Loading...
HomeMy WebLinkAbout06-4436F:V+I \DAIAFILB\GeaMCu 610837. I.coWIW C.u 6/15106 835" Revued. VV06 3:26PM George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 49813 10 East High Street Carlisle, PA 17013 - (717) 243-3341 Attorneys for Plaintiff PHILLIP W. MOCK, as Trustee of the Irrevocable Trust of the Estate of Jane S. Mock, Plaintiff, V. THE LINCOLN NATIONAL LIFE INSURANCE CO., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 04n - q f, j Civil Action NOTICE 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 andNotice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment maybe entered against you bythe court without furthernotice for any money claimed in the Complaint or for any other claim or reliefrequested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 MAR Date: August 2, 2006 By Georre-B.'Faller, A' Esquire 10 East High Street Carlisle, PA 17013 - (717) 24 Attorneys for Plaintiff & OTTO George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff PHILLIP W. MOCK, as Trustee of the Irrevocable Trust of the Estate of Jane S. Mock, Plaintiff, V. THE LINCOLN NATIONAL LIFE INSURANCE CO. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01, '1'13 6 CIVIL ACTION C';?l -7t -- COMPLAINT AND NOW, comes Plaintiff, PHILIP W. MOCK, by and through his attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and requests that this Court enter judgment in its favor against Defendant THE LINCOLN NATIONAL LIFE INSURANCE CO., in the amount of $48,460.56, plus interest and costs, and in support thereof, avers as follows: Philip W. Mock (hereinafter"Plaintiff ) is an individual and trustee ofthe JSMF hrevocable Trust with an address at 3 Creek Bank Road, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Lincoln National Life Insurance Company (hereinafter "Defendant") is an insurance company which does business in Pennsylvania and has an address at 350 Church Street, Hartford, Connecticut 06103. 3. Jane S. Mock (hereinafter "Decedent") is an individual who died on February 4, 2006. 4. On February 14, 2000, Plaintiffinitiated a Flexible Premium Adjustable Life Policy with Defendant for which Decedent was the insured and Plaintiffwas the beneficiary (hereinafter "Policy ). In January 2006, Plaintiffreceived a bill for $48,460.56 for premiums with a due date of February 14, 2006. A copy of that bill is hereby attached as Exhibit "A." For purpose of efficiency, on January 21, 2006, Plaintiff mailed an early payment for premiums due on February 14, 2006. Defendant accepted payment ofpremiums for the benefit year which had not yet begun. 8. Decedent passed away on February 4, 2006. 9. The death of Decedent occurred ten days prior to the annual premium being due on February 14, 2006. 10. On February 7, 2006, Plaintiff notified the Defendant of Decedent's death. 11. As the premium payments were accepted, but the benefit year had yet to begin at the time ofDecedent's death, Plaintiffwas entitled to a refund ofthe premium payment due on February 14, 2006. 12. Defendant denied Plaintiff s request for refund of the early premium payment where payment was not due until after Decedent's death. 13. Defendant, in their letter dated Apri 120, 2006, admits that even ifthe premium payment due on February 14, 2006, was not received at the time of Decedent's death, the benefit for the Policy would have been unchanged. Copy of letter dated April 20, 2006, is attached as Exhibit "B." WHEREFORE, Plaintiffrequests the court to enter judgment against Defendant in the amount of $48,460.56, plus interest and costs of bringing suit. Respectfully Submitted, MARTSON DEARDORFF WILLIAMS & OTTO By G o a ler, Jr., squire I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: August 2, 2006 Attorneys for Plaintiff e , ?,?,f A Client Services, MIR 1 P.O. Box 5048 Hartford, CT 06102-5048 Notice Of Amount Due 000026 JSMF IRREVOCABLE TRUST PHILLIP W MOCK TTE 34 E POMFRET St f`RDT_T42T.t: DR 17nT 4 AMOUNT DUE $48,460.56 POLICY NUMBER NAME OF INSURED(S) PAYMENT MODE DUE DATE 7100979 JANE S MOCK ANNUAL PREMIUM 02/14/200, iv Your policy provides valuable insurance protection including a secondary guarantee feature (Lapse Protection Rider). It