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HomeMy WebLinkAbout97-00089 ~ .0 +: 'It ~ ~ ~ )t ~ ~ ( .... I~ I_ i :~ CJ r,) '" I t:-' 0-1 ~( -..... '!2.- .,:r-) ,,< ~, M. JEANNE FOX IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-89 CIVIL TERM v. RITE AID CORPORATION VERDICT FORM 1, Old the Plaintiff sign the Agreement and General Release on September 24, 1996? Yes j No 2. Old the Plaintiff send the signed Agreement to her attorney on September 25, 1996? Yes j No Date~ .:-fYUJo~ J/ J/pil (Forepers ) -\O-qq ClISE NO, 3 1.3 ~ CIVIL ltR'''' 1.:J!lJ IICl tYl .....1 t) J.~(JtJ 0\A.&~t~f> [', U)pc;t-k.le . - Sa fa. U' Q()(V\~ e r - ~r}f..l~ll ~ ,T- ()\ Le.a r-y ..HaroleR R. lArJ&-erull')od :JjJic,(' M, l?,elmo.Jt ~k &, k'E'\'l\I()ld~ I J . ~~ NNe-\:bYO(PN :,J?)(l III' r \'1 A. CoI\)ND U" I .:J(e ~I N e r.h..J.... S +0 tJ e.r ~ N i mV DQIa..1 .:J::l-e..\ e,,,l ~o..l.c.ho.J.- ,.. d ,. \ ~ , ~ \'f) CI: Li.l :c >- .. ...~ Li.l z- . OJ 0 :::t ' 0 !:; ~ u < t.l i 0 c.. I.' 0 Z. u.i - :: <..J U" -l V'I Z C a: - "-l t ~ ; CI: ~6 ~ a :J -.I::. I .. .J .. .. l) ~ ~ t' '. '- .. ~.I ~ .. .. ~ . ~ ~ ~ "\ j;1 '-l 0 " ~ J> - ... - e -.j 0 - f\l ... .. 0 (II .... t8 - # f\l - fJ , 1\' t' , U) - Ol ~ ~ je r~~~ 'so ~>< . > ::~ ... ~ c:> ~ c1~cl ~~ Cjf~ w\ ~ -- AGREEMENI-AN~tlEflALRE~EASE WHEREAS, M. JEANNE fOX, (tlerelnalier "FOX/RELEASOR") has been employed by RITE AID CORPORATlor~ (II",OInaller "RITE AID"), and , WHEREAS, RITE AID and FOX mutually desire to terminate amicably FOX's employment andlor all ilia lion wllh RITE AID, and 10 settle and terminate any and all claims, disputes, or other mailers between them; IT IS HEREBY AGREED by and between RiTE AID and FOX as lollows: 1, FOX's employment willi RITE AID ended on August 9, 1996, 2. RITE AID w,ll provide a severance package to RELEASOR 01: ~LAINTIFF'S EXHIBIT ' a) conlinous pay beginning August 9, 1996, and concluding December 7,1996 ("severance period"); b) conlinuatlon 01 benelils through Ihe severance period with deductions 01 employee portion, Therealter, benefits would be made available under Ihe condillons required by the law commonly relerrred to as 'COBRA"; I- 5 !Io/q ? /~f f c) a lump sum payment 01 all accrued and unused and unpaid vacation lime, 3, RELEASOR, for and in consideration of the provisions of Ihis Agreement, and Intending to be legally bound, does hereby REMISE, RELEASE and FOREVER DISCHARGE RITE AID, its parent and affiliated corporate enlities and its and their oflicers, directors, employees and agenls, its and their successors and assigns, heirs, executors and adminislrators, 01 and from any and all manner 01 actions and causes of actions, suits, debts, claims and demands whatsoever in law or in equity, which RELEASOR ever had, now has, or hereafter may have, or which RELEASOR's heirs, successors, execulors or admlnistralors hereafter may tlave by reason of any maller, cause or thing whatsoever, from the beginning of time 10 the date 01 these presents, and particularly, but without limitation of Ihe foregoing general terms, any claims arising Irom or relating in any way to RELEASOR's employment relalionship and/or the termination 01 RELEASOR's employment relationship and/or allillation wilh RITE AID, Including, but not limited to, any claims which have been asserted or could have been asserted or could be asserted now or In the future under any and all federal, slate, or locat laws including the Age Discrimination In Employment Act, 29 U,S,C, !i621llLSJl.Q, and any common law claims now or hereafter recognized (Including, but nOllimited to, claims lor wronglul discharge, Invasion of privacy and/or defamation), 4, It Is expressly agreed and understood Ihat RITE AID does not have and will not have any obligation to provide RELEASOR at any lime In the future wilh any payments, benellts, or considerations other than Ihose recited in Paragraph 1, 5. RELEASOR further "grees and covenants that neither RELEASOR, nor any person, organization or other entity on RELEASOR's behall, willlile, charge, ciaim, sue or cause or permit to be liIed with any State or Federal Court or agency any action or proceeding for legal or equilable reliol (including damages, injunctive, declaratory, monetary or other reliel) involving any mailer occurring any time in the past up to the dale of this Agreement and Reloase or InVOlving any continuing ellocts or any acts or practices 01 RITE AID which may have "flsen or oc:"rred prior to the dale of this Agreement and Release, 6, RELEASOR llereby agrees and recognizes that RELEASOR's employment relationship wilh RITE AID has been permanenlly and irrevocably severed and that RITE AID does not have any obligation to hire, rahire, or reemploy RELEASOR in the future. 7, RELEASOR au, ceo alld aCionowledges Il1at Il1i" Agreemenl and tile setllemenl and lermtna\lon 01 any claim" agalnsl RITE AID a" sel fo~h heroin, aro not and shall nOI be conslrued 10 be an adm,ssion 01 any violation of any duly owed by RITE AID to RELEASOR under any lederal, slate, or local slatute or regulalion and Ihal RELEASOR's execulion 0111"" Agreement and Release ere made voluntarily to provide an amicable conclusion 01 RELEASOR's omp~oyment relationship with RITE AID, j, I 8, tI is ag,"ed and unClerstooa \nat neither RELEASOR nor RITE AID shall engage in any canducl or commulllcal,on which shall disparage one enolher or interlere in any way wilh each oll1er's existing or prospective business relationships, 9, RELEASOR certilies tl181 RELEASOR has been advised of his right to consult with an ullorney prior to executing this Agreement, 10, RELEASOR cerilllos II1a1 RELEASOR has been given a period af alleast 21 days within which to consider tills AgreemenL 11, RELEASOR cerlilles Il1at RELEASOR is aware that for a period of 7 days following Ihe axecutian of this Agreement, RELEASOR has the righl to revoke the AgreemenL The Agreement shall nal become enforceable until the revocatian period has expired. 12, RELEASOR hereby certifies 111at he has read the terms of this Agreement and Release and that he underslands ilS lerms and effects. RELEASOR further acknowledges that he is executing Ihis Agreement and Release of RELEASOR's own valltion and with the intention 01 releasing all claims recited herein In exchange for the consideration described herein, which RELEASOR acknowledges Is adequate and satisfactory 10 RELEASOR, Neither RITE AID nar Its agents, representatives, or allorneys have made any representation to RELEASOR concerning the terms ar eHects of this Agreement and Reiease olher Ihan Ihose canlained herein, RELEASOR further agrees, covenants and promises Iha1 he will not cammunicate or disclose the terms of this Agreement and Release or Ihe setllemenl 01 all potential claims against RITE AID as described herein to any persons olher than RELEASOR's allorney, RELEASOR's accounlanl and RELEASOR's immediate family, INTENDING TO BE LEGALLY BOUND HEREBY, RELEASOR and RITE AID execute the loregoing Agreement and Release this _ day of .1996. Witness RITE AID CORPORATiON b,- Kendalgw ,.\!~t: . 't:' '::;l)~~ tc prdC~'." :'1 O/llC' '\\'l[t1 E I'\Cfl(J'JII L'"l. ,'" ,rI. Ifoll;'" .~:'':'d Hml/:llmrg. /'~{lIl.(..'.\Jmc /7110 /1 ~<' jri.Q~:J') ;'1.~.:Jf"{Jr.n.! Fl:\ August 22, 1996 James Talton Director of Human Resources Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 PLAINTIFF'S .EXHIBIT , d - 51:~1~ RE: M, Jeanne Fox Dear Mr. Talton: I have been consulted by a former employee of Rite Aid, M. Jeanne Fox, regarding her recent termination from employment with Rite Aid. She has retained me to negotiate an amicable severance of her employment. [h,ave determined that the circumstances surrounding her termination present several potential avenues of legal redress. However, I understand that you have offered a severance package to Mrs. Fox that includes a provision for 4 months's "severance pay," I have advised her that the amount offered is adequate, but that the agreement should include some additional safeguards, Therefore, Mrs, Fox will sign a Release of Claims or Settlement Agreement that incorporates the following additional terms: 1. Lump sum payment of the 4 months' salary, in order to avoid problems with her unemployment compensation claim that the appearance of ongoing salary receipts could create; 2. Health insurance and prescription benefits coverage for 4 months, or until she obtains employment that will provide equivalent coverage; 3, Non-opposition to her claim for unemployment compensation benefits; 4. Purge her personnel file of any negative performance or misconduct references; 5. Assure her of a pOSitiVe, or at least neutral reference to prospective employers who request a reference; and 6, Payment of all accrued vacation leave, ~ . . MAILINQ ADDRESS p,O, Bo.3105 H."isbu,g, PA 17105 . GENeRAL OFFIce 30 Hunlo, ~an. Comp Hill, PA 17011 . (717) 761-2633 . FAX (717) 975-5952 Rite Aid Corporation LEGAL DEPARTMENT September 1 a, 1996 Keith E. Kendall, esquire 3207 North Front Street Harrisburg, PA 17110 PLAINTIFF'S EXHIBIT Via FIX 236-8602 and Regulllf Uall 3- ~-;IOI~j ,lli {- Re: M. JeaMe Fox , I I Dear Keith: This letter will confirm our telephone conference of Seplember 17, 1996, in which we discussed the issues raised by your letter of August 22, 1996, As a result of that conference, I believe that any and all outstanding issues have been resolved. The Issues referenced in your leller as numbers 1, 2 & 6 are provided 10 Jeanne in paragraph 2 of the Agreement and General Release. AddilionaJly, Rfte Aid will nol oppose a claim by JeaMe for unemployment compensation benefits; her personnel file will be purged of any negative performance or misconduct referenceSj and prospective. employers will receive only a neutral reference. Accordingly, please have JeoMe execute the Agreement end General Release forwarded to her previously, and this letter shall represent a binding commitment by Rile Aid on the other three Issues raised in your letter ot August 22 (paragraphs 3, 4 & 5), Thank you (or your consideration and cooperation. Very truly yours, RITE AlD CORPORA ION / . ~C Michael C. Fox Associate Counsel 0;;:; mcf/rah cc: James M. Tallon Senior Vice President S.'\UTCTl(.lf'lJ.IC\COI.~OALU.Tl ;;,t..""-":b-':lI'1O 'HU U~; 1 t".. HI" k , I t.. H I U LL.'--HL. 1 I 1 ~ I;;' :.J~. J_ I..... -.-----. .' I. ,0 ~ ~ . a NAILING ADDRI'SS P,O. Bo. 3165 Harrisburg, PA 17105 . CeNERAL OFFICE 30 Hunlll Line Camp Hili, PI. 17011 .(717) 761-2633 . FAX (717) 971>-595Z Rite Aid Corporlltlon LEGAL DEPARTMENT Iu "", DNt Jk' Kcilh Kend:l1l ,. Michael C, Fox ..,. DEFENDANTS ftr 236,6602 fir 717-975-5952 lXHtaIT NO. I FOa 10000iICATlOH t- 1dJ*a' 236.9539 fIiI*It 717-975.5805 Dfj"j 10 9~ II1t /tit: September 26. 1996 Ie M. Jeanne FOIt This tr.wmission consists of 2 pages. including this cover page, If YOII have any questions or problems wilh the receipt of this transmission, please contact Robbie Hockenberry at 800,828,6811 x5314, Thank you. I/I1II/t CONf1DENTIAL AND PRIVILEGED, lbt inlomlltlOn cOlIwned in Ibis facsimile is lntmded fIX lbe ,01. UlO of lbe addrts...1Jld may contain W""""tiOll "hicb i. privileged and confidential. U Ibc: mdu of IhiJ message I, not Ibc: inlended rccipi<1l~ or the employee: or .gealr..poIlSible for dellvering!he me.lagelo the in\r:ndcd re.clplenl, you.... hereby notified thal.ny dil.cmi""tiOll, w.tributioo or copyi.ag or \hi. commllllicatioo is .!rieUy prohibited, U you ""eiv.1hiJ communication in enOl, plc3.IC imme4iattly notify Ibc penon Usltd abovc for insuuctioo. RcudinC!he Rlum or the oriJin>l message 10 Ibe WIder, t t i. f.' I, SEP-26-96 THIJ U~;li ~M ~1'~ H1U L~~HL I I I ;lI',:", :..,. ;0..._ , . ~~ '1 . . . MAIUNQ ADDRESS P.O,lIoa 3165 HartlSbUrU, PA 1710$ . O!HERAL OFFICE ~o Hunll1 L.n. Camp Hili, PA 170\1 . 11m 7111-211>> a FAX (717) 8711-5.52 '. Rite Aid corporation LEGAL DI!PA/lTM!NT Seplember 28, 1998 Kel1h E. Kendaft, esquire 3207 North Fronl Streel . Hanisburg, PA 17110 Re: M. Jeame Fox VII FtIt Z3U602 ,ntI Regullr Mall Dear Keith: This Ielter wiD C?l1stilulelormal revocation by Rile AId of the outstanding sell1emanl agreemenl transmilted 10 you on Seplember 18, 1996, 1\ was Rite Ald's Intention \hal Jeanne would conlilue 10 receive her salary and benefilllor a period 01 lime, and !hat she would !hen be eligible lor unemploymenl compensation il &he was nol reemployad by lhal lime. Collecting unemplOymenl and salary lrom R~e AId Is inconsistent with our inlenlions. If Jean,1Q wants to collect unemploymenl, then she may do so, and our prior offer 10 her Is revoked. Please call me al 975-5805 10 discuss \his matter lurlher. II would be my hope thai we merely have a misunderstanding, and that we can worlt this matter out satisfactorily 10 boIh Jeanne and Rile Ald. Very truly yours, RITE AID CORPORATION ~\U1r Michael C. Fox Associale Counsel mcUrah cc: James M, Talton Senior Vice President J '4,J1e.fION u.Gv:ounroMCJ\JV"D.u.L Ll1 (' r Kendal@w ..':. '","' n,._' . ; I ;. ~1::i..I; '. ";:Ilir...,j.. .... . I :. : 7.~ )1:' i~'.1 'i '. '.:; ~ -: . ~~,' j' 'J:. September 26, 1996 EAX Michael C, Fox, Esq, Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 , DEFENDANTS EXHIIITNO. ;).. ~I~ATION oAtt'O,q'l;;/Y) ff RE: M, Jeanne Fox Dear Mr, Fox: Thank you for your letter of September 26. 1996. My client had already signed, and therefore accepted the terms of the Settlement Agreement, prior to my receipt of your FAX today. This, and your commitment letter of September 18, 1996 clearly evidence a binding Agreement. We will therefore forward the Agreement to you for your client's execution and compliance with its terms. Failing that, I will recommend to my client that she sue on the Agreement and any collateral issues, including a count for abuse of process for your client's improvident appeal of the award of unemployment compensation to Mrs. Fox, KEK/slc Ene, ce: M. Jeanne Fox EXIlmIT "E" (C#Y"'tf1o!rrt1 ~ /..1' //],/,/1 ,6~'J'V)// - /l<il4' rnrd-e. jJc(({flok Ie' )..f?Jd J('""ce ,r Jln(, " L q:"", (J'f{','C",,5 rY L~ Pc",) fC-(VIO I :3 C .':' I $- .-, .~ " p ~ p- I) ":S CL, , , ~ , () - 3, h. .I- r ~ ~ ~' (n ~ 1- (; .' 1 ., \', ", ," ') ,1 , . ( ,... I ,....' " I i.,",''' ,L. ,.:l'{ , legal issues are set forth in their respective briefs for summary judgement. There appears to be no probability of settlement. Edward E. Guido, J, Keith Kendall, Esquire 3207 North Front Street Harisburg, PA 17110 For the Plaintiff George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013 For the Defendant :1t APR 2 9 1999 COPIES MAILED ON: () \D 0 c:. \D '11 -, :to' --j ~L) .." :1,:n no ~ ....J~ 2:',1 N -,.,." "9 t"1,."; ~ .J~~ 22' :-.- ,... .~~ );:(" =c ".j("') --- . - '.-:" in """L) - d ;'0;,; ., --; -, ~ N ~ - -- .. . . IillEJ qJ . MAIUNQ ADDRESS P,O, 8013185 H.llisburg, PA 17105 . GENeRAL OFFICE 30 Hun... ~an. Comp Hill, PA 17011 . (717) 7.'-2833 . FAX (7m 975.5952 Rite Aid Corporation LEGAL DI!PARTMEHT Sep~ber18. 1996 Keith E. Kendall, Esquire 3207 North Front Slreel Harrisburg, PA 17110 Via Fa 236-6602 Ind Regullr Jhll Ae: M. JeaMe Fox Dear Keith: This lelier wiU confirm our telephone ~nferer.ce of September 17, 1996, in which we discussed the issues raised by your letter of August 22, 1996, As a result of that conference,l believe that any and all outstanding Issuas have been resolved. The Issues referenced in your letter as numbers 1,2 & 6 are provided to Jeanne In paragraph 2 of lI1e Agreement and General Release, Additionally, R~e Aid will not oppose a claim by Jeanne for unemployment compensation benefits; her personnel file will be purged of any negative performance or misconduct references; and prospective employers will receive only a neutral reference. Ac~rdingly, please have JeaMe execute !he Agleement and General Rele8$B forwarded to her previously, and this letter shall represent a binding corr.';1~ment by Rile Aid on the other II1lee Issues raised in your lelter of August 22 (paragraphs 3, 4 & 5). Thank you for your consideration and cccp!!raU~n, \!~ry truly yours, . 'j JUUv L' Itchael C, Fox t..;sociale Counsel ~t mcf/rah cc: James M. T anen Senior Vice President J 'UTG11(JINLJC€0l1llr.s~OAU.J.n [0 'd ES:~O 03M g6-a!-d~S 2S6SSLEL 1 L 'atl XI!:l Id30 llj~::l ~ tig =g ~'~ ~~1 ~ .<: ~ ,~ ~ ~ ..... Z t" :E 2~ <u"'t: ~ :2 Keith Kendall, P.C. 3207 N"rlh Front Strcct Harrisburg, Pennsylvania 17110 >- ~ cr' -" .f ,. 8 :.:> <l" C) O' t'l. - ~, ( ) '~~ :1: (~:r: . 0 i..'.. --~ CJ:=l () - '. ...- r ..' - ~~ c' , r- ":-,.;'(j ~ L I ~;:~ 11 .. ,,' -~ >. . ..~ - ,. .-::: 'ih. - l;S ::..:. . "':l l'. C"\ ::3 = -,.J v' U ~ "E ~ 0 e.o z ..c s.E ... .- ~ 'E ~ :I! . ; Keith K~nd~ll, P. C. MAY 0 7 1999 bIJ . 3207 North Fron! Street Harrisbur~, Pennsylvania 17110 M. JEANNE FOX, Plaintiff IN TIlE COURT OF COMMON PLEAS OF CUMMBERLAND COUNTY, PENNSYLVANIA VB. No 97-89 Civil RITE AID CORPORATION, Defendant JUlY Trial Demanded Judge Hoffer ORDER AND NOW, this day of . 1999, upon rt'Vil.'W of Plaintiff's Motion In Limine, the motion i~ h'l"aJlll.-d. Defl.'mlalll may not call Plaintiff's Cllunselto testify at the trial of this action. In lieu thCl't'of, Defl.'1lllalll may l.'1ltl.'I' the affidavit of Plaintiff's counsel . into the record. BY THE COURT: J. RECEIVED AfR - G 1~9IJ MAItP;(}N Di.^RDtlHH WiLlIAM" & urrn MDW&{O 1~1\IRM.~[hl!'<' AI)\!t I . AI}\'I"ll. Al ,. Anllltf'ln ~ ()ll.....'t1lt)/t"^( l.A~' \X' II I I.\M F. !\1.\RI\IIN JtllH~ B. FU-"-"II It III D\NlIl K. DI.AlI.l It lltH TlltlM^~J. \'(.'IIIIAM'i' 1\'" V. 0,-", III SIU'IIt-.N L. 1ll1111M CFtlRI;l- n, FAIU:nJR." TIlOMA' G, COIl.lN\ CMtl C. R"':1l B~.NI^MIN T. W AHNUt TI'N E...:o.l HU;IISlllIl.T C...III 1'1 1', P"~N,n\^NI^ 1701.\ TIU./'lltINE FM:'/Mlli: INIHtNl-1 (717) 14J.J.141 (717) 24.1.18\0 www.muwlu::OIl1 "lklo\ll:lICUJlIlilll:I\"H Tlllo\l SrHIAlh' April I, 1999 Keith E. Kendall, Esquire KENDALL MILLER, P.C. 3207 North Front Street Harrisburg, P A 17110 , t I I, I, I RE: M, Jeanne Fox v, Rite Aid Corporation No. 97-89 Civil- Cumberland County C.C,P. Our File Number 8787.1 Dear Mr. Kendall: In response to your listing the above referenced matter for trial, I am writing to advise you of Rite Aid Corporation's intention to object to your continuation as trial counsel in the above referenced matter, In that regard, Pennsylvania Rule of Professional Conduct 3.7 provides in pertinent part that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . ," I would stress in that regard that the Comment to Rule 3.7 provides that "[t]he opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation." As you are aware, the sole material issue in dispute in the above referenced matter pertains directly to whethcr you had accepted Rite Aid Corporation's offer to provide Ms. Fox with severance prior to Rite Aid Corporation's revocation of same. Accordingly, you are a material fact witness in the above referenced matter and it will be our position at trial that you should not serve as both advocate and material fact witness, We fully intend to raise this mailer with the trial court in our pre-trial memorandum. I am writing to advise you in advance so that you have adequate time to secure replacement trial counsel in the event that the trial court precludes you from serving in such capacity. We understand the difficulties involved with the foregoing, Unfortunately, however, we feel it necessary to raise the issue on behalf of our client in light of the prejudice that may result from I N F (\ Il MAT I (\ N . A D V ICE . A D V (1 C ^ C Y ," Keith E. Kendall, Esquire April I, 1999, Page 2 . your dual roles at trial. Should you have any questions, or wish to discuss the foregoing, please feel free to contact me at the above number. Very truly yours, ~aORFF WILLIAMS & OTIO George B. Faller, Jr. GBF/jad cc: Michael C. Fox, Esquire '_'l1LES\OA TAf11J!'