G.G. Skotnicki v. Insurance Department

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