37 Pa. Code | Title 37 Pa. Code — Law

Part I State Police

Chapter 14 Vaults for the Storage of Flammable and Combustible Liquids—Statement of Policy

37 Pa. Code § 14.1 Installation of vaults for the storage of flammable and combustible liquids.

The State Police Fire Marshal may permit the installation of vaults for storing flammable and combustible liquids for retail and nonretail distribution if the minimum standards in § § 14.2—14.6 are met.

History

Authority: The provisions of this Chapter 14 issued under section 1 of the act of April 27, 1927 (P.
Source: The provisions of this Chapter 14 adopted October 29, 1993, effective October 30, 1993, 23 Pa.

37 Pa. Code § 14.2 Physical requirements of vaults.

(a) Vaults for retail distribution shall be constructed below grade. Vaults for nonretail distribution may be constructed either above or below grade.

(b) The vault shall completely enclose each tank. There may not be openings in the vault enclosure except those necessary for access to, inspection of, and filling, emptying and venting of the tank. The walls and floor of the vault shall be constructed of reinforced concrete at least 6 inches thick. The top of an above grade vault shall be constructed of noncombustible material constructed to be weaker than the walls to assure that in the event of an explosion inside the vault, the thrust of the explosion will be inside the vault. The top, floor and tank foundation shall be designed to withstand the anticipated loading. The walls and floor of a vault installed below grade shall be designed to withstand anticipated soil and hydrostatic loading. The vault shall be substantially liquid tight and there may be no backfill around the tank. There shall be sufficient space between the tank and the vault to allow for inspection of the tank and appurtenances.

(c) Each vault and its tank shall be suitably anchored to withstand uplifting by groundwater or flooding, including when the tank is empty.

(d) The vault shall be designed to be wind and earthquake resistant, in accordance with sound engineering practice. The vault shall be resistant to damage from the impact of a motor vehicle, or suitable collision barriers shall be provided.

(e) Each tank shall be in its own vault. Adjacent vaults may share a common wall if the top of each vault is constructed to conform to the requirements of subsection (b). The top of each vault shall be constructed of noncombustible material constructed to be weaker than the walls to assure that in the event of an explosion inside the vault, the thrust of the explosion will be directed upward before a significantly high pressure can develop inside the vault.

(f) Connections shall be provided to permit venting of each vault to dilute, disperse and remove vapors prior to personnel entering the vault.

(g) Vaults shall be provided with continuous ventilation at a rate of not less than 1 cubic foot per minute per square foot of floor area, but not less than 150 cubic feet per minute. Failure of the exhaust air flow shall automatically shut down the dispensing system. The exhaust system shall be designed to provide air movement across all parts of the vault floor. Supply and exhaust ducts shall extend to within 3 inches, but not more than 12 inches of the floor. The exhaust system shall be installed in accordance with NFPA 91, Standard For Exhaust Systems For Air Conveying of Materials. A means shall be provided to automatically detect flammable vapors and to automatically shut down the dispensing system upon detection of the flammable vapors in the exhaust duct at a concentration of 25% of the lower flammable limit.

(h) Each vault shall be equipped with a detection system capable of detecting liquids, including water, and of activating an alarm upon detection.

(i) A means to recover liquid from the vault shall be provided. If a pump is used to meet this requirement, the pump may not be permanently installed in the vault. Electric powered portable pumps used to recover liquid shall be suitable for use in Class I, Division I locations, as defined in NFPA 70, National Electric Code.

(j) Vent pipes that are provided for normal tank venting shall extend at least 12 feet above ground level.

(k) Emergency vents shall be vapor tight and shall be permitted to discharge inside the vault. Long-bolt manhole covers will not be permitted for this purpose.

(l) Each vault shall be provided with a means for personnel entry. At each entry point, a warning sign indicating the need for procedures for safe entry into confined spaces shall be posted. Employees and other persons who anticipate entering the vault shall be made aware of and each entry shall conform to applicable Federal regulations regarding confined space entry. Each entry point shall be secured against unauthorized entry and vandalism.

(m) Each vault shall be provided with a suitable means to admit a fire suppression agent. The connection shall be at least 25 feet from the nearest wall of the vault and shall be compatible with standard couplings used by fire departments in that area.

(n) The interior of a vault shall be designated a Class I, Division I location as defined in NFPA 70, National Electric Code.

(o) Each vault shall be equipped with adequate lighting. The lighting shall be explosion proof and conform with NFPA 70, National Electric Code.

(p) Tanks within vaults shall be approved for aboveground use and shall have been tested in accordance with UL 142, Standard for Steel Aboveground Tanks For Flammable Or Combustible Liquids, or an equivalent test procedure. Individual tanks shall be limited to a maximum capacity of 12,000 gallons.

(q) Tanks within above grade vaults shall be at least 25 feet from buildings on the same property, 25 feet from the nearest side of a public way and 50 feet from a property line that may be built upon. Tanks within below grade vaults shall be at least 5 feet from buildings on the same property, 5 feet from the nearest side of a public way and 5 feet from property lines.

This section cited in 37 Pa. Code § 14.1 (relating to installation of vaults for the storage of flammable and combustible liquids).

History

Authority: The provisions of this Chapter 14 issued under section 1 of the act of April 27, 1927 (P.
Source: The provisions of this Chapter 14 adopted October 29, 1993, effective October 30, 1993, 23 Pa.

37 Pa. Code § 14.3 Piping and ancillary equipment.

(a) A means for determining the liquid level in each tank shall be provided and this means shall be accessible to the delivery operator. A means to sound an audible alarm when the liquid level in the tank reaches 90% of capacity shall be provided. A means either to automatically stop the flow of liquid into the tank when the liquid level in the tank reaches 98% of capacity or to restrict the flow of liquid into the tank to a maximum 2.5 gpm when the liquid in the tank reaches 95% capacity shall also be provided. These provisions may not restrict or interfere with the proper operation of either the normal vent or the emergency vent.

(b) Fuel may not be dispensed from the tank by either gravity flow or pressurization of the tank. A means to prevent the release of liquid by siphon flow shall be provided.

(c) If the tank is at an elevation that produces a gravity head on the dispensing device, the tank outlet shall be equipped with a device that will prevent gravity flow from the tank to the dispenser, such as a normally closed solenoid valve. This device shall be located adjacent to and downstream of the outlet valve specified by 2-3.8.1 of NFPA 30, Flammable and Combustible Liquids Code. The device shall be installed and adjusted so that liquid cannot flow by gravity from the tank to the dispenser in the event of failure of the piping or hose when the dispenser is not in use.

(d) If a submersible pump system is used, a listed emergency shutoff valve shall be installed, as required by 4-3.6 of NFPA 30A, Automotive and Marine Service Station Code.

(e) If a suction pump-type dispensing device is used, a listed, vacuum-actuated shutoff valve, with a shear section, or equivalent-type valve shall be installed directly under each dispensing device. Tanks installed in below grade vaults are not required to comply with this section.

(f) Shutoff and check valves shall be equipped with a pressure-relieving device that will relieve the pressure generated by thermal expansion back to the tank.

(g) Piping shall be routed so that exposure to physical damage is minimized.

This section cited in 37 Pa. Code § 14.1 (relating to installation of vaults for the storage of flammable and combustible liquids).

History

Authority: The provisions of this Chapter 14 issued under section 1 of the act of April 27, 1927 (P.
Source: The provisions of this Chapter 14 adopted October 29, 1993, effective October 30, 1993, 23 Pa.

37 Pa. Code § 14.4 Corrosion protection.

Any portion of a tank or its piping system that is in contact with the soil shall be protected from corrosion in accordance with sound engineering practice.

This section cited in 37 Pa. Code § 14.1 (relating to installation of vaults for the storage of flammable and combustible liquids).

History

Authority: The provisions of this Chapter 14 issued under section 1 of the act of April 27, 1927 (P.
Source: The provisions of this Chapter 14 adopted October 29, 1993, effective October 30, 1993, 23 Pa.

37 Pa. Code § 14.5 Tank filling operations.

Delivery operations shall comply with NFPA 385, Standard For Tank Vehicles For Flammable And Combustible Liquids, as well as the following requirements:

(1) The delivery vehicle shall be separated from an aboveground tank by at least 25 feet, except that no minimum separation distance is required for tanks that are filled by gravity.

(2) Tank filling may not begin until the delivery operator has determined tank ullage—available capacity.

(3) Tanks shall be filled through a liquid-tight connection. If the tank is filled by means of fixed piping, either a check valve and shutoff valve with a quick-connect coupling or a check valve with a dry-break coupling shall be installed in the piping where connection and disconnection is made between the tank and the delivery vehicle. This device shall be protected from tampering and physical damage.

This section cited in 37 Pa. Code § 14.1 (relating to installation of vaults for the storage of flammable and combustible liquids).

History

Authority: The provisions of this Chapter 14 issued under section 1 of the act of April 27, 1927 (P.
Source: The provisions of this Chapter 14 adopted October 29, 1993, effective October 30, 1993, 23 Pa.

37 Pa. Code § 14.6 Installation and use of aboveground tanks for storage and dispensing of Class I and Class II motor fuels.

The Pennsylvania State Police Fire Marshal may permit a maximum storage of 12,000 gallons of Class I and 12,000 gallons of Class II motor fuels aboveground for nonretail distribution. Until revisions to this subpart are accomplished, the following requirements shall be met to obtain a fire/explosion safety approval. Each application is reviewed on a site specific basis and additional provisions may be applied.

(1) Tanks storing Class I motor fuel for dispensing into registered motor vehicles shall have a minimum 2-hour fire rating as described in UL 2085, Outline Of Investigation For Insulated Aboveground Tanks For Flammable and Combustible Liquids, or equivalent test procedure.

(2) The tank shall be located at least 50 feet from buildings and 100 feet from property lines; except that if a 2-hour fire rated tank is utilized, the site distances may be reduced by half.

(3) Bollards shall be installed to protect against collision. Six-inch steel pipes filled with concrete, 3 feet in ground, 4 feet high, 4 feet apart and at least 2 feet from the shell of the tank shall be used. Barriers providing equal or greater protection will be acceptable with the approval of the Pennsylvania State Police Fire Marshal.

(4) Secondary containment capable of handling 110% of the capacity of the tank shall be provided.

(5) A clearly labeled emergency power disconnect switch shall be located not less than 20 nor more than 100 feet from the fuel dispenser.

(6) Warning signs stating ‘‘NO SMOKING’’ and ‘‘STOP MOTOR’’ shall be conspicuously posted in the dispensing area.

(7) Each tank shall be properly placarded to identify its contents and have a ‘‘NO SMOKING’’ sign displayed.

(8) The tank shall be set on a suitable foundation constructed in conformance with the tank manufacturers recommendations and using good engineering practices.

(9) A suitable fire extinguisher of at least 20 B:C rating shall be accessible. Depending on the type and amount of fuel stored, additional fire extinguishment measures may be required.

(10) Suitable security measures including, fencing or lighting, may be required, if deemed necessary under the circumstances to prevent tampering or vandalism.

This section cited in 37 Pa. Code § 14.1 (relating to installation of vaults for the storage of flammable and combustible liquids).

History

Authority: The provisions of this Chapter 14 issued under section 1 of the act of April 27, 1927 (P.
Source: The provisions of this Chapter 14 adopted October 29, 1993, effective October 30, 1993, 23 Pa.

37 Pa. Code § 14.7 Dispensing of Class I and Class II liquids from tank vehicles.

Section 13.105(f) (relating to loading and unloading) does not prohibit the dispensing of Class I and Class II liquids in the open from a tank vehicle to motor vehicles located at commercial, industrial, governmental or manufacturing establishments and which are intended for fueling vehicles used in connection with their business. The tank vehicle and operation shall be conducted in compliance with Federal and State Departments of Transportation regulations. Approval is not required for operations under this section.

History

Authority: The provisions of this Chapter 14 issued under section 1 of the act of April 27, 1927 (P.
Source: The provisions of this Chapter 14 adopted October 29, 1993, effective October 30, 1993, 23 Pa.

37 Pa. Code § 14.8 Fuel tanks for heating and power devices.

Section 13.161(b) (relating to general provisions) does not require approval for tanks supplying fuel to heating or power devices where the capacity of an individual tank does not exceed 3,000 gallons.

History

Authority: The provisions of this Chapter 14 issued under section 1 of the act of April 27, 1927 (P.
Source: The provisions of this Chapter 14 adopted October 29, 1993, effective October 30, 1993, 23 Pa.

Chapter 21 Administration of the Lethal Weapons Training Program

37 Pa. Code § 21.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The Lethal Weapons Training Act (22 P. S. § § 41—50). Certification—The Commissioner’s written authorization under the act and this chapter. Certification card—A laminated wallet or billfold size, written authorization issued by the Commissioner which identifies the bearer as being a certified agent. Certified agent—A privately employed agent who possesses a current and valid certification issued by the Commissioner. Commissioner—The Commissioner of the Pennsylvania State Police. Conviction—Includes being found guilty, or entering a plea of guilty or nolo contendere to a crime in a court of competent jurisdiction in this Commonwealth or elsewhere. Crime of violence—Any of the following crimes, or an attempt, solicitation or conspiracy to commit any of the same in this Commonwealth or elsewhere, namely: murder, rape, aggravated assault, robbery, burglary, entering a building with intent to commit a crime therein, kidnapping, voluntary manslaughter, involuntary deviate sexual intercourse, arson, recklessly endangering another person or terroristic threats. Department—The Pennsylvania State Police. Disqualifying criminal offense—

(i) A conviction for a crime of violence shall be a disqualifying criminal offense; or

(ii) A conviction for any other crime may be a disqualifying criminal offense. Note: Conviction of a criminal offense which is equivalent to subparagraphs (i) and (ii) may constitute a disqualifying criminal offense. Firearm—A pistol, revolver, rifle or shotgun. Full-time police officer—A person who is employed by a city, borough, town, township or county police department (including sheriffs, deputy sheriffs and county detectives) assigned to law enforcement duties, and who works a minimum of 200 calendar days per year. The term does not include persons employed to check parking meters or to perform only administrative duties, nor does it include auxiliary and fire police. For the purposes of § 21.16 (relating to exemption for retired police officers), the term includes a person employed by the Pennsylvania State Police. Instructional hour—At least 50 minutes of a clock hour. Law enforcement officer—A sheriff, deputy sheriff, constable, deputy constable, detective, police officer of this Commonwealth, or any political subdivision, school district, or municipal authority thereof. Lethal weapons—Include, but are not limited to, firearms and other weapons calculated to produce death or serious bodily harm. A concealed billy club is a lethal weapon. The chemical mace or any similar substance shall not be considered as a lethal weapon for the purposes of the act. For purposes of this chapter, a nonconcealed billy club shall also be considered a lethal weapon. Privately employed agent—Any person who is employed for the purpose of providing watchguard, protective patrol, detective or criminal investigative services either for another for a fee or for his employer. Privately employed agents do not include local, State or Federal government employes or those police officers commissioned by the Governor under 22 Pa.C.S. § § 3301—3305 (relating to railroad and street railway police), while performing their public/railroad employment duties. The term shall include a police officer of a municipal authority. Program—The education and training program established, administered or approved by the Commissioner under the act. Revocation—The permanent invalidation of certificate/ approval issued by the Commissioner. Suspension—The temporary invalidating of a certificate/approval issued by the Commissioner.

This section cited in 37 Pa. Code § 21.15 (relating to exemption for active full-time police officers).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.2 Mandatory certification.

Privately employed agents, regardless of their place of residence or employers’ location who, as an incidence to their employment, carry a lethal weapon within this Commonwealth. Training schools or instructors shall be certified by the Commissioner prior to engaging in any activity which is regulated by the act.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.3 Law enforcement officers.

A law enforcement officer or other peace officer of this Commonwealth who performs activities which are regulated by the act and receives a form of compensation, gift, donation, or gratuity for these services, from a private person, association, or corporation, shall be deemed to be a privately employed agent.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.4 Employer responsibilities.

A person, association, corporation, or other entity who employs a privately employed agent under the act shall first ensure that the agent possesses a current and valid certification card from the Commissioner. Whenever an employer of a certified agent discharges him for cause which would have prohibited certification, the employer shall forward written notification of the discharge to the Commissioner within 5 days. Failure of an employer to ensure that a privately employed agent is currently and validly certified by the Commissioner may constitute a violation of 18 Pa.C.S. § § 306 and 903 (relating to liability for conduct of another and complicity and criminal conspiracy).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.5 Certified agent/applicant responsibilities.

When a certified agent or applicant has a change in physical, psychological, or criminal history circumstances which would have prohibited certification, he shall immediately forward written notification of the change to the Department. When a certified agent or applicant changes his address, he shall forward written notification of the change to the Department within 5 days.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.6 Program administration.

Correspondence, inquiries, and the like shall be directed to the State Police, Bureau of Training and Education, Post Office Box AA, Hershey, Pennsylvania 17033.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.11 Applicant qualification requirements.

A person who desires to be certified by the Commissioner under the act must satisfy the following requirements:

(1) Age. The applicant must be at least 18 years of age.

(2) Documents and fees. The applicant must properly complete all necessary application documents and tender appropriate fees.

(3) Physical standard. The applicant must be personally examined by a doctor of medicine licensed by the Pennsylvania Board of Medical Education and Licensure or a doctor of osteopathy licensed by the Pennsylvania Board of Osteopathic Examiners and found to be physically fit to handle a lethal weapon. The examination shall include the following elements:

(i) Neurological condition. The applicant must be free from a debilitating condition, such as tremor, uncoordination, convulsion, fainting episodes, and the like.

(ii) Cardiovascular condition. The applicant’s physical condition must be such that he could reasonably be expected to withstand significant cardiovascular stress.

(iii) Intoxicants. The applicant must be free from the addictive or excessive use of either alcohol or drugs.

(iv) Visual acuity. The applicant must have a visual acuity of at least 20/70, uncorrected in the stronger eye, correctable to at least 20/20; and 20/200, uncorrected in the weaker eye, correctable to at least 20/40, and must be free of any significant visual abnormality.

(v) Audio acuity. The applicant must be able to distinguish a normal whisper at a distance of 15 feet. The test shall be independently conducted for each ear while the tested ear is facing away from the speaker and the other ear is firmly covered with the palm of the hand.

(vi) Other conditions. The applicant must be free from any other significant physical defect or disorder which would, in the physician’s opinion, impair the applicant’s ability to handle a lethal weapon.

(vii) Submission. The examining physician must forward the physical examination form to the Department within 15 days, even if the applicant is found to be unfit. The Commissioner may utilize the results of the physical examination for up to 6 months from the date of the examination after which the applicant must be reexamined.

(4) Psychological standard. The applicant shall be personally examined by a psychologist who is licensed by the Pennsylvania Board of Psychologist Examiners and found to be psychologically capable to exercise appropriate judgment or restraint to handle a lethal weapon at the time of the examination. The examination shall include the following elements:

(i) Interview and history. The psychologist must personally interview the applicant, which interview shall include a summary of the applicant’s personal, educational, employment, and criminal history, if any.

(ii) Required personality test. The applicant must be administered any current standard form of the Minnesota Multiphasic Personality Inventory (MMPI) which shall be administered by the licensed psychologist or a paraprofessional employed by and under the direct control and supervision of the licensed psychologist.

(iii) Other testing methods. If the licensed psychologist is unable to certify the applicant’s psychological capability or risk to exercise appropriate judgment and restraint in the handling of a lethal weapon at this time, after conducting the test, the psychologist must personally employ whatever other psychological measuring instruments and techniques are deemed necessary to form his professional opinion. The use of these instruments and techniques requires a full and complete written explanation to the Department.

(iv) Submission. The examining psychologist must forward the psychological examination form to the Department within 15 days of the examination, even if the applicant is found to be psychologically at risk. The Commissioner may utilize the results of the psychological examination for up to 6 months from the date of the examination after which the applicant must be reexamined. No person who has been found psychologically at risk in the exercise of appropriate judgment and restraint in the handling of a lethal weapon may reapply for certification until after 1 year from the date of being found psychologically at risk.

(5) Criminal conviction standard. A review must be made of the applicant’s criminal history record, if any, to determine qualification for certification. The criminal history review shall be based upon the record of conviction, if any, generated by the classification and subsequent examination of the applicant’s fingerprints or another valid method. A person whose criminal history record evidences a conviction for a disqualifying criminal offense may be barred from certification under the act.

(6) Training. The applicant must successfully complete the training program prescribed by the Commissioner.

Visual Acuity

Federal regulations regarding visual acuity standards for persons to carry lethal weapons at atomic facilities do not preempt the State’s standards. Demmy v. State Police, 611 A.2d 782 (Pa. Cmwlth. 1992).

This section cited in 37 Pa. Code § 21.21 (relating to conditions of certification).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.12 Classes of agent certification.

An applicant may apply for either of the following classifications:

(1) Firearms. This classification will be granted upon the successful completion of both the academic and firearms training modules. This classification entitles the certified agent to be armed with a lethal weapon.

(2) Nonfirearms. This classification will be granted upon the successful completion of the academic training module. This classification entitles the certified agent to be armed with a lethal weapon, except a firearm. No certified agent holding this type of classification may be armed with a firearm while on duty.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.13 Initial application procedure.

A person who desires to apply to the Commissioner for certification under the act shall complete the following initial application procedure:

(1) Complete an application for agent certification which is available at any State Police station, except a Turnpike or Interstate station. Statements on the application must be reviewed for accuracy and truthfulness. A material falsification must constitute the basis for denying/revoking an approval/certification, and may result in criminal prosecution.

(2) Submit the following items with the completed application:

(i) Two recent unmounted color photographs, which are approximately 1-1/4 inch by 1-1/4 inch in size; full faced and measure 1 inch from the top of the head to the point of the chin, without hat.

(ii) A certified check, cashier’s check or money order in the amount of $45, made payable to the ‘‘Pennsylvania State Police.’’ Personal checks will not be accepted. This fee is not refundable.

(3) Upon presentation of a satisfactorily completed application form, together with the items listed in paragraphs (1) and (2), at a State Police station, except a Turnpike or Interstate station, undergo fingerprinting by the receiving State Police Officer. The applicant must provide identification as required by the receiving State Police Officer.

(4) Undergo a physical examination which is sufficient to permit a licensed physician to complete the physical examination form which is furnished with the application for agent certification.

(5) Undergo the psychological examination and interview which is sufficient to permit a licensed psychologist to complete the psychological examination form which is furnished with the application for agent certification.

(6) Ensure that the appropriate part of the application for agent certification is completed in accordance with § 21.14 (relating to waiver of training), if an applicant desires to request a waiver of the training requirements.

(7) Ensure that the police officer exemption application is completed in accordance with § 21.15 (relating to exemption for active full-time police officers), if the applicant is a full-time police officer and requests an exemption of the application fee, physical testing requirement or psychological testing requirement.

(8) Ensure that the police officer exemption application is completed in accordance with § 21.16 (relating to exemption for retired police officers), if the applicant is a retired police officer and requests an exemption of the application fee, training and qualification standards, physical qualification and psychological qualification.

This section cited in 37 Pa. Code § 21.19 (relating to training enrollment); 37 Pa. Code § 21.22 (relating to lost or damaged certification cards); and 37 Pa. Code § 21.24 (relating to renewal procedure).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.14 Waiver of training.

A person who has completed a course of instruction in a training program approved by the Commissioner may request a waiver of the academic or firearms training provisions in accordance with the following:

(1) Academic waiver. The applicant must have successfully completed a formal course of instruction comparable to the academic course prescribed by the Commissioner, within 5 years prior to receipt of the application by the Department. The applicant must have the verified waiver certificate on the application form completed by the certifying official.

(2) Firearms waiver. The applicant must have successfully completed a formal combat firearms course of instruction comparable to the firearms course prescribed by the Commissioner, within 1 year prior to receipt of the application by the Department. The applicant must have the verified waiver certificate on the application form completed by the certifying official.

This section cited in 37 Pa. Code § 21.13 (relating to initial application procedure).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.15 Exemption for active full-time police officers.

(a) An applicant who is employed as a full-time police officer, as defined in § 21.1 (relating to definitions), shall be granted an exemption from the application fee.

(b) An applicant who was employed as a full-time police officer, as defined in § 21.1, before June 19, 1974, and who has continuously maintained full-time police officer employment since that date, shall be granted an exemption from the following application requirements:

(1) Physical testing.

(2) Psychological testing.

(c) An applicant who is employed as a full-time police officer, as defined in § 21.1, and who, either as a prerequisite to his police employment, or as a requirement for continued police employment, successfully completed a physical or psychological examination or both shall be granted an exemption from the physical or psychological requirements or both of the act, as the case may be.

(d) The granting of an exemption is conditioned upon the applicant providing documentary proof of eligibility by completing and forwarding a police officer exemption application which is available, upon request, at a State Police station, except a Turnpike or Interstate station.

This section cited in 37 Pa. Code § 21.13 (relating to initial application procedure).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.16 Exemption for retired police officers.

(a) An applicant who is a nondisability retired police officer of a Commonwealth municipality or the State Police shall be initially certified under the act, and need not meet the training and qualification standards or physical and psychological qualifications, if he was a full-time police officer for at least 20 years, retired in good standing and has assumed the duties of a privately employed agent on or before 3 years from the date of his retirement. If a retired police officer commences his duties as a privately employed agent after 3 years from the date of his retirement he must meet the physical and psychological requirements of the act for certification.

(b) A retired police officer who is initially certified shall not be required to pay the application fee, but he shall be required to pay the appropriate certification fee.

(c) The granting of the exemptions and certification is conditioned upon the applicant providing documentary proof of eligibility by completing and forwarding a police officer exemption application which is available, upon request, at a State Police station, except a Turnpike or Interstate station.

This section cited in 37 Pa. Code § 21.1 (relating to definitions); and 37 Pa. Code § 21.13 (relating to inital application procedure).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.17 Approval of application.

Upon receipt of the required application documents, a review will be made to determine if the applicant is qualified for training or waiver, as the case may be.

(1) Training approval. If the applicant qualifies for training, an approval to attend a certified training program will be issued to the applicant.

(2) Waiver approval. If it is determined that the applicant qualifies for a full or partial waiver of the training requirements, one of the following approvals will be issued to the applicant:

(i) Full waiver. The applicant will receive written notification of his full waiver status with instructions for further processing.

(ii) Partial waiver. The applicant will receive written notification of the type of partial waiver which is granted with written training approval for the remaining required training.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.18 Denial of application.

If it is determined that an applicant is not qualified for training, waiver or exemption, as the case may be, a written adverse determination notification will be issued. The applicant may have the right to appeal the determination under § 21.51 (relating to adverse determination).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.19 Training enrollment.

An approved applicant shall be subject to the following provisions:

(1) School selection. The applicant shall select a certified training school from a list provided by the Commissioner.

(2) Length of approval eligibility. The Commissioner’s written approval to attend a certified training program will be valid for 6 months from date of issue.

(3) Training program. Upon completion of the required training program, the applicant shall proceed as follows.

(i) Successful completion. To successfully complete the required training program, an applicant must attain a minimum score of 70% in the academic module and, if applicable, 75% in the firearms module. Upon notification of successful completion of the required training program, the applicant shall immediately tender to the certified training school, a certified check, cashier’s check or money order, in the amount of $25, made payable to the ‘‘Pennsylvania State Police.’’ Personal checks will not be accepted. This fee is not refundable.

(ii) Unsuccessful training. An applicant who does not successfully complete either or both of the training modules shall be permitted to re-enroll in that training module which he failed, if the re-enrollment occurs prior to the expiration of the Commissioner’s approval to attend training. The applicant must repeat the entire training module which he previously failed and attain a successful score.

(4) Expired approval. An applicant who fails to succesfully complete the required training program prior to the expiration of the Commissioner’s written approval to attend training, must initiate a new application, including requirements prescribed by § 21.13 (relating to initial application procedure), to be eligible for approval to attend training.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.20 Agent certification.

Upon receipt of notification of successful completion of the required training program, or the granting of a waiver of the required training program, together with the appropriate fee, the Commissioner will issue a certification card. This certification card must be in the form of a laminated, wallet or billfold size card containing identifying information, type of certification, and a color photograph of the applicant. The certification card is issued to the agent but will remain the property of the Department and must be surrendered upon demand. The certification card must be valid for 5 years.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.21 Conditions of certification.

When there is reasonable cause to believe that a certified agent has had a change in physical or psychological circumstances which would render the agent ineligible for original certification, the following action must be taken:

(1) Physical reexamination. A written notice will be issued informing the agent that he must undergo a physical examination conducted by a physician at the agent’s expense. The examination must be identical to the original physical examination which is required for initial certification. The examining physician must submit the physical examination form as prescribed by § 21.11 (relating to applicant qualification requirements).

(2) Psychological reexamination. A written notice will be issued informing the agent that he must undergo a psychological examination conducted by a psychologist at the agent’s expense. The examination must be identical to the original psychological examination which is required for initial certification. The examining psychologist must submit the psychological examination form as prescribed by § 21.11.

(3) Mandatory provisions. A certified agent who is directed to undergo either, or both, of the reexaminations must cooperatively participate in the examinations. Failure to comply with this section shall result in the immediate suspension of the agent’s certification.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.22 Lost or damaged certification cards.

When a certified agent’s wallet or billfold size certification card is lost or damaged, it will be replaced by the Commissioner if the certified agent supplies:

(1) An affidavit describing the circumstances under which the original card was damaged or lost.

(2) Two color photographs as described in § 21.13 (relating to initial application procedure).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.23 Certification status change.

When a certified agent desires to change his certification from nonfirearm to firearm status, he shall satisfy the following requirements:

(1) He shall make a written request for approval to attend a certified firearms training module. The certified agent must include two recent unmounted color photographs, which are approximately 1-1/4 by 1-1/4 inch in size; full faced and measure 1 inch from the top of the head to the point of the chin, without hat.

(2) Upon receipt of the Commissioner’s written approval to attend a certified firearms training module, he shall be subject to the following:

(i) School selection. The applicant shall select a certified training school from a list provided by the Commissioner.

(ii) Length of approval eligibility. The Commissioner’s written approval to attend a certified firearms training module will be valid for 6 months from date of issue.

(iii) Training program. Upon completion of the required firearms training module the applicant shall proceed as follows:

(A) Successful completion. Upon notification of successful completion of the required firearms training module, the applicant shall immediately tender to the certified training school, a certified check, cashier’s check or money order, in the amount of $25 made payable to the ‘‘Pennsylvania State Police.’’ Personal checks will not be accepted. This fee is not refundable.

(B) Unsuccessful training. An applicant who does not successfully complete the firearms training module shall be permitted to re-enroll in that training module, if the re-enrollment occurs prior to the expiration of the Commissioner’s approval to attend training. The applicant must repeat the entire firearms training module and attain a successful score.

(iv) Expired approval. An applicant who fails to successfully complete the required firearms training module prior to the expiration of the Commissioner’s written approval to attend training, must initiate a new request for approval to attend training as outlined in paragraph (1).

(v) Agent certification (reissued). Upon receipt of notification of successful completion of the required firearms training module, with the appropriate fee, the Commissioner will reissue his written certification with the appropriate change of status. Reissued certification shall be valid for the remainder of the term of the original certification. The certified agent, within 5 days of receipt of the reissued certification card must return the original certification card to the Department. Failure to strictly comply with this return provision shall result in the immediate suspension of the agent’s certification.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.24 Renewal procedure.

(a) A certified agent may renew his initial certification for an additional 5 year period on a form supplied by the Commissioner. A completed application for renewal of agent certification must be accompanied by two recent color photographs and a renewal fee. Renewal application must be made within 6 months prior to the expiration of the current certification. The necessary application form will be forwarded by first class mail to the renewal applicant’s last known address at least 8 months prior to the expiration of the current certification. Certified agents who fail to apply for a renewal of their certification prior to the expiration thereof, must make application under § 21.13 (relating to initial application procedure). Expired certification cards are void.

(b) Certified agents who desire to have their certifications renewed shall be required to attend a renewal training program at a certified school.

(1) Agents who are certified with a firearm shall have both classroom instruction and firearms range training totaling 8 hours. Agents who are certified to carry a lethal weapon other than a firearm shall attend a 3 hour program.

(2) Either certified training program may only be taught by a certified instructor at a certified school.

(c) Agents who are seeking renewal of their firearms certification shall be required to successfully complete the full renewal course with a minimum grade of 70% in the academic renewal module and 75% in the firearms renewal module. The minimum renewal course training standards consist of those required hours of instruction as prescribed by the Commissioner.

(d) Agents who are seeking renewal of their nonfirearms certification shall be required to successfully complete the academic renewal module with a minimum classroom examination grade of 70%.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.25 Approval of renewal application.

(a) An agent applying for renewal of certification shall submit a completed application for renewal of agent certification with:

(1) A certified check, cashier’s check or money order made payable to the ‘‘Pennsylvania State Police,’’ in the amount of $25. Personal checks will not be accepted. This fee is not refundable.

(2) Two recent unmounted color photographs, which are approximately 1¼ inch x 1¼ inch in size; full faced and measure 1 inch from the top of the head to the point of the chin, without hat.

(b) If the renewal applicant meets the requirements of the act and this chapter, an approval—with a list of certified schools attached—to attend training will be issued to the applicant. If the renewal applicant does not meet the requirements of the act and this chapter, a written adverse determination will be issued.

(c) Upon receipt of approval, the renewal applicant shall immediately apply for admission to a certified school of his choice. The required renewal training shall be completed within 6 months from the date of approval.

(d) Upon completion of each renewal training course, the certified school must furnish the Commissioner with a completed grade report sheet for each enrolled student.

(e) Upon notification of the successful completion of the renewal certification course by a certified school, the Commissioner will renew the applicant’s certification. The renewal will be issued approximately 1 month prior to the expiration of the current certification. The renewed certification will be valid for a 5 year period unless the certification is suspended/revoked or otherwise invalidated for cause.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.26 Certified agent prohibitions/restrictions.

(a) Unauthorized use. No certified agent shall permit any other person to possess or otherwise physically control his certification card.

(b) Identification. Every certified agent shall carry his certification card on his person while armed with a lethal weapon on duty or going to or from duty while armed.

(c) Display of certification. A certified agent shall exhibit his certification card for inspection by a law enforcement officer on demand.

(d) Carrying firearms. The issuance of a certification card to a privately employed agent does not grant the agent the right or privilege to carry, possess, own, or have under his control a firearm contrary to 18 Pa.C.S. § § 6101—6120 (relating to Uniform Firearms Act).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.31 Administrative responsibilities.

Each certified school, including its school director, assistant school director, administrators, owners or corporate officers, as the case may be, must be responsible for the proper administration and operation of the school in conformance with the act and this chapter.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.32 Applicant qualification requirements.

A person or entity desiring certification to operate a lethal weapons training school shall satisfy the following requirements:

(1) Geographic location. Schools must be located within this Commonwealth. No school may conduct training at a location other than that specified on the application for school certification submitted to the Department.

(2) Administrative structure standard. An individual, partnership, corporation, vocational/technical school, private trade school, college, university, or similar entity may apply for certification to operate a lethal weapons training school. An individual, partnership, corporation, or similar entity must comply with the requirements of the Fictitious Names Act, 54 Pa.C. S. § § 301—332, if the school is to be operated under an assumed or fictitious name. Each school applicant must furnish the Department with a copy of the Fictitious Name Certificate or Articles of Incorporation or both, as the case may be, by attaching same to the application for school certification.

(3) School director standard. Each school applicant must designate a person as school director. A school director is the individual who bears primary responsibility and authority to administer and operate a certified school. No certified school may continue to operate without an approved school director. A designated school director shall comply with the following criteria to be approved by the Commissioner:

(i) Not have been convicted of a disqualifying criminal offense.

(ii) Complete the school director portion of the application for school certification or an application for approval of school director, as the case may be.

(iii) Undergo fingerprinting by the receiving State Police Officer upon presentation of a satisfactorily completed application for school certification or application for approval of school director at a State Police station, except a Turnpike or Interstate station.

(4) Physical and environmental facilities standard. Schools must satisfy the following minimal physical and environmental facilities standards:

(i) Buildings or other facilities must be approved from a standpoint of public safety by either State or local fire marshals, or inspectors of the Department of Labor and Industry in accordance with the statutes of the Commonwealth and any local ordinances relating to building regulations for the protection from fire and panic.

(ii) Sufficient facilities and space shall be available for both classroom and practical training.

(iii) The furniture, equipment, and supplies of the school must be of sufficient type, quality, and amount to adequately accomplish the required training.

(iv) Every firing range facility must comply with the minimum range safety standards of the National Rifle Association, and the school applicant must provide documentary proof thereof. Additionally, every indoor firing range must comply with minimum air quality standards.

(5) Curriculum standard. The course prescribed by the Commissioner must constitute the following minimum basic and renewal education and training programs for certified agents:

(i) Lesson plans. A comprehensive set of lesson plans for the entire established program must be maintained and utilized by each certified school in its presentation of the required course.

(ii) Course materials. Each school must maintain a complete listing of books, handouts, training aids, or other course materials.

(iii) Copies of the act. Each student must be provided with a copy of the act and this chapter as a part of the regular school tuition.

(iv) Final examinations. Each school must maintain, for 5 years, a copy of final examinations with correct answers indicated.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.33 Application procedure.

(a) An applying school must complete an application for school certification, which is available from the Director, Bureau of Training and Education, State Police, Post Office Box AA, Hershey, Pennsylvania 17033.

(b) An applying school must submit the following documents, where applicable, with the completed application:

(1) A copy of the approval document for the range facility, issued by the National Rifle Association.

(2) A copy of the lease or other appropriate document which was executed between the school applicant and the owner/operator of the range facility, if applicable.

(3) A copy of the applying school’s Articles of Incorporation, if applicable, or a copy of the applying school’s Certificate of Fictitious Name registration or both.

(c) After review of the completed school application and required documents, a comprehensive on-site school inspection will be conducted by a Department representative. The Commissioner’s approval to operate a certified training school will not be issued until the applying school has satisfied the inspection requirements. The inspection will include but is not limited to an examination of the physical facilities, instructional equipment, records, files, lesson plans, course materials and final examinations.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.34 Approval for school and course certification.

(a) If the Commissioner determines that the application for certification meets the requirements of the act and this chapter, he will issue his written approval. If the Commissioner determines that the applicant does not meet the requirements of the act and this chapter, he will issue his written adverse determination.

(b) The approval will be valid unless suspended, revoked or withdrawn.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.35 School inspections.

(a) Annual inspections. Each certified school must be completely inspected by a Department representative at least once during each calendar year. The school director shall be responsible for providing the Department inspector with the following:

(1) Comprehensive rules and regulations for student trainees.

(2) Complete student application procedures.

(3) Schedules of training courses.

(4) Complete schedules of tuition charges, and other training related charges.

(5) Complete current rosters of certified instructors, including designation of authorized instructional areas.

(6) Copies of lesson plans for the entire established course.

(7) Testing and grading systems, including copies of final examinations.

(8) Course materials, including books, handouts, and training aids.

(9) Records of class rosters, attendance lists, grades, firearms scores, and the like.

(10) Access to physical facilities used for training purposes.

(b) Written notice. The Department inspector will provide the school director with a written notice indicating whether or not the certified school passed inspection. In the event that the certified school does not pass inspection, the school director will be provided a written statement indicating the specific inspection deficiencies and required corrective action. The certified school may be subject to a follow-up inspection if the Department deems such to be appropriate.

(c) Other inspections. The Department reserves the right to inspect a certified school at any time. Each certified school must make its facilities, records, and classes available for inspection at any time during business hours, upon the demand of a Department representative.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.36 Operating provisions.

Each certified school must adhere to the following operating provisions:

(1) Testing and grading. Each certified school must ensure that the integrity of the testing and grading of student performance, under the course requirements established by the Commissioner, is constantly maintained as follows:

(i) Each student shall be administered a final examination for the basic academic module. The examination must consist of 50 multiple choice questions, with not less than two nor more than four valid distractors per question. Each question must count as two points.

(ii) Each certified school must develop not less than three complete final examinations for the academic module. No final examination shall be administered to a student class on a consecutive basis. The final basic examination must be of a 2 hour duration.

(iii) A student must attain a minimum score of 70% in the academic module and, if applicable, 75% in the firearms module to be eligible for certification.

(2) Course attendance. Each student must attend all instructional hours in order to be eligible for certification. No excused or unexcused absences from full course attendance are permitted. A student who is absent, shall be required to attend the instructional hours which he missed, at a subsequent date, prior to certification.

(3) Class size. A certified school must not conduct a training course with more than 40 students.

(4) Final grades and fees. Each certified school, within 5 working days of the close of a training course, must forward the following items to the Department:

(i) A fully executed original grade report sheet for each student in the course, regardless of whether or not the student successfully completes such course. The grade report sheet must contain the original signature of the school director. Grade report sheets are available from the Director, Bureau of Training and Education, State Police, Post Office Box AA, Hershey, Pennsylvania 17033.

(ii) An individual certified check, cashier’s check or money order in the amount of $25, payable to the ‘‘Pennsylvania State Police,’’ for each student who has successfully completed the required course. Personal checks will not be accepted.

(5) Instructional personnel. Each certified school must employ sufficient instructional personnel to ensure that the school can meet its course requirement obligations under the course schedule established for each course. Each certified school must have a copy of each instructor’s current instructor certification in its files, prior to the person performing instructional services.

(6) School certificate. Each certified school must prominently display the certification to operate a lethal weapons training school issued by the Commissioner on the school premises. A certified school must immediately surrender certificate to a Department representative upon service of a notice of suspension/revocation issued by the Commissioner.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.37 School prohibitions.

(a) Testing. No school director, instructor, or other person associated with a certified school shall aid or counsel an applicant or other person in regard to the required final examination, physical examination and psychological examination.

(b) Violation/penalty. A violation of subsection (a) may result in a suspension/revocation of school certification.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.41 Applicant qualification requirements.

A person who desires to be certified by the Commissioner to instruct a portion of a lethal weapons training course, must satisfy the following requirements:

(1) Age. The applicant must be at least 18 years of age.

(2) Documents and fees. The applicant must not have been convicted of a disqualifying criminal offense.

(3) Education and experience. The applicant must meet the minimum education and experience standards.

(i) Academic instructor rating. An instructor receiving this certification shall be authorized to teach one or more of the following course elements: Legal Authority, Constitutional Restrictions, Principles of Justification, Pennsylvania Crimes Code, Limited Authority, Incident Investigation and Reporting, Testifying in Court. An applicant for the Academic Instructor Rating must have, in addition to a course of study in 18 Pa.C.S. § § 101—9183 (relating to the Crimes Code) and 234 Pa. Code (relating to Rules of Criminal Procedure), at least one of the following:

(A) An Associate Degree from a college or university located within this Commonwealth in which the course major was Police Science, Police Administration, Law, Criminology, or a similar Criminal Justice/Law Enforcement curriculum.

(B) An Associate Degree from a college or university located outside of this Commonwealth in which the course major was Police Science, Police Administration, Law, Criminology, or a similar Criminal Justice/Law Enforcement curriculum.

(C) A combination of education, which in the opinion of the Commissioner is equivalent to the educational standards in clause (A) or (B), and a minimum of 2 years experience as an instructor in a police or security academy teaching similar course material.

(ii) Skills instructor rating. An instructor receiving this certification shall be authorized to teach the armed and unarmed defense course element. An applicant for the skills rating must have at least one of the following:

(A) An undergraduate degree in Physical Education and 1 year of experience in law enforcement, criminal justice, or the security industry.

(B) A high school diploma, or GED equivalent, and 3 years of full-time experience as a physical education or martial arts instructor.

(C) A combination of education/training, which in the opinion of the Commissioner is equivalent to the standard in clause (A) or (B).

(iii) Firearms instructor rating. An instructor receiving this certification shall be authorized to teach the firearms module. An applicant for the firearms instructor rating must be certifed as a police firearms instructor, or an equivalent thereto, by one of the following recognized organizations:

(A) National Rifle Association.

(B) Smith & Wesson Academy.

(D) State Police.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.42 Application procedure.

