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HomeMy WebLinkAbout09-1242w e Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. d~`' 1~~1e~ COMPLAINT Cpl ~~ ~ T.~~~r JURY TRIAL DEMANDED NOTICE TO DEFEND RITE AID HDQTRS. CORP. and RITE AID CORPORATION, vs. Plaintiff, CREATIVE LABORATORIES, INC., d/b/a CREATIVE LABS, You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 RITE AID HDQTRS. CORP. and RITE AID CORPORATION, _ Plaintiff, vs. CREATIVE LABORATORIES, INC., d/b/a CREATIVE LABS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. CIVIL TERM COMPLAINT Defendant. JURY TRIAL DEMANDED COMPLAINT Plaintiff Rite Aid HDQTRS. CORP. and Rite Aid Corporation (collectively referred to herein as "Rite Aid"), by their undersigned attorneys, file this Complaint and allege as follows: PARTIES 1. Rite Aid Corporation is a Delaware corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Rite Aid HDQTRS. CORP. is a Delawaze corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Cumberland County, Pennsylvania 17011 and is the administrative contracting entity for Rite Aid Corporation. 3. On information and belief, defendant Creative Laboratories, Inc., d/b/a Creative Labs ("Creative Labs") is a Minnesota corporation with a principal office at 1325 Eagandale Ct, #110, Eagan, MN 55121. JURISDICTION 4. This court has jurisdiction pursuant to 42 Pa.C.S. §931(a). 5. Venue in this Court is proper because the cause of action azose in Cumberland County, a transaction or occurrence took place out of which the cause of action azose in Cumberland County and the parties' agreed that any disputes with respect to the parties' Guazanteed Sales Agreement would be venued in the Court of Common Pleas of Cumberland County. RELEVANT FACTS 6. Rite Aid operates drug stores in multiple states and has its headquarters and corporate offices in Cumberland County, Pennsylvania. 7. At all times relevant to this Complaint, Creative Labs was involved in the distribution of sun Gaze products. 8. In 1999, Creative Labs became a new vendor at Rite Aid and began to sell its products in Rite Aid stores. A true and correct copy of correspondence dated April 15, 1999, from Creative Labs transmitting a Vendor From is attached as Exhibit A. 9. On June 4, 2007, Rite Aid completed its purchase of the Brooks and Eckerd drugstore chains ("Brooks/Eckerd Acquisition") 10. In Mazch 2007, in connection with the Brooks/Eckerd Acquisition, Rite Aid and Creative Labs entered into an Addendum to Rite Aid's Guazanteed Sales Agreement in which Creative Labs guazanteed the sale of its product and agreed that Rite Aid could return any unsold product to Creative Labs for cash payment. A true and correct copy of the Addendum to Rite Aid's Guazanteed Sales Agreement is attached to this Complaint as Exhibit B. A true and correct copy of the form of Rite Aid's Guaranteed Sales Agreement is attached to this Complaint as Exhibit C. 11. Creative Labs also entered into a Rite Aid Returns Agreement providing a method for the return of any damaged, defective, outdated or discontinued product. A true and correct copy of the Rite Aid Returns Agreement is attached as Exhibit D. -2- 12. In the Returns Agreement Creative Labs directed that Rite Aid should scan and ship back to Creative Labs any unsaleable products. 13. In 2008, Rite Aid decided to discontinue the sale of Creative Labs' products because of slow product sales. 14. Despite guaranteeing the sale of its product and agreeing to accept, and pay for, the return of unsold products, Creative Labs has refused to accept the return of its product or provide cash payment to Rite Aid for the unsold product for which Rite Aid paid. 15. As of February 17, 2009, Creative Labs 's account reflects a $320,785.05 negative balance based on charges that Creative Labs agreed to including advertising allowances, markdowns, unsaleable product and other vendor charges. 16. Additionally, Rite Aid is still holding $25,173.89 worth of product that it seeks to return to Creative Labs. 17. As of the date of the. filing of this Complaint, Creative Labs is in breach of its agreement with Rite Aid because it refuses to pay Rite Aid the negative account balance and the cash payment for the unsold product. 