Section 604.017. Guidelines concerning the continuance of hearings by hearing officers—statement of policy

(a) It is the policy of the Commission to afford persons charged with violating the Pennsylvania Securities Act of 1972 with a just and speedy hearing as well as to minimize inconvenience and expense to parties and witnesses. The Commission’s hearing officers are to utilize the following guidelines concerning the continuance of hearings. In every instance, however, the granting or denial of a motion for continuance is a matter for the exercise of sound discretion by the hearing officer. In the exercise of sound discretion, the hearing officer may make any decision consistent with the policy of this section or as otherwise required by law.

(b) Except as provided for in subsection (c), a motion for continuance is to be made in writing and filed with the Secretary of the Commission and copies provided to the hearing officer and served on all parties or their attorneys, including the staff attorney in charge of the case. The signature of a party or of an attorney constitutes a certification of the accuracy of the statements made in, and in connection with, the motion.

(c) After the hearing has begun, a motion for continuance may be orally presented unless the hearing officer requires that the motion be reduced to writing and filed separately.

(d) The filing of a motion for continuance, without an order granting the motion, does not act to delay the start of the hearing, and all parties shall be prepared to proceed as scheduled in the event the motion is denied.

(e) A motion for continuance is to be filed as far in advance of the hearing as practicable. If it is filed less than 10 days in advance, the motion may be denied unless it is shown that one of the following applies:

(1) The facts on which the motion is based occurred within the immediately preceding 10-day period.

(2) Although the facts occurred prior to that 10-day period they did not become known to, and by the exercise of reasonable diligence could not have been discovered by, the moving party more than 10 days before the hearing date.

(f) A motion for continuance of a hearing may be granted by the hearing officer for one or more of the following reasons:

(1) Agreement of all parties or their attorneys.

(2) Illness or injury of counsel of record or a party. If requested by the hearing officer a certificate of a physician shall be furnished, stating that the illness or injury is of sufficient severity and will probably be of a duration that prevents the ill or injured person from participating in the hearing as scheduled.

(3) Engagement of counsel in a court of record or attachment of counsel by the court, in which event the motion for continuance is to be filed with the Secretary of the Commission and copies provided to the hearing officer and served on all parties or their attorneys, including the staff attorney in charge of the case, as promptly as possible before the date and time the hearing is scheduled to commence. The motion shall state the name and location of the court in which counsel is engaged or attached, the name of the judges before whom the matter is pending, the caption of the matter, the date upon which the matter is expected to be concluded and the statement by counsel that no partner, associate or co-counsel is sufficiently prepared to be able effectively to represent the party at the hearing.

(4) Absence of a material witness whose testimony is essential to the matter pending, if the motion states:

(i) The reason for the absence of the witness.

(ii) The facts to which the witness would testify if present or if the witness’s deposition were to be taken.

(iii) The grounds for believing that the absent witness would so testify at the hearing or deposition.

(iv) The efforts made to procure the attendance or deposition of the absent witness.

(v) The reasons for believing that the witness will attend the hearing at a subsequent date or that the witness’s deposition can and will be obtained.

(vi) The reasons for believing that the testimony of the witness is both material and essential to the pending matter.

(g) If the witness could have been subpoenaed or if the adverse party agrees to the testimony that the witness would have given, the motion described in subsection (f) may be refused.

(h) In the absence of a material witness whose testimony is essential to the pending matter, the hearing officer, upon motion or otherwise, may recess the hearing after all other witnesses have testified and continue the hearing to a subsequent date, subject to the time limitations in subsection (k) to allow for the obtaining of the deposition or the attendance of the witness.

(i) A hearing officer may deny a continuance motion based upon recent change of counsel or recent initial retaining of counsel where a party has been given at least 30 days notice of the date, time and place of hearing.

(j) Except for cause shown in special cases, no reason enumerated in subsection (f) for a continuance of a hearing other than continuances granted on the basis of agreement of all parties or their attorneys, is to be of effect beyond one application made in behalf of one party or group of parties having similar interests.

(k) A continuance is to be a date and time certain, rarely for more than 60 days, unless the circumstances in the matter make it impractical to so specify.

(l) The hearing officer may not refer appeals of rulings on motions for continuances to the Commission except in extraordinary circumstances where a prompt decision by the Commission is necessary to prevent detriment to the public interest.

The provisions of this § 604.017 adopted November 13, 1992, effective November 14, 1992, 22 Pa.B. 5521; transferred and renumbered from 64 Pa. Code § 604.017, December 14, 2012, effective December 15, 2012, 42 Pa.B. 7533. Immediately preceding text appears at serial pages (324463) to (324465).