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HomeMy WebLinkAbout14-3289 Supreme C0 � 6- 4'ennsylvania o ut f Common :Pleas For Prothonotary Use Only: C ev"1 1 „C6VeI' Shit Docket No: CU LAND County 3 -2A The information collected on this,form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required bylaw or rules of court. Commencement of Action: S El Complaint El Writ of Summons ❑ Petition Transfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: Rite Aid HDQTRS. Corp. Orly Plastics Enterprise, Inc. T Dollar Amount Requested: ❑within arbitration limits I Are money damages requested? S Yes ❑ No (check one) ❑x outside arbitration limits O N Is this a Class Action Suit? ❑ Yes ❑ No Is this an MDJAppeal? ❑ Yes D No A Name of Plaintiff /Appellant's Attorney: Brian P. Downey /Kathleen A. Mullen El Check here if you have no attorney (are a Self - Represented [Pro Se] Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS Intentional El Buyer Plaintiff Administrative Agencies Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections Nuisance Dept. of Transportation Premises Liability Statutory Appeal: Other S © Product Liability (does not include mass tort) ❑Employment Dispute: E Discrimination Slander/Libel/ Defamation ❑ Employment Dispute: Other ❑ Zoning Board C ❑ Other: Other: T , I ❑ Other: O MASS TORT ❑ Asbestos N ❑ Tobacco Toxic Tort - DES Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS Toxic Waste ❑ Ejectment ❑ Common Law /Statutory Arbitration B ❑ Other: El Eminent Domain/Condemnation ❑Declaratory Judgment ❑ Ground Rent Mandamus Landlord /Tenant Dispute Non- Domestic Relations Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY ❑ Mortgage Foreclosure: Commercial ❑ Quo Warranto Dental ❑ Partition ❑ Replevin Legal ❑ Quiet Title ❑ Other: Medical ❑ Other: Other Professional: Updated 1/1/2011 RITE AID HDQTRS. CORP, IN THE COURT OF COMMON PLEAS OF 30 Hunter Lane CUMBERLAND COUNTY, PENNSYLVANIA Camp Hill, PA 17011 Plaintiff, NO. Itl — 9 CIVIL VS. ORLY PLASTICS ENTERPRISE, INC. CIVIL ACTION - LAW 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. r '? 106 Lexington Avenue JURY TRIAL DEMANDED Brooklyn, NY 11238 �'- ( Defendants. 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 n REDUCED FEE OR NO FEE. Cumberland County Bar Association y��o3. ?'S' �eS -NY's 32 South Bedford Street y Carlisle, PA 17013 Telephone: (717) 249 -3166 RITE AID HDQTRS. CORP, IN THE COURT OF COMMON PLEAS OF 30 Hunter Lane CUMBERLAND COUNTY, PENNSYLVANIA Camp Hill, PA 17011 Plaintiff, NO. CIVIL VS. ORLY PLASTICS ENTERPRISE, INC. CIVIL ACTION — LAW 106 Lexington Avenue Brooklyn, NY 11238 and : ORLY INDUSTRY, INC. 106 Lexington Avenue JURY TRIAL DEMANDED Brooklyn, NY 11238 Defendants. AVISO USTED HA SIDO DEMANDADOIA 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 despu6s 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 -3166 RITE AID HDQTRS. CORP, IN THE COURT OF COMMON PLEAS OF 30 Hunter Lane CUMBERLAND COUNTY, PENNSYLVANIA Camp Hill, PA 17011 Plaintiff, NO. CIVIL vs. ORLY PLASTICS ENTERPRISE, INC. CIVIL ACTION — LAW 106 Lexington Avenue Brooklyn, NY 11238 and : ORLY INDUSTRY, INC. 106 Lexington Avenue JURY TRIAL DEMANDED Brooklyn, NY 11238 Defendants. COMPLAINT Plaintiff Rite Aid HDQTRS. Corp. ( "Rite Aid "), by its undersigned attorneys, files this Complaint alleging as follows: PARTIES 1. Rite Aid is a Delaware corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Pennsylvania 17011. 2. Defendant Orly Plastics Enterprise, Inc. ( "Orly Plastics ") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. While Orly Plastics was dissolved by proclamation of New York law in 2011, it continues to operate through its principal Jacob Torkieh. 3. Defendant Orly Industry, Inc. ( "Orly Industry ") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. Orly Industry is the successor company and /or alter ego to Orly Plastics. Jacob Torkieh is the principal of Orly Industry. JURISDICTION AND VENUE 4. This court has jurisdiction pursuant to 42 Pa.C.S. § 931(a). 5. Venue in this Court is proper because the cause of action arose in Cumberland County and a transaction or occurrence took place out of which the cause of action arose in Cumberland County. 6. Orly Plastics and Rite Aid have also agreed that any lawsuit brought with regard to any disputes between the parties must be venued in this Court. A true and correct copy of the Master Purchase Agreement ( "MPA "), a valid and enforceable written contract, is attached to this Complaint as Exhibit A. While Orly Industry was not a signatory to the MPA, by its conduct it was an implied party to the MPA and relied upon the MPA. Accordingly, it is also subject to the venue clause of the MPA. RELEVANT FACTS THE PARTIES 7. Rite Aid is a national drug store chain with its principal office in Cumberland County, Pennsylvania. 8. At all times relevant to this Complaint, Orly Plastics and its successor company, Orly Industry, were involved in the manufacture, sale and distribution of plastic trash can liners ( "liners "). 9. Orly Plastics and Orly Industry share, inter alia, the same address, phone number, facsimile number, email address, principal and computers and were essentially the same entity and /or alter egos of each other. -2- THE MASTER PURCHASE AGREEMENT 10. Rite Aid and Orly Plastics entered into the MPA effective August 1, 2010 pursuant to which Orly Plastics agreed to provide liners to Rite Aid for use by Rite Aid stores. The liners were to adhere to specific size, thickness and quantity specifications as described on page 2 of Attachment A of the MPA. See Exhibit A. These specifications were as follows: 40 x 46 LLDPE 1.25 Mil. Opaque blue, 100 bags per case 30 x 36 LLDPE 1.25 Mil. Opaque blue, 250 bags per case 30 x 37 HDPE 8 micron, Clear, 500 bags per case 43 x 48 HDPE 16 micron, Clear, 200 bags per case 11. Assuming that these required specifications were met, the liner cases would necessarily have the following weights: 40 x 46 blue 15.33 lbs. 30 x 36 blue 22.5 lbs. 30 x 37 clear 11.65 lbs. 43 x 48 clear 17.0 lbs. The parties never varied these required specifications through the time they dealt with each other. 12. Under the MPA, Orly Plastics was required to promptly carry out its obligations in accordance with the specifications provided and best industry practice and was required to use its best efforts in carrying out those obligations. See Exhibit A, § 2.4. Further, Orly Plastics was to provide goods of the best quality and to "provide all supervision, quality control programs, inspections, or verifications required to ensure compliance with this Agreement." Id. §§ 2.5, 2.6. While Rite Aid had the right to inspect the goods, it was not obligated to do so and acceptance of the goods by Rite Aid did not constitute any waiver of its -3- rights under the MPA. See id. The parties agreed that if Rite Aid discovered that any liners do not conform to the requirements of the Agreement, Rite Aid would notify Orly Plastics which would, in turn, be required to correct any deficiency. See id. § 2.6. 13. The MPA specified that Rite Aid would issue purchase orders for the liners and that the terms of the MPA were incorporated by reference into each purchase order. See id. at 2.2. 14. With respect to payment, the MPA specified that Rite Aid would pay properly submitted invoices within 30 days after receipt of goods but that Rite Aid "may withhold any amounts which are disputed in good faith or may deduct any amounts for charges, costs, expenses or losses actually incurred as a result of defects in the Goods; late delivery; or any other noncompliance with applicable schedules, exhibits, attachments, drawings, data sheets, or specifications." See id. at § 3.4. The MPA further states that Rite Aid "shall have a right of setoff against any amounts due a Supplier under this Agreement entered into hereunder, for all amounts due Rite Aid from Supplier regardless of the source of the obligation." Id. 15. The MPA further states that it "shall be binding on and shall benefit any and all successors, trustees, permitted assigns and other successors in interest of the Parties." 16. While the MPA expired on July 31, 2011, the parties agreed that it could be extended upon consent. The parties proceeded to transact orders for the supply of liners under the terms of the MPA beginning in August 2010 and continued to do so through the fall of 2011. None of the specifications for the liners changed at this or any time. The price for the liners did change effective July 25, 2011 pursuant to changes in the Chem Data resin index as specified in the MPA. -4- ORLY'S NAME CHANGE 17, On August 1, 2011, Orly Industry requested that "the name on file" be changed from Orly Plastics to Orly Industry. See letter attached hereto as Exhibit B. Orly Industry did not provide Rite Aid with any new vendor paperwork or provide an Internal Revenue Service W -9 form, both of which would have been necessary if Orly Industry was a separate entity distinct from Orly Plastics. Accordingly, Rite Aid did not recognize Orly Industry as a new vendor and did not assign it a new vendor identification number. 18. Upon information and belief, Rite Aid asserts that the only reason Mr. Torkeih changed the name of the company is because Orly Plastics was dissolved for failure to pay New York state taxes and Orly Plastics sought to escape its obligations and liabilities. 19. Upon information and belief, Rite Aid asserts that the assets of Orly Plastics and Orly Industry have been intermingled and that corporate formalities have not been observed for the two companies. 20. Orly Industry is the alter ego and /or the successor of Orly Plastics and Orly Industry is liable for the conduct of Orly Plastics. 21. Orly Industry, as Orly Plastics' successor company, inherited all rights and obligations of Orly Plastics under the MPA. RITE AID DISCOVERS DEFENDANTS ARE SHORTING ORDERS 22. In the fall of 2011, Rite Aid began soliciting bids from various suppliers, including Orly Industry, for a new liner contract. 23. In the course of this process, Rite Aid became suspicious that Orly Industry and Orly Plastics were shortchanging Rite Aid with respect to the quantity and the weights on liner orders. As previously stated, if a case of liners was in conformance with the MPA specifications, each case of liners would have a uniform weight depending on its size. -5- 24. As a result of its suspicions, Rite Aid began weighing and /or counting the contents of random liner cases that were shipped to various distribution centers throughout the country. These random samples were systemically light in weight or short in count. Every liner case inspected by Rite Aid at this time was under the required weight and /or count. Some cases were as much as 37% short of the required weight. As such, these liner cases failed to meet the specifications under the MPA. Rite Aid believes and avers that both Orly Industry and Orly Plastics engaged in this shortchanging of orders since the inception of the MPA in August 2010. Based on Rite Aid's calculations of the remaining liner cases it has in inventory, Rite Aid was shortchanged by an average of 29.07% of what Rite Aid had paid and what Orly Plastics /Orly Industry was required to provide pursuant to the liner specifications of the MPA. In other words, for every dollar's worth of liners that Rite Aid paid through the life of the MPA, Orly Plastics and Orly Industry cheated Rite Aid on average of $.29. 25. Rite Aid contacted Mr. Torkieh in an attempt to resolve this issue and requested $200,000 representing a rebate for the amount it had then calculated it had been shortchanged. Significantly, Mr. Torkieh never denied Rite Aid's claim that it was short- changed. Rather, Mr. Torkieh simply promised that he would make it up to Rite Aid with various rebates in Orly Industry's proposal for a new contract and also relied upon the fact that Orly Plastics had not raised prices previously under the MPA. See Email from Jacob Torkieh dated November 16, 2011, attached hereto as Exhibit C. 26. As of September 28, 2011, Rite Aid had paid to Orly Plastics and Orly Industry a total of $724,824.20. After Orly Industry and Orly Plastics' shortchanging became apparent, Rite Aid placed a hold on paying all further invoices from Orly Industry. -6- 27. In a letter dated December 19, 2011, Rite Aid Senior Buyer Richard O'Brien sent Mr. Torkieh a letter demanding repayment of the amount it had calculated in liner shortages and explaining that Rite Aid would not make payment on then - current invoices in its possession, which totaled $72,563.05 because of the dispute. A true and correct copy of this letter is attached as Exhibit D. Rite Aid also requested commencement of mediation proceedings pursuant to the Alternative Dispute Resolution provision of the MPA. See Ex. A, § 6.5. 28. Neither Orly Industry nor Orly Plastics responded to that letter within forty -five days as required by Section 6.5 of the MPA. Instead, Orly Industry commenced suit against Rite Aid in New York State Court in February 2012 seeking payment of the invoices that Rite Aid put on hold. Rite Aid removed this case to the United States Court for the Eastern District of New York (Orly Industry, Inc. v. Rite Aid HDQTRS. Corp., E.D.N.Y. Civ. No. 12- 855) where the case currently remains pending. 29. Based upon the amount Rite Aid paid to Orly Plastics and Orly Industry from the inception of the MPA through September 2011 and the average liner weight shortage of 29.07 %, Rite Aid is entitled to a rebate in the amount of $210,706.33. Deducting the $72,563.05 amount in invoices put on hold by Rite Aid with a discount of 29.07% to account for Orly Industry's short orders, Rite Aid is owed $160,109.46. COUNT BREACH OF CONTRACT OR IMPLIED CONTRACT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 30. Rite Aid incorporates the averments in paragraphs 1 through 29 above as if fully set forth herein. 31. As noted above, Rite Aid and Orly Plastics entered into the MPA whereby Orly Plastics agreed to supply Rite Aid with liners at agreed -upon specifications. Orly Industry took over Orly Plastics' obligations under the MPA in August 2011. Accordingly, Orly Industry -7- directly and/or through its predecessor and alter ego Orly Plastics was a party to the MPA which was valid and enforceable at all times relevant to the claims made in this litigation. To the extent Orly Industry is deemed not to be a party to the MPA, Orly Industry was a party to an implied contract with Rite Aid to supply liners pursuant to the specifications set forth in the MPA. A contract between Orly Industry and Rite Aid is inferred in light of the circumstances as alleged herein. 32. Orly Plastics and Orly Industry have breached the MPA and have directly and proximately caused Rite Aid damages in the amount of $160,109.46. 33. To date, Orly Plastics and Orly Industry owe Rite Aid $160,109.46. 34. Despite repeated requests, Orly Plastics and Orly Industry refuse to pay Rite Aid the amount Rite Aid is due. 35. Rite Aid has performed any and all conditions precedent under the MPA. 36. The conduct of Orly Plastics and Orly Industry is without excuse or justification. WHEREFORE, Rite Aid requests judgment in the amount of $160,109.46 plus interest, costs, attorneys' fees as provided in Section 6.5 of the Master Purchase Agreement and all other amounts deemed appropriate by the Court. COUNT II UNJUST ENRICHMENT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 37. Rite Aid incorporates the averments in paragraphs 1 through 36 above as if fully set forth herein. 38. In the event Defendants contend no contractual relationship exists, Rite Aid is entitled to recover the outstanding amounts it is owed to prevent Defendants from being unjustly enriched. -8- 39. Orly Plastics and Orly Industry have been unjustly enriched as a result of benefits conferred by Rite Aid. Specifically, Orly Plastics and Orly Industry have wrongfully accepted and retained monies paid by Rite Aid for liner shipments that were substantially less than what they should have been pursuant to the parties' understanding. 40. Orly Plastics and Orly Industry have each appreciated and been enriched by such benefits that rightfully belong to Rite Aid. 41. The retention of such benefits by Orly Plastics and Orly Industry is inequitable and unjust and has substantially damaged Rite Aid in the amount of $160,109.46. 42. Rite Aid is entitled to the amount of $160,109.46, plus interest, from Orly Plastics and Orly Industry under the doctrine of unjust enrichment. WHEREFORE, Rite Aid requests judgment in the amount of $160,109.46 plus interest, costs, and all other amounts deemed appropriate by the Court. Respectfully submitted, Brian P. Downey (PA 59891) Kathleen A. Mullen (PA 84604) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108 -1181 717.255.1155 Telephone 717.238.0575 Fax downeyb@pepperlaw.com mullenk@pepperlaw.com Date: May 29, 2014 Attorneys for Plaintiff Rite Aid HDQTRS. Corp. -9- /� MASTER PU 1404-ASE AGRE! EMENT BETWEEN RITE AID HDQTRS. CORP. AND ORLY PLASTICS ENTERPRISE, INC. 'I lils Master Purchase Agreement ( "AgrTeement") is effective August 1. 2010 by and between RI'I"E AID I I DQJ'RS. ( a Delaware Coil-,oration, with offices at 10 Hunter Lanc. Carrip 1-1111, ['A 17011 ("Rite Aid"') ,ind ORLY PLAS'FICS ENTERPRISE, fNC.. a New York Corporation 'located at 106 Lexim- Ave. Brooklyn, NY 11 238. ("Supplier") and any attachments hereto state the terms and conditions tinder which Supplier shall provide goo)ds. ARTICLE I - DEFINITIONS 1.1 "Goods" means all products, equipment, materials including but not limited to the manufacture of Plastic 'I'rash Can Liners, as detailed in Attaclunent A. ARTICLE 2 - SCOPE OF PERFORMANCE 11 Purpose and Supplier Quallifications. The purpose of this Agreement is to specify the detailed terms and conditions between the parties. Supplier is engaged in the business of producing Plastic Trash Can Liners and has the supervisory and qualified persorniel as well as applicable tools, equipment, suppliers, and materials necessary to provide these Goods in a safe, efficient and competent manner. If it Supplier or its personnel must be licensed or certified under applicable laws, regulations, or Industry practices, as a condition to providing Goods. Supplier warrants that it possesses all required licenses or certificates and that they are in full force and eMct. Supplier agrees to follow a] I laws, rules, and/or regulations applicable to its supply of Goo)ds during its pertbri under this Agreement. 1? Scope of Work. Ior each Goods material purchased by Rite Aid under this Agreement, a separate purchase order ma y be issued by Rite Aid. This Agreement shall be incorporated by reference in each Rite Aid issued purchase order as if fully set forth therein. Absent a Rite Aid issued purchase order, Rite Aid shall he under no obligation to Supplier for payment. 23 Conflictine Terms. Any applicable schedule. exhibit, attachment. drawing, data sheet. or specification attached to this Agreenient is incorporated by reference. If the information or terms conflict on any of these incorporated documents, they prevail in the following order of authority; schedules. exhibits; attachments; drawings; data sheets; and specifications. Any Goods. supplies. tools, equiptnent, or materials not expressly covered in dils Agreement which are fairly implied as being required for the Goods are considered included and required. 2.4 Highest Professional Standards. Upon acceptance ofthe terms and conditions set forth in this Agreement, Supplier must promptly cam; out the duties and obligations specified therein skillftilly and safely, and in accordance with the applicable schedules, exhibits, attachments, drawings, data sheets, and spectficallons and best industn practice. Supplier must use its best efforts to iTiect any deliven or completion deadlines specified in this Agreement. RA0234 Highest Quality Goods. Ail Goods received tuld any related materials must be new. of the very best quality. and subject to inspection and acceptance by Rite Aid. Any inspection or acceptance by the Rite Aid does not constitute a waiver cif any of its rights under this Agreement or the relevant Contract, 41.6 Inspecti Supplier must provide all supervision, quality control programs. in spections, of verifications required to ensure compliance with this Agreement. At any reasonable time Rite Aid has the right, but not the obligation- to verify Supplier's compliance with this Agreement. At anv reasonable time, Supplier must permit Rite Aid's representative free access to its facilities and if applicable, its vendor's fiacilities, and must furnish any inf orm I o a i n Rite Aid reasonably requests regarding the verification or inspection. If Rite Aid discovers any Goods, supplies, or materials that do not cont'Orm to the requirements ofthis Agreement, IU[c Aid will promptly notify Supplier in %4-Titing. Supplier must arrange the satisfactorily correction of any deficiency within a thirty (30) days, and at its own expense. If Supplier fails to du s €), Rite Aid may tenninate this agreement without recourse. 2.7 TernporaryPerimits Supplier must obtain any temporary permits or licenses as required in connection with supplying Rite Aid the Goods at its wAm cost and expense. -) . 8 Agreement Term, Extensions. The term of this Agreement begins on August 1, 2010, and ends on July 31, 2011, subject to the termination provisions undCTSections 6.1 and 6.2. This Agreement may be extended by the mutual written consent of the parties. ARTICLE 3 - PRICING, DELIVERY, PAYMENT 3.1 Pricing. Supplier will t-/-- paid for the Goods according to the applicable pricing provisions set forth in this Agreement under Attachment A, 3.2 Competitive Pricing, If' before a Supplier provides Goods, another vendor offers Rite Aid Goods of --qua] quality at a price lower than that specified herein and Rite Aid furnishes satisfactory evidence of the lower price, then Supplier must either meet the price, or Rite Aid niay obtain the Goods from the other vendor and deduct the quantity of Goods from the quantity specified herein. 3.3 Price Reductions, If Supplier reduces its prices to others for equivalent Goods during the term of this Agreement or any contract. Supplier must immediately notify Rite Aid and reduce the prices .(i Rite Aid. 3.4 Payment. Rite Aid will pay properly submitted invoices within 30 days after receipt of Goods. Rite Aid may withhold any amounts which are disputed in good thith or may deduct any amounts for charges. costs, expenses or losses actually incurred as a result ot'defects in the Goods late delivery: or any other noncompliance with applicable schedules, exhibits, attachments, drawings, data sheets, or specifications. Rite Aid shall use good faith efforts to procure compliance with their payment obligations under this Agreement. Rite Aid shall have a right cif setoff any amounts due a Supplier under this Agreement entered into RA0236 hereunder. for all amounts due Rite Aid from Supplier regardless of the source of the obligation. Unless otherwise agreed in writing Rite Aid will not accept or pay any invoices dated prior to delivery of Goods. 1.5 Audit Rite Aid reserves the right to audit Supplier's invoices upon thirty (30) days- %witten notice. 3.6 Order Quantities/Process. All order quantities will be in full pallets. Rite Aid will order in full pallet quantities only. ARTICLE 4 - PROPRIETARY RIGHTS 4.1 Intellectual Property. All intellectual and industrial ' property rights including patents, registered designs. trademarks. service marks, copyrights or any other form of intellectual or industrial property rights subsisting at any time in respect of items developed by Supplier for Rite Aid (and all such rights in respect of any subsequent' modifications of such items) are to vest in and remain with Rite Aid. Supplier shall take all necessary steps (at no cost to Rite Aid) to ensure that all of the rights referred to in this clause are formally vested in Rite Aid and that any moral rights attaching to any relevant material are waived in favor of Rite Aid, 4.2 Confidentiality. This Agreement and its contents are confidential to the parties and, except as set out below, shall not he disclosed to third parties by either party without the express written consent of the other parry. If during the course of performance under this Agreement the parties are exposed to confidential information, the parties agree to keep any such confidential itilbrmatiun strictly confidential, to the extent allowed by law. 4.3 l ndemni , for Intellectual Property - Claims. Supplier shall indemnify, defend and hold Rite Aid harmless from any and all claims of intellectual property infringement in accordance with Paragraph 6.8. ARTICLE S - RELATIONSHIP OF PARTIES 5.1 Independent Parties. Rite Aid and Supplier are and shall remain independent contractors, and gone of the provisions in this Agreement shall he construed to create a partnership or joint venture between the parties. Each Party shall be and remain solely responsible for wages, hours, taxes, tax withholdings, and all other conditions of'cmployment of its own personnel during the tone of this Agreement. Nothing contained herein shall be construed as implying that employees of either Party are employees of the other Party for any purpose whatsoever. including, without limitation. participation in the benefits or privileges given or extended by such ether Party to its employees. No right or authority is granted to either Party to assume or to create any obligation or responsibility. expressed or Implied, on behalf of or in the nanic of the tether Party. 5,2 If a >law or regulat ion mandates a report or other document that must be sigtteti or certified by Rite Aid, Supplier miist consult with lute Aid to assure full compliance, RA0236 ARTICLE 6 - GENERAL PROVISIONS 6.1 Termination. Either party may terminate this Agreement. with or without cause. by giving 60 Days advance written notil-e to the other p arty. In the event of such termination by Rite Aid, Supplier will be compensated for all outstanding invoices and for any Goods for which Supplier has not been reimbursed, Supplier agrees that it shall not be entitled any other claimed' amounts including but not limited to. direct, indirect. consequential. loss of profits, punitive or exemplan damages whatsoever. 62 Assignment. Supplier may not assign this Agreement without obtaining the prior written consent of Rite Aid. 6.3 Representatives. Each party most appoint one or more representative promptly after signing this Agreement and disclose to the other party the scope of its representative's authority with respect to this Agreement or any related Contract entered into in accordance with this Agreement. Each party may replace or supplement its representative by giving prior written notice to the other party. 6A Notices. All notices under this Agreement are considered given if deliverex! to writing personally or by courier, or sent by electronic transmission or facsimile to Rite Aid or to Supplier, at the address -set forth below. Any notice given by U.S. mail is considered given 5 days after the notice is defx)slted in the U S. mail postage prepaid, Addresses for notice are: If the notice is to Rite Aid: Rite Aid HDt, TRS. CORP. Rich O'Brien Senior Buyer Indirect Procurement Group 30 Hunter Lane Camp Hill,1 17011 Facsimile. 717-731-47 With a copy to: Rite Aid HDQTRS. CORP. Attn: Legal Department 30 Hunter Jane Carnpl-1111,PA 17011 Facsimile: 717-975-5976 RA0237 If the notice is to Supplier: Jacob Torkleh President 106 Lexington Ave. Brooklyn, NY 11218 I'acsimile: 718-399-7175 6.5 Alten2ative Dispute Resolution. Except as provided herein, m) civil action Nvith respect to any dispute, claim or controversy arising out of or relating to this Agreement that is below $250,000 may be commenced until the matter has been submitted for medialion to a mediator acceptable to both parties. Fither party may request the commencement of mediation proceedings by providing to the other party a written request for mediation setting forth the subject of the dispute and the relief requested. The panies shall then, within thirty (30) days. mutually agree upon the selection of mediator. If the parties do not agree to the selection of a mediator, the dispute shall be mediated by George B. Faller, Esquire, at the law firm of Martson, Deardorff Williams, Otto, Gilroy & Faller, 10 East Ifigh Street, Carlisle, PA 17013, for non- Minding mediation. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs and expenses. The parties agree to split the mediator's fee. All offers. promises. conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that Process provided that such a claim is filed in the Court of Common Pleas of Cumberland County, Pennsylvania. Except for such an action to obtain equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 4S days after the date of Filing the written request for mediation, whichcver occurs first. The panics afire that any such civil action must be brought in the Court of Common Pleas of County, Pennsylvania. Mediation may continue after the commencement ol'a civil action, if the panic-, so desire. The provisions of this Paragraph may be enforced by the Court of Common Pleas of Cumberland County Pennsylvania. and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys' fens. to he paid by the party against whom enforcement is ordered. Any dispute. claim or controversy arising out of or relating to this Agreement that or the breach. termination, crif'orceincrit, interpretation or validity thereof, that is in excess of $250.000.00. including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by ark ltratlon in Camp Bill. Pennsylvania. before one JAMS RA0238 arbitrator to be agreed on by both parties. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause: shall not preclude parties from seeking provkionil remedies Maid ofarbitration from the Court of Common Pleas of Cumberland County, Pennsylvania- 6.6 (:or ee rtntr Law and Venue. 'Ennis agreement and all Contracts; entered into hereunder are govemed by the laws of the Commontivealth of Pennsylvania. without regard to its conflicts of law rules. Any disputes between the parties not subject to Paragraph 6..5 shall be brought exclusively in the Court of Common ('leas for Cumberland County, Pennsylvania, 6.7 Insurance. Supplier shall purchase and maintain, with insurance companies approved by Rite Aid, such insurance as will protect Supplier and Rite Aid and all others that Rite Aid requests be. named as Additional Insureds at Supplier's sole cost and expense (and with Rite Aid having no liability for premiums or other casts of insurance) from claims set forth below which may arise out of or result from Supplier's provision of floods under this Agreement. whether such operations be by Supplier or by any subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of therm may be liable: (a) claims under workers' or workmen's compensation, disability benefit and other similar employee benefit acts, (b) claims for damages because of bodily injury, occupational sickness or disease.; or death of Supplier's employees; (c) claims for damages because of bodily injury, sickness or disease, or death of any person other than Supplier's employees; (d) claims for damages, which are sustained ('i) by any person as 'a result of an incident directly or indirectly related to the employment of such person by Supplier. or (ii) by any other person; (c) claims for damages, other than to the work perforated under this Agreement itself. because of injury to or destruction of tangible property, including loss of use resulting therefrom, and (f) claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. The insurance required by Subparagraph 6.7(a) shall be written f'or not less than statutory limits. The insurance required by Subparagraph 6.7(b) through (F) shall be vritic>ri for not less than $3,000,000.00. In addition to the inurance requirements set forth above, Supplier will. at Supplier's expense, obtain and keep in force and effect during the term of this Agreement an excess/umbrella liahlltty Insurance lx)llcy of an additional $5.000,000.00 naming Rite Aid as an Additional Insured. RA0239 Certificates of Insurance (in duplicate) acceptable to Rite Aid shall he filed with Rite Aid prior to commencement this Agreement. Such certificates shall be addressed to Rite Aid at its address and shall show that all of the insurance required by Paragraph 6.7 (other than workmeWs compensation insurance) identifies Rite Aid, and such other persons and entities as shall be requested by Rite Aid as Additional Insureds, Supplier shall be solely responsible for any premiums associated with the coverages requested in Paragraph 6-7. Insurance certificates shall include a provision for not less than 30 days' advance written notice by the insurer to Rite Aid in the event of cancellation or reduction of such insurance. 6.8 Indemnification. Supplier agrees to defend, indemniNe. and hold Rite Aid harmless from and against any and all claims, losses. damages, judgments, liabilities., and costs (including reasonable attorney's fees and expenses) of any kind or nature or that are asserted arising directly or indirectly firorn Supplier's provision of Goods under this Agreement, including any violations of any federal, state and/or local laws and/or ordinances and including any claims of bodily injury or death to any person or from damage to or destruction of any pmTerty, arising from or related to Suppi ter I s acts or omissions. 6.9 Non Exclusivity- Nothing expressly or impliedly contained herein or in any Contract shall be deemed to give rise to or constitute any exclusivity of purchase or supply or in any way prevent Or restrict Rite Aid or any Rite Aid from purchasing Goods which are similar or identical to the Goods from any source whatsoever or in any way prevent a Supplier from supplying or offering to supply Goods to any person. 6.10 Force Majeure. No Party shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, laws or governmental regulations, acts of terrorism, or other causes that are beyond that party's control. 6.11 Severability. If any provision or the scope of any provision of this Agreement is found to be unenforceable or too broad by decree.. the Parties agree that such provisions shall be curtailed only to the extent necessary to conform to law to permit enforcement of this Agreement to its full extent. 6.12 Entire Agreement; No Reliance. Fach of the parties agrees and acknowledges that this Agreement (3) constitutes the entire agreement and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions- whether oral or written, among the parties with respect to the subject matter of this Agreement, and (ii) is not intended to confer any rights or remedies, or impose any obligations, on any person other than the Parties hereto. Each of the Parties expressly agrees and acknowledges that, other than those statements expressly set forth in this Agreement, it is not relying on any statement, whether oral or written, of any person or entity with respect to its or his entry into this Agreement or to the consummation of the transactions contemplated by this Agreement. RA0240 6.13 Amendments and Modifications. 'Fluis Agreement may be modified only by a written agreement signed by both Parties. 6.14 Successors and Assigns. This Agreement shall be binding on and shall benefit any and ail successors, trustees. permitted assigns. and other successors in interest of the Parties. 6.15 Counterparts. This Agreement inay be executed in one or more counterparts. ail of which shall constitute one and the -same Agreement. Rite Aid HPQTRS. CORP. Orly Plastics Enterprise, Inc. B y By: N Name: Title: 7h 4:e Title: Date: Date: 0 RA0241 ATTALC tim ENTA Scope of AVork: Item 4 1 tvin 4757724 Mar Ky. 43 x -IN 1. 11 N �. 16 '11 Own, 200 hags 1 can S11,15 cs 475772A Ocar Bag. A n 37 11I)PIA klicron.500hags: car S7.50 is Pricing is guaranteed !i)r si. (6) months Krona daw ofinitial ordet-A hereafter pricing %kill Index. Hic.luly2010 Chem [),tta Price of 559.50 Ob cc ill lac imed as a Imscline tier any future quarterly price increases tu decreases. Pricingadjusimcrits SOl only be considered if the price chanyes. by .02 per pound WAM c1h). All changes \,i ill he submitted in \kriting "A apNopriale supporting documentation for Rite Aid revien. IRA0242 Can Liner Specs 40 x 46 LLDPE 1,25 Mil, Opaque blue, 100 bags per case 30 x 36 LLDPE 1,25 Mil, Opaque blue, 250 bags per case 30 x 37 HDPE 8 micron. Clear, 500 bags per case 43 x 48 HDPE 16 micron, Clear, 200 bags per case RA0243 � � � °\ 106 LEXINGTON AVE BROOKI,VN,.N'V 11238 718-399-63111 718-399671175 ALIOUSt 1- C Dcar Mr. 0bricn. We are requesting a name change from our current name on file, which is Orly Plastic I crprise. to Orly industr-v Inc. Ifthere arc any further questions. please ¢0n q hesitate to Contact LIS. Sincerely, ^ � \�v}�� f z /t RA0244 Page 1 of 1 Subj: Re: (no subject) Date: 11/16/2011 10:30:02 A.M. Eastern Standard Time From: torkieih,:ZDa�oi, Dough, I have reviewed the proposal, and here is what i propose. With this proposal i am only trying to maintain the relationship, and save Rite aid money. Rite aid's claim is 200000, if we were to follow the contract there is a $67000, which is due to us and have not been billed, and we are proposing another 50000 rebate that will bring it up to 117000 which is pretty significant amount of money. Not to mention the current prices we are giving them is 20% below market price -- Original Message---- - From: MKRZollo <MKRZollo @aol.com> To: torkieh <torkieh @aol.com> Sent: Wed, Nov 16, 2011 6:57 am Subject: (no subject) Please review MKR 0006 Sunday, February 12, 2012 AOL: MKR Zollo X f t i • MAILING ADDRESS PO. Box 3165 Harrisburg. PA 17105 • GENERAL OFFICE 30 Hunter lane RITE AID Corporation ,amp Hill, PA 17011 • f' -SW RITEAID• December 19. 