\OENL TbN7I11.KX.1' I N r- () R ~I A T I () N . A D V ICE . A D V 0 C ^ C Y 'M Keith Kendall, P. C. . MAY 0 7 1999 tJfl .. 3207 North Front Slrl'Ct Harrisburg, Pennsylvania 17110 ! } ~ i M. JEANNE FOX, Plaintiff IN TIlE COURT OF COMMON PLEAS OF CUMMBERLAND COUNTY, PENNSYLVANIA VB. No 97-89 Civil RITE AID CORPORATION, Defendant Jury Trial Demanded Judge Hoffer ORDER A.l'lD NOW, this day of . 1999, upon review of Plaintiff's Motion In Umine, thc motion is grnnlt-d. Defcndant may not call Plaintiff's counsel to tcstify at the trial of this action. In lieu thCl't'Of, Defl.'1ldant may enter the affidavit of Plaintiff's counsel into the record. BY THE COURT: . J. M. JEANNE FOX, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLV~ vs. RITE AID CORPORATION, Defendant 97-89 Civil Tenn MOTION IN UMINE NOW COMES the Plaintiff naml.'f.i above, M, Jeanne Fox, by and through her anomey, Keith E. Kendall, Esq., to move the Court to prohibit Defendant from calling Plaintiff's anorney to tcstify as a wimess at the trial of the above matter, and in support thereof, avers the following. \. The Court's pretrial order in this matter, issued April 29, 1999, ordered the submission of motions in limine by May 7, 1999. 2 Defendant's counsel has advised Plaintiff's counsel that Defendant may compel Plaintiff's counsel's tcstimony at the trial of this action (Exhibit A). 3. Defendant's prior anempt to obtain testimony from Plaintiff's counsel rcsulted in the court's grant of Plaintiff's request for a protective ordl.'I', with the court ruling that the information requested by Defendant be obtaiIlL-d by affidavits from Plaintiff's counsel and Plaintiff, both of which have bl.'CII provided to Defendant. -l. Defendant has no objl.'Ction to stipulating to the admission of the referenced affidavits, but submits that hi~ compeliL'lllestimony could, under the Rule 3.7 of Pennsylvania Rulcs of Professional Conduct, result in COWISel'S ,vithdrawal as Plaintiff's anornl.')' in this case. ~ ~ Keith E, Kendall, Esquire April I, 1999. Page 2 , your dual roles at trial. Should you have any questions, or wish to discuss the foregoing, please feci free to contact me at the above number. Very truly yours, ']:' DEARDORFF WILLIAMS & OTTO George B, Faller, ir, , t ! L ';\FIl.!S\OATAf1LB\OEHL1UN117l.K.K.7 GBF/jad cc: Michael C. Fox, Esquire INFORMATION' ADVICE' ADVOCACY'" r l ,:, t CERTIFICATE OF SERVICE I, Keith E. Kendall, Esq" attorney for thc Plaintiff, M. Jeanne Fox.. hereby certify that I have this date served a true copy of the foregoing Motion In Limine upon thc attomey for Defendant, mailing a truc and correct copy thereof, by First Class V.S, Mail, addressed as follows: George Faller, Esq., by FAXing a copy to Defendant's attomey at FAX No. 243-1850, and by Date: May?,1999 George B. FaIler, Esq. Martson, Deardorff, Williams & Otto, P.c. Ten East High Street Carlisle, PA 17013-3093 7(Q;y7 ~ Keith E. Kendall, Esq, Attorney for Plaintiff 3 :I:J ~ ~2~ i :I:j " ~a~, () - i \i~E I I I (.+. + <:r: I , _" co.. -M t ~l+ y I I I I ~j~ , ! I I - .c. r- ~ , . -r 0 m r U ~~t I ~ I 0 ~ . - I - ... OJr- -.,) Il_ -.,) t: .. \:$ en '2 ::1 '\j ~ 2' t9 I ~ .<: c: I ~ t::~ o . J-r r I z t,o r- " o~ ( - I ...c ~ 'E 0-0 .. ....\.- ~ ::I: ~I~& ..... ~ ~"t ~ ~.9Jl 'L -:L. . VI ~ ~r-lt -:!()rt. ~~~ ~l<)...... M. JEANNE FOX, Plaintiff IN TIlE COURT OF COMMON PLEAS OF CUMMBERLAND COUNTY, PENNSYLVANIA VB. No 97-89 Civil RITE AID CORPORATION, Defendant Jury Trial Demanded Judge Hoffer ORDER AND NOW, this day of . 1999, upon review of Plaintiff's Motion In Limine, the motion is grantl.-d. Dcfl.'1ldant may not call Plaintiff's counsel to testify at the trial of this action. In lieu thCl't'Of, Defendant may entCf the affidavit of Plaintiff's counsel into the record. BY THE COURT: J. M. JEANNE FOX, Plaintiff IN THE COURT OF COMMON pLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. RlTE AID CORPORATION, Defendant 97-89 Civil Tenn rJOTlON IN LIMINE NOW COMES the Plaintiff naml-d above, M. Jeanne Fox, by and through her attomey, Keith E. Kendall, Esq., to move the Court to prolubit Defendant from calling Plaintiff's attomey to tcstify as a willlCSS at the trial of the above matter, and in support thereof, avers the following: 1. The Court's pretrial order in this matter, issued April 29, 1999, ordered the submission of motions in limine by May 7, 1999. 2 Defendant's counsel has advisl.>d Plaintiff's counsel that Defendant may compel Plaintiff's counsel's tcstimony at the trial of this action (Exhibit 1\). 3. Defendant's prior attcmptto obtain tcstimony from Plaintiff's counsel resulted in the court's grant of Plaintiff's request for a protl'Clive order, with the court ruling that the infonnation rl.'questl.-d by Defendant be obtaitll.'t\ by affidavits from Plaintiff's counsel and Plaintiff, both of which have bl.'CII provided to Defendant. 4. Defl.'1ldant has no objection to stipulating to the admission of the referenced affil!:lvits, but subl1llts dIal hi~ compelk-d testimony could, undl.'I' the Rule 3.7 of PCI1I1sylvania Rules of Professional Conduct, result in counsel's withdrawal as Plaintiff's attorney in this case. 5. Plaintiff submits that the desirl.-d testimony from Plaintiff's counsel is ilTek'V:Ult to the decision in this action, as it relates to whl.'1\ Plaintiff's c.~ecution of the contract was communicated to Defendant. 6, Further, Plaintiff submits that forcing Plaintiff's counsel to withdraw from her rl.'Presentation in this modL'St claim, would result in unreasonable financial and delay hardships on Plaintiff. WHEREFORE, Plaintiff rl.'qUests the l.'1ltry of an Order preventing Defl.'1ldant from compelling the testimony of Plaintiff's counsel, during the trial of this action, Rl.'Spcctfully submiltl.-d, Date: May 7,1999 ~7 /, .~~ KClth E. Kendall, Esq. Altoml.'Y for Plaintiff 3207 North Front Street Harrisburg, PA 17110 Altoml.'Y ID No. 42910 2 RECEIVED AfR - ti 199IJ MARTSON DEARDORFF WilLIAMS 6z OTTO ,MQW&O ArrORNF.\'S &l C(JI;N~E1.1l)R.'i AT U\lr,' WIIJIAM F. MAMP'llN JOHN a, FOW""R III DI\NIf.l K. Df.ARDORH TtlOMASj. WilLIAMS. I\'OV,Onolll SrHHEN L aUlOM GWRCE 8, FAlUR JR,' THOMAS G, CoWN. CARL C. RJSClI aENIMIIN T. WAllNER TEN E.A.\T H!(;u SntEET CARUSU, PENNSYl,"ANIA 17013 TElErHONE (717) 243.3341 FADIM"E (717) 243.1850 INTfRNET www.mdwo.com .fk,'M11J CUTlftEO CIVil. TWL Sl'lCIAUn April I , 1999 Keith E. Kendall, Esquire KENDALL MILLER, P.C. 3207 North Front Street Harrisburg, P A 17110 RE: M. Jeanne Fox v, Rite Aid COIporation No. 97-89 Civil- Cumberland County C.C,P. Our File Number 8787.1 ,.,'.. . ,-, Dear Mr. Kendall: .. "I .... ..:, In response to your listing the above referenced matter for trial, I am writing to advise you of Rite Aid Corporation's intention to object to your continuation as trial counsel in the above referenced matter. In that regard, Pennsylvania Rule of Professional Conduct 3.7 provides in pertinent part that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, . . " I would stress in that regard that the Comment to Rule 3.7 provides that "[t]he opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation." As you are aware, the sole material issue in dispute in the above referenced matter pertains directly to whether you had accepted Rite Aid Corporation's offer to provide Ms. Fox with severance prior to Rite Aid Corporation's revocation of same. Accordingly, you are a material fact witness in the above referenced matter and it will be our position at trial that you should not serve as both advocate and material fact witness. We fully intend to raise this matter with the trial court in our pre-trial memorandum. I am writing to advise you in advance so that you have adequate time to secure replacement trial counsel in the event that the trial court precludes you from serving in such capacity. We understand the difficulties involved with the foregoing. Unfortunately, however, we feel it necessary to raise the issue on behalf of our client in light of the prejudice that may result from I N FOR M ^ T ION . A D V ICE . A D V 0 C ^ C Y '" t CERTIFICATE OF SERVICE I, Keith E. Kendall. Esq" atlomcy for dIe Plaintiff, M. Jcarule Fox" hereby certify that I have this dale served a true copy of dIe fOfl.'h>{lillg Motion 111 limine upon die atlomcy for Defendant, George Faller, Esq., by FAXing a copy to Defendant's atlomcy at FAX No. 243-1850, and by mailing a true and correct copy dlCl'cof, by First Class U,S, M'1iI. addressed as follows: Date: May7,1999 George B. Faller, Esq. Martson, Deardorff, Williams & Otto, P.c. Ten East High Street Carlisle, PA 17013-3093 Cii2 7 ,c:;t:? ~ f ./-)- Keith E. Kendall, Esq, Atlomcy for Plaintiff 3 >- ('OJ r.: ~r; .:J .~ ~. , (.~ '.c U.' . ( " .. , " :' Co , , ,. e ., ..... ; <.:. , II ~ . -' 'J L. . ::~ ,\.. I - .- I' f..... n () O' [')::'i ~~ 0 i~ H o:C ~~ 5 r.l ...:I E-t ~ - H ~21 H >< h ~~ > 2'" ~ '" H ~~ U ,.. :2 0 .... " r.l'" ~~~ ~ ~ ~ '" [')~ en ~.~ ~e::'" '" co . ,;., I > .... r- ,.. ~;i ~ ~ 5 ~ ~ N en ..,..... S2l ~D~ o V') ~ R h '" U :r z ~ . o:C ~ ~ <J ~ ~ D ::E: r.l ~ :t c.. '" E-t ~~~ ~ ~ . z ~ ~ :;! ~ 0 S ~ :t H ~ ~ 5 ~ ~~ ~ < 2 ~ ::i ;! '" 0( l- I- . . '. .' . M. JEANNE FOX, Plaintifl' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION . LAW NO. 97.89 CIVIL RITE AID CORPORATION. Defendant JURY TRIAL DEMANDED MOTION OF DEFENDANT RITE AID CORPORATION FOR SUMMARY JUDGMENT Defendant. Rite Aid Corporation. by its undersigned eounsel. respectfully moves this Court pursuant to Pa, RC.P, No, 1035 to enter summary judgment on all eounts of Plaintiff's Complaint against Defendant, Rite Aid Corporation, and in support thereof avers as follows: I, Plaintiff. M, Jeanne Fox, was employed by Defendant Rite Aid Corporation (hereinafter "Rite Aid") in its customer service department from January 31, 1994 through August 9,1996, 2, Rite Aid terminated Plaintiffs employment on August 9, 1996, 3, Rite Aid offered to provide Plaintiff with severance benefits in accordance with an agreement titled "Agreement and General Release" (hereinafter the "Agreement") which was forwarded to Plaintiff by James Talton, Rite Aid's Director of Human Resources, following Plaintiffs termination, (A copy of the Agreement has been attached hereto as Exhibit "A" for the Court's convenience and filed of record), 4, Plaintiff thereafter secured the assistance of Keith E, Kendall. Esq" as her legal counsel, to negotiate more favorable severance terms, (Plaintiffs Complaint at Para, 6), 5, Mr. Kendall proposed additional tenns to the Agreement by correspondence directed to Mr, Talton dated AUh'Ust 22, 1996, (A copy of such correspondence has been attached hereto as Exhibit "B" for the Court's convenience and filed of record), 6, Rite Aid's Corporate Counsel, Michael Fox, discussed the proposed additional terms with Mr. Kendall in a phone conversation on September 17, 1996, 7, Mr, Fox confirmed the substance of the September 17.1996 phone conversation in a correspondence to Mr, Kendall dated September 18. 1996, Mr. Fox's correspondence supplemented Rite Aid's previous offer in several respects as evidenced by the correspondence, (A copy of such correspondence has been attached hereto as Exhibit "C" for the Court's convenience and filed of record), H Plllinlill\~lIs rcquircd to cxecule the Agreement which contained a general release to IIl'l'l'Jllllilc Aid's ollcr 10 Jlro~ide severance benelits and finalize the Agreement between the parties. (I11111l11ill's ('oll1plllint lit Pllm. 10) 'I I{ite Aid revoked ils ollcr in the nalure of the proposed Ag:eement by correspondence dlllcd Seplemher 2h, 1'1% Such correspondence was forwarded to Mr, Kendall by facsimile on Scptcmhcr 2h, I'}I)(, (A eopy of such correspondence has been attached herelo as Exhibit "D" for Ihc ('ourt's convcnience lInd filed of record) (Sl:!: Plaintiff's Complaint at Para, II), I (J PllIinlilrnliled 10 communieale her acceptance of the Agreement to Rite Aid prior to Mr Kendull's receipl of Ilite Aid's revocation of the offer by correspondence dated September 26, I'}l)(, (fu:\: Pluinlill's Complaint at Para, 12), II Upon receipt of Rite Aid's revocation, Mr, Kendall forwarded a correspondence by lilcsimile to Mr Fox alleging that Rite Aid was in breach of contract as Plaintiff had executed the Agrccmcnt lInd Gcneral Release on September 24, 1996 and forwarded same to Mr Kendall by first c1uss mwl (A copy of such correspondence has been attached hereto as Exhibit "E" for the Court's convenience und tiled of record), (Sl:!: Plaintiff's Complaint at Para, 12), 12, I'lainlifl'allegedly first accepted Rite Aid's offer on September 24. 1996. However, I'luinlill's lIcceptunce wus not communicated to Rite Aid, (Plaintiff's Complaint at Para, 10 and 12). 1.1 l'llIintilT then commenced the instant action against Rite Aid alleging breach of cnlllrllct und seeking enforcement of the proposed Agreement. 14 It is well established that "[a]n offer may be revoked at any time before acceptance, cvcn though it ullows u specified time for acceptance or states that it may not be withdrawn, unless it is supported by a consideration. and such a revocation by the offeror before the acceptance operates 10 relieve him from contractual liability," P.L.E, Contracts 9 23; ci1im:, Vincent v Woodland Oil Cu., I h5 I'a, 402. 30 A, 991 (1895), 15, It is well established that "[a]n offer becomes a binding promise and results in a conlruct only when it is accepted, and to constitute a binding contract, there must be an unconditional acceplllllce ofu proposition made by one party to the other," P,L.E, Contracts 9 24; ci1.ini. Baum's 1.i.:i1.u1.l:, 274 I'a, 283. 117 A 684 (1916); Allegheny County Housing Authority for Use of Doh son v Curisto Const Corp. 150 F,Supp, 1007 (1950), Moreover. "[t]he acceptance must be identical wilh the terms of the offer, without qualification or condition, and the contract must arise from the last-stated tenns. and must be identical to bring the minds of the parties together. P,L.E, Contracts 924; Qtim:, McClure v Times Pub Co, 169 Pa, 213. 32 A 293 (1895); Vitro M(g Co v Standard Chemical Co , 291 Pa, 85, 139 A, 615 (1927), 16, It is well established that "[t]o establish a contract by the acceptance of an offer it must appear that the party makini1 the offer was notified of the acceptance and there can be no valid contract unless the acceptance is communicated to the party makini1 the offer. either directly or by some definitive act." P,L.E, Contracts ~ 25; citing, Mori1anstern Electric Co v Boroui:h of Coraopolis, 326 Pa, 154, 191 A. 603 (1937); Boroui1h of Warren v Daum, 73 Pa, 433 (1873); Groskin v Bookmyer, 310 Pa, 588, 166 A, 233 (1933), 17, It is well established that where the use of the mails as a means of acceptance is authorized or implied from the surrounding circumstances, the acceptance is complete by postini: the letter in normal mail channels addressed to the offeror without more, P,L.E, Contracts ~ 24; Restatement (Contracts) ~ 66; Chanoffv Fiala, 440 Pa, 424, 271 A.2d 285 (1970), 18, Rite Aid revoked its offer to Plaintiff in the nature of the Agreement as revised by Mr, Fox's September 18,1996 correspondence prior to Plaintiff communicating her acceptance of same to Rite Aid (SJ:.\: Plaintiff's Complaint at Para, 12), 19, Plaintiff's allegations that she forwarded her acceptance in the nature of the executed Agreement to Mr. Kendall (her Counsel) by first class mail was not a communication of her acceptance to Rite Aid, 20, The foregoing facts are not in dispute and Rite Aid is entitled to judgment in its favor as a matter oflaw on all Counts of Plaintiff's Complaint. WHEREFORE, Defendant Rite Aid Corporation respectfully requests that this Court enter summary judgment in its favor and against Plai n all counts of Plaintiff's Complaint against Defendant Rite Aid Corporation, George Faller, Jr" Esquire I.D, No, 49813 Thomas G, Collins, Esquire I.D, No, 75896 Ten East High Street Carlisle, P A 17013-3093 (717) 243-3341 Date: Ju.M. 17 /qq8 F In1.F.s'.IlATAFII.[I\iENF.RAUx)C \I\Jl-:'ll~IM(JT I Attorneys for Defendant Rite Aid , I , I , , . WHEREAS. M. JEANNE FOX, (ho'olnallof -FOX/RELEASOR-) tlas been emploved by RITE AID CORPORATION (llOro,".ltOr 'RITE AID'1. .nu WHEREAS, RITE AID anu FOX mulually u05ue 10 IOrm,"alo amicably FOX's employment ond/or a'''lIallon Wllh RITE AID, and to 501110 and lormlnato any and all claims, disputes, or 01 her mallors bolwoon Ihem: IT IS HEREBY AGREED by and bellVeon RITE AID and FOX as lollows: 1. FOX's employment wllh RITE AID onded on August 9, 1996, 2. RITE AID will provide a severance package to RELEASOR 01: a) contino us pay beginning August 9, 1996, and concluding December 7, 1996 ('severance period"); b) continualion 01 benellls through the severance period wilh deduclions 01 employee porllon, Thereafter. benelils would be made available under the condllions required by Ihe law commonly relerrred 10 as "COBRA"; c) a lump sum payment 01 all accrued and unused and unpaid vacation time. 3. RELEASOR, lor and in consideration ollhe provisions of this Agreement, and Intending to be legally bound, does hereby REMISE, RELEASE and FOREVER DISCHARGE RITE AID, its parent and affiliated corporate entities and its and Iheir officers, directors, employees and agents, its and their successors and assigns, heirs, executors and administrators, 01 and Irom any and all manner of aCllons and causos of actions, suits, debls, claims and demands whatsoever in law or in equity, which RELEASOR ever had, now has, or hereafter may have. or which RELEASOR's heirs, successors, executors or administrators hereafter may have by reason 01 any maller, cause or thing whatsoever, from Ihe beginning of time to the date 01 these presents, and particularly, but wllhout limitalion 01 the foregoing general terms, any claims arising Irom or relating in any way 10 RELEASOR's employment relationship andlor the termination 01 RELEASOR's employment relationship andlor affiliation with RITE AID, including, but not limited to, any claims which have been asse~ed or could have been asserted or could be asserted now or In Ihe luture under any and ali feoeral, state, or local laws including the Age Discrimination In Employment Act. 29 U.S,C. ~621llUall. and any common law claims now or hereafter recognized (including, but nollimited to, claims for wrongful discharge, Invasion of privacy andlor defamation). 4, ft is expressly agreed and unoerstood that RITE AID does not have and will not have any obligation to provide RELEASOR at any time in the future wilh any payments, benelits, or considerations other than those reCited in Paragraph 1. 5. RELEASOR further ~grees and covenants Ihat neither RELEASOR, nor any person, organization or other entity on RELEASOR's behalf, willlile, charge, claim, sue or cause or permit to be filed with any State or Federal Court or agency any action or proceeding for legal or equilable reliel (including damages, Injunctive, declarato"" moneta", or other reliel) involving any mailer occurring any time in the past up to the dale ollhls Agreement and Release or involving any continuing effects or any acts or practices of RITE AID which may have arisen or oc:urred prior to Ihe date 01 this Agreemenl and Release, 6. RELEASOR hereby agrees and recognizes that RELEASOR's employmenl relationship with RITE AID has been permanenlly and irrevocably severed and that RITE AID does nol have any obligation 10 hire, rahire. or reemploy RELEASOR in the fulure. Exhibit "A" < 7 RELEASOR agrees and aCknowledgos thai this Agrooment and the .IU.mB~18nd termInation 0' any claims agaInst RITE AID as sal forth hluoln, are not and :hOU not be construed 10 be an admission of any violation 0' any duly owed by RITE AID 10 RELEASOR under any federal, slale, or local slatute or regulalion and Ihat RELEASOR's exoculion of this Agreemont and Releaso are made voll1nlarily 10 provide an amicable conclusion 01 RELEASOR's "::lp(oymenl rolationship wilh RITE AID, I t ( .