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Home My WebLink About05-2763 STRADLEY RON ON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (J.D. No. 36673) Stuart D, Lurie (J.D. No, 83391) 2600 One Commerce Square Philadelphia, P A 19103-7098 (215) 564-8000 Attorneys for Plaintiff, Sun Life Assurance Company of Canada SUN LIFE ASSURANCE COMPANY OF CANADA One Sun Life Executive Park Wellesley Hills, MA 02481-5699 COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. Civil Action - Law MICHAEL J. KMAN, JR. d/b/a KMAN & Case No. OS' - .)..~t...3 KMAN FINANCIAL GROUP 1018 Dogwood Lane Enola, P A 17025 Ctu'LL~~ Defendant NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served by entering a written appearance personally or by an 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 LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL AND INFORMATION SERVICE Cumberland County Bar Association 2 Liberty A venue Carlisle, P A (717) 249-3166 Doc. #381634v.l STRADLEY RONON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (1.0. No. 36673) Stuart 0, Lurie (1.0, No, 83391) 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys for Plaintiff, Sun Life Assurance Company of Canada SUN LIFE ASSURANCE COMPANY OF CANADA One Sun Life Executive Park Wellesley Hills, MA 02481-5699 COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v, Civil Action - Law c. ;uL <--y- ~ MICHAEL 1. KMAN, JR. d/b/a KMAN & Case No. OS -;t 7~3 KMAN FINANCIAL GROUP 1018 Dogwood Lane Enola, PA 17025 Defendant. COMPLAINT Plaintiff, Sun Life Assurance Company of Canada, by its counsel, hereby files this Complaint against Defendant Michael 1. Kman, Jr. d/b/a Kman & Kman Financial Group, and in support hereof, avers as follows: 1. Plaintiff, Sun Life Assurance Company of Canada ("Sun Life"), is a corporation organized under the laws of the State of Delaware with its principal place of business located at One Sun Life Executive Park, Wellesley Hills, MA 02481. 2, Defendant, Michael 1. Kman, Jr. ("Kman"), is an adult individual residing at 1018 Dogwood Lane, Enola, PA 17025, Kman operates under the business name Kman & Kman Financial Group. 3. On or about April I, 2004, Sun Life and Kman entered into a General Agent under Master General Agent Agreement (hereinafter, the "Agency Agreement"), pursuant to which Kman agreed to serve as Sun Life's agent for the Doc. #381634v,] purpose of selling insurance or annuity plans, A true and correct copy of the Agency Agreement is attached hereto as Exhibit "A" 4. Pursuant to the Agency Agreement and its Compensation Schedule, (which is incorporated by reference into the Agency Agreement), Kman earns a specified commission from Sun Life on policies he sells, However, in the event the policy is refunded for any reason, he must return the commission to Sun Life. See Exhibit "A" at ~ 8, Compensation Schedule. Moreover, in the event Kman runs a negative balance with Sun Life, he is obligated to "promptly pay back the amount of the excess following a written demand by Sun Life." 5. As of September 14,2004, and continuing to the present, Kman's broker account has carried a negative balance in the amount of $17,742.45 as a result of policies surrendered during the purchaser's "free look" period, which gives the purchaser of a policy the opportunity to return it for a full refund within 45 days of purchase. See Commission Statement Summary dated September 14,2004 (attached hereto as Exhibit "B"). 6, From December 2004 through March 2005, Sun Life wrote to Kman on numerous occasions to collect the negative balance on his broker account Kman, however, despite acknowledging the negative balance, has failed to furnish payment to Sun Life. 2 Doc. #381634v.! 7. Sun Life incorporates paragraphs 1 through 6 of this Complaint by COUNT I BREACH OF CONTRACT reference as if fully set forth herein. 8. The Agency Agreement, including its incorporated Compensation Schedule, is a valid and enforceable contract between Kman and Sun Life. demand by Sun Life, Kman has breached his Agency Agreement with Sun Life. 9, By failing to satisfy his negative debit balance after written 10. As a proximate result of Kman's breach, Sun Life has been damaged in the amount of $17,742.45, exclusive of interest. respectfully requests that judgment be entered in its favor and against Defendant, Michael WHEREFORE, Plaintiff, Sun Life Assurance Company of Canada, J. Kman, Jr., in an amount of $17,742.45, plus interest and costs, including reasonable attorneys fees, and such other further relief as may be just and equitable. COUNT II UNJUST ENRICHMENT 1 L Sun Life incorporates paragraphs 1 through 10 ofthis Complaint by reference as if fully set forth herein, 12, By retaining the commissions received on policies that were ultimately returned by the purchaser for a full refund by Sun Life, Kman has been unjustly enriched to Sun Life's detriment. failed and refuses to return to Sun Life $17,742.45, the value of the commissions on the 13. Despite repeated written demands for full payment, Kman has policies that were surrendered during the insured's "free look" period. 3 Doc. #381634v.\ Dated: May 24, 2005 respectfully requests that judgment be entered in its favor and against Defendant, Michael WHEREFORE, Plaintiff, Sun Life Assurance Company of Canada, J. Kman, Jr., in an amount of $17,742.45, plus interest and costs, including reasonable attorneys fees, and such other further relief as may be just and equitable, RADL RONON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (LD, No. 36673) Stuart D. Lurie (LD. No, 83391) 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys For Plaintiff, Sun Life Assurance Company of Canada 4 Doc. #381634v.l VERIFICATION I, Donald J. McNaught, hereby state that I am duly authorized to make this Verification on behalf of Sun Life Assurance Company of Canada, the plaintiff in the above action, and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief I understand that the statements herein are made subject to 18 Pa. C.S.A. 94904 relating to unsworn falsification to authorities, Dated: May ') ) , 2005 ~1~J ~. ~( ~ Donald J. McNa ght . r ! I .t p, ( 'i ~ '\ b \ --- 4- 1-04; 4:S1PM; ;281 362 9184 ." A- 2 Apr~01-04 02:17P Kman & Kman Financial Grp 717 728 0656 P.06 I, . "." e r .-, 1 .., ~ .' ,~.~ '1 ," ...j -. r ,; '":;.; I . (;.1. :"'"\.~,'':':: \ ; L "'F j j!.,.1.I.:: Sun~ Llfe~"- (...13 ~:;,tc=' y \'....:~,. 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DC ot'- P'PC' u:IaIIa& II> th. """""""'.~(Jlldl..h..l"~ _eOdmentI. ~ dc.).......- .... .. wtlncD iii she .....t. p... I- I< lip the _ o(a~...pmcm.1lKh u ... applIar"" Iruuml. pof~, b.u<ftdaI,. ___ orCllhaWlst. wl!<<b<<or_lIkhpouon--mo 1hmdo. .. \ooql QIOICldy cia policy. odlor..... pcdky ....1bc...... D<' _bs.LIIII! qenta tatnIIr. for. p<rlooI ~...... .,........lII7MpulpGlCO ofllllOlyaio,JOCDr<! o.~ aad ~ "r..mdnl (ooiher.lIII ~..... COIIlnC'O _be cIelhae<IlD <hot ,..,...m. _ulan apedleIII_ lmlll canIimml- with aplllkal* Jaw). L be ~ lIIIIpU" _ 0< bcl1efiduy of8D'/pollq ISIDed bylbeCompanJ. odIft" than a po\kT 011 iL. ~ or.... . ",..nba vflbe...,t.liunlIy. .. ~dMo c..."'I"''''IIl''''l'_r....,.......-ubGo'''...,.SIa\lt-Pot-b_.or.O. olIldaI tIICnIClf. 0( iIYf (;cmrm-t lrI1;IlI::I;.lKh -.. must be IUbmJmrlm the ~ oIIia: Ix tlIe a_loA of l 00mpIrly alRai'. and .. 011I& _pa <It 1abeIa.". pallda. polkr.....lopa.. \lIenolnr< 01 rhc ComponJ I. AId1._ .. .. obIMale ar madIfy u. a"'" wq * pdnaocI_1haam. sun ..._o.m,-yofc::.roda (W.J SIao ur._c..""",,, ofCralocllllJ.5.I ~......... l[.l'olId 10111......... OIIIcltr "ud>o oMcor X X nu. ~ "..w..t,AnnuitIeo __...__.._~A1l......_....._00d....'"'"''''''''"''.. _........,........_"-.,..<lIiIo*...-or.......UloII.-._or......- GoVT Fell to apn cd: 716.201.<1028 I'qo J of, 5iJ'C'>>44 lVlIS -- Sun Life Financial SM Compensation Schedule Effective August 9, 2004 General Agency Agreement This Compensation Schedule is attached to and made part of the General Agency Agreement between General Agent and Sun Life Assurance Company of Canada (U $,), ("Sun Life"). This schedule shall remain in effect subject to the terms of the General Agency Agreement, until such time as Sun Life notifies General Agent that a new schedule shall take effect The compensation provided by this Schedule will be paid only so long as General Agent is "general agent of record". If an agent of the General Agent solicited the application, General Agent will be deemed to be recognized as "general agent ofrecord" unless and until the Contract's owner designates someone else and Sun Life approves such designation. MGA,GA SLPC10487(04104) -- Sun Life Financial SM TABLE OF CONTENTS Sun Dex 100 FPDA Keyport Index Multipoint SPDA Keyport Value FPDA Compensation Chargebacks Refund of Premiums or purchase Payments Internal Conversions Conservation Fee Trails Miscellaneous MGA,GA SLPCI0487(04104) KEYPORTINDEXMULTIPOINT 2004 Single Premium SUN DEX 100 ReriblepaymentIJefimrlAnnuitr Term 6yr: (a) 6.00% of any purchase payment received while both the owner(s) and annuitant are attained age 80 orless, (b) 2.00% of any purchase payment received while both the owner(s) and annuitant are attained age 81-85, (c) 0% of any purchase payment received while both the owner( s) and annuitant are attained age 86 or older. Term 9yr: (a) 9.00% of any purchase payment received while both the owner(s) and annuitant are attained age 80 or less, (b) 5,00% of any purchase payment received while both the owner(s) and annuitant are attained age 81-85, (c) 0% of any purchase payment received while both the owner( s) and annuitant are attained age 86 or older. Term 12yr: (a) 8.50% of any purchase payment received while both the owner( s) and annuitant are attained age 80 or less. (b) 4.50% of any purchase payment received while both the owner(s) and annuitant are attained age 81-83, (c) 0% of any purchase payment received while both the owner( s) and annuitant are attained age 84 or older. KEYPORTINDEXMULTIPOINT Single Premium IJefimrl . 