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HomeMy WebLinkAbout12-4952?.I10-thONOTARY RITE AID HDQTRS. CORP "THE COURT OF COMMON PLEAS OF IBERLAND COUNTY, PENNSYLVANIA Plaintiff, rv4 x?''^?,Ap D COU ` E?NSYLVAt3! A VS. CIVIL ACTION NO. p?-L I J i MARIAN HEATH GREETING CARDS, LLC Defendant. 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 Q?? ?Ib3.?S?d a?? RITE AID HDQTRS. CORP., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. : CIVIL ACTION NO. MARIAN HEATH GREETING CARDS, LLC 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 despues 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 O 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 O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-1366 RITE AID HDQTRS. CORP., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. CIVIL ACTION NO. MARIAN HEATH GREETING CARDS, LLC Defendants. COMPLAINT - CIVIL ACTION Plaintiff Rite Aid Hdqtrs. Corp. ("Rite Aid"), by and through its undersigned counsel, brings this action for breach of contract against Marian Heath Greeting Cards, LLC ("Marian Heath" or "Defendant"). Defendant agreed to pay funds to Rite Aid but has failed and refused to pay those funds. In support of this action, Rite Aid alleges as follows: PARTIES I. Rite Aid is a Delaware corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Pennsylvania 17011. 2. Upon information and belief, Marian Heath is a Delaware limited liability company with a principal place of business at 9 Kendrick Road, Wareham, Massachusetts 02571. JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction pursuant to 42 Pa.C.S. §931(a). 4. At all times relevant to the conduct alleged in this Complaint, Defendant conducted business in Pennsylvania. 5. Venue in this Court is proper because the cause of action arose in Cumberland County, and a transaction or occurrence took place there out of which the cause of action arose. RELEVANT FACTS 6. Rite Aid, through its affiliated companies, operates a national drug store chain with its principal office in Cumberland County, Pennsylvania. 7. Rite Aid and Marian Heath entered into several agreements regarding the sale of Marian Heath's products in Rite Aid's retail drugstores. 8. On or about March 25, 2011, Rite Aid and Marian Heath entered into an Incremental Investment Agreement by which Marian Heath agreed to pay Rite Aid $68,130.00. A true and correct copy of the Incremental Investment Agreement, a valid and enforceable written contract, is attached to this Complaint as Exhibit A. 9. Marian Heath agreed to pay this amount by issuing credit against the overall costs of its products to Rite Aid on a quarterly basis between July 1, 2011, and June 30, 2012. 10. Marian Heath has refused to comply with this obligation. 11. Marian Heath has not paid Rite Aid the $68,130.00 that it agreed to pay in the Incremental Investment Agreement, whether through the issuance of credits or otherwise. 12. Marian Heath's refusal to pay Rite Aid constitutes a breach of the Incremental Investment Agreement. 13. Rite Aid has been damaged by Marian Heath's breach of the Incremental Investment Agreement. COUNTI BREACH OF CONTRACT 14. Rite Aid incorporates by reference all of the allegations contained in Paragraphs 1- 13, above, as if fully set forth herein. 15. Marian Heath has materially breached the Incremental Investment Agreement with Rite Aid by failing to remit funds due to Rite Aid either by paying them to Rite Aid directly or by issuing credit against the overall cost of product to Rite Aid. 16. As a direct and proximate result of Marian Heath's breach, Rite Aid has suffered and continues to suffer damages in excess of $68,130.00. 17. Marian Heath's conduct is without excuse or justification. WHEREFORE, Rite Aid respectfully requests judgment in its favor and against Marian Heath Greeting Cards, LLC and an award of damages in an amount in excess of $68,130.00 together with interest, costs, and such other relief as the Court deems just and proper. COUNT II UNJUST ENRICHMENT 18. Rite Aid incorporates by reference all of the allegations contained in Paragraphs 1-17, above, as if fully set forth herein. 19. In the event Marian Heath contends no contractual relationship exists, Rite Aid is entitled to recover $68,130.00 to prevent Marian Heath from being unjustly enriched. 20. Marian Heath agreed to provide $68,130.00 to Rite Aid. 21. Marian Heath has not provided this money to Rite Aid, either directly or through the issuance of credits. 22. Rite Aid has a reasonable expectation to receive the $68,130.00. 23. Marian Heath has no legal justification to withhold the $68,130.00 from Rite Aid. 24. Marian Heath reasonably should have expected to pay the $68,130.00 to Rite Aid. 25. It would be inequitable for Marian Heath to receive the benefit of the $68,130.00. 26. In the event the Incremental Investment Agreement is deemed to be unenforceable, Rite Aid has no adequate remedy at law. 27. Rite Aid is entitled to collect the $68,130.00 plus interest from Marian Heath under the doctrine of unjust enrichment. WHEREFORE, Rite Aid respectfully requests judgment in its favor and against Marian Heath Greeting Cards, LLC and an award of damages in an amount in excess of $68,130.00 together with interest, costs, and such other relief as the Court deems just and proper. Date: August 8, 2012 PEPPER HAMILTOITLLP - .<,- 100 Market Street, Suite 200 P. O. Box 1181 Harrisburg, PA 17108-1181 Phone: 717.255.1155 Fax: 717.238.0575 Email: Attorneys for Plaintiff Rite Aid Hdqtrs. Corp. EXHIBIT A Page 1 of 1 RiteAid Incremental Investment Contract # 0383112 Agreement f Fiscal Year 2012 Supplier Participation Page 1 of 1 Vendor #: 37107 Vendor Name: MARIAN MEATH GREETING CARDS Category Mgr. MARY MITCHELL Billing Address: 9 KENDRICK ROAD WAREHAIM MA 02571 Contact: Kan Carmel Phone: 514-381-9763 Fax#: 531-4494100 Event Dates: 71112011 - 613012012 Email: kencsalosongn.com Event Type: DISPLAY FIXTURE Contract Description Investment/Funding Special Dlrection/Addittoaat Remarks /? J-Hook - ($15 full side) - 4,542 STORES 588,130.00 (&A AtM.I [ tpa?w e,ff,1-4 v tan Wee, k- /o Isivs ?C"dnF a4Sv,?s4 of em# ca s/' 0,vt a ?u?w (//r? 6q,` rS, d32 s 50 arty X y 7-, ???, ?3o s ro )AAR" MIA TM GRE"NO (SuppM) hereby aprw to pwOopata in On Me AN sranb and aasocww toslt ins catad hrsb, k+durarp but not Ow"d w ran ducks CARM 4wW by RNa Ab &ffb0 pia WM a (ft ApnraaM QW ra WW rad"m W by iha watW r. ThO a WiM to be OW py SuppAW IS in adAlon to and nd kt subatikabn for or dknkuabn of any minknt m PromdkxW iurtdkiq bttad upon rdusl !{teal yar 2012 (rawwry 27, 2011 #rrvi 3.20t2'grost purWfaa Peymwo arod d@&Ae1bn d da hwamrwl ktiwamsnt aMi odour ..ttwr 70 days of dr oommrneu Ot of ft ..«u hd4Aad iw.in. iner.manW kw*@"nnt kg4nq is firm wW ram cw ? Proof or wfa mwws wig rook b• prw k" AURMANd . 14 ?, Mw.. Cshmgwy Mgr?Aaw¢ CSMOrY .fd1 Mstr. DOW TAW" o.tr I, Mary Mitchell, hereby state that I am authorized to make this verification on behalf of Rite Aid MQTRS. Corp. I verify that the foregoing document was prepared with the assistance and advice of counsel, and in reliance upon counsel's advice; that the fit, 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 unworn falsification to authorities. RITE AID HDQTRS. CORP., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. CIVIL ACTION NO. 2012-4952 - Civil MARIAN HEATH GREETING CARDS, LLC ,-? Defendant. r r ' E JURY TRIAL DEMANDED - ? c ' ?? AFFIDAVIT OF SERVICE 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 59891. 2. On August 10, 2012, I caused the Complaint to be served upon defendant Marian Heath Greeting Cards, LLC by the mailing of a true and correct copy to the defendant by United States certified mail, return receipt requested, postage prepaid, the envelope addressed as follows: Marian Heath Greeting Cards, LLC, 9 Kendrick Road, Wareham, MA 02571 ("Service Address"). 