Section 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.

(h) This section supplements 1 Pa. Code § § 35.111—35.116 (relating to prehearing conferences).

The provisions of this § 15.43 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.