18. As of the date of the filing of this Complaint, Creative Labs is in breach of its agreement with Rite Aid because it refuses to accept the return of the unsold product. COUNT 1 BREACH OF CONTRACT Rite Aid vs. Creative Labs 19. Rite Aid incorporates the averments in paragraphs 1 through 18 above as if fully set forth herein. 20. As noted above, Rite Aid and Creative Labs entered into an agreement pursuant to which Creative Labs agreed to pay various vendor charges and guaranteed the sale of its product. -3- 21. As of February 17, 2009, Creative Labs has a negative account balance of $320,785.05 and Rite Aid seeks to return $25,173.89 of additional product. 22. Despite repeated requests, Creative Labs refuses to pay the negative account balance to Rite Aid or to accept and pay for the return of its product. 23. Rite Aid has performed all conditions precedent under all agreements under the account. 24. Creative Labs is in breach of its contract with Rite Aid because it has failed to pay the negative balance on its account and to accept and pay for the product that Rite Aid seeks to return. 25. As of February 17, 2009, Rite Aid has suffered damages in excess of $345,958.94 due to the breaches of Creative Labs . WHEREFORE, Rite Aid requests judgment in an amount in excess of $345,958.94, plus interest, costs and all other amounts deemed appropriate by the Court. COUNT II UNJUST ENRICHMENT Rite Aid vs. Creative Labs 26. Rite Aid incorporates the averments in paragraphs 1 through 25 above as if fully set forth herein. 27. In the event Creative Labs contends no contractual relationship exists, Rite Aid is entitled to recover the outstanding amounts to prevent Creative Labs from being unjustly enriched. 28. Rite Aid has a reasonable expectation to be paid the negative balance and for the unsold product it is currently holding. 29. Rite Aid has no adequate remedy at law. -4- 30. Rite Aid is entitled to collect the outstanding balance, plus interest, from Creative Labs under the doctrine of unjust enrichment. WHEREFORE, Rite Aid requests judgment in its favor and against Creative Labs in an amount in excess of $345,958.94, plus interest, costs and all other amounts deemed appropriate by the Court. Respectfully submitted, Date: Februazy 27, 2009 ~~~.~ Phone: 717.255.1155 Fax: 717.238.0575 Email: downeyb@pepperlaw.com weber] g@pepperlaw.com ian .Downey (PA 60327) Justin G. Weber (PA 89266) PEPPER HAMILTON LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Rite Aid Corporation and Rite Aid HDQTRS. CORP. -5- ~ti, e;+ A 30°k PCW ;' ~a~ , t4** SENT BY FAX **~ TO: Carrie ShefFler Rite Aid FROM: Don Kastning BATE: April 15, 1999 SUBJECT: VENDOR FORM Hi Carrie! ~N / As you requested, attached is the completed Vendor Form. Please call me rt you need any additional information. Thank you! Attachment cc: File 1325 EayondalC Coui'c 6Began, MinrlegoC3 • 5512'1 Tel; f61c^1 66~•77gd • [600] 332-4352 Feuc: (B~2] 61a1-775:4 Id Wti6i : I 16661 SI 'add 66b9iS69I~£60IZ8Z868 'ON ~IVOHd WO~Id ~. Cr ~.ti u~e t.~ los . ~ GUARAD~UM TO RITE AID'S NTEED SA[,ES AGREEMENT vendor ~„'~, eaKered . and/or Rite Aid HDQ7R3. Corp. etoo • Ouaraattxd afar, caraidiratfoa of Rhe Ald s ~ coUectiMefy "Ri4 m("GSA'~ with Rile Aid Capaation eudar has to Rite Aid ('"RRe Aid^) a~ qt to P~fuR cerlaie of V greed drat m U°Od +ad'ylaabk eonsid~,A~~ aaba basis as defiae~~ ~ dot stl of Va~~s gala of p~ '~' Vendor oleo acfogwbdRat and ~~ ~~ rester otwhich la ~~,~~~ b4 as weU as IsdRsd 6y Vendor and r+atait >~ Thedar rs awar+s. Rice Aid is ~~ a P~'f+tcts being carry °g,~ ~~ ha na y~ioo w ~~S ~ BBL ~~ chain of ~+ rehil stares and ~, ~~ ~ -a<ail store that trite Aid is b ~ of. Veodor'a P~ucb by Rios Ard fa ' t thin AddendurA. Vendor S b addN~pn to Rite Ald's '~ Post-acquisition retail ators bees are ~a~w drat ail pact and firprns !