Subchapter A. PLEADINGS AND OTHER
PRELIMINARY MATTERS
APPLICATIONS Sec.
35.1. Applications generally.
35.2. Contents of applications.
INFORMAL COMPLAINTS
35.5. Form and content of informal complaints.
35.6. Correspondence handling of informal complaints.
35.7. Discontinuance of informal complaints without prejudice.
FORMAL COMPLAINTS
35.9. Formal complaints generally.
35.10. Form and content of formal complaints.
35.11. Joinder of formal complaints.
ORDERS TO SHOW CAUSE
35.14. Orders to show cause.
PETITIONS
35.17. Petitions generally.
35.18. Petitions for issuance, amendment, waiver or deletion of regulations.
35.19. Petitions for declaratory orders.
35.20. Appeals from actions of the staff.
PROTESTS
35.23. Protest generally.
35.24. Effect of protest.
INTERVENTION
35.27. Initiation of intervention.
35.28. Eligibility to intervene.
35.29. Form and contents of petitions to intervene.
35.30. Filing of petitions to intervene.
35.31. Notice and action on petitions to intervene.
35.32. Limitation of participation in hearings.
ANSWERS
35.35. Answers to complaints and petitions.
35.36. Answers to petitions to intervene.
35.37. Answers to orders to show cause.
35.38. Respondents seeking affirmative relief.
35.39. Replies to respondents seeking affirmative relief.
35.40. Answers to amendments of pleadings.
35.41. Satisfaction of complaints.
CONSOLIDATION
35.45. Consolidation.
AMENDMENT AND WITHDRAWAL OF
PLEADINGS
35.48. Amendments of pleadings generally.
35.49. Amendments to conform to the evidence.
35.50. Directed amendments.
35.51. Withdrawal of pleadings.
MOTIONS
35.54. Motions as to complaint.
35.55. Motions as to answer.
Cross References This subchapter cited in 104 Pa. Code § 7.16 (relating to RTKL appeals).
APPLICATIONS
§ 35.1. Applications generally.
Applications for authorization or permission which an agency may give under statutory or other delegated authority administered by it, in addition to the requirements prescribed in this part, shall conform to the requirements of the regulations promulgated by the agency under the several statutes and delegations of authority administered by it.
Notes of Decisions If the Insurance Commissioner has set conditions for lifting an order suspending an insurance company and a subsequent court ruling makes such conditions impossible to meet, the conditions of the Commissioner could be the subject of an application for authorization to resume business addressed to the Insurance Department pursuant to 1 Pa. Code § 35.1 (relating to applications generally) or a complaint under 1 Pa. Code § 35.9 (relating to formal complaints generally) Gibraltar Life Insurance Co. v. Bartle, 413 A.2d 32 (Pa. Cmwlth. 1980).
Cross References This section cited in 12 Pa. Code § 11.7 (relating to complaints); 22 Pa. Code § 351.1 (relating to purpose and scope); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 111.21 (relating to content and form); 34 Pa. Code § 111.32 (relating to form/content); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.55 (relating to attorney fees and costs); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.11 (relating to applications generally); 52 Pa. Code § 1003.51 (relating to applications generally); 52 Pa. Code § 1003.53 (relating to applications requiring notice); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.32 (relating to timeliness and perfection of requests for hearing); 55 Pa. Code § 41.33 (relating to appeals nunc pro tunc); 58 Pa. Code § 493a.1 (relating to generally); and 61 Pa. Code § 703.5 (relating to other submissions).
§ 35.2. Contents of applications.
Applications shall be in writing, shall state clearly and concisely the authorization or permission sought, shall cite by appropriate reference the statutory provision or other authority under which the agency authorization or permission is sought, and shall set forth in the order indicated the following (unless otherwise provided by agency regulations for the specific type of application involved):
(1) The exact legal name of the applicant and, if the applicant is a corporation, trust, association or other organized group, the jurisdiction under the laws of which the applicant was created or organized and the location of principal place of business of the applicant.
(2) The name, title and post office address of the person to whom correspondence or communications in regard to the application is to be addressed. The agency will serve, where required, notices, orders and other papers upon the person so named and the service shall be deemed to be serviced upon the applicant.
(3) In cases where notice of the application, or of hearing or opportunity to be heard, is required to be given by publication of a notice in the Pennsylvania Bulletin under § 35.105 (relating to notice of nonrulemaking proceedings) or another provision of law, a draft of the appropriate notice, omitting the date, time and place of hearing, or the date of termination of opportunity to be heard, prepared according to the style normally employed by the agency for similar notices in recent issues of the Pennsylvania Bulletin, or if no similar notices have been so published, prepared in accordance with the requirements of Chapter 11 (relating to preparation of notices, rulemaking proposals and unpublished regulations).
(4) Other information as required by the statutes and regulations under which a specific type of application is filed, and as may be required by the agency in a particular proceeding.
Cross References This section cited in 12 Pa. Code § 11.7 (relating to complaints); 22 Pa. Code § 351.1 (relating to purpose and scope); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 111.21 (relating to content and form); 34 Pa. Code § 111.32 (relating to form/content); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.55 (relating to attorney fees and costs); 34 Pa. Code § 131.56a (relating to withdrawal of appearance); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.12 (relating to contents of applications); 52 Pa. Code § 1003.52 (relating to contents of applications); 52 Pa. Code § 1003.53 (relating to applications requiring notice); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.32 (relating to timeliness and perfection of requests for hearing); 55 Pa. Code § 41.33 (relating to appeals nunc pro tunc); 58 Pa. Code § 51.42 (relating to applications); 58 Pa. Code § 71a.5 (relating to Notice of Stocking to the Commission); 58 Pa. Code § 493a.1 (relating to generally); and 61 Pa. Code § 703.5 (relating to other submissions).
INFORMAL COMPLAINTS
§ 35.5. Form and content of informal complaints.
Informal complaint may be by letter or other writing, and shall be serially numbered and filed as of the date of its receipt. No form of informal complaint is suggested, but in substance the letter or other writing shall contain the essential elements of a formal complaint as specified in § 35.9 (relating to formal complaints generally). Only one copy of an informal complaint need be filed. It may embrace supporting papers.
Cross References This section cited in 6 Pa. Code § 3.5 (relating to informal complaints); 12 Pa. Code § 11.7 (relating to complaints); 22 Pa. Code § 351.1 (relating to purpose and scope); 25 Pa. Code § 1021.51 (relating to commencement, form and content); 25 Pa. Code § 1021.52 (relating to timeliness of appeal); 25 Pa. Code § 1021.53 (relating to amendment to appeal or complaint); 25 Pa. Code § 1021.71 (relating to complaints filed by the Department); 25 Pa. Code § 1021.72 (relating to answers to complaints filed by other persons); 25 Pa. Code § 1021.73 (relating to transferred matters); 25 Pa. Code § 1021.74 (relating to answers to complaints); 28 Pa. Code § 1230a.38 (relating to commencement, form and content of Notice of Appeal); 28 Pa. Code § 1230a.39 (relating to timeliness of Notice of Appeal); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 37 Pa. Code § 421.21 (relating to reconsideration of adverse determination and request for hearing); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 3.111 (relating to form and content of informal complaints); 52 Pa. Code § 1003.41 (relating to form and content of informal complaints); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.32 (relating to timeliness and perfection of requests); 55 Pa. Code § 41.33 (relating to appeals nunc pro tunc); and 61 Pa. Code § 703.5 (relating to other submissions).
§ 35.6. Correspondence handling of informal complaints.
If the informal complaint appears to be susceptible of informal adjustment, a copy or a statement of the substance thereof will be transmitted by the agency to each person complained of in an endeavor to have it satisfied by correspondence and thus obviate the filing of a formal complaint.
Cross References This section cited 6 Pa. Code § 3.5 (relating to informal complaints); in 22 Pa. Code § 351.1 (relating to purpose and scope); 25 Pa. Code § 1021.51 (relating to commencement, form and content); 25 Pa. Code § 1021.52 (relating to timeliness of appeal); 25 Pa. Code § 1021.53 (relating to amendments to appeal or complaint); 25 Pa. Code § 1021.71 (relating to complaints filed by the Department); 25 Pa. Code § 1021.72 (relating to answers to complaints filed by other persons); 25 Pa. Code § 1021.73 (relating to transferred matters); 25 Pa. Code § 1021.74 (relating to answers to complaints); 28 Pa. Code § 1230a.38 (relating to commencement, form and content of Notice of Appeal); 28 Pa. Code § 1230a.39 (relating to timeliness of Notice of Appeal); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 3.112 (relating to action on informal complaints); 52 Pa. Code § 1003.42 (relating to authority action on informal complaints); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.32 (relating to timeliness and perfection of requests); 55 Pa. Code § 41.33 (relating to appeals nunc pro tunc); and 61 Pa. Code § 703.5 (relating to other submissions).
