RULES AND REGULATIONS
Title 4--ADMINISTRATION
Title 61--REVENUE
BOARD OF CLAIMS
[4 PA. CODE CH. 121]
[61 PA. CODE CH. 899]
Rules of Procedure
[27 Pa.B. 3046] The Board of Claims (Board) deletes 4 Pa. Code Chapter 121 (relating to rules of practice and procedure) and 61 Pa. Code §§ 899.1--899.12 (relating to practice and procedure) and adopts 61 Pa. Code §§ 899.101--899.109, 899.201--899.206, 899.301, 899.302, 899.401--899.403, 899.501, 899.601, 899.701 and 899.702.
There are several purposes for the amendments. First, the Board is deleting two sets of rules of practice and procedure in 4 Pa. Code Chapter 121 and 61 Pa. Code Chapter 899 which were duplicative and replacing them with a single set of updated rules. Second, the prior rules referred to rules of practice and procedure in 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) which no longer govern practice before the Board. Section 2(a) of the act of April 28, 1978 (P. L. 202, No. 53) (72 P. S. § 4651-8) and case law, Pennsylvania Institutional Health Services, Inc. v. Commonwealth of Pennsylvania, Department of Corrections, 167 Pa. Cmwlth. 226, 647 A.2d 692 (1994) mandate that all matters before the Board are governed by the Pennsylvania Rules of Civil Procedure (Pa.R.C.P.) The new rules supplement the Pa.R.C.P. and are compatible with it. Finally, the Board has experienced a steady increase in the volume of claims and their complexity. The new rules will provide for more expeditious and efficient handling of claims.
The Board is an independent agency and may promulgate rules of practice and procedure under the proposed rulemaking omitted process. Under section 204(1) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204) (CDL) and the regulation thereunder, 1 Pa. Code § 7.4, proposed rulemaking has been omitted.
Notice of the Board's intention to submit new rules by final order, proposed rulemaking omitted was published in the Pennsylvania Bulletin on April 19, 1997. The public was invited to review the rules and submit comments. Also, copies of the rules were sent to State agencies and attorneys who regularly appear before the Board, to the Independent Regulatory Review Commission (IRRC) and the Office of General Counsel (OGC). In preparing these final-form rules, the Board has considered the comments it received.
Analysis
The following is a description of some of the major changes included in the rules governing practice before the Board.
§ 899.102--Scope of Rules
The new rules of procedure supplement the Pa.R.C.P. which govern all matters before the Board. As indicated in this Preamble, this is mandated by statute and case law. All references to 1 Pa. Code II relating to the general rules of administrative procedure have been eliminated because they do not apply to the Board.
§ 899.106--Representation by counsel
This rule requires that counsel appearing before the Board must be admitted to practice and in good standing before the Supreme Court of Pennsylvania. If counsel is not admitted to practice in this Commonwealth, counsel shall have an associate counsel who is qualified to practice in this Commonwealth.
§ 899.108--Service of legal papers other than the claim
Except for the original claim and any amended claim, which are served in accordance with § 899.201, all documents filed with the Board shall be served on all parties to the action and a certificate of service shall be attached to the documents. This rule changes the procedure under 61 Pa. Code § 899.4 with respect to filing and serving the response to the complaint.
§ 899.201--Statement of Claim
The rule replaces 61 Pa. Code § 899.3 and adds the requirement that each claim filed with the Board shall include the name, address, telephone number and Supreme Court Identification Number of counsel for the plaintiff.
§ 899.202--Copies of written contracts
When the claim is based on a written contract, the plaintiff shall attach a copy of the contract or relevant portions as an exhibit to the claim. The exception to this requirement is if the plaintiff avers that all copies of the contract are in the possession of the defendant. This rule replaces 4 Pa. Code § 121.11.
§ 899.204--Response to Claim
Within 30 days of service of the claim, the defendant shall file an original and two copies of its answer or other response with the Board and serve all parties. This section extends the time frame from 20 to 30 days for the defendant to respond to a claim. This rule replaces 61 Pa. Code § 889.4.
