G.G. Skotnicki v. Insurance Department ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory G. Skotnicki, :
Petitioner :
:
v. :
:
Insurance Department, : No. 156 C.D. 2015
Respondent : Submitted: July 31, 2015
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE COVEY FILED: August 17, 2016
Gregory G. Skotnicki (Skotnicki), pro se, petitions for review of the
Pennsylvania Insurance Department (Department) Commissioner’s (Commissioner)
January 15, 2015 adjudication and order affirming Phoenix Insurance Company’s
(PIC)3 cancellation of Homeowner’s Insurance Policy No. 9926866966331 (New
Policy) and concluding that there was no Unfair Insurance Practices Act (Act 205)
violation.4 Essentially, there are three issues for this Court’s review: (1) whether
substantial evidence supported the Commissioner’s conclusion that PIC did not
violate Act 205; (2) whether the Commissioner erred by permitting non-attorney
Thomas McGilpin (McGilpin) to represent PIC; and, (3) whether the Commissioner
1
This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
3
The Commissioner explained that PIC “is part of the Travelers Insurance Group[.]”
Department Adj. at 1; Reproduced Record (R.R.) at 157a.
4
Act of July 22, 1974, P.L. 589, as amended, 40 P.S. §§ 1171.1-1171.15.
erred by taking administrative notice post-hearing that the Department pre-approved
PIC’s cancellation notice form.
Skotnicki owns real property located at 400 Brentwater Road, Camp
Hill, Pennsylvania (Property), which PIC insured under Homeowner’s Insurance
Policy No. 9754066736331 (Original Policy) since 2003. In December 2009,
Skotnicki acquired a 3½-year-old English springer spaniel. On July 3, 2013, the dog
bit a neighbor, requiring the neighbor to seek medical treatment. Based upon PIC
Claims Adjuster Cynthia Weiser’s (Weiser) July 25, 2013 interview of Skotnicki’s
wife Susan Skotnicki, Weiser determined that the dog acted “out of the blue” and,
thus, PIC accepted liability for the neighbor’s claim and paid $42,000.00 in damages.
Reproduced Record (R.R.) at 61a; see also Skotnicki Amended Br. Ex. F.
On April 22, 2014, PIC sent Skotnicki a notice that the Original Policy
would not be renewed effective May 29, 2014 because “THERE IS A SUBSTANTIAL
CHANGE OR INCREASE IN HAZARD IN THE RISK ASSUMED BY THE COMPANY SUBSEQUENT
TO THE DATE THE POLICY WAS FIRST ISSUED, AS DESCRIBED BELOW: THERE IS AN
ANIMAL OR PET THAT HAS BITTEN OR INJURED.” Skotnicki Amended Br. Ex. B.5 On
April 30, 2014, Skotnicki requested that the Department’s Bureau of Consumer
Services (BCS) review PIC’s non-renewal because the dog bite was provoked. On
May 28, 2014, BCS issued an Investigative Report Order to PIC which stated:
It is our finding that [PIC] by its action, is in violation of
Act 205. [Skotnicki] provides a narrative explaining
how this dog bite occurred. [PIC] did not comment on
the circumstances surrounding this bite in the response
dated May 12, 2014.[6] Our Department requested
[PIC’s] narrative and details of the claim on May 21,
2014 and to date we have no record of a response.
5
By June 8, 2015 order, this Court authorized Skotnicki to amend his brief to include
exhibits to be considered part of his original reproduced record.
6
PIC’s May 12, 2014 response was not included in this record.
2
Based on [Skotnicki’s] narrative[,] this appears to have
been a provoked dog bite incident[.] As [PIC] has not
justifiably proven any increase in hazard, [PIC] is
directed to continue the [Original P]olicy with no lapse
in coverage.
Please confirm the continuation of coverage to [Skotnicki]
no later than ten (10) days from the date you receive this
Investigative Report/Order.
R.R. at 20a (emphasis in original). Rather than continuing the Original Policy, PIC
issued a New Policy because
due to system limitations, once a policy at [PIC] has been
terminated for more than five days . . . past the expiration
date of a policy[,] there’s no physical way to reinstate it. So
instead we reissue a new policy, but in all respects, the new
policy is not treated as new business[;] it’s treated as a
continuation.
R.R. at 71a-72a. PIC deems new policies issued in these circumstances effective
without lapse. See R.R. at 72a.
On June 18, 2014, PIC sent Skotnicki notice of the New Policy’s
cancellation effective July 25, 2014 based again upon “A SUBSTANTIAL CHANGE OR
INCREASE IN HAZARD IN THE RISK ASSUMED . . . [due to a] pet on the residence
premises that has exhibited dangerous propensities by biting a person without
provocation.” R.R. at 6a, 13a. Skotnicki requested BCS’ review of the cancellation
notice. In its July 14, 2014 Investigative Report, BCS stated: “Our investigation has
determined that [PIC] met the requirements of Act 205 and the [Department]
therefore finds that your [New P]olicy may be terminated.” R.R. at 22a. On July 23,
2014, Skotnicki appealed from the BCS’ Investigative Report, and a hearing was held
on September 30, 2014 before an Administrative Law Judge (ALJ). The
Commissioner issued his January 15, 2015 adjudication and order affirming the New
3
Policy’s cancellation because PIC did not violate Act 205. Skotnicki appealed to this
Court.7
Substantial Evidence
Skotnicki argues that substantial evidence did not support the
Commissioner’s conclusion that PIC properly cancelled the New Policy due to a
substantial change in PIC’s assumed risk resulting from an unprovoked dog bite. Act
205 prohibits persons in the insurance business from engaging in unfair or deceptive
insurance practices. Nationwide Mut. Fire Ins. Co. v. Ins. Dep’t, 4 A.3d 231 (Pa.