§ 35.7. Discontinuance of informal complaints without prejudice.
A proceeding instituted on an informal docket is without prejudice to the right of the complainant to file and prosecute a formal complaint, in which event the proceeding on the informal docket will be discontinued.
Cross References This section cited in 6 Pa. Code § 3.5 (relating to informal complaints); 12 Pa. Code § 11.7 (relating to complaints); 22 Pa. Code § 351.1 (relating to purpose and scope); 25 Pa. Code § 1021.51 (relating to commencement, form and content); 25 Pa. Code § 1021.52 (relating to timeliness of appeal); 25 Pa. Code § 1021.53 (relating to amendments to appeal or complaint); 25 Pa. Code § 1021.71 (relating to complaints filed by the Department); 25 Pa. Code § 1021.72 (relating to answers to complaints filed by other persons); 25 Pa. Code § 1021.73 (relating to transferred matters); 25 Pa. Code § 1021.74 (relating to answers to complaints); 28 Pa. Code § 1230a38 (relating to commencement, form and content of Notice of Appeal); 28 Pa. Code § 1230a39 (relating to timeliness of Notice of Appeal); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 3.112 (relating to action on informal complaints); 52 Pa. Code § 1003.42 (relating to authority action on informal complaints); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.32 (relating to timeliness and perfection of requests for hearing); 55 Pa. Code § 41.33 (relating to appeals nunc pro tunc); and 61 Pa. Code § 703.5 (relating to other submissions).
FORMAL COMPLAINTS
§ 35.9. Formal complaints generally.
A person complaining of anything done or omitted to be done by a person subject to the jurisdiction of an agency, in violation of a statute or regulation administered or issued by the agency may file a complaint with the agency. If the complaint relates to a provision in a tariff, policy form or other similar contract document on file with the agency, the document should be identified. A copy of the complaint will be forwarded by the agency to the respondent who will be called upon to satisfy the complaint or to answer the same in writing within the time specified in § 35.35 (relating to answers to complaints and petitions), or such lesser time as may be prescribed by statute, after the date of service of the complaint, unless the agency with or without motion shall prescribe a different time. If, in the judgment of the agency, a violation of a statute or regulation administered or issued by the agency has been alleged and has not been satisfied adequately the agency will either invite the parties to an informal conference, set the matter for a formal hearing, or take another action which in the judgment of the agency is appropriate. In the event that a hearing is held the complainant automatically shall be a party thereto and need not file a petition for leave to intervene.
Notes of Decisions Although a competitor of out-patient therapy for cancer patients was denied standing to contest the Department of Health’s decision of ‘‘non-reviewability’’, the competitor was permitted to file a formal complaint with the Department alleging that the letter of intent used by the Department to make its determination contained inaccurate facts. Powers v. Department of Health, 550 A.2d 857 (Pa. Cmwlth. 1988); appeal denied 574 A.2d 75 (Pa. 1989).
Although contract between Blue Shield and provider was subject to Department of Health approval, the Department does not have authority under this section to settle a contract dispute between Blue Shield and the provider and to award a money judgment. Pennsylvania Blue Shield v. Department of Health, 500 A.2d 1244 (Pa. Cmwlth. 1985); appeal denied 522 A.2d 560 (Pa. 1983).
Doctrine of exhaustion of administrative remedies was inapplicable where question was whether Medical Professional Liability Catastrophe Loss Fund was liable over to malpractice defendant’s excess insurer since the key question of whether there was one or two occurences of medical malpractice was not within the Fund’s specialized knowledge since the Fund regulations, 31 Pa. Code § § 242.1—242.20 do not address such claims and since the Health Care Services Malpractice Act makes no specific provision regarding claims between insurance companies and the Fund but does contemplate the Fund’s involvement in litigation concerning such claims, 40 P. S. § 1301.702(f). Ohio Casualty Group of Insurance Companies v. Argonaut Insurance Co., 500 A.2d 191 (Pa. Cmwlth. 1985).
The complaint against the issuance of licenses to graduates of the ADIO Institute of Straight Chiropractic, Inc. was properly filed with the State Board of Chiropractic Examiners under this section. Coder v. State Board of Chiropractic Examiners, 471 A.2d 563 (Pa. Cmwlth. 1984).
The provisions of 1 Pa. Code § 35.9 grant an agency the discretionary power to review a complaint to determine violations and to determine the modus operandi; an agency may permit third parties to proceed, but only aggrieved persons are entitled to judicial review of such proceedings. Apple v. Insurance Department, 431 A.2d 1183 (Pa. Cmwlth. 1981).
If the Insurance Commissioner has set conditions for lifting an order suspending an insurance company and a subsequent court ruling makes such conditions impossible to meet, the conditions of the Commissioner could be the subject of an application for authorization to resume business addressed to the Insurance Department under 1 Pa. Code § 35.1 (relating to applications generally) or a complaint under 1 Pa. Code § 35.9 (relating to formal complaints generally) Gibraltar Life Insurance Co. v. Bartle, 413 A.2d 32 (Pa. Cmwlth. 1980).
Notice of the requirement that a complaint be answered within twenty days need not be placed on a separate sheet of paper if the notice is neither inconspicuous nor innocuous. Fusaro v. Pennsylvania Public Utility Commission, 382 A.2d 794 (Pa. Cmwlth. 1978).
A notice that accompanies the copy of the complaint and which concerns requirements for an answer need not specifically state that the answer must be in writing if the respondents were supplied with a copy of the set of procedures for pleadings. Fusaro v. Pennsylvania Public Utility Commission, 382 A.2d 794 (Pa. Cmwlth. 1978).
Cross References This section cited in 1 Pa. Code § 35.5 (relating to form and content of informal complaints); 4 Pa. Code § 105.12 (relating to requests); 7 Pa. Code § 179.13 (relating to complaints and other pleadings); 12 Pa. Code § 11.7 (relating to complaints); 22 Pa. Code § 351.1 (relating to purpose and scope); 25 Pa. Code § 1021.51 (relating to commencement, form and content); 25 Pa. Code § 1021.52 (relating to timeliness of appeal); 25 Pa. Code § 1021.53 (relating to amendments to appeal or complaint); 25 Pa. Code § 1021.71 (relating to complaints filed by the Department); 25 Pa. Code § 1021.72 (relating to complaints filed by other persons); 25 Pa. Code § 1021.73 (relating to transferred matters); 34 Pa. Code § 81.71 (relating to filing); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 37 Pa. Code § 171.44 (relating to supporting legal authority); 37 Pa. Code § 421.21 (relating to reconsideration of adverse determination and request for hearing); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 51 Pa. Code § 21.1 (relating to complaints); 52 Pa. Code § 5.21 (relating to formal complaints generally); 52 Pa. Code § 1005.11 (relating to formal complaints generally); 52 Pa. Code § 1005.12 (relating to content of formal complaints); 52 Pa. Code § 1005.13 (relating to citation complaints by the Authority); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.32 (relating to timeliness and perfection of requests for hearing); 55 Pa. Code § 41.33 (relating to appeals nunc pro tunc); 58 Pa. Code § 493a.1 (relating to generally); 58 Pa. Code § 493a.2 (relating to complaints); and 61 Pa. Code § 703.5 (relating to other submissions).
§ 35.10. Form and content of formal complaints.
A complaint may be made by letter or other writing. It shall contain the name and address of the complainant, the name and address of the party against whom the complaint is made, and a statement of the facts forming the basis for the conclusion that there has been a violation of a statute or regulation administered or issued by the agency. Supporting material may be submitted along with the complaint.
