Insurance Adjustment Bureau v. Insurance Commissioner
485 A.2d 858
Pa. Commw. Ct.
1984
Check Treatment

Opinion by

Judge Blatt,

Thе Insurance Adjustment Bureau (petitioner) has filed a petition for review addressed to our Court’s original jurisdiction, seeking a declaratory judgment and injunctive relief against the Insurance Commissioner for the Commonwealth of Pennsylvania (respondent). The petitioner seeks to have the second and third sentences of Section 5(a) of the Act of December 20, 1983 (Act), P.L. 260, 63 P.S. §1605(a) declared unconstitutionаl as violative of its right to equal protection and to freedom of speech, and asks this Court to permanently enjoin1 the Commissioner from enforcing those portions of the Act. Presently *493before us for disposition is the Commissioner’s preliminary objection, in the form оf a demurrer, to the petitioner’s complaint.

It is well established that for purposes of determining preliminary objections in the form оf a demurrer, the Court must accept as true all well-pleaded facts and reasonable inferences which may be deduced therefrom, but not conclusions of law. Moyer v. Davis, 67 Pa. Commonwealth Ct. 251, 466 A.2d 1355 (1982), aff’d, 501 Pa. 192, 460 A.2d 754 (1983). It is also true that a demurrer may not be sustained unless the face of the complaint shows that thе ‍‌​​‌​‌‌​‌‌​​​‌‌​​​​‌​​​‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‍law will not permit recovery, and that any doubt should be resolved in favor of overruling the demurrer. Association of Pennsylvania State Cоlleges and University Faculties v. Commonwealth, 44 Pa. Commonwealth Ct. 193, 403 A.2d 1031 (1979). And, of course, in ruling on a demurrer a court may not consider facts not disclosed in the record. Wells v. Pittsburgh Board of Public Education, 31 Pa. Commonwealth Ct. 1, 374 A.2d 1009 (1977).

The pertinent portions of the Act referred to in the complaint provide that:

No public adjustor or public adjustor solicitor shall solicit a client for employment within 24 hours of a fire or other catastrophe or occurrence which is the basis of the solicitation. With respect to a fire, the 24-hour period shall begin at such time as the fire department in charge determines thаt the fire is extinguished.

63 P.S. §1605(a).

The complaint states that the respondent is charged with enforcing the provisions of the Act and that the petitiоner is a public adjuster, ‍‌​​‌​‌‌​‌‌​​​‌‌​​​​‌​​​‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‍employs solicitors, and that it has customarily been the practice of the petitioner to obtain so much of its business in the man*494ner proscribed by tbe Act that the petitioner will no longer be able to conduct its business if the subject provisions are given effect. The complaint alleges that other trades and businesses which solicit employment and business from insureds following fires and other catastrophes are not likewise limited by the Act or by any other statute from soliciting business from insureds during the period following such occurrences. It further alleges that the Act places no such solicitation prohibition upon adjusters employed by and on bеhalf of insurance companies. The petitioner alleges that these facts establish the alleged violations of its constitutional rights.

In support of its demurrer, the respondent asserts, inter alia, that the class of public adjusters is sufficiently dissimilar from the other trades or businesses to which the petitioner compares itself in its complaint so as not to implicate the equal protection clauses of either the Pennsylvania Constitution or the United States Constitution.2 The proffered distinctions are, of course, factual contentions, the veracity of which may be readily determined аt trial, but not, however, on the basis of a demurrer at the preliminary objection stage. We noted earlier that we are limited to considering facts of record in determining preliminary objections in the form of a demurrer. We will not, therefore, accept the rеspondent’s contentions in this regard.

Nor may we use judicial notice to accept the distinctions advanced in support of thе demurrer, as *495the respondent appears to suggest. We are severely limited as to ‍‌​​‌​‌‌​‌‌​​​‌‌​​​​‌​​​‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‍facts of which we may take judicial notiсe, as indicated in Wells v. Pittsburgh Board of Public Education, 31 Pa. Commonwealth Ct. 1, 374 A.2d 1009 (1977), where we deemed it inappropriate for a court to take judicial notice of the impossibility of оperating a public school during a union-sanctioned strike. Judicial notice is intended to avoid the formal introduction of evidenсe in limited circumstances where the fact sought to be proved is so well known that evidence in support thereof is unnecessary, but should not be used to deprive an adverse party of the opportunity to disprove the fact. Id. at 5, 374 A.2d at 1011.

The composition and qualities of the subject classes here necessarily involve resolution of disputed factual issues, and we are mindful of earlier decisiоns where we observed that a case is not tried at the preliminary objection phase of litigation. General State Authority v. Sutter Corp., 69 Pa. Commonwealth Ct. 504, 452 A.2d 75 (1982). It would be inappropriаte, therefore, to, in effect, dismiss this matter at this early stage, based upon the respondent’s representations concerning thе composition of the subject classes.

Declaratory judgment is available to determine validity of statutes pursuant to Sectiоns 7532 and 7533 of the Declaratory Judgments Act, 42 Pa. C. S. §§7532-7533. We are satisfied that the petitioner has pled facts which may, at the least, state a cause of action for violation of its right to equal protection. Inasmuch as there appears to be no apрropriate remedy at law to correct the asserted illegality, moreover, it appears that the petitioner may bе entitled to relief in equity. See Cedarbrook Realty, Inc. v. Nahill, 484 Pa. 441, 399 A.2d 374 (1979). Having determined that the petitioner ‍‌​​‌​‌‌​‌‌​​​‌‌​​​​‌​​​‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‍has stated a viable cause *496of action, we will, accordingly, ovеrrule the respondent’s preliminary objection in the form of a demurrer. Zemprelli v. Thornburgh, 73 Pa. Commonwealth Ct. 101, 457 A.2d 1326 (1983).

Order

And Now, this 20th day of December, 1984, the respondent’s preliminary objеction in the above-captioned matter is overruled, and the respondent is directed to file an answer to the petitionеr’s Complaint and Petition for Review within thirty (30) days of the date of this order.

Notes

On April 26, 1984, the petitioner was granted a preliminary injunction by Judge Barbieri of this Court, enjoining the respondent from administering and enforcing the provisions of the Act involved in this action. A preliminary injunction was also issued by Judge Williams on January 18, 1984, in a related case challenging the same provisions of the Act insofar as they apply to solicitation concerning non-residential properties. See Young Adjustment Company v. The Insurance Commissioner, No. 3642 C.D. 1983 (Pa. Cmwlth. Jan. 18, 1984) (order granting preliminary injunction) .

The respondent’s other arguments in suppоrt of its demurrer are to the effect that there is a rational basis for the distinctions made within the Act, that the provisions are not vaguе, and that the Act’s prohibitions are a ‍‌​​‌​‌‌​‌‌​​​‌‌​​​​‌​​​‌​‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌​​​‌‌‌‍permissible regulation of commercial speech. These contentions, of coursе, go to the merits of the controversy, and are not appropriate for consideration here, where the inquiry is whether any valid claim has been alleged.