Subchapter B. HEARINGS AND CONFERENCES


GENERAL

Sec.


35.101.    Waiver of hearing.
35.102.    Hearing calendar.

NOTICE OF HEARING


35.103.    Preliminary notice to Department of Justice.
35.104.    Notice of rulemaking proceedings.
35.105.    Notice of nonrulemaking proceedings.
35.106.    Contents of notice of nonrulemaking proceedings.

PREHEARING CONFERENCES


35.111.    Conferences to adjust, settle or expedite proceedings.
35.112.    Conferences to expedite hearings.
35.113.    Initiation of conferences.
35.114.    Authority of presiding officer at conference.
35.115.    Offers of settlement.
35.116.    Refusal to make admissions or stipulate.

HEARING


35.121.    Initiation of hearings.
35.122.    Consolidation of formal proceedings.
35.123.    Conduct of hearings.
35.124.    Appearances.
35.125.    Order of procedure.
35.126.    Presentation by the parties.
35.127.    Limiting number of witnesses.
35.128.    Additional evidence.

TRANSCRIPT


35.131.    Recording of proceedings.
35.132.    Transcript corrections.
35.133.    Copies of transcripts.

Cross References

   This subchapter cited in 34 Pa. Code §  111.35 (relating to dispositions of petitions); 58 Pa. Code §  491a.8 (relating to hearings generally); and 104 Pa. Code §  7.16 (relating to RTKL appeals).

GENERAL


§ 35.101. Waiver of hearing.

 In any proceeding in which an agency is authorized to act after opportunity for hearing, if the participants waive hearing, such opportunity shall be deemed to have been afforded by publication in the Pennsylvania Bulletin of notice of the application or other initial pleading, request, or other filing, such notice fixing a reasonable period of time within which any person desiring to be heard may file a petition to intervene and a request for a hearing. Upon the expiration of such period of time, in the absence of a request for hearing, the agency may forthwith dispose of the matter upon the basis of the pleadings or submittals and the studies and recommendations of the staff. A party not requesting oral hearing in its pleadings shall be deemed to have waived a hearing for the purpose of such disposition, but shall not be bound by such waiver for the purposes of any application for reopening, rehearing or reconsideration with respect to an order so entered.

Cross References

   This section cited in 7 Pa. Code §  131.32 (relating to hearings); 12 Pa. Code §  11.12 (relating to hearings); 22 Pa. Code §  351.1 (relating to purpose and scope); 25 Pa. Code §  1021.112 (relating to waiver of hearings); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.203 (relating to hearing procedures); 52 Pa. Code §  5.201 (relating to notice of proceeding; hearing; waiver of hearing); 52 Pa. Code §  1005.81 (relating to notice of proceeding; hearing; waiver of hearing); 55 Pa. Code §  41.91 (relating to waiver of hearings); 58 Pa. Code §  491a.8 (relating to hearings generally); and 61 Pa. Code §  703.31 (relating to disposition of petitions).

§ 35.102. Hearing calendar.

 (a)  The agency will maintain a hearing calendar of all proceedings set for hearing.

 (b)  In the absence of cause requiring otherwise, and as time, the nature of the proceedings, and the proper execution of the functions of the agency permit, matters required to be determined upon the record after hearing or opportunity for hearing will be placed upon the hearing calendar. Proceedings pending upon this calendar will in their order of assignment, so far as practicable, be heard at the times and places fixed by the agency head or presiding officer, giving due regard to the convenience and necessity of the parties or their attorneys. The agency, in its discretion with or without motion, for cause may at any time with due notice to the participants advance or postpone any proceeding on the hearing calendar.

Cross References

   This section cited in 1 Pa. Code §  35.187 (relating to authority delegated to presiding officers); 12 Pa. Code §  11.12 (relating to hearings); 22 Pa. Code §  351.1 (relating to purpose and scope); 34 Pa. Code §  131.13 (relating to continuances or postponements of hearings); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.203 (relating to hearing procedures); 52 Pa. Code §  5.202 (relating to scheduling of hearing); 52 Pa. Code §  1005.82 (relating to scheduling of hearing); 58 Pa. Code §  494a.1 (relating to generally); and 61 Pa. Code §  703.33 (relating to scheduling of hearing).

NOTICE OF HEARING


§ 35.103. Preliminary notice to Department of Justice.

 Before notice of any hearing leading to an adjudication is given, any agency subject to 2 Pa.C.S. §  508 (relating to notice to Department of Justice) will submit the matter to its representative in the Department of Justice who will pass upon the legality of the proposed action or defense.

Cross References

   This section cited in 12 Pa. Code §  11.13 (relating to notice of hearings); 22 Pa. Code §  351.1 (relating to purpose and scope); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.203 (relating to hearing procedures); 40 Pa. Code §  15.45 (relating to notice of hearings; effect of waiver of hearing); 52 Pa. Code §  5.201 (relating to notice of proceeding; hearing; waiver of hearing); 52 Pa. Code §  1005.81 (relating to notice of proceeding; hearing; waiver of hearing); 55 Pa. Code §  41.5 (relating to jurisdiction of the Bureau); 61 Pa. Code §  703.32 (relating to notice of proceeding); and 61 Pa. Code §  703.33 (relating to scheduling of hearing).

§ 35.104. Notice of rulemaking proceedings.

