Gregory G. SKOTNICKI, Petitioner v. INSURANCE DEPARTMENT, Respondent
Commonwealth Court of Pennsylvania.
Decided August 17, 2016
146 A.3d 271
BEFORE: DAN PELLEGRINI, President Judge, MARY HANNAH LEAVITT, Judge, ANNE E. COVEY, Judge
Our Supreme Court decided Hopkins on June 15, 2015; thus, in order to invoke the newly-discovered fact exception of
Also, contrary to Appellant‘s claim, the Hopkins decision did not announce a “new rule,” but rather simply assessed the validity of Section 6317 under Alleyne and concluded that particular mandatory minimum sentencing statute was unconstitutional. Furthermore, even if Hopkins had announced a new rule, neither our Supreme Court nor the United States Supreme Court has held that Hopkins applies retroactively to post-conviction petitioners such as Appellant. Consequently, to the extent Appellant attempts to rely on Hopkins, he has not satisfied the timeliness exception of
Finally, assuming that Alleyne announced a new constitutional right, neither our Supreme Court nor the United States Supreme Court has held that Alleyne is to be applied retroactively to cases in which the judgment of sentence had become final, and this Court has recognized that a new rule of constitutional law is applied retroactively to cases on collateral review only if the United States Supreme Court or the Pennsylvania Supreme Court specifically holds it to be retroactively applicable to those cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.Super.2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012). To the contrary, our Supreme Court recently filed an opinion in Commonwealth v. Washington, 142 A.3d 810, 2016 WL 3909088 (Pa. July 19, 2016) wherein it addressed the retroactive effect of Alleyne and held “that Alleyne [ v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),] does not apply retroactively to cases pending on collateral review....” Id. at *8.
For all of the foregoing reasons, we find the PCRA court lacked jurisdiction to consider the merits of Appellant‘s PCRA petition and properly dismissed it as untimely filed. Accordingly, we affirm the PCRA court‘s January 6, 2016, Order.
Order affirmed.
Matthew R. Krupp, Department Counsel, Harrisburg, for respondent.
BEFORE: DAN PELLEGRINI, President Judge 1, MARY HANNAH LEAVITT, Judge 2, ANNE E. COVEY, Judge
OPINION BY JUDGE ANNE E. COVEY
Gregory G. Skotnicki (Skotnicki), pro se, petitions for review of the Pennsylvania Insurance Department (Department) Commissioner‘s (Commissioner) January 15, 2015 adjudication and order affirming Phoenix Insurance Company‘s (PIC) 3 cancellation of Homeowner‘s Insurance Policy No. 9926866966331 (New Policy) and concluding that there was no Unfair Insurance Practices Act (Act 205) 4 violation. Essentially, there are three issues for this Court‘s review: (1) whether substantial evidence supported the Commissioner‘s conclusion that PIC did not violate Act 205; (2) whether the Commissioner erred by permitting non-attorney Thomas McGilpin (McGilpin) to represent PIC; and, (3) whether the Commissioner erred by taking administrative notice post-hearing that the Department pre-approved PIC‘s cancellation notice form.
On April 22, 2014, PIC sent Skotnicki a notice that the Original Policy would not be renewed effective May 29, 2014 because “THERE IS A SUBSTANTIAL CHANGE OR INCREASE IN HAZARD IN THE RISK ASSUMED BY THE COMPANY SUBSEQUENT TO THE DATE THE POLICY WAS FIRST ISSUED, AS DESCRIBED BELOW: THERE IS AN ANIMAL OR PET THAT HAS BITTEN OR INJURED.” Skotnicki Amended Br. Ex. B.5 On April 30, 2014, Skotnicki requested that the Department‘s Bureau of Consumer Services (BCS) review PIC‘s non-renewal because the dog bite was provoked. On May 28, 2014, BCS issued an Investigative Report Order to PIC which stated:
It is our finding that [PIC] by its action, is in violation of Act 205. [Skotnicki] provides a narrative explaining how this dog bite occurred. [PIC] did not comment on the circumstances surrounding this bite in the response dated May 12, 2014.6 Our Department requested [PIC‘s] narrative and details of the claim on May 21, 2014 and to date we have no record of a response.
