[32 Pa.B. 3085]
[Continued from previous Web Page]
MOTIONS § 1021.91. General.
(a) This section applies to all motions except those made during the course of a hearing.
(b) Motions and responses shall be in writing, signed by a party or its attorney and shall be accompanied by a proposed order.
(c) A copy of the motion or response shall be served on the opposing party. The motion or response shall include a certificate of service indicating the date and manner of service on the opposing party.
(d) A motion shall set forth in numbered paragraphs the facts in support of the motion and the relief requested.
(e) A response to a motion shall set forth in correspondingly-numbered paragraphs all factual disputes and the reason the opposing party objects to the motion. Material facts set forth in a motion, other than a motion for summary judgment or partial summary judgment, that are not denied may be deemed admitted for the purposes of deciding the motion.
(f) Except in the case of motions for summary judgment or partial summary judgment, for purposes of the relief sought by a motion, the Board will deem a party's failure to respond to a motion to be an admission of all properly-pleaded facts contained in the motion.
(g) Except as provided in § 1021.94(e) (relating to dispositive motions), the moving party may not file a reply to a response to its motion, unless the Board orders otherwise.
(h) Subsection (b) supplements 1 Pa. Code §§ 33.11 and 35.178 (relating to the execution; and presentation of motions). Subsection (c) supplements 1 Pa. Code § 33.32 (relating to service by a participant) and supersedes 1 Pa. Code §§ 33.35 and 33.36 (relating to proof of service; and form of certificate of service). Subsections (d)--(f) supplement 1 Pa. Code §§ 35.177 and 35.178 (relating to the scope and content of motions; and presentation of motions).
§ 1021.92. Procedural motions.
(a) This section applies to motions pertaining to the procedural aspects of a case, including motions for continuance, for expedited consideration, for extensions of time in which to file documents and for stay of proceedings.
(b) Procedural motions do not require verification.
(c) Procedural motions shall contain a statement indicating the nonmoving party's position on the relief requested or a statement that the moving party, after a reasonable effort, has been unable to determine the nonmoving party's position.
(d) If all parties consent to the relief requested, the request may be embodied in a letter, provided the letter indicates the consent of the other parties.
(e) Requests for extensions or continuances, whether in letter or motion form, shall be accompanied by a proposed order.
(f) A response to a procedural motion shall be filed with the Board within 15 days of the date of service of the motion unless otherwise ordered by the Board.
(g) Procedural motions may not be accompanied by supporting memoranda of law unless otherwise ordered by the Board.
(h) Subsection (b) supplements 1 Pa. Code § 33.12 (relating to verification). Subsections (c) and (e) supplement 1 Pa. Code § 35.177 (relating to the scope and contents of motions). Subsection (d) supplements 1 Pa. Code § 35.179 (relating to objections to motions).
§ 1021.93. Discovery motions.
(a) This section applies to motions filed to resolve disputes arising from the conduct of discovery.
(b) Discovery motions shall contain as exhibits the discovery requests and answers giving rise to the dispute.
(c) Responses to discovery motions shall be filed within 15 days of the date of service of the motion, unless the Board orders otherwise.
(d) A party may file a memorandum of law in support of its discovery motion or its response to a discovery motion. The supporting memorandum of law shall be filed at the same time the motion or response is filed.
(e) Subsection (b) supplements 1 Pa. Code § 33.12 (relating to verification). Subsections (b) and (d) supplement 1 Pa. Code § 35.177 (relating to the scope and contents of motions). Subsection (c) supersedes 1 Pa. Code § 35.179 (relating to objections to motions).
§ 1021.94. Dispositive motions.
(a) This section applies to dispositive motions.
(b) Motions for summary judgment or partial summary judgment and responses shall conform to Pa.R.C.P. 1035.1--1035.5 (relating to motion for summary judgment) except for the provision of the 30-day period in which to file a response.
(c) Dispositive motions shall be accompanied by a supporting memorandum of law. The Board may deny a dispositive motion if a party fails to file a supporting memorandum of law.
(d) A response to a dispositive motion may be filed within 25 days of the date of service of the motion, and may be accompanied by a supporting memorandum of law.