3. 1 received the return receipt indicating that the document was delivered to and accepted at the Service Address by Joan Kelly on August 15, 2012, thereby completing service on defendant Marian Heath Greeting Cards, LLC pursuant to Pa. R.C.P. 403, 404 and 424. A cppy of the return receipt card is attached hereto as Exhibit "A." Date: August 20, 2012 P. L7NNvney 91) G. W er ( 89266 Tte cer R-Thffi (PA 6426) PEPP ?O LP 100 Market Street, Suit P. O. Box 1181 Harrisburg, PA 17108-1181 Phone: 717.255.1155 Fax: 717.238.0575 Email: downeyb@pepperlaw.com Attorneys for Plaintiff Rite Aid Hdqtrs. Corp. SWORN TO AND SUBSCRIBED BEFORE ME THIS 20`h DAY OF AUGUST, 2012. 94N O?'ARY PUBLIC MY COMMISSION EXPIRES: &- S - a of 5 COMB ONWZALTH OF rtNNSYLVAMA NOTARIAL SEAL P K. BISHOP, Notary Pu* of Hanlsbung, DO* County Expka June 5, 2015 -2- EXHIBIT A ¦ Complete Mesta 1, 2, and $. Also complete . Rem 4 If Restricted DelN VY Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mallplec e, or on the front if space permits. 1. Article Addressed to: McLr-+a.n Nka+h GmeiHA-A y 6en dii K Wary hang, M A 0,k!?. 17 2. Article Number (Transfer from servIcs lanes PS Form 3811, February 2004 E3 ' Aunt X _ Addressee 9<i I&A ?' R by ( ) of Delivery D. Is Ovary eddressd Rem 1? C] Yew YES, errter delivery addfess below: ?o & service lype ?CeRMed Mali D EVrM Mal D Re Waved 0 Retum Receipt for Merchwidles D Insured Mali Cl C.O.D. 4. ResMcted Delivery? (Extra Feel I] Yes ocPd 0000 33(oq -1a35 Domestic Return Receipt 102595-024A-1 540 UNITED STATES qm? ? .:A ` %kxA .w Plea le print your name, address, and R C°•„ gy G-- , op N ?. 0 1 cD Q Pepper Hamilton LLP Market Street, Suite 200 P.O. Box 1181 rdabura. PA 17108-1181 in this box • tPJ: PAMa4 a(,H'OP ?lfl?l?lllitl11??11l111l?!!!!'111l??1f1I11l1?11111111fill 11111 CERTIFICATE OF SERVICE I hereby certify that on August 20, 2012, I served a copy of the foregoing 4f .fidavit of Service on defendant by United States mail, first class postage prepaid, addressed as follows: Marian Heath Greeting Cards, LLC 9 Kendrick Road Wareham, MA 02571 Scott T. Wyland Attorney I.D. No. 52660 David H. Martineau Attorney I.D. No. 84127 Salzmann Hughes, P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17017 (717) 249-6333 RITE AID HDQTRS. CORP, Plaintiff v. MARIAN HEATH GREETING CARDS, LLC, Defendant ~`~ T~~~ r FtQ ~ ND,'~QTrrt` ! 2 ~r~'~ I ~ ~~ 9~ 37 CUMBEI~~HND COUNTY k'ENNSYLVANl~~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 12-4952 NOTICE TO PLEAD To: Rite Aid Hdqtrs. Corp. c/o Brian P. Downey, Esquire Pepper Hamilton, LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 You are hereby notified to plead to the enclosed Answer with New Matter and Counterclaims within twenty (20) days from service hereof or a default judgment maybe entered against you. Respectfully submitted, Date: November /.3 , 2012 Salzmann Hughes, P.C. ~1 ~, '~ .. .~ Scott T. Wyland Attorney I.D. No. 52660 David H. Martineau Attorney I.D. No. 84127 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717) 249-6333 Attorneys for Defendant, Marian Heath Greeting Cards, LLC Scott T. Wyland Attorney LD. No. 52660 David H. Martineau Attorney I.D. No. 84127 Salzmann Hughes, P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17017 (717)249-6333 RITE AID HDQTRS. CORP, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION NO. 12-4952 MARIAN HEATH GREETING CARDS, LLC, Defendant JURY TRIAL DEMANDED ANSWER WITH NEW MATTER AND COUNTERCLAIMS NOW COMES, Defendant, Marian Heath Greeting Cards, LLC, by and through its counsel, Salzmann Hughes, P.C., and Answers the Plaintiff's Complaint as follows: PARTIES 1. Admitted upon information and belief. 2. Admitted. JURISDICTION AND VENUE 3. Paragraph 3 contains a legal conclusion to which no responsive pleading is required. 4. Admitted. 5. Paragraph 5 contains a legal conclusion to which no responsive pleading is required. RELEVANT FACTS 6. Admitted. 7. Admitted. 8. Denied as stated. The Incremental Investment Agreement attached to the Complaint is a writing that speaks for itself. Paragraph 8 is denied to the extent that it is inconsistent with or attempts to characterize such written document. Additionally, it is denied that the Incremental Investment Agreement is a standalone agreement or that it embodies the entire agreement between the parties. 9. Denied as stated. The Incremental Investment Agreement attached to the Complaint is a writing that speaks for itself. Paragraph 9 is denied to the extent that it is inconsistent with or attempts to characterize such written document. Additionally, it is denied that the Incremental Investment Agreement is a standalone agreement or that it embodies the entire agreement between the parties. 10. Denied. It is specifically denied that Marian Heath Greeting Cards, LLC ("Marian Heath") refused to comply with its agreements with Rite Aid Hdqtrs. Corp. ("Rite Aid"). By way of further response, Rite Aid, and not Marian Heath, has refused to abide by the agreements between the parties by failing to property display and account for the sale of Marian Heath's products. Further, it is believed, and therefore averred, that Rite Aid failed to make the agreed upon financial investments in aid of selling Marian Heath's products. Additionally, at the time of this Answer, Rite Aid is withholding payment of money which is due to Marian Heath far in excess of the amounts sought by Rite Aid under this Complaint. 11. Denied. The allegations of Paragraph 11 are specifically denied. Any lack of credit against monies owed to Marian Heath is a direct result of Rite Aid's failure to property display, account for the sale of Marian Heath's products and make the agreed upon financial investments in aid of selling Marian Heath's products. Additionally, at the time of this Answer, Rite Aid is withholding payment of money that is due to Marian Heath far in excess of the amounts sought by Rite Aid under this Complaint. 12. Denied. The allegations of Paragraph 12 are conclusions of law to which no responsive pleading is required. To the extent that any response is required, the same is specifically denied. It is Rite Aid, and not Marian Heath that has beached the agreements between the parties. 13. Denied. Marian Heath has not breached any agreement between the parties and therefore, Rite Aid has not been damaged. COUNTI BREACH OF CONTRACT 14. Marian Heath's responses to Paragraphs 1 through 13 are incorporated herein by this reference. 15. Denied. The allegations of Paragraph 15 are conclusions of law to which no responsive pleading is required. To the extent that any response is required, the same is specifically denied. It is Rite Aid, and not Marian Heath that has beached the agreements between the parties. Additionally, at the time of this Answer, Rite Aid is withholding payment of money that is due to Marian Heath far in excess of the amounts sought by Rite Aid under this Complaint. 16. Denied. The allegations of Paragraph 16 are specifically denied. Marian Heath has not breached any agreement between the parties and therefore, Rite Aid has not been damaged. 17. Denied. The allegations of Paragraph 17 are specifically denied. Marian Heath's conduct requires no excuse or justification. To the extent that any justification is required, credits cannot be issued against monies owed from Rite Aid to Marian Heath until Rite Aid has reported such sums, which Rite Aid has failed to do, in breach of the agreements between Rite Aid and Marian Heath. WHEREFORE, Defendant, Marian Heath Greeting Cards, LLC prays this Honorable Court to enter judgment in favor of Defendant and against Rite Aid Hdqtrs. Corp. COUNT II UNJUST ENRICHMENT 18. Marian Heath's responses to Paragraphs 1 through 17 are incorporated herein by this reference. 