          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James D. Schneller,                   :
                       Petitioner     :
                                      :
            v.                        :        No. 4 C.D. 2017
                                      :
Teresa D. Miller, Commissioner,       :        Submitted: September 22, 2017
Pennsylvania Department of Insurance, :
Independence Blue Cross and Health    :
Insurance Marketplace,                :
                       Respondents :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                           FILED: January 9, 2018

             James D. Schneller (Consumer), representing himself, seeks review of
what he describes as decisions and a deemed denial or refusal to act by the
Commissioner of the Department of Insurance (Department) on Consumer’s
complaint concerning Independence Blue Cross (Insurer). Consumer asserts that
Insurer mishandled his health insurance policy. Upon review, we quash the petition
for review for lack of subject matter jurisdiction.


                                   I. Background
             Consumer submitted a form complaint to the Department in January
2016 (the Complaint), raising concerns about Insurer’s handling of Consumer’s
health insurance coverage. The Complaint related to issues arising from July 2010
through June 2014. The complaint included copies of Consumer’s correspondence
with Insurer from 2011 and 2012 concerning those issues. Consumer alleged that
Insurer improperly allowed gaps to occur in his health insurance, and that Insurer
improperly issued policy renewals. Consumer also alleged that Insurer overcharged
for his health insurance premiums.


               The Department contacted Insurer and requested information on
Consumer’s behalf concerning his coverage history. At the Department’s behest,
Insurer reviewed Consumer’s insurance and payment history. Insurer stated that it
owed Consumer no refund. Insurer relayed this information to Consumer.


               Consumer, dissatisfied with Insurer’s response, sent additional
correspondence to the Department asking it to take further action. The Department
reopened its file and again contacted Insurer, who again reviewed Consumer’s
insurance account. This time, Insurer determined it owed Consumer a refund of
$138.00, which it paid to him. Insurer provided detailed account records to the
Department concerning Consumer’s health insurance coverage history, which the
Department forwarded to Consumer.        The Department also relayed Insurer’s
suggestion that Consumer contact the Federal Marketplace directly for more
information.


               Consumer continued to insist Insurer owed him more money, and the
Department contacted Insurer yet again. Insurer stated it owed Consumer no further
refund. The Department once again relayed Insurer’s response to Consumer. The
Department also suggested that Consumer’s remaining concerns appeared to relate




                                         2
to his Medicaid coverage, and that he could contact the Department of Health for
additional information.


             The record indicates the Department took no position at any time
concerning the merits of either the Complaint or Insurer’s responses to the
Department’s inquiries on Consumer’s behalf. The record contains the following
correspondence from the Department to Consumer: (1) a letter dated March 1, 2016,
relaying Insurer’s response to Consumer’s concerns and referring Consumer to the
Federal Marketplace for additional information; (2) a letter dated April 22, 2016,
relaying Insurer’s response to Consumer’s ongoing concerns, and including
Insurer’s repeated suggestion that Consumer contact the Federal Marketplace for
additional information; (3) a letter dated May 9, 2016, informing Consumer that the
Department reopened his file and would seek additional responses from Insurer to
address Consumer’s remaining concerns; (4) a letter dated May 27, 2016,
transmitting a copy of the account history information supplied by Insurer, and
informing Consumer that Insurer found an overpayment and would refund $138.00
to Consumer; (5) a letter dated June 16, 2016, noting that Consumer’s most recent
concern related to Medicaid, and referring Consumer to the Pennsylvania
Department of Human Services for information; and, (6) a letter dated October 27,
2016, informing Consumer that his most recent concerns were previously addressed
in the Department’s letter dated May 27, 2016, that his file remained closed, and that
he could seek advice from an attorney on any unresolved issues. Reproduced Record
(R.R.) at 20a, 26a, 31a, 33a, 42a, 56a.


             Notably, each letter contained the following endorsement:



                                          3
               The Insurance Department Bureau of Consumers Services
               reviews consumer complaints that may relate to the insurance
               laws of the Commonwealth. This letter is intended solely to
               provide you with the results of our efforts responding to your
               recent inquiry. It does not affect any other legal rights or
               remedies you may have, including any ability you may have to
               seek relief in court or some other forum. Further, be advised
               that this communication does not constitute an adjudication
               under the Administrative Agency Law.


Id. (emphasis added). Thus, the Department was careful to inform Consumer in each
communication that it was not adjudicating his complaint, but that he might have
legal rights in a different forum.


               Consumer persisted in demanding relief from the Department,
including a hearing on the Complaint. When the Department informed him that his
file was closed and would remain so, he filed a petition for review with this Court.