§ 899.205--Preliminary Objections
A major change in practice before the Board is that a party filing preliminary objections must also file a supporting brief. Failure to file a brief may result in automatic dismissal of the preliminary objections. The requirement of a brief was added to discourage the filing of frivolous preliminary objections and to aid the Board in its consideration of the merits of the preliminary objections
§ 899.401--Discovery
Section 899.401(a) eliminates the filing of discovery material with the Board. It is similar to Pa.R.C.P. 4002.1, but has an additional requirement. Section 899.401(e) requires that the party serving a discovery request or response file a notice of service and § 899.401(f) sets forth the form of the notice. This will allow the Board to maintain a docket of discovery requests and responses and be apprised of the prosecution of the case.
§ 899.403--Limitation on discovery
To prevent discovery abuse, the Board limits each party in an action to the service of 60 interrogatories or requests, or both, for admission. To be exempt from this limitation, a party must file a motion and show good cause for the additional discovery.
Authority
The amendments are promulgated under section 10 of the act of May 20, 1937 (P. L. 728, No. 193) (72 P. S. § 4651-10). This section provides the Board with the power and duty to promulgate rules governing practice before it.
Fiscal Impact
The Board has determined that deletion of the prior rules and adoption of the new rules will have no significant fiscal impact.
Paperwork
The amendments will not generate substantial additional paperwork for the public or the Commonwealth.
Effective Date
These amendments will become effective 30 days after publication in the Pennsylvania Bulletin.
Contact Person
The person to contact for an explanation of the new rules is Robert McLaughlin, Esquire, Senior Counselor, Board of Claims, 200 N. Third Street, Suite 700, Harrisburg, PA 17101-1501 (717) 787-3325.
Regulatory Review
Under section 5(f) of the Regulatory Review Act (71 P. S. § 745.5(f)), on May 9, 1997, the Board submitted a copy of the rules with the proposed rulemaking omitted to IRRC and the Chairpersons of the Senate and House Finance Committees. On the same date, the amendments were submitted to the Office of Attorney General (OAG) for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506). In accordance with section 5(c)of the Regulatory Review Act, the amendments were deemed approved by the Senate Finance Committee on May 29, 1997, and deemed approved by the House Finance Committee on May 29, 1997. IRRC met on June 5, 1997, and approved the amendments.
Findings
The Board finds that:
(1) There is good cause to delete the rules of practice and procedure, 4 Pa. Code Chapter 121 and 61 Pa. Code §§ 899.1--899.12.
(2) The new rules of procedure, 61 Pa. Code §§ 899.101--899.702 are necessary and appropriate for practice before the Board.
(3) Under section 204(1) of the CDL, the proposed rulemaking procedures in sections 201 and 202 of the CDL (45 P. S. §§ 1201 and 1202) do not apply because these amendments relate to agency practice.
Order
The Board, acting under its authorizing statute, orders that:
(a) The regulations of the Board, 61 Pa. Code Chapter 899, are amended by deleting §§ 899.1--899.12 and adding §§ 899.101--899.109, 899.201--899.206, 899.301, 899.302, 899.401--899.403, 899.501, 899.601, 899.701 and 899.702.
(b) The regulations of the Board, 4 Pa. Code, are amended by deleting §§ 121.1--121.17.
(c) The Chief Administrative Judge shall submit this order and Annex A to the OAG for approval as to form and legality as required by law.
(d) The Chief Administrative Judge shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect July 28, 1997.
DAVID C. CLIPPER,
Chief Administrative Judge(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 3000 (June 21, 1997).)
Fiscal Note: 105-3. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 4. ADMINISTRATION
PART VI. ARBITRATION
CHAPTER 121. (Reserved) §§ 121.1 and 121.2. (Reserved).
§§ 121.11--121.17. (Reserved).
TITLE 61. REVENUE
PART VI. BOARD OF CLAIMS
CHAPTER 899. RULES OF PROCEDURE Subchap.
