Subchapter F. DISMISSAL OF COMPLAINTS AND PRELIMINARY HEARING CONSIDERATION
Sec.
42.61. Dismissal of complaints.
42.62. Request for a preliminary hearing.
42.63. Action on request for a preliminary hearing.
42.64. Preliminary hearing officer.
42.65. Conduct of preliminary hearing.
42.66. Results of preliminary hearing.
42.67. Reopening costs after final disposition.§ 42.61. Dismissal of complaints.
(a) If, after investigation, the staff determines that no probable cause exists to credit the allegations of the complaint or if, during or after investigation, the staff determines that the case is untimely filed, that the case is moot, that the Commission lacks jurisdiction, that the parties have reached an agreement adjusting the complaint or that another reason exists which legally justifies the dismissal of the complaint, the staff will make a finding reflecting that determination.
(b) A staff finding will be reported to the Executive Director, who may close the case or take other action as may be deemed necessary or appropriate. The Executive Director may appoint, in writing, another staff person who is authorized to close cases in the Executive Director’s absence.
(c) Whenever a case is closed, the Commission will notify all parties in writing of the following:
(1) The closing, together with a statement of the reason therefor.
(2) The right of the complainant to request a preliminary hearing in accordance with § 42.62 (relating to request for a preliminary hearing).
(3) The right of the complainant to bring an action in the court of common pleas of the county wherein the alleged unlawful discriminatory practice took place. The duty of the complainant to serve a copy of the court complaint on the Commission, in an action so brought, at the same time the complaint is filed in court.
Source The provisions of this § 42.61 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended July 24, 1981, effective July 25, 1981, 11 Pa.B. 2608; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909; amended December 17, 1993, effective December 18, 1993, 23 Pa.B. 5897. Immediately preceding text appears at serial pages (156366) to (156367).
Notes of Decisions It is the Commission staff, and not the Commissioners, which is the body vested with the responsibility for determining whether probable cause exists and conducting conference and conciliation meetings. The court, therefore, determined that the Commission, which acts as the ultimate finder of fact, did not improperly commingle its prosecutorial and adjudicatory functions and deprive the company of its due process rights. George Clay Steam Fire Engine and Hose Co. v. Human Relations Commission, 639 A.2d 893 (Pa. Cmwlth. 1994); appeal denied 656 A.2d 120 (Pa. 1995).
Where a complainant has requested reconsideration of a determination in accordance with 16 Pa. Code § 42.62(c) and the reconsideration results in a finding of probable cause which is later changed to a finding of no probable cause, further resulting in dismissal of the case on the same grounds that had been given originally and a notification under 16 Pa. Code § 42.61(c) of the right to request reconsideration, the provision of 16 Pa. Code § 42.62(b) which states that ‘‘the request for reconsideration of the closing of a complaint may be made only once for each ground of closing’’ allows the Court of Common Pleas to take jurisdiction on appeal from the Human Relation Commission ruling even though complainant did not request reconsideration of the second denial under 16 Pa. Code § 42.61(c). Baker v. Human Relations Commission, 462 A.2d 881 (Pa. Cmwlth. 1983); order affirmed as modified 489 A.2d 1354 (Pa. 1985).
Cross References This section cited in 16 Pa. Code § 42.62 (relating to request for a preliminary hearing); and 16 Pa. Code § 42.76 (relating to rescission of finding of probable cause).
§ 42.62. Request for a preliminary hearing.
(a) If a case is closed under § 42.61 (relating to dismissal of complaints), the complainant may file a request for a preliminary hearing within 10 days of receipt of the notice of the closing of the complaint.
(b) The request for a preliminary hearing may be made only once for each ground of closing.
(c) A request for a preliminary hearing shall be in writing, state specifically all grounds on which the complainant disputes the Commission’s stated reasons for closing the case, and may contain new evidence not previously considered by the Commission.
(d) The Commission will forward a copy of the request for a preliminary hearing and material in support thereof to the respondent, who shall have the right to respond thereto within 10 days of receipt of the copy.
