Subchapter I. REOPENING AND REHEARING


REOPENING OF RECORD

Sec.


35.231.    Reopening on application of party.
35.232.    Reopening by presiding officer.
35.233.    Reopening by agency action.

REHEARING OR RECONSIDERATION


35.241.    Application for rehearing or reconsideration.

Cross References

   This subchapter cited in 34 Pa. Code §  111.35 (relating to dispositions of petitions).

REOPENING OF RECORD


§ 35.231. Reopening on application of party.

 (a)  Petition to reopen. After the conclusion of a hearing in a proceeding or adjournment thereof sine die, a participant in the proceeding may file with the presiding officer, if before issuance by the presiding officer of a proposed report, otherwise with the agency head, a petition to reopen the proceeding for the purpose of taking additional evidence. The petition shall set forth clearly the facts claimed to constitute grounds requiring reopening of the proceeding, including material changes of fact or of law alleged to have occurred since the conclusion of the hearing.

 (b)  Responses. Within 10 days following the service of the petition, another participant may file with the presiding officer or the agency head, his answer thereto, and in default thereof shall be deemed to have waived an objection to the granting of the petition.

 (c)  Action on petition. As soon as practicable after the filing of responses to the petitions or default thereof, as the case may be, the presiding officer or agency head will grant or deny the petition.

Notes of Decisions

   Application

   Section 21.122 of Title 25 of the Pennsylvania Code (relating to rehearing or reconsideration), has no application to a preadjudication petition but applies only to a request for relief after a decision. Therefore, this section applies. Spang & Co. v. Department of Environmental Resources, 592 A.2d 815 (Pa. Cmwlth. 1991); appeal denied 600 A.2d 543 (Pa. 1991).

   Material Changes

   The Board properly denied a widow’s petition to reopen the record, where her petition alleging prejudice due to the change of hearing examiners, which change she learned of only 1 day before the hearing, did not amount to a material change of fact or of law. Stevenson v. State Employees’ Retirement Board, 711 A.2d 533 (Pa. Cmwlth. 1998).

   Board of Nurse Examiners acted properly in refusing to reopen the record for taking treating physician’s testimony because the letter requesting reopening did not indicate any material changes of fact or law and the Board did not abuse its discretion in determining that the facts set forth in the request did not constitute grounds requiring reopening. Rafferty v. State Board of Nurse Examiners, 505 A.2d 357 (Pa. Cmwlth. 1986).

   To serve as a basis to reopen the record, the material changes of fact must not have been discoverable prior to the conclusion of the hearing. Shoemaker v. State Employes’ Retirement Board, 688 A.2d 751 (Pa. Cmwlth. 1997); appeal denied 698 A.2d 597 (Pa. 1997).

   Board of Nurse Examiners acted properly in refusing to reopen the record for taking treating physician’s testimony because the letter requesting reopening did not indicate any material changes of fact or law and the Board did not abuse its discretion in determining that the facts set forth in the request did not constitute grounds requiring reopening. Rafferty v. State Board of Nurse Examiners, 505 A.2d 357 (Pa. Cmwlth. 1986).

   Petition Properly Denied

   A petition to reopen a proceeding before the Civil Service Commission filed after hearing and before adjudication, permitted by 1 Pa. Code §  35.231 (relating to reopening on application of party) was not improperly denied where the stated purpose for the requested relief is to introduce no new evidence, but only to retry the matter with legal counsel who was absent from the original hearing. Department of Justice v. Civil Service Commission, 319 A.2d 692 (Pa. Cmwlth. 1974).

   Review Appropriate

   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).

   Written Petition Inapplicable

   As determined by the Environmental Hearing Board, the provisions of this regulation did not apply because these provisions expressly apply only after the conclusion of the hearings or an adjournment without further hearing dates set. In this case, the request for reopening of the record came prior to the conclusion of the hearing and prior to the company’s presentation of evidence and, therefore, the written petition set forth in this regulation was inapplicable. Al Hamilton Contracting Co. v. Department of Environmental Resources, 659 A.2d 31 (Pa. Cmwlth. 1995).

