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14-4104
Supreme C, t ofTeennsylvania CouIr,A •C&nZo"afi\,Pleas . For Prothonotary Use Only: � t. luti. Cavil CoversSheet +, Docket No: q CUBRLAIVOCounty The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules ofcourt. Commencement of Action: S [@ Complaint 0 Writ of Summons �' Petition Transfer from Another Jurisdiction Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T Rite Aid HDQTRS. Corp. Downright Healthy Foods, L.P. Dollar Amount Requested: ©i within arbitration limits I Are money damages requested? rE Yes O •No (check one) ®x outside arbitration limits O N Is this a Class Action Suit? Yes El No Is this an MDJAppeal? Yes 'x No A Name of Plaintiff/Appellant's Attorney: Brian P. Downey/Tucker R. Hull 0 Check here if you have no attorney(are a Self-Represented [Pro Sel 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 El Intentional 0 Buyer Plaintiff Administrative Agencies M Malicious Prosecution Ci Debt Collection: Credit Card El Board of Assessment Motor Vehicle xl Debt Collection: Other Board of Elections Nuisance Breach of Contract Dept.of Transportation Premises Liability 0 Statutory Appeal:Other S 0 Product Liability(does not include 0 Employment Dispute: mass tort) F' C i Slander/Libel/Defamation Discrimination C l Other: 0 Employment Dispute:Other 0 Zoning Board T i:J Other: I ©i Other: O MASS TORT 0 Asbestos N E] Tobacco Toxic Tort-DES El Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS Toxic Waste Q Ejectment 0 Common Law/Statutory Arbitration B n Other: 0 Eminent Domain/Condemnation [_{ Declaratory Judgment 0 Ground Rent CJ Mandamus 0 Landlord/Tenant Dispute 0 Non-Domestic Relations El Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial 13 Quo Warranto ® Dental E] Partition 13 Replevin f_i Legal [3 Quiet Title 0 Other: 0 Medical ❑ Other: 1 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. 1 ' CIVIL TERM VS. DOWNRIGHT HEALTHY FOODS, L.P., CIVIL ACTION - LAW 512 Wagonwheel Court Colleyville, TX 76034 - = , Defendant. -1 00r- -..yam ;iD tri,.. �y,y t'c`) NOTICE TO DEFEND A 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 s ( 13.7SQ RITE AID HDQTRS. CORP, IN THE COURT OF COMMON PLEAS OF 30 Hunter Lane : CUMBERLAND COUNTY, PENNSYLVANIA Camp Hill, PA 17011 Plaintiff, NO. CIVIL TERM VS. DOWNRIGHT HEALTHY FOODS, L.P., CIVIL ACTION - LAW 512 Wagonwheel Court Colleyville, TX 76034 Defendant. AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mds adelante en las siguientes pdginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mds aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. Sl 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 TERM VS. DOWNRIGHT HEALTHY FOODS, L.P., CIVIL ACTION - LAW 512 Wagonwheel Court Colleyville, TX 76034 Defendant. COMPLAINT Plaintiff Rite Aid HDQTRS. Corp. ("Rite Aid"), by and through 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. Upon information and belief, defendant Downright Healthy Foods, L.P. ("Downright Healthy"), is an Ontario limited partnership with a principal place of business at 512 Wagonwheel Court, Colleyville, TX 76034. JURISDICTION AND VENUE 3. This court has jurisdiction pursuant to 42 Pa.C.S. § 931(a). 4. 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. RELEVANT FACTS 5. Rite Aid is a national drug store chain with its principal office in Cumberland County, Pennsylvania. 6. At all times relevant to this Complaint, Downright Healthy was involved in the sale and distribution of food products ("Products"). 7. Throughout the course of their relationship Rite Aid and Downright Healthy entered into a series of agreements. Included among these agreements is a Defense and Indemnity Agreement by which Downright Healthy agreed to defend, indemnify and hold Rite Aid harmless from various claim, investigations and/or lawsuits. A true and correct copy of this agreement is attached as Exhibit A. The parties agreed that Agreement would"be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law, rules and principles." The parties further agreed that any dispute related to that agreement would be "venued exclusively in the Court of Common Pleas for Cumberland County, Pennsylvania." Id. § 7. 8. The parties also entered into a Mutual Confidentiality Agreement regarding the confidentiality of trade secrets and confidential or proprietary information. A true and correct copy of this agreement is attached as Exhibit B. The parties also agreed that agreement would be construed according to the laws of the Commonwealth of Pennsylvania and that any dispute regarding that agreement"shall be brought exclusively in the Court of Common Pleas for Cumberland County, Pennsylvania." Id. § 7(b). 9. Downright Healthy Foods also signed a Letter of Understanding dated April 11, 2011, by which it agreed to comply with Rite Aid's Supply Chain Guide which also requires that disputes between the parties be litigated in this Court. A true and correct copy of the Letter of Understanding is attached hereto as Exhibit C. -2- 10. On November 29, 2013, Downright Healthy Foods signed a Recall Disposition Form related to a recall of its product in which it requested that Rite Aid dispose of Product at Rite Aid's option and that disposition costs for any returns to distribution centers would be a 6%handling charge. A true and correct copy of the Recall Disposition Form is attached hereto as Exhibit D. 11. On December 2, 2013, the parties entered into an Incremental Investment Agreement by which Downright Healthy Foods authorized its products in Rite Aid stores. A true and correct copy of the Incremental Investment Agreement is attached hereto as Exhibit E. 12. As of July 10, 2014, Downright Healthy' s account reflects a$196,962.08 negative balance based on charges that Downright Healthy agreed to pay to Rite Aid. A true and correct copy of the current Statement of Account is attached hereto as Exhibit F. 13. All of the charges reflected on the Statement of Account as attached hereto as Exhibit F are authorized by one or more of the agreements executed by Downright Healthy. 14. As of the date of the filing of this Complaint, Downright Healthy is in breach of its agreements with Rite Aid because it refuses to pay Rite Aid the negative account balance due. 15. Additionally, Rite Aid currently has approximately $100,368.00 in additional Downright Healthy Food Product in its stores that it seeks to dispose of in accordance with the agreements between the parties. 16. Downright Healthy Foods's refusal to comply with its obligations under its various agreements with Rite Aid resulted in an anticipatory breach of these agreements with respect to the remaining Product. -3- COUNT 1 BREACH OF CONTRACT 17. Rite Aid incorporates the averments in paragraphs 1 through 16 above as if fully set forth herein. 18. As noted above, Rite Aid and Downright Healthy executed a series of agreements that set forth the terms and conditions governing their relationship. 19. The agreements entered into between Rite Aid and Downright Healthy are valid and enforceable. 20. Rite Aid has performed all conditions precedent under all agreements with Downright Healthy. -21. As of May 30, 2014, Downright Healthy has a negative account balance of $196,962.08. 22. Downright Healthy Foods is in anticipatory breach of its remaining obligations to Rite Aid with respect to the return of Product in the amount of$100,368.00. 23. Despite repeated requests and attempts to resolve this dispute, Downright Healthy refuses to pay the negative account balance to Rite Aid. 24. Downright Healthy is in breach of its contract with Rite Aid because it has failed to pay the negative balance on its account. 