REOPENING OF RECORD
§ 35.231. Reopening on application of party.
(a) Petition to reopen. After the conclusion of a hearing in a proceeding or adjournment thereof sine die, a participant in the proceeding may file with the presiding officer, if before issuance by the presiding officer of a proposed report, otherwise with the agency head, a petition to reopen the proceeding for the purpose of taking additional evidence. The petition shall set forth clearly the facts claimed to constitute grounds requiring reopening of the proceeding, including material changes of fact or of law alleged to have occurred since the conclusion of the hearing.
(b) Responses. Within 10 days following the service of the petition, another participant may file with the presiding officer or the agency head, his answer thereto, and in default thereof shall be deemed to have waived an objection to the granting of the petition.
(c) Action on petition. As soon as practicable after the filing of responses to the petitions or default thereof, as the case may be, the presiding officer or agency head will grant or deny the petition.
Notes of Decisions Application
Section 21.122 of Title 25 of the Pennsylvania Code (relating to rehearing or reconsideration), has no application to a preadjudication petition but applies only to a request for relief after a decision. Therefore, this section applies. Spang & Co. v. Department of Environmental Resources, 592 A.2d 815 (Pa. Cmwlth. 1991); appeal denied 600 A.2d 543 (Pa. 1991).
Material Changes
The Board properly denied a widow’s petition to reopen the record, where her petition alleging prejudice due to the change of hearing examiners, which change she learned of only 1 day before the hearing, did not amount to a material change of fact or of law. Stevenson v. State Employees’ Retirement Board, 711 A.2d 533 (Pa. Cmwlth. 1998).
Board of Nurse Examiners acted properly in refusing to reopen the record for taking treating physician’s testimony because the letter requesting reopening did not indicate any material changes of fact or law and the Board did not abuse its discretion in determining that the facts set forth in the request did not constitute grounds requiring reopening. Rafferty v. State Board of Nurse Examiners, 505 A.2d 357 (Pa. Cmwlth. 1986).
To serve as a basis to reopen the record, the material changes of fact must not have been discoverable prior to the conclusion of the hearing. Shoemaker v. State Employes’ Retirement Board, 688 A.2d 751 (Pa. Cmwlth. 1997); appeal denied 698 A.2d 597 (Pa. 1997).
Board of Nurse Examiners acted properly in refusing to reopen the record for taking treating physician’s testimony because the letter requesting reopening did not indicate any material changes of fact or law and the Board did not abuse its discretion in determining that the facts set forth in the request did not constitute grounds requiring reopening. Rafferty v. State Board of Nurse Examiners, 505 A.2d 357 (Pa. Cmwlth. 1986).
Petition Properly Denied
A petition to reopen a proceeding before the Civil Service Commission filed after hearing and before adjudication, permitted by 1 Pa. Code § 35.231 (relating to reopening on application of party) was not improperly denied where the stated purpose for the requested relief is to introduce no new evidence, but only to retry the matter with legal counsel who was absent from the original hearing. Department of Justice v. Civil Service Commission, 319 A.2d 692 (Pa. Cmwlth. 1974).
Review Appropriate
Alleged Industrial Board abuses with regard to enforcement of the Fire and Panic Act can be and should be challenged by resort to existing administrative procedures and judicial review. In re Petition of Dwyer, 406 A.2d 1355 (Pa. 1979).
Written Petition Inapplicable
As determined by the Environmental Hearing Board, the provisions of this regulation did not apply because these provisions expressly apply only after the conclusion of the hearings or an adjournment without further hearing dates set. In this case, the request for reopening of the record came prior to the conclusion of the hearing and prior to the company’s presentation of evidence and, therefore, the written petition set forth in this regulation was inapplicable. Al Hamilton Contracting Co. v. Department of Environmental Resources, 659 A.2d 31 (Pa. Cmwlth. 1995).
Cross References This section cited in 6 Pa. Code § 30.23 (relating to procedure for redesignation); 7 Pa. Code § 179.68 (relating to contents and close of the record); 7 Pa. Code § 179.71 (relating to reopening of record); 28 Pa. Code § 301.7 (relating to fair hearing); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.101 (relating to briefs, findings of fact and close of record); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 51 Pa. Code § 21.29 (relating to finality; reconsideration); 52 Pa. Code § 5.431 (relating to close of the record); 52 Pa. Code § 5.571 (relating to reopening prior to a final decision); 52 Pa. Code § 1005.171 (relating to close of the record); 52 Pa. Code § 1005.221 (relating to reopening prior to a final decision); 55 Pa. Code § 41.201 (relating to reopening of record prior to adjudication); 58 Pa. Code § 494a.6 (relating to reopening of record); and 61 Pa. Code § 703.41 (relating to request for reconsideration).
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