~ 6, II is agreed and underslood Ihal neilher RELEASOR nor RITE AID shall engage In any conduct or communication wnich shall disparage one anolher or interlere In eny way wilh each olher's eXisting or prospeclive business relationships, 9. RELEASOR certilies that RELEASOR has been advised of his right 10 consull wllh an attorney prior to executing this Agraement, 10, RELEASOR cenlfies Itlal RELEASDR has been given a period 01 alleasl21 days wilhin which 10 consider this Agreement, 11, RELEASOR certilies that RELEASOR is aware that for a period of 7 days following the execution 01 this Agreement, RELEASOR has the right to revoke the Agreement. The Agreement shall not become enlorceable unlilthe revocalion period has expired. 12, RELEASOR hereby certifies :nat he has read the terms of this Agreement and Release and that he underslands lis terms and effects. RELEASOR further acknowledges thai he is executing Ihis Agreement and Release of RELEASOR's own vollllon and wilh the Inlenllon 01 releasing all claims reciled herein In exchenge for the consideration described herein, which RELEASOR acknowledges Is adequate and sallsfactory to RELEASOR, Neilher RITE AID nor lis agents, representatives, or attorneys have made any representallon to RELEASOR concerning the terms or eHects 01 this Agreement and Release olher Ihan those contained herein. RELEASOR further agrees, covenants and promises Ihat he will not communicate or disclose the terms 01 this Agreement and Release or the selllemenl of all potential claims against RITE AID as described herein to any persons olher Ihan RELEASOR's attorney, RELEASOR's accountant and RELEASOR's immediate family, INTENDING TO BE LEGALLY BOUND HEREBY, RELEASOR and RITE AID execute the foregoing Agreement and Release Ihis _ day of ,1996. Wllness 'r~ ~ I.. ./ /. 'OO/)7//lt.J M, Jr NE FOX RITE AID CORPORATION by: ~ J , ,\"', ',1',:('_' '11'111(; I. . " , r;,' / II, I f,J /I; ~:. ~" 'I IhJflL',IJlJ/~J I'''lin' . '.dlllll /-"1 III / I ...,' if!,'}',;)1 ..'?:3n.Md).! f,;\ ;;,'(::" , August 22, 1996 D James Talton Director of Human Resources Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 E ,... r RE: M. Jeanne Fox Dear Mr. Talton: I have been consulted by a former employee of Rile Aid, M. Jeanne Fox, regarding her recent termination from employment with Rite Aid. She has retained me to negotiate an amicable severance of her employment. (have determined that the circumstances surrounding her lennination present several potential avenues of legal redress. However, I understand that you have offered a severance package to Mrs. Fox that includes a provision for 4 months's "severance pay." I have advised her that the amount offered is adequate, but lhat the agreement should include some additional safeguards. Therefore, Mrs. Fox will sign a Release of Claims or Settlement Agreement that incorporates the following additional terms: I. Lump sum payment of the 4 months' salary, in order to avoid problems with her unemployment compensation claim that the appearance of ongoing salary receipts could creale; 2. Health insurance and prescription benefits coverage for 4 months, or until she obtains employment that will provide equivalent coverage; 3. Non-opposition to her claim for unemployment compensation benefits; 4. Purge her personnel file of any negative performance or misconducl references: 5. Assure her of a posilive. or at least neutral reference to prospective employers who request a reference; and 6. Payment of all accrued vacation leave. Exhibi t ,. B" Upon compliance with these terms, Mrs. Fox will release Rite Aid from all liability that could result from her termination. Please advise us of Rite Aid's position as soon after receipt of this proposal as possible. Thank you very much for your time and attemion. Keith E. Kendall, Esq. KEKlslc cc: M. Jeanne Fox September 18, 1996 Keith E. Kendall, Esquire 3207 Nol1h Front Streel Harrisburg, PA 17110 VII Fu 23U6D2 Ind RIgUIIt ",,11 Re: M. Jeanne Fox Dear Keith: This leller win confirm our telephone conference of September 17, 1996, in which we discussed the issues raised by your letter of August 22, 1996, As a resun 01 that conference, I believe that any and all outs1anding Issues have been resolved. The issues referenced in your letter as numbers 1, 2 & 6 are provided to Jeanne in paragraph 2 011l1e Agreement and General Release. Additionally. R~e Aid will not oppose a claim by Jeanne lor unemployment compensation benetiU; her personnellile win be purged of any negative performance or misconduct referencesj and prospective employers win receive only a neutral reference. Accordingly, please have Jeanne execute the Agreement and General Release forwarded to her previously, and thiS letter shall represent a binding commttment by Rite Aid on the other Il1ree issues raised in your leller of August 22 (paragraphs 3, 4 & 5). Thank you lor your consideration and cooperation. Very truly yours, RITE AID CORPORA ION I . I ~L- Michael C. Fox Associate Counsel 0~ mcUrah cc: James M. Tallon Senior Vice President S:\U'T'G1kJf1l..JC'L'OlIUro.t.lC'P.k.lJtDAU...LTt lO'd Exhibit "C" 2S6SSL6LlL 'ON XIj:l ld30 llj!l31 ES:~O 03M 96-BI-d3S ~ " t , . \ LEOAL oePARTMENT September 26, 1996 Keith E. Kendall. Esquire 3207 Norlh Front Street Harrisburg, PA 17110 VIa FIX 236-6602 end Regular "'II Ae: M. Jeame Fox Dear Ke"h: This leller will CQOstilute formal revocation by Rite Aid 01 the outstanding selllemen1 agreement transmitted to you on September 18. 1996. It was Rite Aid's intention that Jeanne would continue 10 receive her salary and benefits lor a period of time. and Ihat she would Ihen be eligible for unemployment compensation if she was not reemployed by that time. Collecting unemployment and salary from R"e Aid Is Inconsistent with our intentions. If Jeanne wants to collect unemployment, Ihen she may do so, and our prior offer to her Is revoked. Please cail me at 975-5805 to discuSS this maner further. It would be my hope that we merely have a misunderstanding, and that we can wor\( this maner out saUsfactorily to both Jeanne and R~e Ald. Very truly yours, RITE AlD CORPORATION ~\U1r Michael C. Fox Associate Counsel mcVrah cc: James M. Talton Senior Vice President J'VTc:;rIOHUG'O)~U.D.uJ.Ln Exh ibi t "0" t f \ CERTIFICATE OF SERVICE I, Denise L. Nye. an authorized agent of Manson. DeardorlT, Williams & Otto, hereby certify that a copy of the foregoing Motion of Defendant Rite Aid Corporation for Summary Judgment was served this date by depositing same in the Post Office at Carlisle, I' A. first class mail. postage prepaid. addressed as follows: Stephen A Miller. Esquire 3207 North Front Street Harrisburg, I' A 17110 Attorney for I'laintilT MARTSON. DEARDORFF. WILLIAMS & OTTO By ~N~'~ Ten East High Street Carlisle. I' A 17013 (717) 243-3341 Dated: Jwt..p. 17, 19q 8 . ~ . A !: I . r" ; M. JEANNE FOX, Plaintiff IN THE COURT OF COMMON PLEAS OF CUM8ERLAND COUNTY, PENNSYLVANIA vs. No, 97.89 Civil RITE AID CORPORATION Defendant Jury Trial Demanded PLAINTIFF'S REOUEST FOR ADMISSIONS 1'0\'\' C()~!E.s, the PLuntiff, ~!. .Il".lIme Fox, by and through her anomey, Kl.ith E, Kl.'ld:ul, Estl., to request that Defl'ldaJlt make the following admissions \\ithin 30 days aftl.'I' sen;cc, for the purpuses of this action only, and subject to all pertinl1\t objl.'ctions to admissibility which may be illtl'!'JJOsl'i.! at tri'll, INSTRUCTIONS These requests for admi~sions are difl'cted to the defe!l(lant, Rite Aid Corporation, its officl.'I'S, l'1l1ployees, agents, sen'allts, assii,1ls, represl'1ltltives, past and preSl'1lt, and wuess privilege i~ claimed, cach and every attorney, past and present, of cach and evCf)' such entity, past and presl'lt. As USl-d herein, "defendant," "you" and "your" means the defendant to which these requests for admissions are addressl-d, Rite :\id Corpuration, it.~ officers, l.'1nployees, agents, servants, assigns, representatives, past and present, and cadi and e','l'l')' attomey, past and present, of cadi and evCf)' such entity. lllese rl'<Juests for admi~sions encompass all information, documl.'1It.~ and rl.'Cords that are in the possession, contrul, or custody uf defl.,ldalll or any of its officers, l.'1I1ployees, agents, servants, attomeys and assigns. If any objl'ctions are made to any relluest fur admissiun the rcasons tlll'l'efor shall be st.1ted, If tllere is any claim of pmilege relating to any fl.'i.luest to admit, you shall set forth fully tllC basi~ for tile claim of pmilege, including tile f.1Cts upon whidl jUU rely to support tile claim of pm,lege in sufficient detail to permit till' court to rule on the propriety of tllC pmilege. If juur response to any rl'i.)Uest is not an ulllluahfil'i.l admi'sion, your answer shall specificalll' dl,1\' tllC matter or set t(lrth in delall the tl~lsons whl' I'OU cannot trutllfulll' admit or . . . . . dcnl'maller. . \ dcni.'ll shoul Elirly meet thc substancl' or Ihe tl'i.lucstl'i.! admission, and Will'. good t:Utll tl'IIUltl'S that YOU1lIL1lirv your aOS\\'I'r or dcn~' onk a pan of till' mattcr of wlllch an admission i., ll'i.IUI'SIl'lI, I'llU should Spl'Clt)' so much or It as IS tTIIl' and 'Iuaht\, or dl,IY rhl' tl,naindl'r. ~ ~ " You may not h.we lack of infomurion or knowk-dge as a rmson for failure to admit or dcn}', wuess you sL1te that you have made reasonable inljUiry and that the infonnation knO\\1! to }'ou or readily obtainable by you is insufficiL,1t to l.,uble }'ou to admit or dL'1I}', 'Illese rcquL'Sl~ for admission are continuous in nature and must be SUppk'1l1L'1ItL't1 promptly if defl.mlalll obtains or learns furtllL'I' or diffl.'I'l.,1t information bet\veL'1 the date of the response and tile time of trial by which defL'lldaJlt knows that a previous response was incorrl.'Ct Whl.'l made, or though correct whL'1l madc, is tilL'll no )ongl.'I' true. Utuess otlll.'mise indicatl.-d, tile time period to which tllese rel!Uests for admission are dim:tL-d is from on or about January 31, 199-t (the rOmmClICl.'1nl.'1lt of Plaintiff's cmplo}ml.'1lt \\itll Defl.'1ld.1I1t), to tile presl.'1lt TIlis request seeks till.' admission of the gCllUinl.'less of various dOCWllL'1It5. In some cases, thl.'I'e are printL-d nwnbL'I' and lettL'I' codes tllat run along tile bottom or top of particular documl.'1ltS (such as a FA.\: headl.'I'). In OtlIL'I' cases, till.' word "e\idL,lce" and otller identification marks may be affixL'tl to the documl.'lt Such nwnbl.'I's, lettL'I's and idL'1Itif)ing words were affi.'tl.-d during tile accumulation and cop}ing of tile documl.,lts for tllis case and are not to be considL'I'ed part of tile documl.m itself, except for purposes of refl.'I'C1lcing tile dOCWlll.'1lt TIle rl.'<)uest does not seek defendaJlt's admission reh>;U'ding till.' accuracy and genuinl.'1leSS of those numbers and letters, but only of tile documl.,lt on whidl tllOse nwnbers and letters have bl.'CIl pIaCL-d, DEFINITIONS 1, All verbs arc illtl.'1ldL-d to include all tenses, 2, Referl.'1lces to the sinh'1llar are intl.'1ldL't1 to indude till.' plural and \ice versa. 3. "I\ny" as well as "all" shall be construed to mc:ln "c:Idl and evl.'I')'." -t. ":\nd" as well as "or" shall be construL-d disjunctively as well as conjunctively, as necessary, in ordL'I' to bring \\ithin the scope of these requests all information tllat might otllLT\\ise be construed to be outside thLir SCOpl'. J. "RefL'I' to" or "relate to" lllC'.\ns ClJnsntuti,lg. defining, descnbing. discussing, in\'o!\ing. ClJncerning, containing, l,nbod}ing, rctk'Cring, identif}ing. sL1ring. an;up:ing, llIentioning. responding to referring to, dl~lling \\ith. ClJllImenting upon. or in any way pL'l'taining to. ~ REOUEST FOR ADMISSIONS . , ~ Eadl of thc folkm;ng documl'ItS, attaclll-d as exhibits to thi~ rl'tlllest for admi~sions and markl-d \vith numbcrl.'tl tabs, is a tme and corrcct copy of the 'lriginal documl.,1t and is admitll.-d as bling gt.'1luine and autlll'ltiC. :\. lllat eacll of thc folkming documl,lts, attaclll't! to tlli~ Rl'tJUest at tllC numbl.'I'l.-d tab corres-ponding to tile numbcfl.-d parahoraph at whicll is appears below" is a tme and com'Cl copy of tile original documl,lt, and is admim-d as bcing gl.,IUine and accurate: 1. FAX emu Sheet to ~Iicllacl C. Fox, Esq"lettl'l' of Sl.l>tcmbl'l' 26,1996 (Exhibit D - -I of Defl.,ldant's Rl."Iuest for Admissions) Admit Dl.,!\' - ,- 2. Copy of l.'I\,e1opc transmitting sil,'1Il-d al:,'l'ecml,lt from PL1intiff to her attomel' :\dmit Dlm' 3. Copy of letter from Plaintiffs :1tlomey to Attomey Fox :\dmit Dl,I\' - ,- -I. Copy of PL1intiff's final pay stub for tile pay period 9/15/96 - 9/21/96 Admit Denl' - .- 5, Opinion lctll'l' from Richard 1\. PuerLer Admit Dl,11' ,- 6, Letter to ~Ijcllael C. Fox, EStl', transmitting Agrl'l.'I1Il.'1lt and Gencral Relmse exccutcd by Plaintiff. to Defendant :\dmit Dl'II' .- 7. .\lay 6. 11)')(, e.mail. cre:ltl't! am! sent on Dctt'11dant's systcm . \dnur I )elll' 'i 8, 1\ub'Ust 5, 1996, e,mail, C!l'atl'd and S1.111 on Def1.11dant's system Admit Dl111' .- B, llll' following Statl'11l1.1JtS are trul': I. Plaintiff's emplo}111l111 was Il'l'minaled by defl'1ltlaJ1l effective Au).,'Ust 9, 19% Admit Dl111' .- 2. Defl.'1ldaJ1l offl.'I'ed to settle and tl'l'minate any and all claims, disputes, or otlll'l' mattl.'I'S betwel11 Defl11dant and Pl1.intiff, pursuant to the tl.'l'ms of the ":\grel.'1I1l.'111 and Genl.Ta1 Rcll'ase" (I-k'l'l.;naftl'l' ":\).,'l'l'l.'1I1l.'1lt'') set forth as E:dlibit 1\ of Plaintiff's Complaint Admit Deny _ 3. Plaintiff was autllOtized, by tile Ah'l'e1.1111.1It, to sl'ek the ad\;ce of Iq,>aI counsel Admit Deny _ 4. Pbintiff sought and rl'ceiYl'(lleh>al ad\;ce from attomey J..::cith J..::end1ll :\dmit Dl11Y _ :J. By lettl'l' lbtl'(l :\u).,'Ust 22, I <)%, a copy of whidl is att:Jdll'd 10 Pl1.intiffs Complaint as Exhibit ll, :\ttomer J..::elUL1l1 propOSl.-d tile re\;sions to the :\b'l'l'Cl1IC111 Sl't forth in till' letter of :\U/,'lISt 22 :\dmit Dl111' (), On SqJlembl'r 5, 1<)<)(" :-'lichacl C. Fox. .\ssocLlte Counseltllr Dl'fl1ldalll, rl'spondl'd by Idl'l'holll' to :\Itonll':' J..::l'Ildall's lelll'r of :\U,L,'llst 22. 1<)<)(, .\dulIl 1)('11\' ~ 7. A ltonler Kl.'111bll \\.':\s llnavail:1ble to t:lke his call on S1.1Jll.'1l1bl'l' 5, 1990 Admit DL'I\, .- S, On Sl1'tl'1l1bl'l' 6, 1996, illr. Fox \\.".15 ulla\':tilable for a tell.1'hone calI to his office, tell1'hone numbL'I' 975,5S05, from AltOnlL'Y Kendall Admit Deny_ 9. On Sl.1'tembl.'I' 13, 1996, Mr, Fox tell.1'hOnl'(ll\ttonll.'}' Kl.'lld'lll's office, but Altonley Kl.,ld'lll \\'as unav.U\able to t:lke the call Admit Deny - .- 10, During the telephone c.'lIl on SqJll'1l1ber 13, 19%, Mr. Fox indicated, in a message for Attonley Kend.'lII, that DefL'ldlnt \\':\5 willing to :IJ,'fee to some, but not all of the re\i~i()ns proposl'(f in Plaintiff's letter of AUh'llst 22,1990 Admit Deny .- 11. On SL1'tcmber 17, 19%, during a tell.1'hone call \\ith AttonlC)' Kendall, Mr. Fox ad\isl-d Mr. Kend.'lI1 of the specific terms of Plaintiff's letter of AUh'llst 22, 1996, that DefL'1ldant would agree to incorporate into the :\greeml11t Admit Denr _ 12. illr. Fox's letter of September IS, 1996, reproducl.-d at E..xhibit C of Plaintiff's complaint, accurately reflects the undl'l'Standing rcachl.>d by Mr. Fox and ,\lr. Kendall, of the telephone during tlllir tell1'hone COI1\'l'fSatilJn on Sl1'tembl'r17, 1996 .\dlTllt Del1\' ) 13. By thc lettl.'I' of Sqll1.1nbl'l' 18, 19%, Defl.'1ld'Ull made a binding commiunelll to include 3 additionalll.'I'lIIs illlo ils proposl'll Agl'l.'l.'1I1l.'1ll \\ith Plaintiff ,\dmit D1.11Y 14, On SI.'ptl.'1nbl'l' 24, 199(J, Plaillliff si/-,11ed and retunll'llthe Agrl'l.'1I1l11l to Attonley Kl11d1.l1 Admit Deny 15. On Sl.l1tl.'1nbl'l' 2(" 19%, Defl11d:llIt alll.'1nptl.-d to remke the Settleml'1ll Agrel'1l11.11l between tile parties Admit_ D1.11Y_ 16, 11le stltcd reason for the revocation was that Defendalll did not illlcnd for Pl-1intiff to simult.'UIl.'llUsly receive tile OIh't'l'l.-d severance package and unl.'1I1plo}ment compl11sation benefits. Admit Dl.'1IY 17, 'Ille simult.'UIl.'lluS rl.'Cl.ipt of severance benefits and wlcmpIO}ml'1ll compensation b1.11efits is nOl colllrary to the law of Pennsylvani.1 :\dmit Dl11\' 18, 13y its letter of S1.11lember 18, 19%, DefelllL'U1l ah'fl.'l.-d not to oppose a cI:um by Plaintiff for unclllplo)1nent compensation b1.11efits, :\dmil Dl'II\' 19, Defendant did initL1.IIy OppOSl' Plaintiffs cI:lim for unemplo)ment cOlllpl'nsatlllll bl'IIl'lits, :\dlllll _ 1)"11\' (, 20. Plainuffs d'lim for unemplOpll1.11l COlllpl11sation bL11cfits \\~s h'l"aJlled, Admit Dl.11Y 21. ;\ contrad bet\\'el.'11 PL'lintiff amI Defendant, pursuant to the tL'I'mS of Exhibit 1\ of PL'lintiff's complaint, as revised by the tl.'I'ms of Exhibit C of Plaintiff's Cumplaint, \\~s created upon Plaintiffs execution of the :\!,"I'el.'1I11.11l, on Scpt1.1nbL'I' 2-l, 1996. Admit Dl.11Y 22. Plaintiff \\~S ready and \\illing, and offered to perform the contract, by submissiun of the signL-d :\h"l'eCmL11l to Defend'lllts, on September 26, 1996. :\dmit D1.11Y 23. Defendant have faikd to perform the :\grecmL11l :\dmit Dl.'1IY Date: June 26, 1998 KE:'-:D.\U. MILLER, I~C. ~~~ Br /' . KEi'Il-! E. KE'-:D:\LL, ESt1' :\ nome)' for Plain tiff 3207 i'orth Front Street I lamsburg, P.\ 17110 (717)236.9539 (717)236,6602 f-:\X 1 r t . le:rtl E Y.endall Kendallgw ~ AI50 liCensed 10 praCCJce in 01110 ! J ( , ]207 Norch from Street HOff/sburg, Pennsylvania 17110 711.2]6,95]9 111.2 ]6.6602 Fax September 26, 1996 Michael C. Fox, Esq. Rite Aid Corporation 30 Hunter Lane Camp Hill, Pa 17011 Dear Mr. Fox: Enclosed please fInd the Agreement and General Release proposed by your client, which was executed by my client on September 24, 1996. I enclosed a copy of the envelope in which the Agreement and General Release were forwarded to me, verifying the execution date. The enclosed Agreement, along with your binding commitment letter of September 18, 1996, creates a binding contract in this matter, and we therefore request your client's compliance with the terms of this agreement, as revised by your letter. As I have previously indicated, your client's failure to honor it's commitment will likely result in legal action. ~~ {e~~daJl, Esq. KEKlslc Ene. :2 i S:J f ~ ("):: ~N --- -- :., l::l- I"lt"'f- :::l;;~ ("'-0 "'=x :2t'l =;;. . <: ~!"l - .... Q .... ! { 3 ;.. ,. KelCh [ Kendall Kendalgw AJ~a Ilcen~ed (C- practice In Cill/o 3:0," tJ(lrUl fronC 5u.:.t.[ }10fflS;;urg, Pi:!1(l5!JI'.()f1.lJ l/~' I i) i 17.2 36.?53? 717-236'6602 r,lZ September 26, 1996 EAX Michael C. Fox, Esq. Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 RE: M. Jeanne Fox Dear Mr. Tallon: Thank you for your letter of September 26, 1996. My client had already signed, and therefore accepted the terms of the Settlement Agreement, prior to my receipt of your FAX today. This, and your commitment letter of September 18, 1996 clearly evidence a binding Agreement. We will therefore forward the Agreement to you for your client's execution and compliance with its terms. Failing that, I will recommend to my client that she sue on the Agreement and any collateral issues, including a count for abuse of process for your client's improvident appeal of the award of unemployment compensation to Mrs. Fox. Sin~er y'c ~ Keith E. Kendall, Esq. KEK/slc Enc. cc: M. Jeanne Fox ~ , r I 4 r-' J t ( PERIOD E1[QINNltla RITE AID CORPORATION ;;;~;~"c.:;.