Subchapter D. FORMAL PROCEEDINGS

§ 15.41. Pleadings and other preliminary matters.

 (a)  Pleadings. The pleadings allowed in an action before the ALJ are as follows:

   (1)  Citations.

   (2)  Petitions, motions and other pleadings for special relief.

   (3)  Answers to petitions, motions and other pleadings.

 (b)  Form and content of citation. When a citation comports with due process, but otherwise has a defect, such as omission of information or a clerical error, it may not be dismissed, but may be returned to the Bureau to correct the defect without formal motion. A citation shall contain at least the following:

   (1)  A caption fully identifying the licensee to include the trade name, address and license number.

   (2)  A case, citation or other docket number.

   (3)  A brief description of the types and dates of alleged violations with separate counts if separate charges.

   (4)  A statement indicating that the licensee has been cited to appear before an ALJ on a date to be scheduled by the ALJ to show cause why the license should not be suspended or revoked or a fine imposed, or both.

   (5)  A statement regarding the right to an attorney and the right to waive a hearing.

   (6)  A signature of an official of the Bureau.

   (7)  The date issued.

 (c)  Form of petitions, motions or other pleadings.

   (1)  Petitions, motions or other pleadings shall state clearly and concisely the grounds of interest of the petitioner or movant, the facts relied upon and the relief sought.

   (2)  Paragraph (1) supplements 1 Pa. Code §  35.17 (relating to petitions generally).

 (d)  Orders to show cause. When the Bureau desires to institute a citation, the Bureau may commence the action if appropriate by a citation directing the licensee to appear before an ALJ at a date to be scheduled by the OALJ to show cause why the licensee’s license should not be suspended or revoked or a fine imposed, or both.

 (a)  The licensee may waive a hearing on the citation and the right to appeal from the adjudication. The waiver shall advise the licensee of the potential penalty for all counts.

 (b)  Section 15.45 (relating to notice of hearings; effect of waiver of hearing) governs the affect of waiver of hearing.

 (c)  This section supplements 1 Pa. Code §  33.61 (relating to applications for waiver of formal requirements).

   The provisions of this §  15.42 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935; amended March 20, 1998, effective March 21, 1998, 28 Pa.B. 1418. Immediately preceding text appears at serial pages (223357) to (223358).

 (a)  Conferences between participants in a proceeding may be held prior to or during hearings at the direction of the chief ALJ or presiding ALJ, as time, the nature of the proceeding and public interest may permit. The conference may be before the chief ALJ, the chief ALJ’s designate or the presiding ALJ. The conference may be held to provide opportunity for one or more of the following:

   (1)  Submission of facts.

   (2)  Recommendations of settlement.

   (3)  Proposals of adjustment of settlement.

   (4)  Settlement of a proceeding, or the issues therein.

   (5)  Consideration of means by which the conduct of the hearing may be facilitated and the disposition of the proceeding expedited.

 (b)  At the prehearing or other conference, in addition to offers of settlement, the following may be considered:

   (1)  The simplification of the issues.

   (2)  The exchange and acceptance of service of exhibits proposed to be offered in evidence.

   (3)  The obtaining of admissions as to, or stipulation of, facts not remaining in dispute, or the authenticity of documents which might properly shorten the hearing.

   (4)  The limitation of the number of witnesses.

   (5)  The discovery or production of data.

   (6)  Other matters as may properly be dealt with to aid in expediting the orderly conduct and disposition of the proceeding.

 (c)  The chief ALJ or the presiding ALJ, with or without motion, and after consideration of the beneficial results to be derived therefrom may direct that a conference be held in a particular proceeding or that conferences be held in proceedings of a particular type. Parties shall come to the conference prepared for a useful discussion of procedural and substantive problems involved in the proceeding and shall be authorized to make commitments with respect thereto. The preparation should include, among other things, advance study of relevant material and advance informal communication between the participants, including requests for additional data and information to the extent it appears feasible and desirable. Failure of a participant to attend the conference after being served with due notice of the time and place thereof, shall constitute a waiver of objection to an order or ruling entered with respect thereto.

