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PRINTER'S NO. 972
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
774
Session of
2017
INTRODUCED BY ALLOWAY, FOLMER, RAFFERTY, MENSCH AND STEFANO,
JUNE 16, 2017
REFERRED TO STATE GOVERNMENT, JUNE 16, 2017
AN ACT
Amending Titles 2 (Administrative Law and Procedure), 4
(Amusements) and 13 (Commercial Code) of the Pennsylvania
Consolidated Statutes, extensively revising provisions on
practice and procedure of Commonwealth agencies; establishing
the Office of Administrative Hearings; extensively revising
provisions on judicial review of Commonwealth agency action;
making editorial changes; and making an appropriation.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 101 and 103 heading and subsection (a)
of Title 2 of the Pennsylvania Consolidated Statutes are amended
to read:
§ 101. Definitions.
Subject to additional definitions contained in subsequent
provisions of this title which are applicable to specific
provisions of this title, the following words and phrases when
used in this title shall have, unless the context clearly
indicates otherwise, the meanings given to them in this section:
"Adjudication." Any final order, decree, decision,
determination or ruling by an agency affecting personal or
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property rights, privileges, immunities, duties, liabilities or
obligations of any or all of the parties to the proceeding in
which the adjudication is made. The term does not include any
order [based upon a proceeding before a court or] which involves
the seizure or forfeiture of property, paroles, pardons or
releases from mental institutions.
"Adjudicative body." A Commonwealth agency comprised of a
board or commission which is authorized by law to conduct a
hearing and to issue an adjudication.
"Administrative appeal." An appeal from a subordinate
officer to an agency head or adjudicative board or commission.
"Administrative law judge." An individual appointed under
section 603(a) (relating to administrative law judges).
"Administrative proceeding." Any proceeding other than a
judicial proceeding, the outcome of which is required to be
based on a record or documentation prescribed by law or in which
law or regulation is [particularized in application to
individuals] applied to a party in a contested case. The term
includes an administrative appeal.
"Agency." A government agency.
"Agency action." Any of the following:
(1) An order.
(2) The failure to issue an order within a time required
by a statute other than this title or within a reasonable
time.
"Agency head." The individual in whom, or one or more
members of the body of individuals in which, the ultimate legal
authority of an agency is vested.
"Appeal." Includes proceedings on petition for review.
"Certified interpreter." A person who:
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(1) is readily able to interpret; and
(2) either:
(i) is certified by the Department of Labor and
Industry in accordance with Subchapter C of Chapter 5
(relating to administrative proceeding interpreters for
persons with limited English proficiency); or
(ii) is certified by the Department of Labor and
Industry in accordance with Subchapter D of Chapter 5
(relating to administrative proceeding interpreters for
persons who are deaf) or is registered with the
department pursuant to the act of July 2, 2004 (P.L.492,
No.57), known as the Sign Language Interpreter and
Transliterator State Registration Act.
"Commonwealth agency." Any executive agency or independent
agency.
"Commonwealth government." The government of the
Commonwealth, including the courts and other officers or
agencies of the unified judicial system, the General Assembly,
and its officers and agencies, the Governor, and the
departments, boards, commissions, authorities and officers and
agencies of the Commonwealth, but the term does not include any
political subdivision, municipal or other local authority, or
any officer or agency of any such political subdivision or local
authority.
"Contested case." An administrative proceeding in which an
opportunity to be heard is required by law.
"Court Administrator of Pennsylvania." The court
administrator appointed by the Supreme Court under section 10(b)
of Article V of the Constitution of Pennsylvania and 42 Pa.C.S.
§ 1901 (relating to Court Administrator of Pennsylvania).
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"Deaf." An impairment of hearing or speech which creates an
inability to understand or communicate the spoken English
language.
"Department." The Department of Labor and Industry of the
Commonwealth.
"Executive agency." The Governor and the departments,
boards, commissions, authorities and other officers and agencies
of the Commonwealth government, but the term does not include
any court or other officer or agency of the unified judicial
system, the General Assembly and its officers and agencies, or
any independent agency.
"Final decision maker." The person with the power to issue
an adjudication.
"Final order." The order issued:
(1) by the agency head sitting as the presiding officer
in a contested case;
(2) following the agency head review of a recommended
order; or
(3) by the presiding officer when the presiding officer
has been delegated final decisional authority with no
subsequent agency head review.
"General rule." As defined in 42 Pa.C.S. § 102 (relating to
definitions).
"Government agency." Any Commonwealth agency or any
political subdivision or municipal or other local authority, or
any officer or agency of any such political subdivision or local
authority.
"Government unit." The General Assembly and its officers and
agencies, any government agency or any court or other officer or
agency of the unified judicial system.
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"Hearing." An administrative proceeding on issues in which a
decision of the presiding officer may be made in a contested
case.
"Independent agency." Boards, commissions, authorities and
other agencies and officers of the Commonwealth government which
are not subject to the policy supervision and control of the
Governor, but the term does not include any court or other
officer or agency of the unified judicial system or the General
Assembly and its officers and agencies.
"Index." A searchable list of adjudications maintained by an
agency of the office under section 606 (relating to index of
adjudications).
"Interpret." Either one of the following:
(1) For purposes of Subchapter C of Chapter 5 (relating
to administrative proceeding interpreters for persons with
limited English proficiency), to convey spoken and written
English into the language of the person with limited English
proficiency and to convey oral and written statements by the
person into spoken English.
(2) For purposes of Subchapter D of Chapter 5 (relating
to administrative proceeding interpreters for persons who are
deaf), to convey spoken English in a manner understood by the
person who is deaf and to convey statements made by the
person who is deaf into English through, but not limited to,
American Sign Language and transliteration or the use of
computer-aided real-time captioning (CART) or similar
procedure.
"Interpreter." Includes both a certified interpreter and an
otherwise qualified interpreter.
