50 Pa. Commw. 456 | Pa. Commw. Ct. | 1980
Opinion by
This is a sequel to, if not indeed a reprise of, Neff v. Commonwealth of Pennsylvania, Insurance Department, 42 Pa. Commonwealth Ct. 333, 400 A.2d 920 (1979), where we held that the Insurance Commissioner of Pennsylvania had not erred in refusing the application of Herbert and Lawrence Neff on behalf of Gibraltar Life Insurance Company that Gibraltar’s suspension from the transaction of business in Pennsylvania be lifted because the Neffs had failed to effect a plan for rehabilitation of Old Heritage Mutual Insurance Company, also controlled by them, as promised in the Neffs’ acquisition statement upon which the Commissioner’s approval of their acquisition of Gibraltar had been based.
Our order in the case just cited was made April 30, 1979. The instant action was begun on July 24,1979 by the filing of Gibraltar’s petition for Review in this
The relief sought by Gibraltar in this proceeding is that we vacate the order suspending Gibraltar’s authority to transact business, the same subject as that
The respondents have interposed a battery of preliminary objections to the Petition for Review, including one based on the doctrine of res judicata and another in the nature of a demurrer. The petitioners have not objected that res j%hdicata has been interposed as a preliminary objection rather than as an affirmative defense, and in the interest of judicial economy we will entertain the merits of the defense of res judicata. The parties, the thing sued for, the cause of action and the capacity of the parties are the same here as they were in Neff v. Commonwealth of Pennsylvania, Insurcmce Department, supra, and this action in its aspect as a request for us to vacate the order of suspension is barred by res judicata.
The Petition for Review does not state a cause of action for our setting forth, or for the Insurance Commissioner’s being required to set forth, specific requirements and conditions for Gibraltar’s suspension to be lifted. The Insurance Commissioner’s letter of June 5, 1979 to Gibraltar states the condition for this action as “the matters concerning Old Heritage Mutual Insurance Company” — a subject extensively explored in the case which had just ended in this court.
We are aware that after the filing of the Petition for Review in this case, we granted the Insurance
The respondents’ preliminary objections raising the defense of res judicata and in the nature of a demurrer are sustained; and the Petition for Review is dismissed.
Order
And Now, this 11th day of April, 1980, the respondents’ preliminary objections raising the defense of res judicata and in the nature of a demurrer are sustained ; and the Petition for Review is dismissed.