§ 197.34. Notice of appeal.
(a) The appellant shall file a notice of appeal, in the form set forth in § 197.35 (relating to form of notice of appeal) within 30 days of the decision or the date of mailing of the decision which is being appealed, whichever is later. The filing of a petition for reconsideration with the Department does not toll the running of the 30-day period.
(b) The notice of appeal shall set forth in general terms the specification of objections. Specific arguments shall be reserved for the appeal brief. Except for issues which are based on facts and evidence not known to appellant in advance of the hearing, issues not raised and argued in the appeal brief shall be deemed to be waived.
(c) A copy of the notice of appeal shall be sent to the Department, to the health systems agency in the area in which the health care facility is located, to the applicant and to each person who has filed an objection to the application for the certificate of need in the proceedings before the health systems agency or the Department unless the objection was withdrawn prior to the filing of the notice of appeal. A certificate of service in the form set forth in § 197.6 (relating to form of certificate of service) shall be attached to the notice of appeal.
(d) Service of a copy of the notice of appeal on the persons to be served by subsection (c) will not be deemed a waiver of appellant’s right to object to the person’s right to become a party to the appeal.
(e) The failure to serve a copy of the notice of appeal upon all parties required to be served under subsection (c) will not stay the proceedings; however, upon the omission, the Board will issue an order directing the appellant to serve all parties, and the failure to do so within the time specified in the order may result in the dismissal of the appeal.
(f) This subsection supplements 1 Pa. Code § 33.32 (relating to service by a participant) and supersedes 1 Pa. Code § 33.35 (relating to proof of service).
Authority The provisions of this § 197.34 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).
Source The provisions of this § 197.34 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial page (103554).
Notes of Decisions Specification of Objections
The hospital’s notices of appeal set forth only the very general statement that the Department of Health’s approval of the CONs was not supported by substantial evidence. In those notices of appeal, the specific issues raised all related to whether a proper comparative review was performed and whether the determination of the number of CONs needed was proper. The hospital was required to preserve the specific issues in the pleadings and briefs before the State Health Facility Board and it did not do so, therefore, the specific issues were waived. North Hills Passavant Hospital v. Department of Health, 674 A.2d 742 (Pa. Cmwlth. 1996).
Time Limits
If an individual seeking an appeal can establish that the copy of the decision providing the individual with notice did not contain the mailing date on its face, the appeal period does not run against that individual. Stewart v. State Health Facility Hearing Board, 543 A.2d 1290 (Pa. Cmwlth. 1988); appeal denied 604 A.2d 1032 (Pa. 1992).
Cross References This section cited in 37 Pa. Code § 197.8 (relating to extension of time); 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.17 (relating to ex parte communications).
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