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HomeMy WebLinkAbout10-6122RITE AID HDQTRS. CORP. and RITE AID CORPORATION, Plaintiff, IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 16- WAR CIVIL VS. L.B. ROUNDY AND ASSOCIATES, D/B/A ROUNDY APPAREL CIVIL ACTION - LAW Defendant. NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the o ow pages, you must take action within twenty (20) days after this complaint and notice ar veZ rv; by entering a written appearance personally or by attorney and filing in writing with Q*,3 U4. 6 c - your defenses or objections to the claims set forth against you. You are warned that if 34 wfto r.? do so the case may proceed without you and a judgment may be entered against you by the ' rt t 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 7 ? (7D 1 a PA,Do Po A T7-/ C it 18 q83 P! a6695- RITE AID HDQTRS. CORP. and RITE AID CORPORATION, Plaintiff, IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL vs. L.B. ROUNDY AND ASSOCIATES, D/B/A ROUNDY APPAREL, CIVIL ACTION - LAW Defendant. AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despuds de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 RITE AID HDQTRS. CORP. and RITE AID CORPORATION, Plaintiff, : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. /0-61?-.;L vs. L.B. ROUNDY AND ASSOCIATES, D/B/A ROUNDY APPAREL, Defendant. CIVIL CIVIL ACTION - LAW COMPLAINT Plaintiffs Rite Aid HDQTRS. CORP. and Rite Aid Corporation (collectively referred to herein as "Rite Aid"), by their undersigned attorneys, files this Complaint alleging 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 Delaware 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. Defendant L.B. Roundy and Associates, d/b/a Roundy Apparel ("Roundy") is a Utah corporation with a principal place of business at 179 S. 1000 W, Ogden, Utah, 84404-1347. JURISDICTION AND VENUE 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 arose in Cumberland County and a transaction or occurrence took place out of which the cause of action arose in Cumberland County. 6. The parties have also agreed that any lawsuit brought with regard to the Clothing Display Rack Agreement, executed between the parties on June 10, 2009, must be venued in this Court: "The parties also agree that any lawsuit shall be venued in the Court of Common Pleas, Cumberland County, Pennsylvania and that they will submit themselves to the subject matter and personal jurisdiction of this Court." A true and correct copy of the Clothing Display Rack Agreement is attached to this Complaint as Exhibit D. RELEVANT FACTS 7. Rite Aid is a national drug store chain with its principal office in Cumberland County, Pennsylvania. 8. At all times relevant to this Complaint, Roundy was involved in the sale and distribution of ready-to-wear apparel including, but not limited to, shirts, jackets and sweatshirts (collectively "Products") 9. Roundy has sold Products through Rite Aid stores for several years. 10. Pursuant to an agreement by the Parties, Roundy would deliver Products to Rite Aid for inclusion in Rite-Aid's seasonal planograms which are the arrangements of active items in Rite Aid stores. 11. Concurrently with delivering Product to Rite Aid, Roundy would accept the return of any of its unsold Product then in the Rite-Aid planogram. (This program is hereinafter referred to as "the Exchange Program") 12. Roundy confirmed the existence of the Exchange Program through several letters, emails and memos. See Letter of December 22, 2009 from Roundy Apparel to Rite Aid -4- Drug Stores, a true and correct copy of which is attached hereto as Exhibit A, at Letter ("The following is an attachment that describes our program with Rite Aid Drug Stores in more detail"), and Attachment ("We Offer an exchange program that will help maintain new apparel items in your store."); see Email of September 1, 2009 from D. Bateman to S. Koch, a true and correct copy of which is attached hereto as Exhibit B ("Our return policy of a current program is predicated on shipping a new program into the stores. We will take full responsibility of the upcoming credits and these credits should be taken against the invoices that will be created in September. We have estimated the returns to be approximately $1,150,00 with an additional $200,000 charge back for the mark down."); see Memo from Roundy Apparel to Rite Aid, at true and correct copy of which is attached hereto as Exhibit C (describing the "Return for Credit Process"). 13. Consistent with that business relationship, in June 2009, Rite Aid and Roundy entered into the "Clothing Display Rack Agreement" which, among other things, agreed to a two year program by which Rite Aid would purchase Products from Roundy on a seasonal basis. See Clothing Display Rack Agreement, a true and correct copy is attached hereto as Exhibit D. 14. Throughout the remainder of 2009 and the first half of 2010, the parties following their contractual terms, including the application of the Exchange Program. 