~; :~~:~;;::,,:.';.~ ~:/15~~~ PEAloe (0'01',0 "'~'..ICE ',a ,"'.e. Cl:I..CT.~'.'J 09/21/96 148 5 TR NUM [J,lI'LOvn'lU"'O[H 097 01 2063239020 '(10 GIlOSS ' CUf1AfI~T GROSS t.ET P"Y I 17996 5 479 3 37017 RETRO-PV "I _...:.t,~~: OASDI 29~7 1097~7 PA DI/UI 4 5~0 HAR TAX 4 9 179195 H~O-125 10 0 294 0 CREDIT-U 675 0 401-K 771 8 UNIT-WAY 170 0 :r... SOCIAJ. SECURITY NO . " :,... , ,I.0VlCE CAT[ ['''''LOTH ,..lI,lE ~9/26/96' FOX, ~. .']::l.~":II:.1If,]:._..I]:IJI;:IIa _.~ ~ I:l!'ll'l!.r ......::.III:~. REGULAR' 479 3 17622i7 fED TAX 44 4 1504 9 HI 6 0 256 9 PA TAX' 13 2 503 6 SPL TAX 10 0 ~ED-H"O' 112 0 X~AS-CLB 525 0 401K-~TC III 6 CH~-ACCT 370 7 11691 1 206-32-3902' , , f I DIRECT DEPOSIT ~ RITE AID CORPORATION ~ ~16 0450661152 CHK-ACCT DATE 09/26/96 146 370.17 FOR 002-09701"'4053 ~.JEANNE FOX 412 HILLSIDE AYE N CUMBERLAND, PA 17070-3036 n!In IiiiiI NON NEGOTIABLE i t " 5 (j ~:",~ r-~~'~ \ ~~~j. COMMONWEALTIi OF PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY HARRISBURG, PA 17120 June 12, 1992 Dear Mr. This is in response to your May 18, 1992, letter regarding the effect of severance payor salary continuation on an individual's eligibility for unemployment compensation (UC). Sections 401, 4(u) and 404(d)(I) of the PA UC Law define unemployment and provide for the deduction of remuneration from UC benefits where the remuneration is attributable to a specific week and is received for services performed. In Vincent M. Hock v. UC Board of Review, the Commonwealth Court of Pennsylvania ruled that the Law does not require that UC benefits be reduced by the amount of separation or severance allowances. Therefore, once an individual is terminated and is performing no further service to the employer, any remuneration received for periods subsequent to the termination, regardless of what the payment is called ("severance pay," "salary continuation," etc.), is not deductible from UC and does not render the claimant ineligible for benefits. I trust this satisfactorily responds to your inquiry. However, if you need addition information, please feel free to contact me at (717) 787-3547. ................................................................................ H. REQUESTOR: PRDSAM - MEAD, SUZANNE ADVERTISING, CORPORATE COMM. H. ................................................................................ H. S Y S M I N BAS K E T P R I N T **. MESSAGE 10: 051661 DATE: 05/06/96 TIME: 11:37am PRIORITY: 999 TO: PRDSAM - MEAD, SUZANNE VICE PRESIDENT ADVERTISING, CORPORATE COMM. 30 HUNTER LANE/ANNEX 1-N FROM: PRDSAM - MEAD, SUZANNE VICE PRESIDENT ADVERTISING, CORPORATE COMM. 30 HUNTER LANE/ANNEX 1-N SUBJECT:~Jeanne FOX'~ Sent to: COOGAN, TOM MEAD, SUZANNE (to) (cc/blind) In keeping with the budget plan, Jeanne Fox's salary should be increased 10%, effective Apr.15. The 10% is in recognition of her promotion to manager, consumer relations. This increase will be followed by a merit raise of 4.3% in August during her annual review process. She has done an excellent jOb, proving her managerial, bUdgeting and professional capabilities in the past three months. As a result of this promotion, I no longer plan to hire a director for this department. ................................................................................ ... REQUESTOR: PRDMJF - FOX, M. JEANNE PUBLIC RELATIONS ... . . . . * . . * . . . * . * . * * * . . . . * . . . * . . . . . . * . . . . . . . . . . . . . * . . * * . . . . . . * * . * . . * . . . . . . . . . . . . . . . ... S Y S M INBASKET P R I N T . . . MESSAGE 10: 044579 DATE: 08/05/96 TIME: 07:35pm PRIORITY: 000 TO: PRDMJF - FOX, M. JEANNE CUST REL MANAGER PUBLIC RELATIONS RITE AID CORPORATION 30 Hunter Lane Camp Hill, PA FAX: (717) 731-4737 FROM: PRDDRS - SALVAGGIO, D. RENE EXECUTIVE ASSISTANT PUBLIC RELATIONS RITE AID CORPORATION 30 Hunter Lane Camp Hill, PA FAX: (717) 731-4737 SUBJECT: Afternoon meeting Suzanne would like to meet with you both in the afternoon. She has a meeting scheduled with Tim at 3 PM. She figures her Tim meeting will be pushed back and she can meet with you around that time. If she does meet with Tim she said she wants to meet with you both definitely after meeting with Tim NO MATTER WHAT TIME it is?! Sent to: PRDMDS PRDMJF - SOLE, MELANIE D. - FOX, M. JEANNE (to) (to) I 111151).",1"'111 (,I~I.lot",,'~1^1l^.Ji" 'UlC.J 1;'H""I:(~U'P\t I(n'n<l ".~, ',1 I ~ :: III r',l '111: M, JEANNE FOX, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LA W NO, 97-89 CIVIL RITE AID CORPORATION, Dcfendant JURY TRIAL DEMANDED DEFENDANT'S ANSWERS TO PI.AINTIFF'S REQUEST FOR ADMISSIONS TO: M, JEANNE FOX, Plaintiff, and hcr attomey, KEITH E. KENDALL, ESQUIRE A.1, Admittcd. A.2, Dcnicd. By way of furthcr responsc, aftcr rcasonablc invcstigation, Dcfcndant is without information or bclicfas to thc authcnticity ofthc attachcd Exhibit and strict proofthcreof is dcmanded, A.3, Admittcd. A.4. Admittcd. A.5. Dcnicd. By way of furthcr rcsponsc, aftcr rcasonablc invcstigation, Dcfcndant is without information or bclicfas to thc authenticity ofthc attachcd Exhibit and strict proofthercof is dcmanded. A.S, Admitted, A.7, Admittcd, A.8. Admitted. 8.1. Admittcd. 8.2. Denicd. By way of further responsc, it is admittcd that Dcfendant offcrcd Plaintiil a scvcrancc packagc in exchangc for Plaintiffs cxccution of an Agrccmcnt and Gcneral Rclcase. B.3, Admittcd. B.4. Admitted. 8.5. Dcnicd as slatcd. By way of furthcr rcsponsc. it is admittcd that Mr, Kcndall proposcd addiliona1tcnns to thc proposcd Agrccmcnt and Gcncral Relcasc, It is spccifically dcnicd that any agrccmcnt was rcachcd bctwccn thc partics, s , 1 r " 8,6. Denied. By way of further response, Mr, Fox has no recollection as to the specific dates on which he communicated with Mr. Kendall. It is admitted, however, that Mr. Fox discussed the temlS of the proposed Agreement and General Release with Mr, Kendall. 8,7, Denied, By way of further response, Mr. Fox has no recollection as to the specific dates on which he communicated with Mr, Kendall. It is admitted, however, that Mr. Fox discussed the ternlS of the proposed Agreement and General Release with Mr. Kendall. 8.8, Denied. By way of further response, Mr. Fox has no recollection as to the specific dates on which he communicated with Mr. Kendall. It is admitted, however. that Mr. Fox discussed the terms of the proposed Agreement and General Release with Mr. Kendall. 8,9. Denied. By way of further response, Mr. Fox has no recollection as to the specific dates on which he communicated with Mr, Kendall. It is admitted, however, that Mr. Fox discussed the terms of the proposed Agreement and General Release with Mr. Kendall. 8.10, Denied, By way of further response, Mr, Fox has no recollection as to the specific dates on which he communicated with Mr. Kendall. It is admitted, however, that Mr. Fox discussed the terms of the proposed Agreement and General Release with Mr. Kendall. 8.11. Admitted, 8.12. Denied. By way of further response, it was Mr. Fox's intention that Plaintiff would not file a claim for unemployment compensation while she was receiving severance benefits from Defendant. 8.13. Denied. By way of further response, Defendant revised its offer of severance benefits to Plaintiff which Plaintiff failed to timely accept by executing the Agrccmcnt and Relcase. 8.14, Denied, By way of furthcr responsc, after rcasonable investigation, Defendant is without knowledgc or belicf as to whether Plaintiff executcd thc Agrccmcnt on September 24, 1996, By way of additional response. Plaintiff did not communicatc her acceptance to Defendant prior to Defendant's timely revocation of the offer, B.15, Denied. By way of furthcr rcsponsc, Dcfcndant in fact rcvokcd its offcr to Plaintiff on Septembcr 26, 1996 prior to Plaintifrs acccptancc of same. B.16. Admitted, By way of furthcr responsc, Defendant's offcr was contingcnt upon Plaintiffnot filing for unemploymcnt compensation bcncfits during the severance bcncfit pcriod, B,17, Denied, This avemlent constitutes a conclusion of law requiring no responsive pleading. Should an answer be deemed required, it is admitted that a claimant can simultaneously colleet severance and unemployment compensation benefits under Pennsylvania law. Parties are free, however, to contract otherwise building unemployment set-off provisions into severance agreements, B.18. Denied. By way of further response, Defendant offered not to oppose Plaintiffs unemployment claim after expiration of the severance benefit period contemplated in the Agreement and General Release. No agreement was ever finalized between the parties, B,19, Admitted. 8,20. Admitted, 8.21. Denied. By way of further response, no contract was formed between the parties as Plaintiff failed to communicate her acceptance to Defendant prior to Defendant's timely revocation of the offer. 8,22. Denied. By way of further response, it is specifically denied that Plaintiff was ready to perform her obligations under the contract. To the contrary, Plaintiff filed for unemployment compensation benefits in contradiction to Defendant's offer. 8.23. Denied, By way of further response, no agreement was ever finalized between the parties. 8Y'~~~~~ George B. Faller, Jr" Esquire I.D. Number 49813 Thomas G. Collins, Esquire 1.0, No. 75896 Ten East High Street Carlisle. P A J 7013 (717) 243-3341 Attomeys for Defendant Dated: August 25. 11)<)8 VERIFIC ATION The foregoing Defendant's Answers to Plaintifl's Request for Admissions is based upon infonnation which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own, I have read the document and to the extent that it is based upon infonnation which I have given to my counsel. it is true and correct to the best of my knowledge. infonnation and belief To the extent that the content of the document is that of counsel. I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa, C.S, Section 4904 relating to unsworn falsification to authorities. which provides that if I make knowingly false averments. I may be subject to criminal penalties, (1.\,t.""\"~,LL. ~Ol<., Z~C\U ..,'L ~. flLES'[JAT^nLE'\jE!I;OOC'l1l'8'~.ARA j J , M. JEANNE FOX, Plainti ff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : NO, 97-89 CIVIL RITE AID CORPORATION, Dcfcndant : JURY TRIAL DEMANDED PRAECII'E TO TilE CUMBERLAND COUNTY PROTlIONOT ARY: You arc hcrcby dircctcd to filc thc following itcm of record as it is rclcvantto a pcnding Motion: a.) Affidavit ofMichac1 C. Fox. DEARDORFF WILLIAMS & OTTO B \:J corge B. Fallcr, Jr" Esquirc 1.0. No. 49813 Thomas G, Collins, Esquirc 1.0. No. 75896 Tcn East High Strcct Carlislc, P A 17013-3093 (717) 243-3341 Altomcys for Dcfcndant Datc: Novcmbcr 25, 1998 COMMONWEALTH OF PENNSYLVANIA ) :SS, COUNTY OF CUMBERLAND ) AFFIDA VIT Michael C. Fox. being duly sworn according to law, deposes and says that the facts set forth in the foregoing Affidavit are true and correct to the best of his knowledge, information and belief. I, I was employed by Rite Aid Corporation as Associate Counsel in September (If 1996, On September 17, 1996, I had a telephone conversation with Keith E, Kendall, Esquire, with respect to the tenns ofa severance agreement which had previously been offered to M, Jeanne Fox by Rite Aid Corporation ("Rile Aid"), Several additional terms were discussed during such telephone conversation and Rite Aid's offer to provide Ms, Fox with severance benefits was modified as evidenced by my September 18, 1996, correspondence to Mr, Kendall, 2, On September 26, 1996, I revoked the outstanding offer to W'Fox.Yia facsimile after it was brought to my attention that Ms, Fox had filed for unemployment compensation benefits, It was my understanding that Ms, Fox would not simultaneously receive severance benefits from Rite Aid and unemployment compensation benefits during the severance period, At the time of such revocation, Mr, Kendall had not communicated Ms, Fox's acceptance to me, I first became aware ofMs, Fox's alleged acceptance when I received Mr, Kendall's facsimile dated September 26, 1996, 3, Mr, Kendall's facsimile dated September 26, 1996, was received by Rite Aid Corporation subsequent to the revocation of Rite Aid's offer.Yia facsimile on the same date, Further, Mr, Kendall did not advise me in any phone conversation that Ms, Fox had accepted Rite Aid's offer prior to the facsimile revocation dated September 26, 1996, .' / ilt{,(,.. ,I/.eJ e 4 Michael C, Fox Swom to and suhscribed before me h. o::',h\"d fle>.' ~. t IS>-,,- ay r. """"'''~' ,199 'J , ~)' .~\ f) '. " \, "--.I \) otary ublic '" F 'FII.F.sn^' .\111 ::'liFNt)(Jl.-"IfJl~1'MT V(', UNf)A L 8AOWlt ....., NIl... Eat "-"bore""'" CumllMIandCoumy ... Comm' I' I . &pires June '.. 2000 .... to-; " U I ~-~ 'I' '" ,,- S)r (-':;1 Lt.l... ..J, LL'.: , r-. ," 1:; u.. l.i ,....J - " , ',~ 7 :--,. ~ ;'d "071.. ~ ;" II.. l.> <YO l,~ , . ) o cj :: ~ ti~ I-l c)i.!ll ~ ;:1 ~~j := J e.o C'Clr-:I "'t:l o.lJ, 5 ~.~ ~ ::t: .. Kendall M"iller, P.C. , r tin') 1 9 1950 86fil 6 I ^nN 3207 Nunh Front Strecr H"rrisbllr~, Pennsyl\'ania 17110 M. JEANNE FOX, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN1Y, PENNSYLVANIA vs. RITE AID CORPORATION, Defendant 97.89 Civil Term MOTION FOR PROTECTIVE ORDER PURSUANT TO Pa.R.C.P. RULE 4012 NOW COMES the Pl1intiff named above, ~1. Jeanne Fox, by and through hl.'I' attomey, Keith E. Kendall. Esq" to move the Court to prohibit discO\'ery sought by Defendant in the above mattL'I', and in support therl.'of, avers the follmving. 1. Plaintiff's compL'lint in this mattl.'I', plc.\ding a breach of conttact action, was filed on January U, 1997, 2 'Ille amount of datllah'Cs clailllL'i.\ by Plaintiff did not excel.'i.\ the mandator}' arbittation thrcshhold, so the case was submitted to arbittation, 3, A hearing was held July 11, 1997. before a panel of arbittators appointed by this Court, which rendl.'I'l.'i.\ a unanimous award in Plaintiffs favor, in the amount of S8,9.J4.82 (Cop)' of Award attached as Exhibit A), 4. Defendatlts appmk'i.l the arbittation award, forcing PL'lintiff to renew her c1aim before the Court, 5, 'Ille parties L'lh>ah'l.'i.\ in such discovl.'1')' as the)' bcliL'Vct\ necessary; agreed that discovery was L'1llk-d; then each fih\ motions for summary judgment. 6, By Order LbtL-d October 8, 1998, this Court dismissl.'L! both summary judh'lnl.'1lt motions, and the casc was therefore ripe for trial. 7, To thi~ point, Plaintiff's attorneys have had to spend approximately 5.t8 hours on Plaintiff's case, since its inception. At a re!,.war hourly rate ofS125.00 per hour, Plaintiff would owe S6,850.lXl. Pursuant to Representatioll A!,>r1.'l.'1I1L'11ts in place, I'bintiff is responsiblc for approximatel}' S3~,O(),(X) in accrued fees and litigation eXpl.'1ISeS, on a claim for less than S9,O<XJ.OO. 8. By lettl.'I' dated Novl.'1I1bl.'I' 3, 1998 O~xhibit B), Defl.'1ldant advised Plaintiffs counsel that it now intends to depose both Plaintiff and her attorney, and may object to counsel's continued representation of Pbintiff. 9. Plaintiff's client has bel.~1 aware of the Sl.')ltcmber 26, 1996, tell.')lhone conference that is the alleged trigger to Defl.'1ldant's proposed actions, belWCl.'1l Pbintiffs attomey and Defend:U1t's corporate counsel, since that d"lte, but did not find it neccssary to act upon it at the arbitration of this matter on July II, 1997, or before now. 10. Defend'Ult should be prohibited from pursuing the actions proposed in its lettL'I' of N oVl.'1I1ber 3, 1998, for thc following reasons: a. 'l1lC actions proposl.'Ll by Defendant are cost-prohibitivc to Plaintiff, given the modest amount of her claim, and are likely to ultimately result in h>rcater c.'Ipense to Plaintiff than her c1aim is worth; 2 b. 'Ille actions pmposl'tl bl' Defl,lllant will cause unrmsonable annoyance, 1.1nbarrassment, oppression, bunlen, expense and dda)' to Plaintiff and hl'r allomel'; and c. 'Illis Court mal', pursuant to Rules 12(, and 4012 of the Pl1msl'l\'ania Rules of Civil Procl.x!ure, (I) take such action as i~ lll'cessar)' to prohibit actions which would preV1.11l the "just, Spl.'l.-dl' and inc.xpl.lISive detlmJinatilln of eVl'1')' action or proceeding" (Rule 12(,); and (2) ". . . make an)' order which justice fl.'(luires to protect a party from unreasonable annoyance, embarrassml.'1Il,oppression, bunk11 and C.xpl'lse" (Rule .fOI2), WI IEREFORE, Phintiff prays the Court Ordl~ prohibit Defendant from acting 1II accordance ,vith Exhibit B; and l.'1lll.T such othl.'I' order as ma)' be nl.'Cessary to protect Plaintiff from unreasonable annoyance, 1.1nbarrassment, oppression, burden and/or CXpl.'1ISe, and which will result in the Spl.'l.-dy detcnnillation of Phintiff's modest claim. Respcctfully submitted, Date: November 10, 1998 ~/f~ ~Esq. A ttomC)' for Plain tiff 3207 North Front Street Harrisburg. PA 17110 (717)236-9539 (717)236-6602 FAX AttomC)' ID No. 42910 3 Exhibit A M. JEANNE FOX, Plaintiff Vs. RITE AID CORPORATION Defendant ) ) ) ) ) ) l ID The Court of COl:lllOD Plau of Cumberland County, Penn.~lvania 97-89 CIVIL , x~ :fa. OATH lie do aolemnly swear (or aftinD) the Con.titution of the Unitad Statea and the vealth and that ve viII diacharge the dutie. lie, the undersigned arbitrators, having beeD duly' appointed and sworn (or &fUnDed), malte the fo~l'Ving avllrd: (Note: If damages f.or del~v are avarded, they ahall be ~~rat~ly n tad.) U ,) (j C\ ~~,~ ~-~~ 4r-'~ ~ ~ . . ~ rA}JI.\ r; ;f' R} 'IV. ,~ 2. M-- . Arbitn~~sen ~.d Vt .. w r..rl w. -<:,_c';. ~p '- r~q ~. ~ Ron u"o, E., NOTICE OF ENTRY 0 AIIAlUl Nov, the 1/1" day of --J~j , 19q] , ~t~, .e..:f., el.'ard vas entered upon the docket and :!otlce theret ~ given by lIlll:!.l part~es or t~eir attorneys. appl1cable. ) Due of Bearlog'";:/f-/ ;-q -; -, liP Co - Date of A\llIr~: -f-''flP-/;- i I Ch~!!'!!lJ!' ~ r~ the ahove to the Arbitrators' C~ensation paid UpOD appeal; $ (-:::j:J 0, [t') U'J / ... I, 1 7'(1 { i.}re(J( ~ (Cu!J?L..r , "Prothonota~ By: l.l.) C--<-.,<!. ->l Yl'}fJ.J_Q.P7u /flqlt Dejluty to be , ~ t [ r h) exhibit B RECEIVED NOV 0 5 1998 1VfD\Xl&:6 I';~nl\\'\ll( l~' ,\P\11 I . All\t'" .\( Y AntlltSI'I'\ 6: CtU:N\tll(lJl",:\I" IJ.\), WUII."MEMAltl"lS JIIItN n. FtI\XHR III D^NIH K. Dt.'MI'KlIUt' TIlI.)MA.'i J. WllU.....\I\. IvnV.Onolll Snrlll-N L DIOOh' GIOlu~t_ B. FAln.nJlt." MI(:I1AU_J. HANrl TtlllMAS G. COU.lN\ CAitLC. RI\(,II BrNJAMINT. WARNt.R Tt:-.' F..