No. 62 May Term, 1977, Appeal from the Order of the Commonwealth Court at No. 1803, C.D. 1975, reversing the Order of the Department of Insurance, Docket R74-8-6.
Robert P. Kane, Atty. Gen., Gerald Gornish, Deputy Atty. Gen., for appellant.
Shaffer, Calkins & Balaban, Thomas R. Balaban, Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, former Justice did not participate in the decision of this case. Nix, J., filed a concurring opinion. Roberts, J., filed a dissenting opinion.
Appellant, the Insurance Department of the Commonwealth of Pennsylvania, charged American Bankers Insurance Company of Florida (American) with a violation of certain provisions of the Pennsylvania insurance laws.*fn1 Following a hearing, American was found to have committed at least 110 violations and was accordingly fined $5500.00.*fn2 On appeal, the Commonwealth Court reversed. The ground of reversal was a lack of procedural due process in the hearing procedures of the Insurance Department which in turn had been caused by insufficient separation of the prosecutorial
and judicial functions. Commonwealth of Pennsylvania, Department of Insurance v. American Bankers Insurance Company of Florida, 26 Pa. Commw. 189, 363 A.2d 874 (1976). We allowed the present appeal and now affirm.
The record discloses that one Andrew F. Giffen, Esquire, was Associate General Counsel of the Insurance Department and supervised the office within the department which initiated the present charges. It also appears that he signed and issued the citation charging the violations. Thereafter, Mr. Giffen was appointed a Deputy Insurance Commissioner and presided over the hearing in that capacity. In performing that function he ruled on questions of evidence, resolved questions of fact and drafted the proposed adjudication which was later signed by the Insurance Commissioner. Such a commingling of prosecutorial and adjudicatory functions in one individual offends fundamental notions of due process and is constitutionally impermissible. See Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975).
NIX, Justice, concurring.
I agree that the order of the Insurance Commissioner should have been reversed and therefore I agree with the result reached by the Commonwealth Court and the majority of this Court.
I accept the premise of Mr. Justice ROBERTS, as set forth in his dissent, that a mere tangential involvement of an adjudicator in the decision to initiate proceedings is not alone sufficient to establish that the proceedings are violative of due process. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); FTC v. Cement Institute, 333 U.S. 683,
S.Ct. 793, 92 L.Ed. 1010 (1948). However, this record is far from clear in establishing that Mr. Giffen's role in the prosecutorial stage did not constitute "actual participation in prosecution". To the contrary, my reading of this record supports the conclusion that the Deputy Commissioner was significantly involved in the prosecution stage in this matter. See Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1976).
ROBERTS, Justice, dissenting.
The majority affirms the order of the Commonwealth Court on the basis of an issue not raised by either party and upon which the Commonwealth Court did not pass. Moreover, the majority reaches the wrong result on the issue it decides. I dissent.
Andrew Giffen, Esquire, served as Associate General Counsel for appellant Department of Insurance, supervising the Department until he was appointed a deputy Insurance Commissioner. Approximately two months later, Giffen sat as hearing examiner in an agency adjudication of charges alleging violations of insurance laws by appellee American
Bankers Insurance Company. Because the attorney of the Department of Insurance presenting the Department's case had been a subordinate of Giffen's when Giffen was Associate General Counsel of the Department, appellee American Bankers objected to Giffen's participation as a hearing examiner, claiming that commingling of prosecutorial and adjudicatory functions had occurred. The Department of Insurance denied this objection. The Commonwealth Court reversed, concluding that Giffen's role as hearing examiner where a former subordinate argued the Department's case gave rise to an "appearance of ...