Pechner, Dorfman, Wolffe, Rounick & Cabot v. Pennsylvania Insurance Department

ROBERTS, Justice,

concurring and dissenting.

I dissent from the mandate insofar as it reverses the order of the Commonwealth Court at No. 467 January Term, 1979, and remands for further proceedings. A remand will unnecessarily consume scarce judicial resources, and will put the parties, including the Commonwealth, through the expense of needless additional litigation.

The Commonwealth Court has already determined that the Insurance Commissioner reasonably exercised his discretion in refusing to award a refund of premium payments retroactive to 1978. In sustaining the Commissioner’s exercise of discretion, the Commonwealth Court stated: *150Nagle v. Commonwealth of Pennsylvania, Insurance Department ex rel. Sheppard, 48 Pa.Cmwlth. 295, 302, 409 A.2d 525, 528 (1980). This adjudication alone will, on remand, compel the dismissal of appellants’ counts against the named Commonwealth agencies.

*149“[Tjhere is no evidence that the initial classification and rate were patently erroneous or unsupported by information then available regarding the relationship of black lung to the coal-hauling industry.... Petitioners [ (the coal haulers) ] were unable to persuade the Commissioner on the record of the hearing below that coal haulers were improperly included or improperly classified as to 1976.”

*150The majority offers no explanation of how it would reconcile the Commonwealth Court’s determination that the Insurance Commissioner acted reasonably with a ruling which would permit the present action in trespass to proceed to trial on a theory of negligent conduct. At the heart of appellants’ cause of action in trespass is the allegation that the Insurance Commissioner has acted unreasonably. However, there can be no basis for a theory of negligent conduct on the part of the Commonwealth or its officials for improperly implementing insurance rates where that very conduct has been sustained against a claim of unreasonableness: absent unreasonableness, there is no negligence. Because appellants’ cause of action in trespass depends upon a determination that the Insurance Commissioner acted unreasonably, it must be concluded that the Commonwealth Court’s decision sustaining the Insurance Commissioner forecloses the present action.*

On this record, there is no reason for the majority to reach the issue of whether the doctrine of sovereign immunity applies. Rather, the order of the Commonwealth Court should, be affirmed in its entirety. See Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974) (reviewing court may affirm on any ground).

HUTCHINSON, J., joins in this concurring and dissenting opinion.

Surely the present action in trespass, brought while an action for review of the same issue was pending in an administrative tribunal, should not be permitted to serve as a vehicle to circumvent the Commonwealth Court’s order affirming the administrative determination, from which order no petition for allowance of appeal was filed.