"Judicial proceeding." An "action," "appeal" or "proceeding"
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in any "court" of this Commonwealth as those terms are defined
in 42 Pa.C.S. § 102 (relating to definitions).
"Limited ability to speak or understand English." The
ability to speak exclusively or primarily a language other than
English and the inability to sufficiently speak or understand
English.
"Local agency." A government agency other than a
Commonwealth agency.
"Matter." Action, proceeding or appeal.
"Office." The Office of Administrative Hearings established
in section 601 (relating to establishment and function).
"Otherwise qualified interpreter." A person who:
(1) For purposes of Subchapter C of Chapter 5 (relating
to administrative proceeding interpreters for persons with
limited English proficiency):
(i) is readily able to interpret; and
(ii) has read, understands and agrees to abide by
the code of professional conduct for administrative
proceeding interpreters for persons with limited English
proficiency as established by the Department of Labor and
Industry in accordance with Subchapter C of Chapter 5.
(2) For purposes of Subchapter D of Chapter 5 (relating
to administrative proceeding interpreters for persons who are
deaf):
(i) is readily able to interpret;
(ii) is certified by the National Association of the
Deaf, the Registry of Interpreters for the Deaf or
similar registry; and
(iii) has read, understands and agrees to abide by
the code of professional conduct for administrative
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proceeding interpreters for persons who are deaf as
established by the Department of Labor and Industry in
accordance with Subchapter D of Chapter 5.
"Party." Any person [who] that appears in a proceeding
[before an agency who] and has a direct interest in the subject
matter of [such proceeding] an agency action.
"Person." Includes a government unit [or an agency of the
Federal Government].
"Person who is deaf." A party or witness who is deaf.
"Person with limited English proficiency." A party or a
witness who has limited ability to speak or understand English.
"Presiding officer." An individual [appointed by an agency
to preside] who presides at an administrative proceeding.
"Proceeding." A formal or informal agency process commenced
or conducted by an agency.
"Recommended order." An order which:
(1) is issued by a presiding officer without final
decisional authority; and
(2) is subject to review by the agency head.
"Transliteration." To convey spoken or written English in an
English-based sign system and the process of conveying an
English-based sign system in spoken or written English.
"Witness." A person who testifies in a proceeding before an
agency.
§ 103. [Administrative Agency Law.] Administrative Procedure
Act.
(a) General rule.--The provisions of Subchapter A of Chapter
5 (relating to practice and procedure of Commonwealth agencies)
and Subchapter A of Chapter 7 (relating to judicial review of
Commonwealth agency action) shall be known and may be cited as
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the ["Administrative Agency Law."] Administrative Procedure Act.
* * *
Section 2. Subchapter A of Chapter 5 of Title 2 is amended
to read:
SUBCHAPTER A
PRACTICE AND PROCEDURE OF
COMMONWEALTH AGENCIES
[Sec.
501. Scope of subchapter.
502. Representation.
503. Discipline.
504. Hearing and record.
505. Evidence and cross-examination.
506. Briefs and oral argument.
507. Contents and service of adjudications.
508. Notice to Department of Justice.
§ 501. Scope of subchapter.
(a) General rule.--Except as provided in subsection (b),
this subchapter shall apply to all Commonwealth agencies.
(b) Exception.--None of the provisions of this subchapter
shall apply to:
(1) Proceedings before the Department of Revenue,
Auditor General or Board of Finance and Revenue, involving
the original settlement, assessment or determination or
resettlement, reassessment or redetermination, review or
refund of taxes, interest or payments made into the
Commonwealth treasury.
(2) Proceedings before the Secretary of the Commonwealth
under the act of June 3, 1937 (P.L.1333, No.320), known as
the Pennsylvania Election Code.
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(3) Proceedings before the Department of Transportation
involving matters reviewable under 42 Pa.C.S. § 933 (relating
to appeals from government agencies).
(4) Proceedings before the State System of Higher
Education involving student discipline.
§ 502. Representation.
Any party may be represented before a Commonwealth agency.
§ 503. Discipline.
Any Commonwealth agency may, upon hearing and good cause
shown, preclude any person from practice before it.
§ 504. Hearing and record.
No adjudication of a Commonwealth agency shall be valid as to
any party unless he shall have been afforded reasonable notice
of a hearing and an opportunity to be heard. All testimony shall
be stenographically recorded and a full and complete record
shall be kept of the proceedings.
§ 505. Evidence and cross-examination.
Commonwealth agencies shall not be bound by technical rules
of evidence at agency hearings, and all relevant evidence of
reasonably probative value may be received. Reasonable
examination and cross-examination shall be permitted.
§ 506. Briefs and oral argument.
All parties shall be afforded opportunity to submit briefs
prior to adjudication by a Commonwealth agency. Oral argument
upon substantial issues may be heard by the agency.
§ 507. Contents and service of adjudications.
All adjudications of a Commonwealth agency shall be in
writing, shall contain findings and the reasons for the
adjudication, and shall be served upon all parties or their
counsel personally, or by mail.
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§ 508. Notice to Department of Justice.
Before notice of any hearing leading to an adjudication is
given by a Commonwealth agency (except the Pennsylvania Public
Utility Commission), the agency shall submit the matter to its
representative in the Department of Justice who shall pass upon
the legality of the proposed action or defense. Failure of the
agency to submit the matter to the department shall not
invalidate any adjudication.]
Sec.
501. S cope of subchapter.
502. Presiding officer.
503. Procedure.
504. Evidence.
505. Notice.
506. Emergency adjudication procedure.
507. Ex parte communications.
508. Absent parties.
509. Decisions and orders.
510. Reconsideration.
511. Stays pending appeal.
§ 501. Scope of subchapter.
(a) Eligibility.--This subchapter applies to an
administrative proceeding by a Commonwealth agency.
(b) Notice and hearing.--No adjudication of a Commonwealth
agency shall be valid as to a person unless the person has been
afforded reasonable notice of a hearing and an opportunity to be
heard under this subchapter.