19. Denied. Paragraph 19 contains a conclusion of law to which no responsive pleading is required. To the extent any response is required, it is specifically denied that Rite Aid has been unjustly enriched in any amount. 20. Denied as stated. The Incremental Investment Agreement attached to Rite Aid's Complaint is a writing that speaks for itself. Paragraph 8 is denied to the extent that it is inconsistent with or attempts to characterize such written document. Additionally, it is specifically denied that the Incremental Investment Agreement is a standalone agreement or that it embodies the entire agreement between the parties. 21. Admitted in part and denied in part. It is admitted only that Marian Heath has not made payment or issued credits for the entire sum indicated. It is specifically denied that Marian Heath as any obligation to do so in light of Rite Aid's material breach of the agreements between Rite Aid and Marian Heath. 22. Denied. The allegations of Paragraph 22 are specifically denied. Rite Aid has not performed its obligations to Marian Heath and has no expectation of Marian Heath's performance in light of Rite Aid's material breach of its obligations to Marian Heath. 23. Denied. The allegations of Paragraph 23 are specifically denied. Rite Aid has materially breached the agreements between the parties by failing to property display and account for the sale of Marian Heath's products. 24. Denied. The allegations of Paragraph 24 are specifically denied. Marian Heath did not reasonably expect to pay Rite Aid any sum under the circumstances of this case, being that Rite Aid has materially breached the agreements between the parties by failing to property display and account for the sale of Marian Heath's products. 25. Denied. The allegations of Paragraph 25 are specifically denied. To the contrary, it would be inequitable to permit Rite Aid to profits from its own bad acts. 26. Denied. Paragraph 26 contains a conclusion of law to which no responsive pleading is required. To the extent any response it is specifically denied that Rite Aid is entitled to any remedy at law or in equity. 27. Denied. Paragraph 27 contains a conclusion of law to which no responsive pleading is required. To the extent any response is required, it is specifically denied that Rite Aid is entitled to collect any amount from Marian Heath. WHEREFORE, Defendant, Marian Heath Greeting Cards, LLC prays this Honorable Court to enter judgment in favor of Defendant and against Rite Aid Hdqtrs. Corp. NEW MATTER 28. Marian Heath's responses to Paragraphs 1 through 27 are incorporated herein by this reference. 29. The Incremental Investment Agreement attached to the Complaint does not contain a merger or integration clause. 30. The Incremental Investment Agreement attached to the Complaint does not contain or describe the full agreement between the parties. 31. The full agreement between the parties includes Rite Aid's agreement to display for sale, sell and account for the sale of certain of Marian Heath's products (the "Agreement"). 32. Rite Aid did not purchase Marian Heath's products for its own resale in Rite Aid stores. 33. Pursuant to the Agreement, Rite Aid agreed to pay Marian Heath an amount based upon the actual sales of all Marian Heath products sold in Rite Aid's stores. 34. Pursuant to the Agreement, Rite Aid agreed to provide certain specified display locations and arrangements for Marian Heath's products. 35. Rite Aid agreed to make certain financial investments and other efforts to aid in the marketing and sale of Marian Heath's products. 36. Rite Aid breached its obligations to Marian Heath by failing to display Marian Heath's products as Rite Aid agreed. 37. Rite Aid breached its obligation to Marian Heath by failing to make all financial investments and other efforts to aid in the marketing and sale of Marian Heath's products as Rite Aid agreed. 38. Rite Aid breached its obligation to Marian Heath by failing to account for all sales of Marian Heath's products. 39. Rite Aid breached its obligations to Marian Heath by failing to properly account for all monies owed by Rite Aid to Marian Heath. 40. Rite Aid has materially breached its agreement with Marian Heath. 41. Rite Aid's claims in equity are barred by the doctrine of unclean hands. WHEREFORE, Defendant, Marian Heath Greeting Cards, LLC prays this Honorable Court to enter judgment in its favor and against Rite Aid Hdqtrs. Corp. COUNTER CLAIM 42. Marian Heath and Rite Aid entered into the Agreement noted above, pursuant to which Rite Aid agreed to display for sale certain of Marian Heath's products in an agreed upon manner. 43. Pursuant to the Agreement, Rite Aid agreed to make certain financial investments and take other action in aid of marketing and selling Marian Heath's products. 44. Pursuant to the Agreement, Rite Aid agreed to display Marian Heath's seasonal products (the "Products") in specified locations and with specified arrangements in 4,542 Rite Aid stores. 45. Rite Aid failed to display Marian Heath's Products in the agreed upon manner in the 4,542 Rite Aid stores. 46. In some of the 4,542 stores, Marian Heath's Products were not displayed at all. 47. It is believed and therefore averred that Rite Aid did not adequately notify and/or train its store managers regarding the proper display of Marian Heath's Products. 48. Rite Aid failed to make the financial investments and to take other action in aid of marketing and selling Marian Heath's products as agreed by Rite Aid. 49. Pursuant to the Agreement, Rite Aid agreed to pay Marian Heath an amount based upon the actual sales of Marian Heath Product sold in any of the Rite Aid stores. 50. Rite Aid failed to fully account for all Marian Heath Products sold at Rite Aid stores. 51. As a result of its failure to properly account for inventory sold, Rite Aid did not properly report the number of Marian Heath Products sold. 52. Rite Aid failed to pay Marian Heath for the Marian Heath products sold, but not accounted for by Rite Aid. 53. Rite Aid retained all of the sale price of the Marian Heath Products sold at Rite Aid stores but not reported to Marian Heath. 54. As a direct result of Rite Aid's failure to account and pay for Marian Heath Products sold at Rite Aid stores, Marian Heath has suffered damages. COUNTERCLAIM -COUNT I BREACH OF CONTRACT 55. The responses and allegations of Paragraphs 1 through 54 are incorporated herein by this reference. 56. Rite Aid materially breached the Agreement by failing to display Marian Heath's Products at each of the 4,542 stores as agreed to by Rite Aid. 57. As a direct result of Rite Aid's failure to display Marian Heath's products, Marian Heath has suffered damages in the form of lost sales of its products. 58. Rite Aid has materially breached the Agreement by failing to make financial investments and take other action in aid of marketing and selling Marian Heath's products as agreed by Rite Aid. 59. As a direct result of Rite Aid's failure to make financial investments and take other action in aid of marketing and selling Marian Heath's products as agreed by Rite Aid. 60. Rite Aid materially breached the Agreement by failing to property account and pay Marian Heath for the sale of Marian Heath's products at Rite Aid stores. 61. As a direct result of Rite Aid's breach of the Agreement, Marian Heath has been damages in the amount owed to Marian Heath on the unreported sales. WHEREFORE, Marian Heath Greeting Cards, LLC, as Counter-Claim Plaintiff, prays this Honorable Court to enter judgment in its favor and against Counter-Claim Defendant, Rite Aid Hdgtrs. Corp. in amounts exceeding the limits of mandatory arbitration in Cumberland County. COUNTERCLAIM -COUNT II DETRIMENTAL RELIANCE 62. The responses and allegations of Paragraphs 1 through 61 are incorporated herein by this reference. 