201 1 Orly Plastics Enterprise, Inc. 106 Lexington Avenue Brooklyn, NY 1 1238 Attn: Jacob Torkieh Mr. Torkieh, Please be advised that Rite Aid Hdqtrs. Corp. ( "Rite Aid") has determined product shipped by Orly Plastic Enterprise, Inc. (' . Orly .. .) has been below specifications, as detailed in our Master Services Agreement of August 1, 2010 ( "Agreement "). This is a breach of the agreement between Rite Aid and Orly. Specifically, a shortage has been determined by both the case weight and the numerical count of bags. Product has been sampled by Rite Aid associates, and Orly's sales representative. Orly also admits this in its proposal submitted on November 17, 2011. Rite Aid is seeking, repayment of $200,311. This amount is what Rite Aid has determined to be the amount of bag shortages for the past 12 months. In accordance with Section 3.4 of the Agreement, Rite Aid will not make payment on disputed shipments, and will hold payment of $72,563.05 in current invoices. Under Section 6. 1, the Agreement can be terminated upon sixty (60) days written notice. However, this Agreement has already expired. Moreover, in accordance with Section 6.5, Rite Aid requests the commencement of mediation proceeding to address Orly's breach of the Agreement. Please advise who Orly will appoint as the mediator. If you wish to settle this matter in an amicable manner, please contact me the next five (5) business days. Richard O'Brien Senior Buyer cc: Ron S. Chima, Senior Counsel RA0341 VERIFICATION I, Richard O'Brien, hereby state that I am a Senior Buyer for Rite Aid Hdqtrs. Corp. and am authorized to make this verification on its behalf. I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that the statements in the foregoing document are made subject to the penalties of 18 Pa. C.S. § 4909 relating to unsworn falsification to authorities. Dated: May a g , 2014 ichard O'Brien RITE AID HDQTRS. CORP, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : NO. 14-3289 CIVIL vs. ORLY PLASTICS ENTERPRISE, INC. : CIVIL ACTION—LAW and ORLY INDUSTRY, INC. CZ Defendants : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE ��' PURSUANT TO PA. R.C.P. 405 acs 2tD COMMONWEALTH OF PENNSYLVANIA • : SS: COUNTY OF CUMBERLAND • THE UNDERSIGNED, Kathleen A. Mullen, being duly sworn according to law, does depose and say as follows: 1. I am a competent adult and an attorney duly admitted to the Bar of the Supreme Court of the Commonwealth of Pennsylvania, having Attorney Identification Number 84604. 2. On June 3, 2014, I caused the Complaint to be served upon defendant Orly Industry, Inc. by the mailing of a true and correct copy of the Complaint to the defendant's principal place of business by United States certified mail, return receipt requested, postage prepaid, addressed as follows: Orly Industry, Inc., 106 Lexington Avenue, Brooklyn,NY 11238. rn • { 3. I received the return receipt, which was delivered and accepted at Orly Industry, Inc., 106 Lexington Avenue, Brooklyn,NY 11238., on June 6, 2014, by or on behalf of the defendant, thereby completing service pursuant to Pa. R.C.P. 403. The original return receipt signed by or on behalf of the defendant is attached hereto as Exhibit"A". Respectfully submitted, Brian P. Downey(PA 59891) Kathleen A. Mullen(PA 84604) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 Telephone 717.238.0575 Fax dovvneyb@pepperlaw.com mullenk@pepperlaw.com Date: June 12, 2014 Attorneys for Plaintiff Rite Aid HDQTRS. Corp. SWORN TO AND SUBSCRIBED BEFORE ME THIS 12TH DAY OF JUNE, 2014. k I_ Notary i'ub 'c COMMONWEALTH OF PENNSYLVANIA Notarial Seal Kimberly Kelly Perez,Notary Public City of Harrisburg,Dauphin County My Commission Expires Aug.21,2015 MEMBER,PENNSYLVANIA ASSOCIATION Of NOTARIES -2- y USPS.com® - USPS TrackingTM Page 1 of 2 English Customer Service USPS Mobile Register/Sign In USPS.COM' Username Create a USPS.com account to... fiat Search qnt shipping,labels • requsa a gP &es Subr Password • buy stamps and shop. • manag PQ Boxe Quick Tools Ship a Package Send Mail Manage Your Mail Shop uSiness SSolutions • print customs forms on ine. • file domestic insurance claims TM Hint:It's at least 7 charact IuQipstome�J fr j '> USPSTracking a letter and number. Have questions?We're here to help. Sign In Forgot your password? Tracking Number:70092250000037079205 Product & Tracking Information Available Actions Postal Product: Features: Certified Mail" Text Updates a 1 Email Updates June 6,2014,12:08 pm Delivered BROOKLYN,NY 11238 Your item was delivered at 12.0£3 pm on June 6 1014,r,BROOKLYN NY 11238 June 6,2014,10:02 am Out for Delivery BROOKLYN,NY 11238 June 6,2014,9:52 am Sorting Complete BROOKLYN,NY 11238 June 6,2014,9:12 am Arrival at Unit BROOKLYN,NY 11238 June 5,2014,5:24 am Depart USPS Sort Facility BROOKLYN,NY 11256 June 5,2014,1:58 am Processed through USPS BROOKLYN,NY 11256 Sort Facility June 4,2014,8:59 pm Depart USPS Sort Facility FLUSHING,NY 11351 June 4,2014,4:59 pm Processed through USPS FLUSHING,NY 11351 Sort Facility June 4,2014,1:38 am Depart USPS Sort Facility HARRISBURG,PA 17107 June 3,2014,9:10 pm Processed through USPS HARRISBURG,PA 17107 Sort Facility Track Another Package What's your tracking(or receipt)number? Track It LEGAL ON USPS.COM ON ABOUT.USPS.COM OTHER USPS SITES Privacy Poky r Government Services, About USPS Home, Business Customer Gateway t Terms of Use Buy Stamps&Shop, Newsroom r Postal Inspectors FOIA r Print a Lapel with Postage r USPS Service Alerts t Inspector General No FEAR Act EEO Data' Customer Service Forms&Publications, Postal Explorer Delivering Solutions to the Last Mee Careers National Postal Museum Site Index i lauspsrowCopyright['2014 USPS.Ail Right;reserved https://tools.usps.com/go/TrackConfirmAction.action?tRef=fullpage&tLc=1&text28777=... 6/12/2014 SENDER: COMPLETE THIS SEC TION COPPLt TiTHIS SECTION ON DELIVERY IN Complete items 1,2,and 3.Also complete A. Signature item 4 if Restricted Delivery is desired. X ,44(—ow 0 Agent • Print your name and address on the reverse 0 Addressee so that we can return the card to you. Recelv- b Name) C. Date of Delivery • Attach this card to the back of the mailpiece, A or on the front if space permits. D. Is :ivety address different from item 1? El Yes 1. Article Addressed to: If YES,enter delivery address below: 0 No Orly Industry, Inc. 106 Lexington Avenue Brooklyn, NY 11238 3. Service Type 54 Certified Mar 0 Priority Mail Express' 0 Registered tgi Return Receipt for Merchandise 0 Insured Mail 0 Collect on Delivery 4. Restricted Delivery?(Extra Fee) ID yes 2. Article Illumberl ill 7009 2250 0000 3707 9205 (TransfeY from dekd fa* PS Form 3811,July 2013 Domestic Returnfteceipt CERTIFICATE OF SERVICE I hereby certify that on June 12, 2014, a copy of the foregoing document was served by United States mail, first class postage prepaid, addressed as follows: Orly Industry, Inc. 106 Lexington Avenue Brooklyn,NY 11238 Kathleen A. Mullen(PA 84604) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA — -- — --X RITE AID I-IDQTRS. CORP., " Civil Action No. 14-3289 Plaintiff(s), -against- ORLY PLASTICS ENTERPRISE, INC., ET ANO., AFFIDAVIT OF SERVICJ}, Defendant(s). --------- -------------------------------X STATE OF NEW YORK ) s.s : COUNTY OF NEW YORK ) MICHAEL KEATING, being duly sworn, deposes and says that he is an employee of KEATING & WALKER ATTORNEY SERVICE, INC., is over the age of eighteen years and is not a party to the action. That on the 18th day of June, 2014, at approximately 3:52 p.m., deponent served a certified copy of the Notice to Defend; Civil Cover Sheet and Complaint upon Orly Plastics Enterprise, Inc. at 106 Lexington Avenue, Brooklyn, New York 11238 by personally delivering and leaving the same with Jacob Torkieh, President, who is authorized by law to accept service. Jacob Torkieh is a white male, approximately 45 years of age, is approximately 5 feet, 6 inches tall, weighs approximately 160-165 pounds, with short black hair and dark eyes and was wearing glasses. . 11 ��.._- Sworn to before me this -11 24th day of June, 2014 MI •N 'G #848345 NEIL P. PEDERSEN Notary Public,State of New York No.0I-PE-6236258 Qualified In New York County Commission Ecpirer February 2S,2015 • RITE AID HDQTRS. CORP, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, : NO. 14-3289 CIVIL vs. • ORLY PLASTICS ENTERPRISE, INC. : CIVIL ACTION—LAW and ORLY INDUSTRY, INC. • Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that on June 24, 2014, a copy of the foregoing document was served by United States mail, first class postage prepaid, addressed as follows: Orly Industry, Inc. 106 Lexington Avenue Brooklyn, NY 11238 Orly Plastics Enterprise, Inc. 106 Lexington Avenue Brooklyn,NY 11238 Kathleen A. Mullen (PA 84604) David L. Schwalm,Esquire I.D.No.32574 1f ` Anthony T. Bowser,Esquire rl�a yf I.D.No.204561 r �J� /1. , " Thomas,Thomas&Hafer, LLP ( 47 305 O.Boxr999street � 5 AND r✓(}U j � Harrisburg,PA 17108-0999 } (717)237-7100 dschwalmLid?tthlaw.com abowser'Wahlaw.com Counsel for Defendants RITE AID HDQTRS. CORP., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 14-3289 CIVIL ORLY PLASTICS ENTERPRISE, INC. CIVIL ACTION—LAW and ORLY INDUSTRY, INC., Defendants JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of David L. Schwalm, Esquire, Anthony T. Bowser, Esquire and the law firm of Thomas, Thomas& Hafer, LLP on behalf of Defendants in the above matter. Respectfully submitted, THOMAS, THOMAS & HAFER,LLP by: David L. Schwalm, Esquire I.D.No. 32574 Anthony T. Bowser, Esquire I.D. No. 204561 305 North Front Street, 6th Floor POB 999 Harrisburg, PA 17108-0999 (717) 255-7643 CERTIFICATE OF SERVICE AND NOW, this 25th day of June, 2014, I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document, via electronic mail pursuant to Pa.R.Civ.P. 205 and 440, to the following: Brian P. Downey, Esq. Kathleen A. Mullen, Esq. Pepper Hamilton LLP downeyb2pepperlaw.com mullenknpepperlaw.com Coleen M. Polek 1526141.1 Thomas, Thomas & Hafer LLP David L Schwalm (#32574) Anthony T Bowser (#204561) 305 N Front St PO Box 999 Harrisburg, PA 17108-0999 717.237.7100 dschwalm@tthlaw.com abowser@tthlaw.com Counsel for Defendants RITE AID HDQTRS CORP, Plaintiff versus ORLY PLASTICS ENTERPRISE, INC and ORLY INDUSTRY, INC Defendants or TEAFI LC o-aFrir ir 11OHa TA Y JUL 3Fti2'21 CUHRERLPLhhS4; AN/ a`` Y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No: 14-3289 Civil Action - Law NOTICE OF FILING OF NOTICE OF REMOVAL You are hereby notified, pursuant to 28 U.S.C. § 1446(d), that on July 2, 2014, a notice of removal of the above action was filed in the United States District Court for the Middle District of Pennsylvania, filed at Docket No: 1:14-cv-o1276-JEJ. A copy of the notice of removal is attached here. Respectfully submitted, THOMAS, THOMAS & HAFER LLP Anthony T Bowser (#204561) OaaeEllaeOvitaliffIAJEDociDoutntig801 FiitidcD(d7J@2YJ4 Plaggalo665 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RITE AID HDQTRS CORP, Plaintiff versus ORLY PLASTICS ENTERPRISE, INC and ORLY INDUSTRY, INC Defendants Removal from Court of Common Pleas of Cumberland County Case # 14-3289 Jury Trial Demanded Electronically Filed NOTICE OF REMOVAL AND NOW, this 2nd day of July, 2014, come defendants, Orly Plastics Enterprise, Inc and Orly Industry, Inc, by and through their attorneys, Thomas, Thomas & Hafer, LLP, and file this notice of removal of the above action from the Court of Common Pleas of Cumberland County, Pennsylvania, to the United States District Court for the Middle District of Pennsylvania, as provided by 28 U.S. Code, Chapter 89 stating as follows: Oaaee131gi0 EZ1figE3J®odDmnrm afl1 FfRldWWJJQ2Y44 PQlgge22665 1. The defendants here are same defendants in the action commenced in the Court of Common Pleas of Cumberland County, Pennsylvania, at case number 14-3289, which is pending in that court. 2. A copy of the Cumberland County complaint is included here as Exhibit A. 3. The Cumberland County complaint was filed on May 3o, 2014. 4. The Cumberland County Complaint was served by mail on defendants on June 3, 2014, and received by defendants on June 6, 2014. See Affidavit of Service, included here as Exhibit B. 5. This Court has original jurisdiction under 28 U.S.C. § 1332 because the matter in controversy exceeds the sum of $75,000 and is between citizens of different states. 6. Defendants aver that complete diversity of citizenship exists between the parties in this case. Plaintiff is a Delaware corporation with its principal place of business located at 3o Hunter Lane, Camp Hill, Pennsylvania 17011. Defendant Orly Plastics Enterprise, Inc is a dissolved New York corporation that had its principal place of business located at io6 Lexington Avenue, Brooklyn, New York, 11238. Defendant Orly Industry, Inc is a New York corporation with its principal place of business located at io6 Lexington Avenue, Brooklyn, New York, 11238. 2 O2taal.3tellatOQDIEGJ®ociDoatiTh QO1 FFt IdNignQ2Y44 Plagg€331t 55 7. Defendants are not now citizens of the Commonwealth of Pennsylvania, where the original action was filed, and were not citizens of Pennsylvania at the time the action was commenced in that they are not incorporated in Pennsylvania and do not have a principal place of business in Pennsylvania. 8. This notice of removal is being filed within 3o days of receipt by the defendants of a copy of the initial pleading in Cumberland County, in accordance with the requirements of 28 U.S.C. § 1446. 9. Copies of any process, pleadings or orders served upon defendants are filed with this notice. 10. Defendants will give written notice of the filing of this notice as required by 28 U.S.C. § 1446(d). 11. All defendants in the Cumberland County case join in the removal of the action to this Court. 12. This action is removed pursuant to 28 U.S.C.A. § 1441. 3 OaaeelagOvet 31 J®ocDma rti@OO1 F da/YAP/44 Pfaggelzbo65 WHEREFORE, defendants respectfully request that this action proceed in this Court as an action properly removed. Respectfully submitted, THOMAS, THOMAS & HAFER LLP By: /s/ Anthony T Bowser David L Schwalm (#32574) dschwalm@tthlaw.com Anthony T Bowser (#204561) abowser@tthlaw.comn 305 North Front Street, 6th Floor PO Box 999 Harrisburg, PA 17108-0999 717.327.7100 (telephone) 717.237.7105 (facsimile) Attorneys for Defendants 4 Oaaed31g -uttOM 3J®ocQotertmgOO1 Idninani4 g€55 t 65 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of July, 2014, a true and correct copy of the foregoing notice of removal was served via email and first-class mail, postage prepaid, upon the following: Brian P. Downey, Esq. Kathleen A. Mullen, Esq. Pepper Hamilton LLP loo Market Street, Suite 200 POB 1181 Harrisburg, PA 17108-1181 downeyb (&pepperlaw. corn mullenkapepperlaw.com THOMAS, THOMAS & HAFER LLP By: /s/ Anthony T Bowser S E C T I 0 N A S++ L C T I 0 N Oaae€13t®a-atCCII JBJoc nnuingOOU1 FEEIddR1D0P1114 PaOgEf17obB00 Supreme Cod Con CI Cu Pennsylvania c*rno t Pleas t County For Prothonotary Use Only: Docket No: /1/-3.28y The information collected on this Arm is used solely for court administration purposes. This form does not supplement or replace the filing and serviceof pleadings or other papers as required by law or rules of court. Commencement of Action: Petition Declaration of Taking 11 Complaint El Writ of Summons • ❑ Transfer from Another Jurisdiction ❑ Lead Plaintiff's Name: Rite Aid FIDQTRS. Corp. Lead Defendant's Name: Orly Plastics Enterprise, Inc. Are money damages requested? El Yes 0 No Dollar Amount Requested: ❑within arbitration limits (check one) f outside arbitration limits Is this a Class Action Suit? ❑ Yes El No Is this an MDJAppeal? ❑ Yes El No Name of Plaintiff/Appellant's Attorney: Brian P. Downey/Kathleen A. Mullen 0 Check here if you have no attorney (are a Self -Represented [Pro Se] Litigant) Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) ▪ Intentional El Malicious Prosecution O Motor Vehicle ❑ Nuisance ❑ Premises Liability ❑ Product Liability (does not include mass tort) E l Slander/Libel/ Defamation O Other: MASS TORT ❑ Asbestos ❑ Tobacco ❑ Toxic Tort - DES ❑ Toxic Tort - Implant ❑ Toxic Waste El Other: PROFESSIONAL LIABLITY O Dental El Legal El Medical ❑ Other Professional: CONTRACT (do not include Judgments) Buyer Plaintiff ❑ Debt Collection: Credit Card El Debt Collection: Other El Employment Dispute: Discrimination Employment Dispute: Other er: REAL PROPERTY El Ejectment ❑ Eminent Domain/Condemnation El Ground Rent ❑ Landlord/Tenant Dispute ❑ Mortgage Foreclosure: Residential ❑ Mortgage Foreclosure: Commercial El Partition El Quiet Title ❑ Other: CIVIL APPEALS Administrative Agencies © Board of Assessment In Board of Elections Dept. of Transportation Statutory Appeal: Other In Zoning Board El Other: MISCELLANEOUS Ei Common Law/Statutory Arbitration Ei Declaratory Judgment Mandamus Non -Domestic Relations Restraining Order © Quo Warrant° El Replevin ❑ Other: Updated 1/1/2011 OaaeEntfQatCCIEIRIRJEDodDateitti400111 F dW1 IOQPY414 Plagg€2a6f380 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. - m13 CIVIL : CIVIL ACTION — LAW : 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 i/403. 7S az 44-ty CK� a130$ R-14--3a6Set, O aee13LA2sat€f J J1ElocDonnna0fl11 FIt dcO 2 4 Plagge933b 890 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. CIVIL : CIVIL ACTION — LAW : JURY TRIAL DEMANDED 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 accibn dentro de los proximos veinte (20) dias despues de la notificacion 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 accion 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 reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 OQaed.3tO2atO1f 3J®odDatan i OO111 F da:MCPY44 Piagge46B130 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. CIVIL : CIVIL ACTION — LAW : JURY TRIAL DEMANDED COMPLAINT Plaintiff Rite Aid IIDQTRS. Corp. ("Rite Aid"), by its undersigned attorneys, files this Complaint alleging as follows: PARTIES 1. Rite Aid is a Delaware corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Pennsylvania 17011. 2. Defendant Orly Plastics Enterprise, Inc. ("Orly Plastics") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. While Orly Plastics was dissolved by proclamation of New York law in 2011, it continues to operate through its principal Jacob Torkieh. 3. Defendant Orly Industry, Inc. ("Orly Industry") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. Orly ORaea3t@ at€U& 3JEJodDm nnli OOi11 Fi# €1031 IQ2 U4 Piagge55obf38O Industry is the successor company and/or alter ego to Orly Plastics. Jacob Torkieh is the principal of Orly Industry. JURISDICTION AND VENUE 4. This court has jurisdiction pursuant to 42 Pa.C.S. § 931(a). 5. Venue in this Court is proper because the cause of action arose in Cumberland County and a transaction or occurrence took place out of which the cause of action arose in Cumberland County. 6. Orly Plastics and Rite Aid have also agreed that any lawsuit brought with regard to any disputes between the parties must be venued in this Court. A true and correct copy of the Master Purchase Agreement ("MPA"), a valid and enforceable written contract, is attached to this Complaint as Exhibit A. While Orly Industry was not a signatory to the MPA, by its conduct it was an implied party to the MPA and relied upon the MPA. Accordingly, it is also subject to the venue clause of the MPA. RELEVANT FACTS THE PARTIES 7. Rite Aid is a national drug store chain with its principal office in Cumberland County, Pennsylvania. 8. At all times relevant to this Complaint, Orly Plastics and its successor company, Orly Industry, were involved in the manufacture, sale and distribution of plastic trash can liners ("liners"). 9. Orly Plastics and Orly Industry share, inter alia, the same address, phone number, facsimile number, email address, principal and computers and were essentially the same entity and/or alter egos of each other. -2- Oaae€1l31g ateli J®ocDmRnt 0OU1 Fii dc0MQ21 l4 Pagg€6636880 THE MASTER PURCHASE AGREEMENT 10. Rite Aid and Orly Plastics entered into the MPA effective August 1, 2010 pursuant to which Orly Plastics agreed to provide liners to Rite Aid for use by Rite Aid stores. The liners were to adhere to specific size, thickness and quantity specifications as described on page 2 of Attachment A of the MPA. See Exhibit A. These specifications were as follows: 40 x 46 LLDPE 1.25 Mil. Opaque blue, 100 bags per case 30 x 36 LLDPE 1.25 Mil. Opaque blue, 250 bags per case 30 x 37 HDPE 8 micron, Clear, 500 bags per case 43 x 48 HDPE 16 micron, Clear, 200 bags per case 11. Assuming that these required specifications were met, the liner cases would necessarily have the following weights: 40 x 46 blue 15.33 lbs. 30 x 36 blue 22.5 lbs. 30 x 37 clear 11.65 lbs. 43 x 48 clear 17.0 lbs. The parties never varied these required specifications through the time they dealt with each other. 12. Under the MPA, Orly Plastics was required to promptly carry out its obligations in accordance with the specifications provided and best industry practice and was required to use its best efforts in carrying out those obligations. See Exhibit A, § 2.4. Further, Orly Plastics was to provide goods of the best quality and to "provide all supervision, quality control programs, inspections, or verifications required to ensure compliance with this Agreement." Id. §§ 2.5, 2.6. While Rite Aid had the right to inspect the goods, it was not obligated to do so and acceptance of the goods by Rite Aid did not constitute any waiver of its -3- OQae€13t0atCMMJ®odikmurttg00U1 Firdeld OO2/14 Pagge77o6f300 rights under the MPA. See id. The parties agreed that if Rite Aid discovered that any liners do not conform to the requirements of the Agreement, Rite Aid would notify Orly Plastics which would, in turn, be required to correct any deficiency. See id. § 2.6. 13. The MPA specified that Rite Aid would issue purchase orders for the liners and that the terms of the MPA were incorporated by reference into each purchase order. See id. at 2.2. 14. With respect to payment, the MPA specified that Rite Aid would pay properly submitted invoices within 30 days after receipt of goods but that Rite Aid "may withhold any amounts which are disputed in good faith or may deduct any amounts for charges, costs, expenses or losses actually incurred as a result of defects in the Goods; late delivery; or any other noncompliance with applicable schedules, exhibits, attachments, drawings, data sheets, or specifications." See id. at § 3.4. The MPA further states that Rite Aid "shall have a right of setoff against any amounts due a Supplier under this Agreement entered into hereunder, for all amounts due Rite Aid from Supplier regardless of the source of the obligation." Id. 15. The MPA further states that it "shall be binding on and shall benefit any and all successors, trustees, permitted assigns and other successors in interest of the Parties." 16. While the MPA expired on July 31, 2011, the parties agreed that it could be extended upon consent. The parties proceeded to transact orders for the supply of liners under the terms of the MPA beginning in August 2010 and continued to do so through the fall of 2011. None of the specifications for the liners changed at this or any time. The price for the liners did change effective July 25, 2011 pursuant to changes in the Chem Data resin index as specified in the MPA. -4- alieetaCQatElEiDIEGJEDodDoinnta00111 FItdW )t P1114 PQgg€88a6f300 ORLY'S NAME CHANGE 17. On August 1, 2011, Orly Industry requested that "the name on file" be changed from Orly Plastics to Orly Industry. See letter attached hereto as Exhibit B. Orly Industry did not provide Rite Aid with any new vendor paperwork or provide an Internal Revenue Service W-9form, both of which would have been necessary if Orly Industry was a separate entity distinct from Orly Plastics. Accordingly, Rite Aid did not recognize Orly Industry as a new vendor and did not assign it a new vendor identification number. 18. Upon information and belief, Rite Aid asserts that the only reason Mr. Torkeih changed the name of the company is because Orly Plastics was dissolved for failure to pay New York state taxes and Orly Plastics sought to escape its obligations and liabilities. 19. Upon information and belief, Rite Aid asserts that the assets of Orly Plastics and Orly Industry have been intermingled and that corporate formalities have not been observed for the two companies. 20. Orly Industry is the alter ego and/or the successor of Orly Plastics and Orly Industry is liable for the conduct of Orly Plastics. 21. Orly Industry, as Orly Plastics' successor company, inherited all rights and obligations of Orly Plastics under the MPA. RITE AID DISCOVERS DEFENDANTS ARE SHORTING ORDERS 22. In the fall of 2011, Rite Aid began soliciting bids from various suppliers, including Orly Industry, for a new liner contract. 23. In the course of this process, Rite Aid became suspicious that Orly Industry and Orly Plastics were shortchanging Rite Aid with respect to the quantity and the weights on liner orders. As previously stated, if a case of liners was in conformance with the MPA specifications, each case of liners would have a uniform weight depending on its size. -5- Oaae€13tOlittEMMJEDodiknenti00111 FFdWUK12X 4 Pfigg€39 bf300 24. As a result of its suspicions, Rite Aid began weighing and/or counting the contents of random liner cases that were shipped to various distribution centers throughout the country. These random samples were systemically light in weight or short in count. Every liner case inspected by Rite Aid at this time was under the required weight and/or count. Some cases were as much as 37% short of the required weight. As such, these liner cases failed to meet the specifications under the MPA. Rite Aid believes and avers that both Orly Industry and Orly Plastics engaged in this shortchanging of orders since the inception of the MPA in August 2010. Based on Rite Aid's calculations of the remaining liner cases it has in inventory, Rite Aid was shortchanged by an average of 29.07% of what Rite Aid had paid and what Orly Plastics/Orly Industry was required to provide pursuant to the liner specifications of the MPA. In other words, for every dollar's worth of liners that Rite Aid paid through the life of the MPA, Orly Plastics and Orly Industry cheated Rite Aid on average of $.29. 25. Rite Aid contacted Mr. Torkieh in an attempt to resolve this issue and requested $200,000 representing a rebate for the amount it had then calculated it had been shortchanged. Significantly, Mr. Torkieh never denied Rite Aid's claim that it was short- changed. Rather, Mr. Torkieh simply promised that he would make it up to Rite Aid with various rebates in Orly Industry's proposal for a new contract and also relied upon the fact that Orly Plastics had not raised prices previously under the MPA. See Email from Jacob Torkieh dated November 16, 2011, attached hereto as Exhibit C. 26. As of September 28, 2011, Rite Aid had paid to Orly Plastics and Orly Industry a total of $724,824.20. After Orly Industry and Orly Plastics' shortchanging became apparent, Rite Aid placed a hold on paying all further invoices from Orly Industry. -6- alaeEtaglittOXZROJDocDotent400111 FIt dWWJQ2Y414 PIRgg0101(bbB00 27. In a letter dated December 19, 2011, Rite Aid Senior Buyer Richard O'Brien sent Mr. Torkieh a letter demanding repayment of the amount it had calculated in liner shortages and explaining that Rite Aid would not make payment on then -current invoices in its possession, which totaled $72,563.05 because of the dispute. A true and correct copy of this letter is attached as Exhibit D. Rite Aid also requested commencement of mediation proceedings pursuant to the Alternative Dispute Resolution provision of the MPA. See Ex. A, § 6.5. 28. Neither Orly Industry nor Orly Plastics responded to that letter within forty-five days as required by Section 6.5 of the MPA. Instead, Orly Industry commenced suit against Rite Aid in New York State Court in February 2012 seeking payment of the invoices that Rite Aid put on hold. Rite Aid removed this case to the United States Court for the Eastern District of New York (Orly Industry, Inc. v. Rite Aid HDQTRS. Corp., E.D.N.Y. Civ. No. 12- 855) where the case currently remains pending. 29. Based upon the amount Rite Aid paid to Orly Plastics and Orly Industry from the inception of the MPA through September 2011 and the average liner weight shortage of 29.07%, Rite Aid is entitled to a rebate in the amount of $210,706.33. Deducting the $72,563.05 amount in invoices put on hold by Rite Aid with a discount of 29.07% to account for Orly Industry's short orders, Rite Aid is owed $160,109.46. COUNT I BREACH OF CONTRACT OR IMPLIED CONTRACT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 30. Rite Aid incorporates the averments in paragraphs 1 through 29 above as if fully set forth herein. 31. As noted above, Rite Aid and Orly Plastics entered into the MPA whereby Orly Plastics agreed to supply Rite Aid with liners at agreed-upon specifications. Orly Industry took over Orly Plastics' obligations under the MPA in August 2011. Accordingly, Orly Industry -7- OaaeetaeQiittEIMMJEDocDatiantig00111 FlleddR1,O22I l4 Pagga19obe80 directly and/or through its predecessor and alter ego Orly Plastics was a party to the MPA which was valid and enforceable at all times relevant to the claims made in this litigation. To the extent Orly Industry is deemed not to be a party to the MPA, Orly Industry was a party to an implied contract with Rite Aid to supply liners pursuant to the specifications set forth in the MPA. A contract between Orly Industry and Rite Aid is inferred in light of the circumstances as alleged herein. 32. Orly Plastics and Orly Industry have breached the MPA and have directly and proximately caused Rite Aid damages in the amount of $160,109.46. 33. To date, Orly Plastics and Orly Industry owe Rite Aid $160,109.46. 34. Despite repeated requests, Orly Plastics and Orly Industry refuse to pay Rite Aid the amount Rite Aid is due. 35. Rite Aid has performed any and all conditions precedent under the MPA. 36. The conduct of Orly Plastics and Orly Industry is without excuse or justification. WHEREFORE, Rite Aid requests judgment in the amount of $160,109.46 plus interest, costs, attorneys' fees as provided in Section 6.5 of the Master Purchase Agreement and all other amounts deemed appropriate by the Court. COUNT II UNJUST ENRICHMENT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 37. Rite Aid incorporates the averments in paragraphs 1 through 36 above as if fully set forth herein. 38. In the event Defendants contend no contractual relationship exists, Rite Aid is entitled to recover the outstanding amounts it is owed to prevent Defendants from being unjustly enriched. -8- OQaa1310ata1figO3JR odDo Th Ofl311 FfftidcO1iR Q2Vi4 Pagg€122 bf300 39. Orly Plastics and Orly Industry have been unjustly enriched as a result of benefits conferred by Rite Aid. Specifically, Orly Plastics and Orly Industry have wrongfully accepted and retained monies paid by Rite Aid for liner shipments that were substantially less than what they should have been pursuant to the parties' understanding. 40. Orly Plastics and Orly Industry have each appreciated and been enriched by such benefits that rightfully belong to Rite Aid. 41. The retention of such benefits by Orly Plastics and Orly Industry is inequitable and unjust and has substantially damaged Rite Aid in the amount of $160,109.46. 42. Rite Aid is entitled to the amount of $160,109.46, plus interest, from Orly Plastics and Orly Industry under the doctrine of unjust enrichment. WHEREFORE, Rite Aid requests judgment in the amount of $160,109.46 plus interest, costs, and all other amounts deemed appropriate by the Court. Respectfully submitted, Brian P. Downey (PA 59891) Kathleen A. Mullen (PA 84604) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 Telephone 717.238.0575 Fax downeyb@pepperlaw.com mullenk@pepperlaw.com Date: May 29, 2014 Attorneys for Plaintiff Rite Aid HDQTRS. Corp. -9- OQaeEL3tCa-at€Ql 3J®ocDoiaatlg00111 FF#tidc00 22Y14 Plagg61.13b800 Oaae81.3tglatoZIEREUEDocihmtirbq001.11 FIRlelcO1KKI2111.4 PaggE11.447.41300 MASTER PURCHASE AGREEMENT BETWEE RITE AID HDQTRS. CORP. ANI) ORLY PLASTICS ENTERPRISE., INC. This Master Purchase Agreement f''Agreernent") is effective August L2010 by and between RITE AID FIDQ'FRS, CORP.. a Delaware'CorporatiOn. with offices at 30 Hunter tan Camp Hill, PA 17011 ("Rite Aid") and ORI Y PLASTICS ENTERPRISE. INC:, a New York Corporation loCated at 106 Lexington Ave. Brooklyn, NY 1111238. (Supplier")and any attachments hereto state theterrns and conditions under which Supplier shall provide good'., ARTICLE, 1 - DEFINITIONS 1,1 -Goods" means all products, equipment. materials including but not limited 10 the manufacture of Plastic Trash Can 1.iners. as detailed in Attachment A. ARTICLE 2 SCOPE OF PERFORMANCE 2.1 Purpose and Supplier Qualifications. The purpose of this Agreement is to specify the detailed terms and conditions between the parties. Supplier is engaged in the business of producing Plastic l'rash Can Liners and has the supervisory and qualified personnel as well as applicable toolsequipment, supplies, arid materials necessary to provide these Goods in a safe, efficient and competent manner. If a Supplier or its personnel must be licensed or certified under applicable laws. regulations, or industry practices, as a condition to providing Goods. Supplier warrants that it possesses all required licenses or certificates and that they are in full force and effect. Supplier agrees to folk all laws. rules, and/or regulations applic:able to its supply of CioOds during its performance under this Agreement. 2.2 Scope of Work. ['or each Goods material purchased by Rite Aid under this Ag.,reernent, a separate purchase order may be issued by Rite Aid. This Agreement shall be incorporated by reference in each Rite Aid issued purchase order as if fully set forth therein. Absent a Rite Aid issued purchase order. Rite Aid shall be under no :obligation to Supplier for payment. 2.3 Conflicting Terms. Any applicable schedule. exhibit, attachment, drawing. data sheet. or specification attached to this Agreement is incorporated by reference. lithe information or terms conflict on any of these incorix,rated documents, they prevail in the follovving order of authority: schedules; exhibits; attachments; drawings data sheets; and specifications. Any Goods, supplies. tools, equipmentor materials not expressly covered in this Agreement which are fairly implied as being required for the Goods are considered included and required. 2.4 Highest Professional Standards. Upon acceptance of the terms and conditions set forth in this Agreement. Supplier must promptly carry out the duties and obligations specified therein skillfully and safelyand in accordanci: with the applicable schedules. exhibitsattachments, drawings. data sheets, and specifications and best industry praetice. Supplier must use its best citric -is to meet any delivery or completion deadlines specified in this Agreement. RA0234 alaeelaellittalfitliEfljEJodamarrtiq00111 FiRldcOMIP/414 PlEtgg6115:16{300 2.5 Highest Quality Goods. Ail (iouds received and any related materials must be new. of the very best quality, and subject to inspection and acceptance by Rite. Aid. Any inspection or acceptance by the Rite Aid does not constitute a waiver of any ()fits rights under this Agreement Or the relevant Contract. 2.6 Inspection. Supplier must provide ail superviSion, quality control programs. inspections, or verifications required to ensure compliance With this Agreement. At any reasonable time Rite Aid has the right, but not the obligationto verify Supplier's compliance with this Agreentent. At any reasonable time. Supplier must permit Rite Aid's representative free access to its facilities and if applicable. its vendor's facilitiesand must fitrnish any information Rite Aid reasonably requests regarding the verification or inspection. If Rite Aid discovets any Cioods, supplies, or materials that do not conform to the requirements of this Agreement, Kite Aid will promptly notify Supplier in writing. Supplier must arrange the satisfactorily correction ofany deficiency within a thirty (30) days, and at its own expense. If Supplier fails to do so, Rite Aid may terminate this agreement without recourse, 2.7 Temporary Permits. Supplier must obtain any temporasypermits or licenses as required in connection with supplying Rite Aid the Cioods at its own cost and expense. 2.8 Agreement Term, Extensions. The term of this Agreement begins on Augustl, 2010, and ends on July 31, 2011subject to the termination provisions under Sections 6.1 and 6.2. This Agreement may be extended by the mutual written consent of the parties. ARTICLE 3 ,PRICING, DELIVERY, PAYMENT 3.1 Pricing. Supplier will be paid for the Goods according to the plicable pricing provisions set forth in this Agreement under Attachment A. 3.2 Competitiye Pricing. If betbre a Supplier prcivides Goods. another vendor offers Rite Aid Goods of equal quality at a price lower than that specified herein and Rite Aid furnishes satisfactory evidence of the lower price, then Supplier must tither meet the price, or Rite Aid may obtain the Goods from the other vendor and deduct the quantity of Goods from the quantity specified herein. 