Loading...
HomeMy WebLinkAbout12-2380AND CCU T' RITE AID HDQTRS. CORP. ?ap WLAW CORPORATION, vs. Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 19 .a38" 3-vi( DR. THOMPSON'S, INC., COMPLAINT Defendant. JURY TRIAL DEMANDED NOTICE TO DEFEND 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 OM ? 103.7S??y 73 9,0 y RITE AID HDQTRS. CORP. and RITE AID CORPORATION, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Plaintiff, VS. NO CIVIL TERM DR. THOMPSON'S, INC., Defendant. COMPLAINT 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 to obtain payment from Dr. Thompson's, Inc. for charges that Dr. Thompson's agreed to in order to sell its product in Rite Aid's stores but has failed to pay. In support, Rite Aid alleges 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. On information and belief, defendant Dr. Thompson's, Inc. ("Dr. Thompson's") is an Ohio corporation with its principal office at 4889 Augusta Woods Ct., Westerville, Ohio 43082. 4. Upon information and belief, the Ohio Secretary of State cancelled Dr. Thompson's articles of incorporation for failure to pay corporate taxes. JURISDICTION 5. This court has jurisdiction pursuant to 42 Pa.C.S. §931(a). 6. Venue in this Court is proper because the cause of action arose in Cumberland County, a transaction or occurrence took place out of which the cause of action arose in Cumberland County and the parties' agreed that any disputes with respect to the parties' Guaranteed Sales Agreement would be venued in the Court of Common Pleas of Cumberland County. RELEVANT FACTS 7. Rite Aid operates drug stores in multiple states and has its headquarters and corporate offices in Cumberland County, Pennsylvania. 8. At all times relevant to this Complaint, Dr. Thompson's was involved in the distribution of COLDWAR, an over-the-counter cold medicine. 9. In May 2008, Rite Aid and Dr. Thompson's entered into a Guaranteed Sales Agreement ("Agreement") in which Dr. Thompson's guaranteed the sale of its product and agreed that Rite Aid could return any unsold product to Dr. Thompson's for cash payment. A true and correct copy of the Guaranteed Sales Agreement is attached to this Complaint as Exhibit A. 10. Dr. Thompson's 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 B. 11. To increase sales and awareness of their product, some vendors seek to participate in a rebate, or "freebate," program for products sold in Rite Aid's stores. 12. The rebate is referred to as a "freebate" because, assuming the rebate is redeemed by the customer, the product is free to the consumer. -2- 13. Dr. Thompson's agreed to participate in a Single Check Rebate program administered by Rite Aid (the "Freebate Program") for its COLDWAR product. 14. Pursuant to the Agreement, payment to Dr. Thompson's "...will be reduced by any and all cash discounts or other debit amounts (including, but not limited to, advertising displays, markdowns and price protection) due to Rite Aid." Exhibit A, ¶ 2. 15. Rite Aid deducts the freebates, and other charges agreed to by the parties, from the amounts invoiced by Dr. Thompson's. 16. As a result of agreed upon reductions, Dr. Thompsons's has a negative account balance with Rite Aid. 17. As of March 9, 2012, Dr. Thompson's owed Rite Aid $32,671.60 as a result of its negative account balance. 18. In addition, Rite Aid is currently holding $11,848 of Dr. Thompson's product that Rite Aid seeks to return. 19. Dr. Thompson's is in breach of its agreements with Rite Aid because it refuses to accept the return of unsold product and has failed to pay Rite Aid for the negative account balance. COUNT 1 BREACH OF CONTRACT Rite Aid vs. Dr. Thompson's 20. Rite Aid incorporates the averments in paragraphs 1 through 19 above as if fully set forth herein. 21. As noted above, Rite Aid and Dr. Thompson's entered into agreements as evidenced by the Rite Aid Returns Agreement and the Guaranteed Sales Agreement pursuant to which Dr. Thompson's agreed to allowances, such as freebates, markdowns, unsaleable product and various other vendor charges. -3- 22. As of March 9, 2012, Dr. Thompson's has a negative account balance of $32,671.60 and Rite Aid seeks to return over $11,848 of additional product that it is currently holding. 23. Despite repeated requests, Dr. Thompson's has refused to pay the negative account balance to Rite Aid or to accept and pay for the return of its product. 24. Rite Aid has performed all conditions precedent under all agreements under the account. 25. Dr. Thompson's 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. 26. As of March 9, 2012, Rite Aid has suffered damages in excess of $44,519.60 due to Dr. Thompson's breaches of the parties' agreements. WHEREFORE, Rite Aid requests judgment in an amount in excess of $44,519.60, plus interest, costs and all other amounts deemed appropriate by the Court. COUNT II UNJUST ENRICHMENT (IN THE ALTERNATIVE) Rite Aid vs. Dr. Thompson's 27. Rite Aid incorporates the averments in paragraphs 1 through 26 above as if fully set forth herein. 28. In the event that Dr. Thompson's contends no contractual relationship exists, Rite Aid is entitled to recover the outstanding amounts to prevent Dr. Thompson's from being unjustly enriched. 29. Rite Aid permitted Dr. Thompson's to distribute its product in Rite Aid's stores and Rite Aid has a reasonable expectation to be paid the negative balance and for the unsold product it is currently holding. -4- 30. To allow Dr. Thompson's to retain the benefit of distributing its product in Rite Aid's stores but to avoid the negative account balance and refuse to pay Rite Aid for product that Rite Aid is holding would unjustly enrich Dr. Thompson's. 31. Rite Aid has no adequate remedy at law. 32. Rite Aid is entitled to collect the outstanding balance, plus interest, from Dr. Thompson's under the doctrine of unjust enrichment. WHEREFORE, Rite Aid requests judgment in its favor and against Dr. Thompson's in an amount in excess of $44,519.60, plus interest, costs and all other amounts deemed appropriate by the Court. -5- Respectfully submitted, Date: April 16, 2012 (?