63. Rite Aid promised to pay Marian Heath an amount based upon the actual sales of Marian Heath's Products sold at Rite Aid stores. 64. Rite Aid promised to display Marian Heath Products in a specified manner in Rite Aid stores. 65. Rite Aid promised to make certain financial investments and other efforts to market and aid in the sale of Marian Heath's Products. 66. In reliance upon Rite Aid's promises, Marian Heath delivered to Rite Aid certain of Marian Heath's Products, without charge to Rite Aid. 67. Marian Heath's reliance upon Rite Aid's promises was reasonable. 68. Rite Aid did not pay Marian Heath the agreed upon amount. 69. Rite Aid did not display Marian Heath Products in the agreed upon manner and in the agreed upon locations. 70. Marian Heath's reliance upon the promises made by Rite Aid was to its detriment. 71. Marian Heath's reasonable and detrimental reliance upon promises made by Rite Aid has caused Marian Heath damages in the form of lost sales. 72. Marian Heath's reasonable and detrimental reliance upon promises made by Rite Aid has caused Marian Heath damages in the form of lost sales. WHEREFORE, Marian Heath Greeting Cards, LLC, as Counter-Claim Plaintiff, prays this Honorable Court to enter judgment in its favor and against Counter-Claim Defendant, Rite Aid Hdqtrs. Corp. in amounts exceeding the limits of mandatory arbitration in Cumberland County. COUNTERCLAIM -COUNT III UNJUST ENRICHMENT (Pled in the Alternative) 73. The responses and allegations of Paragraphs 1 through 72 are incorporated herein by this reference. 74. Marian Heath conferred a benefit upon Rite Aid by providing Marian Heath's products for sale at Rite Aid's stores. 75. Rite Aid accepted the benefit of selling Marian Heath products at Rite Aid stores. 76. Rite Aid has been enriched by the amount of the sale price received for Marian Heath's products. 77. Rite Aid's enrichment is unjust if it is able to retain such benefit without paying Marian Heath a reasonable sum for its Products. 78. By failing to pay Marian Heath a reasonable sum for the Products, Rite Aid has been unjustly enriched. 79. Marian Heath is entitled to payment from Rite Aid in an amount equal to the agreed upon amount for Marian Heath's Products unjustly retained by Rite Aid. WHEREFORE, Marian Heath Greeting Cards, LLC, as Counter-Claim Plaintiff, prays this Honorable Court to enter judgment in its favor and against Counter-Claim Defendant, Rite Aid Hdqtrs. Corp. in amounts exceeding the limits of mandatory arbitration in Cumberland County. COUNTERCLAIM -COUNT III ACCOUNTING 80. The responses and allegations of Paragraphs 1 through 79 are incorporated herein by this reference. 81. Rite Aid and not Marian Heath is in possession of all information relating to the receipt, distribution for sale, sale and purchase price paid of all Marian Heath Products delivered to Rite Aid. 82. Marian Heath has requested information from Rite Aid relating to the receipt, distribution for sale, sale and purchase price paid of all Marian Heath Products delivered to Rite Aid. 83. Rite Aid has unreasonably declined to provide such information to Marian Heath. 84. Marian Heath has been damaged by Rite Aid's refusal to provide the requested information to Marian Heath because Marian Heath cannot determine the ultimate disposition of its Products delivered to Rite Aid and the amounts due from Rite Aid to Marian Heath pursuant to their Agreement. 85. Marian Heath is entitled to an accounting of the receipt, distribution for sale, sale and purchase price paid of all Marian Heath Products delivered to Rite Aid from January 1, 2008 through November 1, 2012. WHEREFORE, Marian Heath Greeting Cards, LLC, as Counter-Claim Plaintiff, prays this Honorable Court to Order an accounting of Rite Aid Hdqtrs. Corp.'s records of the receipt, distribution for sale, sale and purchase price paid for all Marian Heath Greeting Cards, LLC products from January 1, 2008 through November 1, 2012. Respectfully submitted, SALZMANN HUGHES, P.C. By: ~' ..~~ _. Scott T. Wyland Attorney I.D. No. 52660 David H. Martineau Attorney I.D. No. 84127 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 (717) 249-6333 Date: November ~3 , 2012 Attorneys for Defendant, Marian Heath Greeting Cards, LLC CERTIFICATE OF SERVICE I, David H. Martineau, hereby certify that on this ~~'-' day of November 2012, I served the foregoing Answer with New Matter and Counterclaims via United States mail, first class, postage prepaid, addressed as follows: Brian Downey, Esquire Pepper Hamilton LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 __ . __~ David H. Martineau VERIFICATION I, Patricia Vieira verify that the statements made in the forgoing document are true and correct to the best of my knowledge, information and belief. I also verify that I am authorized to make this verification on behalf of Marian Heath Greeting Cards, LLC. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. MARIAN HEATH GREETING CARDS, LLC Date: / / ~ ~ ~- ~ - ~~-~~ sy: Patricia A. Vieira Title: VP -Finance RITE AID HDQTRS. CORP., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV ANIA Plaintiff, ~ ~ ~ ~ CIVIL ACTION NO. 2012-4952 ~~ i ~ , MARIAN HEATH GREETING CARDS, ~ ~ ~ ~ ;~a i~~ LLC r '~ C3 ~"' ~ ` ' . ~,. -~-- Defendant. ~,; ~„-=a c ~ NOTICE TO DEFEND °< ~' ~ '"'~ You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against 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., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. CIVIL ACTION N0.2012-4952 -Civil MARIAN HEATH GREETING CARDS, LLC Defendant. JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM WITH NEW MATTER Plaintiff Rite Aid HDQTRS. Corp. ("Rite Aid") by its undersigned attorneys, hereby answers the New Matter and Counterclaim of Marian Heath Greeting Cards, LLC ("Marian Heath") as follows: NEW MATTER 28. Rite Aid incorporates by reference the allegations contained in Paragraphs 1 through 27 of its Complaint as fully as though the same were set forth herein. 29. The allegations contained in this paragraph constitute purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. To the extent Marian Heath is alleging that Rite Aid undertook obligations to Marian Heath other than those described in any signed document, including the Incremental Investment Agreement, such allegation is denied. 30. The allegations contained in this paragraph constitute purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. To the extent Marian Heath is alleging that Rite Aid undertook obligations to Marian Heath other than those described in any signed document, including the Incremental Investment Agreement, such allegation is denied. By way of further answer, the allegations contained in this paragraph constitute purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. 31. Rite Aid specifically denies that Marian Heath's use of the defined phrase "the Agreement" accurately reflects the contractual agreement between the parties. Therefore, all such allegations are hereby denied. By way of further answer, Rite Aid specifically denies that the allegations in this paragraph accurately describe the contractual agreement between the parties. 32. The allegations contained in this paragraph are so vague and incomprehensible as to prevent any defendant from answering them, and, therefore, such allegations are deemed to be denied. To the extent that Marian Heath is alleging that Rite Aid was not required to pay Marian Heath for any product that was delivered by Marian Heath but not sold by Rite Aid, Rite Aid admits this allegation. 33. Admitted in part and denied in part. Rite Aid admits that it was only obligated to pay Marian Heath for the product that was actually sold in Rite Aid's store. By way of further answer, Rite Aid incorporates by reference its response to paragraph 31 above as though fully set forth herein. 