Cmwlth. 2010). Section 5(a)(9) of Act 205 defines “unfair or deceptive acts or
practices” to include, in relevant part:
Cancelling any policy of insurance covering owner-
occupied private residential properties . . . that has been in
force for sixty days or more or refusing to renew any such
policy unless . . . there has been a substantial change or
increase in hazard in the risk assumed by the company
subsequent to the date the policy was issued[.]
40 P.S. § 1171.5(a)(9) (emphasis added). “The term ‘substantial change or increase
in hazard’ in Section 5(a)(9) of [Act 205] . . . has been defined as a risk that an
insurance company could not have reasonably been presumed to have contracted for
when the policy was written.” Aegis Sec. Ins. Co. v. Pa. Ins. Dep’t, 798 A.2d 330,
332 (Pa. Cmwlth. 2002). “The standard to apply in determining whether an incident
involving a particular dog represents a substantial increase in hazard is whether or not
that dog was provoked. If a dog is provoked, no increase in hazard exists.” Id. at
7
This Court’s review of the Commissioner’s adjudication and order is limited to whether an
error of law was committed, constitutional rights were violated or necessary factual findings are
supported by substantial evidence. Donegal Mut. Ins. Co. v. Ins. Dep’t, 719 A.2d 825 (Pa. Cmwlth.
1998). “To the extent the Commissioner’s findings represent credibility determinations, they are
not reviewable on appeal as a matter of administrative law.” Nationwide Mut. Fire Ins. Co. v. Ins.
Dep’t, 4 A.3d 231, 234 n.3 (Pa. Cmwlth. 2010).
4
334. Section 5(a)(9) of Act 205’s cancellation notice requirements are to be strictly
construed in Skotnicki’s favor and against PIC. See Statesman Ins. Co. v. Ins. Dep’t,
528 A.2d 1042 (Pa. Cmwlth. 1987).
Skotnicki requested the Commissioner’s review of PIC’s non-renewal
notice. BCS’ review included “the consumer[’s unchallenged] . . . narrative
explaining how this dog bite occurred.” R.R. at 20a. The narrative consisted of
Weiser’s notes of Susan Skotnicki’s July 25, 2013 interview, which reflect that the
dog had never before shown aggression or bitten anyone, except on July 3, 2013. The
interview notes provided, in pertinent part:
[Susan Skotnicki] was crossing the street, just about up at
the curb and onto her property when the [neighbor] who had
just moved into the neighborhood was taking a walk[,] so
they struck up conversation. She stated he walked over to
where they were . . . when out of the blue he bit the
[neighbor] in the back of the calf. She stated he didn’t bark
or growl, it was just sudden. She stated he took her by
surprise as he’s never done that before.
Skotnicki Amended Br. Ex. F at 1.8 BCS determined “[b]ased on [Susan Skotnicki’s]
narrative[, that] this appears to have been a provoked dog bite incident” and,
therefore, PIC must continue Skotnicki’s coverage. R.R. at 20a.
In response, PIC continued Skotnicki’s coverage9 and requested a formal
administrative hearing. According to McGilpin, PIC ultimately withdrew its hearing
8
The narrative was admitted into the record at the September 30, 2014 hearing over
Skotnicki’s objection to the narrative’s accuracy. See R.R. at 82a-83a.
9
Although compelling, Skotnicki’s averment that PIC issued the New Policy as an end run
around BCS’ May 28, 2014 order because with the New Policy came a new cancellation
opportunity lacks support in this record. At the time PIC elected not to renew the Original Policy,
the Original Policy was due to expire effective May 29, 2014. BCS’ May 28, 2014 Investigative
Report Order required PIC to continue Skotnicki’s coverage “with no lapse.” R.R. at 20a. PIC
explained that its system required it to issue the New Policy to comply with BCS’ Investigative
Report Order, so Skotnicki’s coverage did not lapse. Skotnicki’s statement during McGilpin’s
cross-examination that he received a new policyholder welcome packet does not constitute evidence
5
request because the non-renewal notice was faulty and would not have withstood an
Act 205 review because it did not expressly state that the dog bite was provoked and,
“under Act 205[,] . . . a dog bite alone is not sufficient to justify termination of a
policy.”10 R.R. at 74a.
PIC issued its New Policy cancellation notice because the bite occurred
“without provocation,” and Skotnicki again requested review. R.R. at 6a. Six weeks
after BCS originally declared that “[b]ased on the insured’s narrative this appears to
have been a provoked dog bite incident” and PIC had not “justifiably proven any
increase in hazard,” R.R. at 20a, BCS held, without taking additional evidence, that
since PIC “met the requirements of Act 205[,] . . . [the] policy may be terminated.”
R.R. at 22a. Skotnicki requested a formal hearing.