Cross References This section cited in 4 Pa. Code § 105.12 (relating to requests); 6 Pa. Code § 3.6 (relating to request for a formal hearing); 6 Pa. Code § 22.103 (relating to filing of appeals); 7 Pa. Code § 179.13 (relating to complaints and other pleadings); 22 Pa. Code § 351.1 (relating to purpose and scope); 25 Pa. Code § 1021.51 (relating to commencement, form and content); 25 Pa. Code § 1021.52 (relating to timeliness of appeal); 25 Pa. Code § 1021.53 (relating to amendments to appeal or complaint); 25 Pa. Code § 1021.71 (relating to complaints filed by the Department); 25 Pa. Code § 1021.72 (relating to complaints filed by other persons); 25 Pa. Code § 1021.73 (relating to transferred matters); 34 Pa. Code § 81.71 (relating to filing); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 37 Pa. Code § 79.72 (relating to procedure for officers, CFIs, MIs or schools seeking reconsideration); 37 Pa. Code § 79.82 (relating to notice); 49 Pa. Code § 25.201 (relating to grounds for complaint); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.22 (relating to contents of formal complaint); 52 Pa. Code § 1005.12 (relating to content of formal complaints); 52 Pa. Code § 1005.13 (relating to citation complaints by the Authority); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.32 (relating to timeliness and perfection of requests for hearing); 55 Pa. Code § 41.33 (relating to appeals nunc pro tunc); 58 Pa. Code § 493a.1 (relating to generally); 58 Pa. Code § 493a.2 (relating to complaints); and 61 Pa. Code § 703.5 (relating to other submissions).
§ 35.11. Joinder of formal complaints.
Two or more grounds of complaint involving the same purposes, subject or state of facts, may be included in one complaint, but should be separately stated and identified; and two or more complainants may join in one complaint if their respective causes of complaint are against the same respondent or respondents, and involve substantially the same purposes and subject, and a like state of facts.
Cross References This section cited in 7 Pa. Code § 179.13 (relating to complaints and other pleadings); 12 Pa. Code § 11.7 (relating to complaints); 22 Pa. Code § 351.1 (relating to purpose and scope); 25 Pa. Code § 1021.51 (relating to commencement, form and content); 25 Pa. Code § 1021.52 (relating to timeliness of appeal); 25 Pa. Code § 1021.53 (relating to amendments to appeal or complaint); 25 Pa. Code § 1021.71 (relating to complaints filed by the Department); 25 Pa. Code § 1021.72 (relating to complaints filed by other persons); 25 Pa. Code § 1021.73 (relating to transferred matters); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.23 (relating to joinder of formal complaints); 52 Pa. Code § 1005.12 (relating to content of formal complaints); 52 Pa. Code § 1005.13 (relating to citation complaints by the Authority); 52 Pa. Code § 1005.14 (relating to joinder of formal complaints); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.32 (relating to timeliness and perfection of requests for hearing); 55 Pa. Code § 41.33 (relating to appeals nunc pro tunc); 58 Pa. Code § 493a.1 (relating to generally); 58 Pa. Code § 493a.2 (relating to complaints); and 61 Pa. Code § 703.5 (relating to other submissions).
ORDERS TO SHOW CAUSE
§ 35.14. Orders to show cause.
Whenever an agency desires to institute a proceeding against a person under statutory or other authority, the agency may commence the action by an order to show cause setting forth the grounds for the action. The order will contain a statement of the particulars and matters concerning which the agency is inquiring, which shall be deemed to be tentative and for the purpose of framing issues for consideration and decision by the agency in the proceeding, and the order will require that the respondent named respond orally, or in writing (as provided in § 35.37 (relating to answers to orders to show cause)) or both.
Notes of Decisions Since the violation notice contained references pertaining to rulemaking proceedings rather than to appeals from violation charges and since the show cause order did not clearly advise that an answer was to be filed and did not clearly mention appeal to the Industrial Board, the notice and order were inadequate and the case would be remanded to the Industrial Board for hearing and consideration. In re Hoge, 410 A.2d 106 (Pa. Cmwlth. 1980).
Cross References This section cited in 1 Pa. Code § 35.37 (relating to answers to orders to show cause); 4 Pa. Code § 607a.6 (relating to order to show cause); 7 Pa. Code § 131.22 (relating to special actions); 7 Pa. Code § 179.10 (relating to subpoena powers and procedures); 12 Pa. Code § 11.7 (relating to complaints); 16 Pa. Code § 49.62 (relating to notice of noncompliance); 22 Pa. Code § 32.6 (relating to enforcement); 22 Pa. Code § 121.9 (relating to administrative loan collection review procedures); 22 Pa. Code § 233.115 (relating to notice and hearings); 22 Pa. Code § 351.1 (relating to purpose and scope); 28 Pa. Code § 30.60 (relating to hearings and appeals); 28 Pa. Code § 101.104 (relating to form of notice); 28 Pa. Code § 601.14 (relating to reasons for revocation or nonrenewal of license); 28 Pa. Code § 709.17 (relating to refusal or revocation of license); 28 Pa. Code § 711.17 (relating to refusal or revocation); 28 Pa. Code § 717.12 (relating to refusal or revocation of license); 28 Pa. Code § 1230a.43 (relating to orders to show cause, orders or petitions filed by the Office); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 3a.99 (relating to notice of deficiency); 34 Pa. Code § 13.52 (relating to notice of deficiency); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 121.27 (relating to orders to show cause); 34 Pa. Code § 129.1602 (relating to order to show cause/penalties); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 34 Pa. Code § 131.122 (relating to other penalty proceedings); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 37 Pa. Code § 407.32 (relating to initiation of subgrant termination proceedings); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.31 (relating to staff-initiated complaints); 52 Pa. Code § 1005.12 (relating to content of formal complaints); 52 Pa. Code § 1005.13 (relating to citation complaints by the Authority); 58 Pa. Code § 51.23 (relating to order to show cause); 58 Pa. Code § 93.112 (relating to suspension, revocation or cancellation of certificate of title); 58 Pa. Code § 493a.2 (relating to complaints); 61 Pa. Code § 703.5 (relating to other submissions); and 67 Pa. Code § 491.9 (relating to order to show cause).
PETITIONS
§ 35.17. Petitions generally.
Petitions for relief under a statute or other authority delegated to an agency shall be in writing, shall state clearly and concisely the grounds of interest of the petitioner in the subject matter, the facts relied upon and the relief sought, and shall cite by appropriate reference the statutory provision or other authority relied upon for relief.
Cross References This section cited in 12 Pa. Code § 11.8 (relating to petitions for declaratory order); 22 Pa. Code § 233.114 (relating to confidentiality and unauthorized release of information); 22 Pa. Code § 233.120 (relating to expedited hearing procedures); 28 Pa. Code § 301.7 (relating to fair hearing); 34 Pa. Code § 111.11 (relating to content and form); 34 Pa. Code § 111.21 (relating to form and content); 34 Pa. Code § 111.32 (relating to form/content); 34 Pa. Code § 111.33 (relating to specific petitions/requirements); 34 Pa. Code § 131.31 (relating to form of pleadings); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 34 Pa. Code § 321.5 (relating to hearings); 37 Pa. Code § 171.44 (relating to supporting legal authority); 37 Pa. Code § 197.11a (relating to motions and petitions); 40 Pa. Code § 15.41 (relating to pleadings and other preliminary matters); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.41 (relating to petitions generally); 52 Pa. Code § 1005.21 (relating to petitions generally); 55 Pa. Code § 41.3 (relating to definitions); 55 Pa. Code § 41.44 (relating to transfer of petition for relief); 58 Pa. Code § 493a.4 (relating to petitions generally); and 61 Pa. Code § 703.1 (relating to petitions generally).
§ 35.18. Petitions for issuance, amendment, waiver or deletion of regulations.
A petition to an agency for the issuance, amendment, waiver or repeal of a regulation shall set forth clearly and concisely the interest of the petitioner in the subject matter, the specific regulation, amendment, waiver or repeal requested, and shall cite by appropriate reference the statutory provision or other authority therefor. The petition shall set forth the purpose of, and the facts claimed to constitute the grounds requiring, the regulation, amendment, waiver or repeal. Petitions for the issuance or amendment of a regulation shall incorporate the proposed regulation or amendment.
Notes of Decisions Petitioner must exhaust all administrative remedies under this section or the Regulatory Review Act (71 P. S. § § 745.1—745.15) before an action in mandamus can be entertained. Matesic v. Maleski, 624 A.2d 776 (Pa. Cmwlth. 1993).
Where Department of Public Welfare had created confusion regarding whether or not Department of Health approval was required for certain Medical Assistance Program health-care providers’ facilities, and where DPW had sua sponte waived the approval requirement for a short period of time, DPW abused its discretion in refusing to extend the waiver to encompass the full period of time necessary for the providers to obtain DOH approval. Eye and Ear Hospital v. Department of Public Welfare, 514 A.2d 976 (Pa. Cmwlth. 1986).