34. Denied. Rite Aid specifically denies that it agreed to provide certain specified display locations and/or arrangements for Marian Heath's products. By way of further answer, Rite Aid incorporates by reference its response to paragraph 31 above as though fully set forth herein. -2- 35. Denied. Rite Aid specifically denies that it agreed to make financial investments or any other specific efforts to aid in the marketing and sale of Marian Heath's products. By way of further answer, Rite Aid incorporates by reference its response to paragraph 31 above as though fully set forth herein. 36. Denied. Rite Aid specifically denies that it breached any obligations that it owed to Marian Heath. By way of further answer, Rite Aid incorporates its responses to Paragraphs 32 through 35 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. 37. Denied. Rite Aid specifically denies that it breached any obligation owed to Marian Heath, including, but not limited to, any alleged financial investment or other effort to aid in the marketing and sale of Marian Heath's products. Rite Aid specifically denies that it ever agreed to such terms. By way of further answer, Rite Aid incorporates its responses to Paragraphs 32 through 36 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. 38. Denied. Rite Aid denies that it breached any obligation owed to Marian Heath or that it failed to account for all sales of Marian Heath's products. By way of further answer, Rite Aid incorporates its responses to Paragraphs 32 through 37 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in -3- this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied 39. Denied. Rite Aid denies that it breached any obligation to Marian Heath or that it failed to properly account for any money owed to Marian Heath. By way of further answer, Rite Aid incorporates its responses to Paragraphs 32 through 38 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. 40. Denied. Rite Aid denies that it has breached any agreement with Marian Heath. By way of further answer, Rite Aid incorporates its responses to Paragraphs 32 through 39 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. 41. Denied. Rite Aid denies that any claim it may make is barred by the doctrine of unclean hands. By way of further answer, Rite Aid incorporates its responses to Paragraphs 32 through 35 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. COUNTERCLAIM 42. Denied. Rite Aid incorporates by reference its responses to paragraphs 30 to 40 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which -4- no responsive pleading is required and, therefore, such allegations are deemed to be denied. 43. Denied. Rite Aid incorporates by reference its responses to paragraphs 30 to 40 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. 44. Denied. Rite Aid incorporates by reference its responses to paragraphs 30 to 40 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. 45. Denied. Rite Aid incorporates by reference its responses to paragraphs 30 to 40 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. 46. Denied. Rite Aid denies that Marian Heath's products were not displayed in its stores. By way of further answer, Rite Aid incorporates its responses to Paragraphs 30 through 40 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constituted purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. -5- 47. Denied. Rite Aid specifically denies that it did not adequately notify and/or train its store managers with respect to any aspect of Marian Heath's Products. By way of further answer, Rite Aid specifically denies that Rite Aid and Marian Heath ever agreed to any terms constituting a "proper display of Marian Heath's Products." Still by way of further answer, Rite Aid incorporates by reference its responses to Paragraphs 30 through 40 above as fully as though the same were set forth herein. 48. Denied. Rite Aid specifically denies that it failed to make any agreed upon financial investment or failed to take any agreed upon action in aid of marketing and selling Marian Heath's products. Rite Aid specifically denies that any such agreement existed. Still by way of further answer, Rite Aid incorporates by reference its responses to Paragraphs 30 through 40 above as fully as though the same were set forth herein. 49. Denied as stated. Rite Aid incorporates by reference its response to Paragraph 33 above as fully as though the same were set forth herein. 50. Denied. Rite Aid incorporates by reference its response to Paragraph 38 above as fully as though the same were set forth herein. 51. Denied. Rite Aid incorporates by reference its responses to Paragraph 30 through 40 above as fully as though the same were set forth herein. 52. Denied. To the contrary, Rite Aid paid Marian Heath for all Marian Heath products sold in Rite Aid stores. By way of further answer, Rite Aid incorporates by reference its response to Paragraphs 30 through 40 above as fully as though the same were set forth in length herein. 53. Denied. Rite Aid incorporates by reference its response to Paragraph 52 above as fully as though the same were set forth herein. -6- 54. Denied. Rite Aid incorporates by reference its responses to Paragraphs 30 to 40 and 52 to 53 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constitute purported conclusions of law to which no response is required. To the extent any response may be required, Rite Aid specifically denies that Marian Heath was damaged in any way by any contact of Rite Aid. COUNTERCLAIM -COUNT I BREACH OF CONTRACT 55. Rite Aid incorporates by reference its responses to pazagraphs 1 through 27 of its complaint and Pazagraphs 28 through 54 above as fully as though the same were set forth herein. 56. Denied. The allegations contained in this paragraph constitute purported conclusions of law to which no response or pleading is required and, therefore, such allegations aze deemed to be denied. By way of further answer Rite Aid incorporates by reference its responses to pazagraphs 40 through 50 above as fully as though the same were set forth herein. 57. Denied. The allegations contained in this paragraph constitute purported conclusions of law to which no response or pleading is required and, therefore, such allegations are deemed to be denied. By way of further answer Rite Aid incorporates by reference its responses to pazagraphs 40 through 50 above as fully as though the same were set forth herein. Still by way of further answer, Rite Aid denies that Marian Heath was damaged in any way by any conduct of Rite Aid. 58. Denied. The allegations contained in this pazagraph constitute purported conclusions of law to which no response or pleading is required and, therefore, such allegations aze -7- deemed to be denied. By way of further answer Rite Aid incorporates by reference its responses to paragraphs 30 through 50 above as fully as though the same were set forth herein. Still by way of further answer, Rite Aid denies that Marian Heath was damaged in any way by any conduct of Rite Aid. 59. Denied. The allegations contained in this paragraph are so unintelligible as to prevent any defendant from answering them. The allegations contained in this paragraph constitute purported conclusions of law to which no response or pleading is required and, therefore, are deemed to be denied. By way of further answer Rite Aid incorporates by reference its responses to paragraphs 30 through 50 above as fully as though the same were set forth herein. Still by way of further answer, Rite Aid denies that Marian Heath was damaged in any way by any conduct of Rite Aid. 60. Denied. The allegations contained in this paragraph constitute purported conclusions of law to which no responsive pleading is required and, therefore, are deemed to be denied. To the extent any response may be required, Rite Aid denies that it breached any agreement with Marian Heath. Rite Aid denies that it failed to account for and pay Marian Heath for the sale of Marian Heath's products at Rite Aid stores. Still by way of further answer, Rite Aid incorporates by reference Paragraphs 30 through 50 above as fully as though the same were set forth herein. 