Subchapter I. HEARINGS
Sec.
42.101. Hearings.
42.102. Conduct of hearings.
42.103. Subpoenas for a hearing upon the merits.
42.104. [Reserved].
42.105. Failure to appear at hearing.
42.106. Attorney or designated agent of complainant; forms.
42.107. Supervision of designated agent of complainant; form.
42.108. Continued involvement by Commission staff.
Cross References This subchapter cited in 16 Pa. Code § 42.121 (relating to briefs).
§ 42.101. Hearings.
(a) If the unlawful discriminatory practice complained of is not eliminated by conference, conciliation or persuasion, the Commissioners or the Executive Director may approve the convening of a public hearing on the merits of the complaint.
(b) At any other time, the Commissioners may convene a hearing for one or more of the following:
(1) Whenever a problem of racial discrimination arises.
(2) To expedite the disposition of preliminary matters in an action before it.
(3) When, in the judgment of the Commission, the circumstances so warrant.
(c) When a public hearing is to be convened under this section, the Chairperson will cause to be issued and served on the parties a written notice of the approval of the hearing, and will designate three Commissioners, or a permanent hearing examiner, before whom the hearing will be conducted. The three Commissioners, if appointed, will be called hearing commissioners.
(1) Whenever a notice of public hearing is issued under this section, involving a complaint containing one or more allegations under section 5(h) or 5.3 of the act (43 P. S. § § 955(h) and 955.3), concerning unlawful housing discrimination cognizable under the Fair Housing Act, or under section 5(d) or (e) of the act, if the underlying or supporting action concerns unlawful housing discrimination cognizable under the Fair Housing Act, the notice shall also inform the parties of their right, under section 9(d.1) of the act (43 P. S. § 959(d.1)), to have the claims asserted in the complaint decided in a civil action brought under the original jurisdiction of the Commonwealth Court, of the duty of the parties to inform the Commission of the election, in writing, within 20 days after receipt of the notice, and that a failure to respond within this time shall result in the loss of the ability to proceed in Commonwealth Court under section 9(d.1) of the act.
(2) Whenever a valid election is made to proceed in Commonwealth Court, under section 9(d.1) of the act, the Commission will commence, within 20 days from receipt of the election, and maintain a civil action on behalf of the complainant; except that the Commission is not so required in a complaint in which the Attorney General is the complainant.
(d) A waiver of a hearing by the parties shall be in writing and properly executed.
(e) Subsections (a)—(d) supplement 1 Pa. Code § 35.121 (relating to initiation of hearings).
Source The provisions of this § 42.101 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 October 28, 1983, effective October 29, 1983, 13 Pa.B. 3233; 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 page (156377).
Cross References This section cited in 16 Pa. Code § 42.111 (relating to powers and duties of hearing commissioners and permanent hearing examiners); and 16 Pa. Code § 42.131 (relating to Motions Commissioners and Motions Examiners).
§ 42.102. Conduct of hearings.
(a) In a hearing for which three Commissioners have been appointed to preside under the Fair Educational Opportunities Act or the act, that provision may be waived by the respondent and the complainant, in writing, in which event the hearing may be conducted before less than three members of the Commission acting as hearing commissioners.
(b) Testimony or evidence will not be offered or received at any hearing concerning offers or counteroffers of adjustment during efforts to conciliate an alleged unlawful discriminatory practice.
(c) An objection not made before the hearing commissioners or the permanent hearing examiner will be waived unless the failure or neglect to make the objection is excused for cause by the commissioners or the permanent hearing examiner.
(d) When objections to the admission or exclusion of evidence are made, the grounds relied upon shall be stated briefly. Formal exceptions are unnecessary and will not be taken to rulings thereon.
(e) Prepared expert testimony will be governed by 1 Pa. Code § 35.166 (relating to prepared expert testimony), except that the period of 20 days provided in 1 Pa. Code § 35.166(a) will be reduced to 10 days.
(f) Subsection (a) supplements 1 Pa. Code § 35.123 (relating to conduct of hearings); subsections (b)—(d) supplement 1 Pa. Code § 35.161 (relating to form and admissibility of evidence); and subsection (e) supersedes 1 Pa. Code § 35.166 (relating to prepared expert testimony).
Source The provisions of this § 42.102 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended October 28, 1983, effective October 29, 1983, 13 Pa.B. 3233; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84198).
§ 42.103. Subpoena for a hearing upon the merits.
(a) A subpoena issued for a hearing on the merits of a complaint may be requested, issued, served and enforced in the same manner as provided in § § 42.48—42.50 (relating to issuance of subpoena; service of subpoena; and enforcement of subpoenas), except as modified by § 41.131(d) (relating to Motions Commissioners and Motions Examiners).
(b) Subsection (a) supersedes subsection (a) of 1 Pa. Code § 35.142 (relating to subpoenas).
§ 42.104. [Reserved].
Source The provisions of this § 42.104 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; reserved April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84199).
