Subchapter D. RULES OF PRACTICE AND PROCEDURE
Sec.
185.71. Definitions.
185.72. Dockets.
185.73. Complaints.
185.74. Revocation of a license.
185.75. Action without prior hearing.
185.76. Hearing demanded by applicant or licensee.
185.77. Refusal, suspension or revocation of license with prior hearing.
185.78. Appearances.
185.79. Service and filing of papers.
185.80. Continuances.
185.81. Investigations.
185.82. Witnesses and subpoenas.
185.83. Commission hearings.
185.84. Decisions.
185.85. Appeals.
185.86. Consolidation or severance.
185.87. Authority of Secretary.
185.88. Construction and amendment of rules.§ 185.71. Definitions.
(a) The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Adjudication—Any final order, decree, decision, determination or ruling by the Commission affecting the rights, privileges, immunities or obligations of any licensee.
Charge—Any allegation in the citation of specific illegal or unethical conduct on the part of a licensee under the provisions of the law or the rules and regulations promulgated thereunder.
Citation—A notice of the time and place of hearing and a formal listing by the Commission of any charges against any licensee.
Complaint—Any written statement of facts under oath submitted by any person which accuses the licensee of any violation of the law or of rules and regulations promulgated thereunder.
Information—Any data indicating any violation of the law or of rules and regulations promulgated thereunder which are collected by or presented to the Commission.
Licensee—Any person holding a license issued by the Commission.
Official docket—The book in which is recorded the nature of each original paper issued and received and the date and time thereof in each proceeding instituted before the Commission.
Party—Includes the Commonwealth, the Commission, and applicant who is refused a license, a licensee whose license is suspended or revoked or any person designated in the citation as the respondent.
Person—Includes any individual or organized group of any character including partnerships, corporations or other forms of association.(b) As used herein, the singular shall include the plural and the plural the singular. Words used in one gender or tense shall include all other genders and tenses.
§ 185.72. Dockets.
(a) The official docket and all original papers pertaining to any proceeding instituted before the Commission shall finally be kept at the principal office of the Commission in Harrisburg, Pennsylvania.
(b) A folder shall be maintained for the papers pertaining to each proceeding indexed in the docket. Each paper indexed in the docket shall be placed in such folders in the order indexed. No such paper may be removed from such folders. Before a decision is made, only Commission members and representatives of the Department of Justice may have access to such folders or after executing a custody card remove them from the Commission office. After such decision, access to such folders shall also be given to the other parties to the proceedings and their legal counsel for whom appearance has been properly entered.
§ 185.73. Complaints.
(a) Complaints shall be filed with the Commission at its principal office in Harrisburg, Pennsylvania.
(b) Complaints shall contain all pertinent information known to the complainant. A suggested form of complaint appears in Appendix A. Forms shall be available at the Commission office in Harrisburg, Pennsylvania.
Cross References This section cited in 58 Pa. Code § 185.77 (relating to refusal, suspension or revocation of license with prior hearing).
§ 185.74. Revocation of a license.
Where a license is to be suspended or revoked, the Commission may either suspend or revoke such license without a prior hearing after which the licensee whose license has been suspended or revoked, may upon timely notice demand a hearing thereon in accordance with section 18 of the Law or the Commission may conduct a hearing prior to its making a decision on the issue of suspending or revoking a license.
§ 185.75. Action without prior hearing.
(a) When an application for a license is to be refused, or where a license is to be suspended or revoked without a prior hearing, the Commission shall decide such action. The agreement of two members of the Commission shall be necessary to carry such action.
(b) Notice by the Commission that an application for a license is refused or that a license has been suspended or revoked shall be in writing and shall contain a clear and concise factual statement sufficient to inform each party with reasonable definiteness of the reasons for such refusal, suspension or revocation.
Cross References This section cited in 58 Pa. Code § 185.76 (relating to hearing demanded by applicant or licensee).
§ 185.76. Hearing demanded by applicant or licensee.
