42 Pa. Commw. 270 | Pa. Commw. Ct. | 1979
Opinion by
This is a case of first impression involving the interpretation and application of Sections 3 and 4 of the Act of December 10, 1970, P.L. 884 (Act), 40 P.S. §§1010.3-.4, which regulate the conditions under which the Insurance Commissioner (Commissioner) may approve the conversion of a mutual insurance company
Section 3 of the Act provides that any mutual insurance company intending to convert to a stock company must file with the Commissioner a plan of conversion containing, inter alia, a list of “owners” as that term is defined in Section 1, 40 P.S. §1010.1. Section 4 of the Act provides as follows:
The commissioner after making an examination of the company and holding a hearing shall determine whether or not:
(1) The plan of conversion filed pursuant to section 3 of this act is fair to the owners and creditors of the company and complies with the requirements of said section 3; and
(2) He has any reason to believe that after such conversion the company will not continue to comply in all respects with the laws and regulations of this Commonwealth governing insurance.
The commissioner shall notify the company of his determination.1
At the hearing held on Frankford’s conversion pursuant to Section 4, Samuel Zinman (Zinman), a former member and director, and an alleged “owner,” of Frankford was granted permission to intervene and contest the conversion. Zinman contended that
With regard to Zinman’s first contention, the evidence fully supports the Commissioner’s finding that all of the outstanding certificates issued pursuant to Section 809 of the Insurance Law are owned by a corporation of which Zinman is a one-third owner. Zinman himself testified that he had never even seen the certificates and did not know their location.
Zinman’s second contention, that there is reason to believe that Frankford will not continue to comply with the law, is somewhat more difficult. Zinman presented uncontradicted evidence that in 1970 his signature was forged on two documents entitled “Waiver of Notice” which purported to waive the notice requirements of Section 304 of the Insurance Law, 40 P.S. §424, relative to annual meeting of stockholders or members. The original minutes of the meetings to which these two documents referred indicated that Zinman was present at the meetings, but Zinman testified that he had not in fact been present. Zinman further testified that the waivers of notice and the original minutes were subsequently removed by a person or persons unknown and replaced with new
■ In addition, Frankford admitted the interest payments for the years 1973 and 1974 were made without the approval of the Commissioner, in violation of Section 809 of the Insurance Law.
The Commissioner, in his decision ignored the alleged forgeries and the removal and substitution of company records. Instead, he relied upon documents apparently attached to Frankford’s posthearing brief to find that the property sold to the two directors had been sold for its fair value. It is of course, fundamental that matters- attached to or contained in briefs are not evidence and cannot be considered part of the record either before an administrative agency or on appeal. See, e.g., Pennsylvania Labor Relations Board v. State Liquor Control Board, 28 Pa. Commonwealth Ct. 145, 367 A.2d 805 (1977); Department of Transportation, Bureau of Traffic Safety v. Shisslak, 12 Pa. Commonwealth Ct. 168, 316 A.2d 684 (1974). Zinman had no opportunity to respond to these documents or to offer evidence in rebuttal, and we are unable to review items which are not part of the record to ascertain the correctness of the Commissioner’s decision.
We do not mean to suggest that facts alleged by Zinman, even if true, would necessarily require the Commissioner to disapprove the conversion. The Commissioner, in making a determination under Section 4, must exercise discretion in determining wheth
Order
And Now, this 25th day of April, 1979, the order of the Insurance Commissioner dated October 3, 1977, approving the Plan of Conversion of Frankford Union Mutual Insurance Company, is hereby vacated, and the record is remanded for further proceedings and disposition not inconsistent with this opinion.
Hearings held pursuant to Section 4 must be conducted in accordance with the Administrative Agency Law, 2 Pa. C.S. §501 et seq. Section 6 of the Act, 40 P.S. §1010.6.