61. Denied. The allegations contained in this paragraph constitute purported conclusions of law to which no responsive pleading is required and, therefore, are deemed to be denied. To the extent any response may be required, Rite Aid denies that it breached any agreement with Marian Heath. Rite Aid denies that it owes any money to Marian Heath. Rite Aid denies that any sales of Marian Heath product were not reported. Still by way of -8- further answer, Rite Aid incorporates by reference Paragraphs 30 through 50 above as fully as though the same were set forth herein. COUNTERCLAIM -COUNT II DETRIMENTAL RELIANCE 62. Rite Aid incorporates by reference its responses to paragraphs 1 through 27 of its complaint and Paragraphs 28 through 61 above as fully as though the same were set forth herein. 63. Rite Aid incorporates by reference its response to Paragraph 33 above as fully as though the same were set forth herein. 64. Denied. Rite Aid incorporates by reference its response to Paragraph 34 above as fully as though the same were set forth herein. 65. Denied. Rite Aid incorporates by reference its response to Paragraph 35 above as fully as though the same were set forth herein. 66. Denied. Rite Aid specifically denies that it made the "promises" referred to in this paragraph. Rite Aid specifically denies that Marian Heath relied on any promise by Rite Aid. Rite Aid specifically denies that the product provided by Marian Heath was "without charge to Rite Aid." To the contrary, Rite Aid incorporates by reference its response to Paragraph 33 above as though fully set forth herein. 67. Denied. Rite Aid specifically denies that Marian Heath relied upon any "promise" of Rite Aid other than those set forth in written agreements. Rite Aid further denies that any such reliance would have been reasonable. By way of further answer, Rite Aid incorporates by reference its response to Paragraph 66 above as fully as though set forth herein. -9- 68. Denied. To the contrary, Rite Aid has paid Marian Heath all agreed upon amounts. By way of further answer, Marian Heath as failed to pay Rite Aid money it owes to Rite Aid. Still by way of further answer, Rite Aid incorporates by reference its responses to Paragraphs 30 through 40 above as fully as though the same were set forth herein. 69. Denied. Rite Aid incorporates by reference its responses to Paragraphs 45 and 45 above as fully as though the same were set forth herein. 70. Denied. Rite Aid denies that Marian Heath relied upon any promise made by Rite Aid other than those in written agreements and denies that the alleged reliance was to Marian Heath's "detriment." By way of further answer, Rite Aid incorporates by reference its responses to Paragraphs 62 to 70 above as fully as though the same were set forth herein. 71. Denied. Rite Aid denies that its conduct damaged Marian Heath in any way. By way of further answer, Rite Aid incorporates by references its responses to Paragraphs 62 through 70 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constitute purported conclusions of law to which no response is required and, therefore, such allegations are deemed to be denied. 72. Denied. Rite Aid denies that its conduct damaged Marian Heath in any way. Byway of further answer, Rite Aid incorporates by references its responses to Paragraphs 62 through 71 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constitute purported conclusions of law to which no response is required and, therefore, such allegations are deemed to be denied. -10- COUNTERCLAIM -COUNT III UNJUST ENRICHMENT 73. Rite Aid incorporates by reference its responses to paragraphs 1 through 27 of its complaint and Paragraphs 28 through 72 above as fully as though the same were set forth herein. 74. Denied. Due to the contrary, Rite Aid conferred a benefit upon Marian Heath by providing Marian Heath with a location within which to sell its products. By way of further answer, Rite Aid incorporates by reference its responses to Paragraphs 30 through 40 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constitute purported conclusions of law to which no response or pleading is required and, therefore, are deemed to be denied. Still by way of further answer, all actions taken by Rite Aid were in accordance with agreements between the parties and Marian Heath has been fully compensated for any alleged "benefit" it conferred upon Rite Aid. 75. Denied. Rite Aid incorporates by reference its response to Paragraph 74 above as fully as though the same were set forth herein. 76. Denied. Rite Aid incorporates by reference its response to Paragraph 74 above as fully as though the same were set forth herein. 77. Denied. Rite Aid incorporates by reference its response to Paragraph 74 above as fully as though the same were set forth herein. 78. Denied. Rite Aid incorporates by reference its response to Paragraph 74 above as fully as though the same were set forth herein. 79. Denied. Rite Aid incorporates by reference its response to Paragraph 74 above as fully as though the same were set forth herein. By way of further answer, Rite Aid denies that -11- Marian Heath is entitled to any payment from Rite Aid. Rite Aid further denies that it has retained any money owed to Maiian Heath. COUNTERCLAIM -COUNT III (SIC.) ACCOUNTING 80. Rite Aid incorporates by reference its responses to paragraphs 1 through 27 of its complaint and Paragraphs 28 through 79 above as fully as though the same were set forth herein. 81. Denied. To the contrary, Marian Heath is in possession of information regazding the delivery, receipt, sale, and purchase price paid and received for its products. By way of further answer, Rite Aid and Marian Heath never agreed that Rite Aid would be required to provide Maiian Heath with information regarding distribution of its product. Marian Heath's attempt to alter the terms of the agreement with Rite Aid under the guise of seeking an accounting is improper. 82. Denied. Rite Aid incorporates by reference its response to Pazagraph 81 above as fully as though the same were set forth herein. 83. Denied. To the contrary, Rite Aid has reasonably refused to assume contractual obligations regazding information that were not agreed to by the parties. By way of further answer, Rite Aid incorporates by reference its response to Paragraph 81 above as fully as though the same were set forth herein. 84. Denied. To the contrary, Marian Heath has not been damaged by any action taken by Rite Aid. Still by way of further answer, Rite Aid incorporates by reference its responses to paragraphs 30 through 40 and 81 through 83 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this -12- 85 paragraph constitute purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. Denied. Rite Aid specifically denies that Marian Heath is entitled to any accounting. By way of further answer, Rite Aid incorporates by reference its responses to paragraphs 81 through 84 above as fully as though the same were set forth herein. Still by way of further answer, the allegations contained in this paragraph constitute purported conclusions of law to which no responsive pleading is required and, therefore, such allegations are deemed to be denied. NEW MATTER 86. 87. 88. 89. 90. 91. 92. 93. 