>~q of and is I By sijninp 6ebw Rite odor ~ d solo basis r defined in the GSA. Aid and V ~M, with ar ~ ~ °~r inb Wis Ayae~pK ~~ ~ °~ is ita p~ry~a y other atf~ent rafaled to the ~ otf Sabo ~e dui if thu A ~ ~m~ive to Rt d swill °ontrol. Vey ~ ~u die exi ~ . the terms ~ i° conflkt P~-acquisition store bare, uQOa +od rafiaiey of i4 GSA with Riu,t,~~ ~~ Rite id HDQ~s, C , at~~, ~~~ Arint Name: Dots: 3//7T~~ ~-1 Q~ . ~ fVerrdor> ~~t1 ~ - t'rint Natrre; f 0, L . Dots: S ~'~ :.5 -----,. ~v .s~ s~V ALL-STATE ,.ECAL` 800-222~C' ] RITE AID GUARANTEED SALES AGREEMENT Rite Aid will consider Vendor's product(s) for distribution and sale under the terms and conditions set forth in this Agreement. In consideration of Rite Aid's agreement to review a new entry into its mix, as well as in consideration of the mutual premises contained herein, the parties agree as follows: 1. Vendor will guarantee the sale of Vendor's product(s) to Rite Aid at both Customer Service Centers (i.e. distribution centers) and retail locations. 2. During the first one hundred twenty (120) days, or such other period as Rite Aid may determine in its sole discretion (it being understood by Vendor that Rite Aid may terminate this Agreement in its sole discretion at any time, for any reason whatsoever) following the date if the Vendor's first delivery of product(s) to Rite Aid (the "Review Period"), Vendor's account will be on a review status to permit Rite Aid to assess the performance of the product(s). After the Review Period, Rite Aid will pay only for those product(s) that aze actually sold, and Rite Aid's payment will be reduced by any and all cash discounts or other debit amounts (including, but not limited to, advertising, displays, mazkdowns and price protection) due to Rite Aid. If at the end of the Review Period, Rite Aid determines, in its sole discretion, that the Vendor's product(s) is not selling at an acceptable rate, then Rite Aid will have the right to (a) require Vendor to review and modify Vendor's marketing plan to ensure future success and (b) extend the due date of the original invoice submitted by Vendor. Rite Aid also has the right to require a cash payment, as described in pazagraph (3) below. The foregoing rights are not exclusive. At the end of the Review Period, Rite Aid may terminate this Agreement, place the Vendor on Rite Aid's customary payment terms, or extend the Review Period as Rite Aid, in its sole discretion, so desires. 3. If at any time Rite Aid determines in its sole discretion that Vendor's product(s) performance continues to be unacceptable, Rite Aid will have the right to return at Vendor's expense all unsold product(s) to Vendor's facility in return for Vendor's cash payment to Rite Aid for any products for which Rite Aid has paid, but have not been sold. Vendor's payment to Rite Aid shall be made (a) by wire transfer of immediately available funds or certified check, and (b) no later than fifteen (15) days after Rite Aid has returned the product(s). Vendor acknowledges and agrees that in the event that any of Vendor's allowances aze funded with "free product" from Vendor, that "free product" will be treated identically to product purchased from Vendor by Rite Aid. This includes,but is not limited to, returns of this product to Vendor. 4. Upon settlement of Vendor's account, all outstanding invoices will be paid promptly, less any and all cash discounts or other debit amounts due to Rite Aid. Revised 10;22/2007 5. The terms and conditions of this Agreement are in addition to, and in no way limit, Rite Aid's rights and remedies under Rite Aid's Vendor Profile, standard terms and conditions or purchase orders. In the event of inconsistency between the terms and conditions of the Agreement and any of the foregoing documents, this Agreement will govern. 6. The parties agree that Pennsylvania law governs this Agreement not withstanding its conflicts of law provisions. Any lawsuit brought with regard to this Guazanteed Sales Agreement will be venued in the Court of Common Pleas, Cumberland County, Pennsylvania. 7. The parties specifically agree that 13 Pa. C.S.A. §2326 & 2327(b) aze inapplicable and that Vendor will accept returned goods in their "as-is" condition. 8. All returns aze at risk of vendor. 9. Vendor can not assign any product covered by this Agreement to any third party without the express written consent of a Vice President of Category Management. Rite Aid is enthusiastic about the opportunity to distribute product(s) into the marketplace. Rite Aid wishes you every success in your endeavor to provide a product that is unique. Please allow Rite Aid to assist you in your distribution needs by arranging for a duly authorized officer to sign and date this Agreement on behalf of your company, and return the executed letter to Rite Aid's Merchandising Department. Vendor: By' Title: Authorized Signature Date: Revised 10/22/2007 ~Gxl~,b~f D Jan 24 02 08:56a Janice Teschner !440)951-6499 p.l Company Name: ~A Contact Name: _ _ UO~J /~4 5~.,; -,4 Vendor Number: ~-~~'~~1J ~ ~ ~~~, e.