(c) Exceptions.--This subchapter does not apply to any of
the following:
(1) Proceedings before the Department of Transportation
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involving matters reviewable under 42 Pa.C.S. § 933 (relating
to appeals from government agencies).
(2) Proceedings before the State System of Higher
Education involving student discipline.
§ 502. Presiding officer.
(a) Eligibility.--A presiding officer must be one of the
following:
(1) An administrative law judge.
(2) An agency head.
(3) One or more members of an adjudicative body.
(b) Prior involvement.--
(1) This subsection applies to an individual who:
(i) at any stage in a matter subject to an
adjudication, has served as investigator, prosecutor or
advocate; or
(ii) is subject to the authority, direction or
discretion of an individual identified in subparagraph
(i).
(2) Except as specified in paragraph (3), an individual
under paragraph (1) may not serve as the presiding officer in
an administrative proceeding related to the matter.
(3) An agency head who has participated in a
determination of probable cause or other preliminary
determination in an administrative proceeding may serve as
presiding officer or final decision maker in the
administrative proceeding unless a party demonstrates grounds
for disqualification under subsection (c).
(c) Disqualification.--
(1) Except as specified in subsection (g), a presiding
officer or agency head is subject to disqualification for:
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(i) bias;
(ii) prejudice;
(iii) financial interest;
(iv) violation of section 507 (relating to ex parte
communications); or
(v) any other factor which would cause a reasonable
person to question the impartiality of the presiding
officer or agency head.
(2) A presiding officer or agency head, after making a
reasonable inquiry, shall disclose to the parties any known
facts related to grounds for disqualification which are
material to the impartiality of the presiding officer or
agency head in the proceeding.
(d) Petition for disqualification.--
(1) A party must petition for disqualification of a
presiding officer or an agency head upon:
(i) notice that the individual will preside; or
(ii) discovering facts establishing a ground for
disqualification.
(2) The petition must state with particularity the
grounds on which it is claimed that a fair and impartial
hearing cannot be accorded or the applicable rule or canon of
practice or ethics that requires disqualification.
(3) The petition may be denied if the party fails to
exercise due diligence in requesting disqualification after
discovering a ground for disqualification.
(e) Decision on disqualification.--A presiding officer or an
agency head whose disqualification is requested shall decide
whether to grant the petition and state in a record facts and
reasons for the decision. The decision to deny disqualification
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is not subject to interlocutory judicial review.
(f) Substitute presiding officer.--If a presiding officer is
disqualified or becomes unavailable, a substitute presiding
officer shall be appointed as required by law or, if no law
governs, by:
(1) the Governor if the original presiding officer is an
elected official; or
(2) the appointing authority if the original presiding
officer is an appointed official.
(g) Participation of agency head.--If participation of the
agency head is necessary to enable the agency to take action,
the agency head may continue to participate notwithstanding a
ground for disqualification or exclusion.
(h) Powers.--A presiding officer may do all of the
following:
(1) Regulate the course of hearings, including:
(i) the scheduling of hearings;
(ii) the recessing, reconvening and adjournment of
hearings; and
(iii) the conduct of parties, attorneys, witnesses
and others in attendance at a hearing.
(2) Administer oaths and affirmations.
(3) Issue subpoenas for witnesses and documents at
hearings or in discovery.
(4) Rule upon offers of proof and to receive evidence.
(5) Take or cause depositions to be taken.
(6) Hold appropriate conferences before or during
hearings.
(7) Dispose of procedural matters and motions.
(8) If the presiding officer is not the agency head:
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(i) certify a question to the agency head for
consideration and disposition; and
(ii) submit final or recommended decisions under
section 509(a) (relating to decisions and orders).
(9) Impose sanctions for:
(i) misconduct at the hearing; or
(ii) a violation of procedural orders, including
subpoenas and orders for depositions and discovery.
(10) Take other action necessary or appropriate to the
discharge of the duties vested in a presiding officer,
consistent with the law under which the agency functions.
(i) Delegation.--
(1) An agency head or adjudicative body may delegate the
function of a presiding officer to an administrative law
judge.
(2) The delegation shall specify whether the
administrative law judge is authorized to issue a recommended
or a final order.
(3) The administrative law judge may not exercise any
authority required by law to be performed by the agency head
or adjudicative body.
§ 503. Procedure.
(a) Scope of section.--This section does not apply to an
administrative proceeding under section 506 (relating to
emergency adjudication procedure).
(b) Notice.--
(1) An agency shall give notice to a person of an agency
action as to which the person has a right to a hearing.
(2) The notice must:
(i) be in writing;
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(ii) describe the agency action; and
(iii) inform the person of the right, procedure and
time limit to file a pleading.
(c) Authority of presiding officer.--
(1) The presiding officer shall give all parties a
timely opportunity to present pleadings, motions and
objections.
(2) The presiding officer may give all parties the
opportunity to file:
(i) briefs;
(ii) proposed findings of fact and conclusions of
law; and
(iii) proposed recommended orders and final orders.
(3) The presiding officer, with the consent of all
parties, may refer the parties in an adjudication to
mediation or other dispute resolution procedure.
(d) Duty of presiding officer.--To the extent necessary for
full disclosure of all relevant facts and issues, the presiding
officer shall give all parties the opportunity to present the
party's case, including all of the following:
(1) Filing documents.
(2) Presenting evidence and argument.
(3) Examining and cross-examining witnesses.
(e) Conduct of hearing.--Except as otherwise provided by law
other than this title:
(1) Subject to paragraph (2), the presiding officer may
conduct all or part of an evidentiary hearing or a prehearing
conference by telephone, television, video conference or
other electronic means.
(2) The hearing may be conducted by telephone or other
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method by which witnesses may not be seen only if:
(i) all parties consent; or
(ii) if directed by the presiding officer. The
presiding officer must consider whether the method will
impair the reliability of the determinations of the
credibility.