Cross References

   This section cited in 6 Pa. Code §  30.23 (relating to procedure for redesignation); 28 Pa. Code §  301.7 (relating to fair hearing); 34 Pa. Code §  111.15 (relating to no other pleadings allowed); 34 Pa. Code §  131.101 (relating to briefs, findings of fact and close of record); 51 Pa. Code §  21.29 (relating to finality; reconsideration); 52 Pa. Code §  5.431 (relating to close of the record); 52 Pa. Code §  5.571 (relating to reopening prior to a final decision); 52 Pa. Code §  1005.171 (relating to close of the record); 52 Pa. Code §  1005.221 (relating to reopening prior to a final decision); 55 Pa. Code §  41.201 (relating to reopening of record prior to adjudication); 58 Pa. Code §  494a.6 (relating to reopening of record); and 61 Pa. Code §  703.41 (relating to request for reconsideration).

§ 35.232. Reopening by presiding officer.

 Prior to the filing of his proposed report a presiding officer, after notice to the participants, may reopen the proceeding for the reception of further evidence on his own motion, if he has reason to believe that conditions of fact or of law have so changed as to require, or that the public interest requires, the reopening of the proceeding.

Notes of Decisions

   If the proposed report contains no recommended resolution to the matter, but only orders additional hearings, the Commission may properly return the matter to the administrative law judge with the direction to conduct further hearings, if necessary, or to resolve the issues and to present them to the Commission for its final determination. Hillman Coal and Coke Co. v. Pennsylvania Public Utility Commission, 433 A.2d 634 (Pa. Cmwlth. 1981).

Cross References

   This section cited in 4 Pa. Code §  89.33 (relating to decisions); 25 Pa. Code §  1021.133 (relating to reopening of record prior to adjudication); 28 Pa. Code §  301.7 (relating to fair hearing); 34 Pa. Code §  131.101 (relating to briefs, findings of fact and close of record); 51 Pa. Code §  21.29 (relating to finality; reconsideration); 52 Pa. Code §  5.431 (relating to close of the record); 52 Pa. Code §  5.571 (relating to reopening prior to a final decision); 52 Pa. Code §  1005.171 (relating to close of the record); 52 Pa. Code §  1005.221 (relating to reopening prior to a final decision); 55 Pa. Code §  41.201 (relating to reopening of record prior to adjudication); 58 Pa. Code §  494a.6 (relating to reopening of record); and 61 Pa. Code §  703.41 (relating to request for reconsideration).

§ 35.233. Reopening by agency action.

 Prior to the issuance by the agency head of an adjudication in a proceeding the agency head, after notice to the participants, may without motion reopen the proceeding for the reception of further evidence, if the agency head has reason to believe that conditions of fact or law have so changed as to require, or that the public interest requires, the reopening of the proceeding.

Cross References

   This section cited in 25 Pa. Code §  1021.133 (relating to reopening of record prior to adjudication); 28 Pa. Code §  301.7 (relating to fair hearing); 34 Pa. Code §  131.101 (relating to briefs, findings of fact and close of record); 51 Pa. Code §  21.29 (relating to finality; reconsideration); 52 Pa. Code §  5.571 (relating to reopening prior to a final decision); 52 Pa. Code §  1005.221 (relating to reopening prior to a final decision); 58 Pa. Code §  494a.6 (relating to reopening of record); and 61 Pa. Code §  703.41 (relating to request for reconsideration).

REHEARING OR RECONSIDERATION


§ 35.241. Application for rehearing or reconsideration.

 (a)  Form, filing and service. An application for rehearing or reconsideration may be filed by a party to a proceeding within 15 days, or another period as may be expressly provided by statute applicable to the proceeding, after the issuance of an adjudication or other final order by the agency. The application shall be made by petition, stating specifically the grounds relied upon.

 (b)  Specification of errors. The petitions for rehearing or reconsideration shall state concisely the alleged errors in the adjudication or other order of the agency. If an adjudication or other order of the agency is sought to be vacated, reversed or modified by reason of matters that have arisen since the hearing and decision or order, or by reason of a consequence that would result from compliance therewith, the matters relied upon by the petitioner shall be set forth in the petition.

 (c)  Response. No answers to petitions for rehearing or reconsideration will be entertained by the agency. If, and to the extent, however, that rehearing or reconsideration is granted by the agency head, a response in the nature of an answer may be filed by any participant within 15 days after the issuance of the order granting rehearing or reconsideration. The response shall be confined to the issues upon which rehearing or reconsideration has been granted.

 (d)  Action on. Unless the agency head acts upon the application for rehearing or reconsideration within 30 days after it is filed, or within the lesser time as may be provided or prescribed by law (see subsection (e)), the application shall be deemed to have been denied.