-" GL' Bn Downey (PA 60327) Justin G. Weber (PA 89266) PEPPER HAMILTON LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 Phone: 717.255.1155 Fax: 717.238.0575 Email: downeyb@pepperlaw.com weber] g@pepperlaw.com Attorneys for Rite Aid Corporation and Rite Aid HDQTRS. CORP. . _ . .........,..w wa4WA%M parga tt I{ r1rume) Im lili'i'44 powind RITIL AID GUARANTEED SALLS AGREEMI M Rita Aid will consider Vendor's pr duct(s) for distribution and sale ands the tacos and condition set 6.4 in this Agreement. In cottidaralinn of Rita Aid's aRremnaa 1D mvicw a mew miry into its mix. as writ as in consideration of due numl ptemisea contained herein. :he patio mm as yellows: Vendor will porambe the sale of Vendor's pmdttat(s) to Rite Aid at both Customer Service Centers (i e. dioribtion carriers) and refit locations. Dwint the Met one hurdnd wrong 0 20) day% or ,such other period as Rile Aid may chroming in its sole dlowedon (it hoist to daslaod by Vendor thol Rio Aid may tettrnin me this Atteeatml is its sole disetslfaon at any time, for my mma whrtomte") follewist elm date if the Vendor's fb* delivery of praducga) to Rite Aid (the "Review Period"). Vendor's socoont will be on a tevtow sWw w posit Rite Aid to sum the porfonuaace of the produc 4 After the Review Period, Rite Aid will pay only for thaw prodtwl(s) that are actually sold, and Rite Aid's payncnt *91 be redwed by say and d cash discounts or other dobk amounto (inchdhtt, bet oat lim*W w advertising displays, markdowns and peace pn twtior) due to Rite Aid. U at due end of the Review Period. Rite id delonskwo, in Its mok dinero&^ that the Vendor's product(s) is nail selling at an acceptable tore, dm Rite Aid will have the right to (a) require Venda to review and modify Vendor's mmko ft plan to ensur. dtdtra +uecess and (b) attend the due date of the original invoice submitted by Valor. Rico Aid also has the risk to requite *cash paymatk as described In poor* (3) be ow. The foregoing rights acs not exclusive. At the and of the Review Period, Rite Aid may wen trots this Atrocious, place the Valor on Rite Aid's ctnowborr payomm terns. or extend the Review Period as Rite Aid. in its sole disctedon, so desires. if at any time Rite Aid determines in its sole discretion drat Vendor's product(s) perfortmom continaaes to be wromeopabk. Rite Aid will have the right to mtcun at Vendor's expense all unsold pteducl(s) to Vadlor's facility is etatnt tr VwWw's cash pryment to Rile Aid for any prod" for which Rile Aid Im paid. but have not been soli. Vendor's psymaa to Ries Aid stroll be made (a) by wife tnastbr of bnunedislry available hoods arcatilkd chock. and (*) no laser than 13fleea (13) days altar Rite Aid No relnen ed the product(s). Vendor odcttotr:edps and ateee: to is the even to any of Vendor's allowances am horded with 46=ptodaet° clam Vendor, that -*m product:' will he treated idedicaly to product pumbosed (bets Vendor b) Rite Aid This inchAw. twt is not limited to. mmm of this product to Vendw. Upon sallownent of VemdcWs account. ail outalsadiat invoices will be paid promptly. kiss tiny and all mush discounts or other debb wootnto doe to Rite !lid. fir ii.a 160:r3w+ - --• r--•• I..* ? wew.l vy I Pv OWOBOMMT-06 PR I O.W S. T w u NW Cm*ion of thin Agnmems an in addition to, d in ro wq VAlk Rita AW's dtM sd mme" uadar Rha Aida Vnrdor Ptot>i4 t MWM d fast and eodiriarra or Pew adaa. In the evaat of Wooodom c. satMaen ttta wm ad didont of M Agsaoeatand a`. ooa o[Ila fooa?oitt? M Ante MWO WW " ti• M of W lm PORVINIM Any bnm* d PMWrylvada law/or = doit ASmoome t not widwho W# id be va ? in dw C aa ?ilh rued to dds he dltteem gab AIA ?viII Pba, Ctemberd Carat., , 1 The Vpw6o al 4 q M that 13 Pa: C.9.A.12336 A 2327(b) ara d SWW ie4aaed ieaodt h tlrair'bie' araditioa 8, AU ratan as at ri* af vwrtor. 9• Varrdor can not aaiR, aY pmt covered by aria ARns.l.,t 80 sw third prty without err aapeRet wrilles oaaaeat d s Vioa PnWdtatt of cokpq Nat" moat, Rib ?? ? the "MMOW b &NIbula produq(a) imo the ma}s *OL Rho i Rita Aid b ado von b lour dial tM ow 10 P WA& a Pedaot do 4 u 4m Pbw slow dY MlT- sh atr a MM bdoW OPYs- posy. wad no= tbm MmOd ISOW ao MI At idea OW dd@ " 4=w I Veadar. [X l brr. BY Mr. VP of Slot Date; May 17, 2006 I I Rwi11ly/?p L ._..__. F..I-aa0wgwA pqj 11:41uwuwwum14mMg10,74 RITE AID RMRW AGRIAM W p2m...ftswo C-wq quit a-Munmeld Cawp Now rat* tiwknAMfwr ?4alyAMlat CMPVL%MIW Dom CMINpq Ism'"W A. Lougodleg t N n?IOn.? M digN wbrury P?YO Ao ?rdr? d?lioMiR .ww.r, M ?rYry EMI f.Mt M w rw w ar ?? dew ? Derr ?rl' TMt aw WCOMP"Mcc d lass am 14tH cas AM Z N "may sl Waftwaawww"far Nwulgeogep M?r1/MMr A ?yU4ddl r"MMiwr/iar?a.+wwQ . alWft M ~Wd daft . ar w.rO MA. e.*. 10 arM" i.R ?aR M r Wig rr? JC??fyl.n.+e.rwa??ge.asa DOM smw:z aen wr.? wl r ?wr,.Q +w1 RA/ le#aw. WASOW a Mow loft owl b M 0111111 ? rr of Aid ?Mralaa. WIND JW `~ ?a - M d"and aa! 1M Ill iae of la. aro+w d rut Ma 1.r 96 ?aM?M -ft w e.e f my VIM111..r for pI1h - of a. Nand"julmlodge ObAlftarwiytyar•1Nl/yylrwprC??Qr? ?r?L.r1rt?11A1ihM~iKt wyr/.?w *?1tee?M saala?lut r M ?M111r Rw M W ftu ,. am ? 31 d" l glD.r w CarCpla.. Avwor?e voter ar? %W aft sow" i NvrMss.l/ y.. ? A?wil. ai tw v?'Nr?1?MM•M?n lobe ar.wsMnuAycw?e.trR ihwr..rr Ir Aid Ca?tlw X WWW t.N an* 0% PA Imt ABM Mwmew FMO ow ?Aft m 4 A. ?? /./a1A0nr YM.01. r..r.ylU rMa?l M llr AY h/u4.IFNi. lpfto m*g *4"cmb ft%*"Vftoo alum IN *" (h. UM. L ftmW Mudr.oa 1m/MSMr1m ?M 4 rw.i.An/wn?somm" mbe M?Mr Sgnl?..w 1'M.? Mw w??M?? Tw Mw.. rndrt. hMw. t Nna?Yrrwwu?YbM?q*MIIYAYPIy.A?nYrW.gM?w.M?/rCa?? !q/y CFM Mrln YatiW ai Va1.i.ORWA now ft ? . ivmt OW IIrwm d f ..-3 ?w s .r.....,.?M? M. w.?w 1?? via~ ar. (!M T?. »rIMr?OMfM.wa dreary Mb AMC Mvo.ti/ S D?. Q n....s,. rr w.w?? mow Mr l.GOa . ?..?. F--.% It If WE ww wl 11:41 YOYrYWW1M 0'% ry 10 •dM NOTICE Ram a mmm" IIMT Al OF IIAAoN q =16 ALL /N000 roD OAr AM a n"mo AIO 1mcmum PI mm. m waINimm ALL fwomou ! ormw W A Wmmm CMgMan Alm mum lm? Tom CANT= womw am S mffm? "a WANK o owmwAmm /LEAN = Tim * /? m TmM C?wNr wM o F" ;M M =6= Mbmr mm ML,OM ALL AM M TO M C Nunn MIL N Miff TO IM wrNq b tlM Cardlr 9YOply CIwYI iMVieM 1M1lNr 'be me b ft bin, ill b**Amk /LEAn Pw- a' ,?TM0f?7ff. vwwf NAwM THIS FORM MUST ACCOMPAW THE RITE AID RETWiNt AGREEMENT FOR DAMAGED AND OUTDATED PRODUCT mm loom IN/ At1GWA WOODS COURT WavwwRLJE ON 4> AWN= Uw slob ZIP Ca11M! prm" .IUMRlIRTNOL?p?R,QOM M VERIFICATION Paul Margeson 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 his 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.A. § 4904 relating to unsworn falsification to authorities. ?J ? aul Marg so-n Date: RITE AID HDQTRS, CORP. and RITE AID CORPORATION, Plaintiff, vs. DR. THOMPSON'S, INC. Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTS(` PENNSYLVANIA -" CIVIL ACTION -LAW r-' r NO. 2012 2380 _-'MOTION FOR ADMISSION -- PRO 114C VICE AND LEAVI?TO FILE ANSWER Now comes Leon Williams (PA 38146), Attorney at Law, 327 South 13th Street, Philadelphia, Pa. 19107, as Sponsor for Candidate, Edward Clark Corley (Ohio Bar License Number 0018944), Attorney at Law, 233 South High Street, Suite 300, Columbus, Ohio 43215, and moves this Court for an order to permit the Candidate to be admitted, pro hac vice, irk this matter, pursuant to Pa RCP 1012.1. Pursuant to Pa RCP 1012.1 (C ), the Candidate's verified statement is attached. (Exhibit 1) Furthermore, given the Complaint response due date of May 22, 2012, the Sponsor moves this Court for an order for leave to file an Answer accordingly. Pursuant to Pa RCP 1012.1 (d) (2), I verify that: 1. After reasonable investigation, I believe the Candidate to be a reputable and a competent attorney and I am in a position to recommend the candidate's admission. 2. I am acting as a sponsor for no other candidates for admission pro hac vice. Any proceeds form the settlement of a cause of action in which the candidate is granted admission pro hac vice shall be received, held, distributed and accounted for in accordance with Rule 1.15 of the Pennsylvania Rules of Professional Conduct including the IOLTA provisions thereof, if applicable. Respectfully submitted, Leon Williams (PA 38146) Attorney at Law 327 South 13th Street Philadelphia, PA 19107 (215) 732-0180 Fax (215) 732-2179 tutorlawyer@verizon. net (EXHIBIT 1) RITE AID HDQTRS. CORP. and RITF AID CORPORATION, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COt NT'Y. PENNSYLVANIA CIVIL ACTION -LAW N . DR. THOMPSON'S, INC. Defendant. NO. 201? -1380 Pa RCP 1012.1. (c) VERIFICATION STATEMENT BY EDWARD CLARK CORLEY (Candidate) L 1.dward Clark Corley (01100 18944). Attorney at Law. and Candidate for admission 1)1-o hac vice. in the above matter, veritti the following statements, pursuant to Pa RCP 1012.1 (c ): 1. I am licensed in good standing by the Ohio Supreme Court (Admitted 1983). U.S. District Court for the Northern and Southern Districts of Ohio. I was never suspended. disbarred, or otherwise disciplined. (Note 43) ?. 1 am not subject to any disciplinary proceedings. On February 4, 2010. I received a $350.00 sanction by the U.S. Bankruptcy Court Northern District of Ohio Eastern Division. Case No 08-60309. Attached is a letter that I submitted to the Office of the Disciplinary Counsel of the Ohio Supreme Court. No action was taken b- the Court. (Exhibit A) f 4. 1 have no prior or other pending pro hac vice applications in Pennsylvania 51. 1 will comply with and be bound by the applicable statutes. case law and procedural rules of the Commonwealth of Pennsylvania. including the Pennsylvania Rules of Professional conduct. 6. 1 shall submit to the jurisdiction of the Pennsylvania courts and the Pennsylvania Disciplinary Board with respect to acts and omissions occurring during my appearance in the matter for which admission pro hac vice is being sought. ?. 1 shall consent to the appoint to the sponsor as the agent upon whom service of process shall be made for purposes of all actions, including: disciplinary actions, that may arise out of the practice of law in the matter for which admission pro hac vice is sought. Respectfully submitted, Edward Clark Corley (OH 0018944 Candidate Pro Hac Vice 233 South High Street. Suite 300 Columbus, Ohio 4321 5 (614) 222-0400 Lawtii,?edwardcorley.com RITE AID HDQTRS. CORP. and RITE AID CORPORATION, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW VS. NO. 2012-2380 CIVIL DR. THOMPSON'S, INC., COMPLAINT { Defendant. JURY TRIAL DEMAND crag r ..?xy ca ? , AFFIDAVIT OF SERVICE =c) , ?r 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 89266. 2. On April 19, 2012, I caused the Complaint to be served upon the defendant by the mailing of a true and correct copy to the defendant by United States certified mail, return receipt requested, postage prepaid, addressed as follows: Dr. Thompson's, Inc., 4889 Augusta Woods Ct., Westerville, OH 43082 ("Service Addresses") 3. I received the return receipt indicating that the document was delivered to and accepted at the Service Addresses on behalf of the defendant on May 2, 2012, thereby completing service pursuant to Pa. R.C.P. 403. The return receipt card is attached hereto as Exhibit "A." Respectfully submitted, Bri P/Downy (PA 60327) Ju G. Weber (PA 89266) PEPPER HAMILTON LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 Phone: 717.255.1155 Fax: 717.238.0575 Email: downeyb@pVMlaw.com weber] g@pepperlaw.com Date: May Z75 2012 Attorneys for Rite Aid Corporation and Rite Aid HDQTRS. CORP. SWORN TO AND SUBSCRIBED BEFORE ME THISA DAY OF MAY, 2012. NOTARY PUB ' IC MY COMMISSION EXPIRES: PM L4 Nfty P* of "own 080w '%'04?ww Em" Jk= So 2585 -2- ?? m a, tFA U $ m K P°Neps Rp m X Cerditd Fee im AM 0 0 TOM P°stWe & Few $ rq Saw TO o Dr. Thompson's, Inc. 4989 Augusta Woods Ct......_..... O or PO Boor N WestervO , OR 43492 •.......... ?` ?? belt tali ??? of cA raltiF t?t?lr i. 11tlbMI1 11wMi 10: R itzr WNW MM1? *000060 Dr. T4ompson's, Inc. 4889 Augusts Woods Ct. Westerville, QH 43082 0 % w .4 ©a?? la?"m M -t 2,., 10 0 7010 1060 0000 3368 6931 pe ft"n Sri, ftmoy oo+ ,oasorba CERTIFICATE OF SERVICE I hereby certify that on May 27-, 2012, I served a copy of the foregoing Affidavit of Service on defendant by United States mail, first class postage prepaid, addressed as follows: Dr. Thompson's, Inc. 4889 Augusta Woods Ct. Westerville, OH 43082 (?tt A4,-? Justi . Weber (PA 89266) RITE AID HDQTRS, CORP. and RITE AID CORPORATION, Plaintiff V. DR. THOMPSON' S, INC., Defendant ORDER OF COURT AND NOW, this 23`d day of May, 2012, upon consideration of the Motion for Admission Pro Hac Vice of Edward Clark Corley, Esq., (Ohio Bar License Number 0018944), filed under the sponsorship of Leon Williams, Esq. (PA Bar No. 38146) , pursuant to Pa. R. C. P. 1012.1, the motion is granted. BY THE COURT, Christyle L. Peck, J. ^r f Leon Williams, Esq. 327 South 13d' Street Philadelphia, PA 19107 i1 Edward Corley, Esq. - `' 179 Fenway Road Columbus, OH 43214 :rc led R11 t IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLANIA CIVIL ACTION - LAW NO. 12-2380 CIVIL TEM IN RE: MOTION FOR ADMISSION PRO HAC VICE RITE AID HDQTRS, CORP. and RITE AID CORPORATION, Plaintiff, VS. DR. THOMPSON'S, INC. Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW n c C': -V; NO. 2012 2380 +? r ? ' ? { 5 = FT{ ? • . I ` JUDGE CHRISTYLEE PECK-<?'; z Defendant's, through Sponsor, moves this Court for an order to excuse Sponsor as attorney of record and designate Edward Clark Corley, as attorney of record, as provided in the following memorandum. Respectfully submitted, Leon Williams (PA 38146) Attorney at Law (Sponsor) 327 South 13' Street Philadelphia, PA 19107 (215) 732-0180 Fax (215) 732-2179 tutorlawyer@verizon.net MEMORANDUM STATEMENT OF FACTS Plaintiff, Rite Aid HDQTRS, CORP, and Rite Aid Corporation, and Defendant, Dr. Thompson's Inc., an Ohio Corporation, with headquarters in Westerville, (Columbus) Ohio, have been in discussions for over a year concerning monies owed. Each party alleges that the other party owes it monies, as a result of the Plaintiff marketing and selling the Defendant's product, "Coldwar". "Coldwar" is a product designed to boost and maximize the body's immune system, to defend against germs, that can cause the common cold. During the majority of this period, the Defendant was represented by, Edward Clark Corley, an attorney licensed in the State of Ohio. This Court has granted a Motion Pro Hac Vice to admit Mr. Corley, into this proceeding. Mr. Corley is familiar with and has a working knowledge of the facts and issues of this matter and has developed a positive working relationship with the Defendant. More importantly, the Defendant has expressed its desire to have Mr. Corley designated as the attorney of record in this case and to continue to represent it. (Exhibit 1) Currently, the Defendant is requesting that the Sponsor be excused and Mr. Corley be designated as attorney of record in this matter. 2. LAW AND ARGUMENT Pursuant to Pa RCP 10 12.1 (d)(I): The sponsor shall enter an appearance as attorney of record in the action on behalf of the party whom the candidate seeks to represent. Upon the motion being granted, the sponsor shall remain the attorney of record for the party, and shall sign and serve, or be served with as the case may be, all notices, orders, pleadings or others papers filed in the action, and shall attend all proceedings before the court unless excused by the court.. •. It is apparent that the Defendant and Mr. Corley have established a positive ongoing working relationship concerning this matter. It is equally clear that the Defendant would prefer that Mr. Corley continue this relationship, as attorney of record. Given Mr. Corley's experience in this matter and the Defendant's desire for his designation as attorney of record, there are no apparent concerns for such a designation. Furthermore, given their close physical proximity to each other, in Columbus, Ohio, the inherent efficiencies of in person communications are established. Such communications could help in yielding resolution of this case. From a practical standpoint, Mr. Corley, in Columbus, Ohio, would be in a better position to act as attorney of record for the Defendant domiciled in the same geographic area, than the Sponsor, a legal practitioner in Philadelphia, Pennsylvania. 3. CONCLUSION Excusing the Sponsor and designating Mr. Corley as attorney of record, would firther the Defendant's strong desire for the given legal representation and it would promote attorney client communications. Furthermore, such a designation would present no apparent concerns. Respectfully submitted, Leon Williams (PA 38146) Attorney at Law (Sponsor) 327 South 13"' Street ---- Philadelphia, PA 19107 (215) 732-0180 Fax (215) 732-2179 tutorlawyer@verizon.net CERTIFICATION OF SERVICE I certify that a copy of the foregoing Motion was served by United States mail, OCT, first class, postage prepaid, on member 2012, to the following: Brian P. Downey Justin G. Weber Pepper Hamilton, LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 4 q. Leon Williams (PA 38146) 4. EXHIBIT 1 M M AID HDQM, CORP. and P.M AM CORPORATION, Plaintit vs. DR. THOMPSON'S, INC. Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2012 2380 DR 1'E )K'j NC. The Affiant, Jennifer Thompson, being over the age of majority, hawing been sworn: and caromed, and upon personal knowledge, hereby states: I ate the President and a significant equity holder of the Defendant, Dr. Thompson's, Inc., a corporation domiciled in and with primary operations in Ohio. 2. in January 2011, the Defendant had retained the legal services of Edward Clark Corley, an Ohio licensed attorney with 29 ytars of Uperietnce, to address issues relating to taus lawsuit, on an ongoing positive relationship. 3. The Court has granted the Motion for Admission Pro Hac Vice, for Edward Clark Corley, in this nester. 4, Given the Defendant's relationship with Edward Clark Corky and his knowledge and experience of this and such matters, the Deftdaut respectfltlly mete that he be entered as attorney of record for the Defendant and be authorized to sign and serve, or be served with m the case may be, all notices, orders, pleadings or other p q= filed in this action and to attend all M=ecdings bcfore the Court. Purther, sayeth naught. Sworn to before me and subscribed in my presence this day of July, 2012. E. QUA Notary pub l1lMR s1 t1NiD 11,2016 2. RITE AID HDQTRS, CORP, IN THE COURT OF COMMON PLEAS OF and RITE AID CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. DR. THOMPSON' S, INC., Defendant CIVIL ACTION -LAW NO. 12-2380 CIVIL TERM DEFENDAN'T' S MOTION TO EXCUSE SPONSOR AS ATTORNEY OF RECORD AND DESIGNATE EDWARD CLARK CORLEY AS ATTORNEY OF RECORD ORDER OF COURT AND NOW, this 18`" day of October, 2012, upon consideration of the above- captioned motion, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, Brian P. Downey, Esq. Justin G. Weber 100 Market Street Suite 200 P.O. BOX 1181 Harrisburg, PA 17108-1181 /Leon Williams, Esq. 327 South 13r" Street Philadelphia, PA 19107 rc ~~~~G~ao~ C~Q~/~ ~a~~~y Christylee .Peck, J. PDT ; ~s ~~ loo/ io~9~ ~ 2j<~ RITE AID HDQTRS,CORP. and IN THE COURT OF COMMON RITE AID CORPORATION, PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION-LAW vs. NO. 2012 2380 DR. THOMPSON'S,INC. JUDGE: CHRISTYLEE PECS Alw Defendant. 0 OD c� DEFENDANT'S MOTION TO MAKE THE RULE ABSOLUTE Pursuant to Defendant's Motion To Excuse Sponsor As Attorney Of Record And Designate Edward Clark Corley As Attorney Of Record,the Court issued a Rule to show cause as to why the requested relief should not be granted. Such cause has not been offered. Therefore,the Defendant respectfully request that the Rule be made absolute. Respectfully submitted, 4 Pv'ji - Leon Williams(PA 38146) Attorney at Law(Sponsor) 327 South 13`h Street Philadelphia,PA 19107 (215) 732-0180 i6 Fax(215) 732-2449 tutorlawyer @verizon.net v � CERTIFICATION OF SERVICE I certify that a copy of the foregoing Motion was served by United States mail, first class, postage prepaid,on March 1< , 2013,to the following: Brian P. Downey Justin G. Weber Pepper Hamilton, LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 —Z' Leon Williams(PA 38146) RITE AID HDQTRS, CORP, IN THE COURT OF COMMON PL ►.S OF and RITE AID CORPORATION, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION—LAW DR. THOMPSON'S, INC., Defendant NO. 12-2380 CIVIL TERM DEFENDANT'S MOTION TO MAKE RULE ABSOLUTE