Source The provisions of this § 42.62 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended July 24, 1981, effective July 25, 1981, 11 Pa.B. 2608; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial pages (84186) and (117025).
Notes of Decisions Where a complainant has requested reconsideration of a determination in accordance with 16 Pa. Code § 42.62(c) and the reconsideration results in a finding of probable cause which is later changed to a finding of no probable cause, further resulting in dismissal of the case on the same grounds that had been given originally and a notification under 16 Pa. Code § 42.61(c) of the right to request reconsideration, the provision of 16 Pa. Code § 42.62(b) which states that ‘‘the request for reconsideration of the closing of a complaint may be made only once for each ground of closing’’ allows the Court of Common Pleas to take jurisdiction on appeal from the PHRC ruling even though complainant did not request reconsideration of the second denial under 16 Pa. Code § 42.61(c). Baker v. Human Relations Commission, 462 A.2d 881 (Pa. Cmwlth. 1983).
If a petitioner requests a preliminary hearing to determine probable cause for his complaint, but fails to state therein the grounds relied on and fails to respond to a request by the Commission to specify the grounds relied on, he has failed to exhaust his administrative remedies and may not ask a court to act in the matter. Richardson v. Human Relations Commission, 415 A.2d 1282 (Pa. Cmwlth. 1980).
Cross References This section cited in 16 Pa. Code § 42.61 (relating to dismissal of complaints); and 16 Pa. Code § 42.76 (relating to rescission of finding of probable cause).
§ 42.63. Action on request for a preliminary hearing.
(a) A request for a preliminary hearing will be referred to a staff counsel who will review the file, consider new evidence, secure new information as may be necessary or appropriate, and who shall recommend one of the following:
(1) That the request be denied.
(2) That probable cause exists to credit the allegations of the complaint, on the record currently before staff counsel, without the need for a preliminary hearing.
(3) That the case should be reopened for further investigation or other appropriate action, without the need for a preliminary hearing.
(4) That a preliminary hearing is necessary or appropriate under § 42.65(a) (relating to conduct of preliminary hearing).
(b) If the staff counsel recommends that a request for a preliminary hearing be granted, and that a preliminary hearing be convened under subsection (a)(4), the recommendation shall be made and reported to the Executive Director, who may grant the request and convene a preliminary hearing, or take other action as the Executive Director may deem necessary or appropriate.
(c) If the staff counsel recommends that a request for a preliminary hearing be granted, because probable cause exists under subsection (a)(2), the recommendation shall be made and reported to the Executive Director, who may grant the request, reopen the case, and approve a finding of probable cause, or take other action as the Executive Director deems necessary or appropriate. If a finding of probable cause is made, the case will thereafter proceed in accordance with § 42.71 (relating to finding of probable cause).
(d) If the staff counsel recommends that a request for a preliminary hearing be granted, and that further investigation or other action take place under subsection (a)(3), the recommendation will be made and reported to the Executive Director, who may grant the request, reopen the case, and institute further investigation, or take other action the Executive Director deems necessary or appropriate.
(e) If the staff counsel recommends that a request for a preliminary hearing be denied, or if the Executive Director determines that a recommendation to grant a request for a preliminary hearing should be denied under subsection (b), (c) or (d), the recommendation or determination will be made and reported to the Commissioners, who may grant or deny the request for a preliminary hearing or take other action as they may deem necessary or appropriate.
(f) The Commission will notify all parties, in writing, of its action in either granting or denying the request for a preliminary hearing.
Source The provisions of this § 42.63 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended July 24, 1981, effective July 25, 1981, 11 Pa.B. 2608; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial pages (117025) to (117026).
Notes of Decisions Preliminary Hearing
Under the terms of 16 Pa. Code § 42.63(a) (relating to reconsideration of dismissal), the request for reconsideration is not intended to entail the participation of the complainant, but is an entirely internal matter. Any preliminary hearing held pursuant to such a request must comply with the mandates of the Administrative Agency Law, 2 Pa.C.S. § § 501—508 and 701—704. Carney v. Human Relations Commission, 404 A.2d 760 (Pa. Cmwlth. 1979); superseded by statute/rule as stated in Espenshade v. Pa. State University 556 F. Supp 131 (1983).
