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Home My WebLink About03-2811LAV1N, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUIVIBERLAND COUNTY LAW DIVISION DOCKET NO. (~)2 CIVIL ACTION COMPLAINT NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: 1-800-990-9108 or (717) 249-3166 LAVIN, COLEMAN, O'NEIL, RICCI, F1NARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvern, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW DIVISION DOCKET NO. CIVIL ACTION COMPLAINT Plaintiff, American Heating Aid Associates, Inc., by and through its attorneys, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, by way of Complaint against defendant, Janet Giba, d/b/a Giba & Ott Heating Aid Center avers the following: 1. American Hearing Aid Associates, Inc. ("AHAA") is a Pennsylvania corporation with a principal place of business at P.O. Box 819, 289 Lancaster Avenue, Malvern, PA 19355. 2. On information and belief, Janet Giba ("Defendant") is an adult individual doing business as Giba &Ott Heating Aid Center. 3. On information and belief, Defendant operates Giba & Ott Hearing Aid Center with offices located at 360 Peppercorn Square, Enola, PA 17025. 4. Venue is appropriate in this Court pursuant to Pa. R. C. P. 1006. 5. Plaintiff AHAA is a supplier of hearing aids, accessories and related equipment. 6. Defendant sells hearing aids, accessories and related equipment as the owner of Giba & Ott Hearing Aid Center. 7. On or about January 13, 1998, Defendant executed a Membership and Credit Application (the "Credit Application") whereby it requested extension of credit in accordance with AHAA's terms and conditions of sales contained therein. A true and correct copy of the Credit Application is attached hereto and incorporated herein as Exhibit "A". 8. Between February 12, 1999 and June 30, 1999 Defendant placed orders with AHAA for various goods and services which were subsequently supplied by AHAA to Defendant pursuant to the terms of the Credit Application. 9. AHAA issued invoices to Defendant for goods and services provided. Monthly statements were issued by AHAA to Defendant summarizing the invoices issued along with any payments and credits to the account. A true and correct copy of the final statement is attached hereto and incorporated herein as Exhibit "B". 10. After applying any and all payments and credits made by Defendant, there still remains past due to AHAA a balance of $18,873.57. 11. AHAA has repeatedly requested payment from Defendant for payment of the balance due. 12. AHAA's requests for payment have been refused or ignored. 13. Pursuant to the Credit Application, AHAA is entitled to the highest lawful rate of interest on the unpaid balance due. -2- 14. Pursuant to the Credit Application, AHAA is entitled to recovery of its attorneys' fees incurred in connection with collection of the balance due. 15. As a result of Defendant's breach of contract and failure to remit the balance owed to AHAA when due, AHAA has suffered damages in the amount of $18,873.57 plus attorneys' fees and costs. WHEREFORE, AHAA demands judgment against defendant, Janet Giba, d/b/a/Giba & Ott Heating Aid Center, for damages in the amount of $18,873.57 plus interest, attorneys' fees, costs of suit, and such other and further relief as the court deems appropriate. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY Attorh#y for tVlafntiff American Hearing Aid Associates, Inc. -3- VERIFICATION I, Steve Klug, hereby state: (1) I am a duly authorized representative of Plaintiff, American Heating Aid Association, in this action; (2) I verify that the statements made in the foregoing Civil Action Complaint are true and correct to the best of my knowledge, information and belief; and (3) I understand that the statements in said Civil Action Complaint are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. "~teve ~l~g Swom to and Subscribed,.~._ Before Me This ,,~ / Notary Public TITLE -4- va~a~.~u uuu~ ~u:~o olu ~gD ~UlW AMERICAN HEARING AID ASSOCIATES #1880 p.009 ?RIC, AN HEARING AS~I,)L;.[A 1 l~; Bank Name ~ ~d,~, _..-3 ,c:: 5o,..,.e-¥,,,,.~..'¥" 7> ~ ci~/~/~ ~ ci~ ~,1~. ~e ~ ~Z.. >,.,-,-F4.- D <,~,. F- American Hearing Aid Associates :289 Lan,;~rer Av,:n.Je /t{l AHI±' t, All ~EMBERSHIP I~ClLE Cmdlt li~ mclue~ 61ta,-'ing ~ im .... BIUJNG CYCLE Consact ~ regarding invoi~ po,/menls ~ am ii REFUNDS Cr~l ba~ma, ir balanm is ~ ~, ~ U~, ~, ~, DEFAULT ~D Failure ~ ~ __ £ Sign,:n'um in;~men~ ~ I-.. ~lumed for ~ull crm:lit ~ ~'e ,~ wil~in 60 day~ a~ t~e invoice do~. 1~i~ ,~tum :ng~ ~ne rmtuinn~-nt Ynat paymenf ~r en4c~ i, due ~ ~'~ las~ day ~f~n. month · t, AHa~A ~ll i~u~ a d, ec~ kw l~e amount af at a ,~m~", ,,,,a.-~t ~ t~ file lmm o"~if far salvaged gaad~. If a check is nat All re.ms md ~ lue and payal:~e ~ k~ther m~ic~, and AHAA ~ ~o ~ collection b7 any o~ik~e means. Exhibit B jA~.iD'2002 15:49 610 455 3019 American Heafi, ng Aid Associates 1-800.-984-3272 Fax: 610-5,58-3210 I~X) Wilmington-West Chester Pike P,O, Box 889, ' Concordvllle, PA 19331 Gibe &Ott Hearing Aid Center Jan Gibe/Murray Oft P,O. Box 360 360 pepperc0m Squats Enola PA 17025 A~ERICAN HEARING AID ASSOCIATES #1880 p.012 N~OUNTNUMaI~I H 104,e, STATEMENT CODE~ I~NVOICE D~3EBIT C,-CREDITM~,,10 B=BAL~NCEFORWARD PAGE: I $18.873.57 CR Credit Memos RTN Retums PMT Payments Remlnde~: Be sure to sign up ~or AH,~,A'S YZK C~vention January 26th - 30thll Thank You For Your Business, * * * · FIN Flnan0e charge SVC See,dee/Repair WRN WwYentiea SL$ Sates Invoice SCP Scheduled Paymen DR Debit Memo Currant 030 days 31-60 days 61 and over $0 $32.50 $1,983.70 $16.857.37 ' NaouNTi~N~..Q~D · ': :1 Gibe & Off Headng Aid Center 1131/00 [ H1044 REMrlT. N~CE ~ViOE ~PEOKITEM6 RETURN THt$ PORT1C)N BE-'~NG PAJD WFrH YOUR pAyMEI~T $18.873.87 $18,873,57 03/2,2~02 FRI 08:50 FAX I 856 793 0237 Law Offices 002 Amerir. an Hearing Aid Associates for the account: Gibe &Ott Hearing Aid ~mber Tr~nsaGtlon l)~te Amount 2]12119gg $781 .BO 59441 2/12/lgg9 $562.50 6~2 ~1 ~ I1999 ~42.~ 6~43 ~1999 $141 71809 3/I/1999 $1~.~ 74~1 3~ 999 $393.50 761~ 3~1~9 76147 312~t~9 77517 7111t~ $7.50 NNV002039 71111~ $7.50 AINV0~ 11111199g $762.20 BDINV001761 1111~1999 $453,S0 BD1 N~lg20 ~1999 $502.50 CIN~0000001574 111t~1999 $765.00 JD1~2128 4~1999 $427 L000~O000001969 L00~000001973 4~1999 $301.85 L00~QQ00Q0~I ~74 4~211999 ~27.10 L000~0QQ00002~ 4~1999 L00~00~0002400 419/1999 $985.85 L0~0QQQ000003129 51511999 L~0Q000~03130 51511999 S332.50 LB1~002190 7113/1999 ~.10 LBINVQ02192 7/13/1999 $4~-10 LGtNV0O0~ 1398 5/16/1099 $25.00 LINV000000~7 511711999 $338.65 LINVO00O000~8 5~ 1/1999 5597. LINVO000~272 6~B/1999 ~.70 MLFINVO0~9 71111999 $521.50 MLFI NV000933 101111999 $502.50 NSINV003924 12/14/1999 $32.50 SINV0~0000~3307 5/4/I 999 $427.1 SINV009255 9/29/1999 $I .7~2.60 SINV009303 9127/~999 $768.00 SIN~3~ 9/23/1999 $155.50 SINV009305 9/21/1999 $219.75 SINV009359 9/30/~999 ~705.18 S INV010082 10/21/1999 $170.75 T1~000000003702 613/1999 $1.840,50 Tl~00O00000~6g5 6/30/1999 BA~NCE DUE: LAVIN, COLEMAN, O'NEIL, RICCI, F1NARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, iNC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppemom Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW' DIVISION DOCKET NO. 03-2811 NOTICE The enclosed Petition for Substituted Service was filed with the court on or about August 5, 2003. Please be advised that a response must be filed within twenty (20) days of the filing of the petition. Failure to respond within this twenty (20) day period may allow the court to rule on the petition without further notice. LAViN, COLEMAN, O'NE~L, RICCI, FINARELLI & Alysa T~(lar~coJ Esq ire American Hearing Aid Associates, Inc. GRAY LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, 1NC. 289 Lancaster Avenue Malvern, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW DIVISION DOCKET NO. 03-2811 PLAINTIFF'S PETITION FOR SUBSTITUTE[} SERVICE PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 410 AND 430 Plaintiff, American Hearing Aid Associates, Inc. ("AH)~"), by and through its attorneys, LAVIN COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY, hereby petitions this Honorable Court for an Order ~ermitting substituted service pursuant to Pennsylvania Rules of Civil Procedure 410 and 430 and in support thereof avers the following: 1. This civil action was initiated in the Court of Common Pleas, Cumberland County, on June 16, 2003 and docketed at No. 03-2811. A copy of the Complaint is attached hereto and incorporated herein as Exhibit "1". 2. Upon information and belief, the Defendant, Janet Giba d/b/a Giba & Ott Hearing Aid Center resides at 360 Peppercorn Square, Enola, PA 17025. 3. On or about December 12, 2002, ti'tree Freedom of Information Act letters were sent to the Postmaster in Enola, PA. The Postmaster's response reveals that the address at 360 Peppercorn Square is a good address for Janet Giba. A copy of the Freedom of Information Act letters are attached hereto and incorporated herein as Exhibit "2". 4. On or about July 22, 2003, correspondence was sent to the Cumberland County Voter's Registration office attempting to ascertain the current address for Defendant. The Voter's Registration office confirms that Defendant is registered to vote at 360 Peppercorn Square, Enola, PA 17025. A copy of the Voter's Registration letter is attached hereto and incorporated herein as Exhibit "3". 5. On or about July 16, 2003 a search for the owner of record for 360 Peppercorn Square was performed. The search revealed that Janet Giba is the recorded owner of the property. A copy o£the Search is attached hereto and incorporated herein as Exhibit "4". 6. On or about July 17, 2003, the Cumberland County Sheriff's Office notified Plaintiff's counsel that it attempted to serve the Complaint at 360 Peppercorn Square, but was unsuccessful. A copy of the Affidavit of Remm indicating the numerous attempts made by the Cumberland County Sheriff's Office is attached hereto and incorporated herein as Exhibit "5". 7. Plaintiff now seeks substituted service upon the Defendant pursuant to Pennsylvania Rules of Civil Procedure 410 and 430 in the form of regular and certified mail to 360 Peppercorn Square, Enola, PA, and by posting at 360 Peppercom Square, Enola, PA. LAVIN, COLEMAN, O'NEIL, RICCI, F1NARELLI & GRAY By: ' LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 COLERT OF COMMON PLEAS CUMBERLAND COUNTY LAW DIVISION DOCKET NO. 03-2811 Defendant. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S PETITION FOR SUBSTITUTED SERVICE PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 410 AND 430 PLAINTIFF AHAA SHOULD BE PERMITTED TO SERVE DEFENDANT JANET GIBA D/B/g GIBA & OTT HEARING AID CENTER VIA SUBSTITUTED SERVICE This civil action was initiated in the Court of Common Pleas, Cumberland County, on June 16, 2003 and docketed at No. 03-2811. A copy of the Complaint is attached hereto and incorporated herein as Exhibit "1". Upon information and belief, the Defendant, Janet Giba d/b/a Giba & Ott Hearing Aid Center resides at 360 Peppercorn Square, Enola, PA 17025. On or about December 12, 2002, three Freedom of Information Act letters were sent to the Postmaster in Enola, PA. The Postmaster's response reveals that the address at 360 Peppercorn Square is a good address for Janet Giba. A copy of the Freedom of Information Act letters are attached hereto and inc°rp°rated herein as Exhibit "2". On or about July 22, 2003, correspondence was sent to the Cumberland County Voter's Registration office attempting to ascertain the current address for Defendant. The Voter's Registration office confirms that Defendant is registered to vote at 360 Peppercorn Squ;are, En°la, PA 17025. A copy ofthe Voter's Registration letter is attached hereto and incorporated herein as Exhibit "3". On or about July 16, 2003 a search for the owner of record for 360 Peppercorn Square was performed. The search revealed that Janet Giba is the recorded owner of the property. A copy of the Search is attached hereto and incorporated herein as Exhibit "4". On or about July 17, 2003, the Cumberland County Sheriff's Office notified Plaintiff's counsel that it attempted to serve the Complaint at 360 Peppercorn Square, but was unsuccessful. A copy of the Affidavit of Return indicating the numerous attempts made by the Cumberland County Sheriff' s Office is attached hereto and incorporated herein as Exhibit "5". Plaintiff now seeks substituted service upon the Defendartt pursuant to Pennsylvania Rules of Civil Procedure 410 and 430 in the form of regular and certified mail to 360 Peppercorn Square, Enola, PA and by posting at 360 Peppercorn Square, Enola, PA. Pursuant to Pennsylvania Rule of Civil Procedure 430(a)., a Plaintiff may move the court for a special Order directing the method of service, if service cannot be made under applicable rules. Such motion should ~. and extent of the investigation which has been made to determine Defendant's location and should set forth the reasons why service cannot be made. Id. If the court enters an Order pursuant to Rule 430(a), the court shall direct service to be made by publication, posting at Defendant's residence or registered mail to Defendant's last known address. Pennsylvania Rule of Civil Procedure 410(c). RESPECTFULLY SUBMITTED, LAV1N, COLEMAN, O'N IL, RICCI, FiNARELLI & GRAY Alysa Th4.~ico, 'lssqla~re Attorney for Plaintiff VERIFICATION Alysa Talarico, Esquire, subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities, hereby affirms that she is counsel for Plaintiff, American Heating Aid Associates, Inc., in this action, that she is authorized to make this verification on its behalf, and that the facts set forth in the foregoing pleading are true and correct to the best of her persc,nal knowledge, information and belief. Attorney t'6r Plaintiff LAVIN, COLEMAN, O'NEIL, RICCI, F1NARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, 1NC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 COUI/:T OF COMMON PLEAS CUMBERLAND COUNTY : LAW DIVISION : DOCKET NO. 03-2811 Defendant. : AFFIDAVIT IN SUPPORT OF PLAINTIFF'S PETITION FOR SUBSTITUTED SERVICE PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 410 AND 430 I, Alysa Talarico, Esquire, hereby under oath state the following: 1. This civil action was initiated in the Court of Comnmn Pleas, Cumberland County, on June 16, 2003 and docketed at No. 03-2811. A copy of the Complaint is attached hereto and incorporated herein as Exhibit "1 ". 2. Upon information and belief, the Defendant, Janet Giba d/b/a Giba & Ott Hearing Aid Center resides at 360 Peppercorn Square, Enola, PA 17025. 3. On or about December 12, 2002, three Freedom of Information Act letters were sent to the Postmaster in Enola, PA. The Postmaster's response reveals that the address at 360 Peppercorn Square is a -2- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY · ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN IVFUTUAL TOWER PHILADELPHIA, PA 19106 (215) 62%0303 ;ood address for Janet Giba. A copy of the Freedom of Information Act letters are attached hereto and ~ncorporated herein as Exhibit "2". 4. On or about July 22, 2003, correspondence was sent to the Cumberland County Voter's Registration office attempting to ascertain the current address for Defendant. The Voter's Registration office confirms that Defendant is registered to vote at 360 Peppercorn Square, Enola, PA 17025. A copy of the Voter's Registration letter is attached hereto and incorporated herein as Exhibit "3". 5. On or about July 16, 2003 a search for the owner of record for 360 Peppercorn Square was performed. The search revealed that Janet Giba is the recorded owner of the property. A copy of the Search is attached hereto and incorporated herein as Exhibit "4". 6. On or about July 17, 2003, the Cumberland County Sheriffs Office notified Plaintiff's counsel that it attempted to serve the Complaint at 360 Peppercorn Square, but was unsuccessful. A copy of the Affidavit of Retum indicating the numerous attempts made by the Cumberland County Sheriff's Office is attached hereto and incorporated herein as Exhibit "5". RESPECTFULLY SUBMITTED, LAVIN COLEMAN, O?EIL, RICCI, FINARELLI & GRAY Date: (.~/~)~ By: ~ Alysa ~al~i~, Es~u~ Attorney"fo'r SWORN TO AND S_~S~rCRIBED BEFOR2!~ ME THIS ~ DAY "F ./4~ ,*~,rP ,2003 NOTARY PUBLIC / NOTARIAL SEAL DANIELLE McCLOSKEY, I~ Public -3- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELL1 & GRAY · ATTORaNEYS AT LAW SUITE 1000, 510 WALNUT STKEET, PEI~ MUTUAL TOWER PHILADELpEIA, PA 19106 (2!5) 627-0303 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff ' HEARING AID ASSOCIATES, 1NC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMIviON PLEAS CUMBERLAND COUNTY LAW' DIVISION DOCKET NO. 03-2811 CERTIFICATE OF SERVICE It is hereby certified that on August 5, 2003, a tree and correct copy of Plaintiff, American Heating Aid Associates, Inc.'s Petition for Substituted Service Pursuant to Pennsylvania Rules of Civil Procedure 410 and 430 in the above-captioned matter was served via First Class Mail, postage prepaid, on the below listed party: Janet Giba 360 Peppercorn Square Enola, PA 7025 To: LAVIN, C/C[LE~ M~AN~.0'N~, ~CI, FINARELLI & GRAY Alysa X~4xar~ Es~ui Attorney f'or.