3.3 ?nee Reductions. 11' Supplier reduces its prices to others for equivalent Goods during the terrn of this Agreement or any contract, Supplier must immediately notify Rik!. Aid and reduce the prices zo Rite Aid. 3,4 Payment. Rite Aid will pay properly submitted invoices within 30 days after receipt of Goods, Rite Aid may withhold an amounts Which are disputed in good faith or may deduct any alnatilitS 1 or charges. costs. expenses or tosses actually incurred as a result of defects in the Goods. late delivery: or any other noncompliance with applicable schedules. exhibits. attachments, drawingsdata sheets. or specifications. Rite Aid shall use good faith efforts to procure compliance with their pnyment obligations under this Agreement. Rite Aid shall have a right of setoff against any amountsdue a Supplier under this Agreement entered into RA0235 Oaae€131EQata1fiallOJE3odihnentlq00111 FIRIEURIOOP/114 REINEILIPIO800 hereunder. for all amounts due Rite Aid from Supplier regardless of the source of the obligation. Unless otherwise agreed in writing Rite Aid will not accept or pay anyinvoices dated prior to delivery of Goods. 3.5 Audit; Rite Aid reserves the right to audit Supplier's invokes ut'Xin thirty (0) days written notice. 3.6 Order Quantities/Proccss. All order quantities will be in full .pallets. Rite Aid Will order in MI pallet quantities only. ARTICLE 4 - PROPRIETARY RIGHTS 4.1 Intellectual Property. All intellectual and industrial property rights including patents; registered deSigns, trademarks, service markS, copyrights or any other form of intellectual or industrial property rights subsisting at any time in respect of items developed by Supplier for Rite Aid (and all such rights in respect of any subsequent modifications of such iterns) are to vest in and remain with Rite Aid. Supplier shall take all necessary steps (at no cost to Rite Aid) to ensure that all of the rights referred to in this clause are formally vested in Rile Aid and that any moral rights attaching to any relevant material are waived in favor of Rite Aid. 4.2 Confidentiality. This Agreement and its contents are confidential to the parties and, except as set out below, shall not be disclosed to third parties by either party without the express written consent of the other pany. If:during the course of performance under this Agreement theparties are exposed to confidential information, the parties agree to keep any such confidential information strictly confidential, to -the extent allowed by law. 4.3 Indemnity for Intellectual Property Claims. Supplier shall indemnify, defend and hold Rite Aid harmless from any and all claims of intellectual property infringement in accordance with Paragraph 6.8. ARTICLE 5- RELATIONSHIP OF PARTIES 5.1 Independent Parties. Rite Aid and Supplier are and shall remain independent contractors, and none of the provisions in this Agreement shall be construed to create a partnership or joint venture between the parties. Each Party shall be and remain solely responsible for wages, hours, taxes, tax withholdings, and all other conditions of employment of its own personnel during the tem of this Agreement. Nothing contained herein shall be construed as implying that employees of either Party are employees of the other Party for any purpose whatsoever, •including, without limitation. participation in the benefits or privileges given or extended by such other Party to its employees. No right or authority is granted to either Pam to assume or to create any obligation or responsibility. expressed or implied. on behalf of or in the name of the other Party. 5,2 If a law or regulai ion mandates a report or other document that rnust be signed or certified by Rite. Aid, Supplier must consult with Rite Aid to assure full compliance. RA0236 alaeEntca-WO:160110JIDodElotarra00111 Fi16E1M/30E44 Plaggelnfa800 ART CLE 6- GENERAL PROVISIONS 6.1 Termination. Either party, may terminate this Agreement. with or without cause, by giving 60 Days advance written notice to the other party. In the event of such termination by Rite Aid, Supplier will be compensated fir all outstanding invdiees and for any Goods for which Supplier ha.s not been reimbursed. Supplier agrees that it shall not be entitled any other claimed amounts., including but not limited to, direct, indirect. consequential, -loss of profits, punitive or exemplary damages whalsoever. 6,2 Assienrneni. Supplier may not ssign this Agreement without obtaining the prior written consent of Rite Aid. 6.3 Representatives. Each party must appoint one or rnore representatives promptly after signing this Agreement and disclose to the other party the scope of its representative's authority with respect to this Agreement or any related Contract entered into in accordance with this Agreement. Each party may replace or supplement its representative by giving prior written notice to the other party. 6.4 Notices. Al! notices under this Agreement are considered given if delivered in writing personally or by courier, or sent by electronic transmission or facsimile to Rite Aid or to Supplier, at the address set forth below. Any notice given by U.S. mail is considered given days after the notice is deposited in the U.S. mud postage prepaid. Addresses. for notice are: f the notice is to Rite Aid: Rite Aid IIDQTRS. CORP. Rich O'Brien Senior Buyer Indirect Procurement Group 30 Hunter Lane Camp Hill, PA 17011 Facsimile: 717-731-4734 With.a copy to: Rite Aid HDQTRS. CORP.. Attn: Legal Department 30 Hunter Lanc Camp Hill, PA 17011 Facsimile: 717-975-5976 RA0237 C3aseel3L@ITAKEIERRIBUEE1ociOmilti q00111 FFifidcOgbOOP/ PifIgg+51$836800 If the notice is to Supplier: Jacob Torkieh President 106 Lexington Ave, Brooklyn, NY 11238 Facsimile: 718-399-7175 6.5 Alternative Dispute Resolution. Except as provided herein. no civil action with respect to any dispute, claim or controversy arising out of or relating to this Agreement that is below $250,000 may be commenced until the matter:has been submitted for mediation to a mediator acceptable to both parties. Either party may request the commencement of mediation proceedings by providing to the other party a written request for mediation setting, forth the subject of the dispute and the relief requested. The parties shall then, within thirty (30) days_ mutually agree upon the selection ofa mediator. lithe parties do not agree to the selection of a mediator; the dispute shall be mediated by George B. Faller, Esquire., at the law firm of Mattson, Deardorff, Williams, Otto, Gilroy .6r. Faller, 10 East High Street. Carlisle, PA 17013. for non-binding mediation. The parties covenant that they will participate in the mediation in good faith, and that thcy will share equally in its costs and expenses. The parties agree to split the mediator's fee. All offers. promises, conduct and Statements, whether oral or Nvritten, rnade in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non discoverable as a result of its use in the mediation. Either party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process provided that such a claim is tiled in the Court of.Common Pleas of Cumberland County, Pennsylvania. Except for such an action to obtain equitable relief, neither party may commence a civil action with respect to the matters•subrnined to mediationuntil after the completion of the initial mediation session, or 45 days after the dale of filing the written.request for mediation, whichever occurs first. The parties agree that any such civil action must be brought in the Court of Common Pleas of Cumberland County Pennsylvania. Mediation may continue after the commencement of a civil action; if the panics so desire. The provisions of this Paragraph may be enforced by the Court of Common Pleas of Cumberland County Pennsylvania. and the party seeking enforcement shall be entitled to an award of all costs, fees and eipenses, including attorneysfees. tri be paid by the party against whom enforcement is ordered. Any dispute, claim or controversy arising OW of or relating to this Agreement that or th breiteh. termination_ enforcement, interpretation or validity thereof that is,in eXCCS5 of S250,000.00. including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Camp Hill. Pennsylvania, before one JAMS RA0238 OQaeenifeatEX1 3J®ocEmm tig00 11 FFftidc00itJQPY44 P 9829A 300 arbitrator to be agreed on by both parties. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not; preclude parties from seeking provisional remedies in aid of arbitration from :the •Court cif Common Pleas of Cumberland County. Pennsylvania_ 6.6 Governing Law and Venue. This Agreement and all Contracts: entered into :hereunder are governed by the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of law rules. Any disputes between the parties not subject to Paragraph 6.5 shall be brought exclusively in the Court of Common Pleas for. C'ur Berland County, Pennsylvania. 6.7 Insurance. Supplier shall purchases and maintain, with insurance companies approved by Rite Aid, such insurance as will protect Supplier and Rite Aid and all others that Rite Aid requests be named as Additional Insureds al Supplier's sole cost and. expense (and with Rite Aid haying no liability for prerniurns or other costsof insurance) from claims set forth below which may arise out of or result from Supplier's provision of Goods under this: Agreement. whether such operations be by Supplier or by any subcontractor or by anyone directly or.. indirectly employed by any of therm, or by anyone for whose acts any of them :rnay be liable: (a) claims under workers' or workmen's compensation. disability benefit and other similar employee benefit acts; (b) claims for damages because of:bodily injury, occupational sickness or disease, or death of Supplier's employees; (c) claims for damages because of bodily injury,.sickness or disease. or death of any .person other than Supplier's employees;. (d) claims for damages which are sustained (i) by any personas a result of an incident directly or indirectly related •to the employment of such person by Supplier. or (ii) by any other person; (e) claims for damages. other than to the work perforrned:under this Agreement itself because of injury to or destruction of tangible property, including loss of use resulting therefrom; and (fl.claims for damages because of bodily injury or death of any person or property damage arising out of the ownership; maintenanceor use of any motor vehicle. The insurance required by Subparagraph 6.7(a) shall be written for not less than statutory limits. The insurance required by Subparagraph 6.7(:h) through (1:) shall be written for not less than $3,000,000:00. In .addition to the insurance requirements set forth abOve,,Supplier will, at Supplier's expense. obtain and keep in force and effect during the term of this Agreement an excess/umbrella liability • insurance policy of an additional .S5.000,000.00 naming Rite Aid as an Additional Insured. RA0239 Oaae€1.31@l-atalffaffOJEDocEmnurtiq00111 Fffildc00/002/114 Piagg€200:16f330 Certificates of Insurance (in duplicate) acceptable to Rite Aid shall he filed with:Rite Aid prior to commencement this Agreement Such certificates shall be addressed to kite Aid at its address and shall show that all of the insurance required by Paragraph 6.7 (miles -than workmen's conipensation insurance) identifies Rite Aid, and such other persons and entities as shall be requested by Rite Aid as Additional Insureds. Supplier shall be solely responsible for any premiums associated with the coverages requested in Paragraph 6_7. Insurance certificates shall include a.provision for not less than 30 days'advance written notice by the insurer to Rite Aid in the event of cancellation or reduction of such insurance. 6.8 Indemnification. Supplier agrees to defend, indemnify, and hold Rite Aid harmless from and against any and all claims, losses, damages, judgments, liabilities, and costs (including reasonable attorney's fees and expenses) of any kind or nature or that are asserted arising. directly or indirectly from Supplier's provision of Goods under this Agreement, including any violations of any federal, state andior local laws and/or ordinances and including any cairns of bodily injury or death to any person or from damage to or destruction of any property, arising from or related to Supplier's acts or omissions. 6.9 Non Exclusivity. Nothing expressly or impliedly contained herein or in any Contract shall be deemed to give rise to or constitute any exclusivity of purchase or supply or in any way Prevent or restrict Rite Aid or any Rite Aid from purchasing Goods which are similar or identical to the Goods from any source whatsoever or in any way prevent a Supplier from supplying or offering to supply Goods to any person. 6.10 Force 141aeure., No Party shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, laws or governmental regulations, acts of terrorism, or other causes that are beyond that party's control. 6.1 1 Seyerability. If any provision or the scope of any provision of this Agreement is found to be unenforceable or too broad by judicial decree, the Parties agree that such provisions shall be curtailed only to the ex -tent necessary to conform to laNv to permit enforcement of this Agreement to its full extent. 6.12 Entire Agreement; No Reliance. Each of the parties agrees and acknowledges.that this Agreement (i) constitutes the entire agreement and supersedes all prior and contemporaneous agreements, understandings, negotiations arid discussions, whether oral or written, .aniong the parties with respect to the subject matter of this Agreement, and (ii) is not intended to confer any rights or remedies, or impose any obligations. on any person other than the Parties hereto. Each of the Parties expressly agrees and acknowledges that, other than those statements expressly set forth in this Agreement, it is not relying on any statement, whether oral or written, of any person or entity with respect to its or hisentry into this Agreement or to the consummation of the transactions contemplated by this Agreement, RA0240 Oaaee131gQatElfigEOJELIodDatuntiq00111 FFitidcOMOZ/Z4 Plagg€22336800 6:13 Amendments and Modifications. This Agreement may be m %Teen -tent signed by both.Parties. by a written 6.14 Successors a.nd Assigns. This Agreem.eat shall :be-.birieliog -ort and shall benelit-artyand all successors., trustets..pemtitted assigns'and. other suedes:Sirs in -iriteteSt Of the: Patties. 6.15 Counterparts. This Agreement 'nay be eXeCuterfin one.Or inote--counterparts,.ail Of which .shall constitute onc and the -same Agreement. Rite Aid By: N Date: TR& CORP. Orly Plastics Enterprise, Inc. By: 6) 6- Title.: Date: RA0241 OQaeaSig a ESifillE3J®ocOm:entigO0111 FFFiidc0010H2Y114 PaggE2223sOf300 Scope of Work:, item # item ('rice 47..77,4 Clear flag. JIDP'I . l ti Micron. 21)0 hags "case $1 1.4 . cs -1757.7?( ( fear .(3ag. ,( r f lI)1'I.. R \-lier on. 500 hags : S7.50 cs Priciieg is guarantcod 14 siN.(i;) months Iron date ofinitial. order. .1hereafter pricing %sill retie+sed quarterly kith consicleraticm graven to ('Item Data Resin Index . The...telly 2010 Chem Data Price of S59.50 cflh tt iii he used as a baseline fin- any ruture quarterly price increases or decreases. Pricing adjustments tail) only he considered if the price Changes by .1)2 per pound ($2.(X e/lh). .All changes he submitted in +%citing i> iih appropriate supporting documentation for Rite Aid rrie.tti. RA0242 OQae€1.3t04OQ12:REDJ®ocOrnRiriig00111 FifilddMQ11414 Pagg€221bf300 Can Liner Specs 40 x 46 LLDPE 1.25 Mil. Opaque blue, 100 bags per case 30 x 36 LLDPE 1.25 Mil, Opaque blue, 250 bags per case 30 x 37 HOPE 8 micron, Clear, 500 bags per case 43 x 48 HOPE 16 micron, Clear, 200 bags per case RA0243 OQae 1.3t(?QatCJ®odImRIThgOfl311 F kIdc00NB2YI4 PRggE2bf300 I, err 4.` .1101. alaa3telliatErlf2310JEDodDrnurrti@OD111 FfithEIMPA214 Plaggc2B5D6f380 • crLw nrivaranv mit 106 LEXI1NCTON AVE BROOKLV:V. NV 11238 718-399-6311 718.390-7175 August 1. 2011 4..)ear. Mr. Obrien. We are requesting a name change from our currentname on file, which is Orly Plastic 1:nterprisc. to Orly Industry Inc. If there are any further questions..please do not hesitate to contact us. `iineerely, frin-a RA0244 Ctae€131@ ata1firRODJ®odtaintlt1E0fl311 FFfiidW JQ2Yi4 PaggE213Cob800 Oaaeei3tCQat03 3J®ocDoliniiM O 11 FRdcO1 OG2Y114 Plagg€2271)S00 Page 1 of 1 Subj: Re: (no subject) Date: 11/16/2011 10:30:02 A.M. Eastern Standard Time From: torkiehe,aol corn To: MKRZoIi , ta)aoLcom Dough, I have reviewed the proposal, and here is what i propose. With this proposal i am only trying to maintain the relationship, and save Rite aid money. Rite aid's claim is 200000, if we were to follow the contract there is a $67000, which is due to us and have not been billed, and we are proposing another 50000 rebate that will bring it up to 117000 which is pretty significant amount of money. Not to mention the current prices we are giving them is 20% below market price ---Original Message --- From: MKRZoIIo <MKRZollo@aol.com> To: torkieh <torkieh@aol.com> Sent: Wed, Nov 16, 2011 6:57 am Subject: (no subject) Please review Sunday, February 12, 2012 AOL: MKR Zollo MKR 0006 OQaee1310-iitIEIlM3J®ocOoiRariig60311 FFftidcD1 RJ22 4 Pagge28a t fi00 Ceaee13t09✓vACCEIRID3J®odi owitIg00111 FiklelcOOKIGEY414 Plagg€29abf300 RITE RITE AID Corporation December 19. 2011 Orly Plastics Enterprise, Inc. 106 Lexington Avenue Brooklyn. NY 11238 Attn: Jacob Torkieh Mr: Torkieh, • MAILING ADDRESS PO. Box 3165 Harrisburg, PA 17105 • GENERAL OFFICE 30 Hunter Lane amp Hill. PA 17011 • 1-$00 RITEAID' Please be advised that Rite Aid Hdgtrs. Corp. ("Rite Aid") has determined product shipped by Orly Plastic Enterprise, Inc. (`:Orly') has been below specifications, as detailed in: our Master Services Agreement of August 1, 2010 (" Agreement"). This is a breach of the Agreement between Rite Aid and Orly. Specifically, a shortage has been determined by both the case weight andthe numerical count of bags. Product has been sampled by Rite Aid associates, and Orly's sales representative. Orly also admits this in its proposal submitted on November 17, 2011. Rite Aid is seeking repayment of $200,311. This amount is what Rite Aid has determined to be the amount of bag shortages for the past 12 months. In accordance with Section 3.4 of the Agreement, Rite Aid will not make payment on disputed shipments, and will hold payment of 572,563.05 in current invoices. Under Section 6.1, the Agreement can be terminated upon sixty (60) days written notice. However, this Agreement has already expired. Moreover. inaccordance with Section 6.5, Rite Aid requests the commencement of mediation proceeding to address Orly's breach of the Agreement. Please advise who Orly will appoint as the mediator. If you wish to settle this matter in an amicable manner, please contact me the next five (5) business days. Richard O'Brien Senior Buyer cc: Ron S. Chutta, Senior Counsel RA0341 OAaeetaga- e'1l3J®odDaterMg00111 FkiddRIC40221414 Plagge3O0 t f300 VERIFICATION I, Richard O'Brien, hereby state that I am a Senior Buyer for Rite Aid Hdqtrs. Corp. and am authorized to make this verification on its behalf. I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief I understand that the statements in the foregoing document are made subject to the , penalties of 18 Pa. C.S. § 4909 relating to unsworn falsification to authorities. Dated: May a g , 2014 ichard O'Brien FfiW Plagg€133666 RITE AID HDQTRS. CORP, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. : NO. 14-3289 CIVIL ORLY PLASTICS ENTERPRISE, INC. : CIVIL ACTION — LAW and ORLY INDUSTRY, INC. Defendants : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE PURSUANT TO PA. R.C.P. 405 COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF CUMBERLAND C.1 C: •^0 rri THE UNDERSIGNED, Kathleen A. Mullen, being duly sworn according to law, does depose and say as follows: 1. I am a competent adult and an attorney duly admitted to the Bar of the Supreme Court of the Commonwealth of Pennsylvania, having Attorney Identification Number 84604. 2. On June 3, 2014, I caused the Complaint to be served upon defendant Orly Industry, Inc. by the mailing of a true and correct copy of the Complaint to the defendant's principal place of business by United States certified mail, return receipt requested, postage prepaid, addressed as follows: Orly Industry, Inc., 106 Lexington Avenue, Brooklyn, NY 11238. 4' Oaat3431Ca-littalffRODJIDocDatentiq00122 FiitdcOM211144 P1ggE22 t 6 3. I received the return receipt, which was delivered and accepted at Orly Industry, Inc., 106 Lexington Avenue, Brooklyn, NY 11238., on June 6, 2014, by or on behalf of the defendant, thereby completing service pursuant to Pa. R.C.P. 403. The original return receipt signed by or on behalf of the defendant is attached hereto as Exhibit "A". Respectfully submitted, Brian P. Downey (PA 59891) Kathleen A. Mullen (PA 84604) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 Telephone 717.238.0575 Fax dovvneyb@pepperlaw.com mullenk@pepperlaw.com Date: June 12, 2014 Attorneys for Plaintiff Rite Aid HDQTRS. Corp. SWORN TO AND SUBSCRIBED BEFORE ME THIS 12TH DAY OF JUNE, 2014. COMMONWEALTH OF PENNSYLVANIA , Notarial Seal Kimberly Kelly Perez, Notary Public City of Harrisburg, Dauphin County My Commission Expires Aug. 21, 2015 MEMBER, PENNSYLVANIA ASSOCIATION OF NOTARIES -2- OtaeelafaatQ7MIli3J®ocOrroarrti@60122 Ffl id 0X4Q2144 Piagg€83)b66 USPS.coma English ::1111 k011MJ®ocDomnti OO 22 FiliieldnYA2144 Plagge44 b66 Page 1 of 2 Customer Service USPS Mobile USPS.CON1 Quick Tools USPS Tracking' Register / Sign In Usemame Create a USPS.com account to... riot ship in labels Search • request rackage Packauges Subr • requests ac age p. Password • buy stamps and shop • manag PQ Boxe Ship a Package Send Mail Manage Your Mad Shop s9ustnemine_ SOlulons • print customs forms • lite domestic insurance claims Tracking Number: 70092250000037079205 Hint: ire at least 7 characte�l�gip Cluntome4 SOIyI� t e letter and number. `n"'/�1 H. questions? We're here to help. Sign In Forgot your password? Product & Tracking Information Available Actions Postal Product: June 6, 2014 , 12:08 pm Features: Certified Mail' Delivered BROOKLYN, NY 11238 Your item was delivered at 12.08 pm on Juno 6. 2014 in BROOKLYN, NY 11238. June 6, 2014 , 10:02 am Out for Delivery BROOKLYN, NY 11238 June 6, 2014 , 9:52 am Sorting Complete BROOKLYN, NY 11238 June 6, 2014 , 9:12 am Arrival at Unit BROOKLYN, NY 11238 June 5, 2014 , 5:24 am Depart USPS Sort Facility BROOKLYN, NY 11256 June 5, 2014 ,1:58 am Processed through USPS BROOKLYN, NY 11256 Sort Facility June 4, 2014 . 8:59 pm Depart USPS Sort Facility FLUSHING, NY 11351 June 4, 2014 , 4:59 pm Processed through USPS FLUSHING, NY 11351 Sort Facility June 4, 2014 , 1:38 am Depart USPS Sort Facility HARRISBURG, PA 17107 June 3, 2014 , 9:10 pm Processed through USPS HARRISBURG, PA 17107 Sort Facility Track Another Package What's your tracking (or receipt) number? Track It Text Updates Email Updates LEGAL ON USPS.COM ON ABOUT.USPS.COM OTHER USPS SITES Privacy Policy r Terms of Use FOIA No FEAR Act EEO Data J1EUSPSJ:OM' Government Services Buy Stamps 6 Shop Pont a Label with Postage r Customer Service Delivering Solutions to the Last Mite Site Index Copyright•S) 2014 USPS. Al! Rights Reserve: About USPS Horne Newsroom > USPS Service Alerts r Forms & Publicabons Careers r Business Customer Gateway r Postal Inspectors Inspector General Postal Explorer+ National Postal Museum https://tools.usps.com/go/TrackConfirmAction.action?tRef=fullpage&tLc=1 &text28777=... 6/12/2014 OQaeziag atOCENDJ®ocDo nfig60322 Fit€1017 Q2V44 ggt i5t 6 SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery 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 mailpiece, or on the front if space permits. ' 1. Article Addressed to: Orly Industry, Inc. 106 Lexington Avenue ' Brooklyn, NY 11238 coroPt t TE THIS SECTION ON DELIVERY A. Signature X ID Agent ❑ Addnassee Receiv b Name) C. Date of Delivery D. Is ivery address different from Item 1? 0 Yes If YES, enter delivery address below: 0 No 3. Service Type at Certified Mail* 0 Prbrity Malt Express' 0 Registered ti1 Return Receipt for Merchandise ❑ Insured Mall 0 Collect on Delivery 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article tylumber) { ( k I 1 (fiansfe}from 1 7009 .2250 min 3707 9205`' PS Form 3811, July 2013 Domestic RetumJlsolipt OQae€13i@2atEU& J®ocl mintig0D 22 FITiidcDWO22 44 P1gg€66A66 CERTIFICATE OF SERVICE I hereby certify that on June 12, 2014, a copy of the foregoing document was served by United States mail, first class postage prepaid, addressed as follows: Orly Industry, Inc. 106 Lexington Avenue Brooklyn, NY 11238 / ,---'---ar-----z___.__ Kathleen A. Mullen (PA 84604) JS 44 (Rev. 12(12) CQaeEnt@ atEXifitiOBAEDocQorrarmq6D3.33 FiliiektMQP144 PBgg�1bba1 CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace not supplement the tiling and service of pleadings or other papers as required by law, except as provided bylocal toles of court. This form, approved by the Judicial Conference of the United Stales in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet.(SEE JNS(RUCTIONSONNEXTPAGE OFTHIS FORM.) L (1+) PLAINTIFFS RITE AID HDQTRS. CORP. (b) County of Residence of First Listed Plaintiff CUMBERLAND (EXCEPT IN U.S. PL(MINTIFF CASES) (c) Attorneys (Finn Nome, Addrars, and TeFaphoneNumber) Brian P. Downey, Esq., Pepper Hamilton, LLP 100 Market Street, Suite 200 Harrisburg, PA 17108-1181 717-255-1155 DEFENDANTS ORLY PLASTICS ENTERPRISE, INC. and ORLY INDUSTRY, INC. County of Residence of First Listed Defendant KINGS COUNTY (IN V..% PIAINTJFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (I Owl) Anthony T. Bowser, Esq. Thomas, Thomas & Hafer, LLP POB 999, Harrisburg, PA 17108-0999 717-237-7100 BASIS OFJURISDICTIONMane an x^ in One Jinx Ott) 0 1 U.S. Government 0 3 Federal Question Plaintiff (US 01117171/71C/St Nat a Party), 0 2 U.S. Government b 4 Divesity t/ (karate Citizenship ojPaniar in !tem 111) Defendant CIT'IZ NSHIP OF PRINCIPAL PAR[Lt S (Place an -X" in (Jur !fox far Prange and One Box* Defendant) PIF DEF py 4 0 4 (Far IN vt city Case: On(y) PTF DEF Cimiren of This State n 1 n 1 Incorporated ar Principal Place of Dendueas In This State Citizen of Another State 13 2 0 2 Incorporated and Principal Place O 5 of Business In Another Stole Citizen or Subject of a 0 3 13 3 Foreign Nation Pardee Country f/ S 0 6 06 IV. NATURE OF SUIT (Mars nn X"tn a On. .Cur aAcr 'tons. FORFMTURE(PENAL1tY BANKRUPTCY OTIIEI8STATUT}2S O 110Insurance 13 120 Marine 0 130 Millar Act D 140 Negotiable Instrument 0 150 Recovery of Overpayment & Enforcement of Judgment O 151 Medicare Act O 152 Recovery of Dethulted Student Loans (Excludes Verernm) O 153 Recovery of Overpayment of veteran's Benefits O 60 Stockholders' Suits 90 Other Controct ❑ 195 Connect Product Liabiiiry ❑ 196 Fmnchim PERSONAL INJURY O 310 Aigmlane O 315 Airplane Product Liability 0 320 mood, libel & Sraadcr 13 330 Federal Employers' liability O 340 Marine CI 345 Marine Product Liability 0 350 Motor Vehicle 0 355 Motor Vehicle Product Liability 0 360 Other Personal Injury 0 362It2a0nal Injury - Medical Malpractice PERSONAL INJURY O 365 Personal Injury - Product Liability 0 367 Health Clue/ Pharmaceutical Peteonal lgiury Product Lability 0 368 Asbestos Personal lgimay Prothro Linbiliry PERSONAL PROPERTY 0 370 Other Fraud 0 371 Truth in Lending 0 380 Other Personal Property Damage O 385 Property Damage Product Liability PRISONER tunman 0 625 Drug Related Seizure or Properly 2I USC 881 D 690Odxr 0 422 Appeal 28 USC 158 Cl 423 Withdrawal 28 USC 157 0 371 Fake Claims Act fl 400 State Reapportionment 0 410 Antitrust O 430 Barb and Banking 0 450 Commerce I 0 460 Deportation 0 470 Racketeer Influenced rod Corrupt Organizations 0 480 Consumer Credit 11 490 Cable/Sat TV 0 850 Securiues/Coauaoditid Exchange 0 890 Other Statutory Actions 0 191 Agricultural Amts 0 893 Environmental Matters O 895 Freedom of Information Act ❑ 896 Arbitration ❑ 899 Adroinisuative Procedure Act/Review or Append of Agency Declaim 0 950 Constitutiotulity of Slate Statutes TROPERT V RIG17'TS ' 01 820 Copy 1s1s 0 830 Patent 0 840 Trademark LABOR SOCIALSECURITY " D 710 Fair labor Standards Act C3 720 Labor/Management Relations 0 740 Railway Labor Act 0 751 Family and Medical Leave Act 0 790 Other Labor Lnigauon D 791 Employee Retirement Income Security Act 0 861 HMA (1395f1) 0 862 Slack Lung (923) 0 863 DIWC/DIW W (405(g)) 0 864 SSE ° Title XVI 0 865 RSI (405(g)) REAL PROPERTY CIVIL tIGHES DERAL: TAR SUITS O 210 Lard Condemnation n 220 Foreclosure O 230 Rent Lease & Ejcctman 0 240 Torts to land 1-1 249 Ton Product I.iahlity 0 440 OWa Civil Rights (1 441 voting O 442 Employment 0 443 Housing, Accommodations Habeas Carpus: n 467 Alien Detainee O 510 Motions to Vacate Sentence n 530 General 0 870 Tares (U,S. PlaimitT or Defendant) 0 871 QRS—Tbini Party 26 USC 7609 0 290 All Other Real Property O 445 Amer. w/Diaobilincs • Employment 0 446 Amer. w/Deuthiliries - Other 0 448 Education 0 531 Death Penalty Other- 0 540 Mandamus & Other 0 550 Civil Rights 0 553 Prison C:Dr ke n 960 Civil Detainee • Conditions of Cmmbncment IMMIGRATION 0 462 Naturalization Application n 465 (llher lnemigrmwm Actions V. ORIGIN (P&`�a,�n `.X" in Ona Box O,r(v) 0 I Original (�2 Removed from 0 3 Remanded from 0 4 Reinstated or t7 5 Transferred from O 6 Mulidishtit t Proceeding / State Coon Appellate Cott Reopened A.nother.Disuict Litigation (phi VL CAUSE OF ACTION Cite the U.S. Civil Statute under which you are filing (Do nor die jarisdctionaf flamer oinkesr Jnerr4ry): 33Z Brief description of cause: je.e.‘ vtil VII. REQUESTED IN Q CHECK if THIS 13 A CLASS ACTION DEMAND S CHECK YES only if demanded in complaint: COMPLAINT UNDER RULE 23, F.R.CvP. VIII. RELATED CASE(S) IF ANY (Sae msavaions)r JUDGE AIRY DEMAND: 0 Yes 0 No DOCKET NUMBER DATE FOR OFFICE USE ONLY RECEIPT 4 SIGATURE OF ATTOR RECORD APPLYING IFP MAG. JUDGE CERTIFICATE OF SERVICE AND NOW, this ri day of July, 2014, I, Coleen M. Polek, of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that I sent a true and correct copy of the foregoing document, via electronic mail pursuant to Pa.R.Civ.P. 205 and 440, to the following: Brian P Downey, Esq Kathleen A Mullen, Esq Pepper Hamilton LLP downeybg�pepperlaw.com mullenkCa pepperlaw.com Coleen M Polek Case 1:14-cv-01276-JEJ Document 26 Filed 11/20/14 Page 1 of 2 �i- 3a8? C1L IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RITE AID HDQTRS. CORP., Plaintiff, v. 1:14-cv-1276 Hon. John E. Jones III ORLY PLASTICS ENTERPRISE, INC., u and ORLY INDUSTRY, INC., r r - Defendants. n ORDER v r -1 November 20, 2014 In accordance with the Memorandum issued on today's date, it is hereby ORDERED that: 1. Plaintiff's Motion to Remand to Court of Common Pleas of Cumberland County (Doc. 5) is GRANTED, and this action is REMANDED to the Court of Common Pleas of Cumberland County. 2. However, Plaintiff's request for just costs and actual expenses, including attorney's fees, incurred as a result of the removal action filed by Defendants is DENIED. 3. The following motions are DENIED AS MOOT: Defendants' Motion to Dismiss (Doc. 7), Plaintiff's Motion to Amend the 1 Teitiv Case 1:14-cv-01276-JEJ Document 26 Filed 11/20/14 Page 2 of 2 Complaint (Doc. 21), and the Motion of Thomas, Thomas & Hafer LLP for Leave to Withdraw as Counsel for Defendants (Doc. 23). 4. The Clerk of Court shall close this case. s/ John E. Jones III John E. Jones III United States District Judge 2 .Pepnssylvania Middle District Version 6.1 Page 1 of 4 CLOSED,HBG,STANDARD United States District Court Middle District of Pennsylvania (Harrisburg) CIVIL DOCKET FOR CASE #: 1:14-cv-01276-JEJ Internal Use Only Rite Aid Hdqtrs Corp. v. Orly Plastics Enterprise, Inc. et al Assigned to: Honorable John E. Jones, III Cause: 28:1332 Diversity -Contract Dispute Plaintiff Rite Aid Hdqtrs Corp. V. Defendant Orly Plastics Enterprise, Inc. Certifiedf '.ttto Date Per Date Filed: 07/02/2014 Date Terminated: 11/20/2014 Jury Demand: None Nature of Suit: 190 Contract: Other Jurisdiction: Diversity represented by Brian P. Downey Pepper Hamilton LLP 100 Market Street Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181. 717-255-1155 Email: downeyb@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Kathleen A. Mullen Pepper Hamilton LLP 3000 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103-2799 215-981-4786 Email: mullenk@pepperlaw.com ATTORNEY TO BE NOTICED represented by Anthony T. Bowser Thomas, Thomas & Hafer LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 717-441-3959 Email: abowser@tthlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED D®p Clerk David L. Schwalm https://ecf.pamd.circ3.dcn/cgi-bin/DktRpt.pl?931922673132595-L_1_0-1 11/20/2014 Pennsylvania Middle District Version 6.1 Page 2 of 4 Thomas, Thomas & Hafer, LLP 305 North Front St P.O. Box 999 Harrisburg, PA 17108-0999 717-255-7643 Email: dschwalm@tthlaw.com ATTORNEY TO BE NOTICED Defendant Orly Industry, Inc. represented by Anthony T. Bowser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED David L. Schwalm (See above for address) ATTORNEY TO BE NOTICED Date Filed # Docket Text 07/02/2014 1 NOTICE OF REMOVAL by Orly Plastics Enterprise, Inc., Orly Industry, Inc. from Cumberland County Court of Common Pleas, case number 14-3289. (Filing fee $ 400 receipt number 0314-3148130), filed by Orly Plastics Enterprise, Inc., Orly Industry, Inc. (Attachments: # 1 Complaint, # 2 Affidavit of Service, # 3 Civil Cover Sheet)(aaa) (Entered: 07/02/2014) 07/02/2014 2 DISCLOSURE STATEMENT PURSUANT TO FRCP 7.1 by Orly Industry, Inc., Orly Plastics Enterprise, Inc. (aaa) (Entered: 07/02/2014) 07/03/2014 3 NOTICE of Appearance by Kathleen A. Mullen on behalf of Rite Aid Hdqtrs Corp. (Mullen, Kathleen) (Entered: 07/03/2014) 07/03/2014 4 NOTICE of Appearance by David L. Schwalm on behalf of Orly Industry, Inc., Orly Plastics Enterprise, Inc. (Schwalm, David) (Entered: 07/03/2014) 07/03/2014 5 MOTION to Remand to State Court Court of Common Pleas of Cumberland County by Rite Aid Hdqtrs Corp.. (Attachments: # 1 Proposed Order)(Mullen, Kathleen) (Entered: 07/03/2014) 07/03/2014 6 BRIEF IN SUPPORT re 5 MOTION to Remand to State Court Court of Common Pleas of Cumberland County filed by Rite Aid Hdqtrs Corp.. (Attachments: # 1 Exhibit(s) 1 - Complaint, # 2 Exhibit(s) 2 - August 23, 2013 Memorandum and Order, # 3 Appendix Unreported Cases)(Mullen, Kathleen) (Entered: 07/03/2014) 07/03/2014 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Orly Industry, Inc., Orly Plastics Enterprise, Inc.. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Bowser, Anthony) (Entered: 07/03/2014) https://ecf.pamd.circ3.dcn/cgi-bin/DktRpt.pl?931922673132595-L_1 _0-1 11/20/2014 Pennsylvania Middle District Version 6.1 Page 3 of 4 07/03/2014 8 BRIEF IN SUPPORT re 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Orly Industry, Inc., Orly Plastics Enterprise, Inc.. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s))(Bowser, Anthony) (Entered: 07/03/2014) 07/08/2014 9 DISCLOSURE STATEMENT PURSUANT TO FRCP 7.1 by Rite Aid Hdqtrs Corp. identifying Corporate Parent Rite Aid Corporation for Rite Aid Hdqtrs Corp.. (Mullen, Kathleen) (Entered: 07/08/2014) 07/10/2014 10 COUNTY COURT RECORD from Cumberland County Court of Common Pleas. (aaa) (Entered: 07/10/2014) 07/17/2014 11 BRIEF IN OPPOSITION re 5 MOTION to Remand to State Court Court of Common Pleas of Cumberland County filed by Orly Industry, Inc., Orly Plastics Enterprise, Inc.. (Attachments: # 1 Exhibit(s), # 2 Exhibit (s), # 3 Exhibit(s))(Bowser, Anthony) (Entered: 07/17/2014) 07/21/2014 12 BRIEF IN OPPOSITION re 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Rite Aid Hdqtrs Corp.. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) 1, # 3 Exhibit(s) 2, # 4 Appendix of Unreported Cases)(Mullen, Kathleen) (Entered: 07/21/2014) 07/23/2014 13 SCHEDULING ORDER: Case Management Conference set for 9/30/2014(eo) (Entered: 07/23/2014) 07/25/2014 14 REPLY BRIEF re 5 MOTION to Remand to State Court Court of Common Pleas of Cumberland County In Support of filed by Rite Aid Hdqtrs Corp.. (Attachments: # 1 Unpublished Opinion(s))(Mullen, Kathleen) (Entered: 07/25/2014) 08/01/2014 15 SCHEDULING ORDER: Case Management Conference set for 9/30/2014 08:45 AM before Honorable John E. Jones III. (eo) (Entered: 08/01/2014) 08/04/2014 16 REPLY BRIEF re 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Orly Industry, Inc., Orly Plastics Enterprise, Inc..(Bowser, Anthony) (Entered: 08/04/2014) 09/23/2014 17 CASE MANAGEMENT PLAN JOINT by Rite Aid Hdqtrs Corp.. (Mullen, Kathleen) (Entered: 09/23/2014) 09/30/2014 18 (Court only) Minute Sheet for proceedings held before Honorable John E. Jones, III: Case Management Conference held on 9/30/2014. Total Time in Court [:6] (eo) (Entered: 09/30/2014) 09/30/2014 19 ORDER #1- STANDARD CASE MANAGEMENT TRACK Jury Selection set for 5/5/2015 09:30AM before Honorable John E. Jones III. Pretrial Conference set for 4/1/2015. See order for all deadlines. (eo) (Entered: 09/30/2014) 09/30/2014 20 Order #2- STANDING PRACTICE ORDER (eo) (Entered: 09/30/2014) 10/23/2014 21 MOTION to Amend/Correct the COMPLAINT by Rite Aid Hdqtrs https://ecf.pamd.circ3.dcn/cgi-bin/DktRpt.pl?931922673132595-L_1 _0-1 11/20/2014 Pennsylvania Middle District Version 6.1 Page 4 of 4 https ://ecf. pamd.circ3.dcn/cgi-bin/DIctRpt.pl?931922th3132595-L_1_0-1 11/20/2014 Corp.. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) A)(Mullen, Kathleen) (Entered: 10/23/2014) 10/28/2014 22 BRIEF IN SUPPORT re 21 MOTION to Amend/Correct the COMPLAINT filed by Rite Aid Hdqtrs Corp.. (Attachments: # 1 Appendix Unreported Cases)(Mullen, Kathleen) (Entered: 10/28/2014) 11/12/2014 23 MOTION to Withdraw as Attorney by Orly Industry, Inc., Orly' Plastics Enterprise, Inc.. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Bowser, Anthony) (Entered: 11/12/2014) 11/12/2014 24 BRIEF IN SUPPORT re 23 MOTION to Withdraw as Attorney filed by Orly Industry, Inc., Orly Plastics Enterprise, Inc.. (Attachments: # 1 Affidavit)(Bowser, Anthony) (Entered: 11/12/2014) 11/20/2014 25 MEMORANDUM (Order to follow as separate docket entry) (eo) (Entered: 11/20/2014) 11/20/2014 26 ORDER 1.Plaintiffs Motion to Remand to Court of Common Pleas of Cumberland County (Doc. 5) is GRANTED, and this action is REMANDED to the Court of Common Pleas of Cumberland County.2.However, Plaintiffs request for just costs and actual expenses, including attorneys fees, incurred as a result of the removal action filed by Defendants is DENIED. 3.The following motions are DENIED AS MOOT: Defendants Motion to Dismiss (Doc. 7), Plaintiffs Motion to Amend the Complaint (Doc. 21), and the Motion of Thomas, Thomas & Hafer LLP for Leave to Withdraw as Counsel for Defendants (Doc. 23).4.The Clerk of Court shall close this case. (eo) (Entered: 11/20/2014) https ://ecf. pamd.circ3.dcn/cgi-bin/DIctRpt.pl?931922th3132595-L_1_0-1 11/20/2014 o ORaallaCOlatalliOVEGJI3Dodikoranng001 FR dc0OMP/414 Pagga ob65 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RITE AID HDQTRS CORP, Plaintiff versus ORLY PLASTICS ENTERPRISE, INC and ORLY INDUSTRY, INC Defendants Removal from Court of Common Pleas of Cumberland County Case # 14-3289 Jury Trial Demanded Electronically Filed NOTICE OF REMOVAL AND NOW, this 2nd day of July, 2014, come defendants, Orly Plastics Enterprise, Inc and Orly Industry, Inc, by and through their attorneys, Thomas, Thomas & Hafer, LLP, and file this notice of removal of the above action from the Court of Common Pleas of Cumberland County, Pennsylvania, to the United States District Court for the Middle District of Pennsylvania, as provided by 28 U.S. Code, Chapter 89 stating as follows: alasEtlagetaleiCHOJEOodDmiantlq001 FifilelcOMQP 14 P1E1ggE22 t 5 1. The defendants here are same defendants in the action commenced in the Court of Common Pleas of Cumberland County, Pennsylvania, at case number 14-3289, which is pending in that court. 2. A copy of the Cumberland County complaint is included here as Exhibit A. 3. The Cumberland County complaint was filed on May 3o, 2014. 4. The Cumberland County Complaint was served by mail on defendants on June 3, 2014, and received by defendants on June 6, 2014. See Affidavit of Service, included here as Exhibit B. 5. This Court has original jurisdiction under 28 U.S.C. § 1332 because the matter in controversy exceeds the sum of $75,000 and is between citizens of different states. 6. Defendants aver that complete diversity of citizenship exists between the parties in this case. Plaintiff is a Delaware corporation with its principal place of business located at 3o Hunter Lane, Camp Hill, Pennsylvania 17011. Defendant Orly Plastics Enterprise, Inc is a dissolved New York corporation that had its principal place of business located at io6 Lexington Avenue, Brooklyn, New York, 11238. Defendant Orly Industry, Inc is a New York corporation with its principal place of business located at io6 Lexington Avenue, Brooklyn, New York, 11238. 2 Oaaee131Cet J®odIoian1 OO1 Filddc0MM414 Paggo3I665 7. Defendants are not now citizens of the Commonwealth of Pennsylvania, where the original action was filed, and were not citizens of Pennsylvania at the time the action was commenced in that they are not incorporated in Pennsylvania and do not have a principal place of business in Pennsylvania. 8. This notice of removal is being filed within 3o days of receipt by the defendants of a copy of the initial pleading in Cumberland County, in accordance with the requirements of 28 U.S.C. § 1446. 9. Copies of any process, pleadings or orders served upon defendants are filed with this notice. 10. Defendants will give written notice of the filing of this notice as required by 28 U.S.C. § 1446(d). 11. All defendants in the Cumberland County case join in the removal of the action to this Court. 12. This action is removed pursuant to 28 U.S.C.A. § 1441. OQaee ata et 1litME3J ®ocDoirrtig001 Plaggelibb55 WHEREFORE, defendants respectfully request that this action proceed in this Court as an action properly removed. Respectfully submitted, THOMAS, THOMAS & HAFER LLP By: /s/ Anthony T Bowser David L Schwalm (#32574) dschwalm@tthlaw.com Anthony T Bowser (#204561) abowser@tthlaw.com 305 North Front Street, 6th Floor PO Box 999 Harrisburg, PA 17108-0999 717.327.7100 (telephone) 717.237.7105 (facsimile) Attorneys for Defendants 4 OQae61.3t@2 ES12110J®odDe ntig001 Fi dcMCIP/44 Plagg€55 t 55 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of July, 2014, a true and correct copy of the foregoing notice of removal was served via email and first-class mail, postage prepaid, upon the following: Brian P. Downey, Esq. Kathleen A. Mullen, Esq. Pepper Hamilton LLP too Market Street, Suite 200 POB 1181 Harrisburg, PA 17108-1181 downeyb@pepperlaw.com mullenkCa?pepperlaw. coin. THOMAS, THOMAS & HAFER LLP By: /s/ Anthony T Bowser S E C T I 0 N A S E C T I 0 N OQaeel.3tgat JEElocJlkrnant 800111 FFRkid:Q 1 22/44 M301361300 Supreme Co Cou C CU Pennsylvania leas County For Prothonotary Use Only: Docket No: /1/ — 3.287 The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and serviceof pleadings or other papers as required by laww or rules of court. Commencement of Action: Petition Declaration of Taking El Complaint 0 Writ of Summons ■ 0 Transfer from Another Jurisdiction ■ Lead Plaintiffs Name: Rite Aid HDQTRS. Corp. Lead Defendant's Name: Orly Plastics Enterprise, Inc. Are money damages requested? 0 Yes ❑ No Dollar Amount Requested: El within arbitration limits (check one) outside arbitration limits Is this a Class Action Suit? 0 Yes O No Is this an MDJAppeal? ❑ Yes © No Name of Plaintiff/Appellant's Attorney: Brian P. Downey/Kathleen A. Mullen a Self -Represented [Pro Sej Litigant) ■ Check here if you have no attorney (are Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) ❑ Intentional ❑ Malicious Prosecution • Motor Vehicle ❑ Nuisance ❑ Premises Liability ❑ Product Liability (does not include mass tort) ❑ Slander/Libel/ Defamation ❑ Other: MASS TORT ❑ Asbestos ❑ Tobacco © Toxic Tort - DES ❑ Toxic Tort - Implant © Toxic Waste • Other: PROFESSIONAL LIABLITY O Dental ❑ Legal © Medical ❑ Other Professional: CONTRACT (do not include Judgments) El Buyer Plaintiff ❑ Debt Collection: Credit Card ❑ Debt Collection: Other • Employment Dispute: Discrimination ❑ Employment Dispute: Other Other: REAL PROPERTY ❑ Ejectment ▪ Eminent Domain/Condemnation • Ground Rent ▪ Landlord/Tenant Dispute El Mortgage Foreclosure: Residential ❑ Mortgage Foreclosure: Commercial ❑ Partition ❑ Quiet Title ❑ Other: CIVIL APPEALS Administrative Agencies O Board of Assessment [ Board of Elections ElDept. of Transportation Statutory Appeal: Other ❑ Zoning Board Other: MISCELLANEOUS ❑ Common Law/Statutory Arbitration ▪ Declaratory Judgment Mandamus Non -Domestic Relations Restraining Order 0 Quo Warranto El Replevin ❑ Other: Updated 1/1/2011 Oaae€13teQatelliGIEGJEbcDoIRrirtq00111 Fifildc00iAB2Y I4 Pagg€2a6800 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. /i -$ ! CIVIL : CIVIL ACTION — LAW 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 Orae 1.3tO23atEZ1XJE ocli m ntigOD 11 FiItldcOMIP 414 Pagg69336f300 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. CIVIL : CIVIL ACTION — LAW : JURY TRIAL DEMANDED 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 action dentro de los proximos veinte (20) dias despues de la notification 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 action 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 reclamation o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 Orilae€11310 atElf 3J®ocDat$.rrtig00111 FFfildW0MPY44 Plaggelzbtif300 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. CIVIL : CIVIL ACTION _ LAW : . JURY TRIAL DEMANDED COMPLAINT Plaintiff Rite Aid HDQTRS. Corp. ("Rite Aid"), by its undersigned attorneys, files this Complaint alleging as follows: PARTIES 1. Rite Aid is a Delaware corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Pennsylvania 17011. 2. Defendant Orly Plastics Enterprise, Inc. ("Orly Plastics") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. While Orly Plastics was dissolved by proclamation of New York law in 2011, it continues to operate through its principal Jacob Torkieh. 3. Defendant Orly Industry, Inc. ("Orly. Industry") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. Orly OQaelaC atall J®ocOouarrfig60r1 FIRIdcD01J 2/44 Pagg€55obf300 Industry is the successor company and/or alter ego to Orly Plastics. Jacob Torkieh is the principal of Orly Industry. JURISDICTION AND VENUE 4. This court has jurisdiction pursuant to 42 Pa.C.S. § 931(a). 5. Venue in this Court is proper because the cause of action arose in Cumberland County and a transaction or occurrence took place out of which the cause of action arose in Cumberland County. 6. Orly Plastics and Rite Aid have also agreed that any lawsuit brought with regard to any disputes between the parties must be venued in this Court. A true and correct copy of the Master Purchase Agreement ("MPA"), a valid and enforceable written contract, is attached to this Complaint as Exhibit A. While Orly Industry was not a signatory to the MPA, by its conduct it was an implied party to the MPA and relied upon the MPA. Accordingly, it is also subject to the venue clause of the MPA. RELEVANT FACTS THE PARTIES 7. Rite Aid is a national drug store chain with its principal office in Cumberland County, Pennsylvania. 8. At all times relevant to this Complaint, Orly Plastics and its successor company, Orly Industry, were involved in the manufacture, sale and distribution of plastic trash can liners ("liners"). 9. Orly Plastics and Orly Industry share, inter glia, the same address, phone number, facsimile number, email address, principal and computers and were essentially the same entity and/or alter egos of each other. -2- UlaelaaCOatalfiOUGJEDocDorentg00111 FFtd cOOMP144 PGagg€66 t B00 THE MASTER PURCHASE AGREEMENT 10. Rite Aid and Orly Plastics entered into the MPA effective August 1, 2010 pursuant to which Orly Plastics agreed to provide liners to Rite Aid for use by Rite Aid stores. The liners were to adhere to specific size, thickness and quantity specifications as described on page 2 of Attachment A of the MPA. See Exhibit A. These specifications were as follows: 40 x 46 LLDPE 1.25 Mil. Opaque blue, 100 bags per case 30 x 36 LLDPE 1.25 Mil. Opaque blue, 250 bags per case 30 x 37 HDPE 8 micron, Clear, 500 bags per case 43 x 48 HDPE 16 micron, Clear, 200 bags per case 11. Assuming that these required specifications were met, the liner cases would necessarily have the following weights: 40 x 46 blue 15.33 lbs. 30 x 36 blue 22.5 lbs. 30 x 37 clear 11.65 lbs. 43 x 48 clear 17.0 lbs. The parties never varied these required specifications through the time they dealt with each other. 12. Under the MPA, Orly Plastics was required to promptly carry out its obligations in accordance with the specifications provided and best industry practice and was required to use its best efforts in carrying out those obligations. See Exhibit A, § 2.4. Further, Orly Plastics was to provide goods of the best quality and to "provide all supervision, quality control programs, inspections, or verifications required to ensure compliance with this Agreement." Id. §§ 2.5, 2.6. While Rite Aid had the right to inspect the goods, it was not obligated to do so and acceptance of the goods by Rite Aid did not constitute any waiver of its -3- Oase€131@atMMIGJEDociDatentlq00111 FiiilddRingY44 PEIgge7 ibbfi00 rights under the MPA. See id. The parties agreed that if Rite Aid discovered that any liners do not conform to the requirements of the Agreement, Rite Aid would notify Orly Plastics which would, in turn, be required to correct any deficiency. See id. § 2.6. 13. The MPA specified that Rite Aid would issue purchase orders for the liners and that the terms of the MPA were incorporated by reference into each purchase order. See id. at 2.2. 14. With respect to payment, the MPA specified that Rite Aid would pay properly submitted invoices within 30 days after receipt of goods but that Rite Aid "may withhold any amounts which are disputed in good faith or may deduct any amounts for charges, costs, expenses or losses actually incurred as a result of defects in the Goods; late delivery; or any other noncompliance with applicable schedules, exhibits, attachments, drawings, data sheets, or specifications." See id. at § 3.4. The MPA further states that Rite Aid "shall have a right of setoff against any amounts due. a Supplier under this Agreement entered into hereunder, for all amounts due Rite Aid from Supplier regardless of the source of the obligation." Id. 15. The MPA further states that it "shall be binding on and shall benefit any and all successors, trustees, permitted assigns and other successors in interest of the Parties." 16. While the MPA expired on July 31, 2011, the parties agreed that it could be extended upon consent. The parties proceeded to transact orders for the supply of liners under the terms of the MPA beginning in August 2010 and.continued to do so through the fall of 2011. None of the specifications for the liners changed at this or any time. The price for the liners did change effective July 25, 2011 pursuant to changes in the Chem Data resin index as specified in the MPA. -4- alaeelageittalfi00B3JEDocOarcuitiq00111 FITikalcOWneff414 Pagg€88a6B00 ORLY'S NAME CHANGE 17. On August 1,2011, Orly Industry requested that "the name on file" be changed from Orly Plastics to Orly Industry. See letter attached hereto as Exhibit B. Orly Industry did not provide Rite Aid with, any new vendor paperwork or provide an Internal Revenue Service W-9 form, both of which would have been necessary if Orly Industry was a separate entity distinct from Orly Plastics. Accordingly, Rite Aid did not recognize Orly Industry as a new vendor and did not assign it a new vendor identification number. 18. Upon information and belief, Rite Aid asserts that the only reason Mr. Torkeih changed the name of the company is because Orly Plastics was dissolved for failure to pay New York state taxes and. Orly Plastics sought to escape its obligations and liabilities. 19. Upon information and belief, Rite Aid asserts that the assets of Orly Plastics and Orly Industry have been intermingled and thatcorporate formalities have not been observed for the two companies. 20. Orly Industry is the alter ego and/or the successor of Orly Plastics and. Orly Industry is liable for the conduct of Orly Plastics. 21. Orly Industry, as Orly Plastics' successor company, inherited all rights and obligations of Orly Plastics under the MPA. RITE AID DISCOVERS DEFENDANTS ARE SHORTING ORDERS 22. In the fall of 2011, Rite Aid began soliciting bids from various suppliers, including Orly Industry, for a new liner contract. 23. In the course of this process, Rite Aid became suspicious that Orly Industry and Orly Plastics were shortchanging Rite Aid with respect to the quantity and the weights on liner orders. As previously stated, if a case of liners was in conformance with the MPA specifications, each case of liners would have a uniform weight depending on its size. -5- alaee1310-atalf2X1B3JECiodDutairtigt30111 FIt dcDQZAQ2Y44 Plagg€991)1300 24. As a result of its suspicions, Rite Aid began weighing and/or counting the contents of random liner cases that were shipped to various distribution centers throughout the country. These random samples were systemically light in weight or short in count. Every liner case inspected by Rite Aid at this time was under the required weight and/or count. Some cases were as much as 37% short of the required weight. As such, these liner cases failed to meet the specifications under the MPA. Rite Aid believes and avers that both Orly Industry and Orly Plastics engaged in this shortchanging of orders since the inception of the MPA in August 2010. Based on Rite Aid's calculations of the remaining liner cases it has in inventory, Rite Aid was shortchanged by an average of 29.07% of what Rite Aid had paid and what Orly Plastics/Orly Industry was required to provide pursuant to the liner specifications of the MPA. In other words, for every dollar's worth of liners that Rite Aid paid through the life of the MPA, Orly Plastics and Orly Industry cheated Rite Aid on average of $.29. 25. Rite Aid contacted Mr. Torkieh in an attempt to resolve this issue and requested $200,000 representing a rebate for the amount it had then calculated it had been shortchanged. Significantly, Mr. Torkieh never denied Rite Aid's claim that it was short- changed. Rather, Mr. Torkieh simply promised that he would make it up to Rite Aid with various rebates in Orly Industry's proposal for a new contract and also relied upon the fact that Orly Plastics had not raised prices previously under the MPA. See Email from Jacob Torkieh dated November 16, 2011, attached hereto as Exhibit C. 26. As of September 28, 2011, Rite Aid had paid to Orly Plastics and Orly Industry a total of $724,824.20. After Orly Industry and Orly Plastics' shortchanging became apparent, Rite Aid placed a hold on paying all further invoices from Orly Industry. -6- alae€13L 23atE; iCO3J®odOotarrtia001U FlidddranQ2I44 PigiggEL@Qb6f300 27. In a letter dated December 19, 2011, Rite Aid Senior Buyer Richard O'Brien sent Mr. Torkieh a letter demanding repayment of the amount it had calculated in liner shortages and explaining that Rite Aid would not make payment on then -current invoices in its possession, which totaled $72,563.05 because of the dispute. A true and correct copy of this letter is attached as Exhibit D. Rite Aid also requested commencement of mediation proceedings pursuant to the Alternative Dispute Resolution provision of the MPA. See Ex. A, § 6.5. 28. Neither Orly Industry nor Orly Plastics responded to that letter within forty-five days as required by Section 6.5 of the MPA. Instead, Orly Industry commenced suit against Rite Aid in New York State Court in February 2012 seeking payment of the invoices that Rite Aid put on hold. Rite Aid removed this case to the United States Court for the Eastern District of New York (Orly Industry, Inc. v. Rite Aid HDQTRS. Corp., E.D.N.Y. Civ. No. 12- 855) where the case currently remains pending. 29. Based upon the amount Rite Aid paid to Orly Plastics and Orly Industry from the inception of the MPA through September 2011 and the average liner weight shortage of 29.07%, Rite Aid is entitled to a rebate in the amount of $210,706.33. Deducting the $72,563.05 amount in invoices put on hold by Rite Aid with a discount of 29.07% to account for Orly Industry's short orders, Rite Aid is owed $160,109.46. COUNT! BREACH OF CONTRACT OR IMPLIED CONTRACT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 30. Rite Aid incorporates the averments in paragraphs 1 through 29 above as if fully set forth herein. 31. As noted above, Rite Aid and Orly Plastics entered into the MPA whereby Orly Plastics agreed to supply Rite Aid with liners at agreed-upon specifications. Orly Industry took over Orly Plastics' obligations under the MPA in August 2011. Accordingly, Orly Industry -7- alaellaCI-EitalialEillEDocDoterrhC30111 Fff>i#dc00OM414 Pagg0L11o6f300 directly and/or through its predecessor and alter ego Orly Plastics was a party to the MPA which was valid and enforceable at all times relevant to the claims made in this litigation. To the extent Orly Industry is deemed not to be a party to the MPA, Orly Industry was a party to an implied contract with Rite Aid to supply liners pursuant to the specifications set forth in the MPA. A contract between Orly Industry and Rite Aid is inferred in light of the circumstances as alleged herein. 32. Orly Plastics and Orly Industry have breached the MPA and have directly and proximately caused Rite Aid damages in the amount of $160,109.46. 33. To date, Orly Plastics and Orly Industry owe Rite Aid $160,109.46. 34. Despite repeated requests, Orly Plastics and Orly Industry refuse to pay Rite Aid the amount Rite Aid is due. 35. Rite Aid has performed any and all conditions precedent under the MPA. 36. The conduct of Orly Plastics and Orly Industry is without excuse or justification. WHEREFORE, Rite Aid requests judgment in the amount of $160,109.46 plus interest, costs, attorneys' fees as provided in Section 6.5 of the Master Purchase Agreement and all other amounts deemed appropriate by the Court. COUNT II UNJUST ENRICHMENT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 37. Rite Aid incorporates the averments in paragraphs 1 through 36 above as if fully set forth herein. 38. In the event Defendants contend no contractual relationship exists, Rite Aid is entitled to recover the outstanding amounts it is owed to prevent Defendants from being unjustly enriched. -8- OGaeel3tEaat021 3JE ocDomntie0O111 FP dcOWKJ22l&4 Pagg€L226f300 39. Orly Plastics and Orly Industry have been unjustly enriched as a result of benefits conferred by Rite Aid. Specifically, Orly Plastics and Orly Industry have wrongfully accepted and retained monies paid by Rite Aid for liner shipments that were substantially less than what they should have been pursuant to the parties' understanding. 40. Orly Plastics and Orly Industry have each appreciated and been enriched by such benefits that rightfully belong to Rite Aid. 41. The retention of such benefits by Orly Plastics and Orly Industry is inequitable and unjust and has substantially damaged Rite Aid in the amount of $160,109.46. 42. Rite Aid is entitled to the amount of $160,109.46, plus interest, from Orly Plastics and Orly Industry under the doctrine of unjust enrichment. WHEREFORE, Rite Aid requests judgment in the amount of $160,109.46 plus interest, costs, and all other amounts deemed appropriate by the Court. Respectfully submitted, 7 Brian P. Downey (PA 59891) Kathleen A. Mullen (PA 84604) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 Telephone 717.238.0575 Fax downeyb@pepperlaw.com mullenk@pepperlaw.com Date: May 29, 2014 Attorneys for Plaintiff Rite Aid HDQTRS. Corp. -9- e�131A E 1�ii�J Jo( 0E4'4 Pkigge1333 )800 ailae€131@l-tittOCETEOJEDocEnyatatiq00111 FfitiddRIDGEL44 Ragge9.414)6800 MASTER PURCHASE AGREEMENT BETWEEN RITE AID HDQTRS CORP..AND ORIXPLASTICS ENTERPRISE, INC: This Master Purchase Agreement ("Agreement") is effective AtigtiSt 1.'20.10.by.and between.R1TE AID 1.1DQ'FRS, CORP.. a DelaWare.Coiporation. with offiCesat39 Hunter Lane. Camp Hill, :PA 17011 (-Rite 'A id-)" and ORLY .PLAST1CS .ENTERPRISE. INC:. a York Corporation located at 106 Lexington M,e..Brooklyn,'NY 11238. ("tipplier")and any attachments :hereto gate:000,ns and conditions:under which S:uppliershall.:ProVidegoods, ARTICLE! ...DEFINITIONS 1.1 "Goods" Means all products. equipment. materials' including but not limited to the manufacture of Plastic Trash Can Liners. as detailed in Attachment A. ARTICLE 2 SCOPE OF PERFORMANCE 21 Pin -pose and Supplierpualifications. The:purptise of this Agreement 'is tOsspecify the detailed terms and eonditions between the..partics. Supplier is engaged in the, business of producing Plastic Trash Can Liners and has the superviSoryand.qttalified personnel as well as applicable toolscquipmern, supplies: and materials necessary to provide:these Goods in ;ksafe, effiCient.and.competent manner; .Ifa.Supplier or itspersOnnell:Mest be licensed or certified under applicable laws regulations, or indu.strt pradiCes,:as:.a condition to 'providing Goods Supplier warrants that it possesses all required licenses or tertifiCatess.andthat:they. are in force and effect Supplier agrees tosFolloW all laWS. rides, andiOr regaations'appliCable.to its supply of Goods during its.perfonnance under this Agreement. 2.2 ScOne.of'Work. Foreach Goods Material purchased by Rite. Aid:under:this Agreement, a separate purchase order may be issued' by Rite.Aid. This Agreement shall be int Orporated by reference in each Rite Aid issued purchase order:a.5.iffully set forth therein. Absent a Rite Aid issued purchase order, Rite:Aid shall be under no:obligation to Supplier for payment. 2.3 .Contlictine Terms. Any applicable schedule; exhibit; attaehment, drawing, data sheet or specification attached to. this. Agreement is incorporated by rfe.r.encq, If the information. or terms,tOrinicton any oltheseincorporateddaeuments, they pre6it in the following order Of authority: schedules;:exhibits; attachments; drawings; data sneets;.and„specifipations. Any GOods, suppliestools.. equi onion. or materials not expressly cpv0r.00,i0 this Agreement which are fairly implied as.being required for thc.(krods:pre considered:included and required. 2.4 HiEhestfrOfessional Standards. Upon acceptance ofthe terms and conditions set forth in this Agreement. Supplier must promptly carryout the duties and.obligatioris. specified therein skillfully and safely: and in accordance with the applicable Schedules, exhibit'sattaehments. drawings. data sheets, and specifications and best' industrypr.adtiee.:. Supplier.niust.use its -hest efforts tOmeet any delivery or.coMpletion .deadlines.specined in this Agreernent, RA023 021EteElag&VCCUTIOJEDociknitatiq00111 FdWg7AQ2Z414 Piaggal5tf300 2.5 Hithest9ualitv Goods. AU Goods received andanrelated materials must be new..of the verybest-quaW, and subject to inspection and acceptance by Rite.Aid..AnY inspection or • acceptanee. bythe Rite Aid does not constiniteawaiverOf anyofits right under Agreement-orthe•rel ev ant -Contract. 2:6 It stiectiOn...; .Supp.lier rrtuSt provide all. 5uper.V.i.i.o.i!,.4141)..ity:eoritt91.prpgram's,.:itivcctio0§; or vet-A:cations:required to ensure: coinpliance:With thi AgreeMerit. At any reasonable time Rite Aidhastheright, hut not the ohhganon to verifyStippliees-comPliance with .this Agreement. At any reasonable time, Supplier must permit Rite Aid's representative :free access to its facilities and if applicable its vendor's facilities., and must furnish any information Rite Aid reasonably requests regarding theveri fication. or inspection.. If Rite Aid. discovers any Goods, supplies, �r materials that do not, conform.to the requirements of this Agreement. Rite Aid will promptly notify Supplier in writing. Supplier must arrange the satisfactorily correction ofany deficiency within a thirty (30) days, andat its own expense. If Supplier fails to do so., Rite Aid Maysterminate this -agreement without recotirse. 1.7 Temtiorarv-Permits...Supplier must .obtain any temporary permits or lieenses as required. in connection. with supplying Rite Aid the Cioodsat its owncoSt-ondexpenSe.. 2.8 Agreement Tern, Extensions: The term: of this's:Agreement:begins On Augusth.2010,•and• ends on -July •51:- 2011, subject:to the termination provisions under Sectioris.6.4.'.and Agreement may be extended. by the mutual written consent ofthe parties. ARTICLE 3 ,PRICING, 'DELIVERY, PAYMENT 3.• I ..Priehig. Supplier will be paid -for the Goods according to. the applicahlepricingproyisions set:forth in,this 'Agreement under Attachment A, 1.2 .CompetitiVe:Pricint. Ifbeforea Supplier proVideS,'GoadS!.anotber.Vendor Offers:Rite Aid Goods..of equal quality at a price lowerthanthat.specified,herein.04:gite: Aid furnishes satisfactory evidence- of the .lOwer- price, then Supplier musteithomeet theprice, btiRite;Aid. may obtain theGoods from the other V en4or and deduct the quantity of Goods from the quantity specified herein. 3.3 Price .Reductions: If Supplier reduces:its pries' to others"for .equivalent GoOckdtuirtg the teirt.of this Agreement or any contract, Supplier immediately notify Rite-Aidand:reduce the prices to Rite Aid. 3.4 . Pawilent. Rite Aid will pay properly submitted • invoices within ;30. days after receipt of Goods Rite Aid may withhold:any amounts Which are:disputed:in good faith. or may deduct any amounts for charges. costs. expe,nses or losses actually incurred as a result of defects in. the (loads; late delivery or any other noncoMpliance,withappliCable scheduks exhibits .attachments i drawings, data sheets. or specifications. Rite Aid 41.01..u.wvopd.faiTh efforts to procure compliance with their payment obligations under this AgreeMenf. Rile Aid shall. have a right -Of setoff against any aptcruntsduea Supplier:under this'Agreement: entered.into RA02: ORaed.Waat01600,33JEDlociknitntiq00111 FifildcDMOMI4 Plaggatheitf300 hereunder.fOr alt amounts duc Rite Aid from Suppliet regardless of thesouree•of the obligation. Unlessotherwise agreed in Writing ,Riit.Aid Will not accept or pay any invoices dated prior to deliVetyOf Goods. 3.5 Audit. Rite Aid reserves the right to audit Supplier's invoice s uPon thirtY :(30) clays written notice. 3.6 Order Ouantities/ProCess. All order quantities will be in full pallets. Rite Aid Will order in full pallet: quantities only. ARTICE.4 -1PROPRIETARI' RIGFITS 4.1 IntelleettaalProperty.:All intelleetual arid property rights including patents; regiStered:deSigns.,:trademarks, service markS, copyrights or any other form of intellectual or industrial property rights subsisting at:any time in respect of items developed by Supplier for Rite Aid (and all such rights in respect of any subsequent modifications of such items) are to vest in and remain with Rite Aid. Supplier shall take all necessary steps (at no cost to Rite Aid) to ensure that all of the rights referred to in this...Clause are formally vested in Rite Aid and that any moral rights attaching to any relevant material are waived in favorof Rite Aid. 4.2 COnfidentiality. This Agreement and its contents are confidential to:the parties and. except as set out below, shall not be disclosed to third parties by either party without the express 'written consent Oithe other pany. If during the course of petformande tinder this Agreement the parties are exposed to confidential information the parties agree tokeepany such Confidential information strict! yconlidential,'to the extent allowed by law; 4.3 Indemnity for Intellectual Properly Claims. Supplier shall indentify, defend and hold Rite Aid harmless from any and all claims of intellectual property infringement in accordance with Paragraph 68. ARTICLE s- RELATIONSHIP OF PARTIES 5.1 Independent Parties. Rite Aid and Supplier are and shall remain independent contrattors, and none of the Provisions in this Agreement shall he construed to create a partnership or joint venture between the panics. Each Party shall be remain solely responsible for wages, hours, taxes, tax withholdings, and all other conditions of employment Ofits.oWn:perSonnel during the term of this Agreement. Nothing contained herein shall be construed as implying that employees of either Party are employees of the other Party for any purpose Whatsoever,. including, without limitation. participation in the benefits or priv\ileges given or extended by such Other Party to its employees. No right or authority is granted to either Party to assume or to create any obligation or reSpmisibility. expressed' or implied. on behalraf or in thename the other Party. 5.2 If g;1#w or:nut:align mandates :a report or otherdoeument that mot, he. signed pi:certified by 'RiteSuPplier =1st consult with Rite Aid to assure full cOmpliance: RA02: alae€13tg2titt012310JEDociDointing00111 FikkIdA7KI2Yal4 FIEliggel/MBOO ARTICLE 0.-C.ENERAL PROVISIONS 6.1 Termination. Either party may terminate thissAgreernent. withot 'without:cause, by giving 60 Days.ad varlet, written notice to the other party. In the -event of such termination Rite Aid, Supplier will .be compensated for all outstanding invOicesand for 'any Goods for which Supplier has not been reimbursed. Supplier agrees that it shall nOt be entitled other claimed amounts ; including but not limited to directi..indirect. consequential,.10s.of profits, paniti.ve:or.exemplary damages whatsoever. 6.2 :Assignment Supplier may not assign this 'Agree Consent of Rite Aid; 63 Rerireseritatives. Each party must appoint one.or MorerepreseritativeS prOroptly after signing this Agreement and disclose to the other party the :scopeof its rep sent, authority with respect to this Agreement or any related Contract entered into in accordance With this Agreement. Each party niayreplace or supplement its representative by giving ptior written notice to the other party. ut obtaining:the prior written 6.4 Notices. All. notices•onder this Agreement are COnsidered:giVenif deli:tiered, in:v;,Titing Per400411Y or by Courier, or 'sent by electronic transmission or facsimile to Rite Aktpr:to Supplier at the address set forth below • Any notice given by U S mail is U.S:considered given 5 days after the notice is: depoSited, iii the U.S. mail. postageprepaid..AddieSseS. fie notice are:: if the notice is to Rite Aid: Rite Aid FrpOTRS. CORP. Rich O'Brien Senior Buyer Indirect Procurement Group 30 :HunterLane Camp Hill, PA 1701'1 Facsimile: 717-731-4734 With ii copy to: Rite,Aid1710QTRS..-CORP. Attn: Legal Department 30 Hunter Lane Camp Hill,PA 17011 Facsimile: 717-975-5976 RA02: Clafle€1.314-atelliOtifOJEloclikiatn1ia00111 FikiddnlkieP144 Plagg€18036800 lithe notice is to Supplier: Jacob Torkieh *President 106 Lexington Ave. Brooklyn,:NY 11238 Friesiirill& 718-399-7175 6.5 AlternativeResolutiOn. Ekcept•as:provided action with respect any dispute, claim or controversyarisine-out of or relating to this Agreement that is below $250,000 May be commenced until the matter ha been submitted for mediation to a mediator acceptable to -both parties. Either party may request the cornmencement of mediation proceedings by providing to the other party a written request for mediation setting forth the subject of the dispute and.the relief reqUested. The parties Shall then, Within thirty (3O)days,. mutually agree upon the selection ofarnediator. If the parties do not agxec.to the..seleetion of a mediator, thedispute shall be Mediated: by Georgea. Faller Esquire at the law firm of Manson, Deardorff Williams, Otto; Gilroy ,& falter, 10 East Street Carlisle PA 1.7013, for non-binding mediation. The parties covenant that they will participate irirthe mediation in .good faith, and that.thcy will share equally, in its costs and expenses.: The partieS:agree to split the mediator's fee. All offers. promises, conductand.Staternents; Whether oral or Written; made in the course of the mediation by any of the parties, theiragents,.employees;, experts and attorneys, and by the mediator, arc confidential, privileged and inadmissible for any purpose, including.impcachment, in any litigation or other•proceeding.involving the parties,, provided that ,evidence that is otherwise admisSible or discoverable shall.not.be rendcred:iriadrniSsible or non -discoverable as a result of its usein the mediation. Either party may seek equitablerelief prior to die mediation to preserve the statussqua.pendingthetorripletion ofthatprocess provided that such a -claim is tiled in the Court ci(COnimon Pleas of Cumberland ton*, Pennsylvania.. Except for such an action to obtain equitable relief; neither party may commence a. civil action with respect to the matters subniined;to mediation untitallerthe: completion of the initial me.diationsession„ or ,45 'days after-1hp. date of filing the written request for mediation, whichever occurs first. The panics *agree, that:Anr such civil action must be brought in the...Court of Common Picas of Cumberland County Pennsylvania Mediation may continue after commeneementof a civil action; if the parties so desire. The provisions.of this Paragraph may be enforced by the Court of Cornmon 'Pleas ofCumberland County Pennsylvania. and the party seeking en foreement.Shall be entitled to an award of .all costs, 'fees and expenses, including attorneys" fees. to be paid by thepartY against whom enfortertient is ordered. Any tlispute, claim or controversy arising out Of or ri.-latitik:to this Agreenient that or the tireach, termination, enforcementinterpretation or validity, thereof. that is in excess of $..250,Q00.00, including the determination of thescopeiOr applicability of this agreement to arbitrate, shall be determined by arbitration in Camp Hill. Pennsylvania. before one JAMS RA023 021.ae€131@a-atelIKRIDJEEdoalunititiNClall FcDO7JQP/414 Pagg€119A1300 arbitrator to be agreed by both parties..The arbitration shall be administered by.JAMS pursuant to it Streamlined Arbitration Rules and Procedures. Judgment ontheAward.may be entered in an court having jurisdiction This el:aukshall no(preelude;parties'froM seeking provisional. remedies in aid of arbitration from tite Court of Commnn Pleas of Cumberland CoUnty, Pennsylvania. 