ORDER OF COURT n AND NOW, this 22 d day of March, 2013, upon consideration of Defendant's Motion To Make Rule Absolute, and no answer having been filed by the Plaintiff in the above matter, Defendant's Motion To Excuse Sp,Ansor as Attorney of Record and Designate Edward Clark Corley as Attorney of Record is granted. BY THE COURT, f � Christy e L. Peck, J. ✓Brian P. Downey, Esq. 3: - ►/Justin G. Weber rn� ern 100 Market Street max.,r— Suite 200 P.O. Box 1181 ,'x. r r Harrisburg, PA 17108-1181 ✓Leon Williams, Esq. -c 327 South 13'' Street Philadelphia, PA 19107 14,ta'A-,/ ,E'l z�- Edward Clark Corley, (OH. 0018944) OF Attorney at Law �` 13 rl a � 233 South High Street, Suite 300 j ¢ �� Columbus, Ohio 43215 FRS �t,D C` �' c?6 Law@edward orleco S q��T Y Attorney for Defendant RITE AID HDQTRS,CORP. and IN THE COURT OF COMMON RITE AID CORPORATION, PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION -LAW VS. NO. 2012 2380 DR. THOMPSON'S,INC. JURY TRIAL DEMANDED NOTICE TO PLEAD To: Rite Aid Hdqtrs. Corp. and Rite Aid C/o Briand P. Downey,Esq. Pepper Hamilton, LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 You are hereby notified to file a written response to the enclosed New Matter and Counterclaim within twenty(20)days from service hereof, or a judgment may be entered against you. Respectfully submitted Edward Clark Corley(OH. 0018 ) Attorney for Defendant 233 South High Street, Suite 300 Columbus, Ohio 43215 (614)222-0400 Law@edwardcorle. Edward Clark Corley, (OH. 00 18944) Attorney at Law 233 South High Street, Suite 300 Columbus, Ohio 43215 (614) 222-0400 Law@edwardcorlgy.co Attorney for Defendant RITE AID HDQTRS, CORP. and IN THE COURT OF COMMON RITE AID CORPORATION, PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION -LAW vs. NO. 2012 2380 DR. THOMPSON'S, INC. JURY TRIAL DEMANDED ANSWER TO COMPLAINT WITH NEW MATTER AND COUNTERCLAIM Now comes, Defendant, Dr. Thompson's, Inc.,through counsel, Edward Clark Corley, and files the within Answer to Complaint, with New Matter and Counterclaim, as follows: PARTIES 1. Admit. 2. Admitted in part and denied in part. It is admitted that Rite Aid Hdqtrs. Corp, is a Delaware Corporation at the given address. After a reasonable investigation,the Defendant is without knowledge or information sufficient to form a belief as to whether or not, Rite Aid Hdgtrs. Corp., is the administrative contracting entity for Rite Aid Corporation. 3. Admit. 4. Admit. JURISDICTION 5. The averments in this paragraph constitute conclusions of law to which no response is required. 6. The averments in this paragraph constitute conclusions of law to which no response is required. RELEVANT FACTS 7. Admit. 8. Admit. 9. Admit in part. It is admitted that the Defendant entered into a Guaranteed Sales Agreement. However,Exhibit A of the Complaint is illegible, in 2. part. Therefore,the Defendant is unable to admit or deny its contents. 10. Admit in part. It is admitted that the Defendant entered into a Rite Aid Returns Agreement. However,Exhibit B of the Complaint is illegible, in part. Therefore,the Defendant is unable to admit or deny its contents. 11. Admit. 12. Admit. 13. Admit. 14. Admit in part. It is admitted that the Defendant entered into the Guaranteed Sales Agreement. However, Exhibit A of the Complaint is Illegible, in part. Therefore,the Defendant is unable to admit or deny its contents. 15. Admit. 16. Deny. It is denied that the Defendant has a negative account balance with the Plaintiff. 17. Deny. It is denied that the Defendant owes the Plaintiff$32,671.60. 18. Deny. Defendant, after reasonable investigation, is without knowledge or 3. information sufficient to form a belief as to the truth of the averment. 19 Deny. The averments in this paragraph constitute conclusions of law to which no response is required. COUNT 1 BREACH OF CONTRACT (Rite Aid vs. Dr. Thompson's, Inca 20. Defendant incorporates paragraphs 1 through 19 of its Answer as if fully set forth herein. 21. Admit in part. It is admitted that the Defendant entered into the Rite Aid Returns Agreement and the Guaranteed Sales Agreement. However, Exhibits A and B of the Complaint are illegible, in part. Therefore,the Defendant is unable to admit or deny its contents. 22. Deny. It is denied that the Defendant has a negative account balance. The Defendant,after reasonable investigation,is without knowledge or information sufficient to form a belief as to Rite Aid's desire to return the product. 23. Deny. It is denied that the Defendant refused repeated request for payment. 4. 24. Deny. It is denied that Rite Aid performed all conditions precedent under all agreements under the account. 25. Deny. The averments constitute conclusions of law to which no response is required. 26. Deny. It is denied that Rite Aid suffered damages. WHEREFORE,the Defendant,requests that this Court enter judgment in its favor and against Plaintiff,and award the Defendant its costs and any other relief allowed by law. COUNT II UNJUST ENRICHMENT M THE ALTERNATIVE) (Rite Aid vs. Dr. Thompson's, Inca 27. The Defendant incorporates paragraphs 1 through 26 of its Answer as if fully set forth herein. 28. Deny. The averments constitute conclusions of law to which no response is required. To the extend a response is required, it is denied that the Defendant owes any monies to Rite Aid. 5. 29. Admit in part. The Defendant admits that Rite Aid permitted it to distribute products in its stores. It is denied that the Defendant owes Rite Aid any monies. 30. Deny. The averments constitute conclusions of law to which no response is required. It is denied that the Defendant has been unjustly enriched and that Rite Aid is entitled to any recovery. 31. Deny. The averments constitute conclusions of law to which no response is required. 32. Deny. The averments constitute conclusions of law to which no response is required. It is denied that the Defendant has been unjustly enriched and that Rite Aid is entitled to any recovery. WHEREFORE,the Defendant,request that this Court enter judgment in its favor and against Plaintiffs, and award the Defendant its costs and any other relief allowed by law. NEW MATTER 33. Plaintiffs' have failed to state a claim upon which relief can be granted. 34. Plaintiffs' claims are barred,in whole or in part, by their own breach of the 6. agreement(s)upon which their claims are based. 35. Plaintiffs' claims are barred, in whole or in part,by their failure to pay the Defendant all amounts due and owing for products purchased. 