(a) An applying instructor must complete an application for instructor certification, which is available from the Director, Bureau of Training and Education, Pennsylvania State Police, Post Office Box AA, Hershey, Pennsylvania 17033.

(b) An applying instructor must submit the following items, where applicable, with the completed application:

(1) A certified copy of the college/university transcript which evidences compliance with the education standard.

(2) Documentary evidence of employment experience.

(3) Documentary evidence of instructor experience.

(4) A copy of the firearms instructor certification issued by a recognized organization.

(c) Upon presentation of a satisfactorily completed application for instructor certification with all applicable attachments, at a State Police station, except a Turnpike or Interstate station, except a Turnpike or Interstate station, the receiving State Police Officer shall fingerprint the instructor applicant and further process the form.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.43 Approval of instructor certification.

If the Commissioner determines that the applicant meets the requirements of the act and this chapter, he will issue his written approval. If the Commissioner determines that the applicant does not meet the requirements of the act and this chapter, he will issue his written adverse determination.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.51 Adverse determination.

When it is determined that a person or entity who has applied for certification/approval/exemption under the act is unqualified for the certification/approval/exemption, a written notice of adverse determination which must contain specific information regarding the applicant’s right to a hearing will be issued.

This section cited in 37 Pa. Code § 21.18 (relating to denial of application).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.52 Suspension/revocation.

(a) Proposed suspension/revocation. A notice of proposed suspension/revocation to a certified/approved person or entity may be issued. The notice will contain an explanation of the basis for his proposed suspension/revocation, with specific information regarding the individual’s or entity’s right to a hearing. If the notified party timely requests a hearing, the request shall serve to stay the proposed suspension/revocation pending the outcome of the hearing and the Commissioner’s final determination. The notice may be issued whenever:

(1) False fraudulent or misstated information is found to appear on any application or other document associated with the person or entity.

(2) A change of circumstances occurs that would render the person or entity ineligible, unqualified or otherwise unfit for certification/approval.

(3) A substantial violation of the act or this chapter is committed by the certified/approved person or entity.

(b) Summary suspension/revocation. In the event that the Commissioner determines that a certified/approved person or entity has a significant change of circumstances or has committed a serious violation of the act or this chapter which he determines to constitute a clear and present danger to the interests of the citizens of this Commonwealth, he will issue a notice of summary suspension/revocation. In these cases, the person or entity will have the right to a hearing within 15 days of the suspension/revocation.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.53 Hearings.

If a hearing is requested as a result of an adverse determination, proposed suspension/revocation or summary suspension/revocation, an administrative hearing will be scheduled and a notice of hearing will be sent to all parties to the proceedings. Hearings will be held at a location as determined by the Commissioner.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.54 Hearing examiner.

(a) A hearing examiner will be appointed by the Commissioner to conduct requested hearings.

(b) Subsection (a) supplements 1 Pa. Code § 35.185 (relating to designation of presiding officers).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.55 Evidence.

(a) Parties have the right of presentation of evidence, cross-examination, objection, motion, and argument. The hearing examiner will not be bound by technical rules of evidence, but all relevant and material evidence of reasonable probative value shall be admissible. The hearing examiner may limit the number of witnesses upon an issue and may require a party to present additional evidence on an issue. Witnesses shall be sworn or shall affirm.

(b) Applications, certifications, orders, and formal notices relating to the proceedings may be considered by the hearing examiner in deciding the case even though they have not been made a part of the record or referred to therein. The hearing examiner may also take official notice of an official or public document not relating to the proceeding and of a matter subject to judicial notice.

(c) Subsections (a) and (b) supplement 1 Pa. Code § § 35.161—35.169 and 35.173 (relating to evidence and official notice).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.56 Briefs.

(a) The parties may, and upon request shall, submit briefs within such time as the hearing examiner will prescribe and will serve a copy of the brief on the other parties.

(b) Subsection (a) supersedes 1 Pa. Code § 35.191 (relating to proceedings in which briefs are to be filed).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.57 Transcript.

(a) Hearings must be stenographically reported and a transcript of the report must be a part of the record.

(b) Parties desiring copies of the transcript may obtain copies from the official reporter. Parties will also have the opportunity to review a copy of the transcript on file with the Department.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.58 Witness fees.

(a) Witnesses subpoenaed by the State Police shall be paid the same fees and mileage as are paid for like services in the Courts of Common Pleas.

(b) Subsection (a) supersedes 1 Pa. Code § 35.139 (relating to fees of witnesses).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.59 Continuances.

Hearings will only be continued for compelling reasons. Requests for continuances shall be submitted to the hearing examiner, in writing, with a copy served upon other parties to the proceedings.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.60 Subpoenas.

(a) Upon request of a principal to the Director, Bureau of Training and Education, State Police, Post Office Box AA, Hershey, Pennsylvania 17033, the hearing examiner will for cause, issue subpoenas under the signature of the Commissioner and Seal of the Department. The subpoenas must be for the attendance of witnesses or production of documentary evidence, and shall be served in person or by certified mail, return receipt.

(b) Compliance with a subpoena may be excused by the Hearing Examiner when he determines that the testimony or documents are not relevant or material to the issues in hearing, or for other just causes.

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

37 Pa. Code § 21.61 Hearing examiner’s recommendation.

(a) At the conclusion of the proceedings, the hearing examiner will submit a written report to the Commissioner. His report will contain findings of fact, conclusions of law and recommendations.

(b) The recommendations will be reviewed and considered by the Commissioner in his disposition of the matter.

(d) Subsections (a)—(c) supersede 1 Pa. Code § § 35.201—35.207 (relating to proposed reports generally).

History

Authority: The provisions of this Chapter 21 issued under the Lethal Weapons Training Act (22 P.
Source: The provisions of this Chapter 21 adopted September 12, 1975, 5 Pa.

Chapter 23 Administration of the Bureau of Liquor Control Enforcement Age Compliance Check Program

37 Pa. Code § 23.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise: Age compliance check—An undercover investigation of a licensed premises during which an underage buyer purchases or attempts to purchase liquor or malt or brewed beverages under the supervision of a Bureau officer. Board-approved manager—A person appointed or designated by the licensee and approved by the Liquor Control Board under 40 Pa. Code § 5.16, § 5.17 or § 5.23 (relating to appointment of managers, distributor or importing distributor licensees: appointment of manager; and appointment of managers). Bureau officer—A State Police officer or liquor enforcement officer who is assigned to an age compliance check. Compliance—Refusing sale or service of liquor or malt or brewed beverages to the underage buyer as required by section 493(1) of the Liquor Code (47 P. S. § 4-493(1)). Enforcement Bureau or Bureau—The Bureau of Liquor Control Enforcement of the State Police. Licensed premises—A business licensed by the Liquor Control Board to sell liquor or malt or brewed beverages in this Commonwealth. Liquor—Includes any alcoholic, spirituous, vinous, fermented or other alcoholic beverage, or combination of liquors and mixed liquor a part of which is spirituous, vinous, fermented or otherwise alcoholic, including all drinks and drinkable liquids, preparations or mixtures, and reused, recovered or redistilled denatured alcohol usable or taxable for beverage purposes which contain more than .5% of alcohol by volume, except pure ethyl alcohol and malt or brewed beverages. Malt or brewed beverages—Any beer, lager beer, ale, porter or similar fermented malt beverage containing .5% or more of alcohol by volume, by whatever name the beverage may be called. Purchase—Obtaining food, nonalcoholic beverages, liquor, alcohol or malt or brewed beverages for consideration. Sale or sell—The transfer of liquor, alcohol or malt or brewed beverages for consideration. Underage buyer—An individual between 18 and 20 years of age who is an officer, employee or intern of the Enforcement Bureau and participates in an age compliance check.

History

Authority: The provisions of this Chapter 23 issued under section 1 of the act of December 3, 2002 (P.
Source: The provisions of this Chapter 23 adopted November 24, 2004, effective November 27, 2004, 34 Pa.

37 Pa. Code § 23.21 Required training.

(a) Bureau officers. Before participating in an age compliance check, Bureau officers shall complete training approved by the Enforcement Bureau.

(b) Underage buyers. Before participating in an age compliance check, an underage buyer shall:

(1) Complete a training course prescribed by the Enforcement Bureau, which includes instruction in at least the following areas of study:

(i) Sections 493(1) and 493(14) of the Liquor Code (47 P. S. § § 4-493(1) and 4-493(14)) and 18 Pa.C.S. § § 6307—6310.3.

(ii) Safety protocols.

(iii) Undercover investigations.

(iv) Testifying in court.

(v) Alcohol abuse.

(2) Pass an examination administered by the Enforcement Bureau.

History

Authority: The provisions of this Chapter 23 issued under section 1 of the act of December 3, 2002 (P.
Source: The provisions of this Chapter 23 adopted November 24, 2004, effective November 27, 2004, 34 Pa.

37 Pa. Code § 23.22 Age compliance checks.

(a) The age compliance check shall be conducted with at least one Bureau officer for each underage buyer.

(b) A Bureau officer shall be in charge of the age compliance check.

(d) The age compliance check shall be conducted at the licensed premises during regular business hours.

(e) The Bureau officer shall observe the activity inside the licensed premises and determine if it is safe and appropriate to conduct the age compliance check.

(f) Underage buyers may purchase or attempt to purchase liquor or malt or brewed beverages only during an age compliance check and only while under the direct supervision of a Bureau officer.

(g) Underage buyers may not consume liquor or malt or brewed beverages.

(h) If an underage buyer removes the liquor or malt or brewed beverages from the licensed premises, the underage buyer shall deliver the liquor or malt or brewed beverages to the Bureau officer as soon as possible, consistent with safety protocols.

History

Authority: The provisions of this Chapter 23 issued under section 1 of the act of December 3, 2002 (P.
Source: The provisions of this Chapter 23 adopted November 24, 2004, effective November 27, 2004, 34 Pa.

37 Pa. Code § 23.23 Notification of results of age compliance check.

A Bureau officer will be responsible for insuring notification is made of the results of the age compliance check to the Board-approved manager or person in charge of the licensed premises.

(1) If the licensed premises is not in compliance, immediate verbal notification will be provided followed by written notification within 10 working days.

(2) If the licensed premises is found to be in compliance, written notification of compliance will be provided within 10 working days.

(3) Verbal and written notification will include the date and time of the compliance check as well as the name of the server if known.

Section 23.23(1) does not apply only when the Bureau has to make an effective defense for an underage buyer engaging in the Bureau Age Compliance Check Program. The Bureau is always required to comply with § 23.23(1) without exception because 18 Pa.C.S. § 6308(e) shields an underage buyer engaging in the Bureau Age Compliance Check Program from criminal prosecution. Furthermore, the Bureau is always required to comply with § 23.23(1) because § 23.23(1) mandates without exception that immediate verbal notice must be provided by the Bureau to the licensee who violated the Bureau Age Compliance check Program. Eric’s Sports Bar, Inc. v. Pennsylvania State Police, Bureau of Liquor Control, 6A.3d 663, 667 (Pa. Cmwlth. 2010).

History

Authority: The provisions of this Chapter 23 issued under section 1 of the act of December 3, 2002 (P.
Source: The provisions of this Chapter 23 adopted November 24, 2004, effective November 27, 2004, 34 Pa.

Chapter 31 Standards for Licensed Retail Dealers Under the Uniform Firearms Act

37 Pa. Code § 31.101 Scope.

This chapter sets forth regulations for the storage of firearms by licensed retail dealers if a clear and present danger to public safety is found by the Commissioner to exist within this Commonwealth during the hours when the licensed retail dealer is closed for business. This chapter applies to all licensed retail dealers and their designated employees.

The provisions of this § 31.101 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 31 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this § 31.

37 Pa. Code § 31.102 Definitions.

The following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise: Act—The Pennsylvania Uniform Firearms Act of 1995, 18 Pa.C.S. Chapter 61, Subchapter A. Commissioner—The Commissioner of the State Police. Designated employee—An employee of the licensed retail dealer who is designated by the licensed retail dealer to have direction or control in the sale of firearms to the consumer—for example, sporting goods department manager, firearms department manager. Firearm—Unless otherwise defined a weapon which is designed to or may readily be converted to expel a projectile by the action of an explosive or the frame or receiver of the weapon. Licensed retail dealer—A person, partnership, association or corporation licensed to sell or transfer firearms to the consumer.

The provisions of this § 31.102 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 31 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this § 31.

37 Pa. Code § 31.103 Responsibilities of licensed retail dealers and designated employees.

(a) General. If a clear and present danger to public safety is found by the Commissioner to exist in this Commonwealth, licensed retail dealers located in the affected area, upon public announcement by the Commissioner as referred to in section 6113 of the act (relating to licensing of dealers), shall securely store all firearms which are on the business premises during the hours when the licensed retail dealer is closed for business.

(b) Storage. Licensed retail dealers located in the affected area, upon public announcement by the Commissioner, are required to comply with one of the following:

(1) All firearms shall be removed from public display. This includes firearms in display cases, racks and shelves within the premises. These firearms shall be placed in a suitable safe, vault or storeroom until the Commissioner has declared the danger to have ceased.

(2) Those licensed retail dealers who do not have a suitable safe, vault or storeroom shall remove all firearms from public view. A bolt, cylinder or any other essential part the absence of which would make the firearm inoperable shall be removed from each firearm and stored at a location other than the licensed retail dealer’s place of business until the Commissioner has declared the danger to have ceased. The location shall be at a place geographically removed from the emergency and shall restrict unauthorized access.

(1) In the absence of the licensed retail dealer, the designated employee is responsible for the securing of firearms according to subsection (b).

(2) Licensed retail dealers shall instruct their designated employees of the storage requirements of firearms, if the Commissioner finds a time of clear and present danger to public safety.

The provisions of this § 31.103 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 31 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this § 31.

37 Pa. Code § 31.104 Storage requirements.

(a) A suitable storeroom for the storage of firearms shall consist of a separate room or closet located inside the premises. There may not be any windows or outside exits to this room. The entrance door of the storeroom shall be of solid wood or metal with the hinges to be designed and located so the pins cannot be pulled from outside the room. Door locks shall be the cylinder type, in good working order, firmly set in place, and with locking bolts or bars so designed that they cannot be pushed back with a thin instrument such as a knife blade or plastic card. The ceiling, floor and walls shall be constructed of wood, metal or wallboard to prevent entrance from an adjoining building or room.

(b) Vaults or safes employed to store the firearms shall be constructed of metal, steel or similar materials to prevent unauthorized entry.

(c) The premises or storeroom of a licensed retail dealer may be equipped with other security devices which the retail dealer deems necessary in addition to the requirements in this chapter.

The provisions of this § 31.104 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 31 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this § 31.

37 Pa. Code § 31.105 Commissioner’s notification.

(a) If the Commissioner determines that a clear and present danger to public safety in this Commonwealth exists, the Commissioner will notify all licensed retail dealers through public announcements through the news media.

(b) If the Commissioner determines that the clear and present danger to public safety in this Commonwealth has ceased, the Commissioner will notify all licensed retail dealers through public announcements through the news media.

The provisions of this § 31.105 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 31 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this § 31.

37 Pa. Code § 31.106 Fines and other penalties.

Failure of any licensed retail dealer or a designated employee to abide by this chapter may result in prosecution under the act.

The provisions of this § 31.106 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 31 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this § 31.

Chapter 33 Procedures and Specifications for Firearm Record Forms Under the Uniform Firearms Act

37 Pa. Code § 33.101 Authority.

(a) The General Assembly has declared its intention to provide support to law enforcement in the area of crime prevention and control, and that it is not the policy of the Commonwealth to place undue or unnecessary restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, transfer, transportation or use of firearms, rifles or shotguns for personal protection, hunting, target shooting, employment or other lawful activity.

(b) The General Assembly further declared that this policy is not intended to discourage or restrict the private ownership and use of firearms by law-abiding citizens for lawful purposes or to provide for the imposition by rules or regulations of any procedures or requirements other than those necessary to implement and effectuate the act.

The provisions of this § 33.101 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.102 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Firearm as defined in section 6102 of the act—A pistol or revolver with a barrel length less than 15 inches, a shotgun with a barrel length less than 18 inches or a rifle with a barrel length less than 16 inches, or a pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable. Firearm as defined in section 6111.2 of the act—A weapon which is designed to or may readily be converted to expel a projectile by the action of an explosion or the frame or receiver of the weapon. Gun show/meet—A function sponsored by a National, state or local organization, devoted to the collection, competitive use or other sporting use of firearms, as defined in section 6111.2 of the act (relating to firearm sales surcharge), or an organization or association that sponsors functions devoted to the collection, competitive use or other sporting use of firearms, as defined in section 6111.2 of the act, in the community. Handgun—A pistol or revolver with a barrel length less than 15 inches, a shotgun with a barrel length less than 18 inches or a rifle with a barrel length less than 16 inches, or a pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm is determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable as defined in section 6102 of the act. Identification—

(i) Includes the following documents, which shall be accepted by dealers:

(A) A valid photo driver’s license.

(B) A valid government-issued photo identification card.

(ii) To be acceptable, a government-issued photo identification card shall contain the holder’s name, date of birth and signature. If it does not contain the holder’s current address, another document containing that address such as a current utility bill, residential lease agreement, mortgage, and the like, shall be presented.

(iii) If the applicant is a member of a religious sect or community whose tenets forbid or discourage the taking of photographs, dealers shall accept a valid without-photo driver’s license, or a combination of three of the following types of identification. If none of those three contain the applicant’s current address, the applicant shall have another document containing the name and current address such as a current utility bill, residential lease agreement, mortgage, and the like.

(A) A valid government-issued identification card.

(B) A birth certificate.

(D) A valid Pennsylvania license to carry firearms issued under section 6109 of the act (relating to licenses). To be accepted as a valid Pennsylvania license to carry firearms, a license issued after July 1, 1998, shall be on a form identical to the one prescribed by the State Police. Licensee—A person, partnership, association or corporation issued a license by the Commonwealth, or a political subdivision thereof, to sell or transfer a firearm. Long-gun—The term includes any weapon, that is not a handgun, designed to or may readily be converted to expel a projectile by the action of an explosion, or the frame or receiver of the weapon. PICS—Pennsylvania Instant Check System—The Pennsylvania instantaneous records check system established under the act and in accordance with the Brady Handgun Violence Prevention Act, 18 U.S.C.A. § § 921—925A. Private sale—A sale or transfer between two non-licensed persons as referred to in section 6111 of the act (relating to sale or transfer of firearms). Responsible person—In addition to a sole proprietor, a responsible person is:

(i) In the case of a corporation, partnership or association, an individual possessing, directly or indirectly, the power to direct or cause the direction of the management, policies and practices of the corporation, partnership or association, insofar as they pertain to firearms, as defined in section 6111.2 of the act.

(ii) In the case of a corporation, association or similar organization, a person owning 10% or more of the outstanding shares of stock issued by the applicant, and the officers and directors thereof. Sheriff—The sheriff of the county, or the chief or head of the police department in a city of the first class.

The provisions of this § 33.102 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

This section cited in 37 Pa. Code § 33.111 (relating to application/record of sale).

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.103 Confidentiality.

(a) Information furnished under this chapter by an applicant, purchaser, transferee or licensee, or collected by the designated issuing authority under this chapter, is confidential and not subject to public disclosure.

(b) Information collected or maintained under this chapter by the State Police is confidential and not subject to public disclosure.

(c) Nonpublic disclosure by the State Police of information collected, furnished or maintained under this chapter is restricted to:

(1) Disclosure upon request of the applicant, licensee, purchaser or transferee, as described in sections 6109 and 6111 of the act (relating to licenses; and sale or transfer of firearms), upon documentary certification that the requestor is in fact the applicant, licensee, purchaser or transferee.

(2) Disclosure upon request of a county sheriff or a criminal justice agency, defined as any court, including the minor judiciary, with criminal jurisdiction or any other governmental agency, or subunit thereof, created by statute or by the State or Federal constitution, specifically authorized to perform as its principal function the administration of criminal justice, and which allocates a substantial portion of its annual budget to this function. Criminal justice agencies include: organized State and municipal police departments, local detention facilities, county, regional and State correctional facilities, probation agencies, district or prosecuting attorneys, parole boards, pardon boards and agencies or subunits thereof, as are declared by the Attorney General to be criminal justice agencies as determined by a review of applicable statutes and the State or Federal Constitution, or both.

(d) No disclosure of information forwarded, collected or maintained under this chapter will be made to requests of noncriminal justice agencies, or individuals other than the applicant, licensee, purchaser or transferee as described in sections 6109 and 6111 of the act.

(e) Mental health records information received or maintained by the State Police under section 6111.1(b) and (f) of the act (relating to Pennsylvania State Police) and section 109(d) of the Mental Health Procedures Act (50 P.S. § 7109(d)) are confidential and not subject to disclosure, except for all of the following:

(1) The information will be available to the State Police for the purposes of determining, under sections 6109(d) and 6111.1(b) of the act, if the potential applicant is prohibited from possessing, using, controlling, selling, transferring or manufacturing a firearm, or obtaining a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth, as defined under Federal or State law, and for the purpose of informing the licensee/sheriff making inquiry under sections 6109(d) and 6111.1(b)(iii) of the act.

(2) The State Police may disclose the information in accordance with section 111(b) of the Mental Health Procedures Act (50 P.S. § 7111(b)).

The provisions of this section amended under section 111(b) of the Mental Health Procedures Act (50 P.S. § 7111(b)).

The provisions of this § 33.103 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145; amended August 24, 2018, effective August 25, 2018, 48 Pa.B. 5358. Immediately preceding text appears at serial pages (274725) to (274726).

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.111 Application/record of sale.

(a) Description. The application/record of sale, Form SP 4-113, is a prenumbered three-part form furnished through the State Police under section 6111 of the act (relating to sale or transfer of firearms) and is used to record firearm transactions. A written request for these forms may be directed to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110. Telephone requests will not be honored. Forms will be furnished to the licensee/sheriff and shall be requested at least 3 weeks prior to the time of actual need.

(b) Requirements.

(1) The application/record of sale shall be either typewritten or printed in blue or black ink with a ballpoint pen. Copies shall contain legible impressions. It is the responsibility of the licensee/sheriff, and the transferee/purchaser, to ensure the form is accurately completed as indicated in the block instructions (relating to fines and other penalties). The original shall be transmitted by the licensee/sheriff within 14 days of the sale/transfer by first class mail to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110. The first copy shall be retained by the licensee/sheriff for 20 years and filed in a book form in chronological order, with the latest date to the front. The second copy shall be provided to the transferee/purchaser.

(2) If a licensed business is discontinued and succeeded by a new licensee, the records prescribed by this section including both completed and blank application/record of sale forms, shall be delivered to the successor. When discontinuance of the business is absolute, the records shall be delivered within 30 days following the business discontinuance to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110.

(c) Retail sale/transfer of a handgun or long gun prior to the implementation of the instantaneous background check. The following are steps for completing the application/record of sale for a retail sale/transfer of a handgun or, a long gun as required in section 6111(b)(1.1)(i) of the act, prior to the implementation of the instantaneous background check.

(1) The applicant is provided an application/record of sale form and the applicant shall complete the applicable blocks as indicated on the form. If the applicant does not complete all of the required information or checks ’’yes’’ to any of the questions under transferee’s/purchaser’s information on the form, the sale/transfer may not take place.

(2) The licensee/sheriff shall check the applicant’s identification and ensure it meets the requirements under § 33.102 (relating to definitions).

(3) The licensee/sheriff shall ensure the form has been accurately completed.

(4) The licensee/sheriff shall comply with any applicable waiting period (Federal or State).

(5) If the sale/transfer is not denied, the transaction may be completed and the licensee/sheriff shall complete the applicable sections on the form as per block instructions, and provide the transferee/purchaser a summary of the uniform firearm laws which includes a safety brochure. The transferee/purchaser shall then sign the designated block on the form.

(d) Retail sale/transfer of a handgun or long gun after the implementation of the instantaneous background check. The following are steps for completing the application/record of sale for a retail sale/transfer of a handgun or long gun as required in section 6111(b)(1.1)(i) of the act, upon the implementation of the instantaneous background check. If the system becomes inoperable for a period exceeding 48 hours as indicated by the State Police at the time an instant background check is requested, the licensee/sheriff shall follow the procedures outlined in subsection (c) for any firearm. This procedure shall stay in effect during the time indicated by State Police at the time of the check. However licensees are still required to comply with the Federal requirements of 18 U.S.C.A. § 922(T) (relating to the National Instant Criminal Background Check System).

(1) The applicant is provided an application/record of sale form and shall complete the applicable blocks as indicated on the form. If the applicant does not complete all of the required information or checks ‘‘yes’’ to any of the questions under transferee’s/purchaser’s information on the form, the sale/transfer may not take place.

(2) The licensee/sheriff shall check the applicant’s identification and ensure it meets the requirements under § 33.102.

(3) The licensee/sheriff shall ensure the form has been accurately completed.

(4) The licensee/sheriff shall request an instantaneous background check be conducted on the applicant.

(5) If the applicant’s instantaneous background check is approved, the transaction may be completed and the licensee/sheriff shall complete the applicable sections on the form as per block instructions, and provide the transferee/purchaser a summary of the uniform firearm laws which includes a safety brochure. The transferee/purchaser shall then sign the designated block on the form.

(e) Private sale/transfer of handgun. The following are the steps for completing the application/record of sale for a private sale/transfer involving a handgun:

(1) The licensee/sheriff shall follow the same procedures as outlined in either subsection (c) or (d), except that the transferor’s/seller’s information shall also be included in Section F on the form before the private sale/transfer can be completed. If the transfer is by intestate succession or by bequest, the executor or administrator shall act in the capacity of the transferor/seller. Private sales shall occur only at the place of business of the licensee, or sheriff’s office. The licensee/sheriff shall follow the procedures as if he was the seller.

(2) The licensee/sheriff shall retain the application/record of sale as though he were the seller.

(f) Approval number. An approval number shall be issued through the instant background check system for use by the licensee/sheriff for approval of an applicant to complete a firearm, as defined in section 6111.2 of the act (relating to firearm sales surcharge), transaction. If the applicant chooses to complete other firearm transactions on the same day with the same licensee/sheriff, the approval number shall be valid for use on the subsequent application/record of sale forms. If the applicant chooses to complete a firearm transaction with a different licensee/sheriff, a new approval number shall be obtained from the State Police by that licensee/sheriff and it shall be valid for all firearm transactions made with the licensee/sheriff for that date, and so on. The applicant shall be issued a receipt from the licensee/sheriff for each firearm transaction made. It shall contain the approval number for the firearm transaction, and date it was given. The application/record of sale may serve as the receipt.

(g) Preapproval. At an auction or gun show/meet, an approval number may be obtained by a potential transferee/purchaser for use during a later firearm transaction, as defined in section 6111.2 of the act. The potential transferee/purchaser shall be required to present the required identification to the licensee/sheriff, complete Section B on the application/record of sale and pay the required fee. The licensee/sheriff shall then request that an instantaneous background check be conducted on the potential transferee/purchaser. If approved, the licensee/sheriff shall place the approval number and date on the application, and retain it pending any transactions made by the potential transferee/purchaser on that date.

(1) If the potential transferee/purchaser conducts a transaction that requires a completed application/record of sale, the form shall be completed and the transferee/purchaser shall be given a copy to serve as the receipt.

(2) If the transferee/purchaser conducts a transaction that does not require a completed application/record of sale, the transferee/purchaser shall be given a copy of the partially completed form to serve as the receipt. The State Police copy shall be voided and forwarded to the State Police. The licensee’s/sheriff’s copy shall be retained as required. The licensee/sheriff shall ensure the fee is included with the surcharge remittance form.

(3) If no transaction is made on that date, the licensee/sheriff shall void the form. The State Police copy shall be voided and forwarded to the State Police. The licensee’s/sheriff’s copy shall be retained as required. The licensee/sheriff shall ensure the fee is included with the surcharge remittance form.

(h) Fees.

(1) Firearm sales surcharge. It is the responsibility of the licensee/sheriff to collect the firearm sales surcharge from the purchaser at the time of the transaction of the firearm, as defined in section 6111.2 of the act.

(2) Instantaneous records check. When the instantaneous records check is operational, a fee shall be collected by the licensee/sheriff from the requestor at the time a check is requested, under section 6111(b)(3) of the act.

(3) Transmittal of fees. The fees as described in paragraphs (1) and (2), shall be transmitted by the licensee/sheriff within 14 days of collection by first class mail to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110.

(i) Transmission of fees/surcharges. The licensee/sheriff shall utilize the surcharge remittance form, and if necessary, the surcharge remittance continuation form, when transmitting the fees/surcharges referenced in this subsection. Refer to § 33.112 (relating to surcharge remittance form).

The provisions of this § 33.111 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

This section cited in 37 Pa. Code § 33.113 (relating to surcharge remittance continuation form).

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.112 Surcharge remittance form.

(a) The surcharge remittance form shall be used by the licensee/sheriff to supply the State Police a record of the number of private sales processed, long-guns and handguns sold, telephone instantaneous records checks approved/denied, verification that a background check has been completed for each purchase/transfer as required by the act, and as a means to calculate the amount of fees/surcharges owed by the licensee/sheriff. The surcharge remittance form shall be uniform throughout this Commonwealth and shall be on a form prescribed by the State Police. The form shall be 8 1/2 inches by 11 inches in dimension, on plain white paper.

(b) It is the responsibility of the licensee/sheriff to ensure the form is accurately completed as indicated in the block instructions. The form may be typewritten, computer generated or printed in blue or black ink with a ballpoint pen. Copies shall contain legible impressions. The original shall be transmitted by the licensee/sheriff along with a check payable to ‘‘Pennsylvania State Police FSSF’’ covering the total amount of surcharge/fee owed within 14 days of a sale, transfer or instantaneous records check by first class mail to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110.

The provisions of this § 33.112 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

This section cited in 37 Pa. Code § 33.111 (relating to application/record of sale).

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.113 Surcharge remittance continuation form.

(a) The surcharge remittance continuation form shall be uniform throughout this Commonwealth and shall be on a form prescribed by the State Police. The form shall be 8 1/2 inches by 11 inches in dimension, on plain white paper. The form shall be used by the licensee/sheriff when additional space is needed to record approval numbers/dates approved as required in § 33.111 (relating to application/record of sale).

(b) It is the responsibility of the licensee/sheriff to ensure the form is accurately completed as indicated in the block instructions. The form may be typewritten, computer generated or printed in blue or black ink with a ballpoint pen. Copies shall contain legible impressions. The original shall be transmitted by the licensee/sheriff along with the corresponding surcharge remittance form within 14 days of a sale, transfer or instantaneous records check by first class mail to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110.

The provisions of this § 33.113 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.114 Application for a Pennsylvania license to carry firearms.

(a) The application for a Pennsylvania license to carry firearms (as defined in section 6102 of the act (relating to definitions)) form, is used to apply for an original/renewal of a Pennsylvania license to carry firearms and shall be uniform throughout this Commonwealth. It shall be on a form prescribed by the State Police. The form shall be 8 1/2 inches by 11 inches in dimension, on plain white paper. The form shall be used by the issuing authority, that is, county sheriff or a chief of police for a city of the first class, to conduct an investigation within 45 days relative to whether the applicant would be precluded from receiving a license under the conditions in the act.

(b) The application for a Pennsylvania license to carry firearms (as defined in section 6102 of the act) shall be typewritten, computer generated or printed in blue or black ink with a ballpoint pen. Copies shall contain legible impressions. It is the responsibility of the issuing authority to utilize the form as prescribed by the State Police, and ensure it is accurately completed in accordance with the block instructions contained therein. The form shall be retained by the issuing authority for 6 years.

(c) At least 60 days prior to the expiration of each license, the issuing sheriff shall send to the licensee an application for a renewal of license. Failure to receive a renewal application does not relieve a licensee from the responsibility to renew the license.

The provisions of this § 33.114 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.115 Pennsylvania license to carry firearms.

(a) The Pennsylvania license to carry firearms (as defined in section 6102 of the act (relating to definitions)) form, shall be constructed as a three-part form, 3 inches by 5 3/8 inches in dimension, on white paper. The issuing authorities, that is, county sheriff or a chief of police for a city of the first class, shall utilize the form as prescribed by the State Police.

(b) The Pennsylvania license to carry firearms (as defined in section 6102 of the act) shall be typewritten, computer generated or printed in blue or black ink with a ballpoint pen. Copies shall contain legible impressions. A photograph of the applicant may be placed on the license if required by the issuing authority.

(c) The form is designed to be folded in half and may be laminated. At the option of the entity furnishing the form, the paper weight of each part may be a minimum of 14 pounds up to a maximum of 28 pounds, and impressions may be produced by utilizing either carbon inserts or no carbon required (NCR) paper. Forms shall be numbered in numerical sequence and the size of the license numbers shall be at least 3/16 of an inch. The first two numbers shall be the county location code followed by the license number—for example, if the license was issued by Dauphin County, the license number would be 22-0000001, and so on.

(d) Under section 6109 of the act (relating to licenses), the original shall be issued to the licensee and be valid for 5 years from date of issue, unless revoked sooner. The first copy shall be transmitted by the issuing authority within 7 business days by first class mail to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110. The second copy shall be retained by the issuing authority for 6 years.

The provisions of this § 33.115 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.116 Application for a Pennsylvania license to sell firearms.

(a) The application for a Pennsylvania license to sell firearms form is used to apply for an original/renewal of a Pennsylvania license to sell firearms and shall be uniform throughout this Commonwealth. It shall be on a form prescribed by the State Police. The form shall be 8 1/2 inches by 11 inches in dimension, on plain white paper. The form shall be used by the issuing authority, that is, the chief or head of any police department of a city, and elsewhere, the sheriff of the county, to conduct an investigation relative to whether the applicant would be precluded from receiving a license under the conditions in the act.

(b) The application for a Pennsylvania license to sell firearms shall be either typewritten, computer generated or printed in blue or black ink with a ballpoint pen. Copies shall contain legible impressions. It is the responsibility of the issuing authority to utilize the form and to ensure it is accurately completed as indicated in the block instructions. The original shall be transmitted by the issuing authority within 7 business days by first class mail to the Pennsylvania State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110. The issuing authority shall retain a duplicate copy for 6 years.

(c) By signing the application, the applicant is acknowledging that if a license be granted, the applicant gives permission to the Pennsylvania State Police, or their designee, and the issuing authority to come to the licensee’s business location and inspect the premises, records, and documents without a warrant, to ensure compliance with this chapter, and the act.

The provisions of this § 33.116 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.117 Pennsylvania license to sell firearms.

(a) The Pennsylvania license to sell firearms form shall be uniform throughout this Commonwealth and shall be on a form prescribed by the State Police. The license shall be 8 1/2 inches by 11 inches in dimension, on plain white paper. The license shall be granted to reputable applicants by the issuing authority. The Pennsylvania license to sell firearms is required for any person engaged in the business of selling or transferring firearms as defined in section 6113(d) of the act (relating to licensing of dealers).

(b) The Pennsylvania license to sell firearms shall be either typewritten, computer generated or printed in blue or black ink with a ballpoint pen in three counterparts. Copies shall contain legible impressions. It is the responsibility of the issuing authority to ensure the form is accurately completed as indicated in the block instructions, and that the State Police Firearm Unit is contacted, at (717) 783-5495, to obtain a specific license number for the form. The issuing authority shall use only the license prescribed by the State Police.

(c) The original shall be delivered to the licensee to be displayed as prescribed by the act and is valid for 3 years from date of issue. The first copy shall be transmitted by the issuing authority within 7 business days by first class mail to the Pennsylvania State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110. The issuing authority shall retain the second copy for 6 years.

The provisions of this § 33.117 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.118 Pennsylvania sportsman’s firearm permit.

(a) The Pennsylvania sportsman’s firearm permit form is a prenumbered three-part form furnished by the State Police under section 6106(c) of the act (relating to firearms not to be carried without a license). This permit, granting exemption to section 6106(a) of the act, is issued in conjunction with a hunting, furtaking or fishing license, or permit relating to hunting dogs, under section 6106(b)(9) and (10) and (c) of the act. A written request for these forms may be directed to the Pennsylvania State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110. Telephone requests will not be honored. The State Police shall furnish official permit forms to the county treasurer upon request. Requests shall be made 3 weeks prior to the time of actual need. Upon receipt, the county treasurer shall remit to the State Police the sum of $1 for each official permit form furnished in accordance with section 6106 (c) of the act.

(b) The Pennsylvania sportsman’s firearm permit shall be completed as indicated in the block instructions. It can either be typewritten or printed in blue or black ink with a ballpoint pen. Copies shall contain legible impressions. The original shall be issued to the licensee and is valid for 5 years from date of issue. The first copy shall be transmitted by the issuing authority within 7 business days by first class mail to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110. The issuing authority shall retain the second copy for 2 years after the expiration date.

The provisions of this § 33.118 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.119 Revocations.

(a) A Pennsylvania license to carry firearms, Pennsylvania license to sell firearms or a Pennsylvania sportsman’s firearm permit may be revoked by the issuing authority for good cause.

(b) Notice of revocation shall be in writing upon the official letterhead stationery of the issuing authority and shall state the reason for revocation, the full name and date of birth of the licensee as it appears on the license/permit, the number of the license/permit and the date of revocation.

(c) The notice shall be sent by certified mail, and, at that time, a copy shall be forwarded to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110.

(d) An individual whose license/permit is revoked shall surrender the license/permit to the issuing authority within 5 days of the receipt of notice.

The provisions of this § 33.119 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.120 Notification of mental health commitment.

(a) The notification of mental health commitment and adjudication of incompetence shall be consistent in form and format throughout this Commonwealth. The notification form and format shall be prescribed by the State Police and used by the judges of the courts of common pleas, mental health review officers and county mental health and mental retardation administrators for notifying the State Police of individuals who have been adjudicated as an incompetent or who have been involuntarily committed to a mental institution for impatient care and treatment under section 302, 303 or 304 of the Mental Health Procedures Act (50 P. S. § § 7102, 7103 and 7104). Following a notification submitted to the State Police that inpatient care was necessary for a person or that a person was commitable, if an examining physician subsequently determines that no severe mental disability existed pursuant to section 302(b) of the Mental Health Care Procedures Act, that examining physician shall utilize the form and format to provide notice to the State Police to expunge the previously submitted notification in accordance with section 6111.1(g)(3) of the act (relating to Pennsylvania State Police).

(b) It is the responsibility of the judges of the courts of common pleas, mental health review officers and county mental health and mental retardation administrators to ensure the notification provides complete and accurate information. The notification shall include: The full name of the individual who was involuntarily committed or adjudicated incompetent, at least one numeric identifier (date of birth or Social Security number, or both), and physical description; notification of the type of commitment and date of the commitment or adjudication of incompetence; the county submitting the information, and name, address and telephone number of the notifying official; examining physician’s certification on 302 commitments; facility where the commitment occurred; court case number and date of court order, where applicable. The notification shall be made to the State Police by the judges of the courts of common pleas, mental health review officers and mental health and mental retardation administrators within 7 days of the adjudication, commitment or treatment, or determination by an examining physician of the lack of severe mental disability following the initial commitment as set forth in subsection (a), by the form and format prescribed by the State Police. Notification made by mail, shall be directed to the Pennsylvania State Police, Attention: Firearm Division, PICS Operations, 1800 Elmerton Avenue, Harrisburg, PA 17110. The envelope shall be marked ‘‘Confidential.’’

The provisions of this § 33.120 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.121 PICS firearm acquisition/license to carry/denial challenge.

(a) The PICS firearm acquisition/license to carry/denial challenge form, shall be furnished to licensed firearms dealers and county sheriffs in this Commonwealth, to be provided to individuals upon request, who are denied the ability to purchase or acquire a firearm, as defined in section 6111.2 of the act (relating to firearms sales surcharge) or a license to carry a firearm, based upon a PICS firearms background check determination. A written request for these forms may be directed to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110. Forms shall be furnished to the firearms dealer/sheriff and shall be requested at least 3 weeks prior to the time of actual need.

(b) The PICS firearm acquisition/license to carry/denial challenge form shall be either typewritten or printed in blue or black ink pen. The form shall be completed containing legible impressions. It shall be the responsibility of the individual submitting the denial challenge to ensure the form is accurately completed. The form shall be submitted within 30 days of the PICS denial determination by the requesting individual, by first class mail, to the State Police, Attention: Firearm Unit, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110.

The provisions of this § 33.121 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.122 Fines and other penalties.

This chapter is promulgated under the authority contained in the act, and will be prosecuted as a violation of the act.

The provisions of this § 33.122 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

37 Pa. Code § 33.131 Forms.

(a) The following forms have been promulgated by the State Police under authority of the act and this subpart.

(1) Application/Record of Sale.

(2) Surcharge Remittance Form.

(3) Surcharge Remittance Continuation Form.

(4) Application for a Pennsylvania License to Carry Firearms.

(5) Pennsylvania License to Carry Firearms.

(6) Application for a Pennsylvania License to Sell Firearms.

(7) Pennsylvania License to Sell Firearms.

(8) Pennsylvania Sportsman’s Firearm Permit.

(9) Notification of Mental Health Commitment.

(10) PICS Firearm Acquisition/ License to Carry/Denial Challenge.

(b) The forms are available from the State Police by contacting: Pennsylvania State Police, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110.

The provisions of this § 33.131 adopted February 23, 2001, effective February 24, 2001, 31 Pa.B. 1145.

History

Authority: The provisions of this Chapter 33 amended under the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.
Source: The provisions of this Chapter 33 adopted September 14, 1979, effective September 15, 1979, 9 Pa.

Chapter 41 Designation of Emergency Vehicles

37 Pa. Code § 41.1 Purpose.

This chapter establishes procedures for the designation of emergency vehicles by the State Police.

The provisions of this § 41.1 adopted May 21, 1982, effective March 10, 1979, 12 Pa.B. 1640.

History

Authority: The provisions of this § 41.
Source: The provisions of this Chapter 41 adopted May 21, 1982, effective March 10, 1979, 12 Pa.

37 Pa. Code § 41.2 Scope.

This chapter applies to emergency vehicle designations. Vehicles which are specifically listed within 75 Pa.C.S. § 102 (relating to definitions) as emergency vehicles do not require written designation.

The provisions of this § 41.2 adopted May 21, 1982, effective March 10, 1979, 12 Pa.B. 1640.

History

Authority: The provisions of this § 41.
Source: The provisions of this Chapter 41 adopted May 21, 1982, effective March 10, 1979, 12 Pa.

37 Pa. Code § 41.3 Authority.

Designations shall be made under 75 Pa.C.S. § 6106 (relating to designation of emergency vehicles by Pennsylvania State Police), which provides that the State Police may designate a vehicle or group of vehicles as emergency vehicles upon a finding that the designation is necessary to the preservation of life or property or to the execution of emergency governmental functions.

The provisions of this § 41.3 adopted May 21, 1982, effective March 10, 1979, 12 Pa.B. 1640.

History

Authority: The provisions of this § 41.
Source: The provisions of this Chapter 41 adopted May 21, 1982, effective March 10, 1979, 12 Pa.

37 Pa. Code § 41.4 Application.

Procedure. Application for an emergency vehicle designation shall be made to the State Police on the Emergency Vehicle Designation, Form SP 6-115.

(1) Application forms may be obtained from the State Police, Director, Bureau of Patrol, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17109.

(2) Applications shall be notarized and submitted in duplicate.

(3) The Bureau of Patrol has the authority for approval or disapproval of applications. An applicant will be notified by mail of the disposition of the application.

The provisions of this § 41.4 adopted May 21, 1982, effective March 10, 1979, 12 Pa.B. 1640; amended November 5, 1982, effective November 6, 1982, 12 Pa.B. 3901. Immediately preceding text appears at serial pages (70877) to (70878).

History

Authority: The provisions of this § 41.
Source: The provisions of this Chapter 41 adopted May 21, 1982, effective March 10, 1979, 12 Pa.

37 Pa. Code § 41.5 Eligibility.

(a) Considerations. The following vehicles may qualify for an emergency vehicle designation:

(1) The Pennsylvania Emergency Management Agency and local emergency management organization vehicle.