94. Marian Heath's counterclaims failed to state claims upon which relief may be granted. Rite Aid did not breach any duty, contractual or otherwise, allegedly owed to Marian Heath. Marian Heath's causes of action against Rite Aid may be barred by the equitable doctrines of estopple, laches, and/or waiver. Rite Aid is entitled to an equitable right of set-off. Marian Heath's claims are barred, in whole or in part, by the applicable statute of limitations. Marian Heath's alleged reliance was not reasonable. Marian Heath's claims are barred in whole or in part because Rite Aid complied with all applicable terms of the agreements between the parties. Marian Heath has not suffered compensable injuries or damages and, therefore, lacks standing to assert any claim against Rite Aid. 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 -13- 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, Plaintiff Rite Aid Hdqtrs. Corp. request that judgment be entered in its favor and against Marian Heath Greeting Cards, LLC, and such other and further relief as this Honorable Court deems to be appropriate. __p ~a_,a~...,._..,... ._ Date: November 30, 2012 Bri P. D wney (PA'S )..... Ju in G. ber (PA 266) er R. Hu (PA 06426) `, ~~ PEPP ILTO LLP Suite 200, 10 treet ~~ ,. P.O. Box 1181 Harrisburg, PA 17108-1181 Phone: (717) 255-1155 Fax: (717) 238-0575 Email: downeyb@pepperlaw.com weber] g@pepperlaw.com hulltna,pepnerlaw.com Attorneys for Plaintiff -14- VERIFICATION I, Mary Mitchell, hereby state that I am authorized to make this verification on behalf of Rite Aid HDQTRS. Corp. I verify 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. ,~', -1- CERTIFICATE OF SERVICE I, Brian P. Downey, hereby certify that on November 30, 2012, a true and correct copy of the foregoing was served via First Class, U.S. Mail, postage prepaid, upon the following: Scott T. Wyland, Esq. David H. Martineau, Esq. SALZMANN HUGHES, P.C. 354 Alexander Spring Road, Suite 1 Carlisle, PA 17015 ~~~ an P. Downey, ./~"°. RITE AID HDQTRS. CORP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PEANW NIA Plaintiff, 3 NO. 2012-4952 CIVIL TERN Ecv, M- vs. U) o° • -GS" N ..-�o MARIAN HEATH GREETING CARDS, CIVIL ACTION-LAW Cal o-n LLC, =01 Defendant. �c IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned attorneys for the parties hereto, that the annexed ORDER for the Protection and Exchange of Confidential Information (the "Confidentiality Order") be submitted to the Court with a request that the Court enter it as an Order of the Court. IT IS FURTHER STIPULATED AND AGREED, by and between the undersigned attorneys for the parties hereto, that the parties will abide by the terms of the Confidentiality Order from the time this Stipulation is signed, regardless as to when or if the Court signs the Confidentiality Order, except to the extent compliance would require the entry of such an Order. Respectfully submitted, Brian P. Downey(PA 59891) Sc . Wyl (PA 52660) Kathleen A. Mullen(PA 84604) David H. Martmeau(PA 84125) PEPPER HAMILTON LLP SALZMANN HUGHES,P.C. Suite 200, 100 Market Street 354 Alexander Spring Road, Suite 1 P.O. Box 1181 Carlisle,PA 17015 Harrisburg,PA 17108-1181 Phone: (717)249-6333 Phone: (717) 255-1155 Fax: Fax: (717) 238-0575 Email: Email: downeyb @pepperlaw.com mullenk @pepperlaw.com Attorneys for Defendant Marian Heath Attorneys for Plaintiff Rite Aid Hdqtrs. Corp. Greeting Cards, LLC Date: April /1,2013 RITE AID HDQTRS. CORP, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 2012-4952 CIVIL TERM vs. MARIAN HEATH GREETING CARDS, CIVIL ACTION - LAW LLC Defendant. CONFIDENTIALITY AGREEMENT WHEREAS, the parties hereto have stipulated to the signing and entry of this Order for the Protection and Exchange of Confidential Information ("Confidentiality Order" or "Order"), and for good cause shown, IT IS HEREBY ORDERED: 1. The term "document" or "documents" is used herein in the broadest sense to mean all documents, writings and things, including, without limitation, interrogatory responses, deposition transcripts, exhibits and other discovery materials, whether printed, recorded or reproduced by any other mechanical or electronic process, or written or produced by hand. 2. "Litigation" as used herein means the above-captioned civil action. 3. "Confidential" documents as used herein means documents that the producing party in good faith designates as "Confidential" at the time of production by means of a listing of the production numbers appearing on such documents or by means of a "Confidential" stamp or legend placed on such documents. Notwithstanding the foregoing, a producing party's inadvertent failure to designate a document "Confidential" in accordance with the terms of this Order will not preclude a later designation to the extent that confidential treatment can still be obtained without undue burden or expense on any party to the Litigation. 4. All Confidential documents, as defined herein, produced by any party or non-party in the Litigation shall be used by any party receiving or reviewing them only for the purpose of preparing for and conducting the Litigation. 5. Confidential documents, or information derived therefrom, may only be disclosed or made available by the party receiving such information to "Qualified Persons," who consist of: a. the Court (in the manner provided by paragraph 11 hereof); b. outside or in-house counsel to the parties to the Litigation, and clerical, secretarial and paralegal staff employed by such counsel; C. clerical or ministerial service providers, such as outside copying or litigation support personnel, retained by the parties or counsel; d. court reporters; e. experts or consultants and their staff assisting in the Litigation who are not otherwise employed by any party to the Litigation, and the party receiving such information shall keep a list of the names of these individuals; f. all individuals who are named parties and the officers, employees and affiliates of corporate named parties who are assisting in the prosecution or defense of the Litigation or who will be responsible for making decisions with respect to the Litigation; and g. any other person the producing party agrees to in writing. 6. Confidential documents shall not be disclosed to persons other than Qualified Persons and no action shall be taken (other than in connection with this Litigation) on -2- the basis of any Confidential documents by the party receiving them. Nothing contained herein shall prevent any party from using or disclosing its own Confidential documents or information as it deems appropriate. 7. Prior to seeing or receiving Confidential documents, all persons specified in paragraphs 5(e) and 5(g) will execute an Agreement to be Bound by Order in the form of Exhibit A attached hereto. 8. Testimony given at a deposition may be designated "Confidential" by an appropriate statement at the time of the giving of such testimony, or a party may designate portions of depositions as "Confidential" after transcription, provided written notice of such designation is given to all parties within seven days after receipt of the transcript of the proceedings, during which period all deposition transcripts shall be treated as "Confidential." 9. Nothing herein shall require disclosure of any documents or information that counsel contends are protected from disclosure by the attorney-client privilege, work- product doctrine or any other legally recognized privilege. 