1} Initial nitial Term remium enewal Term 1 (2) 5 7 1 1,00% 0,80% 5,00% 5.50% 10.00% 5.00% 0.80% 2.75% 3.25% 7,00% 5.500AJ 0,80% 2.75% 3,25% 7.00% 10,00% 0,80% 2.75% 3,25% 7.00% (2)No commission will be paid on (a) any premium of $1.000,000 Of more that is allocated or renewed into a 1,5/7 or 10 year term, or (b) a premium that represents, in whole or in part, the surrender or loan proceeds of any life insurance policy or annuity contract issued by Sun Life or its affiliates (2)Renewal Term: General Agent will also received compensation as described above if General Agent is "general agent of record" on an in-force Contracts on the 451 day of each renewal term after the initial term, compensation equals the contract's Indexed Value on such day multiplied by the applicable percentage from the table above for the term length, contract anniversary and amount of the single premium. Reference to the "contract anniversary" means the number of Contract Year anniversaries since the Issue Date of the Contract. (2) Policies renewing from a 1 year term on their second contract anniversary will pay the following renewal compensation: 1 yr to 5yr: 2,75%, lyrto 7yr: 3,25%. lyr to 10yr: 7,0% . . '1) Initial Issue Initial ~erm Age Premium enewal Term Ivr(2) 5VT 7vr IOvr lyr 0-80 LOO% 0,80% 5.00% 5.50% 10,00% 81-85 .50% 0.80% 5,00% 550% 10.00% 5yr 0-80 5.000/0 0.80% 2.75% 3,25% 7.00% 81-85 LOO% 0.80% 2.75% 3,25% 7.00% 7yr 0-80 5.500/0 0.80% 2,75% 3,25% 7.00% 81-85 L50% 0,80% 2.75% 3.25% 7,00% IOyr 0-80 10.00% 0,80% 2.75% 3.25% 7,00% 81-85 6,00% 0,80% 2,75% 3,25% 7,00% (2)No commission will be paid on (a 1 any premium of $ 1.000,000 or more that is allocated or renewed into a 1,5,7 or 10 year term, or (b) a premium that represents, in whole or in part, the surrender or loan proceeds of any life insurance policy or annuity contrae! issued by Sun Life or its affiliates (2lRenewal Term: General Agent will also received compensation as described above if General A~ent is "general agent ofrecord" on an in-force Contracts on the 45' day of each renewal term after the initial term, compensation equals the contract's Indexed Value on such day multiplied by the applicable percentage from the table above for the term length, contract anniversary and amount of the single premium. Reference to the "contract anniversary" means the number of Contract Year anniversaries since the Issue Date of the Contract. (2) Policies renewing from a tyear term on their second contract anniversary will pay the following renewal compensation: 1 yr to 5yr: 2.75%, lyr to 7yr: 3.25%. Iyr to 10yr: 7,0% KEYPORT VALUE Flexible Payment Deferred Annuity MVA 5yr: (a) 3,5% of any purchase payment received while both the owner(s) and annuitant are attained age 85 or less. (b) For issue ages 86+ will be reduced upfront by x% of premium where XO/o= Issue A e- 85 X .500/0. Ae Commission 86 3.0% 87 2.5% 88 2.0% 89 1.5% 90 0.5% MV A 6yr: (a) 4,0% of any purchase payment received while both the owner(s) and annuitant are attained age 85 or less. (b 1 0% of any purchase payment received while either owner( s) or annuitant is attained age 86 or older. MGA,GA SLPC I 0487(04/04) Sun Lik (L S) Fixed ,\nnuitics MVA 7yr: (a) 4.5% of any purchase payment received while both the owner( s) and annuitant are attained age 85 or less, (b) 0% of any purchase payment received while either owner( s) or annuitant is attained age 86 or older. Compensation Charge backs KEYPORT VALUE In the event any Contract is partially or totally surrendered within one (1) year following the date the flexible premium or single premium is received, even after death, there will be a chargeback of compensation attributable to the amount surrendered in accordance with the following schedules: Time elapsed since premium date: Compensation Chargeback: Zero (0) to Six (6) months 100% Seven (7) to Twelve (12) months 50% Over twelve (12) months 0% SUN DEX 100 In the event any Contract is partially or totally surrendered within the first (12) months of any term following the date the flexible premium is received, there will be a charge back of 100% of the compensation attributable to the amount surrendered. KEYPORT INDEX MULTIPOINT In the event any Contract is partially or totally surrendered within the first six (6) months of any term there will be a chargeback of 100% of the compensation attributable to the amount surrendered, For purpose of this provision and regardless of any Contract language contrary, the amount surrendered may be treated by Sun Life during the first term as first coming out the Contract's single premium and during later terms, as first coming out of the term's initial Indexed Value, KeypoTt Index Multipoint 2004 In the event any Contract is partially or totally surrendered within the first twelve(12) months of any term there will be a chargeback of 100% of the compensation attributable to the amount surrendered. For purpose of this provision and regardless of any Contract language contrary, the amount surrendered may be treated by Sun Life during the fnst term as first coming out the Contract's single premium and during later terms, as first coming out of the term's initial Indexed Value Refund of Premiums or Purchase Payments Should any payment under any contract issued by Sun Life be refunded for any reason, Payee shall repay or return any commissions received with respect to such payment. Internal Conversions In the event a contract is converted to another Sun Life Assurance Company of Canada (U,S,) or any affiliated company product, a different commission schedule may apply Conseroation Fee SPIA, Keyaccumulator, Keyport Value, Sun Dex 100 If, after the death of the Annuitant, Primary Owner, or Joint Owner, no surrender occurs within 90 days of death after Sun Life receives notification of death and any required documentation, a Conservation Fee of 100 basis points (l,O%) of the Contract's Accumulated Value will be paid to General Agent if General is "general agent of record", The Fee may be paid before the end of the applicable 90day period. Any payment will be subject to the charge back rules described in the Compensation Chargebacks section, Keyport Index Multipoint, Keyport Index Multipoint 2004, Sun Dex 100 A conservation fee of 100 basis points (LO%) of the Contract's Indexed Value that is eligible for waiver of surrender charges due to the death of a Covered Person (as described in the Contract) will be paid to the General Agency upon Sun Life receipt of documentation evidencing the intent not to surrender the Contract during the prescribed 90 day period after death, The fee may be subject to the chargeback rules described under the Compensation Chargebacks section for six (6) months following the payment. Miscellaneous Notwithstanding the above, no compensation will be paid on any purchase payment that represents, in whole or in part, the surrender or loan proceeds of any life insurance policy, annuiry contract, or premium fund deposit agreement issued by Sun Life or any affiliated company. General Agent's compensation will be reduced by any compensation amount Sun Life is obligated under any other compensation agreement to pay MGA's, other GA's or agents, If any charge back amount exceeds compensation otherwise due. General Agent shall prompdy pay back the amount of the excess following a written demand by Sun Life, Sun Life reserves the right to offset any indebtedness, induding commission charge backs, against any other compensation or payments otherwise due General Agent. This Compensation Schedule applies to all of General Agent's Contracts issued after the effective date stated on the first page hereof. This Compensation Schedule also applies to another general agents Contracts from the date when General Agent becomes N agent" of record if the purchase payments under such MGA.GA SLPCI0487(04/04) Sun I ile (US) I i\~d Anlluitles Contracts have always been subject to the same compensation option that applied under this Compensation Schedule, If the General Agency Agreement to which this Compensation Schedule applies terminates, no further payments of any kind will be made to General Agent. Sun Life reserves the rights to change or replace the compensation schedule by giving at least ten (10) days prior written notice to General Agent. Any such change or replacement will apply to (I) annuity contracts issued on or after the stated effective date of such change or replacement, and (2) all premium purchase payments received on or after the stated effective date, MGA,GA SLPCI0487(04104) r > s c E>d'116. + B - Agcn' Number: Tax 10: AB09800000 170-60-9278 Printed: File Name: September 14. 2004 ASTQMP68,KOl SUD Life Assurance Co. of Canada (U.S.) Michael J Kman Jr P,O, Bo< 45 Enola, PA 17015 COMMISSION STATEMENT SUMMAR Y Commission Dale Range: 0813 tJ04 through 09114104 CURRENT PERIOD ACTIVITY Premium Commission 1099 Balance -17,742.45 Fixed Annuity Withdrawals Variable Annuity Withdmwats Market Value Annuity Withdrawals Adjustments 0,00 .111,424,47 0.00 0,00 0,00 0.00 0,00 0.00 -17.742,45 0,00 0.00 0,00 0,00 0,00 -17,742.45 TOTALS -111.424.47 YEAR-TO-DATE SUMMARY Premium Commission 1099 Balance FiXed ADRuity 177,424.47 17,742.45 WlIhdrawals -177,424,47 _17,742,45 Variable Annuity 0,00 0,00 Withdrawals 0,00 0,00 Market Value Annuity 0,00 0.00 Withdrawals 0,00 0.00 Adjustments 0,00 0,00 TOTALS 0.00 0,00 0,00 CURRENT PERIOD PAYMENT DETAIL Previous BaI"""" New Commission Activity Payment Amount New Balance 0,00 -17.742.45 .17,742.45 0,00 WE APPRECIATE YOUR DOING BUSINESS WITH Sun Life Assurance Co. of Canada (U.S.) .Agent NUJllber: AB09800000 Tax 10: 110-60-92~8 SUN LIFE ASSURANCE CO. OF CANADA (U.S.) Page, 1 Printed: 09/14/04 Tax Year: J.004 File: ASTOMP68.K02 COM MIS 5 ION S TAT E MEN T Commission Date Range: 09/01/04 through 09/14/04 Michael J Kman Jr P.O. Box 45 Bnola, PA 11025 wrl ting Agent Transaction Shr Co,,", Name "'-r P<:Jlicy C Insured/Annuitant Product Date _unt Type , , comraission KHAN,MICHAEL J AB098Q4?15 KA1275900S 1 OSBOIWB, GLORIA F MULTI2004 09110/04 -104,661.89 PSUlUl 100 10.0000 -10,466.19 KHAN,MICHAEL J AB098Q4175 KA12889196 1 OSBORNE, GLORIA F HULTI2004 09110/04 -12,156.58 PSURR 100 10.0000 -1,215.66 Writing Agent Totals . .. Earned -171,424.41 -17 ,142.45 7Y. D "'<l.. ~ 0 l.0 1i If1 ..... tf1 ..... "-.l () o ~ v ~ ~ P-- ( ~ ~ r ') ~~' ) , (-) " :~j ,--;-~ _ -'J ~ r',.) c; , c) ,li'l -, co, SHERIFF'S RETURN - REGULAR CASE NO: 2005-02763 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SUN LIFE ASSURANCE CO OF CANAD VS KMAN MICHAEL J JR D/B/A KMAN & SHANNON SHERTZER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KMAN MICHAEL J JR D/B/A KMAN & KMAN FINANCIAL GROUP the DEFENDANT , at 1900:00 HOURS, on the 6th day of June , 2005 at 1018 DOGWOOD LANE ENOLA, PA 17025 by handing to MELINDA KMAN, WIFE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge So Answers: 18.00 11.84 .37 10.00 .00 40.21 .r~~.,~~ R. Thomas Kline Sworn and Subscribed to before 06/07/2005 STANLEY RONaN STEVENS YOUNG )~~1hs:tr/ By: me this /9;;:; day of 0"~:, c2MJ A.D. C 1 :41- 0, 7'h~j#h' A d...,-;;;:-; ,!plothonotary , -.,...-/ SUN UFE ASSURANCE COMPANY OF CANADA : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PA V. : NO: 05-2763 MICHAEL J. KMAN, JR., D/B/A KMAN & KMAN FINANCIAL GROUP Defendant : CIVIL ACTION - LAW ANSWE&NEW ~TfERAND ~nYE PJ;FENSES ANSWER NOW COMES Defendant Michael J. Kman, Jr., Pro Se', and hereby files this Answer, New Matter and Affinnative Defenses and in support hereof avers as follows: }, Defendant is without sufficient information with which to form an answer and otherwise leaves Plaintiff to strict proof at trial. 2, Admitted 3. The Allegations contained in paragraph 3 are conclusions oflaw to which no responsive pleading by defendant is required. 4, The Allegations contained in paragraph 4 are conclusions ofla.w to which no responsive pleading by defendant is required. 5, Admitted 6, The Allegations contained in paragraph 6 are conclusions oflaw to which no responsive pleading by defendant is required. 1 COUNT I - BREACH OF CONTRACf 7. Defendant incorporates paragraphs 1 through 6 of this AnllWer and Affirmative Defenses by 1 eference as if fully set forth herein. 8. The Allegations contained in paragraph 8 are conclusions oflaw to which no responsive pleading by defendant is required. 9. The Allegations contained in paragraph 9 are conclusions of law to which no responsive pleading by defendant is required, 10, The Allegations contained in paragraph 10 are conclusions of law to which no responsive pleading by defendant is required. WHEREFORE, Defendant Michael 1. Kman, Jr., denies that PlaintiJfis entitled to any of the relief requested in the Complaint. Accordingly, Defendant respectfully requests that the Complaint be dismissed with prejudice and that Defendant be awarded his costs and fees incurred in this action. COUNT n - UNJUST ENRICHMENT 1 L Defendant incorporates paragraphs 1 through 10 of this Answ,~ and Affirmative Defenses by reference as if fully set forth herein. 