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PECHNER v. PENNSYLVANIA INSURANCE DEPARTMENT (11/10/82)

decided: November 10, 1982.

PECHNER, DORFMAN, WOLFFE, ROUNICK AND CABOT, APPELLANTS,
v.
PENNSYLVANIA INSURANCE DEPARTMENT, ET AL., APPELLEES. *FN*JOHN NAGLE AND YONISH TRUCKING, INC., APPELLANTS, V. PENNSYLVANIA INSURANCE DEPARTMENT, ET AL., APPELLEES



No. 466 January Term, 1979, Appeal from the Order of the Commonwealth Court dated October 26, 1979 at 2242 C.D. 1977, No. 467 January Term, 1979, Appeal from the Order of the Commonwealth Court dated October 26, 1979 at 972 C.D. 1977

COUNSEL

Leonard Schaeffer, Stanley A. Uhr, Philadelphia, for appellants.

Hannah Leavitt, Asst. Atty. Gen., Harrisburg, for Ins. Dept.

Thomas R. Balaban, William R. Balaban, Harrisburg, for Coal Mine Comp. Rating Bureau, et al.

Robert J. Demer, Harrisburg, for appellees.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., files a concurring opinion. O'Brien, C.j., files a concurring and dissenting opinion. Roberts, J., files a concurring and dissenting opinion in which Hutchinson, J., joins.

Author: Mcdermott

[ 499 Pa. Page 141]

OPINION

These are consolidated appeals of Commonwealth Court orders disposing of numerous preliminary objections raised by appellees in opposition to petitions for review filed by

[ 499 Pa. Page 142]

    appellants.*fn1 Appellants are coal haulers,*fn2 who, under the Workmen's Compensation Act,*fn3 are required to purchase black lung disease insurance for protection of their employees. This coverage was mandated by a 1973 federal statute.*fn4 The initial rates of premiums for this insurance were set by the Coal Mine Compensation Rating Bureau ("Bureau"), which is authorized by the Insurance Company Law of 1921,*fn5 and is empowered to classify risks, establish underwriting rules and set premium rates under the supervision of the Insurance Commissioner ("Commissioner").

The premium rates, as originally promulgated, made no distinction between coal haulers, such as appellants, and tunnel mine operators. Appellants argued that a lower premium should have been set for their employees since coal haulers' activities are confined to the surface where risk of contracting black lung disease is less severe. To seek redress of this imbalance, appellants filed a petition for review in the nature of an action in equity in Commonwealth Court (No. 1805 C.D. 1976), which was dismissed with instructions that administrative procedures mandated in 40 P.S. ยง 814 should be followed.*fn6 Appellants then sought an administrative

[ 499 Pa. Page 143]

    hearing before the Commissioner. On February 7, 1977, the Commissioner ordered the Bureau to re-evaluate the premiums but declined to rule on appellants' request for a full refund of all overpaid premiums dating back to 1973 when they were first paid.

Pursuant to the Commissioner's February order (hereinafter "February order"), a new, lower premium rate was set by the Bureau. This new rate was implemented in April 1977 with the Commissioner's approval and without objection from appellants. The Commissioner entered a final order in August of 1977 (hereinafter ...


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