Opinion
Argued September 14, 1987.
November 25, 1987.
Insurance — Revocation of insurance agent's license — The Insurance Department Act of 1921, Act of May 17, 1921, P.L. 789 — Scope of appellate review — Violation of constitutional rights — Error law — Findings of fact — Substantial evidence — Criminal intent — Prior violations.
1. Review by the Commonwealth Court of Pennsylvania of action of the Department of Insurance revoking an insurance agent's license and imposing a fine is to determine whether constitutional rights were violated, an error of law was committed or findings of fact were unsupported by substantial evidence. [310]
2. The absence of criminal intent is not a defense to charges of violating provisions of The Insurance Department Act of 1921, Act of May 17, 1921, P.L. 789, by placing insurance policies with an insurance company although not licensed to do so. [310]
3. The Department of Insurance in imposing a penalty upon an insurance agent for violations of provisions of The Insurance Department Act of 1921, Act of May 17, 1921, P.L. 789, may consider the fact that the agent was guilty of a prior violation. [311]
Argued September 14, 1987, before Judge CRAIG, and Senior Judges BARBIERI and KALISH, sitting as a panel of three.
Appeal, No. 3486 C.D. 1986, from the Order of the Insurance Commissioner in case of In Re: Frank J. Hempsey, Jr., Docket No. P86-6-10, dated November 5, 1986.
Insurance agent's license revoked and penalty imposed by Insurance Commissioner. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Charles S. Silver, with him, Martha Sperling, Silver Sperling, for petitioner.
James A. M. Zarrella, Assistant Counsel, with him, Linda J. Wells, Chief of Litigation, M. Hannah Leavitt, Chief Counsel, for respondent.
Petitioner, Frank J. Hempsey, Jr., petitions for review of an order of the Insurance Commissioner of the Commonwealth of Pennsylvania (Commissioner), which revoked his insurance agent's license and imposed upon him a civil penalty of $4,800.00 for transacting business on behalf of an insurance company without being licensed as an agent for that company.
Petitioner was employed as an insurance agent with Merchants Mutual Insurance Company (Merchants Mutual). However, he was not licensed as an insurance agent on behalf of Merchants Mutual. Section 604 of the Insurance Department Act, (Act), Act of May 17, 1921, P.L. 789, as amended, 40 P. S. § 234, prohibits any individual from transacting business within this Commonwealth as the agent of an insurance company without a license. Regulations promulgated at 31 Pa. Code § 31.13(d) state that "[a]n agent's license shall carry authority to represent only the company which has secured the license for such agent. Such agent shall not place business with a company or an agent of a company for which he is not licensed."
Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).
The Commissioner found that petitioner placed eighty (80) insurance policies on behalf of Merchants Mutual although he was not licensed to do so. The Commissioner held this to be a violation of section 604 of the Act, P. S. § 234, and ordered that his license be revoked and that he be fined $60.00 for each violation.
Petitioner contends that he lacked the necessary criminal intent to violate section 604 of the Act, P. S. § 234, since he had been told by Merchants Mutual that he would be licensed and he should "go ahead and place policies."
Whether a given statute is to be construed as requiring criminal intent is to be determined by the court, by considering the subject matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature. The legislature may define a crime so that criminal intent is not necessary.
Commonwealth v. Hennemuth, 294 Pa. Super. 360, 439 A.2d 1241 (1982). If the legislature intended section 604 of the Act, 40 P. S. § 234, to punish only those persons who acted with criminal intent, it would have so stated. However, section 604 of the Act, 40 P. S. § 234, makes no reference to any such criminal intent being necessary.
Petitioner's next contention is that the Commissioner erred in considering the consent order from petitioner's previous violation of the Commonwealth's insurance licensing requirements in the determination of an appropriate penalty for the current violation. Section 639 of the Act, 40 P. S. § 279, provides that upon a violation of section 604 of the Act, 40 P. S. § 234, or upon satisfactory evidence of such conduct as would disqualify such agent from initial issuance of a license, the Commissioner may in his discretion:
(1) Suspend or revoke or refuse to renew the license of such offending party or parties;
(2) Impose a civil penalty of not more than one thousand dollars for each and every act in violation of any of said sections by said party or parties.
The Commissioner correctly considered petitioner's prior violation of the Act in deciding what penalty to impose. In Re: Appeal of Dillinger, 26 Pa. Commw. 494, 364 A.2d 757 (1976).
We believe the Commissioner was correct in his findings and accordingly we affirm.
ORDER
NOW, November 25, 1987, the order of the Insurance Commissioner of the Commonwealth of Pennsylvania, No. P86-6-10, dated November 5, 1986, is affirmed.