Current through Register Vol. 54, No. 44, November 2, 2024
(a)
Written notification to parties. Upon docketing a written
request for a hearing, the docket clerk will provide written notification to
all parties of the request for a hearing and of referral of the matter to the
Department hearing officer for scheduling.
(b)
Scheduling. The
Department hearing officer will schedule a hearing for the docketed request and
will direct the docket clerk to issue written notice of the time and place of
the scheduled hearing to all parties.
(c)
Authority of Department hearing
officer. The Department hearing officer will have the authority to
decide all motions, petitions, requests for supersedeas, discovery requests or
other matters presented by the parties to this action and to proceed in
accordance with 1 Pa. Code Chapter 35, Subchapter E (relating to presiding
officers).
(d)
Intervention.
(1)
Petition to intervene. A person who seeks to intervene as a
party in a proceeding shall file a petition for leave to intervene with the
Docket Clerk. The petition shall contain a concise statement of the interest of
the moving party and the grounds for intervention.
(2)
Refusal.
(i)
Delay. The Department
may refuse a petition for intervention if the moving party has unduly delayed
in applying for intervention or the intervention will unduly delay or prejudice
the hearing or the adjudication of the rights of the parties.
(ii)
Supplementation. This
subsection supplements 1 Pa. Code §§ 35.27-35.36.
(e)
Continuances.
(1) The
Department hearing officer will consider a request for continuance if the
docket clerk is notified in writing of the grounds at least 10 days prior to
the date of the hearing. Continuances will be granted only for substantial or
compelling reasons, at the discretion of the Department hearing
officer.
(2) The Department hearing
officer will consider a request for continuance made less than 10 days prior to
the date of the hearing only if the Department hearing officer is satisfied
that circumstances relating to the requested continuance occurred within 10
calendar days of the hearing date.
(3) The requesting party shall seek the
agreement of the other parties to the proceeding prior to requesting the
continuance. The position of the opposing parties shall specifically be noted
in the continuance request. The hearing officer may refuse a request for
continuance regardless of the concurrence of all parties.
(f)
Depositions. The
testimony of a witness may be taken by deposition only upon application by a
party in a proceeding before the Department. The granting of an application for
depositions shall be entirely discretionary with the Department hearing officer
and will only be permitted for substantial and compelling reasons.
(g)
Request for a stay or
supersedeas.
(1)
Conditions
for grant. The Department hearing officer, upon written motion of a
party, may grant a request for a stay or supersedeas, provided the requesting
party can demonstrate to the satisfaction of the Department hearing officer:
(i) A likelihood of success on the merits of
the matter before the Department hearing officer.
(ii) Immediate and irreparable harm will
result from the failure to grant the stay or supersedeas.
(iii) Issuance of the stay or supersedeas
will not substantially harm other parties to the proceedings.
(iv) No other remedy is available.
(v) The moving party has given reasonable
notice of the request to all parties.
(2)
Requirement to provide
security. The hearing officer, at his discretion, may require a
non-Commonwealth party submitting a request for a stay or supersedeas to
provide a bond or other appropriate security, as determined by the Department
hearing officer, for the satisfaction of the order if it is affirmed or if for
any reason the appeal is dismissed, or for the satisfaction of any modification
of the order and in either case costs, interest and damages for delay that may
finally be awarded.
(3)
Memorandum in opposition. Any party to a proceeding may file
with the Office of the Docket Clerk a memorandum in opposition to a request for
a stay or supersedeas within 10 days of the filing of the request.
(h)
Dispositive
motions.
(1)
Dismissal. The Department hearing officer, on motion of a
party, may dismiss the action in whole or in part:
(i) Whenever there is no genuine issue of
material fact as to a necessary element of the cause of action or
defense.
(ii) For failure to
preserve the right to an appeal by a timely filing.
(iii) For mootness.
(iv) For any other reason appearing in the
record.
(2)
Supersession. This rule supersedes 1 Pa. Code §35.180 (relating to action on
motions).
(i)
Appeal to the Secretary of a hearing officer's order. Unless
otherwise provided by this chapter, any appeal from an order rendered by the
hearing officer shall be filed with the appropriate docket clerk within 30 days
of the date the order is entered.
(j)
Supplementation. This
section supplements 1 Pa. Code §35.123 (relating to the conduct of
hearings).
The provisions of this §491.6 issued under the
Administrative Agency Law,
2
Pa.C.S. §§ 501-508 and
701-704.