A. PRELIMINARY PROVISIONS B. PLEADINGS C. MOTIONS D. DISCOVERY E. PREHEARING F. HEARINGS G. SETTLEMENT
Subchapter A. PRELIMINARY PROVISIONS Sec.
899.1--899.12. (Reserved).
899.101. Title and citation of rules. 899.102. Scope of rules. 899.103. Definitions. 899.104. Principles of interpretation. 899.105. Jurisdiction of the Board. 899.106. Representation by counsel. 899.107. Entry of appearance. 899.108. Service of legal papers other than the claim. 899.109. Copy fees. §§ 899.1--899.12. (Reserved).
§ 899.101. Title and citation of rules.
This chapter shall be known as the Board of Claims Rules of Procedure and may be cited as BOC R.P.
§ 899.102. Scope of rules.
(a) This chapter and the Pennsylvania Rules of Civil Procedure (Pa.R.C.P.) govern all matters before the Board. If a discrepancy between this chapter and the Pa.R.C.P. arises, this chapter applies.
(b) When circumstances arise in individual cases when the application of any Board rule is impractical or inequitable, the Board, on its own motion or upon the request of a party and after notice to the parties, may prescribe other procedures as may be required by the circumstances in the particular case.
§ 899.103. Definitions.
In addition to the definitions in Pa.R.C.P. No. 76, the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Board--The Board of Claims of the Commonwealth.
Rule--A rule adopted by the Board.
Claim--The statement of facts describing the furnishing of goods or services, or both, to the Commonwealth, actions or inactions by Commonwealth employes which give rise to a demand for payment, and refusal by the Commonwealth to make payment.
§ 899.104. Principles of interpretation.
The principles of interpretation and rules of construction embodied in Pa.R.C.P. Nos. 101--153 apply to this chapter.
§ 899.105. Jurisdiction of the Board.
The Board has jurisdiction to hear and determine the following:
(1) Claims against the Commonwealth arising from contracts entered into with the Commonwealth when the amount in controversy is $300 or more.
(2) Claims against the Commonwealth for actions or inactions by its employes giving rise to implied contracts.
(3) Claims against the Commonwealth for goods or services, or both, furnished to the Commonwealth but not within the terms of valid, existing contracts.
§ 899.106. Representation by counsel.
(a) A person may be represented before the Board by an attorney who is admitted to practice and is in good standing before the Supreme Court of Pennsylvania.
(b) Parties represented by counsel not admitted to practice in this Commonwealth shall associate counsel qualified under subsection (a).
§ 899.107. Entry of appearance.
When counsel for plaintiff files a claim and counsel for defendant files a response, their appearances are deemed entered before the Board. Thereafter, a counsel's appearance for a party may not be withdrawn without leave of the Chief Administrative Judge, unless another lawyer has previously entered or simultaneously enters an appearance for the party.
§ 899.108. Service of legal papers other than the claim.
Except for the claim and any amended claim, pleadings and other documents filed with the Board shall be served upon all parties to the action. A certificate of service shall be attached to all filings with the Board.
§ 899.109. Copy fees.
The fee for copying is 25¢ per page for opinions, pleadings, briefs and exhibits, and $1 per page for docket sheets. The fee for certifying a document is $5.
Subchapter B. PLEADINGS Sec.
899.201. Statement of claim. 899.202. Copies of written contracts. 899.203. Oral contracts. 899.204. Response to claim. 899.205. Preliminary objections. 899.206. Amendment of pleadings. § 899.201. Statement of claim.
(a) A plaintiff shall prepare a concise and specific written statement of the claim, signed and verified by the plaintiff. The caption of the claim shall contain the full names of all parties to the claim. Each claim shall contain the name, address, telephone number and Supreme Court Identification Number of counsel for the plaintiff.
(b) The plaintiff shall file an original and four copies of the claim with the Board, accompanied by a $50 check made payable to the Commonwealth of Pennsylvania.
(c) Service of the claim and any amended claim will be made by the Board. The Board will serve one copy of the claim and any amended claim to the defendant involved, and one copy to the Attorney General.