(2) Bona fide rescue organization vehicle.

(3) Department of Corrections vehicles used by members of the Department’s Hostage Rescue Teams, Hostage Negotiation Teams, Corrections Emergency Response Teams, Corrections Rifle Specialist Teams and Central Office Special Teams Coordinator.

(b) Exclusions. Private vehicles of the following persons will not be considered for an emergency vehicle designation:

(1) Volunteer firemen, fire commissioners, fire inspectors, fire police, fire engineers, other fire department or fire company personnel and members of rescue organizations.

(2) Police, special police, auxiliary police, part-time police, constables, security police and campus police.

(3) Pennsylvania Emergency Management Agency, local emergency management organization or disaster control personnel.

(4) Red Cross personnel.

(5) Military personnel.

(6) The Department of Corrections, its personnel, and members of its Hostage Rescue Teams, Hostage Negotiation Teams, Corrections Emergency Response Teams, Corrections Rifle Specialist Teams and Central Office Special Teams Coordinator.

The provisions of this § 41.5 amended under the Vehicle Code, 75 Pa.C.S. § 6106.

The provisions of this § 41.5 adopted May 21, 1982, effective March 10, 1979, 12 Pa.B. 1640; amended November 5, 1982, effective November 6, 1982, 12 Pa.B. 3901; amended September 17, 2004, effective September 18, 2004, 34 Pa.B. 5134. Immediately preceding text appears at serial page (297814).

History

Authority: The provisions of this § 41.
Source: The provisions of this Chapter 41 adopted May 21, 1982, effective March 10, 1979, 12 Pa.

37 Pa. Code § 41.6 Red lights and audible warning system.

Equipment authorized or required by 75 Pa.C.S. (relating to Vehicle Code), for emergency vehicles shall conform to 67 Pa. Code Part I (relating to Department of Transportation).

The provisions of this § 41.6 adopted May 21, 1982, effective March 10, 1979, 12 Pa.B. 1640; amended November 5, 1982, effective November 6, 1982, 12 Pa.B. 3901. Immediately preceding text appears at serial page (70879).

History

Authority: The provisions of this § 41.
Source: The provisions of this Chapter 41 adopted May 21, 1982, effective March 10, 1979, 12 Pa.

37 Pa. Code § 41.7 Termination or cancellation.

(a) Conditions. Designators shall remain valid until terminated or cancelled. The Commissioner may cancel an emergency vehicle designation under the following conditions or for any other reasonable grounds:

(1) The termination, for any reason, of a condition which entitled the holder to the designation.

(2) The sale or destruction of the vehicle for which the designation was issued.

(3) A violation of the conditions applying to the designation or stated in this chapter.

(4) In the case of vehicles designated by the State Police as emergency vehicles, a conviction against the driver for a violation of 75 Pa.C.S. (relating to Vehicle Code) or 18 Pa.C.S. (relating to Crimes Code).

(b) Return. Terminated or cancelled emergency vehicle designations shall be returned to the Director, Bureau of Patrol, by the designee.

(c) Proprietor. Emergency vehicle designations are the property of the State Police. Terminated or cancelled designations may be seized and shall be forwarded to the Director, Bureau of Patrol.

The provisions of this § 41.7 adopted May 21, 1982, effective March 10, 1979, 12 Pa.B. 1640.

History

Authority: The provisions of this § 41.
Source: The provisions of this Chapter 41 adopted May 21, 1982, effective March 10, 1979, 12 Pa.

37 Pa. Code § 41.8 Forms.

The following official form has been promulgated under this chapter: Form SP 6-115, Application for Emergency Vehicle Designation.

The provisions of this § 41.8 adopted November 5, 1982, effective November 6, 1982, 12 Pa.B. 3901.

History

Authority: The provisions of this § 41.
Source: The provisions of this Chapter 41 adopted May 21, 1982, effective March 10, 1979, 12 Pa.

Chapter 42 Use of Unmarked Vehicles

37 Pa. Code § 42.1 Purpose.

This chapter governs the use of unmarked vehicles. It is necessary to establish uniformity in the use of unmarked vehicles by police officers.

History

Authority: The provisions of this Chapter 42 issued under the Vehicle Code, 75 Pa.
Source: The provisions of this Chapter 42 adopted January 7, 2005, effective January 8, 2005, 35 Pa.

37 Pa. Code § 42.2 Policy and effect.

The policy of the Commonwealth is to permit the use of unmarked vehicles by police officers. Failure to comply with this chapter does not affect the legality of any arrest or citation, nor will it be grounds for the suppression of evidence except as provided by statutory or constitutional law.

History

Authority: The provisions of this Chapter 42 issued under the Vehicle Code, 75 Pa.
Source: The provisions of this Chapter 42 adopted January 7, 2005, effective January 8, 2005, 35 Pa.

37 Pa. Code § 42.3 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless otherwise indicated: Light bar assembly—A device designed and constructed to display more than one steady burning, flashing or revolving beam of light with 360° visibility. Marked police vehicle—A police vehicle that is equipped with at least one light-bar assembly and displays graphics, markings or decals identifying the agency or department on a minimum of three sides (front, rear, left or right). Official identification—Identification issued, designated or approved by the individual law enforcement agency or municipality. Official uniform—Any attire designated or approved by the individual law enforcement agency or municipality. Unmarked police vehicle—A police vehicle not equipped with a roof mounted light-bar assembly. The vehicle may display graphics, markings or decals, identifying the agency or department.

History

Authority: The provisions of this Chapter 42 issued under the Vehicle Code, 75 Pa.
Source: The provisions of this Chapter 42 adopted January 7, 2005, effective January 8, 2005, 35 Pa.

37 Pa. Code § 42.21 Identification and uniform requirements.

(a) Identification. Police officers using an unmarked police vehicle shall ensure they are carrying official identification, other than their uniform, to verify their identity, unless it would jeopardize the police officers’ safety due to their work assignment. Police officers shall be prepared to display their official identification upon request. Police officers shall honor these requests when the request is reasonable and the police officer’s safety has been ensured. If the police officer does not carry official identification, the police officer may not attempt to stop traffic law violators, unless there is immediate threat to public safety.

(b) Uniforms. Police officers assigned to use an unmarked police vehicle to perform patrol duties shall be attired in an official uniform. Police officers assigned other duties that are likely to include or require traffic stops shall wear an official uniform or alternative attire, such as a police raid jacket, that bears the name of a specific law enforcement agency or task force.

History

Authority: The provisions of this Chapter 42 issued under the Vehicle Code, 75 Pa.
Source: The provisions of this Chapter 42 adopted January 7, 2005, effective January 8, 2005, 35 Pa.

37 Pa. Code § 42.22 Vehicle stops and pursuits.

(a) Stopping suspected violators while operating an unmarked police vehicle. Police officers stopping suspected violators shall attempt to ascertain the safest available location for the police officer and the motorist, consistent with the need for prompt action. Police officers shall take into consideration the road and weather conditions, terrain, lighting, traffic and the nature of the violation. The police officer shall also attempt to choose a location that will afford both the driver and the police officer a sense of safety.

(b) Use of audible and visual signals required while operating an unmarked police vehicle. Audible and visual signals meeting the requirements of 75 Pa.C.S. § 4571 (relating to visual and audible signals on emergency vehicles) shall be utilized when police officers stop suspected violators.

(c) Unmarked police vehicle pursuits. Police officers engaged in a pursuit using an unmarked police vehicle, shall relinquish their role as the primary pursuit vehicle and permit police officers in marked police vehicles to assume the role of the primary pursuit vehicle when that assistance is available.

History

Authority: The provisions of this Chapter 42 issued under the Vehicle Code, 75 Pa.
Source: The provisions of this Chapter 42 adopted January 7, 2005, effective January 8, 2005, 35 Pa.

Chapter 51 Training and Minimum Standards Under the Wiretapping and Electronic Surveillance Control Act

37 Pa. Code § 51.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—Title 18 of the Pennsylvania Consolidated Statutes, Chapter 57 (relating to the Wiretapping and Electronic Surveillance Control Act). Attorney General—The Attorney General of the Commonwealth. Commissioner—The Commissioner of the State Police.

The provisions of this § 51.1 adopted June 22, 1979, effective June 23, 1979, 9 Pa.B. 1942; amended August 6, 1993, effective August 7, 1993, 23 Pa.B. 3692. Immediately preceding text appears at serial page (43305).

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.2 Introductory statement.

The Attorney General and the Commissioner together find that:

(1) The certifications of Commonwealth investigative and law enforcement officers as eligible to conduct wiretapping and electronic surveillance shall be issued in the following two separate classifications:

(i) Certification to monitor all communications intercepted under the act and, in addition, to conduct interceptions in cases when the Commonwealth investigative or law enforcement officer is a party to the communication to be intercepted or when at least one of the parties to the communication to be intercepted has given voluntary prior consent to the interception.

(ii) Certification to perform all monitoring and communications interceptions conferred upon Class A certified Commonwealth investigative or law enforcement officers and to conduct interceptions when there is no consent but prior court approval for the interception has been ordered under sections 5708—5713 of the act or when the interception is under section 5713.1 of the act (relating to emergency hostage and barricade situations).

(2) Certification in cases when there is at least the consent of one party will require less training, in both legal and technical matters, than in cases when there is no consent.

(3) The intent of the Legislature with respect to the training of Commonwealth investigative and law enforcement officers will be satisfied by this chapter and minimum standards.

The provisions of this § 51.2 adopted June 22, 1979, effective June 23, 1979, 9 Pa.B. 1942; amended August 6, 1993, effective August 7, 1993, 23 Pa.B. 3692. Immediately preceding text appears at serial pages (43305) to (43306).

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.3 Persons required to be certified.

(a) A Commonwealth investigative or law enforcement officer who takes custody of intercepting devices from a District Attorney or the Attorney General or the designee of one of these officials to perform an interception, who conducts an interception, or who monitors an interception shall first be certified according to this chapter.

(b) An investigative or law enforcement officer who is a District Attorney or the District Attorney’s designee or the Attorney General or the Attorney General’s designee who approves a consensual interception need not be certified. Other law enforcement or investigative officers who are involved in the investigation in connection with which a conversation is intercepted, who perform assisting or ministerial functions in connection with the interception, whose only role in the interception is that of the consenting party, or who hear the interception but are not performing a formal monitoring function, need not be certified.

(c) An investigative or law enforcement officer of the United States who has been designated a Commonwealth investigative or law enforcement officer by the Attorney General or a District Attorney, and who has successfully completed a course of training in wiretapping and electronic surveillance sponsored by an agency of the United States which is determined by the Attorney General and the Commissioner to be the substantial equivalent of a course of training established by this chapter is deemed certified under this chapter, and therefore, eligible to monitor interceptions under the act. Before undertaking the duties and responsibilities of a monitor under this subsection, the investigative or law enforcement officer shall provide documentation from the agency by which the officer is employed establishing successful completion of the equivalent course to the attorney approving or supervising the interception or, for interceptions authorized under section 5713.1 of the act (relating to emergency hostage and barricade situations), to the supervising law enforcement officer authorizing the inteception.

The provisions of this § 51.3 adopted June 22, 1979, effective June 23, 1979, 9 Pa.B. 1942; amended August 6, 1993, effective August 7, 1993, 23 Pa.B. 3692. Immediately preceding text appears at serial page (43306).

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.4 Classification of certifications.

Certifications issued under this chapter shall be designated as follows:

(1) Class ‘‘A’’ certification shall signify authority for the certified Commonwealth investigative or law enforcement officer as eligible, for the purposes of section 5724 of the act (relating to training), to monitor communications intercepted under the act and to conduct interceptions under section 5704(2) and (12) of the act (relating to exceptions to prohibition of interception and disclosure of communications). Class ‘‘A’’ certification, along with the other requirements delineated at section 5713.1(d) of the act (relating to emergency hostage and barricade situations) and § 51.5(1)(ix) (relating to minimum standards) shall be a prerequisite to eligibility to be named a ‘‘supervising law enforcement officer’’ under section 5713.1 of the act. Class ‘‘B’’ certified personnel shall only conduct interceptions under section 5713.1 of the act when requested to do so by a properly designated ‘‘supervising law enforcement officer.’’

(2) Class ‘‘B’’ certification shall signify authority for the certified Commonwealth investigative or law enforcement officer as eligible, for the purposes of section 5724 of the act, to engage in activities authorized for investigative or law enforcement officers having Class ‘‘A’’ certification and, in addition thereto, to engage in the conduct of communication interceptions for the purposes of sections 5708—5713.1 of the act. Class ‘‘A’’ certification shall be a prerequisite for a Class ‘‘B’’ certification.

The provisions of this § 51.4 adopted June 22, 1979, effective June 23, 1979, 9 Pa.B. 1942; amended August 6, 1993, effective August 7, 1993, 23 Pa.B. 3692. Immediately preceding text appears at serial page (43306).

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.5 Minimum standards.

Before certification shall issue to a Commonwealth investigative or law enforcement officer, the officer shall take and pass a comprehensive examination demonstrating a working skill or knowledge pertaining to specific areas determined by the class of certification sought.

(1) Each officer applying for Class ‘‘A’’ certification shall be required to demonstrate skill or knowledge relating to:

(i) The contents of the act, including procedures mandated by the act relative to consensual interceptions as well as the difference between consensual and nonconsensual wiretapping or eavesdropping.

(ii) The requirements of the Constitutions of Pennsylvania and the United States relating to consensual and nonconsensual interceptions, including relevant privacy considerations.

(iii) The Federal law pertaining to electronic surveillance.

(iv) The meaning and significance of voluntary consent.

(v) The appropriate authorities to authorize a consensual interception and the method of seeking prior approval from the authorities.

(vi) The law regarding entrapment.

(vii) The situations when recordings may be appropriate or required, including justification for their use and the methods employed; proper monitoring procedures, including the requirements relating to minimization and privileged communications; report writing and recordkeeping functions; and procedures for the maintenance and custody of recordings made under the act.

(viii) The various kinds and types of equipment available for consensual interceptions, as well as their proper, lawful and effective utilization, custody and care.

(ix) The contents of the act, including procedures mandated by the act relative to section 5713.1 of the act (relating to emergency hostage and barricade situations), in addition to the requirements listed in subparagraphs (i)—(viii) for standard Class ‘‘A’’ certification, when the Commonwealth investigative or law enforcement officer is a candidate for designation as a ‘‘supervising law enforcement officer’’ as defined at section 5713.1(d) of the act.

(2) Each officer applying for Class ‘‘B’’ certification shall demonstrate, in addition to the requirements listed in paragraph (1) for Class ‘‘A’’ certification, a skill or knowledge relating to:

(i) The contents of the act including procedures mandated by the act relative to nonconsensual or court-authorized interceptions.

(ii) The legal concept of probable cause, with specific emphasis on the requirements of section 5710 of the act (relating to grounds for entry order).

(iii) The requirements of the act relating to exhaustion of standard investigative techniques.

(iv) The availability under the act of court-ordered assistance from a communication common carrier and court-ordered entry of private premises in aid of an interception.

(v) The requirements of the act relating to disclosure and the use of interceptions.

(vi) The proper, lawful and effective utilization, installation and care of interception equipment which may be used in accordance with the act.

(3) Qualification for either Class ‘‘A’’ or ‘‘B’’ certification requires that the Commonwealth investigative or law enforcement officer satisfactorily complete the Certified Training Program by attaining a minimum grade of 80% in the Program Examination after attending the prescribed classes. Separate program examinations shall be given for the Class ‘‘A’’ and Class ‘‘B’’ certifications.

The provisions of this § 51.5 adopted June 22, 1979, effective June 23, 1979, 9 Pa.B. 1942; amended August 6, 1993, effective August 7, 1993, 23 Pa.B. 3692. Immediately preceding text appears at serial pages (43307) to (43308).

This section cited in 37 Pa. Code § 51.8 (relating to hours and subject matter).

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.6 Certification training programs.

Training programs for purposes of certification shall be conducted at such times and locations in this Commonwealth as shall hereafter be announced.

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.7 Fees.

A reasonable enrollment fee to cover instructional costs shall be charged to each Commonwealth investigative or law enforcement officer who attends a Certification Training Program. Whenever necesary and possible, room and board shall be made available to attendees at a fee to be announced prior to the scheduled program.

The provisions of this § 51.7 adopted June 22, 1979, effective June 23, 1979, 9 Pa.B. 1942; amended August 6, 1993, effective August 7, 1993, 23 Pa.B. 3692. Immediately preceding text appears at serial page (43308).

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.8 Hours and subject matter.

The certification training programs for Class ‘‘A’’ and Class ‘‘B’’ certifications shall include lectures, demonstrations, practical applications, and examinations, and shall consist of no less than a three-day session for officers seeking Class ‘‘A’’ certification, and a separate and additional session for officers seeking a Class ‘‘B’’ certification consisting of not less than eight days. Each respective training program shall cover the minimum standards for the respective classification set forth in § 51.5 of this chapter (relating to minimum standards) as well as additional legal and technical aspects of wiretapping and electronic surveillance.

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.9 Certification.

Certifications and certification numbers shall be issued to officers who have completed the prescribed course of training and passed the examination.

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.10 Recertifications.

Recertifications Training Programs shall be conducted when considered necessary in the judgment of the Attorney General and of the Commissioner.

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.11 Decertification.

In the event that it appears to the Attorney General and the Commissioner that an investigative or law enforcement officer previously certified has violated the law relating to electronic interceptions of communications or has substantially failed to comply with applicable written regulations or procedures in the electronic interception or attempted electronic interception of a communication, the Attorney General and the Commissioner may suspend or revoke the officer’s certification; provided, however, that before a certification shall be revoked the certified officer shall be given written notice of the violation of law or failure to comply that is charged and shall be afforded a hearing, if requested, before a designated hearing officer agreed upon by the Attorney General and the Commissioner. The decision of the designated hearing officer shall constitute final administrative action with respect to the question of revocation of certification. During the period between receipt of notice and final decision of the hearing examiner, certification shall be suspended.

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.12 Automatic termination of certification.

A certification shall automatically terminate and shall automatically be considered revoked upon a certified officer’s loss of his status as an investigative or law enforcement officer. It shall be the duty of the certified officer to immediately return his certification card and certificate to the Commissioner upon loss of status as an investigative or law enforcement officer.

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.13 Failure to complete recertification program.

Certifications shall terminate upon notice to the certified officer that he has failed to complete a recertification training program of which the officer has been notified and instructed by the Attorney General and the Commissioner to attend in order to maintain certification. It shall be the duty of the Certified Officer to immediately return his certification card and certificate to the Commissioner upon failure to complete a recertification program.

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.14 Educational newsletter.

Certified officers will be informed of updates and changes in laws, procedures, and other relevant matters by a periodic newsletter.

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.15 Applications.

Commonwealth investigative and law enforcement officers desiring to undergo training and to obtain certification shall submit a letter of application for training and certification to the Commissioner of the State Police at the address indicated on the application. Applications shall be submitted through the officer’s agency head. The Attorney General or Commissioner shall be authorized to reject any application, and to refuse acceptance of any applicant into the program.

The provisions of this § 51.15 adopted June 22, 1979, effective June 23, 1979, 9 Pa.B. 1942; amended August 6, 1993, effective August 7, 1993, 23 Pa.B. 3692. Immediately preceding text appears at serial page (43310).

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

37 Pa. Code § 51.21 Official forms.

The following official forms, which are attached hereto and made part of this section, have been promulgated under provisions set forth in this chapter:

(1) Form SP 5-102, Certificate of Training.

(2) Form SP 5-102A, Identification Card.

SP 5-102 (4-82)

History

Authority: The provisions of this Chapter 51 issued under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.
Source: The provisions of this Chapter 51 adopted June 22, 1979, effective June 23, 1979, 9 Pa.

Chapter 53 Collection, Preservation, Protection and Dissemination of Ethnic Intimidation Statistics

37 Pa. Code § 53.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The Ethnic Intimidation Statistics Collection Act (71 P. S. § 250). Commissioner—The Commissioner of the State Police. Department—The State Police. Ethnic intimidation—alicious intention motivated by hatred toward the race, color, religion or national origin of another individual or group of individuals manifested through the commission of an act which is a necessary element of an offense under the following provisions of 18 Pa.C.S. (relating to crimes and offenses):

(i) Article B (relating to offenses involving danger to the person).

(ii) Chapter 33 (relating to arson, criminal mischief and other property destruction (excluding section 3307 (relating to institutional vandalism))).

(iii) Section 3503 (relating to criminal trespass).

(iv) Section 5504 (relating to harassment by communication or address). Reporting agency—A Commonwealth law enforcement agency contributing to the Pennsylvania Uniform Crime Reporting Program and the State Fire Marshal. Uniform Crime Reporting (UCR) Program—A program established by law which provides a Statewide view of crime trends and volume based on the submission of statistics by law enforcement agencies throughout this Commonwealth. The Department, under the act of November 22, 1978 (P. L. 1166, No. 274) (71 P. S. § § 1190.21—1190.30) and an interagency agreement between the Department and the Commission on Crime and Delinquency, acts as the administrator of the UCR Program, with the authority and responsibility for collection and dissemination of this statistical information.

History

Authority: The provisions of this Chapter 53 issued under section 701 of the Ethnic Intimidation Statistics Collection Act (71 P.
Source: The provisions of this Chapter 53 adopted February 26, 1988, effective February 27, 1988, 18 Pa.

37 Pa. Code § 53.2 Scope.

This chapter sets forth rules for the submission, collection, preservation, protection and dissemination of information, records or statistics relative to crimes and incidents related to ethnic intimidation. This chapter is applicable to Commonwealth law enforcement agencies, the State Fire Marshal and agencies, departments, boards, commissions or officials who are required to report information or who request information, records or statistics collected.

History

Authority: The provisions of this Chapter 53 issued under section 701 of the Ethnic Intimidation Statistics Collection Act (71 P.
Source: The provisions of this Chapter 53 adopted February 26, 1988, effective February 27, 1988, 18 Pa.

37 Pa. Code § 53.11 Responsibilities of reporting agencies.

(a) A reporting agency is responsible for submitting the information required in § 53.13 (relating to information required to be submitted) when a crime or incident related to ethnic intimidation occurs within its reporting jurisdiction. This information shall be reported on a monthly basis in conjunction with and as an attachment to the monthly UCR Program submission. The form prescribed in § 53.21 (relating to forms) shall be submitted as the reporting document. If no crime or incident related to ethnic intimidation occurs, no submission is required.

(b) A reporting agency shall be guided by the Pennsylvania Supplemental Uniform Crime Reporting Manual in determining the appropriate reporting jurisdiction.

History

Authority: The provisions of this Chapter 53 issued under section 701 of the Ethnic Intimidation Statistics Collection Act (71 P.
Source: The provisions of this Chapter 53 adopted February 26, 1988, effective February 27, 1988, 18 Pa.

37 Pa. Code § 53.12 Responsibilities of the Department.

(a) The Department is responsible for collecting, preserving, protecting and disseminating the information which is submitted by reporting agencies.

(b) Requests for ethnic intimidation information, records or statistics and the release of this information shall be regulated as provided in § 53.14 (relating to dissemination of information).

History

Authority: The provisions of this Chapter 53 issued under section 701 of the Ethnic Intimidation Statistics Collection Act (71 P.
Source: The provisions of this Chapter 53 adopted February 26, 1988, effective February 27, 1988, 18 Pa.

37 Pa. Code § 53.13 Information required to be submitted.

A reporting agency shall include the following information when reporting crimes and incidents related to ethnic intimidation:

(1) Date the incident occurred.

(2) Time the incident occurred.

(3) Type of incident.

(4) Victim information.

(5) Offender information.

(6) Arrest information.

(7) Description of weapons used, injuries and property damage sustained.

This section cited in 37 Pa. Code § 53.11 (relating to responsibilities of reporting agencies).

History

Authority: The provisions of this Chapter 53 issued under section 701 of the Ethnic Intimidation Statistics Collection Act (71 P.
Source: The provisions of this Chapter 53 adopted February 26, 1988, effective February 27, 1988, 18 Pa.

37 Pa. Code § 53.14 Dissemination of information.

(a) A reporting agency or other interested agency, department, board, commission or official desiring information, records or statistics collected under the act shall address the request to the Commissioner, State Police, Department Headquarters, 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110. The request shall be made upon the official letterhead stationery of the requesting agency, department, board, commission or official and shall specify:

(1) The exact information, records or statistics being requested.

(2) The need for and anticipated use of the information, records or statistics being requested.

(b) The Commissioner, or a designee, will determine whether or not the requested information, records or statistics will be furnished and will inform the requestor of the determination. The determination will be based upon consideration of:

(1) The information furnished by the requestor as provided in subsection (a).

(2) The necessity to preserve the information, records or statistics.

(3) The necessity to protect confidential information or the circumstances of a pending prosecution.

This section cited in 37 Pa. Code § 53.12 (relating to responsibilities of the Department).

History

Authority: The provisions of this Chapter 53 issued under section 701 of the Ethnic Intimidation Statistics Collection Act (71 P.
Source: The provisions of this Chapter 53 adopted February 26, 1988, effective February 27, 1988, 18 Pa.

37 Pa. Code § 53.21 Forms.

(a) The reporting document prescribed by the Department to be utilized by a reporting agency to report crimes or incidents related to ethnic intimidation shall be Return J, Pennsylvania Monthly Ethnic Intimidation Report, of the UCR Program report form system.

(b) The Return J report form and detailed instructions for its completion will be furnished to law enforcement agencies in the UCR Program by the Department through a State Police UCR Liaison Officer.

This section cited in 37 Pa. Code § 53.11 (relating to responsibilities of reporting agencies).

History

Authority: The provisions of this Chapter 53 issued under section 701 of the Ethnic Intimidation Statistics Collection Act (71 P.
Source: The provisions of this Chapter 53 adopted February 26, 1988, effective February 27, 1988, 18 Pa.

Chapter 55 Administration of Megan’s Law—Neighbor Notification

37 Pa. Code § 55.1 Policy.

(a) The General Assembly has declared its intention to protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood.

(b) The General Assembly further declared it to be the policy of the Commonwealth to require the exchange of relevant information about sexually violent predators among public agencies and officials and to authorize the release of necessary and relevant information about sexually violent predators to members of the general public as a means of assuring public protection and that the same is not be construed as punitive.

(c) The General Assembly has determined and declared as a matter of Legislative finding that the release of information about sexually violent predators to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information is rationally related to the furtherance of those goals.

(d) Information gathered under 42 Pa.C.S. Chapter 97, Subchapter H (relating to registration of sexual offenders), will not be disclosed outside the established criminal justice system, except as allowed by law.

History

Authority: The provisions of this Chapter 55 issued under 42 Pa.
Source: The provisions of this Chapter 55 adopted October 10, 1997, effective October 11, 1997, 27 Pa.

37 Pa. Code § 55.2 Legislative finding.

(a) The General Assembly has determined and declared that if the public is provided adequate notice and information about sexually violent predators and certain other offenders, the communities can develop constructive plans to prepare themselves and their children for the offender’s release. This allows communities to meet with law enforcement agencies to prepare and obtain information about the rights and responsibilities of the communities and to provide education and counseling to their children.

(b) Persons found to have committed sexually violent offenses have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government.

(c) Release of information about sexually violent predators to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.

History

Authority: The provisions of this Chapter 55 issued under 42 Pa.
Source: The provisions of this Chapter 55 adopted October 10, 1997, effective October 11, 1997, 27 Pa.

37 Pa. Code § 55.3 Immunity for good faith conduct.

The General Assembly has also declared that the following entities shall be immune from liability for good faith conduct under 42 Pa.C.S. Chapter 97, Subchapter H (relating to registration of sexual offenders):

(1) The State Police and local law enforcement agencies and employes of law enforcement agencies.

(2) District attorneys and their agents and employes.

(3) Superintendents, administrators, teachers, employes and volunteers engaged in the supervision of children of any public, private or parochial school.

(4) Directors and employes of county children and youth agencies.

(5) Presidents or similar officers of universities and colleges, including community colleges.

(6) The Board of Probation and Parole and its agents and employes.

(7) Directors of licensed day care centers.

(8) Directors of licensed preschool programs.

History

Authority: The provisions of this Chapter 55 issued under 42 Pa.
Source: The provisions of this Chapter 55 adopted October 10, 1997, effective October 11, 1997, 27 Pa.

37 Pa. Code § 55.4 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Neighbor—For the purposes of 42 Pa.C.S. Chapter 97, Subchapter H (relating to registration of sexual offenders), those persons occupying both residences and places of employment located within a 250-foot radius of a sexually violent predator’s residence, or the 25 most immediate residences and places of employment in proximity to the sexually violent predator’s residence, whichever is greater. Sexually violent predator—A person who has been convicted of a sexually violent offense as set forth in 42 Pa.C.S. § 9793(b) (relating to registration of certain offenders for ten years) and who is determined to be a sexually violent predator under 42 Pa.C.S. § 9794(e) (relating to designation of sexually violent predators) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

History

Authority: The provisions of this Chapter 55 issued under 42 Pa.
Source: The provisions of this Chapter 55 adopted October 10, 1997, effective October 11, 1997, 27 Pa.

37 Pa. Code § 55.5 Notification.

Chief law enforcement officers, or the State Police where no municipal police jurisdiction exists, shall provide written notices of the current address of sexually violent predators to neighbors within 72 hours of receipt. Notwithstanding other provisions, verbal notification may be used if written notification would delay meeting this time requirement. See Chapter 56 (relating to guidelines for administration of Megan’s Law—statement of policy).

History

Authority: The provisions of this Chapter 55 issued under 42 Pa.
Source: The provisions of this Chapter 55 adopted October 10, 1997, effective October 11, 1997, 27 Pa.

37 Pa. Code § 55.6 Documentation of notification.

Chief law enforcement officers, or the State Police where no municipal police jurisdiction exists, shall establish written procedures and policies concerning community notification of sexually violent predators. The policy and procedures should include general parameters and basic requirements for documenting notifications. For example, records shall reflect the date and times, geographic areas, methods employed, whether verbal notification was necessary, and whether all notifications were provided to the identified area. The record shall also reflect if follow-up notification attempts were necessary. The record will not reflect great detail or the names and addresses of all individuals to whom notification was provided.

History

Authority: The provisions of this Chapter 55 issued under 42 Pa.
Source: The provisions of this Chapter 55 adopted October 10, 1997, effective October 11, 1997, 27 Pa.

Chapter 56 Guidelines for Administration of Megan’s Law—Statement of Policy

37 Pa. Code § 56.1 Policy.

(a) The General Assembly of the Commonwealth has declared its intention to protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood.

(c) The General Assembly has determined and declared as a matter of legislative finding that the release of information about sexually violent predators to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information is rationally related to the furtherance of those goals.

(d) Information gathered for 42 Pa.C.S. Chapter 97, Subchapter H (relating to registration of sexual offenders) will not be disclosed outside the established criminal justice system, except as allowed by law.

This section cited in 37 Pa. Code § 56.2 (relating to scope).

History

Source: The provisions of this Chapter 56 adopted December 29, 1995, effective December 30, 1995, 25 Pa.

37 Pa. Code § 56.2 Scope.

This chapter has been promulgated by the State Police, in consultation with the Office of Attorney General, the Board of Probation and Parole, the Department of Corrections, the Department of Education and the Department of Public Welfare to facilitate the policy in § 56.1 (relating to policy).

History

Source: The provisions of this Chapter 56 adopted December 29, 1995, effective December 30, 1995, 25 Pa.

37 Pa. Code § 56.3 Responsibilities.

(a) The Board of Probation and Parole, in cooperation with the Department of Corrections and county officials, shall:

(1) Create procedures to guide and instruct State and county prison and probation and parole personnel how to inform sexual offenders of their duties under 42 Pa.C.S. Chapter 97, Subchapter H (relating to registration of sexual offenders), known as Megan’s Law. These procedures shall include, at a minimum:

(i) Completion of a sexual offender registration form provided by the State Police prior to release from incarceration, upon parole from a State or county correctional institution or commencement of a sentence of intermediate punishment or probation.

(ii) Prior to release from incarceration, and at the time of registration, a photograph of the sexual offender and the information specified in paragraph (4) shall be obtained for immediate transmittal to State Police.

(2) Require, as a condition of being permitted to reside in this Commonwealth under the Interstate Compact, sexual offenders from other states to register and abide by the requirements of 42 Pa.C.S. Chapter 97, Subchapter H.

(3) Provide the following information to the State Police, Bureau of Records and Information Services, Attention: Director, Records and Identification Division (Act 24 of 1995), 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110, or facsimile at (717) 772-3681. In the case of a State sentence, this information will be provided prior to release on parole from a State sentence. In the case of a county sentence, the information will be provided immediately upon its receipt from county authorities.

(i) The complete name of the sexual offender, including maiden name and known aliases, and whether the offender has been designated by a court order as a sexually violent predator.

(ii) SID: The sexual offender’s State Identification Number.

(iii) OTN: The sexual offender’s Offense Tracking Number assigned to the applicable offenses.

(iv) Offenses necessitating the sexual offender registration—for example, Rape, cc3121.

(v) DOB: The sexual offender’s date of birth in an eight-digit format, such as 10/24/1964.

(vi) POB: The sexual offender’s place of birth, two-letter state abbreviation or country.

(vii) SSN: The sexual offender’s Social Security number.

(viii) Race: The sexual offender’s race, that is, W—White, B—Black, I—Indian or A—Asian.

(ix) Sex: The sexual offender’s sex, that is, M—Male, or F—Female.

(x) Height: The sexual offender’s height in a three-digit format—for example, 510 is equal to 5 feet 10 inches.

(xi) Weight: The sexual offender’s weight in a three-digit format—for example, 097 is equal to 97 pounds.

(xii) Eye color: The sexual offender’s eye color, that is, BLK—Black, BLU—Blue, BRO—Brown, GRY—Grey, GRN—Green, HAZ—Hazel, MAR—Maroon, PNK—Pink or XXX—Unknown.

(xiii) Hair color: The sexual offender’s hair color, that is, BAL—Bald, BLK—Black, BLN—Blonde, BRO—Brown, GRY—Grey, RED—Red, SNY—Sandy, WHI—White or XXX—Unknown.

(xiv) Any scars, marks or tattoos the sexual offender may have.

(xv) Photograph: A recent photograph of the sexual offender.

(xvi) Anticipated or earliest date of release—that is, minimum sentence date.

(xvii) Future address of the sexual offender, to include:

(A) Residence number and mailing address. For example if the address is RD 1, Box 345, then an actual street name will also be required, for example, RD 1 (Old Jonestown Road), Box 345, Harrisburg.

(B) City, township or borough where the residence is located.

(D) State where the residence is located.

(E) Zip code of the residence.

(F) If available, the telephone number of the residence.

(xviii) If available, the name and address of the police department or State Police Station serving the area of the sexual offender’s residence.

(xix) If available, the name/type of treatment program completed while incarcerated, and the date of its successful completion.

(xx) If available, employer information of the sexual offender, to include:

(A) The complete name of the employer/company.

(B) The name of the supervisor and direct telephone number.

(C) The complete mailing address of the employer, to include street name and number, city/township/borough, county, state and zip code.

(D) The telephone number of the employer/company.

(xxi) If available, information on the victim of the sexually violent predator, to include:

(A) The complete name of victim, including maiden name.

(B) DOB. The date of birth.

(D) The full name of the victim’s legal guardian.

(E) The complete mailing address, to include street name and number, city, county, state and zip code.

(F) The telephone number of the guardian or victim, or both, if available.

(b) The Department of Education shall transmit the following information quarterly to the State Police, Bureau of Records and Information Services, Attention: Director, Records and Identification Division (Act 24 of 1995), 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110, or by facsimile at (717) 772-3681:

(1) The name, address and telephone number of each school district, by municipality.

(2) The name, address and telephone number of each private and parochial school enrolling students through grade 12, by county.

(3) The name, address and telephone number of each licensed preschool program, by county.

(4) The name, address and telephone number of each university, college and community college, by county.

(c) The Department of Public Welfare shall transmit the following information quarterly to the State Police, Bureau of Records and Information Services, Attention: Director, Records and Identification Division (Act 24 of 1995), 1800 Elmerton Avenue, Harrisburg, Pennsylvania 17110, or by facsimile at (717) 772-3681:

(1) The name, address and telephone number of each licensed day care center, by municipality or county, or both.

(2) The name, address and telephone number of each licensed preschool program, by municipality or county, or both.

(3) The name, address and telephone number of each of the county children and youth service agencies.

(d) The State Police will:

(1) Create and maintain a State registry of offenders.

(2) Initially notify the local police department or State Police Station via Commonwealth Law Enforcement Assistance Network (CLEAN) Message whenever an offender will reside in its jurisdiction.

(3) Notify the appropriate law enforcement agency of another state if an offender changes residence to its jurisdiction.

(4) Immediately transfer offender information and fingerprints to the Federal Bureau of Investigation.

(5) Be responsible for producing written notices which contain the information in this paragraph. The written notices may not contain information which might reveal the name, identity or residence of the victim.

(i) The name of the convicted sexually violent predator.

(ii) The address at which the sexually violent predator resides.

(iii) The offense for which the sexually violent predator was convicted.

(iv) A statement that the sexually violent predator has been designated as such by court order.

(v) In compliance with Megan’s Law, other information deemed appropriate. Pending clarification by the Legislature, it is the intention of the State Police to provide a photograph of the sexually violent predator.

(6) Provide written notice to the chief law enforcement officer of the police department of the municipality where a sexually violent predator will reside.

(7) Verify the residences of offenders through the use of a nonforwardable residence verification form, which is to be returned by the offender within 10-calendar days.

(8) Immediately notify the municipal police department, or appropriate State Police Station, when any offender has failed to provide verification of residence within the 10-day period.

(9) Assist any municipal police department requesting assistance with locating and arresting offenders failing to verify their addresses.

(10) Automatically remove offenders not determined to be sexually violent predators from the State registry after 10 years.

(e) Chief law enforcement officers, or the State Police if no municipal police jurisdiction exists, shall:

(1) Upon receipt of the initial CLEAN Message from the State Police, immediately provide acknowledgment to the State Police, via CLEAN Message, to include confirmation that the offender’s registered residence is within its jurisdiction.

(2) Upon receipt of the written notice, immediately provide the State Police, via CLEAN Message, with an acknowledgment that the written notice has been received and a confirmation that the offender’s residence is within its jurisdiction.

(3) Provide written notices to the following persons within the specified time frames:

(i) Victims of the sexually violent predator, within 72 hours of receipt. If the offender is not determined to be a sexually violent predator by a court, the offender’s victims shall be notified in accordance with section 479.3 of The Administrative Code of 1929 (71 P. S. § 180-9.3).

(ii) Neighbors of the sexually violent predator, within 72 hours of receipt. Notwithstanding other provisions, verbal notification may be used if written notification would delay meeting this time requirement.

(iii) Directors of county children and youth service agencies in counties where sexually violent predators reside, within 7 days of receipt.

(iv) Superintendents of each school district, and the equivalent official for private and parochial schools enrolling students through grade 12, in the municipality where the sexually violent predator resides, within 7 days of receipt.

(v) Directors of each licensed day care center and licensed preschool program in the municipality where the sexually violent predator resides, within 7 days of receipt.

(vi) Presidents of each college, university and community college located within 1,000 feet of a sexually violent predator’s residence, within 7 days of receipt.

(4) Not disseminate information received from State Police on offenders not determined to be sexually violent predators. This information is intended to be utilized strictly as an investigative tool.

(5) Upon notification from State Police that an offender has failed to verify his address, locate and arrest the offender for violating 42 Pa.C.S. Chapter 97, Subchapter H (relating to registration of sexual offenders).

(f) Consideration may be given to establishing a log of individuals not specifically mentioned in subsection (e)(3) to whom sexually violent predator information is provided. Consideration may also be given to providing copies of written notices to the law enforcement agencies of surrounding communities.

The provisions of this § 56.3 amended March 8, 1996, effective March 9, 1996, 26 Pa.B. 1057. Immediately preceding text appears at serial pages (205628) to (205632).

History

Source: The provisions of this Chapter 56 adopted December 29, 1995, effective December 30, 1995, 25 Pa.

37 Pa. Code § 56.4 Guidelines for schools and children and youth services.

This section is intended to assist in the dissemination of information regarding sexually violent predators. The name, address, offense and the individual’s designation as a sexually violent predator shall be available, upon request, to the general public. Once the Legislature has clarified the statute and authorized release of the sexually violent predator’s photograph, one will be made available to the general public.

(1) The directors of county children and youth services, licensed day care centers and licensed preschool programs shall disseminate the information regarding the sexually violent predator to individuals supervising children. Individuals whose duties include supervision of or responsibility for children shall be instructed to promptly notify the director or other designated official of the agency, center or program if the sexually violent predator is observed in the vicinity. The director or supervisor shall notify the local law enforcement agency if, in his judgment, the presence of the sexually violent predator appears to be without a legitimate purpose or otherwise creates concern for the safety of the children. The law enforcement agency shall promptly evaluate the situation and take whatever additional steps are deemed necessary. The law enforcement agency shall inform the director or other designated official of steps taken and provide advice regarding any additional steps which the director or other designated official should consider taking.

(2) The presidents of each college, university and community college located within 1,000 feet of a sexually violent predator’s address, and the superintendent of each school district and the equivalent official for private and parochial schools enrolling students through grade 12, shall disseminate the information regarding the sexually violent predator to individuals whose duties include supervision of or responsibility for students. Those individuals so notified shall include administrators, teachers, teachers aids, security officials, crossing guards, groundskeepers, bus drivers and the like. Individuals whose duties include supervision of or responsibility for students shall be instructed to promptly notify the principal or other designated official if the sexually violent predator is observed in the vicinity. The principal or other designated official shall promptly notify the local law enforcement agency if the presence of the sexually violent predator appears to be without a legitimate purpose or otherwise creates concern for the safety of the students. The law enforcement agency shall promptly evaluate the situation and take whatever additional steps are deemed necessary. The law enforcement agency shall inform the principal or other designated official of steps taken and provide advice regarding any additional steps which the principal or other designated official should consider taking.

History

Source: The provisions of this Chapter 56 adopted December 29, 1995, effective December 30, 1995, 25 Pa.

Chapter 58 DNA Detection of Sexual and Violent Offenders

37 Pa. Code § 58.1 Definitions.

The following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise: Act—The DNA Detection of Sexual and Violent Offenders Act (35 P. S. § § 7651.101—7651.1102). CODIS—Combined DNA Index System—The FBI’s National DNA identification index system that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories under the DNA Identification Act of 1994 (Pub. L. 103-322, Title XXI, 6210301, September 13, 1994, 108 Stat. 2069). Commissioner—The Commissioner of the State Police. Criminal justice agency—A criminal justice agency as defined in 18 Pa.C.S. § 9102 (relating to definitions). DNA—Deoxyribonucleic acid—DNA is located in the cells and provides an individual’s personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification. DNA Databank—The repository of DNA samples obtained from offenders covered by the act. DNA Database—The CODIS computerized collection of DNA profiles obtained from DNA samples. Database lab—The laboratory which processes DNA samples to obtain a DNA profile on each sample. DNA record—DNA identification information stored in the SDIS or CODIS—The DNA record is the result obtained from the DNA typing tests. The DNA record is comprised of the characteristics of a DNA sample which are of value in establishing the identity of individuals. The results of all DNA identification tests on an individual’s DNA sample are also collectively referred to as the DNA profile of an individual. DNA sample—A blood or tissue sample provided by any person with respect to offenses covered by the act or submitted to the State Police Laboratory under the act for analysis or storage, or both. DOC—The Department of Corrections. EDTA—Ethylene diamine tetracetic acid. An anticoagulant/preservative chemical used to prevent clotting and to preserve blood samples contained in blood collection tubes. FBI—Federal Bureau of Investigation. Felony sex offense—A felony offense, or an attempt, conspiracy or solicitation to commit a felony offense, under one or more of the following:

(i) 18 Pa.C.S. Chapter 31 (relating to sexual offenses).