(e) A reply to a response to a dispositive motion may be filed within 20 days of the date of service of the response, and may be accompanied by a supporting memorandum of law.
(f) An affidavit or other document relied upon in support of a dispositive motion, response or reply, that is not already a part of the record, shall be attached to the motion, response or reply or it will not be considered by the Board in ruling thereon.
(g) Subsection (c) supplements 1 Pa. Code § 35.177 (relating to the scope and content of motions). Subsection (d) supersedes 1 Pa. Code § 35.179 (relating to objections to motions).
Comment: Subsection (d) supersedes the filing of a response within 30 days set forth in Pa.R.C.P. 1035.3(a).
§ 1021.95. Miscellaneous motions.
(a) This section applies to a motion not otherwise addressed in §§ 1021.92--1021.94 (relating to procedural motions; discovery motions; and dispositive motions), including a motion in limine, a motion to strike and a motion for recusal.
(b) Miscellaneous motions do not require verification.
(c) Responses to miscellaneous motions shall be filed within 15 days of the date of service of the motion, unless otherwise ordered by the Board.
(d) A memorandum of law in support of a miscellaneous motion or response to a miscellaneous motion shall be filed with the miscellaneous motion or response.
(e) Subsection (b) supplements 1 Pa. Code § 33.12 (relating to verification).
§ 1021.96. (Reserved).
§ 1021.98. (Reserved).
§ 1021.99. (Reserved).
PREHEARING PROCEDURES AND PREHEARING CONFERENCES § 1021.101. Prehearing procedure.
(a) Upon the filing of an appeal, the Board will issue a prehearing order providing that:
(1) Discovery shall be concluded within 90 days of the date of the prehearing order.
(2) The party with the burden of proof shall serve its expert reports and answers to all expert interrogatories within 120 days of the date of the prehearing order. The opposing party shall serve its expert reports and answers to all expert interrogatories within 30 days after receipt of the expert reports and answers to all expert interrogatories from the party with the burden of proof.
(3) Dispositive motions in a case requiring expert testimony shall be filed within 180 days of the date of the prehearing order. If neither party plans to call an expert witness, dispositive motions shall be filed within 150 days after the filing of the appeal unless otherwise ordered by the Board.
(4) The parties may, within 45 days of the date of the prehearing order, submit a Joint Proposed Case Management Order to the Board.
(b) A Joint Proposed Case Management Order shall propose alternate dates for the conclusion of discovery, the service of expert or supplemental reports, and the filing of dispositive motions. The Board may issue subsequent prehearing orders incorporating the alternate dates proposed by the parties or other dates the Board deems appropriate.
(c) After the Board resolves all dispositive motions, it will establish a hearing date for the remaining issues. The Board may also direct that the parties meet prior to the hearing to stipulate to uncontested facts, the qualifications of experts and the admissibility of exhibits.
(d) The parties shall file their prehearing memoranda at least 20 days before the scheduled hearing date.
(e) Subsection (d) supplements 1 Pa. Code § 35.121 (relating to initiation of hearings).
§ 1021.102. Discovery.
(a) Except as otherwise provided in this chapter or by order of the Board, discovery in proceedings before the Board shall be governed by the Pa.R.C.P. When the term ''court'' is used in the Pa.R.C.P., ''Board'' is to be understood; when the terms ''prothonotary'' or ''clerk of court'' are used in the Pa.R.C.P., ''Secretary to the Board'' is to be understood.
(b) Copies of requests for discovery or responses to requests are not to be filed with the Board unless they are necessary for the resolution of a discovery dispute or disposition of a motion pending before the Board.
(c) If a person or party is to be deposed by oral examination more than 100 miles from his or its residence or principal place of business, the Board may, upon motion, order the payment of reasonable expenses, including attorney's fees, as the Board deems proper.
(d) Discovery disputes shall be resolved pursuant to a motion filed in accordance with § 1021.93 (relating to discovery motions), except that to facilitate the prompt completion of discovery, the Board may hear argument on discovery disputes by telephone conference call at the time the dispute arises and may issue oral rulings which will be later memorialized in written orders.
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 35.145--35.152 (relating to depositions).
§ 1021.103. Subpoenas.