~l~ -i- LAVIN, COLEMAN, O'NEIL, R1CCI, FINARELLI&GRAY *ATTORNEYSAT LAW SUITE 1000,510WALNUT STREET, PENNMUTUALTOWER PHILADELPHIA, PA 19106 (215) 627-0303 ,! LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvern, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COIVfiVION PLEAS CUMBERLAND COUNTy LA.W DIVISION DOCKET NO.(..)-~ - og. ffl/ CIVIL ACTION COMPLAINT NOTICE You have been sued in court. If you wish to defend :against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: 1-800-990-9108 or (717) 249-3166 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CL~d3ERLAND COUNTY LAW DIVISION DOCKET NO. CIVIL ACTION COMPLAINT Plaintiff, American Hearing Aid Associates, Inc., by and through its attorneys, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, by way of Complaint against defendant, Janet Giba, d/b/a Giba & Ott Hearing Aid Center avers the following: 1. American Hearing Aid Associates, Inc. CAHAA") is a Pennsylvania corporation with a principal place of business at P.O. Box 819, 289 Lancaster Avenue, Malvem, PA 19355. 2. On information and belief, Janet Giba ("Defendant") is an adult individual doing business as Giba &Ott Hearing Aid Center. 3. On information and belief, Defendant operates Giba & Ott Hearing Xid Center with offices located at 360 Peppercorn Square, Enola, PA 17025. 4. Venue is appropriate in this Court pursuant to Pa. R. C. P. 1006. 5. Plaintiff AHAA is a supplier of hearing aids, accessories and related equipment. 6. Defendant sells hearing aids, accessories and related equipment as the owner ofGiba & Ott Hearing Aid Center. 7. On or about January 13, 1998, Defendant executed a Membership and Credit Application (the "Credit Application") whereby it requested extension of credit in accordance with AHAA's terms and conditions of sales contained therein. A tree and correct copy of the Credit Application is attached hereto and incorporated herein as Exhibit "A". 8. Between February 12, 1999 and June 30, 1999 Defendant placed orders with AHAA for various goods and services which were subsequently supplied by AHAA to Defendant pursuant to the terms of the Credit Application. 9. AHAA issued invoices to Defendant for goods and services provided. Monthly statements were issued by AHAA to Defendant summarizing the invoices issued along with any payments and credits to the account. A tree and correct copy of the final statement is attached hereto and incorporated herein as Exhibit "B". 10. After applying any and all payments and credits made by Defendant, there still remains past due to AHAA a balance of $18,873.57. AHAA has repeatedly requested payment from Defendant for payment of the balance due. AHAA's requests for payment have been refused or ignored. Pursuant to the Credit Application, AHAA is enttitled to the highest lawful rate of interest on 11. 12. 13. the unpaid balancedue. -2- 14. Pursuant to the Credit Application, AHAA is entitled to recovery of its attorneys' fees incurred in connection with collection of the balance due. 15. As a result of Defendant's breach of contract and :~ailure to remit the balance owed to AHAA when due, AHAA has suffered damages in the amount of $18,873.57 plus attorneys' fees and costs. WHEREFORE, AHAA demands judgment agmnst defendant, Janet G~ba, d/b/a/G~ba & Ott Heanng Aid Center, for damages in the amount of $18,873.57 plus interest, attorneys' fees, costs of suit, and such other and further relief as the court deems appropriate. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY BY: Attor~t~y for Plafntiff American Hearing Aid Associates, Inc. -3- VERIFICATION I, Steve Klug, hereby state: (1) I am a duly authorized representative of Plaintiff, ~Mnencan Heanng Aid Associatton, in this (2) (3) action; I verify that the statements made in the foregoing Civil Action Complaint are tree and correct to the best of my knowledge, information and belief; and I understand that the statements in said Civil Action Complaint are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. TITLE Sworn to and Subscdbedrdrdrd/ Before Me This ~ / ~ Dayof~-~_/ , 20_0_~ ..~ Notary Public ,~,.zu &uu= z=:~o ozu ~Do ~ul~ AMERICAN HEARING AID ASSOCIATES #1880 p.009 .~RIC, A_N HEARING A55tlt;tAt n s~q Z.9,,u ~ t - ~'~ 7 ~ F,,d,~ D ..... Pk~ ¥ I~nk Name American Hearing Aid Associates SALES p~mtw~f~ cr,cr sc TERM.SOl:PA RE~dRN PRMU BIwNG and Inqvi,1,/' be n~m~ed i. DEFAULT oulf,g~z,e~ (:~ c r~. 2.5% of ~ a e meedlandim and sm'~c.s k~,m AH,~A. A m~nces ,~ due on I~ Ja~ day of fne mo~n f~len mmi~anc.. ~:~n cm~ fe~' mjb, aged gaadL If a cf',ec~ is not 610 455 3019 AMERICAN HEARING AID ASSOCIATES #1880 P.012 A · American Hearing Aid Associates 1..800.-984-3,272 · FaX: 610-558-3210 1,500'Wl~nlngton-'We~t Chester Pike P.O. Box 889, Concordvtlle, PA 19351 G;ha & Off Hearing Aid Center Jan Gibe/Murray Oft P,O, Box 360 360 Pepperc0m Square Enda PA 17025 tt3t/00 STATEMENT Reminder: Be sure to sign up Ccm'~.nticm Janua~ 26[h - 30~hll Thank You For Your Bu;Inest~ $18,873.57 8L8 Sales Invoice SCI= Scheduled Paymen DR Debit Memo FIN Finance Cherge CR CrNi! Memos SVC Set~./Repair RTN ReLume Current 030 days 31-60 days 61 and over $0 $32.50 $1 .g83.70 $16.857.37 AM~CAN HF-A~NG ~ .~SSCX::IAIE$ , , ~ou~r,~.os~o .' ":': Gibe & Oil Heating Aid Center 1/31/00 / H10~4 R~RJF~ 11.ffi PORTION GHEOKII"IEU~ ~ V~ITH YOU~I PAYME~ E)E'~ pAID BBI~ $18,873.57 03722~02 FI~! 08:50 FA~ ! 856 ?93 0237 Law Offices ~]002 American Hearing Aid Associates for the account: Giba &Ott Hearing Aid InvO~ Number Transaction Date AmaUnt 2/1211999 $761.00 69441 2/12,/1999 $582.50 69442 2/11 I1999 $442.50 69443 2/3/1999 $141,24 71609 3/111999 $150.00 74661 3/22/1999 $393.50 76146 3/2~/1~99 $393,50 76147 3/22/t999 ~587.40 77517 71111999 $7.50 AINV002039 7111¶999 $7.50 AINV002040 BOtNV001761 111111999 $762.20 ElD1 NVO01g20 1111~/1999 $453.S0 CINVOOOOOOO001574 6/5/1999 $502.50 JDINVOO2128 1111Q/1999 $768.00 L000000OO00001969 4/20/1999 $427.10 LOO0000OO00001973 4/22/1999 $3,01,85 t..O00OO0OO00001 g 74 4/22/1999 $427.10 L0000~00OO0002382- . ~ ' 4/27./:1999 $847,85 LOOOOQ00000002400 4/9/1999 $955.85 L00OOQ(~Q000003129 5/5/1999 $332.50 L00OQ000000003130 51511999 $332.50 LBINVO~2190 7/13/1999 $496.10 LBINV002192 7/13/1999 $496.10 LGINV000000001398 5/16/1999 $25.00 LINVO00000OO03447 5/I 7/1999 $338,85 LINV0000000003448 5/21/1999 $597,35 LINVO000000005272 6/2611999 $86.70 MLFINVOO0049 71111999 $521.50 MLFINV0009$3 101111999 $502.50 NSINV003924 1211411999 $32.50 SINV0000000003307 51411999 $427.10 SINV009255 9/29/1999 $1.732.60 SINV009503 9/27/'~ 999 $768.00 StNV009-304 912311999 $155.50 SINV009305 912111999 $219.75 $1NV009359 913011999 $705.18 SINV010082 10/21/1999 $17o.75 TINV0000000003702 61311999 $1.840,50 TINV0000000004695 $/30/1999 $150.00 BALANCE DUE: $18.873.57 NEW YORK OFFICE 7TH FLOOR 767 THIRD AVENUE NEW YORK, NY 10017 (212) 319-6898 FAX: (212) 319-6932 WRITER'S DIRECT DIAL NUMBER (215) 351-7921 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY ATFORNEYS AT LAW SUITE 1000 PENN ML~FUAL TOWER 510 WALNUT STREET PHILADELPHIA, PA 19106 (215) 627-0303 FAX: (215) 627-2551 www.lavin-law.com NEWIERSEY OFFICE SUITE 103 307 FELLOWSHIP ROAD MT. LAUREL, NJ 08054 (856) 778-5544 FAX: (856) 793-0237 WRITER'S E-gAIL ADDRESS jbl(h)lavin-law.com December 12, 2002 POSTMASTER Enola, PA 17025 Request for Change of Address or Boxholder Information Needed for Service of Legal Process Please furnish the new address or the name and street address (if a boxholder) for the following: Name: Janet Giba Address: 3 Southmont Drive, Enola, PA 17025 NOTE: TI~' name and lastkri0wn addre~§ are required for clhange of address information. Thc name, if known, and post office box address are required for boxholder information. The following information is provided in accordance with 39 CFR 265.6(d)(6)(ii). There is no fee for providing boxholder information. The fee for providing change of address information is waived in accordance with 39 CFR 265.6(d)(1) and (2) and corresponding Administrative Support Manual 352.44a and b. Capacity of requester (e.g., process server, attorney, party representing himself): Attorney Statute or regulation that empowers me to serve process (not required when requester is an attorney or a party acting P_Lq se - except a corporation acting pro se must cite statute): 4. 5. 6. Th~ names of all lm~wn parties to. the litigation: American Hearine Aid Associates, Janet Giba d/b/a/Giba &Ott Hearing A~d Center. ,: The court in which the case has been or will be heard: Court of Cnmmon Pleas, Cumberland CounW. The docket or other identifying number if one has been issued: The capacity in which this individual is to be served (e.g. defendant or wimess): Defendant. L~VIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY December 12, 2002 Page 2 WARNING THE SUBMISSION OF FALSE INFORMATION TO OBTAIN AND USE CHANGE OF ADDRESS INFORMATION OR BOXHOLDER INFORMATION FOR ANY PURPOSE OTHER THAN THE SERVICE OF LEGAL PROCESS IN CONNECTION WITH ACTUAL OR PROSPECTIVE LITIGATION COULD RESULT IN CRIMINAL PENALTIES INCLUDING A FINE OF UP TO $10,000 OR IMPRISONMENT OR (2) TO AVOID PAYMENT OF THE DFTEHE FOR CHANGE OF ADDRESS INFORMATION OF NOT MORE THAN $ YEARS, OR BO (TITLE 18 U.S.C. SECTION 1001). I certify that the above information is true and that the address information is needed and will be used solely for service of legal process in connection with actual or prospective litigation. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY 510 Walnut Street- Suite 1000 Philadelphia, PA 1~ 06 Signatu~ (~J ...... FOR POST OFFICE USE ONLY __ No change of address order on file. __ Not known at address given. __ Moved, left no forwarding address. __ No such address. Good as addressed NEW AiDDRESS or BOXHOLDER'S POSTIVI3~K NAME ~ld STREET ~)DRESS '~ NEW YORK OFFICE ~rl~H FLOOR 767 THIRD AVENUE NEW YORK, NY ~10017 (212) 319-6898 FAX: (212) 319-6932 WRITER'S DIRECT DL, kL NUMBER (215) 351-7921 LAVIN, COLEMAN O'NEIL, RICCI, FINARELLI & GRAY ATTORNEYS AT LAW SUITE 100O PENN MUTUAL TOWER 510 WALNUT STREET PHILADELPHIA, PA 19106 (215) 627-0303 FAX: (215)627-2551 www.lavin-law.com NEW JERSEY OFFICE SUITE 103 307 FELLOWSHIP ROAD MT. LAUREL, NJ 08054 (856) 778.5544 FAX: (856) 793-0237 WRITER'S E-bLt~L ADDRESS ibl~lavin-law.com December 12, 2002 POS'£MASTER Enola, PA 17025 Request for Change of Address Or Boxholder Information Needed for Service of Legal Process Please furnish the new address or the name and street address (if a boxholder) for the following: Name: Janet Giba Address: 199 Tory Circle, Enola, PA 17025 NOTE: ~T1Ye r~ame and last lmown'~lddreg~'are required for clhange of address information. The name, if known, and post office box address are required for boxholder information. The following information is provided in accordance with 39 CFR 265.6(d)(6)(ii). There is no fee for providing boxholder information. The fee for providing ch~rage of address information is waived in accordance with 39 CFR 265.6(d)(1) and (2) and corresponding Administrative Support Manual 352.44a and b. 1. Capacity of requester (e.g., process server, attorney, p~xty representing himself): Attorney 2. Statute or regulation that empowers me to serve process (not required when requester is ~ attorney or a party acting pro se - except a corporation acting pro se must c~te statute): 4. 5. 6. The hames of ali known parties to the litigation: American Heating Aid Associates, Janet Giba d/b/a/Giba & Ott Heating Aid Center. The court in which the case has been or will be heard: Court of Common Pleas, Cumberland County. The docket or other identifying number if one has been issued: The capacity in which this individual is to be served (e.g. defendant or witness): Defendant. I~VIN, COLEMAN, O'NEIL, RICCI, FINARELLI 6' GRAY December 12, 2002 Page 2 WARNING THE SUBMISSION OF FALSE INFORMATION TO OBTAIN AND USE CHANGE OF ADDRESS INFORMATION OR BOXHOLDER INFORMATION FOR ANY PURPOSE OTHER THAN THE SERVICE OF LEGAL PROCESS IN CONNECTION WITH ACTUAL OR PROSPECTIVE LITIGATION COULD RESULT IN CRIMRqAL PENALTIES INCLUDING A FINE OF UP TO $10,000 OR IMPRISONMENT OR (2) TO AVOID PAYMENT OF THE_F_E_E_ FOR CHANGE OF ADDRESS INFORMATION OF NOT MORE THAN $ YEARS, OR BOTH (TITLE 18 U.S.C. SECTION 1001). I certify that the above information is tree and that the address information !s n.e.e.ded.and will be used solely for service of legal process in connection with actual or prospective ht~gat~on. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY 510 Walnut Street- Suite 1000 Philadelphia, PA~ 910~ Signa~tre . \~; A1 sa Talan'co Es uire Printed Name FOR POST' OFFICE USE ONLY __ No change of address order on file. __ Not known at address given. __ Moved, left no forwarding address. __ No such address. Good as addressed NEW ADDRESS or BOXHOLDER'S POSTM.td~K ): NI~W YORK OFFICE 7TH FLOOR 767 THIRD AVENUE NEW YORK, NY 10017 (212) 319-6898 FAX: (212) 319-6932 WRITER'S DIRECT DIAL NUMBER (215) 351-7921 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY ATTORNEYS AT LAW SUITE 1000 PENN MUTUAL TOWER 510 WALNUT STREET PHILADELPHIA, PA 19106 (215) 627-0303 FAX: (215) 627-2551 www.lavin-law.com NEW JERSEY OFFICE SUITE 103 307 FELLOWSHIP ROAD MT. LAUREL, NJ 08054 (856) 778.5544 FAX: (856) 793-0237 WRITER'S E-~L6/L ADDRESS ibl~,,lav~n-law.com December 12, 2002 POSTMASTER Enola, PA 17025 Request for Change of Address or Boxholder Information Needed for Service of Legal Process Please furnish the new address or the name and street address (if a boxholder) for the following: Name: Giba & Ott Hearing Aid Center Address: 360 Peppercorn Square, Enola, PA 17025 NOTE: ' The ~ffff_md and last kno~ ~d~[§s are required for change of address information. The name, if known, and post office box address are required for boxholder information. The following information is provided in accordance with 39 CFR 265.6(d)(6)(ii). There is no fee for providing boxholder information. The fee for providing change of address information is waived in accordance with 39 CFR 265.6(d)(1) and (2) and corresponding Administrative Support Manual 352.44a and b. 1. Capacity of requester (e.g., process server, attorney, party representing himself): Attorney 2. Statute or regulation that empowers me to serve proceEs (not required when requester is an attorney or a party acting pro se - except a corporation acting pro se must c~te statute): 4. 5. 6. The names of all known parties to the litigation: American Hearing Aid Associates, Janet Giba d/b/a/Giba & Ott Hearing Aid Center. The court in which the case has been or will be heard: Court of Common Pleas, Cumberland Count,/. The docket or other identifying number if one has been issued: The capacity in which this individual is to be served (e.g. defendant or witness): Defendant. I24'~IN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY December 12, 2002 Page 2 WARNING THE SUBMISSION OF FALSE INFORMATION TO OBTAIN AND USE CHANGE OF ADDRESS INFORMATION OR BOXHOLDER INFORMATION FOR ANY PURPOSE OTHER THAN THE SERVICE OF LEGAL PROCESS IN COIKSECTION WITH ACTUAL OR PROSPECTIVE LITIGATION COULD RESULT IN CRIMINAL PENALTIES INCLUDING A Fl/NE OF LIP TO $10,000 OR IMPRISONMENT OR (2)TO 4y9m.P.4..v iE. NT. gF..T oFT FOR CHANGE OF ADDRESS INFORMATION OF NOT Mottt~ 'IH~ v x ~ca, u~ ou (TITLE 18 U.S.C. SECTION 1001). I certify that the above infoixnation is true and that the .ad&ess infmmation !s n.~.~.ded.and will be used solely for service of legal process in connection with actual or prospective litigation. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY 510 Walnut Street- Suite 1000 Philadelphia, PA/i? 106 FOR POST OFFICE USE ONLY No change of address order on file. Not known at address given. Moved, left no forwarding address. No such address. Good as addressed NEW ADDRESS or BOXHOLDER'S POSTIvlARK NAME and STREET ADDRESS NEW YORK OFFICE 7TH FLOOR 767 THIRD AVENUE NEW YORK, NY 10017 (212) 319~898 FAX: (212)319-6932 WRITER'S DIRECT DIAL NUMBER (215) 351-1902 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY ATTORNEYS AT LAW SUITE 1000 PENN MUTUAL TOWER 510 WALNUT STREET PHILADELPHIA, PA 19106 (215) 627-0303 FAX: (215) 627-2551 www.lavin-law.com July 22, 2003 NEW JERSEY OFFICE SUITE 103 307 FELLOWSHIP ROAD MT. LAUREL, NJ 08054 (~56) 778-5544 F~X: (856) 793-{}237 WRITER'S E-MAIL ADDRESS ata~lavin-law.eom Bureau of Elections 37 East High Street Carlisle, PA 17013 Re: American Hearing Aid Associates v. Janet Giba d/b/a Giba & Ott Hearing Aid Center Our File No. 0415-10944 Dear Sir or Madam: _ .4 Please be advised that this office represents the Pla~[ntiff in the above matter. We are interested in ascertaining the current address of the Defendant, Janet Giba. The most current address we have in our file is as follows: 360 Peppercorn Square. Enola, PA 17025 Please advise if Janet Giba has indicated a new address to the Voter's Registration Department and provide that information to me as soon as possible. Enclosed is a self-addressed stamped envelope for the return of any information. Thank you for your courtesy and cooperation in this matter. Very truly yours, ATA~mrm Enclosure LAVIN, COLEMAN FINARELLI & GPA BY: ~T"~. O'NEIL, RICCI, [CO,-'ESQUIRE To: 9,~215351190B From: The SearchTec Group 7-25-2009 3:05pm p. 3 of 3 ISEAR'CHTEC, tNC. Sixth Floor, Philadelphia, 211 North 13th Street PA 19107 ~__-_':_'_-~ 215/963-0888 Fax 215/851-8775 ORDERER: COMPANY: ADDRESS: ALYSA LAVIN, COLEMAN, FINARELLI & GRAY PENN MUTUAL TWR/12TH FLR 510 WALNUT STREET PHILADELPHIA, Pa 19106 SEARC~TEC#: LCF00974 CUST#: 0415-10944 ORDER DATE: 07/23/03 COMPLETED: 07/25/2003 FAX: 215-351.-1900 14:59:32 DATE CERTIFIED: 07/16/03 TYPE OF SEARCH: Series 20 NAME GIVEN: S.A.N. ADDRESS GIVEN: 360 PEPPERCORN SQ ENOLA, PA 17025 COUNTY: Cumberland DEED INFORMATION RECORD OWNER: Janet E. Giba PREMISES SEARC~D: 360 Peppercorn Sq TWP: East Pen/~sboro COUNTY: Cuntberland DATE OF DEED 06/13/94 REC'D DATE 06/14/97 DEED BOOK & PAGE 106 1017 CONSIDERATION $104,900 ASSESSMENT $123,080 PARCEL NUMBER SIZE OF LOT * N/A FORMER OWNER Cyril Fyrster and Winifred V. Fyrster, h/w BOOK & PAGE 1218 83 649 1349 1252 392 ~DRTGAGE INFOR/4ATION DATED RECORDED AMOUNT MORTGAGEE 06/13/94 06/14/94 $70,000 First Union Mtg. Serv. Inc. N/A 07/17/00 N/A Assigned to: VNB Mtg. Serv. Inc. 02/03/95 02/23/95 $10,000 Peoples Heritage Savings Bank JUDGMENT INFORMATION 2002-02719, Laurel Hills Homeowners Assoc. (101 Old Schoolhouse Lane Mechanlcsburg PA 17055) vs. Janet Giba (360 Peppercorn Square Enola PA 17025), 06/04/02, $1,641.28 FEDERAL LIENS: none REMARKS: Please Note: Assessment is Building only *09-14-0035-082.U12 COMPANY ~J%S CONDUCTED SEARCHES OF T~ PIIBLIC RECORD FROM T~ DATE OF THE DEED INTO T~E RECORD OWNER(S) UNTIL THE "DATE CERTIFIED" FOR ITEMS UNDER THE ABOVE CAPTIONS WHICH CONSTITUTE LIENS AGAINST T~E GIVEN ADDRESS AND FOUND ONLY THOSE SET FORTH ABOVE. TO THE BEST OF OUR KNOWLEDGE THIS REPORT IS A~CURATE AND COMPLETE, HOWEVER, NO LIABILITY IS ASSUMED BY REASON OF ANY ERROR OR OMISSION. SHERIFF'S RETURN - NOT FOUND CASE NO: 2003-02811 P coMMO~TWEALTH OF PENNSYLVANIA ~OUNTY OF CUMBERLAND AMERICAN HEARING AID ASSOCIATE VS GIBA JANET D/B/A GIBA & OTT HE R. Thomas Kline duly sworn according to law, says, that he made a diligent inquiry for the within named DEFENDAiqT GIBA JANET D/B/A GIBA & OTT HEARING AID CENTER unable to locate Her in his bailiwick. He therefore ,Sheriff or Deputy Sheriff, who being search and but was returns the COMPLAINT & NOTICE , NOT FOUND , as to the within named DEFENDANT HE/~f/NG AID"CENTER , GIBA JANET' D/B/A GIBA & OTT 360 PEPPERCORN SQUARE ENOLA, PA 17025 UNABLE TO MAKE SERVICE, ALTHOUGH NUMEROUS ATTEMPTS WERE MADE. Sheriff's Costs: Docketing Service Not Found Surcharge 18 00 20 70 5 00 10 00 00 53 70 So answers :~.<~'% ~.~.-~ .... ~T~. r R. Thomas K~'ine Sheriff of Cuu~erland County LAVIN COLEMAN ONEIL RICCA FINA 07/17/2003 Sworn and subsCribed to before me this day of A.D. Prothonotary LAV1N, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AU6 12 003 AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARiNG AID CENTER 360 Peppemom Square Enola, PA 17025 Defendant. ORDER COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW DIVISION DOCKET NO. 03-2811 AND NOW, this ./~ day of ,~ft,,~ ~- ,2003, it is hereby ORDERED and DECREED that substituted service be permitted upon Defendant, Janet Giba d/b/a Giba & Ott Hearing Aid Center, in the form of regular mail and certified mail at 360 Peppercorn Square, Enola, PA 17025 and by posting at 360 Peppercorn Square, Enola, PA 17025, m by m~y other mcthod d~med appropriate by the Corot. BY THE COURT: SHERIFF'S RETURN - CASE NO: 2003-02811 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND NOT FOUND AMERICAN HEARING AID ASSOCIATE VS GIBA JANET D/B/A GIBA & OTT HE Thomas Kline Ro duly sworn according to law, says, that he made a diligent inquiry for the within named DEFENDANT GIBA JANET D/B/A GIBA & OTT HEARING AID CENTER unable to locate Her ,Sheriff or Deputy Sheriff, who being search and but was in his bailiwick. He therefore returns the COMPLAINT & NOTICE the within named DEFENDANT HEARING AID CENTER 360 PEPPERCORN SQUARE ENOLA, PA 17025 UNABLE TO MAKE SERVICE, ATTEMPTS WERE MADE. , NOT FOUND , GIBA JANET D/B/A GIBA & OTT ALTHOUGH NUMEROUS , as to Sheriff's Costs: Docketing 18.00 Service 20.70 Not Found 5.00 Surcharge 10.00 .00 53.70 So answers:~~ .~ .... / R. Thomas K{~lne Sheriff of Cumberland County LAVIN COLEMAN ONEIL RICCA FINA 07/17/2003 Sworn and subscribed to before me this ~ day of ~2~3 A.D. ProthOnotary LAVIN, COLEMAN, O'NEIL, RICCI, F1NARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW DIVISION DOCKET NO. 03-2811 PRAECIPE TO REINSTATE CIVIL ACTION COMPLAINT TO THE PROTHONOTARY: Please reinstate the Complmnt m the above-captioned C~wl Act~o for an additional thirty (30) days. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & ,GRAY Dated: ~ / / ~ I(~ Doc# 719572 Al ~co, Attorney for Plaintiff, General Mo~iors Acceptance Corporation SHERIFF'S RETURN - CASE NO: 2003-02811 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AMERICAN HEARING AID ASSOCIATE VS GIBA JANET D/B/A GIBA & OTT HE REGULAR CPL. MICHAEL BARRICK , Cumberland County,Pennsylvania, says, the within COMPLAINT & NOTICE was served upon GIBA JANET D/B/A GIBA & OTT HEARING AID CENTER DEFENDANT , at 1819:00 HOURS, on the 27th day of August at 360 PEPPERCORN SQUARE ENOLJI, PA 17025 POSTED PROPERTY AT 360 a true and attested copy of Sheriff or Deputy Sheriff of who being duly sworn according to law, the , 2003 by handing to PEPPERCORN SQUARE, ENOLA COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Posting 6.00 Surcharge 10.00 .00 44.35 Sworn and Subscribed to before me this /6g day of ~thonotary So Answers: R, Thomas Kline 08/28/2003 LAVIN COLEMAN ONEIL RICCI FINA LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 845 ! 2 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA dgo/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW DIVISION DOCKET NO. 03-2811 PRAECIPE TO ENTER DEFAULT JUDGMENT AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Please enter a default judgment in favor of plaintiff, American Hearing Aid Associates, Inc. and against defendant, Janet Giba d/b/a Giba & Ott Hearing Aid Center (the "Defendant"), for failure to answer or otherwise respond to the Complaint. 1. The Complaint was served upon Defendant, Janet Giba, on August 26, 2003, via regular and certified mail and posting pursuant to the Court Order dated August 13, 2003. A copy of the Court Order Dated August 13, 2003 is attached as Exhibit "A." A copy of the Affdavit of posting by the Cumberland County Sheriff's Department is attached as Exhibit "B." 2. A Notice of Intention to Take Default pursuant to Pa.R.C.P.237.1(2) was served upon Defendant, Janet Giba by First Class Mail on September 16, 2003, more than ten (10) days before this Praecipe was filed. A copy of the Notice is attached hereto as Exhibit "C." 3. A copy of the Certification of Service of the Notice is attached hereto as Exhibit "D". Pursuant to the Notice and Certification, Defendant, Janet Giba had ten (10) days in which to answer the Complaint. The ten (10) days expired on September 29, 2003. Assess damages as follows: Real Debt Interest from August 26, 2003 until October 30, 2003 Attorney's Fees and costs Total $18,873.57 $ 191.79 $6,546.69 $25,612.05 DATED: JUDGMENT BY DEFAULT ENTERED AND DAMAGES ASSESSED AS ABOVE. NOTICE GIVEN UNDER Pa.R.C.P.236 LAVIN, COLEMAN, O'NEIL, RICC1, FINARELLI &GRAY{ BY: Attorney f'Of Plain'lift, American Hearing Aid Associates, Inc. Prothonotary LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Pem~ Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW DIVISION DOCKET NO. 03-28ll NOTICE Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a Judgment has been entered against you in the above proceeding because of Judgment by Default. Prothonotary IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL ATTORNEY ALYSA TALARICO AT THIS TELEPHONE NUMBER: (215) 627-0303. Affiant also certifies that the address of the Plainfiffis 1380 Wilmington Pike, West Chester, PA 19380. Sworn to and Sabscribed Bclbre Me T~is 'P-3 rd Dayof O~To~Vt. ,2003. Notarial Seal Ben A. Joe, es, Notaq ~ublic West Cheste~ Bo~o, Chester County My Commission Expires July 18, 2005 Member. PennsyNania Association ot Notaries 10/22,'03. RED ~6:27 FAX ~0~2 LAVIN, COLEMAN, O'NEIL, R/CCI, FLNARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Perm Mutual Tower, 10th Floor 510 Walnu~ Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING Ali) ASSOCIATES, LNC. 1380 Wilmington Pike West Chester, PA 19380 Plaintiff, VS, JANET GIBA d/bia GlttA & OTT Iq.EARING AiD CENTER 360 Peppercorn Square Enola, PA 17025 Def~'adant. COURT OF CO,M34ON PLEAS CUMBERLAND Cou2qTY LAW DIVISION DOCKET NO. 03-2811 AFFIDAVIT OF NON-MILITARY SERVICE .tOlD CERT~ICATION OF ADDRESSES OF THE PARTIES COMMONWt~ALTH OF PEN~NSYLVANIA ~ ~ ~, ~ ~ b,lng duly sworn according to law, depo*es ~d sa~ ~a mpre*enta- tiv* of~e Pl~tiff; that~uthomz~ to m~e lhis Affidavit on behalf of Pl~tiff; that to the besl of~e ~der,i~'s hm~ledge, the a~v~nm,d Defen~nt mside~ at 360 Peppercorn Squ~e, Enola, PA 17025; m~ that the Def~d~t, to thc b*~ of the undersi~ed'~ ~owl~ge, is not in th, Milit~' Serdce of tl~c Umt~d States, nor ~y State or Te~to~ tb~eof or its allies a~ de~ in the Soldiers' and Sailor~' civil Relief Act of 1940 m~d ~c ~,ndm~ts thereto. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff ^UG 2 ZOO3 AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaintiff, JANET GIBA dgo/a GIBA & OTT HEARING AID CENTER 360 Peppemom Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW DIVISION DOCKET NO. 03-2811 ORDER thisL~ day of.~, I ~(J 1/~ , 2003, it is hereby ORDERED and DECREED that substituted AND NOW, service be permitted upon Defendant, Janet Giba d/b/a Giba &Ott Hearing Aid Center, in the form of regular mail and certified mail at 360 Peppercorn Square, Enola, PA 17025 and by posting at 360 Peppercorn Square, Enola, PA 17025° or by any othor mothod dccinod appropriato by th$ Court. BY THE COURT: SHERIFF'S RETURN - CASE NO: 2003-02811 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND AMERICAN HEARING AID ASSOCIATE VS GIBA JANET D/B/A GIBA & OTT HE REGULAR CPL. MICHAEL BARRICK , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE was served upon GIBA JANET D/B/A GIBA & OTT HEARING AID CENTER DEFENDANT , at 1819:00 HOURS, on the 27th day of August at 360 PEPPERCORN SQUARE ENOLA, PA 17025 POSTED PROPERTY AT 360 Sheriff or Deputy Sheriff of who being duly sworn according to law, by handing to PEPPERCORN SQUARE, ENOLA a true and attested copy of COMPLAINT & NOTICE the , 2003 together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Posting 6.00 Surcharge ..... 10.00 .00 44[35 Sworn and Subscribed to before me this day Of A.D. So Answers: R. Thomas Kline 08/28/2003 LAVIN COLEMAN ONEIL RICCI FINA Prothonotary LAV~q, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attomeys for Plaintiff AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue .. Malvem, PA 19355 VS. Plaintiff, JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW DMSION DOCKET NO. 03-2811 ~ TO/PARA: JANET GIBA NOTICE OF INTENTION TO ,, TAKE DEFAULT DATE OF NOTICE/FECHA DEL AVISO: September 16, 2003 IMPORTANT NOTICE: YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND' OUT WHERE YOU CAN GET LEGAL ~ CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 TELEPHONE: 1-800-990-9108 or (717) 249-3166 AVISO IMPORTANTE Usted esta en rebeldia porque ha fallado en tomar la ac¢ion exigida de su parte en este caso. A menos de que usted actue dentro de diez dias de la fecha de este aviso, se puede registrar una senteneia contra usted, sin el beneficio de una audiencia y puede perder su propiedad o sus derechos importantes. Us-ted debe illevar este aviso a un abogado enseguida. Si usted no tiene un abogado o no puede pagar pot los servicios de un abogado, , debe comunicarse con la siguiente oficina para averiguar donde puede obtener ayuda legal: CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE .... CARLISLE, PA 17013 TELEPHONE: 1-800-990-9108 or (717) 249-3166 BY:Alysa T~'co~ Attorney I[o~ AmericanHearifig~id Associates, Inc. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 (215) 627-0303 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 Penn Mutual Tower, 10th Floor 510 Walnut Street Philadelphia, PA 19106 Attorneys for Plaintiff AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Avenue Malvem, PA 19355 VS. Plaimiff, JANET GIBA d/b/a GIBA & OTT HEARING All) CENTER 360 Peppercorn Square Enola, PA 17025 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY LAW DIVISION DOCKET NO. 03-2811 CERTIFICATION OF MAILING OF NOTICE OF INTENTION TO TAKE DEFAULT Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, by the undersigned, hereby certifies that on September 16, 2003, the attached Notice of Intention to Take Default was sent by first class mail to: Janet Giba 360 Peppercorn Square Enola, PA 17025 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY Alysa 'c rare 6~q_u!re Atto'amey~lo~'elaintiff, American Hearing Aid Associates, Inc. - IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PRAECIPE FOR WRITE OF EXECUTION Caption: AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Ave. Malvern, PA 19355 VS. JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 and MEMBERS FIRST CREDIT UNION - GARNISHEE 3512 Market Street Camp Hill, PA ( ) Confessed Judgment ( ) Other File No. 03-2811 Amount Due $25~612.05 Interest (11/3/03 to 11/12/03) $42.69 Atty's Comm Costs TO THE PROTHONOTARY OF THE SAID COURT: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to Act 7 of the 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. Issue writ of execution in the above matter to the Sheriff of upon the following describe property of the defendant(s) County, for debt, interest and costs, PRAECIPE FOR ATTACHMENT EXECUTION Issue write of attachment to the Sheriff of Cumberland County, for debt, interest and costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personality list) GARNISH ALL CHECKING ACCOUNTS, SAVINGS ACCOUNTS, AND SAFE DEPOSIT BOXES OWNED BY DEFENDANT, JANET GIBA D/B/A GIBA & OTT HEARING AID CENTER SS# 184-38-1836. ALL ACCOUNTS ON WHICH JANET GIBA D/B/A GIBA & OTT HEARING AID CENTER~ MAINTAINS SIGNATORY RIGHTS IS SUBJECT TO THIS GARNISHMENT. and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s). (over) Date described in the attached exhibit. (Indicate) Index this writ against the garnishee(s) as a lis pendens against real estate of the defendant(s) Print Name: Address: 510 Walnu~ Street, Suit6 1000 Philadelphia, PA 19106 Attorney for: American Hearing Aid Associates~ Inc. Telephone: (215) 627-0303 Supreme Court ID No.: 84512 Notes: If real property, supply six copies of description including improvements and an original and copy of affidavit of ownership (Pa.R.C.P. No. 3129) If lengthy personalty list, supply four copies of list. To index writ, file separate praecipe with writ· LAV/~N, COLEMAN, O'NEIL, RICCI, FINARELLI & GP~AY ALYSA TALARICO, ESQ. ID #84512 5~0 Walnut Street, Suite 1000 Philadelphia, PA 19106 Attorney for Plaintiff (215) 351-1902 AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Ave. Malvern, PA 19355 JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 COURT OF COMMON PLEAS vs. No. 03-2811 and MEMBERS FIRST CREDIT UNION - GARNISHEE 3512 Market Street Camp Hill, PA INTERROGATORIES IN ATTACHMENT TO: MEMBERS FIRST CREDIT UNION 1. YOU are required to file answers to the following Interrogatories within twenty (20) days after service upon you. Failure to do so my result in judgment against you. 2. At the time you were served or at any subsequent time did you owe the defendant(s) any money or were you liable to him (her, them) on any negotiable or other written instrument, or did he (she, they) claim that you owed him (her, them) any money or were liable to him (her, them) for any reason? 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in part by the defendant or in which defendant held or claimed any interest? 4. At the time you were served or at any subsequent time did you hold a fiduciary any property in which the defendant(s) had any interest? 