25. Downright Healthy's conduct is without excuse or justification. 26. As of the date of this filing, Rite Aid has suffered or will suffer damages in excess of$297,330.08 due to the breaches of Downright Healthy. WHEREFORE, Rite Aid requests judgment in an amount in excess of $297,330.08,plus interest, costs and all other amounts deemed appropriate by the Court. -4- COUNT II UNJUST ENRICHMENT 27. Rite Aid incorporates the averments in paragraphs 1 through 26 above as if fully set forth herein. 28. In the event Downright Healthy contends that some or all of the above- referenced agreements are invalid or unenforceable, Rite Aid is entitled to recover the outstanding amounts due to prevent Downright Healthy from being unjustly enriched. 29. As is customary in the industry, Downright Healthy was to pay for certain fees associated with the sale of its product and to contribute certain amounts of money for the marketing and promotion of its products. 30. Rite Aid has a reasonable expectation to be paid the negative balance comprising such fees and marketing and promotional expenses. 31. In the event that some or all of the above-referenced agreements between Rite Aid and Downright Healthy are deemed to be unenforceable, Rite Aid has no adequate remedy at law. 32. Downright Healthy reasonably should have expected to pay the fees and marketing expenses set forth in the Statement of Account that is attached hereto as Exhibit F, as such fees and expenses are customary in the industry. 33. It would be inequitable for Downright Healthy to receive the benefit of the amounts still owed to Rite Aid. 34. Rite Aid is entitled to collect the outstanding balance,plus interest, from Downright Healthy under the doctrine of unjust enrichment. 35. Downright Healthy's wrongful conduct has caused damage to Rite Aid. -5- WHEREFORE, Rite Aid requests judgment in its favor and against Downright Healthy in an amount in excess of$297,330.08, plus interest, costs and all other amounts deemed appropriate by the Court. Dated: July 14, 2014 Brian P. Do ey ker R. Hu (PA 306426) Suite 200 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 866.422.1305 (direct fax) downeybka pepperlaw.com hulltkpepperlaw.com Attorney for Plaintiff Rite Aid Hdqtrs. Corp. -6- EXHIBIT A DEFENSE AND INDEMNITY AGREEMENT IAGREEMENT made this 12 day of _ April 20 11 b Downright Healthy Foods LP , and its subsidiaries and/or affiliated companies (hereinafter "Seller") and Rite Aid HDOTRS. CORP., and its affiliated companies(hereinafter"Rite Ala"). WHEREAS, Rite Aid has purchased, and/or may purchase for resale primarily tog-- (Fm"tted:Right -0.01- consumers, goods, products(including pharmaceutical and O.T.C.)or other items or articles (hereinafter"Product")from Seller,and WHEREAS, Seller has agreed to defend, Indemnify and hold harmless Rite Aid of and from all claims, investigations and/or lawsuits arising out if its sales of Product, as provided herein; NOW, therefore, the parties hereto agree, for good and valuable consideration, and Intending to be legally bound,as follows: 1. Compliance with the Law. Seller acknowledges that all Product provided to Rite Aid is saleable and compliant with all applicable laws in all jurisdictions where Rite Aid operates. 2. Defense and AndernriMcation. Seller shall defend, indemnify and hold harmless Rite Aid, its shareholders, officers and agents, affiliated companies, and subsidiaries from any and all losses, expenses, damages, costs and attorneys fees that they, or any of them, may at any time from the date hereof incur by reason of certain claims, actions and/or Investigations by the Consumer Product Safety Commission and/or any other federal, state, local or other governmental entity and also including as well,but not limited to,claims and/or lawsuits involving allegations by any person or entity of negligence, personal injury, product liability, failure to comply with Paragraph 1 above, as well as Intellectual property rights infringement arising out of the sale, purchase, consumption and/or use of each of the Product sold to Rite Aid. 3. Ins_ urance. Without limiting any of Seller's obligations or liabilities hereunder, Seiler further agrees to procure and maintain at Seller's sole cost and expense Comprehensive General Uability Insurance including product liability insurance, with limits of liability of not less than$5.0 million. Said policy of insurance shall name Rite Aid as an additional Insured at Sellers expense. A duly executed certificate of insurance shall be delivered to Rite Aid within fifteen (15) days of the execution of this Agreement and renewal thereof shall be delivered at least thirty(30)days prior to the expiration of the policy term. 4. Legal Actions. Rite Aid will give the Seller reasonable notice of any investigations, suits or actions instituted against Rite Aid. Rite Aid will cooperate with the Seller In connection with the defense or settlement of such action. Rite Aid shall select and retain counsel at Seller's expense to defend Rite Aid in any such action. S. Benefits. This Agreement shall survive and be binding upon and shall inure to the benefits of the parties, their legal representatives, successors and assigns. The prevailing party in any enforcement action related to this Agreement Is entitled to recover all of its attorneys'fees and costs. 6. Merger. Clause. Amendment• Counteroarts, This Indemnification Agreement represents the entire understanding between the parties regarding the subject matter hereof, superseding all prior understandings,oral or In writing. This Indemnification Agreement may not be changed, amended or modified.except by an Agreement In writing, signed by all parties hereto. This Agreement may be executed in one or more counterparts, and by the parties hereto In separate counterparts,each of which shall be deemed to be an original but all of which taken together shall constitute one and the same Agreement. 7. Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law rules and principles. Any dispute(s) related to this Agreement shall be venued exclusively in the Court of Common Pleas for Cumberland County,Pennsylvania. Downright Healthy Foods LP RITE AID HDOTRS.CORP. 04 Formaue&Font:Italic By: By: O��N YO�b M)Kp EXHIBIT B Business Relationship MUTUAL CONFIDENTIALITY AGREEMENT THIS MUTUAL CONFIDENTIALITY AGREEMENT (this "Agreement"), dated —___, 2011_, is by and between Rite Aid HDQTRS. CORP., a Delaware Corporation ("Rite Aid"), and---Downright Health Foods a John Vince corporation("Vendor"). 1• Bach d. Rite Aid and the Vendor intend to engage in discussions and negotiations concerning the possible establishment of a business relationship between them. In the course of such discussions and negotiations, it is anticipated that each party will disclose or deliver to the other party, including its Representatives (as defined below), certain of its trade secrets or confidential or proprietary information for the duone another into enga evaluate the proposed business relationship. In order to i gi ngpose of enabling the other party he to discussions and negotiations described above, the parties desire to ensure the confid such trade secrets and confidential or proprietary information pursuant to the terns and subject to of of the conditions set forth below. 