(a) Upon timely notice given to the Commission by an applicant who has been refused a license or by a licensee whose license has been suspended or revoked under § 185.75 (relating to action without prior hearing) that such applicant or licensee shall demand a hearing under section 18 of the Law, the Commission shall promptly give notice of a time and place for such hearing.
(b) A demand for a hearing, in order to be considered timely, must be received by the office of the Commission, Harrisburg, Pennsylvania, no later than the tenth day after the application for a license has been refused or a license has been suspended or revoked. The 10 days shall begin to run from the day notification of such refusal, suspension or revocation is served.
(c) The determination to refuse, suspend or revoke a license shall remain in full force and effect pending the final determination on the hearing demanded.
§ 185.77. Refusal, suspension or revocation of license with prior hearing.
(a) Upon receipt of a complaint filed under § 185.73 (relating to complaints), or upon information, the Commission shall decide whether a citation should be issued against the licensee. The agreement of two members of the Commission shall be necessary to approve the issuance of a citation. Such citation may be signed by the Chairperson or the Executive Secretary of the Commission.
(b) The Chairperson of the Commission may between meetings sign and issue a citation without the vote of the Commission, provided that two members approve the issuance of such citation.
(c) In every case in which a citation has been approved in the manner provided by subsection (a) or (b), such citation shall be served upon the parties at least 5 days in advance of the date of a hearing to be held on the charges contained in the citation. The citation shall recite all of the following:
(1) The time, place and nature of the hearing.
(2) The legal authority and jurisdiction under which the hearing is to be held with specific designation of the statutory or regulatory provisions alleged to have been violated.
(3) A clear and concise factual statement sufficient to inform each party with reasonable definiteness of the type of acts or practices alleged to be in violation of the act or regulations promulgated thereunder. In fixing the times and places for hearings, due regard shall be had for the convenience of the parties and their representatives.
§ 185.78. Appearances.
(a) Any individual or member of a partnership named a party in any proceeding before the Commission may appear on behalf of himself or of such partnership upon adequate identification. A party corporation or association may be represented by a bona fide officer thereof upon a showing of adequate authorization.
(b) A party may be represented by a member in good standing of the bar of any court of record of the Commonwealth. Such attorney must file his appearance with the Commission.
§ 185.79. Service and filing of papers.
(a) Service of process by the Commission. Service of process by the Commission on other parties shall be made as follows:
(1) Certified mail. A copy of the document may be addressed to the person, partnership, corporation or unincorporated association to be served at his or its principal office or place of business, certified and mailed.
(2) Delivery to an individual. A copy thereof may be delivered to the person to be served, or to a member of the partnership to be served, or to the President, Secretary or other executive officer or a director of the corporation or unincorporated association to be served.
(3) Delivery to any address. A copy thereof may be left at the principal office or place of business as disclosed by the records of the Commission of the person, partnership, corporation or unincorporated association to be served.
(4) Delivery of noncommission processes. Documents other than processes of the Commission, the service of which starts the running of prescribed periods of time provided or allowed by this subchapter or by any order of the Commission for the performance of some act or the occurrence of some event, shall be served in the same manner as processes of the Commission.
(b) Service of process by other parties. Service of process and other papers by parties other than the Commission shall be by delivering copies thereof as follows: upon the Commission by personal delivery or delivery by first class mail to the office of the Executive Secretary of the Commission; upon any other party, by delivery to the party. If the party is an individual or partnership, delivery shall be to such individual or a member of the partnership; if a corporation or unincorporated association, to an officer or agent authorized to accept service of process therefor. Delivery to a party other than the Commission shall mean handing to the individual, partner, officer or agent; leaving at his office with a person in charge thereof, or, if there is no one in charge, or if the office is closed, or if he has no office, leaving at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein; or sending by certified mail.