10. The inadvertent production of any documents during the Litigation shall be without prejudice to any claim that such material is privileged under the attorney-client privilege, work-product doctrine or any other legally recognized privilege, and no party shall be held to have waived any rights by such inadvertent production. Upon written request by the inadvertently producing party, the receiving party shall (a) return the original and all copies of such documents and (b) shall not use such information for any purpose unless allowed by Order of the Court. No party shall be precluded from arguing that it would be prejudiced if it were (a) forced to return material to the inadvertently producing party, or (b) precluded from utilizing such inadvertently produced materials in the Litigation. -3- 11. If any Confidential documents (including portions thereof or information derived therefrom) are to be filed with the Court, such documents shall be filed in sealed envelopes or other appropriate sealed containers and marked with the caption of the Litigation and a statement substantially in the following form: CONFIDENTIAL FILED UNDER SEAL PURSUANT TO A PROTECTIVE ORDER, DATED , 2013, GOVERNING CONFIDENTIALITY OF DOCUMENTS AND INFORMATION OBTAINED DURING THE COURSE OF THIS LITIGATION. THIS ENVELOPE IS NOT TO BE OPENED NOR THE CONTENTS THEREOF DISPLAYED OR REVEALED EXCEPT BY OR TO QUALIFIED PERSONS OR BY COURT ORDER. All such materials so filed shall be kept under seal by the Clerk of the Court separate from public records in the Litigation and shall be released only upon further Court Order. 12. Within sixty days after the conclusion of the Litigation, all Confidential documents and any copies thereof, and all documents containing information derived therefrom, shall be returned. In the alternative, the parties and their attorneys of record may provide affidavits stating under oath that all Confidential documents, including any and all copies thereof, have been destroyed, shredded or otherwise rendered completely and entirely illegible. Attorney work product and briefs, pleadings, written discovery responses, transcriptions of testimony and other Court papers prepared for use in the Litigation need not be returned or destroyed, but shall be kept Confidential by counsel for the parties and remain subject to the restrictions herein. 13. Each Qualified Person who is not a lawyer representing the parties to the Litigation or employed by a lawyer representing the parties to the Litigation to whom Confidential documents are disclosed pursuant to this Order shall be advised that the Confidential documents are being disclosed pursuant to, and subject to the terms of, this Order. -4- 14. If Confidential documents or information derived therefrom in the possession of a receiving party is subpoenaed by any court, administrative or legislative body, or any other person purporting to have authority to subpoena such information, the party to whom the subpoena is directed shall give written notice of the subpoena (including delivery of a copy thereof) to the attorneys for the producing party not less than five business days prior to the time when production of the information is requested by the subpoena. In the event that the subpoena purports to require production of such Confidential documents or information derived therefrom on less than five days' notice, the party to whom the subpoena is directed shall give immediate telephonic notice of the receipt of such subpoena, and forthwith deliver by hand or facsimile a copy thereof, to the attorneys for the producing party. Absent a court order to the contrary, the party to whom the subpoena is directed may comply therewith; however, if application for a protective order is made promptly before the return date, the party to whom the subpoena is directed shall not produce such Confidential documents or information derived therefrom prior to receiving a court order or the consent of the producing party. For purposes of this section, "subpoena" includes a"notice to produce" and its equivalent. 15. Designation of any document as "Confidential" shall not preclude any party from contending that a designated document or transcript does not qualify for confidential treatment, shall not create any presumption that documents and transcripts so designated are confidential, and shall not shift the burden of establishing entitlement to confidential treatment. If any party objects to the designation of any document as Confidential, the party shall state the objection with particularity by letter to counsel for the party making the designation. If the parties are unable to resolve the objection, the designating party may move the Court to have the document deemed to be Confidential under the terms of this Order within fifteen(15) days of the -5- objection. Until the Court rules on any such motion, the document shall continue to be deemed Confidential under the terms of this Order. If no motion is made, the designation will be deemed withdrawn as to the document subject to the objection. A party designating documents as Confidential bears the burden of persuading the Court that any document is entitled to the protections afforded to Confidential documents under this Order. The failure to make a timely objection shall not be deemed a waiver of any right to object to the designation of any document as Confidential. 16. This Order shall be applicable to discovery provided by any third-party witnesses or other parties in the Litigation who agree in writing to be subject to and bound by the terms of this Order. 17. The binding effect of this Order shall survive termination of the Litigation and the Court shall retain jurisdiction to enforce the Order. 18. This Order shall be governed by, construed, and interpreted in accordance with the laws of the Commonwealth of Pennsylvania. The parties shall submit to the jurisdiction of this Court for the purpose of enforcement of the terms and conditions of this Order, as well as any action based upon any breach of this Order by any of the parties. 19. The parties agree to be bound by the terms of this Order pending the entry by the Court of this Order, or an alternative thereto which is satisfactory to all parties, and any violation of its terms shall be subject to the same sanctions and penalties as if this Order had been entered by the Court. 20. The parties have shown good cause for issuance of this Order. The court records must be sealed so as to prevent the dissemination of highly confidential corporate -6- information, including contractual and financial matters, which may result in substantial economic harm to the parties. 21. This Order may be modified by the Court upon application of any party. BY THE C Date: Lt-,3 J. -7- EXHIBIT A AGREEMENT TO BE BOUND BY ORDER I have read the Order for the Protection and Exchange of Confidential Information (the "Order") in the above-captioned case. I understand the terms of the Order, I agree to be fully bound by the terms of the Order and I hereby submit to the jurisdiction of the Court of Common Pleas for Cumberland County, Pennsylvania for purposes of enforcement of the Order. Date: Signature Signatory's Name, Business Affiliation, and Business Address: Signatory's Residence Address: -8- Brian P.Downey{PA 59891) Fj?,�} C Kathleen A. Mullen(PA 84604). - ��f PEPPER HAMILTON LLP �(�' 100 Market Street,Suite 200 � g. �: ► PO Box 1181 Harrisburg,SA 17108-1181 P ��S 717.238.0575(fax) Attorneys for Plaintiff Rite Aid Hdqtrs. Corp. RITE AID.HDQTRS. CORP., IN THE COURT OF COMMON.PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, VS. CIVIL ACTION NO. 2012-4952—Civil, MARIAN HEATH GREETING CARDS, LLC Defendant. JOINT PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark all claims and counterclaims in the above-captioned matter settled and discontinued;pursuant to Pa. R.C.P. 229. Respectfully submitted Respectfully submitted, P. Do Vey (PA 598 Sco T yl d (PA 52660) K 1 - 4604) David ineau(PA 84127) PEP `AMILT SALZMANN HUGHES,.P.C. 100 Market-Streets Suite 200 354 Alexander Spring Road, Suite 1 .P.O. Box 1181 Carlisle, PA 17015 Harrisburg, PA 17108-11.81 Attorneys for Defendant Attorneys for Plaintiff