~ Invoice Address' CR:a~Jc G6.1 3z s .ocw..J,. cr _Fi4~,~s, ,h,J. Si ]..J_ Shipping Address: SAS ~ 27" i Sr./ SS l•.~~~+-. ~...y~l. SSi a~ i Category Manager: /{~ ., Associate Category Manager: 5usrs., B'Je -.s TERMS OF AGREEMENT: A. UrtsaleablQ Mkrchandise 1. Ail vendors wNl be charged the following processing fees for damaged, defective, outdated, and discontinued goods. These fees are based on the findings from the Joint Industry Task Force Study (JIR)• DPC (Direct ProduetCost) 30.085 Post Damage 30.111 Ops through Scan: .101 50.297 2. All vendors must determine a method of disposition for their unsaleable products, Based on the CODEJDESCRIPTIONS fisted below, the vendor representative will check (X) the method his/her company has authorized Rite Aid to use. The additional charge, shown in () at the end of the description, will tie added to the Charges above. CODFy DESCRIPTION 1JIR COST1 COPT Scan and disposition is left up to the discretion o1 Rife Aid (50.020)` DONA Scan and donate (50.030) DEST Scan and destroy (50.040)' RoPr Scan, Had, Vendor ReviewiCenter Option (30.127) Off-Invoice Allowance RDON Scan, Hold, Vendor Review, Donate (30,137) °~ ROES Scan, Hdd, Vendor Review, Destroy (x0.147)• RTAK Scan, Hdd, Vendor Review, Take (50.174) RSHP Scan, Nold, Vendor Review, Ship (30.186) Note: All Vendor Review mercharndise will be hold for Z1 days after fnvoice date floc nevlew. At that time it not reviewed, or it no decision has been provldod Dy the manutactunrr the product will ak disposed olst tho dlscraUon o/ Ri(ie Aid x SHBK Scan and ship back to vendor ($0.180)• Open RA* LREQ~/IRED with this option) RAtt ZOO ~ RITE AID RETURNS AGREEMENT E-Mail Address: __ I~AS~'n; -+~, n '~ /40L . [e n.. 'Non-toxie/non-haza-dous msUerial oMy Jan 24 02 08:56a Janice Teschner t 4401 `J51 -Ei4J5 Rite Aid Returns Agreement ' ~ Page 2 3. Handling of hazardous materials will require each vendor to supply to Rite Aid Corporation, Material Safety Oats Sheets (MSDSj before any such product is returned. Fees for handling hazardous materials wilt be specific to each vendor and will be in addition to the above disposition tees. Failure to provide MSDS may result in additional charges and possible tines. 4. All products will be billed at Rite Aids list cost + JIR billing (actors (DPC. Post Damage Handling, Rec Charges, Disposition Charges) unless otherwise agreed to in writing by Rite Aid Corporation. Vendor billing is not to exceed !30%ot Rlte Aid's list cost B. Recall Merchandise = 'Please roll: The dippositions on paps 1 NOT apply to recalls. A sepanb agreement MUST be tilled out for all recalls at the time the recall is being activated. Thb allows a vendor to have a separate disposition on recalls than ihsy have on damaged and outdated returns. 1. An Open RArk must be established between the vendor and the Category Manager prior to the initiation of a recall. 2. All vendors will be charged the following fees for product designated as RECALL merchandise: Ops through Scan 50.101 Disposition Charge $0 18l) $0.281 3, Pallets shipped with returned goods wall be billed to the vendor at the cost of $6.50 per pallet. Itemized pallet charges will also appear on a future invoice. a. All shipments are prepaid by Rite Aid and will be added and detailed on a future invoice. 5. All CtlarKieS to policies must be in writing to Rite Aid Corporation. Approved policy changes will take effect within 30 days toMowing their approval. 