At the September 30, 2014 hearing, Weiser testified that when she took
the July 25, 2013 statement, Susan Skotnicki did not specifically state that she or
Skotnicki felt threatened by the neighbor when the dog bit him. When asked: “At any
point did [Susan] Skotnicki indicate to you that the [neighbor] provoked the dog into
biting him?” Weiser responded: “No.” R.R. at 61a. Weiser acknowledged that since
the neighbor had counsel she did not speak directly to him about the dog bite, but she
did not believe the neighbor would have supplied any more information than Susan
Skotnicki already had. Weiser described that, based upon her investigation, PIC was
fully liable for the neighbor’s damages.
Susan Skotnicki agreed that the statement she gave Weiser does not
reflect that the neighbor startled them prior to the dog bite. She explained:
Because in my view [‘]out of the blue[’] to me meant that I
had no warning, you know. So, the dog was startled. I
to the contrary. See R.R. at 75a. Further, had PIC’s system allowed for the Original Policy’s
continuance, nothing prevented PIC from similarly cancelling the Original Policy.
10
On June 19, 2014, the Department granted PIC’s withdrawal motion and discontinued the
appeal. See Skotnicki Amended Br. Ex. D.
6
didn’t really --- hadn’t really ---. When I talked to her it
was three weeks after and I figured that the dog was
protecting me and all that, but I hadn’t like put it together
that --- to use the proper term provoked or unprovoked.
The truth is [the neighbor] walked towards us.
R.R. at 108a. She described that the neighbor, wearing sunglasses and a hat, was in
the middle of the street and began walking toward her and Skotnicki striking up a
conversation. Susan Skotnicki expounded:
[The neighbor] keeps coming and that was why the
statement --- I mean, I don’t feel that my statement is ---. I
feel it’s consistent with the provoked attack. I just stated
the facts. That’s what [‘]out of the blue[’] to me was, he
startled the dog and the dog bit him.
He was close enough to me, I couldn’t tell you if he was
one foot, two foot, that the leash never moved. I mean, he
was in my area and the dog reached around. [The dog
d]idn’t have to like go too far.
R.R. at 110a-111a. She concluded: “I think that turn from the center of the road and
direct brisk walk, you know, like towards me is what provoked [the dog] i[n] my
opinion.” R.R. at 112a. Susan Skotnicki admitted that she did not tell Weiser that
she felt threatened because she did not feel that way but, rather, “the dog did.” R.R.
at 113a.
Skotnicki testified that as he and his wife were returning home from a
short walk, the neighbor called out to them from the middle of the street and
approached them “real quickly right into us” wearing a hat and sunglasses and, since
they had not met the man before, he startled them and the dog. R.R. at 93a. He
explained: “He encroached, you know, as a stranger. He just came into us abruptly
and Sue and I were sort of startled because we don’t know who this stranger is.” R.R.
at 100a. When the ALJ asked: “Did he gesture in any way towards the dog, or you or
Sue?” Skotnicki responded: “It was just a fast walk into him.” R.R. at 100a.
Skotnicki described that “without any warning this guy’s leg[’]s right in front of [the
7
dog] and [the dog] bit him once and that was it.” R.R. at 93a. Skotnicki declared that
the neighbor’s actions provoked the dog. He expressed that his testimony does not
differ from his wife’s July 25, 2013 statement to Weiser.
This Court has held:
Generally, substantial evidence is such relevant evidence as
a reasonable mind would accept as adequate to support a
conclusion. Evidence becomes insubstantial only when it is
clear that it is so inadequate and contradictory that an
administrative finding based on it becomes mere conjecture.
And, this Court must examine the testimony in the light
most favorable to the party prevailing in the proceeding
below and give that party the benefit of any inferences that
can be logically and reasonably drawn from the evidence.
Also, the [] Commissioner’s determination of witness
credibility is within [his] exclusive province as the finder of
fact and is not subject to review by this Court.
Aegis, 798 A.2d at 333-34 (citations omitted).
Here, the Commissioner found that
[b]oth Skotnicki and his wife testified that their dog bit
someone who simply walked rapidly up to them to begin a
conversation on the side of a public street. . . . Even though
the [neighbor] came close to the couple, the [Skotnickis]
presented no evidence that he made any threatening
gestures toward the dog or [Skotnicki’s] wife.
R.R. at 162a. The Commissioner further stated that “neither [Skotnicki] nor his
wife’s description of the incident support th[e] argument” that the dog bite was
provoked. R.R. at 162a. The Commissioner concluded, in pertinent part:
5. When an insurer relies upon an increase in hazard from
the policy inception because the insured’s dog allegedly
bites someone, the insurer must establish either that the
insureds had no dog at policy inception or did not have a
dog with vicious propensities.
6. A single, unprovoked dog bite constitutes an increase in
hazard when the dog remains with the insured because there
is an increase in potential liability if a second bite occurs.
8
7. Absent competent evidence of provocation, [PIC] has
met its burden of establishing an increase in hazard as a
result of the dog bite at issue in this case.
8. [PIC] satisfied its burden of proving compliance with Act
205.
R.R. at 168a-169a.
