§ 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); 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); 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).

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