Cross References This section cited in 1 Pa. Code § 31.6 (relating to amendments to rules); 1 Pa. Code § 33.61 (relating to applications for waiver of formal requirements); 4 Pa. Code § 1.376 (relating to petitions); 12 Pa. Code § 11.8 (relating to petitions for declaratory order); 22 Pa. Code § 233.120 (relating to expedited hearing procedures); 22 Pa. Code § 351.1 (relating to purpose and scope); 34 Pa. Code § 81.95 (relating to requests for exemptions); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.3 (relating to waiver and modification of rules); 34 Pa. Code § 131.12 (relating to modification of time); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 34 Pa. Code § 131.202 (relating to first hearing information and stay); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.110 (relating to approved drugs for euthanasia); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.43 (relating to petitions for issuance, amendment, waiver or repeal of regulations); 52 Pa. Code § 1005.21 (relating to petitions generally); 52 Pa. Code § 1005.23 (relating to petitions for issuance, amendment, repeal or waiver of Authority regulations); 55 Pa. Code § 41.3 (relating to definitions); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.31 (relating to request for hearing) 55 Pa. Code § 41.41 (relating to waiver request); 55 Pa. Code § 41.43 (relating to request for issuance, amendment or deletion of regulations); 58 Pa. Code § 51.6 (relating to petitions or requests for regulations); 58 Pa. Code § 493a.4 (relating to petitions generally); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.19. Petitions for declaratory orders.
Petitions for the issuance, in the discretion of an agency, of a declaratory order to terminate a controversy or remove uncertainty, shall state clearly and concisely the controversy or uncertainty which is the subject of the petition, shall cite the statutory provision or other authority involved, shall include a complete statement of the facts and grounds prompting the petition, together with a full disclosure of the interest of the petitioner.
Notes of Decisions Controversy Required
Preliminary objections to complaint seeking declaratory judgment were sustained since challenge to proposed regulations was premature as there was no controversy. American Council of Life Insurance v. Foster, 580 A.2d 448 (Pa. Cmwlth. 1990).
Declaratory Order Inappropriate
Where insurer is a defendant in a pending class action, its request for a declaratory order is inappropriate, as the relief requested will not terminate a controversy or remove uncertainty. Therefore, there is no basis for maintaining an action for a declaratory order and the request was properly denied. Independence Blue Cross v. Insurance Department, 802 A.2d 715 (Pa. Cmwlth. 2002).
Review
It was within the powers of the Board of Property to review an action for declaratory judgment regarding title to real property between private parties and the Commonwealth. Kaiser Energy, Inc. v. Department of Environmental Resources, 535 A.2d 1255 (Pa. Cmwlth. 1988).
-Statutory Basis
The petition for declaratory order authorized by 1 Pa. Code Part II assumes an underlying statutory basis for the agency’s exercise of an adjudicatory function. Sunrise Energy, LLC v. FirstEnergy Corp., 148 A.3d 894 (Pa. Cmwlth. 2016).
Cross References This section cited in 12 Pa. Code § 11.8 (relating to petitions for declaratory order); 22 Pa. Code § 351.1 (relating to purpose and scope); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.42 (relating to petitions for declaratory orders); 52 Pa. Code § 1005.22 (relating to petitions for declaratory orders); 55 Pa. Code § 41.3 (relating to definitions); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 41.42 (relating to request for declaratory relief); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.20. Appeals from actions of the staff.
Actions taken by a subordinate officer under authority delegated by the agency head may be appealed to the agency head by filing a petition within 10 days after service of notice of the action.
Notes of Decisions Application
A facility which desired to be recognized as a hospital-based nursing facility under the exception criteria of 55 Pa. Code § 9424.6(b) (relating to skilled nursing facility participation requirements) has 10 days to appeal the denial of HBNF status. Renovo Hospital Association v. Department of Public Welfare, 480 A.2d 1260 (Pa. Cmwlth. 1984).
Failure to Appeal
The Commonwealth Court lacks appellate jurisdiction over the Department of Education’s final approval of the school board’s plan for bid awards, where the petitioners twice failed to appeal to the Secretary of Education the issues addressed by the division chief and the division chief’s failure to grant them a hearing on those issues. Citizens Concerned About Taxes v. Department of Education, 739 A.2d 1129 (Pa. Cmwlth. 1999).
Cross References This section cited in 4 Pa. Code § 39.12 (relating to criminal cases); 4 Pa. Code § 39.13 (relating to civil cases); 4 Pa. Code § 250.2 (relating to period from decisions of administrative staff); 7 Pa. Code § 131.21 (relating to appeals); 7 Pa. Code § 179.52 (relating to nature of Commission hearings); 12 Pa. Code § 11.8 (relating to petitions for declaratory order); 22 Pa. Code § 121.7 (relating to notice of denial and preliminary review procedures); 22 Pa. Code § 121.34 (relating to institutional appeals and hearings for other than the Federal Family Education Loan Program); 22 Pa. Code § 201.3a (relating to nonadjudicatory benefit appeal); 22 Pa. Code § 233.116 (relating to petitions requiring action prior to appointment of hearing officer); 22 Pa. Code § 233.124 (relating to power of subpoena); 22 Pa. Code § 351.1 (relating to purpose and scope); 28 Pa. Code § 1230a.38 (relating to commencement, form and content of Notice of Appeal); 28 Pa. Code § 1230a.39 (relating to timliness of Notice of Appeal); 34 Pa. Code § 111.11 (relating to content and form); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 34 Pa. Code § 213.8 (relating to grievances arising from administration of the act); 43 Pa. Code § 5.7 (relating to reconsideration and appeals); 43 Pa. Code § 5.20 (relating to reconsideration and appeals); 43 Pa. Code § 5.27 (relating to reconsideration and appeal); 43 Pa. Code § 5.34 (relating to appeals); 43 Pa. Code § 5.46 (relating to appeals); 49 Pa. Code § 21.33a (relating to failure to comply with standards); 49 Pa. Code § 21.162a (relating to failure to comply with standards); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.44 (relating to petitions for reconsideration from actions of the staff); 52 Pa. Code § 1005.24 (relating to appeals from actions of the staff); 55 Pa. Code § 20.82 (relating to written request for appeal); 55 Pa. Code § 41.31 (relating to request for hearing); 55 Pa. Code § 2380.12 (relating to appeals); 55 Pa. Code § 2390.12 (relating to appeals); 55 Pa. Code § 2800.12 (relating to appeals); 55 Pa. Code § 3130.82 (relating to appeals); 55 Pa. Code § 3270.12 (relating to appeals); 55 Pa. Code § 3280.12 (relating to appeals); 55 Pa. Code § 3290.13 (relating to appeals); 55 Pa. Code § 3700.72 (relating to family approved appeals); 58 Pa. Code § 51.44 (relating to appeals); 58 Pa. Code § 53.4 (relating to limiting access to Commission property and other restrictions); 58 Pa. Code § 53.24 (relating to tournament and fishing derby permits); 58 Pa. Code § 63.40 (relating to fishing tournaments and fishing derbies); 58 Pa. Code § 75.5 (relating to qualified surveyors for endangered and threatened species and their habitat); 58 Pa. Code § 493a.1 (relating to generally); and 61 Pa. Code § 703.2 (relating to petition content).
PROTESTS
§ 35.23. Protest generally.
A person objecting to the approval of an application, petition, motion or other matter which is, or will be, under consideration by an agency may file a protest. No particular form of protest is required but the letter or writing should contain the name and address of the protestant, the proceeding or matter to which the protest is addressed and a concise statement of the protest. Only one copy of a protest need be filed. Service need not be effected upon the parties.
Cross References This section cited in 12 Pa. Code § 11.8 (relating to petitions for declaratory order); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code 131.121 (relating to penalty proceedings initiated by a party); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 52 Pa. Code § 5.51 (relating to protest to an application); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 1003.54 (relating to protests); 55 Pa. Code § 41.61 (relating to filing of petitions to intervene); 61 Pa. Code § 703.2 (relating to petition content); and 67 Pa. Code § 441.3 (relating to permit application procedure).
§ 35.24. Effect of protest.
A protest is intended solely to alert the agency and the parties to a proceeding of the fact and nature of the objection of the protestant to the proposed agency action, other than a notice of proposed rulemaking (timely filed responses to notices of proposed rulemaking will be treated as ‘‘comments’’ and considered by the agency as such). The filing of a protest does not make the protestant a party to the proceeding; a separate petition to intervene is required for this purpose. Nor will a protest be considered by the agency as establishing the truth of the assertions of the protest. Where a timely protest is received prior to any final action by the agency in the matter, or designating a proceeding for formal hearing, the protest will be considered in determining what action is appropriate. If a hearing has been ordered, the protest will be placed into a public file associated with, but not part of, the record upon which the decision of the agency is made, and will be available for further exploration of the substantive matters raised therein by the agency staff and the other parties as may be appropriate.