is important that we receive the full premium on or before the due date noted. If premiums are not paid by the due date listed above or if the ayymmant received is less than what was billed, the length of the secondary guarantee may shorten. Effective 01/01/2003, we no longer accept cash, cashier's checks, money orders, bank drafts, or traveler's checks. J LMCORI Financial Groups The Lincoln National Life Insurance Co. FOR PERSONALIZED SERVICE Contact Our Client Service Center Monday - Friday at 1-800-444-2363 between 8:00 a.m. and 6:00 p.m., ET Or Our Regional Service Office LINCOLN LIFE BROKERAGE ST 201 E SAND PT SANTA ANA CA 92707 PHONE NUMBER 1-800-444-23( Exhibit "A" i? ?M.m r.nc vcxwu xk,b1+-6 r Lincoln Financial Group- The Lin, oIn Vnlional Lqa hu'umn, e Companc 04im Seri ire,, ART I jo Oo Bo.c X919 flar%,nf, CT 06102.:019 Mr. George B. Faller Jr. Esq. Martson Deardorff Williams & Otto 10 East High Street Carlisle PA 17013 Dear Mr. Faller: April 20, 2006 Policy Number: 7100979 Insured: Jane S. Mock Issuing Company: Lincoln National Life Insurance Company I have received your letter dated April 10, 2006. Please allow me to respond to your question regarding benefits payable had the last premium not been paid. The Death Benefit Option elected by the owner of this policy was Option 1 which equals the Specified Amount, less indebtedness, plus applicable interest. This policy was not in a grace period at the time of the last premium payment. Therefore, if the owner had not elected to pay that premium, the benefit would still have been $500,000 plus interest of $3,643.84. Payment of this claim will be sent under separate cover. At Lincoln Life, we are committed to providing you with quality customer service. If you have any questions or comments, please contact me at 800 444-2363. Press option 4 from the menu to reach the Claim Department, then press 1 to reach me directly. My extension is 61623. We are available between the hours of 8:00 a.m. and 5:00 p.m. Eastern Time, Monday through Friday. If you would prefer, you may contact us via facsimile at 800 682-3216. Sincerely, Susan Duffy Sr. Claim Examiner Claim Services The Lincoln National Life Insurance Company acts as administrative agent for this company. www.lr. com Exhibit "B" Lim'nln Finanriol Group it dm marketing name Jor Linruln National Cmparalioit and irs aj/iliatn,r. VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of the document is that of counsel and not my own. I have read the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties) t` Phillip W. Mock -4- r?J Y? ?? CAti Stephen Moniak, Esquire Buchanan Ingersoll & Rooney, PC I.D. No. 80035 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4887 Attorneys for Defendant PHILLIP W. MOCK, as Trustee of the Irrevocable Trust of the Estate of Jane S. Mock, Plaintiff V. THE LINCOLN NATIONAL LIFE INSURANCE CO., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-4436 CIVIL CIVIL ACTION ENTRY OF APPEARANCE TO: PROTHONOTARY Kindly enter the appearance of Stephen Moniak as counsel for Defendant Lincoln National BUCHANAN & ROONEY, PC By; Life Insurance Company in the above-captioned matter. I.D. No. 80035 One South Market Square 213 Market Street - 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendant Lincoln National Life Insurance Company DATE: August 17, 2006 CERTIFICATE OF SERVICE I, Stephen Moniak, Esquire, certify that I am this day serving a copy of the foregoing document upon the persons below via first class mail which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure as follows: George B. Faller, Jr., Esquire MARTSON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle. P 17013 DATE: August 17, 2006 N [} C? - ?y C y ? a . "L7 LF ` . -n ? (? i" (t"?1;, - G7 O? " O a ,_ ? r,r, C:. - -q C7 C'?7 , ?, t? ?? ,? ;v c ? :..? N F MLES\DATA LE\Gm aOCu W0832.2.atRdavitM C,.aW 6/15/06 8:35AM Revived: WIT% 11'.07" 10832.2 George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff PHILLIP W. MOCK, as Trustee of the Irrevocable Trust of the Estate of Jane S. Mock, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. THE LINCOLN NATIONAL LIFE INSURANCE CO., Defendant. No. 06-4436 Civil Action