2• Construction and Definitions. As used in this Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terns of limitation, but rather shall be deemed to be followed by the words "without limitation." The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. All references to "party" and "parties" shall be deemed references to parties to this Agreement unless the context shall otherwise require. The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. Whenever used in this Agreement, unless something in the subject matter or context is inconsistent therewith, the following words and terms shall have the respective meaning ascribed to them as follows: (a) "Disclosing Party"is the party disclosing Proprietary Information. (b) "Proprietary Information" means all trade secrets or confidential or proprietary information designated as confidential or proprietary Party, whether by letter or by the use of an appropriate stain orlegend,ting by the Disclosing any such trade secret or confidential orproprietaryp Prior to or at the time information is disclosed by the Disclosing Party to the Recipient. Notwithstanding the foregoing, information that is orally or visually disclosed to the Recipient by the DisclosingP� appropriate letter, stamp or legend, shall constitute Proprietary r is disclosed in writing without an Information if the Disclosing Party provides a written document or documents (that is received by Recipient within ten (10) business days of such disclosure) providing notice and describing such confidential or proprietary information and referencing the place and date of such oral, visual or written disclosure and the names of the employees or officers of the Recipient to whom such disclosure was made. Proprietary Information also means any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its Representatives that contain, reflect or are based upon, in whole or n the Reci ien P� Proprietary Information fiunishd to p t, including its Representatives, pursuant to this Agreement. Without limiting the generality of the foregoing, Proprietary Information shall also be deemed to include all lists or Revisod 10/23/07 other compilations that identify Rite Aid and any other confidential whether such information has been designated as confidential orproprie�oyinformation, regardless of �y information. (c) "Recipient"means the party receiving Proprietary Information. (d) "Representatives" means directors, managers, officers, employees, agents or advisors, including attorneys, accountants, consultants, bankers and financial advisors. 3• Use and Disclosure of Pro net Information. The Recipient, including its Representatives, shall use the Proprietary g negotiating or advising with respect o a possible business relationship betonly for the ween of evaluating, Agreement and the Proprietary Information shall not be used for an other en the a with u this Prior written consent of the DisclosingP y purpose without the arty. The Recipient, including its Representatives, shall hold in confidence, and shall not disclose to an third Disclosing Party; provided, however, rm ti that the Recipient maarty y make anyydisclosure off the information to which the DisclosingP such law, regulation or decree. Proprietary groes its prior written consent or which is required by Information may be disclosed to the Representatives of the Recipient who (i) need to know such information for the sole or advising with respect to a possible business relationshipande(i�Of ee informed of the confidential nature of such information and of the tenors of this Agreement, be responsible for any breach of this Agreement by anhe Recipient shal y of its Representatives, and agrees, 1 gr , at its sole expense, to take reasonable measures to restrain its Representatives from rohibited unauthorized disclosure or use of the Proprietary Information. p or 4• Limitation on Obli ations. The obligations of the Recipient specified in Section 3 above shall not apply, and the Recipient shall have no further obligations, with respect to Proprietary Information to the extent that such Proprietary Information: p any (a) is generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the Recipient, or is readily ascertainable by the Recipient from publicly available sources; a result of Recipient's breach o Recipient's possession at the time of disclosure otherwise than f any legal obligation; anas (c) becomes known to the Recipient through disclosure by sources other.than the Disclosing party having the legal right to disclose such Proprietary Information; (d) is independently developed by the Recipient without use of the Proprietary Information; or (e) is required to be disclosed by the Recipient to comply with applicable laws or governmental regulations or in response to a request from a governmental entity in connection with a governmental proceeding or investigation, written notice of such disclosure to the Disclosing Provided (i) that the Recipient provides prior to avoid and/or minimize the-extent of such disosure and arty and � notwithstanding l and the foregoing;actions Recipient shall have no obligation pursuant to subsection (e)(i) of this Section 4 if it determines ( )() -2 - that such actions would be inconsistent with its legal obligations or lawful interests in with a governmental proceeding or investigation. connection S. Ownershiv of Pro net Information. The Recipient agrees that the Disclosing Party is and shall remain the exclusive owner of Pro smg Disclosing party and all patent, co Information disclosed by the copyright, trade secret, trademark and other intellectual property rights therein. No license or conveyance of any such rights to the Recipient is under this Agreement. The parties acknowledge and agree that in the course of their or implied discussions the Vendor may eu• business Y Provide ideas, comments, proposals and other information, the Purpose of which is related to the provision of products and services to Rite Ai notwithstanding any provision hereof to the contrary, � and to restrict the right of Rite Aid to use any information, including Proprietaryis shall o deemed disclosed by the Vendor and retained in the unaided memory of anRepresentative Information, who properly had or has access to such information. Y of Rite Aid 6• Return of Pronrieta_ry Information. The Recipient shall, upon the written of the Disclosing Party, return to the Disclosing Party or destroy all proprietary request received by the Recipient from the Disclosin PP etary Information and to the extent the Recipient has any notes, analysesalco copies compilations,sProductions thereof. If memoranda or other documents prepared by the Recipient or its Repres ntati'ti theretions, reflect or are based upon, in whole or in part any pro riet contain, Disclosing Party to Recipient pursuant to this Agreemnt�InneProvided by the documents so that the proprietary Information is no longer accessible or Recipient shall redact such Practical, the Recipient shall continue to be bound b if redaction is not documents until they are destroyed. Y this Agreement with respect to such 7• Miscellaneous. (a) This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors and assigns. Agreement without first obtaining the written consent of the other parry,Neither P� may assign this (b) This Agreement shall be construed and interpreted in a internal laws of the Commonwealth of pensYlvania, without accordance with the conflicts of law thereof. Any dispute related to this Agreementt giving b brought to the principles of the Court of Common Pleas for Cumberland County, Pnnsylvania xclusively in (c) The Parties acknowledge and agree that the provisions of this Agreement including the scope and term of this Agreement, are necessary for the protection and goodwill of the parties and are considered b the P of the business The Recipient agrees that any breach of this Agreement may causees to be rable for the Di such Purpose. substantial and irreparable damages and, therefore, in the event of any such breach, Party other remedies Which maybe available, the DisclosingP h, in addition to Performance and other injunctive and equitable relief as well ash attoriney'slfees std seek specific costs . respect 1 ex eOf each Party as Recipient hereunder, the confidntiali P two(2)years from the date of this A tY obligations of this Agreement gr'eemnt. 