6.6.GoverninE.Law and Venue. This Agreernent and all..Contracts.ientered.intobergunder.are govepled by the .lawS of the ConuncawealthofPetuisylVartia.. without iegardtOits conflicts of law .rules. Any disputes ,between the parties not :Object to Paragraph 6,5 shall 'be brought. exclusively in the Court of Common Pleas:for CurnberlatidCOUnty,Perinsylvania. 6.7 Insurance. Supplier shall purchase and i*ntilin,with insurance companies approved by Rite Aid, such insurance as will protect .Supplier andRite Aid and:all .01i)ers that:Rite Aid: requests be named as Additional insureds at Supplier's sole cost and expense (and with.gite Aid having no :liability for prerrii urns or other costs of from claims set: forth•helow. which may arise out ofor result from Supplier's provision of GoOds:unclOqiiisAkreetnent, whether such .operations be by Supplier or by an subcontractor or by anyone directly or.. indirectly employed by .any of them. or by anynne:for whose acts any of diem itnay.e.liable: (a) claims under workers' or workmen's corripensatiOn. disability benefit and other similarrempleyeebenekacts; (b) claims for darnagesbecause ofbodily.injury,occupational sickness.or disease;. or death ofSupplier's employees:, (c)claims for damages. becauseof bOdily injury' ;:sickness or disease..ordeath of any person other than'S.upplieesemployees;. (d) claimsfor damages which are sustained.(i).hy,anyperstinas'a restAtof an incident directly: or indirectlyrelatedio the employment of such person. by Supplier. or (ii) by any other:person; (c) daiins fordarnages, other than to the work perfOrrnedunder this Agreement itself, because of injury to or:destructiOn ortangible property, including. loss of use resulting therefrorn; and claims for damages 'because of bodily injury.or.death Of any person or property damage arising out of the .ownership, maintenance. or use: ofany motor vehicle. The insurance. required by Subparagraph 6..7(a) shall'.be:w.ritten. tilt not :less Than, Statutory The insurance. required by Subparagraph:6.7(h) thrOugly(F)shall tic NAiritteti for riot less:Mart $3,00Q.000.00. in addition 'to -the insurance requirements set forth above.iSopplier will, at .Suppliers expense. obtain and. keep in force and effect during the term of this Agreement an • excess/umbrella liability. insurance policy .of an additional .S5000.000.00 naming Rite Aid asan .Additional Insured. RA0231 021.sed.3101itteafirROJECIocDattirrtiq00111 FREIcfnlin2!al4 Plagge200)6800 Certificates of Insurance (in duplicate),acceljtable to. Rite Aid Shall befiled:WithRite Aid prior to commencement this Agreement. Such certificates shelfbe addressed to Rite Aid at its address and shall show that all of the irisuratiOcrequited by Paragraph 6.7 (other than workmen's compensation insurance) identifies Rite Aid, and such other persons and entities as shall be requested by Rite Aid as Additional Insureds. Supplier shall be solely respotisible fOr any premiums associated with the coverages requested in Paragraph 6-7. Insurance certificates shall,include aprovisidn for not less than 30 days' advance Written notice by itheksutet to Rite Aid in the event of cancellation or reductionof such insurance, 6.8 indemnification. Supplier agrees to defend, indemnify, and hold. Rite:Aid hatmleSsfrom and against any and all claims, 1OSses, damages, jitdgmenti, liabilities, and costs (including reasonable attorney's fees and expenses) of any kind'or nature Or that are asSertedaiising directly or indirectly from Supplier's provision of Goods under this Agreement, including any violations of any federal, state and/or local laws and/or Ordinances and including any Claiinsof bodily injury or death to any person or from damage:to or destruction of any property, arising from or related to Supplier's acts or omissions. 6.9 Non Exclusivity. Nothing expressly or impliedly contained herein or in any Contract shall be deemed to give rise to or constitute any exclusivity of purchase or supply or in any way prevent Or restrict Rite Aid or any Rite Aid from purchasing Goods which are similar or identical to the Goods from any source whatsoever or in way prevent a Supplier from supplying or offering to supply Goods to any person. 610 Force Maienie. No Party shall be responsible for any failure tO perform its:obligations under this Agreement if such failure is caused by acts of God, laws or governmental regulations acts of terrotistii, or other causesthat are beyond that party's control. 611 Several:linty, If any provision or the seope of any proVision of this Agreement isfound to be unenforceable or too broad by judicial decree, the Parties agree that suet' provisions shall be curtailed only to the extent necessary to conform to law to permit enforcement of this Agreement to its full extent. 6.12 Entire Agreement; No Reliance. Each of the.parties agreesand acknowledges that this Agreement (i:) constitutes the entire agreement and supersedes all prior, and contemporaneous agreements; understandings, negotiations and discussions, whether oral or written, among the parties with respect to the subject matter of this Agreement, and (ii) is not intended to confer any rights or remedies, or impose any obligations. on any person other than the Parties hereto. Each of the Parties expressly agrees and acknowledges that, other than those statements expressly set forth in this Agreement, it is not relying on any statement, whether oral or written, of any person or entity with respect to its or his entry into this Agreement or to the consummation of the transactions contemplated by this Agreement. RA024 ORae61.31flutElf2ADJECiodDotentig00111 FRIEIWO1JQ2/414 Pagg2106880 6:13 Amendments and. Modifications. This Agreement may .be..mtidi fled only by a. written agreement:signed.: bylvth.Parties. 6.14 Successors. and Assigns, This .Agreement shall 1,0binding!on and shall 17en4t.apyand all successors, trustees,perrnitted assigns and other successors in interest of the PattieS, 6.15 Counterparts. This Agreement maybe ekecuted'in one or enofetounterparts..all of which shall constitute one and the same Agreement. Rite Aid HD R.S. CORP. By: AMIW, eigi7 Title: Date: :Cody Plastic.s Enteepri.5e; Inc. Bv: Name: Date: F- .5-- 10 RA024 al.aeaa@a-etCQ11110JEOodDouirrtia00111 RideIcOMM44 Plagge222)(A300 ATTACHMENT A Scope of Work: Item Item Price 475.774 Clear Hag. s ,tX .F Micron. 200 hags 'case $.11,15 es 4757”6 Clear f3itg. 7,7 HDPE H Micron. 500 ha S7.30 es Pricing is guaranteed t'or siN.(6) months froth date ofinitialorder. t.after pricing s ill ret iewed quarterly NNith consideration given to ChenDaa ReSin Index,. the..fuly 2010 Chem Data Price of S59.50 elb t%•ill he used as a baseline flit any future quarterly price increases or decreases. Pricing adjust ncnts v‘ill only be considered ifthe price Changes. by .02 per pound t$2.00 c/11.9. All changeSwill he submitted in ‘% riling withappropriate supporting documentation for Rite Aid review. RA024 OREieentgaiatalfiDWIEDocEio-carMg00111 FfiddcOM22/44 Ragge233A800 Can Liner Specs 40 x 46LLOPE 1.25 Mil. Opaque blue, 100 bags per case 30 x.36 'LLDPE 1.25:Mil, Opaque blue, 250 bags percase 30 )5'37 HOPE 8:mica:in, Clear, 500 bags per case 43 x 48 HOPE 16 micrOh, Clear, 200 bags per case RA024 OQae La &t JEJodi ouunia@fl11 FFfi kelc00ZJQ2Y44 Plagg62bf300 Oaae€1.31@et0162)10JECiodDotenti00111 FirdElcOMG2Y44 Ragge2S5:61300 • CIRLIVIWILSTIRV nit 106 LIktl(INCtON .AVE 11.11001CLYN.:;W:11130 7 i 6499431 I i18419IN71175: :August 1. 2)l Dear. Mr. Obrien. We arc requesting a name change from our,current:oaine.on file, which is Oily Plastic l:flterprise: to Orly Industry inc.. IC there are any further question8vplease.do .not heitate.to contact us. Sincerely. RA024 0089©90 p ZTT09P 0 Oaaed.31gi atEA&3J®od outrtig00 11 Fffddc0017J02/44 Pagge2Zbt f300 Page 1 of 1 Subj: Re: (no subject) Date: 11/16/2011 10:30:02 A.M. Eastern Standard Time From: torkiehfliaol.com To: . MKRZollo:Pao!.con; Dough, .._. .�...... I have reviewed the proposal, and here is what i propose. With this proposal i am only trying to maintain the relationship, and save Rite aid money. Rite aid's claim is 200000, if we were to follow the contract there is a $67000, which is due to us and have not been billed, and we are proposing another 50000 rebate that will bring it up to 117000 which is pretty significant amount of money. Not to mention the current prices we are giving them is 20% below market price --Original Message -- From: MKRZoIIo <MKRZollo@aol.com> To: torkieh <torkieh@aol.com> Sent: Wed, Nov 16, 2011 6:57 am Subject: (no subject) Please review Sunday, February 12, 2012 AOL: MKR Zollo MKR 0006 ORae€1131@a-at Qfial3J®od m tig001n1 FREIWWJ22144 Pagg€28W6f300 Oaaed.31@a-atOIEDIOJECloatoutritt00111 FfithEldR77AP2(44 Plagg€2991)800 RITE RITE AID Corporation December 19. 2011 Orly Plastics. Enterprise, Inc. 106 Lexington Avenue Brooklyn. NY 11238 Attn: Jacob Torkieh Mr. Tot -kick -• ItitAiLiNG ADDRESS Pd. Box 3165 Harrisburg, PA 17105 GENE114.OFFICE ...30 :Hunter 144ile Carn.p kit. :FA 17011' Please be adVised:that RiteAid •Hdqtrs. Cop. ('Rite Aid") has detenninedlprodUct Shipped by Oily Plastic :Enterprise, Inc, ( aely) has been below specificatiOnS, as detailed in our Master Services Agreement of August 1„2610.("Agreement7), This is A breach of the A:greement between Rite Aid. and Orly. Specifically, a shortage hasbeen de/ermined:by both the -case weight and the numerical count of bags. Product has been sampled by Rite Aid associates, and Orly's:sales representative. Orly also admits this in its proposal submitted on November 17, 2011. RiteAld'iS seeking repayment of $200,311. This amount is What Rite Aid has determined tabeithe amount of bag shortages for the past 12 months In accordance with Section 3.4 of the Agreement, Rite; Aid will not make payment on disputed Shipments; and will hold payment of $72,563.05: iricurrent inVpiees. Under Seetion 6.1, the Agreement can be terminated:upon sixty (60) daysiwritten notice. However, this Agreement has already ekpired, Moreover. in.accordance with Section6.5, Rite Aid requests the commencement of Mediation:proceeding to.address Orly's breach of the Agreement. Please advise who Orly will appoint as the mediator. If you wish to settle this matter in an amicable manner. please.contact me the next five (5).business.days. Richard O'Brien Senior Buyer cc: Ron S. Chirna, Senior Counsel RA034 alae€41.3t€Q-at01101110JEllodornalirtiq001.11 FiliidcDMIEL44 Pagg€80036800 VERIFICATION I, Richard O'Brien, hereby state that I am a Senior Buyer for Rite Aid Hdqtrs. Corp. and am authorized to make this verification on its behalf. I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that the statements in the foregoing document are made subject to the , penalties of 18 Pa. C.S. § 4909 relating to unsworn falsification to authorities. Dated: May a g , 2014 ichard O'Brien 011aeela@latElfil3EGJEDodikrairrtiq00322 FReldVIAP/44 Plaggaloo66 RITE AID HDQTRS. CORP, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. : NO. 14-3289 CIVIL ORLY PLASTICS ENTERPRISE, INC. : CIVIL ACTION — LAW and ORLY INDUSTRY, INC. Defendants : JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE PURSUANT TO PA. R.C.P. 405 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND • • SS: THE UNDERSIGNED, Kathleen A. Mullen, being duly sworn according to law, does depose and say as follows: 1. I am a competent adult and an attorney duly admitted to the Bar of the Supreme Court of the Commonwealth of Pennsylvania, having Attorney Identification Number 84604. 2. On June 3, 2014, I caused the Complaint to be served upon defendant Orly Industry, Inc. by the mailing of a true and correct copy of the Complaint to the defendant's principal place of business by United States certified mail, return receipt requested, postage prepaid, addressed as follows: Orly Industry, Inc., 106 Lexington Avenue, Brooklyn, NY 11238. • • < aQaed2g2;atal JEDocl louur 00122 Fi ddR10e2V 4 Piagge22:b66 3. I received the return receipt, which was delivered and accepted at Orly Industry, Inc., 106 Lexington Avenue, Brooklyn, NY 11238., on June 6, 2014, by or on behalf of the defendant, thereby completing service pursuant to Pa. R.C.P. 403. The original return receipt signed by or on behalf of the defendant is attached hereto as Exhibit "A". Respectfully submitted, Brian P. Downey (PA 59891) Kathleen A. Mullen (PA 84604) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 Telephone 717.238.0575 Fax dovvneyb@pepperlaw.com mullenk@pepperlaw.com Date: June 12, 2014 Attorneys for Plaintiff Rite Aid HDQTRS. Corp. SWORN TO AND SUBSCRIBED BEFORE ME THIS 12TH DAY OF JUNE, 2014. COMMONWEALTH OF PENNSYLVANIA Notarial Seal Kimberly Kelly Perez, Notary Public City of Harrisburg, Dauphin County My Commission Expires Aug. 21, 2015 MEMBER, PENNSYLVANIA ASSOQATION OF NOTARIES -2- 4aelaeQ3t@1-WQ16M3JEDocDooirmg6flg22 FF dc0M02I&4 Fliaggd33.b66 .i.JSPS.comtaltibittilftfritiOleaDJEDodikneritiCitA22 FiftleldRKKanill Pagge44bb66 Page 1 of 2 English Customer Service USPS Mobile Register 1 Sign In USPS.COM' Quick Tools USPS Tracking TM Usemame Create a USPS.com account to... • prLnt shipping labels. Search USPJ.corn O�irreck Paickepes Subr request a ackage I p. • buy stamps and shop. • managgPQ Boxe tlusinBss olu�ions • print customs forms on ine. •S file domestic insurance claims Him: It's at least 7 charade '�blutlynstorrf�r S"ervl�e a letter and number. 1`�V/)1 Have questions? We're here to help. Password Ship a Package Send Mail Manage Your Mail Shop Tracking Number: 70092250000037079205 Sign In Forgot your password? Product & Tracking Information Available Actions Postal Product: June 6, 2014, 12:08 pm Features: Certified Mail' Delivered BROOKLYN, NY 11238 Your item was delivered at 12:08 pm on June 6. 2014 in BROOKLYN. NY 11238. June 6, 2014 , 10:02 am Out for Delivery BROOKLYN, NY 11238 June 6, 2014 , 9:52 am Sorting Complete BROOKLYN, NY 11238 June 6, 2014 , 9:12 am Arrival at Unit BROOKLYN, NY 11238 June 5, 2014 , 5:24 am Depart USPS Son Facility BROOKLYN, NY 11256 June 5, 2014 , 1:58 am Processed through USPS • BROOKLYN, NY 11256 Sort Facility June 4, 2014 , 8:59 pm Depart USPS Sort Facility FLUSHING, NY 11351 June 4, 2014 , 4:59 pm Processed through USPS FLUSHING, NY 11351 Sort Facility June 4, 2014 , 1:38 am Depart USPS Sort Facility HARRISBURG, PA 17107 June 3, 2014 , 9:10 pm Processed through USPS HARRISBURG, PA 17107 Sort Facility Track Another Package Where your tracking (or receipt) number? Track It Text Updates Email Updates LEGAL ON USPS.COM ON ABOUT.USPS.COM OTHER USPS SITES Privacy Policy Terms of Use FOIA No FEAR Act EEO Data Government Services Buy Stamps b Shop . Print a Label with Postage Customer Service i Delivering Solutions to the Last Mile Site Index auspszoM' CopyrightC12014 USPS. All Rights Reserved About USPS Home , Newsroom , USPS Service Alerts i Forms S Publications Careers i Business Customer Gateway Postal Inspectors i Inspector General i Postal Explorer • National Postal Museum https://tools.usps.com/go/TrackConfirmAction.action?tRef=fullpage&tLc=1 &text28777=... 6/12/2014 alseElagOateCEIMJEDocDouirrtlq00a22 FFdcOONB2Yai•4 PlaggE65Dt 66 SENDER: COMPLETE THIS SECTION ■ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery 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 mailpiece, or on the front if space permits. 1. Article Addressed to: Orly Industry, Inc. 106 Lexington Avenue 'Brooklyn, NY 11238 COI' 't t rr I HIS SECTION ON DELIVERY A. Signature X v, _000, ❑ Agent D Addressee C. Date of Delivery D. Is ivery address' different from item 1? 0 Yes If YES, enter delivery address below:. 0 No 3. Service Type Certified Maly El Priority Malt Express"' ❑ Registered 1$I Return Receipt for Merchandise ❑ Insured Mall Q Collect on Delivery 4. Restricted Delivery? (Dara Fee) 0 Yes 2. (T icle Numri 11111 iansfe tyomseY►%It labII t f 70.09 :'22`50 ' 00o 3707 ` 9205 PS Form 3811, July 2013 Domestic Retumitegitpt OaaKL3t@2atO1 xi 3J H]ocDmmiti Ofl 22 FFFddcDMQ21 &4 Flaggizaob66 CERTIFICATE OF SERVICE I hereby,certify that on June. 12, 2014, a copy of the foregoing document was served by United States mail, first class postage prepaid, addressed as follows: Orly Industry, Inc. 106 Lexington Avenue Brooklyn, NY 11238 Kathleen A. Mullen (PA 84604) rlo 1S 44 (Rev. 12/12) Orae€13tA1-atalEa JH,ocDotent 00333 Fi#delcOm1, P/414 Pf21ggU obt1 CIVIL COVER SHEET The IS 44 civil cover sheet and the information contained herein neither replace not supplement the tiling and service of pleadings or other papcn as required by law, except to provided bX local roles of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEEINSTRUC7IONS ON NEXT PAGE OFTHJS FORM.) (a) PLAINTIFFS RITE AID HDQTRS. CORP, (b) County of Residence of First Listed Plaintiff CUMBERLAND (EXCEPT IN U.S. PLAINTIFF CASES) (C) Attorneys (Firm Name, Address, and Telephone Number) Brian P. Downey, Esq., Pepper Hamilton, LLP 100 Market Street, Suite 200 Harrisburg, PA 17108-1181 717-255-1155 DEFENDANT ORLY PLASTI ENTERPRISE, INC. and ORLY INDUS County of Residence of First Listed Defendant KINGS COUNTY Y, INC. (Of 4.1.4 PLAIN77FFCASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED, Attorneys of)otouts) Anthony T. Bowser, Esq. Thomas, Thomas & Hafer, LLP POB 999, Harrisburg, PA 17105-0999 717-237-7100 ASIS OF JURISDICTION (vatea, A-ln CAreltoxtlnh) O l U.S. Government 0 3 Federal Question Plaintiff (I/.,S Gmtronment Not a Pony). 0 2 U.S. Goventment �/ 4 Diversity Defendant t/ (Judicate GNscnata , of Portia in Rem II!) III. CITIZENSHIP OF PRINCIPAL PARTIES (Plate as X" htCAwBeznfarNewt' (For Ditrraity Cares Only, and Ort* Box for Defendant) PTF DEP PTP DEF Chinon of This State f7 I Cl I Incorporated or Principal Place 4 fl 4 of Business in This State Citizen of Another State 0 2 0 2 Incorporated and Principal Place D S �5 of Business In Another State Citizen or SubJect of a O 3 0 3 Foreign Nation Foreign Casnnv O 6 D6 IV. NATURE OF SUIT (P1, l .CONTeNcr TORTS, FORFEITURVPENAL'pY ' BANKRUPTCY OTBERSTATUTES D 110Insurance I) 120 Marine O 130 Milles Aet O 140 Negotiable loteumeal 0 150 Recovery of Overpay/nerd & Enforcement of lodgment O 15l Medicare Act 0 152 Recovery of Defaulted Student Loans (Excludes Veterans) 0 153 Recovery of Overpayment of Veteran's Berman O,jbO Stockholders' Suits 90 Other Connect Cl 195 Contract Product /lability O 196 Frnnchisc PERSONAL INJURY PERSONAL INJURY 0 310 Airplane Cl 365 Personal lgjuuy • O 315 Airytime Product Product Liability Liability O 367 Health etre 0 320 Assault Libel & Pbarmaeeutical Slander Personal lijtuy 0 330 Federal Employes' Product Liability Liability O 368 Asbestos Personal 0 340 Marine lojtry Product Cl 345 Marine Product Liability Liability PERSONAL PROPERTY Cl 350 Motor Vehicle 0 370 Other Fraud O 355 Motor Vehicle 0 371 Truth in Lending Product Liability 0 380 Other Personal O 360 Other Personal Property Damage injury 0 385 Property Damage 'D O 362 Personal Injury - Product Liability Medical MalpsaClits CI 625 Drug Related Seizure of Property 11 USC gal O 690 Oder O 422 Appeal 28 USC 153 0 423 Withdrawal 28 USC 157 O 375 Fate Claims Act f7 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce PROPERTV'TtIGHIS Cl 820 Copyrights 0 830 Parent O 840 Trademark 0 460 Deportation 0 470 Racketeer Influenced and Camrpt Organizations 0 480Ceatsutnet Credit Cl 490 Cable/Sat TV 0 850 Securities/Commodities! Exchange 0 890 Other Statutory Anions 0 191 Agpicuhoral Acts O 893 Erwironintand Macias 895 Freedom of Irdorwatiam Act Cl 896 Arbitration Cl 899 Administrative Procedure Act/Review of Appeal of Agency Ikciaitm CI 950 Constitutionality of Slate Statutes : a R SOCIAL SE6wer7X' O 710 Fait Labor Standards Act D 720 LabodMaatr ement Relations O 740 Railway Labor Aer O 751 Family and Medical Leave Act O 790 Ocher Labor litigation O 791 Employee Retirement Income Security Act 0 861 HIA (139511) 0 862 Black Lung (923) D B63 DIWCIDiWW (405(g)) 0 864 SSR) Title XVI O 865 RSI (405(g)) 1 REAL'.PROPRR1L CML mars O 440 Other C ivll Rights Cl 441 Voting 0 44I Employment O 443 Housing/ Accammodatitan O 445 Amer. w/D'uabilitic, - Employment CI 446 Amer. w/Dieibilitien - Other O 448 Education ' PRIBONB.atET llwl' ONS Habeas Corpus: Cl 463 Alien Detainee O 510 Motions to Vacate Sentence Cl 530 General O 535 Om& Penalty Other: ' 0 540 Mandamus & Other 0 350 Civil Rights O 555 Prison condition r7 560 Civil Detainee . Conditions of Contimmtent fob RAlt iARiSUT S O 210 Land Condemnation Cl 220 Foreclosure Cl 230 Rent Lease & Cjectmem O 240Torn to Land ri 245 Ton Product Liability O 290 All Other Real Ptopt,,ty , O 870 Taxes (U.S. Plaintiff or Defendant) 0 871 IRS --Third Party I6 USC 7609 ThSMIGAATION 0 462 Naturalization Application n 46.5 Other im,nigration Amiens V. Uf(It,aLN (Pl 0 1 Original Proceeding "X^ ht ono RnrOnly) Removed from State Conn 0 3 Remanded from Appellate Court 0 4 Reinstated or Cl 5 Transferred from O 6 Mufidistrict Reopened Another District Litigation Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes sinless dieersht): 7 tf e S � 3 3 Z VL CAUSE OF ACTION Brief description of cause: )) /r 11 V � at 0 w)1(-0 t.7` VH. REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION DEMAND f COMPLAINT: UNDER RULE 23. F.R.CvP. VIII. RELATED CASE(S) CHECK YES only if demanded in complaint: JURY DEMAND: O Yea O No IF ANY (see nnmKnontl; JUDGE DOCKET NUMBER JUDGE MAG. JUDGE Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RITE AID HDQTRS. CORP., Plaintiff, v. ORLY PLASTICS ENTERPRISE, INC., and ORLY INDUSTRY, INC., Defendants. 1:14-cv-1276 Hon. John E. Jones III MEMORANDUM November 20, 2014 Four motions are presently pending before the Court in this action: Plaintiff's Motion to Remand to State Court; Defendants' Motion to Dismiss; Plaintiff's Motion for Leave to Amend the Complaint; and the Motion of Thomas Thomas & Hafer LLP to Withdraw as Counsel for Defendants. Based on the discussion herein, the Court will remand this matter to the Court of Common Pleas of Cumberland County and, accordingly, abstain from adjudicating the other motions. I. FACTUAL BACKGROUND This action, sounding in breach of contract and unjust enrichment, involves certain transactions between Plaintiff, Rite Aid HDQTRS. Corp. ("Rite Aid"), a I Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 2 of 13 Delaware corporation with a principal place of business in Pennsylvania, and Defendants, Orly Plastics Enterprise, Inc. and Orly Industry, Inc., based in New York. According to the Complaint, Rite Aid and Orly Plastics entered into a Master Purchase Agreement (the "MPA". or the "Agreement") effective August 1, 2010, and expiring July 31, 2011, pursuant to which Rite Aid agreed to purchase plastic trash can liners ("liners") from Orly Plastics. (Doc. 1-1, ¶¶ 10, 16). Although the MPA expired on a date certain, it could be "extended by the mutual written consent of the parties." (Id. Ex. A; ¶ 2.8). The Agreement delineated certain size, thickness, and quantity specifications for the liners. (Id. ¶ 10). In terms of the parties obligated under the MPA, it stated that it "shall be binding on and shall benefit any and all successors, trustees, permitted assigns and other successors in interest of the Parties." (Id. ¶ 15). It also contained an alternative dispute resolution ("ADR") clause and a provision stating that the Agreement would be governed by the laws of Pennsylvania and that litigation not subject to ADR "shall be brought exclusively in the Court of Common Pleas for Cumberland County, Pennsylvania." (Id. ¶ 6; Ex. A, ¶ 6.6). The parties' transactions commenced in August 2010 and continued through the fall of 2011. (Id. ¶ 16). On August 1, 2011, Orly Industry requested that "the name on file" with 2 Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 3 of 13 Rite Aid be changed from Orly Plastics to Orly Industry. (Id. 1117). As no new vendor paperwork was filed and an IRS W-9 form was not provided, Rite Aid did not treat Orly Industry as a new vendor but as the alter ego of Orly Plastics. (Id.). Rite Aid maintains that Orly Plastics and Orly Industry shared the same address, phone number, facsimile number, email address, principal, and computers, and were essentially the same entity or that Orly Industry was the successor of Orly Plastics. (Id. ¶¶ 9, 20).' In the fall of 2011, Rite Aid became suspicious that Defendants were shortchanging Rite Aid with respect to the quantity included in and the weights of the liner shipments. (Id. ¶ 23). Random inspections of cases of liners revealed that all of the examined cases were light in weight and/or short in count. (Id. ¶ 24). Rite Aid believes and avers that Defendants had been deficiently fulfilling its orders since the .inception of the MPA; by its calculations, Rite Aid was shortchanged by an average of 29.07% of what Rite Aid had paid and what Defendants were required to provide under the MPA. (Id.). Rite Aid thereafter contacted Defendants' principal, Mr. Jacob Torkieh, in an effort to resolve the issue and requested $200,000, the amount Rite Aid believed ' According to Rite Aid, Orly's name change was the result of the dissolution of Orly Plastics after it failed to pay New York state taxes and sought to escape liability. (Id. ¶ 18). 3 Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 4 of 13 it was owed. (Id. ¶ 25). Mr. Torkieh did not deny the allegation but, instead, outlined various ways Orly Industry would "make it up" to Rite Aid. (Id.). As of September 28, 2011, Rite Aid had paid Defendants a total of $724,824.20. (Id. 1126). After it became apparent that Defendants had been defrauding them, Rite Aid ceased payment on all further invoices from Orly Industry. (Id.). Rite Aid's Senior Buyer sent a letter to Orly Industry dated December 29, 2011, demanding repayment in the amount it had calculated in liner shortages, advising that it would not make payments on the then -current invoices which totaled $72, 563.05, and requesting mediation pursuant to the MPA's ADR clause. (Id. 1127). Orly Industry never responded to the letter and filed a lawsuit against Rite Aid in state court in New York seeking payment of outstanding invoices. (Id. ¶ 28). Rite. Aid removed the case to the United States Court for the Eastern District of New York and thereafter filed a motion to dismiss. (Id.; see Orly Industry, Inc. v. Rite Aid HDQTRS. Corp., No. 12-855 (E.D.N.Y.)). On August 23, 2013, the New York district court issued an order granting the motion in part on improper venue grounds. (Doc: 6-2). The court reasoned that the MPA's mandatory forum selection clause governed those transactions predating the expiration of the Agreement (i.e., the purchases occurring before July 31, 2011) and that, even 4 Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 5 of 13 though Orly Industry was a nonsignatory to the MPA, it was bound by the same because it was closely related to Orly Plastics. (Id. pp. 8-10). Since no written consent had been executed extending the Agreement, the court determined that the transactions post-dating July 31, 2011 were not covered by the MPA and, thus, that its forum selection clause was inapplicable to those later purchases. (Id. p. 8). Following the district court's decision, Rite Aid answered the pleading and asserted counterclaims based on breach of contract and unjust enrichment. The post -expiration purchases continue to be litigated in the New York district court. In the instant matter, Rite Aid advances claims sounding in breach of contract or implied contract (Count I) and unjust enrichment (Count ¶¶ 30-42). It calculates damages as follows: II). (Doc. 1-1, Based upon the amount Rite Aid paid to Orly Plastics and Orly Industry from the inception of the MPA through September 2011 and the average liner weight shortage of 29.07%, Rite Aid is entitled to a rebate in the amount of $210,706.33. Deducting the $72,563.05 amount in invoices put on hold by Rite Aid with a discount of 29.07% to account for Orly Industry's short orders, Rite Aid is owed $160,109.46. (Id. ¶ 29). II. PROCEDURAL HISTORY Rite Aid commenced this action by filing a Complaint (Doc. 1-1) in the Cumberland County Court of Common Pleas, Pennsylvania, on May 30, 2014. 5 Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 6 of 13 Defendants removed the action to this -Court on July 2, 2014, based on diversity jurisdiction. (Doc. 1). In the period following removal, the parties filed four motions, all of which are pending and described below in the order that they were submitted. A. Plaintiffs Motion to Remand to State Court On July 3, 2014, one day after this matter was removed to this Court, Rite Aid filed a Motion to Remand to the Court of Common Pleas of Cumberland County and a supporting brief. (Docs. 5, 6). Rite Aid argues that the MPA's forum selection clause mandates that all litigation be filed in the Cumberland County Court of Common Pleas. As additional support, Rite Aid cites the Memorandum and Order of the Eastern District of New York, which indicated the Cumberland County court as the appropriate forum to litigate transactions occurring before the expiration of the MPA and, also, determined that Orly Industry was bound by the MPA as the successor to Orly Plastics. (Doc. 6-2). In addition, Rite Aid seeks fees and costs associated with the removal. Defendants respond that Rite Aid's claims in the instant matter mirror the counterclaims it advanced in the Eastern District of New York, and that, by filing such counterclaims, Rite Aid waived its right to enforce the forum selection clause of the MPA. In Defendants' words, "Rite Aid's only concern is an adverse ruling 6 Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 7 of 13 on the merits of its counterclaims in the New York Action. Rite Aid filed its suit in Cumberland County to hedge against such an adverse ruling by seeking an inconsistent judgment on the same claims." (Doc. 11, p. 7). B. Defendants' Motion to Dismiss Also on July 3, 2014, Defendants filed a Motion to Dismiss and a brief in support. (Docs. 7, 8). As alternative relief, Defendants seek transfer of the case to the Eastern District of New York. Similar to their opposition of the Motion to Remand, Defendants argue that the claims Rite Aid forwards in the instant Complaint are the same as the counterclaims Rite Aid has asserted in the New York action, involving transactions both prior and subsequent to the expiration of the MPA. Defendants maintain that the first -filed rule dictates that the New York litigation should have priority as, in their view, the cases involve the same parties and issues, and, if both actions proceeded, could result in inconsistent judgments. In answer to any contention that pre -expiration transactions are excluded from the New York action, Defendants highlight that, although Orly Industry's claims occurring before the expiration of the MPA were dismissed, Rite Aid's counterclaims in that matter appear to encompass such pre -expiration transactions, and those counterclaims remain pending. Defendants highlight that Rite Aid's pleading here details transactions occurring after the expiration of the MPA and Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 8 of 13 that it includes Orly Industry as a party, although Rite Aid had no dealings with Orly Industry while the MPA remained in force. In opposition, Rite Aid contends that the Pennsylvania case involves a party that is not in the New York matter — namely, Orly Plastics - and different subject matter, i.e., the transactions between the parties which preceded the expiration of the MPA. Rite Aid highlights that the New York court dismissed the pre - expiration transactions for lack of venue and, later, expressly stated in a discovery order that the transactions `.`governed by the [MPA]'s venue provisions .. are not properly before this Court." (Doc. 12-3, p. 6). In any event, inasmuch as the instant Complaint appears to capture transactions occurring after July 31, 2011 because of certain "drafting issues," Rite Aid agrees that those disputes are not properly part of this litigation. (Doc. 12, p. 2). C. Plaintiffs Motion to, Amend Complaint Rite Aid filed a Motion for Leave to Amend the Complaint on October 23, 2014 (Doc. 21), and, five days later, a brief in support (Doc. 22). The proposed amendments clarify that Rite Aid's instant claims pertain only to the parties' dealings from August 1, 2010, until July 31, 2011, the period that the MPA remained in force. Rite Aid states a diminished damages claim "in an amount in excess of $75,000." (Doc. 21-2, ¶ 33). In support of its motion, Rite Aid centrally Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 9 of 13 asserts that the proposed amendment will not prejudice Defendants as it adds no new facts or legal theories but merely clarifies the contours of the present claims. Although opposition papers were due on November 11, 2014, none have been submitted. D. Counsel for Defendants' Motion to Withdraw as Counsel On November 12, 2014, counsel for Defendants, Thomas Thomas & Hafer LLP ("TT&H"), filed a Motion to Withdraw as Counsel and a supporting brief (Docs. 23, 24). TT&H represents that, except for an initial retainer fee held in trust, Defendants have not remitted full payment for legal services rendered, and unpaid invoices have accrued in excess of $13,000.00. Defendants' principal, Mr. Torkieh, has explicitly expressed that Defendants do not intend to honor their obligation to pay the outstanding fees. TT&H has advised Defendants in writing that unless payment is remitted, TT&H will be forced to move the Court to withdraw as counsel. Furthermore, apparently Defendants and TT&H have been unable to agree upon the legal actions required to defend this action, including responding to discovery. In addition to leave to withdraw as counsel, TT&H moves this Court to modify certain case management deadlines. As to Defendants' position, TT&H avers that Defendants have not objected to the filing of the instant motion for leave to withdraw as counsel and that 9 Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 10 of 13 Defendants are in the process of obtaining new lawyers. Also, counsel for Plaintiff concurs in the motion insofar as TT&H seeks leave to withdraw but disagrees with certain scheduling proposals. III. DISCUSSION In evaluating the web of issues before us, we turn first to the primary question of whether adjudication is appropriate in this tribunal, in other words, whether this Court has proper venue. Generally speaking, a forum selection clause binds the contracting parties to a specific venue or jurisdiction. See 92A C.J.S. § 14. The existence of such clause does not affect a court's subject matter jurisdiction but, rather, directs a court to abstain from exercising it. See Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1212 n. 7 (3d Cir. 1991). These clauses are prima facie valid, entitled to great weight, and should be implemented unless the opposing party shows that enforcement would be unreasonable. See M/S Bremen v. Zapata Off -Shore Co., 407 U.S. 1, 10 (1972); MTR Gaming Grp. v. Arneault, 899 F. Supp. 2d 367, 373 (W.D. Pa. 2012). "If a defendant has removed a case in violation of a forum selection clause, remand is the appropriate and effective remedy for the wrong." PGT Trucking, Inc. v. Lyman, 500 Fed. Appx. 202, 204 (3d Cir. 2012) (citing Foster, 933 F.2d at 1217 (3d Cir. 1991)). 10 Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 11 of 13 Here, it is undisputed that the MPA contains a mandatory forum selection clause requiring litigation to proceed in the Cumberland County Court of Common Pleas. Further, Defendants do not challenge the clause on reasonableness grounds. Rather, the gravamen of Defendants' contention is that Rite Aid has waived the forum mandate by advancing counterclaims in the Eastern District of New York: Contrary to Defendants' view, Rite Aid has not waived its right to enforce the forum selection clause. Had Rite Aid initiated the action in New York, our analysis might be different. Cf MTR Gaming, 899 F. Supp. 2d at 375 ("When a party chooses to file suit upon a contract in an unauthorized venue in direct contravention to the contract's forum selection clause, it is not surprising that courts would infer the party's abandonment of its rights under the forum selection provision."). However, simply put, it was Defendants — not Rite Aid — that filed the New York action. Rite Aid defended that suit on the primary basis that an action to enforce rights under the MPA must comply with the Agreement's forum selection provision. (See, e.g., Doc. 6-2, p. 6). It was only when the district judge ruled that various of the transactions in issue were not governed by the MPA — and dismissed those transactions effectuated during the life of the Agreement — that Rite Aid was constrained to file counterclaims in the New York tribunal. In other words, the only claims remaining in the New York action are those determined to 11 Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 12 of 13 be outside of the MPA and its forum selection clause. It strains logic that Rite Aid could waive its rights under the Agreement in litigating an action that is not subject to it. Having determined that Rite Aid did not waive its rights under the forum selection clause of the MPA, we hold that the clause must be enforced consistent with the parties' bargain. As Rite Aid's Complaint seeks to enforce its rights pursuant to the MPA, we remand this matter to the Cumberland County Court of Common Pleas.' Turning to Rite Aid's request for payment of fees and costs, we note that we have "broad discretion" to grant such an award, Mints v. Educ. Testing Serv., 99 F.3d 1253, 1260 (3d Cir. 1996), and may appropriately do so "only where the removing party lacked an objectively reasonable basis for seeking removal," Lott v. Duffy, No. 13-1580, 2013 WL 5876977, at *3 (M.D. Pa. Oct. 20, 2013) (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005)) (internal quotation marks omitted). While Defendants' rationale for removal based on waiver may 2 Parenthetically, Defendants' argument that the Complaint as initially filed encompasses transactions outside of the MPA is not unfounded. For example, Rite Aid's damages calculation appears to include the totality of the parties' dealings and was not limited to those transactions occurring between August 1, 2010, and July 31, 2011. (Id. ¶ 29). That being said, through briefing and a proposed amendment to the pleading, Rite Aid has clarified that it seeks to recover only for purchases falling squarely within the MPA, reinforcing that venue is proper in the Court of Common Pleas for Cumberland County. 