AFFIDAVIT OF SERVICE OF COMPLAINT COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND I hereby certify that acopy ofthe Complaint in the above captioned matter was mailed to Lincoln National Life Insurance Company, 350 Church Street, Hartford, Connecticut 06103, by certified mail, return receipt requested. Attached is the Post Office return receipt signed and dated August 7, 2006. MARTSON DEARDORFF WILLIAMS George B. Idler, Jr., I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Sworn to and subscribed before me this 21' day of August, 2006 _ COMMONWEALTH OF PENNSYLVANIA NDtmial Seal ('iyYIVt?1 . MORSM A Sdx*, Ndary Public Notary Public Cedwe Sago, Cw tv" Ccurky My Commisebn Jen.19, 2010 Member, Penneylvsnls Aseedellen of Notaries I o M1 (Domestic o m ok 0 rq roeMP $ $0.87 0 oenaed Fee AD 3 IM Retum Reyept Fee (Endvaeme'd ReQUlmd) ,.; ,. /'U/1 y . E3 ra Reeb eW oelly" Fee $0.00 (EndomeffmM Rewl.ed) 2. O rl F aea Total Fastepe a M p o o LInco1?1 : . Li-:?--- U2?1 .. ------ - .. ---------- 3Eee4 Aro.; _ r I J? n arPOBox NO. 0.- 11 .. 1. .1 -- --------------- -------' -------- om sere ?FGkn i? ?? ('. Tn D JjQ Items 1.2. end 3. Abo oonvlete Own 4 if Ree4lebd DeNvey Is deelred. efa Ntd your im, and address on the reverse se that we can .91U. the card to you. a AMach dit cmd to the beck of the mailpleoe, or an the front M space permits.. 1. Areole AAAwaad to: (r l occ k) W 161 M Ll? Zy?SI ?(Cu CO. ? Apo D. 4 driwy address daarard $om ern 14 ? Yea N YES, amm d*My addM a eatow: t1 No 356 t `??, s IT?e Servba Type PAO 0 Rom l"1 ar Re¢Mpt 9or MerdwWbe y + ? ?T Oslo 3 ? r1 i.,.,..n ueu t7 n nnn n n 4. ReeMOted Daevayl Pft Fee) ? Yea t AMC40 eef 7003 1011 `1 1189 0729 (aerradur eorrrservl?seMeQ PS Form 3811. February 2004 Domest a Reti m aF... 102e05U2-Wia4s g ?, ?,`; ? ? ,1 ,- c, ? - ? r7'> i r m y ? .? A G7 PHILLIP W. MOCK, as Trustee of IN THE COURT OF COMMON PLEAS the Irrevocable Trust of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA Jane S. Mock, Plaintiff NO. 06-4436 CIVIL V. CIVIL ACTION THE LINCOLN NATIONAL LIFE INSURANCE CO., Defendant NOTICE TO PLEAD TO: Phillip W. Mock, as Trustee of the Irrevocable Trust of the Estate of Jane S. Mock c/o George B. Faller, Jr., Esquire MARTSON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered against you. BUCHANAN INGERSOLL & ROONEY, PC By: tephen Moniak, Esquire I.D. No. 80035 One South Market Square 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendant Lincoln National Life Insurance Co. DATE: September 18, 2006 Stephen Moniak, Esquire Buchanan Ingersoll & Rooney, PC I.D. No. 80035 213 Market Street, 3rd Floor Harrisburg, PA 17101 (717) 237-4887 Attorneys for Defendant PHILLIP W. MOCK, as Trustee of the Irrevocable Trust of the Estate of Jane S. Mock, Plaintiff V. THE LINCOLN NATIONAL LIFE INSURANCE CO., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-4436 CIVIL CIVIL ACTION ANSWER WITH NEW MATTER OF DEFENDANT LINCOLN NATIONAL LIFE INSURANCE CO. NOW COMES, Defendant Lincoln National Life Insurance Co. ("Lincoln National"), by its attorneys, Buchanan Ingersoll & Rooney, PC, and files the within Answer with New Matter, stating as follows: 1. Admitted in part and denied in part. It is admitted only that Phillip Mock is an adult individual and trustee of the JSMF Irrevocable Trust. After reasonable investigation, Lincoln National is without knowledge or information sufficient to form a belief as to whether Phillip Mock has an address at 3 Creek Bank Road, Mechanicsburg, PA 17055, and hence, that allegation is denied. The last known address for Phillip Mock on file with Lincoln National is 34 E. Pomfret Street, Carlisle, PA 17103. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. It is admitted only that Lincoln National issued a flexible premium adjustable life policy known as a Universal Life - II policy, No. 7100979 (hereinafter, the "Policy") on February 14, 2000. The named insured on the Policy was Jane S. Mock, and JSMF Irrevocable Trust was the named owner and beneficiary. The remaining averments in this paragraph are denied. 