3 - (e) Any notice with reference to this Agreement, including any notice Provided pursuant to Section 2(b)hereof, shall be made by certified mail or overnight mail to the address set forth below. (f This Agreement may be signed in any number of counterparts,but all such counterparts shall constitute one and the same instrument. Each party hereto will receive by delivery or facsimile transmission a duplicate original of the Agreement executed by each p and each party agrees that the deliveryarta', of the Agreement by facsimile transmission will be deemed to be an original of the Agreement so transmitted. (g) This Agreement supersedes all prior agreements, written or oral, between the Disclosing Party and the.Recipient relating to the subject matter of this Agreement: This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the parties hereto. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first written above. RITE AID HDQTRS. CORP. [VENDOR] By: By: Name: Name: Ishain Kimbell Title: Title: Vice President of Sales 30 HUNTER LANE Address: _512 Wagonwheel Ct. CAMP HILL,PA 17011 Colleyville, TX 76034 -4- EXHIBIT C FAX(717)975-8623 OR EMAIL TO ED!t'd►RITEAID COM t Date:__1prn 11,2011 Vendor No. Name*, _.sham Kimbell Company: Downright Healthy Foods/John Vince Address: 555 Steeprock Drive State,Zip: _____: Toronto,ON,Canada M3J2Z6 Dear Valued TradIng,.,artner. Letter of Understanding Rite At t^.orporation(Rite Aid Hdgtrs Co uests our exchange docanients vv�th '� Y acceptance to conduct Electronic Data Interchange(EDI). Rite Aid will. wnriPartner)utilizing the Global Exchange Services(GXS)NeDo�ght Healthy Foods;:LP (Trading (A) EDI Document.This\Document Appliesto all current and future transaction future transactton "and version u % including ANSI ASC X12 004010; as well as other Pgrede3.,. All Network Identifiers and Qualifiers for Rite Aid and Trading Partner have been previously exchanged in the Trading Partner Profile. (B)Rite Aid Map,,Refer to the Mapping Documents for specifications. (C)7 esti ll Period The receiving patty will review the EDI Document(s)during the testing period. For inbound documents,Rite Aid's EDI D g P . enactment should receive sufficient test data from TradingPartner to ensure compliance with Rite Aid's requirements. Further,Rite Aid will;confirm that the.EDT Document will replace paper document currently provided by Trading Partner. For outbound documents, Trading Partner will receive sufficient data from Rite Aid to ensure compliance with business requirements Trading Partner agrees to receive the EDI Docitment(s)instead of paper documents. (D) Version Upgrades; For Documents that Rite Aid transmits,,Rite Aid will notify Trading Partner of any ANSI version upgrades six months prior to any change..Rite Aid expects the same notification from Trading Partner for documents that Rite Aid receives (E)System OperatIOUL Each Party,at its own expense,shall provide and maintain themen ui so necessary to effectively and reliable transmit and receive the Docuinent(s). P t. aware,services and testing (F) Verification. Upon proper receipt of any Document, the receiving patty shall promPt1Y transq»t a functional acknowledgement in return. A functional acknowledgement shall_constitute conclusive evidence that a Document has been properly received. (G)Functional Acknowledgementx For documents which Rite Aid transmits to Tmding Partner,Rite Aid expects a functional acknowledgement(ANSI X12 997) within twenty-four hours of Rite Aid's transmission. For documents thto Aido receivreceives from Trading Partner, Rite Aid will transmit a functional acknowledgement to Trading Partner within twenty-four hours of receipt. Both the sender and receiver are expected to review 997s on a timely basis and react appropriately to any error conditions. (H) Acknowledgement Monitoring, Rite Aid will monitor the performance of Trading Partner to ensure compliance with the above. Should any issues arise, Rite Aid expects prompt resolution from Trading Partner. Rite Aid expects the Trading Partner to monitor appropriately as well. (1) Garbled Transmissions. If any transmittal Document is received in an unintelligible or garbled form, the receiving party shall promptly notify the originating party. RETURN By FAX - (717) 975-8623 OR EMAIL - EDI@RITEAID.COM 4 (.n Carbon Copy, For Documents that Rite ,,lid transmits, Trading Partner may authorize their Value-Added-Network t duplicate documents to other organizations such as brokeis, o provide (I)Transmission Times, Rite Aid will access its Global Exchange Services(GXS)mailbox hourly. (L) Rite Aid EDI Program Guidelines, Trading Partner acknowledges receipt of Rite Aid EDI/EC Im thenPreferred Carrier DUNS/DEA List For a copy of these documents, plementation Guidelines and then ly visit our website at AAW.riteaid.com and go to Our Company Su (M) Security Procedoreti,` Each Patty shall transmissions of Documentv'are suthori od andptm roitect its business recordsy use those security P�date ; which h ch aft;tenably sufficient to ensure that all P mpibper address. (1V)Changes to Daps Rite Aid will not correct invalid data received from Trading Partner Rite Aid will notify Trading Partner of iecei t of invalid data`and wrllexpect Tradmg.Partrrer to correct and re-transmit data in a timely manner and expects Trading Partner to monitor 997s resumed. : ` * 4 Personnel at Rife Ard'st;Value-Added-]Network will not alter any dant received from or sent to Trading.Partner,with the ex VAN will h�rtatate data into other formats as agreed to by Trading Partner and Rite Ai "' aeptioq that the (0)Duplicate Datw Rite Aid moll use unique intergiian e g ,group,and trar►sactiori:oontt+ol numbers ori outbound tratrsmtssrotss to Trading Partner'and expi is Trading Partner to provide'unique numbers on transmissions;to Itrte Aid, Unique numbers are necessary to ensure detection of duplicate data c; Rite AW., monitor Trading partner data for duplicates and.wait notify Trading (drtner immediately upon detection eXPects Troding Partner to detect duplicate transmissions from Rite Aid and ton Rite aid T' �.. notify immediately (P)Publle Intereonnec If your conipafiy use's a VAN other than Global Exchange S`eci ,f(GXS)then Rite Aid will establish 71 network interconnect"between our VAN and yours.Rite Aid expects your company ensure that your VAN uses appropriate controls and monitoriiigmeayarr�rn 9 cr to:sehieve::trth a` iublic expect your co $ Y eicchange of inbound and outbound transae ' C',Rite Aid agrees'to do the same We t mp$ny to resolve any problepss or issues related to interconnect rn a prom h P mPt manner ? (Q)SQ-10011" CIlatn Chide and Other Important Document.All Supplieis%Iradmg Partn`ers'are� 3 ' Su�Iy Cl+arn Guide ardinpected:to compiy with tfig Rrte Aid To obtmfia EDI and related exchange of transactions which are under terms and compliance guidelines_of the Guide. r �PY b>`t to tjtudop visit Supplier Portal on the Rite Aid Co ��Website at 1� ;r .. www nteaid com. . Ali relevant ED' JYl '[ � a�rn,Y �,:. ._• [ •rr '.ys°t,� 'y _,, 4t appirlg speci£icfi%policies and p Cedtarq will be available through Demand:- ;z ,_ s F ' Y r EDI 'rade Services Website and Fax=err- Sign � pril 11,2011: r nate .. .'