PROPOSED RULEMAKING
ENVIRONMENTAL HEARING BOARD
[25 PA. CODE CH. 1021]
Practice and Procedure
[32 Pa.B. 1980] The Environmental Hearing Board (Board) proposes to revise Chapter 1021 (relating to practice and procedures) by adding new procedural rules to read as set forth in Annex A.
The proposed procedural rules have several objectives:
(1) To provide the regulated community and the Department of Environmental Protection (Department) and other potential litigants with more specific guidance on how to represent their interests before the Board.
(2) To improve the rules of practice and procedure before the Board.
(Editor's Note: The Board published a cross reference table of current section numbers to proposed section numbers at 32 Pa.B. 6156, 6158 and 6159 (November 10, 2001). That proposed rulemaking has not been adopted as final-form. This document represents a change from that document.)
I. Statutory Authority for Proposed Revisions
The Board has the authority under section 5 of the Environmental Hearing Board Act (act) (35 P. S. § 7515) to adopt regulations pertaining to practice and procedure before the Board.
II. Description of Proposed Revisions
The proposed revisions are modifications to provisions of the rules to improve practice and procedure before the Board. These proposed revisions are based on the recommendations of the Board Rules Committee, a nine member advisory committee created by section 5 of the act to make recommendations to the Board on its rules of practice and procedure. For the recommendations to be promulgated as regulations, a majority of the Board members must approve the recommendations.
This summary provides a description of: (1) the existing rules of practice and procedure when relevant to proposed revisions; (2) the Board's proposed revisions; and (3) how the proposal differs from the Board Rules Committee's recommendations.
Some of the recommendations of the Board Rules Committee were not in proper legislative style and format, so they have been modified, where necessary, to conform to those requirements. Similarly, some of the recommendations did not contain proper cross references to 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure) (GRAPP), so references to those rules have been added.
The proposed rulemaking adds three new rules and substantively or technically, or both, amends certain existing rules. The following new rules are added: (1) § 1021.31 (relating to signing); (2) § 1021.72 (relating to complaints filed by other persons); and (3) § 1021.73 (relating to transferred matters). The following rules are substantively amended: (1) § 1021.2 Definition of ''pleading''; (2) § 1021.56(a) and (b) (relating to complaints filed by the Department) proposed to be renumbered as § 1021.71; (3) § 1021.70 (relating to general) proposed to be renumbered as § 1021.91; (4) § 1021.73 (relating to dispositive motions) proposed to be renumbered as § 1021.94; (5) § 1021.81 (relating to prehearing procedure) proposed to be renumbered as § 1021.101; (6) § 1021.82(a)(5) (relating to prehearing memorandum) proposed to be renumbered as § 1021.104; (7) § 1021.120(b) (relating to termination of proceedings) proposed to be renumbered as § 1021.141; (8) § 1021.142 (relating to application for cost and fees) proposed to be renumbered as § 1021.182; (9) § 1021.143 (relating to response to application) proposed to be renumbered as § 1021.183; and (10) § 1021.171 (relating to composition of the certified record on appeal to Commonwealth Court) proposed to be renumbered as § 1021.201. The following rules are technically amended only for the purpose of superseding GRAPP: (1) § 1021.70 (relating to general) proposed to be renumbered as § 1021.91; (2) § 1021.71 (relating to procedural motions) proposed to be renumbered as § 1021.92; (3) § 1021.72 (relating to discovery motions) proposed to be renumbered as § 1021.93; (4) § 1021.73 (relating to dispositive motions) proposed to be renumbered as § 1021.94; and (5) § 1021.74 (relating to miscellaneous motions) proposed to be renumbered as § 1021.95.
1. Definitions
The definition of ''pleading'' has been amended to include complaints or answers filed by other persons against the Department under the Board's amended rules on special actions in §§ 1021.72 and 1021.73 and § 1021.57 (relating to answers to complaints filed by the Department) proposed to be renumbered as § 1021.74.
2. Signing
The Board's rules do not contain a provision with respect to the signing of documents filed with the Board; however, both the Pennsylvania and Federal Rules of Civil Procedure contain such a rule. See Pa.R.C.P. 1023; Fed. R. Civ. P. 11. Signature rules are important because they guarantee that documents filed with the Board are authentic and bonafide, and require counsel or the party to attest that the documents are filed in good faith.