5. Admitted in part and denied in part. It is admitted only that Lincoln National issued a "Notice of Amount Due" to JSMF Irrevocable Trust, c/o Phillip W. Mock, Trustee relative to the Policy. The Notice of Amount Due is a writing which speaks for itself, and any characterization as to the nature or contents thereof by Plaintiff is denied. The remaining averments in this paragraph are denied. 6. Admitted in part and denied in part. It is admitted only that Plaintiff made a premium payment on the Policy in the amount of $48,460.56, which was applied by Lincoln National on January 30, 2006. After reasonable investigation, Lincoln National is without knowledge or information sufficient to form a belief as to the date Plaintiff mailed the premium payment of $48,460.56 or his reasons for doing so. The remaining averments in this paragraph are denied. 7. Admitted in part and denied in part. It is denied that "Defendant accepted payment of premiums for the benefit year which had not yet begun." It is admitted only the Lincoln National applied the premium payment in the amount of $48,460.56 on January 30, 2 2006. By way of further answer, Lincoln National applied the premium payment to the Policy's "cash value" in accordance with the terms of the Policy. 8. Admitted. By way of further answer, Jane S. Mock died after Lincoln National received and applied the premium payment in the amount of $48,460.56 on January 30, 2006. 9. Admitted in part and denied in part. It is admitted only that Jane S. Mock died on February 4, 2006, which was four days after Lincoln National applied the premium payment in the amount of $48,460.56 on January 30, 2006. By way of further answer, Lincoln National applied the premium payment to the Policy's "cash value" in accordance with the terms of the Policy. It is further admitted that the "annual premium" under the Policy was due on or before February 14, 2006. 10. Denied. It is denied that Lincoln National was notified of Ms. Mock's death on February 7, 2006. By way of further answer, Lincoln National was notified of Ms. Mock's death on February 6, 2006. 11. Denied. It is specifically denied that "Plaintiff [i]s entitled to a refund of the premium payment due on February 14, 2006." By way of further answer, Lincoln National applied the premium payment in the amount of $48,460.56 to the Policy's "cash value" on January 30, 2006, in accordance with the terms of the Policy. Jane S. Mock died on February 4, 2006, four days later. The terms of the Policy do not provide for the refund of premium. 12. Admitted in part and denied in part. It is admitted only that Lincoln National appropriately denied refunding the premium payment of $48,460.56 to Plaintiff, which was applied to the Policy's "cash value" on January 30, 2006, in accordance with the terms of the Policy. It is specifically denied that Plaintiff is entitled to a refund of the premium payment. 13. Admitted in part and denied in part. It is admitted only that Lincoln National issued the April 20, 2006 letter to Mr. Faller. The letter is a writing which speaks for itself, and any characterization of the nature or contents thereof by Plaintiff, including any purported "admissions," are denied. WHEREFORE, Defendant Lincoln National Life Insurance Company demands judgment in its favor and against Plaintiff Phillip W. Mock, as Trustee of the Irrevocable Trust of the Estate of Jane S. Mock, together with costs of suit and such further relief as this Court deems appropriate. NEW MATTER 14. Plaintiff has failed to state a claim upon which relief can be granted. 15. Plaintiff's claims are barred in whole or in part by the doctrine of estoppel. 16. Plaintiff's claims are barred in whole or in part by the doctrine of payment and release. 17. Plaintiff's claims are barred in whole or in part by the doctrine of justification. 18. Plaintiff s claims are barred in whole or in part by the express terms of the flexible premium adjustable life policy known as a Universal Life - II policy, No. 7100979 issued by Lincoln National on February 14, 2000 (the "Policy") 19. Under the Policy, premiums paid are applied to the "cash value" (for purposes of illustration, the cash value can be thought of as a pool of money) from which monthly deductions are drawn for expenses and insurance protection. 