. Please contirmacceptanoe:'and understanding of this letter and the refer Return a copy of this document to did Ripe Ald.EDI Department and k ended attachments by signing above arid dating. eep a.copy for your.recorft Sincerely, - s Rite Aid Corporation EDI/828 Department 'k ***Please return to the E131/13213 Department upon receipt.*** Fax:717-975.8623 RETURN By FAX - (717) 975-8623 OR EMAIL - EDI@RIT'EAID,COM 5 i 1 EXHIBIT D Svt Re.�,aouoln2 RECALL DISPOSMON FORIM PLEASE NOTE THAT ALL FIELDS ON TW FORM MUSE BE COMI>LETED. Aduh Nuttitiona11Ai4 CATEGORY MANAGER JDW4E OBER YENDORNAM 1DOWWOINTITUMHUCIVERMSte 43899 P>iOM i7-sft-97ss SALES CONTAM fUham Kimbcil TITi ls• ;': 4MAit; TYPEotRETURN ".uMws*ds.TVw DL4lOBRION COM FOR STORK RETURNS 'Mmt sefea a f7' :ycu Store Senn and DC XX FUNDED BEGAN f a DC Rlie Aid 43Irfletli S!.]Uhsett StfineReturm-REASOWMRRETUItN' . :. •MintlebttaRtarQe !�11 8nTtlioVe a�rxio AM Stare Dbuettdlaaatlsa I XX Rsltit I Pay th finest -"i!'ol-(O#C SQ(INevsi( Stere&EEC Dbewetanatioa is or Sa �r�++�w...«.r n.�rrrr a+y�.�r+ wr ek w*w�e aw* aw p,".r l..r rm►it w 0...* FrowwMeaal Dbeandaaatioa looter #! isswtiary b w k rrr w a t�rTrf tmre _pw.ttn Ca•«i Scatonat DbcotMboatlaa OC!!'M'.('iORKC,ALLSiCttn".S-MtMHAVxCA"(YOOs('k`mvmA>".rA*-qAPPROYAL...: Cle+esaaeoEadn ahinstaeTeet one" `:' D nrai the Trltt:fmr iStare S SQ9GhieH Ya Mott Ch8kWA60 Satvaye Recall/ iteslat _ StA60hak No ahotrld be an CdE Event lNow,FFooded Rct/lilt) SA tidrnatt BILL TO VENDOR DISPOSMON COSTS FOR DC RETURNS 'Must ileo!a Disposition Name tiowo42i 1 ��e }� a 3n 6%Ussd lift lddrca �51L f, Handlift Donate 6Y. City,Sbtq Zip Cat 1 v I dip Bads to Vender Dapositba 6`ti HAndGaE 4 AiPping Phone 31? —3 2 C. ,51 complete this section ifyou at:loct Ship Buck to Vendor Sf"TO VENDOR ` FROM CARUSM FROM RURAL.HALL FROM RENO Sblp to None Addrem Addnm City.St"4 ZIP Contact Phone Reform Aathorimid"Nnakr "'Reds Amdaiatioe awbae MUST tit:gi m At do esa this taw b m®pla.d by aW ft Ra Wb WUX Nor he anamed wahooc RM. Buyer and Vendor Wee to Ne foMawhW I Vendorsresooasiblefarsit smggirtcasebaddidoetoh"a& 2.hent rtmwcd sa.a"gjmd in be"UftWWty is gwkw*W con"M VpdaabeflWC"bm=m fbWw"hWft(IocteditbutaslMbWtodopta maeet.sypncooraltrroob=) 4 of Sbp n.rl1 b v aaa dtgto b r mak soda apes io wpept aftwpmd p v4md tan Ctsramar s.d.eriw esms wiain 30 Mys of ww4m Mem Proaan reariaisiat L CtsnnDsr neY.rtiott ower If My.sills inch drs wiu Msr.rd rk.q.twr..d prodnet aiepes;eea wet b.s eh.dieaarios otitis.Ai6 CATECO{lY MANAt1ERr3PLCf AL IIVSERUE'[[�IIY&'t""'., �«i•" '.Miele tlltt Its �ifsA ' o[ witdt bili YP.$o Cines, ":;-,. .' .:;,'i �: ,' ,. '; ADULT NUTRITIONAL POG",SET RECALL DATE 3/10/14 W�idt�+�' rt ton m_ to the/frau�K tottfi tserrM. •,"z _ __. PriotNam c4bomy D M ober Priol Nam Dtae Vice PTWMM* mis Bergin Pdar Nasae - Daft Ve•imp,*Chem Peal Hadco Prim Name ome Y Revisod 04101112 "CALL DISFpSITION FARM 4714267 `a 4714270 0306301026 MLO MUS-L7t>iJY. ; . Invento 398600 03 6301024 iii MUSd_81A3T C1 iOC 472 CST ;;.Dc ot1 Stat~ ON t Ctt 03096302003 �T VAN 47Z $12 54 308 MLO SUPER HI PROTEIN 16Z $12.34 400 61362 571,102 $8.06 772 6,7.02 p $83,767 1,480 563,021 18,689 $217,890 RECALL DATE 3110114 Grand atal mdor Contest ('tttR NmmE J EXHIBIT E b Contract# r Jr s$ INCREMENTAL INVESTMENT AGREEMENT FY 2015 SUPPLIER PARTICIPATION �y Venda#: yse 99 ve,tda Name: I r Category idgrJA--Category Mgr.. n i7 Billing Address: DL W O C-Olt-ILFilic X14 71.03 IF Cachet Name Cwftd Phone S. r.Y Fox#: Ewrd In'a 3f'Ir{ E-ttype:(p—d-k—) Oso M*F CW�e oa) — TWW"Price reduction Dbptey b aM Ste New store ANbww= Ead Cigwwbs(rm) Pu t,Floor Drs by Rke Advice wed C — smart Tpr — New rlem _ Mr*rrxn Purehm Sao 1~ CmwBock PNnoQrampwMasrx 8000 Toni Chas, Y CMW RmWoom Abanw — BOGO CALL SKES) Grand z C6atarWdntewn Free Goods — BAGS X s P"V Fees — BAGB Qui SNIM) a d SUN React Ria ftwebon (I ftla ffChedt Renate — Dista—r Lo)*Propnm uLhtWtPopeFes) 011ier Display Fodures n Item#'s Item Description Size Investment/F Special DirectionlAddhionai Remarks o unding 0 MLO11-414 M U - Y10 50%maft- 4114 X10 MLO y51312 IALO 8 b .Suppler hereby agrees to participate in the Rb Aid events and associated costs indicated herein,also including,but not limned to,rain checks issued by Rite Aid during the term of the Agreement that are later redeemed. Supplier also hereby agrees to maintain margin coverage In the event of any price increases between the execution of this Agreement and event completion dates. Suppler father agrees that similar Nems added to any planogram atter the Agreement Is executed,but prior to event completion may be included in an event The amount to be paid by Supplier is In addition to and not In substl uticn for or diminulon of any Minimum Promotional Funding based upon fiscal year 2015(March 2,2014-February 28,20 15)gross purchases. Payments and deduction of the IncrWwtal Investment will ocauwithin 30 days of the commencement of the event indicated Incremental investment funding is fine and norca le. Proof of performance hefl71 not be provided. Authorized Signature: Category MgrlAssoc.Category Mgr-:Printed Name: r ( Printed Name: 'd Date: /2- — ! T&: 110 e h f J Date: w Uc tQ —' 0 EXHIBIT F Statement Summary Report 43899 DOWNRIGHT HEALTHY FOODS Reason Inv.Gross Inv.Dsc. Inv.Shortage Inv.Pricing Inv/PB/CB Net Inv.Not Due PB/CB Not Due Amt.Held 14 Markdowns $0.00 $0.00 $0.00 $0.00 ($92,865.00) $0.00 $0.00 $0.00 25 Advertising Allowances $0.00 $0.00 $0.00 $0.00 ($65.75) $0.00 $0.00 $0.00 48 Unsaleables $0.00 $0.00 $0.00 $0.00 ($26,614.84) $0.00 $0.00 $0.00 49 Recalls $0.00 $0.00 $0.00 $0.00 ($77,644.13) $0.00 $0.00 $0.00 DS $0.00 $0.00 $0.00 $0.00 ($416.71) $0.00 $0.00 $0.00 Invoices Due $657.50 ($13.15) $0.00 $0.00 $644.35 $0.00 $0.00 $0.00 Totals $657.50 ($13.15) $0.00 $0.00 ($196,962.08) $0.00 $0.00 $0.00 Balance as of Today : ($196,962.08) Total Outstanding Balance : ($196,962.08) Total Outstanding Balance Excluding Holds : ($196,962.08) DETAIL BY REASON CODE (ALL INVOICES, PAYBACKS, CHARGEBACKS, ETC.) 43899 DOWNRIGHT HEALTHY FOODS Reason Inv Shortage Pricing Miscellaneous Days Over Code Reason Text TYPe Inv Number Inv Date Due Date Gross Amt Disc Amt Amt Amt Amt Net Amt Hold Due 14 Markdowns CB 0582527 3/5/2014 3/7/2014 ($97.00) $0.00 $0.00 $0.00 $0.00 ($97.00) N 125 14 Markdowns CB 0565458 4/7/2014 4/9/2014 ($92,768.00) $0.00 $0.00 $0.00 $0.00 ($92,768.00) N 92 TOTAL ($92,865.00) 25 Advertising Allowances CB 0581594 3/5/2014 3/7/2014 ($65.75) $0.00 $0.00 $0.00 .