5. At any time before or after you were served did the defendant(s) transfer or deliver any property to you or to any person or place pursuant to your direction or consent and what was the consideration thereof? 6. At any time after you were served did you pay, transfer or deliver any money or property to the defendant(s) or to any person or place pursuant to his(her, their) direction or otherwise discharge any claim of the defendant(s) against you? 7. }{ow much is the value of any property in your po~on belonging to the defendant (s)? DATE At f (s) WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO 03-2811 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due AMERICAN HEARING AID ASSOCIATES, INC., Plaintiff (s) From JANET GIBA D/B/A GIBA & OTT HEARING AID CENTER, 360 PEPPERCORN SQUARE, ENOLA, PA 17025 (1) You are directed to levy upon the property of the defendant (s)and to sell . (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of MEMBERS FIRST CREDIT UNION - GARNISHEE, 3512 MARKET STREET, CAMP HILL, PA -- GARNISH ALL CHECKING ACCOUNTS, SAVINGS ACCOUNTS, AND SAFE DEPOSIT BOXES OWNED BY DEFENDANT, JANET GIBA D/B/A GIBA & OTT HEARING AID CENTER SS# 184-38-1836. ALL ACCOUNTS ON WHICH JANET GIBA D/B/A GIBA & OTT HEARING AID CENTER, MAINTAINS SIGNATORY RIGHTS IS SUBJECT TO THIS GARNISHMENT. GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $25,612.05 Interest 11/3/03 TO 11/12/03 - $42.69 Atty's Corem % Atty Paid $180.55 Plaintiff Paid Date: NOVEMBER 17, 2003 (Seal) L.L. $.50 Due Prothy $1.00 Other Costs CURTIS R. LONG Prothon~,gffY _~By: ~__~ ~' ~ Deputy REQUESTING PARTY: Name ALYSA TALARAICO, ESQUIRE Address: 510 WALNUT STREET, SUITE 1000 PHILADELPHIA, PA 19106 Attorney for: PLAINTIFF Telephone: 215-627-0303 Supreme Court ID No. 84512 LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 (215) 627-0303 ATTORNEYS FOR PLAINTIFF AMERICAN HEARING AID ASSOCIATES, 1NC. 289 Lancaster Ave. Malvem, PA 19355 VS. JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-2811 and MEMBERS FIRST CREDIT UNION - GARNISHEE 3512 Market Street Camp Hill, PA PRAECIPE FOR JUDGMENT UPON ADMISSION TO THE PROTHONOTARY: Please enter Judgment in favor of the Plaintiff, American Hearing Aid Associates, Inc. and against the Garnishee, Members First Credit Union, in the amount of $125.13, admitted in the Answer to Interrogatories to be in the Gamishee's possession, together with interest and costs. The amount of the Judgment of the Plaintiff against the Defendant is $25,612.05 plus costs and interest. A true and correct copy of Gamishee's Answer to Interrogatories and Verification is attached hereto. -2- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY * ATTORNEYS AT LAW SUITE 1000, 510 WALNUT STREET, PENN MUTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 ALYSA TisJ-4~RICO, ESQ. ID #84512 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 Attorney for Plaintiff (215) 351-1902 AMERICAN HEARING AID ASSOCIATES, INC. 289 Lancaster Ave. Malvern, PA 19355 JANET GIBA d/b/a G/BA & OTr HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 COURT OF COMMON PLEAS vs. No. 03-2811 IVI~MBERS FIRST CREDIT UNION - GARNISHEE 3512 Market Street Camp. Hill, PA IN'I'*~RRO~ATORIES IN ATTAC}{~ZNT TO, ~IV]BERS FIRST ~D~T ~ON C~%~NISW"E 1. You are recp/ired to file answers to the following Interrogatories within twenty (20) days after service upon you. Failure to do so my result in judgment against you. 2. At the time you were served or at any subsequent time did you owe the defendant (s) any m~ney or were you liable to him (her, them) on any negotiable or other written instrument, or did he (she, they) claim that you owed him (her, them) any money or were liable to him (her, them} for any reason? "M0 ._.,~. , ..... 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in part by the defendant or in which defendant held or claimed any interest? ~ 4. At the time you were served or at any subsequent time did you hold a fiduciary any property in which the defendant (s) had any interest? N~ 5. At any time before or after you were served did the defendant (s) transfer or deliver any property to you or to any person or place pursuant to your direction or consent and what was the consideration thereof? ~ 6. At any time after you were served did you pay, transfer or deliver any money or property to the defendant(s) or to any person or place pursuant to his(her, their) direction or otherwise discharge any claim of the defendant (s) against you? ~) How much is the value of any property in your pos~essi0n belonging to the defendant (s)? w. Attoruey~s~ for~l~ntl~f-f (s) LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 845 l 2 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 (215) 627-0303 ATTORNEYS FOR PLAINTIFF AMERICAN HEARING AID ASSOCIATES, 1NC. 289 Lancaster Ave. Malvem, PA 19355 VS. JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercom Square Enola, PA 17025 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-2811 and MEMBERS FIRST CREDIT UNION - GARNISHEE 3512 Market Street Camp Hill, PA NOTICE PURSUANT TO RULE 236 OF THE SUPREME COURT OF PENNSYLVANIA, YOU ARE HEREBY NOTIFIED THAT A JUDGMENT UPON ADMISSION HAS BEEN ENTERED AGAINST YOU 1N THE ABOVE PROCEEDING. Prothonotary IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL ATTORNEY ALYSA TALARICO AT THIS TELEPHONE NUMBER: (215) 627-0303. SHERIFF'S RETURN - GARNISHEE CASE NO: 2003-02811 P COMMONWEALTH OF PENNSLYVANIA COUNTY OF CUMBERLAND AMERICAN HEARING AID ASSOCIATE VS GIBA JANET D/B/A GIBA & OTT HE And now RONALD KERR Cumberland County of Pennsylvania, to law, at 0015:30 Hours, on the 20th day of November as herein commanded all goods, chattels, rights, debts, moneys of the within named DEFENDANT , GIBA JANET D/B/A GIBA & OTT HEARING AID CENTER hands, possession, or control of the within named Garnishee MEMBERS 1ST FEDERAL CREDIT LTNI 3512 MARKET ST ,Sheriff or Deputy Sheriff of who being duly sworn according 2003, attached credits, and , in the CAMP HILL, PA 17011 Cumberland County, Pennsylvania, by handing to RICHARD L. STARTZEL (BRANCH MANAGER) personally three copies of interogatories together with 3 true and attested copies of the within WRIT OF EXECUTION and made the contents there of known to His Sheriff's Costs: Docketing .00 Service .00 Affidavit .00 Surcharge .00 .00 .00 Sworn and subscribed to before me this ~2~ day of ~/~, ~ A.D. Pro~h~notary · So answers: R. Thomas Kline' Sheriff of Cumberland County 00/00/0000 By LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 (215) 627-0303 ATTORNEYS FOR PLAINTIFF AMERICAN HEARING AID ASSOCIATES, 1NC. 289 Lancaster Ave. Malvem, PA 19355 VS. JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-2811 and MEMBERS FIRST CREDIT UNION - GARNISHEE 3512 Market Street Camp Hill, PA NOTICE PURSUANT TO RULE 236 OF THE SUPREME COURT OF PENNSYLVANIA, YOU ARE HEREBY NOTIFIED THAT A JUDGMENT UPON ADMISSION HAS BEEN ENTERED AGAINST YOU 1N THE ABOVE PROCEEDING, Prothonotary IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL ATTORNEY ALYSA TALARICO AT THIS TELEPHONE NUMBER: (215) 627-0303. LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 (215) 627-0303 ATTORNEYS FOR PLAINTIFF AMERICAN HEARING AID ASSOCIATES, 1NC. 289 Lancaster Ave. Malvem, PA 19355 VS. JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercom Square Enola, PA 17025 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-2811 and MEMBERS FiRST CREDIT UNION - GARNISHEE 3512 Market Street Camp Hill, PA AMENDED PRAECIPE FOR JUDGMENT UPON ADMISSION TO THE PROTHONOTARY: Please enter Judgment in favor of the Plaintiff, American Hearing Aid Associates, Inc. and against the Garnishee, Members First Credit Union, in the amount of $1,330.75, purusant to the attached letter which amends the Gamishee's Answer to Interrogatories. The amount of the Judgment of the Plaintiff against the Defendant is $25,612.05 plus costs and interest. A tree and correct copy of Gamishee's Answer to Interrogatories and Verification and Correspondence dated December 9, 2003 correcting Answers to Interrogatories are attached hereto. -2- LAVIN, COLEMAN, O'NEIL, RICCI, FINARELLI & GRAY * ATTORNEYS AT LAW SUITE 1000, 5 l0 WALNUT STREET, pENN MUTUAL TOWER PHILADELPHIA, PA 19106 (215) 627-0303 P, O, BOX 40 MECHANICSBURC}, PA 17055 1-800-283-2321~ BXT 5132 or (?17) 79~$132 December 9, 2003 Alysa Talarico, Esq. Lavin, Coleman, O'Neil, R.icct, Finarclli ,e. (]ray 510 Walnut St.. Suite 1000 Philadelphia, PA. 19106 Re: lanet Giba Dear Ms. Talarico: As per our conversation, I am in receipt of the gamishmen! for the above defendant which lists the amount to be released as $125,13. As of this date, thc amount in the account is now $1,330.75. Please send me a l~tter of release for this amount at which time I will remit a check to your attention payable to American Hearing Aid Associates, Inc. If you have any questions, please feel flee to contact me. I~lice Murphy, CFE Fraud Investigator LAVIN, COLEMA~, 0'NEIL, RICCI, FINARELLI & GRAy ALYSA TDJ-4~RICO, ESQ. ID #84512 5-10 Walnut Street, Suite 1000 Philadelphia, PA 19186 Attorney for ~laintiff (215) 351-1902 AMERICAN HBARING AID ASSOCIATES, INC. 289 Lancaster Ave. Malvera, PA 19355 JANET G1BA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 COURT OF COMA~ON PLBAS vs. No. 03-2811 and MEMBERS FIRST CREDIT UNION - GARNISHEE 3512 Market Street Camp Hill, PA INTERROGATORIES IN ATTAC74MENT TO, MEMBERS FIRST CREDIT UNION 1. You are required to file answers to the following Interroc3atories within twenty (20) days after service upon you. Failure to do so my result in judgment against you, 2. At the time you were served or at any subsequent time did you owe the defendant(s) any money or were you liable to him (her, them) on any negotiable or other written instrument, or did he (she, they) claim that you owed him (her, them) any money or were liable to him (her, them) for any reason? ~0 .................. 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in part by the defendant or in which defendant held or claimed any interest? 4. At the time you were served or at any subsequent time did you hold a fiduciary any property in which the defendant(s) had any interest? 5. At any time before or after you were served did the defendant(s) transfer or deliver any property to you or to any person or place pursuant to your direction or consent and what was the consideration thereof? 6. At any time after you were served did you pay, transfer or deliver any money or property to the defendant(s) or to any person or place pursuant to his(her, their) direction or otherwise discharge any claim of the defendant(s) against you? How much is the value of any property in your possession belonging to the defendant(s)? LAV1N, COLEMAN, O'NEIL, RICCI, F1NARELLI & GRAY By: Alysa Talarico, Esquire Identification No. 84512 510 Walnut Street, Suite 1000 Philadelphia, PA 19106 (215) 627-0303 ATTORNEYS FOR PLAINTIFF AMERICAN HEARING AID ASSOCIATES, 1NC. 289 Lancaster Ave. Malvem, PA 19355 VS. JANET GIBA d/b/a GIBA & OTT HEARING AID CENTER 360 Peppercorn Square Enola, PA 17025 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-2811 and MEMBERS FIRST CREDIT UNION - GARNISHEE 3512 Market Street Camp Hill, PA ORDER TO SATISFY JUDGMENT AGAINST GARNISHEE, MEMBERS FIRST CREDIT UNION TO THE PROTHONOTARY: Kindly mark the judgment entered against Garnishee, Members First Credit Union, in the above entitled matter Satisfied, upon payment of your costs. 1834036v2 BALLARD SPAHR ANDREWS & INGERSOLL, LLP By: Alan J. Davis William A. Slaughter Douglas L. Flitter PA ID Nos. 03853, 30637 & 81479 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 (215) 665-8500 RITE AID CORPORATION Plaintiff, V. ERIC SORKIN Defendant. Attorneys for Plaintiff Rite Aid Corporation CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION NO. O3-37O2 RESPONSE OF PLAINTIFF TO DEFENDANT'S PETITION TO EXPEDITE Plaintiff Rite Aid Corporation ("Rite Aid" or the "Company"), by and through its undersigned attorneys, hereby responds to defendant Eric Sorkin's petition to expedite. While Rite Aid does not oppose (and indeed supports) the expeditious resolution of the issues in this case, Rite Aid respectfully submits that the procedure proposed by Sorkin is not the most efficient procedure to accomplish that objective, and proposes an alternative procedure designed to effect an efficient and expeditious resolution of all of the issues in the case, as outlined herein. The Factual Background of this Action. 1. On June 21, 2002, a federal grand jury sitting in the Middle District of Pennsylvania handed down an Indictment of former Rite Aid Chief Executive Officer Martin L. Grass, former Vice Chairman and Chief Legal Counsel Franklin C. Brown and Sorkin, accusing them of having engaged in a criminal conspiracy to obstruct government investigations relating to the Company and several of its former officers. The criminal conspiracy involved, among other things, providing false and misleading information to and withholding and concealing material information from Rite Aid's internal investigators, the SEC, the FBI, and the grand jury. A copy of the Indictment is attached to the Complaint of Rite Aid ("Complaint") as Exhibit A. 2. The Indictment specifically charged that in furtherance of the criminal conspiracy Sorkin lied to the grand jury about the cimumstances under which he received a letter, purportedly signed on behalf of Rite Aid by Grass on April 2, 1999 assertedly granting Sorkin substantial benefits from Rite Aid in the event of the termination of his employment. In fact, the letter was signed by Grass only after he resigned from the Company on October 18, 1999 at the request of the Company's Board, and was fraudulently back-dated to appear as though it had been created and signed while Grass was still the Company's Chief Executive Officer. The Indictment charged that Sorkin falsely testified to the grand jury that he had received such letter before Grass's resignation. A copy of the back-dated severance letter to Sorkin is attached to the Complaint as Exhibit B. 3. Under Rite Aid's Restated Certificate of Incorporation ("Certificate"), the Company was required to advance the reasonable costs its present or former officers incurred in defending any action or proceeding brought against them by reason of their service to the Company. (A copy of the Certificate is attached to the Complaint as Exhibit C.) Such advancement could be made, however, "only upon delivery to the corporation of an undertaking by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under [the Certificate] or otherwise." 2 4. The relevant provisions of Delaware law permit a corporation to indemnify its officers only "if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful." Del. Code Ann. tit. 8, § 145(a). 5. In accordance with the provisions of the Certificate, Rite Aid advanced to Sorkin costs he claims he incurred in defense of the Indictment and related proceedings, subject to his undertaking to repay such advances if it was ultimately determined he was not entitled to indemnification by the Company. The written Undertaking for Advancement of Expenses (the "Undertaking") signed by Sorkin provided: Please accept this letter as my legally binding undertaking to repay the Corporation any expenses paid by it on my behalf in advance of the final disposition of the above described [litigation], if it shall ultimately be determined that I am not entitled to be indemnified by the Corporation as authorized by Section 145 of the General Corporation Law of the State of Delaware. (A copy of the Undertaking is attached to the Complaint as Exhibit D.) 6. Pursuant to the Undertaking, Rite Aid has advanced to Sorkin certain expenses purportedly incurred by him in defense of the Indictment and related proceedings. 7. On June 26, 2003, Sorkin pleaded guilty to Count 33 of the Indictment -- conspiracy to obstruct justice -- and the United States District Court for the Middle District of Peunsylvania entered a judgment of gnilty on the plea. Sorkin entered such gnilty plea pursuant to a voluntary plea agreement with the United States. Under that plea agreement, Sorkin admitted his guilt to the crime with which he was charged in Count 33 of the Indictment and irrevocably waived his rights to contest his guilt to such crime in that proceeding or any other. Sorkin currently awaits sentencing. 