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ANTHONY J. PASTORE v. COMMONWEALTH PENNSYLVANIA (05/05/89)

decided: May 5, 1989.

ANTHONY J. PASTORE, T/A PASTORE AGENCY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, INSURANCE DEPARTMENT, RESPONDENT



Appeal from the Order of the Insurance Commissioner of the Commonwealth of Pennsylvania, in the case of In Re: Anthony Pastore, t/a Pastore Agency, 6701 Ridge Avenue, Philadelphia, PA 19128; Alleged Violations: Sections 603, 604, 623, 633, 633.1 and 639 of the Insurance Department Act of 1921, Act of May 17, 1921, P.L. 789, (40 P.S. §§ 233, 234, 253, 273, 273.1, and 179); Sections 4 and 5(2) of the Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589 (40 P.S. §§ 1171.4 and 1171.5(2) 31 Pa. Code §§ 33.29(c), 33.29(d), 33.29(f), 33.18, and 33.7(a)(7). Docket No. P-88-2-5, dated July 25, 1988.

COUNSEL

Arthur S. Cavaliere, Cavaliere and Skale, P.C., for petitioner.

Victoria A. Reider, Assistant Counsel, with her, Theodie L. Peterson, III, Chief of Litigation and Linda J. Wells, Chief Counsel, for respondent.

Judges Craig, Barry and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 125 Pa. Commw. Page 612]

The question on the merits in this proceeding under the Pennsylvania Right-to-Know Law,*fn1 is whether an applicant is entitled to see the entire contents of an administrative agency's file on him, including the results of all investigations made by the agency, or whether he is barred from seeing any or all of those documents because they are not "public records" within the statutory definition of that term.

The context in which the present proceeding arose was an investigation by the Insurance Department of Anthony J. Pastore, t/a Pastore Agency, for various alleged violations of the Insurance Department Act of 1921*fn2 and of the Unfair Insurance Practices Act,*fn3 and their

[ 125 Pa. Commw. Page 613]

    implementing regulations, which led to the department's issuance of an order to show cause why the Insurance Commissioner should not suspend, revoke or refuse to renew Pastore's license to sell insurance or impose civil penalties on him in relation to any factual allegations contained in the order that were proved at a hearing. Before the date scheduled for the hearing, Pastore's counsel filed a motion for discovery, alleging that he had asked the department to view "the entire contents of your file, including the results of all investigations made by your office by complainants or investigators and any other pertinent information you may possess with regard to your charges against Mr. Pastore," Record 9a, and that the department had refused his request.

The presiding officer in the Insurance Department proceeding granted that portion of Pastore's motion seeking witness statements in the possession of the department and denied as overly broad the portion of the motion seeking the entire contents of the department's investigative file for purposes of inspection and copying. R. 22a-23a. Pastore appealed to this court from the ruling on his discovery motion.

The department previously moved to quash Pastore's appeal as being interlocutory in the context of the violation proceeding. This court denied that motion on the grounds that rights to inspect "public records" under the Right-to-Know Law are general in nature and should not be denied merely because they are asserted during administrative proceedings. Although such rights do not supplant or enhance discovery rights provided by rules and regulations establishing proper procedures in administrative proceedings (hence this court's earlier denial of Pastore's request for a stay of the Insurance Department proceeding pending a decision on this appeal), the denial of the independent right to examine records under the Right-to-Know Law was held to be a final order subject

[ 125 Pa. Commw. Page 614]

    to appeal, rather than a non-appealable interlocutory order within the context of the department's violation proceeding. Pastore v. Insurance Department ...


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