Pa. Super. 2007) (stating "[b]ecause [Appellant] did not make any allegations of prejudice due to [Appellee]'s failure to conform to Pa.R.C.P. 2952(a)(5), we hold that the trial court did not err when it denied [Appellant]'s petition to strike...."); George H. Althof, Inc., 441 A.2d at 1238; Monroe Contract Corp., 405 A.2d at 959 ("It would not be in the best interests of judicial economy to remand the matter for the sole purpose of effecting a miniscule and purely formal amendment."). The Superior Court has said, "[w]hile we do not, of course, condone willful noncompliance with our procedural rules, a hypertechnical reading of each clause, and a blind insistence on precise, formal adherence, benefits neither the judicial system nor those utilizing that system." Monroe Contract Corp., 405 A.2d at 958. In the often cited Supreme Court case, Cintas Corp. v. Lee's Cleaning Servs. - dealing with a petition to strike judgment, the Court reversed the Order of the Superior Court and reinstated the Trial Court's Order denying the petition. 700 A.2d 915, 920 (Pa. 1997). At issue before the Court was whether the record supporting the default judgment was fatally defective because of service violations under Pa.R.C.P. 405 and 425. Id. at 917. Plaintiff admitted that 3 return of service was defective under Rule 405(a) because Howard Zavodnick instead of Albert Zavodnick, the person who actually made service, completed the return of service. Id. The Court in reaching its decision distinguished between a fatal defect commonly found in failure of service versus a non-fatal defect of incorrect return of service: Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. However, the absence of or a defect in a return of service does not necessarily divest a court of jurisdiction of a defendant who was properly served. Id. at 918 (internal citations omitted). Although the Court found a specific violation of a rule of civil procedure on the face of the record, "the return of service contained sufficient information for a court to determine that service was proper, and any noncompliance with Rule 405(a) did not render service fatally defective." Id. In the Petition to Strike before this Court, the issue is whether Plaintiff's omission of a portion of the IMPORTANT NOTICE ("notice") as stated in Rule 237.5 rises to the level of a fatal defect requiring a grant of Defendant's Petition to Strike Default Judgment. The notice portion of Rule 237.5 states: YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. 4 Pa. R. Civ. P. 237.5. First, this Court finds that there is no defect on the face of the record. Omission of the example language contained in the last paragraph of Rule 237.5 does not constitute a defect because the essential requirement of notice pursuant to Rule 237.1 has been achieved. Defendant rightfully suggests that Plaintiff could have merely reproduced verbatim the example language supplied in Rule 237.5 to ensure proper notice pursuant to Rule 237.1. However, Defendant fails to recognize that proper notice can still be achieved without strict copying of the example language. Id. ("The notice required by Rule 237.1(a)(2) shall be substantially in the following form..." (emphasis added)). Although Plaintiff did not include verbatim the language used in Rule 237.5 which became effective on September 1, 2003, what was included still "informs the defendant of the need for action, the consequences of default and where he can obtain a lawyer[,]" as per the purpose of the notice requirement of Rule 237.1(a)(2)(ii). Id. at Explanatory Comment--1994, Form of Notice. While the Court does not condone the fact that Plaintiff used the old language recited in Rule 237.5 which was used prior to September 1, 2003, there is no question that a corporation like Contemporary Streetwear would somehow be eligible for free legal services. Equally important, is the fact that Contemporary was in fact in contact with private counsel during this timeframe. Second, even if the Court was to find that the omission is a defect, the defect would not rise to the level of being "fatal" so as to warrant the grant of Defendant's Petition. The facts and procedural history here present a situation where even as a defect, the omission was neither confusing, nor did it result in any prejudice to Defendant. After waiting almost two months after the complaint was received, Defendant filed a petition to strike and never asserted that a lack of knowledge or necessity for obtaining counsel at a reduced fee, or no fee, was prejudicial or even 5 necessary for meeting the deadlines for filing an answer to the complaint. Instead, Defendant asks this Court to grant the petition to strike based upon an immaterial claim to further delay an award for Plaintiff. We cannot in this case be so "astute" in enforcing a technicality as to defeat a meritorious judgment. B. Petition to Open A decision to open judgment is within the "court's sound discretion, and, on appeal, the order of the court below will only be reversed for clear abuse of discretion." Berkowitz v. Kass, 40 A.2d 691, 691 (Pa. 1945). The Superior Court in Myers v. Wells Fargo Bank, N.A. reiterates the well-established requirements: Generally speaking, a default judgment may be opened if the moving party has (1) promptly filed a petition to open the default judgment, (2) provided a reasonable excuse or explanation for failing to file a responsive pleading, and (3) pleaded a meritorious defense to the allegations contained in the complaint. 986 A.2d 171, 175-76 (Pa. Super. 