6. All vendors will agree to forward a copy of their current national policy regarding reclamation to be reviewed by Rite Aid Corporation, This wiN be sent to: Rite Aid Corporation 30 Mortar Lane Camp HiN, PA 17011 Attention: Garry Busfr The signatures below by the appropriate Category Manager of Rite Aid Corporation and the v repre alive of said company denote their understanding and acceptance of the above ent. Signature (Verwor Repr tativej Oate afore (A prized try R8e ~ C ) Date C~Pen~~/c x.465 Rite Aid Corporation Company p.2 VERIFICATION Catherine Furtado signs this Verification on behalf of Rite Aid Corporation and Rite Aid HDQTRS. CORP., and does hereby verify that the foregoing Complaint was prepazed with the assistance and advice of counsel, and in reliance upon counsel's advice; that the document, subject to inadvertent or undiscovered errors, is based upon and therefore limited by the records and information still in existence, presently recollected and thus faz discovered in preparation of this document; and that subject to the limitations set forth herein, the statements contained in this document aze true and correct to the best of her knowledge, information and belief. The language of the foregoing document is that of counsel. It is understood that the statements herein aze made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. CATHERINE FU TADO Date: February 23, 2009 3~~.\1 ~-/J~.~ 1 ~C! r-.~ r3 c.:~ ca - ..n _ -~' :.%lJ t r~ ~ ~ ~' ~~ ff .~. , ~' W -} --1 :.:t'r't ,'~ ~7 ~~ RITE AID HDQTRS. CORP. and RITE AID CORPORATION, Plaintiffs, vs. CREATIVE LABORATORIES, INC., d/b/a CREATIVE LABS Defendant. JURY TRIAL DEMANDED RITE AID HDQTRS. CORP. AND RITE AID C'ORPORA`T'ION'S REPLY TO CREATIVE LABORATORIES, INC., d/b/a CREATIVE LABS' NEW MATTER Rite Aid HDQTRS. CORP. and Rite Aid Corporation ("Rite Aid"), by and through their undersigned counsel, reply to Creative Laboratories, Inc. d/b/a Creative Labs' New Matter as follows: 31. Admits in part and denies in part. Rite Aid admits only that the parties entered into agreements including an Addendum to Rite Aid's Guaranteed Sales Agreement ("Addendum") and the Rite Aid Returns Agreement. By way of further response, the parties also entered into a Guaranteed Sales Agreement that is referred to in the Addendum. Rite Aid denies that it ever agreed to the terms of Creative Labs' Returned Good Policy ("RGP"). 32. Denies. Creative Labs and Rite Aid entered into a Guaranteed Sales Agreement. By way. of further response, the Addendum refers to the fact that Creative Labs previously entered into a Guaranteed Sales Agreement. 33. Denies. The Guaranteed Sales Agreement and the Addendum do not provide a time limitation for Rite Aid to return unsold product. 34. Denies. After reasonable investigation, Rite Aid is without knowledge or IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CNIL ACTION -LAW NO. p9-1242 CIVIL TERM information sufficient to form a belief as to Creative Labs' policy or agreements with other customers. By way of further response, Rite Aid did not agree to Creative Labs' RGP. Rite Aid denies that Creative Labs provided a copy of the RGP to Rite Aid. 3S. Admits in part and denies in part. After reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to other retailers with which Creative Labs did business. By way of further response, Rite Aid admits that Creative Labs had a business relationship with Brooks/Eckerd before Brooks/Eckerd was acquired by Rite Aid and that Brooks/Eckerd offered certain of Creative Labs' products for sale in its stores. 36. Admits in part and denies in part. Rite Aid admits only that Brooks/Eckerd returned product to Creative Labs. After a reasonable investigation, Rite Aid is without knowledge or information sufficient to form a belief as to the truth of what Creative Labs offered to Brooks/Eckerd. By way of further response, Rite Aid denies any allegation that Creative Labs was not required to accept the return of unsold product and denies that the terms of the alleged RGP applied to any product that Rite Aid sought to return. By way of still further response, Creative Labs entered into the Addendum and agreed that purchases of its products were on a guaranteed sales basis. 37. .Admits. Rite Aid admits that it purchased Brooks/Eckerd in 2007 and that Creative Labs' representative, Don Kastning, executed the Addendum on behalf of Creative Labs. Rite Aid also admits that it drafted the Addendum. 3$. Denies. Rite Aid denies that it ever agreed to the terms of Creative Labs' RGP. To the contrary, Rite Aid and Creative Labs entered into a Guaranteed Sales Agreement as referenced in the Addendum and in a form similar to which is attached to Rite Aid's complaint as Exhibit C. Rite Aid denies that there was any time limitation for it to return and be paid for any unsold product. _~_ Y 39. Denies as stated. The Addendum is a writing which speaks for itself and any allegation inconsistent with that writing is denied. 