36. Plaintiffs' claims are barred, in whole or in part,by their failure to mitigate their damages, if any. COUNTERCLAIM COUNT BRACH OF CONTRACT 37. The Defendant incorporates paragraphs 1 through 36 of its Answer as if fully set forth herein. 38. In 2009,the Defendant and Rite Aid entered into an agreement entitled Rite Aid Single Check Rebates Program. (Exhibit 1) The Program permitted Rite Aid to sell the Defendant's product, "Cold Wars", to consumers. In return,the consumer could receive the opportunity of receiving a store coupon that it could redeem for the cost of the product. 39. The Defendant would be compensated for the cost of its product,minus the value of any issued rebate payments to the consumer. 40. To assure compensation accuracy to the Defendant,the Program 7. agreement permitted the Defendant to perform an audit of the Program. 41. In 2011,while attempting to audit the Program,Rite Aid refused to provide certain consumer identification information to the Defendant. 42. Rite Aid's failure to provide certain consumer identification information to the Defendant constitutes a breach of contract 43 The contract breach by Rite Aid,has prevented the Defendant from determining the monies that it is owed,by Rite Aid.. 44. As a direct and proximate result of Rite Aid's breach,the Defendant has suffered damages in an amount of at least $513,660.33,plus prejudgment and post judgment interest. WHEREFORE, Defendant/Counterclaim Plaintiff, Dr. Thompson's,Inc.,request that this Court enter judgment in its favor and against Plaintiffs/Counterclaim Defendants in the amount of $513,660.33,plus prejudgment and post judgment interest, costs and any other relief allowed by law. COUNT II UNJUST ENRICHMENT(IN THE ALTERNATIVE) 45. The Defendant incorporates paragraphs 1 through 44 of its Answer as if fully set forth herein. 8. 46. In the event the Court determines that no enforceable contract exists between the parties, the Defendant brings this claim in the alternative for unjust enrichment. 47. At the time the Defendant provided products to Rite Aid, it had a reasonable expectation of payment, for the reasonable value of the product, from Rite Aid. 48. The reasonable value of the product provided to Rite Aid is$513,660.33. 49. Injustice can only be avoided if Rite Aid pays the Defendant,the reasonable value of the product of$513,660.33, for which Rite Aid has been unjustly enriched. WHEREFORE,Defendant/Counterclaim Plaintiff,Dr. Thompson's, Inc., requests that this Court enter judgment in its favor and against Plaintiff/Counterclaim Defendants in the amount of$513,660.33, plus prejudgment and post judgment interest, cost and any other relief allowed by law. Respectfully submitted Edward Clark Corley(OH. 00 4) Attorney for Defendant 233 South High Street, Suite 300 Columbus, Ohio 43215 (614)222-0400 Law@edwardcorley.com 9. CERTIFICATION OF SERVICE I certify that a copy of the foregoing Answer to Complaint with New Matter and Counterclaim was served by United States mail, first class,postage prepaid,on June 19, 2013,to the following: Brian P. Downey Pepper Hamilton, LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 Edward Clark Corley 10. i VERIFICATION I,Jennifer Thompson,president of Dr.Thompson's, Inc., have read the foregoing Answer to Complaint with New Matter and Counterclaim,and hereby affirm that it is true and,correct to the best of my personal knowledge, information and belief. Subject to the penalties of 18 Pa.C.S. Section 4904. Date: Jennifer n,P ident om son's, EXHIBIT I CONTACT PERSON: ANDREA DONIGARDNER-PHONE 717 730.8329-FAX 7179945+871-E-ki.All:abontgerdner@Ateaid coo EXHIBrr A The undersigned Supplier agnts that the firer lied below will be advertised in the Rite Aid Single Cheri:Rebates Pro`.'tan and fulfilled under the tags and condition ootttained herem I 1. Program Specifics Basic Otter-includes shelf sips in all stores,rebate offiff in rebate directory and Rite Aid Online Store..rbaoe offer on Ow Rik-Aid Sung.Check Rebates web site. and stdesfrodonptroa report'The cost of inclusion into the diteaory still be milled separately.pt abided however,that there is no cost for inclusion into the directory for participants in Rite Aid's Annual Promotional Furaling Agreement Sneenstatxs nr Advenorial-requites camera-ready artwork ondak. Must contain a mvmimum of one Single Check Rebates offs Participation fee is in addition ax and not in substitution IlDror dinirintion of.RiwAid's Amoral Promotions!Funding Argrearient Wi l /A = S2d;5t10 Full Page J stZaont3atfP�e. Se1F Haiirr eCbecicc-requit>;s cantbcrarcady amtorl:rm rusk. A processing teeaffttty-tan cents(S.32)per Single Check Rebates check intn"kd. Siff tnaifcr cheeks me in addition to.and not in snbstitutioe for or diminution at Rite Aid's Awcal Pogrsn Funding Agrcaneibt Required Deposit Amount: S A deposit is due an or Wom the start oftbe progam. Additimad amo m may rte da aimed In Rltt Aid fmm Sapplierdnriog the program in the cveb thud it is reasaaably amieipated that ttte processing fact will t%eeed till•deposit. ProcessinaFtes: A processing fee of forty-seven cents(S.47)for a stmtdard ofrc Ry-four cents(S.it)for a variable offer,fifty-nine cents(S.59)for a dial offs per submission:which ptocasmg fec sbal I inrdndc rebate procession postage and eostoracr service. Pm.-mine fee are in addition to and not in substitution for or dini:ttt' ofRiteAid's Annual Program Funding Agreenienr_ IL Rcbate Offer PF0gr2m$Mond*) C DepositAnnount:Fslimate of rebate redemption liability including full llmcril lb s$_(tfsubmitauc vatracr-.d mulripte otfem indude�W aftr'dtposa.) The deposit amn:mt stmtdd cover the crimatcd abates to be redeemed and all processing foes.A deposit is due on or befam the start of the rroMm.Additional amoarts may be deducted Om Suppfin by Rite Aid during the program is the even it is reasawNy anik4mied fix rebuesama proce$mg fees vAl exceed the deposit_ D. SuppUuAuthorinlioo P ma"..YMattapu) Name cci np.my Nettle. DR 1 fit]. 1�-�i[]t sL'S i ni G Sttca Address U�i f ! , 9C4 city.state zip 41E-Si 1 tt i D -i 3o -DL Vendor Number Telephone Number(¢14) tofc l 2ri r'- Z, Fax Num 5 ber(Qq} �s`+ q 2_ E Mail Address E Rebate Offer Information List all bawds to be inchtdcd in yottr rebate rifer. List all Rite Aid fM?K CODES associated uidt roar offer(attach separate page if necessan•) Rite Aid will determine final wordineand la-oat an information Bnnd 1latnefs) i Rebate Ameaat er Istdbis product Freeafler Total RebatestNr Waves Preabium Offered rmebateforthe entire monk? Allowed Per Household 20C 1 s t O�Q�N L;� pQ 40 3 DtZ. iC T + F. Consunwr Porch=Regtrirrmeats: i 03 s ! — E f C)l:aL P,,j G. Product to be Product iD. R. M ,,� 1711 Photographed tern Code : -- —A()—�� C30� ' stern '�%-1 A �2� Product UPCit Item Cade RITE AID CORPOfLATION ill+. SUPPLIERIVENMR.NAME SUPkh00VtNMR S ATURE The above stgogtore constitutes acceptance and umierstaadmg of sea one iltrotggh thirteen thn m Jested on bath pam of this contract. RITE AID SINGLE CHECK REBATES.8 PROGRAM—Pare 2 2. Supplier agrees to advertise and participate in a rebate program offered in all Rite Aid Stores and Rite Aid Online Store. 