Based on [Skotnicki‘s] narrative[;] this appears to have been a provoked dog bite incident[.] As [PIC] has not justifiably proven any increase in hazard, [PIC] is directed to continue the [Original P]olicy with no lapse in coverage.
Please confirm the continuation of coverage to [Skotnicki] no later than ten (10) days from the date you receive this Investigative Report/Order.
R.R. at 20a (emphasis in original). Rather than continuing the Original Policy, PIC issued a New Policy because
due to system limitations, once a policy at [PIC] has been terminated for more than five days ... past the expiration date of a policy[,] there‘s no physical way to reinstate it. So instead we reissue a new policy, but in all respects, the new policy is not treated as new business[;] it‘s treated as a continuation.
R.R. at 71a-72a. PIC deems new policies issued in these circumstances effective without lapse. See R.R. at 72a.
On June 18, 2014, PIC sent Skotnicki notice of the New Policy‘s cancellation effective July 25, 2014 based again upon “A SUBSTANTIAL CHANGE OR INCREASE IN HAZARD IN THE RISK ASSUMED ... [due to a] pet on the residence premises that has exhibited dangerous propensities by biting a person without provocation.” R.R. at 6a, 13a. Skotnicki requested BCS’ review of the cancellation notice. In its July 14, 2014 Investigative Report, BCS stated: “Our investigation has determined that [PIC] met
Substantial Evidence
Skotnicki argues that substantial evidence did not support the Commissioner‘s conclusion that PIC properly cancelled the New Policy due to a substantial change in PIC‘s assumed risk resulting from an unprovoked dog bite. Act 205 prohibits persons in the insurance business from engaging in unfair or deceptive insurance practices. Nationwide Mut. Fire Ins. Co. v. Ins. Dep‘t, 4 A.3d 231 (Pa.Cmwlth.2010). Section 5(a)(9) of Act 205 defines “unfair or deceptive acts or practices” to include, in relevant part:
Cancelling any policy of insurance covering owner-occupied private residential properties ... that has been in force for sixty days or more or refusing to renew any such policy unless ... there has been a substantial change or increase in hazard in the risk assumed by the company subsequent to the date the policy was issued[.]
Skotnicki requested the Commissioner‘s review of PIC‘s non-renewal notice. BCS’ review included “the consumer[‘s unchallenged] narrative explaining how this dog bite occurred.” R.R. at 20a. The narrative consisted of Weiser‘s notes of Susan Skotnicki‘s July 25, 2013 interview, which reflect that the dog had never before shown aggression or bitten anyone, except on July 3, 2013. The interview notes provided, in pertinent part:
[Susan Skotnicki] was crossing the street, just about up at the curb and onto her property when the [neighbor] who had just moved into the neighborhood was taking a walk[,] so they struck up conversation. She stated he walked over to where they were ... when out of the blue he bit the [neighbor] in the back of the calf. She stated he didn‘t bark or growl, it was just sudden. She stated he took her by surprise as he‘s never done that before.
Skotnicki Amended Br. Ex. F at 1.8 BCS determined “[b]ased on [Susan Skotnicki‘s]
In response, PIC continued Skotnicki‘s coverage 9 and requested a formal administrative hearing. According to McGilpin, PIC ultimately withdrew its hearing request because the non-renewal notice was faulty and would not have withstood an Act 205 review because it did not expressly state that the dog bite was provoked and, “under Act 205[,] a dog bite alone is not sufficient to justify termination of a policy.” 10 R.R. at 74a.
PIC issued its New Policy cancellation notice because the bite occurred “without provocation,” and Skotnicki again requested review. R.R. at 6a. Six weeks after BCS originally declared that “[b]ased on the insured‘s narrative this appears to have been a provoked dog bite incident” and PIC had not “justifiably proven any increase in hazard,” R.R. at 20a, BCS held, without taking additional evidence, that since PIC “met the requirements of Act 205[,] ... [the] policy may be terminated.” R.R. at 22a. Skotnicki requested a formal hearing.