4 20. Under the Policy, Plaintiff had a choice of selecting between two options with regard to the "Death Benefit" to be paid by Lincoln National if the insured died while the Policy remained in force. 21. Under Death Benefit Option "1," Plaintiff would receive the "Specified Amount," which was $500,000 at the time of the insured's death, less any indebtedness. 22. Under Death Benefit Option "2," Plaintiff would receive the "Specified Amount," plus the cash value, less any indebtedness. 23. Plaintiff selected Death Benefit Option "1." 24. On January 30, 2006, Lincoln National applied the premium payment in the amount of $48,460.56 to the Policy's "cash value," in accordance with the terms of the Policy. 25. The insured, Jane S. Mock, died on February 4, 2006, after the $48,460.56 premium payment was applied to the Policy's "cash value." 26. Plaintiff made a claim for benefits under the Policy dated April 11, 2006. 27. On or about April 20, 2006, Lincoln National paid Plaintiff s claim for the full amount of the Policy in accordance with Death Benefit Option "1," which was the "Specified Amount" of $500,000, plus $3,643.84 in interest, for a total amount of $503,643.84. 28. Plaintiff accepted the $503,643.84 Death Benefit. 29. The Policy does not provide for refund of premium. 30. Under the Death Benefit Option "1" selected by Plaintiff, Plaintiff is not entitled to the cash value of the Policy, but only the "Specified Amount," less any indebtedness. 31. Plaintiff's request for a refund of the $48,460.56 premium payment is a request for the cash value in the Death Benefit, which is not authorized or permitted under the Death Benefit Option "1" selected by Plaintiff. 32. The payment of cash value is only authorized under Death Benefit Option "2," which was not selected by Plaintiff. 33. Any refund of premium payment to Plaintiff made before the death of the insured would be discriminatory against all other universal life policy holders with a Death Benefit Option "l," who, pursuant to terms of their policies, received only the "Specified Amount," less any indebtedness at the time of the claim. 34. Any refund of premium payment to Plaintiff made before the death of the insured would be discriminatory against all other universal life policy holders with a Death Benefit Option "2," who paid a higher cost of insurance charge. WHEREFORE, Defendant Lincoln National Insurance Company demands judgment in its favor and against Plaintiff Phillip W. Mock, as Trustee of the Irrevocable Trust of the Estate 6 of Jane S. Mock, together with costs of suit and such further relief as this Court deems appropriate. Respectfully submitted, BUCHANAN INGERSOLL & ROONEY, PC Avy: oniak, E squire .. o. 0035 One South Market Square 213 Market Street - 3rd Floor Harrisburg, PA 17101 (717) 237-4800 Attorneys for Defendant Lincoln National Life Insurance Co. DATE: September 18, 2006 7 VERI ROATION 1, ,,usan Duffy, Senior Claims Examiner for Lincoln National Life Insurance Company, verify that the statements made in the Answer with New Matter of Defendant Lincoln National Life Insurance Company, are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Susan Duffy Dated: September /57, 2006 CERTIFICATE OF SERVICE I, Stephen Moniak, Esquire, certify that I am this day serving a copy of the foregoing document upon the persons below via first class mail which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure as follows: George B. Faller, Jr., Esquire MARTSON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 By: tephen Monia ,Esquire DATE: September 18, 2006 «.. ..t1 _--{ ?. it C : '+ ... ? . ...t„' ?.?. F:\FILES\DATAFILE\General\Cwent\10832.2.res l\mas/n1m Created: 6/15/06 8:35AM Revised: 11/14/06 9:28AM 10832.2 George B. Faller, Jr., Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. No. 49813 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff PHILLIP W. MOCK, as Trustee of IN THE COURT OF COMMON PLEAS the Irrevocable Trust of the Estate of OF CUMBERLAND COUNTY, PENNSYLVANIA Jane S. Mock, Plaintiff, V. No. 06-4436 CIVIL ACTION THE LINCOLN NATIONAL LIFE INSURANCE CO., Defendant. PLAINTIFF'S RESPONSE TO DEFENDANT'S ANSWER WITH NEW MATTER AND NOW comes Plaintiff, Phillip W. Mock, as Trustee of the Irrevocable Trust of the Estate of Jane S. Mock, by and through its counsel, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby responds to Defendant's Answer with New Matter as follows: 14.47. The averments of these paragraphs are conclusion of law to which no responses are required. To the extent responses may be deemed required, these averments are denied. 