REOPENING OF RECORD
§ 41.201. Reopening of record prior to adjudication.
(a) After the conclusion of the hearing on the merits and before the Bureau issues an adjudication, the Bureau, upon its own motion or upon a motion filed by a party, may reopen the record as provided in this section.
(b) The record may be reopened upon the basis of recently discovered evidence when each of the following circumstances are present:
(1) Evidence is discovered that conclusively establishes a material fact of the case or that contradicts a material fact that had been assumed or stipulated by the parties to be true.
(2) Evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.
(3) Evidence is not cumulative.
(c) The record may also be reopened to consider evidence that has become material as a result of a change in legal authority occurring after the close of the record. A motion to reopen the record on this basis must specify the change in legal authority and demonstrate that it applies to the matter pending before the Bureau. The motion need not meet the requirements of subsection (d)(2) and (3).
(d) A motion seeking to reopen the record must:
(1) Identify the evidence that the moving party seeks to add to the record.
(2) Describe the efforts that the moving party had made to discover the evidence prior to the close of the record.
(3) Explain how the evidence was discovered after the close of the record.
(e) A motion filed under subsection (b) must be verified and motions to reopen must contain a certification by counsel that the motion is being filed in good faith and not for the purpose of delay. The motion shall be served upon the parties to the proceedings.
(f) Upon written request or motion to the Bureau or sua sponte by the Bureau, the parties will be afforded the opportunity to file amended pleadings and position papers, if the Bureau orders that the record be reopened. The additional pleadings and position papers will be due to the Bureau as ordered by the presiding officer.
(g) Subsections (a)—(f) supersede 1 Pa. Code § § 35.231 and 35.232 (relating to reopening on application of party; and reopening by presiding officer).
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