 (a)  Before the adoption of any regulation, or the commencement of any hearing on any proposed rulemaking, the agency will cause general notice to be published as provided in Chapter 7 (relating to procedure for adoption or change of regulations).

 (b)  If a hearing will be held to consider the rulemaking proposal, the order or notice will state the time and place of hearing, and nature of the proceeding, recite the statutory or other authority under which the regulation is proposed to be adopted, and include either the terms of the proposed regulation as provided in §  7.1(1) (relating to notice of proposed rulemaking required), or a description of the subjects and issues involved to inform interested persons of the nature of the proceeding, so as to permit any interested persons to submit data, views or proposals relative thereto; and such notice will set forth a time period within which interested persons may submit written data, views, arguments or other comments concerning the proposed regulation, or request oral argument thereon.

Cross References

   This section cited in 1 Pa. Code §  35.105 (relating to notice of nonrulemaking proceedings); 12 Pa. Code §  11.13 (relating to notice of hearings); 22 Pa. Code §  351.1 (relating to purpose and scope); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.203 (relating to hearing procedures); 40 Pa. Code §  15.45 (relating to notice of hearings; effect of waiver of hearing); 52 Pa. Code §  5.211 (relating to notice of rulemaking proceedings); 52 Pa. Code §  1001.112 (relating to notice of rulemaking proceedings); 61 Pa. Code §  703.32 (relating to notice of proceeding); and 61 Pa. Code §  703.33 (relating to scheduling of hearing).

§ 35.105. Notice of nonrulemaking proceedings.

 (a)  In proceedings other than those referred to in §  35.104 (relating to notice of rulemaking proceedings), notices and orders initiating hearings which are ordered by the agency to be published in a legal newspaper or a newspaper of general circulation, or which are designated by the Joint Committee on Documents or by the agency for this purpose, shall be published in the Pennsylvania Bulletin.

 (b)  In the case of a notice or order initiating a hearing without specifying the time and place thereof such notice or order shall be published in the Pennsylvania Bulletin not less than 15 days prior to the date fixed therein for the filing of protests, petitions to intervene or notices of intervention.

 (c)  In the case of a notice or order fixing the time and place for the initial convening of the hearing the notice or order shall be published in the Pennsylvania Bulletin not less than 15 days prior to the date fixed in said notice or order for the convening of the hearing, unless the agency finds that a shorter period of notice is reasonable and consistent with the public interest.

 (d)  In addition to the publication in the Pennsylvania Bulletin, copies of the notice or orders will be mailed to the parties. Similar notice shall be served of the time when and place where a hearing will be reconvened unless announcement was made thereof by the presiding officer at the adjournment of the earlier session of the hearing, but no such notice will be published in the Pennsylvania Bulletin. In fixing the time and place of hearing, due regard will be given to the convenience and necessity of the parties or their attorneys so far as time and the proper execution of the functions of the agency permit.

Notes of Decisions

   The Department of Community Affairs’ failure to provide 15 days notice of a hearing in the Pennsylvania Bulletin was reasonable in light of the possible failure of the refunding bond issue and loss of interest savings. Property Owners, Residents and/or Taxpayers of Pleasant Valley School District v. Department of Community Affairs, 552 A.2d 769 (Pa. Cmwlth. 1989).

Cross References

   This section cited in 1 Pa. Code §  35.2 (relating to contents of applications); 4 Pa. Code §  89.23 (relating to notice); 6 Pa. Code §  22.95 (relating to formal appeals and hearings); 6 Pa. Code §  30.14 (relating to procedure for designation); 6 Pa. Code §  30.23 (relating to procedure for redesignation); 7 Pa. Code §  131.13 (relating to service); 12 Pa. Code §  11.13 (relating to notice of hearings); 22 Pa. Code §  121.9 (relating to administrative loan collection review procedures); 22 Pa. Code §  351.1 (relating to purpose and scope); 22 Pa. Code §  121.10 (relating to administrative wage garnishment procedures for Federal loans); 28 Pa. Code §  1113.2 (relating to administrative appeal procedures); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  79.84 (relating to hearings); 37 Pa. Code §  197.89 (relating to scheduling and announcement of hearings); 40 Pa. Code §  15.45 (relating to notice of hearings; effect of waiver of hearing); 52 Pa. Code §  5.212 (relating to notice of nonrulemaking proceedings); 52 Pa. Code §  1005.83 (relating to notice of nonrulemaking proceedings); 55 Pa. Code §  41.32 (relating to timeliness and perfection of requests for hearing); 58 Pa. Code §  51.43 (relating to staff review); 61 Pa. Code §  703.32 (relating to notice of proceeding); and 61 Pa. Code §  703.33 (relating to scheduling of hearing).

§ 35.106. Contents of notice of nonrulemaking proceedings.

 The order or notice initiating a hearing for a purpose other than rulemaking will set forth the authority and jurisdiction under which the hearing is to be held, will state the nature of the proceeding, and will specify the final date for the filing of protests to the authorization sought and for the filing of petitions and notices to intervene except in cases where such date has been fixed by a former notice. The order or notice initiating the hearing will not specify the date of hearing unless the agency deems it appropriate that it do so.

