No. 01450 Pittsburgh, 1082, Appeal from the Order of November 24, 1982 in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 82-06493.
Harold Gondelman, Pittsburgh, for appellants.
James J. McCabe, Jr., Philadelphia, for Aetna, appellees.
Anthony Vale, Philadelphia, for Hartford, appellee.
Jeffrey B. Clay, Harrisburg, for Nationwide, appellee.
Brosky, Watkins and Hester, JJ.
[ 343 Pa. Super. Page 171]
On September 27, 1984, the Supreme Court held that gender-based automobile insurance rates were "unfairly discriminatory" within the meaning of the Casualty and Surety Rate Regulation Act (hereinafter "Rate Act").*fn1 See Hartford Accident and Indemnity Co. v. Insurance Commissioner of the Commonwealth of Pennsylvania, 505 Pa. 571, 482 A.2d 542 (1984). In doing so, it affirmed the order of the Insurance Commissioner of Pennsylvania (hereinafter "Commissioner") rescinding his prior approval of gender-based automobile insurance rates.
In the case before us, appellants, a class consisting of male operators under the age of thirty-one years, seek damages as a result of being charged higher premiums pursuant to the gender classification utilized in the determination of rates. The lower court dismissed appellants' complaint, finding that appellants failed to allege state
[ 343 Pa. Super. Page 172]
action, and finding that the Commissioner retained exclusive jurisdiction over remedial claims. This appeal ensued.
For the reasons that follow, we concur in the finding of the lower court that it lacked jurisdiction, but must disagree with the determination that appellants failed to allege state action.
In their complaint, appellants alleged that the imposition by insurance companies of a sex-related criterion in the promulgation of rates is a violation of the Fourteenth Amendment to the United States Constitution and the Equal Rights Amendment (thereafter "E.R.A.") of the Pennsylvania Constitution.*fn2 Appellees contended in their preliminary objections that the ...