3. Supplier agrees to advertise and participate in the rebate program for those items described in Section 1 (A-G)ofthis contract, attached hereto,and made a part hereof. 4. The Rebate Program wi 11 operate on a 4 or 5 week calendar month,starting on a Sunday and ending on a Saturday.The cost of inclusion in the printed directory will be billed separately. These is no cost for inclusion in the directory for participants in Rite Aid's Annual Promotional Funding Agreement, 5. Supplier also agrees to pray all rebate amounts,together with a processing fee of forty-seven cents($.47)for a standard offer, fifty-four cents($.54)for a variable offer,fifty-nine cents($.59)for a special offer.per rebate. The processing fee shall include rebate processing,postage and customer service. Supplieragrees that the processing fee may increase incrementally due to a postage increase by the U.S.Postal Service. Processing fees are in addition to,and not in substitution or diminution of,Rite Aid's Annual Promotionat Funding Agreement b. If a self-mailer option is selected by Supplier,Supplier agrees to pay a processing free of fifly-t vo cents(5.53)per Single Check Rebates check mailed Supplier agrees that the processing flee may increase incrementally due to a postage increase by the U.S. Postal Service. 7: Supplier agrees to pay to Rite Aid a deposit to cover the estimated rebate redemptions and processing flees. The deposit is due on or before the start date of the program.Additional amounts may be deducted by Rite Aid from Supplier during the program,in the event it is reasonably anticipated the rebates and processing fees will exceed the deposit. Supplier authorizes Rite Aid to deduct such charges that are due or become due under this contract,from any or all amounts otherwise due to Supplier from Rite Aid. Any funds deposited under this paragraph in excess ofthe total liability that becomes due will be refunded or credited to the Supplier. S. Rebate conditions will include a completed REBATE SUBMISSION FORM ifmailed,OR a validated ELECTRONIC SUBMISSION,both of which contain customer information.Supplier is responsible for providing all valid item codes associated with the rebate offer to Rite Aid,which will be utilized to validate consumer rebate submissions. I 9. Supplier agrees to be responsible for all rebate amounts and related processing charges paid under the program. The final reconciliation for all offers will be reported between sixty(60)and seventy-five(75)days after the Send date of the program period. Supplier will receive an activity report and billing reconciliation for each offer included in the program. Any mail-in submissions not approved far payment will be retained for ninety(90)days in order to provide an appropriate level ofcustomer service(subject to an audit.notice under paragraph I 1 below). 10. Supplier indemnifies and holds harmless Rite Aid Corporation and its fulfillment providers from any and all claims,suits,losses, damages,litigation and related expenses,including reasonable attorney fees,that may arise from claims by any person or group regarding any product of Supplier advertised,promoted,sold,delivered or otherwise a part of the Single Check Rebates Program- It is further agreed that Rite Aid has no liability to pay any amounts on behalf of Supplier,or any other person,for the level of purchasing and/or rebate activity under this program. All sales and rebate projections are estimates only,and Supplier relies solely upon the exercise of its own business judgment in the determination ofparticipating in ibis program. H.. Within ninety(90)days after receiving the final reconciliation for any offer.Supplier may request in writing,to inspect or audit program redemptions. Any such inspection or audit shall be at Supplier's sole expense,and must be completed no more than three-hundred-sixty(360)flays following Rite Aid providing the final reconciliation for the offer or program period involved. 12. Bite Aid and its fulfillment providers shall not be liable for any failure to perform any services prevented by events or actions beyond its reasonable control_ 13. This contract will be governed by the laws ofthe Commonwealth of Pennsylvania(wirhout regard to conflict of laws"). Any litigation regarding this contract will be determined in the courts ofthe Commonwealth of Pennsylvania. R N0 �i � 0 f NOTICE TO PLEAD y w _9 �-ji C)" TO DEFENDANT: YOU ARE HEREBY NOTIFIED TO FILE A x�„ WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER it Fib AM L" coo Ty`f WITHIN 20(TWENTY)DAYS FROM SERVICE HEREOF, OR A L YANI1\ JUDGMENT MAY BE ENTERED AGAINST YOU. AT O EYS FOR PLAINTIFFS RITE AID HDQTRS and MTEAID CORPORATION RITE AID HDQTRS. CORP. and RITE AID IN THE COURT OF COMMON PLEAS CORPORATION, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Plaintiffs, vs. NO. 2012-2380 CIVIL DR. THOMPSON'S, INC., COMPLAINT Defendant. JURY TRIAL DEMANDED REPLY TO NEW MATTER AND ANSWER TO COUNTERCLAIM Plaintiff Rite Aid HDQTRS. CORP. and Rite Aid Corporation(collectively referred to herein as "Rite Aid"), by their undersigned attorneys, reply to Dr. Thompson's, Inc. ("Dr. Thompson's" or"Defendant")New Matter and answer the Counterclaim as follows: NEW MATTER i 33. Denies. Rite Aid denies Paragraph 33 as a conclusion of law to which no response is required. 34. Denies. Rite Aid denies Paragraph 34 as a conclusion of law to which no response is required. 35. Denies. Rite Aid denies Paragraph 35 as a conclusion of law to which no response is required. If a response is required, Rite Aid denies that any amount is due to Defendant. Instead, Defendant has a negative account balance with Rite Aid. 36. Denies. Rite Aid denies Paragraph 36 as a conclusion of law to which no response is required. COUNTERCLAIM COUNT I BREACH OF CONTRACT 37. Denies. Rite Aid incorporates by reference paragraphs I through 32 of its Complaint and paragraphs 33 through 36 of its Reply to Defendant's New Matter. 38. Denies as stated. Rite Aid admits only that Defendant participated in a rebate program for its COLDWAR product beginning in 2009 in which the product would be free after the rebate. By way of further answer, Defendant was responsible for all rebate amounts. Rite Aid denies any characterizations that are inconsistent with the parties' written agreements. 