12, The Allegations contained in paragraph 12 are conclusions OflllW to which no responsive pleading by defendant is required, 13, Denied 2 WHEREFORE, Defendant Michael J. Kman, Jr., denies that PIaintiffis entitled to any of the relief requested in the Complaint. Accordingly, Defendant respectfully requests that the Complaint be dismissed with prejudice and that Defendant be awarded his costs and fees incurred in this action. NEW MATTER 14. Defendant incorporates paragraphs 1 through 13 oftbis Answer, New Matter and Affirmative Defenses by reference as if fully set forth herein. 15. Defendant's relationship with Plaintiff originated and was continually maintained through Exclusive Producers Network (hereinafter EPN). 16. Defendant's business, Kman & Kman Ymancial Group (hereinafter DBA) was at no time contracted with EPN or Plaintiff. 17. Defendant entered into an agreement with EPN to repay any debit balance through the submission of additional business. 18. Defendant secured enough replacement business to repay any debit balance and informed EPN of said pending transaction; however, Defendants appointment tll) finalize said transaction was rebuked by an inappropriate and inaccurate negative debit reporting by Plaintiff. WHEREFORE, Defendant Michael 1. Kman, Jr., denies that Plaintifl'is entitled to any of the relief requested in the Complaint. Accordingly, Defendant respectfully requests that the Complaint be dismissed with prejudice and that Defendant be awarded his costs and fees incun-ed in this action. 3 ~11VEDE~m FIRST AFFIRMATIVE DEFENSE - MODIFICATION 19. Defendant incorporates paragraphs 1 through 18 of this A1tswer, New Matter and Affirmative Defenses by reference as if fully set forth herein. 20. Defendant is informed and believes and thereon alleges thatt the contract in question, if any, was modified by the parties and that Plaintiff is barred from recovery on the unmodified original contract, if any, by reason of said modification. SECOND AFFIRMATIVE DEFENSE - LACK OF STANDING 21. Defendant incorporates paragraphs 1 through 20 oftbis Answer, New Matter and Affirmative Defenses by reference as if fully set forth herein. 22. Plaintiffs Complaint is barred by it's lack of standing. THIRD AFFIRMA TIFE DEFENSE.- OFFSET 23. Defendant incorporates paragraphs 1 through 22 of this Answer, New Matter and Affirmative Defenses by reference as if fully set forth herein. 24. Defendant alleges that he has suffered damage by reason ofPllIintiff conduct; that he has the right to offset if any amount is owed to Plaintiff' or due Plaintiffby way of dantage. 4 FORm AFFIRMATIVE DEFENSE - UNCLEAN HANDS 25. Defendant incorporates paragraphs 1 through 24 of this A11swer, New Matter and Affirmative Defenses by reference as if fully set forth herein. 26. Defendant alleges that to the extent the Plaintiff seeks equitable relief, Plaintiffs inequitable conduct constitutes unclean hands and therefore bars the granting of relief WHEREFORE, Defendant Michael J. Kman, Jr., denies that Plaintiff is entitled to any of the relief requested in the Complaint. Accordingly, Defendant respectfully requests that the Complaint be dismissed ""'........ ""'..._ '" """"'" "" """ ""'... ~in ~ ~ """', .... 28, 2005 ~~"'" 1. "- J,. 1018 Dogwood Lane Enola, P A 17025 (717) 728-0711 Defendant, Pro Se' 5 VERIFICATION I, Michael 1. Kman, Jr., Defendant in the above captioned action, hereby state that the facts and averments set forth in the Answer, New Matter and Affirmative Defenses are true and correct to the best of my knowledge, information and belief I understand that the statements herein are made subject to 18 Pa. C.S. !\4904(a) relating to unsworn falsification to authorities. Dated: June 28, 2005 ..L<<4 ;'1...11, "'""" ,......' ..... CERTIFICATE OF SERVICE I, Michael J. Kman, Jr., Defendant in the above captioned action do hereby certifY that I have this day served the foregoing document upon the Plaintiff at the address listed below via U.S. First Class Mail, in accordance and satisfaction with the requirements of the Pennsylvania Rules of Civil Procedure ~ 33.32 as it re1li~tes to service by a participant. Date: June 28, 2005 STRADLEY RONON STEVENS &YOUNG,LLP Jeffi'ey A. Lutsky Stuart D. Lurie 2600 One Commerce Square Philadelphia, PA 19103-7098 ~ - ~ = 5l: ;:R R': E ~:n ~::J;' :z 8~ 1'- <W . , ~'; C C} ::~S? ~ :x>> ~~ ZO 3: :;>,0 - c - ."" .~ .. :55 w en -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KRISTEN N. FREEMAN, Plaintiff NO. 05.3139 CIVIL TERM v. CIVIL ACTION - LAW TODD A. FREEMAN, DIVORCE Defendant AFFIDAVIT OF SERVICE OF 3301(dl AFFIDAVIT I, Diane G. Radcliff, Esquire, being duly sworn according to law, depose and say that on June 24, 2005, I served a true and correct copy of the 3301(d) Affidavit upon Todd A. Freeman, the Defendant, by Certified Mail, Restricted Delivery, addressed as follows: TODD A. FREEMAN 1203 GROSS DRIVE MECHANICSBURG, PA 170~)5 A true and correct copy of the Certified Mail return receipt mailing card" for the foregoing is attached hereto as Exhibit "An and made a part hereof. (Note: Original Certified Mail return receipt mailing card is attached to the Certificate of Service for the Divorce Complaint filed of record in the above captioned case). ( Sworn to and subscribed before me a Notary Public in and for Cumberland County, Pennsylvania this~day of--=:JA.cI'\L , 2005. ~~ hhU.J ~ LJA..n~ NOTARY PUBLIC My commission expires: COMMONWEALTH OF PENNSYLVANIA Notarial Seal Deborah L. Donley, NOIary Public camp Hill Eloro. Cumberland Coonly My Commlssioo Expires Sepl23, 2007 Member, Pennsylvania ASSOCiatIon Of Notaries 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 [f space permits. 1. Article Addressed to: WciA.R~ t z.o~ Gros~ l)rlic.. rf\tt..h (-A. II D5 5' 2. Article Number (Thmsfer from servfce label) PS FOnTl 3811 . February 2004 7005 Domestic Return Fleceipt A. Signature ./ COMPLETE THIS SECTION ON DELiVERY )(. D. o Agent o Addressee C. Date of Detivery DYes D No o Express Mail o Return Recel t for Merchandise DC.a.D. 4. Restricted Delivery? (E~ if! \\ , ~. 0390 0003 2641 ~S3 EXHIBIT "An RETURN RECEIPT CAIRD '* Yes 102595-02-M-1540 ~ <;j?, ~. ~ ~~ -Q('. ~ ~~ (1:;'-\ #f CJ ~ ,-~ cP -r:. '!J..~< _ 9S), r:;'- ~ -'<'p' ~" -- 9 'Z b ..g 'JB y.~ tiJ :4 ::2. tiJ T'" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KRISTEN N. FREEMAN, Plaintiff NO. 05-3139 CIVIL TERM v. CIVIL ACTION - LAW TODD A. FREEMAN, DIVORCE Defendant AFFIDAVIT OF SERVICE OF DIVORCE COMPLAINT I, Diane G. Radcliff, Esquire, being duly sworn according to law, depose and say that on June 24, 2005, I served a true and correct copy of the Complaint in Divorce upon Todd A. Freeman, the Defendant, by Certified Mail, Restricted Delivery, addressed as follows: TODD A. FREEMAN 1203 GROSS DRIVE MECHANICSBURG, PA 17055 The Certified Mail return receipt mailing card, or a copy thereof, for the foregoing is attached hereto as Exhibit "Au and made a part hereof. ~r . R~~CLI , SQUIRE 3448 Trindl~oad Camp ll,PA17011 Supreme Court I.D. No. 32112 Attorney for Plaintiff Sworn to and subscribed before me a Notary Public in and for Cumberland County, Pennsylvania this ~ day Of..QW1L , 2005. ~iu ~ AA-n" I; NOTARY PUBLIC My commission expires: COMMONWEALTH OF PENNSYLVANIA Notarial Seal Deborah L. Donley. Notal)! Public Camp Hill Boro, Cumberland County My Commission Expires Sept 23. 2007 Member, PennsylvanIa Association Of Notaries . Complete ~ems 1, 2, and 3. Also complete Item 4 W ReelricIed Delivery Ie desInld. . Print your neme end address on the reverse 10 that we cen rel\lm Ihe cerd 10 you. . Atleoh this cerd 10 the back of the mallplece, or on the fronl W space permits. 1. Anlcle Addressed to: ~dA.R~ \20~ ~ \YtIc. N't.th (:fr llcO 5' 2. ArtIcle Number (7lansiIr hom _Isbell PS Form 3811, February 2004 7005 0390 []003 102595-02-M-1540 Domestic Return Receipt EXHIBIT "A" RETURN RECEIPT CARl) ~ .. (") ...... = ~ c: => -o&i en <- ~:o mrT": c: Z:-X' z ~.~ ~[ w ,. o__? 0 KL~' :r-ri ~C; :l> ":!.J ::It 0(") -c 2m :5>-' c.: ..g s:: ~ c.v ?E c.> '< STRADLEY RONON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (J.D. No. 36673) Stuart D. Lurie (J.D. No. 83391) 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys for Plaintiff, Sun Life Assurance Company of Canada SUN LIFE ASSURANCE COMPANY OF CANADA COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. Civil Action - Law MICHAEL J. KMAN, JR. d/b/a KMAN & Case No. 05-2763 KMAN FINANCIAL GROUP Defendant. PLAINTIFF'S REPLY TO NEW MATTER Plaintiff, Sun Life Assurance Company ofC~mada ("Sun Life"), by its counsel, hereby submits this Reply to the New Matter filed by defendant, Michael J. Kman, Jr. ("Kman"), as follows: 14. Sun Life incorporates paragraphs 1 through 13 of its Complaint by reference as if fully set forth herein. 15. Admitted only that, upon information and belief, Kman was at some earlier time associated with a managing general agent called Exclusive Producers Network ("EPN"). The remainder ofthe averments contain,:d in paragraph 5 ofKman's New Matter is denied. By way of further response, EPN is completely irrelevant to this lawsuit. The General Agent under Master General Agent Agreement (hereinafter, the "Agency Agreement") is between Sun Life and Kman. 16. Sun Life denies that Kman's business, Kman & Kman Financial Group "at no time contracted" with Plaintiff. To the contrary, Kman and Sun Life are parties to the Agency Agreement. Kman and his business, Kman & Kman Financial Group, are one and the same. According to the Pennsylvania Department of State, "Kman and Kman Financial Group" is merely a fictitious name owned by Kman, and is not a distinct legal entity separate from Kman. After reasonable investigation, Sun Life is without knowledge or information sufficient to form a belief as to the truth ofthe averments regarding the particulars of any past or present contractual relationship between Kman and EPN, and they are therefore denied. However, EPN is completely irrelevant to this lawsuit. 17. After reasonable investigation, Sun Liife is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 17 ofKman's New Matter, and they are therefore denied. By way of further response, EPN is completely irrelevant to this lawsuit. 18. Sun Life denies that it made any inappropriate or inaccurate negative reporting regarding Kman. After reasonable investigation, Sun Life is without knowledge or information sufficient to form a belief as to the truth ofthe remaining averments contained in paragraph 17 ofKman's New Matter, and they are therefore denied. - 2 - WHEREFORE, Plaintiff, Sun Life Assurance Company of Canada, respectfully requests that judgment be entered in its favor and against Defendant, Michael J. Kman, Jr., in an amount of$17,742.45, plus interest and costs, including reasonable attorneys fees, and such other further relief as may be just and equitable. Dated: July 20, 2005 J . TRADL Y RONON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (J.D. No. 36673) Stuart D. Lurie (J.D. No. 83391) 2600 One Comm(:rce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys For Plaintiff, Sun Life Assuranee Company of Canada - 3 - VERIFICATION I, Don McNaught, hereby state that I am duly authorized to make this Verification on behalf of Sun Life Assurance Company of Canada, the plaintiff in the above action, and that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to 18 Pa. C. s. 9 4904 relating to unsworn falsification to authorities. Dated: July 19, 2005 ~1k~ Don McNaught CERTIFICATE OF SERVICE I, Stuart D. Lurie, Esq., hereby certify that on this 20th day of July 2005, I caused a copy of the foregoing Reply to New Matter of Plaintiff Sun Life Assurance Company Of Canada to Defendant Michael J. Kman to be served by first class United States mail, postage prepaid, upon the following party herein, at the address set forth: Michael J. Kman, Jr. 1018 Dogwood Lane Enola, P A 17025 ~) \), ~):'t:, Esq. -4- - t->-,.) (':::") ~ <.r> <=:t ., ::;J ni::rJ r.::- L1 rt~ -, '17 <~(.:) ,?