15. In July 2010, pursuant to the agreement between the Parties, Roundy confirmed that it would deliver Products to Rite Aid for the Fall planogram. 16. Pursuant to the agreement between the Parties, Roundy confirmed that it would accept the return of the unsold Product currently in the Rite Aid planogram. -5- 17. On August 1, 2010, Roundy announced that it was refusing to do further business with Rite Aid. 18. As a result of Roundy's breach of the agreement, Rite Aid has been unable to obtain Product from Roundy for the Fall planogram. 19. As a result of Roundy's breach of the Agreement between the Parties, Rite Aid has been unable to return unsold Product to Roundy. 20. As a result of Roundy's breach of the Parties' agreement, Roundy currently owes Rite Aid $1,828,925. COUNTI BREACH OF CONTRACT 21. Rite Aid incorporates the averments in paragraphs 1 through 20 above as if fully set forth herein. 22. To date, Roundy owes Rite Aid $1,828,925.00. 23. Despite repeated requests, Roundy refuses to pay the negative account balance to Rite Aid and refuses to provide the Products for the Fall planogram. 24. Rite Aid has performed all conditions precedent to receive the money owed by Roundy. 25. Roundy is in breach of the agreement between the Parties because it has failed to pay the negative balance on its account and has failed to provide the Products for the Fall planogram. 26. As of September 20, 2010, Rite Aid has suffered damages in excess of $1,828,925.00 an amount that likely will increase due to the breaches of Roundy. WHEREFORE, Rite Aid requests judgment in an amount in excess of $1,828,925.00, plus interest, costs and all other amounts deemed appropriate by the Court. -6- COUNT II BREACH OF IMPLIED CONTRACT 27. Rite Aid incorporates the averments in paragraphs 1 through 26 above as if fully set forth herein. 28. To the extent Roundy has searched that no written contract exists between it and Rite Aid, the facts and circumstances of the Parties' business dealings establish an implied contract. 29. Roundy's failure to pay Rite Aid the $1,828,925 owed to it constitutes a breach of the implied contract. 30. Roundy's refusal to provide Products for the Fall planogram constitutes a breach of the implied contract. 31. Roundy's refusal to pay Rite Aid for and to accept returns of unsold Product constitutes a breach of the implied contract. 32. Rite Aid has been damaged in the amount of $1,828,925 by Roundy's breach of the implied contract. 33. Despite repeated requests, Roundy refused to pay the negative account balance to Rite Aid and refuses to provide the Products for the Fall planogram. 34. Roundy is in breach of the implied contract between the parties because it has failed to pay the negative balance on its account and has failed to provide the Products for the Fall planogram. 35. As September 20, 2010, Rite Aid has suffered damages in excess of $1,828,925, an amount that likely will increase due to the breaches of Roundy. WHEREFORE, Rite Aid requests judgment in an amount in excess of $1,828,925 plus interest, costs and all other amounts deemed appropriate by the Court. -7- COUNT III UNJUST ENRICHMENT 36. Rite Aid incorporates the averments in paragraphs 1 through 35 above as if fully set forth herein. 37. In the event Roundy contends no contractual relationship exists, Rite Aid is entitled to recover the outstanding amount to prevent Roundy from being unjustly enriched. 38. As is customary in the industry, Roundy was required to provide Rite Aid with Product for the Fall planogram and was required to accept the return of any unsold product and to pay Rite Aid any amounts owed to it. 39. Roundy owes Rite Aid $1,828,925. 40. Rite Aid has a reasonable expectation to receive the balance owed by Roundy. 41. Roundy reasonably should have expected to pay the balance owed as is the custom in the industry. Rite Aid had a reasonable expectation to receive the Products for the Fall planogram. 42. Roundy reasonably should have expected to provide the Products for the Fall planogram. 43. It would be inequitable for Roundy to receive the benefit of the $1,828,925 still owed to Rite Aid. 44. It would be inequitable for Roundy to receive the benefit of the Products it has previously delivered to Rite Aid without permitting Rite Aid to offset the damage to Rite Aid by disposing of any Roundy Products in its possession. 