18. Denied. To the contrary, see the averments stated in Plaintiff's Complaint. 19. Denied as stated. To the contrary, Defendant's Answer to the Complaint repeatedly mentions "cash value" but does not explain what happened to the "cash value" when Mrs. Mock died prior to the policy premium year beginning. (For purposes of illustration, if the policy premium payment was not due or owing, the Defendant has unjustly and improperly overfilled their "pool of money.") 20.-22. The averments of these paragraphs are conclusion of law to which no responses are required. To the extent responses maybe deemed required, the policy documents speak for themselves. 23. Admitted. 24. After reasonable investigation, the Answering Plaintiffis without knowledge or information sufficient to form a belief as to the truth or falsity of this averment. It is, however, admitted that Defendant has repeatedly told Plaintiff that it had already accepted the premium and would not be refunded. 25. It is admitted that Mrs. Mock died on February 4, 2006. The remaining averments are denied. Byway of further response, even ifthe $48,460.56 had been applied to the policy's "cash value" such application was not authorized by the clear policy language and such application was done in bad faith. 26. Admitted. 27. It is admitted that Defendant paid the Plaintiff $503,643.84. 28. Admitted. 29. Denied as stated. To the contrary, this averment is the conclusion of law. Furthermore, Defendant should not have applied the premium since it had not yet earned it. In addition, see the Answer to paragraph 25, which is hereby incorporated by reference. 30.-34. Denied as stated. To the contrary, see the averments stated in Plaintiff s Complaint. By way of further answer, Defendant's failure to refund an unearned policypremium based on language which is ambiguous at best is done in bad faith. In addition, see the Answer to paragraph 25, which is hereby incorporated by reference. WHEREFORE, Plaintiff demands judgment in its favor in the amount of $48,460.56. MAR' By George B. Faller, Jr., I.D. No. 49813 (717) 243-3341 Dated: November 14, 2006 Ten East High Street Carlisle, PA 17013 VERIFICATION George B. Faller, Jr., Esquire, of the firm of MARTSON DEARDORFF WILLIAMS & OTTO, attorneys for Plaintiffin the within action, certifies that the statements made in the foregoing Response to Defendant's Answer with New Matter are true and correct to the best of his knowledge, information and belief. I understands that false statements herein are made subj ect to the penalties of 18 Pa. C. S. Section 4904 relating to unsworn falsification to authorities. F:\FILES\DATAFILE\General\Cu rent\10832.2.resI CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Plaintiff's Response to Defendant's Answer with New Matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Stephen Moniak, Esquire BUCHANAN INGERSOLL & ROONEY, P.C. One South Market Square 213 Market Street, 3rd Floor Harrisburg, PA 17101-2121 MARTSON DEARDORFF WILLIAMS & OTTO B Y Melissa A. Scholly Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: November 14, 2006 r-- -;, r F: \FI LE S\General\Current\ 10832\ 10832.2. pra I Created: 9/20/04 0:06PM Revised: 6/7/07 5:02PM George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff PHILLIP W. MOCK, as Trustee of the Irrevocable Trust of the Estate of Jane S. Mock, Plaintiff, V. THE LINCOLN NATIONAL LIFE INSURANCE CO., Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4436 CIVIL ACTION PRAECIPE TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly mark the above-referenced matter as settled, discontinued and ended. MARTSO -I>AW OFFICES By Jr., Esquire I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: 6 Z,1/0 1- Attorneys for Plaintiff 1-41 C A ? - tea. t j-{