(a) Except as otherwise provided in this chapter or by order of the Board, requests for subpoenas and subpoenas shall be governed by Pa.R.C.P. 234.1--234.4 and 234.6--234.9. When the term ''court'' is used in Pa.R.C.P. ''Board'' is to be understood; when the terms ''Prothonotary'' or ''clerk of court'' are used in Pa.R.C.P. ''Secretary to the Board'' is to be understood.
(b) Proof of service of the subpoena need not be filed with the Board.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 35.139 and 35.142 (relating to fees of witnesses; and subpoenas).
§ 1021.104. Prehearing memorandum.
(a) A prehearing memorandum shall contain the following:
(1) A statement of the facts in dispute and the facts upon which the parties agree.
(2) A statement of the legal issues in dispute, including citations to statutes, regulations and caselaw supporting the party's position.
(3) A description of scientific tests upon which the party will rely and a statement indicating whether an opposing party will object to their use.
(4) A list of expert witnesses whose qualifications will not be challenged and which may be entered into the record as an unchallenged exhibit.
(5) A summary of the testimony of each expert witness.
(6) The proposed order of witnesses.
(7) A list of the exhibits the party seeks to introduce into evidence and a statement indicating whether the opposing party will object to their introduction.
(8) Signed copies of any stipulations reached by the parties.
(b) The Board may impose sanctions on a party which does not comply with the requirements of subsection (a). These sanctions may include the preclusion of testimony or documentary evidence and the cancellation of the hearing.
(c) The requirements of this section apply only to a party's case-in-chief.
§ 1021.105. Prehearing conferences.
(a) The Board, on its own motion or on motion of a party, may hold a conference either prior to or during a hearing for the purpose of considering offers of settlement, adjustment of the proceeding or any issue therein, or other matters to expedite the orderly conduct and disposition of a hearing.
(b) A stipulation of the parties or rulings of the Board as a result of the conference shall be binding upon the parties.
(c) The Board may issue prehearing orders as it considers necessary for limiting issues of fact and law.
(d) The Board will, at any time, be authorized to delay a formal hearing and order settlement discussions or stipulations, either on or off the record.
(e) Subsections (a)--(d) supplement 1 Pa. Code §§ 35.111--35.115.
§ 1021.106. Voluntary mediation.
(a) Upon request by all the parties, the Board may stay a matter for up to 120 days to allow the parties to utilize voluntary mediation services.
(b) The parties are responsible for selection of a mediator and payment of the mediator's fees.
(c) The request shall be filed at least 14 days before initiation of hearings by the Board. The request shall identify the mediator selected and shall certify that the parties have made arrangements for payment of the mediator's fee.
(d) At the end of the initial stay, the parties shall jointly file a report, prepared and signed by the mediator, which sets forth the history of mediation activities conducted. The parties may request an additional stay if necessary to complete the mediation process.
(e) The grant of an additional stay for mediation is in the Board's discretion and the Board may impose limitations the Board deems appropriate.
(f) A settlement reached by the parties as a result of voluntary mediation shall be submitted to the Board for approval under § 1021.141 (relating to termination of proceedings).
(g) Only a signed settlement agreement shall be binding and it shall bind only the parties signing it.
(h) A party's participation in voluntary mediation may not be used as evidence in a proceeding before the Board. Communications between the parties during the mediation period shall be regarded as offers of settlement and are neither discoverable nor admissible as evidence in a proceeding before the Board.
(i) Subsections (a)--(h) supplement 1 Pa. Code §§ 35.111 and 35.115 (relating to conferences to adjust, settle or expedite proceedings; and offers of settlement).
§ 1021.107. Authority delegated to hearing examiners.
(a) The Board may appoint hearing examiners to preside at hearings. Subject to the approval of the Board member assigned to the case, the hearing examiner shall have the following authority:
(1) To schedule and regulate the course of the hearings.
(2) To administer oaths and affirmations.
(3) To rule on motions in limine, offers of proof and the admission or exclusion of evidence.
(4) To conduct pretrial conferences, settlement conferences and related pretrial proceedings and to dispose of procedural matters.
(5) To schedule the filing of posthearing briefs following the conclusion of the hearing.
(6) To recommend to the Board member or to the Board an opinion and order or adjudication disposing of the matters considered at the hearing.