Cross References

   This section cited in 4 Pa. Code §  89.23 (relating to notice); 6 Pa. Code §  30.14 (relating to procedure for designation); 12 Pa. Code §  11.13 (relating to notice of hearings); 22 Pa. Code §  351.1 (relating to purpose and scope); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.203 (relating to hearing procedures); 40 Pa. Code §  15.45 (relating to notice of hearings; effect of waiver of hearing); 52 Pa. Code §  5.212 (relating to notice of nonrulemaking proceedings); 52 Pa. Code §  1005.83 (relating to notice of nonrulemaking proceedings); 55 Pa. Code §  41.32 (relating to timeliness and perfection of requests for hearing); 61 Pa. Code §  703.32 (relating to notice of proceeding); and 61 Pa. Code §  703.33 (relating to scheduling of hearing).

PREHEARING CONFERENCES


§ 35.111. Conferences to adjust, settle or expedite proceedings.

 In order to provide opportunity for the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment, for settlement of a proceeding, or any of the issues therein, or consideration of means by which the conduct of the hearing may be facilitated and the disposition of the proceeding expedited, conferences between the participants for such purposes may be held at any time prior to or during hearings before the agency head or the presiding officer as time, the nature of the proceeding, and the public interest may permit.

Cross References

   This section cited in 6 Pa. Code §  22.95 (relating to formal appeals and hearings); 7 Pa. Code §  131.31 (relating to conferences); 10 Pa. Code §  3.10 (relating to prehearing conferences); 16 Pa. Code §  42.75 (relating to conciliation meetings and prehearing conferences); 22 Pa. Code §  121.191 (relating to approved lending institutions in Federal Stafford Loan, Federal PLUS Loan and Federal Consolidation Loan Programs); 25 Pa. Code §  1021.105 (relating to prehearing conferences); 25 Pa. Code §  1021.106 (relating to voluntary mediation); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.58 (relating to informal conferences); 34 Pa. Code §  131.59 (relating to mediation); 34 Pa. Code §  131.59a (relating to voluntary mediation); 34 Pa. Code §  131.59b (relating to mandatory mediation); 34 Pa. Code §  131.60 (relating to resolution hearings); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  79.84 (relating to hearings); 37 Pa. Code §  171.61 (relating to conciliation conference); 37 Pa. Code §  171.81 (relating to prehearing conference); 37 Pa. Code §  197.46 (relating to prehearing conference); 37 Pa. Code §  197.88 (relating to prehearing conference); 40 Pa. Code §  15.43 (relating to prehearing memoranda or conferences); 49 Pa. Code §  19.37 (relating to prehearing conference); 52 Pa. Code §  5.221 (relating to conferences to adjust, settle or expedite proceedings); 52 Pa. Code §  1005.91 (relating to conferences generally); 55 Pa. Code §  41.101 (relating to prehearing procedure in certain provider appeals); 58 Pa. Code §  491a.9 (relating to prehearing and other conferences); and 61 Pa. Code §  703.21 (relating to prehearing conference).

§ 35.112. Conferences to expedite hearings.

 At a prehearing or other conferences which may be held to expedite the orderly conduct and disposition of a hearing, there may be considered, in addition to offers of settlement or proposals of adjustment, the possibility of the following:

   (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 admission as to, or stipulations 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.

Cross References

   This section cited in 1 Pa. Code §  35.113 (relating to initiation of conferences); 1 Pa. Code §  35.137 (relating to oral examination); 1 Pa. Code §  35.155 (relating to presentation and effect of stipulations); 10 Pa. Code §  3.10 (relating to prehearing conferences); 16 Pa. Code §  42.75 (relating to conciliation meetings and prehearing conferences); 22 Pa. Code §  121.191 (relating to approved lending institutions in Federal Stafford Loan, Federal PLUS Loan and Federal Consolidation Loan Programs); 25 Pa. Code §  1021.105 (relating to prehearing conferences); 31 Pa. Code §  56.3 (relating to admissions as to facts and documents); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.58 (relating to informal conferences); 34 Pa. Code §  131.59 (relating to mediation); 34 Pa. Code §  131.59a (relating to voluntary mediation); 34 Pa. Code §  131.59b (relating to mandatory mediation); 34 Pa. Code §  131.60 (relating to resolution hearings); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  171.61 (relating to conciliation conference); 37 Pa. Code §  171.81 (relating to prehearing conference); 37 Pa. Code §  197.46 (relating to prehearing conference); 37 Pa. Code §  197.88 (relating to prehearing conference); 40 Pa. Code §  15.43 (relating to prehearing memoranda or conferences); 52 Pa. Code §  5.222 (relating to initiation of prehearing conferences in nonrate proceedings); 52 Pa. Code §  1005.91 (relating to conferences generally); 58 Pa. Code §  491a.9 (relating to prehearing and other conferences); and 61 Pa. Code §  703.21 (relating to prehearing conference).

§ 35.113. Initiation of conferences.

 (a)  The agency head or the presiding officer, with or without motion, and after consideration of the probability of beneficial results to be derived therefrom, may direct that a conference be held, and direct the parties to the proceeding, the staff of the agency and staff counsel to appear thereat to consider the matters enumerated in §  35.112 (relating to conferences to expedite hearings). Due notice of the time and place of the conference shall be given to all parties to the proceeding, the staff of the agency and staff counsel.

 (b)  Parties will be expected to come to the conference fully prepared for a useful discussion of problems involved in the proceeding, both procedural and substantive, and fully 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 all objections to the agreements reached, if any, and any order or ruling with respect thereto.

