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WILLIAM R. NOVAK v. COMMONWEALTH PENNSYLVANIA (05/20/87)

decided: May 20, 1987.

WILLIAM R. NOVAK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT, RESPONDENT



Appeal from the Order of the Department of Insurance, Commonwealth of Pennsylvania in the case of William R. Novak, No. A84-7-9.

COUNSEL

William R. Balaban, Balaban and Balaban, for petitioner.

Arthur Selikoff, Assistant Counsel, with him, M. Hannah Leavitt, Chief Counsel, for respondent.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 106 Pa. Commw. Page 233]

Petitioner, William R. Novak, appeals here an adjudication of the Insurance Department of Pennsylvania (Department) revoking his insurance agent's license. The Department determined that he was unworthy to conduct insurance business in this Commonwealth as a

[ 106 Pa. Commw. Page 234]

    result of his federal conviction for bank embezzlement, 18 U.S.C. § 656.

The following facts are undisputed and pertinent to our resolution of this case. Novak was an assistant vice president and branch manager of the Moxham National Bank in Johnstown, Pennsylvania, during 1982 and early 1983. During that time, he fabricated customer loan applications and embezzled the proceeds, totaling $28,000.00, converting them to his personal use. The Bank fired him in March, 1983, and on May 12, 1983, he was issued an insurance agent's license by the Department. On July 20, 1984, he was charged by federal authorities on one count of bank embezzlement. He pleaded guilty to the charge and was accordingly convicted and sentenced to five years imprisonment. The five year prison term was suspended and he was placed on probation for five years. The Department instituted proceedings to revoke his insurance agent's license and, after a hearing was held on June 24, 1985, the Insurance Commissioner issued an order and adjudication on March 18, 1986, revoking his license as an insurance agent.

In this appeal, Novak presents two assignments of error wherein he contends that the Department erred (1) when the hearing examiner failed to orally advise him of his right to counsel even though he was previously advised in writing of that right; and (2) that the Commissioner failed to properly consider mitigating evidence when he imposed the penalty of license revocation. We shall consider these issues seriatim, mindful, of course, that under our limited scope of review pursuant to Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, we must affirm the Department's adjudication unless necessary findings are unsupported by substantial evidence, an error of law was committed, or a constitutional right of the petitioner was violated.

[ 106 Pa. Commw. Page 235]

(1984); Hoffman v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 108, 430 A.2d 1036 (1981). Supporting Brennan's reliance upon 34 Pa. Code § 101.21(a) is our well-established principle that Commonwealth agencies must follow their own regulations. See e.g. SmithKline Beckman Corp. v. Commonwealth, 85 Pa. Commonwealth Ct. 437, 482 A.2d 1344 (1984), aff'd, 508 Pa. 359, 498 A.2d 374 (1985); Kunkelman v. Pennsylvania Board of Probation and Parole, 40 Pa. Commonwealth Ct. 149, 396 A.2d 898 (1979). Our research has revealed no counterpart to 34 Pa. Code § 101.21(a) in either the Department's regulations or the general provisions governing formal proceedings of Commonwealth agencies contained in 1 Pa. Code §§ 31.1-35.193 and 35.225-35.251.

In view of the circumstances of this case, we are satisfied that Novak was aware he could have hired an attorney to represent him and he voluntarily chose to represent himself. The Department notified him, in writing, of his right to retain counsel, specified the charges against him, and the possibility that his insurance agent's license could be revoked. R.R. 14A-21A. Being aware that he could have hired an attorney to represent him and that the Department could revoke his insurance agent's license, we view the fact that he appeared at the June 24, 1985, hearing fully prepared to represent himself to constitute a knowing and voluntary waiver of his right to representation. In so holding, we note that the requirements for effectuating a knowing and voluntary waiver of counsel depends upon the nature of that right. Cf. Coades v. Pennsylvania Board of Probation and Parole, 84 Pa. Commonwealth Ct. 484, ...


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