 (e)  Shortened period for agency action when judicial review is sought. Under Pa.R.A.P. No. 1701(b)(3)(ii) (relating to effect of appeal generally), if a party files a timely petition for review of an adjudication or other final order which is a quasijudicial order for purposes of judicial review, the agency may grant an application for rehearing or reconsideration only within the time prescribed by Pa.R.A.P. No. 1512 (relating to time for petitioning for review) for the filing of a petition for review; otherwise the application shall be deemed to have been denied. Under Pa.R.A.P. No. 1512, the time prescribed for the filing of a petition for review is measured from the date of entry of the original adjudication or other final order and not from the date of filing of the application for rehearing or reconsideration.

 (f)  Concurrent filing of petition for review and application for rehearing or reconsideration. Under this section, agency denial of an application for rehearing or reconsideration may occur after the expiration of the period permitted by Pa. R.A.P. No. 1512 for the filing of a petition for review. Therefore, Pa.R.A.P. No. 1701(b) contemplates that a party may elect to concurrently petition for review and apply for rehearing or reconsideration of an adjudication or other final order and:

   (1)  If rehearing or reconsideration is denied, the original adjudication or other order will be subject to judicial review upon the previously filed petition for review.

   (2)  If rehearing or reconsideration is granted within the time contemplated by subsection (e):

     (i)   The timely order granting rehearing or reconsideration automatically renders inoperative a petition for review theretofore or thereafter filed with respect to the prior adjudication or other final order.

     (ii)   The petitioning party shall and another party may file a praecipe with the prothonotary of the court in which the inoperative petition for review is filed to cause a note to be made on the docket of the court that the petition has been stricken under Pa.R.A.P. No. 1701(b).

     (iii)   If a timely order granting rehearing or reconsideration has been entered under this section, the time for filing a petition for review begins to run anew after the entry of the decision on rehearing or reconsideration, whether or not that decision amounts to a reaffirmation of the prior adjudication or other final order. A new petition for review shall be filed to seek judicial review of the decision on rehearing or reconsideration.

   (Editor’s Note: See also Pa.R.A.P. No. 1701 (relating to authority of trial court or agency after appeal).)

Authority

   The provisions of this §  35.241 amended under section 506 of The Administrative Code of 1929 (71 P. S. §  186).

Source

   The provisions of this §  35.241 amended through May 20, 1977, effective May 21, 1977, 7 Pa.B. 1308; amended June 17, 1994, effective June 18, 1994, 24 Pa.B. 3025. Immediately preceding text appears at serial pages (172983) to (172984) and (187251).

Notes of Decisions

   General Comments

   Where the petitioner’s letter was a request under §  35.241 and not a subsequent appeal, the Board of Probation and Parole’s regulation did not apply. This is evidenced by the Board’s statement in 37 Pa. Code §  73.1 supersedes one specified section of the General Rules of Administration Practice and Procedure, but does not mention 1 Pa. Code §  35.241, which governs reconsiderations. Shaw v. Board of Probation and Parole, 812 A.2d 769 (Pa. Cmwlth. 2002).

   If a party to an agency proceeding did not appeal the agency decision or petition for rehearing under this section, the agency would not be permitted to amend its decision at a later time on the basis of an ex parte letter received from that party. Liquor Control Board v. Clark, 349 A.2d 809 (Pa. Cmwlth. 1976).

   Judicial Review

   42 Pa.C.S. §  5105(a)(2) and recent case law permit appeals from denial of a petition for reconsideration by an administrative agency. Southwest Pennsylvania Natural Resources, Inc. v. Department of Environmental Resources, 465 A.2d 108 (Pa. Cmwlth. 1983).

   Although it is within the administrative discretion whether to open and reconsider a decision, appellate review is available to determine whether there has been an abuse of discretion. Board of School Directors of Avon School v. Department of Education, 375 A.2d 851 (Pa. Cmwlth. 1977).

   Reconsideration

   The party was not required to raise the contractual issues before the Secretary of the Department of Public Welfare where the Department was the party seeking reconsideration. Pursuant to subsection (c) of this regulation, the party was entitled to file an answer to DPW’s request for reconsideration, which that party did and as a consequence those issues have not been waived. Cameron Manor, Inc. v. Department of Public Welfare, 681 A.2d 836 (Pa. Cmwlth. 1996); reargument denied (1996).