(b) Subsection (a) supersedes 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers).
§ 1021.108. (Reserved).
§ 1021.109. (Reserved).
HEARINGS § 1021.111. Initiation of hearings.
(a) If the proceedings are at issue and a hearing is required, a formal evidentiary hearing shall be scheduled and a notice of hearing shall be sent to all parties to the proceedings.
(b) Subsection (a) supersedes 1 Pa. Code § 35.121 (relating to initiation of hearings).
§ 1021.112. Waiver of hearings.
(a) A hearing need not be held if waived by appellant or respondent or if parties stipulate the essential facts or agree to submit direct and rebuttal testimony or documentary evidence in affidavit form (sworn or affirmed on personal knowledge) or by deposition.
(b) Subsection (a) supersedes 1 Pa. Code § 35.101 (relating to waiver of hearing).
§ 1021.113. Continuance of hearings.
(a) Hearings may not be continued except for compelling reasons. Requests for continuances shall be submitted to the Board in writing with a copy served upon the other parties to the proceedings, except that during the course of a hearing in a proceeding, the requests may be made by oral motion in the hearing.
(b) Subsection (a) supersedes 1 Pa. Code § 31.15 (relating to extensions of time).
§ 1021.114. Venue of hearings.
At the discretion of the Board, hearings will be held at the Commonwealth facility nearest the location of the complaint sought to be remedied by the Department with consideration for the convenience of witnesses, the public and the parties in attending the hearings.
§ 1021.115. View of premises.
The Board may upon reasonable notice and at reasonable times inspect any real estate including a body of water, industrial plant, building or other premises when the Board is of the opinion that a viewing would have probative value in a matter in hearing or pending before the Board.
§ 1021.116. Conduct of hearings.
(a) Hearings may be held, at the discretion of the Board, before the Board as a whole, by individual Board members sitting as administrative law judges, or by hearing examiners who are not members of the Board. Hearings held by hearing examiners not members of the Board will be decided by the Board based upon its review of the record and the examiner's proposed adjudication. All final decisions shall be decisions of the Board decided by majority vote. Petitions for supersedeas and other petitions and motions may be decided by the Board member hearing the petition or motion.
(b) Subsection (a) supersedes 1 Pa. Code § 35.123 (relating to conduct of hearings).
§ 1021.117. Presentation by the parties.
(a) Parties shall have the right to an opening statement, presentation of evidence, cross-examination, objection, motion and argument, and closing argument.
(b) The party with the burden of proof is required to make a prima facie case by the close of its case-in-chief.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.126 (relating to presentation by the parties).
§ 1021.118. Transcript.
(a) Hearings shall be stenographically reported and a transcript of the report shall be a part of the record.
(b) Parties desiring copies of the transcript shall obtain the copies from the official reporter.
(c) Parties shall have the opportunity to review a copy of the transcript on file with the Board.
(d) Subsections (a)--(c) supplement 1 Pa. Code §§ 35.131--35.133 (relating to general provisions).
§ 1021.120. (Reserved).
EVIDENCE § 1021.121. Motions in limine.
A party may obtain a ruling on evidentiary issues by filing a motion in limine.
§ 1021.122. Burden of proceeding and burden of proof.
(a) In proceedings before the Board, the burden of proceeding and the burden of proof shall be the same as at common law in that the burden shall normally rest with the party asserting the affirmative of an issue. It shall generally be the burden of the party asserting the affirmative of the issue to establish it by a preponderance of the evidence. In cases where a party has the burden of proof to establish the party's case by a preponderance of the evidence, the Board may nonetheless require the other party to assume the burden of proceeding with the evidence in whole or in part if that party is in possession of facts or should have knowledge of facts relevant to the issue.
(b) The Department has the burden of proof in the following cases:
(1) When it assesses or files a complaint for a civil penalty.
(2) When it files a complaint for any other purpose.
(3) When it revokes or suspends a license, permit, approval or certification.
(4) When it issues an order.
(c) A party appealing an action of the Department shall have the burden of proof in the following cases:
(1) When the Department denies a license, permit, approval or certification.
(2) When a party who is not the recipient of an action by the Department protests the action.
