Section 25.4. Appeal of determination

(a) Both the complainant and the subject have standing and either may appeal the preliminary determination to the Commission.

(1) Any appeal shall be filed with the Commission within 30 days of service of the preliminary determination.

(2) If there is no timely appeal filed, the Commission’s initial determination will become absolute and will become the final determination of the Commission in the matter as to wrongful use of the act.

(b) The issuance of Orders to Show Cause is governed by the following:

(1) If a subject appeals, the Commission will issue an Order to Show Cause requiring the respondent to set forth reasons why the rule should not be made absolute as to a finding of no wrongful use of the act. The answer to the rule shall contain specific factual averments which establish a basis for believing the act was wrongfully used. One or more of the following are inadequate to establish wrongful use:

(i) Dismissal of the complaint.

(ii) Dismissal for lack of probable cause.

(iii) Dismissal on jurisdictional grounds.

(2) The Commission will schedule a hearing for the subject’s appeal at which the subject shall bear the burden of proving wrongful use of the act by clear and convincing evidence. The investigative staff of the Commission will present the case opposing the subject’s appeal.

(c) If the complainant appeals, the Commission will issue a Rule to Show Cause requiring the complainant to file an answer to the averments in the Rule as to why the Rule should not be made absolute as to a finding of wrongful use of the act. The Commission will schedule a hearing for the complainant’s appeal. The investigative staff of the Commission will present the Commission’s case and will have the burden of proving wrongful use of the act by clear and convincing evidence.

(d) If the Commission makes a final determination that the act has been wrongfully used, it will release to the subject the name and address of the complainant solely for the purpose of initiating an action for wrongful use of the act. The complainant’s identity will not otherwise be publicly released.

(e) If the Commission makes a final determination that the act was not wrongfully used, it will issue a final determination setting forth the reasons and evidence for its finding.

(f) The procedures of § § 21.21—21.29 will apply to the hearing to the extent applicable.

The provisions of this § 25.4 amended May 5, 1995, effective May 6, 1995, 25 Pa.B. 1777. Immediately preceding text appears at serial pages (178998) to (178999).