Loading...
HomeMy WebLinkAbout2005-2763 Civil SUN LIFE ASSURANCE COMP ANY OF CANADA, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-2763 CIVIL MICHAEL l KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP, Defendants IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLEK II OPINION AND ORDER Before the court is the motion of the plaintiff for 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 of the 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 1 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. 1029(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 of Kman and Kman Financial Group. In any event, our resolution of the instant summary judgment motion does not depend upon our analysis of the 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 of the 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 25th 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, Kevin A. Hess, J. Jeffrey A. Lutsky, Esquire 2600 One Commerce Square Philadelphia, PA 19103-7098 F or Plaintiff Michael J. Kman, Jr., Pro se 1018 Dogwood Lane Enola, P A 17025 :rlm 3 SUN LIFE ASSURANCE COMP ANY OF CANADA, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-2763 CIVIL MICHAEL l KMAN, JR. d/b/a KMAN & KMAN FINANCIAL GROUP, Defendants IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLEK II ORDER AND NOW, this 25th 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, Kevin A. Hess, l Jeffrey A. Lutsky, Esquire 2600 One Commerce Square Philadelphia, PA 19103-7098 F or Plaintiff Michael l Kman, Jr., Pro se 1018 Dogwood Lane Enola, P A 17025 :rlm