Appeal from the Order of the Insurance Commissioner in case of In Re: Lee N. Celane, No. P79-1-1.
William J. Krzton, for petitioner.
David T. Kluz, with him James R. Farley, Assistant Attorneys General and Edward Biester, Attorney General, for respondent.
Judges Wilkinson, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr. dissents.
[ 51 Pa. Commw. Page 634]
Lee N. Celane (Celane) was licensed as a fire and casualty insurance agent and also as a life and health insurance agent by the Pennsylvania Insurance Department. On September 29, 1978, Celane was found guilty by a jury of theft by failure to make required disposition of funds received and of misapplication of entrusted property and property of government or financial institutions.*fn1 Celane's criminal trial was held in the Court of Common Pleas of the Fifty-ninth Judicial District of Pennsylvania, Elk County Branch -- Criminal Division.
On January 3, 1979, the Acting Insurance Commissioner of Pennsylvania ordered Celane to appear at a formal administrative hearing to show cause why the Insurance Commissioner should not impose penalties as a consequence of Celane's criminal conviction in Elk County. This order to show cause was sent to Celane by certified mail, return receipt requested, at his last known address.*fn2 The order was returned to the Insurance Department on January 23, 1979*fn3 and marked by the postal service as "unclaimed."
An administrative hearing was held on February 15, 1979 relative to the order to show cause. Celane did not appear at this hearing. After the notes of testimony of the administrative hearing were transcribed, Celane was sent a certified letter dated March 2, 1979 informing him that briefs were due on or before March 19, 1979 and reply briefs were due on or
[ 51 Pa. Commw. Page 635]
before March 29, 1979. This letter was also returned to the Insurance Department as "unclaimed."
An order revoking Celane's insurance licenses and requiring him to pay a $1,000 penalty was signed by the Insurance Commissioner on May 2, 1979 and a copy sent to Celane on May 3, 1979. Once again, a certified letter, return receipt requested, sent to Celane at his last known address, was returned to the Insurance Department.
However, in some way, Celane became aware of the Insurance Commissioner's May 2, 1979 order and, on June 1, 1979, filed his appeal in this Court from that order. Celane raises the following question here:
Where the order to show cause was returned to the Insurance Commissioner indicating the order was unclaimed, did the ...