(3) Each party shall be given an opportunity to attend,
hear and be heard at the proceeding as it occurs.
(f) Open to public.--Except as otherwise provided in
subsection (g), a hearing shall be open to the public. A hearing
conducted by telephone, television, video conference or other
electronic means is open to the public if members of the public
have an opportunity to attend the hearing at the place where the
presiding officer is located or to hear the proceeding as it
occurs.
(g) Closed to public.--The presiding officer may close a
hearing to the public:
(1) on a ground on which a court could close a judicial
proceeding to the public; or
(2) under a statute other than this title.
(h) Representation.--
(1) A party may be represented by an attorney at law at
the party's expense.
(2) A party may be advised or accompanied by an
individual who is not an attorney at law.
(i) Hearing record.--
(1) The presiding officer shall ensure that a hearing
record is established. The hearing record must contain all of
the following:
(i) A recording of the administrative proceeding.
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(ii) Notice of the administrative proceeding.
(iii) A prehearing order.
(iv) A motion, pleading, brief, petition, request
and intermediate ruling.
(v) Evidence admitted.
(vi) A statement of matters officially noticed under
section 504(b)(9) (relating to evidence).
(vii) An offer of proof under section 504(b)(4).
(viii) A proposed finding, requested order and
exception.
(ix) A transcript under paragraph (2).
(x) A recommended order, final order and order on
reconsideration.
(xi) A matter under section 507(g) or (h) (relating
to ex parte communications).
(2) An agency may prepare a transcript of the
administrative proceeding.
(3) The agency must maintain the hearing record as part
of the agency's record.
(j) Basis of decision.--
(1) An adjudication must be based on the hearing record
and contain a statement of the factual and legal bases of the
decision. This paragraph requires:
(i) Separately enumerated findings of fact, with
citations to the hearing record, and the factors
considered in evaluating evidence as described in section
504(b)(10). If a finding of fact is described in language
of a statute other than this title, it must be
accompanied by an explicit statement of the underlying
facts supporting the finding of fact.
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(ii) Legal analysis, with citation to applicable
legal authority.
(iii) Separately enumerated conclusions of law.
(iv) An order.
(2) The adjudication:
(i) shall be issued in writing; and
(ii) if a party consents, may be issued
electronically to the party.
(k) Protection of party rights.--Regulations promulgated by
a Commonwealth agency or the chief administrative law judge to
implement this subchapter may include provisions more protective
than the requirements of this section of the rights of parties
other than the agency.
(l) Case disposition.--Unless prohibited by statute other
than this title, a presiding officer may dispose of an
administrative proceeding without a hearing by:
(1) stipulation;
(2) agreed settlement or consent order;
(3) default;
(4) withdrawal; or
(5) dismissal or summary relief.
§ 504. Evidence.
(a) Rules.-- In an administrative proceeding:
(1) the Pennsylvania Rules of Evidence do not apply; and
(2) all relevant evidence of reasonably probative value
may be received.
(b) Admissibility.--
(1) Except as specified in paragraph (2), all relevant
evidence is admissible, including hearsay evidence, if it is
of a type commonly relied on by a reasonably prudent
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individual in the conduct of the affairs of the individual.
(2) Evidence may be ruled inadmissible if the evidence:
(i) Is irrelevant, immaterial or unduly repetitious.
(ii) Is excludable on:
(A) constitutional grounds;
(B) statutory grounds; or
(C) the basis of a judicially recognized
evidentiary privilege.
(3) The presiding officer:
(i) shall rule evidence inadmissible under paragraph
(2) if objection is made at the time the evidence is
offered; and
(ii) may rule evidence under paragraph (2)
inadmissible in the absence of an objection.
(4) If the presiding officer rules evidence inadmissible
under paragraph (3), the offering party may make an offer of
proof before further evidence is presented or at a later time
determined by the presiding officer.
(5) Evidence may be received in a hearing record if
doing so will expedite the hearing without substantial
prejudice to a party. Documentary evidence may be received in
the form of a copy if the original is not readily available
or by incorporation by reference. On request, parties shall
be given an opportunity to compare the copy with the
original.
(6) Testimony shall be made under oath or affirmation.
(7) Evidence shall be made part of the hearing record.
Information or evidence may not be considered in determining
the case unless it is part of the hearing record.
(8) If the hearing record contains confidential
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information, the presiding officer may do all of the
following:
(i) Conduct a closed hearing to discuss the
information.
(ii) Issue a necessary protective order.
(iii) Seal all or part of the hearing record.
(9) The presiding officer may take official notice of
facts of which judicial notice may be taken and of
scientific, technical or other facts within the specialized
knowledge of the agency. The presiding officer shall notify
the parties at the earliest practicable time of the facts
proposed to be noticed and their source, including staff
memoranda or data. Each party shall be afforded an
opportunity to contest an officially noticed fact before the
decision becomes final.
(10) The experience, technical competence and
specialized knowledge of the presiding officer may be used in
evaluating the evidence in the hearing record.
(c) Hearsay evidence.--
(1) Hearsay evidence is not competent evidence to
support a finding of fact if it is properly objected to.
(2) Hearsay evidence that is admitted without objection
will be given its natural probative effect and may support a
finding of fact if it is corroborated by competent evidence,
but a finding of fact may not be based solely on hearsay
evidence.
§ 505. Notice.
(a) Requirement.--Except as otherwise specified in section
506 (relating to emergency adjudication procedure), an agency
shall give notice which complies with this section.
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(b) Contents.--
(1) In an administrative proceeding initiated by a
person other than an agency, not later than five days after
filing, the agency shall give notice to all parties that the
case has been commenced. The notice must contain all of the
following:
(i) Docketing information of the administrative
proceeding and a general description of the subject
matter.
(ii) Contact information for communicating with the
agency.
