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COMMONWEALTH PENNSYLVANIA v. ANTHONY CIERVO (03/15/76)

decided: March 15, 1976.

COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT
v.
ANTHONY CIERVO, JR., APPELLANT



Appeal from the Order of the Insurance Commissioner in case of In Re: Anthony Ciervo, Jr., t/a Anthony Ciervo Agency, dated July 25, 1975.

COUNSEL

Bruce E. Cooper, with him Cooper, Friedman & Butler, for appellant.

Andrew F. Giffin, Assistant Attorney General, with him Donald J. Murphy, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr. did not participate. Opinion by Judge Mencer.

Author: Mencer

[ 24 Pa. Commw. Page 30]

Anthony Ciervo, Jr. (appellant) was a licensed insurance broker charged with several violations of Section 14 of The Casualty and Surety Rate Regulatory Act*fn1 (Rate Act) and one violation of Section 633.1 of The Insurance Department Act of one thousand nine hundred and twenty-one*fn2 (Insurance Act). After hearings held on September 11, 1974 and October 18, 1974, the Insurance Commissioner concluded that there existed satisfactory evidence of conduct (the alleged violations of Section 14 of the Rate Act and Section 633.1 of the Insurance Act) which would have disqualified appellant from the initial

[ 24 Pa. Commw. Page 31]

    issuance of a broker's license under the criteria set forth in Section 622 of the Insurance Act, 40 P.S. § 252. Exercising his discretionary power pursuant to Section 639 of the same act, 40 P.S. § 279, the Commissioner revoked appellant's license to act as an insurance broker and imposed a fine of $5,000 by order dated July 25, 1975. From this adjudication appellant appeals to this Court.

Appellant correctly recognizes that our scope of review of the Insurance Commissioner's decision is limited by Section 44 of the Administrative Agency Law.*fn3 We must affirm the adjudication of the agency unless there has been an error of law or necessary findings of fact are unsupported by substantial evidence. Initially, appellant urges that many of the Commissioner's findings were based entirely on hearsay evidence and as such cannot be supported by substantial evidence.

The evidence adduced at the hearing was of two types, that presented by witnesses appearing at the hearing and evidence consisting of insurance company and motor vehicle records. The unverified documentary evidence entered over objection of appellant's counsel was, in our view, hearsay not properly qualified under the business records exception to the hearsay rule. Thus, this evidence alone could not support findings of fact.

This leaves us with the Commissioner's findings based on the testimony of five witnesses, Dorothy Morris, Frank Sullivan, Louise Higginbotham, L. O. Barrett, and Eugene Toby, all of whom were present at the hearing and available for cross-examination.

The charge that appellant violated Section 633.1 of the Insurance Act is based entirely on the testimony of Dorothy Morris, who testified that she had paid appellant for two identical insurance policies on the same ...


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