~;S~ '...ji''"f'i ~~ .< N N :'J s:? ",) STRADLEY RON ON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (I.D. No. 36673) Stuart D. Lurie (I.D. No. 83391) 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys for Plaintiff. Sun Life Assurance Company of Canada SUN LIFE ASSURANCE COMPANY OF CANADA Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY v. Civil Action - Law MICHAEL 1. KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP Case No. 05-2763 Defendant. MOTION FOR SUMMARY JUDGMENT Plaintiff, Sun Life Assurance Company of Canada ("Sun Life"), by its counsel, hereby moves for summary judgment pursuant to Rule 1035.1 of the Pennsylvania Rules of Civil Procedure, and in support hereof, states as follows: I. Sun Life and the defendant, Michael J. Kman, Jr. ("Kman"), are parties to a General Agent under Master General Agent Agreement (the "Agency Agreement"), pursuant to which Kman agreed to serve as Sun Life's agent for the purpose of selling insurance or annuity plans. A true and correct copy of the Agency Agreement is attached hereto as Exhibit "A." 2. Kman does not dispute the material terms of the Agency Agreement, and admits he signed it. (See Response to Plaintiff's First Set of Requests for Admissions at No.3, attached hereto as Exhibit "B.") 3. Pursuant to the Agency Agreement and its Compensation Schedule, (which is incorporated by reference into the Agency Agreement), Kman earns a specified L402749v.1 commission from Sun Life on policies he sells. However, in the event the policy is refunded for any reason, he must return the commission to Sun Life: General Agent shall be paid compensation for the sale of Contracts as set forth in the attached Compensation Schedule(s). The Company has the right to charge back any such compensation under the conditions stated in such Schedule( s). (Exhibit "A" at' 8.) Moreover, in the event Kman runs a negative balance with Sun Life, he is obligated to "promptly pay back the amount of the excess following a written demand by Sun Life." (See Exhibit "A.") 4. As of September 14,2004, and continuing to the present, Kman's broker account has carried a negative balance in the principal amount of $17,742.4 5 as a result of policies surrendered during the purchaser's "free look" period, which gives the purchaser of a policy the opportunity to return it for a full refund within 45 days of purchase. (See Commission Statement Summary dated September 14,2004, attached hereto as Exhibit "C.") Kman admits to this negative balance. (See Kman's Answer to Complaint at' 5, attached hereto as Exhibit "D.") 5. Since Kman acknowledges the Agency Agreement and admits the negative balance, there are no genuine issues of material fact. By failing to reimburse Sun Life, Kman is in breach ofthe parties' contract and Sun Life is entitled to summary judgment. -2- L 402749 v.1 WHEREFORE, Sun Life respectfully requests that summary judgment be granted in its favor and against Kman. Sun Life further requests an award of pre-judgment interest in an amount to be determined. Oated: October 3,2005 Respectfully submitted, 1 TRAD Y RONON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (1.0. No. 36673) Stuart O. Lurie (1.0. No. 83391) 2600 One Commerce Square Philadelphia, P A 19103-7098 (215) 564-8000 Attorneys For Plaintiff, Sun Life Assurance Company of Canada - 3 - L 402749 v.\ 4- 1-04-; 4:51PM: ;2:81 362 9184 .. A- 2 ....-01-04 02%17P Knan & Kman Financial Grp 717 728 0655 P.06 11. ---- .... QilrMm l'Icur6.x ...........CI1fIf of1bls ....~tCldto: '2. ~IW.:l--"'~. _PllINrduJly. "-.-Ioa_ of.......~ s.m@ Ufe Jlll...wmJ- ~ __two mplaaltbls~bypllllVlcha..~of... iIIl1barioaI oIBa!<. ."-... _copy tOr your 1IC<OId.. _ LlIIt HAudaI I.IMl 'F,DepIruIIaK PA "!1m WeDeI101 aw.. 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Compensation Schedule Effective August 9, 2004 General Agency Agreement This Compensation Schedule is attached to and made part of the General Agency Agreement between General Agent and Sun Life Assurance Company of Canada (U.S.), ('Sun Life'). This schedule shall remain in effect subject to the terms of the Gener.d Agency Agreement, until such time as Sun Life notifies General Agent that a new schedule shall take effect. The compensation provided by this Schedule will be paid only so long as General Agent is 'general agent of record'. If an agent of the General Agent solicited the application, General Agent will be deemed to be tecognized as 'general agent of record' unless and until the Contract's owner designates someone else and Sun Life approves such designation. MGA.GA SLPCI0487(04/04) . .;; 4-" "'.- ii:;' - Sun ~,/ Life Financial so, TABLE OF CONTENTS Sun Del< 100 FPOA Keyport Index Multipoint SPOA Keyport Value FPOA Compensation Chargebacks Internal Conversions Refund of Premiums or Purchase Payments Conservation Fee Trails Miscellaneous MGA.GA SLPCI0487(04/04) 'iUN DEXlOO lbiIiePaymentDefrmdAnnuity rerm 6yr: (a) 6.000/0 of any purchase payment received while both the owner(s) and annuitant are attained age 80 or less. (b) 2.00"10 of any purchase payment received while both the owner(s) and annuitanl are attained age 81-85. (c) 0"/0 of any purchase paymenl received while both the owner( s) and annuitanl are attained age 86 or older. Term 9yr. (a) 9.00% of any purchase payment received while both the owner(s) and annuitant are attained age 80 or less. (b) 5.000/0 of any purchase payment received while both the owneI{s) and annuitant are attained age 81.85. (c) 0% of any purchase payment received while both the owner( s) and annuitant are attained age 86 or older. Term 12yr: (aJ 8.500/0 of any purchase payment received while both the owner{ s) and annuitant are attained age 80 or less. (b) 4.500/0 of any purchase payment received while both the owner(s) and annuitant are attained age 81-83. (c) 0"10 of any purchase payment received while both the owner( s) and annuitant are attained age 84 or older. KEYroRfINIJE.l(MUL1JPOINf SindePremium Defrmd ~ Initial nltial Tenn enewal Tenn 1 2J 5 7 1 1.00% 0.800/0 5.00% 5.50""" 10.00% 5.00% 0.80% 2.75% 3.25% 7.00% 5.50% 0.80% 2.75% 3.25% 7.()O% 10.00% 0.800/0 2.75% 3.25% 7.00% KEYroRfINDEXMUL1JPOfNf 2004 Single Pmnium . (1) nitial Issue nitial iferm Age Premium iRenewal Tenn lyr(2) 5yr 7vr io;.- Iyr 0-80 1.00% 0.80""" 5.00% 5.5oo", 10.00% 81-85 .50% 0.800/0 5.0oo", 5.500/0 10.00% 5yr 0-80 5.00% 0.8oo", 2.75% 3.25% 7.00% 81-85 1.00% 0.80% 2.75% 3.25% 7.0ooA> 7yr 0-80 5.50% 0.80"", 2.75% 3.25% 7.00% 81-85 1.5oo,," 0.80% 2.75% 3.25% 7.00% IOyr 0-80 10.00% 0.80% 2.75% 3.25% 7.00% 81-85 6.0oo/0 0.80"A> 2.75% 3.25% 7.00% (21No commission will be paid on (a) any premium of $1,000,000 or more that is allocated or renewed into a 15,7 or 10 year term, or (b) a premium that represents. in whole or in part, the surrender or loan proceeds of any life insurance policy or annuity contract issued by Sun Life or its affiliates (llRenewal Term: General Agent will also received compensation as described above if General ~ent is Mgeneral agent of record. on an in-force Contracts on the 45 day of each renewal leon after the initial term. compensation equals the contract's Indexed Value on such day multiplied by the applicable percentage from the table above for the term length, contract anniversary and amount of the single premium. Reference to the II contract anniversary" means the number of O:mtr.act Year anniversaries since the Issue Date of the Contract. (2) Policies renewing from a 1 year term on thei r second contract anniversary will pay the following renewal compensation: I yr to 5yr: 2.75%. lyrto 7yr: 3.25%, Iyr to 1Oyr: 7.00/. (21No commission will be paid on (a) any premium of $1,000,000 . . or more that is allocated or renewed into a 1,5,7 or 10 year term, KEYPORT V ALUE Fl~ble Payment Deferred AnnUity or (b) a premium that rel.'r~ents, in whol~ or in part.. the surrender MVA 5yr: (a) 3.5% of any purchase payment received while orloan proceeds ofany hfe msorance pohey or annUIty contract both the owner(s) and annuitant are attained age 85 orle,s. issued by Sun Life or its affiliates (b) For issue ages 86+ will be reduced upfront by x% of (2)Renewal Term: General Agent will also received compensation premium w 0%. as described above if General Agent is "general agent of record" on an in-force Contracts on the 45'" day of each renewal term afier the initial term, compensation equals the contract's Indexed Value on such day multiplied by the applicable percentage from the table above for the term length, contract anniversary and amount of the single premium. Reference to the II contract anniversary'"' means the number of Contract Year anniversaries since the Issue Date of the Contract. (~l Policies renewing from a lyear term on their second contract anniversary will pay the following renewal compensation: I yr to 5yr: 2.75%. Iyr to 7yr: 3.25%, Iyrto 1Oyr: 7.00/0 here X%=lIssue Me- 85\ x.5 A"e Commission 86 HJ% 87 2.5% 88 2,oo/. 