§ 42.63. Action on request for a preliminary hearing.
(a) A request for a preliminary hearing will be referred to a staff counsel who will review the file, consider new evidence, secure new information as may be necessary or appropriate, and who shall recommend one of the following:
(1) That the request be denied.
(2) That probable cause exists to credit the allegations of the complaint, on the record currently before staff counsel, without the need for a preliminary hearing.
(3) That the case should be reopened for further investigation or other appropriate action, without the need for a preliminary hearing.
(4) That a preliminary hearing is necessary or appropriate under § 42.65(a) (relating to conduct of preliminary hearing).
(b) If the staff counsel recommends that a request for a preliminary hearing be granted, and that a preliminary hearing be convened under subsection (a)(4), the recommendation shall be made and reported to the Executive Director, who may grant the request and convene a preliminary hearing, or take other action as the Executive Director may deem necessary or appropriate.
(c) If the staff counsel recommends that a request for a preliminary hearing be granted, because probable cause exists under subsection (a)(2), the recommendation shall be made and reported to the Executive Director, who may grant the request, reopen the case, and approve a finding of probable cause, or take other action as the Executive Director deems necessary or appropriate. If a finding of probable cause is made, the case will thereafter proceed in accordance with § 42.71 (relating to finding of probable cause).
(d) If the staff counsel recommends that a request for a preliminary hearing be granted, and that further investigation or other action take place under subsection (a)(3), the recommendation will be made and reported to the Executive Director, who may grant the request, reopen the case, and institute further investigation, or take other action the Executive Director deems necessary or appropriate.
(e) If the staff counsel recommends that a request for a preliminary hearing be denied, or if the Executive Director determines that a recommendation to grant a request for a preliminary hearing should be denied under subsection (b), (c) or (d), the recommendation or determination will be made and reported to the Commissioners, who may grant or deny the request for a preliminary hearing or take other action as they may deem necessary or appropriate.
(f) The Commission will notify all parties, in writing, of its action in either granting or denying the request for a preliminary hearing.
Source The provisions of this § 42.63 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended July 24, 1981, effective July 25, 1981, 11 Pa.B. 2608; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial pages (117025) to (117026).
Notes of Decisions Preliminary Hearing
Under the terms of 16 Pa. Code § 42.63(a) (relating to reconsideration of dismissal), the request for reconsideration is not intended to entail the participation of the complainant, but is an entirely internal matter. Any preliminary hearing held pursuant to such a request must comply with the mandates of the Administrative Agency Law, 2 Pa.C.S. § § 501—508 and 701—704. Carney v. Human Relations Commission, 404 A.2d 760 (Pa. Cmwlth. 1979); superseded by statute/rule as stated in Espenshade v. Pa. State University 556 F. Supp 131 (1983).
Remand
In an original action in mandamus, remand was proper where record was not adequate to show Commission had exercised discretion in accordance with statute and Commission’s own rules in denying a complainant’s request for preliminary hearing after a finding of no probable cause. Baker v. Human Relations Commission, 489 A.2d 1354 (Pa. 1985).
Executive director of Pennsylvania Human Relations Commission is immune from liability under civil rights statute for performing his discretionary duty of finding no probable cause with respect to employment discrimination claims. Espenshade v. Pennsylvania State University, 556 F.Supp. 131 (M.D. Pa. 1983).
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