Based upon the Aegis Court’s holding, whether a dog bite incident rises
to the level of “a substantial increase in hazard” depends upon whether the dog was
provoked. Id. at 334. “Provoke” is not defined in the context of this case. Thus, we
look to dictionary definitions to ascertain the term’s plain and ordinary meaning.11
According to Merriam-Webster’s Collegiate Dictionary (11th ed. 2004), “provoke”
means “to arouse to a feeling or action . . . to incite to anger . . . to call forth (as a
feeling or action) : EVOKE . . . to stir up purposely . . . to provide the needed stimulus
for[.]” Id. at 1002. Black’s Law Dictionary (9th ed. 2009) defines “provocation” as
“the act of inciting another to do something . . . . Something (such as words or
actions) that affects a person’s reason and self-control[.]” Id. at 1346 (emphasis
omitted).
In Aegis, the only case specifically applying the provocation standard
under Act 205, this Court stated:
In applying th[e provocation] standard, the Commissioner
previously found that such an increase did not exist where a
dog bit a person who entered a property through a gate
marked ‘Beware of Dog’ and ignored a sign instructing
those who entered to ring a bell. In re White (Liberty
Mut[.]), No. PH97-07-016 (Pa.Ins.Comm’r, Dec. 30,
1997).[FN]5 An increase did not exist where a child was
bitten when it approached a dog that had just been given its
dinner where the dog had never before shown aggression.
11
In Eritano v. Commonwealth, 690 A.2d 705 (Pa. 1997), the Pennsylvania Supreme Court
used dictionary definitions to ascertain the plain and ordinary meaning of the term “provoke” as it is
used in Section 502-A of the Dog Law, Act of December 7, 1982, P.L. 784, as amended, 3 P.S. §
459-502-A.
9
In re Ranieli (White Hall Mut[.]), No. P94-11-030 (Pa. Ins.
Comm’r, Jan. 17, 1997). An increase did exist where the
incident was the third in which a particular dog had bitten
people. In re Witmyer (Lititz Mut[.]), No. P94-03-13
(Pa.Ins.Comm’r, Oct. 31, 1995). And, an increase existed
where a Rottweiler left its owners’ property, followed and
viciously attacked a person. In re Wetzel & Bresinger
(Charter Oak), PH96-09-019 (Pa. Ins. Comm’r, June 30,
1998). The common thread that binds these cases is
provocation. In the first two cases, where no increase in
risk was found, the dogs were determined to have been
provoked into attacking; in the second two, where an
increase was found to exist, the dogs attacked without
provocation.
[FN]5. This citation and those that immediately
follow refer to adjudications by the Insurance
Commissioner. Although we recognize that we are
not bound by these adjudications, Standard Fire
Ins[.] Co[.] v. Ins[.] Dep[’t], . . . 611 A.2d 356 ([Pa.
Cmwlth.] 1992), we nevertheless find them
instructive here.
We find the same thread of provocation when we examine
the statute regulating dogs within our Commonwealth.
Section 502-A of the Dog Law,[FN]6 3 P.S. § 459-502-A,
uses provocation as a criterion in determining whether a
dog is a dangerous dog. Section 502-A provides, in
relevant part, as follows:
The owner or keeper of the dog shall be guilty of the
summary offense of harboring a dangerous dog if
the [magisterial] district ju[dge] finds beyond a
reasonable doubt that the following elements of the
offense have been proven:
(1) The dog has done one or more of the following:
(i) Inflicted severe injury on a human being
without provocation on public or private
property.
(ii) Killed or inflicted severe injury on a
domestic animal without provocation while off
the owner’s property.
10
(iii) Attacked a human being without
provocation.
(iv) Been used in the commission of a crime.
(2) The dog has either or both of the following:
(i) A history of attacking human beings and/or
domestic animals[, dogs or cats] without
provocation.
(ii) A propensity to attack human beings and/or
domestic animals[, dogs or cats] without
provocation. A propensity to attack may be
proven by a single incident of the conduct
described in paragraph (1)(i), (ii), (iii) or (iv).
3 P.S. § 459-502-A.
Our courts have determined dogs to be dangerous where a
person who did not excite or provoke a dog in any way was
attacked while walking away from it. Commonwealth v.
Baldwin, 767 A.2d 644 (Pa. Cmwlth. 2001). A dog was
determined to be dangerous where it escaped from a house,
ran into the street and attacked without provocation.
Commonwealth v. Hake, 738 A.2d 46 (Pa. Cmwlth. 1999)[.]
[FN]6. Act of December 7, 1982, P.L. 784, as amended, 3
P.S. § 459-101 – 459-1205.
Aegis, 798 A.2d at 332-33.
In Aegis, Aegis cancelled Kelly Broschart’s (Broschart) homeowners’
insurance policy because Broschart’s dog’s attack of a State Trooper constituted a
substantial increase in hazard subsequent to their insurance policy’s inception. On
appeal, the Commissioner held that the cancellation violated Act 205 since the attack
was provoked. Because the following substantial evidence supported the
Commissioner’s finding that the attack was provoked, this Court affirmed the
Commissioner’s decision:
[The State Trooper] had previously approached the
Broschart house from the driveway without incident when
11
[the dog] was present, that he approached the property on
the day he was bitten in a way that [the dog] was not
accustomed to seeing strange adults approach, and that he
waved a hard leather portfolio in her direction when she got
close to him. . . . [T]he record reflects that [the dog] was
provoked when the trooper passed a ‘No Trespassing’ sign,
appeared to [the dog] to be someone who did not belong,
and made what [the dog] interpreted as a threatening
gesture.
