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VINCENT E. FUMO v. COMMONWEALTH PENNSYLVANIA (04/09/81)

decided: April 9, 1981.

VINCENT E. FUMO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT, RESPONDENT



Appeal from the Order of the Commissioner of Insurance in case of In Re: Vincent E. Fumo, a/k/a Vincent Fumo, Docket No. A79-2-15.

COUNSEL

Robert Scandone, with him Carl N. Martin II, for petitioner.

David T. Kluz, Assistant Attorney General, with him James R. Farley, Chief Counsel, Insurance Department, and Edward G. Biester, Attorney General, for respondent.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. Judge Williams, Jr. dissents. This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.

Author: Blatt

[ 58 Pa. Commw. Page 393]

The petitioner, Vincent E. Fumo, seeks review of an order of the Commissioner of the Pennsylvania Department of Insurance (Department) which revoked his licenses to act as an insurance agent and broker within the Commonwealth.

The petitioner has been licensed by the Department for many years, at least since 1956. On June 26, 1976, he pleaded guilty in the federal district court for the Eastern District of Pennsylvania to multiple counts of making false entries in books and records for purposes of defrauding a savings and loan association and the United States, to multiple counts of willful misapplication of funds and to one count of conspiracy.

[ 58 Pa. Commw. Page 394]

About three years later, in February of 1979, the Department issued an order to the petitioner to show cause why his insurance licenses should not be revoked and an evidentiary hearing was held on April 30, 1979. The Commissioner subsequently revoked the licenses on August 16, 1979. Upon appeal of that order, the petitioner sought a supersedeas of the revocation, which was first denied by this Court, but which was later granted on appeal by the Supreme Court.

The petitioner raises numerous attacks on the order in question contending: (1) that his right to procedural due process was violated in that the revocation proceedings unconstitutionally commingled the prosecutorial and adjudicative functions of the Department; (2) that his licenses were revoked pursuant to a statute that is unconstitutionally vague; (3) that the Department violated its own regulations and abused its discretion by revoking his licenses solely on the basis of his criminal conviction and by not considering other evidence as to his good business reputation; and (4) that the revocation of his licenses was barred by the doctrine of laches due to the Department's failure to take action against him for almost three years after the date of his conviction.

As to the allegedly impermissible commingling of prosecutorial and adjudicative powers because the Commissioner who had initiated the proceedings against the petitioner was also the individual who had the ultimate responsibility for deciding the case on the merits, the similarity of this case to Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975), seems persuasive.*fn1 After a closer examination, however, we must hold

[ 58 Pa. Commw. Page 395]

    that due process was afforded here. As we ...


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