45. In the event the contract between the Parties is deemed to be unenforceable, Rite Aid has no adequate remedy at law. -8- 46. Rite Aid is entitled to collect the outstanding balance, plus interest, from Roundy under the Doctrine of Unjust Enrichment. WHEREFORE, Rite Aid requests that judgment be entered against Roundy in the amount of $1,828,925.00 plus interest, costs and all other amounts deemed appropriate by the Court. Respectfully submitted, Brian P. Downey, Esquire (PA 59891) Frederick Alcaro (PA 91555 PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 800.420.0618 Fax downeyb@pepperlaw.com alcarof@pepperlaw. com Date: September 22, 2010 Attorneys for Plaintiffs Rite Aid HDQTRS. CORP. and Rite Aid Corporation -9- x &,o A- RJUNDY A P December 22, 2009 Rite Aid Drug Stores 200 Newberry Commons Etters, PA 17119 To Whom It May Concern: A R i Ell We are writing to review our current partnership we have established with your company. The following letter will summarize our program and will point out some of our best features that will support the benefits to our ongoing relationship in the years to come. Roundy Apparel is a privately held company and has been offering attractive apparel solutions to retailers since 1994. We offer our customers a wcll established program that has bccorne very successful with many different types of consumers. Our company strives to be on the cutting edge with popular items and promotions that are a perfect fit for Drug and Grocery retail. Furthermore, we offer high duality apparel at incredible values for every season. The following is an attachment that describes our program with Rite Aid Drug Stores in more detail. If you have any questions in regards to our program please feel free t:.) call your Regional Sales Director and he will be happy to review or explain any detail not Understood in our letter. 'T'hank you for being such a good customer and we at Roundy Apparel wish prosperity for your company and for the continual growth of our relationship into the future. Thank you, Roundy Apparel 179 5 1000 W Bldg 13A Ogden, UT 84404 Phone: (801) 781-6900 Fax; (801) 781-6029 f ' RitJUNDY A P P A R E L Terms: Currently, Rite Aid Drug Stores has-been approved with a credit limit of $2,500,000.00. Additionally, your company has been approved for credit terms of Net 30 for all purchases. Services Offered to Our Customers: We otter affordable first quality and irregular apparel to our customers. • All items are individually UPC coded and ready to scan. • All Items come pre-assorted with a wide variety of colors and sizes. • All outbound freight is pre-paid and may be shipped directly to each store. • Displays may be requested free of charge with qualified orders. • Free POS signs to attract customer's sales. • High revenue program: with a true DSD Program of 35% to 40% margin • Replenishment DSD Shipping. Shipping time is generally within 2 business days, allowing your stores to re-order as 'needed, rather than back stock a large inventory. • Our Customer Service Department is available between 7 A.M. to 4 P.M. MST Monday to Friday. to assist you. • We Offer an exchange program that will help maintain new apparel items in your sure. o Past invoices within the last 60 days will be applied towards the return authorization to help maintain our dollar for dollar exchange. o All return authorizations are good for 30 days from the date of issuance and all credits are good for twelve months from the date of issuance. • Call tags are offered by us to give you the same discounts in shipping if you need to send back a return. 179 S 1000 W Bldg 13A Ogden, UT 84404 Phone: (801) 781-6900 Fax: (801) 791-6029 C-, 54h j b i B Steve Koch From: Doni Bateman Idonioroundy.netj Sent; Tuesday, September 01, 2009 2:27 PM To: Steve Koch Cc: 'Scott Heiner': 'Dave Hoxer' Subject: Roundy's committment! In consideration for a payment from Rite Aid in the amount of approximately $650,000 I would like to present the following points: • Recently there was a recall for the spring program through the reclamation center that totals about $730,000. Although these credits show up on our Rite Aid account, the product has actually not been shipped back to us. It is still in the reclamation centers. We take full responsibility for this credit but ask that it be taken against our upcoming shipment in September. • Starting on September 14th and continuing through September 25m we will be shipping Rite Aid, for the fall program, approximately $3,350,000 in product. This product is in our warehouse in Ogden, UT and 97% ready to ship. We just have one container of jackets that we are waiting for. The product is packed for Rite Aid with RA special signs, plan-o-grams, return forms, ect. Whether we get the payment from Rite Aid at this time or not, this shipment will be sent to Rite Aid. • We could start shipping the product now but it would not be advantageous to the stores. The current program that is in the stores now is scheduled to run through September. Advertisement has been planned. Also, we are scheduling a mark down program for the last few weeks of September and would like that to get its full attention to lower any future returns. • Our return policy of a current program is predicated on shipping a new program into the stores. We will take full responsibility of the upcoming credits and these credits should be taken against the invoices that will be created in September, We have estimated