§ 42.105. Failure to appear at hearing.
(a) If a party fails to appear at the time and place designated for the hearing, proof of notice of the hearing shall be entered on the record.
(b) Upon failure of a party to appear and entry of proof of notice on the record, and except where the hearing panel chairperson or permanent hearing examiner is able to determine that legitimate, unforeseen circumstances exist to justify a continuance, the hearing will proceed without the party.
(c) Subsections (a) and (b) supplement 1 Pa. Code § 35.124 (relating to appearance).
Source The provisions of this § 42.105 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84199).
§ 42.106. Attorney or designated agent of complainant; forms.
(a) The case in support of the complaint shall be presented at a public hearing under section 9(e) of the act (43 P. S. § 959(e)) by a staff counsel or agent of the Commission, by the complainant’s attorney or by a designated agent of the complainant.
(b) An attorney or designated agent of complainant, who intends to present the case in support of the complaint at a public hearing under section 9(e) of the act, shall file a Notice of Intent and a Certificate of Authority in the form specified in subsections (d) and (e).
(c) The filing of a Notice of Intent and a Certificate of Authority will relieve the Commission of its duty to provide a staff counsel or agent of the Commission to present the case in support of the complaint. A Notice of Intent and a Certificate of Authority may be withdrawn and new ones substituted at any time. For good cause shown, and where the policies of the act will be effectuated thereby, the Commission may by order allow a Notice of Intent to be withdrawn, without substitution, and the Commission’s duty to present the case to be reinstated.
(d) The Notice of Intent shall be in substantially the following form:
(Caption)
NOTICE OF INTENT Notice is hereby given that A. B., attorney/designated agent of complainant, intends to present the case in support of the complaint at the public hearing in the above-captioned proceeding, as provided under § 9(e) of the Pennsylvania Human Relations Act.
/s/
Attorney/designated agent
Address & Telephone No.
(e) The Certificate of Authority shall be in substantially the following form:
(Caption)
CERTIFICATE OF AUTHORITY I, C. D., complainant in the above captioned proceeding, hereby certify that the above named attorney/designated agent has my express authority to present my case at public hearing and that I understand I am foregoing my right to be represented at such hearing by an attorney or agent of the Human Relations Commission.
I do/do not authorize that Commission staff counsel remain involved in this proceeding at public hearing.
/s/
Complainant
Source The provisions of this § 42.106 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
Cross References This section cited in 16 Pa. Code § 42.42 (relating to authorization to employ discovery measures); 16 Pa. Code § 42.107 (relating to supervision of designated agent of complainant; form); and 16 Pa. Code § 42.108 (relating to continued involvement by Commission staff).
§ 42.107. Supervision of designated agent of complainant; form.
(a) Notwithstanding § 42.106 (relating to attorney or designated agent of complainant; forms), a designated agent of complainant may not present the case in support of the complaint, at a public hearing under section 9(e) of the act (43 P. S. § 459(e)), unless that agent is a paralegal under the supervision of a practicing attorney.
(b) A designated agent of complainant, who intends to present the case in support of the complaint at a public hearing under section 9(e) of the act, shall file a Certificate of Supervision, signed by the practicing attorney under whose supervision the designated agent is performing, together with the Notice of Intent and Certificate of Authority under § 42.106.
(c) The Certificate of Supervision shall be in substantially the following form:
(Caption)
CERTIFICATE OF SUPERVISION I, A. B., hereby certify that I am a practicing attorney, and that C. D., designated agent of complainant in the above-captioned proceeding, is a paralegal who shall be under my supervision during his/her presentation of the case in support of the complaint at public hearing.
/s/
Address & Telephone No.
(d) A practicing attorney, who attests to the supervision of a designated agent of complainant under this section, shall file a Notice of Appearance in the form specified in 1 Pa. Code § 31.25 (relating to form of notice of appearance).
(e) Subsection (d) supplements 1 Pa. Code § 31.24 (relating to notice of appearance).
Source The provisions of this § 42.107 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
§ 42.108. Continued involvement by Commission staff.
(a) Whenever the complainant files a Certificate of Authority under § 42.106 (relating to attorney or designated agent of complainant; forms), which allows the Commission staff counsel to remain involved in the proceeding at public hearing, a staff counsel may be assigned to represent the Commonwealth’s interest in assuring that the policies and provisions of the act are protected at the public hearing. This involvement will allow the Commission staff counsel to participate in the public hearing process, but will not allow the Commission staff counsel to control the manner in which the complainant’s private attorney prepares for or conducts the public hearing on behalf of complainant, or to prevent a voluntary and knowing conciliation by the parties.
(b) Whenever the complainant files a Certificate of Authority, which does not allow the Commission staff counsel to remain involved, the staff counsel may file a request to remain involved. For good cause shown, the Commission may grant the request, and if granted, the Commission staff counsel may remain involved, as provided in subsection (a).
Source The provisions of this § 42.108 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
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