Cross References

   This section cited in 4 Pa. Code §  105.14d (relating to prehearing conferences); 10 Pa. Code §  3.10 (relating to prehearing conferences); 16 Pa. Code §  42.75 (relating to conciliation meetings and prehearing conferences); 22 Pa. Code §  121.191 (relating to approved lending institutions in Federal Stafford Loan, Federal PLUS Loan and Federal Consolidation Loan Programs); 25 Pa. Code §  1021.105 (relating to prehearing conferences); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.58 (relating to informal conferences); 34 Pa. Code §  131.59 (relating to mediation); 34 Pa. Code §  131.59a (relating to voluntary mediation); 34 Pa. Code §  131.59b (relating to mandatory mediation); 34 Pa. Code §  131.60 (relating to resolution hearings); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  171.61 (relating to conciliation conference); 37 Pa. Code §  171.81 (relating to prehearing conference); 37 Pa. Code §  197.46 (relating to prehearing conference); 37 Pa. Code §  197.88 (relating to prehearing conference); 40 Pa. Code §  15.43 (relating to prehearing memoranda or conferences); 52 Pa. Code §  5.222 (relating to initiation of prehearing conferences in nonrate proceedings); 52 Pa. Code §  1005.91 (relating to conferences generally); 58 Pa. Code §  491a.9 (relating to prehearing and other conferences); and 61 Pa. Code §  703.21 (relating to prehearing conference).

§ 35.114. Authority of presiding officer at conference.

 The presiding officer at a conference may dispose of by ruling, irrespective of the consent of the participants, procedural matters which he is authorized to rule upon during the course of the proceeding, and which it appears may appropriately and usefully be disposed of at that stage. In addition, if it appears that the proceeding would be substantially expedited by distribution of proposed exhibits and written prepared testimony reasonably in advance of the hearing session, the presiding officer at his discretion and with due regard for the convenience and necessity of the parties, the staff of the agency and staff counsel, may direct the advance distribution by a prescribed date. The rulings of the presiding officer made at the conference shall control the subsequent course of the hearing, unless modified for good cause shown.

Cross References

   This section cited in 7 Pa. Code §  131.31 (relating to conferences); 10 Pa. Code §  3.10 (relating to prehearing conferences); 16 Pa. Code §  42.75 (relating to conciliation meetings and prehearing conferences); 22 Pa. Code §  121.191 (relating to approved lending institutions in Federal Stafford Loan, Federal PLUS Loan and Federal Consolidation Loan Programs); 25 Pa. Code §  1021.105 (relating to prehearing conferences); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.58 (relating to informal conferences); 34 Pa. Code §  131.59 (relating to mediation); 34 Pa. Code §  131.59a (relating to voluntary mediation); 34 Pa. Code §  131.59b (relating to mandatory mediation); 34 Pa. Code §  131.60 (relating to resolution hearings); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  171.61 (relating to conciliation conference); 37 Pa. Code §  171.81 (relating to prehearing conference); 37 Pa. Code §  197.46 (relating to prehearing conference); 37 Pa. Code §  197.88 (relating to prehearing conference); 40 Pa. Code §  15.43 (relating to prehearing memoranda or conferences); 49 Pa. Code §  19.37 (relating to prehearing conference); 52 Pa. Code §  5.223 (relating to authority of presiding officer at conferences); 52 Pa. Code §  1005.91 (relating to conferences generally); 58 Pa. Code §  491a.9 (relating to prehearing and other conferences); and 61 Pa. Code §  703.21 (relating to prehearing conference).

§ 35.115. Offers of settlement.

 Nothing contained in these rules shall be construed as precluding a participant in a proceeding from submitting at any time offers of settlement or proposals of adjustment to all parties and to the agency, or to staff counsel for transmittal to the agency, or from requesting conferences for that purpose. Unaccepted proposals of settlement or of adjustment or as to procedure to be followed and proposed stipulations not agreed to shall be privileged and are not admissible in evidence against a counsel or person claiming such privilege.

Cross References

   This section cited in 10 Pa. Code §  3.10 (relating to prehearing conferences); 16 Pa. Code §  42.75 (relating to conciliation meetings and prehearing conferences); 22 Pa. Code §  121.191 (relating to approved lending institutions in Federal Stafford Loan, Federal PLUS Loan and Federal Consolidation Loan Programs); 25 Pa. Code §  1021.105 (relating to prehearing conferences); 25 Pa. Code §  1021.106 (relating to voluntary mediation); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.58 (relating to informal conferences); 34 Pa. Code §  131.59 (relating to mediation); 34 Pa. Code §  131.59a (relating to voluntary mediation); 34 Pa. Code §  131.59b (relating to mandatory mediation); 34 Pa. Code §  131.60 (relating to resolution hearings); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  171.61 (relating to conciliation conference); 37 Pa. Code §  171.81 (relating to prehearing conference); 37 Pa. Code §  171.121 (relating to offers of settlement); 37 Pa. Code §  197.46 (relating to prehearing conference); 37 Pa. Code §  197.88 (relating to prehearing conference); 40 Pa. Code §  15.43 (relating to prehearing memoranda or conferences); 52 Pa. Code §  5.231 (relating to offers of settlement); 52 Pa. Code §  1005.91 (relating to conferences generally); 58 Pa. Code §  491a.9 (relating to prehearing and other conferences); 61 Pa. Code §  703.11 (relating to compromise generally); and 61 Pa. Code §  703.21 (relating to prehearing conference).