When drafting this new section, the Committee referenced and borrowed from Pa.R.C.P. 1023 and Fed. R. Civ. P. 11. Subsection (a) requires the signature of at least one attorney of record or if a party is proceeding pro se then a party to the litigation, and the address and phone number of the attorney or party filing the document. Subsections (b) and (c) require counsel or the party to represent that the document is being filed in good faith. This rule will also enable the Board to impose sanctions on those who file documents in bad faith. ''Good faith'' is defined in accordance with Pa.R.C.P. 1023.
The Committee recommends that this section be renamed ''Signing, Filing and Service of Documents,'' that the proposed rule on signing be inserted at § 1021.31, and all other rules in this section be moved up one number starting with existing § 1021.31 (relating to filing).
The Board concurs with the Committee's recommendations.
3. Special Actions
The Board's rules do not contain provisions for complaints filed against the Department under statutory authorization, such as section 505(f) of the Hazardous Sites Cleanup Act (35 P. S. § 6020.505(f)) or matters transferred to the Board from courts in this Commonwealth, for example, courts have referred claims of regulatory takings in violation of due process to the Board for a decision on whether such a taking has occured. The rules in §§ 1021.56 (proposed to be renumbered §§ 1021.71) 1021.72, 1021.73, 1021.57 (proposed to be renumbered as § 1021.74) and 1021.58 (proposed to be renumbered as § 1021.75) will provide regulatory guidance to practitioners in theses and similar cases.
The Committee proposes adding two new sections titled ''Complaints filed by other persons,'' to § 1021.72, and ''Transferred matters,'' to § 1021.73. The Committee also noted that in Pennsylvania civil practice, filing a document commences an action, which conflicts with Board § 1021.56 (proposed to be renumbered as § 1021.71(b)) requiring both filing and service to commence an action with the Board. Therefore, the Committee recommends deleting the existing language in § 1021.56(b) relating to commencement of actions, and moving the commencement of action language to § 1021.56(a), stating that filing the complaint commences the action. In addition, the Committee proposes tracking the language in the Pa.R.C.P. to the greatest extent possible. Accordingly, in § 1021.56(a) the Committee deleted ''initiate'' and replaced it with ''commence.'' Finally, the Committee proposes revising the rules on service of these complaints to conform § 1021.56(b) to Pa.R.C.P. 403 governing service of original process.
The Board concurs with the Committee's recommendations.
4. Dispositive Motions
The Board's existing regulation in § 1021.70 (proposed to be renumbered as § 1021.91) applies generally to all motions filed with the Board except those made during a hearing. Specifically, § 1021.70(a) and (d) require litigants to file dispositive motions setting forth, in numbered paragraphs, the facts in support of the motion and the relief requested. The Committee reviewed the practical effect that § 1021.70 has on dispositive motions filed with the Board. It noted that motions, and their corresponding responses and replies, are unnecessarily long because litigants feel compelled to include both background and material facts. The Committee determined that this results in a needless burden on litigants because counsels' time and effort developing and responding to facts, bearing little materiality to the relief requested in the motion, is disproportionate to the value it creates for the Board in rendering its decision. Another problem the Committee identified with § 1021.70 is that the motion and its supporting memorandum of law or brief are repetitive because of the numbered paragraph requirement for the motion. The Committee also noted that the rules of civil procedure for Federal and Pennsylvania practice do not require the exhaustive numbered paragraph approach employed in § 1021.70. Therefore, the Committee recommends making the rules for dispositive motions more manageable and meaningful by eliminating extraneous information in the motion, abolishing the requirement for filing lengthy motions and their corresponding responses, and allowing background information and nonmaterial facts to appear in the supporting memorandum of law or brief.
The proposed rule would change to require the motion to contain a concise statement of the relief requested, the reasons for granting that relief, and, when necessary, the material facts that support the relief sought. Second, the Committee recommends that dispositive motions be excluded from the purview of § 1021.70, which now requires the numbered paragraph approach.
The Board concurs with the Committee's recommendations.