At the September 30, 2014 hearing, Weiser testified that when she took the July 25, 2013 statement, Susan Skotnicki did not specifically state that she or Skotnicki felt threatened by the neighbor when the dog bit him. When asked: “At any point did [Susan] Skotnicki indicate to you that the [neighbor] provoked the dog into biting him?” Weiser responded: “No.” R.R. at 61a. Weiser acknowledged that since the neighbor had counsel she did not speak directly to him about the dog bite, but she did not believe the neighbor would have supplied any more information than Susan Skotnicki already had. Weiser described that, based upon her investigation, PIC was fully liable for the neighbor‘s damages.
Susan Skotnicki agreed that the statement she gave Weiser does not reflect that the neighbor startled them prior to the dog bite. She explained:
Because in my view [‘out of the blue[‘] to me meant that I had no warning, you know. So, the dog was startled. I didn‘t really—hadn‘t really—. When I talked to her it was three weeks after and I figured that the dog was protecting me and all that, but I hadn‘t like put it together that—to use the proper term provoked or unprovoked. The truth is [the neighbor] walked towards us.
R.R. at 108a. She described that the neighbor, wearing sunglasses and a hat, was in the middle of the street and began walking toward her and Skotnicki striking up a conversation. Susan Skotnicki expounded:
[The neighbor] keeps coming and that was why the statement—I mean, I don‘t feel that my statement is—. I feel it‘s consistent with the provoked attack. I just stated the facts. That‘s what [‘Jout of the blue[‘] to me was, he startled the dog and the dog bit him. He was close enough to me, I couldn‘t tell you if he was one foot, two foot, that the leash never moved. I mean, he was in my area and the dog reached around. [The dog d]idn‘t have to like go too far.
R.R. at 110a-111a. She concluded: “I think that turn from the center of the road and direct brisk walk, you know, like towards me is what provoked [the dog] i[n] my opinion.” R.R. at 112a. Susan Skotnicki admitted that she did not tell Weiser that she felt threatened because she did not feel that way but, rather, “the dog did.” R.R. at 113a.
Skotnicki testified that as he and his wife were returning home from a short walk, the neighbor called out to them from the middle of the street and approached them “real quickly right into us” wearing a hat and sunglasses and, since they had not met the man before, he startled them and the dog. R.R. at 93a. He explained: “He encroached, you know, as a stranger. He just came into us abruptly and Sue and I were sort of startled because we don‘t know who this stranger is.” R.R. at 100a. When the ALJ asked: “Did he gesture in any way towards the dog, or you or Sue?” Skotnicki responded: “It was just a fast walk into him.” R.R. at 100a. Skotnicki described that “without any warning this guy‘s leg[‘]s right in front of [the dog] and [the dog] bit him once and that was it.” R.R. at 93a. Skotnicki declared that the neighbor‘s actions provoked the dog. He expressed that his testimony does not differ from his wife‘s July 25, 2013 statement to Weiser.
This Court has held:
Generally, substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Evidence becomes insubstantial only when it is clear that it is so inadequate and contradictory that an administrative finding based on it becomes mere conjecture. And, this Court must examine the testimony in the light most favorable to the party prevailing in the proceeding below and give that party the benefit of any inferences that can be logically and reasonably drawn from the evidence. Also, the [] Commissioner‘s determination of witness credibility is within [his] exclusive province as the finder of fact and is not subject to review by this Court.
Aegis, 798 A.2d at 333-34 (citations omitted).
Here, the Commissioner found that
[b]oth Skotnicki and his wife testified that their dog bit someone who simply walked rapidly up to them to begin a conversation on the side of a public street.... Even though the [neighbor] came close to the couple, the [Skotnickis] presented no evidence that he made any threatening gestures toward the dog or [Skotnicki‘s] wife.