§ 35.116. Refusal to make admissions or stipulate.

 If a party attending a conference convened under these rules 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, he may apply to the agency head or presiding officer for an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable attorney’s fees. Unless the agency head or presiding officer finds that there were good reasons for the refusal to admit or stipulate or that the admissions or stipulations sought were of no substantial importance, the order shall be made. An appeal may be taken to the agency head immediately from any such order made by a presiding officer. If a party refuses to comply with such order after it becomes final, the agency may strike all or any part of such pleadings of such party or limit or deny further participation by such party.

Cross References

   This section cited in 10 Pa. Code §  3.10 (relating to prehearing conferences); 16 Pa. Code §  42.75 (relating to conciliation meetings and prehearing conferences); 22 Pa. Code §  121.191 (relating to approved lending institutions in Federal Stafford Loan, Federal PLUS Loan and Federal Consolidation Loan Programs); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.58 (relating to informal conferences); 34 Pa. Code §  131.59 (relating to mediation); 34 Pa. Code §  131.59a (relating to voluntary mediation); 34 Pa. Code §  131.59b (relating to mandatory mediation); 34 Pa. Code §  131.60 (relating to resolution hearings); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  171.61 (relating to conciliation conference); 37 Pa. Code §  171.81 (relating to prehearing conference); 37 Pa. Code §  197.46 (relating to prehearing conference); 37 Pa. Code §  197.88 (relating to prehearing conference); 40 Pa. Code §  15.43 (relating to prehearing memoranda or conferences); 52 Pa. Code §  5.233 (relating to refusal to make admissions or stipulate); 52 Pa. Code §  1005.91 (relating to conferences generally); 58 Pa. Code §  491a.9 (relating to prehearing and other conferences); and 61 Pa. Code §  703.21 (relating to prehearing conference).

HEARING


§ 35.121. Initiation of hearings.

 Hearings for the purpose of taking evidence will be initiated by the agency by issuance of an order or by notice announcing the initiation of a hearing.

Cross References

   This section cited in 4 Pa. Code §  265.3 (relating to level II hearings); 7 Pa. Code §  131.32 (relating to hearings); 10 Pa. Code §  3.11 (relating to hearing rules); 25 Pa. Code §  1021.101 (relating to prehearing procedure); 25 Pa. Code §  1021.111 (relating to initiation of hearings); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.203 (relating to hearing procedures); 40 Pa. Code §  15.46 (relating to hearings); 52 Pa. Code §  5.201 (relating to notice of proceeding; hearing; waiver of hearing); 52 Pa. Code §  5.203 (relating to hearing in rate proceedings); 52 Pa. Code §  1005.81 (relating to notice of proceeding; hearing; waiver of hearing); 55 Pa. Code §  41.151 (relating to initiation of hearings); 58 Pa. Code §  145.6 (relating to scheduling of the hearing); 58 Pa. Code §  494a.2 (relating to oral hearings); 67 Pa. Code §  491.3 (relating to request for hearing); 61 Pa. Code §  703.31 (relating to disposition of petitions); 61 Pa. Code §  703.33 (relating to scheduling of hearing); and 67 Pa. Code §  491.4 (relating to institution of proceedings).

§ 35.122. Consolidation of formal proceedings.

 The agency, with or without motion, may order proceedings involving a common question of law or fact to be consolidated for hearing of the matters in issue in such proceedings.

Cross References

   This section cited in 7 Pa. Code §  131.32 (relating to hearings); 10 Pa. Code §  3.11 (relating to hearing rules); 34 Pa. Code §  131.53a (relating to consolidated hearing procedures); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.203 (relating to hearing procedures); 40 Pa. Code §  15.46 (relating to hearings); 52 Pa. Code §  5.81 (relating to consolidation); 52 Pa. Code §  1005.51 (relating to consolidation); 55 Pa. Code §  41.81 (relating to consolidation of provider appeals); 58 Pa. Code §  494a.2 (relating to oral hearings); 61 Pa. Code §  703.7 (relating to consolidation); and 61 Pa. Code §  703.31 (relating to disposition of petitions).

§ 35.123. Conduct of hearings.

 Hearings will be held before the agency head or a presiding officer designated under Subchapter E (relating to presiding officers).

Notes of Decisions

   Finder of Fact

   The Secretary of the Department of Public Welfare is clearly an ‘‘agency head’’ and this chapter permits the Secretary to act in a fact-finding capacity in provider appeals. Siemon’s Lakeview Manor Estate v. Department of Public Welfare, 703 A.2d 551 (Pa. Cmwlth. 1997); appeal denied 727 A.2d 134 (Pa. 1998).

Cross References

   This section cited in 6 Pa. Code §  22.95 (relating to formal appeals and hearings); 10 Pa. Code §  3.11 (relating to hearing rules); 25 Pa. Code §  1021.116 (relating to conduct of hearings); 28 Pa. Code §  301.7 (relating to fair hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedures); 34 Pa. Code §  131.56a (relating to withdrawal of appearance); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.202 (relating to first hearing information and stay); 34 Pa. Code §  131.203 (relating to hearing procedures); 40 Pa. Code §  15.46 (relating to hearings); 52 Pa. Code §  5.203 (relating to hearing in rate proceedings); 52 Pa. Code §  1005.82 (relating to scheduling of hearing); 58 Pa. Code §  145.8 (relating to conduct of the formal hearing); 58 Pa. Code §  494a.1 (relating to generally); 58 Pa. Code §  494a.2 (relating to oral hearings); 61 Pa. Code §  703.31 (relating to disposition of petitions); 61 Pa. Code §  703.34 (relating to hearing procedure); 67 Pa. Code §  491.6 (relating to notice and conduct of hearing); and 67 Pa. Code §  491.10 (relating to hearings).