5. Motions
The Board's rules regulating motions supplement GRAPP, and therefore require practitioners to cross reference GRAPP with the Board's regulations. The Committee believes that cross referencing GRAPP is unnecessary and inefficient where the Board's rules have incorporated GRAPP or when GRAPP does not apply to the Board. Accordingly, under those circumstances, after reviewing the Board's rules on motions and GRAPP, the Committee recommends superseding GRAPP in the following sections: §§ 1021.70(h), 1021.71(h), 1021.72(e), 1021.73(g) 1021.74(e) (proposed to be renumbered as §§ 1021.91(h), 1021.92(h), 1021.93(e), 1021.94(g) and 1021.95(e)).
The Board concurs with the Committee's recommendation.
6. Prehearing Procedure, Expert Reports and Prehearing Memoranda
Section 1021.81(a)(1) (proposed to be renumbered as § 1021.101) has been amended to clarify that discovery must be served, as opposed to concluded, within 90 days of the date of the prehearing order in accordance with existing Board practice, as well as practice under the Pa.RCP. The deadlines in subsection (a)(2) and (3) for responding to expert interrogatories and filing dispositive motions have been modified accordingly. The change with respect to the service of discovery removes the ambiguity with respect to the time for completion of discovery by specifying that service of the discovery is the key point rather than the receipt of answers to written discovery or the conclusion of all depositions. This gives needed flexibility to counsel in concluding discovery without unnecessary intervention of the Board.
Subsection (a)(2) has been revised so that a party may respond to expert interrogatories by either answering the interrogatories or by serving an expert report along with a statement of qualifications. Section 1021.82(a)(5) (proposed to be renumbered as § 1021.104) has been revised so that a party may file with his prehearing memorandum an expert report or answers to expert interrogatories or, if no report or answers exist, a summary of the testimony of each expert witness he intends to call at the hearing. The change with respect to expert reports was adopted to give the parties flexibility as to when they need to incur the expense of an expert's fee for preparing a written opinion and whether a written opinion should be prepared in advance of the time for filing prehearing memoranda with the Board. At the same time, it requires disclosure of the opinions and qualifications of any expert by way of answers to interrogatories and in the prehearing memorandum to avoid surprise at the hearing on the merits.
The Board concurs with the Committee's recommendation.
7. Termination of Proceedings
In § 1021.120(b) (proposed to be renumbered as § 1021.141) governing the withdrawal of appeals, the default presumption that a matter is withdrawn with prejudice unless otherwise indicated by the Board. This provision presents a problem for many practitioners because such a withdrawal may bar, unwittingly, a party from raising similar issues in a subsequent proceeding even though the Board has not substantively ruled on those issues. The problem typically occurs during settlement negotiations because the litigants often face the obstacle of negotiating the withdrawal of their appeal without prejudice, to avoid the preclusive effect of § 1021.120(b). The Committee determined that the rule is not desirable because it presents an unnecessary barrier to settlement. Under almost all circumstances, the 30-day requirement for filing an appeal will act as a bar against subsequent untimely appeals. The Board recommended the deletion of the section in favor of determining the effect of the withdrawal of an appeal on a case-by-case basis, and the Committee agrees. Despite this change, practitioners must still consider if administrative finality might bar litigation of a similar issue in a subsequent appeal.
The Board concurs with the Committee's recommendations.
8. Application for cost and fees
The General Assembly passed the act of December 20, 2000 (P. L. 980, No. 138) (Act 138), which sets forth new standards for the award of attorney's fees and costs in mining appeals. Act 138 repealed the attorney's fee provisions of Pennsylvania's mining statutes and replaced them with new provisions found at 27 Pa.C.S. §§ 7707 and 7708 (relating to participation in environmental law or regulation; and costs for mining proceedings). The Committee reviewed Act 138 and the Board's rules on awarding attorneys fees and costs, §§ 1021.141--1021.144 (proposed to be renumbered as §§ 1021.181--1021.184), and determined that the Board's regulations needed to be revised to make them uniform with Act 138. Therefore, the Committee proposes amending Board §§ 1021.142 and 1021.143, to make them consistent with Act 138.
The Board concurs with the Committee's recommendation.