39. Denies as stated. Defendant was responsible for all rebate amounts and related processing charges. By way of further response, Defendant's product was free after the rebate. By way of still further response, the parties' relationship was governed by the agreements entered by the parties, including the Guaranteed Sales Agreement. 40. Denies as stated. Rite Aid admits only that a supplier may request to inspect or audit program redemptions. By way of further answer, Rite Aid admits only that it allowed Defendant to audit the rebate program and that it provided Defendant with detailed information for the audit. 41. Denies as stated. Rite Aid permitted Defendant to audit the program redemptions pursuant to the Rite Aid Single Check Rebates@ Program and provided Defendant with detailed information to conduct the audit. Rite Aid does not know what Defendant means by "certain consumer identification information" in Paragraph 41 and, therefore, lacks information -2- or knowledge sufficient to form a belief as to the truth of the allegation. By way of further answer, Rite Aid did not, and does not, provide the identity of its customers to suppliers. 42. Denies. Rite Aid denies Paragraph 42 as a conclusion of law to which no response is required. By way of further response, Rite Aid permitted Defendant to audit the rebate program and provided Defendant the required information for the audit. 43. Denies. Rite Aid denies Paragraph 43 as a conclusion of law to which no response is required. 44. Denies. Rite Aid denies Paragraph 44 as a conclusion of law to which no response is required. COUNT 11 UNJUST ENRICHMENT(IN THE ALTERNATIVE) 45. Rite Aid incorporates by reference paragraphs I through 32 of its Complaint and paragraphs 33 through 44 above, as if set forth at length. 46. Admits in part and denies in part. Rite Aid admits only that Defendant states that it is bringing a claim for unjust enrichment. Rite Aid denies that it has been unjustly enriched or that Defendant states a claim for unjust enrichment. 47. Denies. Rite Aid denies Paragraph 47 as a conclusion of law to which no response is required. To the extent a response is necessary, Defendant has been fully compensated. '48. Denies. Rite Aid denies Paragraph 48 as a conclusion of law to which no response is required. To the extent a response is necessary, Defendant has been fully compensated. 49. Denies. Rite Aid denies Paragraph 49 as a conclusion of law to which no response is required. To the extent a response is deemed necessary, Defendant has been fully compensated. -3- L NEW MATTER 50. Defendant's claims fail to state claims upon which relief may be granted. 51. Rite Aid did not breach any duty, contractual or otherwise, allegedly owed to Defendant. 52. Defendant's cause of action against Rite Aid may be barred by the equitable doctrines of estoppel, laches, and waiver. 53. Rite Aid is entitled to an equitable right of setoff. 54. Rite Aid has not been unjustly enriched. 55. Rite Aid does not waive any of the affirmative defenses enumerated in Pa. R.C.P. 1030 or any other affirmative defense and hereby gives notice that Rite Aid relies upon such other defenses as may become available or appear during the course of discovery proceedings in this case. Rite Aid reserves the right to amend this answer to assert such defenses. WHEREFORE, Rite Aid requests judgment in its favor and against Defendant, and that the Court award Rite Aid its costs and any other relief allowed by law. Respectfully submitted, Date: July 8, 2013 qv--k�k, B P. Downey (PA 60327) Justin G. Weber(PA 89266) PEPPER HAMILTON LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 Phone: 717.255.1155 Fax: 717.238.0575 Email: downeyb @pepperlaw.com weber]g@pepperlaw.com Attorneys for Rite Aid Corporation and Rite Aid HDQTRS. CORP. -4- VERIFICATION Ron Chima signs this Verification on behalf of Rite Aid HDQTRS.Corp.and Rite Aid Corporation,and verifies that the foregoing document 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 his 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.A. §4904 relating to unsworn falsification to authorities. f r RQ ` A CERTIFICATE OF SERVICE I hereby certify that on July 8, 2012, I served a copy of the foregoing document on counsel of record by United States mail, first class postage prepaid, addressed as follows: Edward Clark Corley, Esq. 233 South High Street, Suite 300 Columbus, Ohio 43125 Counsel for Dr. Thompson's, Inc. OL'P. Justif d. Weber(PA 89266) i j U i F s f . PRO:T;y I� oro �s ' cumiOERLA.ND COUNTY PE�9�SYL�'AN�A Edward Clark Corley, (OH. 00 18944) Attorney at Law 233 South High Street, Suite 300 Columbus, Ohio 43215 (614) 222-0400 Lawkedwardcorlec Attorney for Defendant RITE AID HDQTRS, CORP. and IN THE COURT OF COMMON RITE AID CORPORATION, PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION -LAW VS. NO. 2012 2380 DR. THOMPSON'S, INC. JURY TRIAL DEMANDED Defendant. DEFENDANT'S REPLY TO PLAINTIFF'S NEW MATTER Now comes, Defendant, Dr. Thompson's, Inc.,through counsel, and provides the following reply to the Plaintiff's New Matter. 1. Deny. Defendant denies Paragraph 50 as averments in this paragraph constitute conclusions of law to which no response is required. 2. Deny. Defendant denies Paragraph 51 as averments in this paragraph constitute conclusions of law to which no response is required. 3. Deny. Defendant denies Paragraph 52 as averments in this paragraph constitute conclusions of law to which no response is required. 4. Deny. Defendant denies Paragraph 53 as averments in this paragraph constitute conclusions of law to which no response is required. 5. Deny. Defendant denies Paragraph 54 as averments in this paragraph constitute conclusions of law to which no response is required. 6. Deny. Defendant denies Paragraph 55 as averments in this paragraph constitute conclusions of law to which no response is required. WHEREFORE, Defendant request judgment in its favor and any other relief allowed by law. Respectfully submitted &4je!V 1!�'4 Edward Clark Corley (OH do-18944) Attorney for Defendant 233 South High Street, Suite 300 Columbus, Ohio 43215 (614) 222-0400 Law(?edwardcorley.com 2. CERTIFICATION OF SERVICE I certify that a copy of the foregoing Defendant's Reply To Plaintiff's New Matter was served by United States mail, first class,postage prepaid, on August 2, 2013, to the following: Brian P. Downey Pepper Hamilton, LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1 181 Edward Clark Corley 3.