(ii) 18 Pa.C.S. § 6312 (relating to sexual abuse of children). Juvenile detention facility—A resident facility or shelter care program approved by the Department of Public Welfare for the treatment of adjudicated juveniles under 42 Pa.C.S. § 6327 (relating to place of detention). Juvenile facility—A facility licensed or approved to receive an adjudicated delinquent for disposition under 42 Pa.C.S. Chapter 63 (relating to juvenile matters). LDIS—Local DNA Identification System—A system consisting of DNA profiles generated at a local law enforcement laboratory. NDIS—National DNA Identification System—A system operated by the FBI that is comprised of DNA profiles received from the various SDIS. Other specified offenses—An offense, or an attempt, conspiracy or solicitation to commit an offense, under one or more of the following:

(i) 18 Pa.C.S. § 2502 (relating to murder).

(ii) 18 Pa.C.S. § 2709(c)(2)(ii) (relating to harassment and stalking).

(iii) 18 Pa.C.S. § 3126 (relating to indecent assault). Released—Probation, parole, furlough, work release, prerelease or release in any other manner from a prison, jail, juvenile detention facility or any other place of confinement. SDIS—State DNA Identification System—An individual state DNA profile system comprised of the DNA profiles of convicted offenders and those indices described in NDIS. SID—State Identification Number—A unique number assigned to each individual whose fingerprints are placed into the Central Repository of the State Police. The SID is used to track individuals for crimes which they commit, no matter how many subsequent fingerprint cards are submitted.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.2 Authority of law enforcement officers.

The General Assembly has declared that nothing contained in the act shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store and utilize DNA samples for law enforcement purposes. See section 506 of the act (35 P. S. § 7651.506). Failure to comply with this subchapter does not form the basis for suppression of otherwise admissible evidence.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.3 Limitation on liability.

Persons authorized to draw DNA samples will not be criminally or civilly liable if they perform these functions in good faith and in accordance with accepted medical practice.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.4 Reasonable use of force.

Authorized law enforcement and corrections personnel and employees may employ reasonable force when an individual refuses to submit to DNA testing. The personnel and employees will not be criminally or civilly liable for the use of reasonable force. Authorized law enforcement and corrections personnel and employees include contractors and other agents whose duties encompass implementation of the act.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.5 Confidentiality of records.

DNA profiles and samples submitted to the State Police pursuant to the act shall be treated as confidential. Violations or suspected violations of confidentiality of DNA Database information, as described in section 501 of the act (35 P. S. § 7651.501), shall be reported to the Director of the Laboratory Division. Criminal and civil penalties are described in sections 502 and 503 of the act (35 P. S. § 7651.502 and 7651.503).

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.21 Procedures for regulating the collection, receipt and processing of DNA samples in the DNA database laboratory.

(a) The responsibility to ensure collection of DNA samples for the DNA Databank is as follows:

(1) DOC will have the responsibility when the offender is sentenced to incarceration within a State correctional facility.

(2) The director of the youth development center or juvenile detention facility will have the responsibility when the offender is sentenced to detainment within a State juvenile correctional facility.

(3) The warden or other official in charge of a county or local correctional facility or the administrator of a county juvenile detention center or other juvenile facility will have the responsibility when the offender is sentenced to incarceration within such correctional facilities.

(4) Individuals given a disposition, other than incarceration, will be the responsibility of the chief county adult or juvenile probation/parole officer. The chief county adult or juvenile probation/parole officer shall also be responsible for transportation of the individual to the prison, jail, juvenile detention facility, or another detention facility or institution. The DNA sample is to be drawn at a prison, jail unit, juvenile facility or other facility designated by the court before release.

(b) DNA samples shall be drawn by persons authorized to do so under Pennsylvania law.

(c) For individuals convicted or adjudicated delinquent prior to November 28, 1996, DNA samples shall be drawn prior to release. Collection of DNA samples shall be prioritized by release/parole date. These DNA samples are to be collected after scheduling a compatible time for receipt by the DNA Database Laboratory.

(d) For individuals convicted or adjudicated delinquent after November 28, 1996, DNA samples shall be drawn at time of intake. To prevent duplication of draw and to ensure a DNA sample is collected, a DNA Sample Tracking Sheet shall accompany the inmate and be placed into the inmate’s file.

(e) Prior to collecting the DNA sample, the responsible persons designated under subsection (a) shall determine that the offender is subject to section 306 of the act (35 P. S. § 7651.306). The SID Number associated with an inmate’s commitment and sentencing documentation will be used as a tracking number for this purpose. A copy of the DNA Sample Tracking Sheet will be retained by the facility responsible for collecting the DNA sample. A copy of the DNA Sample Tracking Sheet shall be transmitted to the Board of Probation and Parole at the time a recommendation is made for release consideration. A copy of the DNA Sample Tracking Sheet shall also be retained by the Board of Probation and Parole.

(f) DNA samples shall be collected using State Police provided DNA Database Kits. DNA samples will consist of an EDTA tube of blood unless a special written request to the DNA Database Laboratory is made for permission to submit a different tissue sample. Requests shall be in writing, specify good cause, and be subject to verification and approval by the DNA Database Laboratory prior to transmittal of the sample.

(g) The associated forms for the DNA Database Kit shall be completed in full prior to submission. The imprinting of the offender’s left and right thumbs, by means of an inked impression in the spaces indicated on the DNA Database Collection Card, shall also be completed. Additionally, a Pennsylvania State Police Arrest and Institution Fingerprint card shall be completed.

(h) The completed kit, DNA Database Collection Card and the Pennsylvania State Police Arrest and Institution Fingerprint Card shall be delivered to the State Police DNA Database Laboratory within 48 hours of collecting the DNA sample.

(i) Receipt of DNA samples in the DNA Databank will apply with the following.

(1) DNA samples received in person, by mail, by parcel post or by a bonded courier service will be accompanied by a DNA Database Sample Inventory and Receipt Form. When received in person, the DNA Database Laboratory will verify that the DNA samples delivered are the same DNA samples as listed on the DNA Database Sample Inventory and Receipt Form. The DNA Database Laboratory will sign and date the chain of custody portion of the form, indicate the manner of receipt and ensure that the correctional officer or courier signs in the appropriate space. The original of this form will be maintained in the DNA Database Laboratory and a copy will be given to the correctional officer or courier as a delivery receipt. A copy of the form will also be mailed to the submitting agency. After inventory of the DNA samples, each DNA sample will receive a unique DNA bar code number. The number will then be entered into a Sample Tracking System.

(2) Associated paperwork with the DNA Database Kit will receive the same bar code number and be placed into the DNA Sample File that is generated at this time.

(3) The DNA Sample File will not contain any sizing information or DNA typing data.

(4) Upon receipt and after assignment of a unique bar code number, the DNA Database Laboratory will break the seal and closely examine each individual DNA sample.

(5) The DNA sample and kit are further processed, and the kit is securely stored.

(6) The DNA Database Laboratory will ensure that the submitting agency is contacted and notified if a DNA sample must be redrawn. The DNA Database Laboratory will also track the DNA sample to ensure it is redrawn as requested.

(7) A DNA Sample Destruction Form will be completed if the DNA Database Laboratory determines that a DNA sample has been received from an individual not covered by the act, and the DNA sample destroyed.

(8) DNA samples in the DNA Databank will be retained in accordance with CODIS standards.

(9) Lab files will not contain offender names. The only identifier will be the unique bar code number.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.22 Access to data and information.

General operating procedures are as follows:

(1) Access to information in the DNA Database and DNA Databank (including personal identifying information) shall be made available under one of the following:

(i) To criminal justice agencies or approved crime laboratories which serve these agencies.

(ii) Upon written or electronic request and in furtherance of an official investigation of a criminal offense or offender or suspected offender.

(2) The identity of any person or agency making a request for information shall be verified prior to the release of any information. Requests made through CODIS will be deemed to have met this requirement. Verification shall be made by means of a return phone call to the requestor’s supervisor to establish authority to receive the information and the purpose for the request.

(3) Requests for information will only be accepted, after verification, from criminal justice agencies, or approved governmental forensic science laboratories, and only upon written or electronic request and in furtherance of an official investigation of a criminal offense or offender or suspected offender.

(4) A request may be made by personal contact, mail or electronic means. A Request for Database Search Form shall be completed.

(5) The name of the requestor and the purpose for which the information is requested shall be maintained on file in the DNA Database Laboratory.

(6) Only when a DNA profile or sample supplied by the requestor satisfactorily matches a profile in CODIS will the existence of the data be confirmed, or identifying information be disseminated.

(7) The following will be denied:

(i) Requests that do not meet the criteria of paragraphs (1)—(6).

(ii) Requests from private forensic laboratories.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.23 Prohibition on disclosure.

Violations or suspected violations of disclosure of DNA Database information shall be reported to the Director of the Laboratory Division. Violations are as follows:

(1) Disclosure. A person who by virtue of employment or official position or any person contracting to carry out any functions under the act, including any officers, employees and agents of the contractor, who has possession of or access to individually identifiable DNA information contained in SDIS or in the State DNA Databank may not disclose it in any manner to any person or agency not authorized to receive it knowing that that person or agency is not authorized to receive it.

(2) Obtaining Information. A person may not obtain individually identifiable DNA information from SDIS or the State DNA Databank without authorization to do so.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.24 Criminal penalties.

(a) Disclosure. A person who by virtue of employment or official position or any person contracting to carry out any functions under the act, including any officers, employees and agents of the contractor, who has possession of or access to individually identifiable DNA information contained in SDIS or in the State DNA Databank and who for pecuniary gain for the person or for any other person discloses it in any manner to any person or agency not authorized to receive it commits a misdemeanor of the first degree.

(b) Obtaining information. A person who violates section 501(b) of the act (35 P. S. § 7651.501(b)) commits a misdemeanor of the first degree.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.25 Civil actions.

(a) Injunctions. The State Police or any other aggrieved individual or agency may institute an action in a court of proper jurisdiction against any person, agency or organization to enjoin any criminal justice agency, noncriminal justice agency, organization or individual from violating the provisions of the act.

(b) Action for damages.

(1) A person aggrieved by a knowing violation of section 501 of the act (35 P. S. § 7651.501) shall have the substantive right to bring an action for damages by reason of the violation in a court of competent jurisdiction.

(2) A person found by the court to have been aggrieved by a knowing violation of section 501 of the act shall be entitled to actual and real damages of not less than $100 for each violation and to reasonable costs of litigation and attorney fees. Exemplary and punitive damages of not less than $1,000 nor more than $10,000 shall be imposed for any violation of section 501 of the act.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

37 Pa. Code § 58.31 Forms.

The reporting forms and documents referred to in this chapter are supplied by the State Police.

History

Authority: The provisions of this Chapter 58 issued under the DNA Detection of Sexual and Violent Offenders Act (35 P.
Source: The provisions of this Chapter 58 adopted June 22, 2001, effective June 23, 2001, 31 Pa.

Part II Board of Probation and Parole

Chapter 61 General Provisions

37 Pa. Code § 61.1 Definitions.

The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise: Backtime—The unserved part of a prison sentence which a convict would have been compelled to serve if the convict had not been paroled. Detainer sentence—A sentence to which a convict is subject following release from a sentence which the convict is currently serving. Detention hearing—A probable cause hearing held to determine whether a parolee should be detained or returned pending disposition of a new criminal charge. Examiner—A Board member or a representative of the Board who conducts interviews or hearings on behalf of the Board. Interested party—A parolee or a parolee’s counsel. Official verification—Actual receipt by a parolee’s supervising parole agent of a direct written communication from a court in which a parolee was convicted of a new criminal charge attesting that the parolee was so convicted. Panel—Two members of the Board, or a Board member and an examiner. Parole supervision staff—Parole agents, their supervisors, deputy district directors and district directors. Preliminary hearing—A hearing held to determine whether there is probable cause to believe that a parolee has committed a technical violation of parole. Return or detain—Synonymous actions which indicate that a parolee should either be returned to, or continued in, custody pending disposition of outstanding criminal charges. Revocation decision—A decision to recommit a parolee to prison after a revocation or violation hearing. Revocation hearing—A hearing held to determine whether a parolee should be recommitted as a convicted violator. Violation hearing—A hearing held to determine whether a parolee should be recommitted as a technical violator.

The provisions of this § 61.1 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 61.1 amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial page (104821).

Due Process

Revocation panel comprised of two panelists does not violate parolee’s due process right. Epps v. Board of Probation and Parole, 565 A.2d 214 (Pa. Cmwlth. 1989).

Petitioner who was charged as a technical violator and not as a convicted violator was not entitled to a revocation hearing and his due process rights were not violated. Obringer v. Board of Probation and Parole, 547 A.2d 449 (Pa. Cmwlth. 1988); appeal denied 557 A.2d 782 (Pa. Super. 1989).

Revocation Hearing

For the purpose of determining whether defendant’s revocation hearing was timely, criminal arrest and disposition report could not be considered when determining the date on which the Board of Probation and Parole received official verification of defendant’s guilty plea where the report was never entered into the record at the hearing. Johnson v. Board of Probation and Parole, 890 A.2d 45, 49 (Pa. Cmwlth. 2006).

Board of Probation and Parole requirement to conduct parole revocation hearing within 120-days begins to run from the date the Board received official verification of parolee’s conviction, not on the date Board had knowledge of the conviction. Vanderpool v. Board of Probation and Parole, 874 A.2d 1280, 1283 (Pa. Cmwlth. 2005).

History

Authority: The provisions of this § 61.
Source: The provisions of this § 61.

37 Pa. Code § 61.2 Confidentiality of records.

Records, reports and other written things and information, evaluations, opinions and voice recordings in the Board’s custody or possession touching on matters concerning a probationer or parolee are private, confidential and privileged; except that a brief statement of the reasons for actions by the Board granting or refusing a parole will at all reasonable times be open to public inspection in the offices of the Board.

The provisions of this § 61.2 issued under section 506 of The Administrative Code of 1929 (71 P. S. § 186).

The provisions of this § 61.2 adopted February 5, 1982, effective February 6, 1982, 12 Pa.B. 523.

Conviction Records

Where it is alleged that the Board was aware of the conviction and the availability of the conviction records, but did not retrieve them, a remand was required to determine whether a 143 day period between a parolee’s conviction and the receipt of the conviction records by the Board rendered a parole revocation hearing untimely. Fitzhugh v. Board of Probation and Parole, 623 A.2d 376 (Pa. Cmwlth. 1993).

History

Authority: The provisions of this § 61.
Source: The provisions of this § 61.

Chapter 63 Conditions Governing Parole

37 Pa. Code § 63.1 Granting of parole.

(a) The Board may grant paroles of its own motion under section 22 of the Pennsylvania Board of Probation and Parole Law (61 P. S. § 331.22).

(b) Applications for parole may be submitted to the Board under section 22 of the Pennsylvania Board of Probation and Parole Law (61 P. S. § 331.22).

(c) After review and consideration of each application, the Board will grant or deny approval to each applicant who is seeking parole.

(d) If the Board grants parole, notice of such action will be sent to the parolee, setting forth the effective date of parole. The date of parole may be postponed until a satisfactory plan is arranged for the parolee and approved by the Board.

Actions in Mandamus

The prisoner did not allege filing an application for parole with the Board of Probation and Parole; therefore, the prisoner established neither a right to a decision regarding parole nor a duty on the part of the Board to issue one. Since the prisoner failed to establish a clear right to relief or a clear duty on the part of the Board, the prisoner cannot maintain the mandamus action. Kelly v. Board of Probation and Parole, 686 A.2d 883 (Pa. Cmwlth. 1996).

Reasons for Decision

The Board’s regulations require that applications for parole are subject to section 22 of the act of August 6, 1941 (P. L. 861) (61 P. S. § 331.22), which requires the Board to provide its reasons for denying or granting parole. Since the Board did not do so, its demurrer to inmate’s mandamus petition is overruled. Boyd v. Ward, 802 A.2d 705 (Pa. Cmwlth. 2002), appeal denied 813 A.2d 844 (Pa. 2002).

History

Authority: The provisions of this § 63.
Source: The provisions of this § 63.

37 Pa. Code § 63.2 Legal custody.

The parolee shall remain in the legal custody of the Board until the expiration of his maximum sentence, or until he is legally discharged.

History

Authority: The provisions of this § 63.
Source: The provisions of this § 63.

37 Pa. Code § 63.3 Violation of parole.

If the parolee violates the conditions of parole, at a time during his period on parole, the Board may cause his detention or return to a correctional institution.

History

Authority: The provisions of this § 63.
Source: The provisions of this § 63.

37 Pa. Code § 63.4 General conditions of parole.

If parole is granted, the parolee shall be subject to the following conditions:

(1) Report in person or in writing within 48 hours to the district office or suboffice specified by the Board and not leave that district without prior written permission of the parole supervision staff.

(2) Live at the residence approved by the Board at release and not change residence without the written permission of the parole supervision staff.

(3) Maintain regular contact with the parole supervision staff by:

(i) Reporting regularly as instructed and following written instructions of the Board or the parole supervision staff.

(ii) Notifying the parole supervision staff within 72 hours of one of the following:

(A) Arrest.

(B) Receipt of a summons or citation for an offense punishable by imprisonment upon conviction.

(iii) Notifying the parole supervision staff within 72 hours of a change in status including but not limited to employment, on the job training and education.

(4) Comply with municipal, county, State and Federal criminal statutes, as well as the Vehicle Code and the Liquor Code (47 P. S. § § 1-101—9-902).

(5) Additionally:

(i) Abstain from the unlawful possession or sale of narcotics and dangerous drugs and abstain from the use of controlled substances within the meaning of The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. § § 780-101—780-144) without a valid prescription.

(ii) Refrain from owning or possessing firearms or other weapons.

(iii) Refrain from an assaultive behavior.

(6) Pay fines, costs and restitution imposed by the sentencing court in accordance with the instructions contained in the Conditions Governing Parole/Reparole form.

The provisions of this § 63.4 issued under section 506 of The Administrative Code of 1929 (71 P. S. § 186); amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 63.4 amended January 21, 1977, effective March 1, 1977, 7 Pa.B. 223; amended January 16, 1981, effective January 17, 1981, 11 Pa.B. 353; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial page (120716).

Assaultive Behavior

Assaultive behavior, if it does not involve actual physical harm, must be such that it clearly evokes a reasonable apprehension of bodily harm in the person assaulted; while an inmate’s unsolicited hugging of a prison employee may offend the employee and constitute a violation of internal policies, the inmate’s behavior cannot be interpreted as a threat to the employee or offer to do harm. Jackson v. Board of Probation and Parole, 885 A.2d 598, 601—602 (Pa. Cmwlth. 2005).

Parolee admittedly struck the 5-year old child and although parolee testified that the spanking was done to discipline the child, it still fit within the definition of assault, as it was a violent physical attack and, therefore, was assaultive behavior. The parolee was neither the parent nor guardian of the child and was not acting at the request of the child’s parent or guardian in spanking the child; thus, parolee was not justified in spanking the child and should be recommitted as a technical parole violator. Delgado v. Board of Probation and Parole, 679 A.2d 268 (Pa. Cmwlth. 1996).

A parolee’s assaultive behavior during a bank robbery was not co-extensive with his conviction for the robbery, and he could, therefore, be recommitted to serve separate terms as a convicted parole violation and a technical parole violator. McDaniel v. Board of Probation and Parole, 587 A.2d 42 (Pa. Cmwlth. 1991).

Convicted parole violator who does not post bail is not given credit against recommitment sentence for time served pending hearing on new charges. Appointed counsel’s petition for leave to withdraw is granted when convicted parole violator insists on pursuing meritless claim. Morrison v. Board of Probation and Parole, 578 A.2d 1381 (Pa. Cmwlth. 1990).

Board agent’s testimony that on three separate occasions he visited parolee’s approved residence but parolee was not present was sufficient to support Board’s finding that parolee violated a condition of his parole. Gibbs v. Board of Probation and Parole, 579 A.2d 1021 (Pa. Cmwlth. 1990).

While the Court agreed with the Board that a sock filled with sand, used in connection with a robbery, could be viewed as a weapon for purposes of a technical parole violation, in light of Rivenbark v. Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), the petitioner could not be recommitted for a technical violation for acts constituting a new crime. Ackerman v. Board of Probation and Parole, 531 A.2d 834 (Pa. Cmwlth. 1987); appeal denied 561 A.2d 742 (Pa. 1989).

Under the holding of Rivenbark v. Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), petitioner was entitled to have all references to his previous technical violation deleted, but was not entitled to receive credit on a subsequent unrelated parole revocation for time served on a prior invalid recommitment. DeVault v. Board of Probation and Parole, 533 A.2d 1133 (Pa. Cmwlth. 1987).

A teletype from authorities in Florida regarding petitioner’s arrest and detention constituted a business record qualifying as an exception to the hearsay rule and therefore could be relied on as evidence of a technical violation of leaving the parole district and/or changing his residence without permission. Fenton v. Board of Probation and Parole, 532 A.2d 1223 (Pa. Cmwlth. 1987).

Prior inconsistent statements of the witnesses at a parole hearing for a technical violation under this section could be used as substantive evidence against the parolee under the holdings of Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986), Wilson v. Board of Probation and Parole, 97 Pa. Comm. 202, 509 A.2d 1335 (1986) and Miller v. Board of Probation and Parole, 522 A.2d 720 (Pa. Commw. 1987). Gregory v. Board of Probation and Parole, 530 A.2d 1048 (Pa. Cmwlth. 1987); vacated and remanded 533 A.2d 509 (Pa. Cmwlth 1987).

Testimony by parole agent that he telephoned the approved residence of parolee and was told by petitioner’s girlfriend that he no longer lived there was sufficient evidence under this section and could be used as substantive evidence of a parole violation by the Board even though the statement was inconsistent with the girlfriend’s testimony at the parole revocation hearing. Gregory v. Board of Probation and Parole, 530 A.2d 1048 (Pa. Cmwlth. 1987).

The technical violation under this section of a parolee failing to report in person or in writing within 48 hours and leaving the district is a separate and distinct violation from the failure to live at the residence approved by the Board. Novitski v. Board of Probation and Parole, 530 A.2d 1025 (Pa. Cmwlth. 1987); appeal denied 559 A.2d 41 (1989).

The criminal conduct of escaping the county prison and the technical violation of absenting oneself from the parole district without permission and changing residence without permission do not constitute the same act; therefore parolee could be recommitted to separate terms of ‘‘back time’’ as convicted parole violator and technical parole violator. Novitski v. Board of Probation and Parole, 530 A.2d 1025 (Pa. Cmwlth. 1987); appeal denied 559 A.2d 41 (1989).

Parole may be revoked for violating conditions of parole by changing residence without permission of the parole supervision staff, and parolee’s admission to parole officer of this fact is an exception to the hearsay evidence rule because it is an admission against interest. Falasco v. Board of Probation and Parole, 521 A.2d 991 (Pa. Cmwlth. 1987).

Failure to appear before parole officer is a technical violation of parole for which parole may be revoked. Falasco v. Board of Probation and Parole, 521 A.2d 991 (Pa. Cmwlth. 1987).

A parolee that fails to report to his parole officer as instructed will be deemed a technical parole violator and his parole will be revoked. Falasco v. Board of Probation and Parole, 521 A.2d 991 (Pa. Cmwlth. 1987).

Testimony of two witnesses who state parolee hit them several times in the face is substantial evidence of assaultive behavior and the Board was free to disregard conflicting evidence presented by parolee as it is the Board’s duty to assess evidentiary weight and evaluate witness credibility. Harper v. Board of Probation and Parole, 520 A.2d 518 (Pa. Cmwlth. 1987); appeal denied 531 A.2d 432 (Pa. 1987).

Under 234 Pa. Code Rule 56, the payment of fines and costs of a summary criminal citation constitutes a guilty plea and a guilty plea constitutes substantial evidence that the parolee disobeyed Federal, State or municipal laws and thus violated general parole conditions. Harper v. Board of Probation and Parole, 520 A.2d 518 (Pa. Cmwlth. 1987).

Summary citations issued under 234 Pa. Code Rule 51(b) do not constitute ‘‘arrest’’ which parolees are required to report to the parole supervision staff. Harper v. Board of Probation and Parole, 520 A.2d 518 (Pa. Cmwlth. 1987).

Where parolee is recommitted after a conviction of aggravated assault and his possession of a weapon is an element of that conviction, then additional recommitment of the parolee as a technical parole violator for possessing the same weapon is erroneous. Weimer v. Board of Probation and Parole, 519 A.2d 1103 (Pa. Cmwlth. 1987); appeal denied 535 A.2d 85 (Pa. 1987).

Pink slip copies of citations for summary offenses, where the charges are open and pending, the police officer hasn’t received notice of a hearing, the hearings haven’t taken place and defendant has neither received notice of a hearing or pled guilty of charges, are not substantial evidence to support a violation of parole. Arentz v. Board of Probation and Parole, 516 A.2d 843 (Pa. Cmwlth. 1986).

Laboratory report constituted hearsay evidence; therefore, if parolee’s counsel had objected to the admission of the report the hearing examiner would have been required under the Board’s regulations and due process to make a good cause finding. Vereen v. Board of Probation and Parole, 515 A.2d 637 (Pa. Cmwlth. 1986).

Possession or use of a controlled substance without a valid prescription is a clear violation of general parole condition 5A. Vereen v. Board of Probation and Parole, 515 A.2d 637 (Pa. Cmwlth. 1986).

Fact that possession of nunchakus does not, in particular circumstances, constitute prohibited possession of an offensive weapon under 18 Pa.C.S. (relating to Crimes Code), does not control determination of whether such possession violates parole condition 5(b), see paragraph (5)(ii), requiring parolee to refrain from possessing other weapons. Keastead v. Board of Probation and Parole, 514 A.2d 265 (Pa. Cmwlth. 1986).

Although Board had authority to recommit parolee as a technical parole violator for carrying a weapon in violation of the general parole condition set forth in paragraph (5)(ii), when parolee was later convicted of criminal violation based on same conduct, the Board should have vacated the earlier recommitment and proceeded to recommit as a convicted parole violator. Johnson v. Board of Probation and Parole, 511 A.2d 894 (Pa. Cmwlth. 1986).

Parole Board’s finding that parolee failed to report arrest within 70 hours must be vacated where parole agent filed warrant and parole violation charges 1 day after parolee turned himself into police. Lawson v. Board of Probation and Parole, 524 A.2d 1053 (Pa. Cmwlth. 1987).

Kitchen knife which was capable of totally incapacitating parolee’s wife in ‘‘accidental’’ stabbing was properly classified as deadly weapon. Ransom v. Board of Probation and Parole, 523 A.2d 841 (Pa. Cmwlth. 1987).

There was substantial evidence to support a finding that parolee violated this section, where parolee admitted stabbing wife with kitchen knife but claimed it was an accident, since 18 Pa.C.S. (relating to Crimes Code) defines simple assault as negligently causing bodily injury to another with a deadly weapon. Ransom v. Board of Probation and Parole, 523 A.2d 841 (Pa. Cmwlth. 1987).

A post office box mailing address is not within the meaning of ‘‘residence’’ as used in paragraph (2) since it is not the actual dwelling place or habitation of the parolee. McCauley v. Board of Probation and Parole, 510 A.2d 877 (Pa. Cmwlth. 1986).

Under Rivenbark v. Board of Probation and Parole, 501 A.2d 1110 (Pa. 1985), Board cannot recommit as technical parole violator for violation of paragraph (5)(ii) and (iii) where the violations constitute new crimes for which parolee has been convicted. Pitt v. Board of Probation and Parole, 508 A.2d 1314 (Pa. Cmwlth. 1986).

Constructive possession of a firearm is enough to warrant a violation of parole condition 5 B, as set forth in paragraph (5)(ii). Nickens v. Board of Probation and Parole, 502 A.2d 277 (Pa. Cmwlth. 1985).

Fact that parolee was acquitted of the criminal charges of possession of a Prohibited Offensive Weapon, 18 Pa.C.S. § 908 (relating to prohibited offensive weapons), and of Former Convict not to Own a Firearm, 18 Pa.C.S. § 6105 (relating to former convict not to own a firearm, etc.), does not collaterally estop the Board from recommitting for violation of paragraph (5)(ii), general parole condition against owning or possessing firearm, since the elements required to be proven are not identical. Nickens v. Board of Probation and Parole, 502 A.2d 277 (Pa. Cmwlth. 1985).

Criminal conduct is not required to establish a violation of the parole condition which mandates that a parolee refrain from owning or possessing firearms; the parole condition covers a broader range of conduct than that prohibited by the Crimes Code. Anderson v. Board of Probation and Parole, 497 A.2d 947 (Pa. Cmwlth. 1985).

Since the elements of a technical parole violation of paragraph (5)(ii) were different from the elements of the Uniform Firearms Act charge on which parolee was acquitted, the Board was not collaterally estopped by the parolee’s acquittal; and, the eyewitness testimony of a police officer that a loaded revolver was found in the driver’s compartment of the stolen vehicle of which parolee was sole occupant, supported by fact a prima facia case had been found at preliminary hearing, was sufficient to support Board’s finding of a technical parole violation. Hawkins v. Board of Probation and Parole, 490 A.2d 942 (Pa. Cmwlth. 1985).

The Board’s imposition of 48 months backtime for violation of conditions of parole pertaining to ownership of firearms and assaultive behavior required by paragraph (5) was within the presumptive ranges and was supported by substantial evidence in the record. Chapman v. Board of Probation and Parole, 484 A.2d 413 (Pa. Cmwlth. 1984).

In the absence of a specific definition for the word ‘‘weapon’’ as found in paragraph (5)(ii), the Board was not wrong in ruling that a folding knife with a 3 1/2 inch blade was a weapon for parole violation purposes. Michael v. Board of Probation and Parole, 481 A.2d 711 (Pa. Cmwlth. 1984).

Fifteen months backtime given by the Board was within the 6 to 18 months presumptive range for multiple violations of general parole conditions in paragraph (1) (obtaining permission to leave parole district) and paragraph (5)(ii) (refraining from owning or possessing any weapon). Lantzy v. Board of Probation and Parole, 477 A.2d 18 (Pa. Cmwlth. 1984).

In upholding a 10 month recommitment for a parolee’s conviction of the summary offense of harassment, the court noted that a condition that the parolee ‘‘refrain from overt behavior which threatens or presents a clear and present danger to yourself and others’’ is not identified as one of the five general conditions of parole enumerated in this section, even though it resembled the assaultive behavior provision of paragraph (5)(iii). Lewis v. Board of Probation and Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983).

If a parole agent personally substantiates violations of paragraphs (3), (5) and (6), probable cause exists for the Board to issue an arrest warrant. Commonwealth v. Gaito, 3 Pa. D. & C. 3d 339, (1977); affirmed 377 A.2d 169 (Pa. Super. 1977).

History

Authority: The provisions of this § 63.
Source: The provisions of this § 63.

37 Pa. Code § 63.5 Special conditions of parole.

(a) Parolees shall comply with special conditions which are imposed by the Board or which are subsequently imposed by the parole agent.

(b) If problems arise or questions occur concerning the conditions of parole, the parolee shall consult with the parole agent, as it is the responsibility of the latter to help the parolee in the interpretation of the conditions of parole. If a parolee is unable to contact his parole agent, he should contact the agent in charge of the district parole office.

Credit

Participation in required inpatient drug and alcohol treatment program need not be credited against unexpired prison term of parole violator where program lacks custodial aspects which would be characteristic of confinement. Jackson v. Board of Probation and Parole, 568 A.2d 1004 (Pa. Cmwlth. 1990).

It is within the discretion of the Board, unless it acts arbitrarily or plainly abuses its discretion, to make a factual determination whether a drug rehabilitation program is equivalent to incarceration or whether the parolee is at liberty on parole. Cox v. Board of Probation and Parole, 493 A.2d 680 (Pa. 1985).

Where as a special condition of parole the parolee had entered and completed drug rehabilitation program, at a subsequent recommitment hearing the Board must make a factual determination and develop a record as to whether participation in such program constitutes ‘‘time at liberty on parole’’ for which no credit may be given under 61 P. S. § 331.21(a). Cox v. Board of Probation and Parole, 493 A.2d 680 (Pa. 1985); reversed 493 A.2d 680 (Pa. 1985).

Employment

Since fashioning of a condition over which parolee had no control would be abuse of authority, ‘‘must maintain employment’’ is interpreted to mean ‘‘must make a good faith effort to maintain employment.’’ Wagner v. Board of Probation and Parole, 498 A.2d 1007 (Pa. Cmwlth. 1985); reversed and remanded, 522 A.2d 155 (Pa. Cmwlth. 1987).

Technical Parole Violation

Failure to consult parole officer prior to leaving inpatient drug rehabilitation program without permission constituted a technical parole violation under this section. Englerth v. Board of Probation and Parole, 505 A.2d 647 (Pa. Cmwlth. 1986).

Understanding

Since it is the obligation of every parolee to become familiar with the terms and conditions of his parole, parolee’s misunderstanding of special conditions imposed by parole officer when granting travel permission was no excuse. Sigafoos v. Board of Probation and Parole, 503 A.2d 1076 (Pa. Cmwlth. 1986).

This section cited in 37 Pa. Code § 67.1 (relating to general requirements).

History

Authority: The provisions of this § 63.
Source: The provisions of this § 63.

Chapter 65 Conditions Governing Special Probation and Parole

37 Pa. Code § 65.1 Board acceptance of cases.

Acceptance of a case for supervision or presentence investigation from a county which, on December 31, 1985, maintained adult probation offices and parole systems, will be at the Board’s discretion. The Board will ordinarily accept a case that meets the following criteria:

(1) For supervision:

(i) A felony conviction and a sentence to serve a probationary term of at least 2 years.

(ii) A felony conviction and parole from a sentence with a balance of at least 6 months.

(iii) A case otherwise under the Board’s jurisdiction.

(2) For presentence investigation:

(i) A felony conviction.

(ii) A case otherwise under the Board’s jurisdiction.

The provisions of this § 65.1 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 65.1 amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial page (104829).

History

Authority: The provisions of this § 65.
Source: The provisions of this § 65.

37 Pa. Code § 65.3 Detention and revocation.

The Board may, during the probation or parole period, in case of violation of the conditions of probation or parole, detain the special probationer or parolee in a county prison and make a recommendation to the court, which may result in the revocation of probation or parole and commitment to a penal or correctional institution to serve a sentence in the case of probation or the remainder of the sentence in the case of parole.

History

Authority: The provisions of this § 65.
Source: The provisions of this § 65.

37 Pa. Code § 65.4 General conditions of special probation or parole.

A special probationer or parolee is subject to the following conditions:

(1) Be under the supervision of a district office or suboffice and not leave that district without prior written permission of the parole supervision staff.

(2) Obtain the written permission of the parole supervision staff before changing his residence.

(3) Maintain regular contact with the parole supervision staff by:

(i) Reporting regularly as instructed and following written instructions of the Board or the parole supervising staff.

(ii) Notifying the parole supervision staff within 72 hours of one of the following:

(A) Arrest.

(B) Receipt of a summons or citation for an offense punishable by imprisonment upon conviction.

(iii) Notifying the parole supervision staff within 72 hours of a change in status including, but not limited to employment, on the job training and education.

(4) Comply with municipal, county, State and Federal criminal statutes, as well as the Vehicle Code and the Liquor Code (47 P. S. § § 1-101—9-902).

(5) Additionally:

(i) Abstain from the unlawful possession or sale, of narcotics and dangerous drugs and abstain from the use of controlled substances within the meaning of the Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. § § 780-101—780.144) without a valid prescription.

(ii) Refrain from owning or possessing firearms or other weapons.

(iii) Refrain from assaultive behavior.

(6) Pay fines, costs and restitution imposed by the sentencing court in accordance with the instructions contained in the Conditions Governing Special Probation/Parole form.

The provisions of this § 65.4 issued under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); and sections 16.2, 17.1 and 23 act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.16b, 331.17a and 331.23); amended under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 65.4 amended June 24, 1977, effective June 25, 1977, 7 Pa.B. 1745; amended January 16, 1981, effective January 17, 1981, 11 Pa.B. 353; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (104829) to (104830).

Admission of Evidence

Laboratory reports were properly admitted during a hearing for technical violations under this section because the persons with knowledge of the reports were beyond the Board’s subpoena power. Damron v. Board of Probation and Parole, 531 A.2d 592 (Pa. Cmwlth. 1987).

Frivolous Appeal

A petitioner’s appeal was frivolous since the court will not review the Board’s discretion in imposing an amount of backtime for parole violations where the violations are supported by substantial evidence, and the backtime imposed is within the presumptive range for those violations. Strothers v. Board of Probation and Parole, 554 A.2d 1017 (Pa. Cmwlth. 1989).

History

Authority: The provisions of this § 65.
Source: The provisions of this § 65.

37 Pa. Code § 65.5 Special provisions or conditions of sentence.

Every special probationer or parolee shall comply with the following conditions of sentence or, in the case of a parolee, special conditions which will be subsequently imposed by his parole agent:

(1) If problems arise or questions occur concerning the conditions of probation or parole, the parolee shall consult with the parole agent, as it is the responsibility of the latter to help the parolee in the interpretation of the conditions of probation or parole. If a parolee is unable to contact his parole agent, he should contact the agent in charge of the district parole office.

(2) If a parolee is arrested while on special probation or parole, the Board may place a detainer against him which will prevent the parolee from making bail, pending the disposition of the new charges or other action of the court.

(3) If a parolee is convicted of a crime committed while on special probation, or violates the conditions of probation, the court may revoke probation of and impose sentence upon the parolee.

(4) If a parolee is convicted of a crime committed while on special parole, or violates the conditions of parole, the court may recommit the parolee to serve the balance of the sentence which the parolee was serving when paroled, with no credit given for time at liberty on parole.

This section cited in 37 Pa. Code § 67.1 (relating to general requirements).

History

Authority: The provisions of this § 65.
Source: The provisions of this § 65.

37 Pa. Code § 65.6 Acknowledgment by parolee.

Every parolee shall acknowledge the following:

(1) That he has read, or has had read to him, the conditions of his parole.

(2) That he fully understands the conditions of his parole and agrees to follow such conditions.

(3) That he fully understands the penalties involved if he violates the conditions of parole in any manner.

History

Authority: The provisions of this § 65.
Source: The provisions of this § 65.

37 Pa. Code § 65.7 Parole agreement.

The parole agreement shall contain the parole number, date and signature of the parolee. If the signature is by mark, there shall be two witnesses to the execution of the parole agreement.

History

Authority: The provisions of this § 65.
Source: The provisions of this § 65.

Chapter 67 Special Conditions of Parole or Probation

37 Pa. Code § 67.1 General requirements.

(a) In addition to the general conditions of parole or probation imposed by Chapters 63 and 65 (relating to conditions governing parole; conditions governing special probation and parole), parolees shall be subject to the additional conditions imposed under § § 63.5 (relating to special conditions of parole) and 65.5 (relating to special conditions or conditions of sentence).

(b) If problems arise or questions occur concerning the conditions of parole or probation the parolee shall consult with the parole agent, as it is the responsibility of the latter to help the parolee in the interpretation of the conditions of probation or parole. If a parolee is unable to contact his parole agent, he should contact the agent in charge of the district parole office.

(c) If a parolee violates the special conditions of this chapter, he shall be subject to arrest and revocation of his parole or probation as if he had violated the original conditions as outlined in Chapters 63 and 65.

Admission of Evidence

37 Pa. Code § 67.2 Release from conditions of probation or parole.

The Board may release parolee or probationer from the conditions of parole or probation which it has imposed. In cases where a court of record has imposed conditions, only a court of record may release parolee or probationer from those conditions. The release form shall contain the parole number, name of parolee or probationer, date, signature of parole agent, and the conditions from which the parolee or probationer is released.

37 Pa. Code § 67.3 Acknowledgment by parolee.

Every parolee shall acknowledge the following:

(1) That he has read, or has had read to him, the conditions of his parole.

(2) That he fully understands the conditions of his parole and agrees to follow such conditions.

(3) That he fully understands the penalties involved if he violates the conditions of parole in any manner.

Acknowledgement of Condition of Parole

The obligation to acquaint himself with the conditions of his parole was upon the parolee, and there is no prerequisite to a valid parole condition that the parolee must agree to its terms. Benefiel v. Board of Probation and Parole, 426 A.2d 242 (Pa. Cmwlth. 1981).

Notice

Probation Board failed to meet notice requirement of this section where the only notice was a form entitled ‘‘Conditions Governing Parole/Reparole’’ signed and dated by the parolee that informed parolee that if he was convicted of a crime committed while on parole/reparole then all time at liberty would be forfeited, but the form did not inform parolee that if he was determined to be a technical parole violator then any delinquent time at liberty would be forfeited. Pana v. Board of Probation and Parole, 703 A.2d 737 (Pa. Cmwlth. 1997); appeal denied 729 A.2d 1132 (Pa. 1998).

The obligation to acquaint himself with the conditions of his parole is upon the parolee, and there is no prerequisite to a valid parole condition that the parolee must agree to its terms. Benefiel v. Board of Probation and Parole, 426 A.2d 242 (Pa. Cmwlth. 1981).

37 Pa. Code § 67.4 Parole agreement.

The parole agreement shall contain the parole number, date and signature of the parolee. If the signature is by mark, there shall be two witnesses to the execution of the parole agreement.

Chapter 68 County Offender Supervision Fee Program

37 Pa. Code § 68.1 Scope.

This chapter applies to the following:

(1) Offenders placed on probation, parole, accelerated rehabilitative disposition, probation without verdict or intermediate punishment under the jurisdiction of a county within this Commonwealth.

(2) Counties having jurisdiction over offenders.

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.2 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Benefit—A financial contribution other than salary which is for the improvement of the employe—for example, health insurance premium payment and retirement contribution. Board—The Board of Probation and Parole. County Offender Supervision Fund—oneys administered by the county consisting of that 50% of the supervision fees retained by the county. Defer—To temporarily postpone payment of the supervision fee, but not to waive or reduce the payment. Dependent—A person legally eligible to be listed as an exemption for Federal income tax purposes. Fiscal year—An account period of 12 months beginning July 1 and ending June 30. Inability to pay—A present set of circumstances rendering an offender incapable of tendering the supervision fee. Income—oneys derived from all sources, exclusive of Social Security and public assistance, which a client utilizes for self or familial support. Offender—An adult individual placed on probation, parole, accelerated rehabilitative disposition, probation without verdict or intermediate punishment under the jurisdiction of a county probation department within this Commonwealth. Personnel—The professional, clerical and support staff employed by a county adult probation department. Program—A County Offender Supervision Fee Program. Reduce—To lessen the amount of fee mandated by the Court. Supervision—The services, including administration, provided offenders within the scope of this chapter. Supervision fee—An amount of at least $25 which is specified to be paid to the Court, unless reduced. Waive—To dispense with the condition, which requires offenders to pay the supervision fee either permanently or temporarily.

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.21 Imposition of condition.

The sentencing judge of the court of common pleas shall impose upon an offender, as a condition of supervision, a monthly supervision fee unless the court or a supervising agency designated by the court determines that it should be reduced, waived or deferred based upon one or more of the following criteria:

(1) The offender is 62 years of age or older with no income.

(2) The offender is receiving public assistance.

(3) The offender is enrolled as a full-time student for 12 semester credit hours in an educational organization approved by the United States Department of Education.

(4) The offender is incarcerated.

(5) The offender is not employable due to a disability, as determined by an examination acceptable to or ordered by the court.

(6) The offender is responsible for the support of dependents and the payment of a supervision fee constitutes an undue hardship on the offender.

(7) The client is participating in an inpatient treatment program.

(8) Other extenuating circumstances as determined by the court or a supervising agency designated by the court.

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.22 Program implementation.

(a) The president judge of the court of common pleas shall appoint an appropriate person to implement the Program. The designated official shall develop policies and procedures which clearly communicate the importance of fee collection and monitoring of payments to managers, supervisors and probation officers. These policies and procedures shall include the following:

(1) County sentenced supervision. If an offender is placed under supervision of the county in which the offender was sentenced, that offender shall be required to pay a monthly supervision fee to that county unless this requirement is waived or deferred by the court or its supervising agency.