8. Based on Sorkin's plea agreement, his guilty plea and plea colloquy, the United States District Court for the Middle District of Pennsylvania determined that there was an adequate factual basis for a finding of Sorkin's guilt, accepted Sorkin's guilty plea as knowingly and voluntarily made, and directed the entry of judgment of guilty on the plea. 9. By pleading guilty, Sorkin admitted to having engaged in conduct that was unlawful, not in good faith, and not in the best interests of the Company. By accepting that plea and entering judgment thereon, the court determined that Sorkin was guilty as charged, and had knowingly and voluntarily waived his fights and admitted his guilt. Such conduct forfeited any fight Sorkin might otherwise have had to indemnification, and Sorkin's guilty plea triggered Rite Aid's right to repayment of expenses previously advanced. 10. Thus, on June 26, 2003, upon learning of Sorkin's guilty plea, Rite Aid terminated his employment, discontinued advancement of his legal expenses, and demanded repayment of the sums the Company had previously advanced, as well as the outstanding balance of a loan to Sorkin that came due upon the termination of his employment. 11. On July 31, 2003, Rite Aid commenced this action, in which the Company seeks (i) to recover defense costs advanced to Sorkin by the Company subject to Sorkin's agreement to repay such advances upon determination that he is not entitled to indemnification, (ii) a declaration that Sorkin is not entitled to any further advancement or indemnification of expenses fi.om the Company, (iii) a declaration that Sorkin is not entitled to any benefits under his back-dated severance agreement, and (iv) repayment of a loan fi'om the Company to Sorkin that became due upon his dismissal. 12. Sorkin filed preliminary objections to the Complaint on August 26, 2003, but has since taken no action to have those preliminary objections heard by the Court. The Delaware Proceedings. 13. On September 15, 2003, Sorkin filed a complaint against Rite Aid in the Court of Chancery for the State of Delaware, which was virtually a mirror image of the Pennsylvania action commenced by Rite Aid. 14. On October 3, 2003, Rite Aid moved to dismiss or stay Sorkin's Delaware complaint in light of Rite Aid's first-filed action pending in this Court. 15. On November 6, 2003, the Court of Chancery granted Rite Aid's motion and stayed the Delaware action. (A copy of the Chancery Court's decision is attached hereto as Exhibit 1). 16. Promptly following that decision, counsel for Rite Aid contacted counsel for Sorkin "to discuss the current procedural posture of the Cumberland County case and how we can most efficiently move the case forward." (A copy of the letter from William A. Slaughter to Jeasica Zeldin and Steven E. Grubb, dated November 10, 2003, is attached hereto as Exhibit 2). 17. Counsel for Sorkin responded on November 11, 2003, suggesting that Sorkin file a motion for preliminary injunction on the advancement issue pursuant to Pa. R. Civ. P. 1531. (A copy of the letter from Steven E. Grubb to William A. Slaughter, dated November 11, 2003, is attached hereto as Exhibit 3). 18. On November 13, 2003, counsel for Rite Aid responded by proposing alternative procedures to present the matter promptly to this Court on a stipulation of facts, on cross-motions for summary judgment or on an expedited discovery schedule and trial by early 2004. Rite Aid's counsel further wrote that "we believe this procedure has substantial advantages over the concept you propose, which would require a bifurcation of the case, raise issues of finality of the court's decision on the advancement issue, and not lead to any quicker resolution." Rite Aid's counsel concluded by suggesting "[w]e are prepared to meet with you, and if necessary with the Cumberland County Court, to agree upon the appropriate procedures for the prompt resolution of the issues raised in this case at the parties' soonest mutual convenience." (A copy of the letter from William A. Slaughter to Steven E. G-rubb, dated November 13, 2003, is attached hereto as Exhibit 4). 19. Rather than responding to Rite Aid's offer, Sorkin filed a motion for reargument with the Court of Chancery on November 14, 2003. 20. On November 21, 2003, the Court of Chancery in a letter opinion denied the motion. The court noted that "the procedure proposed by Rite Aid appears to be a good-faith suggestion to resolve the advancement issue expeditiously... Although I need not express a definitive opinion on this issue, it appears that closing the pleadings, by way of answering the complaint and assertion of a counterclaim, may bring the advancement issue to a head more quickly than any alternative proposed by Mr. Sorkin." (A copy of the letter opinion is attached hereto as Exhibit 5). The Parties' Subsequent Discussions on Procedure. 21. Immediately upon receipt of the Court of Chancery's letter opinion, counsel for Rite Aid again promptly contacted counsel for Sorkin to "reiterate my suggestion that we attempt to confer cooperatively to agree on an appropriate procedure to follow to bring the Cumberland County proceeding promptly to resolution." (A copy of the letter from William A. Slaughter to Jessica Zeldin and Steven E. Grubb, dated November 21, 2003, is attached hereto as Exhibit 6). 22. Counsel for Sorkin responded by suggesting that Sorkin file a new complaint in Cumberland County, which the parties could submit to the Court for expedited treatment on stipulated facts. (A copy of the letter from Steven E. Grubb to William A. Slaughter, dated November 25, 2003, is attached hereto as Exhibit 7). 23. Counsel for Rite Aid responded that while Rite Aid agreed that the submission of the matter to the Court on a case-stated basis makes sense, the Company did not understand how "following such a procedure in a separate action would be more efficient than following such a procedure in the already pending action." (A copy of the letter fi'om William A. Slaughter to Steven E. Gmbb, dated December 1, 2003, is attached hereto as Exhibit 8). 24. Counsel for Sorkin responded by reiterating his position that Sorkin was only willing to agree to a procedure that would expedite his advancement claim and not Rite Aid's action against Sorkin. (A copy of the letter from Steven E. Grubb to William A. Slaughter, dated December 4, 2003, is attached hereto as Exhibit 9). 25. During a telephone conference between counsel for Mr. Sorkin and Rite Aid on December 15, 2003, counsel discussed the issues pending in this case at length, but were unable to agree on a procedure to move this action forward expeditiously. Accordingly counsel agreed to request a conference with the Court to decide how best procedurally to expedite the resolution of the parties' claims and counterclaims in this proceeding. In furtherance of that objective, Sorkin filed the present petition to expedite, in which Sorkin requests, among other relief, a "hearing regarding Mr. Sorkin's right to advancement." 7 Rite Aid's Position on the Present Request. 26. Rite Aid believes that the issues in this case can be resolved very expeditiously through cross motions for summary judgment on Rite Aid's claims against Sorkin as well as $orkin's claims against Rite Aid. There are no material facts in dispute. As to Rite Aid's repayment claim against Sorkin and Sorkin's advancement claim against Rite Aid, there is no dispute that Sorkin pleaded guilty to the crime with which he was charged by the Middle District Grand Sury, and there is no dispute as to thc procedural posture of that case: Sorkin entered his guilty plea, it was accepted by the Middle District Court and the Court directed the judgment be entered thereon, but no sentencing has yet occurred. Rite Aid understands that Sorkin will argue based upon the Delaware Chancery Court decision in the Bergonzi case that Rite Aid must continue to advance Sorkin's cost of defense notwithstanding his guilty plea. While Rite Aid respectfully disagrees with the Chancellor's decision in Bergonzi, and intends to appeal that decision following final judgment in the Bergonzi case, this Court is perfectly capable of addressing and deciding that issue, on the current record, as indeed the Delaware Chancery Court decided the issue in Ber~onzi, without the need for an evidcntiary hearing. With respect to Rite Aid's loan repayment claim against Sorkin, there is no dispute as to the balance of the loan Sorkin borrowed from Rite Aid or as to thc fact that the loan became due upon the termination of his employmcnt.~ Based upon discussions with Sorkin's counsel, Rite Aid understands that Sorkin's defense to Rite Aid's claim for repayment of this loan rests on the argument that Sorkin is excused from such repayment by virtue of an asserted "change in control" at Rite Aid. Rite Aid disagrees that any such change in control occurred. The facts relevant to this issue, however, are also not in dispute and may be addressed by the Court without the need for an evidentiary hearing. 27. Accordingly, Rite Aid continues to believe that the issues in this case can be resolved most expeditiously through a procedure whereby the pleadings are closed and the parties and the Court agree on a schedule for the briefing and argument of the issues in dispute on cross motions for summary judgment under Rule 1035 or on a stipulated set of facts under Rule 1038.1. Such a procedure would be consistent with the summary advancement procedure contemplated by Section 145(e) of the Delaware Corporation Law as noted by Chancellor Chandler in his letter opinion of November 21, 2003. 28. Rite Aid respectfully disagrees with Sorkin's suggestion that the case proceed solely on his request for an advancement. Rite Aid does not believe that such a procedure would be any more efficient or expeditious. To the contrary, it would necessarily require duplicate efforts on the part of the parties and on the Court which would be unnecessary and inefficient. Indeed, as noted by Chancellor Chandler in his letter opinion of November 21, 2003 Rite Aid's suggestion of"elosing the pleadings, by way of answering the complaint and assertion of a counterclaim, may bring the advancement issue to a head more quickly than any alternative proposed by Mr. Sorkin." Had Sorkin proceeded as Rite Aid first suggested in early November 2003, it is very likely that all of the issues in the case would have by now been fully briefed and ripe for decision by the Court. WHEREFORE, Rite Aid agrees that this matter should proceed expeditiously, but in accordance with the procedure outlined herein rather than that proposed by Sorkin. Dated: January 7, 2004 William A. Slaughter Douglas L. Flitter BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 (215) 665-8500 Attorneys for Rite Aid Corporation 10 Exhibit 1 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY ERIC S. SORKIN, : Plaintiff, : vs. : Civil Action No. 20547 RITE AID CORPORATION, : Defendant. : Chance~ Court Chambers New Castle County Courthouse Wilmington, Delaware Thursday, November 6, 2003 10:30 a.m. BEFORE: HON. WILLIAM B. CHANDLER, III, Chancellor ~ TELECONFERENCE CHANCERY COURT REPORTERS 500 North King Street - Suite 11400 Wilmington, Delaware 19801-3759 (302) 255-0525 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 APPEARANCES: JESSICA ZELDIN, ESQ. Rosenthal, Monhait, Gross for Plaintiff WILLIAM M. KELLEHER, ESQ. Ballard Spahr Andrews & -and- WILLIAM SLAUGHTER, ESQ. of the Pennsylvania Bar Ballard Spahr Andrews & for Defendant 2 & Goddess, P.A. Ingersoll, LLP Ingersoll, LLP CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3 MS. MR. William Slaughter, is Ballard, Spahr, ZELDIN: Jessica Zeldin. SLAUGHTER: Bill Slaughter, S-L-A-U-G-H-T-E-R. The firm name Andrews and Ingersoll, LLP, Counsel for Rite Aid. MS. ZELDIN: for p-taintiff, Sorkin. MR. KELLEHER: MS. ZELDIN'~ and Diane, t.he court Jessica Zeldin, counsel Bill Kelleher. Web'have all the Bills, reporter, and myself. So, I will go ahead and try to get Chancellor Chandler. THE COURT: Good morning, counsel. I apologize for keeping you waiting. I had something jump in front of you at the last second that I couldn't control. But I know you're ready to present your argument on the present motion. I've read the briefs and I'm familiar with the circumstances. And if you would like, you can tailor your arguments MS. ZELDIN: Thank you, Your Honor. MR. SLAUGMTER: Thank you, Your accordingly. Honor. Would you like me -- Wil~liam Slaughter on behalf of Rite Aid Corporation. And I appreciate that'you've read the papers, so I'll just touch CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 briefly on the the point. factual background and get directly to The salient facts here are that Eric Sorkin, who is the plaintiff in this matter, indicted in June of 2002 for having lied to the was Grand Jury investigating Rite Aid matters concerning his par~'icipation in the conspiracy to defraud the the presentation of a fraudulently and unauthorized severance letter. He pled guilty to'conspiracy to justice on June 26th of this year and admitted to having repeatedly lied to the Grand Jury about the timing of his receipt of that severance after his guilty plea, Rite-Aid company by back-dated obstruct iR would no longer advance the cost the criminal case and further it was seeking to recover a loan letter. Promptly, notified him that of his defense of notified him that that is extended and made demand for payment of that loan, which became due upon the termination of his employment. On July 31st, 2003, three weeks approximately after the guilty plea, Rite-Aid, having not heard from Mr. Sorkin, commenced an action against him in the Court of Common Pleas of CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 5 Cumberland County, principal place of resides. declaratory which is where Rite Aid has its business and where Mr. Sorkin In that action Rite Aid seeks judgment that Mr. Sorkin is not entitled to advancements of indemnification. It seeks to recover the amounts that Rite Aid previously advanced for the cost of Mr. Sorkin's defense, and it seeks to recover the outstanding balance~f the loan that just mentioned. after On September 15th, about three months the guilty plea and six weeks after Rite Aid had commenced the action in Cumberland County, Mr. Sorkin commenced the action in this court in which he seeks advancement. We have moved to stay or dismiss the action under the principles of the McWane decision, in light of the pendency of the prior action in Cumberland County. In our view, McWane clearly The parties are and the Court in applies here. are identical, capable of giving matter. In fact, cases -- pending identical. The issues Pennsylvania is fully prompt and complete justice in this there are other cases -- similar in Cumberland County against other CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 6 officers of the company. As you know, there is also a single case pending before Your Honor, Mr. Bergonzi, related to his claim for advancement. I will ~- I mean, I think everybody familiar with the McWane principles, and I won't is belabor them. But action ~as first. involves the same involves the same it is clear that the Cumberland It is clear that the action parties. It is clear that action issues. An~ we ~lieve it is clear fully capable of that the Pennsylvania court is Ihandling Now, Mr. it. made several arguments as case would not apply here. Sorkin in his papers has to why he feels the McWane And let me briefly Rite Aid respond to those. ~irst, he suggests that commenced the actions against him in Cumberland County as an improper attempt to shop. Respectfully, we disagree with that. commenced the that is where both parties are where the other action against officers that involve many of the same issues are already pending. It's an appropriate jurisdiction. It's a jurisdiction which has personal jurisdiction. forum We action in Cumberland County because located and that is former Rite Aid CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 over both of the parties. Indeed, I think we point out in our papers that there was no assurance that, had we brought an action against Mr. Sorkin in Delaware, the Delaware courts could have exercised personal jurisdiction over him without his consent. He doesh"t have any residence or other connection the state. So, Pennsylvania was a totally appropriate forum for this-acti'~n that Rite Aid brought. with Second, Mr. Sorkin argues that the issue in the Cumberland County case is not the same as the issue in this case. We respectfully disagree. We point out in our papers that the demand for relief in the Cumberland County action specifically requests the determination of the advancement issue, and that is precisely the issue that is here. Of course, the Cumberland County action involves other issues as well. But under the case law, the fact that the ' Cumberland County action is broader than this action does not mean it doesn't subsume the same issue, ~and that's the relevant inquiry under the McWane case. We also would respond to the citations that Mr. Sorkin makes in his brief to other CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 8 cases in which the Chancery Court has not applied McWane in the context of an advancement where the prior pending action is the very action for which advancement is sought. For example, the Reddy cases, which is one of the principal cases on which Mr. Sorkin Obviousl'y, have no meaning if disposition of the advancement relies, falls within that category. the concept of an advancement claim would it were to be stayed pending the underlying~-act~"n for which is sought. That is not the case here. The underlying action for which advancement is sought in this matter is separate and distinct from the action which is pending in Cumberland County seeking its termination of the advancement issue.