$0.00 ($65.75) N 125 TOTAL ($65.75) 48 Unsaleables CB D088145446 1/17/2014 1/20/2014 ($278:02) $0.00 $0.00 $0.00 $0.00 ($278.02) N 171 48 Unsaleables CB D094150452 1/17/2014 1/20/2014 ($1,836.23) $0.00 $0.00 $0.00 $0.00 ($1,836.23) N 171 48 Unsaleables CB D096164445 1/17/2014 1/20/2014 ($2,859.24) $0.00 $0.00 $0.00 $0.00 ($2,859.24) N 171 48 Unsaleables CB D089630446 2/21/2014 2/24/2014 ($954.89) $0.00 $0.00 $0.00 $0.00 ($954.89) N 136 48 Unsaleables CB D095878452 2/21/2014 2/24/2014 ($3,835.24) $0.00 $0.00 $0.00 $0.00 ($3,835.24) N 136 48 Unsaleables CB D097812445 2/21/2014 2/24/2014 ($3,814.59) $0.00 $0.00 $0.00 $0.00 ($3,814.59) N 136 48 Unsaleables CB D091192446 3/21/2014 3/24/2014 ($406.17) $0.00 $0.00 $0.00 $0.00 ($406.17) N 108 7/10/2014 Page 1 of 2 DETAIL BY REASON CODE (ALL INVOICES, PAYBACKS, CHARGEBACKS, ETC.) 43899 DOWNRIGHT HEALTHY FOODS Reason Inv Shortage Pricing Miscellaneous Days Over Code Reason Text Type Inv Number Inv Date Due Date Gross Amt Disc Amt Amt Amt Amt Net Amt Hold Due 48 Unsaleables CB D097661452 3/21/2014 3/24/2014 ($3,411.55) $0.00 $0.00 $0.00 $0.00 ($3,411.55) N 108 48 Unsaleables CB D099426445 3/21/2014 3/24/2014 ($3,619.76) $0.00 $0.00 $0.00 $0.00 ($3,619.76) N 108 48 Unsaleables CB D092585446 4/18/2014 4/21/2014 ($300.46) $0.00 $0.00 $0.00 $0.00 ($300.46) N 80 48 Unsaleables CB D099402452 4/18/2014 4/21/2014 ($1,173.26) $0.00 $0.00 $0.00 $0.00 ($1,173.26) N 80 48 Unsaleables CB D101090445 4/18/2014 4/21/2014 ($1,883.40) $0.00 $0.00 $0.00 $0.00 ($1,883.40) N 80 48 Unsaleables CB D094021446 5/23/2014 5/27/2014 ($135.91) $0.00 $0.00 $0.00 $0.00 ($135.91) N 44 48 Unsaleables CB D101160452 5/23/2014 5/27/2014 ($612.08) $0.00 $0.00 $0.00 $0.00 ($612.08) N 44 48 Unsaleables CB D102795445 5/23/2014 5/27/2014 ($925.44) $0.00 $0.00 $0.00 $0.00 ($925.44) N 44 48 Unsaleables CB D102871452 6/20/2014 6/23/2014 ($175.57) $0.00 $0.00 $0.00 $0.00 ($175.57) N 17 48 Unsaleables CB D104562445 6/20/2014 6/23/2014 ($277.05) $0.00 $0.00 $0.00 $0.00 ($277.05) N 17 48 Unsaleables CB D095447446 6/20/2014 6/23/2014 ($115.98) $0.00 $0.00 $0.00 $0.00 ($115.98) N 17 TOTAL ($26,614.84) 49 Recalls CB H001774WSO 1/17/2014 1/31/2014 ($384.29) $0.00 $0.00 $0.00 $0.00 ($384.29) N 160 49 Recalls CB H002246WSO 2/21/2014 3/7/2014 ($1,399.95) $0.00 $0.00 $0.00 $0.00 ($1,399.95) N 125 49 Recalls CB R022393452 2/21/2014 3/7/2014 ($12.74) $0.00 $0:00 $0.00 $0.00 ($12.74) N 125 49 Recalls CB R025807445 2/21/2014 3/7/2014 ($12.74) $0.00 $0.00 $0.00 $0.00 ($12.74) N 125 49 Recalls CB H002730WSO 3/21/2014 4/4/2014 ($410.77) $0.00 $0.00 $0.00 $0.00 ($410.77) N 97 49 Recalls CB R019403446 3/21/2014 4/4/2014 ($791.84) $0.00 $0.00 $0.00 $0.00 ($791.84) N 97 49 Recalls CB R026595445 3/21/2014 4/4/2014 ($1,839.18) $0.00 $0.00 $0.00 $0.00 ($1,839.18) N 97 49 Recalls CB R019685446 4/18/2014 5/2/2014 ($10,399.06) $0.00 $0.00 $0.00 $0.00 ($10,399.06) N 69 49 Recalls CB R023555452 4/18/2014 5/2/2014 ($27,199.62) $0.00 $0.00 $0.00 $0.00 ($27,199.62) N 69 49 Recalls CB H00321OWSO 4/18/2014 5/2/2014 ($243.07) -$0.00 $0.00 $0.00 $0.00 ($243.07) N 69 49 Recalls CB R027131445 4/18/2014 5/2/2014 ($32,689.58) $0.00 $0.00 $0.00 $0.00 ($32,689.58) N 69 49 Recalls CB H004211WSO 5/23/2014 6/6/2014 ($420.74) $0.00 $0.00 $0.00 $0.00 ($420.74) N 34 49 Recalls CB R019934446 5/23/2014 6/6/2014 ($895.16) $0.00 $0.00 $0.00 $0.00 ($895.16) N 34 49 Recalls CB R023795452 5/23/2014 6/6/2014 ($407.26) $0.00 $0.00 $0.00 $0.00 ($407.26) N 34 49 Recalls CB R027456445 5/23/2014 6/6/2014 ($357.70) $0.00 $0.00 $0.00 $0.00 ($357.70) N 34 49 Recalls CB H005174WSO 6/20/2014 7/4/2014 ($113.65) $0.00 $0.00 $0.00 $0.00 ($113.65) N 6 49 Recalls CB R020167446 6/20/2014 7/4/2014 ($66.78) $0.00 $0.00 $0.00 $0.00 ($66.78) N 6 TOTAL ($77,644.13) 99 Invoice IN 2903 2/20/2014 4/7/2014 $657.50 ($13.15) $0.00 $0.00 $0.00 $644.35 N 94 TOTAL $644.36 DS CB 0575624 2/4/2014 2/7/2014 ($416.71) $0.00 $0.00 $0.00 $0.00 ($416.71) N 153 TOTAL ($416.71) GRAND TOTAL: ($196,962.08) Total Misc Amt $0.00 (BackHaul Deductions) 7/10/2014 Page 2 of 2 VERIFICATION Diane Ober signs this Verification on behalf of Rite Aid Hdgtrs. Corp., and does hereby verify that the foregoing Complaint was prepared with the assistance and advice of counsel, and in reliance upon counsel's advice; that the document, subject to inadvertent or undiscovered errors, is based upon and therefore limited by the records and information still in existence, presently recollected and thus far discovered in preparation of this document; and that subject to the limitations set forth herein,the statements contained in this document are true and correct to the best of his/her knowledge, information and belief. The language of the foregoing document is that of counsel. It is understood that the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. U Name: Diane Ober Title: Category Manager #28471400 v1 ♦. v Court File No.: 14-4104 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANNIA BETWEEN: (1) RITE AND HDQTRS. CORP. AND DOWNRIGHT HEALTHY FOODS, L.P. PLAINTIFF DEFENDANT AFFIDAVIT OF SERVICE I, Gary Krolicki, of the City of Toronto, in the Province of Ontario, Process Server, make oath and say: On September 22, 2014, at 11:50 AM, I served DOWNRIGHT HEALTHY FOODS, L.P. with the NOTICE TO DEFEND AND COMPLAINT (WITH EXHIBITS AND VERIFICATION) by leaving a copy with LORA PETRUCCELLI, Customer Service Manager and person appearing in care and control and/or management of DOWNRIGHT HEALTHY FOODS, L.P. c/o Johnvince Foods, at 555 Steeprock Drive, Toronto, Ontario, M3J 2Z6. (2) I was able to identify the person by means of: (a) At the time and place of service, LORA PETRUCCELLI identified herself to me. (3) LORA PETRUCCELLI is described as a white -skinned, black -haired female, who is approximately 45 years of age, stands approximately 5 feet 6 inches tall, and weights approximatley 175 lbs. (4) LORA PETRUCCELLI informed me and I verily believe that she is not active in the U.S. Military. SWORN BEFORE ME at the City of Toronto, in the Province Ontario, this 23rd day of September, 2014. A commissione er tc. Eric Kovacs, a Commissioner, etc., Province of Ontariu, for Borg Process Servers Inc., and for Process Serving Gvt�4ti ci • i"'c,iss Act. 2606 matters only. Expires 3e6ruary 28, 2015. RITE AID HDQTRS. CORP, 30 Hunter Lane Camp Hill, PA 17011 Plaintiff, vs. DOWNRIGHT HEALTHY FOODS, L.P., 512 Wagonwheel Court Colleyville, TX 76034 Defendant. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. I I CIVIL TERM : CIVIL ACTION - LAW NOTICE TO DEFEND CD rrl r— <C.) >C) N .Z1 C— F Fri H CLD LJ --4 CD -1-1 '..).3 • 1•Y 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 TRUE COPY FROM REC-0170 in Testimony i.yhereof, I hers unto set my hand and the seal of said Court at Carlisle, Pa. This I S day of 20Iq Prothonotary John R. Martin, Esquire Attorney I.D. No. 204125 Karen A. Salvemini, Esquire Attorney I.D. No. 307174 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Downright Healthy Foods, L.P. RITE AID HDQTRS. CORP, Plaintiff, V. DOWNRIGHT HEALTHY FOODS, L.P., Defendant. TO: Rite Aid HDQTRS. Corp. do Brian P. Downey Pepper Hamilton LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 rsr G1" THE PROTHONOTARY 2014 NQV 14 NI : 55 CUMBERLAND COUNTY PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA 14- N I 0 ./ cavil Ierm : NOf-4-4-41.04-CIVIL TERM : CIVIL ACTION — LAW NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. By: Dated: November f 9 , 2014 Respectfully submitted, RHOADS & SINON LLP John R. Martin Attorney I.D. No. 204125 Karen A. Salvemini Attorney I.D. No. 307174 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Downright Healthy Foods, L.P. John R. Martin, Esquire Attorney 1.D. No. 204125 Karen A. Salvernini, Esquire Attorney I.D. No. 307174 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Downright Healthy Foods, L.P. RITE AID HDQTRS. CORP, Plaintiff; V. DOWNRIGHT HEALTHY FOODS, L.P., Defendant. : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA 14-410L1 : No.-4+4-torc wIL TERM : CIVIL ACTION — LAW ANSWER AND NEW MATTER OF DOWNRIGHT HEALTHY FOODS, L.P. NOW COMES, Defendant, Downright Healthy Foods, L.P. ("Downright Healthy"), through its attorneys, Rhoads & Sinon LLP, and files the following Answer and New Matter as follows: Parties 1 Admitted based on information and belief. 