2009). Additionally, a trial court may not open a default judgment unless the moving party can meet all three prongs. Id. at 176. The Myers court further elaborated on the first prong stating, "[i]n cases where the appellate courts have found a `prompt' and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month." Id. In the present case, Defendant filed the Petition on June 15, 2011, within a month of being served with a notice of default on May 19, 2011. Therefore, the first prong has been satisfied. The Myers court then addressed the second prong stating, "whether an excuse is legitimate is not easily answered and depends upon the specific circumstances of the case. The appellate courts have usually addressed the question of legitimate excuse in the context of an excuse for failure to respond to the original complaint in a timely fashion." Id. at 177. The Myers trial court denied the petition to open judgment based upon the defendant's, U.S. Bank, failure to 6 satisfy the second prong. Id. The Superior Court upheld the determination that U.S. Bank did not provide a legitimate excuse for failing to file a responsive pleading based upon the assertion that a clerical error and miscommunication between counsel and in-house counsel was the excuse for delay. Id. The Court did not find that U.S. Bank's "failure to answer was due to an oversight, an unintentional omission to act, or a mistake of the rights and duties of the appellant, [thus] the default judgment may [not] be opened." Id. (internal quotations omitted). This Court takes note of the Superior Court's distinction between a stricter standard of a corporate defendant over a layperson when making a determination of whether a reasonable excuse in delay exists. Id. ("The Reid court emphasized the fact that the appellant was a layperson and not a corporate defendant with the means to monitor its legal claims."). In the present case, the record is clear that Plaintiff's complaint was served upon the corporate Defendant on April 26, 2011. Defendant took no action. On May 19, twenty-three (23) days after the complaint was served, Plaintiff notified Defendant of the intent to claim a default judgment. Defendant still took no immediate action. Instead, Defendant waited another twenty- seven (27) days before filing its first response, the petition to strike/open default judgment. Defendant offers its status as an out-of-state entity as the reasonable excuse or explanation as to why a responsive pleading was not timely filed. This Court finds this excuse or explanation unpersuasive. Defendant had initially contacted local counsel and as a result of a dispute or negotiation in payment, counsel did not enter an appearance until June 15, 2011. The delay in obtaining counsel does not excuse Defendant of its responsibilities to timely file a responsive pleading. This Court finds it clear that the failure of Defendant to file a timely responsive pleading was not due to an oversight, unintentional omission, or a mistake of its rights and duties. This Court will not grant Defendant's petition to open default judgment 7 because Defendant has failed to meet the second prong; namely failing to provide a reasonable excuse or explanation as to why a timely responsive pleading was not filed. See Mgrs, 986 A.2d at 178 (citing US Bank N.A. v. Mallory, 982 A.2d 986 (Pa. Super. 2009) (affirming denial of petition to open even though trial court failed to analyze third prong of meritorious defense since other prongs were not met); McCoy v. Public Acceptance Corp., 305 A.2d 698 (Pa. 1973) (indicating all three factors must be met before default judgment may be opened and having concluded the appellant did not adequately explain the failure to answer the complaint, the trial court was justified in refusing to open the judgment)). At this juncture, justice would not be best served in further delaying Plaintiff's meritorious judgment. Finally, even if the previous two prongs had been satisfied, Defendant has failed to state a meritorious defense. Defendant is required under the third prong to "plead a defense that would justify relief if proved at trial and a defense that is set forth in precise, specific and clear terms." American Express Centurion Bank v. Morley, 17 Pa. D. & C.5th 1, 2010 WL 5860732 (citing Penn-Delco School District v. Bell Atlantic-PA, 745 A.2d 14, 19 (Pa. Super. 1999)) (emphasis added). This Court on June 22, 2011, issued an Order to be decided under Pa.R.C.P. 206.7 for Plaintiff to show cause, file an Answer to the Petition, and have all Depositions completed by July 29, 2011. Rule 206.7(c) states: If an answer is filed raising disputed issues of material fact, the petitioner may take depositions on those issues, or such other discovery as the court allows, within the time set forth in the order of the court. If the petitioner does not do so, the petition shall be decided on petition and answer and all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of this subdivision. Pa. R. Civ. P. 206.7(c). Plaintiff filed an Answer disputing the issues of material fact set forth in Defendant's Petition in a timely fashion. Defendant failed to take depositions on the issues of material fact disputed in the Answer to the Petition before July 29, 2011, and thus, the Court 8 accepted as true all Plaintiffs' properly pled averments in response to Defendant's Petition. See McCoy v. Mahoney, 820 A.2d 736, 739-40 (Pa. Super. 2003) ("Using the procedure outlined in Pa.R.C.P. 206.7(c), we find the trial court should have credited Husband's specific denials and deemed his related averments of fact admitted."). Defendant supports its Petition with Exhibit E, a proposed Answer to Plaintiff's Complaint, in an attempt to raise a meritorious defense. Exhibit E provides general denials of Plaintiff's averments and provides the following proposed New Matter: 16. Plaintiff has failed to set forth a claim for which relief may be granted. 17. Plaintiff may have failed to mitigate his damages. 18. Plaintiff's claim may be barred by the expiration of the applicable statute of limitations. 