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DEPARTMENT INSURANCE v. THOMAS J. MACFARLAND (12/01/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 1, 1976.

DEPARTMENT OF INSURANCE, COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS J. MACFARLAND, APPELLANT

Appeal from the Order of the Department of Insurance of the Commonwealth of Pennsylvania in case of Thomas J. MacFarland, Petitioner, Re: Denial of Application for Licensing as Agent of Aetna Life and Casualty Company, dated October 20, 1975.

COUNSEL

Thomas F. Burke, Jr., with him Flanagan, Doran, Biscontini & Shaffer, for appellant.

John H. Isom, Assistant Attorney General, with him Paul F. Donohue, Assistant Attorney General, Andrew F. Giffin, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 27 Pa. Commw. Page 249]

This is an appeal from an adjudication and order of the Commonwealth of Pennsylvania, Department of Insurance (Department), denying the application of Thomas J. MacFarland (Appellant) for licensing as an insurance agent. Previous to this, by adjudication and order of the Department, Appellant's license as an agent had been permanently revoked for fraudulent conversion of insurance premiums.

A formal hearing was held on Appellant's application in December of 1974. This hearing was conducted

[ 27 Pa. Commw. Page 250]

    by James Keeney, the Department hearing examiner. Following an initial order denying the application, Appellant sought Department review. On October 20, 1975, the Insurance Commissioner (Commissioner) reaffirmed his earlier order denying Appellant's application. Sometime subsequent to the initial hearing but prior to either of the Commissioner's orders, Mr. Keeney left the Department. It is Appellant's contention that the apparent nonparticipation of the hearing examiner was improper.

Framed differently, Appellant alleges a denial of procedural due process based upon an assumed nonparticipation by the examiner in the adjudication. It is well settled that due process guarantees apply to administrative as well as judicial proceedings. Pioneer Finance Co. v. Pennsylvania Securities Commission, 21 Pa. Commonwealth Ct. 447, 346 A.2d 890 (1975). The due process concept in this context is particularly important in light of the significance of Appellant's credibility to a determination of Appellant's rehabilitation in establishing his fitness for a license.

Regulation 35.203, 1 Pa. Code ยง 35.203, controls the issue raised by Appellant. It provides as follows:

Unavailability of presiding officer. If a presiding officer becomes unavailable to the agency, the agency head, will either designate another qualified officer to prepare a proposed report or will cause the record to be certified to it for decision, as may be deemed appropriate, giving notice to the parties.

We find nothing in the record which enables us to find compliance by the Department with the foregoing regulation.*fn1

We therefore must

[ 27 Pa. Commw. Page 251]

Order

And Now, this 1st day of December, 1976, the order of the Department of Insurance denying the license application of Thomas J. MacFarland is hereby reversed and the matter is remanded to the Insurance Commissioner with a direction that a full hearing be held to determine the merits of the application.

Disposition

Reversed and remanded.


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