R.R. at 162a. The Commissioner further stated that “neither [Skotnicki] nor his wife‘s description of the incident support th[e] argument” that the dog bite was provoked. R.R. at 162a. The Commissioner concluded, in pertinent part:
5. When an insurer relies upon an increase in hazard from the policy inception because the insured‘s dog allegedly bites someone, the insurer must establish either that the insureds had no dog at policy inception or did not have a dog with vicious propensities.
6. A single, unprovoked dog bite constitutes an increase in hazard when the
dog remains with the insured because there is an increase in potential liability if a second bite occurs.
7. Absent competent evidence of provocation, [PIC] has met its burden of establishing an increase in hazard as a result of the dog bite at issue in this case.
8. [PIC] satisfied its burden of proving compliance with Act 205.
R.R. at 168a-169a.
Based upon the Aegis Court‘s holding, whether a dog bite incident rises to the level of “a substantial increase in hazard” depends upon whether the dog was provoked. Id. at 334. “Provoke” is not defined in the context of this case. Thus, we look to dictionary definitions to ascertain the term‘s plain and ordinary meaning.11 According to Merriam-Webster‘s Collegiate Dictionary (11th ed. 2004), “provoke” means “to arouse to a feeling or action ... to incite to anger ... to call forth (as a feeling or action): EVOKE ... to stir up purposely ... to provide the needed stimulus for[.]” Id. at 1002. Black‘s Law Dictionary (9th ed. 2009) defines “provocation” as “the act of inciting another to do something ... Something (such as words or actions) that affects a person‘s reason and self-control[.]” Id. at 1346 (emphasis omitted).
In Aegis, the only case specifically applying the provocation standard under Act 205, this Court stated:
In applying th[e provocation] standard, the Commissioner previously found that such an increase did not exist where a dog bit a person who entered a property through a gate marked ‘Beware of Dog’ and ignored a sign instructing those who entered to ring a bell. In re White (Liberty Mut[.]), No. PH97-07-016 (Pa.Ins.Comm‘r, Dec. 30, 1997).5 An increase did not exist where a child was bitten when it approached a dog that had just been given its dinner where the dog had never before shown aggression.
In re Ranieli (White Hall Mut[.]), No. P94-11-030 (Pa.Ins.Comm‘r, Jan. 17, 1997). An increase did exist where the incident was the third in which a particular dog had bitten people. In re Witmyer (Lititz Mut[.]), No. P94-03-13 (Pa.Ins.Comm‘r, Oct. 31, 1995). And, an increase existed where a Rottweiler left its owners’ property, followed and viciously attacked a person. In re Wetzel & Bresinger (Charter Oak), PH96-09-019 (Pa. Ins. Comm‘r, June 30, 1998). The common thread that binds these cases is provocation. In the first two cases, where no increase in risk was found, the dogs were determined to have been provoked into attacking; in the second two, where an increase was found to exist, the dogs attacked without provocation.
We find the same thread of provocation when we examine the statute regulating dogs within our Commonwealth. Section 502-A of the Dog Law,6
The owner or keeper of the dog shall be guilty of the summary offense of harboring a dangerous dog if the [magisterial] district ju[dge] finds beyond a reasonable doubt that the following elements of the offense have been proven:
(1) The dog has done one or more of the following:
(i) Inflicted severe injury on a human being without provocation on public or private property.
(ii) Killed or inflicted severe injury on a domestic animal without provocation while off the owner‘s property.
(iii) Attacked a human being without provocation.
(iv) Been used in the commission of a crime.
(2) The dog has either or both of the following:
(i) A history of attacking human beings and/or domestic animals[, dogs or cats] without provocation.
(ii) A propensity to attack human beings and/or domestic animals[, dogs or cats] without provocation. A propensity to attack may be proven by a single incident of the conduct described in paragraph (1)(i), (ii), (iii) or (iv).