   Although a petition for reconsideration was filed with the Commissioner of the Pennsylvania Department of Insurance, it was deemed denied pursuant to this regulation when the Commissioner failed to act upon it. Graduate Health Systems v. Insurance Department, 674 A.2d 367 (Pa. Cmwlth. 1996).

   Request for reconsideration deemed denied where agency fails to respond within 30 days. Twining Village v. Department of Public Welfare, 564 A.2d 1335 (Pa. Cmwlth. 1989); appeal denied 578 A.2d 931 (Pa. 1990).

   Failure by the Secretary to act on a request for reconsideration of decision terminating eligibility for AFDC within 45 days nullified the order entered after that time had passed, and, therefore, order could not be appealed. Strobhar v. Department of Public Welfare, 557 A.2d 440 (Pa. Cmwlth. 1989).

   By granting reconsideration within 30 days of the Department of Public Welfare’s request for reconsideration, the Secretary complied with this section. Hillcrest Home, Inc. v. Department of Public Welfare, 553 A.2d 1037 (Pa. Cmwlth. 1989); appeal denied 563 A.2d 500 (Pa. 1989).

   Petitioner, who filed for a reconsideration of the OHA’s order affirming the hearing officer’s decision that petitioner had received an over-issuance of food stamps, but who did not file a timely appeal of the original order, was only entitled to have Commonwealth Court review the Department of Public Welfare’s denial of the reconsideration and was not entitled to a review of the merits of the case. Keith v. Department of Public Welfare, 551 A.2d 333 (Pa. Cmwlth. 1988).

   Since the party had a fair hearing with the opportunity to present testimony or evidence and there were no extraordinary circumstances surrounding the party’s failure to apply for rehearing or reconsideration within the 15-day period, the refusal to grant rehearing or reconsideration was proper. Gordon v. Unemployment Compensation Board of Review, 403 A.2d 235 (Pa. Cmwlth. 1979).

   The Director of Administration of the Pennsylvania Crime Commission appeared in a Civil Service Commission hearing and stated that he was representing the Justice Department and where the Department later requested a rehearing on the grounds that it was not represented by counsel, the Commission was not required to grant a rehearing. Department of Justice v. Civil Service Commission 319 A.2d 692 (Pa. Cmwlth. 1974).

   Remand; Timeliness of Petition

   After remand, District petitioned the Charter School Appeal Board as to the existence of specific charter requirement in light of the court’s vacating the Board’s order granting the charter. That petition was timely, and the matter was remanded to the Board to consider the District’s request. York County School District v. Lincoln-Edison Charter School, 798 A.2d 295 (Pa. Cmwlth. 2002).

   Specification of Errors

   An application for rehearing or reconsideration filed after adjudication of the Civil Service Commission, as governed by this section, requires a specification of errors. If the specification does not demonstrate a cause for a rehearing or reconsideration, the Civil Service Commission does not abuse its discretion in denying the application. Department of Justice v. Civil Service Commission, 319 A.2d 692 (Pa. Cmwlth. 1974).

   Time Limits

   The 120-day time limit on authority of Board to hear protest to cancellation of automobile franchise at section 7 of the Board of Vehicles Act (63 P. S. §  818.7) controls when in conflict with a general rule of administrative procedure. Kimmel Pontiac, Inc. v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 570 A.2d 127 (Pa. Cmwlth. 1990).

   Petition for reconsideration of an OHA order revoking the petitioner’s personal care home license, which was received 2 days subsequent to date of the 15-day appeal period, was untimely as the date upon which the Department of Public Welfare received the petition and not the post-marked date was the controlling date for the appeal time computation. Colonial Manor Personal Care Boarding Home v. Department of Public Welfare, 551 A.2d 347 (Pa. Cmwlth. 1988); appeal denied 574 A.2d 72 (Pa. 1990).

   Osteopath’s petition for reconsideration and reopening of the Department of Public Welfare denial of a request for appeal nunc pro tunc of an earlier Departmental decision was untimely as a party to a proceeding; the petitioner must request reconsideration within 15 days after the issuance of an adjudication or final order by an agency. Ziev v. Department of Public Welfare, 548 A.2d 701 (Pa. Cmwlth. 1988); appeal denied 559 A.2d 529 (Pa. 1989).

   The statute of limitations for filing a timely appeal of a decision of the Department of Public Welfare will only be tolled by an Order granting Reconsideration within the 30 day time period and not by the filing of a Petition for Reconsideration. Monsour Medical Center v. Department of Public Welfare, 533 A.2d 1114 (Pa. Cmwlth. 1987).