(3) When a party to whom a permit approval or certification is issued protests one or more aspects of its issuance or modification.
(4) When a party appeals or objects to a settlement of a matter between the Department and a private party.
§ 1021.123. Evidence.
(a) The Board is not bound by technical rules of evidence and relevant and material evidence of reasonable probative value is admissible. The Board generally applies the Pennsylvania Rules of Evidence.
(b) Copies of an exhibit to be offered into evidence shall be made available to parties at the time it is identified as an exhibit unless otherwise ordered by the Board.
(c) Witnesses shall be sworn or shall affirm.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 35.137--35.139, 35.162 and 35.166.
§ 1021.124. Written testimony.
(a) Written testimony of a witness, on numbered lines in question and answer form, may be admitted into evidence provided the witness is present for cross-examination.
(b) Written testimony shall be filed concurrently with the prehearing memorandum unless a different time is prescribed by the Board. Objections to written testimony which can be reasonably anticipated prior to hearing shall be in writing and filed at least 5 days before the hearing unless otherwise ordered by the Board.
(c) If a party desires to file written testimony prior to the close of the record, it may do so only upon motion approved by the Board. This approval shall include the scope of the written testimony and the time for filing the testimony and service upon opposing counsel.
§ 1021.125. Official notice of facts.
(a) The Board may take official notice of the following:
(1) Matters which may be judicially noticed by the courts of the Commonwealth.
(2) Facts which are not in dispute.
(3) Record facts reflected in the official docket of the Board as referenced in § 1021.41(a) (relating to docket).
(b) Any party shall, on timely request, be afforded an opportunity to show why the Board should not take official notice of items listed in subsection (a).
(c) A party requesting the taking of official notice after the conclusion of the hearing shall do so in accordance with § 1021.133 (relating to reopening of record prior to adjudication).
§ 1021.126. Limiting number of witnesses and additional evidence.
(a) The Board may limit the number of witnesses upon an issue and may request a party to present additional evidence on an issue.
(b) Subsection (a) supplements 1 Pa. Code §§ 35.127 and 35.128 (relating to limiting number of witnesses; and additional evidence).
POSTHEARING PROCEDURES § 1021.131. Posthearing briefs.
(a) The initial posthearing brief of each party shall contain proposed findings of fact (with references to the appropriate exhibit or page of the transcript), an argument with citation to supporting legal authority, and proposed conclusions of law.
(b) Reply briefs shall be as concise as possible and may not exceed 25 pages. Longer briefs may be permitted at the discretion of the presiding administrative law judge.
(c) An issue which is not argued in a posthearing brief may be waived.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 35.191--35.193 (relating to briefs).
§ 1021.132. Oral argument after hearing.
(a) A party may, within 5 days after the last post-hearing briefing and prior to adjudication, request oral argument before the entire Board. The Board may grant or deny the request.
(b) Subsection (a) supersedes 1 Pa. Code § 35.204 (relating to oral argument before presiding officer).
§ 1021.133. Reopening of record prior to adjudication.
(a) After the conclusion of the hearing on the merits of the matter pending before the Board and before the Board issues an adjudication, the Board, upon its own motion or upon a petition filed by a party, may reopen the record as provided in this section.
(b) The record may be reopened upon the basis of recently discovered evidence when all of the following circumstances are present:
(1) Evidence has been discovered which would conclusively establish a material fact of the case or would contradict a material fact which had been assumed or stipulated by the parties to be true.
(2) The evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.
(3) The evidence is not cumulative.
(c) The record may also be reopened to consider evidence which has become material as a result of a change in legal authority occurring after the close of the record. A petition to reopen the record on this basis shall specify the change in legal authority and demonstrate that it applies to the matter pending before the Board. Such a petition need not meet the requirements of subsection (d)(2) and (3).
(d) A petition seeking to reopen the record shall:
(1) Identify the evidence which the petitioner seeks to add to the record.
(2) Describe the efforts which the petitioner had made to discover the evidence prior to the close of the record.
(3) Explain how the evidence was discovered after the close of the record. A petition filed under subsection (b) shall be verified and all petitions shall contain a certification by counsel that the petition is being filed in good faith and not for the purpose of delay.