Our courts have determined dogs to be dangerous where a person who did not excite or provoke a dog in any way was attacked while walking away from it. Commonwealth v. Baldwin, 767 A.2d 644 (Pa.Cmwlth.2001). A dog was determined to be dangerous where it escaped from a house, ran into the street and attacked without provocation. Commonwealth v. Hake, 738 A.2d 46 (Pa.Cmwlth.1999).
In Aegis, Aegis cancelled Kelly Broschart‘s (Broschart) homeowners’ insurance policy because Broschart‘s dog‘s attack of a State Trooper constituted a substantial increase in hazard subsequent to their insurance policy‘s inception. On appeal, the Commissioner held that the cancellation violated Act 205 since the attack was provoked. Because the following substantial evidence supported the Commissioner‘s finding that the attack was provoked, this Court affirmed the Commissioner‘s decision:
[The State Trooper] had previously approached the Broschart house from the driveway without incident when [the dog] was present, that he approached the property on the day he was bitten in a way that [the dog] was not accustomed to seeing strange adults approach, and that he waved a hard leather portfolio in her direction when she got close to him.... [T]he record reflects that [the dog] was provoked when the trooper passed a ‘No Trespassing’ sign, appeared to [the dog] to be someone who did not belong, and made what [the dog] interpreted as a threatening gesture.
Id. at 334. The instant case presents none of the same or similar “provocation” indicia.
In Commonwealth v. Civello (Pa.Cmwlth. No. 1998 C.D. 2013, filed February 1, 2013), 12 a dog owner approached his
After a thorough review of the record, we conclude that substantial evidence supports the Commissioner‘s findings that the Skotnickis’ dog suddenly and without warning bit the neighbor who approached on a public street in a non-threatening manner, and that those findings support the Commissioner‘s conclusion that the Skotnickis’ dog attacked the neighbor without provocation. Accordingly, PIC properly cancelled the New Policy due to a substantial change in PIC‘s assumed risk.
Skotnicki also contends that the Commissioner impermissibly relied upon Weiser‘s hearsay testimony to determine that the dog bite was unprovoked. See Skotnicki Amended Br. at 25-26. The Department rejoins that Skotnicki failed to raise this issue before the Department and therefore it is waived. “Issues not raised before [the Department] are waived and may not be raised for the first time on appeal.
Notwithstanding, “[h]earsay is defined as a ‘statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted.’
Records of a Regularly Conducted Activity. A record (which includes a memorandum, report, or data compilation in any form) of an act, event or condition if,
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a ‘business‘, which term includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with
Rule 902(11) or(12) or with a statute permitting certification; and(E) neither the source of information nor other circumstances indicate a lack of trustworthiness.
A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
Thus, as in this case, where the record is clear that Weiser obtained and recorded Susan Skotnicki‘s statement near the time of the event, and then maintained it as part of PIC‘s dog bite claim investigation, see R.R. at 60a-63a, the circumstances justify a presumption of trustworthiness sufficient to offset the hearsay character of the evidence. See Paey Assocs. v. Pa. Liquor Control Bd., 78 A.3d 1187 (Pa.Cmwlth.2013). Therefore, we conclude that the narrative is not hearsay.
Moreover, “[i]t has long been established in this Commonwealth that hearsay evidence, properly objected to, is not competent evidence to support a finding of the [administrative agency], whether or not corroborated by other evidence.” Myers v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622, 625 (1993); see also Walker v. Unemployment Comp. Bd. of Review, 27 Pa.Cmwlth. 522, 367 A.2d 366 (1976). However, “[h]earsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding ... [i]f it is corroborated by any competent evidence in the record[.]” Id. at 370.