9. Composition of certified record on appeal to Commonwealth Court
The Board recently initiated an elective electronic filing system for those practitioners who choose to file and accept service of documents electronically. The Board's § 1021.171 (proposed to be renumbered as § 1021.201), does not specifically provide for the composition of a certified record for those Board cases taking part in the electronic filing program. Therefore, the Committee proposes § 1021.171(d), which provides for the procedure for certifying to Commonwealth Court those documents electronically filed with the Board.
In addition, the Committee noted that § 1021.171(a) improperly referred to a posthearing memorandum instead of posthearing brief; therefore, the Committee recommends amending subsection (a) to replace posthearing memorandum with posthearing brief.
The Board concurs with the Committee's recommendations.
III. Fiscal Impact of the Proposed Revisions
The proposed amendments will have no measurable fiscal impact on the Commonwealth, political subdivisions or the private sector. The amendments may have a favorable economic impact in that they may eliminate potential litigation over existing uncertainties in Board procedures, authority and requirements.
IV. Paperwork Requirements for Proposed Revisions
The proposed revisions will not require the Board to modify its standard orders.
V. Public Meeting on Proposed Rules
In accordance with 65 Pa.C.S. § 704 (relating to open meetings), a quorum of the members of the Board voted to adopt the proposed amendments at public meetings held on January 9, 2002, and February 5, 2002, at the Board's Harrisburg office, Hearing Room 2, Second Floor, Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA.
VI. Government Reviews of Proposed Revisions
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 10, 2002, the Board submitted copies of the proposed revisions to the Independent Regulatory Review Commission (IRRC) and the Senate and House Standing Committees on Environmental Resources and Energy. The Board also provided IRRC and the Committees with copies of a Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1996-1 (relating to improving government regulations). Copies of the Regulatory Analysis Form are available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any of the proposed revisions, it will notify the Board within 10 days of the close of the Committees' review period, specifying the regulatory review criteria that have not been met. The Regulatory Review Act sets forth procedures for review, prior to final publication of the proposed revisions, by the Board, the General Assembly and the Governor of objections raised.
VII. Public Comment Regarding Proposed Revisions
The Board invites interested persons to submit written comments, suggestions or objections regarding the proposed revisions to William T. Phillipy, IV Secretary to the Environmental Hearing Board, 2nd Floor, Rachel Carson State Office Building, P. O. Box 8457, Harrisburg, PA 17105-8457, within 30 days of this publication.
GEORGE J. MILLER,
ChairpersonFiscal Note: 106-7. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART IX. ENVIRONMENTAL HEARING BOARD
CHAPTER 1021. PRACTICE AND PROCEDURE
PRELIMINARY PROVISIONS
GENERAL § 1021.2. Definitions.
The following words and terms, when used in this [part] chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Pleading--A complaint filed under § [1021.56] § 1021.71, § 1021.72 or § 1021.73 (relating to complaints filed by the Department; complaints filed by other persons; and transferred matters) or answer filed under § [1021.57] 1021.74 (relating to answers to complaints [filed by the Department]). Documents filed in appeals, including the notice of appeal, are not pleadings.
* * * * *
DOCUMENTARY FILINGS
SIGNING, FILING AND SERVICE OF DOCUMENTS § 1021.31. Signing.
(a) Every notice of appeal, motion, legal document or other paper directed to the Board and every discovery request or response of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, or if a party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number.
(b) The signature to a document described in subsection (a) constitutes a certification that the person signing, or otherwise presenting it to the Board, has read it, that to the best of his knowledge or information and belief there is good ground to support it, and that it is submitted in good faith and not for any improper purpose such as to harass, cause unnecessary delay, or needless increase in the cost of litigation. There is good ground to support the document if the signer or presenter has a reasonable belief that existing law supports the document or that there is a good faith argument for the extension, modification or reversal of existing law.
(c) The Board may impose an appropriate sanction for a bad faith violation of subsection (b).
§ [1021.30] 1021.32. Filing.
* * * * * § [1021.31] 1021.33. Service by the Board.
* * * * * § [1021.32] 1021.34. Service by a party.
* * * * * § [1021.33] 1021.35. Date of service.
* * * * * § [1021.34] 1021.36. Certificate of service.