40. Denies. The Addendum is a writing which speaks for itself and any allegation inconsistent with that writing is denied. By way of further response, the Addendum applied to all past and future purchases of Creative Labs' product by Rite Aid. By way of still further answer, Creative Labs knew that the Addendum applied to products purchased by Rite Aid which included the product it acquired as a result of its acquisition of the Brooks/Eckerd stores. 41. Admits in part and denies in part. Rite Aid admits only that it attempted to return product to Creative Labs based on the Addendum. By way of further response, Creative Labs signed a Non Go-Forward Inventory Disposition Form acknowledging that certain products would not be included in inventory on a go-forward basis. 42. Admits. Rite Aids admits only that Creative Labs refused to accept the return of unsold product, 43. Denies. This paragraph states a conclusion of law to which to no response is required and accordingly it is denied. 44. Denies as stated. Creative Labs' negative account balance with Rite Aid is composed of a variety of charges to which Creative Labs previously agreed but which it now seeks to avoid, including accepting the return of, and paying for, unsold product. 45. Denies. This paragraph states a conclusion of law to which to no response is required and accordingly it is denied. 46. Denies. Rite Aid denies that it is improperly seeking to collect any promotional funding credit. ~3_ 47. Denies. ~hhis paragraph states a conclusion of law to which no response is required and accordingly it is denied. 48. Denies. This paragraph states a conclusion of law to which to response is required and accordingly it is denied. 49. Denies. This paragraph states a conclusion of law to which to response is required and accordingly it is denied. WHEREFORE,, plaintiffs Rite Aid I-IDQTRS. Carp. and Rite Aid Corporation respectfully request that the Court grant plaintiffs the relief requested in their complaint and enter judgment against Creative Laboratories, Inc. d/b/a Creative Labs, and such other relief as this Court deems appropriate. ~L.~ Date: September 2S, 2009 ri P. Downey (PA 60327) ustin Cr. Weber (PA 89266) PEPFER HAMILTQN Lt,P Suite 200, 100 Market Street P.D. Boy 1181 Harrisburg, PA 17108-11$1 Phone: 717.2SS.11 SS Fax: 717.238.OS7S Email: downeyb~a pepperlaw.com weberjgcL~pepperlaw.com Attorneys for Rite Aid Corporation and Rite Aid HDQ`TRS. CORP. ~~}. V C~RLFTCA'I'TON Catherine Furlado sibms this Verification on behalf oti Ritc Aid HDQTRS. Corp. and Rite Aid Co~~poration, and does hereby verily that the foregoing [teply to New Matter was prepared with the assistance and advice of counsel, and in reliance upon counsel's advice; that the document, subject to inadvertent or undiscovered errors, is bu.~ed upon. and therefore limited by the records and information still inexistence, presently recollected and thus tar discovered in prcl~aration of this document and that subject to the limitations set forth herein, the statements contained in this document are true and correct to the best other lu~owledge, information and belief. The lal~guuge of the foregoing document is that o1'counsel. ft is understood that the statements herein are made subject to the penahies of 18 Pa. C.S.A. § 4904 relating to unswom falsification to authorities. ATHERINE R1'ADO CERTIFICATE OF SERVICE I hereby certify that on September 25, 2009, I served a copy of the foregoing Rite Aid HDQTRS. Corp. and Rite Aid Corporation's Reply to Creative Laboratories, Inc., dib/a Creative Labs 'New Matter on counsel of record by United States mail, first class postage prepaid, addressed as follaws~ Charles O. $eckley, II, Esquire Beckley & Madden 212 North Third Street P. O. Box 11998 Harrisburg, PA 17108-1998 Kevin llevore, Esquire DeVore Law Office, P.A. First National Bank Building 332 Minnesota Street, Suite W 1610 St. Paul, Minnesota 55101 X~ J sti U. Weber (PA 89266) n l._ .. :,_ ...i. ~, ~f i . ~_~~' ~ ~._ ~ ~ ., _ _. ,_. ',~;, 1 ~~''~~ „ ,~ R; ~.i~ a' Vri~~ 4~' ~ U ~E +~J '`~ ,.~ ._