Pennsylvania Ass'n of Independent Insurance Agents v. Foster

616 A.2d 100, 150 Pa. Commw. 572, 1992 Pa. Commw. LEXIS 611
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 23, 1992
DocketNos. 230 M.D. 1991 and 1591 C.D. 1991
StatusPublished
Cited by10 cases

This text of 616 A.2d 100 (Pennsylvania Ass'n of Independent Insurance Agents v. Foster) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania Ass'n of Independent Insurance Agents v. Foster, 616 A.2d 100, 150 Pa. Commw. 572, 1992 Pa. Commw. LEXIS 611 (Pa. Ct. App. 1992).

Opinion

KELLEY, Judge.

In December of 1984, the Pennsylvania Insurance Department (department) issued an order to show cause, alleging that the United Services Automobile Association et al. (USAA)1 had violated section 641(b) of The Insurance Department Act of 1921 (Act)2 which prohibits savings and loan holding companies from selling insurance in Pennsylvania.

USAA is a company which owns a savings and loan in Texas and also owns subsidiaries which sell insurance in Pennsylvania. The Pennsylvania Association of Independent Insurance Agents et al. (PAIIA)3 intervened in the administrative proceeding begun by the order to show cause.

Previous to the order to show cause being issued, USAA had filed an action in federal district court (district court) alleging that enforcement of section 641 would be unconstitutional. In July of 1986, while the federal court litigation was pending, the district court enjoined the administrative action. The district court allowed PAIIA to also intervene in the litigation.

In March of 1991, PAIIA learned through a status report in the federal litigation that USAA and the department had [575]*575approved a proposed settlement agreement to end the administrative proceeding before the department. The terms of the agreement allow USAA to continue selling insurance in this state as long as its banking subsidiary does not solicit or accept deposits or make loans here. The department and USAA executed the agreement on May 7, 1991, and PAIIA filed objections to the agreement. Without allowing PAIIA to brief its objections, the Insurance Commissioner approved the agreement and PAIIA filed the present appeal. USAA has intervened and filed a motion to quash the appeal from the Commissioner’s approval.

PAIIA also filed a petition for review in this court’s original jurisdiction seeking a declaratory judgment that the agreement is contrary to law. The department, and USAA intervened and have filed preliminary objections in the declaratory judgment action. The appeal from the approval of the settlement agreement and the declaratory judgment action have been consolidated (230 M.D.1991 and 1591 C.D.1991). Presently before the court are the preliminary objections, the motion to quash, and the merits of the appeal.

MOTION TO QUASH

Initially, we shall address USAA’s motion to quash the appeal from the Commissioner’s order. USAA argues that the settlement of the administrative action is not an adjudication and that PAIIA lacks standing to appeal. We shall address these arguments seriately.

While the first section of USAA’s brief in support of its motion is ostensibly directed to the proposition that the settlement agreement is not an adjudication, the substance of that section is addressed to the argument that the settlement agreement is nothing more than the exercise of the department’s discretion to enforce the statute, that PAIIA cannot compel the department to enforce the statute, and that there is no private right of action to enforce the statute. USAA argues that the exercise of an agency’s prosecutorial discretion whether to pursue an enforcement action is not adjudicatory in nature. For this proposition, USAA relies on In re [576]*576Frawley v. Downing, 26 Pa.Commonwealth Ct. 517, 364 A.2d 748 (1976), in which we held that a letter to an individual from the Bureau of Professional and Occupational Affairs declining to pursue that individual’s sworn complaint against certain medical professionals was not an adjudication. The facts of the present case are distinguishable in that the department itself began the enforcement action and then ended that action by issuing an order approving a settlement agreement.

PAIIA cites Department of Health v. Rehab Hospital Services, 127 Pa.Commonwealth Ct. 185, 561 A.2d 342 (1989), petition for allowance of appeal denied, 525 Pa. 607, 575 A.2d 571 (1990), where this court held that a settlement between the Department of Health and a private party as to an application for a certifícate of need was reviewable as an adjudication. Review in that case was sought by an intervening competitor. Rehab Hospital Services is much more analogous to the present case and reflects the current state of the law.

Furthermore, the definition of “adjudication” under the Administrative Agency Law includes “any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made.” 2 Pa.C.S. § 101. The purpose of section 641(b) of the Act is to protect independent insurance companies. Central Mortgage Co. v. Insurance Department, 100 Pa.Commonwealth Ct. 233, 514 A.2d 956 (1986), aff'd, 517 Pa. 64, 534 A.2d 759 (1987). This purpose is set out in section 641(c) which reads:

(c) The Insurance Commissioner is authorized to promulgate regulations in order to effectuate the purposes of this section, which are to help maintain the separation between lending institutions and public utilities and the insurance business and to minimize the possibilities of unfair competitive practices by lending institutions and public utilities against insurance companies, agents and brokers.

The statute thus creates a property right for independent insurance companies to be protected from the unfair competí[577]*577tion of lending institutions selling insurance. Because PAIIA maintains that it will be subject to unfair competition from USAA as a result of the settlement order, we hold that the order is an appealable adjudication.

With respect to standing, USAA argues that PAIIA lacks standing because there was no direct injury to PAIIA shown in the record and that the claims of injury are too remote because the agents which belong to PAIIA merely market the insurance and do not underwrite the insurance. USAA cites Central Storage & Transfer Co. of Harrisburg v. Pennsylvania Public Utility Commission, 82 Pa.Commonwealth Ct. 21, 477 A.2d 568 (1984), for the proposition that PAIIA must suffer actual injury to gain standing. Central Storage does not stand for this proposition. In that case this court concluded that motor carriers did not have standing to appeal the Public Utility Commission’s modification of its standards for adjudicating motor carrier applications because the motor carriers’ allegations of injury were too speculative. The court did not state that actual injury was required, but that there must be a likelihood of immediate harm. The fact that USAA is already selling insurance in Pennsylvania demonstrates that PAIIA has already lost potential customers to a competitor which it claims is selling insurance in violation of statutory law. The financial interests of a competitor may constitute an interest necessary to confer standing. Pennsylvania Automotive Association v.

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PA. INDEP. INS. AGENTS v. Foster
616 A.2d 100 (Commonwealth Court of Pennsylvania, 1992)

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Bluebook (online)
616 A.2d 100, 150 Pa. Commw. 572, 1992 Pa. Commw. LEXIS 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-assn-of-independent-insurance-agents-v-foster-pacommwct-1992.