§ 35.49. Amendments to conform to the evidence.
(a) When, at a hearing, issues not raised by the pleadings are introduced by express or implied consent of the parties, they shall be treated as if they had been raised in the pleadings. The amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these new issues may be made upon motion of a participant at any time during the hearing. If evidence upon the new issues is objected to on the ground that it is not within the issues raised by the pleadings, the agency head or the presiding officer may allow the pleadings to be amended and the evidence to be received, when it appears that the presentation of the merits of the proceeding will be served thereby without prejudicing the public interest or the rights of any participant. When in the discretion of the agency head or the presiding officer, a continuance is necessary in order to enable the objecting participant to meet the new issues and evidence, a continuance may be granted by the agency head or the presiding officer, as provided in § 31.15 (relating to extensions of time).
(b) If an amendment adopted under subsection (a) has the effect of broadening the issues in the proceeding, notice of the amendment shall be given in the same manner as notice was given at the commencement of the proceeding and to the same class of persons who received the notice.
Notes of Decisions Due Process Violated
The bureau’s motion to amend to include new charges was entered after all of the witnesses had testified at the hearing, and after all of the evidence had been presented to the board. By allowing the amendment of the orders at that stage of the proceedings, the board denied the doctor the opportunity to hear the evidence as it related to the new charges, or to cross-examine witnesses and introduce exculpatory evidence as to those charges. As a result, the board denied the doctor’s due process rights and the opportunity to address the new charges in a post-hearing brief was insufficient to satisfy the due process requirements. White v. State Board of Optometry, 682 A.2d 404 (Pa. Cmwlth. 1996).
Notice
The amendment of the orders to include the alleged violations of a separate and distinct provision of the Optometric Practice and Practices Act certainly broadened the issues which were to be considered by the board at the hearings. As a result, the doctor was entitled to receive notice of the amendment in the same manner as notice was given at the commencement of these disciplinary proceedings. White v. State Board of Optometry, 682 A.2d 404 (Pa. Cmwlth. 1996).
Cross References This section cited in 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.35 (relating to amendments to pleadings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.57 (relating to compromise and release agreements); 34 Pa. Code § 131.60 (relating to resolution hearings); 52 Pa. Code § 5.92 (relating to amendments to conform to the evidence); 52 Pa. Code § 1005.62 (relating to amendments to conform to the evidence); 55 Pa. Code § 41.82 (relating to amendments of requests for hearing); 58 Pa. Code § 493a.7 (relating to amendments and withdrawal of pleadings); and 61 Pa. Code § 703.2 (relating to petition content).
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