(2) Intercounty supervision. If an offender is transferred from one county to another county in this Commonwealth, the monthly supervision fee shall be paid to the receiving county if the offender has the ability to pay as determined by the supervising agency.

(3) Interstate supervision. If an offender is transferred through the Interstate Compact from a county in this Commonwealth to another state, the offender is no longer required to pay a supervision fee to the sending county in this Commonwealth. The transferred offender shall comply with the conditions of supervision of the receiving state, including a supervision fee, if applicable. An offender received for supervision from another state through the Interstate Compact is required to pay a monthly supervision fee unless this requirement is waived or deferred by the supervising agency.

(4) Cooperative supervision. If an offender is under the supervision of the Board and a county adult probation/parole agency, the agency actively supervising the offender shall receive the monthly supervision fee. If both agencies are providing active supervision, supervision fees shall be paid to only one agency and the Board’s District Director for that area shall confer with the county chief adult probation officer to resolve the issue based upon the following criteria:

(i) The agency supervising the sentence with the latest maximum term expiration date.

(ii) The availability of specialized programs.

(b) Probation/parole administrators, in concert with the court, shall adopt classification systems and case management standards which assure that offenders who pay a supervision fee on a regular basis are not kept on supervision longer than necessary.

(c) The president judge of the court of common pleas shall establish the priority of court ordered payments, including supervision fees.

(d) The agency responsible for implementation of the Program shall inform the offender of the following:

(1) The offender’s obligation and responsibility to pay the supervision fee as ordered and according to the payment schedule as determined by the supervising or collecting agency, or both.

(2) The offender’s responsibility to initiate a request for the fee to be reduced, waived or deferred based on the offender’s inability to pay the fee.

(3) The range of sanctions available to the supervising agency and the court in the event the offender fails to pay the supervision fee as ordered.

(e) The agency administrator or a designee, responsible for implementation of the Program, shall monitor Program operation through inspections and reviews at least annually to determine compliance with policies and procedures.

(f) On or before August 31 of each year, the president judge of the court of common pleas shall provide the Board with an annual statement which fully reflects collections deposited into and expenditures from the County Offender Supervision Fund for the preceding fiscal year.

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.51 Collecting entity.

(a) The president judge of the court of common pleas and the board of county commissioners/county executive shall designate an appropriate county agency to be responsible for collection of supervision fees. Payments shall be in the form acceptable to the collecting agency.

(b) The administrator of the collecting agency is responsible for the collection, safeguarding and disbursement of supervision fees in accordance with court order. Generally accepted accounting principles shall provide for accurate and timely receipt of funds, expenditures made from the funds and unexpended balances.

(c) The collecting agency shall deposit, at least monthly, 50% of the fees collected into the County Offender Supervision Fund. The remaining 50% shall be deposited with the county clerk of courts for transmittal to the Board through the Department of Revenue.

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.52 County treasurer/chief financial officer.

(a) The county treasurer/chief financial officer of each county shall establish and administer a county offender supervision fund.

(b) The county treasurer/chief financial officer shall disperse moneys from this fund only at the discretion of the president judge of the court of common pleas. The moneys in this fund shall be used to pay the salaries and employe benefits of adult probation and parole personnel employed by the county adult probation and parole departments and the operational expenses of the department. Moneys from this fund shall be used to supplement Federal, State or county appropriations for the county adult probation and parole department. Moneys remaining in the County Supervision Fee Fund will not lapse at the end of the county’s fiscal year but will be rolled over to the next fiscal year.

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.53 County clerk of courts.

The county clerk of courts shall on a monthly basis transfer 50% of the supervision fees collected by that county to the Board through the Department of Revenue on forms at times as directed by the Department of Revenue.

This section cited in 37 Pa. Code § 68.73 (relating to disbursement of funds by the Board).

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.54 Audits.

(a) Fiscal records for the receipt and expenditure of County Offender Supervision Funds shall be maintained. Generally accepted accounting principles shall provide for accurate and timely receipt of funds, expenditures made from the funds and unexpended balances.

(b) Independent audits shall be conducted, by or on behalf of, county or state officials at least annually to determine the county’s compliance to statutes, court orders, policies and procedures.

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.71 Conditions.

The treasurer/chief financial officer shall establish procedures which provide for accurate and timely recording of receipt of funds, expenditures made from the funds, transfer of funds and unexpended balances as necessary to administer this Program.

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.72 Use of County Offender Supervision Funds.

Each county shall develop and implement a system by which funds are distributed. Moneys in this fund shall be used to pay the salaries and employe benefits of adult probation and parole personnel employed by the county adult probation and parole department and operational expenses. Moneys shall be used to supplement Federal, State or county appropriations for the county adult probation department to maintain and improve county adult probation services.

Disbursement of Funds

In a dispute over the disbursement of money from the county offender supervision fund, the Commonwealth Court held that the law is clear that disbursements from the fund are to be made only at the discretion of the president judge, where the law imposes no requirement that the president judge and the county commissioners concur in the disposition of the fund. Jefferson County v. Court of Common Pleas of Jefferson County, 738 A.2d 1077 (Pa. Cmwlth. 1999); affirmed 763 A.2d 376 (Pa. 2000).

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

37 Pa. Code § 68.73 Disbursement of funds by the Board.

(a) Administration of the Program. The Board will disburse funds received under § 68.53 (relating to county clerk of courts) to counties which:

(1) Establish policies and procedures for a Program.

(2) Implement a Program.

(b) Use of funds distributed by the Board. Moneys distributed to the counties by the Board shall be used solely for improved adult probation services as approved by the Board.

History

Authority: The provisions of this Chapter 68 issued under sections 477.
Source: The provisions of this Chapter 68 adopted September 17, 1993, effective September 18, 1993, 23 Pa.

Chapter 69 Parole Agents

37 Pa. Code § 69.1 General.

The Board recognizes, in specific cases, the need for parole agents to carry a weapon for their protection. Therefore, parole agents shall be authorized to carry firearms in accordance with established standards and procedures of the Board.

History

Source: The provisions of this Chapter 69 adopted June 2, 1972, effective June 3, 1972, 2 Pa.

37 Pa. Code § 69.2 Limitations.

The authority extended by the provisions of this chapter shall be limited by the following provisions:

(1) Firearms shall only be used for defensive purposes and may only be carried by parole agents while on duty.

(2) Permission to carry firearms may only be given to those parole agents who have successfully completed a Board-approved and sponsored training course in the use of firearms.

History

Source: The provisions of this Chapter 69 adopted June 2, 1972, effective June 3, 1972, 2 Pa.

37 Pa. Code § 69.3 Procedures.

The following procedures have been adopted by the Board:

(1) Whenever a parole agent considers it necessary to carry a firearm, during that period, it should be carried on his person and in a manner that it is ready and available for use and, under no circumstances, is the weapon to be left or carried in the glove compartment of an automobile, a briefcase, a suitcase, or some receptacle other than on the person of the parole agent. The firearm is to be carried inconspicuously and is to be used only in the defense of the parole agent’s person.

(2) Parole agents desiring to carry a firearm shall submit in writing a request to their immediate supervisor.

(3) His request shall include a rationale as to why it is necessary to carry a weapon while on duty.

(4) The immediate supervisor and district supervisor shall then review the case, making a decision with an accompanying statement either in support of or in opposition of the agent’s request.

(5) Copies of requests and the final decision concerning the arming of the agents are to be submitted to the regional director and the Superintendent of Parole Supervision for information and review purposes.

History

Source: The provisions of this Chapter 69 adopted June 2, 1972, effective June 3, 1972, 2 Pa.

Chapter 71 Arrest and Hearing for Parole Violators

37 Pa. Code § 71.1 Initiation of proceedings.

(a) If an agent has reason to believe that a parolee has violated the conditions of his parole, that action of the Board is necessary, and that an arrest or the lodging of a detainer is appropriate, the agent may apply to his district supervisor for permission to arrest and for the issuance of a ‘‘Warrant to Commit and Retain’’ (PBPP-141).

(b) An application should normally be responded to either by the granting of permission to arrest with the issuance of the Board warrant or by a refusal to issue the warrant promptly.

(c) The warrant shall be executed forthwith, with every diligent effort being made to locate and arrest, as promptly as possible, the parolee named in the Board warrant.

(d) If the agent is unable to contact the district supervisor or feels that immediate confinement of the parolee is imperative, he may utilize an ‘‘Order to Detain for 48 hours’’ (PBPP-142), as warrant to commit and retain the parolee. If the warrant is used, the agent shall apply to his district supervisor for a ‘‘Warrant to Commit and Retain’’ (PBPP-141), as promptly as possible.

(e) In those instances where the parolee is already in custody on another charge, the ‘‘Warrant to Commit and Retain’’ (PBPP-141) shall be lodged as a detainer at the institution where the parolee is held.

The provisions of this § 71.1 adopted August 4, 1972, effective August 14, 1972, 12 Pa.B. 1465; amended February 18, 1977, effective March 1, 1977, 7 Pa.B. 487. Immediately preceding text appears at serial page (32640).

Detainer Proper

The Board’s detainer was proper insofar as the petitioner was required to serve Federal sentence and back time under prior State sentence before serving new sentence. Bellochio v. Board of Probation and Parole, 559 A.2d 1024 (Pa. Cmwlth. 1989).

Timeliness

The effect of this regulation was to toll the running of any period of time in which the Board of Probation and Parole was required to act until the parolee was returned to State custody. Therefore, where the preliminary hearing was held 11 days after the parolee’s return to this Commonwealth it was a timely hearing. Fulton v. Board of Probation and Parole, 663 A.2d 865 (Pa. Cmwlth. 1995).

Because the parole agent did not have reason to believe that the parolee violated the conditions of parole before the expiration date of the original sentence, the Board of Probation and Parole did not err in failing to lodge a detainer prior to that date. Williams v. Board of Probation and Parole, 654 A.2d 235 (Pa. Cmwlth. 1995).

Where the Board filed a detainer warrant on December 31, 1979, under this section, a preliminary hearing held on January 16, 1980 was held within the 15 day limit, since January 15 was an official Commonwealth holiday. Anderson v. Board of Probation and Parole, 471 A.2d 593 (Pa. Cmwlth. 1984).

Warrant

A parolee’s assertion that arrest occurred without the lodging of the proper warrant as required by this section was dismissed as meritless when the record was found to contain a Board warrant to commit and detain the parolee issued the same date as the arrest. Prough v. Board of Probation and Parole, 467 A.2d 1234 (Pa. Cmwlth. 1983).

History

Authority: The provisions of this § 71.
Source: The provisions of this Chapter 71 adopted August 4, 1972, effective August 14, 1972, 2 Pa.

37 Pa. Code § 71.2 Procedure for violation of parole conditions.

The following procedures shall be followed if a parolee, not already detained after appropriate hearings for other technical violations or criminal charges, has been charged with a technical violation:

(1) After a parolee is detained under a Board warrant, the parolee shall be visited by a representative of the Board. The parolee shall be notified of the following:

(i) The charges against the parolee specifying the conditions of parole violated.

(ii) That a preliminary hearing will be held within 14 days and that the parolee will be notified of the exact date.

(iii) The parolee’s right to speak, to have voluntary witnesses appear and to present documentary evidence at the preliminary hearing.

(iv) The right to retain counsel, and the name and address of the public defender of the county of confinement.

(v) That the purpose of the hearing is to determine whether there is probable cause to believe that the parolee has committed a parole violation, and to resolve by admissions, agreements or stipulations as many factual matters as possible.

(2) After the preliminary hearing is scheduled, the parolee and counsel shall be given a copy of the written notice of the charges and of the date and time of the hearing.

(3) The preliminary hearing shall be held within 14 days of the detention of the parolee on the Board warrant.

(4) The preliminary hearing shall be held before an examiner. The parolee has the right to be present during the entire proceeding, unless the parolee waives that right, refuses to appear or behaves disruptively.

(5) When the parties are present and assembled for the preliminary hearing, the examiner shall verbally advise the parolee and counsel of the following: the parolee may retain counsel for the proceedings; the parolee may, with leave of the examiner, waive the right to the preliminary hearing; and, if the preliminary hearing is waived, the hearing may proceed as a violation hearing before the examiner, unless the parolee asserts the right to be heard by a panel at a violation hearing.

(i) Counsel for the parolee shall enter a written appearance.

(ii) A parolee may waive in writing the right to counsel.

(iii) If counsel is not present but the parolee desires counsel, that fact shall be documented by the examiner and acknowledged by the parolee. The examiner shall terminate the proceeding. The preliminary hearing shall be held within 14 days.

(iv) If the parolee waives both the right to a preliminary hearing and the right to be heard by a panel at a violation hearing, both waivers shall be signed by the parolee. The examiner may follow the procedures governing violation hearings, and the Board may treat the proceeding as a violation hearing.

(v) If the parolee waives the right to a preliminary hearing but does not wish to waive the right to be heard by a panel, the examiner shall terminate the proceedings, and the parolee shall be scheduled to be heard by a panel at a violation hearing.

(vi) If the parolee does not wish to waive the right to the preliminary hearing and where a waiver of, or appearance by, counsel has been signed as prescribed in this section, the examiner shall conduct a preliminary hearing.

(6) A representative of the Board who is familiar with the facts which constitute the alleged violation shall be present to testify.

(7) The examiner shall make a summary which shall state:

(i) Which violations are supported by probable cause.

(ii) A summary of the evidence presented.

(iii) Which of the violations have been admitted, agreed to or stipulated.

(8) If the examiner finds that none of the allegations were supported by probable cause, the parolee shall be released as soon as practicable.

(9) If the examiner finds probable cause and is of the opinion that a violation hearing is warranted, the examiner shall initiate the scheduling of a violation hearing, if desired by the parolee or by the Board’s representative to resolve remaining contested relevant facts.

(10) If a violation hearing is scheduled, it shall be held not later than 120 days after the preliminary hearing.

(11) Before the violation hearing the parolee or counsel shall be notified of the following:

(i) The charges, specifying the conditions of parole violated and setting forth the circumstances of the violations.

(ii) The date set for the hearing and of the right to be heard by a panel.

(iii) The right to speak, to have witnesses appear and to present documentary evidence.

(iv) The right to cross-examine an adverse witness who appears at the hearing, unless the panel or examiner specifically finds good cause for not allowing confrontation.

(v) The right to representation by counsel at the hearing, the right to free counsel, if the parolee is unable to afford to retain counsel, and the name and address of the public defender.

(vi) That there is no penalty for requesting counsel.

(12) If the parolee is unable to afford counsel, the Board will notify the appropriate public defender by transmitting a copy of the written notice given to the parolee.

(13) The following procedures apply during a violation hearing:

(i) A violation hearing shall be held before a panel, or, if the parolee has waived hearing by a panel, the hearing shall be held before an examiner other than the examiner who conducted the preliminary hearing, if practicable.

(ii) The parolee has the right to be present during the entire proceeding, unless the parolee expressly waives that right, refuses to appear or behaves disruptively.

(14) If a parolee appears without counsel at the violation hearing, the panel or examiner shall determine whether the parolee understands the right to free counsel if unable to afford counsel, and that there is no penalty for requesting counsel.

(15) A representative of the Board who is familiar with the facts which constitute the violation shall be present to testify.

(16) If a violation hearing is conducted by an examiner, the examiner shall prepare a written report and file it with the other panel member for decision. The report shall state:

(i) Which violations have been proved by a preponderance of the evidence.

(ii) The evidence relied upon.

(iii) A decision as to disposition and the reasons for it.

(17) If the hearing is before a panel, the panel shall act promptly.

(18) If revocation is ordered, the revocation decision shall specifically state the reasons for revocation. The decision shall be transmitted to the parolee or to counsel of record.

(19) The panel may not find that a violation was proved except by a preponderance of the evidence.

The provisions of this § 71.2 issued under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); and section 23 of the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § 331.23); amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 71.2 adopted August 4, 1972, effective August 14, 1972, 2 Pa.B. 1465; amended February 18, 1977, effective March 1, 1977, 7 Pa.B. 487; amended May 23, 1980, effective May 24, 1980, 10 Pa.B. 2049; amended September 12, 1980, effective September 13, 1980, 10 Pa.B. 3667; amended September 17, 1982, effective September 18, 1982, 12 Pa.B. 3290; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (104838) to (104843).

Appeals

If a petition charges that the Board misapplied paragraph (11), and thereby essentially charges the Board with mistakes of law and failure of the Board to act, the petitioner has properly sought review in the nature of a complaint in mandamus. Donnell v. Board of Probation and Parole, 434 A.2d 846 (Pa. Cmwlth. 1981).

Application

Since the parolee remained in violation of the conditions of parole until parolee’s arrest 9 months after the effective date of the amended rules, the 120-day time period of this amended section applied, rather than the 30-day time period of the previous paragraph (10) (relating to procedure for violation of parole conditions). Slayton v. Board of Probation and Parole, 394 A.2d 1084 (Pa. Cmwlth. 1978).

Computation of Time

Where convict objected at his revocation hearing that the length of time between the first preliminary hearing and a second preliminary hearing exceeded 14 days, the time for a second hearing began to run when the convict was detained on the second warrant which contained a new charge not addressed at the original preliminary hearing. Person v. Board of Probation and Parole, 701 A.2d 1381 (Pa. Cmwlth. 1997); appeal denied 717 A.2d 1030 (Pa. 1998).

The 24-hour period within which a parolee is to be visited after a detainer by his parole agent does not include hours falling on a Saturday or Sunday and this same principle applies to the 72-hour period within which a parolee is to satisfy his agent of a parole violation, citing Donnell v. Board of Probation and Parole, 453 A.2d 36 (Pa. Cmwlth. 1982). Dennis v. Board of Probation and Parole, 532 A.2d 1230 (Pa. Cmwlth. 1987).

Constitutional Rights

If the notice to the parolee alleged one ground for violation of parole and the Board actually revoked his parole on another ground, the parolee’s due process rights have been violated. Champion v. Board of Probation and Parole, 395 A.2d 671 (Pa. Cmwlth. 1978).

Continuance

When a parolee requested a continuance, but did not request in writing that the parole hearing be rescheduled, the 120 day rule did not start to run again. Stevens v. Board of Probation and Parole, 538 A.2d 108 (Pa. Cmwlth. 1988).

The 120 day rule requiring that a violation/revocation hearing not be held more than 120 days from the petitioner’s preliminary hearing is waived when the pardon requests a continuance. Dennis v. Board of Probation and Parole, 532 A.2d 1230 (Pa. Cmwlth. 1987).

The terms ‘‘revocation hearing’’ and ‘‘violation hearing’’ have acquired specific meanings in the context of parole, thus the defendant’s request for a ‘‘continuance of his violation/revocation hearing’’ related to both hearings and the delay caused by request for continuances will not be considered in determining timeliness of above-described hearings. Tarrant v. Board of Probation and Parole, 521 A.2d 997 (Pa. Cmwlth. 1987); appeal denied 535 A.2d 84 (Pa. 1987).

Under this section, Board of Probation and Parole is not responsible for any delay of timely scheduled hearing which is continued at the request of the parolee. Nicastro v. Board of Probation and Parole, 518 A.2d 1320 (Pa. Cmwlth. 1987).

The 120-day rule requiring a violation hearing is inapplicable when a petitioner or petitioner’s attorney request a continuance. Rodriquez v. Board of Probation and Parole, 516 A.2d 116 (Pa. Cmwlth. 1986).

Where parolee had appeared at preliminary/detention hearing, requested continuance until disposition of then pending criminal charges and executed waiver of right to prior written notice of additional criminal charges for which parolee had not yet been officially arrested parolee’s argument that his continuance request had been ineffective as to the additional criminal charges and that the subsequent parole revocation hearing was, as a result, untimely, was wholly frivolous and counsel was permitted to withdraw. Reale v. Board of Probation and Parole, 512 A.2d 1307 (Pa. Cmwlth. 1986).

The delay caused by the request of the parolee for a continuance will not be considered in determining whether the time limits have been met. Corbin v. Board of Probation and Parole, 399 A.2d 1202 (Pa. Cmwlth. 1979).

The preliminary hearing was timely since it was originally scheduled for a date which was only 12 days after the arrest of the parolee but was continued at the request of the parolee. Adams v. Board of Probation and Parole, 395 A.2d 1035 (Pa. Cmwlth. 1979).

Counsel

Although a parolee was improperly denied counsel through the failure of the Board of Probation and Parole to include the hearing date in its notice of hearing, the parolee was later granted a proper hearing and the error of the Board was therefore made harmless. McCloud v. Board of Probation and Parole, 407 A.2d 484 (Pa. Cmwlth. 1979).

Date Certain

The prisoner failed to prove that there was a clear right to have a date certain provided by the Board of Probation and Parole; thus, the prisoner’s petition for a writ of mandamus must be denied. Bostic v. Board of Probation and Parole, 682 A.2d 401 (Pa. Cmwlth. 1996).

Evidence

Where alleged parole violator told hearing examiner of desire for a full Board of Probation and Parole hearing, the examiner violated the regulations by proceeding to take testimony and rule on objections; since the examiner ruled on objections, the hearing tape forwarded for full Board consideration could not be considered analagous to a deposition transcript (wherein all testimony would be included subject to rulings by the Board on objections). Hartman v. Petsock, 509 A.2d 935 (Pa. Cmwlth. 1986).

Evidence/Hearsay

Witness being ‘‘too busy’’ to attend is not sufficient to support finding of good cause for admitting hearsay testimony. Wagner v. Board of Probation and Parole, 498 A.2d 1007 (Pa. Cmwlth. 1985).

Admission of hearsay evidence at a revocation hearing over objection without a finding of good cause constituted reversible error and a witness being ‘‘too busy’’ to attend was not sufficient to support finding of good cause for admitting hearsay testimony. Wagner v. Board of Probation and Parole, 498 A.2d 1007 (Pa. Cmwlth. 1985); reversed and remanded, 522 A.2d 155 (Pa. Cmwlth. 1987).

The Board of Probation and Parole acceptance of purely hearsay evidence at a recommitment hearing was in violation of paragraph (16) as well as the parolee’s rights to due process of law, unless the Examiner or the Board specifically found grounds for not allowing the parolee to confront the witnesses against the parolee and enunciated those findings as part of the record of the case. Razderk v. Board of Probation and Parole, 463 A.2d 111 (Pa. Cmwlth. 1983).

The requirement of paragraph (16) prohibits the Board of Probation and Parole from admitting hearsay evidence obtained from an out-of-court declarant over objection without a finding of good cause for abridging the parolee’s rights of confrontation and cross-examination. Washington v. Board of Probation and Parole, 458 A.2d 645 (Pa. Cmwlth. 1983).

The introduction of hearsay evidence at a revocation hearing was not improper unless the parolee objected to the admission of the hearsay evidence and it was admitted over parolee’s objection without a finding of good cause. Sinwell v. Board of Probation and Parole, 406 A.2d 597 (Pa. Cmwlth. 1979).

The right of a parolee to confront and cross-examine adverse witnesses under paragraph (16) is denied if the evidence presented consists almost entirely of the hearsay testimony of parole agents and there is no specific finding of good cause for not allowing confrontation of other witnesses. Kemp v. Board of Probation and Parole, 402 A.2d 708 (Pa. Cmwlth. 1979).

Evidence/Witnesses

Following Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986), the prior inconsistent statement of a nonparty witness may be admitted and relied upon as substantial evidence in a probation and parole revocation hearing. Wilson v. Board of Probation and Parole, 509 A.2d 1335 (Pa. Cmwlth. 1986).

Board of Probation and Parole’s finding that parolee had violated condition 5A (non-use of controlled substances) was improper where no custodian or qualified witness testified in support of the hospital urinalysis report, as required by the rules of evidence, 42 Pa.C.S. § 6108(b) (relating to business records), and the Board made no finding of good cause, under paragraph (16), for the nonappearance of the witness. Whitmore v. Board of Probation and Parole, 504 A.2d 401 (Pa. Cmwlth. 1986).

Reliance upon affidavit evidence at preliminary hearing did not constitute denial of the process where parolee failed to request the witness’ presence at the preliminary hearing under paragraph (1)(v) and where witness actually testified at the full violation hearing under paragraph (16). Fallings v. Board of Probation and Parole, 502 A.2d 787 (Pa. Cmwlth. 1986).

Where the witness was identified, so that the witness’s life could not have been endangered any more by her physical presence at the hearing than it was by the witness’s written statement, the court held that the Board of Probation and Parole had not shown good cause for the witness’s absence and therefore the petitioner should not have been deprived of the right to confront and cross-examine the witness. Tyson v. Board of Probation and Parole, 479 A.2d 52 (Pa. Cmwlth. 1984).

Since the only basis of the charges was the affidavit of the arresting police officer, and since there was no finding of good cause for not requiring the presence of the officer at the hearing, those charges should not have been considered to have been proved. Jones v. Board of Probation and Parole, 408 A.2d 156 (Pa. Cmwlth. 1979).

General Comment

The Board of Probation and Parole’s final action relative to charges of technical parole violations was not violative of the time limits set forth in paragraph (10) if no preliminary hearing was held. Nicastro v. Board of Probation and Parole, 455 A.2d 295 (Pa. Cmwlth. 1983).

If the Board of Probation and Parole conducts a violation hearing before a single examiner because a parolee previously waived his right to a quorum under paragraph (14)(i), the examiner must verbally readvise the parolee and his attorney of the parolee’s right to be heard before a quorum of the board, and if the parolee still wishes to waive his right to a full board hearing and the examiner is satisfied that the waiver is knowing, intelligent and freely made, paragraph (14)(ii)(A) requires the examiner accept and make a part of the record a written waiver to that effect, but if, after being advised of his rights, the parolee wishes to be heard by a quorum of the Board, paragraph (14)(ii)(B) requires the examiner to document that fact, terminate the proceedings, return the parolee to custody, and initiate the scheduling of a full board hearing. Laboy v. Board of Probation and Parole, 459 A.2d 916, 917 (Pa. Cmwlth. 1983); 465 A.2d 78 (Pa. Cmwlth. 1983).

Good Cause

If in a defendant’s hearing before the parole revocation board, counsel objects to the admission of a laboratory report, the hearing examiner would have been required under Board of Probation and Parole’s regulations and due process to make a good cause finding. Vereen v. Board of Probation and Parole, 515 A.2d 637 (Pa. Cmwlth. 1986).

Hearing Prejudicial

It was prejudicial to the petitioner’s case for the hearing examiner to state that he intended to dismiss two of the violations and subsequently find petitioner guilty of those same violations without an opportunity to present evidence on those violations. Dennis v. Board of Probation and Parole, 532 A.2d 1230 (Pa. Cmwlth. 1987).

Notice

Notice of charges and hearing must only include sufficient information to afford parolee the alleged basis for revocation and enables petitioner to prepare a defense and need not include language describing the evidence to be proffered by the Board in support of a technical parole violation. Mignone v. Board of Probation and Parole, 545 A.2d 483 (Pa. Cmwlth. 1988).

The Board of Probation and Parole followed required procedure by including on its revocation order a notice indicating that a copy of the decision had been sent to the attorney who represented parolee at revocation hearing, and it was incumbent on petitioner to promptly request further legal representation by hearing counsel. Snipes v. Board of Probation and Parole, 527 A.2d 1080 (Pa. Cmwlth. 1987).

Notice of a parole revocation hearing is deemed sufficient if it is adequate, clear and spells out with particularity the alleged violation, the circumstances surrounding the violation, the condition violated and the time and place of the violation. Plair v. Board of Probation and Parole, 521 A.2d 989 (Pa. Cmwlth. 1987).

Although the general rule is that notice of a Board decision given to counsel is notice to the client, where there is no evidence of direct notice to the client and the public defender admits making no effort to inform client these are exceptional circumstances justifying an exception to the general rule. Lewis v. Board of Probation and Parole, 508 A.2d 644 (Pa. Cmwlth. 1986).

A parolee was not given adequate notice of a revocation hearing since it was originally scheduled to be a preliminary hearing but was changed to a revocation hearing after the parolee appeared for the preliminary hearing and informed the Board of Probation and Parole that parolee had been convicted of the new criminal charges. Champion v. Board of Probation and Parole, 399 A.2d 447 (Pa. Cmwlth. 1979).

Notice of Revocation

A notice of revocation made subsequent to a revocation hearing, at which the parolee admitted a technical parole violation, which gave the admission as reason for revocation was sufficient to comply with the provision of paragraph (19). Bunner v. Board of Probation and Parole, 379 A.2d 1368 (Pa. Cmwlth. 1977).

Preliminary Hearings

The primary purpose of the preliminary parole revocation hearing is to prevent unwarranted detention of the parolee; if a prisoner is not being detained because of a parole violation charge, no parole preliminary hearing is constitutionally required citing Leese v. Pennsylvania Board of Probation and Parole, 570 A.2d 641, 644 (1990); Jones v. Board of Probation and Parole, 952 A.2d 710, 712 (Pa. Cmwlth. 2008)

Where appellant was sentenced to a maximum sentence of less than 2 years, the court of common pleas had the authority to grant or revoke his parole under the procedures of 61 P. S. § 314 and Pa.R. Crim.P. 1409; therefore, neither the parole revocation procedures outlined in this section, nor the time limits therein, applied to appellant. Commonwealth v. Ferguson, 761 A.2d 613 (Pa. Super. 2000).

Where Board of Probation and Parole, acting as agent for State of Connecticut under the Uniform Act for Out-of-State Supervision (61 P. S. § § 321—322), had afforded detained parolee a preliminary hearing, the Board also had a duty, as the agent for Connecticut, to provide a full Board hearing, providing the procedural rights owed by the principal. Pugh v. Board of Probation and Parole, 514 A.2d 284 (Pa. Cmwlth. 1986).

Where, after a parolee charged with a violation waives the right to a hearing by a quorum of the Board, the hearing examiner failed to readvise the parolee of the right to be heard by a Board quorum, as required by paragraph (14)(ii), the recommitment decision of the Board was vacated and remanded for a hearing before a quorum of the board. Laboy v. Board of Probation and Parole, 459 A.2d 916 (Pa. Cmwlth. 1983); 465 A.2d 78 (Pa. Cmwlth. 1983).

A criminal preliminary hearing or the detention hearing mandated by 37 Pa. Code § 71.3(1)(iv) (relating to arrest for a new criminal offense) must be held within 15 days, since § 71.3(9) requires the Board of Probation and Parole to follow the same procedures as those in paragraphs (1)—(8), and paragraph (3) requires a hearing to be held within that time. Whittington v. Board of Probation and Parole, 402 A.2d 1105 (Pa. Cmwlth. 1979).

Preliminary Hearings/Timeliness

The failure to hold a preliminary hearing within 14 days of return to Pennsylvania is not per se prejudicial. Where a preliminary hearing was later held and Petitioner admitted the technical parole violation charges against him, and where he failed to aver or demonstrate any prejudice caused by the delay, the order of the Board of Probation and Parole will be affirmed. McKenna v. Board of Probation and Parole, 782 A.2d 1105 (Pa. Cmwlth. 2001).

Although this regulation requires that a preliminary hearing ‘‘be held within 14 days of the detention of the parolee on the Board warrant,’’ 37 Pa. Code § 71.5 provides that ‘‘if the parolee is in custody in another state, . . . the Board may lodge its detainer but other matters may be deferred until the parolee has been returned to a State correctional facility in this Commonwealth.’’ Thus, a prisoner who was returned to Pennsylvania on February 28, 1994, had a timely preliminary hearing when that hearing was scheduled for March 11, 1994. Fulton v. Commonwealth, 663 A.2d 865 (Pa. Cmwlth. 1996); appeal denied, 673 A.2d 337 (Pa. 1996).

Since parolee did not suffer any deprivation or prejudice as a result of Board of Probation and Parole’s failure to hold a timely preliminary hearing, counsel’s failure to object to untimeliness did not support claim of ineffective assistance of counsel. Pickert v. Board of Probation and Parole, 514 A.2d 252 (Pa. Cmwlth. 1986).

Where preliminary hearing was originally scheduled 12 days after the Board of Probation and Parole’s warrant was lodged, but was continued due to petitioner’s unavailability caused by petitioner’s hospitalization, there was no violation of paragraph (1)(ii) (requiring that hearing be scheduled within 15 days of lodging of warrant). Chancey v. Board of Probation and Parole, 477 A.2d 22 (Pa. Cmwlth. 1984).

Where the petitioner was already properly detained and was subject to remain in detention regardless of the outcome of the preliminary hearing, petitioner was not prejudiced by the failure of the Board of Probation and Parole to comply with the 15 day requirement of paragraph (3) and the recommitment based upon such a violation was upheld. Anderson v. Board of Probation and Parole, 471 A.2d 591 (Pa. Cmwlth. 1984).

Where a parolee was charged with violating the conditions of parole, the Board of Probation and Parole was required to hold a preliminary hearing within 15 days of either the arrest of the parolee on a Board warrant, or the lodging of the warrant as a detainer at the facility where the parolee was confined. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

If probable cause to believe that the parolee violated parole conditions is found to exist, paragraphs (9) and (11) require that a violation hearing, if determined to be warranted, be scheduled within 120 days of the preliminary hearing. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

When a parolee is released from custody in another state, the Board of Probation and Parole must hold a preliminary hearing within 15 days of either the arrest of the parolee on the Board warrant or its being lodged as a detainer at the facility where the parolee is confined. Keeler v. Board of Probation and Parole, 464 A.2d 623 (Pa. Cmwlth. 1983).

In ruling that the time requirements of paragraphs (3) and (11) and § 71.3(8) are tolled while a parolee is in custody in another state or in Federal custody, the Court observed that, under 37 Pa. Code § 71.2(5), the parolee waived a preliminary and full Board of Probation and Parole hearing at the time the violation and revocation hearing was held. Elliot v. Board of Probation and Parole, 458 A.2d 1068 (Pa. Cmwlth. 1983).

Under Board of Probation and Parole regulations, parole violation hearings must be held not later than 120 days after a preliminary hearing. There is no corresponding time limit regarding rehearings, however. Lewis v. Board of Probation and Parole, 456 A.2d 729 (Pa. Cmwlth. 1983).

A parolee may not object to the timeliness of the preliminary hearing required by paragraph (3) after parole has been revoked at a violation hearing. Donnelly v. Board of Probation and Parole, 457 A.2d 145 (Pa. Cmwlth. 1983).

Failure to make objections to the timeliness of parole revocation hearings under paragraph (3) and § 71.3(1)(ii) prior to the revocation hearing constituted a waiver of those issues as grounds for challenging the validity of the parole revocation hearings ultimately held. Nicastro v. Board of Probation and Parole, 455 A.2d 295 (Pa. Cmwlth. 1983).

Delays in holding the hearing because of the vacation of the parole officer and because the parole officer was assaulted the day before the rescheduled hearing are not excusable grounds for not holding the hearing within the required 120-day period. Capers v. Board of Probation and Parole, 400 A.2d 922 (Pa. Cmwlth. 1979).

Preliminary Hearings/Unnecessary

Preliminary hearing on charges of parole violations within 14 days of detention was not required where parolee was detained on new criminal charges. Lanzetta v. Board of Probation and Parole, 568 A.2d 283 (Pa. Cmwlth. 1989).

Relief

In order to establish grounds for relief based on the failure of the Board of Probation and Parole to comply with notice and hearing procedures, it is necessary to allege, or the record must show, that the maximum expiration date of the original sentence was affected. Simmons v. Board of Probation and Parole, 381 A.2d 221 (Pa. Cmwlth. 1978).

Res Judicata

The doctrine of res judicata applies to prevent the Board of Probation and Parole from holding a revocation hearing board on alleged technical violations of parole where the Board had previously held in favor of the parolee at a prior revocation hearing and no new evidence to support the alleged violations had since become apparent. Knox v. Board of Probation and Parole, 588 A.2d 79 (Pa. Cmwlth. 1991).

Sentence within Range

The Board of Probation and Parole imposition of 48 months backtime for violation of conditions of parole pertaining to ownership of firearms and assaultive behavior was within the presumptive ranges and was supported by substantial evidence in the record sufficient to meet the burden of proof required by this section. Chapman v. Board of Probation and Parole, 484 A.2d 413 (Pa. Cmwlth. 1984).

Technical Violations

Petitioner who was charged as a technical violator and not as a convicted violator was not entitled to a revocation hearing and the petitioner’s due process rights were not violated. Obringer v. Board of Probation and Parole, 547 A.2d 449 (Pa. Cmwlth. 1988); appeal denied 557 A.2d 728 (1989).

Timeliness

Where the parolee initially waived his right to a panel hearing, then later asserted it, he cannot complain that the hearing was not timely, even though the initial waiver was made upon the advice of an agent of the Board of Probation and Parole. Fetter v. Board of Probation and Parole, 808 A.2d 611 (Pa. Cmwlth. 2002), appeal denied 829 A.2d 1159 (Pa. 2003).

Continuances granted to the Commonwealth because of the unavailability of the victim-witness were reasonable and necessary, and the fact that the hearing was held after the 120-day period was not grounds for dismissal. Majors v. Board of Probation and Parole, 808 A.2d 296 (Pa. Cmwlth. 2002), appeal denied 816 A.2d 1103 (Pa. 2003).

This regulation addresses procedures to be followed when a violation of parole conditions is alleged; it does not limit the authority of the Board of Probation and Parole to recharge a parolee. Person v. Board of Probation and Parole, 701 A.2d 1381 (Pa. Cmwlth. 1997), appeal denied 717 A.2d 1030 (Pa. 1998), appeal denied 737 A.2d 745 (1999), February 25, 1999).

In calculating the number of days required to comply with the procedures for violation of parole conditions as set forth in 37 Pa. Code Chapter 71, the prescriptions of 1 Pa.C.S. § 1908 (relating to computation of time) are to be applied. Thus, Saturday and Sunday shall be excluded from computation in meeting the requirement that a parole officer visit the parolee within 24 hours of a Board of Probation and Parole warrant being lodged as a detainer. Donnell v. Board of Probation and Parole, 453 A.2d 36 (Pa. Cmwlth. 1982).

A parolee whose combined violation and revocation hearing was untimely as to the technical violation charges under paragraph (11) was not prejudiced thereby, because the revocation component of the hearing was timely, due to the fact that the limitation period for criminal parole violations provided by paragraph (2)(i) had not begun to run on the date of the hearing due to the parolee’s interim county prison incarceration, and parolee’s original maximum sentence was extended solely because of criminal, not technical, parole violations. Hines v. Board of Probation and Parole, 420 A.2d 381 (Pa. 1980).

Although the parolee did not receive a timely detention hearing as required by paragraph (3), the failure to raise the issue before the final revocation hearing means that the parolee has suffered a wrong for which there is no remedy. Whittington v. Board of Probation and Parole, 404 A.2d 782 (Pa. Cmwlth. 1979).

Since the parolee was being held outside the Commonwealth of Pennsylvania but was released upon the condition of returning to Pennsylvania and reporting to the Board, the parolee’s failure to report delays the running of the time period for the hearing until parolee is within the jurisdiction of the Board. Slayton v. Board of Probation and Parole, 394 A.2d 1084 (Pa. Cmwlth. 1978).

The rule providing for a preliminary hearing within 15 days after the filing of warrant or detainer applies only where there has been no arrest for a new crime. Washington v. Jacobs, 386 A.2d 631 (Pa. Cmwlth. 1978).

The hearing must actually be held within 30 days rather than merely scheduled within 30 days. Kemp v. Board of Probation and Parole, 383 A.2d 568 (Pa. Cmwlth. 1978).

Waiver

The failure of the hearing examiner to conduct an adequate inquiry into the parolee’s waiver of counsel at his revocation hearing, and the failure to fully advise the parolee of his right to counsel, make the waiver not a knowing one as required by § 71.2. Worthington v. Board of Probation and Parole, 784 A.2d 275 (Pa. Cmwlth. 2001).

The on-the-record colloquy required by Pa.R.Crim.P. No. 318 (relating to waiver of counsel) in criminal court is not a prerequisite for effective waiver of counsel in a parole revocation hearing; compliance by the Board of Probation and Parole with its own regulations is sufficient. Pitch v. Board of Probation and Parole, 514 A.2d 638 (Pa. Cmwlth. 1986).

Record of extended exchange between parolee and Board of Probation and Parole members established that Board had complied with paragraph (15) and parolee had made a knowing, intelligent and free waiver of right to counsel at revocation hearing. Oliver v. Board of Probation and Parole, 494 A.2d 10 (Pa. Cmwlth. 1985).

A remand was required where the Board of Probation and Parole failed to make any findings or conclusions with regard to a petitioner’s argument that the signature of the waiver of the preliminary hearing form and continuance request form was not petitioner’s, thus making the violation hearing untimely because it was not held within 120 days of the preliminary hearing. Davis v. Board of Probation and Parole, 481 A.2d 714 (Pa. Cmwlth. 1984).

This section cited in 37 Pa. Code § 71.3 (relating to return for a new criminal charge).

History

Authority: The provisions of this § 71.
Source: The provisions of this Chapter 71 adopted August 4, 1972, effective August 14, 1972, 2 Pa.

37 Pa. Code § 71.3 Return for a new criminal charge.

The following procedures shall be followed if a parolee, not already detained after appropriate hearings for other criminal charges or technical violations, has been charged with a new criminal offense:

(1) A parolee may be detained on a Board warrant pending disposition of a criminal charge following the occurrence of one of the following:

(i) A district justice has conducted a criminal preliminary hearing and concluded that there is a prima facie case against the parolee.

(ii) The parolee waives a criminal preliminary hearing and is held for court.

(iii) The parolee is convicted of a crime at a trial before a judge of the Philadelphia Municipal Court or a district justice.

(iv) An examiner conducts a detention hearing.

(2) A parolee detained on a Board warrant upon the occurrence of one of the events enumerated in paragraph (1) may be held, without further hearing, pending disposition of the new criminal charge.

(3) If the decision of the agent, with concurrence of the district director, is to detain a parolee, the agent shall file a written report with the Board stating the reasons for detention.

(4) The Board may either concur in the decision of the agent to detain or reject the decision and order the parolee continued on parole pending disposition of the new criminal charge.

(5) If the Board concurs with the agent’s decision to detain the parolee, the parolee shall be notified of the decision in writing.

(6) If an agent determines that a parolee poses a risk to the community or to self and that immediate incarceration or continued detention of the parolee is necessary, the agent shall apply to the district director for authorization to detain.

(7) If application is made under paragraph (6), the district director shall promptly grant or deny the request.

(8) If the application is granted, the parolee may be detained up to 30 days without the occurrence of one of the events enumerated in paragraph (1).

(9) The Board will follow the procedures generally governing preliminary hearings contained in § 71.2(1)—(8) (relating to procedure for violation of parole conditions) in conducting detention hearings, except that a detention hearing shall be held within 30 days of the parolee’s detention. After the detention hearing, a panel shall determine whether to continue to detain the parolee pending disposition of the new criminal charge.

(10) In determining whether a parolee should be detained under this section, the agent and the district director shall consider the following criteria:

(i) Risk to the community if the parolee is not detained.

(ii) Evidence that the parolee has violated parole in a sufficiently serious manner to warrant return as a technical violator.

(iii) The history of the parolee while under supervision.

(iv) Whether the parolee is in delinquent status by absconding.

(v) Seriousness of the offense with which the parolee has been charged.

(vi) Possibility that the parolee may abscond from parole supervision if not detained.

(vii) Whether the new criminal charge involves an alleged use of a weapon or physical assault.

(viii) Whether the parolee already has another pending criminal charge.

The provisions of this § 71.3 issued under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 71.3 adopted August 4, 1972, effective August 14, 1972, 2 Pa.B. 1465; amended February 18, 1977, effective March 1, 1977, 7 Pa.B. 487; amended July 10, 1981, effective July 11, 1981, 11 Pa.B. 2478; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122535) to (122537).

Continuances

Detainers

The issuance of a detainer does not violate a parolee’s constitutional rights when he has been arrested for a new offense, if a committing magistrate has conducted a preliminary hearing and concluded there is a prima facie case against the parolee. Jezick v. Board of Probation and Parole, 530 A.2d 1031 (Pa. Cmwlth. 1987).