19. Plaintiff is not entitled to interest or costs of suit. 20. Plaintiff's claims may be barred by the affirmative defenses of laches, collateral estoppel, release, accord and satisfaction, waiver and/or rescission. 21. Plaintiff's averred damages are over-valued, over stated and/or speculative. Defendant's attempt to provide a defense is the antithesis of being "precise, specific and clear." This Court, pursuant to a previous Order in accordance with Rule 206.7(c), cannot find a meritorious defense within the Petition and will not take into account the documents filed by Defendant on August 22, 2011. Conclusion This Court finds no fatal defect on the face of the record because Plaintiff complied with the intention of notice pursuant to Rule 237.1(a)(2) and will deny the petition to strike default judgment. Also, this Court may not consider Defendant's petition to open because Defendant has failed to meet two of the three prongs required. Additionally, Defendant has repeatedly failed to comply with the Pennsylvania Rules of Civil Procedure. This Court refuses to indulge Defendant in unjustifiably prolonging Plaintiff's claim and further delaying a meritorious judgment. Accordingly the following order is entered: 9 AND NOW, this 12th day of September, 2011, upon consideration of the Petition to Open/Strike Default Judgment filed on behalf of Contemporary Streetwear, LLC, William Georges' Response thereto, and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that the Petition is DENIED. By the Court, N\---t M. L. Ebert, Jr., " II J. Samuel L. Andes, Esquire Attorney for Plaintiff John F. Yaninek, Esquire Attorney for Defendant 10 THOMAS, THOMAS & HAFER, LLP John F. Yaninek, Esquire Attorney ID #55741 Corey J. Adamson, Esquire Attorney ID #204508 PO Box 999 Harrisburg, PA 17108-0999 717.267-7100 EEi"s LE PPO" 20 11 OCT I I AM 11: 49 C:UMBER `ANO C0UNT PENNSYLVANIA, Attorneys for Defendant WILLIAM GEORGES, Plaintiff V. CONTEMPORARY STREETWEAR, LLC, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND CO., PENNSYLVANIA NO. 11-1213 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF APPEAL TO THE PROTHONOTARY: Notice is hereby given that Defendant, Contemporary Streetwear, LLC, hereby appeals to the Superior Court of Pennsylvania from the Order of the Honorable M. L. Ebert, Jr., dated September 12, 2011, denying Defendant's Petition to Open/Strike Default Judgment. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. A court reporter or stenographer was not present during oral argument regarding the Order at issue so there is no transcript to order. Respectfully submitted, THOMAS, THOMAS P e 55741 orey J. Adamson, Esquire Attorney ID # 204508 P. O. Box 999 Harrisburg, PA 17108 717.441.3952 717.237.7105 facsimile Counsel for Defendant f-// 6 f-t d 917W 33 Z4. 34 5- 7W CERTIFICATE OF SERVICE I, hereby certify that I served a true and correct copy of the foregoing document via email and by handing a copy of the same to the following: Hon. M.L. Ebert, Jr. Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Court Administrator of Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Samuel L. Andes, Esquire 525 North 12th Street PO Box 168 Lemoyne, PA 17043 Counsel for Plaintiff Date: lc)//, /k 999467.1 11422710112011 Cumberland County Prothonotary's Office Page 1 PYS510 Civil Case Print 2011-01213 GEORGES WILLIAM (vs) CONTEMPORARY STREETWEAR LL' Reference No..: Filed........: 2/02/2011 Case Type.....: CONTRACT - DEBT COLLECTION: OT Time.........: 12:05 HER Judgment...... 102608.00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info GEORGES WILLIAM PLAINTIFF ANDES SAMUEL L 607 PARK AVENUE NEW CUMBERLAND PA CONTEMPORARY STREETWEAR LLC DEFENDANT YANINEK JOHN F 205 W 29TH STREET NEW YORK NY 10018 Judgment Index Amount Date Desc CONTEMPORARY STREETWEAR LLC 102,608.00 6/02/2011 FAILURE TO ANSWER ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY 2/02/2011 COMPLAINT - BY SAMUEL L ANDES ATTY FOR PLFF --------------------------------------------------------- 3/17/2011 SHERIFF'S RETURN - DATED 3/14/11 IN RE SERVICE OF THE COMPLAINT SENT VIA CERTIFIED MAILED RETURNED AS **UNCLAIMED** SHERIFF COSTS $34.15 ---------------------------- -------------------------------- 3 17 2011 PRAECIPE TO REINSTATE COMPLAINT - BY SAMUEL L ANDES ATTY FOR PLFF ----------------- -------------------------------------------------- 4/15/2011 PRAECIPE TO REINSTATE COMPLAINT - BY SAMUEL L ANDES ATTY FOR PLFF --------------------------------- ---------------------------------- 5 25/2011 AFFIDAVIT OF SERVICE BY CERTIFIED MAIL - REINSTATED COMPLAINT - BY AMY M HARKINS ------------------------------------------ ------------------------- 6 02/2011 PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED IN THE AMOUNT OF $ 102,608.00 - BY SAMUEL L ANDES ATTY FOR PLFF ------------------------------------------------------------------- 6/02/2011 NOTICE MAILED TO DEFENDANT ----------------------------- -------------------------------------- 6 02/2011 IMPORTANT NOTICE FILED (DEFAULT JUDGMENT) - BY SAMUEL ANDES ESQ -------------------------- _ _ ---------------------------------- 6/15/2011 PETITION TO OPEN/STRIKE DEFAULT JUDGMENT - BY COREY J ADAMSON ATTY FOR DEFT ------------------------------------ ------------------------------- 6 15/2011 ENTRY OF APPEARANCE - BY JOHN F YANINEK ATTY FOR DEF ------------------------------ 6 22/2011 ORDER OF COURT - 6/22111 - IN RE: DEFT'S PETITION TO OPEN/STRIKE DEFAULT JUDGMENT - ORDERED AND DIRECTED THAT: 1 -RULE ISSUED UPON WILLIAM GEORGES TO SHOW CAUSE WHY PETITIONER IS NOT ENTITLED TO RELIEF REQUESTED 2 -WILLIAM GEORGES SHALL FILE ANSWER TO PETITION ON OR BEFORE 7/8/11 3 -PETITION SHALL BE DECIDED UNDER PA RCP NO 206.7 4 -DEPOSITIONS SHALL BE COMPLETED BY 7/29/11 5 -ARGUMENT SHALL BE HELD 8/23/11 CR 2 CUMB CO COURTHOUSE 6 -NOTICE OF ENTRY OF THIS ORDER SHALL BE PROVIDED TO ALL PARTIES BY THE PETITIONER - BY THE COURT M L EBERT JR J COPIES MAILED 6/22/11 -------------------------------------------------------------------- 6/23/2011 AMENDED ORDER OF COURT - 6/23/11 - IN RE: ORDER OF COURT DATED 6/22/11 SETTING ARGUMENT FOR 8/23/11 IS AMENDED TO PROVIDE THAT THE ARGUMENT WILL TAKE PLACE AT 8:30 AM - REMAINDER OF THE ORDER WILL BE IN FULL FORCE AND EFFECT - BY THE COURT -- M L EBERT JR J COPIES MAILED 6/23/11 -------------------------------------- 7 07/2011 PLAINTIFF'S ANSWER TO DEFT'S PETITION TO OPEN/STRIKE DEFAULT L 1422710112011 Cumberland County Prothonotary's Office Page 2 PYS510 Civil Case Print 2011-0121.3 GEORGES WILLIAM (vs) CONTEMPORARY STREETWEAR LLC Reference No..: Filed........: 2/02/2011 Case Type.....: CONTRACT - DEBT COLLECTION: OT Time.........: 12:05 HER Judgment...... 