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PHILIP SCHWARTZ v. COMMONWEALTH PENNSYLVANIA (04/21/87)

decided: April 21, 1987.

PHILIP SCHWARTZ, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, INSURANCE COMMISSIONER, RESPONDENT



Appeal from the Order of the Insurance Commissioner of the Commonwealth of Pennsylvania, in case of In Re: Philip Schwartz, Appeal from denial of Public Adjuster's License, Docket No. A85-5-4.

COUNSEL

Gene D. Cohen, for petitioner.

James A. M. Zarrella, Assistant Counsel, with him, M. Hannah Leavitt, Acting Chief Counsel, for respondent.

Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 105 Pa. Commw. Page 337]

This is an appeal by Philip Schwartz, Petitioner, who appeals here an order of the Insurance Commissioner of the Commonwealth of Pennsylvania (Commissioner) who denied his application for an insurance public adjuster's license. We affirm.

Schwartz had been licensed by the Insurance Department (Department) as a public adjuster since 1964 when, on January 12, 1979, he was convicted in federal court of aiding and abetting and mail fraud in violation of 18 U.S.C. § 1341. The conviction arose out of Schwartz's conspiring with others to knowingly submit false insurance claims for damages arising out of an arson fire of a furniture store set by his co-defendants. As a result of that conviction, he was sentenced to two years in prison and five years probation. The Department

[ 105 Pa. Commw. Page 338]

    revoked his public adjuster's license on December 29, 1981, pursuant to Section 6 of the Act of December 20, 1983 (Public Adjuster Act), P.L. 260, 63 P.S. § 1606, as a result of his 1979 conviction. No appeal was filed from that revocation.

Schwartz was released from prison on June 18, 1981 and released one year early from his probationary term. Since his release, he has been gainfully employed and currently is employed by Clark and Cohen in Philadelphia, Pennsylvania, running errands and preparing inventories. He sat for and passed the examination for a public adjuster's license and submitted a proper application for a public adjuster's license to the Department. If granted the license, Schwartz would be employed as a public adjuster by his current employer, Clark and Cohen. The Commissioner found that he was not trustworthy to transact business as a public adjuster and denied Schwartz's application. This appeal followed.

The sole issue presented by Schwartz in this appeal is whether the Commissioner abused his discretion in finding him untrustworthy in light of the multitude of character witnesses who testified on his behalf. In reviewing this contention, we are mindful that under our limited scope of review under Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, we are required to affirm the Commissioner's order unless necessary findings are unsupported by substantial evidence, an error of law committed, or a constitutional right of the petitioner has been violated.

Section 2(b) of the Public Adjuster Act, 63 P.S. § 1602(b), gives the Commissioner considerable discretion in issuing public adjuster's licenses. Section 2(b) provides, in pertinent part, that:

When the Insurance Commissioner is satisfied that the applicant is trustworthy and competent to transact ...


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