 (d)  In lieu of a conference, the chief ALJ may direct in all proceedings or in a particular class of proceedings and a presiding ALJ may direct in a particular proceeding that the parties exchange and file with the OALJ a prehearing memorandum in the form and content and within the time frame as the chief ALJ or the presiding ALJ directs.

 (e)  The presiding ALJ at a conference may dispose of by ruling, irrespective of the consent of the participants, procedural matters which the ALJ is authorized to rule upon during the course of the proceedings, and which it appears may appropriately and usefully be disposed of at that stage. If it appears that the proceeding would be substantially expedited by distribution of proposed exhibits, written prepared testimony or written statements or a combination thereof reasonably in advance of the hearing, the presiding ALJ, at his discretion and with regard for the convenience and necessity of the parties, may direct the advance distribution by a prescribed date. The rulings of the presiding ALJ made at the conference shall control the subsequent course of the hearing unless modified for good cause shown.

 (f)  If a party who is directed to attend a conference or submit a prehearing memorandum refuses to admit or stipulate the genuineness of a document or the truth of a matter of fact and if the participant requesting the admissions or stipulations thereafter proves the genuineness of the document or the truth of the matter of fact, the moving party may apply to the Chief ALJ or the presiding ALJ for an order requiring the other party to pay the movant the reasonable expenses incurred in making the proof, including reasonable attorney’s fees. Unless the chief ALJ or the presiding ALJ believes that there were good reasons for the refusal to admit or stipulate or that the admissions or stipulations were of no substantial importance, the order shall be made. An appeal may be taken from the order in the same manner as provided for appeals from final orders of a Commonwealth agency. If a party refuses to comply with the order after it becomes final, the chief ALJ or the presiding ALJ may limit or deny further participation by the party.

 (g)  If a party who is directed to attend a conference or submit a prehearing memorandum willfully fails or refuses to attend the conference or to fully provide discovery of evidence and data or other information, directed to be provided by subsections (b)—(d), the party will not be permitted to present the witnesses, evidence, data or other information, absent a showing of good cause for failure to fully list the information as required in the prehearing memorandum. If the ALJ permits, upon a showing of good cause, counsel to present the witnesses, evidence, data or other information, and the non-moving party objects thereto, the ALJ may order the moving party to pay out-of-pocket costs as are necessitated by any remedial order. These costs include, but are not limited to, cost of attendance and travel for the court reporter at a future hearing if the matter is continued, and the subpoena fee and travel expenses for the nonmoving party’s witnesses to attend a continued hearing.

 (h)  This section supplements 1 Pa. Code § §  35.111—35.116 (relating to prehearing conferences).

 Service shall be as required by statute and as supplemented by 1 Pa. Code § §  33.31—33.36.

 (a)  If the licensee has waived the requirement of the hearing, admitting to the violation and waiving appeal from the adjudication as provided in §  15.42 (relating to waiver of hearing or appeal), the ALJ may accept the waiver. If the ALJ accepts the waiver, the ALJ will impose a penalty without a hearing upon the basis of the citation, the summarization of facts surrounding the incident, prior violations as submitted by the Bureau, and matters submitted in mitigation by the licensee, or hold a hearing for penalty determination. The Bureau may comment on mitigation materials submitted. If the ALJ rejects the waiver, the matter shall be scheduled for a hearing.

 (b)  If an appropriate pleading or prehearing memorandum is not filed within the period of time directed by the OALJ, that will not affect the scheduling of a hearing by the OALJ.

 (c)  This section supplements 1 Pa. Code § §  33.61, 35.103—35.106 (relating to applications for waiver of formal requirements; and notice of hearing).

   The provisions of this §  15.45 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.

 (a)  Hearings shall be in accordance with 1 Pa. Code § §  35.121—35.133.

 (b)  No person except the reporter engaged by the OALJ to record its proceedings may record mechanically or electronically a part of the proceedings in a hearing.

 Transcripts shall be in accordance with 1 Pa. Code § §  35.131—35.133 (relating to transcript).

 (a)  Upon the request of a party, the central ALJ will issue a subpoena signed and under the seal of the OALJ but otherwise in blank, in the form as prescribed by the OALJ.