102608.00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 Case Comments ------------- Higher Crt 1.: Higher Crt 2.: JUDGMENT - BY SAMUEL L ANDES ATTY FOR PLFF -------------------------- ________ --------------------------------- 7 28/2011 MOTION TO EXTEND DEADLINES - BY JOHN F YANINEK ATTY FOR DEF -------------------------------------------------------------------- 8/01/2011 ORDER OF COURT - 8/1/11 - IN RE: DEFT'S MOTION TO EXTEND DEADLINES AND THE PLFF'S ANSWER THERETO - IT IS HEREBY ORDERED THAT THE DEFT'S MOTION TO EXTEND DEADLINES IS DENIED - ARGUMENT PREVIOUSLY SCHEDULED FOR 8:30 AM ON 8/23/11 WILL BE HELD AS DIRECTED - THE PARTIES MAY FILE BRIEFS IN SUPPORT OF THEIR POSITIONS ON OR BEFORE 8/19/11 - BY THE COURT M L EBERT JR-J-_-COPIES MAILED 8/2/11 ----------------------------- _ _ _ __ 8 02/2011 PLAINTIFF'S ANSWER TO PLAINTIFF'S MOTION TO EXTEND DEADLINES - BY SAMUEL L ANDES ATTY FOR PLFF ------------------------------------------------ ------------------- 8/22/2011 PRAECIPE TO FILE DOCUMENTS OF RECORD - BY COREY J ADAMSON ATTY FOR DEFT --------------------------------------------- ___ 9/14/2011 ORDER OF COURT - 9/12/11 - IN RE: PETITION TO OPEN/STRIKE DEFAULT JUDGMENT - ORDERED AND DIRECTED THAT PETITION IS DENIED - BY THE COURT M L EBERT JR J - COPIES MAILED 9/14/11 - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq Bal Pymts/Ad? End Bal ******************************** ******** ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .00 SETTLEMENT •50 .50 AUTOMATION 5.00 8.00 .00 JCP FEE 5.00 5.00 .00 REINSTATE COMPL 23.50 23.50 .00 REINSTATE COMPL 10.00 10.00 .00 JDMT 10.00 10.00 .00 14.00 14.00 .00 ---------------------- ------------ 126.00 126.00 .00 *******k*****?c*ir**tt****t***tF*******Ir********t**********ttF**?c***t?ckFir**tic***** * End of Case Information ******************************************************************************** T" copy F" neco" awr nWhwW - i~ . F1LEp-OFF1CE ' Of TNE PR(ITHONOTARY , 101INOY 10 PM 12: 59 ' Cl1MBERi.AND COUNT'Y ' , PENNSYl.VANtA i ~ ~ WILLIAM GEORGES, ) IN THE COURT OF CONIMON PLEAS Plaintiff ) OF CUMBERLAND COLJNTY, ) PENNSYLVANIA vs. ! ) CIVIL ACTION - LAW ~ CONTEMPORARY STREETWEAR, ) ~ LLC., ) NO. 11-1213 CIVIL TERM Defendant ; ; ! PLAINTIFF'S PETITION FOR SUPPLEMENTARY RELIEF IN AID OF EXECUTION i ' j AND NOW comes the above-named Plaintiff by his attorney Samuel L. Andes, and ~ petitions the court for supplement relief in aid of execution pursuant to Pa. R.C.P. 3118, based ~ upon the following: 1. The Petitioner herein is the Plaintiff. The Respondent herein is the Defendant. I; 2. This court entered judgment against the Defendant and in favor of the Plaintiff in the ' amount of $ l 02,608.00 on 2 January 2011. The judgment was entered by default for the i Defendant's failure to file an Answer to Plaintiffls Complaint. ; ~ 3. The Defendant subsequently filed a Petition to both strike and open the judgment ~ entered against it and, after briefs and oral argument, this court, by an order dated 12 September i 2011, denied Defendant's petition and, by doing so, confirmed the judgment entered against the Defendant. ~ 4. On 11 October 2011, Defendant filed an appeal of this court's order of 12 September I 2011 to the Pennsylvania Superior Court. ~ 5. Pursuant to Pa. R.A.P. 1731 (a), an appeal from this court's order does not act as a ' supercedeas without the posting of bond by Defendant or without an order of this court, or of the appellate court, granting such supercedeas. ~ 6. Defendant has failed to post a bond or other security pending its appeal. Defendant has not applied for a stay or supercedeas of the judgment. As a result, Plaintiff is entitled to enforce the judgment. I I . . i I " 7. Defendant operates a business in New York City. ' I ~ 8. Plaintiff has attempted to ascertain whether Defendant owns assets within the ii i; Commonwealth of Pennsylvania. To obtain that information, Plaintiff has scheduled the ; j deposition of Alex Bize, Defendant's chief operating officer, for 16 November 2011. 9. Plaintiff s counsel has been advised by Defendant's counsel that Defendant's counsel ~E does not believe Mr. Bize will appear for the deposition and has objected informally to the i deposition because Mr. Bize is in New York. ~ k I 10. Plaintiff believes that Defendant is attempting to stall Plaintiffl s efforts to enforce ! the judgment to give Defendant time to transfer, encumber, dispose of, or otherwise place its j i assets beyond the reach of Plaintiff through execution. f i 11. P lam ti f f has been wi t hou t t he momes owe d him by De fen dan t for approxima te ly ~ ~ i one year and has been without the monies awarded to him by this court for almost six months. Plaintiff s inability to collect that money has created a significant hardship for Plaintiff because he has had to pay, from his own funds, substantial expenses he incurred in the performance of the contract which gave rise to the debt owned him by Defendant. 