(iii) Name, official title and contact information
of the attorney or employee who has been designated to
represent the agency.
(iv) Names and last known addresses of all parties
and other persons that are being given actual notice by
the agency.
(2) In an administrative proceeding initiated by an
agency, the agency shall give notice to the person against
which the action is brought. The notice must contain all of
the following:
(i) A statement that a case that may result in an
order has been commenced against the party.
(ii) A statement of the matters asserted and the
issues involved.
(iii) A statement of the legal authority under which
the hearing will be held, citing statutes and regulations
involved.
(iv) Docketing information of the administrative
proceeding.
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(v) Name, official title and contact information of
the presiding officer and of the agency's representative.
(vi) A statement that a party that fails to attend
or participate in a proceeding in the case may be held in
default.
(vii) A statement that the party served may request
a hearing and instructions about how to request a
hearing.
(viii) Names and last known addresses of all parties
and other persons that are being given actual notice by
the agency.
(3) A notice under this subsection may include other
matters that the agency or presiding officer considers
desirable to expedite the proceedings.
(c) Time.--The agency must give parties notice under this
section at least 30 days before a hearing or prehearing
conference.
§ 506. Emergency adjudication procedure.
(a) Authorization.--Unless prohibited by statute other than
this title, an agency may conduct an emergency proceeding under
this section.
(b) Justification.--An agency may take action and issue an
order under this section only to deal with an imminent peril to
the public health, safety or welfare.
(c) Due process.--Before issuing an order under this
section, an agency, if practicable, must give notice and an
opportunity to be heard to the person to which the agency action
is directed. The notice of the hearing and the hearing may be
oral or written and may be by telephone, facsimile or other
electronic means.
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(d) Order.--
(1) An order issued under this section must briefly
explain the factual and legal reasons for using emergency
adjudication procedures.
(2) An agency must give notice to the person to whom the
agency action is directed that an order has been issued.
(e) Hearing.--After issuing an order under this section, an
agency shall proceed as soon as practicable to provide notice
and an opportunity for a hearing following the procedure under
section 503 (relating to procedure) to determine the issues
underlying the order.
(f) Effectiveness.--
(1) An order under this section takes effect when signed
by the agency head or the designee of the agency head.
(2) Subject to section 511 (relating to stays pending
appeal), an order issued under this section terminates upon
the earlier of:
(i) 180 days after it takes effect under paragraph
(1); or
(ii) the termination date specified in the order.
§ 507. Ex parte communications.
(a) S cope of section.--For the purpose of this section, an
administrative proceeding is pending from the issuance of notice
under section 505 (relating to notice).
(b) Due process.--When an administrative proceeding is
pending, except as specified in subsection (c), (d), (e) or (f),
the presiding officer or final decision maker may not
communicate with a person concerning the case without notice and
opportunity for all parties to participate in the communication.
(c) Multimember body.--If a presiding officer is a member of
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a multimember body of individuals who constitute the final
decision maker, the presiding officer may communicate with the
other members of that body when sitting as the presiding officer
and final decision maker.
(d) Statutory authorization or uncontested procedure.--A
presiding officer or final decision maker may communicate about
a pending administrative proceeding if any of the following
apply:
(1) The communication is required for the disposition of
ex parte matters authorized by law.
(2) The communication concerns an uncontested procedural
issue.
(e) Legal and ministerial communications.--A presiding
officer or final decision maker may communicate about a pending
administrative proceeding if all of the following paragraphs
apply:
(1) The communication is:
(i) on legal issues, with an individual authorized
by law to provide legal advice to the presiding officer
or final decision maker; or
(ii) on ministerial matters with an individual who
serves on the administrative staff of the presiding
officer or final decision maker.
(2) The individual referred to in paragraph (1) has not
served as investigator, prosecutor, advocate or advisor
related to the matter.
(f) Staff communications.--An agency head who is the
presiding officer or final decision maker in a pending
administrative proceeding may communicate about that matter with
an employee or representative of the agency if all of the
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following paragraphs apply:
(1) The employee or representative has not served and
will be precluded from serving as investigator, prosecutor,
advocate or witness relating to the matter.
(2) The employee or representative has not otherwise had
a communication with a person about the case other than a
communication authorized under subsection (d) or (e) or this
subsection.
(3) The communication is an explanation of:
(i) the technical or scientific basis of, or
technical or scientific terms in, the evidence in the
hearing record; or
(ii) the precedent, policies or procedures of the
agency.
(g) Disclosure.--If a presiding officer or final decision
maker makes or receives a communication in violation of this
section, the presiding officer shall disclose it to the parties.
(h) Response.--If a communication prohibited by this section
is made, the presiding officer or final decision maker shall
permit parties to respond to the prohibited communication.
(i) Remedial action.--The presiding officer or final
decision maker may be disqualified under section 502(c)
(relating to presiding officer) if the presiding officer or
final decision maker is culpable in participating in the
prohibited communication. Other appropriate relief may be
granted, including an adverse ruling on the merits of the case
against a party or agency that culpably participated in the
prohibited communication.
§ 508. Absent parties.
(a) A uthorization.--Unless otherwise provided by statute
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other than this title, if a party without good cause fails to
attend or participate in a prehearing conference or hearing in
an administrative proceeding, the presiding officer:
(1) may conduct further proceedings necessary to
complete the adjudication without the absent party; and
(2) shall determine all issues in the administrative
proceeding, including those affecting the absent party.
(b) Basis of order.--
(1) An order issued against the party must be based on
the party's admissions or other evidence which may be used
without notice to the party.
(2) If the burden of proof is on the absent party to
establish that the party is entitled to the agency action
sought, the presiding officer may issue an order without
taking evidence.
(c) Vacation of order.--
(1) Not later than 30 days after notice to a party that
an order has been issued under subsection (a), the party may
petition the presiding officer to vacate the order.