(c) Service by certified or first class mail. When service is by either certified or first class mail, the date of mailing shall be the date of service. Where the Commission issues a citation, the first paper filed on behalf of the other party named therein shall contain an address at which service of process and papers of the Commission shall be made thereafter. Any such party may notify the Commission of a change in such address. If the party fails to do so, notice sent to such party by mail to his address of record shall be equivalent to service. When a party has appeared in a proceeding by a partner, officer or attorney, service upon such partner, officer or attorney of any document other than a citation shall be deemed service upon the party, except that where a notice of appeal from the adjudication is filed with the Commission, the attorney indicated therein shall be the attorney of record for purposes of service hereunder. The return post office receipt for a document certified and mailed, or the verified return or certificate by the person serving the document by personal delivery or first class mail, setting forth the manner of said service, shall be proof of the service of the document.
(d) Time computation. Computation of any period of time prescribed or allowed by this subchapter, by order of the Commission or by any applicable statute, shall begin with the first business day following that on which the act or event initiating such period of time shall have occurred. When the last day of the period so computed is a Saturday, Sunday or National holiday, or other day on which the office of the Commission is closed, the period shall run until the end of the next following business day. When such period of time, with the intervening Saturdays, Sundays or National holidays counted, is less than 7 days, each of the Saturdays, Sundays and National holidays shall be excluded from the computation. When such period of time, with the intervening Saturdays, Sundays and National holidays counted exceed 7 days, each of the Saturdays, Sundays and National holidays shall be included in the computation.
(e) Legibility. All papers, pleadings, briefs or other documents, except the complaint filed with the Commission, shall be legibly typed, printed or otherwise legibly duplicated.
(f) Submitting documents. An original and three copies shall be submitted in the case of all papers, pleadings, briefs or other documents required to be filed with the Commission.
§ 185.80. Continuances.
(a) All applications for continuance, made prior to the hearing shall be in writing, shall set forth the reasons therefor, and shall be filed with the Commission in Harrisburg, Pennsylvania notice of such application by mail or otherwise to all parties or their attorneys. At the time of the hearing, applications for continuance may be made orally. If requested and in the manner prescribed by the Commission, the party applying for the continuance shall substantiate the reasons contained in such application.
(b) When application is made for continuance of a cause because of the illness of an applicant, licensee, witness or counsel, such application shall be accompanied by a medical certificate attesting to such illness and inability to appear.
(c) An application for continuance of any Commission hearing must be received by the Commission in Harrisburg, Pennsylvania at least 96 hours prior to the time fixed for hearing. An application received by the Commission within the 96 hour period will not be granted unless a satisfactory arrangement in writing is made with the Commission for the payment of all expenses resulting from such continuance. However, the Commission may waive payment of such expenses for extenuating circumstances.
(d) If the Commission approves the application for continuance, the Commission forthwith shall set a date for the continued hearing.
§ 185.81. Investigations.
No process, requirement of a report, inspection or other investigative act or demand shall be issued, made or enforced in any manner or for any purpose except as authorized by law. Every person compelled to submit data or evidence shall be entitled to retain, or procure, on payment of lawfully prescribed costs, a copy or transcript thereof.
§ 185.82. Witnesses and subpoenas.
(a) Witnesses at all hearings shall be examined orally under oath or affirmation and a record of the proceeding shall be made and kept by the Commission. If any witness resides outside the Commonwealth, or through illness or other cause is unable to testify before the Commission or its trial examiner, his testimony may be taken within or without this Commonwealth in a manner substantially similar to that prescribed by the Pennsylvania Rules of Civil Procedure for the taking of depositions.
(b) Subpoenas as authorized by law shall be issued in blank over the seal of the Commission to any party, upon demand made to the Commission in Harrisburg, Pennsylvania.
(c) Witness and mileage fees shall be paid by the party at whose instance the witnesses are called.
§ 185.83. Commission hearings.
(a) The Commission may, by written order, designate one or more Commission members, the Executive Secretary, General Counsel or any other qualified person designated by the Commission as an 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. No such member, officer or agent shall consult any party on any fact in issue unless upon notice and opportunity for all parties to participate. Any such Commission member, officer or agent may at any time withdraw from the proceeding if he deems himself disqualified, and upon the filing in good faith before the termination of the hearing of an affidavit of personal bias or disqualification of any such member, officer or agent, the Commission shall determine the matter as a part of the record and decision in the case. In the event of such withdrawal or disqualification, any other member, officer or agent if there be such participating in the hearing shall have the authority to complete the hearing and to participate in the decision.
