No. 931 C.D. 2012
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Kelly Bumbaugh petitions pro se for review of an order of the Insurance Commissioner (Commissioner) denying her request for reconsideration of his adjudication and order affirming the Pennsylvania Insurance Department's dismissal of her untimely request for review of the cancellation of her homeowners' insurance policy. We affirm.
On March 30, 2011, Tuscarora Wayne Insurance Company mailed Bumbaugh a notice that her homeowners' insurance policy would be canceled effective 12:01 a.m. on May 5, 2011, because the home was no longer owner-occupied. The cancellation notice indicated that Bumbaugh had ten days from receipt of the notice to seek review of the policy termination. Bumbaugh incurred a fire loss on May 5th. The insurance company sent her a May 6th letter advising her that, although it had canceled her policy, it would investigate the claim and make a final coverage determination within thirty days. Upon receipt of the May 6th letter, Bumbaugh asked her agent for a copy of the cancellation notice which she did not recall receiving. Although no one from the insurance company advised her to delay seeking review, she chose to wait because she did not intend to seek review if the company covered the fire loss claim. Bumbaugh thought erroneously that she had ten days to seek review from the date the insurance company made its coverage decision. One day after the insurance company denied her claim, Bumbaugh requested a review of her policy termination. The Insurance Department received that request on June 8th and subsequently dismissed it as untimely. Bumbaugh appealed and a hearing was held at which both parties presented evidence.
The ten-day provision is found in Section 5(a)(9)(iv) of the Unfair Insurance Practices Act, Act of July 22, 1974, P.L. 589, as amended, 40 P.S. § 1171.5(a)(9)(iv).
On March 1, 2012, the Commissioner dismissed Bumbaugh's appeal of the insurance cancellation as untimely, specifically rejecting her position that her request for review should be considered timely and concluding that he had no jurisdiction to consider the merits of the propriety of the termination. On March 14, 2012, Bumbaugh filed a request for reconsideration of the Commissioner's adjudication. The Commissioner denied her request, concluding that neither her "denial of receipt of the cancellation notice nor her professed confusion about the May 6, 2011 letter . . . constitute evidence of extraordinary circumstances justifying an untimely request for review." Commissioner's April 5, 2012 Decision at 5. Bumbaugh's petition for review to this Court followed.
In Lewis v. Insurance Department, 935 A.2d 36, 39-40 n.9 (Pa. Cmwlth. 2007), we list the criteria for granting an appeal nunc pro tunc, which the Commissioner decided were not satisfied in the instant case. In addition, we note that statutory review periods are mandatory and go to the Commissioner's jurisdiction to hear and decide cases. Id. at 39.
In reviewing a denial of a request for reconsideration, we are limited to determining whether the agency abused its discretion by not granting reconsideration. J.B. Steven, Inc. v. Dep't of Transp., 627 A.2d 278, 280 (Pa. Cmwlth. 1993). Absent fraud, bad faith, capricious action or an abuse of power, this Court will not find an abuse of discretion. Id. at 280.
As an initial matter, we note that Bumbaugh failed to file a timely appeal of the underlying March 1st adjudication, instead petitioning for appeal of the April 5th order denying reconsideration of the adjudication. Pennsylvania Appellate Rule of Procedure 1512(a)(1) provides that a petition for review must be filed within thirty days of entry of the order. Where, as here, Bumbaugh filed only a request for reconsideration rather than an appeal, such request does not operate to extend the thirty-day period for appealing the original order. J.A.M. Cab Co., Inc. v. Pub. Util. Comm'n, 572 A.2d 1317, 1318 n.4 (Pa. Cmwlth. 1990). Accordingly, to the extent that Bumbaugh has raised any issues decided in the underlying decision from which no appeal was taken, we may not address them.
It is readily apparent from Bumbaugh's petition for review that her arguments for reversal concern the merits of the March 1st adjudication from which she failed to appeal and not the April 5th order from which she did appeal. Specifically, she alleges as follows:
In the original denial from Ins. Commissioner - paragraph 1 of page 4 states that I was given a copy of the cancellation notice on May 8th and it stated that I had 10 days to contact the Ins. Commissioner but that letter states nothing about 10 days. Attached is a copy of that letter that was given to me by the Ins. Agency adjuster. He also stated to me that I would have to wait 30 days
from May 6th letter to find out what the insurance agency was going to do. The insurance commissioner made an error in the law because the proper information was not given to me. I filed what I needed to in a timely manner. Also, the cancellation notice is invalid because property was never abandoned.Petition for Review at 1. In addition, Bumbaugh is attempting to augment the record on appeal with a letter and new allegations of fact, which this Court may not consider on appeal. Rossi v. Unemployment Comp. Bd. of Review, 675 A.2d 390, 392 (Pa. Cmwlth. 1996). Accordingly, in light of Bumbaugh's failure to raise any issues with respect to the Commissioner's order denying her request for reconsideration, we are constrained to affirm.
Although Bumbaugh was represented at the hearing, she proceeded thereafter without counsel. A litigant who chooses to proceed pro se does so at his or her own risk. Beddis v. Unemployment Comp. Bd. of Review, 6 A.3d 1053, 1060 (Pa. Cmwlth. 2010). In any event, even if we were to consider whether the Commissioner erred in denying her request for reconsideration, we would find no abuse of discretion. As the Commissioner noted in his decision, Bumbaugh made the same arguments that she presented at the initial hearing on the merits. In addition, she made new factual allegations in contradiction of her sworn testimony at the hearing which the Commissioner quite properly declined to consider. --------
BONNIE BRIGANCE LEADBETTER,
AND NOW, this 7th day of November, 2012, the order of the Insurance Commissioner is hereby AFFIRMED.
BONNIE BRIGANCE LEADBETTER,