(2) Upon consideration of a petition submitted under
paragraph (1), the presiding officer may vacate the order
upon a showing of good cause for the party's failure to
appear.
§ 509. Decisions and o rders.
(a) Filing recommended decision.--If the presiding officer
is not delegated final decision-making authority by the agency
head, the presiding officer shall file and serve on the parties
and the agency head a recommended decision and a list of all
documents and other evidence submitted by the parties and made
part of the hearing record. A recommended decision shall
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include:
(1) findings of fact;
(2) analysis of the issues;
(3) conclusions of law with citation to legal authority;
and
(4) a proposed order.
(b) Procedure after recommended decision.--
(1) A party must file with the agency head exceptions to
the recommended decision no later than 30 days after the
filing date of the recommended decision. The exceptions must
be served on any other party and the presiding officer.
(2) Exceptions must specify the errors in the presiding
officer's recommended decision. Exceptions must be
accompanied by a brief.
(3) A response to the exceptions must be filed and
served on the other party and the presiding officer within 14
days of the filing date of the exceptions. The time for
response may be extended by agreement of the parties with the
approval of the agency head. A response must be accompanied
by a brief.
(4) Within 30 days of the filing of the recommended
decision, the presiding officer shall file with the agency
head the record of the proceeding.
(5) If exceptions are filed, the agency head may:
(i) adopt or modify the recommended decision in
whole or in part; or
(ii) recommit the matter to the presiding officer
with instructions.
(6) If the agency head does not adopt a finding of fact
made by the presiding officer or modifies a finding of fact
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made by the presiding officer, the agency head shall describe
the reasons for the action in the final decision. In
reviewing findings of fact in a recommended decision, the
agency head shall consider the presiding officer's
opportunity to observe the witnesses and to determine the
credibility of the witnesses.
(7) Upon review of exceptions or if no exceptions are
filed, the agency head shall:
(i) Act under paragraph (5).
(ii) Issue an adjudication which may:
(A) adopt the recommended decision; or
(B) state that, in the absence of exceptions,
the recommended decision is entered as the agency
head's final order.
(8) Findings of fact and conclusions of law in a
presiding officer's recommended decision are not controlling
in a subsequent proceeding unless expressly adopted by the
agency head.
(9) Unless otherwise ordered by the agency head, failure
to file a timely exception to a finding of fact or conclusion
of law in a recommended decision adopted without material
modification shall be deemed a waiver of further appeal as to
that finding or conclusion.
(c) Final orders.--The presiding officer shall issue a final
order if the presiding officer:
(1) is the agency head; or
(2) has been delegated final decision-making authority.
(d) Issuance of orders.--An order is issued under this
section when it is signed by the agency head, the presiding
officer or an individual authorized by statute other than this
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title.
(e) Service.--
(1) Except as specified in paragraph (2), a recommended
order or final order shall be served in a hearing record on
each party and the agency head within 90 days of the later
of:
(i) the end of the hearing;
(ii) the closing of the hearing record; or
(iii) the last date for submission of memoranda,
briefs or proposed findings.
(2) The presiding officer may extend the time under
paragraph (1) by stipulation, waiver or a finding of good
cause.
(f) Effective date of final order.--
(1) Except as specified in paragraph (2), a final order
is effective 30 days after all parties are notified of the
order.
(2) Paragraph (1) does not apply if action is taken
under:
(i) section 510 (relating to reconsideration); or
(ii) section 511 (relating to stays pending appeal).
§ 510. Reconsideration.
(a) Petition for reconsideration.--A party may seek
reconsideration by filing a petition stating the specific
grounds on which relief is requested within 15 days after notice
to the parties that a final order has been issued.
(b) Time for filing petition for judicial review.--
(1) If the conditions in paragraph (2) are met, the time
for filing a petition for judicial review begins when the
agency disposes of the petition for reconsideration.
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(2) Paragraph (1) applies if all of the following apply:
(i) A petition for reconsideration is timely filed.
(ii) The petitioner has complied with the agency's
procedural regulations for reconsideration.
(c) Order maker.--Not later than 20 days after a petition is
filed under subsection (a), the decision maker shall issue a
written order doing one of the following:
(1) Denying the petition.
(2) Granting the petition. An order under this
paragraph:
(i) must state findings of facts, conclusions of law
and the reasons for granting the petition; and
(ii) shall:
(A) dissolve or modify the final order; or
(B) set the matter for further proceedings.
(d) Deemed denial.--If the decision maker fails to respond
to the petition within the time period under subsection (c), the
petition is deemed denied.
§ 511. Stays pending appeal.
(a) Request.--Except as otherwise provided by statute other
than this title, a party may request the agency head to stay a
final order pending judicial review. The request must be made
not later than seven days after the parties are notified of the
order.
(b) Grant.--The agency head may grant the request for a stay
pending judicial review if all of the following apply:
(1) The party demonstrates a strong likelihood of
success on the merits of the appeal.
(2) The denial of the stay will cause irreparable harm.
(3) The stay will not substantially harm other
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interested parties.
(4) The stay will not substantially harm the public
interest.
(c) Appellate review.--The agency head may take other action
authorized by Pa.R.A.P. Ch. 17 (relating to effect of appeals;
supersedeas and stays).
Section 3. Title 2 is amended by adding a chapter to read:
CHAPTER 6
OFFICE OF ADMINISTRATIVE HEARINGS
Sec.
601. Establishment and function.
602. Organization.
603. Administrative law judges.
604. Chief administrative law judge.
605. Cooperation.
606. Index of adjudications.
§ 601. Establishment and function.
(a) E stablishment.--The Office of Administrative Hearings is
established as an independent office in the Executive
Department.
(b) Function.--The office shall administer all
administrative proceedings unless the agency head or an
adjudicative board or commission that is not an agency head
hears the matter without delegation or assignment. If a matter
is heard without delegation or assignment, a multimember agency
head or an adjudicative board or commission may designate a
member to be the presiding officer.