Cross References This section cited in 12 Pa. Code § 11.8 (relating to petitions for declaratory order); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code 131.121 (relating to penalty proceedings initiated by a party); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 1003.54 (relating to protests); 55 Pa. Code § 41.61 (relating to filing of petitions to intervene); 61 Pa. Code § 703.2 (relating to petition content); and 67 Pa. Code § 441.3 (relating to permit application procedure).
INTERVENTION
§ 35.27. Initiation of intervention.
Participation in a proceeding as a party intervener may be initiated as follows:
(1) By the filing of a notice of intervention by another agency of the Commonwealth which is authorized by statute to participate in the proceeding.
(2) By order of the agency upon petition to intervene.
Cross References This section cited in 1 Pa. Code § 31.3 (relating to definitions); 7 Pa. Code § 131.14 (relating to interveners); 7 Pa. Code § 179.17 (relating to intervention); 25 Pa. Code § 1021.81 (relating to intervention); 28 Pa. Code § 301.7 (relating to fair hearing); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 19.33 (relating to intervention); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.71 (relating to initiation of intervention); 52 Pa. Code § 1005.31 (relating to initiation of intervention); 58 Pa. Code § 493a.12 (relating to intervention); 61 Pa. Code § 703.2 (relating to petition content); 67 Pa. Code § 441.3 (relating to permit application procedure); and 67 Pa. Code § 491.6 (relating to notice and conduct of hearings).
§ 35.28. Eligibility to intervene.
(a) Persons. A petition to intervene may be filed by a person claiming a right to intervene or an interest of such nature that intervention is necessary or appropriate to the administration of the statute under which the proceeding is brought. The right or interest may be one of the following:
(1) A right conferred by statute of the United States or of this Commonwealth.
(2) An interest which may be directly affected and which is not adequately represented by existing parties, and as to which petitioners may be bound by the action of the agency in the proceeding. The following may have an interest: consumers, customers or other patrons served by the applicant or respondent; holders of securities of the applicant or respondent; employes of the applicant or respondent; competitors of the applicant or respondent.
(3) Other interest of such nature that participation of the petitioner may be in the public interest.
(b) Commonwealth. The Commonwealth or an officer or agency thereof may intervene as of right in a proceeding subject to this part.
Source The provisions of this § 35.28 amended January 25, 1980, effective January 26, 1980, 10 Pa.B. 256.
Notes of Decisions Due Process
Department of Banking which granted Banks’ petition to intervene in proceeding on credit unions’ proposal to reorganize by geographic communities pursuant to the public interest prong, improperly dismissed the Banks’ petition based on their failure to prove they had a direct interest in the procceedings under the direct interest prong; due process required that the Banks had notice their status as intervenors was in dispute and that additional proof of standing to intervene was required. Pennsylvania Bankers Ass’n v. Pennsylvania Dep’t of Banking, 956 A.2d 956, 960-961 (Pa. 2008).
Denial of the Pennsylvania Dental Association’s petition to intervene in a statutory comment procedure did not violate procedural due process in part because the Association failed to show that the changes in payment rates to its members would adversely affect their ability to remain in business and because nearly 40% of its members would not be affected by the rate change. Pennsylvania Dental Asso. v. Insurance Department, 551 A.2d 1148 (Pa. Cmwlth. 1988); 560 A.2d 870 (Pa. Cmwlth. 1989).
Scope of Provisions
Alleged Industrial Board abuses with regard to enforcement of the Fire and Panic Act can be and should be challenged by resort to existing administrative procedures and judicial review. In re Petition of Dwyer, 406 A.2d 1355 (Pa. 1979).
Standing
Taxpaying residents of adjacent school districts had no standing to intervene in an action involving a charter school application. The taxpayers fail to satisfy any of the requirements for intervention. West Chester Area School District v. Collegium Charter School, 812 A.2d 1172 (Pa. Cmwlth. 2002).
An organization has no standing to pursue an action before an agency if the organization is representing those of its members who have no standing, even though the organization has other members who would have standing to pursue the action. Apple v. Insurance Department, 431 A.2d 1183 (Pa. Cmwlth. 1981).
Statute or Harm Requirement
There was no statute which conferred on the education association the right to intervene in the Secretary of Education’s consideration of the school district’s request to alter its educational program at the elementary school. In addition, the association was not directly affected by the Secretary’s consideration of the school district’s request and was not bound by the Secretary’s response to that request. Thus, because the association was not aggrieved by the decision, it lacked standing to challenge the determinations. Wilkinsburg Educ. Ass’n v. Wilkinsburg School Dist., 690 A.2d 1252 (Pa. Cmwlth. 1996).
Cross References This section cited in 1 Pa. Code § 31.3 (relating to definitions); 7 Pa. Code § 131.14 (relating to interveners); 7 Pa. Code § 179.17 (relating to intervention); 22 Pa. Code § 233.115 (relating to notice and hearings); 25 Pa. Code § 1021.81 (relating to intervention); 28 Pa. Code § 301.7 (relating to fair hearing); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 37 Pa. Code § 171.143 (relating to notice to Attorney General; constitutionality of statute); 37 Pa. Code § 197.40a (relating to petition to intervene); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 19.33 (relating to intervention); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.72 (relating to eligibility to intervene); 52 Pa. Code § 1005.32 (relating to eligibility to intervene); 58 Pa. Code § 493a.12 (relating to intervention); 61 Pa. Code § 703.2 (relating to petition content); 67 Pa. Code § 441.3 (relating to permit application procedure); and 67 Pa. Code § 491.6 (relating to notice and conduct of hearing).
§ 35.29. Form and contents of petitions to intervene.
Petitions to intervene shall set out clearly and concisely the facts from which the nature of the alleged right or interest of the petitioner can be determined, the grounds of the proposed intervention, and the position of the petitioner in the proceeding, so as fully and completely to advise the parties and the agency as to the specific issues of fact or law to be raised or controverted, by admitting, denying or otherwise answering, specifically and in detail, each material allegation of fact or law asserted in the proceeding, and citing by appropriate reference the statutory provisions or other authority relied on.
Cross References This section cited in 1 Pa. Code § 31.3 (relating to definitions); 7 Pa. Code § 131.14 (relating to interveners); 7 Pa. Code § 179.17 (relating to intervention); 25 Pa. Code § 1021.81 (relating to intervention); 28 Pa. Code § 301.7 (relating to fair hearing); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 34 Pa. Code § 225.8 (relating to petition to intervene); 37 Pa. Code § 197.40a (relating to petition to intervene); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 19.33 (relating to intervention); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.73 (relating to form and content of petitions to intervene); 52 Pa. Code § 1005.33 (relating to form and content of petitions to intervene); 58 Pa. Code § 493a.12 (relating to intervention); 61 Pa. Code § 703.2 (relating to petition content); 67 Pa. Code § 441.3 (relating to permit application procedure); and 67 Pa. Code § 491.6 (relating to notice and conduct of hearing).
§ 35.30. Filing of petitions to intervene.
Petitions to intervene and notices of intervention may be filed at any time following the filing of an application, petition, complaint, or other document seeking agency action, but in no event later than the date fixed for the filing of petitions to intervene in any order or notice with respect to the proceedings published in the Pennsylvania Bulletin, unless, in extraordinary circumstances for good cause shown, the agency authorizes a late filing. Where a person has been permitted to intervene notwithstanding his failure to file his petition within the time prescribed in this section, the agency head or presiding officer may, where the circumstances warrant, permit the waiver of the requirements of § 35.169 (relating to copies to parties and agency) with respect to copies of exhibits for the intervener.
Cross References This section cited in 1 Pa. Code § 31.3 (relating to definitions); 7 Pa. Code § 131.14 (relating to interveners); 7 Pa. Code § 179.17 (relating to intervention); 25 Pa. Code § 1021.81 (relating to intervention); 28 Pa. Code § 301.7 (relating to fair hearing); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 37 Pa. Code § 197.40a (relating to petition to intervene); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 19.33 (relating to intervention); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.74 (relating to filing of petitions to intervene); 52 Pa. Code § 1005.34 (relating to filing of petitions to intervene); 58 Pa. Code § 493a.12 (relating to intervention); 61 Pa. Code § 703.2 (relating to petition content); 67 Pa. Code § 441.3 (relating to permit application procedure); and 67 Pa. Code § 491.6 (relating to notice and conduct of hearing).