2. Admitted in part; denied in part. It is admitted that Downright Healthy is an Ontario limited partnership. Except as admitted herein, the remaining averments in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial if deemed material. Jurisdiction and Venue 3 The averments in this paragraph are conclusions of law to which no responsive pleading is required. 4. The averments in this paragraph are conclusions of law to which no responsive pleading is required. Relevant Facts 5. Admitted based on information and belief. 6. Admitted. 7-11. Admitted in part; denied in part. It is admitted that Downright Healthy and Rite Aid are parties to certain agreements, which are written documents that speak for themselves. Any interpretation of those documents, without giving full effect to the documents as a whole, is specifically denied. Except as admitted herein, the remaining averments in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial if deemed material. 12. Denied. It is specifically denied that Downright Healthy has a "negative balance" in the amount set forth in Rite Aid's "Statement of Account." 13. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 14. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 15. Denied. After reasonable investigation, Downright Healthy is without knowledge or information sufficient to form a belief as to the averments in this paragraph and, therefore, denies the same and demands strict proof thereof at the time of trial. Responding further, the remaining averments in this paragraph are conclusions of law to which no responsive pleading is 2 required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 16. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. COUNT I BREACH OF CONTRACT 17. Downright Healthy incorporates the foregoing responses as though fully set forth herein. 18. Admitted in part; denied in part. It is admitted that Downright Healthy and Rite Aid are parties to certain agreements, which are written documents that speak for themselves. Any interpretation of those documents, without giving full effect to the documents as a whole, is specifically denied. Except as admitted herein, the remaining averments in this paragraph are specifically denied and strict proof thereof is demanded at the time of trial if deemed material. 19. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 20. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 21. Denied. It is specifically denied that Downright Healthy has a "negative balance" in the amount set forth in Rite Aid's "Statement of Account." 3 22. Denied. responsive pleading is are specifically denied 23. Denied. in the amount set forth 24. Denied. responsive pleading is are specifically denied 25. Denied. The averments in this paragraph are conclusions of law to which no required. To the extent a responsive pleading is necessary, the averments and strict proof thereof is demanded at the time of trial. It is specifically denied that Downright Healthy has a "negative balance" in Rite Aid's "Statement of Account." The averments in this paragraph are conclusions of law to which no required. To the extent a responsive pleading is necessary, the averments and strict proof thereof is demanded at the time of trial. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments arespecifically denied and strict proof thereof is demanded at the time of trial. 26. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Downright Healthy respectfully requests that Rite Aid's Complaint be dismissed in its entirety with prejudice. COUNT II , UNJUST ENRICHMENT 27. Downright Healthy incorporates the foregoing responses as though fully set forth herein. 28. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 4 29. Denied. After reasonable investigation, Downright Healthy is without knowledge or information sufficient to form a belief as to the averments in this paragraph and, therefore, denies the same and demands strict proof thereof at the time of trial. 30. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 31. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 32. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 33. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 34. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. 35. Denied. The averments in this paragraph are conclusions of law to which no responsive pleading is required. To the extent a responsive pleading is necessary, the averments are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Downright Healthy respectfully requests that Rite Aid's Complaint be dismissed in its entirety with prejudice. 5 NEW MATTER 36. Downright Healthy incorporates the foregoing responses as though fully set forth herein. 37. All express or implied averments set forth in Plaintiff's Complaint, to the extent not expressly admitted, are denied. 38. Plaintiff's Complaint and each and every Count thereof fails to state a claim against Downright Healthy upon which relief can be granted. 39. Plaintiffs claims are barred by the applicable statute of limitations. 40. Plaintiff's claims are barred in whole or in part by the parol evidence rule. 41. Plaintiff's claims are barred in whole or in part by the statute of frauds. 42. Plaintiff's claims are barred, in whole or in substantial part, by the doctrines of estoppel, waiver, laches, and unclean hands. 43. Plaintiff's claims are barred in whole or in substantial party by the terms, conditions, and provisions of the agreements identified in the Complaint. 44. Plaintiff's claims are barred in whole or in part by its own material breach of the agreements identified in the Complaint. 45. Plaintiff's material breach was without excuse or justification. 46. Plaintiff is precluded from enforcing any of its rights under the agreements by virtue of its prior breach(es) of same. 47. Plaintiff's claims are barred by failure or lack of consideration. 48. Plaintiff's claims may be barred, in whole or in part, by the doctrine of accord and satisfaction. 6 49. Plaintiff's claims may be barred, in whole or in part, by operation of the doctrine of acquiescence. 50. Plaintiff's claims are barred by its failure to act in good faith, which it was obligated to do under the circumstances alleged. Such good faith is a condition precedent of any right to recovery on the claims alleged in the Complaint. 51. Plaintiff is not entitled to an award of costs and attorneys' fees. 52. Plaintiff has failed to mitigate its damages, if any. 53. Plaintiff's Complaint fails to state a claim against Downright Healthy for a breach of contract. 54. Plaintiff's Complaint fails to state a claim against Downright Healthy for unjust enrichment. 55. Plaintiff has not been damaged, nor will Plaintiff be damaged, by any conduct of Downright Healthy. 56. In the event Plaintiff has suffered damages, such damages were caused, in whole or in part, by the acts of Plaintiff or Plaintiff's agents. 57. Downright Healthy has at all times acted in good faith. 