Id. at 334. The instant case presents none of the same or similar “provocation”
indicia.
In Commonwealth v. Civello (Pa. Cmwlth. No. 1998 C.D. 2013, filed
February 1, 2013),12 a dog owner approached his neighbor (the victim) at the curb on
a public street and talked to her for a few minutes. Because the victim feared the dog,
she took a step back from him, at which point the dog jumped up and bit her on the
hip. This Court upheld the trial court’s determination that the attack was unprovoked
because the victim did not touch or otherwise incite the dog’s behavior and, therefore,
the owner harbored a dangerous dog under Section 502-A of the Dog Law.
After a thorough review of the record, we conclude that substantial
evidence supports the Commissioner’s findings that the Skotnickis’ dog suddenly and
without warning bit the neighbor who approached on a public street in a non-
threatening manner, and that those findings support the Commissioner’s conclusion
that the Skotnickis’ dog attacked the neighbor without provocation. Accordingly,
PIC properly cancelled the New Policy due to a substantial change in PIC’s assumed
risk.
Skotnicki also contends that the Commissioner impermissibly relied
upon Weiser’s hearsay testimony to determine that the dog bite was unprovoked. See
12
This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414 of the Commonwealth Court’s Internal Operating
Procedures.
12
Skotnicki Amended Br. at 25-26. The Department rejoins that Skotnicki failed to
raise this issue before the Department and therefore it is waived. “Issues not raised
before [the Department] are waived and may not be raised for the first time on appeal.
Pa.R.A.P. 1551; Prudential Prop[.] [&] Cas[.] Ins[.] Co. v. Dep[’t], . . . 595 A.2d 649([Pa. Cmwlth.] 1991).” Kramer v. Dep’t of Ins., 654 A.2d 203, 205 (Pa. Cmwlth.
1995); see also Robbins v. Ins. Dep’t, 11 A.3d 1048 (Pa. Cmwlth. 2010). Because
Skotnicki did not present this issue to the Department, it has been waived.13
Notwithstanding, “[h]earsay is defined as a ‘statement, other than one
made by the declarant while testifying at the trial or hearing offered in evidence to
prove the truth of the matter asserted.’ Pa.R.E. 801(c).” Yost v. Unemployment
Comp. Bd. of Review, 42 A.3d 1158, 1163 (Pa. Cmwlth. 2012). Among the well-
recognized exceptions to the hearsay rule is what is known as the business records
exception which provides:
Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data compilation
in any form) of an act, event or condition if,
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a ‘business’, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that
activity;
13
“The purpose of Pa.R.A.P. 1551 is to provide the lower tribunal with an opportunity to
correct alleged errors, thus increasing the efficient use of judicial resources by obviating the need
for appellate review.” Zong v. Ins. Dep’t, 614 A.2d 360, 363 (Pa. Cmwlth. 1992).
13
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) neither the source of information nor other
circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6). Accordingly, Section 6108(b) of the Uniform Business Records as
Evidence Act provides:
A record of an act, condition or event shall, insofar as
relevant, be competent evidence if the custodian or other
qualified witness testifies to its identity and the mode of its
preparation, and if it was made in the regular course of
business at or near the time of the act, condition or event,
and if, in the opinion of the tribunal, the sources of
information, method and time of preparation were such as
to justify its admission.
42 Pa.C.S. § 6108(b).
Thus, as in this case, where the record is clear that Weiser obtained and
recorded Susan Skotnicki’s statement near the time of the event, and then maintained
it as part of PIC’s dog bite claim investigation, see R.R. at 60a-63a, the circumstances
justify a presumption of trustworthiness sufficient to offset the hearsay character of
the evidence. See Paey Assocs. v. Pa. Liquor Control Bd., 78 A.3d 1187 (Pa.
Cmwlth. 2013). Therefore, we conclude that the narrative is not hearsay.
Moreover, “[i]t has long been established in this Commonwealth that
hearsay evidence, properly objected to, is not competent evidence to support a
finding of the [administrative agency], whether or not corroborated by other
evidence.” Myers v. Unemployment Comp. Bd. of Review, 625 A.2d 622, 625 (Pa.
1993); see also Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366 (Pa.
Cmwlth. 1976). However, “[h]earsay evidence, [a]dmitted without objection, will be
given its natural probative effect and may support a finding . . . , [i]f it is corroborated
by any competent evidence in the record[.]” Id. at 370.
14
Here, it is clear that the Commissioner relied upon Weiser’s testimony to
authenticate her narrative of Susan Skotnicki’s statement, and made his provocation
determination based upon the narrative and the Skotnickis’ hearing testimony.
Skotnicki made no hearsay objection to either Weiser’s testimony or to the narrative’s
admission.14 The Skotnickis’ testimony corroborated Susan Skotnicki’s statement to
Weiser and Weiser’s hearing testimony that the neighbor approached the Skotnickis
on the street in a manner Susan Skotnicki did not deem threatening to her, and the
dog bit the neighbor “out of the blue.” Therefore, the Commissioner’s findings and
conclusions could rely thereon. R.R. at 110a.