the returns to be approximately $1,150,000 with an additional $2000,000 r_.hargP bnc.k for the mark down, • We have asked for special payment terms on this upcoming shipment of 2% Net 15. We may not need these terms on future shipments but would like to express our thanks for giving us this opportunity for this coming shipment. In closing I would like to say that we appreciate Rite Aid being a partner with us and being willing to help us out in this temporary cash flow crunch that we are experiencing because of the unprecedented amount of credits that we have taken this last year as we have tried to clean up the Rite Aid stores. Although, this has been a strain on our company, we believe that it will make a better program going forward and look forward to our "return on our investment". If you have any questions, please feel free to call me at 801-718-9868 or call our CEO Scott Heiner at 801-628-3135. Doni 9 Sateman 1r^itrri?r?? Chief Operating Officer Office: 801-781-6900 dani4roundy.net ?16?`? ? ?x ,r R....? U N DY 1? E F. C To: District and Store Managers/Rite Aid From: Roger M. Roundy/Roundy Apparel Welcome to the Roundy Apparel program. This letter is to explain our program and give you the information needed to make this program a success in your store. We want to do all we can to make our program work for your stores. Here are some main points to keep in mind about the program: Receiving and Ordering Product 1. The stores will receive an automatic shipment ONLY every two months that will consist of the corporate program items for a two month period. 2. The amount of product is based on the store's classification and space allotment. 3. Products shipped on the corporate order will be HALF cases, which is just enough fill the corporate designated displays. 4. During the two months of each promotion the stores need to be involved in keeping the displays FULL and well merchandised. (Extra signs available) 5. Full (but not excessively full) displays will always sell much more product. 6. After two months the stores will receive their next corporate order. 7. Upon receipt of the next order the stores are able to return any items that are not on the new order. The stores should not hesitate to reorder more during the promotions because they will have the opportunity to send back what doesn't sell. Return for Credit Process 8. Returning previous merchandise is a very simple process. 9. Any product not on current promotion is eligible for return. 10. To return product all that is needed is a piece count by item gkEMtnti©n and uC 11. After counting the product use the largest boxes possible to package the product. 12. Call 800-254-5845 and ask to do a return. The sales assistant will ask for a piece count by item and determine how many boxes we will pay for. Please limit the amount of boxes you return. UPS will take large boxes that hold a lot of product. 13. The sales assistant will than ask for a fax number to fax you an RA Number and the UPS call tags will be mailed directly to the manager. 14. When you receive the call tags stick them to the boxes and write the RA number on each box. Credit will be issued upon receipt of product. 15. Please call if you have any questions!' I appreciate your support. 1641 West 8020 South - West Jordan, Utah ° 84088 - Ph. 800 254-5845 • Fax 801255-1372 C ?, L - ? T CLOTHING DISPLAY RACK AGREEMENT This Agreement regarding clothing display racks and clothing merchandising (this "Agreement") is made and entered into as of the I0`t' day of June, 2009, by and between Rite Aid HDQTRS. Corp. ("Rite Aid") and L.B. Roundy & Associates, Inc. d,b/a Roundy Apparel, a Utah Corporation ("Roundy"). WITNESSETH; Whereas, Rite Aid and Roundy have a longstanding business relationship where Roundy has sold promotional clothing to Rite Aid and Rite Aid has purchased said clothing from Roundy; and: Whereas, both parties desire to grow their clothing business through the standard Rite Aid retail store channels; Whereas, both parties agree that the most effective method of selling clothing at retail is through the use of merchandised display racks, fixtures and devices; Now, therefore, in consideration of these premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, Rite Aid and Roundy hereby agree to the following: Roundy will provide to Rite Aid and Rite Aid will purchase from Roundy on a corporate program, clothing items, at a wholesale and retail price that will be mutually agreed upon by both parties. The frequency of this program is anticipated to be quarterly (4 quarters for each year). Rite Aid will provide purchase orders and will pay pursuant to the standard terms that both parties have previously agreed upon. Roundy and Rite Aid acknowledge that the final retail prices at which any products will be sold will be determined solely by Rite Aid. Rite Aid will procure at its expense, up front. certain display racks and merchandising fixtures or devices