   Premature filing of answer to the Department of Public Welfare’s petition for reconsideration did not toll the 30-day time period to act. The Department’s failure to appeal to Commonwealth Court within the appropriate time from the end of the 30-day period deprived the Department of the power to rule on the merits of the petition. Brookline Manor Convalescent Rest Home v. Department of Public Welfare, 492 A.2d 1207 (Pa. Cmwlth. 1985).

   In the absence of fraud or wrongful or negligent conduct, the time period for filing an application for reconsideration of an earlier agency decision was not affected by a later agency decision which is contrary to the earlier decision. Berry v. Unemployment Compensation Board of Review, 382 A.2d 487 (Pa. Cmwlth. 1978); affirmed 411 A.2d 1198 (Pa. 1980).

   A petition for review filed by school board directors and stating only that the decision by the Secretary of Education to reinstate a teacher was an error of law is insufficient to extend the 15-day limitation period because the petition was untimely brought for a reason other than fraud or its equivalent. Board of School Directors v. Department of Education, 375 A.2d 851 (Pa. Cmwlth. 1977).

   If the appeal is of the order denying the petition for reconsideration only, the appeal time runs from the date of the order dismissing the petition even though the petition was filed untimely and subsequent to the time allowed for appealing the original decision. Mayer v. Unemployment Compensation Board of Review, 27 Pa. Cmwlth. 244, 246, 366 A.2d 605, 606, 607 (1977); Board of School Directors of Avon School v. Department of Education, 375 A.2d 851 (Pa. Cmwlth. 1976).

   A reading of subsection (a) together with 25 Pa. Code §  21.32(g) leads to the conclusion that these rules combine to provide statutory authority as required by section 41 of the Administrative Agency Law (71 P. S. §  1710.41) for the filing of a petition for rehearing or reconsideration with the Environmental Quality Board and require filing within 10 days after the Board has rendered a decision. Department of Environmental Resources v. Wolford, 329 A.2d 304 (Pa. Cmwlth. 1974).

   Time Limits

   Where a teacher petitioner failed to challenge the determination of the Professional Standard and Practices Commission for nearly 2 years, but instead filed for what is the equivalent of reconsideration of the Commissions’ decision following an arbitrator’s decision issued 2 years after the Commission’s, the request for reconsideration was untimely. Pardue v. Department of Education, 815 A.2d 1162 (Pa. Cmwlth. 2003).

   Untimely Appeal Allowed

   Where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or counsel, and the appeal is filed within a short time after the appellant or counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc. Such was the case where appellant sought an appeal before the Unemployment Compensation Board and the filing period for filing expired while appellant was hospitalized for cardiac problems. Cook v. Unemployment Comp. Bd. of Review, 641 A.2d 692 (Pa. Cmwlth. 1994), appeal granted 655 A.2d 517 (Pa. 1995); reversed and remanded 671 A.2d 1130 (Pa. 1996).

Cross References

   This section cited in 4 Pa. Code §  105.17 (relating to petition for reconsideration); 25 Pa. Code §  1021.151 (relating to reconsideration of interlocutary orders); 25 Pa. Code §  1021.152 (relating to reconsideration of final orders); 28 Pa. Code §  301.7 (relating to fair hearing); 34 Pa. Code §  95.98 (relating to decisions of the Board); 34 Pa. Code §  111.15 (relating to no other pleadings allowed); 34 Pa. Code §  131.111 (relating to decisions of judges); 34 Pa. Code §  213.10 (relating to decisions); 40 Pa. Code §  15.56 (relating to rehearing or reconsideration); 51 Pa. Code §  21.29 (relating to finality; reconsideration); 52 Pa. Code §  5.572 (relating to petitions for relief following a final decision); 52 Pa. Code §  1005.222 (relating to petitions for relief); 55 Pa. Code §  41.211 (relating to reconsideration of interlocutory orders); 55 Pa. Code §  275.61 (relating to right to request reconsideration or right to appeal, or both); 58 Pa. Code §  494a.8 (relating to rehearing or reconsideration); 61 Pa. Code §  703.41 (relating to request for reconsideration); 61 Pa. Code §  703.42 (relating to time for filing request for reconsideration and extension); 61 Pa. Code §  703.43 (relating to filing a request for reconsideration); and 67 Pa. Code §  179.10 (relating to general conditions).



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