12. Defendant has valuable assets which include, among others, several trade names, one ; of which is "Cavi." Plaintiff believes that those trade names have significant value to i; Defendant and would have significant value to Plaintiff. ~ 13. Pa. R.A.P. 1701 (b) (2) permits this court, after an appeal has been taken to an i; i; appellate court, to enforce any order entered in this matter. This court has the authority to ' enforce the judgment entered against Defendant, as specifically authorized by Pa. R.C.P. 3118. ' 14. Plaintiff continues to be serious prejudiced by Defendant's refusal to pay the a~ judgment awarded to him by this court and what he fears is Defendant's attempts to delay 1 ~ execution so that it may place its assets beyond Plaintiff's reach. 15. Prior orders in this matter have been entered by the Honorable M.L. Ebert, Jr. 16. Defendant does not concur with the relief requested in this petition. ~ ~ i' i , I i I I , WHEREFORE, Plaintiff prays this court, in accordance with the provisions of Pa. R.C.P. 3118, to take the following actions: A. Enjoin the negotiation, transfer, assignment, or other disposition of any ~ tangible or intangible asset owned or used by Defendant; ' ! I B. Enjoin the transfer, removal, conveyance, assignment, or other ~ ; I disposition of property of the Defendant which is subject to execution; , ~ C. Direct the Defendant to take such action as may be necessary to I~ preserve Defendant's assets until such time as payment of the judgment in this I ' matter has been made in full and the judgment has been satisfied, specifically ~ I including any effort to transfer or otherwise alienate any trade name which belongs ; to Defendant; ~ ' D. Direct the Defendant to disclose to the Sheriff of Cumberland County and to Plaintiff the whereabouts of all assets owned by Defendant; ~ i E. Direct Alex Bize to appear before counsel for Plaintiff, within fourteen i ~ (14) days, for a deposition in aid of execution; and F. Such other relief as the court deems necessary and appropriate to protect I ' i the rights of Plaintiff in this matter. i ,I ; ; ~ , i . Samuel L. Andes ~ ~ Attorney for Plaintiff Supreme Court ID # 17225 525 North 12t' Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 ~ I~'I . , , . I verify that the statements made in this document are true and correct. I understand that any false statements in this document are subject to the penalties of 18 Pa. C.S. 4904 (unsworn falsif'ication to authorities). Date: WILLIAM GEORGES i t I I ~CERTIFICATE OF SERVICE i I hereby certify that I served an original of the foregoing document upon counsel for the ' Defendant herein by regular mail, postage prepaid, addressed as follows: f John F. Yaninek, Esquire P.O. Box 999 Harrisburg, PA 17108 Date: 10 November 2011 Amy arkins cretary for Samuel L. Andes li ~ I! i~ I' il i~ ~ , CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: William Georges Vs. Contemporary Streetwear, LLC 11-1213 CIVIL TERM 1776 MDA 2011 The documents comprising the record have been numbered from No. 1 to 177, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number oi?pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 12/7/2011. David D. Buell, rothonotary Regina Lebo, Deputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: 1, David D. Buell , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein William Georges In TESTIMONY WHEREOF, I have hereunto this 7th Plaintiff. and Contemporary Streetwear, LLC Defendant, as the same remains of record before the said Court at No. 11-1213 of (omit Term, set my hand and affixed the seal of said Court day of ece er A. r), 2011 Prothonotarq 1, Kevin A. Hess President Judge of the f Ninth AldiCal District, composed of the CountY of Cumberland, do certify that David D. Buell by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seat of the Court of Common Pleas of said Countv, was, at the time of sod oink, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of'Pennsylvania, duly commissioned and qualified to all of rahose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record, certificate and attestation are in due form of law and made by the per officer. President .Iud?C Commonwealth of Pennsylvania ss: County of Cumberland t David D. Buell Prothonotarv of the Court of Common Pleas in and for the said County. do certify that the Honorable Kevin A. Hess by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President,ludge of the Court of Common Pleas, Orphan' Court and Court of Qum-ter Sessions of the Peace in and for said Countv, duly Commissioned and qualified; to all whose acts <ts such full faith and credit are and ought to be given, as well in Courts cf judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set ntv hand and affixed the seal of said Court this 7th ay o December A, D. 2011 -- -- Prrnhpnpuir} No. Term 19 No 11-1213 Civil Term 1776 MDA 2011 William Georges Versus Contemporary Streetwear, LLC EXEMPLIFIED RECORD Cumberland From Countv Debt. Int. from Costs Entered and Filed PrathanotarR. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the Cumberland county in the Commonwealth of Pennsylvania I1-1213 to N o. 1776 MDA 2011 Term. 19 is contained the following: COPY OF Appearance DOCKET ENTRY William Georges VS. Contemporary Streetwear, LLC **SEE CERTIFIED COPY OF DOCKET ENTERIES** - Civil- Ca1se Pri-n.} 2011-01213 GEORGES WILLIAM (vs) CONTEMPORARY STREETWEAR LLC Reference No..: Case Type ..... : CONTRACT - DEBT COLLEC Judgment 102 6 Filed........: Time. . 