§ 35.124. Appearances.

 The agency head or the presiding officer before whom the hearing is held shall cause to be entered upon the record all appearances, with a notation in whose behalf each appearance is made. Included in the appearances shall be staff counsel participating, and a notation shall be made in the record of the names of the members of the technical staff of the agency participating, including accountants, engineers and other experts, who have been assigned to work on the investigation or to assist in the trial of the case.

Cross References

   This section cited in 10 Pa. Code §  3.11 (relating to hearing rules); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.56a (relating to withdrawal of appearance); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.202 (relating to first hearing information and stay); 34 Pa. Code §  131.203 (relating to hearing procedures); 40 Pa. Code §  15.46 (relating to hearings); 52 Pa. Code §  5.241 (relating to appearances); 58 Pa. Code 494a.1 (relating to generally); 58 Pa. Code §  494a.2 (relating to oral hearings); 61 Pa. Code §  703.31 (relating to disposition of petitions); and 61 Pa. Code §  703.35 (relating to failure to appear at hearing).

§ 35.125. Order of procedure.

 (a)  In hearings upon applications, formal complaints or petitions, the complainant, petitioner or other party having the burden of proof, shall open and close, unless otherwise directed by the presiding officer. In hearings on investigations and in proceedings which have been consolidated for hearing, the presiding officer may direct who shall open and close.

 (b)  Interveners shall follow the parties in whose behalf the intervention is made. Where the intervention is not in support of an original party, the presiding officer shall designate at what stage the intervener shall be heard.

 (c)  In proceedings where the evidence is peculiarly within the knowledge or control of another party or participant, the order of presentation set forth in subsections (a) and (b) may be varied by the presiding officer.

 (d)  The following shall also apply:

   (1)  The applications (including attached exhibits), complaints, orders to show cause and answers thereto and similar formal documents upon which hearings are fixed shall, without further action, be considered as parts of the record as pleadings.

   (2)  In no event, except in the case of a noncontested proceeding, may the pleadings be considered as evidence of fact other than that of the filing thereof unless offered and received in evidence in under this part.

Notes of Decisions

   Burden of Proof

   The petitioner failed to demonstrate that the chiropractic services could reasonably be expected to reduce the petitioner’s multiple chemical sensitivity or to overcome petitioner’s vocational handicaps and enable petitioner to achieve suitable employment. Given the limited amount of medical and or other literature available on the disability of multiple chemical sensitivity in general, in order to determine whether or not any form of chiropractic treatment would be of benefit to someone in peti-tioner’s condition, an expert opinion is required; petitioner’s chiropractor offered insufficient evidence. Brooks v. Office of Vocational Rehabilitation, 682 A.2d 850 (Pa. Cmwlth. 1996).

   Conflicting Regulations

   The specific procedural rules of the State Ethics Commission contained in 51 Pa. Code §  21.25 (relating to conduct of hearing) supersede 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure). Bartholomew v. State Ethics Commission., 795 A.2d 1073 (Pa. Cmwlth. 2002).

   Pleadings

   Where the employer failed to file its answer to the claim petition in a timely manner, the matter was properly considered a noncontested proceeding and there was no need for claimant to move the admission of the claim petition. William J. Donovan Sheet Metal v. Workers’ Compensation Appeal Board, 789 A.2d 344 (Pa. Cmwlth. 2001); appeal denied 800 A.2d 936 (Pa. 2002).

Cross References

   This section cited in 4 Pa. Code §  89.27 (relating to order of presentation); 4 Pa. Code §  137.9 (relating to caveator as plaintiff); 10 Pa. Code §  3.11 (relating to hearing rules); 22 Pa. Code §  121.9 (relating to administrative loan collection review procedures); 22 Pa. Code §  121.10 (relating to administrative wage garnishment procedures for Federal loans); 28 Pa. Code §  301.7 (relating to fair hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.202 (relating to first hearing information and stay); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  171.96 (relating to arbitration hearing procedure); 37 Pa. Code §  197.48 (relating to procedure at hearing); 37 Pa. Code §  197.70 (relating to hearings); 37 Pa. Code §  197.90 (relating to procedure at hearing); 40 Pa. Code §  15.46 (relating to hearings); 51 Pa. Code §  21.25 (relating to conduct of the hearing); 52 Pa. Code §  5.242 (relating to order of procedure); 52 Pa. Code §  5.405 (relating to effect of pleadings); 52 Pa. Code §  1005.82 (relating to scheduling of hearing); 52 Pa. code §  1005.111 (relating to order of procedure); 52 Pa. Code §  1005.145 (relating to effect of pleadings); 55 Pa. Code §  41.153 (relating to burden of proof and production); 58 Pa. Code §  494a.2 (relating to oral hearings); 61 Pa. Code §  703.31 (relating to disposition of petitions); 61 Pa. Code §  703.34 (relating to hearing procedure); and 67 Pa. Code §  491.10 (relating to hearings).

§ 35.126. Presentation by the parties.