                                     II. Discussion
               This Court has subject matter jurisdiction over appeals from
adjudications of government agencies. 42 Pa. C.S. §763. Here, however, the
Department never issued any adjudication.


               An adjudication is a “final order, decree, decision, determination or
ruling by an agency …” following a proceeding. 2 Pa. C.S. §101. In this case,
Consumer misapprehends the nature of the Department’s activities on his behalf. As
detailed above, the Department limited its activities to making inquiries and relaying
information.




                                           4
             A letter can constitute an agency adjudication, requiring notice and a
hearing, if a two-prong test is met: 1) the letter must be an agency’s final order,
decree, decision, determination or ruling; and 2) it must impact on a party’s personal
or property rights, privileges, immunities, duties, liabilities or obligations. NHS
Human Services of PA v. Dep’t of Public Welfare, 985 A.2d 992 (Pa. Cmwlth.
2009). An agency’s statement that the “matter is now considered closed” does not
necessarily indicate an “adjudication.” In re Malehorn, 106 A.3d 816 (Pa. Cmwlth.
2014), aff’d in part, appeal den’d in part sub nom. Frasconi v. Com., Dep’t of State,
Bureau of Comm’ns, 111 A.3d 167 (Pa. 2015). When an agency’s decision or
refusal to act leaves a complainant with no other forum in which to assert his or her
rights, the agency’s act can be an “adjudication.” Montessori Regional Charter
School v. Millcreek Twp. School Dist., 55 A.3d 196 (Pa. Cmwlth. 2012).


             Applying the principles discussed above, the Department’s letters do
not amount to an “adjudication,” for several reasons. First, there is no obvious
determination made by the Department. Second, it is unclear what personal or
property rights, privileges, immunities, duties, liabilities or obligations are at issue
beyond Consumer’s contractual rights and obligations involving Insurer. Third,
Consumer has recourse to common law remedies in other forums to assert his
contractual rights involving Insurer.


             Further, the Department’s correspondence to Consumer in this case
stands in contrast to that in Goldstein v. Department of Insurance, 745 A.2d 1271
(Pa. Cmwlth. 2000). In Goldstein, a consumer complained to the Department when
his insurer stopped allowing him to pay his annual premium in installment payments.



                                           5
After investigating, the Department sent the consumer a letter stating that the
insurer’s decision to require lump sum premium payments was reasonable in light
of the consumer’s history of late payments and cancellation notices. The consumer
sought review, and the Department argued it had issued no adjudication subject to
this Court’s review. This Court found the Department’s letter constituted an
adjudication, because the Department determined the merits of a consumer
complaint and made a finding that the insurer’s position was reasonable.


             In this case, however, the record correspondence demonstrates that the
Department never conducted any proceeding or made any determination. It merely
sent inquiries to Insurer on Consumer’s behalf and relayed to Consumer the
responses Insurer provided. The Department took no position on either the propriety
of Insurer’s conduct or the validity of Consumer’s concerns. Moreover, as set forth
above, the Department repeatedly advised Consumer that it was not issuing an
adjudication. Indeed, Consumer expressly acknowledges that the Department never
issued any determination regarding his Complaint. Pet’r’s Br., at 6. Thus, the
Department’s activity did not constitute a proceeding, and it did not require or lead
to an adjudication.


             Consumer urges, however, that the absence of an adjudication is itself
appealable as a “deemed action” by the Department. Pet’r’s Br., at 13. Consumer
characterizes his ongoing correspondence with the Department as a series of appeals,
and then argues that those appeals were deemed denied because the Department
failed to act on them.




                                         6
             This alternative argument suffers from the same flaw as the first. The
Department never made an initial determination.          Thus, even assuming that
Consumer’s further correspondence was procedurally sufficient to constitute an
appeal, there was nothing from which to appeal. Therefore, the Department’s
purported inaction could not constitute a “deemed action” giving rise to a right of
judicial review.


                                  III. Conclusion
             Without an adjudication by the Department, this Court lacks subject
matter jurisdiction to review the Department’s activities. Accordingly, we quash
Consumer’s petition for review.      We do so without prejudice to Consumer’s
remaining ability, if any, to pursue a private contract claim in another forum.




                                       ROBERT SIMPSON, Judge




                                          7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James D. Schneller,                   :
                       Petitioner     :
                                      :
            v.                        :   No. 4 C.D. 2017
                                      :
Teresa D. Miller, Commissioner,       :
Pennsylvania Department of Insurance, :
Independence Blue Cross and Health    :
Insurance Marketplace,                :
                       Respondents :


                                 ORDER

            AND NOW, this 9th day of January, 2018, Petitioner James D.
Schneller’s petition for review is QUASHED.




                                    ROBERT SIMPSON, Judge