\\I HIl;1I SIRII! CARtl\ll. PI~~"\L\\!SL\ 171113 THH'IH1NI E\('...t~lItJ 1:-.1 HIc'aI (717) 243.3.141 (7171 243.IH511 www,mdwn.t:tlm November 3, \998 'f\lIAllll CU,lllllll CIVil T~IAI Sl'ft IAll'l VIA CERTIFIED MAIL RETIJRN RECEIPT REOlJESTED Keith E. Kendall. Esquire 3207 North Front Street Harrisburg, P A 17110 RE: M, Jeanne Fox v, Rite Aid Corporation No, 97.89 Civil. Cumberland County C,C,P. Our File Number 8787,\ Dear Mr, Kendall: As a result of the dispute which has arisen as to the substance of your September 26, 1996 phone conversation with ~'k Fox, you are unfortunately now a material fact witness in the above referenced action, Given your desire to move this matter to trial. we are now compelled to depose both you and Ms. Fox. Enclosed in that regard, please find Notices of Deposition, along with a Subpoena for you to attend same, I would advise in advance that we will be requesting that you each be sequestered during the deposition of the other. Accordingly, you may want to secure the assistance of outside counsel for the Depositions, I would also note in that regard that we may be objecting to your continued participation in this matter as an advocate and fact witness in accordance with Pennsylvania Rule of Professional Conduct 3,7. Please advise at your earliest convenience if you have any objection to the sequestration so that we may timely move for a protective order in accordance with PaR.C.P. 40\2. I have also enclosed a Notice of Intent to Serve a Subpoena to Produce Documents and lbings For Discovery Pursuant to Rule 4009,21, We Wlderstand the difficulties presented by our requests. Unfortunately, given the nature of the factual dispute, same could not be avoided, ld you or Ms, Fox have a conflict with the proposed dale for the depositions, please feel free to con at the above number and we will reschedule same. ly yours, MARTSON DEARDORFF WILLIAMS & OTIO ~~~ Thomas G. Collins TGC/dln Enclosures F'nLES\DATA"1.E'il!NLTR9...r.I1I.~K , I N I' <) R MAT ION . A IJ vie E . A D V 0 CAe Y '" M, JEANNE FOX, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, CIVIL ACTION - LAW NO, 97-89 CIVIL RITE AID CORPORATION, Defendant JUR Y TRIAL DEMANDED NOTICE TO TAKE DEPOSITION PLEASE TAKE NOTICE that pursuant to Pa, R,C.P" 4007,1, the undersigned will take the deposition of Keith E, Kendall, Esquire, in the above captioned action, upon oral examination. for the purpose of discovery or for use at trial in the above action, before a person authorized to render an oath or before some other person so authorized, at the offices of Marts on DeardortfWilliams & Otto, Ten East High Street, Carlisle, PA 17013, on Thursday. December 17,1998 beginning at 9:00 a, m, on all matters not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action and that the above named is requested to appear at the aforesaid time at the above address to submit to examination under oath, .,(.;:s,\ DEARDORFF WILLIAMS & OTTO B~~"'~~ Thomas G. Collins, Esquire Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Defendant Dated: November 3, 1998 cc: Central Pennsylvania Court Reporting f':\ f'l LES\DATAFILr.\C;ENDOr.91~\87H7INOT,KK M JEANNE FOX, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v, CIVIL ACTION - LAW NO, 97-89 CIVIL RITE AID CORPORATION, Defendant JUR Y TRIAL DEMANDED NOTICE TO TAKE DEPOSITION PLEASE TAKE NOTICE that pursuant to Pa, R, C. p" 4007, I, the undersigned will take the deposition ofM, Jeanne Fox, in the above captioned action. upon oral examination, for the purpose of discovery or for use at trial in the abuve action, before a person authorized to render an oath or before some other person so authorized, at the offices of Martson Deardorff Williams & Otto, Ten East High Street. Carlisle, PA 17013, on Thursday, December 17, 1998 beginning at 9:00 a,m, on all matters not privileged which are relevant anc material to the issues and subject matter involved in the above-captioned action and that the above named is requested to appear at the aforesaid time at the above address to submit to examination under oath, SON DEARDORFF WILLIAMS & OTTO By ~~~_.." ~ ~).~:h'" Thomas G, Collins, Esquire Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Defendant Dated: November 3, 1998 cc: Central Pennsylvania Court Reporting P:'J'ILES\DATAFILE\GENDIK:98\H'l'H7IN01'. MJP IllLI.S lJA1AIIU,,';[NI.O,'''''IJj'II'INOI Slllt (IU\t<l 12-'21 'f' IIJ U H ^'" jo(f'l~d II:O~"1I (J~ 42 \f, PM M JEANNE FOX, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v, CIVIL ACTION - LAW NO, 97-89 CIVIL RITE AID CORPORATION, Defendant JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODlICE DOCUMENTS AND THINGS FOR DISCOVERY PIIRSIJANT TO RULE 4009.21 Defendant, Rite Aid Corporation. intends to serve a subpoena identical to the one that is attached to this notice, You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena, If no objection is made, the subpoena may be served, ART N DEARDORFF WILLIAMS & OTTO BY- ~~l~~~~~ ~ ~ Thomas G, Collins, Esquire I. D. Number 75896 Ten East High Street Carlisle, P A 17013-3093 (717) 243-3341 Attomeys for Defendant, Rite Aid Corporation Date: November 3, 1998 cx:JKHoIEAL'rn OF PrnN$YLVl\NIA CDJNl"i OF cummIJ\ND M. JEANNE FOX, Plaintiff v. File No. 97-89 CIVIL RITE AID CORPORATION, Defendant SUBPOENA TO PROOlX:E [)()(l.tf:NTS OR THltm FOR 0 I SCOVERY PUlSUANT TO RULE 4009. 22 TO: M. JEANNE FOX and her attorney,KEITH E. KENDALL, ESQUIRE (N!Ime of Person or Entity) Within twenty (20) days after servicC!l of this subpoena, you are ordered by the ooc.rt to prodlce the following docunents or things: See Attached. ut Martson Deardorff Williams & Otto, Ten East High Street, Carlisle, PA 17013 (Adcress) You may deliver or mail legible copies of the docunents or produce things requested by this subpoena, together with the certificate of cx:rrplfance, to the party making this request at the addrr.ss listed above. You have the right to seek in advanc:a the reasonable cost of preparing the copies or producing the things sought. I f you fai I to proclJce the docunents or things required by this subpoen'l within twenty (20) clays after its service, the party serving this sl.bpoena rray seek a ooc.rt order C01'1>e 11 ir:9 you to carp Iy with it. THIS SUBPOENA WAS 1sst..eD AT nt; REQUEST OF nt; FOlLCWING PERSON: NN-E: Thomas G. Collins, Esquire ADDRESS: Ten East Hiah Street Carl~le. PA ]70]3 TELEPHONE: (717) 243-3341 SU'REl-E exulT 10 It 75896 ATTORNEY FOR: Defendant, Rite Aid Corporation OATE: ,/l)O(J ~ /9q? Sea I of the Court Division Deputy ~(O)~v (Etf. 1/97) ., OF' "",%~-::'T~::?~~:;;;~O:'~T;:'~';; ~;',~i f,CQI \IRE 1. P\,,,, p,od'" K,,"'11 Mill", P .C." ,ho,,,,,,,'d' ,,,,m Au,~1 9, 19961h""" Sopl""b" 3D, 1996. ,,, ,"'0'" oflh;.\,,,,,,,,""" Ih' "on ",h'" ,,,,,d>" .h>l' m'" · "m,.h""" \;.I;n, ,bl,;n'" fr,m Ih. ."\1,,b\' IO'oph'" -;,,, ",,;d" ,how;', '" incoming and outgoing long distance and \ocaltelephone ca\ls. 2, PI,,'" ,,,,d'" K"".11 M;I1'" ,.C." bimn, "",d' ,,,,.,in, '" M.l= ,,, during the period August 9, \ 996 through september 30, \996, 3, ,\.... ,.od'" ..., do<om,,1 fo"",,d.d b, .". '" In K,;1h E, K"d>l', E..ni" " K.od,u Mill", P .c. ,...inin, i, ..., """"" In M'. ,,,', "",,,,.. ofM' Aid" off" In provide severance benefits. , \f\Lf,.S\DAT Afu,E\OE,ND0C91\11n'OOC aRQ . '-'~. M. JEANNE FOX, Plaintiff IN TilE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW Vs. NO. 97-89 CIVIL TERM RITE AID CORPORATION, Defendants NOTICE OF ARBITRATION IIEARING You are hereby notified that the undersigned arbitrators appointed by the Court in the above captioned matter will meet for the purpose of their appointment on FRIDAY, JULY 11, 1997, at 9:00 a.m. in the 2nd floor hearing room, Old Cumberland County Courthouse, Carlisle, Pennsylvania, at which time and place you may appear and be heard, together with your witnesses and your counsel, if you so desire. Should this time not be convenient to you, please contact the Date: June 3, 1997 H k r, Chairman Phi p C. Briganti, Esquire Ste hen Bloom, Esquire COPIES TO: Stephen A. Miller, Esquire KENDALL MILLER, P.C. 3207 North Front Street Harrisburg, PA 17102 James J. Comitale, Esquire RITE AID CORPORATION 30 Hunter Lane Camp Hill, PA 17011 SHERIFF'S RETURN - REGULAR CAS~ NO: 1~97-00089 P CIJMMONW~:AI. TH Of r~NNSYL V ANI A: CIJUNTY OF CUMB~RLAND FOX M JF:ANNE VS. R[T~ AID CORPIJRATION , Sheriff or Deputy Sheriff of being duly sworn according was served MICHM:I. BARRICK GlIMIlEIlLAND County, Pennsylvania. who to law, says, the within COMPI.A[NT upon R [n: A [0 Glml'lJRATION defendant, at _ 11:3:; :.0\?) HOURS, on the 28th day of J~nu~rv 1 Y97. at 30 HUNT~R I.ANE CAMP HILL, , . PA 17011 . CUMDERLAND County, Pennsylvania, by handing to MARY DETH MITCH~LL, LEGAL SEGRF:TAWC & PERSON IN CHARGE a true and attested copy of the CIJMPLAINT and at the sume timQ directing He~ attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 9.30 .00 2.00 ~9. :.Hl) So answers :........,r,/.,,/.-?'// 1~ ~;~.t~.,~<1~ H. I homas K1J.ne, ::iherJ.11 KENDALL MILLER :L.~.. 01/29/1997 ~~" ," by -/~A- ~ . , epu y J. Sworn and subscribed to before me this :l1,.~. day Of'-j'-,...../ 1 Y Q ,1 . A. D. '-J..-...t c<-- f. )/4.((......... /LYJ"0, I I Pr51::honotary the r ~ , t ~.. "L \; ,J " -' c' u:> f"""I ~ ~.~ -J '1 ~: ..., 1 ..,., j." ~{ =.:J ',.- " " <.n: c;~ ; l'~) ) , ,.., JO ." ..=H . . . ~. :-.:. ". ',.' . ~l) i-:. . 'Y '-i11 ",) ~ " :.) . 'J ..{ (1. =< FARMERS TRUST BUILDING ONE WEST HIGH STREET CARLISLE. PENNA, 17013 EDWARD W. HARKER ATTORNEY AT LAW PHONE (7171243.1083 FAX (717) 243.2595 May 15, 1997 DAILY 8:30 . 4:30 EVENING HOURS BY APPOINTMENT i \ ~ " t Stephen L. Bloom, Esquire MARTSo.N DEARDo.RFF WILLIAMS & OTTO. 10 East High Street Carlisle, PA 17013 Philip C. Briganti, Esquire LEGAL SERVICES 8 Irvine Row Carlisle, PA 17013 RE: Arbitration - No. 97-89 M. Jeanne Fox Vs. Rite Aid Corporation Dear Counselors: Please be advised that Judge Sheely has appointed us as arbitrators in the above captioned matter. Please provide me with six morning dates during the weeks of August 4th and August 11th, 1997. This will enable me to select a time in which we will all be available for a hearing. By copy of this letter, I am also requesting from Stephen A. Miller, Esquire, Attorney for the Plaintiff, and James J. Comitale, Esquire, Attorney for the Defendant, of their available times during the aforesaid dates. Please return this information to me within the next couple of weeks, so that, I may reserve a Court Room for the hearing and confirm the time with you well in advance of the hearing date. Thank you for your cooperation. Sincerely, ~W~ Edward W. Harker fYf!- EWH:mr cc: Stephen A. Miller, Esquire James J. Comitale, Esquire Plaintiff. 6. Rite Aid is without infonnation or knowledge sufficient to fonn a belief a~ to the truth of the allegations contained in this paragmph of Plaintirrs Complaint. Rite Aid is aware that sometime subsequent to August 9, 1996, Keith E. Kendall, Esquire, became involved with Plaintiff. 7. Admitted. Rite Aid admil~ that Plaintifrs counsel changed the tenns of Rite Aid's proposal. 8. Admitted in part; denied in part. Rite Aid admits that Keith E. Kendall, Esquire, conversed with Michael C. Fox, Esquire, regarding Plaintifrs "proposed additional terms" a~ alleged in paragraphs 7 and 8 of Plaintiffs Complaint. However, Rite Aid specifically denies that Plaintifrs counsel and Michael C. Fox, Esquire, "agreed upon the proposed additional tenns" in any manner whatsoever and particularly a~ alleged in this paragmph of Plaintifrs Complaint. To the contrary, no sueh "agreement" ever occurred. 9. Denied. Firstly, the letter attached a~ Exhibit CI and C2 to Plaintifrs Complaint is a letter dated September 18, 1996 and not September 13, 1996. Additionally, Michael C. Fox, Esquire's September 18, 1996 letter is a writing which speaks for itself. Moreover, paragmph 2(a) of the proposed severance agreement specifically provides that Rite Aid would provide to Plaintiff "continuous pay beginning August 9, 1996, and concluding December 7, 1996 ("sevemnce period")". Plaintifrs counsel's August 22, 1996 correspondence to Rite Aid (attached as Exhibit "B" to Plaintifrs Complain!), clearly provides that instead of the continuous pay from August through December of 1996, he was demanding "[l]ump sum payment of the four 2 months salary". Michael C. Fox, Esquire's September 18, 19961eller specifically refers back to pamgmph 2 of the proposed Agreement and General Relea~e in referring to how the salary would be paid to Plaintiff. 10. Denied. Rite Aid specifically denies that any contmct wa~ formed between it and Plaintiff in any manner whal~ocver and particularly a~ alleged in this paragmph of Plaintiffs Complaint. To the contrary. at no time wa~ any type of "contmct" fonned between Plaintiff and Rite Aid with respect to the transactions and events contained in Plaintiffs Complaint. Rite Aid specifically denies that Plaintiff accepted "the revisions" set forth in Mr. Fox's September 18. 19961eller (Exhibit "C" to Plaintiffs Complaint). By way offurther denial, the allegations contained in this paragmph are conclusions of law to which no response is required but which nevertheless are deemed denied. Strict proof of these allegations is demanded at the time of trial. II. Denied. Rite Aid specifically denies that any contmct was formed between it and Plaintiff in any manner whatsoever and particularly a~ alleged in this pamgmph of Plaintiffs Complaint. To the contrary, at no time was any type of "contmct" fonned between Plaintiff and Rite Aid with respect to the transactions and events contained in Plaintiffs Complaint. Rite Aid specifically denies that Plaintiff accepted "the revisions" set forth in Mr. Fox's September 18, 19961eller (Exhibit "C" to Plaintiffs Complaint). By way of further denial, the allegations contained in this pamgraph are conclusions of law to which no response is required but which nevertheless are deemed denied. Strict proof of these allegations is demanded at the time of trial. Furthennore, in the event it is detennined that any type of contrdct was formed between Plaintiff and Rite Aid, which allegations are specifically denied, Rite Aid specifically denies that it breached 3 any agreement with Plaintiff. To the contrary, any "breach" of any agreement between Plaintiff and Rite Aid wa~ solely a result of the conduc~ of Plaintiff. 12. Denied. Rite Aid specifically denies that any contmct wa~ formed between it and Plaintiff in any manner whatsoever and particularly a~ alleged in this paragmph of Plaintiffs Complaint. To the contrary, at no time was any type of "contract" fonned between Plaintiff and Rite Aid with respect to the transactions and events contained in Plaintiffs Complaint. Rite Aid specifically denies that Plaintiffaccepled "the revisions" set forth in Mr. Fox's September 18, 1996 letter (Exhibit "C" to Plaintiffs Complaint). By way of further denial, the allegations contained in this paragraph are con-:lusions of law to which no response is required but which nevertheless are deemed denied. Strict proof of these allegations is demanded at the time of trial. Furthennore, in the event it is detennined that any type of contract wa~ formed between Plaintiff and Rite Aid, which allegations are specifically denied, Rite Aid specifically denies that it breached any agreement with Plaintiff. To the contrary, any "breach" of any agreement between Plaintiff and Rite Aid was solely a result of the conduct of Plaintiff. 13. Denied. Rite Aid specifically denies that any contmct was formed between it and Plaintiff in any manner whal~oever and particularly a~ alleged in this paragmph of Plaintiffs Complaint. To the contrary, at no time wa~ any type of "contract" fonned between Plaintiff and Rite Aid with respect to the tnmsactions and events contained in Plaintiffs Complaint. Rite Aid specifically denies that Plaintiff accepted "the revisions" set forth in Mr. Fox's September 18, 1996 letter (Exhibit "C" to Plaintiffs Complaint). By way of further denial, the allegations contained in this pamgraph are conclusions of law to which no response is required but which 4 nevertheless are deemed denied. Strict proof of these allegations is demanded at the time of trial. 14. Denied. Rite Aid specifically denies that any contmct wa~ fonned between it and Plaintiff in any manner whatsoever and particularly a~ alleged in this pamgmph of Plaintiffs Complaint. To the contrary. at no time was any type of "contract" fonned between Plaintiff and Rite Aid with respect to the transactions and events contained in Plaintiffs Complaint. Rite Aid specifically denies that Plaintiff accepted "the revisions" set forth in Mr. Fox's September 18. 1996 letter (Exhibit "e" to Plaintiffs Complaint). By way of further denial, the allegations contained in this paragmph are conclusions of law to which no response is required but which nevertheless are deemed denied. Strict proof of these allegations is demanded at the time of trial. Furthennore. in the event it is detennined that any type of contract was fonned between Plaintiff and Rile Aid, which allegations are specifically denied. Rite Aid specifically denies that it breached any agreement with Plaintiff. To the contrary. any breach of any agreement between Plaintiff and Rite Aid wa~ solely a result of the conduct of Plaintiff. IS. Denied. Rite Aid specifically denies that any contmct wa~ fonned between it and Plaintiff in any manner whal~oever and particularly a~ alleged in this paragmph of Plaintiffs Complaint. To the contmry. at no time wa~ any type of "contract" fonned between Plaintiff and Rite Aid with respect to the transactions and events contained in Plaintiffs Complaint. Rite Aid specifically denies that Plaintiff accepted "the revisions" set forth in Mr. Fox's September 18, 1996 letter (Exhibit "C" to Plaintiffs Complaint). By way of further denial. the allegations contained in this paragmph are conclusions of law to which no response is required but which nevertheless are deemed denied. Strict proof or these allegations is demanded at the time of trial. 5 Furthennore, in the event it is detennined that any type of contract was formed between Plaintiff Md Rite Aid, which allegations are specifically denied, Rite Aid specifically denies that it breached MY agreement with Plaintiff. To the contrary, any breach of MY agreement between Plaintiff Md Rite Aid was solely a result of the conduct of Plaintiff. Finally, Rite Aid specifically denies that Plaintiff was damaged in any manner whatsoever and particularly a~ alleged in this paragraph of Plaintirrs Complaint. In the event Plaintiff wa~ damaged a~ alleged, which allegations are specifically denied, said damages were caused solely by Plaintiffs own conduct. 16. Denied. Rite Aid specifically denies that MY contmct wa~ fonned between it Md Plaintiff in MY manner whatsoever and particularly a~ alleged in this paragmph of Plaintiffs Complaint. To the contmry, at no time was MY type of "contract" fonned between Plaintiff and Rite Aid with respect to the transactions and events contained in Plaintiffs Complaint. Rite Aid specifically denies that Plaintiff accepted "the revisions" set forth in Mr. Fox's September 18, 19961eller (Exhibit "C" to Plaintiffs Complaint). By way of further denial. the allegations contained in this paragmph are conclusions of law to which no response is required but which nevertheless are deemed denied. Strict proof of these allegations is demanded at the time of trial. Furthennore, in the event it is detennined that any type of contmct was formed between Plaintiff Md Rite Aid, which allegations are specifically denied, Rite Aid specifically denies that it breached MY agreement with Plaintiff. To the contrary, any breach of MY agreement between Plaintiff and Rite Aid was solely a result of the conduct of Plaintiff. Finally, Rite Aid specifically denies that Plaintiff wa~ damaged in any manner whatsoever Md particularly as alleged in this paragraph of Plaintiffs Complaint. In the event Plaintiffwa~ damaged a~ alleged, which allegations are (j c' .,') 0 \~.- . -J " ..., -.-l r: I :,:") "., J , :1) 'J"; ,,;) , ;l~ ." '1 -'I ~ 7"J: ll~ ) i-; ,rll - ~ :.) ~ii '1' ,< >- Ul . (J~ <.:: ;::0 " (~ (~ ,-<, UI. ," (). .:", p..: ~, C_ '. .'-, ~ ;:.J 9,' c,. r- , ,-, UI' , :',; reI' c., in -. --.:: .::;... I, :L: " r- :'i C- O"> '..J cj :: ",. t r-- ...... IU_ i:: .. .... Vl .