2/02/2011 12:05 ..... , 08.00 Judge Assigned: EBERT M L JR Execution Date Jury Trial 0/00/0000 Disposed Desc.: ------------ Case Comm t -- . Disposed Date. 0/00/0000 en s ----------- HigFter Crt 1.: 1776MDA2011 Higher Crt 2.: ********************************************** ********************************** General Index Attorney Info GEORGES WILLIAM PLAINTIFF ANDES SAMUEL L 607 PARK AVENUE NEW CUMBERLAND PA CONTEMPORARY STREETWEAR LLC DEFENDANT YANINEK JOHN F 205 W 29TH STREET ADAMSON COREY J NEW YORK NY 10018 Judgment Index Amount Date Desc CONTEMPORARY STREETWEAR LLC 102,608.00 6/02/2011 FAILURE TO ANSWER ***********************7******************************************************** * Date Entries * * * * * * *- * * * * * 'k F * * * * * * ;F * * is is * * * * * * * *- * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * FIRST ENTRY - - - - - - - - - - - - /-? 2/02/2011 COMPLAINT - BY SAMUEL L ANDES ATTY FOR PLFF -------------------------------------------------------------------- 3/17/2011 SHERIFF'S RETURN - DATED 3/14/11 IN RE SERVICE OF THE COMPLAINT SENT VIA CERTIFIED MAILED RETURNED AS **UNCLAIMED** SHERIFF COSTS $34.15 -------------------------------------------------------------------- / 3/17/2011 PRAECIPE TO REINSTATE COMPLAINT - BY SAMUEL L ANDES ATTY FOR PLFF ------------------------------------ -------------------------------- 4/15/2011 F?RAECIPE TO REINSTATE COMPLAINT - BY SAMUEL L ANDES ATTY FOR PLFF -------------------------------------------------------------------- ?y`_ y 5/25/2011 AFFIDAVIT OF' SERVICE BY CERTIFIED MAIL - REINSTATED COMPLAINT - BY AMY M HARKINS ----------------------------------- ---------------------------------- zJ 6/02/2011 PRAECIPE FOR. DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED IN THE AMOUNT OF $ 102,608.00 - BY SAMUEL L ANDES ATTY FOR PLFF ------------------------------------------------------------------- 6/02/2011 NOTICE MAILED TO DEFENDANT ------------------------------------------------------------------- 6/02/2011 IMPORTANT NCTICE FILED (DEFAULT JUDGMENT) - BY SAMUEL ANDES ESQ ----------------------------------- -------------------------------- 7 6/15/2011 PETITION TO OPEN/STRIKE DEFAULT JUDGMENT - BY COREY J ADAMSON ATTY FOR DEFT ------------------------------------------------------------------- 6/15/2011 ENTRY OF APPEARANCE - BY JOHN F YANINEK ATTY FOR DEF ------------------------------------------------------------------- -?? 6/22/2011 ORDER OF COURT - 6/22/11 - IN RE: DEFT'S PETITION TO OPEN/STRIKE DEFAULT JUDGMENT - ORDERED AND DIRECTED THAT: 1 -RULE ISSUED UPON WILLIAM GEORGES TO SHOW CAUSE WHY PETITIONER IS NOT ENTITLED TO RELIEF REQUESTED 2 -WILLIAM GEORGES SHALL FILE ANSWER TO PETITION ON OR BEFORE 7/8/11 3 -PETITION SHALL BE DECIDED UNDER PA RCP 140 206.7 4 -DEPOSITIONS SHALL BE COMPLETED BY 7/29/11 5 -ARGUMENT SHALL BE HELD 8/23/11 CR 2 CUMB CO COURTHOUSE 6 -NOTICE OF ENTRY OF THIS ORDER SHALL BE PROVIDED TO ALL PARTIES BY THE PETITIONER - BY THE COURT M L EBERT JR J COPIES MAILED 6/22/11 ------------------------------------------------------------------- ?r 7 6/23/2011 AMENDED ORDER OF COURT - 6/23/11 - IN RE: ORDER OF COURT DATED 6/22/11 SETTING ARGUMENT FOR 8/23/11 IS AMENDED TO PROVIDE THAT THE ARGUMENT WILL TAKE PLACE AT 8:30 AM - REMAINDER OF THE ORDER WILL BE IN FULL FORCE AND EFFECT - BY THE COURT - M L EBERT JR J COPIES MAILED 6/23/11 --------------------------------------- ---------------------------- ,? 7/07/2011 PLAINTIFF'S ANSWER TO DEFT'S PETITION TO OPEN/STRIKE DEFAULT Civil Case Pr_J, 1 - 2011-01213 GEORGES WILLIAM (vs) CONTEMPORARY STREETWEAR LLC Reference No..: Filed........: 2/02/2011 Case Type ..... : CONTRACT - DEBT COLLEC Time.........: 12:05 Judgment..... 102,608.00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1776MDA2011 Higher Crt 2.: JUDGMENT - BY SAMUEL L ANDES ATTY FOR PLFF -------------------------------------------------------------------- C?Lf (,J 7/28/2011 MOTION TO EXTEND DEADLINES - BY JOHN F YANINEK ATTY FOR DEF ------------------------------------------------------------------- 63 8/01/2011 ORDER OF COURT - 8/1/11 - IN RE: DEFT'S MOTION TO EXTEND DEADLINES AND THE PLFF'S ANSWER THERETO - IT IS HEREBY ORDERED THAT THE DEFT'S MOTION TO EXTEND DEADLINES IS DENIED - ARGUMENT PREVIOUSLY SCHEDULED FOR 8:30 AM ON 8/23/11 WILL BE HELD AS DIRECTED - THE PARTIES MAY FILE BRIEFS IN SUPPORT OF THEIR POSITIONS ON OR BEFORE 8/19/11 - BY THE COURT M L EBERT JR J - COPIES MAILED 8/2/11 ------------------------------------------------------------------- 8/02/2011 PLAINTIFF'S ANSWER TO PLAINTIFF'S MOTION TO EXTEND DEADLINES - BY SAMUEL L ANDES ATTY FOR PLFF -------------------------------------------------------------------- 8/22/2011 PRAECIPE TO FILE DOCUMENTS OF RECORD - BY COREY J ADAMSON ATTY FOR DEFT ------------------------------------------------------------------- 1?...?1 9/14/2011 ORDER OF CO'JRT - 9/12/11 - IN RE: PETITION TO OPEN/STRIKE DEFAULT JUDGMENT - ORDERED AND DIRECTED THAT PETITION IS DENIED - BY THE COURT M L E:3ERT JR J - COPIES MAILED 9/14/11 ------------------------------------------------------------------- ?;f ?5;y10/11/2011 NOTTAIIE OFTOAPSUPERIORPEAL TO COURT - BY COREY J ADAMSON ATTY DEFT ------------------------------------------------------------------- 10;12/2011 ORDER OF COURT - 10/12/11 - IN RE: NOTICE OF APPEAL - ORDERED THAT: 1 -DEFT FILE A CONCISE STATEMENT OF THE ERRORS COMPLAINT OF ON APPEAL ON OR BEFORE 11/2/11 2 -THE STATEMENT SHALL BE FILED OF RECORD 3 -THE STATEMENT SHALL BE SERVED ON THIS COURT PURSUANT TO PA RAP RULE 1925 B 1 IT IS FURTHER ORDERED AND DIRECTED THAT ANY ISSUE NOT PROPERLY INCLUDED IN THE STATEMENT SHALL BE DEEMED WAIVED - BY THE COURT M L EBERT JR J - COPIES MAILED 10/7_2/11 ------------------------------------------------------------------- `10/17/2011 EXEMPLIFIED RECORD FOR OUT OF STATE ---------------------------------------- ------ ----- -------- --------- 10%18/2011 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1176 MDA 2011 ----------- ------- ---------- ----------- ------------ --------------- 11/02/2011 DEFENDANT'S CONCISE STATEMENT OF MATTERS COMPLAINTED OF ON APPEAL BY COREY J ADAMSON ATTY FOR PLFF -------------------------------------------------------------------- ?,,)&4/11/09/2011 IN RE:OPINION PURSUANT TO PA RAP 1925 - 11/9/11 - BY THE COURT M L EBERT JR J -- COPIES MAILED 11/10/11 ----------- -------- ------------------ ------- ---------------------- 7( 11/ 1 10/2011 PLAINTIFF'S PETITION- ETITION FOR- OR SUPPLEMENTARY- UPPLEMENTARY RELIEF IN AID OF- F EXECUTION- - BY SAMUEL L ANDES ATTY FOR PLFF -----------•-------------------------------------------------------- J&S 11/16/2011 ORDER OF COURT - 11/15/11 - IN RE:PLFF'S PETITIONFOR SUPPLEMENTARY BELIEF IN A-JD OF EXECUTION - ORDERED AND DIRECTED: 1 -RULE ISSUED UPON DEFT TO SHOW CAUSE WHY PETITIONER IS NOT ENTITLED TO RELIEF REQUESTED 2 -DEFT SHALL FILE AN ANSWER TO THE PETITION ON OR BEFOR 12/2/11 3 **PROTHONOTARY SHALL FORWARD SAID ANSWER TO THIS COURT** 4 -HEARING ON MATTER SHALL BE HELD 1/30/12 @ 1:30 PM IN CR 2 OF "UMB CO COURTHOUSE - BY THE COURT M L EBERT JR J COPIES MAILED 11/16/11 -------------------------------------------------------------------- j•7`-)7&12/02/2011 DEFENDANT'S ANSWER TO PLFF'S PETITION FOR SUPPLEMENTARY RELIEF - 3Y COREY J ADAMSON ATTY FOR DEFT ------------------------------------------------------------------- 12/07/2011 NOTICE OF DOCKET ENTRIES MAILED TO JOHN F YANINEK ESQ AND SAMUEL L ANDES ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - -, * Escrow Information * Fees & Debits Beg Bal Pymts/Adj End Bal 20-Ll-01213 GEORGES WILLIAM (vs) CONTEMPORARY STREETWEAR LLC Reference No..: Case Ty e.....: CONTRACT - DEBT COLLEC Judgmen ....... 102,608•.00 Judge Assigned: EBERT yI L JR Disposed Desc.: ------------ Case Comments ------------- Filed........: Time.........: Execution Date Jury Trial.... Disposed Date. Higher Crt 1.: 2/02/2011 12:05 0/00/0000 0/00/0000 1776MDA2011 Higher Crt 2.: COMPLAINT TAX ON CMPLT SETTLEMENT AUTOMATION , I TCP FEE REINSTATE COMPL REINSTATE COMPL JDMT APPEAL HIGH CT EX RECORD 55.00 .50 8.00 5.00 23.50 10.00 10.00 14.00 48.00 16.00 ---------------- 55.00 .50 8.00 5.00 23.50 10.00 10.00 14.00 48.00 16.00 - .00 .00 .00 .00 .00 .00 .00 .00 .00 C0 190.00 ------- --- 190.00 --------- .00 ***********************k******************************************************** * End of Case Information TRUE COPY FROrl RECORD In Testimony whereof, ! here unto set my hand and the seal of said Court at Carlisle, Pa. This 7 day of 20 L 'I Prothonotary ( -yyy/ _ FILED-OFI'ICE ? F T HE PROTHONOTARY 2012 JAN -5 AM 11: 14 CUMBERLAND COUNTY PENNSYLVANIA WILLIAM GEORGES, Plaintiff ) VS. ) CONTEMPORARY STREETWEAR, LLC., ) Defendant ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-1213 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION FOR LEAVE TO WITHDRAW AS COUNSEL AND NOW comes the above-named Plaintiff, by his attorney, Samuel L. Andes, and makes the following Response to Defense Counsel's Motion for Leave to Withdraw as Counsel: 1 through 6. Admitted. 7 and 8. Plaintiff is without knowledge of the averments set forth in these paragraphs but accepts Defense Counsel's representations as accurate. 9. Admitted. 10 through 12. Plaintiff is without knowledge of the averments set forth in these paragraphs but accepts Defense Counsel's representations as accurate. 13. Denied. The fact that Defendant has other counsel does not preclude Pennsylvania Defense Counsel from effectively representing Defendant int his matter. 14. Denied for the response set forth in the Answer to Paragraph 13 above. 15 through 18. Plaintiff is without knowledge of the averments set forth in these paragraphs but accepts Defense Counsel's representations as accurate. 19. Denied for the following reasons: A. Defendant has, since the inception of this action, repeatedly taken steps to delay the resolution of the case and to frustrate Plaintiff's effortsw to collect the money owed to him; B. In an effort to delay resolution of the matter and payment to Plaintiff, Defendant took an appeal to the Superior Court from this Court's decision and failed to file a bond; C. Defendant is a resident of the state of New York but Plaintiff believes Defendant owns assets within the Commonwealth of Pennsylvania which would be available to secure payment to Plaintiff, D. If Defendant does not own assets within the Commonwealth of Pennsylvania, Plaintiff will have to secure payment with assets owned by Defendant in the state of New York or elsewhere; E. Defendant has refused to provide information to Plaintiff regarding its assets, its ability to pay the judgment awarded to Plaintiff, or its intentions regarding payment; F. Plaintiff has attempted to depose the operating officer of Defendant and that person has repeatedly failed to appear for deposition and to offer any valid explanation for why he has not appeared; G. Defendant has failed to respond to discovery issued by Plaintiff which is intended to ascertain what assets Defendant owns; H. An attorney representing Defendant in New York has advised Plaintiff's counsel that Defendant's assets are being liquidated, seized by creditors, or otherwise disposed of but has, up to now, refused to provide any information about or confirmation of the disposition of those assets; and I. All of the above actions are, in Plaintiff's counsel's opinion, part of Defendant's continued efforts to avoid lawful enforcement by Plaintiff of the judgment it holds against Defendant. For the reasons set forth above, Plaintiff does not object to this court granting Defense Counsel's Motion for Leave to Withdraw as Counsel but fiercely opposes any postponement or delay of the hearing scheduled for 30 January 2012. Samuel L. An es Attorney for Plaintiff Supreme Court ID # 17225 525 North 12th Street P.O. Box 168 Lemoyne, Pa 17043 (717) 761-5361 CERTIFICATE OF SERVICE I hereby certify that I served an original of the foregoing document upon counsel for the Defendant herein by regular mail, postage prepaid, addressed as follows: John F. Vaninek, Esquire P.O. Box 999 Harrisburg, PA 17108-0999 Date: 4 January 2012 1 Amy arkins Secretary for Samuel L. Andes WILLIAM GEORGES, PLAINTIFF V. CONTEMPORARY STREETWEAR, LLC, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 11-1213 CIVIL ORDER OF COURT AND NOW, this 5" day of January, 2012, upon consideration of the Defense Counsel's Motion for Leave to Withdraw as Counsel, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Parties to show cause why the relief requested should not be granted; 2. The Parties will file an answer on or before January 27, 2012; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Petitioner shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Parties file an answer to this Rule to Show Cause, the Court will determine if further Order or hearing is necessary. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, ?V?u M. L. Ebert, Jr., J. Samuel L. Andes, Esquire Attorney for Plaintiff John F. Yaninek, Esquire Petitioners-, ? Wayne Rutkay 5yr'rl Contemporary Streetwear, LLC bas 06 p; e5 ma, feef I l?l/ a W- WILLIAM GEORGES, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V 11-1213 CIVIL TERM CONTEMPORARY STREETWEAR, LLC., Defendant IN RE: MOTION FOR LEAVE TO WITHDRAW AS COUNSEL ORDER OF COURT AND NOW, this 30th day of January, 2012, upon consideration of defense counsel's Motion to Make Rule Absolute concerning its previously filed Motion for Leave to Withdraw As Counsel, IT IS HEREBY ORDERED AND DIRECTED that the petition to withdraw is granted. Counsel's representation is deemed withdrawn. The defendant's request to have this matter stayed in order to allow him to obtain new counsel is denied. By the Court, M. L. Ebert, Jr., &,'Samuel L. Andes, Esquire ;; CD -, For the Plaintiff " -ter r - Corey J. Adamson, Esquire ? cn = w ? ?.u _ For the Defendant -; -? :mtf e AW WILLIAM GEORGES, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. CONTEMPORARY STREETWEAR, LLC, DEFENDANT NO. 11-1213 CIVIL ORDER OF COURT AND NOW, this 31St day of January, 2012, Plaintiff's Petition for Supplemental Relief in Aid of Execution having been called for a hearing on January 30, 2012, IT IS HEREBY ORDERED AND DIRECTED that: 1. The Defendant, Contemporary Streetwear, LLC is hereby enjoined from the negotiation, transfer, assignment or other disposition of any tangible or intangible asset owned or controlled by Contemporary Streetwear, LLC; 2. The Defendant, Contemporary Streetwear, LLC, is enjoined from the transfer, removal, conveyance, assignment or other disposition of property of Contemporary Streetwear, LLC, which is otherwise subject to execution under the laws of Pennsylvania or any other jurisdiction; 3. The Defendant, Contemporary Streetwear, LLC, shall take such action as may be necessary to preserve its assets until such time as payment of the judgment entered in this matter against Contemporary Streetwear, LLC, has been made in full and the judgment has been satisfied; 4. The Defendant, Contemporary Streetwear, LLC, is hereby directed to disclose to the Sheriff of Cumberland County and to the Plaintiff, William Georges, or his attorney, the location and whereabouts of all assets owned by Contemporary Streetwear, LLC; and 5. The Defendant, Contemporary Streetwear, LLC, is directed to produce Alex Bize to appear before Plaintiff's Counsel for deposition in aid of execution, within thirty (30) days of the date of this Order. This Court shall be notified of the exact date, time and location of the deposition of Alex Bize on or before February 8, 2012. Samuel L. Andes, Esquire Attorney for Plaintiff ? Contemporary Streetwear, LLC 169 Pulaski Street Bayonne, NJ 07002-5003 bas ?Op, ?5 )131ll), At M m r -cam' pr ?y=y C-- By the Court, Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Pennsylvania Judicial Center P.O. Box 6243S 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 w ww. superior. court. state. pa. u s CERTIFICATE OF REMITTAL/REMAND OF RECORD TO: David D. Buell Prothonotary RE: Georges, W. v. Contemporary Streetwear, LLC 1776 MDA 2011 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 11-1213 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part with envelope attached December 8, 2011 1 Additional Item(s): Also enclosed is a copy of the Superior Court order dated February 24, 2012. Remand/Remittal Date: 04/02/2012 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /krc Enclosure cc: Samuel Leach Andes, Esq. Contemporary Streetwear, LLC The Honorable Merle L. Ebert Jr., Judge r_ 7-- W .v t.? Georges, W. v. Contemporary Streetwear, LLC 1776 MDA 2011 Letter to: Buell, David D. Acknowledgement of Certificate of RemittaURemand of Record (to be returned): Signature Date Printed Name William Georges V. Contemporary Streetwear, LLC IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 11-1213) No. 1776 MDA 2011 Filed: February 24, 2012 ORDER Upon consideration of the motion of appellee to quash this appeal for appellant's failure to file its brief and reproduced record, due January 17, 2012, the motion is hereby GRANTED and this appeal is DISMISSED. See Pa. R.A.P. 2188. Per Curiam TIR fig A UE C 2 om 0 ? 42' 0 1 Deputy Pmftxftuy Superior Court of PA - Middle District • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Superior Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of Pennsylvania The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: William Georges Vs. Contemporary Streetwear, LLC 11-1213 CIVIL TERM 1776 MDA 2011 The documents comprising the record have been numbered from No. 1 to 177, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 12/7/2011. David D. Buel , Prothonotary 4::?;Z Regina Lebo, Deputy An additional copy of this certificate is enclosed Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title RONIVed in Superior Court DEC 0 8 2011 MIDDLE