§ 165.183. Commission hearings.
(a) The Commission may, by written order, designate one or more Commission members, or its hearing officer to take testimony and conduct hearings under this section.
(b) The functions of the Commission member, officer or agent participating in hearings shall be conducted in an impartial manner. The Commission will have the right to engage the services of law trained hearing officers whose duties and functions will be limited to presiding at hearings held in the absence of the Commission itself and to ruling upon procedural and evidentiary matters that may come before the hearings. A person presiding at a hearing may not consult a party on any fact in issue unless upon notice and opportunity for all parties to participate. A person so presiding may at any time withdraw from the proceeding if he deems himself disqualified. A person so withdrawing or who without withdrawing holds or has an interest in or has cause to believe he may have any bias or prejudice in a matter then before the Commission shall promptly file an affidavit setting forth relevant facts as to the interest, bias or prejudice before the termination of the hearing and the Commission will determine the matter as a part of the record and decision in the case. In the event of a withdrawal or disqualification, another member, officer or agent designated by the Commission shall have the authority to complete the hearing. Only the members of the Commission will have the right to make decisions on those matters referred to them.
(c) Officers presiding at hearings shall have authority to administer oaths and affirmations, issue subpoenas authorized by law, rule upon offers of proof or issues of procedure and otherwise regulate the course of hearings.
(d) A decision shall be made and an adjudication issued thereon solely on the basis of evidence introduced at the hearing.
(e) Proponents of any issue shall have the burden of proof thereof.
(f) Technical rules of evidence may not apply in hearings held under this part. A relevant evidence may be received in either oral or documentary form, provided, that the Commission or a hearing officer acting hereunder may exclude irrelevant, immaterial or repetitious evi-dence. Tape recordings of stewards’ and hearing officers’ hearings as well as of investigative hearings or depositions may be received in evidence. Investigative reports of Commission security personnel or of authorized agents of the Thoroughbred Racing Protective Bureau shall be deemed to be a part of the official records of the Commission in a relevant proceeding and an effected party shall have the right to examine the same insofar as they may pertain to matters directly and immediately in issue. Sanctions or orders may not be entered unless based upon substantial, reliable and probative evidence. Parties shall be entitled to cross-examine and to present rebuttal evidence as may be necessary to a full and fair hearing.
(g) At any time after the service of process a party may serve upon another party a written request for the admission of the genuineness of relevant documents. Copies of the subject documents shall accompany the request. Each requested admission shall be deemed made unless within 10 days after service thereof, the party so served serves upon the party making the request and the Commission either a statement setting forth the specific reasons why the admission cannot be made or written objections on the ground of privilege, irrelevancy or that the request is otherwise improper in whole or in part.
(h) The order of testimony will be at the discretion of the hearing officer. In determining this order, he shall take into consideration the right of each party to present his case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts, and the desireability of hearing witnesses at times convenient for them. If it appears necessary or appropriate hearings may be continued generally or to a day certain.
(i) The hearing officer or the Commission may request a party to notify the Executive Secretary of the Commission in advance of the hearing of his intention to appear, and the approximate time testimony or argument will consume. The presiding officer may call any person he or she wishes to hear and may issue subpeonas to insure attendance.
(j) [Reserved].
(k) Bills of particulars may be requested in any matter and shall be allowed by the Commission in its discretion.
(l) If, at the time and place scheduled for hearing, parties who have received due notice are not in attendance whether in person or by counsel, the matter may be heard ex parte or by and upon default.
(m) A party to a proceeding may waive in writing the right to a hearing. A waiver shall constitute an admission of charges contained in the ruling appealed from or notice or notices of hearings prepared by the Commission and be deemed an authorization that the Commission may enter a final order or adjudication without necessity of receipt of further evidence. A waiver by a corporate licensee or uncorporated association shall be accompanied by a resolution under seal authorizing the submission of the waiver. The waivers shall be in a form prescribed by the Commission.
(n) Contemptuous conduct shall be grounds for exclusion from a hearing. If the hearing officer should deem the same to be occurring he shall so note on the record and shall see that a stenographic report is made of the same. Should he or the Commission deem any further sanction appropriate for the same, the further sanction can be imposed only following notice and a hearing, following completion of the original record of the incident in question.
(o) Motion and objections made during a hearing shall be stated orally and shall be included in the stenographic record of the hearing. Argument may not be included in the stenographic record unless a participant, shall so request.
(p) At the conclusion of the hearing, parties shall be afforded an opportunity to submit briefs and requests for findings of fact and conclusions of law. Copies of a brief or requests submitted shall be served upon the parties and formal proof of the service filed with the Commission. A party may request oral argument before the Commission as a matter of right. The Commission or an agent thereof may request the same which shall be scheduled upon due notice of the parties.
(q) A petition for rehearing, reconsideration or modification of a Commission order or adjudication shall be in writing setting forth in numbered paragraphs the findings or orders of the Commission that may be involved, the points relied upon by the petitioner, appropriate record references and specific request for the changes or modifications desired. If further evidence or testimony is desired or contemplated, the nature and purpose of the same must be briefly stated.
(r) The Commission may, at any time, in its discretion, and upon its own motion reopen a hearing upon due notice to the parties.
(s) A record of the testimony and exhibits, together with the papers and requests filed in the proceedings, and relevant official records shall constitute the record. In the event a party desires a written transcript, it shall be available at rates not to exceed the maximum rates fixed by contract between the Commission and the reporter. The copy of the Commission shall be open to inspection without charge by an interested party. Partial transcripts or transcripts of uncompleted hearings will not be furnished except to a party to the proceeding.
Source The provisions of this § 165.183 amended through April 14, 1978, effective April 15, 1978, 8 Pa.B. 1112.
Notes of Decisions The Commission did not violate its procedural regulations by making a site inspection after the public hearing in that a hearing is not the sole means by which the Commission may gather information. Upper Merion Township v. Horse Racing Commission, 602 A.2d 459 (Pa. Cmwlth. 1992).
Cross References This section cited in 58 Pa. Code § 165.184 (relating to decisions); and 58 Pa. Code § 165.231 (relating to hearing rights).
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