89 1.5% 90 0.5% MVA 6yr: (a) 4.0"/0 of any porchase payment received while both the owner(s) and annuitant are attained age 8S or less. (b) 0% of any purchase payment received while either owner(s) or annuitant is attained age 86 or older. MGA.GA SLPCI0487(04/04) MVA 7yr: (a) 4.5% of any purchase payment received while both theowner(s) and annuitant are attained age 85 or less. (b) 0% of any purchase payment received while either owner{ s) or annuitant is attained age 86 or older. Compensation Chargebacks KEYPORTVALUE [n the event any Contract is partially or totally surrendered within one (1) year following the date the flexible premium or single premium is received, even after death, there will be a chargeback of compensation attributable to the amount surrendered in accordance with the following schedules: TIme elapsed since premium date: Compensation Chargeback Zero (0) to Six (6) months 100% Seven (7) to Twelve (12) months 50% Over twelve (12) months 0% SUN DEX 100 [n the event any Contract is partially or totally surrendered within the first (12) months of any term following the date the flexible premium is received, there will be a chargeback of 100% of the compensation attributable to the amount surrendered. ) - KEYPORT INDEX MULTIPOINT In the event any Contract is partially or totally surrendered within the first six (6) months of any term there will be a chargeback of 100010 of the compensation attributable to the amount surrendered. For purpose of this provision and tegardless of any Contract language contrary, the amount surrendered may be treated by Sun Life during the first term as first coming oUl the Contract's single premium and during later terms, as first coming out of the term's initial Indexed Value. Keyport Index Multipoint 2004 In the event any Contract is partially or totally surrendered within the first twelve{ 12) months of any term there will be a chargeback of [00010 of the compensation attributable to the amount surrendered. For purpose of this provision and regardless of any Contract language contrary, the amount surrendered may be treated by Sun Life during the first term as first coming out the Contract's single premium and during later terms, as first coming out of the term's initial Indexed Value Refund of Premiums or Purchase Payments Should any payment under any contract issued by Sun Life be refunded for any reason, Payee shall repay or return any commissions received with respect to such payment. Internal Conversions In the event a contract is converted to another Sun Life Assurance Company of Canada (U.S.) or any affiliated company product. a different commission schedule may apply Conservation Fee SPIA, Keyaccumulawr, Keyport Value, Sun Dex 100 If, after the death of the Annuitant, Primary Owner, or loint Owner, no surrender occurs within 90 days of death after Sun Life receives notification of death and any required documentation, a Conservation Fee of 100 basis points (1.0%) of the Contract's Accumulated Value will be paid to General Agent if General is 'general agent of record'. The fee may be paid before the end of the applicable 90day period. Any payment will be subject to the charge back rules described in the Compensation Chargebacks section. Keyport Index Multipoint, Keyport Index Multipoinl2004, Sun Dex 100 A conservation fee of 100 basis points (1.0%) of the Contract's Indexed Value that is eligible for waiver of surrender charges due to the death of a Covered Person (as described in the Contract) will be paid to the General Agency upon Sun Life receipt of documentation evidencing the intent not to surrender the Contract during the prescribed 90 day period after death. The fee may be subject to the chargeback rules described under the Compensation Chargebacks section for six (6) months following the payment. Miscellaneous Notwithstanding the above, no compensation will be paid on any purchase payment that represents. in whole or in part, the surrender or loan proceeds of any life insurance policy, annuity contract, or premium fund deposit agreement issued by Sun Life or any afftliated company. General Agent's compensation will be reduced by any compensation amount Sun Life is obligated under any other compensation agreemenrto pay MGA's, otherGA's or agents. [f any charge back amount exceeds compensation othelWise due, General Agent shall promptly pay back the amount of the excess following a written demand by Sun Life. Sun Life reserves the right to offset any indebtedness, including commission charge backs. against any other compensation or payments othelWise due General Agent. This Compensation Schedule applies to all of General Agent's Contracts issued after the effective date stated on the first page hereof This Compensation Schedule also applies to another general agents Contracts from the date when General Agent becomes 'agent" of record if the purchase payments under such MGA.GA SLPCI0487(04/04) :Ontracts have always been subject to the same compensation Jplion that applied under this Compensation Schedule. If the General Agency Agreement to which this Compensation Schedule applies terminates, no further payments of any kind will be made to General Agent. Sun Life reselVes the rights to change or replace the compensation schedule by giving at least ten (10) days prior wrinen notice to General Agent. Any such change or replacement will apply to (I) annuity contracts issued on or after the stated effective date of such change or replacement, and (2) all premium purchase payments received on or after the slated effective date. MGA.GA SLPCl04S7(04f04) ) SUN LIFE ASSURANCE COMPANY OF CANADA Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA V. NO: 05-2763 MICHAEL J. KMAN, JR., D/B/A KMAN & KMAN FINANCIAL GROUP Defendant CIVIL ACTION - LAW RESPONSE TO PLAINTIFF'S FIRST SET OF REOUESTS FOR ADMISSIONS AND FIRST SET OF INTERROGATORIES NOW COMES Defendant Michael J. Kman, Jr., Pro Se', and hereby files this Response to Plaintiff's First Set of Requests for Admissions and First Set ofInterrogatories and in support hereof avers as follows: ) Response to First Set of Requests for Admissions I. Denied 2. Admitted 3. Admitted Response to First Set of Interrol!atories I. The original document differs in the following ways: a) Page I of 3 did not contain handwriting in section 2 line I "Name of Master General Agent: Exclusive Producers Network"; b) Page I 00 did not contain handwriting in section 4; c) Pages 4, 5, 6, 7 and 8 were not a part of the original paperwork; d) License/Appointment Data Sheet is missing from the copy; e) W-9 Request for Taxpayer Identification Number and Certification is missing from the copy. By way of further response, it is my contention that the document marked as Exhibit A to Plaintiffs ) First Set of Requests for Admissions and First Set ofInterrogatories does not represent all agreements relative to my appointment with Sun Life. The additional documents which comprise of the entire agreement relate to paperwork and letters completed and sent to Exclusive Producers Network including but not limited to an additional agreement between EPN and Michael 1. Kman, Jr. 2. Modification: Defendant is informed and believes and thereon alleges that the contract in question, if any, was modified by the parties, and that plaintiffs are barred from recovery on the unmodified original contract, if any, by reason of said modification. By way of further response, the defendant alleges that said modification exists between the Master General Agent (EPN) and the defendant and is on point to the matter of repayment of any debit balances. EPN agreed and authorized the defendant to repay any debit balance through the submission of additional new business. Lack of Standing: This complaint is barred by the fact that plaintiff lacks standing to bring an action ) against the defendant. Plaintiffs first order of recapture is via the Master General Agent (EPN) who has an agreement with the defendant to allow for any repayments to be made through the submission of additional new business. Further, defendant specifically alleges that the plaintiff lacks any standing to collect upon the entity Kman & Kman Financial Group and that no contract or agreement ever existed between the plaintiff and Kman & Kman Financial Group. It is specifically denied that Kman & Kman Financial Group is simply a fictitious name and further alleges that Kman & Kman Financial Group is a registered business entity in the Commonwealth of Pennsylvania. 2 Offset: Any amount sought to be recovered in this action is barred in whole or in part by the amount owing from plaintiff to defendant. Defendant alleges that he has suffered damages by reason of an incorrect and/or inappropriate notification to the Vector One reporting system and that said conduct infringed on defendants ability to repay any debit to the Master General Agent (EPN) as agreed to by both the Master General Agent and the defendant. Defendant has the right of offset if any amount of money is owed to plaintiffs or due plaintiffs by way of damage. Unclean Hands: The answering defendant alleges that to the extent the plaintiff seeks equitable relief, plaintiffs' inequitable conduct relative to the incorrect and/or inappropriate notification to the Vector One reporting system constitutes unclean hands and therefore bars the granting of relief 3 . Yes. I contracted with Sun Life through EPN who serves in this matter as the Master General Agent. My agreement with EPN was that any debit balances would be repaid via the submission of additional new business. I had a new case to submit which would have covered most if not all of any alleged debit ) balance to Sun Life and moved to submit said case through EPN and to American Equity. My appointment with American Equity was declined due to the reporting of an existing debit balance with Sun Life. Sun Life is prohibited to report a debit balance on any matter which resides in litigation and or is in dispute. Not having the appropriate avenue to place this new business, I lost the case and the opportunity to reduce any alleged debit balance to Sun Life. Dated: August 16, 2005 1f:L ~ By: Michael J. Kman, Jr. 1018 Dogwood Lane Enola, P A 17025 (717) 728-0711 Defendant, Pro Se' 3 VERIFICA nON I, Michael J. Kman, Jr., Defendant in the above captioned action, hereby state that the fucts and averments set forth in the Response to Plaintiff's First Set of Requests for Admissions and First Set ofInterrogatories are true and correct to the best of my knowledge, information and belief. I understand that the statements herein are made subject to 18 Pa. c.s. 9 4904(a) relating to unsworn falsification to authorities. Dated: August 16, 2005 " chael J. Kman Jr, Defendant ) STRADLEY RONON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (LD. No. 36673) Stuart D. Lurie (I.D. No. 83391) 2600 One Commerce Square Philadelphia, P A 19103-7098 (215) 564-8000 Attorneys for Plaintiff, Sun Life Assurance Company of Canada SUN LIFE ASSURANCE COMPANY OF CANADA Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY v. Civil Action - Law MICHAEL J. KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP Case No. 05-2763 Defendant. PLAINTIFF'S FIRST SET OF REQUESTS FOR ADMISSION AND FIRST SET OF INTERROGATORIES Plaintiff, Sun. Life Assurance Company of Canada, by its counsel, hereby propounds this First Set of Requests for Admission and First Set of Interrogatories upon Defendant Michael J. Kman, Jr. d/b/a Kman & Kman Financial Group. Answers must be served within thirty (30) days, and must comply with the Pennsylvania Rules of Civil Procedure. DEFINITIONS & INSTRUCTIONS 1. "You" shall mean the defendant, Michael J. Kman, Jr. 2. "Sun Life" shall mean the plaintiff, Sun Life Assurance Company of Canada. REQUESTS FOR ADMISSION I. Admit that the document attached hereto as Exhibit A is a true and correct copy of a General Agent under Master General Agent Agreement (the "Agency Agreement") between you and Sun Life. LITIGATION 396954vl RESPONSE: 2. RESPONSE: Admit that you signed the Agency Agreement. 3. Admit that your signature appears on page 3 of the Agency Agreement. RESPONSE: INTERROGATORIES I. If your response to any of the above Requests for Admission is anything other than an unqualified admission, set forth in detail why you are unable to provide an unqualified admission, and state all facts and identify all documents supporting your response. RESPONSE: 2. Identify all facts supporting each and every affirmative defense raised in your Answer to the Complaint. RESPONSE: 3. Do you contend that you do not owe Sun Life the principal amount of$17,742.45? Ifso, explain in detail the basis for your contention. 2 LITIGATION 396954vl RESPONSE: Dated: July 26, 2005 ~~ONON STEVENS & YOUNG, LLP Jeffrey A. 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Clflbr otIlcar X -_..._--.."..,.~..."""'_......-........__.. --~-..._~.,"'_._oI..._UIo._I_d__ GA/T Fextoepnal:775.201.CI028 hcdol) 5IJ'C_ lVlIS \"1 .4 / ~...." !