Skotnicki further claims that the Commissioner is bound by the May 28,
2014 Investigative Report Order in which BCS stated that the dog bite incident was
14
The Pennsylvania Supreme Court has long held that “any layperson choosing to represent
himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of
expertise and legal training will prove his undoing.” Vann v. Unemployment Comp. Bd. of Review,
494 A.2d 1081, 1086 (Pa. 1985) (quoting Groch v. Unemployment Comp. Bd. of Review, 472 A.2d
286, 288 (Pa. Cmwlth. 1984)). More recently, this Court clarified that, “referees should reasonably
assist pro se parties to elicit facts that are probative for their case.” Hackler v. Unemployment
Comp. Bd. of Review, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011).
The referee has a responsibility . . . to assist a pro se claimant at a
hearing so that the facts of the case necessary for a decision may be
adequately developed to insure that compensation will not be paid in
cases in which the claimant is not eligible and that compensation will
be paid if the facts, thoroughly developed, entitled the claimant to
benefits.
Id. at 1115 (quoting Bennett v. Unemployment Comp. Bd. of Review, 445 A.2d 258, 259 (Pa.
Cmwlth. 1982)). Although the law requires that the referee reasonably assist in development of the
facts necessary to render a decision, “the referee is not required to become and should not assume
the role of a claimant’s advocate.” McFadden v. Unemployment Comp. Bd. of Review, 806 A.2d
955, 958 (Pa. Cmwlth. 2002). “The referee need not advise an uncounseled claimant on specific
evidentiary questions or points of law, nor need the referee show any greater deference to an
uncounseled claimant than that afforded a claimant with an attorney.” Brennan v.
Unemployment Comp. Bd. of Review, 487 A.2d 73, 77 (Pa. Cmwlth. 1985) (citation omitted;
emphasis added). Here, the Commissioner specifically asked Skotnicki: “Do you have any
objection to the admission of Exhibit Number T-2 [Claim Information?]” Skotnicki replied: “Only
to its accuracy, Your Honor.” R.R. at 82a.
15
provoked. Under Section 59.7(e)(4) of the Department’s Regulations, formal
Department hearings are de novo and, thus, the Commissioner may accept additional
evidence. 31 Pa. Code § 59.7(e)(4) (“All relevant evidence of reasonable probative
value will be admitted into the record of the proceeding and reasonable examination
and cross-examination shall be permitted.”). Moreover, Department proceedings are
generally governed by the General Rules of Administrative Practice and Procedure
(GRAPP).15 Section 31.3 of GRAPP states that an agency’s record consists, inter
alia, of filings and submittals to the agency, the hearing transcript and exhibits
received into evidence. 1 Pa. Code § 31.3. Accordingly, nothing in the Department’s
Regulations or GRAPP makes the Commissioner bound solely by the May 28, 2014
Investigative Report Order.
Further, Skotnicki’s claim notwithstanding, the collateral estoppel
doctrine does not apply in this case.
The doctrine of collateral estoppel bars relitigation of an
issue where a question of law or fact essential to a judgment
was actually litigated and determined by a court of
competent jurisdiction. Collateral estoppel applies only
when the issue decided in the prior case and the issue
presented in the current case are identical; there was a final
judgment on the merits; the issue was essential to the
judgment; the party against whom estoppel is asserted had a
full and fair chance to litigate the merits; and the party
against whom estoppel is asserted was a party or in privity
with a party in the prior case.
Foster v. Colonial Assur. Co., 668 A.2d 174, 180-81 (Pa. Cmwlth. 1995) (citation
omitted), aff’d, 673 A.2d 922 (Pa. 1996).
Application of the principle of collateral estoppel is not
precluded merely because administrative proceedings are
involved: when an administrative agency is acting in a
15
1 Pa. Code §§ 31.1-35.251. See Sections 56.1 and 59.7(e)(5) of the Department’s
Regulations, 31 Pa. Code §§ 56.1, 59.7(e)(5); see also Park v. Chronister, 617 A.2d 863 (Pa.
Cmwlth. 1992); Celane v. Ins. Comm’r, 415 A.2d 130 (Pa. Cmwlth. 1980).
16
judicial capacity and resolves disputed issues of fact
properly before it which the parties have had an adequate
opportunity to litigate, the court will not hesitate to apply
collateral estoppel principles.
Christopher v. Council of Plymouth Twp., 635 A.2d 749, 752 n.2 (Pa. Cmwlth. 1993);
see also Knox v. Pa. Bd. of Prob. & Parole, 588 A.2d 79 (Pa. Cmwlth. 1991).
In this case, there is no dispute that the BCS reviews involved both PIC
and Skotnicki, and that both parties had a full and fair opportunity to litigate PIC’s
termination of Skotnicki’s homeowner’s coverage following the July 3, 2013 dog bite
incident. However, the decisions differed in that one action progressed only through
a first-level BCS review, while the other was subjected to a de novo hearing at which
additional evidence was accepted.16 Under the specific circumstances of this case, in
which BCS’ May 28, 2014 Investigative Report Order makes clear that based upon
the limited information before it, the July 3, 2013 dog bite incident
“appears to have been a provoked[,]” collateral estoppel did not bar the
Commissioner from reaching a different result based upon a new policy termination,
additional evidence and credibility determinations. R.R. at 20a (emphasis added).