§ 35.31. Notice and action on petitions to intervene.
(a) Notice and service. Petitions to intervene, when tendered to an agency for filing, shall show service thereof upon participants to the proceeding in conformity with § 33.32 (relating to service by a participant).
(b) Action on petitions. As soon as practicable after the expiration of the time for filing answers to the petitions or default thereof, as provided in § 35.36 (relating to answers to petitions to intervene), the agency will grant or deny the petition in whole or in part or may, if found to be appropriate, authorize limited participation. No petitions to intervene may be filed or will be acted upon during a hearing unless permitted by the agency after opportunity for all parties to object thereto. Only to avoid detriment to the public interest will any presiding officer tentatively permit participation in a hearing in advance of, and then only subject to, the granting by the agency of a petition to intervene.
Notes of Decisions If a party who has been granted intervener status actually presents evidence during the course of an administrative hearing, the only way for that intervener to withdraw its appearance would be by leave of the presiding officers. Pennsylvania Association of Home Health Agencies v. Insurance Department, 547 A.2d 824 (Pa. Cmwlth. 1988).
Cross References This section cited in 1 Pa. Code § 31.3 (relating to definitions); 7 Pa. Code § 131.11 (relating to time); 7 Pa. Code § 131.14 (relating to interveners); 7 Pa. Code § 179.17 (relating to intervention); 25 Pa. Code § 1021.81 (relating to intervention); 28 Pa. Code § 301.7 (relating to fair hearing); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 19.33 (relating to intervention); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.75 (relating to notice, service and action on petitions to intervene); 52 Pa. Code § 1005.35 (relating to notice, service and action on petitions to intervene); 58 Pa. Code § 493a.12 (relating to intervention); 61 Pa. Code § 703.2 (relating to petition content); 67 Pa. Code § 441.3 (relating to permit application procedure); and 67 Pa. Code § 491.6 (relating to notice and conduct of hearing).
§ 35.32. Limitation of participation in hearings.
Where there are two or more interveners having substantially like interests and positions, the agency head or presiding officer may, in order to expedite the hearing, arrange appropriate limitations on the number of attorneys who will be permitted to cross-examine and make and argue motions and objections on behalf of the interveners.
Cross References This section cited in 7 Pa. Code § 179.17 (relating to intervention); 25 Pa. Code § 1021.81 (relating to intervention); 28 Pa. Code § 301.7 (relating to fair hearing); 34 Pa. Code § 131.32 (relating to petitions except petitions for joinder and challenge proceedings); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 19.33 (relating to intervention); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.76 (relating to limitation of participation in hearings); 52 Pa. Code § 1005.36 (relating to limitation of participation in hearings); 58 Pa. Code § 493a.12 (relating to intervention); 61 Pa. Code § 703.2 (relating to petition content); 67 Pa. Code § 441.3 (relating to permit application procedure); and 67 Pa. Code § 491.6 (relating to notice and conduct of hearing).
ANSWERS
§ 35.35. Answers to complaints and petitions.
Answers to complaints and petitions, other than petitions to intervene and petitions of appeal from delegated actions of subordinate officers, shall be filed with the agency within 20 days after the date of service, unless for cause the agency with or without motion shall prescribe a different time, but in no case may an answer be required in less than 10 days after the date of service. Answers to petitions of appeal from delegated actions of subordinate officers shall be filed with the agency within 10 days after the date of service. A respondent failing to file an answer within the applicable period shall be deemed in default, and relevant basic facts stated in the complaint or petition may be deemed admitted. Answers shall be in writing, and so drawn as fully and completely to advise the parties and the agency as to the nature of the defense. They shall admit or deny specifically and in detail each material allegation of the pleading answered, and state clearly and concisely the facts and matters of law relied upon.
Notes of Decisions When taxi company was advised by letter that failure to file a responsive pleading within the prescribed time period could result in Pennsylvania Public Utility Commission’s deeming all allegations against taxi company to be admitted, company’s failure to respond prevented it from raising issue of improper muzzling of guide dog as defense against handicapped person’s charge of unlawfully refusing service under 52 Pa. Code § 29.102. Metro Transportation Company v. Pennsylvania Public Utility Commission, 525 A.2d 24 (Pa. Cmwlth. 1987).
An order conditioning the reinstatement of a cancelled certificate was affirmed where that order merely affirmed an earlier order cancelling the certificate and added conditions for its reinstatement, and where the certificate holder had not timely answered a complaint based upon her failure to provide evidence of insurance and failure to file an annual report, so the facts in that complaint were deemed admitted. De Gregorio v. Pennsylvania Public Utility Commission, 481 A.2d 1241 (Pa. Cmwlth. 1984).
A notice by the agency that accompanies the copy of the complaint and which concerns requirements for an answer need not specifically state that the answer must be in writing if the respondents were supplied with a copy of the set of procedures for pleadings. Fusaro v. Pennsylvania Public Utility Commission, 382 A.2d 794 (Pa. Cmwlth. 1978).
An administrative agency may not enter default judgments without notice and hearing on those complaints to which answers have been filed. Bates Taxi, Inc. v. Pennsylvania Public Utility Commission, 381 A.2d 1328 (Pa. Cmwlth. 1978).
Cross References This section cited in 1 Pa. Code § 35.9 (relating to formal complaints generally); 4 Pa. Code § 60.6 (relating to procedure); 7 Pa. Code § 179.14 (relating to answers to complaints, petitions, motions and other filings requiring a response); 12 Pa. Code § 11.9 (relating to answers to complaints and petitions); 25 Pa. Code § 1021.74 (relating to answers to complaints); 28 Pa. Code § 1230a.39 (relating to timeliness of Notice of Appeal); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 111.23 (relating to answers); 34 Pa. Code § 111.34 (relating to answers to petitions); 34 Pa. Code § 131.33 (relating to answers except to answers for joinder and challenge proceedings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 37 Pa. Code § 171.44 (relating to supporting legal authority); 37 Pa. Code § 197.11a (relating to motions and petitions); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 19.35 (relating to subsequent pleadings); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.61 (relating to answers to complaints, petitions, motions and preliminary objections); 52 Pa. Code § 5.405 (relating to effect of pleadings); 52 Pa. Code § 1005.41 (relating to answers to complaints, petitions, motions and other filings requiring a response); 52 Pa. Code § 1005.145 (relating to effect of pleadings); 55 Pa. Code § 41.71 (relating to answers generally); 58 Pa. Code § 493a.5 (relating to answers to complaints, petitions, motions and other filings requiring a response); 61 Pa. Code § 703.2 (relating to petition content); 61 Pa. Code § 703.8 (relating to timeliness of submissions); and 67 Pa. Code § 491.6 (relating to notice and conduct of hearing).
§ 35.36. Answers to petitions to intervene.
A participant may file an answer to a petition to intervene, and in default thereof, may be deemed to have waived an objection to the granting of the petition. If made, answers shall be filed within 10 days after the date of service of the petition, but no later than 5 days prior to the date set for the commencement of the hearing, if any, unless for cause the agency with or without motion shall prescribe a different time.
Cross References This section cited in 1 Pa. Code § 35.31 (relating to notice and action on petitions to intervene); 7 Pa. Code § 179.14 (relating to answers to complaints, petitions, motions and other filings requiring a response); 7 Pa. Code § 179.17 (relating to intervention); 12 Pa. Code § 11.9 (relating to answers to complaints and petitions); 25 Pa. Code § 1021.81 (relating to intervention); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 34 Pa. Code § 225.8 (relating to petition to intervene); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.66 (relating to answers to petitions to intervene); 52 Pa. Code § 1005.45 (relating to answers to petitions to intervene); 55 Pa. Code § 41.72 (relating to answers to petitions to intervene); 58 Pa. Code § 493a.5 (relating to answers to complaints, petitions, motions and other filings requiring a response); 58 Pa. Code § 493a.12 (relating to intervention); 61 Pa. Code § 703.2 (relating to petition content); and 67 Pa. Code § 491.6 (relating to notice and conduct of hearing).
§ 35.37. Answers to orders to show cause.