for use with the above mentioned corporate prooram. It is anticipated that that 4140 End Cap fixtures will be purchased at a cost ot'approximately $274,653.46 (cost includes raw cost, taxes and freight). It is also anticipated that an additional 378 "combo" racks will be purchased by Rite Aid at a cost of $36,756.74 (cost includes raw cost, taxes and freight). The estimated total cost of all of these display fixtures is $311,410.20. (cost includes raw cost, taxes and freight). The term cif this corporate program will be two (2) years (or eight quarterly rotations). The wholesale cost to Rite Aid of the clothing items will vary based upon season but will average approximately $1,500,000 for each quarterly rotation over the 8 rotations. Notwithstanding the amount of product purchased by Rite Aid during the course of any quarter, Roundy agrees to reimburse Rite Aid for the cost of the display racks, merchandising fixtures or devices over the course of the eight rotations as follows. The reimbursement will be due in eight (8) equal cliiarterly installment payments. Each installment payment amount will be 1 /8°i of the total cost of the display racks, merchandising fixtures and devices without markup or additional cost by Rite Aid. Each installment payment amount is anticipated to be $38,926.28 ($311, 410.20 divided by 8 equals $38,926.28). Each installment payment amount will be reimbursed promptly by Roundy to Rite Aid. To that end, Roundy and Rite Aid agree that Rite Aid shall take a deduction from Roundy's Vendor account for each quarterly payment amount of $38,926.28. Rite Aid shall take each quarterly payment deduction no later than the 15`x' day of each quarter during the term of this program with the first quarter beginning on June 1, 2009. In the event that Roundy is in a debit balance with Rite Aid at the time any installment payment is due, Rite Aid may, in its sole discretion, demand immediate payment by check or wire from Roundy. Roundy and Rite Aid agree that the quarterly installment payments are earned by Rite Aid so long as Roundy product remains in Rite Aid stores. The parties agree and understand that if Rite Aid decides to terminate this corporate program prior to the eight full quarterly rotations for any reason whatsoever, then Roundy is absolved from the requirement of reimbursing Rite Aid for any of the then remaining quarterly installment payments. Roundy will remain responsible for the pro rata amount of the display costs already paid as determined by the number of quarterly rotations that have occurred. Roundy and Rite Aid agree that nothing in this Agreement provides, expressly or impliedly, that Rite Aid is contractually obligated to make any level of purchases of clothing from Roundy for a 2 year period (or any other period) of time. This Agre4ntent provides an incentive, on a quarterly basis, for Rite Aid to do business with Roundy; nothing more. In the event Rite Aid elects to cease doing business with Roundy, Roundy's sole remedy is to stop reimbursing Rite Aid quarterly payment amounts for those quarters not yet having occurred. Roundy is not entitled to any other fees, costs or damages related to its relationship with Rite Aid other than halting the reimbursement of the quarterly amounts not yet payable to Rite Aid. 6. In the event that Rite Aid declares voluntary or involuntary bankruptcy causing them to default on outstanding invoices due Roundy Apparel, all responsibility on the part of Roundy Apparel to fulfill its commitment to providing the remaining amount due for any display racks, merchandising fixtures and devices will be absolved. Roundy will remain responsible for the pro rata amount of the display costs already paid as determined by the number of quarterly rotations that have passed. 7. Rite Aid and Roundy will consult with one another on the exact stores that will receive each type of display rack, merchandising fixture or device. Rite Aid agrees to make a good faith effort to insure that all of those stores identified by the parties install the display racks, fixtures or devices, and display Roundy's clothing. 8. Both parties agree and understand that the market for clothing may change over the course of the eight rotations. Roundy reserves the right to change prices to keep in line with the current market values. Both Rite Aid and Roundy must agree to the specific product selection and all price changes. The aforementioned display rack, merchandising fixture and device cost reimbursement is contingent upon Rite Aid maintaining its account with Roundy in good standing as reasonably determined by Rite Aid. Similarly, Roundy also is obligated to maintain its account with Rite Aid in good standing. If Roundy does not do so, Rite Aid may suspend purchases of clothing while continuing to take quarterly deductions from Roundy's account. 