(e) The petition shall be served upon the parties to the proceedings. A petition will be treated as a miscellaneous motion under § 1021.95 (relating to miscellaneous motions) except that the motion would have to be verified or supported by affidavits. The answer shall be verified if it includes factual assertions which are not of record.
(f) Subsections (a)--(e) supersede 1 Pa. Code §§ 35.232 and 35.233 (relating to reopening of record; and reopening by agency action).
Comment: This sets a standard which is more stringent than the materiality test of Spang & Company v. DER, 592 A.2d 815 (Pa. Cmwlth. 1991), but broader than the grounds justifying reconsideration. The procedure differs from the standard motions practice under §§ 1021.91--1021.95 (relating to motions).
§ 1021.134. Adjudications.
(a) At the conclusion of the proceedings, the Board will issue an adjudication containing a discussion, findings of fact, conclusions of law and an order.
(b) The Board will serve a copy of the adjudication on all parties to the proceeding or their representatives.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.226 (relating to final orders).
TERMINATION OF PROCEEDINGS § 1021.141. Termination of proceedings.
(a) A proceeding before the Board may be terminated by one of the following:
(1) Withdrawal of the appeal prior to adjudication.
(2) Settlement agreement.
(3) Consent adjudication.
(b) When a proceeding is withdrawn prior to adjudication, withdrawal shall be with prejudice as to all matters which have preceded the action unless otherwise indicated by the Board.
(c) When a proceeding is sought to be terminated by the parties as a result of a settlement agreement, the form of the settlement agreement may be a consent order, a consent assessment of civil penalties, a permit modification, or any other basis for settling an action as permitted by law. If the settlement includes any action of the Department which would have to be published if taken independently of the settlement, that action shall be published by the Department as required by law. Appealable actions of the Department contained in the settlement may be appealed to the Board by an aggrieved person not a party to the settlement in the manner provided by law. A party to the settlement may appeal only to the extent permitted by the terms of the agreement. After the parties have agreed upon a settlement they may do one of the following:
(1) Notify the Board that the case has been settled and request that the docket be marked settled.
(2) Notify the Board that the case has been settled, provide the Board with a copy of the settlement agreement for inclusion in the record of the case, and request that the docket be marked settled.
(3) Notify the Board that the case has been settled, provide the Board with a copy of the settlement agreement for inclusion in the record, request the notice of the settlement be published in the Pennsylvania Bulletin and request that the case be marked as settled.
The notice of publication shall be in substantially the following form:
RE: (Case and Docket Number)
(The Commonwealth of Pennsylvania Department of Environmental Protection and (name of party or parties) have agreed to a settlement of the above matter. The Commonwealth had ordered under date of ______ , (name of party or parties) to:
(Summarize order or appeal describing other action of the Commonwealth from which appeal was taken.)
The parties have agreed to a settlement, the major provisions of which include:
(Summarize major substantive provisions of settlement agreement.)
Copies of the full agreement are in the hands of:
(Names, addresses of counsel and telephone numbers) and at the office of the Environmental Hearing Board, and may be reviewed by any interested party on request during normal business hours.
(d) When a proceeding is sought to be terminated by the parties pursuant to a consent adjudication, all parties shall submit the proposed consent adjudication to the Board for approval. No proposed consent adjudication will be approved by the Board unless it contains the agreement of all parties to the action. The Board may refuse to approve a proposed consent adjudication if any of its provisions are contrary to law or constitute, in the discretion of the Board, overreaching or bad faith by any party. Prior to approval, the Board will publish the major substantive provisions of the consent adjudication in the manner indicated in subsection (c)(3). In addition, the notice shall provide a comment period of at least 30 days for comments to be provided by the public. When comments are received from the public the parties to the consent adjudication shall respond to the comments. The Board may schedule a hearing prior to taking action on the consent adjudication. Any appeal from a consent adjudication shall lie to the Commonwealth Court, and shall, when taken by an aggrieved person not a party to the action, be taken within 30 days of the date of the Board's action.
§§ 1021.142--1021.144. (Reserved).
RECONSIDERATION § 1021.151. Reconsideration of interlocutory orders.