Contrary to Skotnicki’s contention that the BCS’ May 28, 2014
Investigative Report Order was an adjudication, the BCS clearly stated therein: “[B]e
advised that this communication does not constitute an adjudication under the
17
Administrative Agency Law.” R.R. at 21a (emphasis in original). Certainly, if the
Commissioner was bound by BCS’ investigative reports, the second-level de novo
16
In light of the fact that the New Policy was a continuation of the Original Policy, the
differing policy numbers alone does not create a distinction sufficient to make collateral estoppel
inapplicable in this case. Moreover, the fact that one action involved a non-renewal and the other
involved cancellation is a distinction without a difference where both actions are subject to the same
requirements under Section 5(a)(9) of Act 205 and Section 59.7 of the Department’s Regulations.
17
The same language was in BCS’ July 14, 2014 report. See R.R. at 9a.
17
review afforded by Section 59.7(e)(4) of the Department’s Regulations would have
little value. Accordingly, Skotnicki’s argument cannot stand.
Non-Attorney Representative
Skotnicki also argues that the Commissioner erred by permitting
McGilpin to represent PIC at the hearing. “It is well settled that with a few
exceptions, non-attorneys may not represent parties before the Pennsylvania courts
and most administrative agencies.” In re Estate of Rowley, 84 A.3d 337, 340 (Pa.
Cmwlth. 2013). Pennsylvania courts have more specifically held that corporations
may not act pro se in court, and that non-attorneys may not represent them, regardless
of the individual’s status as the corporation’s officer, director, shareholders or
employee.18 See Estate of Rowley; Sklar v. Dep’t of Health, 798 A.2d 268 (Pa.
Cmwlth. 2002); Spirit of the Avenger Ministries v. Commonwealth, 767 A.2d 1130(Pa. Cmwlth. 2001); Walacavage v. Excell 2000, Inc., 480 A.2d 281 (Pa. Super.
1984).
“However, this rule is not without exceptions in the administrative
agency arena.” Nolan v. Dep’t of Pub. Welfare, 673 A.2d 414, 417 (Pa. Cmwlth.
1995). Section 31.23 of GRAPP provides: “A person shall not be represented at a
hearing before an agency head or a presiding officer except: (1) As stated in § 31.21
or § 31.22 (relating to appearance in person; and appearance by attorney). (2) As
otherwise permitted by the agency in a specific case.” 1 Pa. Code § 31.23(emphasis added).
18
“The reasoning behind the rule is that ‘a corporation can do no act except through its
agents and that such agents representing the corporation in Court must be attorneys at law who have
been admitted to practice, are officers of the court and subject to its control.’” Walacavage v.
Excell 2000, Inc., 480 A.2d 281, 284 (Pa. Super. 1984) (quoting MacNeil v. Hearst Corp., 160
F.Supp. 157, 159 (D. Del. 1958)).
18
Section 31.21 of GRAPP provides, in pertinent part:
An individual may appear [o]n his own behalf. A . . . bona
fide officer of a corporation . . . may represent the
corporation. . . . Parties, except individuals appearing [o]n
their own behalf, shall be represented in adversary
proceedings only under § 31.22 (relating to appearance by
attorney).
1 Pa. Code § 31.21. Thus, Section 31.23 of GRAPP creates exceptions to the general
prohibition against corporations’ non-attorney representation under circumstances in
which the representative is a bona fide corporate officer, or as Commonwealth
agencies expressly permit in specific cases.
Here, because there is no record evidence that McGilpin was PIC’s
corporate officer, he could only represent PIC before the Department if the
Department expressly permitted him to do so in this specific case, which it did. The
Department’s July 31, 2014 hearing notice stated: “Each party may appear with or
without counsel and offer relevant testimony and/or other relevant evidence.” R.R.
at 26a (emphasis added). By September 25, 2014 letter, McGilpin notified the
Department and Skotnicki, in compliance with Section 59.10 of the Department’s
Regulations, that he “will be representing [PIC] at the . . . proceeding.”19 R.R. at 33a.
Neither the Department nor Skotnicki objected. Moreover, when the hearing
commenced, the ALJ confirmed: “[Y]ou’re all prepared to proceed without counsel;
is that correct Mr. Skotnicki and Mr. McGilpin?” R.R. at 44a. Skotnicki replied,
19
Section 59.10 of the Department’s Regulations states:
Each insurer shall file within 30 days of the effective date of this
Chapter, with the Department, the names of its representatives who
are to be notified in the event that an insured or an applicant requests
the [] Department to review a cancellation or refusal to renew,
involving that insurer.
31 Pa. Code § 59.10.
19
“Yes.”20 R.R. at 44a. The record evidence makes clear that the Department
expressly authorized McGilpin to represent PIC in this specific case and, thus, the
Commissioner did not err by upholding the ALJ’s determination relative to that issue.
In reaching this conclusion, we are not persuaded by McGilpin’s claim
that he has attended Department hearings in this capacity many times before, or the
ALJ’s statement that the Department “permit[s] representatives of insurance
companies to present testimony and evidence on behalf of the company without
requiring legal representation.”21 R.R. at 48a; see also R.R. at 47a-48a. Neither
Section 31.23 of GRAPP, nor any other statute or regulation which has been cited or
our research has disclosed, authorizes the Department to have a general policy under
which non-attorneys may represent corporations in proceedings before it.