10. Rite Aid agrees that the cost of the display racks, merchandising fixtures and devices are significant and that is the reason that Rite :Aid is seeking reimbursement from Roundy. Rite Aid will make good faith efforts to insure that only Roundy products will be displayed on these racks. 11, Roundy and Rite Aid agree that any dispute or claim arising from this Agreement will be governed by Pennsylvania law; notwithstanding Pennsylvania's conflicts of laws provisions. The parties also agree that any lawsuit shall be venued in the Court of Common Pleas, Cumberland County, Pennsylvania and that they will submit themselves to the subject matter and personal jurisdiction of this Court. IN WITNESS WHEREOF, Rite Aid and Roundy have executed this agreement as of the date first written above. L. B. Roundy, & Asso late*, Inc. dba Roundy Apparel i r r By: Name: Title: t '? :fit r'_.•. Rite Aid HD TRS. Corp. By: Name: ?? ??.?, ?? .? Title: pct- ?1 ie ?? VERIFICATION Jennifer Beatty signs this Verification on behalf of Rite Aid Corporation and Rite Aid HDQTRS. CORP., and does hereby verify that the foregoing Complaint 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 based upon and therefore limited by the records and information still in existence, presently recollected and thus far discovered in preparation 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 of her knowledge, information and belief. The language of the foregoing document is that of counsel. It is understood that the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. JE IFER BEATTDate: September 22, 2010 RITE AID HDQTRS. CORP., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 10-6122 CIVIL TERM vs. L.B. ROUNDY AND ASSOCIATES, DB/A CIVIL ACTION - LAW ROUNDY APPAREL CD ? N Defendant. M W o =-n m - a Ln r - -- tv Q C3 ?? AFFIDAVIT OF SERVICE t c:) C:-n PURSUANT TO PA. R.C.P. 405 o 3 c 5n COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF DAUPHIN THE UNDERSIGNED, Frederick Alcaro, being duly sworn according to law, does depose and say as follows: 1. I am a competent adult and an attorney duly admitted to the Bar of the Supreme Court of the Commonwealth of Pennsylvania, having Attorney Identification Number 91555. 2. On September 27, 2010, I caused the Complaint to be served upon the defendant by the mailing of a true and correct copy of the Complaint to the defendant's registered agent by United States certified mail, return receipt requested, postage prepaid, addressed as follows: L.B. Roundy and Associates, c/o David L. Knowles, 4723 Harrison Blvd., Ste 200, Ogden, Utah 84403. 3. I received the return receipt, which was postmarked on October 4, 2010, indicating that the documents were delivered and accepted at L.B. Roundy and Associates, c/o David L. Knowles, 4723 Harrison Blvd., Ste 200, Ogden, Utah 84403, by or on behalf of the defendant, thereby completing service pursuant to Pa. R.C.P. 403. The original return receipt signed by or on behalf of the defendant is attached hereto as Exhibit "A". 4. Plaintiff has also located a separate registered agent for the defendant's d/b/a Roundy Apparel. 5. On September 27, 2010, I caused the Complaint to be served upon the defendant's d/b/a Roundy Apparel by the mailing of a true and correct copy of the Complaint to the registered agent of the defendant's d/b/a by United States certified mail, return receipt requested, postage prepaid, addressed as follows: Roundy Apparel, c/o Brad Kapple, 179 South 1000 West, Bldg. 13A, Ogden, Utah 84404. 6. I received the return receipt, which was postmarked on October 4, 2010, indicating that the documents were delivered and accepted at Roundy Apparel, c/o Brad Kapple, 179 South 1000 West, Bldg. 13A, Ogden, Utah 84404, by or on behalf of the defendant, thereby completing service pursuant to Pa. R.C.P. 403. The original return receipt signed by or on behalf of the defendant's d/b/a is attached hereto as Exhibit "B". -2- Respectfully submitted, Frederick Alc o (PA 91555) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1,181 717.255.1155 717.238.0575 Fax alcarof@pepperlaw.com Date: October 8, 2010 Attorneys for Plaintiff Rite Aid Hdgtrs.Corp. SWORN TO AND SUBSCRIBED BEFORE ME THIS *L DAY OF Otf? , 2010. Notary Public NOVAK am `mm"KMNIO? 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Aetld NWrA a - /? P3 Form 3811, tibn,ery 2004 Danesnc Reoei?t 109042 4A-1" CERTIFICATE OF SERVICE I hereby certify that on October 8, 2010, a copy of the foregoing document was served by United States mail, first class postage prepaid, addressed as follows: L.B. Roundy And Associates d/b/a Roundy Apparel 179 South 1000 West, Bldg. #13A Ogden, UT 84404 Frederick Alcaro David D. Buell 1Prothonotary Office of the Prothonotaiy Cum6erfancfCounty, Tennsyfvania ?irkS. So&ionage, ESQ Solicitor h — L J,,22 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28T" DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE — THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square 0 Suite100 0 Car[is% TA 0 ,Phone 717 240-6195 0 Tai, 717 240-6573