Richardson v. Pa. Ins. Dep't

• Decision Date: 12 September 2012
• Citation: 54 A.3d 420
• Parties: Gary RICHARDSON, Petitioner v. PENNSYLVANIA INSURANCE DEPARTMENT, Respondent.
• Court: Pennsylvania Commonwealth Court

54 A.3d 420

Gary RICHARDSON, Petitioner

v.PENNSYLVANIA INSURANCE DEPARTMENT, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Aug. 10, 2012.

Decided Sept. 12, 2012.

Gary Richardson, pro se.

W. Christopher C. Doane, Department Counsel, Harrisburg, for respondent.

Katherine A. Lowery, Pittsburgh, for intervenor Insurance Placement Facility of Pennsylvania.

BEFORE: LEADBETTER, Judge, and COHN JUBELIRER, Judge, and COVEY, Judge.

OPINION BY Judge COVEY.

Gary Richardson (Richardson), pro se, petitions for review of the Pennsylvania Insurance Department Commissioner's (Department) March 17, 2011 adjudication and order affirming the Insurance Placement Facility of Pennsylvania's (Fair Plan) cancellation of Richardson's insurance policy pursuant to The Pennsylvania Fair Plan Act (Fair Plan Act).¹ There are three issues before this Court: (1) whether Richardson's appeal should be quashed because his amended brief fails to comply with the Pennsylvania Rules of Appellate Procedure; (2) whether the Department erred by finding that Fair Plan properly cancelled Richardson's provisional property insurance coverage; and (3) whether Richardson's civil rights were violated by the Department's failure to accept all of his evidence. We affirm.

On August 4, 2010, Richardson applied to Fair Plan for insurance of his residence located at 24212 North Center Road, Springboro, Crawford County, Pennsylvania.² On the application, Richardson denied that there was “any existing property damage.” Notes of Testimony, February 11, 2011 (N.T.), Ex. F–1 at 2. On August 11, 2010, Fair Plan issued Richardson a property insurance policy, accompanied by a notice that stated, in pertinent part:

This policy is marked ‘provisional,’ which means this property will be scheduled for an interior inspection. The inspection is part of our loss control efforts and to ensure that your policy is properly rated.

In the next week or so, the inspector will attempt to contact you to arrange a convenient time ... to inspect the property

....

If any hazards are found during the inspection, it may result in this policy costing more. You can prevent or eliminate any additional charges or cancellation of the policy, if the hazards are corrected and we are notified. A reinspection may be necessary.

N.T., Ex. F–2 at 1.

Richardson's property was inspected on August 25, 2010. In the inspection report, the inspector marked, “Other Hazardous Conditions,” and commented, “[Richardson] is doing work on [an] as he goes basis.... Rear porch area is collapsing and he plans to repair it soon.” N.T., Ex. F–3 at 2. On September 22, 2010, Fair Plan issued a notice of declination, which stated:

The Fair Plan cannot continue to provide coverage for this property unless the following is corrected:

1–Rear Porch Roof Collapsed

The Fair Plan will mail notice of cancellation for this policy unless the conditions mentioned above are corrected and the Fair Plan notified before 10/12/10[.]

Please provide copies of paid bills or other evidence to confirm that the work to correct the conditions has been done.

N.T., Ex. F–5. The notice provided the toll-free telephone number for Fair Plan, in case Richardson had any questions. Because it received no response, on October 22, 2010, Fair Plan issued a notice cancelling Richardson's policy effective at 12:01 p.m., November 27, 2010 because “[t]he property does not meet the following underwriting standards—rear porch roof collapsed.” N.T., Ex. F–6.

By November 8, 2010 letter, Richardson requested that his home remain insured because his intended porch repairs were put on hold due to an ongoing criminal investigation.³ By November 15, 2010 letter, Angela Michaels, an investigator for the Department's Bureau of Consumer Services (BCS), notified Fair Plan that BCS received a complaint from Richardson regarding its cancellation of his Fair Plan policy.⁴ By November 18, 2010 letter, a Fair Plan underwriter notified Ms. Michaels that Fair Plan cancelled the policy because it received no response to its September 22nd notice of declination. In a November 22, 2010 investigative report, Ms. Michaels notified Richardson that BCS reviewed Fair Plan's termination of his policy, and stated:

The cancellation notice was issued because there was no response from you or your broker [to the September 22, 2010 notice of declination] within the allotted time. Our investigation has determined that the company met the requirements of Act 205 and the [Department] therefore finds that your policy may be terminated. Please note that your residential ... property coverage will terminate on 11/27/10. Therefore, you are encouraged to secure alternative coverage promptly.