§ 602. Organization.
(a) C hief administrative law judge.--The powers and duties
of the office shall be vested in a chief administrative law
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judge appointed by the Governor with the advice and consent of
two-thirds of the members elected to the Senate.
(b) Qualifications.--The chief administrative law judge must
meet all of the following:
(1) Have been an attorney at law for at least five
years.
(2) Be an attorney at law in good standing with the
Supreme Court.
(3) Have substantial experience in administrative law.
(c) Tenure.--
(1) The chief administrative law judge shall serve a
term of five years and until a successor is appointed and
qualifies for office.
(2) A chief administrative law judge may be reappointed
subject to confirmation under subsection (a).
(3) The chief administrative law judge may be removed
from office only for cause. A removal may be contested by a
petition for review which has been filed within 30 days under
42 Pa.C.S. § 761(a)(1) (relating to original jurisdiction).
(d) Salary.--The salary of the chief administrative law
judge shall be set under section 709(a) of the act of April 9,
1929 (P.L.177, No.175), known as The Administrative Code of
1929.
(e) Obligations.--
(1) The chief administrative law judge shall devote full
time to the duties of the office and may not engage in the
private practice of law.
(2) The chief administrative law judge is subject to the
code of conduct under section 604(a)(7)(i) (relating to chief
administrative law judge).
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(f) Oath.--The chief administrative law judge must take the
oath of office required by law before beginning duties as an
administrative law judge.
(g) Deputies and acting chief.--
(1) The chief administrative law judge may designate
administrative law judges as deputy chief administrative law
judges.
(2) If a vacancy occurs in the office of chief
administrative law judge, the Governor shall designate in
writing an administrative law judge to exercise the powers
and perform the duties of chief administrative law judge
until the vacancy is filled.
§ 603. Administrative law judges.
(a) Appointment.--
(1) The chief administrative law judge shall appoint
administrative law judges.
(2) An administrative law judge is a management employee
subject to the administrative supervision of the chief
administrative law judge and may be removed only for cause.
(b) Qualifications.--To be eligible for appointment as an
administrative law judge, an individual must meet all of the
following:
(1) Have been an attorney at law for at least five
years.
(2) Be an attorney at law in good standing with the
Supreme Court.
(3) Have substantial experience in administrative law.
(c) Oath.--An administrative law judge must take the oath of
office required by law before beginning duties as an
administrative law judge.
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(d) Code of conduct.--An administrative law judge is subject
to the code of conduct for administrative law judges adopted
under section 604(a)(7)(i) (relating to chief administrative law
judge).
(e) Compensation.--An administrative law judge is entitled
to the compensation set under section 709(a) of the act of April
9, 1929 (P.L.177, No.175), known as The Administrative Code of
1929.
(f) Powers and duties.--
(1) In an administrative proceeding, the following
apply:
(i) The chief administrative law judge shall assign
an administrative law judge to be the presiding officer.
(ii) If the administrative law judge is delegated
final decisional authority, the administrative law judge
shall issue a final order.
(iii) If the administrative law judge is not
delegated final decisional authority, the administrative
law judge shall issue to the agency head a recommended
order in the administrative proceeding.
(2) Except as otherwise provided by statute other than
this chapter, if an administrative proceeding is referred to
the office by an agency, the agency may not take further
action with respect to the proceeding, except as a party,
until a final order is issued.
(3) An administrative law judge may perform duties
authorized by statute other than this chapter.
§ 604. Chief administrative law judge.
(a) Powers and duties.--The chief administrative law judge
has the following powers and duties:
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(1) S upervise and manage the office.
(2) Serve as an administrative law judge in an
administrative proceeding.
(3) Assign an administrative law judge in an
administrative proceeding.
(4) Assure the decisional independence of each
administrative law judge.
(5) Establish and implement standards for equipment,
supplies and technology for administrative law judges.
(6) Provide and coordinate continuing education programs
and services for administrative law judges and advise them of
changes in the law concerning their duties.
(7) Promulgate regulations to implement this chapter,
including the following:
(i) A code of conduct for administrative law judges.
(ii) General rules of administrative practice and
procedure governing administrative proceedings before
administrative law judges.
(8) Adopt policy statements on administrative hearings.
(9) Set reasonable filing fees to cover the
administrative expenses of the office. Fees under this
paragraph shall not be charged to:
(i) Commonwealth agencies; or
(ii) petitioners who are determined by the office to
be unable to pay the fees.
(10) Monitor the work of administrative law judges and
discipline administrative law judges who do not meet
appropriate standards of conduct and competence.
(11) Establish necessary classifications for case
assignment on the basis of subject matter, expertise and case
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complexity.
(12) Accept money for the benefit of the office and
deposit the money into the State Treasury subject to future
appropriation.
(13) Contract with other Commonwealth agencies for
services provided by the office.
(14) Furnish administrative law judges on a contractual
basis to political subdivisions and municipal authorities and
instrumentalities.
(15) Appoint a chief counsel and assistant counsel.
Section 301 of the act of October 15, 1980 (P.L.950, No.164),
known as the Commonwealth Attorneys Act, does not apply to
the office.
(16) Create and maintain a public docket of
administrative proceedings administered by the office.
(b) Report.--The chief administrative law judge shall submit
an annual report on the activities of the office to the
Governor, the Secretary of the Senate and the Chief Clerk of the
House of Representatives.
§ 605. Cooperation.
Commonwealth agencies shall cooperate with the chief
administrative law judge in the discharge of the duties of the
office.
§ 606. Index of adjudications.
(a) Index.--
(1) Except as specified in subsection (b), the office
shall create an index of adjudications and make the index and
the adjudications available to the public. Reasonable costs
may be charged.
(2) The index shall be searchable in a manner that
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permits public access.
