§ 35.28. Eligibility to intervene.
(a) Persons. A petition to intervene may be filed by a person claiming a right to intervene or an interest of such nature that intervention is necessary or appropriate to the administration of the statute under which the proceeding is brought. The right or interest may be one of the following:
(1) A right conferred by statute of the United States or of this Commonwealth.
(2) An interest which may be directly affected and which is not adequately represented by existing parties, and as to which petitioners may be bound by the action of the agency in the proceeding. The following may have an interest: consumers, customers or other patrons served by the applicant or respondent; holders of securities of the applicant or respondent; employes of the applicant or respondent; competitors of the applicant or respondent.
(3) Other interest of such nature that participation of the petitioner may be in the public interest.
(b) Commonwealth. The Commonwealth or an officer or agency thereof may intervene as of right in a proceeding subject to this part.
Source The provisions of this § 35.28 amended January 25, 1980, effective January 26, 1980, 10 Pa.B. 256.
Notes of Decisions Due Process
Department of Banking which granted Banks’ petition to intervene in proceeding on credit unions’ proposal to reorganize by geographic communities pursuant to the public interest prong, improperly dismissed the Banks’ petition based on their failure to prove they had a direct interest in the procceedings under the direct interest prong; due process required that the Banks had notice their status as intervenors was in dispute and that additional proof of standing to intervene was required. Pennsylvania Bankers Ass’n v. Pennsylvania Dep’t of Banking, 956 A.2d 956, 960-961 (Pa. 2008).
Denial of the Pennsylvania Dental Association’s petition to intervene in a statutory comment procedure did not violate procedural due process in part because the Association failed to show that the changes in payment rates to its members would adversely affect their ability to remain in business and because nearly 40% of its members would not be affected by the rate change. Pennsylvania Dental Asso. v. Insurance Department, 551 A.2d 1148 (Pa. Cmwlth. 1988); 560 A.2d 870 (Pa. Cmwlth. 1989).
Scope of Provisions
Alleged Industrial Board abuses with regard to enforcement of the Fire and Panic Act can be and should be challenged by resort to existing administrative procedures and judicial review. In re Petition of Dwyer, 406 A.2d 1355 (Pa. 1979).
Standing
Taxpaying residents of adjacent school districts had no standing to intervene in an action involving a charter school application. The taxpayers fail to satisfy any of the requirements for intervention. West Chester Area School District v. Collegium Charter School, 812 A.2d 1172 (Pa. Cmwlth. 2002).
An organization has no standing to pursue an action before an agency if the organization is representing those of its members who have no standing, even though the organization has other members who would have standing to pursue the action. Apple v. Insurance Department, 431 A.2d 1183 (Pa. Cmwlth. 1981).
Statute or Harm Requirement
There was no statute which conferred on the education association the right to intervene in the Secretary of Education’s consideration of the school district’s request to alter its educational program at the elementary school. In addition, the association was not directly affected by the Secretary’s consideration of the school district’s request and was not bound by the Secretary’s response to that request. Thus, because the association was not aggrieved by the decision, it lacked standing to challenge the determinations. Wilkinsburg Educ. Ass’n v. Wilkinsburg School Dist., 690 A.2d 1252 (Pa. Cmwlth. 1996).
Cross References This section cited in 1 Pa. Code § 31.3 (relating to definitions); 7 Pa. Code § 131.14 (relating to interveners); 7 Pa. Code § 179.17 (relating to intervention); 22 Pa. Code § 233.115 (relating to notice and hearings); 25 Pa. Code § 1021.81 (relating to intervention); 28 Pa. Code § 301.7 (relating to fair hearing); 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); 37 Pa. Code § 171.143 (relating to notice to Attorney General; constitutionality of statute); 37 Pa. Code § 197.40a (relating to petition to intervene); 40 Pa. Code § 17.13 (relating to protests/intervention procedure); 49 Pa. Code § 19.33 (relating to intervention); 52 Pa. Code § 5.72 (relating to eligibility to intervene); 52 Pa. Code § 1005.32 (relating to eligibility to intervene); 58 Pa. Code § 493a.12 (relating to intervention); 61 Pa. Code § 703.2 (relating to petition content); 67 Pa. Code § 441.3 (relating to permit application procedure); and 67 Pa. Code § 491.6 (relating to notice and conduct of hearing).
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