- ~ ld 0;;:: ~ 1- ~ 'E 1 _0. ed z ~ ....... r- :l '-' 0.0 i:: N.:!l (1) t"\ t:: ~ = Kendall Miller, P.C. 3207 North Front Street Harrisburg, Pennsylvania 17110 .. , 22. Dl'nil'd. I'.Iynll'nls III bt.. rl','l'i\,l'd by I'I.Iinliff Wl'H' Sl'Vl'rdnn' benefits, dnd nol for sl'rvin's n'l1lll'rl'll. IIll'rl'forl' nol "s.lIdry". Furllll'r, sinn' l'ennsylv,Inid LoIW d.lssifil's surh I'.Iynll'nls .15 Sl'Vl'r,IIll"l' I'.Iynll'nl~ .\IId nol sdldry, I'ldinliff WdS l'nlitll'd 10 n....l'ivl' UIll'lIIplllyml'nl Coml'l'ns,Ilion Bl'nl'fits during Ihl' severdnn' p,Iynll'nl pl'riod. 23. Admilll'd. Kenddll Miller, P.c. 3207 Norlh Fronl Street H.misburg, PA 17110 (717) 236-9539 (717) 236-6602 (FAX) 24. Dl'nied. Midl.wl Fox, l'llunsl'1 for Dl'fend,ml Rill' Aid Corpordlion, execuled Ihe ,Igrl'l'nll'nl by letler of 5I'pll'lIIber 18,1996. 25. Denied. The ,Klion oil b.1f is for bre.Kh of conlrdd. Pldinliffs 5101 Ius 015 an ai-will employl'l' h,IS no relevdnre 10 her cldims, dnd no effecl on her dbilily to enforce her righls .15 01 pdrly to 01 severdnce contrdcl. 26. Admilled. 27. Admitted. Dale: March 6, 1997 Respectfully submitted, sr~tjfl!!- Allorney for Pldinliff CERTIFICATE OF SERVICE I, Stephen A. Miller, Esquire, dttornl'Y for Pldintiff, cl'rtify thdt on this 6th ddY of Mdrch, 1997, served d true dnd corrl'c:t copy of Pldinliffs Response to Defenddnt's New M,\tter WdS served upon the following vid first c1dss mdil, postdge pdid. Jdl11eS J. Comit.lle, Esquire Rite Aid Corpordtion 30 Hunter Ldne Cdmp I'{j(1, PA 17011 Ddle: Mdrch 6, 1997 Stephen A. liller, Esquire Attorney for Pldintiff .,.- l_n 4t \3 ~ i ,- ~ t1 ~., . r6 ~ \ll! -' - \ ( , ., I" c' .. 8 \\ ( ; l l. ('; .J , . ,',j ~ t, , ...l. .- ..... " r-. " <-' G' .l . 0 U w::: ~ ~::: .... cJl.!! o ~ i e i 2 ~ oS ~ _ 5 . - z e.- elS .... ::l "'Cl 0 JJ c:: N.2 0'" .. ~ x ,- Kendall Miller, P.C. o . n07 North Front Street II""ishur~I Pennsyll'ania 17110 M. JEANNE FOX, PLAINTlH IN THE COURT OF COMMON PI.EAS, CUMBERLAND COUNTY PENNSYLVANIA vs, No. 97-89 Civil Tenn RITE AID CORPORATION, DEFENDANT Jury Trial Demanded ORDER OF COURT AND NOW, A /l1L~L__~~ ...J 1997, in consideration of the foregoing petition, _EdWf"J/l..d_;/EJII.lftEsq .,Sit...f1Ji./.L~I.txJL1:'JEsq. and~:..L:../!.. !iK!,,'r:Ani,,--, , Esq., are appointed arbitrators in the above captioned action as prayed for. (~_. ,'I /" ~. . I^--- '-n,\ Hon. Harold E. Sheely, P.J. 3 ~ 5. Ndncy G. M.\l"u>od, 30 Huntl'r Ldnl', C.lInp Hill, PA 17001 , ( 6. Richdrd W. Olon, 30 lIuntl'r Ldnl', Cdl11p lIi11, I'A 17001 , " ... I WHEREFORE, your pl'tilionl'r pr.IYs your Honordbll' Court to dppoint thn'l' (3) drbilrators to whom the l'dSl' shdll hi.' submitted. Date: March 25, 19997 ~tJldL-- Stephen A. iller, Esquire Kenddll Miller, P.c. 3207 North Front Street Hdrrisburg, PA 17102 (717) 236 9539 (717) 236-6602 (FAX) CERTIFICATE OF SERVICE I, Stephen A. MiIIl'r, Esquire, attorney for Plaintiff, certify that on this 25th day of March, 1997, served a true and corred copy of Plaintiffs Petition for Appointment of ATbitrators was served upon the following via first class mail, postage paid. James J. Comildle, Esquire Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 Dale: March 25, 1997 S~ Miller, squire Attorney for Plaintiff " M. JEANNE Fo.X, Plaintiff IN THE COURT OF Co.MMo.N PLEAS o.F CUMBERLAND Co.UNTY, PENNSYLVANIA Vs. CIVIL ACTION - LAW RITE AID Co.RPORATION, Defendant NO. 97-89 CIVIL IN RE: VACATE ARBITRATo.R o.RDER o.F Co.URT AND No.W, It It- this (\ day of June, 1997, the appointment of Stephen L. Bloom, Esquire, is hereby vacated and Stephen J. Hogg, Esquire, is appointed in his stead. BY THE COURT, Jc\-v F .~. arold E. Shee y, P.J. Edward W. Harker, Esquire Chairman Philip C. Briganti, ]. ~.?~.( tc/f3/97. ....!!.(j. Esquire -, f' C H fu... fo/I'-/91 .- ~d- /.....I-L(C ....... cl.A f> stephen J. Hogg, Esquire Court Administrator rllro-crF,CE r.. ~\-'~ r/:''''\\''~ ""\i ~R'{ .iI' , . . C)1 j\l~ \ 2. PI', 3' ? \ , \,1 ()J,~\"'~.i:\'-" ,'<.1 """,;,> \ I ~Uj"rS"(~Ji..N'A \ I 1 Nt). (If . 'i)tj Cu_v.CI ~ ""1 You have been sued in court. I f you wish to defend a~ainst the claims set forth in the followin~ pa~es, you must take action within twenty (20) days after this complaint and notice are served, by enterin~ a written appearance personally or by attomey and lllin~ in writin~ with the court your defenses or objections to the claims set forth a~ainst you. You are wamed that if you fail to do so, the case may proceed without you, and a judgment may be entercd 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 loose money Dr property or other ri~hts important to you. NOTICE TO DEFEND 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 FORT!,! BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Court Administrator Fourth Floor Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 (717) 240-6100 ^ vIsa USTED HA smo DEMANDADO/A EN CORTE. Si usted de sea defenderse de las demandas quc se prescntan mas ade!ante en !as siguientes paginas, debe tomar accion dentro de IDS proximos viente (20) dias despues de la notificacion de esta Demanda y radicando en la Corte por escrito sus defensas de, y objeccior.es, alas demandas presentadas aqui en contra suya. Se Ie advierte de quc si usted falla de tomar acion como se describe anterionnente, el caso pude proceder sin usted y un fallo por cua!quier suma de dinero reclamada en la demanda 0 cualquier Dtra reclamacion 0 remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede dinero 0 propiedad u DtroS derechDs importantes para usted. USTED DE BE LLEV ^R [:STE DOCUMENTO ^ SU ^BOGODO INMEDI^T^MENTE. Sf USTED NO TEN!: UN M30GODO 0 NO PUEDE PM}MU,E ^ UNO, LJ.^ME 0 V^Y^ ^ L^ SIGUIENTE OFICIN^ P^R^ ^ VERIGlMR DONDE PUEDE ENCONTR^R ^SISTENCI^ LEGM.; " I S, Plaintitr exercised her right pursuant to Article <J of the proposed Agrl'Cmenl, to consult with legal counsel about the proposed Agreement 6, Plaintitrretained Keith E Kendall, Esq ("Plaintill's Counsel") on August 22, 1996, to negotiate more favorable severance temlS, 7. By letter of August 22, 19%, a copy of which is attached hereto as Exhibitll. Plaintitl's counscl proposed additionaltenns tor incorporation into the Agreement 8, Plaintiffs Counsel discussed and agreed upon the proposed additionaltemls with legal counsel for Defendant Michael r. Fox, Esq. ("Defendant's Counsel") on September 17, 1996, 9, By letter of September 13, 1996 received by FAX on September 13, 1996, a copy of which is attached hereto at Exhibit C-I. and by regular mail on Seplcmber 20, 1996, a copy of which is attached hereto at Exhibit C-2, Defendant's Counsel confinned the revision of the Agreement. 10, The Agreement was signed by Plaintiff on September 24, 1996 upon her acceptance of the revisions set forth in Exhibit C. and a contract between Plaintiff and defendant was thereby formed. II. By letter of September 26, 1996, a copy of which is attached hereto at Exhibit D, Defendant unilaterally and without justification breached its Agreement with Plaintiff. 12, By letters of September 26, 1996, a copy of which is set forth at Exhibits E and F, Plaintiffs Counsel advised Defendant of Plaintiffs acceptance of the revised Agreement; forwarded a copy of the agreement, executed by Plainlift: to Defendant; and requested that Defendant honor the Agreement 13. Despite Plaintiffs request, Defendant has failed or refused to perfonn its obligations under the agreement 14, Defendant has unilaterally and \vithout justification breached its Agreement with Plaintiff IS, As a result of Defcndant's breech. Plaintitrhas lost the benefits to which she is entitled under the Agreement as more tully set tbrth therein, and incorporated herein. I I I I h As a result of Dclcndant's breach. I'laintill. has sullcred consequential damages, ~ including lost interest. legal tees and the costs of this action .' I, WIlEREHlRE, I'laintitr requests the specific pertilfll1al1Ce of the terms of the attached agrl'Cmcnt. together with interest thereon and the legal tces lInd costs of this action Respl'Ctllllly submitted, Date: uL , J /1....t/ 77 / ...:.~._~/~ -~i;;;}----- - STEPHEN ^ MILLER, Esquire Attomey for Plaintitl' Attomey J.D. #76600 i I , Kendall Miller,l',C 3207 North Front Strl'Ct Hanisburg, PA 17110 (717) 236.9539 (717) 236.6602 (FAX) A I'-' ! ~ , AGR~~MENLAN~~~NEBA~~L~AS~ WHEREAS, M. JEANNE FOX, (herelnollar "FOXlI1ELEASOR") has been employed by RITE AID CDl1rOI1A TION (llOrelllollor'RITE AID"), and WHEI1EAS, RITE AID alld FOX mulually desire to tarminate amicably FOX's employment and/or allilialion wilh I1ITE AID, and 10 sellle and lerminate any and all claims. dispules. or olllOr maltOfs lJolwl!lwltwrn; IT IS HEREBY AGREED by alld belween RITE AID and FDX es lollows: 1. FDX's employmenl with RITE AID onded on Augusl 9, 1996. 2, RITE AID will provide a sevarance package to RELEASDR of: 0) conlinous pay boginnlng August 9, 1996, and concluding December 7, 1996 ("severance period"); b) conlinualion 01 benellls Ihrough the severance period with deduclions el employee parlion, Therealler, benelits would be made available under 1110 condilions required by the law commonly refemed to as 'COBRA"; c) a lump sum payment of all accrued and unused and unpaid vacalion lime, 3. RELEASOR, for and in consideration 01 the provisions of this Agreement, and intending 10 be legally bound, does hereby REMISE, RELEASE and FOREVER DISCHARGE RITE AID, ils parent and affiliated corporate enlilies and its and their olticers, directors, employees and agenls, its and their successors and assigns, heirs, executors and administrators, 01 and Irom any and all manner of acliens and causes of aClions, suits. debts, claims and demands whatseever in law or in equity, which RELEASDR ever had, now has, or herealler may have. or which RELEASOR's heirs, successors. executors or administrators herealler may 110ve by reason 01 any maller, cause or thing whatsoever. from the beginning of lime to the date ollhese presents, and particularly, but without IImitalion 01 the loregoing general terms, any claims arising from or relating in any way to RELEASDR's employment relationship andlor the termination 01 RELEASOR's employment relationship andlor afliliation \\ilh RITE AID, Including, but nollimited to. any claims which have been asserted or could have been asserted or could be asserted now or In the luture under any and all leceral, state. or local laws including lhe Age Discrimination In Employment Act, 29 U.S.C. ~621 illJl.Q. and any common law claims now or herealler recognized (including, but not limited to, claims lor wrongful discharge, Invasion of privacy andlor defamation). 4. II is expressly agreed and underslood that RITE AID does not have and will nol have any obligation to provide RELEASOR at any lime In the fulure with any paymenls, benefits, or r.onsideralions other Ihan Ihose recited in Paragraph 1. 5. RELEASDR further vgrees aed cevenants that neither RELEII,SOR. nor any person, erganization or other entily on RELEASDR's behall, will lite, charge, claim, sue or cause or permit to be liled wilh any Stale or Federal Court or agency any action or proceeding lor legal or equitable relief (including damages, Injunctive. decfaratory, monetary or other relief) involving any mailer occurring any time In the past up to the date 01 this Agreement and Release or invelving any continuing ellects or any acts or practices 01 RITE AID which may have arisen or oc:urred prior to the date of this Agreement and Release. 6. RELEASDR hereby agrees and recognizes that RELEASOR's employment relationship with RITE AID has been permanently and irrevocably severed and thai RITE AID does not have any obligation to hire, rehire, or reemploy RELEASDR in the futuro. , t B '!4 ". 1 ' t ~( r \ IillliI ~ . MAILING ADDRESS PO Bo. 31~5 H'''i'burg, PA 17'05 . GENeRAL OFFICE 30 Hunlel Lane Camp H,U, PA 17011 . (717) 761.2833 . FAX (717) 975-5952 Rite Aid Corporation LEGAL D~PARTMENT September 18, 1996 Keilh E. Kendall, Esquire 3207 North Front Street Harrisburg, P A 17110 Via FIr 236-66D2 ,nd Regullf "'-1/ Re: M. Jeanne Fox Dear Keith: This letter will confirm our telephone conference of Seplember 17, 1996, in which we discussed the issues raised by your letter of August 22, 1996. As a result olthat conference I I believe lhat any end all outstanding issues have been resolved. The issues referenced in your letter as numbers 1, 2 & 6 are provided to Jeanne in paragraph 2 ollhe Agreement and General Release. Additionally, A~e Aid will not oppose a claim by Jeanne lor unemployment compensation benefrts; her personnel file will be purged of any negalive performance or misconduct references; and prospective employers will receive only a neutral reference. Accordingly, please have JeSMe execute the Agreement and General Release forwarded to her previously, end this lener shall represent a binding commitment by Aile Aid on the olller ttlree issues raised in your letter of August 22 (paragraphs 3, 4 & 5). Thank you lor your consideration and cooperation. Very truly yours, Michael C. Fox Associate Counsel e-~ mcf/rah cc: James M. Tanon Senior Vice President J\UTGllOf'WllC'('OR.tsrv..uc.~DAll.Ln 10 'd !d3G 1\1031 ES:~O G3M 96-81-d3S 2S6SSL6L tL 'ON X\I:! RECEIVED SEP 2 0 mi IillEI . . MAiliNG ADDRESS P.O, Box 3165 Harrisburg. PA 17105 . GENERAL OFFICE 30 Hunter Lane Camp Hill, PA 17011 . (717) 761-2633 . FAX (717) 975.5952 Rite 41d Corporation LEGAL DEPARTMENT September 18, 1996 Keith E. Kendall, Esquire 3207 North Front Street Harrisburg, PA 17110 Via Fax 236-6602 and Regular Mall Re: M. Jeanne Fox Dear Keith: This IBlIer will confirm our telephone conferencB of September 17, 1996, In which we discussed the issues raised by your letter of August 22, 1996. As a result of that conference, I believe that any and all outstanding Issues have been resolved. The issues referenced In your letter as numbers 1, 2 & 6 are provided to Jeanne in paragraph 2 of the Agreement and General Release. Additionally, Rite Aid will not oppDse a claim by Jeanne for unemployment compensation benefits; her personnel file will be purged of any negative performance or misconduct referencBs; and prospective employers will receive only a neutral reference. AccDrdingly, please have Jeanne execute the Agreement and General Release forwarded to her previously, and this leller shall represent a binding commitment by Rite Aid on the other three Issues raised in your leller of August 22 (paragraphs 3, 4 & 5). Thank you for your consideration and cooperation. Very truly yours, "I;;;::RA [Ol~~ Michael C. Fox Associate Counsel mcflrah cc: James M. Talton Senior Vice President S .1UT0110N.LIlX'ORUSI'O\MCP\KL'iOAU..L n , t I i \ I I \ l f D ft-ill "'.':1." 11"1 "III HJ-.!~LI.4"L , I I .f, J '_' .'_'_ , ., , -~ ~ q:J . MAILING ADDRESS P,O, Co. J 165 Homsowg, PA 17105 . CI!N!RAL OFFICE 30 Hunler Lan. Camp Hili, PA 17011 . (717) 761.2633 . FAX (717) 975-5952 Rite AId Corporlltlon LEGAL DEPARTMeNT 1<<' fu tlffr /JIlt ,. Michael C. Fox Keith Kcndall .,. Nr. Ie hr 236.6602 _II.' 236.9539 September 26, 1996 fir 717-975.5952 _It 717-975-5805 M. Jeanne Fox This transmission consists of 2 pages, including this cover page. If you have any questions or problems with the receipt of this transmission, please contact Robbie Hockenbeny at 800.828-6811 x5314, Thank you. JII.tfI/t CONFIDENTIAL AND PRIVILEGED. Th< inlomutioo conl.1ined in this fmimil. is inlfnded f..-!be .01. us. of tho sddmsoollld moy conlOin infl>lTll.tion which i. privil'ged alll.I confideotisl. U lho readtr of this message I. nollbe inlendcd lCCipien~ or the employce or ag,ol "sl"'::.sible for dellvering tho menag.10 lbe Inlfnded recIpient. you are heleby notified that an7 dismninotiun. distribution or cupying of this coaunuoication llStriCUy ptohibilcd. U you ltCeivD this communicatiun In enU(, pie.... vruutdi,trly notify the pellun Iisltd above for InsU\lctioo. ~EiUding the return of lhe oriein3..1 mesn,gc 10 the sCllde:, ~ , E , r Kenda1k!w & f : 1,.1";'. , 'I. ( \ "",1: ,'I :. September 16, 1996 fAX Michael C. Fox, Esq. Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 RE: M. Jeanne Fox I. Dear Mr. Fox: Thank you for your letter of September 26, 1996. My client had already signed, and therefore accepted the terms of the Settlement Agreement, prior to my receipt of your FAX today. This, and your commitment letter of September 18, 1996 clearly evidence a binding Agreement. We will therefore forward the Agrcement to you for your client's execution and compliance with its tcrms. Failing that, I will recommend to my client that she sue on the Agreement and any collateral issues, including a count for abuse of process for your client's improvident appeal of the award of unemployment compensation to Mrs. Fox. Keit E. Kendall, Esq. KEK/slc Enc. cc: M. Jeanne Fox VERIFICATION I, M. Jeanne Fox, the Plaintiff in the within cause of action, verify that the statements made in this Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S., Section 4904 relating to unsworn falsification to authorities. Date: December 19, 1996 ,l ~ 'iJ . \....i? tly;y/J tU M.lne Fox, Plaintiff n lC) r) &1 (' --.J '" P ~., -' ?:> F T: -+:. fl ,;~' " ":. ,." -.-- r.!:. \l:. lr)~ :,:f ,- I . ,"T! ..l. , ',' o-J :v .l:. lJ'\ b L'1 ~: ~~ : :6 ~ .~., .: :13 -1 0 ~ C' , -I !f) - ,-:/ t .~"'.: . ~ ' 111 '.J li. "' ~ .. ~) .'. , ~ p -. '0 -. "].. 'i Sf 2L -c >- C') (; ,.,- .J " t. e": ,y.: I l.lJ . , , I'. , L., ':1 '-' L \, . - J II :-.j ... i '. H n :) LJ tl", 0 ~~ ~~ ol~ i~ ~ ~ ~ ~ ~ ~ ~ !ll!5 ;~ . ~~ ~'n ~ ,~ ,..,a: . :E ;. .,. . > . ~ h ... ~21 00: c.:I E-t :i! c.:I 0. ~ . . " ' ,:; .. -., ~ ,; ",,':':>:.: ~o l~ ~ ~, ~~g ~E~~ ~ ~ S1!gN ~QQ8~z;:;: ~ . olJ !< ~ D o ~ 1Il:I: c.. ~ 6~~ ~I;;::io ~ ~ O/Ui~ ~ i~:J~~ ~ r -: ",U '" .', , " ~i . . . . ," ". " ,.c, :,". ~. '/'.. .~. < ~ :~.' .," ' "," '-. ";..~'.~..,,:~~ ", '.;......,: .' . ~- . .'.. , M. JEANNE rex, Plaintiff ::r T::E Cet'RT C:' ~cr.!MC!i ?T ':'A.S ..........""..,T' """ "'C""''''''1' -'-is'n'r~ 'r:~ J\"'.'~""U..li.':'I~. J \,,-.1":'.. I :'':'.,~l __.....__ v. RITE AID CORPORATION, Defendant ::0. 97-89 CIVIL :'10T!aE OF APPEAL ?RCM A~-lA?J: OF ::CP_:l.!: C:' AIlEIT:lP.TCRS TO ,::::.:: ?RCT::C~rCTP_"'Y: ::oti,=e is gi'rer. ':::at Defendant Rite Aid Corporation o ""-al ~ '."~_ 0-,.. _:':-" w t!-.e a1-Ta:d of tl".e board of ar!:l'it::'atcrs er.terec i:: '.;:::!.s case on JulY II, 1997 A jUI'j" trial is cemar.ced m. ('::teak', 'ccx if a Jt:.='y t::,ial is demar.ced. Ct::e~-Tise j'..:...J :rial is va:!.'lee.) I :'1ereby .:ert1:'j t~~ (l) t~~ cc~ensat~:~ of ~~e ~bi:~eto~s ~AS :ee~ ;eic, or (l8<~xX~i2~JlJcM~X~~XlOOMx:ii1tXx;(!I~l!~xj(i1x,a;(xffi!i&xri: f~xJPal.t'lli~xXX~i1*1rilkx\llr:~~;!lxk;&Px;Mx~x~~xll)x Geor ~~ p~~e Ap~ellant :rC'!'S: T!-.e. cernane t'o:' jury trial or. appeal t'::'om comculsory arbitration is ~cuerned ':Jy :lule i007.1 (b). - (b) ~io africa 'Ii t or ';er1:'icat 1:m is ='9C;U :!.ree . ! 1 ~ , CF.RTIFICATF. OF SF.RVICE " I, Lori A. Sullivan, 'an authorized agent for Martson, Deardorff, Williams & Otto, hereby certify that a eDpy of the foregoing Notice of Appeal was served this dale by depositing same in the Post Offiee at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Stephen A. Miller, Esq. KENDALL MILLER, P.c. 3207 North Front Street Harrisburg, P A 17102 MARTSON, DEARDORFF, WILLIAMS & OTTO By L ri A. Sullivan en East High Street Carlisle, PA 17013 (717) 243.3341 Attorneys for Appellant Rite Aid Corporation Dated: August 8, 1997 'I1!Hl r'" .....1 I -- " :- - t-r.J (:> fit r--; ~ F i<1J t<. ~ r:.. /) If. I VI ~! ,I 0 , (n (ll . :,'" , :d ~ : ;; V iJJ 8 :.r, ,. "J -J ~ ....J :.