Detention Hearings

The Board of Probation and Parole did not need to hold a detention hearing after the conviction of a parole violation. Williams v. Board of Probation and Parole, 654 A.2d 235 (Pa. Cmwlth. 1995).

A Magistrate’s determination under 37 Pa. Code § 71.3(1) that there is a prima facie case against a parolee on new criminal charges obviates the need for a detention hearing, so that any defect in procedures at that hearing is harmless error. Boone v. Board of Probation and Parole, 457 A.2d 229 (Pa. Cmwlth. 1983).

Preliminary Hearings

Since the parolee was afforded a preliminary hearing after his arrest at which a prima facie case was established, the parolee could be detained, under 37 Pa. Code § 71.3(1)(i) and (2) (relating to arrest for a new criminal offense), without a preliminary detention hearing. Battle v. Board of Probation and Parole, 403 A.2d 1063 (Pa. Cmwlth. 1979).

A criminal preliminary hearing or the detention hearing mandated by 37 Pa. Code § 71.3(1)(iv) (relating to arrest for a new criminal offense) must be held within 15 days, since 37 Pa. Code § 71.3(9) (relating to arrest for a new criminal offense) requires the Board to follow the same procedures as those in 37 Pa. Code § 71.2(1)—(8) (relating to procedure for violation of parole conditions), and 37 Pa. Code § 71.2(3) (relating to procedure for violation of parole conditions) requires a hearing to be held within that time. Whittington v. Board of Probation and Parole, 402 A.2d 1105 (Pa. Cmwlth. 1979).

A detention hearing conducted by the Board is unnecessary when there is a criminal preliminary hearing at which a prima facie case is established. Ryles v. Board of Probation and Parole, 399 A.2d 151 (Pa. Cmwlth. 1979).

Relief

In order to establish grounds for relief based on the failure of the Probation and Parole Board to comply with notice and hearing procedures, it is necessary to allege, or the record must show, that the maximum expiration date of the original sentence was affected. Simmons v. Board of Probation and Parole, 381 A.2d 221 (Pa. Cmwlth. 1978).

Timeliness

Where Board of Probation and Parole held detention hearing 26 days after it lodged warrant and detainer against parolee, hearing was timely under present regulations. McCain v. Curione, 527 A.2d 591 (Pa. Cmwlth. 1987).

If a parolee is detained without hearing, pending disposition of new criminal charges, and a final revocation hearing is held 22 days after the conviction of the parolee on the new criminal charges, the Board has complied with the requirement that a hearing be held within 120 days from the date the Board receives official verification of a plea of nolo contendere or a guilty verdict at the highest trial court level. Mirando v. Cuyler, 412 A.2d 916 (Pa. Cmwlth. 1980).

Waiver

Failure to make objections to the timeliness of parole revocation hearings under 37 Pa. Code § § 71.2(3) and 71.3(1)(ii) prior to the revocation hearing constitutes a waiver of those issues as grounds for challenging the validity of the parole revocation hearings ultimately held. Nicastro v. Board of Probation and Parole, 455 A.2d 295 (Pa. Cmwlth. 1983).

History

Authority: The provisions of this § 71.
Source: The provisions of this Chapter 71 adopted August 4, 1972, effective August 14, 1972, 2 Pa.

37 Pa. Code § 71.4 Conviction for a new criminal offense.

The following procedures shall be followed before a parolee is recommitted as a convicted violator:

(1) A revocation hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest trial court level except as follows:

(i) If a parolee is confined outside the jurisdiction of the Department of Corrections, such as confinement out-of-State, confinement in a Federal correctional institution or confinement in a county correctional institution where the parolee has not waived the right to a revocation hearing by a panel in accordance with Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314A.2d 842 (1973), the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility.

(ii) A parolee who is confined in a county correctional institution and who has waived the right to a revocation hearing by a panel in accordance with the Rambeau decision shall be deemed to be within the jurisdiction of the Department of Corrections as of the date of the waiver.

(2) Prior to the revocation hearing, the parolee will be notified of the following:

(i) The right to a revocation hearing, the right to notice of the exact date and the right at the revocation hearing to be heard by a panel.

(ii) The right to retain counsel, the right to free counsel if unable to afford to retain counsel and the name and address of the public defender.

(iii) There is no penalty for requesting counsel.

(iv) The right to speak, to have voluntary witnesses appear and to present documentary evidence.

(v) The purpose of the hearing is to determine whether to revoke parole and that if revocation is ordered, the parolee will receive no credit for time spent at liberty on parole.

(3) If the parolee cannot afford counsel, the Board will notify the appropriate public defender by transmitting a copy of the written notice given to the parolee.

(4) The revocation hearing shall be held by a panel or, when the parolee has waived the right to a hearing by a panel, by an examiner.

(5) If a parolee appears without counsel at a revocation hearing, it shall first be determined whether the parolee understands the right to retain counsel, the right to free counsel if unable to afford counsel and that there is no penalty for requesting counsel. If the parolee then wishes to exercise the right to counsel, the panel or examiner shall terminate the proceedings and the revocation hearing shall be rescheduled.

(6) The parolee has the right to be present during the entire proceeding, unless the parolee waives that right, refuses to appear or behaves disruptively.

(7) If the hearing is conducted by an examiner, the examiner shall file a report with the other panel member for decision.

(8) If revocation is ordered, the revocation decision shall be transmitted to the parolee and to counsel of record.

The provisions of this § 71.4 issued under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and section 23 of the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § 331.23).

The provisions of this § 71.4 adopted August 4, 1972, effective August 14, 1972, 2 Pa.B. 1465; amended February 18, 1977, effective March 1, 1977, 7 Pa.B. 487; amended May 26, 1978, effective May 27, 1978, 8 Pa.B. 1468; amended May 23, 1980, effective May 24, 1980, 10 Pa.B. 2049; amended September 12, 1980, effective September 13, 1980, 10 Pa.B. 3667; amended September 17, 1982, effective September 18, 1982, 12 Pa.B. 3290; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122538) to (122548).

Accrual

Confinement in a county correctional facility is confinement outside of the Department of Corrections. Upon return to a State correctional facility, and in the absence of a waiver by the parolee, the Board must hold a panel revocation hearing within 120 days of return to the State facility. Copeland v. Board of Probation and Parole, 771 A.2d 86 (Pa. Cmwlth. 2001).

Parole revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a state correctional facility or, when the record contains no verification, the 120-day period begins to run on the date the Board could have obtained official verification. Unreasonable and unjustifiable delays which are not attributable to the parolee or the parolee’s counsel do not toll the running of the 120 days. Williams v. Board of Probation and Parole, 579 A.2d 1369 (Pa. Cmwlth. 1990); appeal denied 618 A.2d 405 (Pa. 1992).

The Board must hold a parole or revocation hearing within 120 days from the date the Board receives official notice of a plea of guilty or nolo contendre or of the guilty verdict at the highest trial court level and it is not necessary for the Board to await a final conviction before imposing backtime on the parole violator. McClinton v. Board of Probation and Parole, 546 A.2d 759 (Pa. Cmwlth. 1988).

An off the record statement by a hearing examiner that the petitioner was aware that his continuance request included the handwritten words ‘‘including sentencing,’’ which would have extended the 120 day limit, was not sufficient evidence to carry the Parole Board’s burden of proof. Dennis v. Board of Probation and Parole, 532 A.2d 1230 (Pa. Cmwlth. 1987).

The parole revocation hearing must be held within 120 days of the date the Board receives official verification of a parolee’s conviction and not 120 days from the date of conviction. James v. Board of Probation and Parole, 530 A.2d 1051 (Pa. Cmwlth. 1987).

The 120-day period for holding a full board hearing did not begin with date of parolee’s conviction in New York, but with the date he was returned to a Pennsylvania facility. Davis v. Board of Probation and Parole, 498 A.2d 6 (Pa. Cmwlth. 1985); appeal denied 531 A.2d 1120 (Pa. 1987).

Where parolee was not charged with parole violation until after conviction of new crime, the 120-day time period for disposition of parole violation charge commenced on the date the parolee was charged with parole violation and not on the date of conviction of the new crime. Carr v. Board of Probation and Parole, 494 A.2d 1174 (Pa. Cmwlth. 1985).

Where Board did not charge parolee with violation of parole until after conviction and sentencing for other crime the 120 day time period of 37 Pa. Code § 71.4(2), for providing a parolee with Revocation Hearing, commences on the date parolee is charged with parole violation, not on the date of finding or plea of guilty. Carr v. Board of Probation and Parole, 494 A.2d 1174 (Pa. Cmwlth. 1985).

Where a petitioner does not waive his right to a full Board Hearing, the 120 days in which the Board has to give a convicted violator a hearing, paragraph (2), does not commence until petitioner’s return to a State Correction Institution. Chancey v. Board of Probation and Parole, 477 A.2d 22 (Pa. Cmwlth. 1984).

A Board revocation hearing is timely where it is held within 120 days of receipt of notification of the guilty plea or verdict of guilt, or 120 days of official verification of the parolee’s return to a state correctional facility such 120-day period to be computed exclusive of time when the parolee is out of the jurisdiction of the Pennsylvania Bureau of Correction, under paragraph (2)(i). Toth v. Board of Probation and Parole, 470 A.2d 206 (Pa. Cmwlth. 1984).

Where a parolee has been convicted of a new criminal offense, paragraph (2) requires that a parole revocation hearing be held within 120 days of the date the Board receives official verification of the conviction. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

Board regulations require that parole revocation hearings, where the violation charged is a conviction for a new offense, must be held within 120 days from the date the Board receives official notice of conviction. There is no corresponding time limit regarding rehearings, however. Lewis v. Board of Probation and Parole, 456 A.2d 729 (Pa. Cmwlth. 1983).

The 120 day period for holding the hearing does not begin to run until the Board receives official verification of the transfer of a parolee from a county correctional institution to a state correctional facility. Harold X. (Smith) v. Board of Probation and Parole, 417 A.2d 1350 (Pa. Cmwlth. 1980).

For purposes of revoking parole, the fact that the court deferred sentencing on the new convictions has no significance; the event justifying such action is a conviction on new charges. Ganter v. Board of Probation and Parole, 405 A.2d 989 (Pa. Cmwlth. 1979).

Since the first trial of the parolee ended in a mistrial and a retrial had not yet taken place, the criminal charges were still pending and thus no violation of the 120 day time limit of 37 Pa. Code § 71.4(2) (relating to conviction for a new criminal offense) was yet possible. Battle v. Board of Probation and Parole, 403 A.2d 1063 (Pa. Cmwlth. 1979).

The provisions of 37 Pa. Code § 71.4 (relating to conviction for a new criminal offense) does not become operative until a conviction on the new charges has been obtained. Ryles v. Board of Probation and Parole, 399 A.2d 151 (Pa. Cmwlth. 1979).

If a parolee is confined in a county correctional institution, the 120-day period in which a parole revocation hearing must be held begins to run when the Board receives official verification of the parolee’s transfer to a state correctional facility rather than from the date of the Board’s reception of official verification of the parolee’s guilty plea. Perry v. Board of Probation and Parole, 398 A.2d 739 (Pa. Cmwlth. 1979).

The 120-day period begins to run on the date on which the parolee is returned to the jurisdiction of the Bureau rather than on the date on which the parole violation warrant is filed. Terrell v. Jacobs, 390 A.2d 1379 (Pa. Cmwlth. 1978).

The 120-day period for holding the hearing does not begin to run until the Board receives official verification of the transfer of a parolee from a county correctional institution to a state correctional facility. Alger v. Zaccagni, 388 A.2d 769 (Pa. Cmwlth. 1978).

Calculation

Although 37 Pa. Code § 71.4(5)(iv) (relating to conviction for a new criminal offense) is specifically directed to revocation hearings before an Examiner on waiver of hearing before a quorum of the Board, there is no reason to not apply it to a Board hearing. Dobson v. Jacobs, 406 A.2d 1207 (Pa. Cmwlth. 1979).

Delay

For offenders facing a revocation hearing based on new criminal conviction, the period of time that an offender is confined to a county prison does not count towards the 120 days that the Board of Probation and Parole has to provide the offender with a revocation hearing. Koehler v. Board of Probation and Parole, 935 A.2d 44, 51 (Pa. Cmwlth. 2007)

Because the Board lodged the detainer, filed the parole violation charge and held the revocation hearing well beyond 120 days after the parolee’s return to State correctional institution, the parole violation charge must be dismissed with prejudice. It is well established that unreasonable and unjustifiable delay, which is not attributable to the parolee or parolee’s counsel, does not toll the running of the 120-day period. McDonald v. Board of Probation and Parole, 673 A.2d 27 (Pa. Cmwlth. 1996).

Where a parolee’s right to a revocation hearing within 120 days was waived by his request for a continuance pending disposition of all criminal charges, the burden is not on the Board to keep track of when this event occurred. Williams v. Board of Probation and Parole, 561 A.2d 866, 867 (Pa. Cmwlth. 1989); appeal denied 575 A.2d 120 (Pa. 1990).

Where parolee had been convicted in Philadelphia Municipal Court but had then appealed de novo to the Philadelphia County Common Pleas Court, the Municipal Court conviction was effectively nullified and the 120-day period for holding a parole revocation hearing commenced with the date of conviction in Common Pleas Court, not with the Municipal Court conviction date. Johnson v. Board of Probation and Parole, 511 A.2d 894 (Pa. Cmwlth. 1986).

Section 71.4(2) providing that a full board hearing will be held within 120 days of official verification of the Board of the admission of a parolee from a county correctional institution to a state correctional facility does not violate a parolee’s right to a hearing within a reasonable period of time, does not violate equal protection and is not unconstitutionally vague. Andrews v. Board of Probation and Parole, 510 A.2d 394 (Pa. Cmwlth. 1986).

The 120 day rule requires that a violation/revocation hearing not be held more than 120 days from the date of the Board’s receipt of official verification of the guilty verdict handed down. Dennis v. Board of Probation and Parole, 532 A.2d 1230 (Pa. Cmwlth. 1987).

Revocation hearing was timely, since delay beyond statutory period was attributable to parolee’s request for a continuance. Pierce v. Board of Probation and Parole, 525 A.2d 1281 (Pa. Cmwlth. 1987).

This section requires the Board of Parole and Probation to hold a hearing within 120 days of the date on which it receives official verification of parolee’s conviction for parole violation, and fact that defendant’s attorney know of his conviction previously to the Board’s receipt of verification does not render the hearing untimely. Tarrant v. Board of Probation and Parole, 521 A.2d 997 (Pa. Cmwlth. 1987); appeal denied 535 A.2d 84 (Pa. 1987).

Where parolee, who had been arrested for new crime, requested a continuance of his violation and revocation hearing ‘‘pending disposition of criminal charges and sentencing, if convicted,’’ the 120 day period for hearing began when the Board received verification of sentencing, not with the date the continuance was requested. Robinson v. Board of Probation and Parole, 503 A.2d 1048 (Pa. Cmwlth. 1986); appeal after remand 520 A.2d 1230 (Pa. Cmwlth. 1987).

Where Petitioner had requested and been granted a continuance of his parole revocation hearing, his contention on appeal that the 120-day rule of paragraph (2) had been violated was ‘‘wholly frivolous’’; appointed counsel was granted leave to withdraw and the Board of Probation and Parole’s denial of administrative relief was affirmed. Craig v. Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985).

Under paragraph (2), the Board has a 120-day period in which to provide a parolee a revocation hearing following a new criminal conviction; however, under paragraph (2)(i), the 120-day period does not commence for a parolee housed in a county prison who requests a full Board hearing until the parolee is received at a State correctional facility. Coades v. Board of Probation and Parole, 480 A.2d 1298 (Pa. Cmwlth. 1984).

A parolee confined in a county correctional facility who waives his right to a Full Board revocation hearing is deemed to be within the jurisdiction of the Bureau of Corrections beginning with the date of his waiver, and the 120-day period begins to run as of that date. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

If a parolee who is confined outside the jurisdiction of the Bureau of Corrections does not waive his right to a Full Board revocation hearing, the 120-day period begins to run when the parolee is returned to a state correctional institution. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

Where a parolee is sent a notice captioned ‘‘Revocation Hearing—New Conviction’’ and makes an appearance for the hearing within the time prescribed in 37 Pa. Code § 71.4(1), and where the parolee then requests continuance of the hearing until such time as he is prepared to proceed, and the hearing is then held on the same day petitioner notifies the Board that he is prepared, the Board is excused from meeting the time constraints of 37 Pa. Code § 71.4(1). Nicastro v. Board of Probation and Parole, 455 A.2d. 295 (Pa. Cmwlth. 1983); appeal denied 530 A.2d 869 (Pa. 1987).

Since the parolee was confined in county institutions because of an arrest on criminal charges and because of a bench warrant, and since he had requested a continuance of the final hearing until after disposition of the criminal charges, and the final hearing was held within 120 days of the dismissal of the criminal charges, the final hearing was timely. Hairston v. Jacobs, 408 A.2d 1195 (Pa. Cmwlth. 1979).

The Board may delay a full revocation hearing until after sentencing in response to a parolee’s oral request for a continuance, especially since the parolee was not prejudiced by the delay. Blair v. Board of Probation and Parole, 408 A.2d 907 (Pa. Cmwlth. 1979); appeal after remand 454 A.2d 1186 (Pa. Cmwlth. 1983); appeal after remand 467 A.2d 71 (Pa. Cmwlth. 1983); cert. denied 466 U. S. 977 (1984).

Postponements made at the request of the counsel of the parolee cannot be charged against the Board. Jones v. Board of Probation and Parole, 404 A.2d 755 (Pa. Cmwlth. 1979).

If a parolee is detained in a county prison awaiting disposition of other charges, that time is excluded from the 120-day requirement of 37 Pa. Code § 71.4(2). Dobson v. Board of Probation and Parole, 402 A.2d 1133 (Pa. Cmwlth. 1979).

The delay caused by the request of a parolee for a continuance will not be considered in determining whether the time limits have been met. Corbin v. Board of Probation and Parole, 399 A.2d 1202 (Pa. Cmwlth. 1979).

The time a parolee spends in a county prison or detention center awaiting disposition of other charges is excluded from the 120-day requirement. Tate v. Board of Probation and Parole, 396 A.2d 482 (Pa. Cmwlth. 1979).

The time limit for the hearing does not include any time which was the result of a request for a continuance, nor any time which was the result of a hearing waiver. Cohen v. Board of Probation and Parole, 390 A.2d 345 (Pa. Cmwlth. 1978).

Due Process

Delaying a revocation hearing beyond the 120-day requirement just so an inmate may serve an unspecified amount of time on his new sentence, without any further justification, does not equate with holding a hearing within a reasonable time or comport with due process. Williams v. Board of Probation and Parole, 757 A.2d 436 (Pa. Cmwlth. 2000).

The Board must afford a convicted parole violator a final parole revocation hearing within a reasonable time after guilt is established and when there is a nine month delay between conviction and sentencing on the new criminal charges, the practice of delaying the final parole revocation hearing until after sentencing violates a parolee’s due process rights. United States ex rel. Burgess v. Lindsey, 395 F. Supp. 404 (E. D. Pa. 1975).

Equal Protection

Equal protection is not violated by paragraph (2) on the theory that it makes an arbitrary distinction between county-confined parolees who waive full Board hearings and county-confined parolees who do not so waive. Bronson v. Board of Probation and Parole, 468 A.2d 1205 (Pa. Cmwlth. 1983); appeal after remand 501 A.2d 704 (Pa. Cmwlth. 1985).

Requiring incarcerated parolees confined in county institutions who desire prompt revocation hearings to waive their right to full hearing before Board of Probation and Parole is reasonable, and thus is not violative of equal protection. Blair v. Board of Probation and Parole, 467 A.2d 71 (Pa. Cmwlth. 1983); cert. denied 466 U. S. 977, 104 S.Ct. 2358 (1984).

The provisions of 37 Pa. Code § 71.4(2)(i) excluding from computation the 120 day period the time of confinement spent outside of a State correctional facility do not violate equal protection principles. Emmi v. Board of Probation and Parole, 460 A.2d 889 (Pa. Cmwlth. 1983).

The Parole Board’s regulations require that an unrepresented, indigent parolee facing a revocation hearing must be supplied with the address of the local public defender to whom he may apply for representation prior to the hearing. O’Hara v. Board of Probation and Parole, 487 A.2d 90 (Pa. Cmwlth. 1985).

Evidentiary Issues

Board could not take administrative notice of timeliness of revocation hearing where document necessary to establish date of verification of conviction was not time-stamped by Board; thus, Board’s determination was not supported by substantial evidence, and Board failed to meet its burden of proof by a preponderance of the evidence that hearing was timely. Abbruzzese v. Board of Probation and Parole, 524 A.2d 1049 (Pa. Cmwlth. 1987).

Where a violator’s recommitment is based upon both his municipal court and common pleas convictions and the revocation hearing was not held within 120 days of the date the Board received notice as to one of those convictions, the court will not assume that either conviction would have been independently sufficient in the Board’s judgment to recommit the violator for the remainder of his unexpired term. Davis v. Board of Probation and Parole, 481 A.2d 714 (Pa. Cmwlth. 1984).

The provisions of paragraph (2)(i) does not violate equal protection requirements, but merely provides two different mechanisms by which the board may obtain the jurisdiction necessary for its hearings and determinations to have validity. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

Exception

Where a parolee is confined in a county institution, the 120-day time limit does not begin to run for purposes of parole revocation until the Board receives official verification of the parolee’s transfer to a State correctional facility. McMahon v. Board of Probation and Parole, 559 A.2d 595 (Pa. Cmwlth. 1989).

Although parolee was held in county prison in this Commonwealth he was held there by Federal authorities and, under paragraph (2)(i), the time held there was not counted in computing the 120-day period within which parolee must be afforded a parole revocation hearing. Scott v. Board of Probation and Parole, 498 A.2d 31 (Pa. Cmwlth. 1985).

Since parolee was confined in a Federal institution and not in a county institution, he did not come under that part of paragraph (2)(i) which provides that the 120-day period for hearing on a convicted parole violator charge begins with the date a county confinee waives the final revocation hearing by a quorum of the Board of Probation and Parole. Cameron v. Board of Probation and Parole, 496 A.2d 419 (Pa. Cmwlth. 1985).

When a parolee is confined in a county correctional institution, the Board acquires jurisdiction over him when a waiver of his right to a full Board revocation hearing is executed, and a hearing held within 120 days of the date of the waiver is timely. D’Nicuola v. Board of Probation and Parole, 467 A.2d 1383 (Pa. Cmwlth. 1983).

General Comment

Under 37 Pa. Code § 71.5, which provided only general rules governing Chapter 71, this section was a special provision pertaining to parolees who have been convicted of a new criminal offense. Geiger v. Board of Probation and Parole, 655 A.2d 214 (Pa. Cmwlth. 1995).

Jurisdiction

After being detained and revoked, the parolee was temporarily transferred to the Federal Detention Center in Philadelphia to plead guilty to Federal charges. The parolee’s temporary transfer to the Federal detention center did not constitute confinement outside the jurisdiction of the Department of Corrections. Morgan v. Board of Probation and Parole, 814 A.2d 300 (Pa. Cmwlth. 2003).

Although the parolee was moved from a State correctional facility to a county one for a nonjury trial on new charges, he was at all times serving State backtime and was under a Department jurisdiction. Montgomery v. Board of Probation and Parole, 808 A.2d 999 (Pa. Cmwlth. 2002).

Because a parolee confined outside the jurisdiction of the Department of Corrections is clearly not ‘‘available’’ to begin serving backtime for the original offense, any new sentence a parolee is ordered to serve at an institution different from that which he or she was paroled from must precede backtime. Griffin v. Department of Correction, 862 A.2d 152, 155 N. 4 (Pa. Cmwlth. 2004).

The provisions of 37 Pa. Code § 71.4 (relating to conviction for a new criminal offense) is not applicable if the parolee is at all times within the jurisdiction of the Board and is being held in a county institution, not at the request of the county authorities but at the request of the Board itself. Hammond v. Board of Probation and Parole, 396 A.2d 485 (Pa. Cmwlth. 1979).

Time spent in a State hospital did not constitute within the jurisdiction of the Department of Corrections, and therefore, the 120-day rule did not apply. Slater v. Board of Probation and Parole, 542 A.2d 200 (Pa. Cmwlth. 1988).

Since the parolee was being held in a county institution at the time of his full-board hearing, the Board had no jurisdiction over him and did not violate his rights in ordering him recommitted as a convicted parole violator ‘‘when available’’ and in setting no date for reparole reconsideration. Rothman v. Jacobs, 392 A.2d 903 (Pa. Cmwlth. 1978).

Notice

A parolee was not given adequate notice of a revocation hearing since it was originally scheduled to be a preliminary hearing but was changed to a revocation hearing after the parolee appeared for the preliminary hearing and informed the Board that he had been convicted of the new criminal charges. Champion v. Board of Probation and Parole, 399 A.2d 447 (Pa. Cmwlth. 1979).

Official Verification

If the record does not disclose the date of notification, then the date of the return of the prisoner to the state correctional institution is considered to be the date of notification. Cohen v. Board of Probation and Parole, 390 A.2d 345 (Pa. Cmwlth. 1978).

Preliminary Hearing

A preliminary detention hearing need not be held within ten days when a parolee is given a preliminary hearing relative to the criminal charges and is later tried and convicted on those charges. Alger v. Zaccagni, 388 A.2d 769 (Pa. Cmwlth. 1978).

Reasonable Time

Although the Board may delay final revocation hearing until after the trial on the criminal charges without violating due process, the final hearing must be held within a reasonable time and a nine month delay is unreasonable. United States ex rel. Burgess v. Lindsey, 395 F. Supp. 404 (E. D. Pa. 1975).

Revocation Decision

The Board’s failure to send counsel of record a copy of a recommitment order constituted negligence by the Board and the parolee’s attorney’s submission of a request for administrative relief 34 days after the order was issued was excused. Calcagni v. Board of Probation and Parole, 582 A.2d 1141 (Pa. Cmwlth. 1990).

As long as the Board follows its regulations regarding informing the parolee of the right to counsel, provides the parolee with a form PBPP 340 containing the written notice of the right to counsel as well as the name and address of the applicable public defender, and documents the waiver of counsel by a Form PBPP 72 at the time of the hearing which becomes part of the record, the parolee’s waiver of counsel will be deemed informed and voluntary and given effect. Coades v. Board of Probation and Parole, 480 A.2d 1298 (Pa. Cmwlth. 1984).

An order by the Board, dated March 19, 1981, computing backtime and fixing the time for reparole as a result of a hearing held on September 3, 1975, did not violate any of the parolee’s rights under 37 Pa. Code § 71.4(9). Brown v. Board of Probation and Parole, 456 A.2d 1141 (Pa. Cmwlth. 1983).

Although the Board failed to follow the requirements of 37 Pa. Code § 71.4(9) (relating to conviction for a new criminal offense) in that notice of the Board’s decision was not sent until some months after the decision was made, the petitioner was not prejudiced, since his failure to receive notice was due to his unauthorized absence from the detention facility where notice was actually sent. Grady v. Jeffes, 401 A.2d 1386 (Pa. Cmwlth. 1979).

Revocation Hearing

The 120-day time period for the Board of Probation and Parole to conduct a parole revocation hearing began to run from the date the board received the court history detailing defendant’s conviction; the court history constituted the ‘‘official’’ verification of defendant’s conviction which started the 120-day period, and the fact that the Board or parole agents had knowledge of defendant’s new conviction prior to the receipt of the official verification did not trigger the 120-day period. Taylor v. Board of Probation, 931 A.2d 114, 120 (Pa. Cmwlth. 2007)

Revocation of parole hearing which resulted in decision to recommit parolee to serve backtime as a convicted parole violator was held in a timely manner by Board of Probation and Parole where hearing occurred within the 120 days from date Board received official verification parolee’s sentence. Reavis v. Board of Probation and Parole, 909 A.2d 28, 35—36 (Pa. Cmwlth. 2006).

Parolee’s due process rights were not violated where Board held full violation and revocation hearing while parolee was still incarcerated in county prison and before 120 day period, provided for in 37 Pa. Code § 71.4(2)(i), began to run. Inmon v. Board of Probation and Parole, 504 A.2d 373 (Pa. Cmwlth. 1986).

Section 71.4 requires that a final parole revocation hearing be held within 20 days of official verification of parolee’s guilty verdict. Taylor v. Board of Probation and Parole, 402 A.2d 1153 (Pa. Cmwlth. 1979).

The revocation hearing must be held within the required time if the parolee is being confined in a county correctional facility solely as a result of the Board’s action and thus is being held exclusively under the Board’s jurisdiction. Dobson v. Board of Probation and Parole, 398 A.2d 252 (Pa. Cmwlth. 1979).

Right to Counsel

The Board complied with this section in granting a continuance to permit the petitioner to obtain legal representation since he expressed desire to be represented by counsel, even though petitioner refused to sign the continuance form because he felt he would be harmed by signing. Africa v. Board of Probation and Parole, 556 A.2d 506 (Pa. Cmwlth. 1989); appeal denied 564 A.2d 917 (Pa. 1989).

The on-the-record colloquy required by 234 Pa. Code Rule 318 in criminal court is not a prerequisite for effective waiver of counsel in a parole revocation hearing; compliance by the Board with its own regulations is sufficient. Pitch v. Board of Probation and Parole, 514 A.2d 638 (Pa. Cmwlth. 1986).

Two days’ notice over a weekend is inadequate notice to counsel of a parole revocation hearing and parolee’s waiver of counsel cannot be considered freely made where hearing examiner, knowing parolee desired prompt treatment for pre-AIDS syndrome and treatment was not available in parolee’s then present prison, explained the choice as between going ahead without counsel or postponing to a later unpredictable date. Murray v. Jacobs, 512 A.2d 785 (Pa. Cmwlth. 1986).

The Board must ensure that the parolee is aware of the right to counsel, however the Board’s counseling is not required to be done on the record and may be done by waiver of counsel form PBPP72. Coades v. Board of Probation and Parole, 480 A.2d 1298 (Pa. Cmwlth. 1984).

The Board is required to assure the parolee that he will not be penalized in any way for requesting counsel. Coades v. Board of Probation and Parole, 480 A.2d 1298 (Pa. Cmwlth. 1984).

An indigent parolee in a Board parole revocation hearing shall, upon proper request, be provided counsel by the public defender of the county in which the parolee is incarcerated, and not, if the parolee was convicted in a different county, by the public defender of the county of conviction. Passaro v. Board of Probation and Parole, 424 A.2d 561 (Pa. Cmwlth. 1981).

Timeliness

The parolee’s revocation hearing was held within the 120-day limit; however, in preparation of the parolee’s appeal, the Board discovered that the tape of the hearing was blank, preventing the creation of a transcript. Upon petition and order of Commonwealth Court, a rehearing was held after the original 120-day period had expired. Under these circumstances, the hearing is deemed to be timely. Joyce v. Board of Probation and Parole, 811 A.2d 73 (Pa. Cmwlth. 2002).

Under subsection (i), where a parolee was confined in a county correctional institution and had waived the right to a panel revocation hearing, the parolee was deemed to be within the jurisdiction of the Department of Corrections as of the date of the waiver. In such a case, the 120 day period began to run on the date of the waiver or the date of official verification of the conviction, whichever was later. Hartagen v. Board of Probation and Parole, 662 A.2d 1157 (Pa. Cmwlth. 1995).

The Board of Probation and Parole’s acquisition of jurisdiction triggered the running of the 120 day period in which to conduct a probation revocation hearing. Because the period did not begin to run when the convicted parole violator was returned to the state facility, petitioner’s parole violation charges are dismissed. Mack v. Board of Probation and Parole, 654 A.2d 129 (Pa. Cmwlth. 1995).

Timely Hearing

Evidence supported the Board of Probation and Parole’s position that petitioner’s parole revocation hearing was timely in that it was held 67 days after receipt of official verification of his conviction; parole agent testified when Board received official verification and the criminal arrest and disposition report indicated that official verification of petitioner’s conviction was received by the Board on that date. Eaton v. Bd. of Probation and Parole, 959 A.2d 477, 480 (Pa. Cmwlth. 2008).

A recommitment order is a final, appealable order, and by failure to appeal a recommitment order, the petitioner waived issues relating to timeliness of his revocation hearing. Woodard v. Board of Probation and Parole, 582 A.2d 1144 (Pa. Cmwlth. 1990).

Failure to provide revocation hearing 120 days from date of receipt of verification of conviction resulted in prejudice; parole violation charges dismissed. Johnson v. Board of Probation and Parole, 566 A.2d 918 (Pa. Cmwlth. 1989); appeal granted 575 A.2d 118 (Pa. 1990); affirmed 583 A.2d 790 (Pa. 1991).

Where parolee had requested continuance pending sentencing for new crime, fact that the hearing was held prior to sentencing did not nullify the continuance but only gave parolee basis to object to prematurity of hearing. Robinson v. Board of Probation and Parole, 503 A.2d 1048 (Pa. Cmwlth. 1986); appeal after remand 520 A.2d 495 (Pa. Cmwlth. 1987).

A parolee could not argue that he was denied due process and should have received a revocation hearing within 120 days of his plea of guilty when he was free on bail and not incarcerated during that time period. Myers v. Board of Probation and Parole, 554 A.2d 622 (Pa. Cmwlth. 1989).

Where Board failed to meet its burden of proof by a preponderance of the evidence that hearing was timely, proper remedy is a dismissal of parole violation charges with prejudice. Abbruzzese v. Board of Probation and Parole, 524 A.2d 1049 (Pa. Cmwlth. 1987).

Where convicted parole violator alleged that his revocation hearing was untimely, it is for the Board to prove by a preponderance of the evidence that it was, in fact, timely. Abbruzzese v. Board of Probation and Parole, 524 A.2d 1049 (Pa. Cmwlth. 1987).

Where a revocation hearing is scheduled and held by the Board of Probation and Parole within 120 days from the date the Board received notification of a plea of guilty by a parolee, such a hearing is timely under paragraph (2) notwithstanding the fact that the Board scheduled a re-hearing to hear evidence on an objection by the petitioner beyond the 120 day limit. Hughes v. Board of Probation and Parole, 473 A.2d 225 (Pa. Cmwlth. 1984).

Where the Board, under a timely hearing, recommits a parolee solely on the basis of a conviction for one of two charges on which the parolee was simultaneously convicted, the Board cannot then recommit on the basis of conviction on the second charge, if the hearing on that charge is held after the expiration of the 120-day limit contained in this section. McSorley v. Board of Probation and Parole, 463 A.2d 1234 (Pa. Cmwlth. 1983).

The 120-day rule of 37 Pa. Code § 71.3 is satisfied when the Board holds a full violation and revocation hearing within 120 days of conviction but that hearing is continued because the parolee is not represented by counsel, even if the eventual hearing where the parolee is represented by counsel is held after expiration of the 120-day period, as it is not the responsibility of the Board to provide counsel. Ruza v. Board of Probation and Parole, 458 A.2d 662 (Pa. Cmwlth. 1983).

The Board has complied with the time limitations of 37 Pa. Code § 71.4(2) if it offers a hearing within 120 days from the date the Board receives official notification of an attorney who purports to represent the parolee, regardless of whether any attorney-client relationship actually exists. Jones v. Board of Probation and Parole, 455 A.2d 778 (Pa. Cmwlth. 1983).

A parolee whose combined violation and revocation hearing was untimely as to the technical violation charges under the provisions of 37 Pa. Code § 71.2(11) (relating to procedure for violation of parole conditions) was not prejudiced thereby, because the revocation component of the hearing was timely, due to the fact that the limitation period for criminal parole violations provided by 37 Pa. Code § 71.4(2)(i) had not begun to run on the date of the hearing due to the parolee’s interim county prison incarceration, and his original maximum sentence was extended solely because of criminal, not technical, parole violations. Hines v. Board of Probation and Parole, 420 A.2d 381 (Pa. Cmwlth. 1980).

Since the revocation hearing was held within 120 days of the parolee’s return to a state correctional facility from a penitentiary in another state, the hearing was timely. Auman v. Board of Probation and Parole, 394 A.2d 686 (Pa. Cmwlth. 1978).

Since the final revocation hearing was held within 120 days of the parolee’s return to the state correctional facility from a federal penitentiary, the hearing was timely held. Harris v. Board of Probation and Parole, 393 A.2d 510 (Pa. Cmwlth. 1978).

Since the parole violation hearing was held within 120 days of the return of the parolee to the state correctional institution from a county correctional institution, the hearing was timely held. Gaito v. Board of Probation and Parole, 392 A.2d 343 (Pa. Cmwlth. 1978); affirmed 412 A.2d 568 (Pa. 1980).

Holding the hearing over five months after conviction is not a violation of this section if the parolee is being held at a county prison and is not transferred to a state correctional institution until well after the hearing is held. Thomas v. Board of Probation and Parole, 391 A.2d 714 (Pa. Cmwlth. 1978).

The final revocation hearing for a parolee convicted of a new crime was held within a proper time after conviction where it was set for three months after conviction and was delayed for an additional two months because of the parolee’s request for a continuance. Washington v. Jacobs, 386 A.2d 631 (Pa. Cmwlth. 1978).

Vagueness

The right to parole is not a fundamental right; the regulation providing that the 120-day period for hearing commences upon release from county authorities into state custody is reasonable and is not unconstitutionally vague. Andrews v. Board of Probation and Parole, 510 A.2d 394 (Pa. Cmwlth. 1986).

This section cited in 37 Pa. Code § 71.5 (relating to general).

History

Authority: The provisions of this § 71.
Source: The provisions of this Chapter 71 adopted August 4, 1972, effective August 14, 1972, 2 Pa.

37 Pa. Code § 71.5 General.

(a) If the parolee is in custody in another state, or in Federal custody, the Board may lodge its detainer but other matters may be deferred until the parolee has been returned to a State correctional facility in this Commonwealth.

(b) In hearings conducted under this chapter, documentary evidence and reports, including, but not limited to, depositions, written interrogatories, affidavits, laboratory reports, business records, public records, official records and letters rogatory, may be utilized solely, if the panel or examiner is satisfied as to their authenticity, relevancy, accuracy and reliability.

(c) In determining the period for conducting hearings under this chapter, there shall be excluded from the period, a delay in any stage of the proceedings which is directly or indirectly attributable to one of the following:

(1) The unavailability of a parolee or counsel.

(2) Continuances granted at the request of a parolee or counsel, in which case the Board is not required to reschedule the hearing until it receives a written request to reschedule the hearing from the parolee or counsel.

(3) Reasonable or necessary continuances granted to, or occurrences related to, the Board or its employes.

(4) A change of decision by a parolee either to waive the right to be heard by a panel after asserting it or to assert that right after waiving it. In this case, the hearing shall be held within 120 days of the last change of decision.

(5) An event which could not be reasonably anticipated or controlled by the Board, including, but not limited to, illness, injury, acts of nature and prison or civil disorder.

(d) The number of days set forth in this chapter shall be calculated as prescribed by 1 Pa.C.S. § 1908 (relating to computation of time).

(e) Notwithstanding § 71.4 (relating to conviction for a new criminal offense), the Board may defer the revocation hearing until either partial or full service of a new sentence which a parolee receives.

The provisions of this § 71.5 issued under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); and section 23 of the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § 331.23); amended under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 71.5 adopted August 4, 1972, effective August 14, 1972, 2 Pa.B. 1465; amended February 18, 1977, effective March 1, 1977, 7 Pa.B. 487; amended May 23, 1980, effective May 24, 1980, 10 Pa.B. 2049; amended September 17, 1982, effective September 18, 1982, 12 Pa.B. 3290; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122548) to (122554).

Administrative Relief

The 30-day period for filing for administrative relief applied to parolees unrepresented and represented by counsel. Cadogan v. Board of Probation and Parole, 541 A.2d 832 (Pa. Cmwlth. 1988); appeal denied 553 A.2d 970 (Pa. 1988).

Appeal

Convicted parole violator had an adequate remedy at law in the form of the Board of Probation and Parole’s appeal process embodied under this section, and failure to avail oneself of that remedy or unsuccessful appeal did not give a right to bring an action in mandamus based on the same claim. Rauser v. Board of Probation and Parole, 528 A.2d 290 (Pa. Cmwlth. 1987).

Where Board of Probation and Parole had provided a publicized procedure for an appeal, it was not also required to extend additional notice of those rights; moreover, since the Board addressed parole violator’s application for administrative relief on the merits, any error regarding notice must be deemed harmless. Johnson v. Board of Probation and Parole, 524 A.2d 528 (Pa. Cmwlth. 1987); appeal denied 532 A.2d 21 (Pa. 1987).

A timely appeal filed by counsel for a parolee who had properly sought administrative relief from the Board of Probation and Parole would not be prejudiced by the quashing of a prior pro se appeal that failed to exhaust the available administrative remedies. Robinson v. Board of Probation and Parole, 520 A.2d 1230 (Pa. Cmwlth. 1987).

In view of conflicting allegations as to the evidence received at the Board’s hearing of petitioner’s request for administrative review pursuant to subsection (h), the Court directed the Board to furnish a transcript of the hearing to enable it to perform its appellate review. Lowe v. Board of Probation and Parole, 457 A.2d 206 (Pa. Cmwlth. 1983).

Evidence

Laboratory report indicating that a urine specimen tested positive for cocaine was properly admitted through the testimony of a parole agent, as the report was on laboratory letterhead and contained the signature of the certifying scientist. The report contained sufficient indicia of reliability to allow its admission. Bolden v. Board of Probation and Parole, 794 A.2d 440 (Pa. Cmwlth. 2002), appeal denied 806 A.2d 863 (Pa. 2002).

Where a laboratory report contained the laboratory letterhead and was signed by a doctor, the requisite indicia of reliability was present to permit the Board of Probation and Parole to find good cause to admit the report without the necessity to provide the parolee with a right to conformation. Ward v. Board of Probation and Parole, 538 A.2d 971 (Pa. Cmwlth. 1988).

It was proper to admit laboratory reports during a technical violation parole hearing where the persons with knowledge were beyond the subpoena power of the Board of Probation and Parole. Damron v. Board of Probation and Parole, 531 A.2d 592 (Pa. Cmwlth. 1987).

Photocopies of certified court records, rather than the certified copies of the records themselves, may be used as documentary evidence by the Board of Probation and Parole if the Board was satisfied that the evidence is authentic, relevant and accurate. Blackwell v. Board of Probation and Parole, 516 A.2d 856 (Pa. Cmwlth. 1986).

If in a defendant’s hearing before the Board of Probation and Parole counsel objects to the admission of a laboratory report, the hearing examiner would have been required under the Board’s regulations and due process to make a good cause finding. Vereen v. Board of Probation and Parole, 515 A.2d 637 (Pa. Cmwlth. 1986).

Admission of drug screen report in form of unsigned computer printout without authentication testimony and reliance solely thereon for finding of technical parole violation was improper under subsection (d) since there were insufficient indicia of regularity and reliability, and the document itself may not provide the factual basis for a finding of good cause for denying parolee’s right to confront and cross-examine persons who performed drug screen test and prepared the report. Powell v. Board of Probation and Parole, 513 A.2d 1139 (Pa. Cmwlth. 1986); appeal denied 523 A.2d 346 (Pa. 1986).

The Board of Probation and Parole properly admitted into evidence photocopies of court docket sheets which had not been certified under seal since section 6103 of the Judicial Code, 42 Pa.C.S. § 6103, is inapplicable to Board of Probation and Parole proceedings and the United States Supreme Court has held that probation revocation proceedings need not be conducted with the same formality as criminal trials and subsection (d) permitted the Board to utilize documentary evidence if it was satisfied that the evidence was authentic, relevant and accurate. Anderson v. Board of Probation and Parole, 497 A.2d 947 (Pa. Cmwlth. 1985).

