Taylor v. Foster

561 A.2d 64, 127 Pa. Commw. 140, 1989 Pa. Commw. LEXIS 454
CourtCommonwealth Court of Pennsylvania
DecidedJune 28, 1989
DocketNo. 997 C.D. 1988
StatusPublished

This text of 561 A.2d 64 (Taylor 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
Taylor v. Foster, 561 A.2d 64, 127 Pa. Commw. 140, 1989 Pa. Commw. LEXIS 454 (Pa. Ct. App. 1989).

Opinion

COLINS, Judge.

Edward J. Taylor (Taylor) petitions for review of an order and adjudication of Constance B. Foster, Insurance Commissioner of the Commonwealth of Pennsylvania (Commissioner) dated March 28, 1988.1

The Commissioner found the following facts to be true. Taylor is a licensed insurance agent doing business as E.J. Taylor & Associates. During 1978, Taylor acquired Greens-burg X-Ray Associates (Greensburg) as a client, handling their pension and profit sharing plan. From 1978 to mid-1984, Taylor, under authority of Greensburg, invested monies collected from Greensburg in flexible annuity plans with various companies, including Fortune National Life Insurance Company (Fortune). However, between 1984 and 1986, Taylor without knowledge or consent of Greensburg, wrongfully diverted nearly two million dollars of its funds from Fortune to real estate development corporations in which Taylor had a financial interest. Taylor accomplished this by superimposing the signatures of either Walter D. Foster or John F. Wilson, both trustees of Greensburg, on to the withdrawal requests directing Fortune to transfer [142]*142monies to the unauthorized accounts. Taylor further concealed his wrongful activity by submitting financial reports to Greensburg falsely indicating that the funds received from Greensburg were properly deposited in the Fortune account.

The Commissioner issued an order to show cause against Taylor on July 31, 1987, charging him with numerous serious violations of the insurance laws based on his improper diversion of Greensburg’s money. A hearing was scheduled for November 4, 1987 to be held in Pittsburgh. On October 26, 1987, a prehearing conference was held in Harrisburg at which time Taylor’s counsel advised him that it intended to withdraw if certain attorney/client matters were not resolved. Specifically, if they did not receive a $5,000 retainer by Friday, October 30, 1987, they would withdraw from the case. Taylor failed to pay the retainer and, on November 2, 1987, counsel filed a motion to withdraw which was granted by the Commissioner the same day.

Taylor failed to secure new counsel and did not inform the Insurance Department Hearing Officer of the situation until 9:30 P.M. November 3, 1987, the night before the scheduled hearing. Further, he waited until the start of the hearing on November 4, 1987 to request a continuance to provide him with additional time to raise funds to obtain new counsel and prepare his case. The presiding officer objected to Taylor’s request, asserting that he had an opportunity to request a continuance days before the hearing and that several witnesses traveled considerable distances to be at the Pittsburgh hearing.2 Taylor’s request was denied and the hearing commenced. Taylor presented no evidence on his behalf and asked few questions when given the opportunity to cross examine the Insurance Department’s witnesses.

[143]*143The Commissioner in her order and adjudication dated March 28, 1988, concluded that the presiding officer did not abuse his discretion by denying petitioner’s eleventh hour request to continue the hearing. She stated in her discussion:

[although the Commissioner is reluctant to proceed in these instances where an individual charged with violations of insurance laws has been unable to retain counsel, the hearing process cannot be held hostage to that individual’s financial distress. To do so would allow agents to indefinitely delay revocation proceedings while retaining their agent’s license.

The Commissioner found Taylor guilty of violating several insurance laws by his intentional misconduct, such that would disqualify an agent from the initial issuance of a license under Section 603 of the Insurance Department Act of 1921, Act of May 17, 1921, P.L. 789, as amended, 40 P.S. § 233; the issuance of false financial reports by an agent to his client in violation of Section 5(a)(l)(iv) and 5(a)(2) of the Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589, as amended, 40 P.S. §§ 1171.5(a)(l)(iv) and 1171.5(a)(2); unauthorized withdrawals of funds belonging to Greens-burg from its account with Fortune and the conversion of the funds to his own use which constitutes larceny by an agent in violation of Section 633 of the Insurance Department Act of 1921, 40 P.S. § 273; and, commingling of funds received by him as an agent with other funds held by him in violation of Section 633.1 of the Insurance Department Act of 1921, 40 P.S. § 273.1 and 31 Pa.Code § 31.31.

The Commissioner ordered all insurance licenses held by Taylor and/or E.J. Taylor & Associates revoked and assessed civil penalties against Taylor totaling $60,000 to be paid no later than thirty days from the date of the order to the Commonwealth of Pennsylvania. Taylor petitioned for reconsideration which was denied by the Commissioner by order dated April 15, 1988. Taylor then submitted application for administrative relief requesting postponement of payment of the fine pending his appeal before this Court. [144]*144The Commissioner, by order dated June 2, 1988, granted Taylor’s application for a stay of the imposition of civil penalties only, stating that in all other respects the March 28, 1988 order remains in full force and effect.

Taylor argues that the presiding officer at the November 4, 1987 hearing erred in denying him a continuance. Preliminarily, we note that the decision to grant or deny a request for a continuance is within the discretion of the hearing officer. Lee v. Department of Public Welfare, 105 Pa.Commonwealth Ct. 211, 523 A.2d 1188 (1987). This Court’s review of that decision is limited to determining whether or not the hearing officer abused his discretion in doing so. Id.

In reviewing a denial of continuance, this Court has considered factors such as whether the rights of one of the parties were prejudiced or whether the interest of justice had been furthered. For instance, in Cotter v. State Civil Service Commission, 6 Pa.Commonwealth Ct. 498, 297 A.2d 176 (1972), this Court held that the denial of a continuance was an abuse of discretion because the denial was not in the interests of justice. Cotter is distinguishable from the instant matter since there a hardship clearly existed on the part of the party seeking the continuance. Specifically, appellant there was forced to choose between testifying at the Commission hearing or retaining his privilege against self-incrimination at a concurrent criminal proceeding.

Also, in Kaplan v. State Civil Service Commission, 13 Pa.Commonwealth Ct. 29, 317 A.2d 683 (1974), this Court stated:

[although we are of the opinion that an unrepresented party is generally at a disadvantage, we find that the Commission’s refusal to grant Mrs. Kaplan a continuance, taking into consideration the fact that Mrs. Kaplan had been given ample time to obtain counsel and that her predicament resulted from the fact that she did not do so [145]*145until less than a week before the hearing, was not a clear abuse of discretion.

Id., 13 Pa.Commonwealth Ct. at 32, 317 A.2d at 685.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cotter v. State Civil Service Commission
297 A.2d 176 (Commonwealth Court of Pennsylvania, 1972)
Kaplan v. Commonwealth
317 A.2d 683 (Commonwealth Court of Pennsylvania, 1974)
Steadwell v. Commonwealth, Unemployment Compensation Board of Review
463 A.2d 1298 (Commonwealth Court of Pennsylvania, 1983)
Lee v. Commonwealth
523 A.2d 1188 (Commonwealth Court of Pennsylvania, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
561 A.2d 64, 127 Pa. Commw. 140, 1989 Pa. Commw. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-foster-pacommwct-1989.