(b) Records not included in index.--
(1) Except as specified in paragraph (2), an
adjudication which is exempt, privileged or otherwise made
confidential or protected from disclosure by the act of
February 14, 2008 (P.L.6, No.3), known as the Right-to-Know
Law, is not a public record and may not be indexed. An
adjudication under this paragraph shall be excluded from an
index and disclosed only by order of the agency head with a
written statement of reasons attached to the order.
(2) If the agency head determines it is possible to
redact an adjudication which is exempt, privileged or
otherwise made confidential or protected from disclosure by
statute other than this title so that it complies with
applicable law, the redacted adjudication may be placed in
the index and published.
Section 4. Subchapter A of Chapter 7 of Title 2 is amended
to read:
SUBCHAPTER A
JUDICIAL REVIEW OF COMMONWEALTH
AGENCY ACTION
[Sec.
701. Scope of subchapter.
702. Appeals.
703. Scope of review.
704. Disposition of appeal.
§ 701. Scope of subchapter.
(a) General rule.--Except as provided in subsection (b),
this subchapter shall apply to all Commonwealth agencies
regardless of the fact that a statute expressly provides that
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there shall be no appeal from an adjudication of an agency, or
that the adjudication of an agency shall be final or conclusive,
or shall not be subject to review.
(b) Exceptions.--None of the provisions of this subchapter
shall apply to:
(1) Any matter which is exempt from Subchapter A of
Chapter 5 (relating to practice and procedure of Commonwealth
agencies).
(2) Any appeal from a Commonwealth agency which may be
taken initially to the courts of common pleas under 42
Pa.C.S. § 933 (relating to appeals from government agencies).
§ 702. Appeals.
Any person aggrieved by an adjudication of a Commonwealth
agency who has a direct interest in such adjudication shall have
the right to appeal therefrom to the court vested with
jurisdiction of such appeals by or pursuant to Title 42
(relating to judiciary and judicial procedure).
§ 703. Scope of review.
(a) General rule.--A party who proceeded before a
Commonwealth agency under the terms of a particular statute
shall not be precluded from questioning the validity of the
statute in the appeal, but such party may not raise upon appeal
any other question not raised before the agency (notwithstanding
the fact that the agency may not be competent to resolve such
question) unless allowed by the court upon due cause shown.
(b) Equitable relief.--The remedy at law provided by
subsection (a) shall not in any manner impair the right to
equitable relief heretofore existing, and such right to
equitable relief is hereby continued notwithstanding the
provisions of subsection (a).
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§ 704. Disposition of appeal.
The court shall hear the appeal without a jury on the record
certified by the Commonwealth agency. After hearing, the court
shall affirm the adjudication unless it shall find that the
adjudication is in violation of the constitutional rights of the
appellant, or is not in accordance with law, or that the
provisions of Subchapter A of Chapter 5 (relating to practice
and procedure of Commonwealth agencies) have been violated in
the proceedings before the agency, or that any finding of fact
made by the agency and necessary to support its adjudication is
not supported by substantial evidence. If the adjudication is
not affirmed, the court may enter any order authorized by 42
Pa.C.S. § 706 (relating to disposition of appeals).]
Sec.
701. Scope of subchapter.
702. Standing.
703. Preservation of issues.
704. Disposition of appeal.
705. Time limitation.
706. Stays pending appeal.
707. Exhaustion of administrative remedies.
§ 701. Scope of subchapter.
(a) Coverage.-- Except as specified in subsection (b), this
subchapter shall apply to adjudications of Commonwealth agencies
regardless of an express statutory provision:
(1) precluding appeal or review; or
(2) declaring an adjudication final or conclusive.
(b) Exceptions.--This subchapter does not apply to any of
the following:
(1) A matter which is exempt under section 501(c)
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(relating to scope of subchapter).
(2) An appeal from a Commonwealth agency which may be
taken initially to the courts of common pleas under 42
Pa.C.S. § 933(a)(1) (relating to appeals from government
agencies).
§ 702. Standing.
A p erson aggrieved by an adjudication of a Commonwealth
agency that has a direct interest in the adjudication may appeal
from the agency under 42 Pa.C.S. § 763(a)(1) (relating to direct
appeals from government agencies).
§ 703. Preservation of issues.
(a) Waiver.--Except as specified in subsection (b), a party
must raise an issue before the Commonwealth agency in order to
preserve the issue for appeal.
(b) Exceptions.--
(1) A party that proceeded before a Commonwealth agency
under a particular statute may challenge the statute's
validity in the appeal.
(2) The court, for cause shown, may allow a party to
raise on appeal an issue not raised before the Commonwealth
agency.
(c) Equitable relief.--The remedy at law provided by
subsections (a) and (b) shall not impair the right to equitable
relief.
§ 704. Disposition of appeal.
(a) S cope of review.--The court shall hear the appeal on the
record certified by the Commonwealth agency.
(b) Standard of review.--
(1) The court shall affirm the adjudication unless it
finds one of the following:
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(i) The adjudication is in violation of a
constitutional right of the appellant.
(ii) T he adjudication is not in accordance with law.
(iii) There was a violation of Ch. 5 Subch. A
(relating to practice and procedure of Commonwealth
agencies).
(iv) A finding of fact made by the Commonwealth
agency and necessary to support its adjudication is not
supported by substantial evidence.
(v) The adjudication is arbitrary, capricious or an
abuse of discretion.
(2) This subsection shall not apply if it conflicts with
a statute other than this title.
(c) Order.--The court may enter an order authorized by 42
Pa.C.S. § 706 (relating to disposition of appeals).
§ 705. Time limitation.
T he time limit for taking an appeal from an adjudication is
subject to 42 Pa.C.S. § 5571(b) (relating to appeals generally).
§ 706. Stays pending appeal.
D uring pendency of a petition for review, a party may obtain
a stay under the Pennsylvania Rules of Appellate Procedure.
§ 707. Exhaustion of administrative remedies.
(a) Effect of certain filings.--Filing a petition for