(c) Members, officers or agents presiding at hearings shall have authority to:
(1) Administer oaths and affirmations.
(2) Issue subpoenas authorized by law.
(3) Rule upon offers of proof and receive relevant evidence.
(4) Take or cause depositions to be taken whenever the ends of justice would be served thereby.
(5) Regulate the course of the hearing.
(6) Hold conferences, where appropriate, for the settlement or simplification of issues by consent of the parties.
(7) Dispose of procedural requests or similar matters.
(8) Participate in making decisions.
(9) Take any other action authorized by this part.
(d) A decision shall be made and an adjudication issued thereon solely on the basis of the evidence introduced at the hearing.
(e) Proponents of the hearing shall have the burden of proof.
(f) Technical rules of evidence need not be followed at the hearing, but all testimony shall be taken under oath and all irrelevant, immaterial or unduly repetitious evidence shall be excluded. Relevant documentary evidence shall not be received over objection unless reasonably authenticated or proved. In this connection, no written statement of an investigative agent shall be introduced over objection unless the agent who made such statement is present at the hearing and is available for cross-examination on the method of preparation of the statement and on the information contained therein.
(g) At any time after the service of process any party may serve upon any other party a written request for the admission of the genuineness of any relevant documents described in the request. Copies of the documents shall be delivered with the request unless copies have already been furnished. Each requested admission shall be deemed made unless within a period designated by the Commission and prominently marked upon the request which period shall not be less than ten days after service thereof, the party so served files with the Commission and serves upon the party making the request either a statement denying specifically the relevant matters on which an admission is requested or setting forth the reasons why he can neither truthfully admit nor deny them, or written objections on the ground that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part.
(h) Except as indicated below, the order of testimony will be at the discretion of the Commission member, officer or agent presiding at the hearing. 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 desirability of hearing witnesses at times convenient for them for purposes of their lodging and transportation. If at the close of the day of hearing it becomes evident that all witnesses cannot be heard, the hearings may be continued generally or to a day certain.
(i) The presiding Commission member, officer or agent may request every person desiring to testify or present argument at the hearing, to notify the Executive Secretary of the Commission in advance of the hearing of his intention to appear, and the approximate time his testimony or argument will occupy. Such presiding member, officer or agent may call any person he wishes to hear and may issue subpoenas to insure attendance.
(j) The Commission member, officer or agent presiding at the hearing may require or allow a factual statement of the position of any party in the case.
(k) Bills of particulars may be furnished or denied by the Commission in any matter, hearing or controversy pending before it.
(l) If, at the time and place scheduled for hearing, all parties to the record are not in attendance whether in person or by counsel, the matter may be heard ex parte.
(m) A licensee who shall have been cited to show cause why his license should not be suspended or revoked may waive in writing the hearing fixed thereon. Such waiver shall constitute an admission of the charges contained in the citation and an authorization to the Commission to enter without hearing such final order or decree as it shall deem appropriate. All such waivers by corporate licensees or unincorporated association licensees shall be in writing accompanied by a resolution under the seal of the corporation or association authorizing the submission of such waiver. Such waivers shall be in a form provided by the Commission. Such forms, as they appear in Appendix B, may be obtained at the offices of the Commission.
(n) Contemptuous conduct shall be grounds for exclusion from the hearing.
(o) Motions made during a hearing and objections with respect to the conduct of a hearing, including objection to the introduction of evidence, shall be stated orally and shall be included in the stenographic record of the hearing. Argument shall not be included in the stenographic record unless the Commission member, officer, or agent presiding at the hearing shall so direct.
