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INSURANCE ADJUSTMENT BUREAU v. INSURANCE COMMISSIONER FOR COMMONWEALTH PENNSYLVANIA (08/13/87)

decided: August 13, 1987.

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. Ochroch, for petitioner.

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

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

Author: Barbieri

[ 108 Pa. Commw. Page 420]

Petitioner, Insurance Adjustment Bureau, commenced an action in equity under our original jurisdiction against the Insurance Commissioner of the Commonwealth of Pennsylvania (Commissioner), Respondent, seeking both injunctive and declaratory relief. Petitioner alleged that the third and fourth sentences of Section 5(a) of the Act of December 20, 1983, P.L. 260, compiled at the third and fourth sentences of 63 P.S. § 1605(a), prohibiting public insurance adjusters or public insurance adjuster solicitors from soliciting employment from a victim of a loss within a twenty-four hour period of a fire or other catastrophe or occurrence giving rise to a loss, unconstitutionally abridged its freedom of speech in violation of the First and Fourteenth Amendments to the Federal Constitution and Article 1, § 7, and Article 3, § 32, of the Pennsylvania Constitution.

[ 108 Pa. Commw. Page 421]

On April 26, 1984, this Court granted a preliminary injunction enjoining the enforcement of the third and fourth sentences of 63 P.S. § 1605(a), hereinafter referred to simply as the "twenty-four hour rule." Petitioner has since filed a motion for summary judgment seeking a permanent injunction and a declaration from this Court that the twenty-four hour rule is unconstitutional. It is that motion for summary judgment that is presently before this Court for disposition.

Public adjusters and public adjuster solicitors are regulated and licensed by the Insurance Commissioner. See Act of December 20, 1983, P.L. 260, 63 P.S. §§ 1601-1608. The challenged statutory language of Section 5(a) of the Act, 63 P.S. § 1605(a) provides:

No public adjuster or public adjuster solicitor shall solicit a client for employment within 24 hours of a fire or other catastrophe or occurrence which is the basis for 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. . . .

As there are no genuine issues of material fact, and the sole issue for our determination revolves around the interpretation of the statutory language, the matter is ripe for summary judgment. See Keating v. Zemel, 281 Pa. Superior Ct. 129, 421 A.2d 1181 (1980); Goodrich-Amram 2d § 1035(b):2 (1976). We are also cognizant that summary judgment may be granted only in the clearest of cases where the moving party is entitled to judgment as a matter of law. Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969).

We begin our analysis with the recognition that enactments of the General Assembly enjoy a strong presumption of constitutionality with all doubts resolved in favor of sustaining the constitutionality of the legislation. United States v. Geller, 560 F. Supp. 1309 (E.D. Pa.

[ 108 Pa. Commw. Page 4221983]

), aff'd, United States v. DeMaise, 745 F.2d 49 (3d Cir. 1984), cert. denied, 469 U.S. 1109 (1985); James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 477 A.2d 1302 (1984). A party challenging the constitutionality of a statute has a heavy burden of rebutting the presumption of constitutionality and showing that the statute clearly, plainly and palpably violates either the Federal or Pennsylvania Constitutions. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986); Commonwealth v. Finnegan, 280 Pa. Superior Ct. 584, 421 A.2d 1086 (1980); Singer v. Sheppard, 33 Pa. Commonwealth Ct. 276, 381 A.2d 1007 (1978).

Petitioner argues that the twenty-four hour rule (1) violates its right to freedom of speech under both the Federal and Pennsylvania Constitutions; (2) that it violates its right to equal protection under the laws; (3) that it violates its right to substantive due process; and (4) the language of the twenty-four hour rule is unconstitutionally vague. We shall discuss these contentions in the order stated.

In its argument that the twenty-four hour rule violates its right to free speech, Petitioner acknowledges that the speech subject to regulation here is commercial speech, as opposed to "pure" speech. While commercial speech does lie within the protection afforded by the First Amendment, Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 741 (1976), the United States Supreme Court has recognized that some forms of regulation of commercial speech -- such as regulation of false or misleading speech -- is constitutionally permissible. Id. at 770. See also Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 91-92 (1977). In Linmark Associates, the Supreme Court held that commercial speech "cannot be banned because of an unsubstantiated belief that its impact is

[ 108 Pa. Commw. Page 423]

'detrimental'." 431 U.S. at 92 n. 6. We are also cognizant of the Supreme Court's holding in Central Hudson Gas & Electric Corp. Public Service Commission of New York, 447 U.S. 557 (1980), where the Supreme Court set forth a four-part analysis to be used in commercial speech cases. The ...


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