 (a)  Parties and staff counsel shall have the right of presentation of evidence, cross-examination, objection, motion and argument. The taking of evidence and subsequent proceedings shall proceed with reasonable diligence and with the least practicable delay.

 (b)  When objections to the admission or exclusion of evidence before the agency head or the presiding officer are made, the grounds relied upon shall be stated briefly. Formal exceptions are unnecessary and may not be taken to rulings thereon.

Cross References

   This section cited in 4 Pa. Code §  89.28 (relating to presentation); 7 Pa. Code §  131.33 (relating to evidence); 10 Pa. Code §  3.11 (relating to hearing rules); 22 Pa. Code §  121.8 (relating to applicant and recipient appeals and hearings); 22 Pa. Code §  121.9 (relating to administrative loan collection review procedures); 22 Pa. Code §  121.34 (relating to institutional appeals and hearings); 25 Pa. Code §  1021.117 (relating to presentation by the parties); 34 Pa. Code §  95.91 (relating to hearings); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.66 (relating to admissibility of oral depositions); 34 Pa. Code §  131.202 (relating to first hearing information and stay); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  171.96 (relating to arbitration hearing procedure); 37 Pa. Code §  197.48 (relating to procedure at hearing); 37 Pa. Code §  197.70 (relating to hearings); 37 Pa. Code §  197.90 (relating to procedure at hearing); 40 Pa. Code §  15.46 (relating to hearings); 51 Pa. Code §  21.23 (relating to scope of hearing); 52 Pa. Code §  5.243 (relating to presentation by participants); 52 Pa. Code §  1005.112 (relating to presentation by parties); 55 Pa. Code §  41.153 (relating to burden of proof and production); 58 Pa. Code §  494a.2 (relating to oral hearings); 61 Pa. Code §  703.31 (relating to disposition of petitions); and 61 Pa. Code §  703.35 (relating to failure to appear at hearing).

§ 35.127. Limiting number of witnesses.

 The agency head or the presiding officer may limit appropriately the number of witnesses who may be heard upon an issue.

Notes of Decisions

   The hearing examiner having the authority to limit the number of witnesses did not violate the insurance agent’s rights of due process by precluding the testimony of a witness since the examiner determined such irrelevant. Park v. Chronister, 617 A.2d 863 (Pa. Cmwlth. 1992); appeal denied 627 A.2d 231 (Pa. 1993).

Cross References

   This section cited in 1 Pa. Code §  35.162 (relating to reception and ruling on evidence); 10 Pa. Code §  3.11 (relating to hearing rules); 25 Pa. Code §  1021.126 (relating to limiting number of witnesses and additional evidence); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedures); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.202 (relating to first hearing information and stay); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  197.48 (relating to procedure at hearing); 37 Pa. Code §  197.90 (relating to procedure at hearing); 40 Pa. Code §  15.46 (relating to hearings); 52 Pa. Code §  5.403 (relating to control of receipt of evidence); 52 Pa. Code §  1005.143 (relating to control of receipt of evidence); 61 Pa. Code §  703.31 (relating to disposition of petitions); and 61 Pa. Code §  703.34 (relating to hearing procedure).

§ 35.128. Additional evidence.

 At a stage of the hearing the agency head or the presiding officer may call for further evidence upon an issue, and require the evidence to be presented by the party or parties concerned or by the staff counsel, either at that hearing or at the adjournments thereof. At the hearing, the agency head or the presiding officer may, if deemed advisable, authorize a participant to file specific documentary evidence as a part of the record within a fixed time, expiring not less than 10 days before the date fixed for filing and serving briefs.

Cross References

   This section cited in 1 Pa. Code §  35.131 (relating to recording of proceedings); 1 Pa. Code §  35.162 (relating to reception and ruling on evidence); 10 Pa. Code §  3.11 (relating to hearing rules); 25 Pa. Code §  1021.126 (relating to limiting number of witnesses and additional evidence); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedures); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.202 (relating to first hearing information and stay); 34 Pa. Code §  131.203 (relating to hearing procedures); 40 Pa. Code §  15.46 (relating to hearings); 52 Pa. Code §  5.404 (relating to additional evidence); 52 Pa. Code §  1005.144 (relating to additional evidence); 61 Pa. Code §  703.31 (relating to disposition of petitions); and 61 Pa. Code §  703.34 (relating to hearing procedure).

TRANSCRIPT


§ 35.131. Recording of proceedings.

 Hearings shall be stenographically reported by the official reporter of the agency, and a transcript of the report shall be a part of the record and the sole official transcript of the proceeding. The transcripts shall include a verbatim report of the hearings and nothing shall be omitted therefrom except as is directed on the record by the agency head or the presiding officer. After the closing of the record, there shall not be received in evidence or considered as part of the record any document submitted after the close of testimony except as provided in §  35.128 (relating to additional evidence) or changes in the transcript as provided in §  35.132 (relating to transcript corrections).