(d) The claim is timely only if it is received at the Board's address within 6 months after it accrued.
§ 899.202. Copies of written contracts.
When the contract on which the claim is based is in writing, in whole, or in part, the plaintiff shall attach copies of the contract or relevant portions of the contract as an exhibit to all copies of the claim, unless one of the following exists:
(1) The plaintiff avers in the claim that all copies of the contract are in the possession of the defendant.
(2) The Chief Administrative Judge directs that the contract or relevant portions not be attached.
§ 899.203. Oral contracts.
When the contract on which the claim is based is oral, in whole or in part, the plaintiff shall plead the terms and details of the contract with particularity, and shall identify all agents who are alleged to have contracted on behalf of the defendant.
§ 899.204. Response to claim.
Within 30 days of service of the claim, the defendant shall file an original and two copies of its answer or other response with the Board. The answer, or other response, shall contain the name, address, telephone number and Supreme Court Identification Number of counsel for the defendant. The defendant or its counsel shall sign and verify the answer or other response.
§ 899.205. Preliminary objections.
(a) Preliminary objections shall be filed with the Board and served upon the adverse parties or their counsel. Preliminary objections shall be accompanied by a supporting brief. Failure to file a brief may result in automatic dismissal of the preliminary objections.
(b) Within 30 days after service of the preliminary objections, the adverse parties or their counsel shall file a response and a responsive brief with the Board and serve it upon the opposing parties or counsel.
§ 899.206. Amendment of pleadings.
(a) Form of amended pleading. An amended pleading, whether filed under Pa.R.C.P., by the agreement of the parties or by leave of the Board, shall be entirely restated and comply with the form of the original pleading, except an amendment allowed in the course of a hearing.
(b) Allowance by Board.
(1) If the amended pleading requires leave of the Board before a hearing, the party seeking the amendment shall give 5 days' notice to all parties of the intended application, enclosing a copy of the proposed amended pleading. The Board may allow the amendment or order the issue for argument.
(2) If the request for an amendment to a pleading is made at the hearing, the Board will dispose of the request at its discretion. If a continuance is granted by the Board, the party in whose favor the amendment is allowed shall file the amended pleading within 20 days after allowance by the Board, unless otherwise ordered.
Subchapter C. MOTIONS Sec.
899.301. Motions and petitions. 899.302. Form of briefs. § 899.301. Motions and petitions.
(a) Each motion or petition shall be deemed contested unless certified to the contrary by the moving party. Except as provided in subsection (c) and § 899.402(b) (relating to discovery motions), a brief shall accompany each motion or petition. A motion or petition not accompanied by a brief may be dismissed by the Board.
(b) Each answering party shall file its response with the Board within 30 days of the date of service of the moving party's motion or petition. A response shall be accompanied by a supporting brief.
(c) If the moving party certifies that the motion or petition is uncontested, no brief is required.
§ 899.302. Form of briefs.
A brief shall contain a statement of the pertinent facts of the case, the questions involved and the argument. The statement of questions involved shall be drawn so that the Board may quickly determine all the legal questions requiring determination. The argument shall be divided into as many parts as there are questions involved.
Subchapter D. DISCOVERY Sec.
899.401. Discovery. 899.402. Discovery motions. 899.403. Limitation on discovery. § 899.401. Discovery.
(a) Except when required under subsection (c) or (d), discovery material may not be filed with the Board. The party serving the discovery material or taking the deposition shall retain the original and be custodian of it.
(b) If a part of discovery material is used as evidence in connection with a motion, the relevant part shall be set forth, verbatim, in the motion or response. If discovery material is used as evidence at the hearing, the party offering it shall read it into the record or, if directed to do so by the Board, offer it as an exhibit.
(c) The Board will resolve a dispute concerning the accuracy of a quotation of discovery material used as provided in subsection (b) and may require production of the original paper or transcript.
(d) The Board, on its own motion, on the motion of a party or on an application by a nonparty, may require the filing of original discovery material. The parties may provide for the filing by stipulation.
