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FRANK J. HEMPSEY v. COMMONWEALTH PENNSYLVANIA (11/25/87)

decided: November 25, 1987.

FRANK J. HEMPSEY, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT, RESPONDENT



Appeal from the Order of the Insurance Commissioner in case of In Re: Frank J. Hempsey, Jr., Docket No. P86-6-10, dated November 5, 1986.

COUNSEL

Charles S. Silver, with him, Martha Sperling, Silver & Sperling, for petitioner.

James A. M. Zarrella, Assistant Counsel, with him, Linda J. Wells, Chief of Litigation, M. Hannah Leavitt, Chief Counsel, for respondent.

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

Author: Kalish

[ 111 Pa. Commw. Page 309]

Petitioner, Frank J. Hempsey, Jr., petitions for review of an order of the Insurance Commissioner of the Commonwealth of Pennsylvania (Commissioner), which revoked his insurance agent's license and imposed upon him a civil penalty of $4,800.00 for transacting business on behalf of an insurance company without being licensed as an agent for that company.

Petitioner was employed as an insurance agent with Merchants Mutual Insurance Company (Merchants Mutual). However, he was not licensed as an insurance agent on behalf of Merchants Mutual. Section 604 of the Insurance Department Act, (Act), Act of May 17, 1921, P.L. 789, as amended, 40 P.S. § 234, prohibits any individual from transacting business within this Commonwealth as the agent of an insurance company without a license. Regulations promulgated at 31 Pa. Code § 31.13(d) state that "[a]n agent's license shall carry authority

[ 111 Pa. Commw. Page 310]

    to represent only the company which has secured the license for such agent. Such agent shall not place business with a company or an agent of a company for which he is not licensed."

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

The Commissioner found that petitioner placed eighty (80) insurance policies on behalf of Merchants Mutual although he was not licensed to do so. The Commissioner held this to be a violation of section 604 of the Act, P.S. § 234, and ordered that his license be revoked and that he be fined $60.00 for each violation.

Petitioner contends that he lacked the necessary criminal intent to violate section 604 of the Act, P.S. § 234, since he had been told by Merchants Mutual that he would be licensed and he should "go ahead and place policies."

Whether a given statute is to be construed as requiring criminal intent is to be determined by the court, by considering the subject matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature. The ...


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