Remand
In an original action in mandamus, remand was proper where record was not adequate to show Commission had exercised discretion in accordance with statute and Commission’s own rules in denying a complainant’s request for preliminary hearing after a finding of no probable cause. Baker v. Human Relations Commission, 489 A.2d 1354 (Pa. 1985).
Executive director of Pennsylvania Human Relations Commission is immune from liability under civil rights statute for performing his discretionary duty of finding no probable cause with respect to employment discrimination claims. Espenshade v. Pennsylvania State University, 556 F.Supp. 131 (M.D. Pa. 1983).
§ 42.64. Preliminary hearing officer.
(a) Whenever a preliminary hearing is to be convened under this subchapter, the Executive Director will designate a preliminary hearing officer before whom the preliminary hearing will be conducted.
(b) The preliminary hearing officer will be a Commission counsel, and have all the authority vested in hearing commissioners and permanent hearing examiners under § 42.111 (relating to powers and duties of hearing commissioners and permanent hearing examiners) and in presiding officers under 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers).
Source The provisions of this § 42.64 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
Cross References This section cited in 16 Pa. Code § 42.131 (relating to Motions Commissioners and Motions Examiners).
§ 42.65. Conduct of preliminary hearing.
(a) A preliminary hearing may be convened under this subchapter to determine probable cause for crediting the allegations of the complaint, to determine whether a case should be reopened under § 42.67 (relating to reopening cases after final disposition), or whenever the Commission deems a hearing necessary or appropriate.
(b) The testimony taken at a preliminary hearing under this subchapter will be transcribed and under oath, and the parties and the Commission staff counsel will be afforded the opportunity to submit briefs on the issues.
Source The provisions of this § 42.65 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
Cross References This section cited in 16 Pa. Code § 42.63 (relating to action on request for a preliminary hearing).
§ 42.66. Results of preliminary hearing.
(a) If, after a preliminary hearing under this subchapter, the preliminary hearing officer finds that probable cause exists to credit the allegations of the complaint, the preliminary hearing officer will reopen the case and make a finding of probable cause.
(b) If, subsequent to the commencement of a preliminary hearing under this subchapter, the preliminary hearing officer finds that further investigation or other action by the Commission is necessary or appropriate, the preliminary hearing officer will reopen the case, direct that further investigation or other action take place, and may retain jurisdiction over the case as is deemed necessary or appropriate.
(c) If, after a preliminary hearing under § 42.67 (relating to reopening cases after final disposition), the preliminary hearing officer finds that justice requires that the case be reopened, the finding will be made and reported to the Commissioners, who may reopen the case or take other action as they deem necessary or appropriate.
(d) If, after a preliminary hearing under this subchapter, the preliminary hearing officer finds that probable cause does not exist to credit the allegations of the complaint, or that justice does not require that the case be reopened under § 42.67, the finding will be made and reported to the Commissioners, who may reaffirm the case closing or take other action as they deem necessary or appropriate.
(e) The Commission will notify all parties, in writing, of the results of any preliminary hearing held under this subchapter.
Source The provisions of this § 42.66 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
§ 42.67. Reopening cases after final disposition.
(a) Subsequent to the final disposition of a case under this subchapter, the Commission may reopen the case on its own motion, whenever justice so requires.
(b) Prior to reopening a case under this section, the Commission will notify all parties of the proposed action and afford them the opportunity to respond, in writing, thereto.
(c) The Commission may convene a preliminary hearing, to determine whether a case should be reopened under this section, as the Commission may deem necessary or appropriate.
Source The provisions of this § 42.67 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
Cross References This section cited in 16 Pa. Code § 42.65 (relating to conduct of preliminary hearing); and 16 Pa. Code § 42.66 (relating to results of preliminary hearing).
No part of the information on this site may be reproduced for profit or sold for profit.
This material has been drawn directly from the official Pennsylvania Code full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
