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PENNSYLVANIA INSURANCE DEPARTMENT ET AL. v. JOHNSON (11/27/68)

decided: November 27, 1968.

PENNSYLVANIA INSURANCE DEPARTMENT ET AL.
v.
JOHNSON, APPELLANT



Appeal from order of Superior Court, March T., 1968, Nos. 2 and 3, affirming order of Court of Common Pleas of Dauphin County, No. 128 Commonwealth Docket, 1966, in case of Insurance Department of Commonwealth of Pennsylvania et al. v. Donald R. Johnson.

COUNSEL

Edward O. Spotts, with him James P. Gill, John R. Gavin, Charles S. Morrow, and Spotts, Gill, Gavin & Morrow, for appellant.

Charles D. Cowley, Associate Counsel, with him Frederic G. Antoun, Deputy Attorney General, for Insurance Department, appellee.

Robert E. Woodside, with him R. J. Woodside, and Woodside & Woodside, and Watters & Donovan, for intervening appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this concurring opinion. Dissenting Opinion by Mr. Justice Cohen.

Author: O'brien

[ 432 Pa. Page 545]

In April and June of 1965, the National Automobile Underwriters Association and the National Bureau of Casualty Underwriters who, together, represent companies writing significant portions of the automobile liability and physical damage insurance in Pennsylvania, filed proposed rate increases with the insurance commissioner. The commissioner held hearings on the proposed increases and approved them as filed. Appellant excepted to the rate increase approvals and hearings were held on his complaints by the insurance department. The hearings were held in October 1965, and, on March 7, 1966 the commissioner dismissed appellant's complaints. An appeal from the commissioner's adjudication was filed in the Commonwealth Court and dismissed by that court on February 6, 1967. The

[ 432 Pa. Page 546]

Superior Court affirmed, Pennsylvania v. Johnson, 211 Pa. Superior Ct. 138, 238 A.2d 23 (1967), and we granted appellant's petition for allocatur.

Appellant raises five questions on appeal which may be reduced to three general issues pursued by him throughout this litigation. He argues that: the commissioner conducted the hearings in an unjudicial and discourteous manner and failed to consider a full record by virtue of her refusal to allow the court reporter to take his counsel's closing speech; the record fails to sustain the grant of a 20% rate increase; and a conflict of interest existed by virtue of the retention by the commissioner of an actuarial consultant in connection with her review of the disputed rate filings.

The first of these contentions need not detain us. A careful review of this record fails to substantiate appellant's allegations. At most, we find only hotly pursued advocacy and no indication of discourtesy or attempt on behalf of the commissioner to prevent appellant's counsel from fully presenting his case. Nor do we find error in the refusal of the commissioner to permit a verbatim taking of the closing speech of appellant's counsel. That speech was surely not evidence and we fail to perceive how its non-inclusion in the transcribed record prejudiced appellant.

Appellant's second argument is not without difficulty. He contends that the underwriting losses testified to by the Bureau and the Association do not accurately reflect their financial position. He contends that investment income was not taken into consideration and that the accounting method employed by the insurers distorts the profit picture. Specifically, appellant contends that the insurers sustained losses of only 5 to 7% in the year in question. His conclusion is based on a cash method of ...


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