Photocopies of court records not certified in accordance with section 6103 of the Judicial Code, 42 Pa.C.S. § 6103, could form the basis for revocation of a violator’s parole as a convicted violator in a technical violation hearing if the examiner was satisfied as to their authenticity, relevancy and accuracy. Davis v. Board of Probation and Parole, 481 A.2d 714 (Pa. Cmwlth. 1984).

Evidence/Hearsay

Where the record indicates that the Commonwealth made every effort to secure the appearance of the victim-witness, but was unable to do so, it was not error to permit hearsay evidence as the basis for the Board’s finding. Majors v. Board of Probation and Parole, 808 A.2d 296 (Pa. Cmwlth. 2002); appeal denied 816 A.2d 1103 (Pa. 2003).

The Board of Probation and Parole properly admitted into evidence certified documents prepared by out-of-State authorities which contained sufficient indicia of authenticity concerning the arrest and conviction of a parolee as the documents constituted a ‘‘good cause’’ exception to hearsay. Carter v. Board of Probation and Parole, 544 A.2d 107 (Pa. Cmwlth. 1988).

A parolee’s failure to object to hearsay evidence at the parole revocation hearing allowed the Board of Probation and Parole to consider the evidence without having to find ‘‘good cause.’’ Maxfield v. Board of Probation and Parole, 538 A.2d 628 (Pa. Cmwlth. 1988).

Even though a parole revocation order cannot be based solely on hearsay, hearsay evidence was admissible upon a finding on the record of good cause to deny the parolee the rights of confrontation and cross-examination. Jones v. Board of Probation and Parole, 520 A.2d 1258 (Pa. Cmwlth. 1987).

In a parole revocation hearing, while the revocation order cannot be based solely on hearsay, hearsay evidence was admissible upon a finding on the record of good cause to deny the parolee the rights of confrontation and cross-examination. Rodriquez v. Board of Probation and Parole, 516 A.2d 116 (Pa. Cmwlth. 1986).

Parole revocation testimony submitted by New York authorities, not subject to cross examination was properly admitted, through hearsay, when the Board’s decision was based on petitioner’s admissions and stipulations to violations. Myers v. Board of Probation and Parole, 510 A.2d 387 (Pa. Cmwlth. 1986).

The introduction of hearsay evidence at a revocation hearing, over counsel’s objection, where the Hearing Examiner failed to make a finding of good cause for admitting such testimony, constituted reversible error. Grello v. Board of Probation and Parole, 477 A.2d 45 (Pa. Cmwlth. 1984).

Evidence/Witness

Where the hearing examiner admitted an affidavit over counsel’s objection without making the requisite finding of good cause and this was the only evidence introduced to show that the parolee committed the parole violation, revocation of parolee’s probation constituted reversible error. Scott v. Board of Probation and Parole, 668 A.2d 584 (Pa. Cmwlth. 1995).

Prior testimony in the form of a court transcript of an unavailable witness was admissible and an exception to the hearing rule in a Board of Probation and Parole hearing where the parole violator had an adequate opportunity to cross-examine the witness during a prior proceeding. Wallace v. Board of Probation and Parole, 548 A.2d 1291 (Pa. Cmwlth. 1988).

General Comment

This section provided only general rules governing this chapter. Mack v. Board of Probation and Parole, 654 A.2d 129 (Pa. Cmwlth. 1995).

Hearings

The Board of Probation and Parole did not lose jurisdiction over the parolee for failure to extend or readjust the parolee’s sentence before the original maximum sentence expired in that the sentence was extended by the amount of time the parolee was at liberty or on parole before the recommitment—no credit was given for time at liberty on parole. Parolee’s due process rights were not violated by the delay in holding the violation hearing in that the parolee requested the continuance. Harris v. Vaughn, 767 F.Supp. 667 (1991); affirmed 950 F.2d 722 (3rd. Cir. (Pa.) 1991).

Jurisdiction

If a parolee was in custody in another state the Board of Probation and Parole may lodge its detainer but all other matters shall be deferred until the parolee has been returned to a State correctional facility in this Commonwealth. Keeler v. Board of Probation and Parole, 464 A.2d 623 (Pa. Cmwlth. 1983).

The transfer of a parolee between counties to answer criminal charges in each county did not render the parolee unavailable under this section. Corbin v. Board of Probation and Parole, 399 A.2d 1202 (Pa. Cmwlth. 1979).

Notice

Delay in holding revocation hearing attributable to Board of Probation and Parole failure to provide adequate notice did not toll 120-day period within which hearing was required to be held. Saunders v. Board of Probation and Parole, 568 A.2d 1370 (Pa. Cmwlth. 1989).

Although the general rule was that notice of a board decision given to counsel was notice to the client, where there was no evidence of direct notice to the client and the public defender admitted making no effort to inform the client these are exceptional circumstances justifying an exception to the general rule. Lewis v. Board of Probation and Parole, 508 A.2d 644 (Pa. Cmwlth. 1986).

Petitions

A petition for administrative relief must set forth the specific facts or legal basis for the relief sought and not simply contain boiler-plate allegations of error or it will be dismissed. McCaffrey v. Board of Probation and Parole, 537 A.2d 78 (Pa. Cmwlth. 1988).

Procedure

Since the administrative relief provisions of subsection (h) are the only available administrative remedies with the Board of Probation and Parole and since it applies only to parole revocation orders, the exhaustion of administrative remedies doctrine had no application in an appeal from a release order. Jamieson v. Board of Probation and Parole, 495 A.2d 623 (Pa. Cmwlth. 1985).

The administrative remedy exhaustion doctrine precluded court consideration of a petition for review where no administrative relief was sought under subsection (h). Although in this case, the petition for review was filed 6 months after the Board’s Order, if it had been filed within 30 days, the court could have dismissed without prejudice to petitioner’s right to file for administrative relief, and the application for relief could have been filed within 30 days from the court’s dismissal. St. Clair v. Board of Probation and Parole, 493 A.2d 146 (Pa. Cmwlth. 1985).

Request for administrative review under subsection (h) was properly denied where the request was mailed within, but not received until after, expiration of the 30-day time period. Maldonado v. Board of Probation and Parole, 492 A.2d 1202 (Pa. Cmwlth. 1985).

Under subsection (h), a letter from a parolee seeking correction of the ‘‘injustice’’ done to the parolee when the Board of Probation and Parole refused to continue the Revocation Hearing and proceeded to hold that hearing in absentia, would be treated as a request for administrative relief. O’Hara v. Board of Probation and Parole, 487 A.2d 90 (Pa. Cmwlth. 1985).

The administrative appeal from a Board of Probation and Parole order, which must be filed within 30 days from the date of the Board’s order, was a necessary prerequisite to court review of a Board order. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984).

Records

Where it was alleged that the Board of Probation and Parole was aware of the conviction and the availability of the conviction records, but did not retrieve them, a remand was required to determine whether a 143 day period between a parolee’s conviction and the receipt of the conviction records by the Board rendered a parole revocation hearing untimely. Fitzhugh v. Board of Probation and Parole, 623 A.2d 376 (Pa. Cmwlth. 1993).

Rehabilitation

The Board of Probation and Parole’s failure to grant a further continuance to allow petitioner to participate in a counselling program was not a violation of subsection (e), where the conviction itself was sufficient grounds to order the petitioner recommitted, and any evidence concerning the petitioner’s potential for rehabilitation would be offered only for purposes of mitigation. Fahlfeder v. Board of Probation and Parole, 470 A.2d 1130 (Pa. Cmwlth. 1984).

Request for Reconsideration

The Board or Probation and Parole acted properly in addressing the applicability of a ruling entitled to retrospective effect, since the letter requesting administrative relief could be addressed by the Board as a request for reconsideration, not subject to 30-day appeal period. Snipes v. Board of Probation and Parole, 527 A.2d 1080 (Pa. Cmwlth. 1987).

Parolee’s request for reconsideration of parole revocation order could properly have been considered after the 30 day appeal period, in light of the change in law effected by Rivenbark, 501 A.2d 1110 (1985) decision. Rauser v. Board of Probation and Parole, 528 A.2d 290 (Pa. Cmwlth. 1987).

The Board of Probation and Parole has administrative discretion to grant or deny a request for reconsideration of a recommitment order after the 30-day period provided for in this section and could only be reversed if abuse of discretion was shown. Threats v. Board of Probation and Parole, 518 A.2d 327 (Pa. Cmwlth. 1986).

Sentencing of Violators/Computing Time

Although the Code did not explicitly state that the Board of Probation and Parole may consider each criminal conviction as a separate parole violation and may aggregate backtime accordingly, that interpretation was implicit in a comparison of the regulations governing the application of presumptive ranges for convicted parole violators, with those governing technical parole violators, 37 Pa. Code § 75.4. Corley v. Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984).

There was not an abuse of discretion by the Board of Probation and Parole to deny a parole violator an interview for parole under subsection (h) from a sentence imposed for new charges for which he served the minimum time during pretrial custody, as long as the parolee was serving backtime, and the new sentence was listed as a detainer, but when the backtime was served, the parolee would immediately be eligible for parole on the second sentence. Bradshaw v. Board of Probation and Parole, 461 A.2d 342 (Pa. Cmwlth. 1983).

Timeliness

In accord with jurisdiction. Keeler v. Board of Probation and Parole, 464 A.2d 623 (Pa. Cmwlth. 1983). Krantz v. Board of Probation and Parole, 698 A.2d 701 (Pa. Cmwlth. 1997); appeal denied 705 A.2d 1312 (Pa. 1998).

Although 37 Pa. Code § 71.2 requires that a preliminary hearing ‘‘be held within 14 days of the detention of the parolee on the Board warrant,’’ this regulation provides that ‘‘if the parolee is in custody in another state, . . . the Board may lodge its detainer but other matters may be deferred until the parolee has been returned to a State correctional facility in this Commonwealth.’’ Thus, a prisoner who was returned to Pennsylvania on February 28, 1994, had a timely preliminary hearing when that hearing was scheduled for March 11, 1994. Fulton v. Commonwealth, 663 A.2d 865 (Pa. Cmwlth. 1996); appeal denied, 673 A.2d 337 (Pa. 1996).

Period of time during which prison was in a state of lock-down due to prisoner uprising was properly excluded from computation of 120-day period within which the Board of Probation and Parole was required to hold petitioner’s violation hearing. Cadogan v. Board of Probation and Parole, 571 A.2d 3 (Pa. Cmwlth. 1990).

Proof of receipt of the Board’s recommitment decision was not required and the petitioner’s failure to file an application for administrative relief within 30 days was properly deemed untimely. Cadogan v. Board of Probation and Parole, 541 A.2d 832 (Pa. Cmwlth. 1988).

Petitioner who filed pro se request for administrative relief after 30-day limit provided for under this section, and who had notice of the right to legal counsel in pursuing that request, failed to establish adequate grounds for an appeal nunc pro tunc, and thus the Board of Probation and Parole’s denial of administrative relief as untimely was affirmed. Snipes v. Board of Probation and Parole, 527 A.2d 1080 (Pa. Cmwlth. 1987); appeal granted 557 A.2d 728 (Pa. 1989); order affirmed 574 A.2d 558 (Pa. 1990).

Parolee’s pro se request for administrative relief was denied as being untimely filed where request was made more than 30 days after revocation hearing. Helvy v. Board of Probation and Parole, 526 A.2d 1261 (Pa. Cmwlth. 1987).

Court did not have to reach question of whether language of subsection (h) was mandatory or elective since even if petitioner had appealed directly to the court on the day petitioner filed his petition for review with the Board, the petitioner’s appeal would not have been filed within the 30-day period under Pa. R.A.P. 903. Blevins v. Board of Probation and Parole, 491 A.2d 966 (Pa. Cmwlth. 1985).

Where a 30 day time limit regulation did not become effective until after the recommitment order in question, the parolee’s application for administrative relief was held to be filed timely under subsection (h) because the regulation in effect at the time of the order included no specific time limitation. Coach v. Board of Probation and Parole, 472 A.2d 280 (Pa. Cmwlth. 1984).

The 15-day limit for preliminary hearings prescribed in paragraph (3) is subject to the calculation provisions of 1 Pa.C.S. § 1908, under subsection (j). Anderson v. Board of Probation and Parole, 471 A.2d, 593 (Pa. Cmwlth. 1984).

Where a revocation hearing was scheduled within the 120 day time period but continued due to a prison riot lockdown, the 35 days that elapsed between the date the lockout was lifted and the rescheduled hearing date was ‘‘directly’’ the result of the lockdown following the riot and the aftermath of the lockdown. Jordan v. Board of Probation and Parole, 704 A.2d 190 (Pa. Cmwlth. 1997); appeal denied 724 A.2d 937 (Pa. 1998); appeal denied 725 A.2d 1223 (Pa. 1998).

In holding that when a parolee was confined in a county correctional institution, the Board of Probation and Parole acquired jurisdiction when a waiver of parolee’s right to a full Board revocation hearing was executed, and a hearing held within 120 days of the date of the waiver was timely, the court noted that the application to the Board for administrative review was timely filed under subsection (h). D’Nicuola v. Board of Probation and Parole, 467 A.2d 1383 (Pa. Cmwlth. 1983).

A parolee may apply for administrative review and relief within 30 days of any Board of Probation and Parole order which the parolee considers erroneous. Lewis v. Board of Probation and Parole, 456 A.2d 729 (Pa. Cmwlth. 1983).

Delays in holding the hearing because of the parole officer’s vacation and because the parole officer was assaulted the day before the rescheduled hearing are not excusable grounds for not holding the hearing within the required 120 day period. Capers v. Board of Probation and Parole, 400 A.2d 922 (Pa. Cmwlth. 1979).

Timeliness/Computation

In computing the time taken prior to conducting a revocation hearing, it was proper to apply the rule set forth in 1 Pa.C.S. § 1908 (relating to computation of time) which excluded the first and last day of the period for purposes of computation. Africa v. Board of Probation and Parole, 556 A.2d 506 (Pa. Cmwlth. 1989); appeal denied 564 A.2d 917 (Pa. 1989).

In determining to credit time spent in confinement subsequent both to entry of Board of Probation and Parole’s detainer for parole violation and to entry of detainer by police department for another crime, the Board must justify its determination by presenting records under subsection (d) which show bail was not posted in the new criminal proceeding; petitioner can then rebut the evidence by demonstrating that the records inaccurately reflect that bail was not posted. Pierce v. Board of Probation and Parole, 500 A.2d 181 (Pa. Cmwlth. 1985).

Although parolee was held in county prison in this Commonwealth, the parolee was held there by Fderal authorities and, under 37 Pa. Code § 71.4(2)(i), the time held there was not counted in computing the 120-day period within which parolee must be afforded a parole revocation hearing. Scott v. Board of Probation and Parole, 498 A.2d 31 (Pa. Cmwlth. 1985).

Where parolee was charged and convicted of Federal crime and held under Federal jurisdiction in county prison and in Federal facility, 120-day period for Probation and Parole Board hearing did not begin until parole violator was released back into State custody. Scott v. Board of Probation and Parole, 498 A.2d 31 (Pa. Cmwlth. 1985).

The Board of Probation and Parole is permitted to continue its hearings due to the unavailability of the parolee or defense counsel, or at the request of either the parolee or defense counsel, and such time was excluded from the computation of whether a hearing is timely. Chancey v. Board of Probation and Parole, 477 A.2d 22 (Pa. Cmwlth. 1984).

A request for administrative review under subsection (h) delayed the date on which an order would be deemed final until the date on which the Board of Probation and Parole mailed its response to the request for administrative review, and not the date on which an earlier recommitment action was reaffirmed, so that an appeal filed within 30 days of the reaffirmation order but not within 30 days of the response to the request for administrative review was not timely filed as required by Pa. R.A.P. 1512(a)(1). Manuel v. Board of Probation and Parole, 463 A.2d 1236 (Pa. Cmwlth. 1983).

The time requirements of 37 Pa. Code § § 71.2(3) and (11) and 71.3(8) are tolled while a parolee was in custody in another state or in Federal custody, according to subsection (c). Elliot v. Board of Probation and Parole, 458 A.2d 1068 (Pa. Cmwlth. 1983).

Timeliness/Continuances

When a parolee requests a continuance but did not request in writing that the parole hearing be rescheduled, the 120 day rule did not start to run again. Stevens v. Board of Probation and Parole, 538 A.2d 108 (Pa. Cmwlth. 1988).

Where inmate failed to request a continuance under subsection (e) to permit new public defender additional preparation time and where hearing was held 45 days after transfer from prison in one county to facility in another, the shift from one county public defender to another did not per se constitute ineffective assistance of counsel. LaCourt v. Board of Probation and Parole, 488 A.2d 70 (Pa. Cmwlth. 1985).

Requests for continuance of parole violation and revocation hearing may be made by counsel without the parolee’s knowledge or consent and need not meet the strict standards applied to waivers of fundamental constitutional rights. LaCourt v. Board of Probation and Parole, 488 A.2d 70 (Pa. Cmwlth. 1985).

Any delay in a revocation hearing attributed to the parolee being granted a continuance to obtain counsel or due to counsel’s unavailability did not run against the Board of Probation and Parole for timeliness purposes. O’Hara v. Board of Probation and Parole, 487 A.2d 90 (Pa. Cmwlth. 1985).

Any periods of delay in conducting a violation hearing which are the result of requests for a continuance are to be excluded from the calculation of the 120-day period. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

Timeliness

Where the parolee initially waived his right to a panel hearing, then later aserted it, he cannot complain that the hearing was not timely, even though the initial waiver was made upon the advice of an agent of the Board of Probation and Parole. Fetter v. Board of Probation and Parole, 808 A.2d 611 (Pa. Cmwlth. 2002), appeal denied 829 A.2d 1159 (Pa. 2003).

Parolee’s revocation hearing, originally scheduled for September 11, 2001, was delayed due to the terrorist attacks which occurred that day. Since the attacks were an event that could not be reasonably anticipated or controlled, the time between September 11, 2001 and October 2, 2001—the next available date—is excluded from calculating the 120-day period. Wiley v. Pennsylvania Board Probation and Parole, 801 A.2d 644 (Pa. Cmwlth. 2002).

Timeliness/Credit of Service

Petitioner was not entitled to credit parole violation backtime retroactively to date before the county court imposed petitioner’s sentence for parole violation. Patrick v. Board of Probation and Parole, 532 A.2d 487 (Pa. Cmwlth. 1987).

Waiver

Failure to mention the lack of a full board hearing in a violator’s petition for administrative review before the board was not a waiver of the violator’s rights under subsection (h). Laboy v. Board of Probation and Parole; 459 A.2d 916 (Pa. Cmwlth. 1983); 465 A.2d 78 (Pa. Cmwlth. 1983).

History

Authority: The provisions of this § 71.
Source: The provisions of this Chapter 71 adopted August 4, 1972, effective August 14, 1972, 2 Pa.

Chapter 73 Special Rules of Administrative Practice and Procedure

37 Pa. Code § 73.1 Appeals and petitions for administrative review.

(a) Appeals.

(1) An interested party, by counsel unless unrepresented, may appeal a revocation decision. Appeals shall be received at the Board’s Central Office within 30 days of the mailing date of the Board’s order. When a timely appeal of a revocation decision has been filed, the revocation decision will not be deemed final for purpose of appeal to a court until the Board has mailed its decision on the appeal. This subsection supersedes 1 Pa. Code § 35.226 (relating to final orders).

(2) The scope of review of an appeal will be limited to whether the decision is supported by substantial evidence, an error of law has been committed or there has been a violation of constitutional law.

(3) The failure of an appeal to present with accuracy, brevity, clearness and specificity whatever is essential to a ready and adequate understanding of the factual and legal points requiring consideration will be a sufficient reason for denying the appeal.

(4) Second or subsequent appeals and appeals which are out of time under these rules will not be received.

(b) Petitions for administrative review.

(1) A parolee, by counsel unless unrepresented, may petition for administrative review under this subsection of determinations relating to revocation decisions which are not otherwise appealable under subsection (a). Petitions for administrative review shall be received at the Board’s Central Office within 30 days of the mailing date of the Board’s determination. When a timely petition has been filed, the determination will not be deemed final for purposes of appeal to a court until the Board has mailed its response to the petition for administrative review. This subsection supersedes 1 Pa. Code § 35.226.

(2) The failure of a petition for administrative review to present with accuracy, brevity, clearness and specificity whatever is essential to a ready and adequate understanding of the factual and legal points requiring consideration will be a sufficient reason for denying the petition.

(3) Second or subsequent petitions for administrative review and petitions for administrative review which are out of time under this part will not be received.

(4) An employe of the Board designated by the Chairperson may review and respond to a petition for administrative review.

The provisions of this § 73.1 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 73.1 adopted February 7, 1975, effective February 8, 1975, 5 Pa.B. 248; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial page (100667).

Applicability of Provisions

Where the petitioner’s letter was a request for reconsideration under 1 Pa. Code § 35.241 and not a subsequent appeal, the Board of Probation and Parole’s regulation did not apply. This is evidenced by the Board’s statement in its regulation that § 73.1 supersedes one specified section of the General Rules of Administration, but does not mention 1 Pa. Code § 35.241, which governs reconsiderations. Shaw v. Board of Probation and Parole, 812 A.2d 769 (Pa. Cmwlth. 2002).

Although these regulations distinguish between appeals of revocation decisions and petitions for administrative review, there is nothing in the Parole Act to indicate that 61 P. S. § 331.4(d) applies only to appeals of revocation hearings as that term is defined in the regulations. Watkins v. Board of Probation and Parole, 685 A.2d 226 (Pa. Cmwlth. 1996).

Authority of Board

Under 61 P. S. § 331.4 and this regulation, the Board of Probation and Parole may permit its assistant chief counsel to review and deny revocation decisions and petitions for administrative review. Williams v. Board of Probation and Parole, 654 A.2d 235 (Pa. Cmwlth. 1995).

A prisoner must file an administrative appeal from the Board’s determination within 30 days of the determination’s mailing date. Failure to file such an appeal will result in a dismissal for being untimely. McCaskill v. Board of Probation and Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993); appeal denied 644 A.2d 739 (Pa. 2004).

A petition for administrative review of a Board order filed and signed on behalf of a parolee by a person identifying himself as the paralegal of the parolee and not signed by the parolee did not comply with this section which only permits a parolee or his attorney to file a petition for review. Cruz v. Board of Probation and Parole, 623 A.2d 381 (Pa. Cmwlth. 1993).

A pro se application for administrative relief was properly dismissed as untimely and appointed counsel’s failure to recognize a clear jurisdictional defect so presented rendered the subsequent appeal frivolous. Robinson v. Board of Probation and Parole, 582 A.2d 857 (Pa. 1990).

Board’s rescission of parole amounting to correction of a clerical error was not an appeal of its own order and 30-day appeal period does not apply to the correction; this section applies only to administrative appeals of Board revocation decisions. Lord v. Board of Probation and Parole, 580 A.2d 463 (Pa. Cmwlth. 1990); appeal denied 596 A.2d 801 (Pa. 1991).

Panel which decided request for administrative relief is limited to determining whether revocation panel’s finding is supported by substantial evidence. Burgess v. Board of Probation and Parole, 568 A.2d 268 (Pa. Cmwlth. 1989); appeal denied 577 A.2d 545 (Pa. 1990).

Writ of Mandamus filed in Commonwealth Court to require Board to set final dates of recommitment for parole violation improper; administrative review is adequate and appropriate remedy. Harper v. Board of Probation and Parole, 565 A.2d 1244 (Pa. Cmwlth. 1989).

Board did not have jurisdiction to hear appeal filed beyond 30 days from date of hearing. Avers v. Board of Probation and Parole, 565 A.2d 1257 (Pa. Cmwlth. 1989); appeal denied 588 A.2d 511 (Pa. 1990).

Failure to appeal parole revocation within time required precludes challenge of recommitment order absent proof of ineffective assistance of counsel. Epps v. Board of Probation and Parole, 565 A.2d 214 (Pa. Cmwlth. 1989).

Parole appeals are due 30 days from the date the decisions are mailed and not from the date of receipt. Lewis v. Board of Probation and Parole, 562 A.2d 957 (Pa. Commw. 1989); appeal denied 584 A.2d 322 (Pa. 1990).

The Board lacks jurisdiction to hear an untimely appeal despite petitioner’s contention that he was denied effective assistance of counsel. Larkin v. Board of Probation and Parole, 555 A.2d 954 (Pa. Cmwlth. 1989).

Board Responsibility

The Board of Probation and Parole does not have a duty to expressly state a reparole eligibility date. Johnson v. Board of Probation and Parole, 676 A.2d 1242 (Pa. Cmwlth. 1996).

Burden

A petitioner who appeals for administrative review of the Board of Probation and Parole’s recalculation order bears the burden of specifying the requisite factual or legal basis for the relief sought. Meehan v. Board of Probation and Parole, 783 A.2d 362 (Pa. Cmwlth. 2001).

General Comment

The Board of Probation and Parole does not have a duty to expressly state a reparole date. Johnson v. Board of Probation and Parole, 676 A.2d 1242 (Pa. Cmwlth. 1996).

Petition for Administrative Review

Where an inmate failed to specifically set forth facts regarding the rehabilitation program which he claims would entitle him to credit against his maximum expiration date of sentence, he has not met his main burden of including facts or a legal basis for the relief he seeks. Therefore, the Board of Probation and Parole properly denied the relief requested. Jackson v. Board of Probation and Parole, 781 A.2d 239 (Pa. Cmwlth. 2001).

An inmate’s petition for review is dismissed although he alleges that his maximum sentence date was miscalculated, when the board provided an administrative appeal process from its decision and the inmate failed to timely avail himself of that process. Evans v. Department of Corrections, 713 A.2d 741 (Pa. Cmwlth. 1998).

Sufficiency

Although petitioner may have failed to allege every fact which supports his appeal, his allegations as to the custodial nature of the rehabilitation program provided a sufficient basis for the Board to allow him to develop a factual record. Failing to allow the Petitioner to do so was an abuse of discretion requiring remand. Meehan v. Board of Probation and Parole, 783 A.2d 362 (Pa. Cmwlth. 2001).

Timeliness

The prisoner mailbox rule deems that a prisoner’s pro se appeal is filed at the time it is given to prison officials or put in the prison mailbox. Sweesy v. Board of Probation and Parole, 955 A.2d 501, 502 (Pa. Cmwlth. 2008).

Although the ‘‘prisoner mailbox rule’’ applies to the prisoner’s appeal, the record is not clear as to the date his appeal was mailed; therefore, the matter was remanded for a factual determination on that issue. Coldren v. Board of Probation and Parole, 795 A.2d 457 (Pa. Cmwlth. 2002).

Where petioner’s administrative appeal was mailed, but not recieved, within 30 days of the mailing date of the decision of the Board of Probation and Parole, the ‘‘prisoner mailbox rule’’ applies, and the appeal is deemed to have been timely filed. Pettibone v. Board of Probation and Parole, 782 A.2d 605 (Pa. Cmwlth. 2001).

The Board of Probation and Parole received Petitioner’s request for administrative relief on July 3, 1996, which was within the 30-day limitation required by this regulation with respect to the mailing date of June 3, 1996, and the re-mailing date of June 19, 1996; therefore, Petitioner’s appeal is remanded to the Board for consideration of the merits. Pometti v. Board of Probation and Parole, 705 A.2d 953 (Pa. Cmwlth. 1998).

History

Authority: The provisions of this § 73.
Source: The provisions of this Chapter 73 adopted February 7, 1975, effective February 8, 1975, 5 Pa.

Chapter 75 Presumptive Ranges for Recommitments of Parole Violators

37 Pa. Code § 75.1 Application of presumptive ranges to convicted parole violators.

(a) Presumptive ranges of parole backtime to be served will be utilized if a parolee is convicted of a new criminal offense while on parole and the Board orders recommitment as a convicted parole violator after the appropriate revocation hearing.

(b) The presumptive ranges of parole backtime are intended to structure the discretion of the Board while allowing for individual circumstances in terms of mitigation and aggravation to be considered in the final decision.

(c) The Board may deviate from the presumptive range or determine that recommitment should not occur, provided written justification is given.

(d) The presumptive ranges are intended to directly relate to the severity of the crime for which the parolee has been convicted.

(e) The severity ranking of crimes listed in § 75.2 (relating to presumptive ranges for convicted parole violations) is not intended to be exhaustive, and the most closely related crime category in terms of severity and the presumptive range will be followed if the specific crime which resulted in conviction is not contained within the listing.

The provisions of this § 75.1 adopted August 17, 1979, effective August 18, 1979, 9 Pa.B. 2687.

Calculating Backtime

In ascertaining the most closely related offense to calculate backtime for a convicted parole violator, the Board of Probation and Parole must look to the conduct for which the parolee was convicted, determine what crime that conduct would constitute if it occurred in Pennsylvania, and apply the presumptive range for the Pennsylvania crime. Abrams v. Board of Probation, 935 A.2d 604, 607 (Pa. Cmwlth. 2007)

Presumptive Range—Deviation

The Board of Probation and Parole in recommitting petitioner, on probation for third degree murder, deviated from the applicable presumptive range but provided sufficient written justification where it noted ‘‘Convicted for sexually assaulting a young child. Client is extreme danger to the community and his conduct is abhorrent.’’ This justification was supported by substantial evidence of aggravating circumstances. Green v. Board of Probation and Parole, 664 A.2d 667 (Pa. Cmwlth. 1995); appeal denied 674 A.2d 1077 (Pa. 1996).

The Board of Probation and Parole may, on a case-by-case basis, exceed the presumptive range when determining recommitment if written justification is presented. Bradley v. Board of Probation and Parole, 587 A.2d 839 (Pa. Cmwlth. 1991).

Where the Board exceeds the maximum presumptive range in awarding back time for parole violations, the Board is required to provide written justification for imposing that excessive back time; those aggravating reasons must also be supported by substantial evidence contained in the record. Bandy v. Board of Probation and Parole, 530 A.2d 507 (Pa. Cmwlth. 1987); appeal denied 540 A.2d 535 (Pa. 1988).

Where written justification for exceeding presumptive range was given, and parolee’s testimony supported Board’s conclusion that parolee had negative attitude and interest in parole, Board did not abuse its discretion in exceeding presumptive range for violation. Clark v. Board of Probation and Parole, 527 A.2d 1085 (Pa. Cmwlth. 1987); appeal denied 538 A.2d 880 (Pa. 1987).

The Board did not abuse its discretion, where written justification was given for exceeding presumptive range, to the effect that petitioner, while on parole after murder conviction, had engaged in assaultive behavior and possessed a knife less than 1 month following release. Pounds v. Board of Probation and Parole, 527 A.2d 180 (Pa. Cmwlth. 1987); decision vacated 558 A.2d 859 (Pa. 1988)

Written justification must be given for deviations from the presumptive ranges for recommitment of a parole violator and where mitigating factors previously cited no longer exist, no written justification is deemed given. Kilpatrick v. Board of Probation and Parole, 521 A.2d 978 (Pa. Cmwlth. 1987).

Board did not abuse its discretion by imposing twice the maximum of the presumptive range since the Board found several aggravating circumstances: (1) client on parole for serious offense; (2) violation related to current offense; (3) evidence of crimes within client’s control; (4) possession of firearm involved; and (5) client a threat to community. Greco v. Board of Probation and Parole, 513 A.2d 493 (Pa. Cmwlth. 1986).

Where parolee had plead guilty to 29 counts of welfare fraud and one count of criminal conspiracy offenses which had cost the Commonwealth over $400,000, the Board did not err in analyzing those offenses to ‘‘Theft by Deception Over $200’’ rather than to ‘‘Theft-Misdemeanor of the Third Degree’’ and, even if it had applied the wrong category, the Board would have been justified in exceeding the presumptive range by the aggravating circumstances. Caldwell v. Board of Probation and Parole, 511 A.2d 884 (Pa. Cmwlth. 1986).

The fact that Nevada imposes less severe punishment for carrying a concealed weapon than does Pennsylvania does not require that a lesser presumptive range for recommitment be applied since it is the severity of the criminal conduct and not the severity of the punishment that determines the presumptive range. Harrington v. Board of Probation and Parole, 507 A.2d 1313 (Pa. Cmwlth. 1986).

In computing length of recommitment as convicted parole violator, the appellant was recommitted as a technical violator for acts constituting new crimes for which he was convicted, which was beyond the authority of the board. Massey v. Board of Probation and Parole, 501 A.2d 1114 (Pa. 1985).

Since subsection (e) provides that the listing of crimes and presumptive ranges in § 75.2 is not exhaustive, the Board acted properly in recommitting petitioner as convicted parole violator even though New Jersey crime had no direct Pennsylvania analog. Morris v. Board of Probation and Parole, 500 A.2d 1286 (Pa. Cmwlth. 1985).

Omission of a multiple conviction provision from this section indicates that the board has discretion to recommit for each separate criminal conviction. Perry v. Board of Probation and Parole, 485 A.2d 1231 (Pa. Cmwlth. 1984).

The Board’s adoption of presumptive ranges of 48 months backtime for violation of conditions of parole pertaining to ownership of firearms and assaultive behavior was within its discretion of this section and was supported by substantial evidence in the record. Chapman v. Board of Probation and Parole, 484 A.2d 413 (Pa. Cmwlth. 1984).

Due process does not require that a parole violator be given credit against backtime for confinement time served on a prior unrelated and unproven parole violation, but rather requires only that such confinement time be credited to the parolee’s maximum term. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984).

The omission of multiple conviction provisions from this section indicates that the board has discretion to recommit for each separate criminal conviction. Corley v. Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984).

Although the Code does not explicitly state that the Board may consider each criminal conviction as a separate parole violation and may aggregate backtime accordingly, that interpretation is implicit in a comparison of the regulations governing the application of presumptive ranges for convicted parole violators, this section, with those governing technical parole violators, 37 Pa. Code § 75.4. Corley v. Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984).

A reasonable interpretation of subsections (b) and (c) is that the board may consider mitigating and aggravating circumstances to arrive at a recommitment time within the presumptive range, but need only set forth those circumstances when consideration of them leads to an order deviating from the presumptive range. Corley v. Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984).

The Board adopted the presumptive ranges found in this chapter in an attempt to structure the discretion of the Board while allowing deviation for individual circumstances. Gundy v. Board of Probation and Parole, 478 A.2d 139 (Pa. Cmwlth. 1984).

In upholding a 10 month recommitment for a parolee’s conviction of the summary offense harassment, the court noted that the Board should clearly articulate its reasons for deviating from the presumptive range for criminal convictions under 37 Pa. Code § 75.1(c). Lewis v. Board of Probation and Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983).

The regulations for backtime recommitment are sufficiently specific so that parolee’s recommitment for backtime is not violative of due process if the recommitment is within the presumptive range and if the parolee does not allege any mitigating factors which the Board has refused to consider. Macon v. Board of Probation and Parole, 455 A.2d 1279 (Pa. Cmwlth. 1983).

History

Authority: The provisions of this Chapter 75 issued under section 506 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 75 adopted August 17, 1979, effective August 18, 1979, 9 Pa.

37 Pa. Code § 75.2 Presumptive ranges for convicted parole violators.

If the Board orders the recommitment of a parolee as a convicted parole violator, the parolee shall be recommitted to serve an additional part of the term which the parolee would have been compelled to serve had he not been paroled, in accordance with the following presumptive ranges:

The provisions of this § 75.2 adopted August 17, 1979, effective August 18, 1979, 9 Pa.B. 2687; amended January 16, 1981, effective January 17, 1981, 11 Pa.B. 353; amended June 1, 1984, effective June 2, 1984, 14 Pa.B. 1865; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122555) to (122558).

Acceptable Sentence

Although this regulation contained no presumptive range for an F-1 aggravated assault, because 40 months falls within the presumptive range for an F-2 aggravated asault, that term was not excessive. Hartage v. Board of Probation and Parole, 662 A.2d 1157 (Pa. Cmwlth. 1995).

Attorney

Where a parole violator did not contest conviction for offense, and backtime imposed for conviction was within the presumptive range as provided under this section, the Board of Probation and Parole’s discretion in imposing that backtime would not be reviewed, and therefore attorney may withdraw on grounds that appeal was frivolous. Congo v. Board of Probation and Parole, 522 A.2d 676 (Pa. Cmwlth. 1987).

Backtime—Not Excessive

Under this regulation, the presumptive range for simple assault is 9 to 15 months. The Board of Probation and Parole’s 15 month imposition of backtime for parolee’s simple assault conviction was within the presumptive range and should not be disturbed. Houser v. Board of Probation and Parole, 675 A.2d 787 (Pa. Cmwlth. 1996); affirmed 682 A.2d 1365 (Pa. 1996); appeal denied 692 A.2d 568 (Pa. 1997).

Calculating Backtime

General Comment

The Board of Probation and Parole cannot recommit a convicted parole violator to serve more than the balance of the parole’s unexpired term. Davenport v. Board of Probation and Parole, 656 A.2d 581 (Pa. Cmwlth. 1995).

Backtime

The General Assembly specifically granted the Board of Probation and Parole discretion to return a parole violator to prison for the entire remaining balance of the unexpired term and where the Board’s findings are supported by substantial evidence and the backtime imposed was within the published presumptive ranges, the Board’s discretion would not be disturbed. LaCourt v. Board of Probation and Parole, 488 A.2d 70 (Pa. Cmwlth. 1985).

—Computation

There was insufficient foundation to compute backtime where there was no court record of degree of crime committed. Allen v. Board of Probation and Parole, 567 A.2d 345 (Pa. Cmwlth. 1989).

Although Code did not explicitly state, the Board of Probation and Parole may aggregate backtime for various offenses, and where recommitment order was within presumptive range when taken in the aggregate, it was not excessive. Pierce v. Board of Probation and Parole, 525 A.2d 1281 (Pa. Cmwlth. 1987); appeal denied 535 A.2d 1059 (1987).

A 33 month backtime recommitment was consistent with the presumptive range for aggravated assault under this section. Macon v. Board of Probation and Parole, 455 A.2d 1279 (Pa. Cmwlth. 1983).

—Not Excessive

Backtime of 24 months was not excessive and the parolee was properly committed as a technical violator for consumption of alcohol and conviction for driving under the influence. Amaker v. Board of Probation and Parole, 544 A.2d 111 (Pa. Cmwlth. 1988); affirmed in part, reversed in part 576 A.2d 50 (Pa. 1990).

Offenses

—Assault

The presumptive range for aggravated assault, graded as a first degree misdemeanor, was 15 to 24 months; for simple assault, 9 to 15 months; for attempted theft by unlawful taking or disposition, graded as a first degree misdemeanor, 6 to 12 months. Bandy v. Board of Probation and Parole, 530 A.2d 507 (Pa. Cmwlth. 1987); appeal denied 540 A.2d 535 (Pa. 1988).

—Conspiracy

Where parolee had been convicted on Federal charges of aiding and abetting a bank robbery, and of conspiracy to rob a bank, the Board of Probation and Parole did not abuse its discretion by imposing 36 months back time, which was well within the presumptive range for the conspiracy alone. Cameron v. Board of Probation and Parole, 496 A.2d 419 (Pa. Cmwlth. 1985).

—Robbery

The presumptive range for the offense of robbery did not violate a parole violator’s right to equal protection because the presumptive range for robbery was correlative with the presumptive ranges for other felonies; there need not be separate presumptive ranges for different degrees of robbery to satisfy equal protection. McClinton v. Board of Probation and Parole, 546 A.2d 759 (Pa. Cmwlth. 1988).

Since the presumptive backtime range for convicted parole violators for robbery was 24 to 40 months and for burglary was 15 to 42 months and the Board of Probation and Parole had discretion to recommit for each separate criminal conviction, it was proper for the Board to set petitioner’s backtime at 48 months, given a maximum cumulative range of 64 months and minimum cumulative range of 39 months based on convictions for burglary and robbery. Garris v. Board of Probation and Parole, 516 A.2d 808 (Pa. Cmwlth. 1986); appeal denied 526 A.2d 1191 (Pa. 1987).

—Trespass

In holding that the imposition of 9 months backtime for a conviction of criminal trespass was supported by sufficient justification, the court noted that this section gives a presumptive backtime range of 3 to 6 months for criminal trespass. Robinson v. Board of Probation and Parole, 461 A.2d 903 (Pa. Cmwlth. 1983).

—Unlisted

The list of offenses set forth in this section and the assignment of a presumptive range of recommitment time in terms of months for each offense was not exhaustive; and in those cases where a parolee was convicted out-of-State of an offense not listed, then the presumptive range of the offense most clearly related in terms of severity was used. Simpson v. Board of Probation and Parole, 556 A.2d 542 (Pa. Cmwlth. 1989); appeal denied 575 A.2d 117 (Pa. 1990).

Presumptive Range

The presumptive ranges established by this Board of Probation and Parole to structure the Board’s discretion to assign a range in terms of months for various parole conditions and various crimes for which a parolee may be connected. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984).

Recommitment for 12 months as a technical parole violator and 60 months as a convicted parole violator was appropriate even though petitioner argued that sentence reflected eleven, not twelve, first degree felonies; the term of recommitment would have been within the presumptious range even if convicted of only one robbery and one burglary in addition to the technical violation. Ralph v. Board of Probation and Parole, 488 A.2d 377 (Pa. Cmwlth. 1985).

The presumptive range of recommitment incarceration directed by this section was not applied where the Board ordered a parolee to service the remainder of his unexpired term for violating a special condition of his parole. Lewis v. Board of Probation and Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983).

—Deviation

The Board of Probation and Parole did not abuse its discretion, where written justification was given for exceeding presumptive range, to the effect that petitioner, while on parole after murder conviction, had engaged in assaultive behavior and possessed a knife less than 1 month following release. Pounds v. Board of Probation and Parole, 527 A.2d 180 (Pa. Cmwlth. 1987); decision vacated 558 A.2d 859 (Pa. 1989).

Written justification must be given for deviations from the presumptive ranges for recommitment of a parole violator and where mitigating factors previously cited no longer existed, no written justification was deemed given. Kilpatrick v. Board of Probation and Parole, 521 A.2d 978 (Pa. Cmwlth. 1987).

Where the petitioner’s only proven conviction was for burglary, using the presumptive recommitment range for a robbery conviction was a violation of petitioner’s right to due process, unless written justification for the deviation from the proper presumptive range is provided by the Board of Probation and Parole. Zazo v. Board of Probation and Parole, 470 A.2d 1135 (Pa. Cmwlth. 1984).

This section cited in 37 Pa. Code § 75.1 (relating to application of presumptive ranges to convicted parole violators).

History

Authority: The provisions of this Chapter 75 issued under section 506 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 75 adopted August 17, 1979, effective August 18, 1979, 9 Pa.

37 Pa. Code § 75.3 Application of presumptive ranges to technical parole violators.

(a) Presumptive ranges of parole backtime to be served shall be utilized if a parolee violates a general or special condition of parole, and the Board orders recommitment as a technical violator after the appropriate violation hearing.

(c) The Board may deviate from the presumptive range or determine that recommitment should not occur provided sufficient written justification is given.

(d) The presumptive ranges are intended to directly relate to the severity of the technical violation, both singly and in combination.

(e) When multiple violations occur, the presumptive range will be used which has the highest backtime range of those conditions violated.

(f) Backtime for a violation of a special condition shall be aggregated with other backtime, unless the revocation decision states otherwise.

The provisions of this § 75.3 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 75.3 adopted January 16, 1981, effective January 17, 1981, 11 Pa.B. 353; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122559) to (122560).

Backtime

Subsection (f), when read in light of subsection (e) and § 75.4, does not imply that a technical violation of a general condition must be applied to run concurrently with other backtime. Mione v. Board of Probation and Parole, 709 A.2d 440 (Pa. Cmwlth. 1998).

The Board was justified in imposing backtime in the 3 to 18 month range when a parolee admitted at the parole hearing that he had quit his job in anticipation of securing a higher paying position which was a condition of parole. Smith v. Board of Probation and Parole, 543 A.2d 221 (Pa. Cmwlth. 1988); appeal granted 557 A.2d 728 (Pa. 1989); affirmed 574 A.2d 558 (Pa. 1990).