* * * * * § [1021.35] 1021.37. Number of copies.
* * * * * § [1021.36] 1021.38. Publication of notice.
* * * * * § [1021.41] 1021.39. Docket.
* * * * *
SPECIAL ACTIONS § [1021.56] 1021.71. Complaints filed by the Department.
(a) When authorized by statute, the Department may [initiate] commence the action by filing a complaint or petition[, together with a certificate of service] and a notice of a right to respond. The action is commenced when the complaint or petition is filed with the Board.
(b) [This action shall commence when the complaint is filed and service of the complaint and a notice of a right to respond is made upon the defendant.] Service of the complaint or petition shall be by personal service or by any form of mail requiring a receipt signed by the party or the party's authorized agent. In the instance of mail, service shall be complete upon delivery. Service of all other documents shall be made in accordance with § 1021.34 (relating to service by party).
* * * * * § 1021.72. Complaints filed by other persons.
(a) When authorized by statute, a person may institute an action against the Department by filing a complaint.
(b) Service of the complaint or petition shall be by personal service or by any form of mail requiring a receipt signed by the party or the party's authorized agent. In the instance of mail, service shall be complete upon delivery. Service of all other documents shall be made in accordance with § 1021.34 (relating to service by party).
(c) The complaint shall set forth the statutory authority under which the Board is authorized to act and shall set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for action is based.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 35.5--35.7 and 35.9--35.11 (relating to informal complaints and formal complaints).
§ 1021.73. Transferred matters.
(a) This rule addresses matters transferred to the Board from a court.
(b) Within the time period directed to do so by the Board, the party who initiated the transferred action shall file a complaint with the Board.
(c) Service of the complaint or petition shall be by personal service or by any form of mail requiring a receipt signed by the party or the party's authorized agent. In the instance of mail, service shall be complete upon delivery. Service of all other documents shall be made in accordance with § 1021.34 (relating to service by party.
(d) The complaint shall set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for relief is based.
(e) Subsections (a)--(b) supersede 1 Pa. Code § 35.5--35.7 and 35.9--35.11 (relating to informal complaints and formal complaints).
§ [1021.57] 1021.74. Answers to complaints [filed by the Department].
* * * * * § [1021.58] 1021.75. Procedure after an answer is filed.
* * * * *
MOTIONS § [1021.70] 1021.91. General.
(a) This section applies to all motions except dispositive motions and those made during the course of a hearing.
* * * * * (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.]
* * * * * (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] 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 § 1021.73(e) (relating to dispositive motions), the] 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 execution [; and presentation of motions]) and supersedes 1 Pa. Code § 35.178 (relating to presentation of motions). Subsection (c) [supplements] supersedes 1 Pa. Code §§ 33.32, [(relating to service by a participant) and supersedes 1 Pa. Code §] 33.35 and 33.36 (relating to service by a participant; proof of service; and form of certificate of service). Subsections (d)--(f) [supplement] supersede 1 Pa. Code §§ 35.177 and 35.178 (relating to scope and content of motions; and presentation of motions).
§ [1021.71] 1021.92. Procedural motions.
* * * * * (h) Subsection (b) [supplements] supersedes 1 Pa. Code § 33.12 (relating to verfication). Subsections (c) and (e) [supplement] supersede 1 Pa. Code § 35.177 (relating to scope and contents of motions). Subsection (d) [supplements] supersedes 1 Pa. Code § 35.179 (relating to objections to motions).
§ [1021.72] 1021.93. Discovery motions.
* * * * * (e) Subsection (b) [supplements] supersedes 1 Pa. Code § 33.12 (relating to verification). Subsections (b) and (d) [supplement] supersede 1 Pa. Code § 35.177 (relating to scope and contents of motions). Subsection (c) supersedes 1 Pa. Code § 35.179 (relating to objections to motions).
§ [1021.73] 1021.94. Dispositive motions.
(a) This section applies to dispositive motions. Dispositive motions shall contain a concise statement of the relief requested, the reasons for granting that relief, and, when necessary, the material facts that support the relief sought.
(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, responses and replies shall be in writing, signed by a party or its attorney and served on the opposing party. Dispositive motions shall be accompanied by a supporting memorandum of law or brief. The Board may deny a dispositive motion if a party fails to file a supporting memorandum of law or brief.