~ There is no reason why that case cannot proceed and no reason why it can't proceed promptly and expeditiously. Finally, Your Honor, I will speak, I think, about the pendency of the Bergonzi case here~ We don't think that.that is relevant to the McWane analysis because that case does not involve the same )arties and therefore it does not involve the same )rinciples of comity and the same concern for the ~possibility of inconsistent adjudications that the CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 McWane de~ision was intended to address. The issues in Bergonzi, yes, are similar to the issues in this case~ It's no different than if there had been another case against another corporation by another officer which involves similar issues. The concern under McWane is where you have-'the same case against the same parties, and that decision holds that, in that circumstance, the Court in Delaware ought to defer-to 6'~e prior pending action. And, our motion seeks a stay in order to accomplish that objective. THE COURT: Mr. Slaughter, let me ask a couple of questions. Were you at this point through with your presentation? +MR. SLAUGHTER: I was, Your Honor. THE COURT: Let me ask you a couple questions that I had on my mind. Let me start with your last point about the Bergonzi case. I mean, just as a practical matter, given that that case i§ here and given the decision that I've issued in that case, wouldn't it make practical sense for the Court to resolve all of these cases together? MR. SLAUGHTER: Well, Your Honor, the )roblem with that -- yes, there's some practicality CHANCERY COURT REPORTERS 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 1 2 3 4 5 6 7 8 10 there. But the problem with that is that the issues are not identical. And there also are cases -- for example, the Grass case is pending in Cumberland County and is proceeding in Cumberland County. Mr. Grass has answered. And that this one, and case involves exactly the same issue as that's going to proceed in that court. There is a similarity of issues, including the issue on which you just ruled and which we, as you'know, don't agree. But that's why they're law cases. But their issues are not identical. And, for example, the issues that are remaining to be tried in the Bergonzi case are not at all the same as the issues that would be tried in the Sorkin case. Bergonzi was indicted on a conspiracy to defraud. Mr. Sorkin was not Mr. Bergonzi -- Mr. obstruction indicted on. Mr. Bergonzi never Grand Jury because Amendment rights. indicted on that count. Sorkin was indicted solely on was not on perjury. that count, which Mr. Bergonzi Mr. Sorkin was indicted testified in front of the he had asserted his Fifth So, when you get down to the will need to be decided, they are quite the issues CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 11 different. The only issue that is the same is the legal issue, which you just ruled on, about the ripeness of a counterclaim and the ripeness of a defense. And as to that issue, if Your Honor is right and either affirmed by the Supreme Court or the Supreme Court declines to take it, your ruling in Bergonzi will, I think, be certainly presented to the Court in Cumberland County when we proceed there. THE COURT:~ Wo~t the fact that you're seeking declaratory relief in Pennsylvania that Mr. Sorkin isn't entitled to benefits under the back-dated severance agreement and the repayment of a loan that supposedly became due after he was dismissed from Rite Aid, wouldn,t those issues slow down and delay the whole proceeding in Pennsylvania? MR. SLAUGHTER: We don't think so. We think that the proceeding -- if both parties want to proceed expeditiously, they can proceed expeditiously. In fact, if there is -- one of the, things we pointed out in our papers, I think, that Mr. Sorkin has not shown any inclination to pursue his rights in the Pennsylvania case expeditiously or otherwise and has not sought a prompt hearing. If, for example, he felt he wanted to CHANCERY COURT REPORTERS 9 10 1t 12 13 14 15 16 17 18 19 -20 21 22 23 24 1 2 3 4 5 6 7 8 12 pursue the case in Pennsylvania, he could seek summary judgment on the issue that you decided. He could seek injunctive relief. And those issues are not necessarily tied to the issues relating to his loan or the issue relating to his severance document. THE COURT: Well, on that note, both sides kihd of point the finger at the other for the delay that's occurred, so to speak, already in Pennsylvania. I guess my onl~ question would be: would steps Rite Aid be amenable to taking all reasonable to expedite the Pennsylvania litigation? MR. SLAUGHTER: Absolutely, Your Ronor. In fact, I think -- I don't -- you're right in saying that there is fingerpointing both ways. But I would point cfut that we commenced the Pennsylvania action within three weeks of the guilty plea, and we were not sitting on our hands. We wanted to pursue that as promptly as we could. And the delay between then and now is, with respect, not attributable to Rite Aid's unwillingness to pursue that. We would absolutely be willing to take reasonable steps to get an expeditious resolution of all the issues. THE COURT: Thank you very much, CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 13 Mr. Slaughter. Ms. Zeldin. MS. ZELDIN: Your Honor, I'd like to begin by just pointing out a somewhat bizarre result that Rite Aid seeks here, and that's a stay of Mr. Sorkin's case, which seeks to enforce what this Court' has found in the companion Bergonzi lawsuit to be, quote, a presently enforceable right to advancement in favor of an-indeihnification claim pending in Pennsylvania with which this Court's own Bergonzi opinion has deemed distinct, different and unripe. Really, it seems to me that Rite Aid is trying to further delay Mr Sorkin's right to advancement by forcing him to bring his advancement claim in Pennsylvania rather than in the logical place, which I assert is here. Rite Aid shouldn't be able to take advantage of the fact that it intends to argue to a Pennsylvania court, as they have indicated herein, that Your Honor's opinion in Bergonzi was wrongly decided and thereby secure a stay of this action and force Mr. Sorkin to bring his claim in a forum not of his choosing. CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 14 Rather than address the facts, let me address the lack of the identity of issues, the Pennsylvania Court's inability to provide prompt and complete justice, and then the principles of comity and efficient justice that militate against the stay here. If you would like, I can end with a discussion of Mr. Sbrkin's motion to expedite as well. THE COURT: That's fine. MS. ZELDIN: ~ith"~r~espect to the identity of the issues. The Pennsylvania indemnification lawsuit in this action does not involve the same issues. The Pennsylvania indemnification lawsuit is premised on the right of indemnification. This action is ~premised on the right of advancement. Your Honor, in your recently issued Bergonzi opinion, has recognized the distinction between advancement and indemnification and found them to be separate and distinct rights. Indeed, as shown in the Bergonzi decision, one claim -~ advancement -- is ripe, while the other claim -- indemnification ~- has not yet matured. Under these circumstances, I assert that the two claims cannot be the same. In fact, in our brief we highlighted the differences and the factual CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 15 determinations, the sort of documentation that would be necessary to prove these claims, and Rite Aid did not contest or rebut that. Rite Aid's only response is that they are seeking in the Pennsylvania action a request that Mr. Sorkin be denied further advancement. But that claim is completely derivative and,-as a result of their requested finding that Mr. Sorkin is not entitled to indemnification. The Penns~lvan~ court is not capable of prompt and complete justice. As mentioned earlier, Mr. Pennsylvania. Sorkin has not joined his claim in In fact, I understand that filing such of his preliminary a claim objections. this Court or advancement and thereby based on your objections. would constitute I don't for Mr. a waiver claims as a forego what Bergonzi believe it's appropriate for Sorkin to file his Delaware counterclaim in Pennsylvania we believe to be meritorious, opinion, preliminary In addition, the Pennsylvania court is not capable of prompt and complete justice. I appreciate Rite Aid's pledge to'take all reasonable steps to expedite the Pennsylvania case, but the Pennsylvania action is not capable of providing the CHANCERY COURT REPORTERS 8 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 1 2 3 4 5 6 7 16 same prompt proceeding. relief as this Court can in a summary I believe Rite Aid points to two different procedural remedies that we allegedly should have prevailed ourselves of: one is Pennsylvania Rule 1035.1, which deals with summary judgment, and the other one is Pennsylvania Rule 1531, which deals with preliminary injunctions. Neither of those procedures p~ovi~ the prompt and complete relief that a summary proceeding in this court can. The summary judgment procedure is similar to ours in that it requires that there will be no factual issues in dispute. The imposing party can invoke a procedure similar to Rule 56(f) to stall briefing and ask for additional discovery. Even with the pledge of taking all reasonable steps necessary, I don't know that Rite Aid would be willing to proceed if they believed that there were factual issues in dispute. Additionally, the briefing on such motion is, under the rule, at least a month and a half before you would even get to the conclusion of briefing after the filing of an opening brief, at a CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 17 best. Thereafter, there's no assurance that one's briefing is complete. The Pennsylvania court would rule promptly. Likewise, Rule 1531, which is the second procedure Rite Aid clafms would be available to Mr. Sorkin if he brought his advancement claim in Cumberland County, is not helpful to him. That is past preliminary injunction practice. It's only available in nonjury proceeding's~ to enforce rights ~here there is no adequate remedy at law. Moreover, it allows only for y relief; and even then, would be required to post bond. could not secure th~ which is more li.~e a Pennsylvania based Additionally, brief, the Pennsylvania case the pleadings at this stage effort to advance that case. final rel~ief that he mandatory injunction the prevailing party Thus, Mr. Sorkin seeks here, on those procedures. in as we noted in our beyond is not advanced a trial by jury on various different will require different discovery' and, pointed out, will likely delay final Again, you mentioned and Rite And they have issues, Aid has made no requested which as Your Honor disposition. the CHANCERY COURT REPORTERS 18 1 fingerpointing. I really must say that I do not 2 think it's appropriate for Rite Aid to claim that 3 Mr. Sorkin should have brought his lawsuit in 4 Pennsylvania and that he's done nothing to advance 5 his claim in Pennsylvania. It's undeniable that he's 6 a defendant in Pennsylvania. It's also undeniable 7 that he-~timely met his obligations under the 8 Pennsylvania rules with respect to the Pennsylvania 9 action. And it's undeniable Ghat ~% has moved 10 promptly in this court to pursue the claims that he's 11 chosen to bring here. Mr. Sorkin is under no further 12 obligations to advance the Pennsylvania action. 13 Additionally, the Delaware cases that 14 we cite in our brief -- for example, Reddy, Biovail, 15 Fujisawa -- with a ~uggestion that the Court should ' 16 look with particular harshness or should be 17 particularly investigatory in looking at the amount 18 of time that it will take for an advancement case to 19 )roceed in a foreign jurisdiction, out of a -20 ~ecognition that de~ying a director/officer,s right 21 to timely advancement can be essentially tantamount 22 to denying the statutory remedy itself. 23 As Mr. Slaughter said, Rite-Aid tried 24 to extinguish these cases based on the fact that the CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 19 advancement actions in those cases arose out of the first filed actions themselves. I think this is one without a meeting. Those cases were concerned with the length of time that a stay would delay a ruling on plaintiff's advancement case. And given the length of time that I just -- and described in our brief that it will take the Pennsylvania indemnification lawsuit to reach conclusion. Especially justified. efficient in light of those an~-illaries, no stay is Moving on to justice. issues of comity and The Bergonzi suit is pending in judicial economy which do involve front of Your Honor. I believe that is' served by having these two cases, similar legal issues and may involve some of the same witnesses, tried at the same time. Rite Aid's claim that they don't involve the same issues as Mr. Bergonzi, and Mr. Sorkin is not represented by the same counsel and not charged with the same crime, these distinctions are one without any practical difference with respect to the Court's comity analysis. That case is going t~ go forward. Court is familiar with the issues. They have Honor has already ruled twice with respect to This ~- Your CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 20 Mr. Bergonzi,s judicial sense case. I think it makes practical to move forward with this case now. Rite Aid says, "No, no, no. We should look to the four cases that are pending in Pennsylvania.,, Today they have only cited one, and that's because only one of those cases -- incidentally, all of which were filed after the Bergonzi lawsuit -_ only one of them has anything to 9 do with either advancement or-indemnification. 10 That's the Grass case. That case provides a nice 11 illustration of the delays that Mr. Sorkin would face 12 in Pennsylvania if he were to be forced to bring his 13 counterclaim there. My understanding is that case 14 has not progressed beyond the pleading stage. No 15 judge has been assigned. There's no judge who is as 16 familiar with the issues as Your Honor is. 17 Finally, I'd like to clear up some 18 issues with respect to forum shopping. First, we 19 never accused Rite Aid of forum shopping and that · -20 argument is a complete red herring, nor is Mr. Sorkin 21 guilty of forum shopping. Rather than forego his 22 well-asserted preliminary objections to the ripeness 23 of the Pennsylvania action, Mr. Sorkin, ~who is an 24 officer of a Delaware corporation, filed this suit CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 21 seeking to enforce his statutory rights under Delaware law, rights of the general assembly, as expressed, should be similarly adjudicated against Delaware entity and he sought to do so in Delaware. Under these circumstances, there's no reason for this court to exercise its discretion by deferring to the slow~'moving Pennsylvania case. I can go on to talk about expedition, if Your Honor likes, or can I a~swer any questions? THE COURT: Why don't you go ahead and complete what further statements you'd like to make, Ms. Zeldin. MS. ZELDIN: With respect to expedition, for the same reasons that Your Honor has expedited the Bergonzi lawsuit, we believe that expedition is appropriate here. Your Honor should have already addressed all of Rite Aid's arguments as they appear to be similar in both cases. presentation? THE COURT: Does that complete your MS. ZELDIN: It does. THE COURT: The 0nly other questions I have for you, Ms. Zeldin -- I mean, on your point about the alacrity with which the Court of CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 22 Common Pleas in Pennsylvania could proceed to a final determination, I mean, isn't that a function of two parties cooperating to expedite matters? And if they cooperate and work with the Court, what reason should I have for disbelieving the Court in Pennsylvania acting court ih Delaware? MS. ZELDIN: Honor, that there is no which exists here for a merits with expedited the capacity or ability of as promptly as a Well, I understand, Your proce~ure~imilar to that summary adjudication on the discovery. It is simply something that doesn't exist. And especially gi'ven the existence of the collateral claims, which would have to be severed from the counterclaim that Mr. Sorkin would still have to bring, and then the procedures for preliminary objections, pleadings, et cetera would have to be exhausted. That even when we finally got to discovery, there would be nothing that would allow for final adjudications on the merits, short of a trial. And that, I understand, is not going to be for years off, based on the Court's schedule. THE COURT: As far as the Bergonzi matter. You're right. That matter is here. I'm CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 familiar with case, which, anomalous and reversed by the ~ould take back worry about it. that. I've issued a ruling in the of course, Mr. Slaughter thinks is problematic and probably will be Delaware Supreme Court. MR. SLAUGHTER: Your Honor, if I those words, I would. THE COURT: No, Mr. Slaughter. Don't MR. SLAUGHTER: ~ecause my colleague, Mr. Kelleher, already pointed out that th.ey were thrown back at me. THE COURT: Well, part of the enjoyment of practice is differences of opinion. I do not h~ve a thin Skin. I'm 0nly joking with you. ER. SLAUGHTER: I appreciate that, Your Honor. I took it in that light. THE COURT: To you, Ms. Zeldin, my only point is, I don't know how quickly the Bergonzi matter will get decided. It may well be that the , Supreme Court will accept certification, and it could. Mr. Slaughter.s Other point is that, whether it would be good for the system, I'm not -- this Court isn't going to be the Court that's going CHANCERY COURT REPORTERS 1 2 3 4 6 7 8 9 10. 