(a) A petition for reconsideration of an interlocutory order or ruling shall be filed within 10 days of the order or ruling. The petition must demonstrate that extraordinary circumstances justify consideration of the matter by the Board. A party may file a memorandum of law at the time the motion or response is filed.
(b) A copy of the petition shall be served upon the parties. A party wishing to file an answer may do so within 10 days of service or as ordered by the Board.
(c) The failure of a party to file a petition under this section will not result in a waiver of any issue.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.241 (relating to rehearing or reconsideration).
Comment: There is no need to file a petition for reconsideration of an interlocutory order in order to preserve an issue for later argument. Reconsideration is an extraordinary remedy and is inappropriate for the vast majority of the rulings issued by the Board.
§ 1021.152. Reconsideration of final orders.
(a) A petition for reconsideration of a final order shall be filed within 10 days of the date of the final order. A party may file a memorandum of law at the time the motion or response is filed. Reconsideration is within the discretion of the Board and will be granted only for compelling and persuasive reasons. These reasons may include the following:
(1) The final order rests on a legal ground or a factual finding which has not been proposed by any party.
(2) The crucial facts set forth in the petition:
(i) Are inconsistent with the findings of the Board.
(ii) Are such as would justify a reversal of the Board's decision.
(iii) Could not have been presented earlier to the Board with the exercise of due diligence.
(b) A copy of the petition shall be served upon all parties simultaneously with and in the same manner as the filing of an appeal with the Board. A party wishing to file an answer may do so within 10 days of service or as ordered by the Board.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.241 (relating to rehearing or reconsideration).
Comment: This provides a shorter time than the standard motions practice, since reconsideration must be granted within 30 days under Pa.R.A.P. 1701. The Board's period for reconsideration of final orders will run contemporaneously with the 30-day right of appeal to Commonwealth Court.
SANCTIONS § 1021.161. Sanctions.
The Board may impose sanctions upon a party for failure to abide by a Board order or Board rule of practice and procedure. The sanctions may include dismissing an appeal, entering adjudication against the offending party, precluding introduction of evidence or documents not disclosed, barring the use of witnesses not disclosed, or other appropriate sanctions including those permitted under Pa.R.C.P. 4019 (relating to sanctions regarding discovery matters).
§ 1021.162. (Reserved).
ATTORNEY FEES AND COSTS AUTHORIZED BY THE COSTS ACT § 1021.171. Scope.
This section and §§ 1021.172--1021.174 apply to applications for an award of fees and expenses under the Costs Act.
§ 1021.172. Application for fees and expenses.
(a) An application for fees and expenses shall be verified and shall set forth sufficient grounds to justify the award. It shall also include the following:
(1) Identification of the final order under which the applicant claims to be a prevailing party.
(2) A statement of the basis upon which the applicant claims to be a prevailing party under the Costs Act.
(3) Specific information which is sufficient to demonstrate that the applicant meets the definition of ''party'' under the Costs Act.
(4) An itemized list of recoverable fees and expenses including hours worked, the rate charged, a reasonable description of the work performed during those hours, and the nature and reasonableness of the expenses.
(5) The basis for the allegation that the position of the Department was not substantially justified.
(b) An applicant shall file an application with the Board within 30 days of the date of the final order under which the applicant claims to have prevailed, and shall be docketed at the same number as that order. An applicant shall simultaneously serve upon counsel of record for the Department a copy of the application in the same manner that it is filed with the Board. Service by telefax shall satisfy the requirements of this rule, if an additional copy is mailed on the same day.
(c) An application may be denied sua sponte if it fails to provide all the information required by this section in sufficient detail to enable the Board to grant the relief requested.
Comment: In preparing the petition to submit to the Board, an applicant should consider the material contained in 4 Pa. Code Chapter 2, Subchapter A (relating to submission and consideration of applications for awards of fees and expenses) and the Board's prior decisions.
§ 1021.173. Response to application.
(a) The Department or other interested party shall file its response within 15 days of the filing of an application. The response shall include the following:
(1) Raise any challenge to the sufficiency of the application.
(2) Demonstrate, if applicable, that the Department's action was substantially justified.
(3) Identify special circumstances which would make the award unjust.
(b) If the response asserts that the action of the Department was substantially justified, it shall include the following:
(1) A statement of the Department's basis for its action.