(d) A response to a dispositive motion may be filed within [25] 30 days of the date of service of the motion, and [may] shall be accompanied by a supporting memorandum of law or brief.
(e) A reply to a response to a dispositive motion may be filed within [20] 15 days of the date of service of the response, and may be accompanied by a supporting memorandum of law or brief. Reply briefs or memoranda of law shall be as concise as possible and may not exceed 25 pages. Longer briefs or memoranda of law may be permitted at the discretion of the presiding administrative law judge.
(f) An affidavit or other document relied upon in support of a dispositive motion[,] or response[or reply], that is not already a part of the record, shall be attached to the motion[,] or response [or reply] or it will not be considered by the Board in ruling thereon.
(g) Subsection (c) [supplements] supersedes 1 Pa. Code § 35.177 (relating to 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).]
§ [1021.74] 1021.95. Miscellaneous motions.
* * * * * (e) Subsection (b) [supplements] supersedes 1 Pa. Code § 33.12 (relating to verification).
PREHEARING PROCEDURES AND
PREHEARING CONFERENCES § [1021.81] 1021.101. Prehearing procedure.
(a) Upon the filing of an appeal, the Board will issue a prehearing order providing, among other things, that:
(1) [Discovery,] All discovery, including any discovery of expert witnesses, shall be [concluded within ] served no later than 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] 150 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. The service of a report of an expert together with a statement of qualifications may be substituted for an answer to interrogatories.
(3) Dispositive motions in a case requiring expert testimony shall be filed within [180] 210 days of the date of the prehearing order. If neither party plans to call an expert witness, dispositive motions shall be filed within [150] 180 days after the filing of the appeal unless otherwise ordered by the Board.
* * * * * (e) Subsection (d) [supplements] supersedes 1 Pa. Code § 35.121 (relating to initiation of hearings).
§ [1021.82] 1021.104. Prehearing memorandum.
(a) A prehearing memorandum shall contain the following:
* * * * * (5) [A] For each expert witness a party intends to call at the hearing, answers to expert interrogatories and a copy of any expert report provided under § 1021.101(a)(2) (relating to prehearing procedure). In the absence of answers to expert interrogatories or an expert report, a summary of the testimony of each expert witness.
* * * * *
TERMINATION OF PROCEEDINGS § [1021.120] 1021.141. Termination of proceedings.
* * * * * [(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)] (b) * * *
[(d)] (c) * * *
Comment: The prior rule in § 1021.120(b) authorizing dismissal with and without prejudice was deleted because the Board thought it more appropriate to determine this matter by case law rather than by rule.
ATTORNEY FEES AND COSTS AUTHORIZED BY STATUTE OTHER THAN THE COSTS ACT § [1021.142] 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:] A request for costs and fees shall conform to any requirements set forth in the statute under which costs are being sought.
[(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.] 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) An affidavit setting forth in detail all reasonable costs and fees incurred for or in connection with the party's participation in the proceeding, including receipts or other evidence of the costs and fees.
(4) When attorney fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area and the experience, reputation and ability of the individual or individuals performing the services.
(5) The name of the party from whom costs and fees are sought.
* * * * * (d) 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.
§ [1021.143] 1021.183. Response to application.
A response to an application shall be filed within [15] 30 days of service. A factual basis for the response shall be verified by affidavit.
APPELLATE MATTERS § [1021.171] 1021.201. Composition of the [Certified Record] certified record on appeal to Commonwealth Court.
* * * * * (b) In addition to items listed in subsection (a), for appeals of Board adjudication, the record shall also include:
* * * * * (3) The parties' posthearing [memoranda] briefs, including requested findings of fact and conclusions of law.
* * * * * (d) In the event that a legal document was electronically filed, a paper copy of the electronic filing will be submitted to the Commonwealth Court as part of the certified record in accordance with this rule, notwithstanding the provisions of § 1021.39(c) (relating to docket) that the official copy of an electronically filed document shall be that appearing on the Board's website.
[Pa.B. Doc. No. 02-620. Filed for public inspection April 19, 2002, 9:00 a.m.]
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