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 24 to decide all these cases involving indemnification and advancement of various corporate officers of Rite Aid growing out of all these incidents. Like it or not, they're going to be decided in different jurisdictions. MS. ZELDIN: That's right, Your Honor. I admit that you will be deciding the Bergonzi case and some Pennsylvania court in the future will be deciding the G~ass ~'ase, which, again, pleadings. But that does who is stuck in the middle, choice of forum. And likewise, Rite Aid, three months before, or at Sorkin chose this forum, is entitled to som~ a forum. Mr. Sorkin roughly three months be an issue about his.rights thereto with the company. seemed to has not gotten beyond the not mean that Mr. Sorkin, should be denied his chosen THE COURT: come with who chose a forum at least least six weeks before Mr. Rite Aid likewise, I guess, deference to its first choice of didn't file an action here until after he knew there was going to advancement and So, the concern about promptness and delay a somewhat hollow note to them. MS. ZELDIN: Let me address concerns with respect to promptness your in a way that I CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 hope you'll understand to be based on practicalities. Mr. Sorkin is an individual seeking corporate counsel in Wilmington without any assurances that some corporation will ultimately advance those fees. And, in fact, with the track record of a corporation not hope-~you can understand the difficulties that that creates in and filing a prompt lawsuit. ~ THE Ms. Zeldin. advancing those fees, I practiCal realities and securing counsel COURT: I do appreciate that, Mr. Slaughter, is there anything you'd like to reply with? MR.' SLAUGHTER: No, Your Honor. I think you -- my~sense is, from questions that you've asked, you understand the issue here. THE COURT: I appreciate, counsel, you're being available today to argue, and I appreciate your accommodating me personally by , agreeing to present this argument over the telephone. I have thought about the matter before we convened the conference call and your comments have been helpful to me. But I think I'm in a position where I can give you a decision today, CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 26 having, as I said, considered the briefs and now your argument. My conclusion is that I ought to stay this proceeding in favor of the one pending in the Court of Common Pleas at Pennsylvania. Under the Supreme Court of Delaware.s McWane and Fujisawa decisions, this Court has the discretion to stay an action in favor of a Pennsylvania action if the moving party -- in this case demonstrates, first, that filed before this action; advancement issue is present action; and, third, that the capable of rendering that issue. ~ 'Rite~id __ the Pennsylvania second, that the action was in the Pennsylvania Pennsylvania Court is prompt and complete justice on The before this action. That indisputable. There also and issues between the actions. Delaware, the plaintiff, adjudicate his right to incurred in connection with a out of his defendant, Pennsylvania action was filed fact is undisputed and is an identity of parties In this action in Sorkin, seeks to summarily advancement of criminal employment at Rite Aid. has moved to stay legal expenses action arising Rite Aid, the this proceeding pending CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 27 the outcome previously action and in the the same. Unlike Fujisawa decision, In both actions a to advancement is of the action that Rite Aid brought in Pennsylvania. The parties in this first filed Pennsylvania action are the facts in the Supreme Court's the issues are the same as well. determination of Mr. Sorkin's right sought. Based on reviewing the complaint in the Pennsylvania Rite Aid and upon consider-lng the parties in this proceeding, the issue of Mr. Sorkin's right squarely before the Pennsylvania court. issue is whether the Pennsylvania court rendering prompt and complete.justice. action brought by the representations of it appears to me that to advancement is The only is capable of Pennsylvania can easily render complete justice. There's no issue present before this Court that cannot be resolved by the Pennsylvania court. There is also every indication that Pennsylvania can render prompt justice. Although~,the Court's flattered by Mr. Sorkin's argument that the Delaware Court of Chancery is capable of adjudicating issues more effi'ciently than the courts of Pennsylvania, ultimately the fact that this Court could, if it made special accommodations in i'ts CHANCERY COURT REPORTERS 10 11 12 13 14 15 16 17 18 19 -20 21 22 23 24 1 2 3 4 5 6 7 8 9 28 calendar, resolve Mr. Sorkin's dispute more quickly, does not prevent me from invoking the Court's inherent discretion, as recognized in McWane, to stay this action. Even if Mr. Sorkin did not file this action until several months after Rite Aid informed him that it would not advance him litigation expenses; I again feel that his current need for expedition appears to be less than compelling. Additionally,-the-~cWane doctrine built on the judicial authority of our difference of speed insufficient reason, exercise of this control its own is principle of coding and respect for the sister states. A marginal in adjudication is an in my opinion, to trump the Court's inherent discretion to doeket and to stay this action. Let me hasten to make clear, however, that I'm not dismissing this action. I'm only staying this action pending the resolution of the advancement issue currently pending in the first filed Pennsylvania action. In addition, let me hasten to add, I stay this action only on the condition that Rite Aid commits to'diligently prosecute the advancement issue in the Pennsylvania court. CHANCERY COURT REPORTERS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 29 I would ask that the parties submit an order that appropriately reflects and implements this decision. And Mr. Slaughter, if you would at my request take a first draft' at that and share it with Ms. Zeldin and present it to the Court hopefully by tomorrow, I will be able to sign the order and file it immediately. Honor. MR. SLAUGHTER: Thank you, Your questions , being MS. THE counsel ? MS. ZELDIN: Thank you, Your Honor. COURT: Are there any other ZELDIN: THE COURT: available.~ Court's No, Your Honor. Th.ank you very much for in recess. (Court adjourned at 11:10 a.m.) CHANCERY COURT REPORTERS 8 9 10 11 12 13 14 15 16 17 18 19 _20 21 22 23 24 30 1 CERTIFICATE 2 I, DIANE G. McGRELLIS, Official 3 Reporter for the Court of Chancery of the State of 4 Delaware, do hereby certify that the foregoing pages 5 numbered 3 through 29 contain a true and correct 6 transcription of the proceedings as stenographically 7 reported by me at the hearing in the above cause before the Chancellor of the State of Delaware, on the date therein indicated. -- ~ IN WITNESS WHEREOF I have hereunto set my hand at Wilmington, this 6th day of November, 2003. CSR 108-PS Expires Permanent Official Reporter for the Court of Chancery of the State of Delaware CHANCERY COURT REPORTERS Exhibit 2 LAW OFFICES BALLARD SPAHR ANDREWS ~- INGERSOLL, LLP t735 MARKET STREET, BIST FLOOR pHILADELPHIA, PENNSYLVANIA 19103-7599 ~ 15-665-S500 FAX: ~ 15-864-8999 WWW.BALLARDSPAH R.COM BALTIMORE, MD DENVER, CO SALT LAKE CITY, UT VOORHEES, NJ WAShINGTON, DC WILMINGTON, DE November 10, 2003 VIA FACSIMILE 302-658-7567 VIA FACSIMILE 717-234-6808 Jessica Zeldin, Esq. Rosenthal, Monhait, Gross & Goddess, P.A. 919 North Market Street Suite 1401 Wilmington, DE 19899 Steven E. Grubb, Esq. Goldberg, Katzman & Shipman, 320 Market Street Strawberry Square Harrisburg, PA 17108-1268 Rite Aid Corporation v. Eric Sorkin Dear Ms. Zeldin and Mr. Grubb: In light of Chancellor Chandler's decision granting Rite Aid's motion to stay Mr. Sorkin's Delaware Chancery Court Action pending resolution of the Cumberland County proceeding, would appreciate it if one or both of you would call me to discuss the current procedural posture of the Cumberland County case and how we can most efficiently_move that ca3~e~orward. WAS/pam Group Send Report Jobnumber Date Document pages Start time End tiae Successful Fax number : 312 Nov-10 05:09pm 02 Nov-10 05:09pa Nov-lO 0§:llpm ~913026587567 ~917172346808 Unsuccessful Time Tel line Name : Nov-10-03 05:llpm : +12158641698 : BALLARO SPAHR Pases sent Exhibit 3 320 MARKEeTREET · STRAWBERRY SQUARE P.O. Box 1268 * HARRISBURG, PENNSYLVANIA 17108-1268 717.234.4161 · 717.234.6808 (FAx) GOLDBERG, KATZMAN O~ SHIPMAN, ATTORNEYS AT LAW November 11, 2003 OF COUNSEL F. LEE SHIPMAN COUNSEL JOSHUA D. LOCK ARNOLD B. KOGAN ARTHUR L. GOLDBERG (1951-2000) HARRY B. GOLDBERG (1961-1998) RONALD M. I(ATZMAN PAUL J. I~SPOSITO NElL HENDERSHOT J. JAY COOPER THOMAS E. BRENNER JOHN A. STATLER APRIL L. STRANG-KUTAY GUY H. BROOKS JEFFERSON J. SHIPMAN JERRY J. Russo MICHAEL J. CROCENZI THOMAS J. WEBER STEVEN E. GRUBB JOHN DELORENZO JOHN R. NINOSKY ROYCE L. MORRIS DAVID M. STECKEL HEA'rltER k,. PATERNO ~ENJANHN D. ANDREOZZI VIA FACSIMILE and U.S. MAIL William Slaughter, Esq. Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 Re: Rite Aid Corporation v. Eric Sorkin, No. 03-3702 (Cumberland County Court of Common Pleas) Dear Mr. Slaughter, In light of the recent ruling staying the advancement proceeding in Delaware, and requiring, as a condition of that stay, your diligence in prosecuting the advancement aspects of the Pennsylvania case, I write to submit a suggested procedure which would efficiently move the advancement issue through the Pennsylvania courts. This proposed procedure flows from the premise - which Rite Aid argued to the Delaware Court and which the Delaware Court adopted - that the advancement issue is squarely before the Pennsylvania court. Accordingly, the advancement issue should be able to proceed to resolution without the necessity of a responsive pleading or counterclaim, from us. The procedure also adopts as its foundation your claim to the Delaware Court that a Motion for Preliminary Injunction is appropriate under the circumstances. The Delaware Court found that the Pennsylvania court is capable of prompt and complete justice. While there is no procedure in Pennsylvania exactly like the Delaware procedure to determine the advancement issue, the closest parallel in Pennsylvania at achieving a prompt resolution appears to be a Motion for Preliminary Injunction. We would suggest the following procedure: a. We promptly file a Motion for Preliminary Injunction, per Rule 1531. ::ODMAIPCDOCSIDOCSIIO00911$ William Slaughter, Esq. November 11, 2003 Page 2 b. The court schedules a prompt hearing date. The parties agree that any determination with respect to Mr. Sorkin's fight to advancemem be a final determination, in line with the relief available in Delaware. Please contact me if you concur with the suggested procedure or if you have another procedure you would like to propose. SEG/jlb cc: Eric Sorkin ::ODblA\P£DOCS~DOCS\100091X3 Exhibit 4 LAW OFFICES BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 MARKET STREET, 5IST FLOOR PHILADELPHIA, PENNSYLVANIA 19103-7599 WILLIAM A. SLAUGHTER BALTIMORE; MD DENVER, CO SALT LAKE CITY, UT VOORHEES, NJ WASHINGTON, DC WILMINGTON, DE November 13, 2003 VIA FACSIMILE 717-234-6808 Steven E. Grubb, Esq. Goldberg, Katzman & Shipman, 320 Market Street Strawberry Square Harrisburg, PA 17108-1268 Rite Aid Corl0oration v. Eric Sorkin Dear Mr. 2003. Grubb: This is in response to your letter of November 11, As we understand the current procedural posture of this case, Rite Aid filed a complaint seeking declaratory and monetary relief, and Mr. Sorkin has filed preliminary objections which have yet to be briefed or argued. Those preliminary objections raise issues that are technical rather than substantive (e.q., insufficient specificity, pleading errors, impertinent matter), and do not seek dismissal of the entire case. In order for Mr. Sorkin's affirmative claim against Rite Aid to proceed in this action, it seems to us that he will need to respond to the complaint and to assert his claim by way of counterclaim in that responsive pleading. It also appears to us that the salient facts in this matter are mostly, if not entirely, undisputed and that the case may therefore be presented to the Court on cross motions for summary judgment under Rule 1035, or even on stipulated facts under Rule 1038.1. Accordingly, we suggest the following as a procedure most likely to get this matter resolved efficiently and expeditiously: 1. Mr. Sorkin withdraw his preliminary objections, without prejudice, and file an answer to the complaint together November 13, 2003 Page 2 with any counterclaim he may desire to assert, including his claim for advancement under the relevant provisions of Rite Aid's Certificate of Incorporation. 2. Rite Aid promptly respond to that counterclaim and thereby close the pleadings. 3. The parties agree to a schedule for briefing and argument on cross motions for summary judgment or on the presentation of the case to the Court on stipulation of facts under Rule 1038.1. 