12 Case 1:14-cv-01276-JEJ Document 25 Filed 11/20/14 Page 13 of 13 have been thin and ultimately lacked merit, we do not view it as utterly "frivolous" or "insubstantial." South Annville Twp. v. Kovarik, No. 13-1780, 2014 WL 2864898, at *2 (M.D. Pa. June 24, 2014) (quoting Siebert v. Norwest Bank Mn., 166 Fed. Appx. 603, 607 (3d Cir. 2006)) (internal quotation marks omitted). Thus, we decline the fees request. Lastly, because we direct the removal of this action, we are restrained from adjudicating the remaining motions. See generally Foster, 933 F.2d at 1216 (explaining that, once the district court determined that the forum selection clause barred the defendant from removing the action, "it would have been committing clear error—and violence to the parties' contract—had it nevertheless continued to hear the case").3 An appropriate Order shall issue. 3 It is with reluctant but necessary discipline that we refrain from ruling on Rite Aid's motion for leave to amend its pleading, which we view as non -prejudicial and salutary, and, also, TT&H's motion for leave to withdraw as counsel. The latter motion is notably concurred -in and appears meritorious, see, e.g., Max -Urn Fin: Holding Corp. v. Moya Overview, Inc., No. 88-6345, 1990 WL 136380, at *1 (E.D. Pa. Sept. 19, 1990) (permitting counsel to withdraw where clients failed to fulfill their obligation to pay their lawyers for services rendered and had no plans for the payment of future fees), and it is regrettable that Defendants' counsel must remain in this action for the time being. We are confident that these motions will be easily disposed of by the Court of Common Pleas. 13 Cumberland County Prothonotary 1 Courthouse Square Room 205 Carlisle, PA 17013 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-3289 CIVIL : CIVIL ACTION — LAW : JURY TRIAL DEMANDED C) r 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 RITE AID HDQTRS. CORP, 30 Hunter. Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-3289 CIVIL : CIVIL ACTION — LAW : JURY TRIAL DEMANDED 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 accion dentro de los proximos veinte (20) dias despues de la notificacion 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 accion 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 reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA' LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE. OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-3289CIVIL : CIVIL ACTION — LAW : JURY TRIAL, DEMANDED AMENDED COMPLAINT Plaintiff Rite Aid HDQTRS. Corp. ("Rite Aid"), by its undersigned attorneys, files this Amended Complaint alleging as follows below. A copy of this Amended Complaint showing all changes from the original Complaint filed in this action is attached as Exhibit 1. PARTIES 1. Rite Aid is a Delaware corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Pennsylvania 17011. 2. Defendant Orly Plastics Enterprise, Inc. ("Orly Plastics") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. While Orly Plastics was dissolved by proclamation of New York law in 2011, it continues to operate through its principal Jacob Torkieh. 3. Defendant Orly Industry, Inc. ("Orly Industry") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. Orly Industry is the successor company and/or alter ego to Orly Plastics. Jacob Torkieh is the principal of Orly Industry. JURISDICTION AND VENUE 4. This court has jurisdiction pursuant to 42 Pa.C.S. § 931(a). 5. Venue in this Court is proper because the cause of action arose in Cumberland County and a transaction or occurrence took place out of which the cause of action arose in Cumberland County. 6. Orly Plastics and Rite Aid have also agreed that any lawsuit brought with regard to any disputes between the parties must be venued in this Court. A true and correct copy of the Master Purchase Agreement ("MPA"), a valid and enforceable written contract, is attached to this Complaint as Exhibit A. While Orly Industry was not a signatory to the MPA, by its conduct it was an implied party to the MPA and relied upon the MPA. Accordingly, it is also subject to the venue clause of the MPA. RELEVANT FACTS THE PARTIES 7. Rite Aid is,a national drug store chain with its principal office in Cumberland County, Pennsylvania. 8. At all times relevant to this Complaint, Orly Plastics and its successor company, Orly Industry, were involved in the manufacture, sale and distribution of plastic trash can liners ("liners"). -3- 9. Orly Plastics and Orly Industry share, inter alia, the same address, phone number, facsimile number, email address, principal and computers and were essentially the same entity and/or alter egos of each other. THE MASTER PURCHASE AGREEMENT 10. Rite Aid and Orly Plastics entered into the MPA effective August 1, 2010 pursuant to which Orly Plastics agreed to provide liners to Rite Aid for use by Rite Aid stores. The liners were to adhere to specific size, thickness and quantity specifications as described on page 2 of Attachment A of the MPA. See Exhibit A. These specifications were as follows: 40 x 46 LLDPE 1.25 Mil. Opaque blue, 100 bags per case 30 x 36 LLDPE 1.25 Mil. Opaque blue, 250 bags per case 30 x 37 HDPE 8 micron, Clear, 500 bags per case 43 x 48 HDPE 16 micron, Clear, 200 bags per case 11. Assuming that these required specifications were met, the liner cases would necessarily have the following weights: 40 x 46 blue 15.33 lbs. 30 x 36 blue 22.5 lbs. 30 x 37 clear 11.65 lbs. 43 x 48 clear 17.O lbs. The parties never varied these required specifications through the time they dealt with each other. 12. Under the MPA, Orly Plastics was required to promptly carry out its obligations in accordance with the specifications provided and best industry practice and was required to use its best efforts in carrying out those obligations. See Exhibit A, § 2.4. Further, Orly Plastics was to provide goods of the best quality and to "provide all supervision, quality -4- control programs, inspections, or verifications required to ensure compliance with this Agreement." Id. §§ 2.5, 2.6. While Rite Aid had the right to inspect the goods, it was not obligated to do so and acceptance of the goods by Rite Aid did not constitute any waiver of its rights under the MPA. See id. The parties agreed that if Rite Aid discovered that any liners do not conform to the requirements of the Agreement, Rite Aid would notify Orly Plastics which would, in turn, be required to correct any deficiency. See id. § 2.6. 13. The MPA specified that Rite Aid would issue purchase orders for the liners and that the terms of the MPA were incorporated by reference into each purchase order. See id. at 2.2. 14. With respect to payment, the MPA specified that Rite Aid would pay properly submitted invoices within 30 days after receipt of goods but that Rite Aid "may withhold any amounts which are disputed in good faith or may deduct any amounts for charges, costs, expenses or losses actually incurred as a result of defects in the Goods; late delivery; or any other noncompliance with applicable schedules, exhibits, attachments, drawings, data sheets, or specifications." See id. at § 3.4. The MPA further states that Rite Aid "shall have a right of setoff against any amounts due a Supplier under this Agreement entered into hereunder, for all amounts due Rite Aid from Supplier regardless of the source of the obligation." Id. 15. The MPA further states that it "shall be binding on and shall benefit any and all successors, trustees, permitted assigns and other successors in interest of the Parties." 16. While the MPA expired on July 31, 2011, the parties agreed that it could be extended upon consent. The parties proceeded to transact orders for the supply of liners under the terms of the MPA beginning in August 2010 and continued to do so through the fall of 2011. None of the specifications for the liners changed at this or any time. The price for the liners did -5- change effective July 25, 2011 pursuant to changes in the Chem Data resin index as specified in the MPA. ORLY'S NAME CHANGE 17. On August 1, 2011, Orly Industry requested that "the name on file" be changed from Orly Plastics to Orly Industry. See letter attached hereto as Exhibit B. Orly Industry did not provide Rite Aid with any new vendor paperwork or provide an Internal Revenue Service W-9 form, both of which would have been necessary if Orly Industry was a separate entity distinct from Orly Plastics. Accordingly, Rite Aid did not recognize Orly Industry as a new vendor and did not assign it a new vendor identification number. 18. Upon information and belief, Rite Aid asserts that the only reason Mr. Torkeih changed the name of the company is because Orly Plastics was dissolved for failure to pay New York state taxes and Orly Plastics sought to escape its obligations and liabilities. 19. Upon information and belief, Rite Aid asserts that the assets of Orly Plastics and Orly Industry have been intermingled and that corporate formalities have not been observed for the two companies. 20. Orly Industry is the alter ego and/or the successor of Orly Plastics and Orly Industry is liable for the conduct of Orly Plastics. 21. Orly Industry, as Orly Plastics' successor company, inherited all rights and obligations of Orly Plastics under the MPA. RITE AID DISCOVERS DEFENDANTS ARE SHORTING ORDERS 22. In the fall of 2011, Rite Aid began soliciting bids from various suppliers, including Orly Industry, for a new liner contract. 23. In the course of this process, Rite Aid became suspicious that Orly Industry and Orly Plastics were engaged in a pattern of shortchanging Rite Aid with respect to -6- the quantity and the weights on liner orders from the inception of the MPA in August 2010. As previously stated, if a case of liners was in conformance with the MPA specifications, each case of liners would have a uniform weight depending on its size. 24. As a result of its suspicions, Rite Aid began weighing and/or counting the contents of random liner cases that were shipped to various distribution centers throughout the country. These random samples were systemically light in weight or short in count. Every liner case inspected by Rite Aid at this time was under the required weight and/or count. Some cases were as much as 37% short of the required weight. As such, these liner cases failed to meet the specifications under the MPA. Rite Aid believes and avers that both Orly Industry and Orly Plastics engaged in this shortchanging of orders since the inception of the MPA in August 2010. Based on Rite Aid's calculations of the remaining liner cases it has in inventory, Rite Aid was shortchanged by an average of 29.07% of what Rite Aid had paid and what Orly Plastics/Orly Industry was required to provide pursuant to the liner specifications of the MPA. In other words, for every dollar's worth of liners that Rite Aid paid through the life of the MPA, Orly Plastics and Orly Industry cheated Rite Aid on average of $.29. 25. Rite Aid contacted Mr. Torkieh in an attempt to resolve this issue and requested $200,000 representing a rebate for the amount it had then calculated it had been shortchanged. Significantly, Mr. Torkieh never denied Rite Aid's claim that it was short- changed. Rather, Mr. Torkieh simply promised that he would make it up to Rite Aid with various rebates in Orly Industry's proposal for a new contract and also relied upon the fact that Orly Plastics had not raised prices previously under the MPA. See Email from Jacob Torkieh dated November 16, 2011, attached hereto as Exhibit C. -7- 26. As of September 28, 2011, Rite Aid had paid to Orly Plastics and Orly Industry a total of $724,824.20. After Orly Industry and Orly Plastics' shortchanging became apparent, Rite Aid placed a hold on paying all further invoices from Orly Industry. 27. In a letter dated December 19, 2011, Rite Aid Senior Buyer Richard O'Brien sent Mr. Torkieh a letter demanding repayment of the amount it had calculated in liner shortages and explaining that Rite Aid would not make payment on then-current invoices in its possession, which totaled $72,563.05 because of the dispute. A true and correct copy of this letter is attached as Exhibit D. Rite Aid also requested commencement of mediation proceedings pursuant to the Alternative Dispute Resolution provision of the MPA. See Ex. A, § 6.5. 28. Neither Orly Industry nor Orly Plastics responded to that letter within forty-five days as required by Section 6.5 of the MPA. Instead, Orly Industry commenced suit against Rite Aid in New York State Court in February 2012 seeking payment of the invoices that Rite Aid put on hold. Rite Aid removed this case to the United States Court for the Eastern District of New York (Orly Industry, Inc. v. Rite Aid HDQTRS. Corp., E.D.N.Y. Civ. No. 12- 855) where the case currently remains pending. That Court will address the parties' claims and counterclaims with respect to post-July 31, 2011 transactions. 29. As of July 31, 2011, Rite Aid paid to Orly Plastics and/or Orly Industry a total of $593,273.80. Based upon the amount Rite Aid paid to Orly Plastics and/or Orly Industry from the inception of the MPA through July 31, 2011 and the estimated shortages occurring on orders that had been fully paid as of July 31, 2011, Rite Aid is entitled to damages in the amount of $172,464.69. COUNTI BREACH OF CONTRACT OR IMPLIED CONTRACT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 30. Rite Aid incorporates the averments in paragraphs 1 through 29 above as if fully set forth herein. 31. As noted above, Rite Aid and Orly Plastics entered into the MPA whereby Orly Plastics agreed to supply Rite Aid with liners at agreed-upon specifications. Orly Industry took over Orly Plastics' obligations under the MPA in August 2011. Accordingly, Orly Industry directly and/or through its predecessor and alter ego Orly Plastics was a party to the MPA which was valid and enforceable at all times relevant to the claims made in this litigation. To the extent Orly Industry is deemed not to be a party to the MPA, Orly Industry was a party to an implied contract with Rite Aid to supply liners pursuant to the specifications set forth in the MPA. A contract between Orly Industry and Rite Aid is inferred in light of the circumstances as alleged herein. 32. Orly Plastics and Orly Industry have breached the MPA by their conduct from August 1, 2010 until July 31, 2011 and have directly and proximately caused Rite Aid damages in the amount of $172,464.69. 33. To date, Orly Plastics and Orly Industry owe Rite Aid $172,464.69 for shortages based on orders made from August 1, 2010 through July 31, 2011. 34. Despite repeated requests, Orly Plastics and Orly Industry refuse to pay Rite Aid the amount Rite Aid is due. 35. Rite Aid has performed any and all conditions precedent under the MPA. 36. The conduct of Orly Plastics and Orly Industry is without excuse or justification. -9- WHEREFORE, Rite Aid requests judgment in an amount of $172,464.69 plus interest, costs, attorneys' fees as provided in Section 6.5 of the Master Purchase Agreement and all other amounts deemed appropriate by the Court. COUNT II UNJUST ENRICHMENT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 37. Rite Aid incorporates the averments in paragraphs 1 through 36 above as if fully set forth herein. 38. In the event Defendants contend no contractual relationship exists, Rite Aid is entitled to recover the outstanding amounts it is owed to prevent Defendants from being unjustly enriched. 39. Orly Plastics and Orly Industry have been unjustly enriched as a result of benefits conferred by Rite Aid. Specifically, Orly Plastics and Orly Industry have wrongfully accepted and retained monies paid by Rite Aid for liner shipments from August 1, 2010 through July 31, 2011 that were substantially less than what they should have been pursuant to the parties' understanding. 40. Orly Plastics and Orly Industry have each appreciated and been enriched by such benefits that rightfully belong to Rite Aid. 41. The retention of such benefits by Orly Plastics and Orly Industry is inequitable and unjust and has substantially damaged Rite Aid in an amount of $172,464.69. 42. Rite Aid is entitled to the amount of $172,464.69 plus interest, from Orly Plastics and Orly Industry under the doctrine of unjust enrichment. WHEREFORE, Rite Aid requests judgment in the amount of $172,464.69 plus interest, costs, and all other amounts deemed appropriate by the Court. -10- Respectfully submitted, Brian P. Downey (PA 59891) Kathleen A. Mullen (PA 84604) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 Telephone 717.238.0575 Fax downeyb@pepperlaw.com mullenk@pepperlaw.com Date: November 25, 2014 Attorneys for Plaintiff Rite Aid HDQTRS. Corp. MASTER PURCHASE AGREEMENT BETWEEN RITE AID HDQTRS. CORP. AND ORLY PLASTICS ENTERPRISE, INC. ibis ivlaster Purchase Agreement ("Agreement") is effective August 1.2010 by and between RITE All) IIDQTRS. CORP.. a Delaware Corporation. with offices at 30 Hunter Lane. Camp Hill, PA 17011 ("Rite Aid") and-ORLY PLASTICS ENTERPRISE. INC.. a New York Corporation located at 106 Lexington Ave. Brooklyn, NY 11238. ("Supplier") and any attachments hereto state the terms and conditions under which Supplier shall provide goods. ARTICLE 1 - DEFINITIONS 1.1 "Goods" means all products, equipment. materials including but not limited to the manufacture of Plastic Trash Can Liners. as detailed in Attachment A. ARTICLE 2 - SCOPE OF PERFORMANCE 2.1 Purpose and Supplier Qualifications. The purpose of this Agreement is to specify the detailed terms and conditions between the parties. Supplier is engaged in the business of producing Plastic Trash Can Liners and has the supervisory and qualified personnel as well as applicable tools. equipment. supplies. and materials necessary to provide these Goods in a safe, efficient and competent manner. If a Supplier or its personnel must be licensed or certified under applicable laws, regulations, or industry practices, as a condition to providing Goods. Supplier warrants that it possesses all required licenses or certificates and that they are in full force and effect. Supplier agrees to follow all laws. rules, and/or regulations applicable to its supply of Goods during its perlbnnance under this Agreement. 2.2 Scope of Work For each (.foods material purchased by Rite Aid under this Agreement, a separate purchase order may be issued by Rite Aid. This Agreement shall be incorporated by reference in each Rite Aid issued purchase order as if fully set forth therein. Absent a Rite Aid issued purchase order. Rite Aid shall be under no obligation to Supplier for payment. 2.3 Conflicting Terms. Any applicable schedule, exhibit, attachment. drawing. data sheet. or Specification attached to this Agreement is incorporated by reference. If the information or terms conflict on any of these incorporated documents, they prevail in the following order of authority: schedules; exhibits; attachments; drawings; data sheets; and specifications. Any Goods. supplies. tools, equipment. or materials not expressly covered in this Agreement which are fairly implied as being required for the Goods are considered included and required. 2.4 Highest Professional Standards. Upon acceptance of the terms and conditions set forth in this Agreement. Supplier must promptly carry out the duties and obligations specified therein skillfully and safely. and in accordance with the applicable schedules. exhibits. attachments. drawings. data sheets, and specifications and best industry practice. Supplier must use its hest efforts to meet any delivery or completion deadlines specified in this Agreement. RA0234 ?.5 Highest Quality (roods. All (foods received and any related materials must be new. of the very best quality. and subject to inspection and acceptance by Rite Aid. Any inspection or acceptance by the Rite Aid does not constitute u waiver of any of its rights under this Agreement or the relevant Contract. 2.6 Inspection. Supplier must provide all supervision, quality control programs. inspections, or verifications required to ensure compliance with this Agreement. At any reasonable time Rite Aid has the right, but not the obligation. to verify Supplier's compliance with this Agreement. At any reasonable time, Supplier must permit Rite Aid's representative free access to its facilities and if applicable. its vendor's facilities, and must furnish any information Rite Aid reasonably requests regarding the verification or inspection. If Rite Aid discovers any Goods, supplies. or materials that do not conform to the requirements of this Agreement, Rite Aid will promptly notify Supplier in writing. Supplier must arrange the satisfactorily correction of any deficiency within a thirry (30) days, and at its own expense. II -Supplier fails to do so, Rite Aid may terminate this agreement without recourse. 2.7 Temporary Permits. Supplier must obtain any temporary permits or licenses as required in connection with supplying Rite Aid the Cioods at its own cost and expense. 2.8 Agreement Terni, Extensions. The term of this Agreement begins on August!, 2010, and ends.on July 31. 201subject to the termination provisions under Sections 6.1 and 6.2. This Agreement may he extended by the mutual written consent of the parties. ARTICLE 3 • PRICING, DELIVERY, PAYMENT 3.1 Pricing., Supplier will be paid for the (foods according to the applicable pricing provisions set forth in this Agreement under Attachment A. 3.2 Competitive Pricing. If bclhre a Supplier provides Goods, another vendor offers Rite Aid Goods of equal quality at a prig: lower than that specified herein and Rite Aid furnishes satisfactory evidence of the lower price, then Supplier must either meet the price, or Rite Aid may obtain the Cioods from the other vendor and deduct the quantity of Goods from the quantity specified herein. 3.3 Price Reductions. If Supplier reduces its prices to others for equivalent Goods during the term of this Agreement or any contract. Supplier must immediately notify Rite Aid and reduce the prices Rite Aid. 3.4 ,Payment. Rite Aid will pay properly submitted invoices within 30 days after receipt of Goods. Rite Aid may withhold any amounts which are disputed in good faith or may deduct any amounts tor charges. costs. expenses or losses actually incurred as a result of defects in the Goods; late delivery: or any other noncompliance with applicable schedules. exhibits. attachments, drawings, data sheets. or specifications. Rite Aid shall use good faith efforts to procure compliance with their payment obligations under this Agreement. Rite Aid shall have a right of setoff against any amounts due a Supplier under this Agreement entered into RA023E hereunder. for all amounts due Rite Aid from Supplier regardless or the source of the obligation. Unless otherwise agreed in writing Rite Aid will not accept or pay any invoices dated prior to deliver• of -Goods. 3.5 Audit. Rite Aid reserves the right to audit Supplier's invoices upon thirty (30) days written notice. 3.6 Order Quantities/Process. All order quantities will be in full pallets. Rite Aid will order in full pallet quantities only. ARTICLE 4 - PROPRIETARY RIGHTS 4.1 Intellectual Property. All intellectual and industrial property rights including patents, registered designs, trademarks. service marks, copyrights or any other form of intellectual or industrial property rights subsisting at any time in respect of items developed by Supplier for Rite Aid (and all such rights in respect of any subsequent modifications of such items) are to vest in and remain with Rite Aid. Supplier shall take all necessary steps (at no cost to Rite Aid) to ensure that all of the rights referred to in this clause are formally vested in Rite Aid and that any moral rights attaching to any relevant material are waived in favor of Rite Aid. 4.2 Confidentiality. This Agreement and its contents are confidential to the parties and, except as set out below, shall not be disclosed to third parties by either party without the express written consent of the other party. if during the course of performance under this Agreement the parties are exposed to confidential information, the parties agree to keep any such confidential information strictly confidential, to the extent allowed by law. 4.3 indemnity for Intellectual Property Claims. Supplier shall indemnify. defend and hold Rite Aid harmless from any and all claims of intellectual property infringement in accordance with Paragraph 6.8. ARTICLE 5 - RELATIONSHIP OF PARTIES 5.1 Independent Parties. Rite Aid and Supplier are and shall remain independent contractors, and none of the provisions in this Agreement shall be construed to create a partnership or joint venture between the parties. Each Party shall be and remain solely responsible for wages, hours, taxes, tax withholdings, and all other conditions of employment of its own personnel during the term of this Agreement. Nothing contained herein shall be construed as implying that employees of either Party are employees of the other Party for any purpose whatsoever. including, without limitation. participation in the benefits or privileges given or extended by such other Party to its employees. No right or authority is granted to either Party to assume or to create any obligation or responsibility. expressed or implied. on behalf of or in the name of the other Party. 5.2 if a law or regulation mandates a report or other document that must be signed or certified by Rite Aid, Supplier must consult with Rite Aid to assure full compliance. RA023 Cio ARTICLE 6 - GENERAL PROVISIONS 6.1 Termination. Either party may terminate this Agreement. with or without cause, by giving 60 Days advance written notice to the other party. In the event of such tennination by Rite Aid, Supplier will be compensated for all outstanding invoices and for any Goods for which Supplier has not been reimbursed. Supplier agrees that it shall rot be entitled any other claimed amounts; including but not limited to, direct, indirect. consequential, loss of profits, punitive or exemplary damages whatsoever. 6.2 Assignment. Supplier may not assign this Agreement without obtaining the prior written consent of Rite Aid. 6.3 Representatives. Each party must appoint one or more representatives promptly after signing this Agreement and disclose to the other party the scope of its representative's authority with respect to this Agreement or any related Contract entered into in accordance with this Agreement. Each party may replace or supplement its representative by giving prior written notice to the other party. 6.4 Notices. All notices under this Agreement are considered given if delivered in writing personally or by courier, or sent by electronic transmission or facsimile to Rite Aid or to Supplier, at the address set forth below. Any notice given by U.S. mail is considered given days after the notice is deposited in the [1.S. mail postage prepaid. Addresses for notice are: If the notice is to Rite Aid: Rite Aid HDQ`I'RS. CORP. Rich O'Brien Senior Buyer Indirect Procurement Group 30 Hunter Lane Camp Hill, PA 1701 1 Facsimile: 717-731-4734 With a copy to: Rite Aid 1-1[)1)TRS. CORP. Attn: Legal Department 30 Hunter Lane Camp 11i11, PA 17011 Facsimile: 717-975-5976 RA023. Utile notice is to Supplier: Jacob Torkieh President 106 Lexington Ave. Brooklyn, NY 11238 Facsirni le: 718-399-717 6.5 Alternative Dispute Resolution. Except as provided herein, no civil action with respect to any dispute, claim or controversy arising out of or relating to this Agreement that is below $250,000 may be commenced until the matter has been submitted for mediation to a mediator acceptable to both parties. Either party may request the commencement of mediation proceedings by providing to the other party a written request for mediation setting forth the subject of the dispute and the relief requested. The parties shall then, within thirty (30) days. mutually agree upon the selection of a mediator. lithe parties do not agree to the selection of a mediator, the dispute shall be mediated by George B. Faller, Esquire, at the law firm of Martson, Deardorff, Williams, Otto. Gilroy & Faller, 10 East Iligh Street. Carlisle. PA 17013. for non-binding mediation. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs and expenses. The parties agree to split the mediator's fee. All offers. promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non -discoverable as a result of its use in the mediation. Either party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process provided that such a claim is filed in the Court of Common Pleas of Cumberland County, Pennsylvania. Except for such an action to obtain equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 45 days after the date of filing the written request for mediation, whichever occurs first. The parties agree that any such civil action must be brought in the Court of Common Pleas of Cumberland County, Pennsylvania. Mediation may continue after the commencement of a civil action, if the parties so desire. The provisions of this Paragraph may be enforced by the Court of Common Pleas of Cumberland County Pennsylvania. and the party seeking enforcement shall be entitled to an award of all costs. fees and expenses, including attorneys' fees. to be paid by the party against whom enforcement is ordered. Any dispute. claim or controversy arising out of or relating to this Agreement that or the preach. termination, enforcement. interpretation or validity thereof, that is in excess of 5250,000.00, includine the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Camp Hill. Pennsylvania. before one JAMS RA0238 0 arbitrator to be agreed on by both parties. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from the Court of Common Pleas of Cumberland County, Pennsylvania. 6.6 Governing Law and Venue. This Agreement and all Contracts entered into hereunder are governed by the laws of the. Commonwealth of Pennsylvania, without regard to its conflicts of law rules. Any disputes between the parties not subject to Paragraph 6.5 shall be brought exclusively in the Court of Common Pleas for Cumberland County, Pennsylvania. 6.7 Insurance. Supplier shall purchase and maintain, with insurance companies approved by Rite Aid, such insurance as will protect Supplier and Rite Aid and all others that Rite Aid requests be named as Additional Insureds at Supplier's sole cost and expense (and with Rite Aid having no liability for premiums or other costs of insurance) from claims set forth below which may arise out of or result from Supplier's provision of Goods under this Agreement. whether such operations be by Supplier or by any subcontractor or by anyone directly or indirectly employed by any of them. or by anyone for whose acts any of them may be liable: (a) claims under workers' or workmen's compensation. disability benefit and other similar employee benefit acts; (h) claims for damages because of bodily injury, occupational sickness or disease, or death of Supplier's employees; (c) claims tor damages because of bodily injury. sickness or disease. or death of any person other than Supplier's employees; (d) claims for damages which are sustained (i) by any person as a result of an incident directly or indirectly related to the employment of such person by Supplier. or (ii) by any other person; (e) claims for damages, other than to the work performed under this Agreement itself; because of injury to or destruction of tangible property, including loss of use resulting therefrom; and (f) claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. The insurance required by Subparagraph 6.7(a) shall be written tbr not less than statutory limits. The insurance required by Subparagraph 6.7(b) through (F) shall be written tbr not less than $3.000.000.00. In addition to the insurance requirements set forth above. Supplier will, at Suppliers expense. obtain and keep in force and effect during the term of this Agreement an excessluntbrella liability insurance policy of an additional $5.000.000.00 naming Rite Aid as an Additional Insured. RA0239 Certificates of Insurance (in duplicate) acceptable to Rite Aid shall he filed with Rite Aid prior to commencement this Agreement. Such certificates shall be addressed to Rite Aid at its address and shall show that all of the insurance required by Paragraph 6.7 (other than workmen's compensation insurance) identifies Rite Aid, and such other persons and entities as shall be requested by Rite Aid as Additional Insureds. Supplier shall be solely responsible for any premiums associated with the coverages requested in Paragraph 6.7. Insurance certificates shall include a provision for not less than 30 days' advance written notice by the insurer to Rite Aid in the event of cancellation or reduction of such insurance. 6.8 Indemnification. Supplier agrees to defend. indemnify. and hold Rite Aid harmless from and ag•tinst any and all claims, losses. damages, judgments, liabilities, and costs (including reasonable attorney's fees and expenses) of any kind or nature or that are asserted arising directly or indirectly from Supplier's provision of Goods under this Agreement, including any violations of any federal, state andior local laws and/or ordinances and including any claims of bodily injury or death to any person or from damage to or destruction of any property, arising from or related to Supplier's acts or omissions. 6.9 Non Exclusivity. Nothing expressly or impliedly contained herein or in any Contract shall be deemed to give rise to or constitute any exclusivity of purchase or supply or in any way prevent or restrict Rite Aid or any Rite Aid from purchasing Goods which arc similar or identical to the Goods from any source whatsoever or in any way prevent a Supplier from supplying or offering to supply Goods to any person. 6.10 Force Maieure. No Party shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, laws or governmental regulations, acts of terrorism, or other causes that are beyond that party's control. 6.11 Severability. If any provision or the scope of any provision of this Agreement is found to be unenforceable or too broad by judicial decree, the Parties agree that such provisions shall be curtailed only to the extent necessary to conform to law to permit enforcement of this Agreement to its full extent. 6.12 Entire Agreement; No Reliance. Each of the parties agrees and acknowledges that this Agreement (i) constitutes the entire agreement and supersedes all prior and contemporaneous agreements. understandings, negotiations and discussions. whether oral or written, among the parties with respect to the subject matter of this Agreement, and (ii) is not intended to confer any rights or remedies, or impose any obligations, on any person other than the Parties hereto. Each of the Parties expressly agrees and acknowledges that, other than those statements expressly set forth in this Agreement. it is not relying on any statement, whether oral or written, of any person or entity with respect to its or his entry into this Agreement or to the consummation of the transactions contemplated by this Agreement. 6.13 Amendments and Modifications. This Agreement may be modified only by a written agreement signed by both Parties. 6.14 Successors and Assigns. This Agreement shall be binding on and shall benefit any and all successors, trustees, permitted assigns and other successors in interest of the Parties. 6.15 Counterparts. This Agreement may be executed in one or more counterparts. all of which shall constitute one and the same Agreement. Rite Aid HD TRS. CORP. By: N Orly Plastics Enterprise, Inc. Bv: .///I* 4'//mat 1 Name: Title: Date: ..7 ?" LE" Title: P K f Date: Y-)- t 0 RA0241 ATTACHMENT A Scope of Work: Item 4 Item Price 47577'4 47577'4 Clear fiat. -Ls, \ -)8 11DPI . I() licron. 200 his ' cage ( 1etr Ilau2. 7,7 111)I'i.. X \.licron. St)t) hags Lase SI l 4 cs S7is Pricing is guaranteed tOr six V)) n onills from date of initial order. Ihereattcr pricing Mill recie:'scd quarterly with consideration given to Chem Data Resin index.. The July 2010 ('hem Data Price of S59.50 crib will hr used as a baseline tier any future quarterly price increases or decreases. Pricing adjustments will only be considered if the price changes hy .02 per pound t$2.0() All changes will he submitted in writing with appropriate supporting documentation for Rite .