50 Pa. Commw. 204 | Pa. Commw. Ct. | 1980
Opinion by
The Pennsylvania State Association of Township Supervisors (Association), a statutorily authorized association of governments of townships of the second class in Pennsylvania,
On June 28, 1978, the Bureau filed proposed rates requesting a rate increase of 35.3 per cent for workmen’s compensation insurance premiums. Notice of the filing was published at 8 Pa. B. 1963 (1978). The filing was amended on August 9, 1978 to reduce the premium increase requested to 34.9 per cent. Notice of the amended filing was given at 8 Pa. B. 2326 (1978). The monetary amount of the proposed increase was $244,900,000. A formal rate hearing was scheduled to begin before Hearing Examiner Albert' J. Strohecker, III on August 29, 1978. Numerous Petitions for Intervention, including one by the Association, were filed by employers who would be affected by the proposed rate increase. Before the final order was entered by the Commissioner, all Intervenors, with the exception of the Association, had withdrawn
Before addressing the Association’s arguments, we must consider the Bureau’s contention that the Association “failed to exhaust its administrative remedies” and, therefore, is entitled to no judicial relief, in essence, the Bureau argues that by failing to make appropriate motions and objections before the Hearing Examiner, by playing a limited role in the hearings, and by failing to file a brief before the Commissioner, the Association has waived the issues it now raises in this appeal. The Bureau’s contention is arguably meritorious as to the commingling issue but because, of the circumstances evident on the record, we choose to decide the issue on its merits.
The issue of an impermissible commingling of functions was first raised orally by counsel for Intervenor Pennsylvania Builders Association (PBA). At that time, the Association orally joined PBA’s objection. The Hearing Examiner instructed PBA to make its
The Association asserts that its due process rights were violated because both the Hearing Examiner presiding over these rate proceedings and counsel representing the Department in the proceedings were under the supervision of the Department’s Chief Counsel. The Association argues that this represents a commingling of prosecutorial and judicial functions such as was condemned by the decisions in Department of Insurance v. American Bankers Insurance Co. of Florida, 26 Pa. Commonwealth Ct. 189, 363 A.2d 874 (1976), aff’d, 478 Pa. 532, 387 A.2d 449 (1978). There are two flaws in the Association’s argument.
First, the American Bankers case and other cases dealing with the commingling question actually involved a situation where a prosecution occurred, that is, where there was an alleged violation of a law or regulation.
The sole purpose for the hearing in this case was to gather evidence to he considered by the Commissioner in determining whether the proposed workmen’s compensation insurance premium rates were inadequate or unfairly discriminatory. By definition then, it was an investigatory rather than an adjudicatory proceeding. The statement of counsel for the Department that he was “sitting as the proponent of the Insurance Department’s cause in this particular matter” does not change the complexion of the proceeding. It merely indicates that he represented the Department, whatever its position on the rates would be. He was not acting in a prosecutorial manner and the Hearing Examiner, whose function was to preside over the hearings and make a record for the Commissioner, was not acting in an adjudicatory manner. The decisions in American Bankers and other cases involving commingling, then, are inapposite to the facts before us.
Even if this were a proper case for the consideration of the commingling issue, we would find no error here. It is not a per se violation of due process for two persons from the same agency or department to appear in different roles in the same proceeding. Such a situation does not constitute an unfair tribunal so long as the functions performed by the two are adequately separated. Berman v. Pennsylvania State Police, 37 Pa. Commonwealth Ct. 559, 564, 391 A.2d 715, 718 (1978). See also Tighe v. State Board of Nurse Ex
The Association next argues that the Commissioner ’s review of the proposed rate filing was inadequate and insufficient under the requirements of Section 654 of the Act and Article II, Section 1 of the Constitution of Pennsylvania.
