40 Pa. Code § 15.43 - Prehearing memoranda or conferences
(a) Conferences between participants in a
proceeding may be held prior to or during hearings at the direction of the
chief ALJ or presiding ALJ, as time, the nature of the proceeding and public
interest may permit. The conference may be before the chief ALJ, the chief
ALJ's designate or the presiding ALJ. The conference may be held to provide
opportunity for one or more of the following:
(1) Submission of facts.
(2) Recommendations of settlement.
(3) Proposals of adjustment of
settlement.
(4) Settlement of a
proceeding, or the issues therein.
(5) Consideration of means by which the
conduct of the hearing may be facilitated and the disposition of the proceeding
expedited.
(b) At the
prehearing or other conference, in addition to offers of settlement, the
following may be considered:
(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
admissions as to, or stipulation 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.
(c) The chief ALJ or the presiding ALJ, with
or without motion, and after consideration of the beneficial results to be
derived therefrom may direct that a conference be held in a particular
proceeding or that conferences be held in proceedings of a particular type.
Parties shall come to the conference prepared for a useful discussion of
procedural and substantive problems involved in the proceeding and shall be
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
objection to an order or ruling entered with respect thereto.
(d) In lieu of a conference, the chief ALJ
may direct in all proceedings or in a particular class of proceedings and a
presiding ALJ may direct in a particular proceeding that the parties exchange
and file with the OALJ a prehearing memorandum in the form and content and
within the time frame as the chief ALJ or the presiding ALJ directs.
(e) The presiding ALJ at a conference may
dispose of by ruling, irrespective of the consent of the participants,
procedural matters which the ALJ is authorized to rule upon during the course
of the proceedings, and which it appears may appropriately and usefully be
disposed of at that stage. If it appears that the proceeding would be
substantially expedited by distribution of proposed exhibits, written prepared
testimony or written statements or a combination thereof reasonably in advance
of the hearing, the presiding ALJ, at his discretion and with regard for the
convenience and necessity of the parties, may direct the advance distribution
by a prescribed date. The rulings of the presiding ALJ made at the conference
shall control the subsequent course of the hearing unless modified for good
cause shown.
(f) If a party who is
directed to attend a conference or submit a prehearing memorandum 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, the moving party may apply to the Chief ALJ or the presiding ALJ for an
order requiring the other party to pay the movant the reasonable expenses
incurred in making the proof, including reasonable attorney's fees. Unless the
chief ALJ or the presiding ALJ believes that there were good reasons for the
refusal to admit or stipulate or that the admissions or stipulations were of no
substantial importance, the order shall be made. An appeal may be taken from
the order in the same manner as provided for appeals from final orders of a
Commonwealth agency. If a party refuses to comply with the order after it
becomes final, the chief ALJ or the presiding ALJ may limit or deny further
participation by the party.
(g) If
a party who is directed to attend a conference or submit a prehearing
memorandum willfully fails or refuses to attend the conference or to fully
provide discovery of evidence and data or other information, directed to be
provided by subsections (b)-(d), the party will not be permitted to present the
witnesses, evidence, data or other information, absent a showing of good cause
for failure to fully list the information as required in the prehearing
memorandum. If the ALJ permits, upon a showing of good cause, counsel to
present the witnesses, evidence, data or other information, and the non-moving
party objects thereto, the ALJ may order the moving party to pay out-of-pocket
costs as are necessitated by any remedial order. These costs include, but are
not limited to, cost of attendance and travel for the court reporter at a
future hearing if the matter is continued, and the subpoena fee and travel
expenses for the nonmoving party's witnesses to attend a continued
hearing.
Notes
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