IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. ) Bankruptcy No TPA ) COMPLAINT TO TURNOVER FUNDS

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1 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA IN RE: Debtor, Plaintiff, vs. PNC Merchant Services Company, Defendant. Bankruptcy No TPA Chapter 11 No. 1 Adversary No. COMPLAINT TO TURNOVER FUNDS AND NOW, come the Debtor, by and through her attorneys, CALAIARO & CORBETT P.C., and Donald R. Calaiaro and presents the following: 1. This case was commenced on December 3, 2010, by the filing of a voluntary petition under Chapter 11 of the Bankruptcy Code. 2. This is an action to request the turnover of property of the Estate pursuant to 11 U.S.C. Section 542. JURISDICTION AND VENUE 3. This proceeding arises under or in, or is related to, the Debtor s Chapter 11 case. 4. This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. 157(a, 28 U.S.C. 1334(b, 11 U.S.C. 105 and 542; and Federal Rules of Bankruptcy Procedure Rule 7001, and the Order of the United States District Court for the Western District of Pennsylvania referring all matters relating to pending bankruptcy cases to the Bankruptcy Court. 5. This is a core proceeding pursuant to 28 U.S.C. 157(b (a and (e. 6. Venue is proper in this District pursuant to 28 U.S.C. 1409(a.

2 Page 2 of 4 THE PARTIES 7. The Plaintiff is a Pennsylvania resident who has filed a Chapter 11 bankruptcy. She is a Debtor-in-Possession. 8. The Defendant, PNC Merchant Services Company, was the provider of merchant services to the Debtor. It is located at PNC Merchant Services Company, 7985, P6-PUSX-36-01, PNC Bank N.A., 600 Grant Street, Pittsburgh, PA Background 9. Prior to the bankruptcy the Debtor engaged PNC Merchant Services Company to process credit transactions and gain the ability to accept credit cards at her store The Tight Spot. 10. On more than one occasion, this machine has malfunctioned, requiring the Debtor or an employee to contact PNC Merchant Services Company and attempt an over the phone repair of the machine. 11. The employee of the Debtor would give PNC Merchant Services Company a pin number that was on the side of the machine to authorize PNC Merchant Services Company to speak to the employee. This number is the same number used to Batch out at the end of the day. 12. In or around July 2011 the credit card machine again malfunctioned. 13. Chloe Kinnahan was the employee who called PNC Merchant Services Company to attempt to repair the machine over the phone, as it had been done before. 14. Chloe Kinnahan was informed by PNC Merchant Services Company that the current machine could not be repaired. 15. Chloe Kinnahan was told that the price of a replacement machine would be ten (10 dollars.

3 16. Page 3 of 4 Chloe Kinnahan asked PNC Merchant Services Company several times about the price so that she clearly understood the machine would only be ten (10 dollars. 17. Abigale L. Miller did not authorize Chloe Kinnahan to purchase this machine. 18. No employee has authority to purchase equipment for The Tight Spot except Abigale L. Miller. 19. On August 3, 2011, PNC Merchant Services Company charged The Tight Spot account and the Debtor $1, The unauthorized charge in that amount to that account overdrew the account. 21. The bank continued to try to process the payment for the next fifteen (15 days causing multiple overdraft fees. 22. The manager of The Tight Spot, Kim Martello, has tried to contact the PNC Merchant Services Company employee who sold the machine to Chloe Kinnahan to demand the return of the funds. 23. As of the filing of this complaint, PNC Merchant Services Company has not returned her telephone call and there has been no communication regarding the return of the payments to the Debtor. Request for Turnover 24. The Debtor incorporates the allegations in paragraphs 1-23 as though they were stated herein at length. 25. The Defendant processed an unauthorized payment on the Debtor s account that should not have been deducted. 26. The Defendant did not return the payment to the Debtor after they learned of the unauthorized debit from the Debtor s estate funds. 27. The Defendant, PNC Merchant Services Company, has failed to return the property of the estate to the Debtor as of September 28, 2011.

4 28. Page 4 of 4 Under Bankruptcy Law, the Debtor has a right to recover her property of the estate in the hands of third parties pursuant to 11 U.S.C The deduction of this $1, is a post petition transfer that is prohibited by 11 U.S.C The Debtor has incurred damages in the amount of the overdraft fees assessed to her bank account because of the unauthorized payment. 31. Since the Debtor has to litigate this issue, the Debtor is requesting recovery of attorney s fees because of the failure of the Defendant to return property of the estate. WHEREFORE, the Debtor requests that PNC Merchant Services Company be compelled to turnover the improperly received payment, pay the cost of the overdraft fees assessed to the Debtor s bank account, and pay the counsel fees caused by the failure to respond to requests for a return of the money. Respectfully submitted, DATED: October 21, 2011 BY: /s/ Donald R. Calaiaro Donald R. Calaiaro, Esquire PA I.D. #27538 Francis E. Corbett, Esquire PA I.D. #37594 David Z. Valencik, Esquire PA I.D. # CALAIARO & CORBETT, P.C. 310 Grant Street, Suite 1105 Pittsburgh, PA (

5 -1 Proposed Order Page 1 of 1 Desc IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA IN RE: Debtor, Plaintiff, vs. PNC Merchant Services Company, Defendant. Bankruptcy No TPA Chapter 11 No. Adversary No. ORDER OF COURT AND NOW, to-wit, this day of, 2011, it is hereby ORDERED, ADJUDGED AND DECREED the Defendant shall return the estate funds, the payment of $1, that was removed from the Debtor s account on August 3, The Defendant shall pay any additional charges that were incurred by the Debtor because of the unauthorized removal of funds from the bank account. The Defendant shall pay attorneys fees to the Debtor in the amount of $. By the Court, Thomas P. Agresti United States Bankruptcy Judge