&l'J : Sun ~,: Life Financial SM Compensation Schedule Effective August 9, 2004 General Agency Agreement This Compensation Schedule is attached to and made part of the General Agency Agreement between General Agent and Sun Life Assurance Company of Canada (US), ("Sun Life"). This schedule shall remain in effect subject to the terms of the General Agency Agreement, until such time as Sun Life notifies General Agent that a new schedule shall take effecL The compensation provided by this Schedule will be paid only so long as General Agent is "general agent of record". If an agent of the General Agent solicited the application. General Agent will be deemed to be recognized as "general agent of record" unless and until the Contract's owner designates someone else and Sun Life approves such designation. MGA.GA SLPCI04S7(04/04) 4i. .', ~.- Sun ~/ Life Financial"" TABLE OF CONTENTS Sun De>: 100 FPOA Keyport Index Multipoint SPOA Keyport Value FPOA Compensation Chargebacks Internal Conversions Refund of Premiums or Purchase Payments Conservation fee Trails Miscellaneous MGA.GA SLPCI0487(04/04) f DEX 100 fbilje Pll}f1Ie1It lkjermlAnnuity <m 6)'<: (a) 6.00% of any purchase payment received while Ith the owner(s) and annuitant are attained age 80 or less. (b) 110o/0 of any purchase payment received while both the mer(s) and annuitant are attained age 81-85. (e) 0% of any trchase payment received while both the owner( s) and lfiuitant are attained age 86 or older. 'fin 9)'<: (a) 9.00% of any purchase payment received while lth the owner(s) and annuitant are attained age 80 or less. (b) 000/. of any purchase payment received while both the mer(s) and annuitant are attained age 81-85. (c) 0% of any uchase payment received while both the owner( s) and lDuitant are attained age 86 or older. '"" 12yr: (a) 8.50% of any purchase payment received while lth theowner(s) and annuitant are attained age 80 or less. (b) 50% of any purchase payment received while both the I'ffier( s) and annuitant are attained age 81-83. (c) 0% of any uchase payment received while both the owner(s) and Inuitant are attained age 84 or older. EYroRflNDFXMUL1JrolNf SinglePn>miumlJef'erml 1 Initial Tenn nitial emium enewal Tenn 1 2) 5 0.80% 5.00% 0.80% 2.75% 0.80% 2.75% 0.80% 2.75% 1 10.00% 7.00% 7.000Al 7.00% 7 5.50% 3.25% 3.25% 3.25% ,.. 1.00% 5.00% 5.50% 10.00% INo commission will be paid on (a) any premium of $1,000,000 r more: that is allocated or renewed into a 1,5,7 or 10 year term, r (b) a premium that represents, in whole or in part, the surrender r loan proceeds of any life insurance policy or annuity contract iSUed by Sun Life or its affiliates lRenewal Term: General Agent will also received compensation s described above if General Agent is ... general agent of record'" on n in-force Contracts on the 45'" day of each renewal term after the lilial term, compensation equals the contract's Indexed Value on uch day multiplied by the applicable percentage from the table bove for the term length, contract anniversal)' and amount of the logle premium. Reference to the "contract anniversary" means r.e number of Contract Year anniversaries since the Issue Date of he Contract. 1) Policies renewing from a 1 year term on their second contract nniversalY will pay the following renewal compensation: I yr to ;yr: 2.75%, Jyr to 7yr: 3.25%, Iyr to 10y<: 7.0% KEYPORflNDFXMUL1JrolNf 2004 SinglePremium . '2) nilial Issue nitial !Term Age Premium !Renewal Term I~ijl 5w 7w lOw Iyr 0-80 1.00% 0.80% 5.00% 5.50% 10.00% 81-85 .50% 0.80% 5.000... 5.50% 10.00% 5yr 0-80 5.00% 0.80% 2.750... 3.25% 7.00% 81-85 1.00% 0.80% 2.75% 3.25% 7.00% 7yr 0-80 5.50% 0.80% 2.75% 3.25% 7.00% 81-85 1.50% 0.80% 2.75% 3.25% 7.00% IOyr 0-80 10.OOOAl 0.80% 2.75% 3.25% 7.000Al 81-85 6.00% 0.80% 2.75% 3.25% 7.00% (2lNo commission will be paid on (a) any premium of SI.000,OOO or more that is allocated or renewed into a L5,7 or 10 year term, or (b) a premium that represents. in whole or in part. the surrender or loan proceeds of any life insurance policy or annuity contra<..'1 issued by Sun Life or its affiliates (2lRenewal Term: General Agent will also received compensation as described above if General ~ent is "general agent of record'" on an in-force Contracts on the 45 day of each renewal term after the initial term, compensation equals the contract's Indexed Value on such day multiplied by the applicable percentage from the lable above for the term length, contract anniversary and amount of the single premium. Reference to the "contract anniversary" means the number of Contract Year anniversaries since the Issue Date of the Contract. (2) Policies renewing from a 1 year term on their second contract anniversary will pay the following renewal compensation: 1 yr to 5yr: 2.75%, Iyrto 7yr: 3.25%, Iyrto JOy<: 7.0% KEYrORT VALUE Flexible Payment Deferred Annuity MVA 5)'<: (a) 3.5% of any purchase payment received while both the owner(s) and annuitant are attained age 85 or less. (b) For issue ages 86+ will be reduced upfront by x% of premium w 00/0. here X%=l1ssue Aee- 85) x.5 Av..e Commission 86 3.0% 87 2.5% 88 2J)% 89 1.5% 90 0.5% MVA 6)'<: (a) 4.0% of any purchase payment received while both the owner( s) and annuitant are attained age 85 or less. (b) ()Ok of any purchase payment received while either owner(s) or annuitant is attained age 86 or older. MGA.GA SLPCI0487(04/04) -., 7yr: (a) 4_5% of any purmase payment received while 1 the owner(s) and annuitant are attained age 85 or less. .) 0% of any purmase payment received while either owner(s) . annuitant is attained age 86 or older. 'ompensation Chargebacks EYPORTVAWE 1 the event any Contract is partially or totally surrendered ithin one (1) year following the date the Ilexible premium or ngle premium is received, even after death. there will be a largeback of compensation attributable to the amount nrendered in accordance with the following schedules: ime elapsed since premium date: Compensation Chargeback ero(0)toSa(6)mon~ even (7) to Twelve (12) months lver twelve (12) mon~ 100% 50% 00/0 :UN DEX 100 n the event any Contract is partially or totally surrendered l'ithin the first ( 12) months of any term following the date the lexible premium is received, there will be a chargeback of .00% of the compensation attributable to the amount jendered. rnYPORT INDEX MULTIPOINf n the event any Contract is partially or totally surrendered I'Iithin the first sa (6) months of any term there will be a :hargeback of 1000/0 of the compensation attributable to the lffiount surrendered. For purpose of this provision and regardless of any Contract language contrary, the amount mrrendered may be treated by Sun Life during the first term as first coming out the Contract's single premium and during later terms, as fllSt coming out of the term's initial Indexed Value. Keyport Index Multipoint 2004 In the event any Contract is partially or totally surrendered within the first (Welve( 12) months of any term there will be a margeback of 100% of the compensation attributable to the amount surrendered. For purpose of this provision and regardless of any Contract language contrary, the amount surrendered may be treated by Sun Life during the first term as first coming out the Contract's single premium and during later terms. as first coming out of the term's initial Indexed Value Refund of Premiums or Purchase Payments Should any payment under any contract issued by Sun Life be refunded for any reason, Payee shall repay or return any mmissions received with respect to such payment. Internal Conversions [n the event a contract is converted to another Sun Life Assurance Company of Canada (U.S.) or any affiliated company product. a different commission schedule: may apply Conservation Fee SPIA, Keyaa;umulawr, Keyport Value, Sun Dex 100 If. after the death of the Annuitanr. Primary Owner, or Joint Owner, no surrender acmrs within 90 days of death after Sun Life teceives notification of death and any required documentation, a Conservation Fee of 100 basis points (1.0%) of the Contraa's Accumulated Value will be paid to General Agent if General is 'general agent ofrecord'. The Fee may be paid before the end of the applicable 90day period. Any payment will be subject to the charge back rules described in the Compensation Chargebacks section. Keyport Index Multipoint, Keyport Index Multipoint 1004, Sun De>: 100 A conservation fee of 100 basis points (1.0%) of the Contract's Indexed Value that is eligible for waiver of surrender charges due to the death of a Covered Person (as described in the Contract) will be paid to the General Agency upon Sun Life receipt of documentation evidencing the intent not to surrender the Conuact during the prescribed 90 day period after death. The fee may be subject to the chargeback rules described under the Compensation Chargebacks section for six (6) months following the payment. Miscellaneous- Notwithstanding the above. no compensation will be paid on any purchase payment that represents, in whole or in part. the surrender or loan proceeds of any life insurance policy, annuiry contract, or premium fund deposit agreement issued by Sun Life or any affiliated company. General Agent's compensation will be reduced by any compensation amount Sun Life is obligated under any other compensation agreement to pay MGA's, other GN s or agents. If any marge back amount exceeds compensation otherwise due. General Agent shall promptly pay back the amount of the excess following a written demand by Sun Life. Sun Life reserves the right to offset any indebtedness, including commission charge backs. against any other compensation or payments otherwise due General Agent. This Compensation Schedule applies to all of General Agent's Contracts issued after the effective date stated on the first page hereof. This Compensation Schedule also applies to another general agents Contracts from the date when General Agent becomes "agent" of record if the purchase payments under such MGA.GA SLPCI0487(04/04) 1Iacts have always been subject to the same compensation .on that applied under this Compensation Schedule. the General Agency Agreement to which this Compensation hedule applies terminates. no further payments of any kind ill be made to General Agem. In Life reseIVes the rights to change Ot replace the .mpensation schedule by giving at least ten (10) days prior ritten notice to General Agent. Any such change or placement will apply to (1) annuity contracts issued on or ter the stated effective date of such change or replacement, Id (2) all premium purchase payments received on or after Ie stated effective date. MGA.GA SLPCI0487(04/04) CERTIFICATE OF SERVICE I, Stuart D. Lurie, hereby certify that on July 26, 2005, I caused a true and correct copy of the foregoing Plaintiffs First Set of Requests for Admission and First Set of Interrogatories to be served via first class mail upon the following: Michael J. Kman, Jr. 1018 Dogwood Lane Enola, P A 17025 (717) 728-0711 ~)4' # 397182 v. I Agent N>unbcr. Tax 10: AB09800000 17(}.60..9218 Mid1ad J Kman Jr P.O. Box 45 Eao... PA 17025 Fil:cd Aanuity W_WlIIs Variable Annuity Wilhdmwals Martel Vobte Annuity WIlhdcawaIs Adj......... TOTALS Fixed Aaauity W"dhdn.wals Variable Aaouity 'Withdrawals M&ltet Value Annuity W_waIs Adj......... TOTALS Previous B.....,. Suo ure Assuraooe Co. of Caoada (U.5.) PtiDled: File Name: COMMISS[ON STATEMENT SUMMARY Commis>ioo Dale Raa&e: 08ll11041ftroo&l1 09114104 Premium CURRENT PERIOD ACTIVITY 1099 BaIaooe .17,742.45 0.00 -177,4211.47 0..00 0..00 0..00 0..00 0..00 -177.424.47 Commissioo 0..00 .17,742.45 0..00 0..00 0..00 0.00 0..00 -17,742.45 Premium YEAR-TO-DATE SUMMARY Commissioo 177.4211.47 -177.424.47 0.00 0.00 0..00 0..00 0..00 0..00 17,742.45 -17.742.45 0..00 0..00 0..00 0..00 0..00 0.00 [099 Balaooe CURRENT PERIOD PAYMENT DETA[L New Commission Adivity 0..00 .17.742.45 Payment AmDllnl .17.742.45 New B.1aocc 0..00 WE APPRECIATE YOUR DOING BUS[NESS WI11l SlID ure Assuraocc Co. of C..ad. (U.S.) Scptcmbcr 14. 