< ~ f t , M. JEANNE FOX, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA " v. : CIVIL ACTION - LAW NO. 97-89 CIVIL RITE AID CORPORATION. Defendant . JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please enter the following into the record in the above matter: 1. Agreement and General Release between M. Jeanne Fox and Rite Aid Corporation; and 2. Letter dated August 22, 1996 from Keith E. Kendall. Esquire addressed to James Talton, Director of Human Resources, Rite Aid Corporation; and 3. Letter dated September 18, 1996 from Michael C. Fox, Esquire of Rite Aid Corporation addressed to Keith E, Kendall, Esquire; and 4. Letter dated September 26, 1996 from Michael C. Fox, Esquire of Rite Aid Corporation addressed to Keith E. Kendall. Esquire; and 5. Letter dated September 26, 1996 from Keith E. Kendall. Esquire addressed to Michael C. Fox, Esquire at Rite . d Corporation. AR ON. DEARDORFF, WILLIAMS & OTTO George B. Faller, Jr., Esquire J.D. No. 49813 Thomas G. Collins, Esquire I. D. No. 75896 Ten East High Street Carlisle, P A 17013 (717) 243-3341 Attorl1eys for Defendant Rite Aid Dated: ~11 ,c(9<6 I - , . . WHEREAS. M. JEANNE FOX, (herelnaUer "FOX/RELEASOR') has been employed by RITE AID CORPORA liON (horeinaUer "RITE AID"), end . WHEREAS, RITE AIO and FOX mulually desire 10 lorminale amicably FOX's employmenl end/or alliiiaiion with RITE AID, and 10 sollie and terminale eny and all claims, disputes, or olher mallors belween Ihem; IT IS HEREBY AGREED by and belweon RITE AID and FDX as lollows: 1. FDX's employmenl wilh RITE AID ended on August 9, 1996. 2. RITE AID will provide a severance package to RELEASDR 01: a) conlinous pay beginning August 9, 1996, and concluding December 7, 1995 ('severance pariod'); b) conlinuetion 01 benelils through the severanco period with deductions of employee porlion. Thereafter. benelils would be made available under the conditions required by Iha lew commonly relerrred to as 'CDBRA'; c) a lump sum payment 01 all accrued and unused and unpaid vacation time. 3. RELEASDR, lor and In consideration 01 the provisions of this Agreement, Bnd Intending to be legally bound, does hereby REMISE, RELEASE and FOREVER DISCHARGE RITE AID, its parent and affiliated corporate entities and Its and their officers, directors, employees and agents, ils and Iheir successors and assigns, heirs, executors and admlnlstralors. 01 and from any 2nd all manner of acllons and causes 01 actions, suits, debls, claims and demands whalsoevar In law or in equity, which RELEASDR ever had, now has I or hereafter may have, or which RELEASDR's heirs, successors I executors or administrators hereafter may have by reason 01 any maller, cause or Ihlng whatsoever, from the beginning 01 time to the date 01 these presents, and particularly, bul withoul tlmltatlon ollhe foregoing general terms, any claims arising Irom or relating in any way to RELEASOR's employmenl relationship andlor the lermlnatlon of RELEASDR's employment relationship andlor alfillatlon with RITE AID, Including, but nottlmited to, any claims which have been asserted or could have beon asserted or could be asserted now or In the luture undor any and all fOdoral, slale, or local laws Including Iha Age Discrimination In Employment Act, 29 U.S.C. ~621llUell. and any common law claims now or hereafter recognized (including. but not timited to, claims for wrongful discharge, Invasion 01 privacy and/or delamatlon). 4. Ills expressly agroed and understood Ihal RITE AID does not have and will not have any obligation to provide RELEASOR at any lime in the fulure wilh any paymenls, benefils, or considerations olher than Ihose reciled In Paragraph 1. 5. RELF.ASOR further egrees and covenanls that neither RELEASDR, nor any person, organization or olher entity on RELEASOR's behalf, will file, charge, claim, sue or cause or permit to be filed with any Stale or Federal Court or agency any action or proceeding for legal or equitable relief (Including damages, InJunctive, declaratory, monetary or other reliel) Involving any mailer occurring any time in the past up to the date 01 this Agreement and Release or Involving any continuing elfects or any acls or practices 01 RITE AID which may have arisen or oc:urrod prior to the dale 01 this Agreement and Release. 6. RELEASDR hereby agrees and recognizes that RELEASDR's employment relationship with RITE AID has been permanently and Irrevocably severed and that RITE AID does nol have any obligation to hire, rehire. or reemploy RELEASDR In the future. Exhibit "A" . 7. RELEASOR .gre..la.nd aCknowledges thai this Agree,:"enl and the IU menl and lermination 0' eny cla.lms aga~sl RITE AID as set fOr1h herein, are nol and :~el~ nol be conslrued 10 be an admlSs,on 01 any vlolaUon 01 any duly owed by RITE AID 10 RELEASOR under any 'ederel. slale. or local statute or regulellon and that RELEASOR's execulion 01 thIS Agreement and Release are made volunlarily to provide en amiceble conclusion 01 RELEASOR's eC1p~oymenl relalionshlp with RITE AID. B. Ills agreed and underslood that nellher RELEASDR nor RITE AID shall engage In any conduct or communication which shall disparage one anothar or interlere In any way wllh each other's exisling or prospective business relationships. 9. RELEASDR certifies that RELEASOR has been advised of his right to consult with an allorney prior to execuling this Agreement. 10. RELEASDR certifies Ihal RELEASOR has been given a period 01 alleast 21 days within which to consider this Agreement. 11. RELEASDR certilies thai RELEASDR Is aware that 'or a period 0' 7 days lollowlng the execullon 01 this Agreement. RELEASDR hes the rlght 10 revoke the Agreement. The Agreemenl shall not become enlorceable untillhe revocation period has expired. 12. RELEASDR hereby certllies .hal he has read Ihe terms 01 this Agreemenl and Release and Ihat he underslands 115 terms and ellects. RELEASDR further acknowledges that he Is execuling this Agreemenl and Release 01 RELEASDR's own volition end wllh the Inlention 0' releasing all claims recited herein In exchange for the consideration described herein, which RELEASOR acknowledges Is edequate and satisfactory to RELEASDR. Neilher RITE AID nor ils agents, represenlallves, or allomeys hava mada any rapresentation 10 RELEASOR concerning the terms or ellecls of Ihls Agreament and Release other than Ihosa conlained herein. RELEASDR further agrees, covenants and promises Ihat he will not communicate or disclose the 16rms 0' this Agreemenl end Release or the selllemenl 01 all potential claims agalnsl RITE AID as described herein to any persons olher than RELEASDR's allomey, RELEASDR's accountanl and RELEASDR's immediate lamlly. INTENDING TO. BE LEGALLY BOUND HEREBY, RELEASDR and RITE AID execute the loregolng Agreement and Release this _ day of , 1996. Witness [}7~_vli8f M. Jr NE FDX RITE AID CDRPDRATIDN by: A~~I:' . ~ .. ~l~\: (I) prt;':'~', . ''I (11110 ]~'I):' ,,/.'IlI. "~lIli .';I~d tI(I((I~lJlj/O.IJ'.!n1I~:;\urlla IllflJ 711.: J6.?~J'J ,71.'-230-6601 Fr:\' r: fl .[ f ~( ~I August 22, 1996 James Talton Director of Human Resources Rite Aid Corporation 30 Honter Lane Camp Hill, PA 17011 I RE: M. Jeanne Fox Dear Mr. Talton: I have been consulted by a former emplDyee of Rite Aid, M. Jeanne Fox, regarding her recent tennination from employment with Rite Aid. She has retained me to negotiate an amicable severance of her employment. I have detennined that the circumstances surrounding her tenninatiDn present several potential avenues of legal redress. However. I understand that you have offered a severance package to Mrs. Fox that includes a provisiDn for 4 months's "severance pay." I have advised her that the amount offered is adequate, but that the agreement should include some additional safeguards. Therefore, Mrs. Fox will sign a Release of Claims or Settlement Agreement that incDrporates the following additional terms: 1. Lump sum payment of the 4 months' salary. in order to avoid problems with her unemployment compensation claim that the appearance of ongoing salary receipts cDuld create; 2. Health insurance and prescription benefits coverage fDr 4 months, or until she obtains employment that will provide equivalent coverage; 3. Non.opposition to her claim for unemployment compensation benefits; 4. Purge her personnel file of any negative performance or misconduct references; 5. Assure her of a positive, or at least neutral reference to prospective employers who request a reference; and 6. Payment of all accrued vacation leave. Exhibit "B" Upon compliance with these terms, Mrs. Fox will release Rite Aid from all liability that could result from her termination. Please advise us of Rite Aid's position as soon after receipt of this proposal as possible. Thank you very much for your time and allemion. KEKlslc cc: M. Jeanne Fox September 18,1996 Keith E. KendaU, Esquire 3.."07 NoIth Front SlnlBl Harrisburg, PA 171 10 Via Fu 23U6D2 ItId RI{lUW IIIJJ Re: M. Jeame Fox Dear Keith: This letter will confirm OUT telephone conference of September 17, 1996, in which we discussed Ihe issues ralsed by your letter of August 22, 1996, As a result of that conference. I believe that any and all outstanding Issues have been resolved. The isSues referenced in your letter as numbers " 2 & 6 are provided to Jeanne in paragraph 2 of 1Ile Agreement and General Release. Additionally, Rite Aid wUI nol oppose a claim by Jeanne for unemployment compensation benerita; her plrsonnel me will be purged of any negative performance or misconduct references; end prospective employers wiU receive only a neutral reference. Accordingly, please have Jesme execute !he Agreement end General Release forwarded to her previously, and this letter shaD represent a binding commitment by Rije Aid on the other \I1lee issues ralsed in your letter of August 22 (paragraphs 3, 4 & 5). Thank you for your consideration and cooperation. Very truly yours, RITE AID CORPORA ON ./ ~L- 0f;P Michael C. Fox Associate COlllseJ mcf/rah cc: James M. Talton Senior Vice President J.\11lGTION'.LIC'COla~DA1.LL'" 10 'd Exhibit "C" 2S6SSL6L1L 'OH Xij~ ld30 lij!l31 ES:~O 03M 96-Bl-d3S . . , '. '. -' . . ' . '. ." '::;. ~.' "'_~J.. LEGAL OePARTMeNT september 26, \996 Kei1h E. Kendan, Esquire 3207 NolIh Fronl Slleel Harrisburg. PA 171\0 Re: M. Jeame Fox VII FIX 236-6602 .nd Regula' Mall Dear Keith: This letter win oonstilulB formal revocation by Rite AId of the ou\s1anding selllemenl agreemant tranSmilledto you OIl Seplember 18,1996. 1\ was Rite p.Jds inlention thaI JeaMe would cantflUe to receive her salary end benefits for a period at tine, and thaI shB would lhen be eligible for unemployment compensation if she was not reemployed by that line. Collecting unemployment and salary from Rite Aid Is inconslstenl with our illentions. If Jeanne wants to callecl unemployment. then she may do 50, BOO our prior offer to her Is revoked. Please call me a1975-580510 discuss this maner further. It would be my hope that we merely have a mlsunderstandflg, and thaI we can wor\( this maner oul satisfactorily 10 bolh JeaM9 and Rae AId. Very truly yours, RITE AID CORPORATION ~\U1r Michael C. Fox Associate Counsel mcflrah cc: James M. Tallon Senior Vice PreskJenl J<UTC.'JOHUG'CO~VlD.uL LT1 [ , '" ~' : ~ (I";.' l,j", September 26, 1996 fAX Michael C. Fox, Esq. Rite Aid Corporation 30 Hunter Lane Camp Hill, PA 17011 RE: M. Jeanne Fox Dear Mr. Fox: Thank you for your letter of September 26, 1996. My client had already signed, and therefore accepted the terms of the Settlement Agreement, prior to my receipt of your FAX loday. This, and YDur commitment letter of September 18, 1996 clearly evidence a binding Agreement. We will therefore fDrward the Agreement to you for your client's execution and compliance with its tenns. Failing that, I will recommend to my client that she sue on the Agreement and any collateral issues, including a count for abuse of process for your client's improvident appeal of the award of unemployment compensation to Mrs. Fox. KEK/slc Ene. cc: M. Jeanne Fox Exhibit "E" PRAECIPE FDR LISTING CASE FDR ARGUMENT (I'lJSt be typewritten and subnitted in duplicate) i , TO THE PRDTHONDTARr DF CUMBERLAND COUNTr: , Please list the within matter far the next JU'lpnent Court. --------------------------------------------------------------------------------------- CAPTION DF CASE (entire captioo nust be stated in full) M. JEANNE rox, ( plaintiff) w. RITE AID <XlRPORATIOO, ( Defendant) No. 97-89 Civil 19 1. State matter to be argued (i.e., plaintiff'S lIDtioo far new trial, defendlmt's dmurrer to ~t, etc.): Motion of Defendant Rite Aid Corporation for SlllTIl\arY Judgment 2. Identify counsel who will argue case: (a) far plaintiff: Stephen A. Miller, Esquire Address: 3207 North Front Street Harrisburg, PA 17110 (b) far defendant: Tharas G. Collins, Esquire Address: MARTSON DEI\ROORFF WILLIAMS & arm Ten East High Street Carlisle, PA 17013 3. I will notify all parties in writing within be days that this c:ase has been listed far argunent. ,-- '.~\ 4. Arg\mellt Court Date: August PRAECIPE FOR LISTING CASE FOR ARGUHENT (...t be typeai.tteD cYId subnitted in dl~ll,....te) ~ TO THB pRQTHOHOTARY OF CUMBERLAND COUNTY: Pt.e.e list tJI8 within IlIIItter for the nat ~t Cl:lurt. CAPTION or CASE (entire captioa nust be stated in full) M. JF.N<<lE role, I Plaintiff) vs. RITE AID a:IU'C1lATICN, . I' I DefeniaDt) No. 97-89 Civll 19 1. State IIIlItter to be ~ (i.e.. plaintiff's 1IIllt.i.cn far ~ triaL ~t's delPnTer to ~ll1int. etc.): ' Motioo of Defendant Rite Aid corporatioo for SlmnarY ~ut:llt 2. Identify ~ WID will ~ case: (a) far plaintilf: Keith E. Kendall, Esquire 1tdlh._: 3207 North Froot street HarrisWI'g, PA 17110 Ib) far defendllnt: 'ltanas G. e>>llins, EsqUire 1tdlh.~: MAIn'SCN DE'.ARIXm'F WILLIJ\MS & arm Ten East High street carlisle, PA 17013 3. I will notify all parties in writing within bID dlIyB tbat this case hils been listed for ar'9JIII!I1t. ~ 4. Arc,pnent C'a1rt Date: Dctober 7, \ \ . \ . \ 1998 \~\, \~son' f Wi\U,,~ & Dtto .0 ~~',..J"> Thanas G. Collins, Esq. Attorneys for Defendant Dated: 7/31/98 0 \.-:-l "'1 c:: CJ " :-v "T" .... cr'" /. ;...; :_~) (J) , J. .. - I ~ ~ I t - , - -p ;,. :.1 , ~:. f ..J -< (.; . -- If) .. j " I .' c: .. i": :-1 ~l " ':j " , ,. ~j: I ; , ..- , -I' -_t T ' \'.,J ( .~~ 'I " " I [~ , Cc. " " '" II I, v; .. " ('; ~ U c.r. 0 U. ~ u- ~ ~~ ~ eX '2 ~ ::1 ~ ~J ;:::: ~ ~ ell ..... ::> "0 0.0. c:: N.~ Q) ..., ::: ~ = Kendall Miller, P. C. , 3207 North Front Strcct Hnrrisburg, Pcnnsyh'anin 17110 M, JEANNE FOX. PlaIntilT IN mE COURT OF COMMON PLEAS OF CUMMBERLAND COUN1Y, PENNSYl.VANIA VB. No 97-89 Civil RITE AID CORPORATION. Defendant Jury Trial Demanded PLAINTIFF'S RP.~PON~P. TO DEFENDANT'S MnTION FOR SUMMARY JUDGMENT NOW COMES the Plaintiff, M. Jeannc Fox ('Plaintiff''), by and thmugh her attorney, Kdth E. M'tIdaII, Esq., to respond to Motion of Dcfendant Ritc Aid Corporation C'Dcfendant'') For Summary Judgml'tlt, by l'Vl'tlly-numbm'() paragraphs, as follows: 1. Admittl-d. 2. Admitted. 3. Admitted. 4. ildmitted. 5. !\dmittl'(). 6, Admittl-d. 7. Admitted. 8. Admitted. 9. Admiltl1! that Defl11lLtl1l altl'lllpIl1!. by a ll'ltlT FAXeo to Plaintiff's altOnllj'S office on Sl-ptl'lllblT 26. 1996, to revoke its "binding commilml1lt by Rile Aid" of SllJtl1nblT Ill, 1996. IloWl'VlT, Plaintiff's ah'fl't.'Illl11l with Rite Aid bl'CUlIl' a conlTact on SllJtl'lllbLT 1 II, 1996, by its binding commitrnl11t onthatlLtte, am! was fonnally ('Xl'C\11111 by Phintiff on Sl-ptl1nblT 24, 1996. in any CVl11t, prior to its altl'lllptl1! revocation, and with PLtintiff's knowk1lh'C of thc rl'Visco terms sct forth in DcfL11dant's leltlT of Sl-plL'IllblT Ill, 19% (Sl'C Exhibit 1). to. Admiltl'll that on Sl-ptl'lllblT 26, 1996, Plaintiff's altomcy forwank'll thc Agn.'l'llll11l Signl'll by Plaintiff, to Dcfl1ldanl. Dl11il11. that Plaintiff fuik1! to communicatc hlT accl-pt:lnCC of Rile Aid's "binding commitrnl1lt" prior to Defl'lldalll's IcltlT of St-plL'Illbcr 26, 1996. On thc conlTary. Dcfcndant's ah'l1It. Michael Fox, calk'll Plaintiff's altOnllj early on the mOnling of St-plL'IllblT, 26, 19%. prior to thc FAX f('\'ocation altempt of Sl-Plembcr 26. 1996. rl'Ccivl-d in Plaintiff's altOnllj'S office at 9: 17 A.M. on the mOnling of the 26th. During that conVl':-!<ation, Defl11dant was made aware of Plaintiff's accl-ptancc of Defendant's binding commitrnLlll. 'I1JC original notes of Plaintiff's altOnlLj, during the phonc caI1, arc attached hereto at Exhibit B. 11. Admilted. 12 Plaintiff did first aCCl-pt Defl'lldant's binding commitrnl'llt of St-ptembcr 18, 1996, on Sl-ptemblT 24, 1996. Plaintiff's accL-ptancc didn't have to be communicated to Defendant, since it had already made a binding commitrnl11l, which was not withdrawn prior to Plaintiff's accL-ptancc on Sl-ptl'lllbLT 24, 19%. 13. Admiltl'll. '1 14. Admittl-tl that a valid rt'V(lCItion of an offt'!' must OCCUf priOf to aCCl'[ltance. 1 [owt'Vt'!', in this case, Rite Aid's binding commitml1lt wasn't rt'VOkl'l[ priof to its accl'[ltuICl'. 15. Admittl'llthat an accl'[ltance of an unconditional offl'!' m-ates a binding contract, which is prt-ciscly what occurrt'll hl'!'e, belWl't11 these panics. It is undisputt-tl that tht'!'e was a "mt'Cting of the minds" as to the tl'l1l1S of the contract itsdf. Defl11dant only disputl-tl the contract aftt'l' considlTation of a COllatl'l'al mattt'!' 0'laintiff's t1ltitlt'lllt1lt to unt'lllployment compensation bt1lefits) which had nothing to do with the tt'l1l1S of the contract. 16. Dl11it'll that the datI'll C1sclaw citl'll by Dcft1ld'Ult controls, Of is cven appliClble to tllis situation. Deft1ldant's offt'!' was a "binding commitmt'llt" tlut didn't cven contemplate acct'[ltance. l'urtht'!', Plaintiff did communiClte ht'!' accl'[ltulc:e to Defendant, through counsel, prior to Defendant's attt'lllptl'll rt'V(lCItion of St'[ltembt'!' 26, 1996. Finally, it is subject to some dispute tllat an acceptulcc actually nl't'llt'll to be fonnally communiCltcd in this situation. 17. Admittt'll that the use of tile rruul is an appropriate means of acceptance of the It'l1l1S of a contract, as was t'lllployt'll by Plaintiff in tllis case, by forwanling her acceptance to her attorney, complete witll its posting on St'[ltl'lllbt'!' 24, 1996. 18. Admittt'll that Defl1ldant attt'lllptt'll to ft'Voke il~ binding commitment to Plaintiff. Denil'll that it was able to do so prior to Pl.1intiff's acct'[ltance on September 24, 1996, first communiCltc to Deft11dant by tdl'[lhone on St'[llt'lllbl'!' 24, 1996. 19. Dt1lil'll. On tile contrary, Plaintiff's ext'CUtion of the offer, on September 24, 1996, crcatl'l[ a binding contract, and hI'!' posting of that acct'[ltance on September 24, 1996, was adl'lluate consummation of the contract, undt'!' current law. . 1 f 20. Dll1iloU that thl'l'C arc undisputloU facts. For example, by its use of the tl'nn "allcgt.-dly," in rcfl'l'CllcC to Plaintiffs date of accl'[ltance of the a/,'I'l.'t.11ll1It, Defll1llant in effl'Ct admits that the date of accl'[ltancc is in dispute. Anothl'!' example a disputtoU fact is the qUl'Stion of Whll1 Plaintiffs accl'[ltance was first communicatl'(lto Defl11dant, which Plaintiff submits wa~ vl-rbally accomplishl-d on the morning of Sl'[ltl11lbl'!' 26, 1996, prior to Defll1dant's attl11lptloU Date: September I, 1998 , cith E. KCII I, Esq. Attorney For Plaintiff 32JJ7 North FmlltStrect Harrisburg, PA 17110 (717)236-9539 (717)236-6602 FAX rcvocationlctter of that date. WHEREFORE, Plaintiff rt'qUl'Sts that Dcfmdant's spunous motion for summary judgml11t be dcnil-d, and that the first available date be set for the trial of this mattl'!'