A person upon whom an order to show cause has been served under § 35.14 (relating to orders to show cause) shall, if directed so to do, respond to the same by filing within the time specified in the order an answer in writing. The answer shall be drawn so as specifically to admit or deny the allegations or charges which may be made in the order, set forth the facts upon which respondent relies and state concisely the matters of law relied upon. Mere general denials of the allegations of an order to show cause which general denials are unsupported by specific facts upon which respondent relies, will not be considered as complying with this section and may be deemed a basis for entry of a final order without hearing, unless otherwise required by statute, on the ground that the response has raised no issues requiring a hearing or further proceedings. A respondent failing to file answer within the time allowed shall be deemed in default, and relevant facts stated in the order to show cause may be deemed admitted.
Notes of Decisions Admission Based on Denial
A member of the Amish community was found guilty of practicing dentistry without a license based in part upon this regulation which as the State Board of Dentistry noted provides that a mere general denial is deemed an admission following the Amish gentleman’s comment that he was ‘‘willing to take [his] punishment for the sake of [his] people.’’ Zook v. State Board of Dentistry, 683 A.2d 713 (Pa. Cmwlth. 1996).
Default
If an educator fails to timely respond to Notice of Charges, an educator is deemed to have defaulted under this regulation, and the Professional Standards and Practices Commission may deem admitted the relevant facts stated in the Notice of Charges and proceed to consideration of discipline based upon the admitted facts and exhibits to the Notice of Charges. Kinniry v. Professional Standards & Practices Commission, 678 A.2d 1230 (Pa. Cmwlth. 1996).
Cross References This section cited in 1 Pa. Code § 35.14 (relating to orders to show cause); 4 Pa. Code § 607a.7 (relating to answer to order to show cause); 7 Pa. Code § 131.22 (relating to special actions); 7 Pa. Code § 179.14 (relating to answers to complaints, petitions, motions and other filings requiring a response); 12 Pa. Code § 11.9 (relating to answers to complaints and petitions); 22 Pa. Code § 233.115 (relating to notice and hearings); 22 Pa. Code § 351.1 (relating to purpose and scope); 28 Pa. Code § 101.121 (relating to demand for hearing); 28 Pa. Code § 709.18 (relating to hearings); 28 Pa. Code § 711.18 (relating to hearings); 28 Pa. Code § 717.13 (relating to hearings); 28 Pa. Code § 1230a.44 (relating to answers to orders to show cause, orders or other petitions filed by the Office); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 3a.99 (relating to notice of deficiency); 34 Pa. Code § 13.52 (relating to notice of deficiency); 34 Pa. Code § 49.14 (relating to answer to order to show cause); 34 Pa. Code § 60.11 (relating to enforcement); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 121.27 (relating to orders to show cause); 34 Pa. Code § 129.1602 (relating to order to show cause/penalties); 34 Pa. Code § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code 131.121 (relating to penalty proceedings initiated by a party); 34 Pa. Code § 131.122 (relating to other penalty proceedings); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 43 Pa. Code § 7.12 (relating to discipline and discharge); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 1005.41 (relating to answers to complaints, petitions, motions and other filings requiring a response); 58 Pa. Code § 51.24 (relating to answer to order to show cause); 58 Pa. Code § 493a.5 (relating to answers to complaints, petitions, motions and other filings requiring a response); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.38. Respondents seeking affirmative relief.
Respondents seeking relief against other parties in a proceeding by reason of the presence of common questions of law or fact shall set forth in their answer the facts constituting the grounds of complaint; the provisions of the statutes, rules, regulations or orders relied upon; the injury complained of; and the relief sought. The answer shall in all other respects conform to the requirements of this part for answers generally.
Cross References This section cited in 7 Pa. Code § 179.14 (relating to answers to complaints, petitions, motions and other filings requiring a response); 12 Pa. Code § 11.9 (relating to answers to complaints and petitions); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 1005.42 (relating to answers seeking affirmative relief or raising new matter); 58 Pa. Code § 493a.5 (relating to answers to complaints, petitions, motions and other filings requiring a response); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.39. Replies to respondents seeking affirmative relief.
Unless otherwise ordered by the agency, replies to answers seeking affirmative relief shall be filed and served within 15 days after the service of the answer, but not later than 5 days prior to the date set for the commencement of the hearing, if any.
Cross References This section cited in 1 Pa. Code § 35.55 (relating to motions as to answer); 7 Pa. Code § 179.14 (relating to answers to complaints, petitions, motions and other filings requiring a response); 12 Pa. Code § 11.9 (relating to answers to complaints and petitions); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.63 (relating to replies to answers seeking affirmative relief); 52 Pa. Code § 1005.43 (relating to replies to answers seeking affirmative relief or new matter); 55 Pa. Code § 41.61 (relating to filing of petitions to intervene); 58 Pa. Code § 493a.5 (relating to answers to complaints, petitions, motions and other filings requiring a response); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.40. Answers to amendments of pleadings.
A participant may file an answer to an amendment, modification or supplement to an application, complaint, petition or other pleading. If made, answers shall be filed within 15 days after the date of service of the amendment, modification or supplement, unless for cause the agency head or presiding officer with or without motion shall prescribe a different time.
Cross References This section cited in 7 Pa. Code § 179.14 (relating to answers to complaints, petitions, motions and other filings requiring a response); 12 Pa. Code § 11.9 (relating to answers to complaints and petitions); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code § 131.35 (relating to amendments to pleadings); 34 Pa. Code 131.36 (relating to joinder); 34 Pa. Code § 131.57 (relating to compromise and release agreements); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.65 (relating to answers to amendments of pleadings); 52 Pa. Code § 1005.44 (relating to answers to amendments of pleadings); 55 Pa. Code § 41.61 (relating to filing of petitions to intervene); 58 Pa. Code § 493a.5 (relating to answers to complaints, petitions, motions and other filings requiring a response); 58 Pa. Code § 493a.7 (relating to amendments and withdrawal of pleadings); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.41. Satisfaction of complaints.
If the respondent satisfies a formal complaint either before or after answering, a statement to that effect signed by the opposing parties shall be filed, setting forth when and how the complaint has been satisfied and requesting dismissal.
Cross References This section cited in 12 Pa. Code § 11.9 (relating to answers to complaints and petitions); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa, Code 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code § 131.57 (relating to compromise and release agreements); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.24 (relating to satisfaction of formal complaints); 52 Pa. Code § 1005.15 (relating to satisfaction of formal complaints); 55 Pa. Code § 41.61 (relating to filing of petitions to intervene); 58 Pa. Code § 493a.3 (relating to satisfaction of complaints); and 61 Pa. Code § 703.2 (relating to petition content).
CONSOLIDATION
§ 35.45. Consolidation.
By order of the agency, proceedings involving a common question of law or fact may be joined for hearing of the matters in issue in the proceedings, and the proceedings may be consolidated; and the agency may make the orders concerning the conduct of the proceedings as may avoid unnecessary costs or delay.
Cross References This section cited in 4 Pa. Code § 607a.9 (relating to consolidation of proceedings); 7 Pa. Code § 179.58 (relating to consolidation); 25 Pa. Code § 1021.82 (relating to consolidation); 34 Pa. Code § 131.30 (relating to consolidation); 37 Pa. Code § 197.39 (relating to consolidation of appeals); 37 Pa. Code § 197.63 (relating to consolidation of petitions); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.81 (relating to consolidation); 52 Pa. Code § 1005.51 (relating to consolidation); 55 Pa. Code § 41.81 (relating to consolidation of provider appeals); 58 Pa. Code § 493a.6 (relating to consolidation); 61 Pa. Code § 703.2 (relating to petition content); and 61 Pa. Code § 703.7 (relating to consolidation).
AMENDMENT AND WITHDRAWAL OF PLEADINGS
§ 35.48. Amendments of pleadings generally.
(a) A modification of or supplement to an application, complaint, petition or other pleading shall be deemed as an amendment to the pleading, and shall comply with the requirements of this subchapter relating to the pleading amended insofar as appropriate. Upon its own motion or upon motion promptly filed by a participant, the agency may for good cause decline to permit, or may strike in whole or part, an amendment.
(b) Except as otherwise provided in this subsection, no amendment to a pleading may be filed within 5 days next preceding the commencement of or during a hearing unless directed or permitted by the agency head or the presiding officer after opportunity for all parties to be heard thereon. An amendment in a licensing or certification proceeding which reduces the scope of the application may be filed at any time, if permitted by the agency head or the presiding officer.