Here, it is clear that the Commissioner relied upon Weiser‘s testimony to authenticate her narrative of Susan Skotnicki‘s statement, and made his provocation determination based upon the narrative and the Skotnickis’ hearing testimony. Skotnicki made no hearsay objection to either Weiser‘s testimony or to the narrative‘s admission.14 The Skotnickis’ testimony corroborated Susan Skotnicki‘s statement to Weiser and Weiser‘s hearing
Skotnicki further claims that the Commissioner is bound by the May 28, 2014 Investigative Report Order in which BCS stated that the dog bite incident was provoked. Under
Further, Skotnicki‘s claim notwithstanding, the collateral estoppel doctrine does not apply in this case. The doctrine of collateral estoppel bars relitigation of an issue where a question of law or fact essential to a judgment was actually litigated and determined by a court of competent jurisdiction. Collateral estoppel applies only when the issue decided in the prior case and the issue presented in the current case are identical; there was a final judgment on the merits; the issue was essential to the judgment; the party against whom estoppel is asserted had a full and fair chance to litigate the merits; and the party against whom estoppel is asserted was a party or in privity with a party in the prior case. Foster v. Colonial Assur. Co., 668 A.2d 174, 180-81 (Pa.Cmwlth.1995) (citation omitted), aff‘d, 543 Pa. 626, 673 A.2d 922 (1996).
Application of the principle of collateral estoppel is not precluded merely because administrative proceedings are involved: when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the court will not hesitate to apply collateral estoppel principles. Christopher v. Council of Plymouth Twp., 160 Pa.Cmwlth. 670, 635 A.2d 749, 752 n. 2 (1993); see also Knox v. Pa. Bd. of Prob. & Parole, 138 Pa.Cmwlth. 344, 588 A.2d 79 (1991).
In this case, there is no dispute that the BCS reviews involved both PIC and Skotnicki, and that both parties had a full and fair opportunity to litigate PIC‘s termination of Skotnicki‘s homeowner‘s coverage following the July 3, 2013 dog bite incident. However, the decisions differed in that one action progressed only through a first-level BCS review, while the other was subjected to a de novo hearing at which additional evidence was accepted.16 Under
Contrary to Skotnicki‘s contention that the BCS’ May 28, 2014 Investigative Report Order was an adjudication, the BCS clearly stated therein: ”[B]e advised that this communication does not constitute an adjudication under the Administrative Agency Law.” 17 R.R. at 21a (emphasis in original). Certainly, if the Commissioner was bound by BCS’ investigative reports, the second-level de novo review afforded by
Non-Attorney Representative
Skotnicki also argues that the Commissioner erred by permitting McGilpin to represent PIC at the hearing. “It is well settled that with a few exceptions, non-attorneys may not represent parties before the Pennsylvania courts and most administrative agencies.” In re Estate of Rowley, 84 A.3d 337, 340 (Pa.Cmwlth.2013). Pennsylvania courts have more specifically held that corporations may not act pro se in court, and that non-attorneys may not represent them, regardless of the individual‘s status as the corporation‘s officer, director, shareholders or employee.18 See Estate of Rowley; Sklar v. Dep‘t of Health, 798 A.2d 268 (Pa.Cmwlth.2002); Spirit of the Avenger Ministries v. Commonwealth, 767 A.2d 1130 (Pa.Cmwlth.2001); Walacavage v. Excell 2000, Inc., 331 Pa.Super. 137, 480 A.2d 281 (1984).
“However, this rule is not without exceptions in the administrative agency arena.” Nolan v. Dep‘t of Pub. Welfare, 673 A.2d 414, 417 (Pa.Cmwlth.1995).
An individual may appear [o]n his own behalf. A ... bona fide officer of a corporation ... may represent the corporation.... Parties, except individuals appearing [o]n their own behalf, shall be represented in adversary proceedings only under
§ 31.22 (relating to appearance by attorney).