(2) A summary of the testimony and exhibits either in evidence or offered into evidence in support of that basis.
(3) The legal justification for the action taken.
(c) When an applicant prevails and no record has been made before the Board, the Department may justify its action with affidavits.
§ 1021.174. Disposition of application.
(a) Each party shall file a brief simultaneously with the filing of its application or response.
(b) The Board will award fees and expenses based upon the application and response if it finds the following:
(1) The applicant is a prevailing party as defined in the Costs Act.
(2) The application presents sufficient justification for the award of fees and expenses.
(3) The action of the Department was not substantially justified, in that it had no reasonable basis in law or in fact.
(4) There are no special circumstances which would make the award unjust or unreasonable.
(c) The Board will not find the Department's action to be substantially justified, if the response fails to present a prima facie case in support of the Department's legal position.
(d) The Board may reduce the amount of an award of fees and expenses, or deny the award, to the extent that the applicant engaged in conduct during the course of the proceedings which unduly and unreasonably protracted the final resolution of the matter in controversy.
ATTORNEY FEES AND COSTS AUTHORIZED BY STATUTE OTHER THAN THE COSTS ACT § 1021.181. Scope.
This subchapter applies to requests for costs and attorney fees when authorized by statute other than the Costs Act. When a statute provides procedures inconsistent with these procedures, the statutory procedures will be followed.
§ 1021.182. Application for costs and fees.
(a) A request for costs and fees shall be by verified application, setting forth sufficient grounds to justify the award, including the following:
(1) A copy of the order of the Board in the proceedings in which the applicant seeks costs and attorney fees.
(2) A statement of the basis upon which the applicant claims to be entitled to costs and attorney fees.
(3) A detailed listing of the costs and attorney fees incurred in the proceedings.
(b) An applicant shall file an application with the Board within 30 days of the date of a final order of the Board. An applicant shall serve a copy of the application upon the other parties to the proceeding.
(c) The Board may deny an application sua sponte if it fails to provide all the information required by this section in sufficient detail to enable the Board to grant the relief requested.
§ 1021.183. Response to application.
A response to an application shall be filed within 15 days of service. A factual basis for the response shall be verified by affidavit.
§ 1021.184. Disposition of application.
(a) Each party may file a brief in accordance with a schedule established by the Board.
(b) The Board may allow discovery and the taking of testimony in order to resolve any factual issues raised by the application and response.
ATTORNEY FEES AND COSTS UNDER MORE THAN ONE STATUTE § 1021.191. Application for counsel fees under more than one statute.
An applicant seeking to recover fees and costs under more than one statute shall file a single application which sets forth, in separate counts, the basis upon which fees and costs are claimed under each statute.
APPELLATE MATTERS § 1021.201. Composition of the Certified Record on Appeal to Commonwealth Court.
(a) Unless the parties file a stipulation with the Board providing otherwise, within 20 days of the filing of the petition for review, the Board shall certify the record in accordance with Pa.R.A.P. 1951 (relating to record below in proceedings on petition for review) and the record shall consist of:
(1) A list of the docket entries.
(2) The notice of appeal and the Department action appealed to the Board, or, if the proceedings before the Board were initiated with a complaint, the complaint.
(b) In addition to items listed in subsection (a), for appeals of Board adjudication, the record shall also include:
(1) The Board's adjudication and order.
(2) The notes of testimony from the hearing, all exhibits admitted into evidence.
(3) The parties' posthearing memoranda, including requested findings of fact and conclusions of law.
(4) Petitions for reconsideration or to reopen the record, answers and accompanying exhibits.
(5) Other documents which formed the basis of the Board's adjudication.
(c) In addition to items listed in subsection (a), for appeals of Board opinions and orders, the record shall also include:
(1) The Board's opinion and order.
(2) The motion or petition which was the subject of the Board's opinion and order, together with responses, answers, and replies, and accompanying exhibits.
(3) Petitions for reconsideration of the Board's opinion and order, responses, answers, and replies, and accompanying exhibits.
(4) Other documents which formed the basis of the Board's opinion and order.
[Pa.B. Doc. No. 02-1136. Filed for public inspection June 28, 2002, 9:00 a.m.]
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