§ 22.95. Formal appeals and hearings.
(a) Right to a formal hearing. If an applicant/claimant who has filed an appeal under § 22.93 (relating to filing an appeal) disagrees with the Department’s letter ruling, the applicant/claimant is entitled to a formal hearing on the complaint.
(b) Notification of the Department. If the appellant wishes to pursue an appeal to a formal hearing, the appellant shall notify the Department in writing within 15 calendar days of the date of the letter ruling that the letter ruling is not accepted and a formal hearing is requested.
(c) Appointment of a hearing examiner.
(1) When the Department receives a request for a formal hearing as provided for under subsections (a) and (b) the Secretary or the Secretary’s designee will appoint a hearing examiner to preside over the formal hearing.
(2) It shall be the responsibility of the appointed hearing examiner to schedule the hearing and conduct it in accordance with this chapter and 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).
(3) Subsection (c)(1) supplements 1 Pa. Code § 35.185 (relating to designation of presiding officers). Subsection (c)(2) supplements 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers).
(d) Scheduling formal hearings.
(1) General provisions.
(i) The hearing examiner shall notify the appellant and the Department of the date, time and location of the hearing at least 10 days prior to the selected date. This notification shall include clear instructions relative to the appellant’s opportunity to have the hearing conducted by way of a telephone conference call, or face to face, as provided for in subsection (e). This subparagraph supersedes 1 Pa. Code § 35.105 (relating to notice of nonrulemaking proceedings).
(ii) A prehearing conference may be held at the discretion of the hearing examiner. This subparagraph is identical to 1 Pa. Code § 35.111 (relating to conferences to adjust, settle or expedite proceedings).
(iii) The hearing examiner shall complete the hearing within 45 days of receipt of the assignment at the time the appointment as hearing examiner is made.
(2) Continuances.
(i) Hearings shall commence on the first day scheduled and continuances may not be granted by the hearing examiner except for good cause shown. A hearing examiner may only grant a second continuance in extraordinary circumstances.
(ii) Requests for a continuance shall be made in writing to the hearing examiner and the Department.
(iii) The appellant requesting a continuance shall first consult the Department to seek agreement to the request. The request shall then indicate whether the request is unopposed.
(iv) The Department’s objections, if any, to a request for continuance shall be in writing and delivered to the hearing examiner and the appellant or the appellant’s representative. Objections shall be made immediately upon receipt of notification of a request for a continuance.
(v) The period of a continuance granted to an appellant may not be counted as part of the 45-day period required in subsection (d)(1)(iii) to complete an assigned hearing.
(vi) Paragraph (2) supersedes 1 Pa. Code § 31.15(6) (relating to extension of time).
(3) Failure to appear at hearing.
(i) If the appellant or the appellant’s representative fails to appear at the scheduled hearing without good cause, as determined by the hearing examiner, the complaint shall be deemed abandoned and shall be dismissed with prejudice.
(ii) If the Department fails to appear at the hearings without good cause as determined by the hearing examiner, the hearing shall proceed in absentia.
(iii) If neither the appellant nor the Department or their representatives appear at the hearing, the hearing examiner will reschedule the hearing.
(e) Two hearing procedure options.
(1) The Department will provide appellants desiring formal hearings with the opportunity of having their hearings conducted by way of a telephone conference call. This opportunity will be provided in writing with the hearing examiner’s notification of the date, time and location of a scheduled hearing, and will include clear instructions to the appellant for taking advantage of this opportunity to avoid the time and travel to appear at a special hearing location.
(2) Appellants who do not wish to take advantage of the telephone conference call procedure may elect to have a face-to-face hearing at one of several locations selected by the Department. The hearing examiner’s scheduling notification will include instructions for electing a face-to-face hearing.
(3) This subsection supersedes 1 Pa. Code § 35.123 (relating to conduct of hearings).
(f) Purpose of formal hearings. The purpose of a hearing includes all of the following:
(1) To give both the appellant and the Department an opportunity to present testimony, witnesses and documentary evidence relevant to the issue in question.
(2) To give both the appellant and the Department an opportunity to cross examine the opposing party’s witnesses.
(3) To assure that documents and records presented or referred to during the course of the hearing are made part of the hearing transcript.
(4) To give the appellant an opportunity to review pertinent evidence on which the adverse action was based. This may be done at the prehearing conference, if one is held.
(g) Hearing authority.
(1) The hearing authority is the Secretary.
(2) The Secretary will delegate to the hearing examiner the authority necessary to conduct the hearing proceedings and to perform the following functions:
(i) Determine the facts.
(ii) Determine the appropriate regulations that apply.
(iii) Interpret a regulation when the regulation is ambiguous.
(iv) Interpret a directive of the Department when the directive is ambiguous.
(v) Apply the facts to the law to determine the correct result.
(vi) Recommend that the Secretary adopt the result.
(3) The hearing examiner’s recommendation shall be submitted to the Secretary or the Secretary’s designee within 30 days of the conclusion of the hearing.
(4) Hearing examiners may not invalidate or modify a Departmental regulation.
(5) Subsection (g) supplements 1 Pa. Code § 35.187.
(h) Decision of the Secretary.
(1) The recommendation of the hearing examiner shall be reviewed by the Secretary or the Secretary’s designee.
(2) After a recommendation has been proposed by the hearing examiner, appellants will not be afforded an opportunity to submit oral or written statements of their position to the Secretary or the Secretary’s designee.
(3) Findings of fact made by the hearing examiner are subject to review and reversal by the Secretary. The Secretary or the Secretary’s designee may return the case to the hearing examiner for further findings of fact.
(4) The Secretary or the Secretary’s designee will issue an opinion and order as soon as possible after receiving the final recommendation of the hearing examiner.
(5) Paragraph (1) supersedes 1 Pa. Code § 35.201 (relating to certification of record with proposed report). Paragraph (2) supersedes 1 Pa. Code § 35.211 (relating to procedure to except to proposed report). Paragraph (4) supplements 1 Pa. Code § 35.226 (relating to final orders).
Source The provisions of this § 22.95 adopted March 29, 1985, effective March 30, 1985, 15 Pa.B. 1163; corrected April 12, 1985, effective March 30, 1985, 15 Pa.B. 1363.
Cross References This section cited in 6 Pa. Code § 22.37 (relating to right of appeal); 6 Pa. Code § 22.46 (relating to right of appeal); 6 Pa. Code § 22.74 (relating to claimant right of appeal); and 6 Pa. Code § 22.94 (relating to informal handling of appeals).
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