§ 491.6. Notice and conduct of hearing.
(a) Written notification to parties. Upon docketing a written request for a hearing, the docket clerk will provide written notification to all parties of the request for a hearing and of referral of the matter to the Department hearing officer for scheduling.
(b) Scheduling. The Department hearing officer will schedule a hearing for the docketed request and will direct the docket clerk to issue written notice of the time and place of the scheduled hearing to all parties.
(c) Authority of Department hearing officer. The Department hearing officer will have the authority to decide all motions, petitions, requests for supersedeas, discovery requests or other matters presented by the parties to this action and to proceed in accordance with 1 Pa. Code Chapter 35, Subchapter E (relating to presiding officers).
(d) Intervention.
(1) Petition to intervene. A person who seeks to intervene as a party in a proceeding shall file a petition for leave to intervene with the Docket Clerk. The petition shall contain a concise statement of the interest of the moving party and the grounds for intervention.
(2) Refusal.
(i) Delay. The Department may refuse a petition for intervention if the moving party has unduly delayed in applying for intervention or the intervention will unduly delay or prejudice the hearing or the adjudication of the rights of the parties.
(ii) Supplementation. This subsection supplements 1 Pa. Code § § 35.27—35.36.
(e) Continuances.
(1) The Department hearing officer will consider a request for continuance if the docket clerk is notified in writing of the grounds at least 10 days prior to the date of the hearing. Continuances will be granted only for substantial or compelling reasons, at the discretion of the Department hearing officer.
(2) The Department hearing officer will consider a request for continuance made less than 10 days prior to the date of the hearing only if the Department hearing officer is satisfied that circumstances relating to the requested continuance occurred within 10 calendar days of the hearing date.
(3) The requesting party shall seek the agreement of the other parties to the proceeding prior to requesting the continuance. The position of the opposing parties shall specifically be noted in the continuance request. The hearing officer may refuse a request for continuance regardless of the concurrence of all parties.
(f) Depositions. The testimony of a witness may be taken by deposition only upon application by a party in a proceeding before the Department. The granting of an application for depositions shall be entirely discretionary with the Department hearing officer and will only be permitted for substantial and compelling reasons.
(g) Request for a stay or supersedeas.
(1) Conditions for grant. The Department hearing officer, upon written motion of a party, may grant a request for a stay or supersedeas, provided the requesting party can demonstrate to the satisfaction of the Department hearing officer:
(i) A likelihood of success on the merits of the matter before the Department hearing officer.
(ii) Immediate and irreparable harm will result from the failure to grant the stay or supersedeas.
(iii) Issuance of the stay or supersedeas will not substantially harm other parties to the proceedings.
(iv) No other remedy is available.
(v) The moving party has given reasonable notice of the request to all parties.
(2) Requirement to provide security. The hearing officer, at his discretion, may require a non-Commonwealth party submitting a request for a stay or supersedeas to provide a bond or other appropriate security, as determined by the Department hearing officer, for the satisfaction of the order if it is affirmed or if for any reason the appeal is dismissed, or for the satisfaction of any modification of the order and in either case costs, interest and damages for delay that may finally be awarded.
(3) Memorandum in opposition. Any party to a proceeding may file with the Office of the Docket Clerk a memorandum in opposition to a request for a stay or supersedeas within 10 days of the filing of the request.
(h) Dispositive motions.
(1) Dismissal. The Department hearing officer, on motion of a party, may dismiss the action in whole or in part:
(i) Whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense.
(ii) For failure to preserve the right to an appeal by a timely filing.
(iii) For mootness.
(iv) For any other reason appearing in the record.
(2) Supersession. This rule supersedes 1 Pa. Code § 35.180 (relating to action on motions).
(i) Appeal to the Secretary of a hearing officer’s order. Unless otherwise provided by this chapter, any appeal from an order rendered by the hearing officer shall be filed with the appropriate docket clerk within 30 days of the date the order is entered.
(j) Supplementation. This section supplements 1 Pa. Code § 35.123 (relating to the conduct of hearings).
Authority The provisions of this § 491.6 issued under the Administrative Agency Law, 2 Pa.C.S. § § 501—508 and 701—704.
Source The provisions of this § 491.6 adopted December 20, 1991, effective December 21, 1991, 21 Pa.B. 5825; amended July 27, 2001, effective July 28, 2001, 31 Pa.B. 4089. Immediately preceding text appears at serial page (219675).
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