Appeal from the Order of the Insurance Commissioner in case of In Re: Black Lung Filing of the Coal Mine Rating Compensation Bureau of Pennsylvania CM-3-1975, dated September 5, 1975.
John M. Elliott, with him Steven L. Friedman, Constance B. Foster, and, of counsel, Dilworth, Paxson, Kalish & Levy, for appellants.
Linda S. Lichtman, Assistant Attorney General, with her Andrew F. Giffin, Chief Counsel, for appellee.
Wilbur S. Legg, with him Spencer LeRoy; Lord, Bissell & Brook; Thomas R. Balaban ; and Shaffer, Calkins & Balaban, for intervening appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Blatt. Judge Rogers did not participate. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case.
The Commonwealth of Pennsylvania, Insurance Department's (appellee) motion to quash this appeal as not having been taken from an "adjudication" and before the Pennsylvania Coal Mining Association and various individual coal companies (appellants) had exhausted their administrative remedies also highlights the substantive issues on appeal.
On June 27, 1975, the Coal Mine Compensation Rating Bureau of Pennsylvania submitted to the Insurance Commissioner its annual rate filing for the year beginning July 1, 1975. During the ensuing thirty day period, the Commissioner did not disapprove the rate filing, extend the waiting period for it to become effective or otherwise affirmatively act with respect thereto. The rate filing was thus "deemed" approved on August 1, 1975.*fn1
The events which occurred between July 1, 1975, and a letter of the Commissioner to the appellants dated September 5, 1975, generated this dispute between the parties. The record discloses that incident to the July 1, 1975, rate filing, no particular publicity was
afforded it by the Commissioner or the Insurance Department. On or about July 16, 1975, appellants, having become aware of the filing, requested from the Commissioner a copy of the rate filing and stated that they "may well have objections to the filing and may seek to intervene in the proceedings." Copies of the filing were hand delivered to appellants on July 18, 1975. The next event occurred on August 11, 1975 (ten days after the "deemed" approval date), when appellants filed with the Commissioner a petition to intervene, which, in turn, was followed by a letter to the Commissioner dated August 21, 1975, complaining of his failure to act upon the petition to intervene and containing a formal request that the 1975 rate filing be rejected or suspended. The letter elicited a responding letter from the Commissioner dated September 5, 1975, which denied appellants' petition to intervene as untimely filed inasmuch as the rate filing was deemed approved on August 1, 1975. It is from this letter that this appeal has been taken.
In its motion to quash the appeal and in support of dismissing the appeal, appellee contends that appellants had and continue to have a right to seek administrative review of the now approved 1975 rate filing under Section 654 of The Insurance Company Law of 1921, 40 P.S. § 814, and that this appeal is an improper and thinly veiled but successful attempt, through a court granted supersedeas on appeal, to suspend a rate filing lawfully in effect but subject to future modification or amendment through the administrative review procedure. This argument also buttresses appellee's contention that the ...