Here, because there is no record evidence that McGilpin was PIC‘s corporate officer, he could only represent PIC before the Department if the Department expressly permitted him to do so in this specific case, which it did. The Department‘s July 31, 2014 hearing notice stated: ”Each party may appear with or without counsel and offer relevant testimony and/or other relevant evidence.” R.R. at 26a (emphasis added). By September 25, 2014 letter, McGilpin notified the Department and Skotnicki, in compliance with
In reaching this conclusion, we are not persuaded by McGilpin‘s claim that he has attended Department hearings in this capacity many times before, or the ALJ‘s statement that the Department “permit[s] representatives of insurance companies to present testimony and evidence on behalf of the company without requiring legal representation.” 21 R.R. at 48a; see also R.R. at 47a-48a. Neither
Where an agency, acting pursuant to delegated legislative authority, seeks to establish a substantive rule creating a controlling standard of conduct, it must comply with the provisions of the Commonwealth Documents Law. [FN]7 That statute sets forth formal procedures for notice, comment and ultimate promulgation in connection with the making of rules that establish new law, rights or duties. Such substantive regulations,
[FN]7 Act of July 31, 1968, P.L. 769, No. 240 (current version at
Borough of Pottstown v. Pa. Mun. Ret. Bd., 551 Pa. 605, 712 A.2d 741, 743 (1998).
If the Department wishes to authorize non-attorney representation of insurance companies at its hearings, it must properly promulgate a regulation authorizing the same. Until such time, the Department is on notice that any general practice of “permit[ting] representatives of insurance companies to present testimony and evidence on behalf of the company without requiring legal representation” or representation by a corporate officer, is unlawful.22 R.R. at 48a.
Administrative Notice
Lastly, Skotnicki argues that the Commissioner erred by taking administrative notice post-hearing that the form PIC used to cancel the New Policy was Department-approved.
‘Official notice’ is the administrative counterpart of judicial notice and is the most significant exception to the exclusiveness of the record principle. The doctrine allows an agency to take official notice of facts which are obvious and notorious to an expert in the agency‘s field and those facts contained in reports and records in the agency‘s files, in addition to those facts which are obvious and notorious to the average person. Thus, official notice is a broader doctrine than is judicial notice and recognizes the special competence of the administrative agency in its particular
field and also recognizes that the agency is a storehouse of information on that field consisting of reports, case files, statistics and other data relevant to its work.
Ramos v. Pa. Bd. of Prob. & Parole, 954 A.2d 107, 110 (Pa.Cmwlth.2008) (emphasis added) (quoting Falasco v. Pa. Bd. of Prob. & Parole, 104 Pa.Cmwlth. 321, 521 A.2d 991, 995 n. 6 (1987)). Here, the Department‘s approval of PIC‘s cancellation notice form was within the Department‘s exclusive province; therefore, the Commissioner appropriately took official notice of that fact.
For all the above reasons, the Commissioner‘s adjudication and order is affirmed.
ORDER
AND NOW, this 17th day of August, 2016, the Pennsylvania Insurance Department Commissioner‘s January 15, 2015 adjudication and order is affirmed.
Notes
Id. at 1115 (quoting Bennett v. Unemployment Comp. Bd. of Review, 66 Pa.Cmwlth. 455, 445 A.2d 258, 259 (1982)). Although the law requires that the referee reasonably assist in development of the facts necessary to render a decision, “the referee is not required to become and should not assume the role of a claimant‘s advocate.” McFadden v. Unemployment Comp. Bd. of Review, 806 A.2d 955, 958 (Pa.Cmwlth.2002). “The referee need not advise an uncounseled claimant on specific evidentiary questions or points of law, nor need the referee show any greater deference to an uncounseled claimant than that afforded a claimant with an attorney.” Brennan v. Unemployment Comp. Bd. of Review, 87 Pa.Cmwlth. 265, 487 A.2d 73, 77 (1985) (citation omitted; emphasis added). Here, the Commissioner specifically asked Skotnicki: “Do you have any objection to the admission of Exhibit Number T-2 [Claim Information?]” Skotnicki replied: “Only to its accuracy, Your Honor.” R.R. at 82a.The referee has a responsibility ... to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits.
Each insurer shall file within 30 days of the effective date of this Chapter, with the Department, the names of its representatives who are to be notified in the event that an insured or an applicant requests the [] Department to review a cancellation or refusal to renew, involving that insurer.