The Association in its brief does not challenge any of the Commissioner’s detailed findings of fact or conclusions of law, nor does it refer to evidence which the Commissioner might have considered and did not or should not have considered but did. Instead, the Association attacks the Commissioner for allegedly being unduly influenced by the Bureau (which, it asserts, is “well staffed, well funded, and extremely effective in pursuing the best economic interests of the companies that it represents”) and the Department’s witness for lacking the time, energy, and experience to advise the Commissioner on these proceedings. Neither of these allegations is supported on the record. As our Superior Court said in Pennsylvania Insurance Department v. Philadelphia, 196 Pa. Superior Ct. 221, 243, 173 A.2d 811, 822 (1961), “An examination of the record leaves no doubt that the commissioner fully performed his duty in this case by carefully examining the record, making findings thereon, discussing the evidence and making conclusions of law.” We see no evidentiary basis for disturbing the Commissioner’s order here.
Finally, the Association argues that the procedures by which the Bureau proposes and the Commissioner approves insurance premium rates violate the constitutional prohibition against the nondelegation of the legislative function found in Article II, Section I of the Constitution of Pennsylvania and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Clearly, they do not.
The Association’s argument that there has been an unconstitutional delegation of legislative power to the Bureau is totally without merit. In the context of this case, the Bureau’s function, by the terms of Section 654 of the Act, is to annually propose premium rates for workmen’s compensation insurance. The approval of such rates is solely within the power of the Commissioner. As Judge Mencer wrote in Longwood Villa Nursing and Convalescent Home Appeal, 26 Pa. Commonwealth Ct. 620, 623-24, 364 A.2d 976, 978 (1976), a case challenging the Bureau’s authority to propose rate classifications, “A classification vesting in private persons the power to participate in administrative actions need not be constitutionally defective where the administrative function, as here, has been properly delegated. ’ ’ (Emphasis added.)
The only remaining question, then, is whether the administrative function was properly delegated to the Commissioner, that is, whether the legislature established adequate standards by which to guide the Com
Insurance rate making is a technical, complicated and involved procedure carried on by trained men. It is not an exact science. Judgment based upon a thorough knowledge of the problem must be applied. Courts cannot abdicate their duty to examine the evidence and the adjudication, and to interpret and apply the law, but they must recognize the value of the judgment of an Insurance Commissioner who is specializing in the field of insurance and the efficacy of an adjudication supported by evidence of experts who devoted a lifetime of service to rate making.
After considering the complex nature of insurance rate making, the standards to guide the Commissioner as set forth in Section 654, and the purpose and effect of the Act, we hold that Section 654 does not constitute an unconsitutional delegation of legislative power.
Order
And Now, this 19th day of March, 1980, the Order of the Insurance Commissioner with respect to Workmen’s Compensation Proposal C-211, dated November 28,1978, is affirmed.
Section 610 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §65610, authorizes the formation of the State Association of Township Supervisors.
Subsequent to oral argument on this appeal, the Bureau filed a motion to dismiss alleging that the case was moot. It based its petition on an order entered by the Commissioner on October 3, 1979 which, inter alia, modified the premium rates set in the order at issue here. The Association joined in the settlement agreement supporting the order. We do not agree that the order from which the Association appealed is moot. First, we note that the October, 1979 order merely modifies the prior order effective October 1, 1979. It does not affect the premium rate retroactively as could happen were we to decide in the Association’s favor here. Furthermore, paragraph 8 of the October, 1979 order specifically states that the settlement “is without prejudice to any party in the matter being litigated at 2951 Commonwealth Docket 1978.” The issues presented to us are not moot and we will decide them on their merits.
We caution counsel that they are responsible for making proper objections and raising issues at the appropriate times in all proceedings and that we are not inclined to disregard the Court’s waiver rules or to allow such appeals except in extraordinary cases.
See, e.g., Romano v. Pennsylvania Insurance Commissioner, 45 Pa. Commonwealth Ct. 19, 404 A.2d 758 (1979) (violation of insurance law) ; Tighe v. State Board of Nurse Examiners, 40 Pa.
Hearing Examiner Strohecker stated that he believed he was under the equal control of the Chief Counsel for the Department and the Attorney General. There was some dispute on the record as to whether he was supervised by the Attorney General.
The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.