(p) At the conclusion of the hearing all parties shall be afforded an opportunity thereafter to submit briefs and requests for findings of fact and conclusions of law prior to adjudication. Copies of any brief or requests so submitted shall be served upon all parties to the proceeding and proof thereof filed with the Commission. On the basis of such briefs or requests, any party may request oral argument before the Commission. Upon such request or upon his own motion, the Commission member, officer or agent presiding at the hearing, in his sole discretion, may order oral argument, upon due notice to all parties of the time and place of argument.
(q) Any petition for further hearing, for reopening or for rehearing, reconsideration or modification of a Commission order must be filed within the 30 day period allowed for an appeal from an adjudication and shall be in writing setting forth in numbered paragraphs the finding or orders of the Commission that may be involved, the points relied upon by the petitioner, appropriate record references, and specific requests for the findings or orders desired. If the petition be for further hearing or for reopening the proceeding to take further evidence, the nature and purpose of the evidence to be adduced must be briefly stated.
(r) The Commission may, and upon its own motion reopen a hearing after notice to all parties and take further testimony at any time in which the record is within its control.
(s) A record of all testimony and exhibits, together with all papers and requests filed in the proceeding, shall constitute an exclusive record for decision. The record may either be in the form of a written transcript or a recording of the proceedings preserved on tape, wire or other suitable recording device. The Commission shall not be required to make a written transcript of the recording unless an appeal is filed with the Court of Common Pleas of Dauphin County. The record, if transcribed or recorded, shall be available during reasonable business hours. 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. No partial transcripts or transcripts of uncompleted hearings shall be furnished. When any Commission decision rests on official notice of a material fact not appearing in the evidence in the record, any party shall on timely request be afforded an opportunity to show the contrary.
Cross References This section cited in 58 Pa. Code § 185.84 (relating to decisions).
§ 185.84. Decisions.
(a) Within 30 days after the conclusion of the hearing, the Commission shall issue a written order. The Commission may also, in its discretion, render a written adjudication including a statement of findings of fact and conclusions of law, with the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record. All orders and adjudications shall be based upon a consideration of the whole record and be supported by reliable, probative and substantial evidence. Any final order or adjudication must be signed and approved by two members of the Commission who shall have the right to enter such final order or adjudication based upon the record made at the hearing or hearings conducted by the Commission or its designated hearing officer, pursuant to the provisions of § 185.83 (relating to commission hearings). Minority opinions may be submitted and these shall become part of the record.
(b) All orders and adjudications shall be served upon all the parties or their counsel personally or by certified mail. If service is made by mail, the date of mailing will be the date of service.
§ 185.85. Appeals.
(a) Within 30 days after the service of an adjudication, or if a petition for rehearing or reconsideration is filed pursuant to this part, then within 30 days after service of the order of the Commission refusing such petition, or of the order following rehearing or reconsideration, any party shall have the right to appeal therefrom. Such appeal shall be taken to the Court of Common Pleas of Dauphin County and shall be reviewable in accordance with sections 41 to 45 inclusive of the Act of June 4, 1945, P. L. 1388 as amended, otherwise known as the Administrative Agency Law.
(b) Parties interested jointly, severally or otherwise in the same adjudication may join in an appeal therefrom even though all of the interested parties do not join therein.
§ 185.86. Consolidation or severence.
Any two or more proceedings may be consolidated or severed by the Commission in its discretion.
§ 185.87. Authority of Secretary.
(a) The Executive Secretary of the Commission shall have authority to issue notice of orders of the Commission and to certify copies of all papers and documents which are a part of any of the files or records of the Commission.
(b) The Executive Secretary of the Commission shall be responsible for the efficient and orderly discharge of all matters including the keeping of Commission journals and the minutes of Commission meetings and the keeping of the docket and files of such Commission, and shall be permitted to attend all hearings, meetings and deliberations of the Commission.
§ 185.88. Construction and amendment of rules.
(a) The provisions of this part are intended to aid the efficient operation of the Commission and the orderly administration of the law. They shall be liberally construed for the accomplishment of these purposes and may be waived or suspended by the Commission at any time and in any proceeding unless such action results in depriving a party of substantial rights.
(b) Any rule or regulation may be amended or rescinded by the Commission at any time in accordance with law.
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