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INSURANCE ADJUSTMENT BUREAU v. INSURANCE COMMISSIONER FOR COMMONWEALTH PENNSYLVANIA (12/20/84)

decided: December 20, 1984.

INSURANCE ADJUSTMENT BUREAU, PETITIONER
v.
THE INSURANCE COMMISSIONER FOR THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Original jurisdiction in the case of Insurance Adjustment Bureau v. The Insurance Commissioner for the Commonwealth of Pennsylvania.

COUNSEL

Richard M. Ochrock, for petitioners.

Jerome T. Foerster, Deputy Attorney General, with him, Allen C. Warshaw, Senior Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Williams, Jr. and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 86 Pa. Commw. Page 492]

The Insurance Adjustment Bureau (petitioner) has filed a petition for review addressed to our Court's original jurisdiction, seeking a declaratory judgment and injunctive relief against the Insurance Commissioner for the Commonwealth of Pennsylvania (respondent). The petitioner seeks to have the second and third sentences of Section 5(a) of the Act of December 20, 1983 (Act), P.L. 260, 63 P.S. § 1605(a) declared unconstitutional as violative of its right to equal protection and to freedom of speech, and asks this Court to permanently enjoin*fn1 the Commissioner from enforcing those portions of the Act. Presently

[ 86 Pa. Commw. Page 493]

    before us for disposition is the Commissioner's preliminary objection, in the form of a demurrer, to the petitioner's complaint.

It is well established that for purposes of determining preliminary objections in the form of a demurrer, the Court must accept as true all well-pleaded facts and reasonable inferences which may be deduced therefrom, but not conclusions of law. Moyer v. Davis, 67 Pa. Commonwealth Ct. 251, 466 A.2d 1355 (1982), aff'd, 501 Pa. 192, 460 A.2d 754 (1983). It is also true that a demurrer may not be sustained unless the face of the complaint shows that the law will not permit recovery, and that any doubt should be resolved in favor of overruling the demurrer. Association of Pennsylvania State Colleges and University Faculties v. Commonwealth, 44 Pa. Commonwealth Ct. 193, 403 A.2d 1031 (1979). And, of course, in ruling on a demurrer a court may not consider facts not disclosed in the record. Wells v. Pittsburgh Board of Public Education, 31 Pa. Commonwealth Ct. 1, 374 A.2d 1009 (1977).

The pertinent portions of the Act referred to in the complaint provide that:

No public adjustor or public adjustor solicitor shall solicit a client for employment within 24 hours of a fire or other catastrophe or occurrence which is the basis of the solicitation. With respect to a fire, the 24-hour period shall begin at such time as the fire department in charge determines that the fire is extinguished.

63 P.S. § 1605(a).

The complaint states that the respondent is charged with enforcing the provisions of the Act and that the petitioner is a public adjuster, employs solicitors, and that it has customarily been the practice of the ...


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