(e) A party serving a request for discovery including depositions by oral examination, and a party filing written responses thereto shall file with the Board and serve upon all other parties or their counsel a notice of service substantially in the form prescribed in subsection (f). A party which files a motion or petition under § 899.301 or § 899.402 (relating to motions and petitions; and discovery motions) in response to a discovery request or a discovery response is not required to file and serve a notice of service in addition thereto.
(f) The notice of service required by subsection (e) shall be substantially in the following form:
(CAPTION)
Notice of Service
You are hereby notified that on the ____ day of ______ , 19 __ , (identify discovery request or response) was served upon the following parties or their counsel via United States Mail, first class, postage prepaid, and addressed as follows:
(names and addresses to whom discovery request or response were directed)
__________
Name
Supreme Court I. D. No.
Address
Phone
Attorneys for§ 899.402. Discovery motions.
(a) A discovery motion shall be prepared in accordance with § 899.301 (relating to motions and petitions).
(b) A moving party filing a motion to compel answers to interrogatories or production of documents need not file a brief with the motion, if the motion avers only that a response or objection has not been timely served. The Pa.R.C.P. which are relied upon shall be cited in the motion. The Board may grant or deny the motion without waiting for a response.
§ 899.403. Limitation on discovery.
(a) During the pendency of an action, a party may not serve on another party more than 60 interrogatories, including all subparts and requests for admission.
(b) If the party files a motion showing good cause, the Chief Administrative Judge may allow a party to exceed the limit in subsection (a). The motion shall be prepared in accordance with § 899.301 (relating to motions and petitions).
Subchapter E. PREHEARING Sec.
899.501. Prehearing procedure. § 899.501. Prehearing procedure.
(a) Status conference.
(1) At the discretion of the Chief Administrative Judge, a status conference may be held within 120 days after the filing of the claim. The conference may be by telephone or in person. Matters to be considered at the conference include:
(i) Jurisdictional defects.
(ii) Prospects of amicable settlement.
(iii) Establishing a schedule for remaining prehearing proceedings including discovery deadlines and prehearing memoranda filings.
(2) A scheduling order will be issued as soon as practical after the conference.
(b) Prehearing memoranda. Prehearing memoranda shall be filed and served as directed by the Chief Administrative Judge in the scheduling order. Unless the scheduling order directs otherwise, the prehearing memorandum of each party shall include:
(1) A statement of the issues in the case.
(2) The identification and numbering of exhibits.
(3) A stipulation of facts not in dispute to be prepared jointly by the parties, which may include qualification of expert witnesses and admission of exhibits.
(4) Identification of witnesses who will appear at the hearing and a short summary of the testimony expected from each witness.
(5) Copies of expert witnesses' final reports.
(c) Prehearing conferences and settlement conferences.
(1) The Chief Administrative Judge will determine the necessity for the scheduling of, and the procedures for, a prehearing or settlement conference. Notice of a conference will be given to counsel or unrepresented parties.
(2) The Chief Administrative Judge may dismiss the case, or enter judgment against a party for failing to participate in a prehearing conference or failing to provide the required memorandum.
(3) The Board may refuse to allow a party to call witnesses or offer evidence not disclosed at the prehearing conference or in the prehearing memorandum.
Subchapter F. HEARINGS Sec.
899.601. Place of hearings. § 899.601. Place of hearings.
Unless the Board directs another location, proceedings before the Board and its panels will be held in Harrisburg.
Subchapter G. SETTLEMENT Sec.
899.701. Notice of proposed settlement. 899.702. Termination of case by settlement. § 899.701. Notice of proposed settlement.
If during the pendency of an action before the Board the parties agree upon a proposed settlement, the parties shall immediately notify the Board.
§ 899.702. Termination of case by settlement.
Within 10 days after the conclusion of the settlement, the parties shall notify the Board in writing. The Board will mark its record of the case ''settled.''
[Pa.B. Doc. No. 97-1023. Filed for public inspection June 27, 1997, 9:00 a.m.]
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