2004 ASTQMP6I.KllI 0..00 .Ag'ent Nlmber: A&O~800000 Tax ID: 110-60-9278 Kicbael J c.an Jr P.O. Box 45 Enol.. PA 17025 SON LIFE ASSURANCE CO. or CNIADA (U.S.) COKMISSION STATEMENT co.aission Date Range: 09/01/04 through 09/14104 IJIAN. MIaIABL J KIUIN. tfIOIABL J Writ.ing: Agent K8IIM! Nullber ABO'8QC175 XA1275900S 1 OSBORHB.~A F MULTI2004 0'/10/04 ABO,8Q4775 KA1288'1" 1 06B0RNE.OLORIA F HULTI2004 0'/10/04 Policy C IlUNred/Annultant PrO<O>ct Oa.. Writing Agent Totals ... Earned Page: 1 Print.ed: 09/14/04 Tax Year: 2004. Pile: ASTQM'~8.1C02 Transactioo Shr co- .....,t ....... . . e~ssion -104.667.89 FSURR 100 10.0000 -10.tU.79 -72.756.58 FSURR 100 10.0000 -7.:n5.66 -177.U4.n -11.142 .45 4_ 1-04. 4:51PM; ;28.. 362 9184 .. A- t ... . '. Exclusive Pr"ducers Network, me. . 25227 GrogansMill ReI. #102 The WoodJaiuls, 'IX 77380 (800) 201-0224 X 114 '. . Date:' J(' / --0 ~ TO: L/c.e,ns'/if -- ..5V/J /, ~ mOM: /) /d.."-;.-c./ I HE: If} gfia e/ ..;j, ~d./7 J crr. ./ VlAFAC8IMILE: ~t7/-p~ .r-ij~.J. ~oDl pages (lDdu411\g tIdI page): ./.,J-- Please process appo~Dt for above ageat 18 Ids resident state or..f!fl awl .o.D..,.esldeat state .C ur (if appJieable) with .. . coDlDlIsslDD leveL New bllliDeu for . will be overnighted to your.~mpaJIY today. OrIginal appointmmt form Cor the state(s) of (required in GA, MA (D.O~ needed for Broker BeeDse) and WV ifDGn-resident). . dated A cJaeck Cor $ (if applluble) to cover resident fee and $ for DOD-resJdent fee (if appUcabl~) is enclosed. . Thank you and feel to call with any questions. SUN LIFE ASSURANCE COMPANY OF CANADA : IN THE COURT Of COMMON PLEAS Plaintiff : CUMBERlAND COUNTY, PA v. : NO: 05-2763 MICHAEL J. KMAN, JR., OIBIA KMAN & KMAN FlNANCfAL GROUP Defendant : CIVIL ACTION - LAW ~ ~ c::> c::> "" <.- "U(JJ c:: mm % Z'I1 Z~ W . ~2 c:> ( ,<:0 : ~ ~ ~O :x ~g - <. - .. o. ~ W . 0' ::.. ANSWER. NEW MA..TI'I:R. AND A..FFlBMA..nVE DEPENSES ANSWER. NOW COMES Defendant Michael I. Kman, Jr., Pro Sc', eud hereby tiles this Answer, New Matter and AlIinmItive Det'ense& and in support hereof avers as follows: 1. Ile1eodant is without sufficient information with whidl to Conn an answer eud Dtberwise leaves PIaiotift"'to strict proof at trial. 2. Admitted 3. The Allegations contained in P8f88IlIPh 3 are conclusions of law to which no responsive pleading by defendant is required. 4. The Allegations contained in paragraph 4 are conclusions of law to which DO responsive pleading by defaxlant is required 5. Admitted 6. The Allegations contained in plll'lIl!J3Ph 6 are concltJSions oflaw to which no responsiw pleadill8 by defeodant is required. I COUNT 1- BREACH OF CONTRACf 7_ Defendant incocporates plIragraphs 1 through 6 of this Answu and Affirmative Defenses by refereac::e as if fully set: forth herein. 8. The AllegatiOllS contained in paragraph 8 are concIusiOllS of law to whkh 00 responsive pleading by defendant is feCJUired. 9. The AllegatiOllS contained in paragraph 9 are conclusions of law to which no responsive pleading by def"endanl is required. 10. The Allegations contained in paragraph 10 are conclusions of law to which no responsive pleading by defaldlInt is required. WHEREFORE. Defendant MJchad 1. K1nan, Jr.. denies that Plaintitf is entitled to any of tbe relief requested in the Complaint. AcooRlingly. 1leftlodaDl respectfully requests that the Complaint be dismissed wi1h prejudice and lhat Defendant be awauded his costs and tees inwrred in this action. COUNT 11 - UNJUST ENltlCHMENT II. Defendant incorporates ~ 1 through 10 oflhis Answer and Aflinnative Defenses by n:ference as if fully set: forth herein. 12. The AI1egatiOllS contained in paragJ"&pb 12 are conclusions oflaw to which no responsive pleading by defendant is required. 13. Denied 2 WHEREFORE, Defendant Michad 1. Kman, Jr., denies thai Plaintiff is entitkd to any oftbe relief requested in the Complaint. Acrordingly, Defendant respectfuUy requests that the Complaint be di....k....J with prejudice and that Defendant be aWlHded his costs and fees incurred in this action. NEW MATI1.:R 14. Defendant incorponItes paragraphs I through 13 of this Answer, New Matter and Affirmative Defenses by referenc;e as if fully set furth herein. 15. Defendant's reIationsl1lp with PIaiotifI originated and was continuaUy maintained through Exclusive Producers Network: (hereinafter EPN). 16. Defendant's N.';"'S'. Kman &: Kman FmanciaI Group (hereinafter DBA) was at no time contracted with EPN or PIainrif[ 17. Defendant entered into an agrument with EPN to repay any debit balance through the submission of additional business 18. Defendant secured ...."ng)> replacemeot business to repay any debit ba1ance and informed EPN of said pending tr8llSllCtioa; howevel", Delend"ntQ appoiDtment to fiuaIize said transaction was rebuked by an inappropriate and inac.cunte negative debit reporting by plaintif[ WHEREFORE. Defendant Micbael J. Kman. Jr., denies that PIaiotifIis entitled to any of the rdief requested in the Complaint. Acrordingly. Defendant respectfully requests that the Complaint he dismissed with prI!judice .m that Defendant he awarded his costs and fees incurred in this aaion 3 AFFIRMATIVE .bEFENSES FIRST AFFIRMATIVE DEFENSE - MODIFICATION 19. Defeodallt incorporates parawaphs I through 18 of this Answ<<. New Matter and Affirmative DefeIlses by refe<<ence as if fuRy llel forth herein. 20. Defendaa1 is infunned. and believes aod thereon alleges that the CODtI1lCt in question, if any, was modified by the parties and that PIaintilfis barred from recovery on the UIIIJlOdified original contract, ifall}', by ralIOll ofsaid modification. SECOND AFFIRMATIVE DEFENSE - LACK OF STANDING 21. Defendant inool")l(Qte$ JllInIIlJBPhs I through 20 of this Answ<<, New M$ter and Affinnative Defenses by refen:nce as if fuRy set forth herein. 22. PIaintiI& Complaint is barred by it's Iaclc: ofstanding. THIlU) AF'FIRMA TIF'E DEFENSE - OFFSET 23. Defendant incorporates paragraphs I tbrough 22 of this Answ<<. New Matter and Affirmative Defenses by rew.~ as if fuRy set forth herein. 24. Defeadant aJIeges that he bas suffered damase by taSOO ofPlaintilf conduct; that he has the right to oft'set if any IIll10UtIt is owed 10 PIaintiff or due P1aintiJfby way of damage. 4 FOR.m AFFIRMATIVE DEFENSE - UNCLEAN HANDS 25. Defendant incorpcntespangraphs I tbrough 24 oftbis Answer. New Matt<< and Affinnative Defunses by reference., iffully set furth herein. 26. Defendant aUeges that to the extent the Plaintiff seeks equitable relief; PlaintiftS inequitable conduct CODStitutes unclean blinds and therefore bars the granting of relief WllEREroRE, Defendant M>dlaeI J. Kman, Je., denies that Plaintitf is entitled to any of the relief requested in the Complaint. Acc:ordingIy, Defendant respectfully requests that the Complaint be dismissed _~~~__"'.~m_~~~~~ Dated; June 28. 200S B:f MidIad J. Xman, Ie. 1018 Dogwood Lane &cia, P A 1102S (717) 72s..o711 Delatdut., Pro Se' 5 . , c t, Michael 1. Kman, Jr., Deteodant in the above captioned action do hereby certity that I have this day served the foregoing dowment upon the Plaintiff at the address listed below via u.s. FU"St Oass Mail, in accordance and satis6lctioo with the requirements of the Pemuylv8llia Rules of Civil Proc:edure ~ 33.32 as it rdates to service by a participant. DIlte: Jane 28, 2005 STRADLEY RONON STEVENS kYOUNG, LLP JeftTey A. Lutsky Stuart D. Lurie 2600 One Commerce Square PhiIlIddphia, PA 19103-7098 ~<-~~ had.l. KIa.., Jr., enda.t , STRADLEY RONON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (l.D. No. 36673) Stuart D. Lurie (l.D. No. 83391) 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys for Plaintiff, Sun Life Assurance Company of Canada SUN LIFE ASSURANCE COMPANY OF CANADA Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY v. Civil Action - Law MICHAEL J. KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP Case No. 05-2763 Defendant. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiff, Sun Life Assurance Company of Canada ("Sun Life"), by its counsel, hereby submits this Memorandum of Law in support of its motion for summary judgment pursuant to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure. 1. INTRODUCTION Sun Life has sued its agent, Defendant Michael J. Kman, Jr. ("Kman") for his failure to reimburse Sun Life certain commissions owed pursuant to the parties' written contract. Since Kman acknowledges the contract and admits the balance, there are no genuine issues of material fact, and summary judgment is appropriate in favor of Sun Life. II. STATEMENT OF UNDISPUTED MATERIAL FACTS Sun Life and Kman are parties to a General Agent under Master General Agent Agreement (the "Agency Agreement"), pursuant to which Kman agreed to serve as Sun Life's agent for the purpose of selling insurance or annuity plans. (See Agency Agreement; Exhibit L 407560 v.1 "A" to Motion.) Kman does not dispute the material terms of the Agency Agreement, and admits he signed it. (See Response to Plaintiffs First Set of Requests for Admissions at No.3; Exhibit "B" to Motion.) Pursuant to the Agency Agreement and its Compensation Schedule, (which is incorporated by reference into the Agency Agreement), Kman earns a specified commission from Sun Life on policies he sells. However, in the event the policy is refunded for any reason, he must return the commission to Sun Life: General Agent shall be paid compensation for the sale of Contracts as set forth in the attached Compensation Schedule(s). The Company has the right to charge back any such compensation under the conditions stated in such Schedule(s). (Exhibit "A" at '1[8.) Moreover, in the event Kman runs a negative balance with Sun Life, he is obligated to "promptly pay back the amount of the excess following a written demand by Sun Life." (See Exhibit "A" at p. 3 of Compensation Schedule.) As of September 14,2004, and continuing to the present, Kman's broker account has carried a negative balance in the principal amount of$17,742.45 as a result of policies surrendered during the purchaser's "free look" period, which gives the purchaser of a policy the opportunity to return it for a full refund within 45 days of purchase. (See Commission Statement Summary dated September 14,2004; Exhibit "C" to Motion.) Kman admits to this negative balance. (See Kman's Answer to Complaint at '1[5; Exhibit "D" to Motion.) Despite repeated demands, Kman has refused to reimburse Sun Life. - 2 - L 407560 v.l III. ARGUMENT A. Summary Judgment Standard Summary judgment is appropriate whenever there is no genuine issue of any material fact as to a necessary element of the causes of action or defense which could be established by additional discovery or expert report. Pa. R. Civ. P. 1035.2(1). Interpretation of an unambiguous contract is a question oflaw for the court. Erie Plaza Partners, L.P. v. Save-A- Lot Food Stores, 2004 WL 2554618, at *2 (Pa. Com. PI. Nov. 4, 2004). B. Since Kman Acknowledges the Agency Agreement and Admits the Negative BlIlance, There Are No Genuine Issues of Materilll FlIct. By Failing to Reimburse Sun Life, Kman Is in Breach of the Parties' Contract and Sun Life Is Entitled to Summary Judgment. This case is very straightforward. Sun Life and Kman are parties to a valid and enforceable contract. Kman admits he signed the Agency Agreement and does not dispute its material terms. Kman also admits he carries a negative balance in the principal amount of $17,742.45. Therefore, there are no genuine issues of material fact. Kman, by failing to reimburse Sun Life according to the terms of the Agency Agreement, is in breach thereof. Accordingly, Sun Life is entitled to summary judgment. C. Kman's Only Purported Defenses Fail as a Matter of Law. Kman's only purported defenses to this lawsuit by Sun Life are based on his agreement with Exclusive Producers Network ("EPN"), the Master General Agent. (See Response to Plaintiff's First Set oflnterrogatories at No.2.) Specifically, Kman argues that this agreement somehow excuses his obligation to repay Sun Life until he can do so "through the submission of additional new business." (See id.) This defense must fail. Sun Life is not a party to any agreement between Kman and EPN, and therefore cannot be bound by its terms, whatever they may be. - 3 - L 407560 v.1 IV. CONCLUSION For the foregoing reasons, Sun Life respectfully requests that summary judgment be granted in its favor and against Kman. Sun Life further requests an award of pre-judgment interest in an amount to be determined. Dated: October 3,2005 Respectfully submitted, ~Li~NON STEVENS & YOUNG, LLP Jeffrey A. Lutsky (LD. No. 36673) Stuart D. Lurie (LD. No. 83391) 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys For Plaintiff, Sun Life Assurance Company of Canada -4- L 407560 v I CERTIFICATE OF SERVICE I, Stuart D. Lurie, Esq., hereby certify that on this 4th day of October 2005, I caused a copy of the foregoing Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment to be served by first class United States mail, postage prepaid, upon the following party herein, at the address set forth: Michael 1. Kman, Jr. 1018 Dogwood Lane Enola, P A 17025 (717) 728-0711 ~,,~/F L408297v.l (") ....., 0 c= C', '~::.' .," c..n CJ .-1 C-) :1: .,.., -; en ;-:::-'7 I '0 -' (=> r-, ~. -n , C') rn ,,) -.._! ---I . > " '" ~n. -, \.0 -<. SUN LIFE ASSURANCE COMPANY OF CANADA Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY v. Civil Action - Law MICHAEL J. KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP Case No. 05-2763 Defendant. PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY: Please list the within matter for the next Argument Court. I. Matter to be argued: Plaintiffs Motion for Summary Judgment (unopposed as of 11/14/05) 2. Counsel who will argue case: (a) for plaintiff: Address: Stuart D. Lurie, Esquire 2600 One Commerce Square Philadelphia, PA 19103 (b) for defendant: Address: Michael J. Kman, Jr.,pro-se 1018 Dogwood Lane Enola, P A 17025 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 1/11/06 'J-- ~ ' tradley Ronon Stevens & Young, LLP Stuart D. Lurie (LD. No. 83391) 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Attorneys For Plaintiff, Sun Life Assurance Company of Canada Dated: November 14, 2005 L413790v.l CERTIFICATE OF SERVICE I, Stuart D. Lurie, hereby certify that on November 14, 2005, I caused a copy ofthe foregoing Praecipe for Listing Case for Argument for Plaintiffs Motion of Summary Judgment to be served by United States Mail, first-class, upon the following: Michael J. Kman, Jr. 1018 Dogwood Lane Enola, P A 17025 (717) 728-0711 ~t"4=' L413790v.1 {~' (' r-' c.::.) <-,-' ,:jl --- z::p C) ~'n .-\ -:C-Q r\ If--, ,_." ~ ; _~ij;;:': -':) ~. L:? - (,,\'" SUN LIFE ASSURANCE COMPANY OF CANADA, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-2763 CIVIL MICHAEL J. KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP, Defendants IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLER, J.J. ORDER AND NOW, this ..t. S" . day of January, 2006, the motion ofthe plaintifffor summary judgment on the question of the liability of the defendant for his "negative balance" in the amount of$17, 742.45 is GRANTED. The plaintiff is granted leave to request a hearing on the issue of any other damages by further motion. BY THE COURT, ~frey A. Lutsky, Esquire 2600 One Commerce Square Philadelphia, P A 19103-7098 F or Plaintiff -44 :rlm oiY 'P' - D\' ~ichael J. Kman, Jr., Pro se 1018 Dogwood Lane Enola, P A 17025 u .' SUN LIFE ASSURANCE COMPANY OF CANADA, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-2763 CIVIL MICHAEL 1. KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP, Defendants IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLER. J.J. OPINION AND ORDER Before the court is the motion of the pIaintifffor summary judgment. Sun Life has sued the defendant for failure to reimburse Sun Life for certain commissions owed pursuant to the parties' written contract. Specifically, a claim has been made for the negative balance in Kman's broker account as a result of the surrender of certain insurance policies during the purchaser's "free look" period which gave the purchaser of a policy the opportunity to return it for a full refund within forty-five days of purchase. In his answer to the plaintiffs complaint, Kman admitted the existence ofthe negative balance. He essentially admitted that, despite repeated demands, he has refused to make payment. 1 In new matter the defendant asserts various affirmative defenses, none of which are supported by any factual allegations. He also asserts that he has some agreement with a business entity known as Exclusive Producers Network (EPN) which excuses his obligation to repay Sun Life until he can do so "through the submission of \ In response to this contention, in paragraph 13 of the complaint, the defendant asserted only a general denial. In the context of this case, that response has the effect of an admission. See Pa.R.C.P. l029(b). NO. 05-2763 CIVIL additional new business." Nowhere does Kman contend that Sun Life is a party to any agreement between Kman and EPN. Kman also seems to assert that his business, Kman and Kman Financial Group, did not contract with either EPN or the plaintiff. This, however, is at odds with his response to paragraph 2 of the plaintiff's complaint in which he admits that he as an individual operates under the business name ofKman and Kman Financial Group. In any event, our resolution of the instant summary judgment motion does not depend upon our analysis ofthe pleadings. To the contrary, when faced with a motion for summary judgment, the adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service ofthe motion. Pa.R.C.P. 1035.3(a). The response to a motion for summary judgment must identify issues of fact and/or credibility which suggest that the grant of summary judgment is not proper. In this case, the defendant has filed no response to the motion for summary judgment. We note, also, that the defendant did not file a brief prior to the time of oral argument. 2 Based on the pleadings and exhibits attached to the plaintiff's motion for summary judgment, the plaintiff is entitled to the relief it seeks. The defendant has made no attempt to demonstrate anything to the contrary. Accordingly, summary judgment will be granted. At oral argument, the plaintiff indicated a desire to pursue prejudgment interest. The plaintiff's proposed order, in fact, would provide that the plaintiff's calculation for prejudgment interest simply be added to the amount of the judgment. This we will not do. Instead, summary 2 A request for continuance of the oral argument was relayed to the court shortly before oral argument was to be held. No reason was given for the continuance of the oral argument and no order was ever entered continuing same. At oral argument, counsel for the plaintiff appeared. The defendant did not. 2 NO. 05-2763 CIVIL judgment will be entered in the principal amount, without prejudice to the plaintiff to seek a hearing with respect to any additional damages. ORDER AND NOW, this Z 5" day of January, 2006, the motion of the plaintiff for summary judgment on the question of the liability of the defendant for his "negative balance" in the amount of$17, 742.45 is GRANTED. The plaintiff is granted leave to request a hearing on the issue of any other damages by further motion. BY THE COURT, Jeffrey A. Lutsky, Esquire 2600 One Commerce Square Philadelphia, PA 19103-7098 For Plaintiff ./Jd Michael J. Kman, Jr., Pro se 1018 Dogwood Lane Enola, P A 17025 :rlm 3 III -...--.'J' .. STRADLEY, RONON, STEVENS & YOUNG, LLP By: Stuart D. Lurie Identification No. 83391 Great Valley Corporate Center 30 Valley Stream Parkway Malvern, PA 19355 (610) 640-1965 Attorney for Plaintiff, Sun Lif~, Assurance Company of Canada', SUN LIFE ASSURANCE COMPANY OF CANADA, COURT lDF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CIVIL A<!1TION - LAW NO. 05-2163 CIVIL MICHAEL J. KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP, Defendants. PRAECIPE TO ENTER JUDGME!'tt TOTHEPROTHONTARY: Kindly enter judgment in favor of Plaintiff, Sun Life Assurance Company of Canada, and against Defendant, Michael J. Kman, Jr, d/b/a Kman &. Kman Financial Group, in the principal amount of$I 7,742.25, pursuant to the Order of the Court of Common Pleas of CUDlberland County, Pennsylvania, dated January 25, 2006. Dated: July Il, 2006 JJNw( ~ Stuart D. Lurie .1 Stradley, Ronon, Stevems & Young, LLP Great Valley Corporatel~enter 30 Valley Stream Parkway Malvern, PA 19355 II (610) 640-196511 II Attorney for Plaintiff, i,1 Sun Life Assurance co,pany of Canada ;\ # 482524 v. I III - . . CERTIFICATE OF SERVICE I, Nicholas M. Orloff, Esquire, hereby certify that on July 11, 2006, I caused a true and correct copy of the foregoing Praecipe to Enter Judgmentlio be served by United States , First Class mail, upon the following: Michael J. Kman, Jr. 1018 Dogwood Lane Enola, P A 17025 # 482524 v. I . . . (; :d (":::l .{g. ~ "" ~ :-0 0 M - ~ 0 j ~ ().I ~ ( :::-:1 W ()o> ; ,.\ ~ ~ r- -- In ~ - -- ,... -.J w: - - -r:- .-- r--- - - (,-"' -.J(. . ~",.' en " '.. By: Stuart D. Lurie Identification No. 83391 Great Valley Corporate Center 30 Valley Stream Parkway Malvern, PA 19355 (610) 640-1965 SUN LIFE ASSURANCE COMPANY OF CANADA, Plaintiff, v. MICHAEL J. KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP, Defendants. Attorney for Plaintiff, Sun Life Assurance Company of Canada COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-2763 CIVIL PRAECIPE FOR SA TISF ACTION OF JUDGMENT TO THE PROTHONOTARY: Please satisfy the Judgment in the above-captioned action. Dated: January 29,2007 s~@~/~ Stradley, Ronon, Stevens & Young, LLP Great Valley Corporate Center 30 Valley Stream Parkway Malvern, PA 19355 610) 640-1965 Attorney for Plaintiff, Sun Life Assurance Company of Canada # 542745 v. 1 ", CERTIFICATE OF SERVICE I, Stuart D. Lurie, Esquire, hereby certify that on January 29,2007, I caused a true and correct copy ofthe foregoing Praecipe for Satisfaction of Judgment to be served by United States First Class mail, upon the following: Michael J. Kman, Jr. 1018 Dogwood Lane Enola, PAl 7025 t/~/w~w # 542745 v. I r-.:> g -...J -rJ r:-l (;1::J ""'-: - o -n -l J:-ri h11"'" -n i,I; ::) ',' .~.~) -S~\~ -". ~ C;,? N W