Notes of Decisions Where petitioner has failed to describe, during the hearings and in his briefs, the specific nonmerit factor on which he alleges his furlough was based, and where the Civil Service Commission gave extensive rein in the introduction of evidence and specifically found a lack of discrimination, it cannot be said that the Commission abused its discretion in denying petitioner’s motion to amend his complaint to include an allegation that furlough was based on political, religious, union, race, national origin or other nonmerit factors under 71 P. S. § 741.905(a). O’Byrne v. Department of Transportation, 498 A.2d 1385 (Pa. Cmwlth. 1985).
Cross References This section cited in 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.35 (relating to amendments to pleadings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.57 (relating to compromise and release agreements); 34 Pa. Code § 131.60 (relating to resolution hearings); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.91 (relating to amendments of pleadings generally); 52 Pa. Code § 1005.61 (relating to amendments of pleadings generally); 52 Pa. Code § 1005.62 (relating to amendments to conform to the evidence); 55 Pa. Code § 41.82 (relating to amendments of requests for hearing); 58 Pa. Code § 493a.7 (relating to amendments and withdrawal of pleadings); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.49. Amendments to conform to the evidence.
(a) When, at a hearing, issues not raised by the pleadings are introduced by express or implied consent of the parties, they shall be treated as if they had been raised in the pleadings. The amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these new issues may be made upon motion of a participant at any time during the hearing. If evidence upon the new issues is objected to on the ground that it is not within the issues raised by the pleadings, the agency head or the presiding officer may allow the pleadings to be amended and the evidence to be received, when it appears that the presentation of the merits of the proceeding will be served thereby without prejudicing the public interest or the rights of any participant. When in the discretion of the agency head or the presiding officer, a continuance is necessary in order to enable the objecting participant to meet the new issues and evidence, a continuance may be granted by the agency head or the presiding officer, as provided in § 31.15 (relating to extensions of time).
(b) If an amendment adopted under subsection (a) has the effect of broadening the issues in the proceeding, notice of the amendment shall be given in the same manner as notice was given at the commencement of the proceeding and to the same class of persons who received the notice.
Notes of Decisions Due Process Violated
The bureau’s motion to amend to include new charges was entered after all of the witnesses had testified at the hearing, and after all of the evidence had been presented to the board. By allowing the amendment of the orders at that stage of the proceedings, the board denied the doctor the opportunity to hear the evidence as it related to the new charges, or to cross-examine witnesses and introduce exculpatory evidence as to those charges. As a result, the board denied the doctor’s due process rights and the opportunity to address the new charges in a post-hearing brief was insufficient to satisfy the due process requirements. White v. State Board of Optometry, 682 A.2d 404 (Pa. Cmwlth. 1996).
Notice
The amendment of the orders to include the alleged violations of a separate and distinct provision of the Optometric Practice and Practices Act certainly broadened the issues which were to be considered by the board at the hearings. As a result, the doctor was entitled to receive notice of the amendment in the same manner as notice was given at the commencement of these disciplinary proceedings. White v. State Board of Optometry, 682 A.2d 404 (Pa. Cmwlth. 1996).
Cross References This section cited in 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.35 (relating to amendments to pleadings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.57 (relating to compromise and release agreements); 34 Pa. Code § 131.60 (relating to resolution hearings); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.92 (relating to amendments to conform to the evidence); 52 Pa. Code § 1005.62 (relating to amendments to conform to the evidence); 55 Pa. Code § 41.82 (relating to amendments of requests for hearing); 58 Pa. Code § 493a.7 (relating to amendments and withdrawal of pleadings); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.50. Directed amendments.
The agency head may at any time, or during a hearing the presiding officer may on his own motion or the motion of a participant, direct a party to state his case by way of amendment more fully or in more detail. The amendment shall be reduced to writing and filed within the time as may be fixed therefor.
Cross References This section cited in 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.35 (relating to amendments to pleadings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.57 (relating to compromise and release agreements); 34 Pa. Code § 131.60 (relating to resolution hearings); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.93 (relating to directed amendments); 52 Pa. Code § 1005.63 (relating to directed amendments); 55 Pa. Code § 41.82 (relating to amendments of requests for hearing); 58 Pa. Code § 493a.7 (relating to amendments and withdrawal of pleadings); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.51. Withdrawal of pleadings.
A participant desiring to withdraw a pleading filed with an agency may file a notice of withdrawal thereof with the agency. The notice shall set forth the reasons for the withdrawal. Unless otherwise ordered by the agency for good cause, the notice shall, 30 days after the filing thereof, be deemed to have effected the withdrawal of the pleading, including amendments, if any, except that this section shall not be construed as effecting, without express permission of the agency, withdrawal of the following:
(1) A pleading in a proceeding in which a hearing has been held or convened.
(2) A formal complaint, answer thereto, answer to order to show cause, or an amendment to any of the aforesaid pleadings.
Cross References This section cited in 1 Pa. Code § 33.42 (relating to withdrawal or termination); 12 Pa. Code § 11.10 (relating to withdrawal of pleadings); 34 Pa. Code § 95.97 (relating to motions for withdrawal); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 111.17 (relating to oral argument); 34 Pa. Code § 131.34 (relating to other filings); 34 Pa. Code § 131.35 (relating to amendments to pleadings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.57 (relating to compromise and release agreements); 34 Pa. Code § 131.60 (relating to resolution hearings); 37 Pa. Code § 171.47 (relating to withdrawal of motions); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.94 (relating to withdrawal of pleadings in a contested proceeding); 52 Pa. Code § 1005.64 (relating to withdrawal of pleadings in a contested proceeding); 55 Pa. Code § 41.83 (relating to withdrawal of provider appeals); 58 Pa. Code § 493a.7 (relating to amendments and withdrawal of pleadings); 61 Pa. Code § 703.2 (relating to petition content); and 61 Pa. Code § 703.9 (relating to withdrawal or termination of appeal).
MOTIONS
§ 35.54. Motions as to complaint.
A respondent may file with his answer a motion that the allegations in the complaint be made more definite and certain, the motion to point out the defects complained of and details desired. A respondent may also file with his answer a motion to dismiss a complaint because of lack of legal sufficiency appearing on the face of the complaint.
Notes of Decisions It was permissible for the Department of Community Affairs to dismiss the petitioners’ complaint as a matter of law, because the school district’s response contained affidavits which clearly refuted the petitioner’s allegations and as a result of the petitioners’ failure to respond to the school district’s affidavits, no genuine issue of material fact remained. Property Owners, Residents and/or Taxpayers of Pleasant Valley School District v. Department of Community Affairs, 552 A.2d 769 (Pa. Cmwlth. 1989).
Where no material facts were in dispute, it was proper for the presiding officer to decide a motion to dismiss after briefs and oral arguments and without an evidentiary hearing under this section. Mellinger v. Department of Community Affairs, 533 A.2d 1119 (Pa. Cmwlth. 1987).
Cross References This section cited in 12 Pa. Code § 11.11 (relating to motions); 34 Pa. Code § 111.14 (relating to motions to quash); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.3 (relating to waiver and modification of rules); 34 Pa. Code § 131.24 (relating to recusal of judge); 34 Pa. Code § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.53b (relating to bifurcation and motions for disposition of a petition); 34 Pa. Code § 131.101 (relating to briefs, findings of fact and close of record); 34 Pa. Code § 131.112 (relating to correction or amendment of decision); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 37 Pa. Code § 197.40 (relating to preliminary motions); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.101 (relating to preliminary objections); 52 Pa. Code § 1005.71 (relating to motions); 55 Pa. Code § 41.131 (relating to motions in general); and 61 Pa. Code § 703.2 (relating to petition content).
§ 35.55. Motions as to answer.
Except as provided in § 35.39 (relating to replies to respondents seeking affirmative relief), no replication to the answer shall be filed, but a participant may file, within 10 days after the filing of an answer, a motion that the answer be made more definite and certain, the motion to point out the defects complained of and the details desired.
Cross References This section cited in 12 Pa. Code § 11.11 (relating to motions); 34 Pa. Code § 111.14 (relating to motions to quash); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.3 (relating to waiver and modification of rules); 34 Pa. Code § 131.24 (relating to recusal of judge); 34 Pa. Code § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.53b (relating to bifurcation and motions for disposition of a petition); 34 Pa. Code § 131.101 (relating to briefs, findings of fact and close of record); 34 Pa. Code § 131.112 (relating to correction or amendment of decision); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.101 (relating to preliminary objections); 52 Pa. Code § 1005.71 (relating to motions); 55 Pa. Code § 41.131 (relating to motions in general); and 61 Pa. Code § 703.2 (relating to petition content).
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