N.T., Ex. F–9 at 1–2. By letter faxed to Ms. Michaels on December 3, 2010, Richardson requested a hearing regarding his policy cancellation. On December 24, 2010, Richardson's home was destroyed by fire that was unrelated to the porch's condition. Richardson subsequently submitted a complaint form ⁵ to the Department related to Fair Plan's cancellation of his policy, stating:

I was in contact with Angela Michaels and [Fair Plan representative] Paul Smolinski at the Fair Plan re reinstatement of my policy. I spoke to them on many occasions in November and December.I faxed a letter requesting an extension/reinstatement on Dec 1, 2010. Mr. Smolinski told me that he will check with claims and get back to me. I never heard from him. I called back and left voice mail with no response. Subsequently on 12/24/2010 my house burned to the ground.

N.T., Ex. R–7.

Following a hearing at which Richardson and Mr. Smolinski testified, the Department affirmed Fair Plan's termination of Richardson's policy on the basis that it was cancelled in accordance with the Fair Plan Act and Fair Plan's rules and procedures. Richardson requested reconsideration, which the Department denied. Richardson appealed to this Court.⁶ Fair Plan intervened.

Preliminarily, we will address the Department and Fair Plan's arguments that Richardson's appeal should be quashed because his amended brief fails to comply with the Pennsylvania Rules of Appellate Procedure. They specifically contend that meaningful appellate review is precluded because the amended brief fails to: address any standard or scope of review, concisely state the questions involved and how the Department addressed them, include an argument section or citation to any legal authority; the statement of the case merely contains argument; the summary of argument contains five pages of less than succinct argument; and, instead of referencing and containing the Department's March 17, 2011 adjudication and order, it references and contains the order and decision denying Richardson's request for reconsideration.

Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 2101 states:

Briefs ... shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief ... of the appellant and are substantial, the appeal or other matter may be quashed or dismissed.

Pa. R.A.P. 2111 requires, in relevant part:

(a) General rule.—The brief of the appellant, except as otherwise prescribed by these rules, shall consist of the following matters, separately and distinctly entitled and in the following order:

(1) Statement of jurisdiction.

(2) Order or other determination in question.

(3) Statement of both the scope of review and the standard of review.

(4) Statement of the questions involved.

(5) Statement of the case.

(6) Summary of argument.

(7) Statement of the reasons to allow an appeal to challenge the discretionary aspects of a sentence, if applicable.

(8) Argument for appellant.

(9) A short conclusion stating the precise relief sought.

(10) The opinions and pleadings specified in Subdivisions (b) and (c) of this rule.

....

(b) Opinions below.—There shall be appended to the brief a copy of any opinions delivered by any court or other government unit below relating to the order or other determination under review, if pertinent to the questions involved. If an opinion has been reported, that fact and the appropriate citation shall also be set forth.

This Court has held that, because it

does not have the same opportunity as a trial court to hear testimony from witnesses and to weigh the credibility of those witnesses ... the Pennsylvania Rules of Appellate Procedure exist to ensure that litigants present appeals of sufficient clarity to allow appellate courts to evaluate those appeals with the benefit only of the record below.

Daly v. Unemployment Comp. Bd. of Review, 158 Pa.Cmwlth. 130, 631 A.2d 720, 722 (1993). We acknowledge that the rules pertaining to the form and content of appellate briefs are mandatory. Lal v. Dep't of Transp., 755 A.2d 48 (Pa.Cmwlth.2000). They also “apply to lawyers and non-lawyers alike.” Busch v. Dep't of Transp., Bureau of Driver Licensing, 900 A.2d 992, 996 (Pa.Cmwlth.2006). However, when it comes to compliance with the Pennsylvania Rules of Appellate Procedure, “this Court is generally inclined to construe pro se filings liberally.” Smithley v. Unemployment Comp. Bd. of Review, 8 A.3d 1027, 1029–30 n. 6 (Pa.Cmwlth.2010).

Richardson's first brief was returned to him with an order in which this Court notified him that it lacked:

a. a table of contents or citations as required by Pa.R.A.P. 2174;

b. statement of jurisdiction as required by Pa.R.A.P. 2111(a)(1);

c. a copy of the order or other determination in question as required by Pa.R.A.P. 2111(a)(2);

d. a statement of the scope of review and standard of review as required by Pa.R.A.P. 2111(a)(3);

e. a statement of questions involved as required by Pa.R.A.P. 2111(a)(4);

f. a statement of the case as required by Pa.R.A.P. 2111(a)(5);

g. any summary of argument as required by Pa.R.A.P. 2111(a)(6);

h. any conclusion stating the relief sought as required by ...