4. Alternatively, if you feel a trial is required, we agree on a discovery and pretrial schedule that would enable the case to be tried early next year. We believe this procedure has substantial advantages over the concept you propose, which would require a bifurcation of the case, raise issues of the finality of the Court's decision on the advancement issue, and not lead to any quicker resolution. We are prepared to meet with you, and if necessary the Cumberland County Court, to agree upon the appropriate procedures for the prompt resolution of the issues raised in this case at the parties' soonest mutual convenience. I look forward to hearing from you. ~3erely ~ l~ WAS/pam Confirmation Report- Memory Send Time Tel Tine Name : Ney'13-03 12:21pm : +12158641698 : BALLARD SPANR Job number Date To 368 Nov-13 12:lapm 91T172346808 Document paps Start time End time Pages sent Status Job number : 368 03 Nov-13 12:19pm Nov-13 12:21pm O3 OK ~* SEND SUCCE~$~S, FUL Exhibit 5 William B. Chandler III Chancellor COURT OF CHANCERY OF THE STATE OF DELAWARE November 21, 2003 P.O. Box 581 Georgetown, DE 19947 Tclcphonc {302) 856-5a24 Facaimile {302) 856-~251 Jessica Zeldin Rosenthal, Monhait, Gross & Goddess, P.A. 919 N. Market Street, Suite 1401 Wilmington, DE 19801 William Kelleher Ballard, Spahr, Andrews & Ingersoll, LLP 919 N. Market Street, 17th Floor Wilmington, DE 19801 Re: Sorkin v. Rite Aid Corporation Civil Action No. 20547-NC Dear Counsel: This letter addresses Eric Sorkin's motion to reargue this Court's November 6th decision staying this proceeding in favor of a first-filed action in Pennsylvania. For the reasons set forth below, I deny the motion. Mr. Sorkin's motion is premised on this Court's alleged misapprehension of material facts relating to (1) whether Mr. Sorkin's right to advancement is before the Pennsylvania Court and (2) whether Mr. Sorkin must waive certain preliminary objections to Rite Aid's complaint in the Pennsylvania action in order to adjudicate the advancement issue promptly, thereby precluding the Pennsylvania Court from rendering complete justice. The first issue Mr. Sorkin raises seeks to reargue whether, under McWane,~ there is an identity of issues between this action and the ~ McWane Cast Iron Pipe Corp. v. McDowelI-Wellman Engineering Co., 263 A.2d 281 (Del. 1970). Pennsylvania action. In my November 6th decision, I noted that Mr. Sorkin's right to advancement was squarely before the Pennsylvania Court. In a November 13 letter to Mr. Sorkin's Pennsylvania counsel, Rite Aid's Pennsylvania counsel, Mr. Slaughter, stated that "In order for Mr. Sorkin's affirmative claim against Rite Aid to proceed in [the Pennsylvania] action, it seems to us that he will need to respond to the complaint and to assert his claim by way of countemlaim in that responsive pleading." Mr. Sorkin argues that this Court, based on the above statement, was "misled" by Mr. Slaughter as to the identity of issues in the two actions. I do not think this Court was misled by Rite Aid's counsel.2 The procedure proposed by Rite Aid appears to be a good-faith suggestion to resolve the advancement issue expeditiously, rather than an admission that the advancement issue is not before the Pennsylvania Court. Although l need not express a definitive opinion on this issue, it appears that closing the pleadings, by way of answering the complaint and assertion of a counterclaim, may bring the advancement issue to a head more quickly than any alternative proposed by Mr. Sorkin. Regardless, it does not appear that Rite Aid is inflexible in this regard. Rite Aid, in its November 13th letter, stated it was prepared to meet with Mr. Sorkin and the Pennsylvania Court to agree on the most appropriate procedure for resolving the advancement issue promptly.3 The second issue raised by Mr. Sorkin seeks to reargue whether the Pennsylvania Court is capable of prompt and complete justice. In this regard Mr. Sorkin points again to Mr. Slaughter's letter of November 13th, which suggests that Mr. Sorkin ,'withdraw his preliminary objections, without prejudice" prior to answering the Pennsylvania complaint. Mr. Sorkin argues that he is being fomed to waive "well-founded" objections in order to move the Pennsylvania action forward expeditiously. Mr. Sorkin glosses ~ And I do not take such an accusation regarding the conduct of opposing counsel lightly. 3 This fact was not mentioned in Mr. Sorkin's motion for reargument. Also left unmentioned in Mx. Sorkin's motion is that Rite Aid, not Mr. Sorkin, first sought to reach a cooperative solution for expedition of the Pennsylvania action. Mr. Sorkin's motion simply states that "After the Opinion was rendered, plaintiff's Pennsylvania counsel contacted Rite Aid to suggest a procedure by which the advancement issue could be efficiently moved through Pennsylvania's courts." Unmentioned is a letter from Mr. Slaughter from the day before requesting a conference between the parties to discuss these issues. 2 over, however, the fact that Rite Aid suggests that the waiver of preliminary objections be "without prejudice.''4 Additionally, as noted above, Rite Aid has not rejected the approach proposed by Mr. Sorkin and appears willing to devise a mutually convenient solution. For all of these reasons, I deny Mr. Sorkin's motion for reargument. IT IS SO ORDERED. Very truly yours, /S/William B. Chandler III William B. Chandler III WBCIIl:meg This fact was also not mentioned in Mr. Sorkin's motion. Exhibit 6 LAW OFFIC[S BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 MARKET STREET, 51ST FLOOR pHiLADELPHIA, pENNSYLVANIA 19103-7599 FAX: 2 I S-864-8999 WWW.BALLARDSPAH R.COM BALTIMORE, MD DENVER, CO SALT LAKE CITY, UT VOORHEES, NJ WASHINGTON, DC WILMINGTON, DE November 21, 2003 VIA FACSIMILE 302-658-7567 Jessica Zetdin, Esq. Rosenthal, Monhait, Gross & Goddess, P.A. 919 North Market Street Suite 1401 Wilmington, DE 19899 VIA FACSIMILE 717-234-6808 Steven E. Grubb, Esq. Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square Harrisburg, PA 17108-1268 Rite Aid Corporation v. Eric Sorkin Dear Ms. Zeldin and Mr. Grubb: In light of Chancellor Chandler's decision today denying Mr- Sorkin's motion for reargument, I reiterate my suggestion that we attempt to confer cooperatively to agree on an appropriate procedure to follow to bring the Cumberland County proceeding promptly to resolution. I am available at your convenience. WAS/pam LAW OFFICES BALLARD SPAHR ANDREWS & INGERSOLL, LLP 1735 MARKET STREET, 51ST FLOOR PHILADELPHIA, PENNSYLVANIA 19103-7599 WILLIAM A. SLAUGHTER BALTIMORE, MD DENVER, CO SALT LAKE CITY, UT VOORHEES, NJ WASHINGTON, GC WILMINGTON, DE November 21, 2003 VIA FACSIMILE 302-658-7567 VIA FACSIMILE 717-234-6808 Jessica Zeldin, Esq. Rosenthal, Monhait, Gross & Goddess, P.A. 919 North Market Street Suite 1401 Wilmington, DE 19899 Steven E. Grubb, Esq. Goldberg, Katzman & Shipman, 320 Market Street Strawberry Square Harrisburg, PA 17108-1268 Re: Rite Aid Corporation v. Eric Sorkin Dear Ms. Zeldin and Mr. Grubb: In light of Chancellor Chandler's decision today denying Mr. Sorkin's motion for reargument, I reiterate my suggestion that we attempt to confer cooperatively to agree on an appropriate procedure to follow to bring the Cumberland County proceeding promptly to resolution. I am available at your convenience. WAS/pam Group Send Job number Date Document pages Start time End time Successful Fax number Unsuccessful I~epo r t : 490 : Nov-21 05:23pm 02 flov-21 05:24pm Nov-21 05:26pm ~91302658756T ~917172346808 Time Tel line Name Nov-21-03 05:26pm +12158641698 BALLARD SPAHR Pages sent Exhibit 7 320 MARKET ~m~'REET · STRAWBERRY SQUARE P.O. BOX 1268 · HARRISBURG, PENNSYLVANIA 17108-1268 717.234.4161 * 717.234.6808 (FAx) GOLDBBRG, KATZMAN ATTORNEYS AT LAW VIA FACSIMILE and U.S. MAIL SHIPMAN, P.C. November 25, 2003 OF COUNSEL F. LEE SHIPMAN COUNSEL JOSHUA D. LOCK ARNOLD B. KOGAN ARTHUR L. GOLDBERG (1951-2000) HARRY B. GOLDBERO (1961-1998) RONALD M. KATZMAN PAUL J. ESPOSITO NElL HENDERSHOT J. JAY COOPER THOMAS E. BRENNER JOHN A. STATLER APRIL L,. STRANO-KUTAY OUY H. BROOKS JEFFERSON J. SHIPMAN JERRY J. RUSSO MICHAEL J. CROCENZI THOMAS J. WEBER STEVEN E. GRUBE JOHN DELORENZO JOHN R. NINOSKY ROYCE L. MORRIS DAVID M. STECKEL HEATHER L. PATERNO BENJAMIN D. ANDREOZZI William Slaughter, Esq. Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 Re' Rite Aid Corporation v. Eric Sorkin, No. 03-3702 (Cumberland County Court of Common Pleas) Dear Mr. Slaughter, In response to the Court's Ruling of November 21, 2003, and considering our respective proposals, the following should provide a workable framework towards moving the advancement action forward. Mr. Sorkin files an independent claim, on strictly the advancement issue, in Cumberland County. The Complaint would be similar to what was filed in Delaware. Since counterclaims are permissive in Pennsylvania, this would appear to be Mr. Sorkin's right, and an appropriate procedure; You would have ten days in which to file an answer and any new matter. We suggest the expedited response period since, for several weeks now, you have had the Delaware Complaint; We would have a ten day period to reply to any new matter you would raise; As you suggested in your prior letter, we would, within twenty days, agree to a set of stipulated facts relevant only to the advancement action. We could begin these discussions immediately so that the stipulation would be completed as soon as possible; : :ODMA ~PCDOCS~DOCSl l O009115 William Slaughter, Esq. November 25, 2003 Page 2 We would submit the case to the court pursuant to Pa. R.C.P. 1038.1 for disposition. I believe this combines several aspects of our two proposals into a framework that, procedurally, would be proper with only a slight expedition of the pleading deadline in the case. With regard to your suggested procedure, the reason we cannot agree to this is that we do not believe that your indemnification claim, nor your claim under the loan agreement, are going to be as easily litigated as you seem to think. Even if the preliminary objections are over-ruled, we will need depositions, requests for production of documents, interrogatories and requests for admissions in that case. Thus, moving the entire case forward, rather than just the advancement part, would not keep pace with the advancement action, as you are apparently suggesting. Please contact me with any thoughts you might have on this suggested procedure. SE /jlb cc: Eric Sorkin ::OD/V~A\PCDOCS\DOCS\ 1000g 1 X5 Exhibit 8 /AW OFFICES BALL. RD SPAHR ANDREWS & INOERSOLL, LLP 1735 MARKET STREET. 515, FLOOR PHILADELPHIA. PENNSYLVANIA I9i03-7599 215-66B-BBO0 December 1, 2003 BALTIMORE. MD DENVER. CO SALT LAKE CITY. UT VOORHEES. NJ WASHINGTON. DC VIA FACSIMILE 717-234-6808 Steven E. Grubb, Esq. Goldberg, Katzman & Shipman, 320 Market Street Strawberry Square Harrisburg, PA 17108-1268 Re: Rite Aid Corporation v. Eric Sorkin; No. 03-3702 (Cun~berland County Court of Common Pleas) Dear Mr. Grubb: I hope you had a good Thanksgiving. This is in response to your letter of November 25 proposing an alternative procedure to litigate Mr. Sorkin's advancement claim in Cumberland County. You suggest in substance that a new action be commenced by Mr. Sorkin in Cumberland County and that the parties agree to an expedited schedule for Rite Aid to respond to the complaint in that new action and attempt to agree on a stipulation of facts to present the matter promptly to the Cumberland County Court. While Rite Aid is certainly willing to agree to an expedited schedule for its response to Mr. Sorkin's claim and further agrees that the idea of the submission to this matter to the Court on a case stated basis makes sense, we do not understand why you believe that following such a procedure in a separate action would be more efficient than following such a procedure in the already pending action. Rite Aid's position on the merits would be no different in a new proceeding than it is in the already pending proceeding. For example, if Mr. Sorkin were to file a separate proceeding, Rite Aid would assert as part of its defense the arguments it made in the Berqonzi action, as well as its right to an offset on account of the money Mr. Sorkin owes the Company on his loan. While we understand that Mr. Sorkin will argue that the issue of Mr. Sorkin's right to indemnification is unripe based upon the December 1, 2003 Page 2 Chancellor's decision in the Berqonzi case, no such ripeness argument could be made with respect to Rite Aid's loan repayment claim. Nor do we understand why you think such claims are complicated or would be difficult to litigate. We are unaware that Mr. Sorkin has any defense on the merits to his obligation to repay the money Rite Aid lent him. Even if he does, the parties should be able to stipulate to the facts concerning any defense Mr. Sorkin may desire to assert. We continue to believe that we can best resolve our differences on what procedure is best followed in these circumstances through a face to face (or even telephonic) discussion, rather than through an exchange of correspondence. We also renew our suggestion to involve the Cumberland County Court in such discussions. My suggestion is that we ask the Court to schedule such a conference promptly. WAS/pam 'hter Confirmation Report- Memory Send Time Tel line Name Dec-01-03 12:31pm +12158641698 BALLARD SPAHR Job number : 551 Date : Dec-OI i2:ZTpm To Docueent pages : 917172346808 : 03 Start time : Dec-gl 12:27pe End time Pa~es sent Status Job number Dec-OI 12:31pm 03 OK : ~. =~,* SEND'~dccE~FUL Exhibit 9 320 MARKET · STRAWBERRY SQUARE P.O. BOX 1268 · HARRISBURG, PENNSYLVANIA 17108-1268 717.234.4161 · 717.234.6808 (FAX) GOLDBERG, KATZMAN ~ SHIPMAN, P.G. ATTORNEYS AT LAW December 4, 2003 OF COUNSEL F, LEE SHIPMAN COUNSEL JOSHUA D. LOCK ARNOLD B. KOGAN ARTHUR L. GOLDBERG (1951-2000) HARRY B. GOLDBERG (1961-1998) RONALD M. KATZMAN PAUL J. ESPOSITO NEIL HENDERSHOT J. JAY COOPER THOMAS E. BRENNER JOHN A. STATLER APRIL L. STRANG-KUTAY GUY H. BROOKS JEFFERSON J. SHIPMAN JERRY J. Russo MICHAEL J. CROCENZI THOMAS J. WEBER STEVEN E. GRUBB JOHN DELORENZO JOHN R. NINOSKY ROYCE L. MORRIS DAVID M. STEGKEL HEATHER L. PATERNO BENJAMIN D. ANDREOZZI VIA FACSIMILE and U.S. MAIL William Slaughter, Esq. Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103-7599 Re: Rite Aid Corporation v. Eric Sorkin, No. 03-3702 (Cumberland County Court of Common Pleas) Dear Mr. Slaughter, Thank you for your letter of December 1, 2003. Please do not take this correspondence as a sign that we are unwilling to have a face-to-face meeting with you, as you have suggested. However, based on your correspondence, there are issues we need to clarify that would make a meeting of this sort more productive. Nothing that has transpired in this case, either in Delaware or in Pennsylvania, compels Mr. Sorkin to agree to expedite Rite Aid's entire case. The only order from the Delaware Court was that Rite Aid cooperate in expediting the advancement issue. In fact, if the Pennsylvania Court applies the on-point holding of the Delaware Court in the Bergonzi case, it is possible that the Court will dismiss the bulk of your case (i.e. the indemnification issues) as being unripe. Thus, for us to agree to expedite Rite Aid's case would be illogical and irresponsible, where the underpinnings of the case are questionable, and we have valid points we wish to pursue in the now-pending preliminary objections. Rite Aid was ordered by the Delaware Court to cooperate in expediting the advancement issue, and only the advancement issue. It is clear from the Delaware Court's rulings that the cooperation was to involve a discussion of a summary and expedited procedure to address only the advancement issue. We have now offered two detailed procedures to that end. You have not replied to or rejected either. : : ODMA ~PCDOCS~OCSI I O0091i6 William Slaughter, Esq. December 4, 2003 Page 2 Furthermore, prior to having our meeting, I think it would be useful for you to clarify Rite Aid's position on the following: --You argued to the court, on more than one occasion, that the advancement issue was squarely before the Cumberland County Court. If this is the case, why does Mr. Sorkin need to file a further pleading, or withdraw his preliminary objections? If you agree there is no need for a further filing, we could approach the court right now for summary resolution of the advancement issue. --Related to the first item, you requested a jury trial in Rite Aid's case. How does that relate to a summary disposition of the advancement issue? --Count III of your complaint appears to seek a declaration of rights pertaining to the Severance Letter, but you have also included "or otherwise." Does your reference here apply to just the Severance Letter, or other claims Mr. Sorkin might have against Rite Aid either related or unrelated to his employment? Your clarification here would assist us in determining the extent of your requested relief in Count III and how we must defend that count. --Are you contesting that the right to advancement is a separate fight, distinct from your indemnification claim? We are more than happy to meet with you to iron out details of a procedure to move the advancement issue. At this point, however, we do not believe the advancement action should be attached to Rite Aid's overall case. Clarification requested above also would assist us in thinking of other procedures that may prove more efficient. We await your response. SEG/jlb cc: Eric Sorkin Jessica Zeldin, Esquire ::ODMAXj>CDOCS\DOCS\1000g 1\§ CERTIFICATE OF SERVICE I hereby certify that on this 7th day of January 2004, a true and correct copy of response ofplaintiffto defendant's petition to expedite was served by overnight mail upon the following counsel of record: Steven E. Gmbb, Esq. Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square Harrisburg, PA 17108-1268 Do~as~l~. l~c~/, ~ American Hearing Aid Associate VS Janet Giba et al Writ of Execution Docket No. 2003-2811 Civil Term FII.ED~-t ~~CE OF THE {~~~Nu~tARY 2DD9 SEP -8 AM f 3 ~ ~ i RENt~SY~~t~NIA R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned ABANDONDED. No action has been taken in the last six months. Sheriff s Costs: Docketing $18.00 Surcharge 30.00 Garnishee 9.00 Law Library .50 Prothonotary 1.00 Mileage 9.66 Levy 20.00 Poundage 1.76 / gl~4~e9 ~~ $89.92 So Answers: -~'~' ,. ~. '+. I~7 ~~~JsmM..Y R. Thomas Kline, Sheriff BY{,._ G .~ Sergeant i ~, ~'~ s~ ~ ~- ~c_?~~. a 3 ~3 ~~'