 (b)  A copy of the subpoena may be served upon any person within this Commonwealth by a competent adult as follows:

   (1)  In the manner prescribed by Pa.R.C.P. No. 402(a) (relating to manner of service acceptance of service).

   (2)  By any form of mail requiring a return receipt, postage prepaid, restricted delivery. Service is complete upon delivery of the mail to the person named in the subpoena or one or more of the persons referred to in 231 Pa. Code Rule 402(a)(2). The return receipt may be signed by the person named in the subpoena or a person referred to in Pa.R.C.P. No. 402(a)(2).

   (3)  By ordinary mail. The mail shall contain two copies of the Notice of Acknowledgment prescribed by subsection (e) and a self-addressed, stamped envelope. A subpoena served by ordinary mail is not alone grounds for a continuance requested at the hearing unless evidence is produced that the witness had received the subpoena and planned to attend.

 (c)  The party serving a subpoena may excuse compliance therewith.

 (d)  A motion to quash a subpoena may be filed by a party or by the person served. The ALJ may make an order to protect a party or witness from unreasonable annoyance, embarrassment, oppression, burden or expense.

 (e)  The notice and acknowledgment of receipt of subpoena by mail required by subsection (b)(3) shall be substantially in the following form:

 To

  The enclosed subpoena is served pursuant to Title 40 Pa. Code §  15.48(b)(3). Complete the acknowledgment part of this form and return the copy of the completed form to the sender in the enclosed self-addressed, stamped envelope.
Sign and date the acknowledgment. If you are served on behalf of a partnership, unincorporated association, corporation or similar entity, indicate under your signature your relationship to that entity. If you are served on behalf of a person and you are authorized to receive the subpoena, indicate under your signature your authority.
Date Notice Mailed: 

 (f)  This section supersedes 1 Pa. Code §  35.142(a) and (b) (relating to subpoenas).

 Depositions shall be in accordance with 1 Pa. Code § §  35.145—35.152 (relating to depositions).

 Stipulations shall be in accordance with 1 Pa. Code §  35.155 (relating to presentation and effect of stipulations).

 Evidence shall be in accordance with 1 Pa. Code § §  35.161—35.169 (relating to evidence).

 Official notice of facts shall be in accordance with 1 Pa. Code §  35.173 (relating to official notice of facts).

 Motions shall be in accordance with 1 Pa. Code Chapter 35, Subchapter D (relating to motions).

 (a)  No case will be continued without just cause and then only by the chief ALJ or a designee.

 (b)  A party moving for a continuance shall, if required by the OALJ, submit an affidavit containing the facts alleged as the reason for the motion. The affidavit shall set forth the names and addresses of all parties concerned, the caption, number and term and the cause which may be the basis of the motion and other information the ALJ may request.

 (c)  If application is made for continuance prior to the date set for hearing because of the absence of a witness, a motion, if required by the OALJ, shall be presented setting forth the facts which it is believed the witness will prove, the efforts made to procure the attendance of the witness, the movant’s belief in the facts and the reasons for the belief, and that a continuance will enable the party to procure the presence or testimony of the witness. The application shall identify the witness by name and last known address.

 (d)  If an application is made for a continuance because of the illness of a licensee, witness or counsel, the application, if required by the OALJ, shall be accompanied by a medical certificate attesting to the illness and inability to testify.

 (e)  Except as otherwise provided in this section, a continuance may be approved if a written request for the continuance is received by the OALJ at least 48 hours prior to the time fixed for hearing.

 (f)  A request for a continuance received by the OALJ within the 48-hour period will not be granted unless satisfactory arrangement in writing is made with the OALJ for the payment of expenses resulting from the continuance. The OALJ may waive payment of the expenses and the requirement that the request be in writing in case of extenuating circumstances.

 (g)  A request for a continuance of hearing because a waiver of hearing was filed after the hearing was scheduled will not be granted until the waiver is approved and accepted by the OALJ.

 An adjudication of an ALJ is a final order except for applications for rehearing or reconsideration.

 An application or petition for rehearing or reconsideration shall be in accordance with 1 Pa. Code §  35.241 (relating to application for rehearing or reconsideration).

   The provisions of this §  15.56 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.