58. Downright Healthy reserves the right to raise additional defenses that may appear and prove applicable during the course of this litigation. WHEREFORE, Downright Healthy respectfully requests that Rite Aid's Complaint be dismissed in its entirety with prejudice. [SIGNATURE BLOCK FOLLOWS] 7 By: 8 Respectfully submitted, RHOADS & SINON LLP ti John R. Martin Attorney I.D. No. 204125 Karen A. Salvemini Attorney I.D. No. 307174 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Downright Healthy Foods, L.P. ATTORNEY VERIFICATION I, John R. Martin, Esquire, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities, that he is counsel for the Downright Healthy Foods, L.P. and makes this verification by its authority and that the facts set forth in the Answer and New Matter of Downright Healthy Foods, L.P. are true and correct to the best of his knowledge, information and belief. Date John R. Martin, Esquire 971004.1 CERTIFICATE OF SERVICE I hereby certify that on this I L( day of November, 2014, a true and correct copy of the foregoing "Answer and New Matter" was served by means of United States mail, first class, postage prepaid, upon the following: Brian P. Downey Tucker R. Humm Pepper Hamilton LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Plaintiff John R. Martin, Esquire Attorney I.D. No. 204125 Karen A. Salvemini, Esquire Attorney I.D. No. 307174 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1 146 (717) 233-5731 Attorneys for Downright Healthy Foods, L.P. RITE AID HDQTRS. CORP, Plaintiff, v. DOWNRIGHT HEALTHY FOODS, L.P., Defendant. • IN THE COURT OF COMMON PLEAS • • OF CUMBERLAND COUNTY, • • PENNSYLVANIA • • NO -41 1101 CIVIL TERM : CIVIL ACTION — LAW PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification for the Verification attached to the Answer and New Matter of Downright Healthy Foods, L.P. filed on behalf of Defendant, on or about November 14, 2014. 971231.1 Respectfully submitted, RHOADS & SINON LLP By: % A/6' John R. Martin Attorney I.D. No. 204125 Karen A. Salvemini Attorney I.D. No. 307174 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendant Downright Healthy Foods, L.P. EXHIBIT "A" VERIFICATION Don Lock, deposes and says, subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, that he is the Vice President of Sales & Marketing at Downright Healthy Foods, L.P., that he makes this verification by its authority, and that the facts set forth in the Answer and New Matter are true and correct to the best of his knowledge, information and belief. /004R,14,/ 2' 20/7 Date Don Lock, Vice President of Sales & Marketing CERTIFICATE OF SERVICE I hereby certify that on this f 1 day of November, 2014, a true and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Brian P. Downey Tucker R. Humm Pepper Hamilton LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Plaintiff 971231.1 Pozfrm, RITE AID HDQTRS. CORP, Plaintiff, vs. DOWNRIGHT HEALTHY FOODS, L.P., : CIVIL ACTION - LAW Defendant. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 14-4104 CIVIL TERM RITE AID'S REPLY TO NEW MATTER OF DOWNRIGHT HEALTHY FOODS, L.P. Plaintiff Rite Aid HDQTRS. Corp. ("Rite Aid"), by and through its undersigned counsel, hereby replies to the New Matter of Downright Healthy Foods, L.P. ("Downright Healthy") as follows: 36. Rite Aid incorporates by reference the averments of its Complaint as if fully set forth herein. 37. This paragraph does not contain any factual averments to which a response is required. To the extent a response is deemed necessary, Rite Aid admits that Downright Healthy has denied all express or implied averments set forth in Plaintiff's Complaint, but by way of further response, Rite Aid incorporates by reference the averments of the Complaint and re -affirms the truth and veracity of the averments in the Complaint. 38. Denied. Rite Aid denies Paragraph 38 as a conclusion of law to which no response is required. 39. Denied. Rite Aid denies Paragraph 39 as a conclusion of law to which no response is required. 40. Denied. Rite Aid denies Paragraph 40 as a conclusion of law to which no response is required. 41. Denied. Rite Aid denies Paragraph 41 as a conclusion of law to which no response is required. 42. Denied. Rite Aid denies Paragraph 42 as a conclusion of law to which no response is required. 43. Denied. Rite Aid denies Paragraph 43 as a conclusion of law to which no response is required. By way of further response, the terms, conditions, and provisions of the agreements identified in the Complaint entitle Rite Aid to damages in in excess of $297,330.08. 44. Denied. Rite Aid denies Paragraph 44 as a conclusion of law to which no response is required. 45. Denied. Rite Aid denies Paragraph 45 as a conclusion of law to which no response is required. 46. Denied. Rite Aid denies Paragraph 46 as a conclusion of law to which no response is required. 47. Denied. Rite Aid denies Paragraph 47 as a conclusion of law to which no response is required. 48. Denied. Rite Aid denies Paragraph 48 as a conclusion of law to which no response is required. 49. Denied. Rite Aid denies Paragraph 49 as a conclusion of law to which no response is required. 50. Admitted in part and denied in part. Rite Aid admits that there is an obligation to act in good faith but denies that at any time it failed to act in good faith in its -2- dealings with Downright Healthy. By way of further response, Rite Aid denies that any of its conduct bars its right to recover on the claims alleged in the Complaint. 51. Admitted in part and denied in part. At this time, Rite Aid admits that it is unaware of any grounds on which it is entitled to recover attorneys' fees and states that it has not sought the recovery of attorneys' fees in the Complaint. Rite Aid reserves its right, however, to seek the recovery of attorneys' fees in the event that facts come to light entitling Rite Aid to the recovery of attorneys' fees. Rite Aid denies that it is not entitled to costs. By way of further response, the prevailing party in an action is entitled to costs as a matter of course. 52. Denied. Rite Aid denies that it has failed to mitigate its damages. By way of further response, Rite Aid has mitigated damage by taking action consistent with the parties' agreements relating to, inter alia, the markdown of products and the disposition of unsaleable products. 53. Denied. Rite Aid denies Paragraph 53 as a conclusion of law to which no response is required. 54. Denied. Rite Aid denies Paragraph 54 as a conclusion of law to which no response is required. 55. Denied. Rite Aid denies that it has not been damaged by the conduct of Downright Healthy. To the contrary, as a result of Downright Healthy's conduct and its breaches of the agreements between the parties, Rite Aid has been damaged in an amount in excess of $297,330.08. 56. Denied. Rite Aid denies that its damages were caused, in whole or in part, by the acts of Rite Aid or its agents. To the contrary, as a result of Downright Healthy's conduct -3- and its breaches of the agreements between the parties, Rite Aid has been damaged in an amount in excess of $297,330.08. 57. After reasonable investigation, Rite Aid is without knowledge sufficient to form a belief as to the truth of the averments in Paragraph 57 and the same are therefore denied. 58. Rite Aid admits that Downright Healthy has reserved its right to raise additional defenses, but denies that any such defenses exist. WHEREFORE, Rite Aid respectfully requests that the Court enter judgment in its favor and against Downright Healthy Dated: December 2, 2014 Brian P. Downey (PA 59891) Tucker R. Hull (PA 306426) PEPPER HAMILTON LLP Suite 200 100 Market Street P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 866.422.1305 (direct fax) downeyb@pepperlaw.com pepperlaw.com hullt@pepperlaw.com Attorney for Plaintiff Rite Aid Hdqtrs. Corp. -4- CERTIFICATE OF SERVICE I hereby certify that on December 2, 2014, a copy of the foregoing document was served by United States mail, first class postage prepaid, addressed as follows: John R. Martin, Esquire Karen A. Salvemini, Esquire RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorneys for Defendant Downright Healthy Foods, L.P. e_Zz/ Tucker R. Hull (63915)