“Commonwealth agencies have no inherent power to make law or otherwise bind the
public or regulated entities. Rather, an administrative agency may do so only in the
fashion authorized by the General Assembly . . . .” Nw. Youth Servs., Inc. v. Dep’t of
Pub. Welfare, 66 A.3d 301, 310 (Pa. 2013).
Where an agency, acting pursuant to delegated legislative
authority, seeks to establish a substantive rule creating a
controlling standard of conduct, it must comply with the
provisions of the Commonwealth Documents Law.[FN]7
That statute sets forth formal procedures for notice,
comment and ultimate promulgation in connection with the
making of rules that establish new law, rights or duties.
Such substantive regulations, sometimes known as
legislative rules, when properly enacted under the
Commonwealth Documents Law, have the force of law . . . .
20
It was not until Skotnicki presented his case that he moved to have McGilpin disqualified
from representing PIC at the hearing because he is not a licensed attorney. See R.R. at 47a.
21
We acknowledge that this Court stated in Robbins v. Insurance Department, 11 A.3d
1048, 1051 n.3 (Pa. Cmwlth. 2010), “that [insurance] companies are not required to appear through
counsel at [Department] hearings.” However, since the non-attorney representative in Robbins was
a bona fide officer of the subject corporation, the requirements of Section 31.23 of GRAPP were
nevertheless met in that case.
20
[FN]7 Act of July 31, 1968, P.L. 769, No. 240
(current version at 45 P.S. §§ 1102 - 1208). The
short title of the law was eliminated by subsequent
amendment; however, it remains the prevailing
convention used for sake of reference.
Borough of Pottstown v. Pa. Mun. Ret. Bd., 712 A.2d 741, 743 (Pa. 1998).
If the Department wishes to authorize non-attorney representation of
insurance companies at its hearings, it must properly promulgate a regulation
authorizing the same. Until such time, the Department is on notice that any general
practice of “permit[ting] representatives of insurance companies to present testimony
and evidence on behalf of the company without requiring legal representation” or
representation by a corporate officer, is unlawful.22 R.R. at 48a.
Administrative Notice
Lastly, Skotnicki argues that the Commissioner erred by taking
administrative notice post-hearing that the form PIC used to cancel the New Policy
was Department-approved. Section 5(a)(9)(i) of Act 205 requires that insurance
policy cancellation notices meet specific requirements, and “[b]e approved as to form
by the [Commissioner] prior to use.” 40 P.S. § 1171.5(a)(9)(i); see also 31 Pa. Code
§§ 59.5, 59.6. The New Policy cancellation notice was admitted into the hearing
record. McGilpin did not have direct knowledge as to whether the Department had
22
It is unclear whether non-attorneys representing corporations in specific Department
proceedings would constitute an unauthorized practice of law. McGilpin elicited testimony and
admitted documents to facilitate fact-gathering to assist with the Commissioner’s decision-making,
and he provided testimony that clarified PIC procedures. In rendering its decision, the Department
relied on Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162 (Pa. 2007). In
Harkness, our Supreme Court undertook a detailed analysis of whether representation before a
government agency constitutes the practice of law where such proceedings are meant to be
informal, speedy and low-cost, and evidentiary rules are not strictly applied. Harkness was decided
under the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L.
(1937) 2897, as amended, 43 P.S. §§ 751-918.10, which expressly authorizes employer
corporations to be represented by non-lawyers and, thus, is inapposite.
21
pre-approved PIC’s cancellation notice form. See R.R. at 79a. However, in the
adjudication, the Commissioner took “administrative notice that the form of the
notice used by [PIC] has been approved by the Department.” R.R. at 160a.
Section 35.173 of GRAPP states: “Official notice may be taken by the
agency head or the presiding officer of such matters as might be judicially noticed by
the courts of this Commonwealth, or any matters as to which the agency by reason of
its functions is an expert.” 1 Pa. Code § 35.173. Moreover, this Court has
specifically held:
‘Official notice’ is the administrative counterpart of judicial
notice and is the most significant exception to the
exclusiveness of the record principle. The doctrine allows
an agency to take official notice of facts which are
obvious and notorious to an expert in the agency’s field and
those facts contained in reports and records in the
agency’s files, in addition to those facts which are obvious
and notorious to the average person. Thus, official notice is
a broader doctrine than is judicial notice and recognizes the
special competence of the administrative agency in its
particular field and also recognizes that the agency is a
storehouse of information on that field consisting of
reports, case files, statistics and other data relevant to its
work.
Ramos v. Pa. Bd. of Prob. & Parole, 954 A.2d 107, 110 (Pa. Cmwlth. 2008)
(emphasis added) (quoting Falasco v. Pa. Bd. of Prob. & Parole, 521 A.2d 991, 995
n.6 (Pa. Cmwlth. 1987)). Here, the Department’s approval of PIC’s cancellation
notice form was within the Department’s exclusive province; therefore, the
Commissioner appropriately took official notice of that fact.
For all the above reasons, the Commissioner’s adjudication and order is
affirmed.
___________________________
ANNE E. COVEY, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory G. Skotnicki, :
Petitioner :
:
v. :
:
Insurance Department, : No. 156 C.D. 2015
Respondent :
ORDER
AND NOW, this 17th day of August, 2016, the Pennsylvania Insurance
Department Commissioner’s January 15, 2015 adjudication and order is affirmed.
___________________________
ANNE E. COVEY, Judge