. Respectfully submitted, Kenckll@w /,', : , " . .,.. "',' September 20, 1996 . Sincerely, ~fd~ Keith E. Kendall, Esq. M. Jeanne Fox 412 Hillside Avenue New Cumberland, PA 17070 Dear Mrs. Fox: Enclosed please lind a copy of letter we received recently from the attorney lor Rite Aid. Please review the letter, and conlirm that you are willing to settle in accordance with the terms therein. KEK/slc Ene. I r B ~ 9fL, . ~- rVL- <: /J~ ., () cy.~ ~ , \ -A-s>: J~ ~.- ~ 9.-y , .~ , ~... ~f1' -1-_ . -~ ~~!~"L-4a_.-,.,A.-J p ~_ ~ ~~.(e) ~:tLi. u (e _~d \ _--I 'IJ. . ~ J!:., .' · . t 1.l- ,. .' ^' ~. :~... ~ * ~ ~ ~ c:.A> -' ,)~..~. - ..a * 3- I ~ /''' (] r ~-~/~ , ~ c _~ ~ . - :> - vt-e-.:I- ~oL " ~..... ;<... - -:.J .-<L -" ___ f!!!I n ...., '~. . - ~ . 3) ft- H":~~ :t:~. '../~ ....g . .' -'.' :..s . <Ur-~ . , :.- f' '" .t2 . (.J. (/ ~- ,IJ... ;/. JI - ~ - ~ '.J _, (tin ~ . t- =>., .- .....>.RJZ -~.. ~~ ..J!~~ . ; .... . I>..~~ - " ~~~ ' ~ ---.Y - ~ . ;:;-: C &I {( <<--<' " ~.,J ~ ~ 3;e:?- C-Cl - - .L,)"', t - , " I CFRTlPTCATKOB ~ERVICE I, Keith E. Kendall, ES(I., Attonlt'y fi}r Plaintiff, ht'fCby Ct'rtifY that 1 havc this datc scrvt-d a truc and COrrt'Ct copy of the fOrt'going Rcsponsc To Motion Of Dcfendant Ritc Aid For Summary Judgment, on Defendant's Attonlt'y, by first class U.S. 1\fajJ, posttgc prt'Paid, addressed as follows: 'lbomas G. Collins, Esq. Mattson, Deardorff, Williams & Otto Ten East High Street Carlislc,PA 17013 Date: September I, 1998 ~~4-, ~~dall,Esq. Attomt'Y for Plaintiff , t I I ! , I ~ >- ". i~ 1'- ~.:, t--. , UJ( ; .C ~2;. 1.1... " L'_ (J~ C:I "I : l~! ' I [Cl 0... I,U ~,. ll.' Ii;'" (;; 10. U) ';j (,) C' () c.J = c..: ~ ~ w .. I-i lfl '2 ~ c"S 0:; ~ 2 ::E '€ J! ::; ~ el> "9 l:) ~ .... N.\: ~ "'~ , Kendall Miller, P. C. 3207 North Front Sneer Harri,burg, Pennsylvania 1711 0 PRAECIPE FDR LISTING CASE FDR ARGUMENT (Must be typewritten and sutmitted in duplicate) , TO. THE PRDTHDNDTARY DF CUMBERLAND COUNTY: please list the within matter for the next ArgUnent Court. --------------------------------------------------------------------------------------- , CAPTIDN DF CASE (entire caption must be stated in full) tI. JEAWWE FOX. (Plaintilf) " I vs. RITE AID CORPO.ATIO~. I..: ( Defendant) No. 97-89 Civil 19 1. State matter to be argued (i.e.. plaintilf's IlDtion for new trial, defendant's demurrer to complaint. etc.): Plaintiff's ~otion for Sa..ary Jad&.ent 2. Identify counsel who will argue case: (a) for plaintilf: Address: ~eith F.. ~end.ll. Esq. 1207 Worth Front Street Rarrisbar&. PA 17110 (b) for defendant: Address: Tho.as G. Collins. Esq. ~artson. Deardorff. Villia.s & Otto Ten East ni&h Street Carlisle. P a 17013 3. I will notify all parties in writing within t...u days that this case has been listed for argunent. 4 . J\rgIJ'neI1t Court Date: October 7. 1998 Dated: /,. . - l. ~-\. __ ; ) / Attorney 04- <;--: .'.'. ./,/. /' --. ( /. ~ for M. JEANNE FOX, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. 97-89 CIVIL RITE AID CORPORATION, Defendant JURY TRIAL DEMANDED DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JlJDGMENT AND NOW comes the Defendant, Rite Aid Corporation, by and through their counsel, MARTSON DEARDORFF WILLIAMS & OTIO, in response to the Motion of Plaintiff, M. Jeanne Fox. for summary judgment. I. Denied. By way of further response, the averments of this Paragraph constitute a conclusion oflaw requiring no responsive pleading. To the extent an answer is deemed required, it is specifically denied that Plaintiffs Complaint sets forth the necessary elements to make out and prove any breach of contract by Defendant. By way of further response, it is specifically denied that any contract or agreement was reached between the parties. 2. a-d. Denied. By way of further response, the averments of this Paragraph constitute a conclusion oflaw requiring no responsive pleading. To the extent an answer is deemed required, it is specifically denied that any contract was formed between the parties. It is admitted that an offer of severance benefits in exchange for a general release was made to Plaintiff. However, said offer was timely revoked by Defendant prior to Plaintiffs acceptance of same. 3. Denied. By way of further response, the averments of this Paragraph constitute a conclusion oflaw requiring no responsive pleading. To the extent an answer is deemed required, it is specifically denied that any contract was formed between the parties. 4. Admitted in part and denied in part. By way of further response, it is admitted that there are no genuinely disputed or disputable issues of fact or law remaining for decision in this mailer. It is specifically denied, however, that Plaintiff is entitled to the entry of summary judgment on her Complaint. - ~ WHEREFORE, Defendant respectfully demands that Plaintiff's Motion for Summary Judgment be denied. Respectfully submitted, Mft; TSON DEARDORFF WILLIAMS & OTTO George B. Faller, Jr., Esquire I. D. Number 49813 Thomas G. Collins, Esquire I. D. Number 75896 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: September 18, 1998 \ f, . CERTIFICATE OF SERVICE I, Denise L. Nye, an authorized agent for Martson Deardorff Williams & Olto, hereby certifY that a copy of the foregoing Defendant's Response to Plaintiffs Motion for Summary Judgment was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Keith E. Kendall, Esquire 3207 North Front Street Harrisburg, P A 17 I 10 MARTSON DEARDORFF WILLIAMS & OTTO CfiM~ (fy J~ Denise L. Nye Ten East High Street Carlisle, P A 17013 (717) 243-3341 Dated: September 18, 1998 F 'J'llES'Jl"TAF1ll:."\l.iEN['O('9lfJl7111IANSI ... (') \0 ~ ~ OJ "",:"),: ." .~j ell":1 ,., '"'".l .I1:r1 ~:. - .~~ ~..:'.' .:0 ~...(.j "T' '-Jr?, :..'~ ' -- C):t\ ." "0" ...( ....C: s:: ..rn /. ~ 3. :;) ~ '-< M. JEANNE FOX, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V, RITE AID CORPORATION, DEFENDANT 97-0089 CIVIL TERM BEFORE BAYLEY. J, and HESS, J. ORDER OF COURT AND NOW, this 8th day of October, 1998, the motion of plaintiff for summary judgment and the motion of defendant for summary jUdgme~RE DISMISSED, By Jhe Cou , <1 (. Keith E. Kendall, Esquire For Plaintiff c.~~("'I'T"<l-J.,A. I rj? /q'I. ...1>.1'. Thomas G. Collins, Esquire For Defendant :saa ';!;;~~ ~.Lr~~ ( . ,....r '.',; ~ f ~ (" . ,. C;?, ('-1 - ~ :'1: ~, ~ !i , ~ 1 C~',. i: ~ - ~ M JEANNE FOX, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : NO, 97-89 CIVIL RITE AID CORPORATION, Defendant : JURY TRIAL DEMANDED DEFENDANT RITE AID CORPORATION'S ANSWER TO PLAINTIFF'S MOTION FOR PROTECTIVE ORDER PURSUANT TO PA R C P 4012 I. Admitted. 2. Admitted. 3. Admitted. 4. Denied as stated. By way of further response, it is admitted that Defendant Rite Aid Corporation appealed the arbitration award dated July II, 1997. 5. Denied. By way of further response, it is specifically denied that the parties had agreed that discovery was ended. It is admitted only that Defendant filed its Motion for Summary Judgment on June 17, 1998. However, "[a] party may bring a motion for summary judgment before discovery has been completed." 3 Goodrich-Amram 2d Section 1035(a):3; Pa. R.C.P. 1035.2; Kitchin v Farber. 20 D.&C. 3d 11 (1981). 6. Denied. By way offurther response it is specifically denied that the instant matter is ripe for trial. To the contrary, Plaintiff raised material issues of fact for the first time in opposition to Defendant's Motion for Summary Judgment with respect to when Plaintiffs counsel notified Defendant of Plaintiff s alleged acceptance of Defendant's offer. Defendant is entitled to explore such issues through discovery prior to trial. It is admitted that both Plaintiffs and Defendant's Motions for Summary Judgment were dismissed on October 8, 1998. 7. Defendant has no knowledge or information as to the financial relationship between Plaintiff and her counsel. The allegations of this averment are therefore admitted based upon information received. 8. Adn,itted. 9. Denied. By way of further response, Defendant revoked the offer to Plaintiff ~ facsimile on September 26, 1996 prior to Plaintiff s counsel communicating Plaintiff s alleged i ~ , , I I , . I I ! r . I acceptance to Defendant. (5<< Affidavit of Michael C. Fox attached hereto as Exhibit "A". Mr. Fox's Affidavit has also been filed of record). Plaintiffs counsel's recent assertions to the contrary were not raised priDr to the filing of Defendant's Motion for Summary Judgment. In light of such recent assertions, Plaintiffs counsel is now a material fact witness in the instant matter. lOa-c. Denied, By way of further response, it is respectfully submitted that Defendant should be pennitted to pursue further discovery in light of Plaintiff s counsel's recent assertion that he advised Mr. Fox that Plaintiff had accepted the Dffer prior to the September 26, 1996 facsimile. Plaintiffs "expenses" and "burden" in attending her own deposition do not warrant denying the Defendant the opportunity to depose Plaintiff and a material fact witness prior to trial. WHEREFORE. it is respectfully demanded that Plaintilrs Motion for Protective Order Pursuant to Pa. R.C.P. 4012 be denied. 0\ DEARDORFF WILLIAMS · OTTO BY~ ~ ~\\..__~ George B. Faller. Jr., Esquire I. D. Number 49813 Thomas G. Collins, Esquire I. D. Number 75896 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant Date: \ \ I '2.. S 1 '" 'i COMMONWEALTH OF PENNSYLVANIA ) :SS. ) COUNTY OF CUMBERLAND AFFIDAVIT Michael C. Fox, being duly sworn according to law, deposes and says that the facts set forth in the foregoing Affidavit are true and correct to the best of his knowledge, information and belief. I. I was employed by Rite Aid Corporation as Associate Counsel in September of 1996. On September 17, 1996, I had a telephone conversation with Keith E. Kendall, Esquire, with respect to the terms of a severance agreement which had previously been offered to M. Jeanne Fox by Rite Aid Corporation ("Rite Aid"). Several additional terms were discussed during such telephone conversation and Rite Aid's offer to provide Ms. Fox with severance benefits was modified as evidenced by my September 18, 1996, correspondence to Mr. Kendall. 2. On September 26, 1996, I revoked the outstanding offer to W'Fox ~ facsimile after it was brought to my attention that Ms. Fox had filed for unemployment compensation benefits. It was my understanding that Ms. Fox would not simultaneously receive severance benefits from Rite Aid and unemployment compensation benefits during the severance period. At the time of such revocation, Mr. Kendall had not communicated Ms. Fox's acceptance to me. I first became aware of Ms. Fox's alleged acceptance when I received Mr. Kendall's facsimile dated September 26, 1996. 3. Mr. Kendall's facsimile dated September 26, 1996, was received by Rite Aid Corporation subsequent to the revocation of Rite Aid's offer ~ facsimile on the same date. Further, Mr. Kendall did not advise me in any phone conversation that Ms. Fox had accepted Rite Aid's offer priO<loth, r.a;,"'''~~lioo d",dS""mb,, 26, "9'. I fAAAt,,'vlftl e ~ Michael C. Fox Sworn to and subscribed before me thi~'flIay nf ~,,"":~., , 199~. ~:;bli~<-'~' V}.y,,,,-,,,- F\Fll-ES\DAT,\JU ~1C.F.NDOCfN7I7IAfT ~Cjl UNOA L llllQWll --,Nlllc. Eat Pw.lIbonl Tw,.. Cumberland CountY U,CammIIl'1 , Eoplra June 1Uooo EXIIffiIT "A" ~ , . .. .- ~ .... ~."" VERIFICATION The foregoing Defendant, Rite Aid Corporation's, Answer to Plaintiffs Motion for Protective Order Pursuant to Pa. R.C.P. 4012 is based upon information which has been gathered by my counsel in the preparation of the lawsuit. Thc languagc of thc document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to thc best of my knowledge, information and belief. To the extent thatthc content ofthc documcnt is that of counscl, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. F\f1LES'DATAflLOOENtx:X'9I'mllANS 2 I t I I I I I j MDW&:O hi' 'j(\IIII<":' Al'\I' I . "\1'\1" ~(\ AII\m....ln&CIl\'....'llll*'.\II.\W Wllll\\IF.f\f\II['ll\; J\lII~ n. hl\\llft III lhNJlI K.ll'Allllllllll Tllll'I^~J. WIII I,"l' . hlIV. Olltl "' Snl'llI~ l.. HIIWI,',t GltllUiI-, n. F\lIl1t Ill.' MUllAH J.lhsll Tlu I~f,\\ (;, Ct 11111'0.' eMU c. RI\{'II IhNJ....'t1~ 'J: \'V.\lH'.11l TI>.,; [\'1 Illt,1I SltU11 C\Hll'll. PI',J'\;'\I\',-\SI,\ 17111.\ TIIII"IOSI F.\l\I\l111 1f\:111l>";11 (71:j 24.".\.\-11 (717) 2l}.JR')O WWW.l1ldw().nHlI November 30, 1998 'BIl\~llCllllIIIlIICr\'1I T~'\l .s"l' I\II-l The Honorable Kevin A. Hess Judge, Cumberland County Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: M. Jeanne Fm( v. Rite Aid Corporation No. 97.89 Civil. Cumberland County C.C.P. Our File No. 8787.1 Dear Judge Hess: In response to the rule issued in the above referenced matter on November 25, 1998, please be advised that Defendant Rite Aid Corporation filed its Answer to Plaintiffs Motion for Protective Order Pursuant to P.A. R.C.P. 4012 on the same day that the rule was issued. Accordingly, the discovery conference may now be scheduled at your convenience. Should you have any questions, please feel free to contact me at the above number. Very truly yours, ORFF WILLIAMS & OTTO av/' Thomas G. Collins TGC/dln cc: Keith E. Kendall, Esquire F \flLE..'>\[l,\ T AflLE\GENL TR9I' .1711I.JII1 I N I (l It ~I AI I (l N . A II V ICE . A II V 0 C ^ C Y '" M. JEANNE FOX, Plaintil1. IN TIlE COIJRT OF COMMON PLEAS OF ClJMIIEIU.AND COlJNTY. PENNSYL VANIA vs. 97-00H9 CIVIL RITE AID CORPORATION, Dclendant CIVIL ACTION -LAW IN RE: MOTION FOR PIWTECTIVE ORnER ill ill1ill. AND NOW. this r day of January. 19l)9. thc pcnding motion for protcctivc ordcr is GRANTED in part. It is dircctcd that plaintiff and plaintiffs counscl forthwith furnish dclendant with aflidavits conccrning thc cvcnts relcvant to this casc which occurrcd following thcir rcccipt of Mr. Fox's Icttcr of Scptcmhcr I H. 1996. BY THE COURT, Keith E. Kcndall. Esquirc For thc Plaintiff f~. A J. K7'A. Hcss, 1. 1/8/'1'1. ...J.'f'. Thomas G. Collins, Esquirc For thc Dcfendant - e~J;l.l..~~ (.,;~(,L :rIm "'. ..... PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and subnitted in duplicate) 'TO THE prorHOl'Ol'ARY OF CUMBERLAl'l> COUm'Y Please list the following case. (Check one) I for JURY trial at the next tenn of civil court. for trial witoout a jury. ----------------------------------------- CAPTION OF CASE (entire caption lIUst be stated in full) (check one) Civil Action - Law ( :I) Appeal from Arbitration (other) N. .JEA.JIIE FOI. (Plaintiff) vs. The trial list will be called on4/20/99 and Trials commence on 5/10/99 RITE AID CORPORATIOJII. (Defendant) pretrials will be held on 4/28/99 (Briefs are due 5 days before pretrialS.) vs. (The party listing this case for trial shall provide forthwith a copy of tpe praecipe to all counsel, pursuant to local Rule 214.1.) No. 89 Civil 19 97 Indicate the attorney who will try case for the party who files this praecipe. ~eith E. ~ead.ll. 3207 JIIOT~b Froat Street. Rarriabar . PA 17110 Indicate trial counsel for other parties if !<navm: Tbo..a G. Collilla. Eaq.. Ten Eaat Bleb Street. Carliale. PA 17013 This case is ready for trial. ---./ Signed: Date. ~/.3 /9T I I Print Narre. Attorney for. ~LA I w" Fr ~ t " " ,1 'J ., -., I ., 1.1] , , . I ,q .J ~ rl) , o. " JI:) ," :;.~ J , ,. :ij q:' -<.: t. '. vs. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW M. JEANNE FOX, Plaintiff RITE AID CORPORATION, Defendant : No. 97-89 CIVIL IN RE: PLAINTIFF'S ACCEPTANCE OF DEFENDANT'S OFFER DECISION OF THE COURT HOFFER, P.J.: This case involves a contract issue that was submitted to a Jury for determination of two simple factual questions. The answering of those factual questions completed the Jury's work, and both parties agreed that the remaining issue was a matter of law for the court to decide. The issue in this opinion is whether plaintiff's signing of an agreement and forwarding it to her attorney constitutes acceptance of the agreement. We hold that it does not. FINDINGS OF FACT Plaintiff M. Jeanne Fox was employed by Defendant Rite Aid in its customer service department from January 21, 1994 through August 9, 1996. Defendant terminated plaintiff's employment on August 9,1996. Upon termination, a severance agreement entitled "Agreement and General Release" (hereinafter "Agreement," submitted as "Plaintiff's Exhibit 1 ") was forwarded to plaintiff by James Talton, Rite Aid's Director of Human Resources. In a letter dated August 22, 1996 (submitted as "Plaintiff's Exhibit 2"), plaintiff's counsel proposed additional terms to be Incorporated - NO. 97-89 CIVIL Into the Agreement. Corporate counsel for Rite Aid discussed the proposed additional terms of the Agreement with plaintiffs counsel during a phone conversation on September 17, 1996. Rite Aid confirmed the phone conversation and revisions to the Agreement by a telefax letter dated September 18, 1996 (submitted as "Plaintiffs Exhibit 3"). Plaintiff signed the agreement on September 24, 1996, and forwarded the Agreement to her counsel on September 25th. On September 26, 1996, Rite Aid revoked the proposal by faxed letter (submitted as "Defendant's Exhibit 1"). The same day that Rite Aid revoked the Agreement, plaintiffs counsel sent a faxed letter (submitted as "Defendant's Exhibit 2") alleging that Rite Aid was in breach of contract. Plaintiff claimed that she had already accepted the contract and, consequently, a contract was formed. Plaintiff filed a complaint against Rite Aid alleging breach of contract. DISCUSSION "It Is black letter law that in order to form an enforceable contract, there must be an offer, acceptance, consideration or a mutual meeting of the minds." Jenkins v. Countv of Schuvkill, 658 A.2d 380, 383, appeal denied, 666 A.2d 1056 (1995). The 'mailbox rule' maintains that posting an acceptance in the maills a proper means of accepting an offer. "Where the use of mails as a means of acceptance Is authorized or implied from the surrounding circumstances, the acceptance is complete by posting the letter in normal mail channels, without more." Falconer v. Mazess, 168 A,2d 558. 2 1 j' ~ -" NO. 97.89 CIVIL 559 (1961). In order for a posted acceptance to be proper, however, it must be sent to the offeror. "It is elementary that no obligation is created by the acceptance of an offer unless and until it is transmitted to the offeror." Moroanstern Electric Co. v. caraopolis BorouQh, 326 Pa. 154 (1937). At issue in the present case is whether plaintiff properly accepted defendant's offer, the Agreement, before defendant revoked it. Plaintiff argues that by posting her acceptance of the Agreement to her lawyer she properly accepted the Agreement. We disagree. The signed Agreement cannot be construed as an acceptance because the Agreement was not posted or otherwise communicated to defendant before defendant's September 26, 1996 revocation.1 Plaintiff relies on the language of Kennedv v. Erie Insurance Exchanoe to argue that posting acceptance to her lawyer completed her contract with Defendant. "When an acceptance is transmitted, It is operative and completed when put out of the offeree's possession regardless of whether or not it reaches offeror: Restatement, Contracts, ~~ 64, 74.", 64 D. & C. 2d 227,231-232 (Lehigh County 1972), However, plaintiff fails to recognize that in Kennedv the letter at issue was one from plaintiffs counsel posted directly to the defendant, not one from plaintiff posted to her counsel. Had plaintiff posted her acceptance of the "Agreement" to defendant and not to her attorney, the acceptance element of a contract would have been completed, IBecause we find that plaintiff did not properly accept the Agreement, we need not address the issue of whether defendant actually executed the agreement. 3