\id review. RA0242 Can Liner Specs 40 x 46 LLDPE 1.25 Mil. Opaque blue, 100 bags per case 30 x 36 LLDPE 1.25 Mil, Opaque blue. 250 bags per case 30 x 37 HDPE 8 micron, Clear, 500 bags per case 43 x 48 HDPE 16 micron, Clear, 200 bags per case RA0243 �.m 111 LY R/)l'tTIN Lit' 106 LEXINGTON AVE BROOKLYN. %Y 11238 718-399-6311 718-390-717.S August 1, 2011 I )ear Mr. Ohricn. We arc requesting a name change from our current name on file, which is Orly Plastic Fntcrprise, to Orly Industry Inc. I t' there are any further questions, please do not hesitate to contact us. Sincerely, 1 rina RA0244 Page 1 of 1 Subj: Re: (no subject) Date: 11/16/2011 10:30:02 A.M. Eastern Standard Time From: tock eh (ao)r orrm To: N/ l_KRZoIio'a-aol,cc Dough, I have reviewed the proposal, and here is what i propose. With this proposal i am only trying to maintain the relationship, and save Rite aid money. Rite aid's claim is 200000, if we were to follow the contract there is a $67000, which is due to us and have not been billed, and we are proposing another 50000 rebate that will bring it up to 117000 which is pretty significant amount of money. Not to mention the current prices we are giving them is 20% below market price --Original Message ---- From: MKRZoIIo <MKRZollo@aol.com> To: torkieh <torkieh@aol.com> Sent: Wed, Nov 16, 2011 6:57 am Subject: (no subject) Please review Sunday, February 12, 2012 AOL: MKR Zollo MKR 0006 RITE RITE AID Corporation December 19. 2011 Orly Plastics Enterprise. Inc. 106 Lexington Avenue Brooklyn, NY 11238 Attn: Jacob Torkieh Mr. Torkieh, • MAILING ADDRESS PO. 8ox 3165 Harrisburg, PA 17 105 • GENERAL. OFFICE 30 Hunter Lane Camp H$11. PA 17011 • 1-800 RITEAIO• Please be advised that Rite Aid Hdqtrs. Corp. ("Rite Aid'') has determined product shipped by Orly Plastic Enterprise, Inc. ("Orly") has been below specifications, as detailed in our Master Services Agreement of August 1, 2010 ("Agreement"). This is a breach of the Agreement between Rite Aid and Orly. Specifically, a shortage has been determined by both the case weight and the numerical count of bags. Product has been sampled by Rite Aid associates, and Orly's sales representative. Orly also admits this in its proposal submitted on November 17, 2011. Rite Aid is seeking repayment of 5200,311. This amount is what Rite Aid has determined to be the amount of bag. shortages for the past 12 months. In accordance with Section 3.4 of the Agreement, Rite Aid will not make payment on disputed shipments, and will hold payment of 572.563.05 in current invoices. Under Section 6.1, the Agreement can be terminated upon sixty (60) days written notice. However, this Agreement has already expired. Moreover. in accordance with Section 6.5, Rite Aid requests the commencement of mediation proceeding to address Orly's breach of the Agreement. Please advise who Orly will appoint as the mediator. If you wish to settle this matter in an amicable manner, please contact me the next five (5) business days. Richard O'Brien ig.44444, C&..„ Senior Buyer cc: Ron S. China, Senior Counsel RA0341 VERIFICATION I, Richard O'Brien, hereby state that I am a Senior Buyer for Rite Aid Hdqtrs. Corp. and am authorized to make this verification on its behalf I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that the statements in the foregoing document are made subject to the penalties of 18 Pa. C.S. § 4909 relating to unsworn falsification to authorities. Dated: May „ s , 2014 ichard O'Brien RITE AID HDQTRS. CORP, : IN THE COURT OF COMMON PLEAS OF 30 Hunter Lane : CUMBERLAND COUNTY, PENNSYLVANIA Camp Hill, PA 17011 : NO. 14-3289 CIVIL ORLY PLASTICS ENTERPRISE, INC. : CIVIL ACTION — LAW 106 Lexington Avenue Brooklyn, NY 11238 Plaintiff, vs. and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : 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 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-3289 CIVIL CIVIL ACTION — LAW : JURY TRIAL DEMANDED AVIS() 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 accion dentro de los proximos veinte (20) dias despues de la notificacion 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 accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier sums de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-3289 CIVIL : CIVIL ACTION — LAW : JURY TRIAL DEMANDED AMENDED COMPLAINT Plaintiff Rite Aid HDQTRS. Corp. ("Rite Aid"), by its undersigned attorneys, files this Amended Complaint alleging as follows below. A copy of this Amended Complaint showing all changes from the original Complaint filed in this action is attached as Exhibit 1.: PARTIES 1. Rite Aid is a Delaware corporation with its principal place of business at 30 Hunter Lane, Camp Hill, Pennsylvania 17011. 2. Defendant Orly Plastics Enterprise, Inc. ("Orly Plastics") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. While Orly Plastics was dissolved by proclamation of New York law in 2011, it continues to operate through its principal Jacob Torkieh. 3. Defendant Orly Industry, Inc. ("Orly Industry") is a New York corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. Orly Industry is the successor company and/or alter ego to Orly Plastics. Jacob Torkieh is the principal of Orly Industry. JURISDICTION AND VENUE 4. This court has jurisdiction pursuant to 42 Pa.C.S. § 931(a). 5. Venue in this Court is proper because the cause of action arose in Cumberland County and a transaction or occurrence took place out of which the cause of action arose in Cumberland County. 6. Orly Plastics and Rite Aid have also agreed that any lawsuit brought with regard to any disputes between the parties must be venued in this Court. A true and correct copy of the Master Purchase Agreement ("MPA"), a valid and enforceable written contract, is attached to this Complaint as Exhibit A. While Orly Industry was not a signatory to the MPA, by its conduct it was an implied party to the MPA and relied upon the MPA. Accordingly, it is also subject to the venue clause of the MPA. RELEVANT FACTS THE PARTIES 7. Rite Aid is a national drug store chain with its principal office in Cumberland County, Pennsylvania. 8. At all times relevant to this Complaint, Orly Plastics and its successor company, Orly Industry, were involved in the manufacture, sale and distribution of plastic trash can liners ("liners"). -2- 9. Orly Plastics and Orly Industry share, inter alia, the same address, phone number, facsimile number, email address, principal and computers and were essentially the same entity and/or alter egos of each other. THE MASTER PURCHASE AGREEMENT 10. Rite Aid and Orly Plastics entered into the MPA effective August 1, 2010 pursuant to which Orly Plastics agreed to provide liners to Rite Aid for use by Rite Aid stores. The liners were to adhere to specific size, thickness and quantity specifications as described on page 2 of Attachment A of the MPA. See Exhibit A. These specifications were as follows: 40 x 46 LLDPE 1.25 Mil. Opaque blue, 100 bags per case 30 x 36 LLDPE 1.25 Mil. Opaque blue, 250 bags per case 30 x 37 HDPE 8 micron, Clear, 500 bags per case 43 x 48 HDPE 16 micron, Clear, 200 bags per case 11. Assuming that these required specifications were met, the liner cases would necessarily have the following weights: 40 x 46 blue 15.33 lbs. 30 x 36 blue 22.5 lbs. 30 x 37 clear 11.65 lbs. 43 x 48 clear 17.O lbs. The parties never varied these required specifications through the time they dealt with each other. 12. Under the MPA, Orly Plastics was required to promptly carry out its obligations in accordance with the specifications provided and best industry practice and was required to use its best efforts in carrying out those obligations. See Exhibit A, § 2.4. Further, Orly Plastics was to provide goods of the best quality and to "provide all supervision, quality -3- control programs, inspections, or verifications required to ensure compliance with this Agreement." Id. §§ 2.5, 2.6. While Rite Aid had the right to inspect the goods, it was not obligated to do so and acceptance of the goods by Rite Aid did not constitute any waiver of its rights under the MPA. See id. The parties agreed that if Rite Aid discovered that any liners do not conform to the requirements of the Agreement, Rite Aid would notify Orly Plastics which would, in turn, be required to correct any deficiency. See id. § 2.6. 13. The MPA specified that Rite Aid would issue purchase orders for the liners and that the terms of the MPA were incorporated by reference into each purchase order. See id. at 2.2. 14. With respect to payment, the MPA specified that Rite Aid would pay properly submitted invoices within 30 days after receipt of goods but that Rite Aid "may withhold any amounts which are disputed in good faith or may deduct any amounts for charges, costs, expenses or losses actually incurred as a result of defects in the Goods; late delivery; or any other noncompliance with applicable schedules, exhibits, attachments, drawings, data sheets, or specifications." See id. at § 3.4. The MPA further states that Rite Aid "shall have a right of setoff against any amounts due a Supplier under this Agreement entered into hereunder, for all amounts due Rite Aid from Supplier regardless of the source of the obligation." Id. 15. The MPA further states that it "shall be binding on and shall benefit any and all successors, trustees, permitted assigns and other successors in interest of the Parties." 16. While the MPA expired on July 31, 2011, the parties agreed that it could be extended upon consent. The parties proceeded to transact orders for the supply of liners under the terms of the MPA beginning in August 2010 and continued to do so through the fall of 2011. None of the specifications for the liners changed at this or any time. The price for the liners did -4- change effective July 25, 2011 pursuant to changes in the Chem Data resin index as specified in the MPA. ORLY'S NAME CHANGE 17. On August 1, 2011, Orly Industry requested that "the name on file" be changed from Orly Plastics to Orly Industry. See letter attached hereto as Exhibit B. Orly Industry did not provide Rite Aid with any new vendor paperwork or provide an Internal Revenue Service W-9 form, both of which would have been necessary if Orly Industry was a separate entity distinct from Orly Plastics. Accordingly, Rite Aid did not recognize Orly Industry as a new vendor and did not assign it a new vendor identification number. 18. Upon information and belief, Rite Aid asserts that the only reason Mr. Torkeih changed the name of the company is because Orly Plastics was dissolved for failure to pay New York state taxes and Orly Plastics sought to escape its obligations and liabilities. 19. Upon information and belief, Rite Aid asserts that the assets of Orly Plastics and Orly Industry have been intermingled and that corporate formalities have not been observed for the two companies. 20. Orly Industry is the alter ego and/or the successor of Orly Plastics and Orly Industry is liable for the conduct of Orly Plastics. 21. Orly Industry, as Orly Plastics' successor company, inherited all rights and obligations of Orly Plastics under the MPA. RITE AID DISCOVERS DEFENDANTS ARE SHORTING ORDERS 22. In the fall of 2011, Rite Aid began soliciting bids from various suppliers, including Orly Industry, for a new liner contract. 23. In the course of this process, Rite Aid became suspicious that Orly Industry and Orly Plastics were engaged in a pattern of shortchanging Rite Aid with respect to -5- the quantity and the weights on liner orders from theinception of the MPA in August 2010. As previously stated, if a case of liners was in conformance with the MPA specifications, each case of liners would have a uniform weight depending on its size. 24. As a result of its suspicions, Rite Aid began weighing and/or counting the contents of random liner cases that were shipped to various distribution centers throughout the country. These random samples were systemically light in weight or short in count. Every liner case inspected by Rite Aid at this time was under the required weight and/or count. Some cases were as much as 37% short of the required weight. As such, these liner cases failed to meet the specifications under the MPA. Rite Aid believes and avers that both Orly Industry and Orly Plastics engaged in this shortchanging of orders since the inception of the MPA in August 2010. Based on Rite Aid's calculations of the remaining liner cases it has in inventory, Rite. Aid was shortchanged by an average of 29.07% of what Rite Aid had paid and what Orly Plastics/Orly Industry was required to provide pursuant to the liner specifications of the MPA. In other words, for every dollar's worth of liners that Rite Aid paid through the life of the MPA, Orly Plastics and Orly Industry cheated Rite Aid on average of $.29. 25. Rite Aid contacted Mr. Torkieh in an attempt to resolve this issue and requested $200,000 representing a rebate for the amount it had then calculated it had been shortchanged. Significantly, Mr. Torkieh never denied Rite Aid's claim that it was short- changed. Rather, Mr. Torkieh simply promised that he would make it up to Rite Aid with various rebates in Orly Industry's proposal for a new contract and also relied upon the fact that Orly Plastics had not raised prices previously under the MPA. See Email from Jacob Torkieh dated November 16, 2011, attached hereto as Exhibit C. -6- 26. As of September 28, 2011, Rite Aid had paid to Orly Plastics and Orly Industry a total of $724,824.20. After Orly Industry and Orly Plastics' shortchanging became apparent, Rite Aid placed a hold on paying all further invoices from Orly Industry. 27. In a letter dated December 19, 2011, Rite Aid Senior Buyer Richard O'Brien sent Mr. Torkieh a letter demanding repayment of the amount it had calculated in liner shortages and explaining that Rite Aid would not make payment on then -current invoices in its possession, which totaled $72,563.05 because of the dispute. A true and correct copy of this letter is attached as Exhibit D. Rite Aid also requested commencement of mediation proceedings pursuant to the Alternative Dispute Resolution provision of the MPA. See Ex. A, § 6.5. 28. Neither Orly Industry nor Orly Plastics responded to that letter within forty-five days as required by Section 6.5 of the MPA. Instead, Orly Industry commenced suit against Rite Aid in New York State Court in February 2012 seeking payment of the invoices that Rite Aid put on hold. Rite Aid removed this case to the United States Court for the Eastern District of New York (Orly Industry, Inc. v. Rite Aid HDQTRS. Corp., E.D.N.Y. Civ. No. 12- 855) where the case currently remains pending. That Court will address the parties' claims and counterclaims with respect to post -July 31, 2011 transactions. 29. As of July 31. 2011, Rite Aid paid to Orly Plastics and/or Orly Industry a total of $593,273.80. Based upon the amount Rite Aid paid to Orly Plastics and/or Orly Industry from the inception of the MPA through July 31, 2011 and the estimated shortages occurring on orders that had been fully paid as of July 31, 2011, September 2011 and the average liner weight shortage of 29.07%, Rite Aid is entitled to damages in the amount of $172,464.69. a rebate in -7- COUNT I BREACH OF CONTRACT OR IMPLIED CONTRACT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 30. Rite Aid incorporates the averments in paragraphs 1 through 29 above as if fully set forth herein. 31. As noted above, Rite Aid and Orly Plastics entered into the MPA whereby Orly Plastics agreed to supply Rite Aid with liners at agreed-upon specifications. Orly Industry took over Orly Plastics' obligations under the MPA in August 2011. Accordingly, Orly Industry directly and/or through its predecessor and alter ego Orly Plastics was a party to the MPA which was valid and enforceable at all times relevant to the claims made in this litigation. To the extent Orly Industry is deemed not to be a party to the MPA, Orly Industry was a party to an implied contract with Rite Aid to supply liners pursuant to the specifications set forth in the MPA. A contract between Orly Industry and Rite Aid is inferred in light of the circumstances as alleged herein. 32. Orly Plastics and Orly Industry have breached the MPA by their conduct from August 1, 2010 until July 31, 2011 and have directly and proximately caused Rite Aid damages in the amount of $172,464.69.of $160,109.16. 33. To date, Orly Plastics and Orly Industry owe Rite Aid $172,464.69 for shortages based on orders made from August 1, 2010 through July 31, 2011. $160,109.46. 34. Despite repeated requests, Orly Plastics and Orly Industry refuse to pay Rite Aid the amount Rite Aid is due. 35. Rite Aid has performed any and all conditions precedent under the MPA. -8- 36. The conduct of Orly Plastics and Orly Industry is without excuse or justification. WHEREFORE, Rite Aid requests judgment in an the amount of $172,464.69ef $160,109.46 plus interest, costs, attorneys' fees as provided in Section 6.5 of the Master Purchase Agreement and all other amounts deemed appropriate by the Court. COUNT II UNJUST ENRICHMENT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 37. Rite Aid incorporates the averments in paragraphs 1 through 36 above as if fully set forth herein. 38. In the event Defendants contend no contractual relationship exists, Rite Aid is entitled to recover the outstanding amounts it is owed to prevent Defendants from being unjustly enriched. 39. Orly Plastics and Orly Industry have been unjustly enriched as a result of benefits conferred by Rite Aid. Specifically, Orly Plastics and Orly Industry have wrongfully accepted and retained monies paid by Rite Aid for liner shipments from August 1, 2010 through July 31, 2011 that were substantially less than what they should have been pursuant to the parties' understanding. 40. Orly Plastics and Orly Industry have each appreciated and been enriched by such benefits that rightfully belong to Rite Aid. 41. The retention of such benefits by Orly Plastics and Orly Industry is inequitable and unjust and has substantially damaged Rite Aid in an amount of $172,464.69thc amount of $160,109.16. 42. Rite Aid is entitled to the amount of $172,464.69of $160,109.46, plus interest, from Orly Plastics and Orly Industry under the doctrine of unjust enrichment. -9- WHEREFORE, Rite Aid requests judgment in the amount of $172,464.69460714946 plus interest, costs, and all other amounts deemed appropriate by the Court. Respectfully submitted, Brian P. Downey (PA 59891) Kathleen A. Mullen (PA 84604) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 Telephone 717.238.0575 Fax downeyb@pepperlaw.com mullenk@pepperlaw.com Date: November , May 29, 2014 Attorneys for Plaintiff Rite Aid HDQTRS. Corp. -10- VERIFICATION I, Richard O'Brien. hereby state that I am a Senior Buyer for Rite Aid Hdgtrs. Corp. and am authorized to make this verification on its behalf. I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that the statements in the foregoing document are made subject to the penalties of 18 Pa. C.S. § 4909 relating to unsworn falsification to authorities. Dated: Novembera2 '/ , 2014 i6seace2 Richard O'Brien CERTIFICATE OF SERVICE I, Kathleen A. Mullen, hereby certify that on November 25, 2014, a true and correct copy of the foregoing document was served upon the following via email and United States first class mail, postage prepaid: David L. Schwalm, Esquire Anthony T. Bowser, Esquire Thomas, Thomas & Hafer LLP 305 N. Front Street P.O. Box 999 Harrisburg, PA 17108 Attorneys for Defendants Kathleen A. Mullen -12- Thomas, Thomas & Hafer LLP David L Schwalm (#32574) Anthony T Bowser (#204561) 305 N Front St PO Box 999 Harrisburg, PA 17108-0999 717.237.7100 dschwalm@tthlaw.com abowser@tthlaw.com Counsel for Defendants RITE AID HDQTRS CORP, Plaintiff versus ORLY PLASTICS ENTERPRISE, INC and ORLY INDUSTRY, INC Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No: 14-3289 Civil Action - Law MOTION OF THOMAS, THOMAS & HAFER LLP FOR LEAVE TO WITHDRAW AS COUNSEL FOR DEFENDANTS ORLY PLASTICS ENTERPRISE, INC & ORLY INDUSTRY, INC AND NOW, David L Schwalm and Anthony T Bowser, of the law firm of Thomas, Thomas & Hafer LLP file this motion for leave to withdraw as counsel for defendants in the above -captioned matter pursuant to Pennsylvania Rule of Civil Procedure 208.1 and Local Rule 208.3(a), stating as follows: 1. On May 3o, 2014, plaintiff Rite Aid Hdqtrs Corp ("Rite Aid") filed a complaint in this Court against defendants Orly Plastics Enterprise, Inc and Orly Industry, Inc. 2. Rite Aid's complaint asserts claimsfor breach of contract and unjust enrichment related to Rite Aid's purchase of trash can liners from the defendants. 3. Defendants retained the law firm of Thomas, Thomas and Hafer, LLP, to represent them in this action. 4. During the course of the litigation, David L Schwalm and Anthony T Bowser have entered their appearances on behalf of defendants. 5. On July 2, 2014, defendants removed the action to the United States District Court for the Middle District of Pennsylvania ("District Court"). 6. The law firm of Thomas, Thomas & Hafer LLP has provided legal services on behalf of defendants in the defense of this matter. 7. To date, defendants have incurred outstanding legal bills for work performed. 8. Except for an initial retainer, defendants have not remitted full payment for legal services rendered on their behalf. 9. Defendants' principal, Jacques "Jacob" Torkieh, advised Thomas, Thomas & Hafer LLP that defendants do not intend to honor their obligation to pay the outstanding fees owed to Thomas, Thomas & Hafer LLP. io. By correspondence, the undersigned counsel advised defendants that unless they compensates Thomas, Thomas & Hafer LLP for legal services, the undersigned counsel would be forced to move the Court to withdraw as counsel. 2 11. Furthermore, defendants and Thomas, Thomas and Hafer, LLP have been unable to agree upon the legal actions necessary to defend this matter, including responding to discovery. 12. Defendants will not be prejudiced if this motion is granted as this matter has not been certified ready for trial. 13. Pursuant to Rule 1.16(b)(5) of the Pennsylvania Rules of Professional Conduct, a lawyer may withdraw from representing a client if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. 14. Pursuant to Rule 1.16(b)(6) of the Pennsylvania Rules of Professional Conduct, a lawyer may withdraw from representing a client if the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client. 15. It would be an unreasonable financial burden for Thomas, Thomas & Hafer LLP to continue representing defendants without payment for counsel's time and expenses. 16. Thomas, Thomas & Hafer LLP filed a motion similar to this in the District Court on November 12, 2014. 17. On November 20, 2014, The Honorable John E Jones III issued an Order granting Rite Aid's motion to remand the case to this Court. (See 11/20/14 Order, attached here as Exhibit A). 18. Although the District Court noted that it would likely have granted Thomas, Thomas & Hafer LLP's motion to withdraw as counsel, as part of the November 20, 2014 Order, the District Court declined to rule on the motion as it was deemed moot by the remand of the case to this Court. 19. In accordance with Local Rule 208.2(d), the undersigned counsel contacted Rite Aid's counsel, Kathleen A Mullen, Esquire, to obtain concurrence in this motion. 20. Rite Aid's counsel concurs in this motion so long as defendants are ordered to obtain new counsel within twenty days. WHEREFORE, Thomas, Thomas & Hafer LLP respectfully requests that the Court issue an Order permitting them to withdraw as counsel for defendants Orly Plastics Enterprise, Inc and Orly Industry, Inc, staying the proceedings for twenty days to allow defendants to retain new counsel and extending the discovery deadlines in this case by 45 days. Respectfully submitted, AS, THOMAS & HAFER LLP David L Schwalm (#32574) dschwalm@tthlaw.com Anthony T Bowser (#204561) abowser@tthlaw.com 305 North Front Street, 6th Floor PO Box 999 Harrisburg, PA 17108-0999 717.327.7100 (telephone) 717.237.7105 (facsimile) Attorneys for Defendants 4 Case 1:14-cv-01276-JEJ Document 26 Filed 11/20/14 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RITE AID HDQTRS. CORP., Plaintiff, v. ORLY PLASTICS ENTERPRISE, INC., and ORLY INDUSTRY, INC., Defendants. 1: 14-cv-1276 Hon. John E. Jones III ORDER November 20, 2014 In accordance with the Memorandum issued on today's date, it is hereby ORDERED that: 1. Plaintiff's Motion to Remand to Court of Common Pleas of Cumberland County (Doc. 5) is GRANTED, and this action is REMANDED to the Court of Common Pleas of Cumberland County. 2. However, Plaintiff's request for just costs and actual expenses, including attorney's fees, incurred as a result of the removal action filed by Defendants is DENIED. 3. The following motions are DENIED AS MOOT: Defendants' Motion to Dismiss (Doc. 7), Plaintiffs Motion to Amend the 1 Case 1:14-cv-01276-JEJ Document 26 Filed 11/20/14 Page 2 of 2 Complaint (Doc. 21), and the Motion of Thomas, Thomas & Hafer LLP for Leave to Withdraw as Counsel for Defendants (Doc. 23). 4. The Clerk of Court shall close this case. s/ John E. Jones III John E. Jones III United States District Judge 2 CERTIFICATE OF SERVICE I certify that on this day of December 2014, I sent a true and correct copy of the foregoing document via email and first-class US mail to the following: Brian P Downey, Esq Kathleen A Mullen, Esq Pepper Hamilton LLP 100 Market Street, Suite 200 PO Box 1181 Harrisburg, PA 17108-1181 , mullenk@pepperlaw.com Jacob Torkieh Orly Plastics Enterprise, Inc. 1o6 Lexington Avenue Brooklyn, NY 11238 o.p.enterpriseagmail.com MAS, THOMAS & HAFER LLP David L. chwalm 5 RITE AID HDQTRS. CORP., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW ORLY PLASTICS ENTERPRISE, INC., and ORLY INDUSTRY, INC. Defendants : NO. 14 3289 CIVIL TERM IN RE: MOTION OF THOMAS, THOMAS & HAFER, LLP, FOR LEAVE TO WITHDRAW AS COUNSEL FOR DEFENDANTS ORLY PLASTICS ENTERPRISE, INC., & ORLY INDUSTRY, INC. ORDER OF COURT AND NOW, this Bch day of December, 2014, upon consideration of the Motion of Thomas, Thomas & Hafer, LLP, for Leave To Withdraw as Counsel for Defendants Orly Plastics Enterprise, Inc., and Orly Industry, Inc., a Rule is hereby issued upon Jacob Torkieh, of Orly Plastics Enterprise, Inc., and Orly Industry, Inc., to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. The parties are requested to notify this Court if an answer is filed and when the Rule is ripe for decision. -"Brian P. Downey, Esq. Kathleen A. Mullen, Esq. PEPPER HAMILTON LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Plaintiff BY THE COURT, Ch stylee L. Peck, J. ,%David L. Schwalm, Esq. Anthony T. Bowser, Esq. Thomas, Thomas & Hafer, LLP P.O. Box 999, Harrisburg, Pa 17108-0999 Attorney for Defendants Jacob Torkieh Orly Plastics Enterprise, Inc. 106 Lexington Avenue Brooklyn, NY 11238 Defendant Court Administrator :re Douglas C. Lovelace, Jr., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717)245-4089 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 To The Prothonotary: matter. Defendant Defendant T-LF THE .r RO iiO 2015 JAN -9 P1112: ": CUMBERLAND COUNT`I, PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-3289 CIVIL : JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE Kindly enter my appearance for Defendant Orly Industry, Inc., in the above captioned Date: January / a , 2015 w Doug I s C. Lovelace, Jr., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717)385-1866 Attorney for Defendant Orly Industry, Inc Douglas C. Lovelace, Jr., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendant Defendant To: Rite Aid Hdqtrs. Corp. C/o Brian P. Downey, Esquire Kathleen A. Mullen, Esquire Pepper Hamilton LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Plaintiff P.� a, _9 I 2 J CUM:21:1IAND COUNTY P F1 S Y L : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-3289 CIVIL : JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the within New Matter and Counterclaims, within twenty days from service hereof, or a default judgment may be entered against you. Date: January j 2, 2015 Very respectfully, 41" DOUGLAS C. LO • ELACE, JR., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 Attorney for Defendant Orly Industry, Inc. RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. ORLY PLASTICS ENTERPRISE, INC. 106 Lexington Avenue Brooklyn, NY 11238 and ORLY INDUSTRY, INC. 106 Lexington Avenue Brooklyn, NY 11238 Defendant Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 14-3289 CIVIL : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT AND COUNTERCLAIMS Defendant Orly Industry, Inc., by its undersigned attorney, files this Answer with New Matter to Plaintiff's Amended Complaint and Counterclaims, averring as follows: 1. Admitted. 2. Denied. Upon information and belief, Defendant avers that the entity Plaintiff names as Orly Plastics Enterprise, Inc. does not and never has existed. By way of further answer, Orly Plastic Enterprises, Inc. existed, but was dissolved by legal proclamation of New York State on July 27, 2011. Defendant believes and therefore avers that Plaintiff refers to Orly Plastic Enterprises, Inc. when it names Orly Plastics Enterprise, Inc. By way of further answer, Orly Industry, Inc. was formed as a New York State corporation on September 18, 2009. At all times, Orly Industry, Inc. remained a corporation separate and distinct from the dissolved Orly Plastic Enterprises, Inc. By way of further answer, Defendant denies Jacob Torkieh is Orly Industry, Inc.'s principal. He serves as Orly Industry, Inc.'s operations officer. 3. Admitted in part and denied in part. Defendant admits Orly Industry, Inc. is a New York State corporation with a principal place of business at 106 Lexington Avenue, Brooklyn, New York 11238. Defendant denies Orly Industry, Inc. is the successor company and/or alter ego to Orly Plastics, and demands strict proof at trial, if relevant. Defendant denies Jacob Totkieh is the principal of Orly Industry, Inc. and proof to the contrary is demanded at trial, if relevant. JURISDICTION AND VENUE 4. Denied. Plaintiffs averment is a conclusion of law for which no response is required under the Pennsylvania Rules of Civil Procedure and such averment therefore is denied. 5. Denied. Plaintiffs averment is a conclusion of law for which no response is required under the Pennsylvania Rules of Civil Procedure and such averment therefore is denied. 6. Admitted in part and denied in part. Defendant admits that Orly Plastic Enterprises, Inc. agreed that any lawsuit brought with regard to any disputes with Plaintiff would be venued in this Court. The document Plaintiff presents as Exhibit A of its Amended Complaint speaks for itself and Defendant denies its applicability to Orly Industry, Inc. and demands proof to the contrary at trial, if relevant. By way of further answer, Orly Industry, Inc. denies it was an implied party to the MPA which had expired prior to Orly Industry, Inc. providing plastic trash can liners (liners) to Plaintiff. 2 RELEVANT FACTS 7. Admitted. 8. Admitted in part and denied in part. Defendant admits it manufactures, sells, and distributes plastic trash can liners. Defendant denies Orly Industry, Inc. is Orly Plastic Enterprises, Inc.'s successor company. 9. Denied. Defendant denies Orly Industry, Inc. and Orly Plastic Enterprises, Inc. are the same entity and/or the alter egos of each other, and proof to the contrary is demanded at trial, if relevant. By way of further answer, upon its dissolution, Orly Plastic Enterprises, Inc. had no significant assets and was incapable of carrying -on the business for which it was formed. Orly Industry, Inc. did not and does not operate in the production space occupied by the dissolved Orly Plastic Enterprises, Inc. No production assets of Orly Plastic Enterprises, Inc. were transferred to Orly Industry, Inc. Orly Industry, Inc. imported its own production equipment for manufacturing the plastic trash can liners it supplied Plaintiff. Orly Industry, Inc.'s principal place of business is at 100 Coit Street, Irvington, NJ. Orly Industry, Inc. notified Plaintiff on August 1, 2011 that it would provide Plaintiff plastic trash can liners from that date forward. Defendant did not object and commenced doing business with Orly Industry, Inc., effective August 1, 2011. In order to provide Plaintiff the liners in a timely and most effective manner, Orly Industry, Inc. conformed to the communications means and protocols Rite Aid previously established with Orly Plastic Enterprises, Inc. When Orly Industry, Inc. received a purchase order from Plaintiff addressed to Orly Plastics Enterprise, Inc., Orly Industry, Inc. asked Plaintiff to resubmit the purchase order to Orly Industry, Inc.; but, Plaintiff declined to do so, saying it was too much work and instructed Orly Industry, Inc. to "just fill the order." 3 10. Admitted in part and denied in part. Defendant admits that Orly Plastic Enterprises, Inc. entered into the MPA on August 1, 2010, pursuant to which Orly Plastic Enterprises, Inc. agreed to provide liners to Rite Aid. Orly Plastic Enterprises, Inc. was to provide the "Highest Quality Goods" "of the very best quality" (Compl. Ex. A, MPA para 2.5), and Orly Plastic Enterprises, Inc. did so. The MPA, which was drafted by Plaintiff, does not state that Defendant was required to adhere to any specifications. By way of further answer, the document Plaintiff refers to as page 2 of Attachment A of the MPA was not part of the MPA, but was invented by Plaintiff for the purposes of this litigation. By way of further answer, due to the nature of the materials and processes used to produce plastic liners, the highest and very best quality goods could be of differing densities, which would yield differing weights. 11. Denied. Defendant denies it had any obligation to Plaintiff to supply liners of any particular weight or thickness. By way of further answer, due to the nature of the materials and processes used to produce plastic liners, the highest and very best quality liners could be of differing densities, which would yield differing weights. Therefore, Defendant specifically denies Plaintiffs misleading weight calculations. 12. Admitted in part and denied in part. Defendant admits that Plaintiff was required to notify Orly Plastics Enterprises, Inc. of any nonconforming goods and afford it the opportunity to cure any such nonconformity. By way of further answer, Plaintiff never notified Orly Plastic Enterprises, Inc. or Orly Industry, Inc. of any nonconforming goods and never offered either entity the opportunity to cure any nonconformity that might have existed. The MPA is a document that speaks for itself and Defendant denies Plaintiff's characterization of the document, as applying to Defendant. 4 13. Admitted in part and denied in part. Defendant admits as to Orly Plastic Enterprises, Inc., the terms are incorporated into each purchase order. The MPA is a document that speaks for itself and Defendant denies Plaintiffs characterization of it, as applying to Defendant. By way of further answer, the MPA terminated on July 31, 2011, was not extended, and could only have been extended by a writing signed by Orly Plastic Enterprises, Inc. and Rite Aid. 14. Denied. The MPA is a document that speaks for itself and Defendant denies Plaintiff's characterization of it, as applying to Defendant. 15. Denied. The MPA is a document that speaks for itself and Defendant denies Plaintiff's characterization of it, as applying to Defendant. 16. Denied. The MPA is a document that speaks for itself and Defendant denies Plaintiffs characterization of it, as applying to Defendant. By way of further answer, the MPA terminated on July 31, 2011, was not extended, and could only have been extended by a writing signed by Orly Plastic Enterprises, Inc. and Rite Aid. Rite Aid did not extend the MPA beyond its expiration on July 31, 2011 and Orly Industry, Inc. was not a party to the MPA. 17. Admitted in part and denied in part. Defendant admits informing Plaintiff that, effective August 1, 2014, Rite Aid would be doing business with Orly Industry, Inc. and no longer with Orly Plastic Enterprises, Inc. Defendant denies any obligation to provide Rite Aid any new vendor paperwork or a W-9 form, absent a request from Rite Aid. Rite Aid made no such request. By way of further answer, Defendant specifically requested that Plaintiff address all purchase orders submitted after August 1, 2011 to Orly Industry, Inc. 18. Denied. Orly Industry, Inc. was incorporated long before Orly Plastic Enterprises, Inc. was dissolved, and the two companies coexisted for almost two years, carrying -out their 5 own businesses independent of one another. By way of further answer, Orly Plastic Enterprises, Inc. properly complied with all New York State laws in effecting its dissolution. 19. Denied. Orly Plastic Enterprises, Inc. and Orly Industry, Inc. remained separate and distinct entities. By way of further answer, upon its dissolution, Orly Plastic Enterprises, Inc. had no significant assets and was incapable of carrying-on the business for which it was formed. Orly Industry, Inc. did not operate in the production space occupied by the dissolved Orly Plastic Enterprises, Inc. No production assets of Orly Plastic Enterprises, Inc. were transferred to Orly Industry, Inc. Orly Industry, Inc. imported its own production equipment for manufacturing the plastic trash can liners it supplied Plaintiff. 20. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent Plaintiff's averment is not determined to be an incorrect conclusion of law, Defendant specifically denies Orly Industry, Inc. is the alter ego and/or the successor of Orly Plastic Enterprises, Inc. and further denies Orly Industry, Inc. is in any way liable for the conduct of Orly Plastic Enterprises, Inc. 21. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent Plaintiff's averment is determined not to be an incorrect conclusion of law, Defendant specifically denies Orly Industry, Inc. is the successor of Orly Plastic Enterprises, Inc. and further denies Orly Industry, Inc. inherited any obligations of Orly Plastic Enterprises, Inc. 22. Denied as stated. Upon information and belief, Defendant avers that in the fall of 2011 a contemporaneous supplier of other products to Rite Aid approached Rite Aid's buyer and asked to provide the liners Orly Industry, Inc. had been providing, but at a higher price. The 6 other supplier had a relationship with Rite Aid's buyer. It was only after this supplier approached Rite Aid, did Rite Aid complain that Orly Plastic Enterprises, -Inc. had not fulfilled its contractual obligations, under the MPA, which expired on July 31, 2011. 23. Denied. Neither Orly Plastic Enterprises, Inc. nor Orly Industry, Inc. engaged in a pattern of shortchanging Rite Aid, with respect to the quantity and the weights of liner orders. By way of further answer, upon information and belief, Defendant avers that Rite Aid did not become suspicious that Orly Plastic Enterprises, Inc. had not fulfilled its contractual obligations nor that Orly Industry, Inc. was not providing high quality liners. Upon information and belief, Defendant avers that it was Rite Aid's policy that the lowest priced supplier of conforming goods would be awarded supply accounts. Upon information and belief, Defendant avers that Rite Aid's buyers invented a rationale for giving the aforementioned other supplier the account Orly Industry, Inc. had been servicing, even though the other supplier charged a higher price, in order to circumvent Rite Aid's policy of using the lowest priced suppliers of conforming goods. 24. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. By way of further answer, Defendant consistently provided high quality liners to Plaintiff, throughout its dealings with Plaintiff, with a count accuracy within industry standards. By way of further answer, the weight of the boxes is not an accurate determinant of product quality. Due to the nature of the materials and processes used to produce plastic liners, the highest and very best quality goods could be of differing densities, which would yield differing weights. By way of further answer, Orly Industry, Inc. requested that Rite Aid provide it one box of each size of liners, selected at random, so Orly Industry, Inc. could confirm or deny nonconformance of the liners, if a defect were found determine the production line that caused it, 7 and take action to cure any defect that might be discovered. Rite Aid provided Orly Industry, Inc. only one box of liners to inspect, out of thousands shipped. Orly Industry, Inc. inspected the single box provided and found it to contain conforming liners in the appropriate amount. By way of further answer, by failing to respond to Orly Industry, Inc.'s repeated requests to inspect the alleged nonconforming products, Rite Aid denied Orly Industry, Inc. the opportunity to confirm or deny the conformance of the products. 25. Denied. Rite Aid did not contact Mr. Torkieh in an attempt to resolve the issue; rather, it contacted him demanding payment of $200,311, for the purpose of intimidating him. If Rite Aid had genuinely wanted to resolve the issue, it would have given Defendant timely notice of any product defects Rite Aid claimed and given Orly Plastic Enterprises, Inc. or Orly Industry, Inc. a reasonable time to cure the defect, as Rite Aid was obligated to do under the Uniform Commercial Code. Defendant further denies Mr. Torkieh said he "would make it up" to Rite Aid and did not deny that Orly Plastic Enterprises, Inc. or Orly Industry, Inc. had "shortchanged Rite Aid. On the contrary, Mr. Torkieh repeatedly insisted that Rite Aid was supplied with conforming products and repeatedly asked to inspect the shipments Rite Aid claimed were nonconforming. Rite Aid ignored Mr. Torkieh's requests. Mr. Torkieh was desperately trying to keep the Rite Aid account by offering more favorable terms, without increasing the level of acrimony. By way of further answer, Exhibit C of Plaintiffs Amended Complaint is a document that speaks for itself, and Defendant denies Plaintiff's characterization of it. 26. Denied. Orly Plastic Enterprises, Inc. and Orly Industry, Inc. consistently provided high quality liners to Rite Aid and Rite Aid's refusal to pay Orly Plastic Enterprises, Inc. or Orly Industry, Inc. invoices was and remains without justification. 8 27. Admitted in part and denied in part. Defendant admits that in a December 19, 2011 letter, Richard O'Brien, Senior Buyer for Rite Aid, claimed that Orly Plastics Enterprise, Inc. breached its agreement with Rite Aid, by providing liners not in accordance with Rite Aid's specifications, demanded that Orly Plastics Enterprise, Inc. pay Rite Aid $200,311, refused to pay Orly Industry, Inc.'s invoices totaling $72,563.05, and demanded mediation with Orly Plastics Enterprise, Inc., while admitting that the agreement it had with Orly Plastics Enterprise, Inc. had expired, and all the while knowing it had been doing business with Orly Industry, Inc. since August 1, 2011. Defendant denies the remainder of this averment, in that Plaintiff's Exhibit D is a document that speaks for itself and Defendant denies Plaintiff's characterization of it. By way of further answer Defendant specifically denies it did not provide conforming products to Plaintiff and specifically denies it admitted that it provided liners below Rite Aid's specifications. By way of further answer, since the MPA had expired and had not been extended in writing, and Orly Industry, Inc. was not a party to the MPA, Orly Industry was not bound by the MPA's mediation and arbitration provisions. 28. Admitted in part and denied in part. Defendant admits Orly Industry, Inc. did not respond to the December 19, 2011 letter's request for mediation, nor was it so obligated, given that Orly Industry, Inc. was not a party to the Agreement to which the letter refers, the letter was addressed to the dissolved Orly Plastic Enterprises, Inc., and the letter was sent almost five months after the Agreement had expired. Defendant admits it sued Rite Aid in New York State court for a portion of the invoices Rite Aid refused and continues to refuse to pay Defendant, such invoices not being part if the instant litigation before this court, and that Rite Aid removed the state case to the Federal District Court for the Eastern District of New York (E.D.N.Y.). By way of further answer, Rite Aid filed counterclaims in the pending E.D.N.Y. case, which are 9 substantially the same as the counts it pleads in the instant action before this court. By way of further answer, Rite Aid admits in its December 19, 2011 letter that the Agreement to which it refers had expired and Rite Aid knew or should have known, by notification given it by Defendant on August 1, 2011, that it was no longer dealing with Orly Plastic Enterprises, Inc. By way of further answer, Rite Aid elected to not enter into a new master purchase agreement with Orly Industry, Inc., although it could have done so and was being urged to do so by Orly Industry, Inc. 29. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of this averment and proof thereof is demanded, if relevant. By way of further answer, Plaintiffs averment is an incorrect conclusion of law, to which no response is required under the Pennsylvania Rules of Civil Procedure. In the even and to the extent Plaintiff's averment is not determined to be a conclusion of law, Defendant denies Plaintiff has suffered any damages as a result of the products Defendant supplied Plaintiff and strict proof to the contrary is demanded at trial. By way of further answer, Defendant denies Plaintiff is entitled to any damages. COUNT I BREACH OF CONTRACT OR IMPLIED CONTRACT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 30. Defendant incorporates by reference its responses to paragraphs 1 through 29 above, as though fully stated at length herein. 31. Denied. The MPA between Rite Aid and Orly Plastic Enterprises, Inc. expired on July 31, 2011, and, by its terms, could be extended only by mutual written consent of the parties. The parties did not mutually consent in writing to an extension. By way of further answer, prior to its dissolution, Orly Plastic Enterprises, Inc. did not assign its contract with Rite Aid to Orly, 10 Industry, Inc. By way of further answer, Orly Plastic Enterprises was dissolved by New York State proclamation on July 27, 2011 and, therefore, could not have consented to an extension of the MPA, even if Rite Aid had wanted to do so. Defendant denies Orly Industry, Inc. assumed Orly Plastics Enterprises, Inc.'s obligations under the expired MPA. Upon notification given on August 1, 2011, Orly Industry, Inc. began supplying liners to Rite Aid on a purchase request (PR) to PR basis, an arrangement accepted by Rite Aid. Defendant denies Orly Industry, Inc. was a party to an implied contract with Rite Aid and, given the nature of the transactions between Orly Industry, Inc. and Rite Aid, any contract between the entities would have had to be evidenced by a writing to be enforceable. Defendant denies it was bound by the MPA to provide Rite Aid liners of particular specifications as to weight. By the way of further answer, the remainder of Plaintiff's averment is a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure and the same is, therefore, denied. 32. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure and the same is, therefore, denied. In the event and to the extent that Plaintiff's averment is determined not to be an incorrect conclusion of law, Defendant specifically denies Orly Plastics Enterprise, Inc. or Orly Industry, Inc. breached any agreement with Plaintiff at any time. By way of further answer, Defendant denies that Plaintiff suffered any damages caused by Orly Plastic Enterprises, Inc. or Orly Industry, Inc. 33. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure and the same is, therefore, denied. In the event and to the extent that Plaintiff's averment is determined not to be an incorrect conclusion of law, Defendant specifically denies Orly Plastic Enterprises, Inc. or Orly Industry, 11 Inc. owes Rite Aid any monies. On the contrary, Rite Aid owes Defendant for invoices Rite Aid has refused to pay. 34. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent that Plaintiff's averment is determined not to be a conclusion of law, Defendant specifically denies any amount is due Plaintiff from either Orly Plastic Enterprises, Inc. or Orly Industry, Inc. 35. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent that Plaintiff's averment is determined not to be an incorrect conclusion of law, Defendant specifically denies Rite Aid fulfilled its obligations to Orly Plastic Enterprises, Inc. or to Orly Industry, Inc. 36. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent that Plaintiff's averment is determined not to be an incorrect conclusion of law, Defendant avers Orly Plastic Enterprises, Inc. and Orly Industry, Inc. acted in accordance with applicable law, industry standards, and contractual obligations at all times, thus obviating any need to rely on the doctrines of excuse or justification. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice, assess all costs and fees against Plaintiff, and provide Defendant such other relief as the Court deems just and appropriate. COUNT II UNJUST ENRICHMENT AGAINST ORLY PLASTICS ENTERPRISE, INC. AND ORLY INDUSTRY, INC. 12 37. Defendant incorporates by reference its responses in paragraphs 1 through 36 above, as though stated fully at length herein. 38. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent that Plaintiff's averment is determined not to be an incorrect conclusion of law, Defendant denies owing Plaintiff any amounts and further denies it has been unjustly enriched. On the contrary, Defendant has been unjustly impoverished, in excess of $34,634.00 due to Plaintiffs refusal to pay valid invoices. 39. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent that Plaintiff s averment is determined not to be an incorrect conclusion of law, Defendant avers Orly Plastic Enterprises, Inc. and Orly Industry, Inc. consistently supplied Plaintiff with conforming goods and proof to the contrary is demanded at trial, if applicable. 40. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent that Plaintiff's averment is determined not to be an incorrect conclusion of law, Defendant avers Orly Plastic Enterprises, Inc. and Orly Industry, Inc. have not been appreciated and thus enriched by Plaintiff. On the contrary, Plaintiff has been unjustly appreciated and enriched at Defendant's expense. 41. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent that Plaintiff's averment is determined not to be an incorrect conclusion of law, Defendant avers that Orly Plastic Enterprises, Inc. and Orly Industry, Inc. consistently supplied Plaintiff with 13 conforming goods and proof to the contrary is demanded at trial, if applicable. By way of further answer, Plaintiff has failed to plead any damages due to increased costs or diminished income attributable to its dealings with Defendant. 42. Denied. Plaintiff's averment is an incorrect conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure. In the event and to the extent that Plaintiff's averment is determined not to be an incorrect conclusion of law, Defendant avers that Orly Plastic Enterprises, Inc. and Orly Industry, Inc. consistently supplied Plaintiff with conforming goods and proof to the contrary is demanded at trial, if applicable. By way of further answer, Plaintiff has failed to plead any damages due to increased costs or diminished income attributable to its dealings with Defendant. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice, assess all costs and fees against Plaintiff, and provide Defendant such other relief as the Court deems just and appropriate. NEW MATTER 43. Defendant incorporates by reference its responses in paragraphs 1 through 42 above, as though stated fully at length herein. 44. On December 19, 2011, Plaintiff, for the first time, attempted formally to notify the dissolved Orly Plastic Enterprises, Inc. and formally notified Jacob Torkieh of Plaintiffs dissatisfaction with the liners provided Plaintiff. 45. Upon formally notifying Jacob Torkieh of Plaintiffs dissatisfaction with the liners, Plaintiff immediately demanded payment of $200,311.00 in claimed damages, rather than giving Mr. Torkieh an opportunity to confirm and, if necessary, cure any nonconforming goods. 14 46. Defendant requested that Plaintiff send it one box of each size of liners, selected at random, so Orly Industry, Inc. could confirm or deny nonconformance of the liners, if a defect were found determine the production line that caused it, and take action to cure any defect that might be discovered. 47. Plaintiff provided Orly Industry, Inc. only one box of liners to inspect, out of the many shipped and remaining in Rite Aid's inventory. 48. Orly Industry, Inc. inspected the single box provided and found it to contain conforming liners in the appropriate amount. 49. Over an extended period of time, Orly Plastic Enterprises, Inc. and Orly Industry, Inc. supplied customers other than Plaintiff with such liners, without ever having received a complaint. 50. At no time did Rite Aid inform Defendant that the liners failed to perform as intended and required. 51. Rite Aid has not and cannot reasonably plead any increased costs or diminished income, as a result of liners supplied it by Orly Plastic Enterprises, Inc. and Orly Industry, Inc. 52. The liners Orly Plastic Enterprises, Inc. and Orly Industry, Inc. supplied Rite Aid performed as intended and as required. 53. During the twelve-month duration of the MPA, Rite Aid did not notify Orly Plastic Enterprises, Inc. or Orly Industry, Inc. that either were providing nonconforming liners to Rite Aid. 54. At no time during the course of its dealing with Orly Plastic Enterprises, Inc. and Orly Industry, Inc. did Rite Aid afford either entity an opportunity to confirm and cure any nonconforming liners they might have supplied Rite Aid. 15 55. The liners Orly Plastic Enterprises, Inc. and Orly Industry, Inc. supplied Rite Aid met or exceeded industry standards, as to density of material, weight, and item count accuracy. 56. Neither Orly Plastic Enterprises, Inc. nor Orly Industry, Inc. admitted to not meeting Rite Aid's product specifications. 57. Rite Aid did not weigh the boxes of liners Orly Plastic Enterprises, Inc. and Orly Industry, Inc. supplied until at least the fall of 2011, if then. 58. Rite Aid provides no evidence, other than its misleading weight calculations, that the liners supplied during the duration of the MPA between Rite Aid and Orly Plastics Enterprise, Inc. were not in conformance with MPA requirements. 59. Upon its dissolution, Orly Plastic Enterprises, Inc. owned no significant assets and was incapable of carrying -on the business for which it was formed. Orly Industry, Inc. did not operate in the production space occupied by the dissolved Orly Plastic Enterprises, Inc. No production assets of Orly Plastic Enterprises, Inc. were transferred to Orly Industry, Inc. 60. In order to supply liners to Rite Aid, Orly Industry, Inc. had to acquire production assets from sources other than Orly Plastic Enterprises, Inc. In January of 2011, Orly Industry, Inc. imported its own production equipment for manufacturing plastic trash can liners. 61. Orly Plastic Enterprises, Inc. and Orly Industry, Inc. were separate and distinct coporations that coexisted for almost two years before Orly Plastic Enterprises, Inc. was dissolved. 62. Orly Industry, Inc. is not a successor corporation to Orly Plastic Enterprises, Inc. and at no time did Orly Plastic Enterprises, Inc. assign its contract with Rite Aid to Orly Industry, Inc. 16 63. Orly Industry, Inc. was not a party to the transactions that form the basis of Plaintiff's Complaint. 64. Plaintiff's Complaint fails to state a cause of action, upon which relief may be granted. 65. Plaintiff's initiation of this litigation is vexatious and designed to intimidate Defendant, a small, struggling company, from asserting its legal rights. 66. Plaintiff's Complaint is barred or limited by the doctrine of unclean hands. 67. Plaintiff's Complaint is barred or limited by the doctrine of laches. 68. Plaintiff's Complaint is barred or limited by the doctrine of estoppel. 69. Plaintiff's Complaint is barred or limited by the doctrine of release. 70. Plaintiff's Complaint is barred or limited by the doctrine of waiver. 71. Plaintiff's Complaint would be barred or limited by the doctrine of justification, if invoked. 72. Plaintiff's Complaint is barred by the statute of frauds. 73. Plaintiff's Complaint is barred or limited by the doctrine of accord and satisfaction. 74. Plaintiff's Complaint is barred or limited by the doctrine of consent. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice, assess all costs and fees against Plaintiff, and provide Defendant such other relief as the Court deems just and appropriate. COUNTERCLAIMS COUNT I BREACH OF CONTRACT BY RITE AID HDQTRS. CORP 75. Defendant incorporates by reference its responses in paragraphs 1 through 74 above, as though stated fully at length herein. 17 76. On August 1, 2011, Orly Industry, Inc. informed Rite Aid that it would be providing Rite Aid trash can liners. 77. After August 1, 2011 Orly Industry, Inc. began providing trash can liners to Rite Aid, on a purchase order to purchase order basis, with Rite Aid providing purchase orders and Orly Industry, Inc. filling the purchase orders and invoicing Rite Aid at the agreed upon price. 78. Orly Industry, Inc. instructed Rite Aid to address the purchase orders to Orly Industry, Inc., but Rite Aid replied that it would be too much work to do so, and Orly Industry, Inc. should fill the purchase orders addressed to Orly Plastics Enterprise, Inc., even though Orly Plastics Enterprise, Inc. had been dissolved on July 27, 2011. 79. In response to a Rite Aid purchase order, on or about September 6, 2011, Orly Industry, Inc. invoiced Rite Aid in the amount of $6,993.92 for trash can liners provided by Orly Industry, Inc. and received and accepted by Rite Aid. Copies of the purchase order and invoice are provided at Exhibit A. 80. Notwithstanding Rite Aid's receipt and acceptance of the aforementioned trash can liners, Rite Aid refused and continues to refuse to pay Orly Industry, Inc. the $6,993.92 it owes Orly Industry, Inc., in spite of Orly Industry, Inc.'s repeated demands. 81. By refusing to pay for the trash can liners, Rite Aid breached its agreement with Orly Industry, Inc. 82. Orly Industry, Inc. performed fully under its agreement with Rite Aid, meeting all conditions precedent to Rite Aid's duty to pay. 83. Rite Aid's breach of its agreement with Orly Industry, Inc., by failing to pay the $6,993.92 it owes, is without excuse or justification. 18 84. As a result of Rite Aid's breach of its agreement with Orly Industry, Inc., Orly Industry Inc. has suffered damages in the amount of $6,993.92. WHEREFORE, Orly Industry, Inc. requests judgment be entered in its favor and against Rite Aid, in the amount of $6,993.92, plus interest and costs, and any other amount the Court deems appropriate and just. COUNT II BREACH OF CONTRACT BY RITE AID HDQTRS. CORP 85. Defendant incorporates by reference its responses in paragraphs 1 through 84 above, as though stated fully at length herein. 86. On August 1, 2011, Orly Industry, Inc. informed Rite Aid that it would be providing Rite Aid trash can liners. 87. After August 1, 2011 Orly Industry, Inc. began providing trash can liners to Rite Aid, on a purchase order to purchase order basis, with Rite Aid providing purchase orders and Orly Industry, Inc. filling the purchase orders and invoicing Rite Aid at the agreed upon price. 88. Orly Industry, Inc. instructed Rite Aid to address the purchase orders to Orly Industry, Inc., but Rite Aid replied that it would be too much work to do so, and Orly Industry, Inc. should fill the purchase orders addressed to Orly Plastics Enterprise, Inc., even though Orly Plastics Enterprise, Inc. had been dissolved on July 27, 2011. 89. In response to a Rite Aid purchase order, on or about September 6, 2011, Orly Industry, Inc. invoiced Rite Aid in the amount of $1,729.92 for trash can liners provided by Orly Industry, Inc. and received and accepted by Rite Aid. Copies of the purchase order and invoice are provided at Exhibit B. 19 90. Notwithstanding Rite Aid's receipt and acceptance of the aforementioned trash can liners, Rite Aid refused and continues to refuse to pay Orly Industry, Inc. the $1,729.92 it owes Orly Industry, Inc., in spite of Orly Industry, Inc.'s repeated demands. 91. By refusing to pay for the trash can liners, Rite Aid breached its agreement with Orly Industry, Inc. 92. Orly Industry, Inc. performed fully under its agreement with Rite Aid, meeting all conditions precedent to Rite Aid's duty to pay. 93. Rite Aid's breach of its agreement with Orly Industry, Inc., by failing to pay the $1,729.92 it owes, is without excuse or justification. 94. As a result of Rite Aid's breach of its agreement with Orly Industry, Inc., Orly Industry Inc. has suffered damages in the amount of $1,729.92. WHEREFORE, Orly Industry, Inc. requests judgment be entered in its favor and against Rite Aid, in the amount of $1,729.92, plus interest and costs, and any other amount the Court deems appropriate and just. COUNT III BREACH OF CONTRACT BY RITE AID HDOTRS. CORP 95. Defendant incorporates by reference its responses in paragraphs 1 through 94 above, as though stated fully at length herein. 96. On August 1, 2011, Orly Industry, Inc. informed Rite Aid that it would be providing Rite Aid trash can liners. 97. After August 1, 2011 Orly Industry, Inc. began providing trash can liners to Rite Aid, on a purchase order to purchase order basis, with Rite Aid providing purchase orders and Orly Industry, Inc. filling the purchase orders and invoicing Rite Aid at the agreed upon price. 20 98. Orly Industry, Inc. instructed Rite Aid to address the purchase orders to Orly Industry, Inc., but Rite Aid replied that it would be too much work to do so, and Orly Industry, Inc. should fill the purchase orders addressed to Orly Plastics Enterprise, Inc., even though Orly Plastics Enterprise, Inc. had been dissolved on July 27, 2011. 99. In response to a Rite Aid purchase order, on or about September 7, 2011, Orly Industry, Inc. invoiced Rite Aid in the amount of $6,993.92 for trash can liners provided by Orly Industry, Inc. and received and accepted by Rite Aid. Copies of the purchase order and invoice are provided at Exhibit C. 100. Notwithstanding Rite Aid's receipt and acceptance of the aforementioned trash can liners, Rite Aid refused and continues to refuse to pay Orly Industry, Inc. the $6,993.92 it owes Orly Industry, Inc., in spite of Orly Industry, Inc.'s repeated demands. 101. By refusing to pay for the trash can liners, Rite Aid breached its agreement with Orly Industry, Inc. 102. Orly Industry, Inc. performed fully under its agreement with Rite Aid, meeting all conditions precedent to Rite Aid's duty to pay. 103. Rite Aid's breach of its agreement with Orly Industry, Inc., by failing to pay the $6,993.92 it owes, is without excuse or justification. 104. As a result of Rite Aid's breach of its agreement with Orly Industry, Inc., Orly Industry Inc. has suffered damages in the amount of $6,993.92. WHEREFORE, Orly Industry, Inc. requests judgment be entered in its favor and against Rite Aid, in the amount of $6,993.92, plus interest and costs, and any other amount the Court deems appropriate and just. COUNT IV BREACH OF CONTRACT BY RITE AID HDQTRS. CORP 21 105. Defendant incorporates by reference its responses in paragraphs 1 through 104 above, as though stated fully at length herein. 106. On August 1, 2011, Orly Industry, Inc. informed Rite Aid that it would be providing Rite Aid trash can liners. 107. After August 1, 2011 Orly Industry, Inc. began providing trash can liners to Rite Aid, on a purchase order to purchase order basis, with Rite Aid providing purchase orders and Orly Industry, Inc. filling the purchase orders and invoicing Rite Aid at the agreed upon price. 108. Orly Industry, Inc. instructed Rite Aid to address the purchase orders to Orly Industry, Inc., but Rite Aid replied that it would be too much work to do so, and Orly Industry, Inc. should fill the purchase orders addressed to Orly Plastics Enterprise, Inc., even though Orly Plastics Enterprise, Inc. had been dissolved on July 27, 2011. 109. In response to a Rite Aid purchase order, on or about September 12, 2011, Orly Industry, Inc. invoiced Rite Aid in the amount of $8,426.24 for trash can liners provided by Orly Industry, Inc. and received and accepted by Rite Aid. Copies of the purchase order and invoice are provided at Exhibit D. 110. Notwithstanding Rite Aid's receipt and acceptance of the aforementioned trash can liners, Rite Aid refused and continues to refuse to pay Orly Industry, Inc. the $8,426.24 it owes Orly Industry, Inc., in spite of Orly Industry, Inc.'s repeated demands. 111. By refusing to pay for the trash can liners, Rite Aid breached its agreement with Orly Industry, Inc. 112. Orly Industry, Inc. performed fully under its agreement with Rite Aid, meeting all conditions precedent to Rite Aid's duty to pay. 22 113. Rite Aid's breach of its agreement with Orly Industry, Inc., by failing to pay the $8,426.24 it owes, is without excuse or justification. 114. As a result of Rite Aid's breach of its agreement with Orly Industry, Inc., Orly Industry Inc. has suffered damages in the amount of $8,426.24. WHEREFORE, Orly Industry, Inc. requests judgment be entered in its favor and against Rite Aid, in the amount of $8,426.24, plus interest and costs, and any other amount the Court deems appropriate and just. COUNT V BREACH OF CONTRACT BY RITE AID HDQTRS. CORP 115. Defendant incorporates by reference its responses in paragraphs 1 through 114 above, as though stated fully at length herein. 116. On August 1, 2011, Orly Industry, Inc. informed Rite Aid that it would be providing Rite Aid trash can liners. 117. After August 1, 2011 Orly Industry, Inc. began providing trash can liners to Rite Aid, on a purchase order to purchase order basis, with Rite Aid providing purchase orders and Orly Industry, Inc. filling the purchase orders and invoicing Rite Aid at the agreed upon price. 118. Orly Industry, Inc. instructed Rite Aid to address the purchase orders to Orly Industry, Inc., but Rite Aid replied that it would be too much work to do so, and Orly Industry, Inc. should fill the purchase orders addressed to Orly Plastics Enterprise, Inc., even though Orly Plastics Enterprise, Inc. had been dissolved on July 27, 2011. 119. In response to a Rite Aid purchase order, on or about September 16, 2011, Orly Industry, Inc. invoiced Rite Aid in the amount of $10,490.88 for trash can liners provided by Orly Industry, Inc. and received and accepted by Rite Aid. Copies of the purchase order and invoice are provided at Exhibit E. 23 120. Notwithstanding Rite Aid's receipt and acceptance of the aforementioned trash can liners, Rite Aid refused and continues to refuse to pay Orly Industry, Inc. the $10,490.88 it owes Orly Industry, Inc., in spite of Orly Industry, Inc.'s repeated demands. 121. By refusing to pay for the trash can liners, Rite Aid breached its agreement with Orly Industry, Inc. 122. Orly Industry, Inc. performed fully under its agreement with Rite Aid, meeting all conditions precedent to Rite Aid's duty to pay. 123. Rite Aid's breach of its agreement with Orly Industry, Inc., by failing to pay the $10,490.88 it owes, is without excuse or justification. 124. As a result of Rite Aid's breach of its agreement with Orly Industry, Inc., Orly Industry Inc. has suffered damages in the amount of $10,490.88. WHEREFORE, Orly Industry, Inc. requests judgment be entered in its favor and against Rite Aid, in the amount of $10,490.88, plus interest and costs, and any other amount the Court deems appropriate and just. COUNT VI UNJUST ENRICHMENT (Plead in the Alternative to Counts I through V) 125. Defendant incorporates by reference its responses in paragraphs 1 through 124 above, as though stated fully at length herein. 126. The doctrine of unjust enrichment, as set forth in the Restatement of Restitution, has been adopted in the Commonwealth of Pennsylvania. 127. Under the doctrine of unjust enrichment, a party receiving a benefit from another party is required to pay the value of such benefit to avoid the party being unjustly enriched at the expense of the other party. 24 128. Rite Aid has received from Orly Industry, Inc. trash can liners valued at $34,634.88, as evidenced by Exhibits A through E attached hereto. 129. Rite Aid received a benefit amounting to $34,634.88 from Orly Industry, Inc., without paying for such benefit. 130. Allowing Rite Aid to retain the benefit of the value of the aforementioned trash can liners, without compensating Orly Industry, Inc., in the amount of $34,634.88, would be unjust. WHEREFORE, should the Court determine, for whatever reason, that the purchase and sale agreements Rite Aid entered into with Orly Industry, Inc. are not justiciable in contract, Orly Industry, Inc. respectfully requests, in the alternative, that judgment be entered in its favor and against Rite Aid on Count VI of the Defendant's counterclaims, and that Rite Aid be compelled to pay Orly Industry, Inc. the full value of the enrichment conveyed upon Rite Aid, as well as cost, interests and such other relief as the Court deems just and appropriate. Dated: January / a, 2015 Respectfully submitted, Douglas C. 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RITL (.10 CONTROLLED 0111PMEN76 ARE BOUND BY TIM TERMS AND CONDITIONS Of IHE IRE AID M1PITI IEP COMPLIANCE GUIDE. 17) ALL OELIVEFUL-S PFOUNIE A DELNERV APPOMMENT FOR PREPAID SHIPMENTS, 1 IfF. DRIVER rE• nesPotemn. E. FOR DDLOADIM AND ALL ASS47(ATED FLEg., j. n419 PO ((.146 131 ANDAND 1 ERNS it C1N04170/49) SHALL ONLY BE Nor() AND AM* IfLE-.:0 111 A WRITING SIGNED LIY Fin t AE AND THE VENDOR 02} AL L PAYMENTS ta$�UD(TONA& LY GUARANTEED BY RiTt AID CCRPORATION. COMPUANCE 3 RECUIP ED TO THE RITE AL, WiPPLIER COMPLIANCE GUIDE ADD THE PHARMACY SUPPLY poucv ihoneeolEfrr 110 FIRE AID ISSUM THIS PIACI ABE ORDER UNDER ITS sTowoRRO TEtats AND CONENTIONS AS CORI/J/4ED 91 THE SUPPLIER COMPLIANCE WIDE. (I1). RITE AID SUP PIJER COMPLIANCE GUIDE LOGIN TO SUPPLIER PORTAL LIN WE/MITE yMirijiglagMairt SELECT OUR COMPANY TAB THEN SUPPLIER PORTAL ' '111/.1131. 13 • . .1 alr Ct4 CO- I • ifIELS 14/C01'40 E4LAL conPtr-sPO4Co.)14f 5261750 ORLYPIASTIC ENTERPRISE E 11 COST DEA NUUBER VENDOR DATE 4394 WWI) PO SET/CATON! n PES • VESIDOS ITEM MAMA ocomprooti co.sn taro OUR (TWA 7 DIM P.I8R AL-OW/0CE Iwo MUTT TYP AMOUNT HIC moss MST COST ORDER QUANTRY TRASHLINER 43X445 cuan 200 9 1 X 1 475772A 01 13.911 6/ CS 441 TRASFIDNER30X17 CLEAR SODS _..1 X I mans 91 9.01 v/ CS no CS ....- PO TERMS AVAJtABLE " t00000% 10 1 PO :TOTALS . OFF INVOICE AMOUNT NET INVOICE AMOUNT 8428.24 8428.24 SUYEN- OSPIEN. RICH ' ° ^ •••• . ie MESSARE ILI VI RI . • .. • • 4*.; 41*,-- • —to 4 v44•4.4.,- 1.4.0.4•4:f 'a • • .*• — ;•.-.•;;‘:4144'%; *404 • •— "'? , .. . • • ... • ....... . . •.! . . ..... . . . ... ....... . . . . . . • . . . . . • 9/9 e6ed 99:171. ttOZ/90/Zt Fill AID PO � P1 1 i►Ui Mkt Au INVOCES TO ABOVE ADORES) ii ;FnJI INftRtyB, pi Oki PREPAID ©i�EHiS RFFER -a 4volcE A At g R E 3UPPLrtq COr4pt Cl G►J0E pi FCRry80UNDPREP ND cies MATED WITHPRFp+itl)Tra ►t GELCM r iS11FO �NBOtI+DPERFORMANCE F1LCHAR 0E9 E���� ltITgAREW17N►tELOFFip� 1 IDEIENTLOii I L RfiT AND SE PPEPA.0 80 St T �tDOR IpOppTO�L),E,Li�llpRy f7P Iy4PLl - t�$18LE FQR CARTIER '"—„'"r"�YEF4r�Al1A N. BIER !+'u NC (3 OE E T�'IE gATt ATIOR DEPARTMENT F gOI�TfXaONCOI � 1R11d CFIAtiQES CV FOR lY./LGAM2 ALL DEUVERIES F-R� �1 OF1tVtFCy 8Y ihF reams Ate'► H3 OLLED 07 EbF.6 r: A). TJ ►'O IAr�a STANDARD A ELINC FEE9Fo+wTmEor FOR PRE PAID su,ptt vrn S REAID SIGNED By Fry 4ic l ENA 8 THE �. AU PAYI,(AM1 Ur O IT Eitw THE 4 =T ALL OW Y DRIVER iN ►S luredO IQ di$ ATT T ERTS ur<R C LY GUARAHIEEDBV MiEAla C 1.PORA Fore O MPLAUC tN A EOUME UPPL (Smut:: JAN E GUIDE. p ' THE PNARLACY FORATIOq CCti6Pl THE to TE SER UM SUPER PULIDAGREEMENT. � E SC O SELlEt,-T R'COMp�� �u NCE GUIDE L � ITS STANDARD TERMS Atlp t�j{On� � W[RED TO ut TAB TNI.NOE GUI E PORTAL. ro6tiPPIlEs }+gmAL ON wEas TE Xyy CbHT1JNED W DEA HUMBER Y 4R [teas 07,77/11 PO INGIc4TO1t; 7,2 PACE' i birYFJt, craRlfrt.RICH nfliS$A©p TLI ‘'EhIliOR r.. VERIFICATION The undersigned does hereby verify, subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities, that the facts and circumstances set forth in the foregoing Defendant's Answer with New Matter to Plaintiffs Amended Complaint and Counterclaims are true and correct to the best of its knowledge, information, and belief. Orly Industry, Inc., by Jacob Torkieh Date: December -1 , 2014 Defendant CERTIFICATE OF SERVICE I, Douglas C. Lovelace, Jr., attorney for Defendant, Orly Industry, Inc., hereby certify that on January / a, 2015, I served a true and correct copy of the foregoing Defendant's Answer with New Matter to Plaintiffs Amended Complaint and Counterclaims upon the below named individuals by depositing the same in the United States mail, first class, postage prepaid, at Carlisle, Cumberland County, Pennsylvania. SERVED UPON: Brian P. Downey, Esquire Kathleen A. Mullen, Esquire Pepper Hamilton LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Plaintiff /dK. I/ r Douglas C. Lovelace, Jr., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 Attorney for Defendant Orly Enterprise, Inc. RITE AID HDQTRS. CORP., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. ORLY PLASTICS ENTERPRISE, INC., and ORLY INDUSTRY, INC. Defendants : CIVIL ACTION — LAW : NO. 14 3289 CIVIL TERM IN RE: MOTION OF THOMAS, THOMAS & HAFER, LLP, FOR LEAVE TO WITHDRAW AS COUNSEL FOR DEFENDANTS ORLY PLASTICS ENTERPRISE, INC., & ORLY INDUSTRY, INC. ORDER OF COURT AND NOW, this 9th day of January, 2015, no answer having been filed to the Rule issued on December 8, 2014, in the above matter, Thomas, Thomas & Hafer, LLP, is granted leave to withdraw as counsel for Defendants Orly Plastics Enterprise, Inc., and Orly Industry, Inc.. IT IS FURTHER ordered that Defendants are ordered to obtain new counsel within 30 days of the date of this Order. BY THE COURT, Christylee L. Peck, J. Brian P. Downey, Esq. Kathleen A. Mullen, Esq. PEPPER HAMILTON LLP Suite 200, 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Plaintiff C) '' t7 rq cZ CC) r t -,. -<? kr, r -- <u T_. -0 c) /�avid L. Schwalm, Esq. Anthony T. Bowser, Esq. Thomas, Thomas & Hafer, LLP P.O. Box 999, Harrisburg, Pa 17108-0999 Attorney for Defendants �acob Torkieh Orly Plastics Enterprise, Inc. 106 Lexington Avenue Brooklyn, NY 11238 Defendant :rc