§ 1021.133. Reopening of record prior to adjudication.
(a) After the conclusion of the hearing on the merits of the matter pending before the Board and before the Board issues an adjudication, the Board, upon its own motion or upon a petition filed by a party, may reopen the record as provided in this section.
(b) The record may be reopened upon the basis of recently discovered evidence when all of the following circumstances are present:
(1) Evidence has been discovered which would conclusively establish a material fact of the case or would contradict a material fact which had been assumed or stipulated by the parties to be true.
(2) The evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.
(3) The evidence is not cumulative.
(c) The record may also be reopened to consider evidence which has become material as a result of a change in legal authority occurring after the close of the record. A petition to reopen the record on this basis shall specify the change in legal authority and demonstrate that it applies to the matter pending before the Board. Such a petition need not meet the requirements of subsection (d)(2) and (3).
(d) A petition seeking to reopen the record shall:
(1) Identify the evidence which the petitioner seeks to add to the record.
(2) Describe the efforts which the petitioner had made to discover the evidence prior to the close of the record.
(3) Explain how the evidence was discovered after the close of the record. A petition filed under subsection (b) shall be verified and all petitions shall contain a certification by counsel that the petition is being filed in good faith and not for the purpose of delay.
(e) The petition shall be served upon the parties to the proceedings. A petition will be treated as a miscellaneous motion under § 1021.95 (relating to miscellaneous motions) except that the motion would have to be verified or supported by affidavits. The answer shall be verified if it includes factual assertions which are not of record.
(f) Subsections (a)—(e) supersede 1 Pa. Code § § 35.232 and 35.233 (relating to reopening by presiding officer; and reopening by agency action).
Comment: This sets a standard which is more stringent than the materiality test of Spang & Company v. DER, 592 A.2d 815 (Pa. Cmwlth. 1991), but broader than the grounds justifying reconsideration. The procedure differs from the standard motions practice under § § 1021.91—1021.95 (relating to motions).
Source The provisions of this § 1021.133 adopted August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (274930) to (274931).
Cross References This section cited in 25 Pa. Code § 1021.125 (relating to official notice of facts).
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