Cross References

   This section cited in 4 Pa. Code §  89.24 (relating to record); 4 Pa. Code §  265.3 (relating to level II hearings); 4 Pa. Code §  265.4 (relating to appeals—level III); 6 Pa. Code §  30.14 (relating to procedure for designation); 6 Pa. Code §  30.23 (relating to procedure for redesignation); 7 Pa. Code §  131.35 (relating to transcript); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.210 (relating to transcripts, reports and prepared statements); 12 Pa. Code §  81.233 (relating to transcript); 22 Pa. Code §  121.8 (relating to applicant and recipient appeals and hearings); 22 Pa. Code §  121.34 (relating to institutional appeals and hearings); 25 Pa. Code §  1021.118 (relating to transcript); 28 Pa. Code §  1111.9 (relating to hearing record); 28 Pa. Code §  1113.3 (relating to adjudication and order); 34 Pa. Code §  95.91 (relating to hearings); 34 Pa. Code §  121.27 (relating to orders to show cause); 34 Pa. Code §  125.6 (relating to decision on application); 34 Pa. Code §  131.101 (relating to briefs, findings of fact and close of record); 37 Pa. Code §  21.57 (relating to transcript); 37 Pa. Code §  171.105 (relating to recording of proceedings); 37 Pa. Code §  197.15 (relating to recording of proceedings); 40 Pa. Code §  15.46 (relating to hearings); 40 Pa. Code §  15.47 (relating to transcript); 52 Pa. Code §  5.251 (relating to recording of proceedings); 52 Pa. Code §  1005.121 (relating to transcripts generally); 58 Pa. Code §  145.10 (relating to stenographic record); 61 Pa. Code §  703.34 (relating to hearing procedure); and 104 Pa. Code §  7.16 (relating to RTKL appeals).

§ 35.132. Transcript corrections.

 Corrections in the official transcript may be made only to make it conform to the evidence presented at the hearing and to speak the truth. No corrections or physical changes shall be made in or upon the official transcript of the proceeding, except as provided in this section. Transcript corrections agreed to by opposing attorneys may be incorporated into the record, if and when approved by the agency head or the presiding officer, at any time during the hearing or after the close of evidence, as may be permitted by the agency head, or by the presiding officer before the filing of his proposed report, but not less than 10 days in advance of the time fixed for filing final briefs. The agency head or the presiding officer may call for the submission of proposed corrections and may make disposition thereof at appropriate times during the course of a proceeding.

Notes of Decisions

   Judge did not abuse his discretion in denying NOW’s motion, submitted 1 month after the time fixed for filing briefs, despite NOW’s argument that it did not discover errors by the presiding hearing officer’s incorrect transcript until the need arose to review the final pages of the transcript. Pennsylvania National Organization for Women v. Insurance Department, 551 A.2d 1162 (Pa. Cmwlth. 1988); appeal denied 561 A.2d 744 (Pa. 1989).

Cross References

   This section cited in 1 Pa. Code §  35.131 (relating to recording of proceedings); 4 Pa. Code §  89.24 (relating to record); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.210 (relating to transcripts, reports and prepared statements); 12 Pa. Code §  81.233 (relating to transcript); 25 Pa. Code §  1021.118 (relating to transcript); 34 Pa. Code §  95.91 (relating to hearings); 34 Pa. Code §  131.101 (relating to briefs, findings of fact and close of record); 37 Pa. Code §  21.57 (relating to transcript); 37 Pa. Code §  197.49 (relating to correction of transcript); 37 Pa. Code §  197.91 (relating to correction of transcript); 40 Pa. Code §  15.46 (relating to hearings); 40 Pa. Code §  15.47 (relating to transcript); 52 Pa. Code §  5.253 (relating to transcript corrections); 52 Pa. Code §  1005.123 (relating to transcript corrections); and 61 Pa. Code §  703.34 (relating to hearing procedure).

§ 35.133. Copies of transcripts.

 (a)  Availability to participants in public hearings. The agency will cause to be made a stenographic record of all public hearings and the copies of the transcript thereof as it requires for its own purposes. Participants desiring copies of the transcript may obtain copies from the official reporter upon payment of the fees fixed therefor.

 (b)  Availability to persons who give evidence in investigations and nonpublic proceedings. A person compelled to furnish data or to give evidence in an investigation shall be entitled to retain or, upon payment of the lawfully prescribed fees therefor to the official reporter or to the office of the agency, to obtain a copy of the official transcript thereof; except that if the data or evidence have been furnished or given in a nonpublic investigatory proceeding conducted by the agency, the person may, for good cause, be limited to an inspection only, either in person or by a duly authorized representative, of the official transcript of his testimony.

Cross References

   This section cited in 4 Pa. Code §  110.4 (relating to transcripts); 6 Pa. Code §  30.14 (relating to procedure for designation); 6 Pa. Code §  30.14 (relating to procedure for redesignation); 7 Pa. Code §  131.35 (relating to transcript); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.210 (relating to transcripts, reports and prepared statements); 12 Pa. Code §  81.233 (relating to transcript); 25 Pa. Code §  1021.118 (relating to transcript); 28 Pa. Code §  301.7 (relating to fair hearing); 34 Pa. Code §  131.101 (relating to briefs, findings of fact and close of record); 37 Pa. Code §  21.57 (relating to transcript); 37 Pa. Code §  171.105 (relating to recording of proceedings); 37 Pa. Code §  197.49 (relating to correction of transcript); 37 Pa. Code §  197.91 (relating to correction of transcript); 40 Pa. Code §  15.46 (relating to hearings); 40 Pa. Code §  15.47 (relating to transcript); 52 Pa. Code §  5.254 (relating to copies of transcripts); 52 Pa. Code §  1005.124 (relating to copies of transcripts); 58 Pa. Code §  145.14 (relating to transcripts); and 61 Pa. Code §  703.34 (relating to hearing procedure).



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