Computation of Time

Board of Probation and Parole did not exceed its presumptive range in imposing backtime for parole violation where the backtime imposed for violation of special condition of parole, unexpired term, was in effect only 9 days, since total unexpired term was 1 year and 9 days, Board had imposed 12 months for violations of general parole conditions and backtime imposed for general parole condition violations and special parole condition violations are aggregated to compute a reparole eligibility date. Lawson v. Board of Probation and Parole, 524 A.2d 1053 (Pa. Cmwlth. 1987).

This section provided presumptive recommitment ranges only for violations of general conditions. There were no presumptive ranges to be followed when a parolee violated a special condition of parole and special condition violations must be dealt with at least as severely as the least serious of the general conditions, according to subsection (f). Lewis v. Board of Probation and Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983).

Evidence

Court did not rule on issue of whether evidence concerning criminal charges obtained without the warning required by § 71.2(1) must be excluded from parole violation hearings as parole revocation hearings are not conducted with the same evidentiary rules as would apply to trial on criminal charges; even statements taken in violation of Miranda rights are admissable as evidence during revocation hearings. Coleman v. Board of Probation and Parole, 515 A.2d 1004 (Pa. Cmwlth. 1986).

Presumptive Range Exceeded

Where defendnt had been paroled on three different occasions and on the last occasion again violated a special condition of probation, there was sufficient justification for exceeding the maximum presumptive range. Moroz v. Board of Probation and Parole, 660 A.2d 131 (Pa. Cmwlth. 1995).

Board of Probation and Parole did not abuse its discretion, where written justification was given for exceeding presumptive range, to the effect that petitioner, while on parole after murder conviction, had engaged in assaultive behavior and possessed a knife less than 1 month following release. Pounds v. Board of Probation and Parole, 527 A.2d 180 (Pa. Cmwlth. 1987); decision vacated 558 A.2d 859 (Pa. 1989).

Procedure

Under 37 Pa. Code § 75.4, the applicable presumptive range for violating a special condition imposed by the Board of Probation and Parole or the parole agent was 3 to 18 months. Where the Board imposed backtime in excess of the maximum presumptive range, the Board was required to provide written justification for the increased backtime listing any aggravating reasons. Additionally, the aggravating reasons found by the Board must be supported by substantial evidence in the record. Moroz v. Board of Probation and Parole, 660 A.2d 131 (Pa. Cmwlth. 1995).

Written justification must be given for deviations from the presumptive ranges for recommitment of a parole violator and where mitigating factors previously cited no longer exist, no written justification was deemed given. Kilpatrick v. Board of Probation and Parole, 521 A.2d 978 (Pa. Cmwlth. 1987).

Without additional explanation or supporting evidence in the record, the Board of Probation and Parole’s statement, ‘‘Aggravating: pattern of parole failure,’’ did not constitute sufficient written justification for deviating from the presumptive recommitment ranges for technical violation of parole. Carthon v. Board of Probation and Parole, 512 A.2d 799 (Pa. Cmwlth. 1986).

Where the Board of Probation and Parole varied from the presumptive ranges, by either increasing or decreasing backtime, it was required to state in writing the mitigating or aggravating reasons. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984).

The Board of Probation and Parole adopted the presumptive ranges found in this chapter in an attempt to structure the discretion of the Board while allowing deviation for individual circumstances. Gundy v. Board of Probation and Parole, 478 A.2d 139 (Pa. Cmwlth. 1984).

Sentence within Range

The general condition which the parolee was found to have violated, having the highest back time range had a presumptive range of 5 to 12 months. Aggregating that back time with the back time for violation of three special conditions, the presumptive range became 14 to 66 months. The amount of back time imposed by the Board of Probation and Parole was 24 months, a period of time within the presumptive range. Kelly v. Board of Probation and Parole, 669 A.2d 436 (Pa. Cmwlth. 1995).

Where defendant had been on parole after serving a 9 to 60 month sentence and was subsequently arrested for receiving stolen property and multiple technical parole violations, the Board of Probation and Parole’s order that petitioner serve 18 months backtime was in accord with the appropriate range for multiple violations. Coleman v. Board of Probation and Parole, 515 A.2d 1004 (Pa. Cmwlth. 1986).

The Board of Probation and Parole’s imposition of 48 months backtime for violation of conditions of parole pertaining to ownership of firearms and assaultive behavior was within the presumptive ranges authorized by subsection (b) and was supported by substantial evidence in the record. Chapman v. Board of Probation and Parole, 484 A.2d 413 (Pa. Cmwlth. 1984).

Special Conditions

The Board of Probation and Parole can aggregate the recommitment period for a parolee’s violation of a special condition of parole along with multiple violations of general conditions of parole. Williams v. Board of Probation and Parole, 701 A.2d 279 (Pa. Cmwlth. 1997).

Fifteen month imposition of back time by the Board of Probation and Parole was within the presumptive range for violating special conditions of parole relating to consumption of alcohol and therefore was not disturbed as an abuse of discretion by the Board. Lotz v. Board of Probation and Parole, 548 A.2d 1295 (Pa. Cmwlth. 1988); affirmed 583 A.2d 427 (Pa. 1990).

The minimum and maximum recommended recommitment periods set forth in this section provide a rationale for the Board of Probation and Parole’s choice of minimum and maximum presumptive ranges for violations of special conditions. Johnson v. Board of Probation and Parole, 527 A.2d 1107 (Pa. Cmwlth. 1987).

While the presumptive ranges for recommitment of technical parole violators did not apply to a violation of a special condition of parole, such a violation must be dealt with at least as severely as the least serious of the general conditions, so that a recommitment which exceeded the minimum by only 6 months was not an abuse of the Board of Probation and Parole’s discretion. Marsh v. Board of Probation and Parole, 485 A.2d 853 (Pa. Cmwlth. 1984).

The imposition of a special condition that duplicated a general condition, and the use of it as a foundation for an aggregation and extension of the time periods, was an increase of the possible recommitment time in the absence of any express justification in violation of subsection (c). Gartner v. Board of Probation and Parole, 469 A.2d 697 (Pa. Cmwlth. 1983).

The Board of Probation and Parole, upon a finding of a violation of a special condition, had authority under this section to recommit a parolee and aggregate time periods for a period in excess of the presumptive ranges. Gartner v. Board of Probation and Parole, 469 A.2d 697 (Pa. Cmwlth. 1983).

Special Conditions

—Sentence within Range

In order to give effect to subsection (f) of this regulation, subsection (e) must be interpreted to refer only to multiple violations of general parole conditions. Interpreting subsection (e) as including special conditions would render subsection (f) a nullity. If a parolee violates a general condition in addition to a special condition, under a strict reading of subsection (e), the amount of back time assessed would be in the range of 3 to 18 months. This interpretation would conflict with the requirement in subsection (f) that back time for a violation of a special condition be aggregated with other back time. Kelly v. Board of Probation and Parole, 669 A.2d 436 (Pa. Cmwlth. 1995).

Parolee’s back time recommitment of 18 months for violation of a special condition relating to consumption of alcohol fell within presumptive range under this section and thus was not excessive; overruling Knight v. Board of Probation and Parole, 510 A.2d 402 (Pa. Cmwlth. 1986); overruled 527 A.2d 1107 (Pa. Cmwlth. 1987), Johnson v. Board of Probation and Parole, 527 A.2d 1107 (Pa. Cmwlth. 1987).

The Board of Probation and Parole’s denial of administrative relief would be affirmed where the backtime given for a special condition violation was within the Board’s three to eighteen months presumptive range. Lantzy v. Board of Probation and Parole, 477 A.2d 18 (Pa. Cmwlth. 1984).

A Board of Probation and Parole’s order of 36 months of backtime for a violation of a special condition that had a 6 to 18 months presumptive range was not an abuse of discretion where the Board provided sufficient written justification under subsection (c). Fahlfeder v. Board of Probation and Parole, 470 A.2d 1130 (Pa. Cmwlth. 1984).

Technical Violations

The imposition of a sentence of 18 months backtime for four technical parole violations was the proper maximum sentence under the presumptive ranges. Lewis v. Board of Probation and Parole, 515 A.2d 1033 (Pa. Cmwlth. 1986).

The Board of Probation and Parole may not impose additional time beyond the presumptive range for multiple technical violations solely on the basis of there being multiple technical violations. Robinson v. Board of Probation and Parole, 503 A.2d 1048 (Pa. Cmwlth. 1986); appeal after remand 520 A.2d 1230 (Pa. Cmwlth. 1987).

The Board of Probation and Parole may not recommit for technical violations where technical violations are based upon acts which constitute new crimes upon which parolee had been convicted. Robinson v. Board of Probation and Parole, 503 A.2d 1048 (Pa. Cmwlth. 1986); appeal after remand 520 A.2d 1230 (Pa. Cmwlth. 1987).

History

Authority: The provisions of this Chapter 75 issued under section 506 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 75 adopted August 17, 1979, effective August 18, 1979, 9 Pa.

37 Pa. Code § 75.4 Presumptive ranges for technical parole violators.

The presumptive ranges for recommitment for the general conditions of parole are as follows:

The provisions of this § 75.4 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).

The provisions of this § 75.4 adopted January 16, 1981, effective January 17, 1981, 11 Pa.B. 353; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122562) to (122563).

Appeals

The court will not interfere with the Board of Probation and Parole’s exercise of discretion where the Board’s finding of technical parole violation was supported by substantial evidence and the backtime imposed was within the presumptive range. Hawkins v. Board of Probation and Parole, 490 A.2d 942 (Pa. Cmwlth. 1985).

Danger to Society Determinations

Nothing in the record supported the Board of Probation and Parole’s conclusion that the parolee was a danger to society when the parolee was charged with a single technical violation. Drug use alone did not justify deviation from the presumptive range and the fact that the parolee’s underlying conviction was for third-degree murder did not make the parolee any more a threat to society than when the parolee was first paroled. Duncan v. Board of Probation, 687 A.2d 1179 (Pa. Cmwlth. 1996); appeal denied 704 A.2d 1383 (Pa. 1997).

Evidence

Although the Board of Probation and Parole is specifically permitted to review requests for administrative relief de novo, the panel must issue an order to that effect. Unless the Board expressly orders that the matter will be heard de novo, the revocation panel must only review the revocation decision on a substantial evidence standard. On petition for administrative relief, without an order for de novo review, new or additional findings on aggravating circumstances cannot be made in order to support backtime imposed. Having determined that the finding of a violation of condition 2 was not supported by substantial evidence, as evidenced by the order removing all references to that condition from the Board’s order, the backtime imposed, which was for a single violation of condition 5, should have been reduced. Watkins v. Board of Probation and Parole, 685 A.2d 226 (Pa. Cmwlth. 1996).

Where the Board of Probation and Parole imposed backtime in excess of the maximum presumptive range, the Board was required to provide writen justification for the increased backtime listing any aggravating reasons. Additionally, the aggravating reasons found by the Board must be supported by substantial evidence in the record. Moroz v. Board of Probation and Parole, 660 A.2d 131 (Pa. Cmwlth. 1995).

There was substantial evidence to allow the Board of Probation and Parole to exceed the presumptive range for multiple violations of condition 5A where the Board stated the following aggravating circumstances: ‘‘Early failure on parole. Serious multiple convictions. Overall poor parole adjustment. On parole for similar charges.’’ Ward v. Board of Probation and Parole, 538 A.2d 971 (Pa. Cmwlth. 1988).

If the Board of Probation and Parole imposes backtime in excess of the maximum presumptive range for a given violation, it must justify the increased backtime by listing the aggravating factors upon which it based its decision and these aggravating factors must be supported by substantial evidence contained in the record. Harper v. Board of Probation and Parole, 520 A.2d 518 (Pa. Cmwlth. 1987); appeal denied 531 A.2d 432 (Pa. 1987).

Court did not rule on issue of whether evidence concerning criminal charges obtained without warning required by § 71.2(1) must be excluded from parole violation hearings. These hearings do not need to be conducted with the same evidentiary rules as would apply to trial on criminal charges. Even statements taken in violation of Miranda rights are admissable as evidence during revocation hearing. Coleman v. Board of Probation and Parole, 515 A.2d 1004 (Pa. Cmwlth. 1986).

General Comment

This section sets forth presumptive ranges for recommitment of technical parole violators. Marsh v. Board of Probation and Parole, 485 A.2d 853 (Pa. Cmwlth. 1984).

The presumptive ranges established by this Board of Probation and Parole to structure its discretion assign a range in terms of months to various parole conditions and for various crimes for which a parolee may be connected. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth.).

Multiple Convictions

The Board may impose separate recommitment terms for each conviction while on parole although the separate convictions involved arise out of the same criminal event, since the multiple conviction provision contained in this section does not appear in § 73.1. Perry v. Board of Probation and Parole, 485 A.2d 1231 (Pa. Cmwlth. 1984).

Presumptive Range Exceeded

Parolee failed to assert how the missing portion of the witnesses cross-examination testimony could negate the fact that substantial evidence existed in the transcribed portion of the witness’s testimony, and in the record as a whole. Therefore, based on the parolee’s history of sex offenses, violent behavior, danger to the community, and original conviction, parolee was properly recommitted for a length of time exceeding the presumptive range in imposing backtime. Harris v. Board of Probation and Parole, 680 A.2d 35 (Pa. Cmwlth. 1996).

Procedure

Under this section, the applicable presumptive range for violating a special condition imposed by the Board of Probation and Parole or the parole agent was 3 to 18 months. Moroz v. Board of Probation and Parole, 660 A.2d 131 (Pa. Cmwlth. 1995).

Sentence within Range

Where petitioner was found to have violated one count of a general condition of his parole which, under regulation of the Board of Probation and Parole, carries a presumptive range of 5 to 12 months, and because the recommitment fell within the presumptive range, the period of recommitment was proper. Price v. Board of Probation and Parole, 781 A.2d 212 (Pa. Cmwlth 2001).

Parolee was recommitted within presumptive range following arrest by parole agent for possession of knife and multiple other violations of the conditions of parole. Kyte v. Board of Probation and Parole, 680 A.2d 14 (Pa. Cmwlth. 1996).

The fact that petitioner had been repeatedly warned by parole agent not to associate with drug users, that a lab report indicated petitioner had ingested methamphetamine and petitioner admitted to taking the pill, was sufficient to warrant the Board of Probation and Parole to increase petitioner’s recommitment from the 5—12 month presumptive range to 15 months. Moore v. Board of Probation and Parole, 530 A.2d 1011 (Pa. Cmwlth. 1987).

Where Board of Probation and Parole imposed backtime of 12 months for three technical parole violations and court deleted the finding of one of those violations, 12 months backtime was still well within the presumptive range for two technical parole violations, thus remand to Board for reconsideration of backtime imposed was not required. Lawson v. Board of Probation and Parole, 524 A.2d 1053 (Pa. Cmwlth. 1987).

Where defendant had been on parole after serving a 9 to 60 month sentence and was subsequently arrested for receiving stolen property and multiple technical parole violations, the Board of Probation and Parole order that petitioner serve 18 months backtime was in accord with the appropriate range for multiple violations. Coleman v. Board of Probation and Parole, 515 A.2d 1004 (Pa. Cmwlth. 1986).

Imposition of 18 months backtime for technical violation (engaging in assaultive behavior) is within the published presumptive range for general parole condition 5C. LaCourt v. Board of Probation and Parole, 488 A.2d 70 (Pa. Cmwlth. 1985).

Fifteen months backtime given by the Board of Probation and Parole was within the 6 to 18 months presumptive range for multiple violations of general parole conditions 1 (obtaining permission to leave parole district) and 5(ii) (refraining from owning or possessing any weapon). Lantzy v. Board of Probation and Parole, 477 A.2d 18 (Pa. Cmwlth. 1984).

The recommitment time specified in this section was a minimum time and the Board did not violate its own regulations where the range was exceeded because a parolee violated a special condition of parole. Lewis v. Board of Probation and Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983).

Treatment Programs

Participation in required inpatient drug and alcohol treatment program need not be credited against unexpired prison term of parole violator where program lacked custodial aspects which are characteristic of confinement. Jackson v. Board of Probation and Parole, 568 A.2d 1004 (Pa. Cmwlth. 1990).

Written Justification

Written justification must be given for deviations from the presumptive ranges for recommitment of a parole violator and where mitigating factors previously cited no longer exist, no written justification was deemed given. Kilpatrick v. Board of Probation and Parole, 521 A.2d 978 (Pa. Cmwlth. 1987).

History

Authority: The provisions of this Chapter 75 issued under section 506 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 75 adopted August 17, 1979, effective August 18, 1979, 9 Pa.

Chapter 77 Citizens Advisory Committees

37 Pa. Code § 77.1 Composition.

The district director shall appoint at least seven persons to a citizens advisory committee. If possible, the membership of the committee shall include but not be limited to:

(1) Members of ethnic and minority groups in proportion to their numbers in the district.

(2) A resident of each county within the district.

History

Authority: The provisions of this Chapter 77 issued under section 506 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 77 adopted January 15, 1988, effective January 16, 1988, 18 Pa.

37 Pa. Code § 77.2 Functions and responsibilities.

A citizens advisory committee shall:

(1) Advise the Board of the issues and concerns of the citizens of this Commonwealth regarding probation and parole.

(2) Inform the citizens of this Commonwealth regarding probation and parole and the functions of the Board.

(3) Assist the district staff in discharging their duties.

(4) Review established policies and programs of the Board.

(5) Explore innovative administrative and programmatic ideas.

(6) Develop new resources.

History

Authority: The provisions of this Chapter 77 issued under section 506 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 77 adopted January 15, 1988, effective January 16, 1988, 18 Pa.

Chapter 79 County Probation and Parole Officers’ Firearm Education and Training Commission

37 Pa. Code § 79.1 Scope.

This part sets forth standards and procedures relating to the certification of county probation and parole officers and their qualification to carry or use firearms in the performance of their duties.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.2 Definitions.

(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The County Probation and Parole Officers’ Firearm Education and Training Law (61 P. S. § § 332.1—332.9). Basic training—The initial training provided by the Commission. Break-in-service—The time period between the date an officer qualified to carry a duty weapon terminates employment for any reason and the date that the officer is rehired by the same or another armed county probation and parole office. CFI—Certified Firearms Instructor—A firearms instructor who is approved by the Commission under § 79.61(a)(1) (relating to approval of instructors.) Commission—Firearm Education and Training Commission. County conducted training—Any Commission-approved training not presented by the Commission but presented by a county. Duty weapon—The firearm an officer qualifies with and carries while on duty. Executive Director—The administrative officer reporting directly to the Commission who is responsible for program management. FCTMS—Firearms Commission Training Management System. In-service training—The continuing training necessary for county probation and parole officers to maintain certification. MI—Master Instructor—A CFI who meets the minimum qualifications to become an MI and who is approved by the Commission under § 79.61(a)(2).

(b) The definitions in section 2 of the act (61 P. S. § 332.2) are incorporated by reference.

The provisions of this § 79.2 amended under the County Probation Officers’ Firearm Education and Training Law, 61 Pa.C.S. § 6305(13).

The provisions of this § 79.2 amended January 17, 2014, effective January 18, 2014, 44 Pa.B. 328. Immediately preceding text appears at serial page (367712).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.3 Enrollment.

Enrollment in programs under this part will be based upon all relevant factors pertaining to the ability of the Commission to hold a program including the number of openings in a particular training program, the timing of the submitted application for training, the financial viability of conducting the training and the availability of instructors and facilities to hold the program.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.11 Certification.

Certification of those county probation/parole officers who have satisfactorily completed basic training or who have been granted a waiver by the Commission will be recognized through the issuance of a certificate, which will bear a certification number.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.12 Applications.

(a) The requirements for program participation or waiver in section 7 of the act (61 P. S. § 332.7) are incorporated by reference.

(b) Application procedures to participate in training programs approved by the Commission will require any officer or county, or both, to submit information in a format as specified on FCTMS (www.fetc.state.pa.us).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.13 Requirements for completion.

Satisfactory completion is defined as meeting the following requirements:

(1) Attendance at the entire approved training program.

(2) Compliance with Student Code of Conduct for the programs as reviewed and approved annually by the Commission and set forth in the course syllabus for a training program and on the Commission’s web site.

(3) Attainment of a passing score on all components of a training program that are graded or evaluated, or both, including written, oral and range components of a training program.

This section cited in 37 Pa. Code § 79.15 (relating to failure to complete basic training); and 37 Pa. Code § 79.42 (relating to meet range qualification within required time frames).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.14 Duration of certification.

The certification of officers by the Commission as a result of satisfactory completion of the basic training during a calendar year will remain valid through December 31 of the following calendar year, unless revoked under § 79.31 (relating to reasons for revocation of certification).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.15 Failure to complete basic training.

(a) An officer who fails to achieve a passing score on the written examination portion of basic training will not be allowed to continue in that basic training program. The officer may reapply to the Commission to enroll and participate in subsequent basic training programs.

(b) If an officer achieves a passing score on the written examination, but otherwise fails to complete the basic training requirements under § 79.13 (relating to requirements for completion), the officer’s passing score will be recognized by the Commission for 1 year from the date of attainment of the passing score on the written examination. If the officer enrolls in a subsequent basic training program during this 1-year period, the officer will be required to attend and complete only the portion of the basic training that was not successfully completed.

(c) If an officer fails to achieve a passing score on the range portion of basic training, the Executive Director will notify the officer’s chief probation officer, by means of certified mail, that the officer did not achieve a passing score on this portion of basic training.

(d) An officer who fails to achieve a passing score on the range portion of basic training may be afforded one additional opportunity to shoot the range portion of basic training within 90 calendar days from the date the officer fails to achieve a passing score if the officer’s chief probation officer submits a written request to the Executive Director seeking permission for the officer to shoot the range portion of basic training within 45 calendar days of the date that the officer failed to achieve a passing score. The Executive Director will grant or deny the permission, in writing, within 15 business days after receiving the written request from the officer’s chief probation officer.

(1) The request must include the following:

(i) A proposed date, time and location for the shoot.

(ii) The name of the CFI who will conduct the examination.

(iii) A written statement from a CFI that the CFI provided remedial range training and that the officer is competent to pass the range portion of basic training.

(2) The examination may be subject to monitoring by the Commission without notice.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.21 Maintenance of certification.

(a) Certifications are effective until December 31 of the calendar year following the issuance of the original or renewed certification unless the Certification has been revoked under § § 79.31, 79.32 or 79.33 (relating to revocation of certification).

(b) To maintain certification beyond December 31 of the calendar year following the issuance of the original Certification or renewed certification, an officer must successfully complete the following:

(1) At least 4 hours of in-service training, on an annual basis, the specifics of which the Commission will publish by the end of the first quarter of each calendar year on the Commission’s web site (www.fetc.state.pa.us).

(2) A range requalification examination under § 79.22 (relating to range requalification examinations).

(c) This section does not apply to the extent an officer’s certification is revoked under § 79.31 (relating to reasons for revocation of certification).

This section cited in 37 Pa. Code § 79.24 (relating to extensions); 37 Pa. Code § 79.31 (relating to reasons for revocation of certification); and 37 Pa. Code § 79.43 (relating to failure to meet mandatory in-service training requirements).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.22 Range requalification examinations.

(a) Range requalification examinations will require the officer to demonstrate continuing proficiency which includes weapons handling, range safety and marksmanship.

(b) A range requalification examination shall be completed during a Commission-conducted event or a training event sanctioned by the Commission.

(c) Range requalification examinations must be conducted by October 31 of each calendar year, except as specified in § 79.42(b) (relating to failure to meet range requalification requirements time frames).

(d) The course of fire for the range requalification examination shall be conducted using the same procedures that are followed for the range portion of basic training.

(e) Counties or departments desiring to conduct a range requalification examination shall follow an application process specified on the FCTMS (www. fetc.state.pa.us).

(1) The first time that a county or CFI conducts a Commission-sanctioned range requalification examination, oversight must be provided by a member of the Commission, a Commission-approved representative, or a CFI who is not employed by the county or counties whose personnel are being examined.

(2) In subsequent years, the county may conduct the Commission sanctioned range requalification examination without oversight.

(3) Any county conducting Commission-sanctioned range requalification examinations is subject to periodic inspection and audit by the Executive Director or a representative of the Commission.

This section cited in 37 Pa. Code § 79.21 (relating to maintenance of certification); 37 Pa. Code § 79.42 (relating to failure to meet range requalification within required time frames); and 37 Pa. Code § 79.43 (relating to failure to meet mandatory in-service training requirements).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.23 Failure to complete range requalification or in-service training.

(a) An officer who fails to achieve a passing score on any evaluation, which is a part of the range requalification examination or in-service training, will be permitted one additional opportunity to achieve a passing score on the portion failed within 30 calendar days of failing to achieve a passing score on any portion of an evaluation, or prior to October 31st of each calendar year, whichever time frame is shorter.

(b) An officer who fails to satisfactorily complete an in-service training requirement will not receive credit for the Commission-specified number of hours of training for that course, and may be subject to revocation of certification under § § 79.31—79.33 (relating to revocation of certification).

This section cited in 37 Pa. Code § 79.41 (relating to failure to achieve a passing score on a range requalification examination).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.24 Extensions.

(a) An officer who is unable to comply with § 79.21 (relating to maintenance of certification) due to extraordinary circumstances may, through his chief probation officer, submit a written request, on a form and in a format set forth on the FCTMS (www.fetc.state.pa.us) to the Executive Director by October 31 of the year in which the officer’s current certification will expire.

(1) The request must include the following:

(i) The specific reason for the requested extension of time.

(ii) The specific length of time of the requested extension.

(iii) Documentation to support the information that the officer supplied under subparagraph (1)(i) and (ii) including, documents such as copies of military orders or a letter from the chief probation officer.

(2) When the request is due to medical reasons, the supporting documentation must include a written statement from the officer’s physician indicating that at the present time and for the period of the requested extension the officer is not medically capable of participating in a range requalification examination or in-service training.

(b) The Executive Director will review the written request for extension of time and make a recommendation to the Commission. The Commission will provide written notification to the officer and the officer’s chief probation officer of its decision.

(c) If the request for extension is approved, the officer shall comply with § 79.21 no later than the ending date of the granted period of extension.

(d) If the extension is to comply with § 79.21(b)(2), the officer’s chief probation officer shall send a written request to the Executive Director to conduct a range requalification examination.

(1) The Executive Director must receive the request no later than 15 business days prior to the date of the range requalification examination.

(2) The range requalification examination may occur at any time during the period of the Commission-approved extension.

(e) The certification of an officer who has been granted an extension under this section shall be effective to the ending date of the granted period of extension.

This section cited in 37 Pa. Code § 79.33 (relating to revocation of certification for failure to submit a timely request).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.25 Duty weapon change.

A change in an officer’s duty weapon involving a different manufacturer, a different model from the same manufacturer or a change in firearm caliber requires that:

(1) The officer satisfactorily completes a Commission qualification course of fire on the new duty weapon.

(2) Qualification occurs prior to the officer carrying the new weapon on duty.

(3) Weapon change information and qualification results are recorded in the FCTMS.

The provisions of this § 79.25 issued under the County Probation Officers’ Firearm Education and Training Law, 61 Pa.C.S. § 6305(13).

The provisions of this § 79.25 adopted January 17, 2014, effective January 18, 2014, 44 Pa.B. 328.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.26 Break-in-service.

(a) An officer who has a break-in-service of less than 12 months is not required to have additional training as a result of the officer’s break-in-service.

(b) An officer who has a break-in-service lasting between 12 and 24 months shall satisfactorily complete a current written test and successfully requalify on the Commission’s qualification course as a result of the officer’s break-in-service.

(c) An officer who has a break-in-service of 24 months or more shall meet the requirements of a new hire as a result of the officer’s break-in-service.

The provisions of this § 79.26 issued under the County Probation Officers’ Firearm Education and Training Law, 61 Pa.C.S. § 6305(13).

The provisions of this § 79.26 adopted January 17, 2014, effective January 18, 2014, 44 Pa.B. 328.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.31 Reasons for revocation of certification.

The Commission may revoke an officer’s certification for failure to comply with § 79.21 (relating to maintenance of certification) or for any of the following:

(1) Conviction of any crime that subjects the officer to the disabilities under the Gun Control Act of 1968 (18 U.S.C.A. § § 921—930), or 18 Pa.C.S. Chapter 61, Subchapter A (relating to the Pennsylvania Uniform Firearms Act of 1995), or both.

(2) Unsafe conduct during any Commission training.

(3) Unprofessional conduct, as delineated in the Student Code of Conduct, during an event or training that is conducted by the Commission.

(4) Providing false or misleading information, either orally or in writing, to the Commission, its employees or agents.

This section cited in 37 Pa. Code § 79.14 (relating to duration of certification); 37 Pa. Code § 79.21 (relating to maintenance of certification); 37 Pa. Code § 79.23 (relating to failure to complete range requalification or in-service training); and 37 Pa. Code § 79.44 (relating to nonrecertifiable revocations).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.32 Revocation of certification for failure to pass range requalification examination.

(a) The Executive Director, upon receipt of the range requalification examination results, will immediately revoke the certification of an officer who fails to requalify.

(b) The officer who has failed to requalify will be notified of the revocation of certification in writing.

(1) Copies of the revocation notification will be sent to the chief probation officer and president judge of the officer’s employing county and judicial district.

(2) The notice of revocation of certification will advise the officer that one additional opportunity to successfully complete the range requalification examination is available after the officer participates in Commission-sanctioned remedial training.

(i) Before an officer takes a Commission-sanctioned remedial training, a CFI, who has previously conducted remedial training, shall provide written documentation to the Executive Director stating that the officer to be reexamined has demonstrated sufficient improvement which warrants another opportunity to take a requalification reexamination.

(ii) The requalification examination shall occur within no more than 30 days of the initial failure of the range requalification examination.

(iii) Range requalification examinations will not be permitted after October 31 of the calendar year in which the failure occurred.

(c) Unless the officer successfully completes the range requalification examination after completion of the Commission sanctioned remedial training, the revocation of certification will remain in effect.

This section cited in 37 Pa. Code § 79.21 (relating to maintenance of certification); and 37 Pa. Code § 79.23 (relating to failure to complete range requalification or in-service training).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.33 Revocation of certification for failure to submit a timely request.

If the officer’s chief probation officer fails to submit a request for a range requalification examination to the Executive Director prior to the expiration of the extension period granted by the Commission under § 79.24 (relating to extensions), the officer’s certification will be immediately revoked upon expiration of the extension period and no further extensions will be granted.

This section cited in 37 Pa. Code § 79.21 (relating to maintenance of certification); and 37 Pa. Code § 79.23 (relating to failure to complete range requalification or in-service training).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.41 Failure to achieve a passing score on a range requalification examination.

When an officer’s certification has been revoked due to the officer’s failure to achieve a passing score under § 79.23 (relating to failure to complete range requalification or in-service training), the officer seeking recertification shall do the following:

(1) Submit an application in a format as specified on the FCTMS (www. fetc.state.pa.us). The application shall be co-signed by the chief probation officer who shall state that the officer is competent and safe to participate in Commission training activities.

(2) Enroll in, attend, and satisfactorily complete a Commission-sponsored basic training.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.42 Failure to meet range requalification within required time frames.

(a) When an officer’s certification has been revoked due to the officer’s failure to meet the time requirements of range requalifications in § 79.22 (relating to range requalification examinations), the officer seeking recertification shall do the following:

(1) Submit an application to the Executive Director within 20 calendar days of the effective date of the revocation of certification. The application must be on a form set forth on the FCTMS (www.fetc.state.pa.us) and shall be co-signed by the chief probation officer.

(2) Pass any written examinations, as described in § 79.13 (relating to requirements for completion). The examinations will be administered by the Executive Director, a designee, or other authorized Commission staff or a Commission member.

(3) Successfully complete the range requalification requirements as set forth in § 79.22.

(b) The requirements for recertification set forth in this section shall be completed within 180 calendar days of the date in which the application is granted by the Commission, unless, due to extraordinary circumstances, the Commission grants additional time.

This section cited in 37 Pa. Code § 79.22 (relating to range requalification examinations).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.43 Failure to meet mandatory in-service training requirements.

(a) When an officer’s certification is revoked due to the officer’s failure to meet any mandatory in-service training requirements set forth in § 79.21(b) (relating to maintenance of certification), the officer seeking recertification shall do the following:

(1) Submit an application to the Executive Director which must be in such format as specified on the FCTMS (www.fetc.state.pa.us) and shall be co-signed by the chief probation officer.

(2) Enroll in, attend and complete a Commission-sponsored basic training program, or enroll in, attend and complete the next available offerings of any mandatory in-service training, which were not completed as required by the Commission.

(3) Successfully complete the range requalification examination as set forth in § 79.22 (relating to range requalification examinations).

(b) The requirements for recertification set forth in this section shall be set forth in the Commission’s written approval letter which will direct the officer to the training or examination that must be completed and the time frame within which this must be completed prior to the officer being recertified.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.44 Nonrecertifiable revocations.

When an officer’s certification is revoked under § 79.31(1) or (4), or both, (relating to reasons for revocation of certification), the officer shall be ineligible for recertification.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.51 Reimbursement of expenses.

(a) Subject to the availability of funds, the Commission may assume the costs or reimburse expenses incurred, or both, during an officer’s attendance at a basic training program or in-service training (including range requalification). The reimbursement will not include personnel costs. Expenses determined eligible by the Commission will be reimbursed at rates that are currently recognized by the Commonwealth.

(b) Instructors are not eligible for Commission reimbursement for any expenditure incurred when engaged in county-conducted basic training under § 79.64 (relating to county-conducted basic training) or an in-service training course developed by an entity other than the Commission or a Commission-approved vendor under § 79.63 (relating to requirements for in-service training courses) or county-conducted in-service training under § 79.65 (relating to county-conducted in-service training).

(c) Students are not eligible for Commission reimbursement for any expenditure incurred when they participate in county-conducted basic training under § 79.64 or an in-service training course developed by an entity other than the Commission or a Commission-approved vendor under § 79.63 or county-conducted in-service training under § 79.65.

(d) The Commission may reimburse, in accordance with Commission policies in effect on the dates of the county-conducted basic training or county-conducted in-service training, the county for selected expenditures associated with the county-conducted basic training or county-conducted in-service training, or both.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.52 Reimbursement limitations.

The Commission will assume only the costs or reimburse eligible training expenses, or both, incurred for an officer’s initial basic training. Reimbursement of expenses will be contingent upon the county’s compliance with all Commission regulations, policies and procedures and upon the satisfactory submission of any requested information, data, forms, reports or documents. Commission reimbursement for ammunition and lodging is available for only one basic training per officer.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.61 Approval of instructors.

(a) An individual seeking approval to become a CFI or MI in programs offered by the Commission shall submit an application in a format as specified on the FCTMS (www.fetc.state.pa.us).

(1) Minimum qualifications for CFI. The application for approval as a CFI in any Commission training, waiver or requalification examination program will include, but not be limited to, verification that the applicant has satisfactorily completed a law enforcement firearms instructor training course offered by entities such as: FBI, Pennsylvania State Police, National Rifle Association or any other course which may be approved by the Commission and documentation that the applicant has conducted at least 12 hours of law enforcement firearms instruction within the 24 months preceding the application submission date.

(2) Minimum qualifications for an MI. The applicant shall be a Commission CFI for 36 months following approval as a CFI by the Commission and submit an application for designation as an MI to the Executive Director. The applicant shall have been a lead instructor for the academic/classroom portion of a Commission Basic Training Program and a range master for the range portion of the training.

(b) Certifications for both CFI and MI shall be for 36 months following approval by the Commission unless sooner revoked by the Commission. When a CFI attains MI status, the MI recertification date will default to the instructor’s CFI recertification date.

(c) To renew certification an instructor shall be required to submit an application for renewal of certification. The application must at least include documentation demonstrating that the instructor has provided the following:

(1) For CFI certification renewal, a minimum of 12 hours of relevant firearms instruction to county probation personnel in the preceding 36 months, including at least one basic training. The requirement to conduct one basic training during the preceding 36-month period for CFI renewal may be waived by the Commission.

(2) For MI certification renewal, a minimum of 12 hours of relevant academic instruction and a minimum of 12 hours of range firearms instruction to county probation personnel in the preceding 36 months.

(d) The Commission reserves the right to revoke its certification of any CFI or MI, or both, without notice. An affected CFI or MI may seek reconsideration of the revocations under § 79.72 (relating to procedure for officers, CFIs, MIs or schools seeking reconsideration).

The provisions of this § 79.61 amended under the County Probation Officers’ Firearm Education and Training Law, 61 Pa.C.S. § 6305(13).

The provisions of this § 79.61 amended January 17, 2014, effective January 18, 2014, 44 Pa.B. 328. Immediately preceding text appears at serial pages (367721) to (367722).

This section cited in 37 Pa. Code § 79.2 (relating to definitions).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.62 Approval of schools and vendors.

(a) Schools certified under 53 Pa.C.S. § § 2162—2171 (relating to municipal police education and training) are preapproved to conduct training as the Commission may, in particular geographic areas of the Commonwealth, require.

(b) Vendors and other entities may become approved to conduct Commission training, as the needs of the Commission dictate, through the Commonwealth’s competitive bid process. Selected vendors will enter into a contract with the Commission to conduct specific training, to a particular population, for a specific period of time and to contractual standards. Approval of these entities to conduct Commission training may terminate upon expiration of the contract.

(c) Schools and vendors conducting training for the Commission shall use only instructors and curricula which have been preapproved by the Commission.

(d) Training conducted by a school or vendor must be approved and scheduled through the Executive Director, in writing, prior to any advertisement, registration or other obligation for that training.

(e) The Commission will inspect each approved school or vendor actively providing training at least once every 2 years, but reserves the right to monitor, without notice, any training conducted by approved schools or vendors, and to review and inspect related program records, materials and facilities at any time.

(f) The Commission reserves the right to suspend or revoke the approval of any school or vendor without notice. An affected school or vendor may seek reconsideration of the revocations under § 79.72 (relating to procedure for officers, CFIs, MIs or schools seeking reconsideration.)

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.63 Requirements for in-service training courses.

(a) To receive credit toward Commission mandated in-service training, counties shall obtain preapproval from the Commission to conduct an in-service training course developed by an entity other than the Commission or a Commission-approved school or vendor.

(b) Counties seeking approval of an in-service training course developed by an entity other than the Commission or a Commission-approved school or vendor shall submit an application to the Executive Director at least 90 calendar days prior to the first proposed day of training. The proposal shall be submitted in writing to the Executive Director. The Commission may waive the 90-day requirement in this subsection on a case-by-case basis if the course has been approved by an entity such as the Federal Bureau of Investigation, the Pennsylvania State Police or the National Rifle Association.

(c) Upon approval by the Commission, the approved in-service training course may be conducted by the county in accordance with § 79.65 (relating to county-conducted in-service training).

(d) The Commission prior to the first proposed day of training must approve any changes or modifications to the in-service training course that is approved by the Commission.

The provisions of this § 79.63 amended under the County Probation Officers’ Firearm Education and Training Law, 61 Pa.C.S. § 6305(13).

The provisions of this § 79.63 amended January 17, 2014, effective January 18, 2014, 44 Pa.B. 328. Immediately preceding text appears at serial pages (367721) to (367723).

This section cited in 37 Pa. Code § 79.51 (relating to reimbursement of expenses).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.64 County-conducted basic training.

(a) To be recognized by the Commission, a basic training conducted by a county must be preapproved by the Commission and be carried out in accordance with the terms and conditions in the Commission’s approval letter.

(b) An MI shall supervise all county-conducted basic training.

(c) A county desiring to conduct a basic training shall submit an application for county-conducted basic training, including all required documentation, to the Executive Director on Form 19b as found on the Commission’s web site (www. fetc.state.pa.us).

(d) County-conducted basic training must be conducted on training sites, both classroom and range, that are preapproved by the Executive Director.

(e) Only students who have submitted a basic training application, which has been approved by the Executive Director, shall participate in a county-conducted basic training.

(f) The entire county-conducted basic training must be completed within 30 consecutive calendar days and on the dates, times and at locations specified in the application.

(g) Upon request of the Executive Director or at the conclusion of the training, the county shall submit to the Executive Director all forms and materials referenced in the Commission’s basic training approval letter in 30 calendar days.

(h) A county that is conducting an approved basic training may accept any Commission-approved student for participation in the training.

(i) Materials to support county-conducted basic training may be provided to the county by the Commission solely at the discretion of the Commission.

(j) The Commission reserves the right to monitor and inspect all aspects of county-conducted basic training without notice to the county that is conducting the training.

This section cited in 37 Pa. Code § 79.51 (relating to reimbursement of expenses).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.65 County-conducted in-service training.

(a) To be recognized by the Commission, an in-service training course must be preapproved by the Commission and conducted in accordance with the terms and conditions set forth in the Commission’s approval letter.

(b) An MI shall supervise all county-conducted in-service training.

(c) A county desiring to conduct in-service training shall submit an application for county-conducted in-service training, including the required documentation, to the Executive Director on Form 19c as found on the Commission’s web site (www.fetc.state.pa.us).

(d) County-conducted in-service training must be conducted on training sites, both classroom and range, that are preapproved by the Executive Director.

(e) Only students who have submitted an application for in-service training that has been approved by the Executive Director shall participate in county-conducted in-service training.

(f) The entire county-conducted in-service training must be completed within 30 consecutive calendar days and on the dates, times and at the locations specified in the application.

(g) Upon request of the Executive Director or at the conclusion of the training, the county shall submit to the Executive Director all forms and materials referenced in the Commission’s in-service training approval letter in 30 calendar days.

(h) A county that is conducting approved in-service training may accept any Commission-approved student for participation in the training.

(i) Materials to support county-conducted in-service training may be provided to the county by the Commission solely at the discretion of the Commission.

(j) The Commission reserves the right to monitor and inspect all aspects of any county-conducted in-service training without notice to the county conducting the training.

This section cited in 37 Pa. Code § 79.51 (relating to reimbursement of expenses); and 37 Pa. Code § 79.63 (relating to requirements for in-service training courses).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.71 Decisions of instructors.

Commission instructors have the authority to summarily and immediately terminate an officer’s participation in any Commission sanctioned training activity if any Commission instructor believes, in the Commission instructor’s sole discretion, that an officer presents a safety concern, disrupts the learning environment, or violates the Commission’s Student Code of Conduct.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.72 Procedure for officers, CFIs, MIs or schools seeking reconsideration.

(a) Procedure. An officer, CFI, MI or school shall first seek reconsideration of a Commission decision through a letter-ruling process, which consists of the following steps:

(1) The officer, CFI, MI or school shall submit to the Executive Director a written request for reconsideration no later than 20 days after mailing of a Commission notice, which results in adverse action for the school or individual.

(2) The request for reconsideration must, at a minimum, contain the following details:

(i) The name, address, telephone number and electronic mail address of the aggrieved individual or school.

(ii) A copy of the Commission notice, which results in adverse action for the school or individual.

(iii) A concise and thorough explanation of the basis for the Request for Reconsideration.

(iv) The relief being sought.

(3) The Commission will review the request for reconsideration at its next regularly scheduled meeting. The individual or entity seeking reconsideration will be notified of the time and place of the meeting.

(4) Following review of the request for reconsideration, the Commission will render a decision regarding the request for reconsideration. Within 10 days of the date of the decision, the Commission will forward to the individual or entity, by means of certified mail, return receipt requested, a letter ruling specifying the decision and the reasons for the Commission’s decision and explaining the right to a formal hearing if the individual/school/vendor does not accept the results set forth in the letter.

(5) Results and opinions set forth in letter-rulings will have no precedential authority.

(b) Cross-reference. This section supplements 1 Pa. Code § 35.10 (relating to form and content of formal complaints).

This section cited in 37 Pa. Code § 79.61 (relating to approval of instructors); and 37 Pa. Code § 79.62 (relating to approval of schools and vendors).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.81 General Rules of Administrative Practice and Procedure.

Title 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) is applicable to the proceedings of the Commission insofar as it is not superseded by § § 79.82—79.87.

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.82 Notice.

(a) If an officer, CFI, MI or school wishes to pursue an appeal to a formal hearing, the officer, CFI, MI or school shall submit to the Executive Director a written request for hearing no later than 30 calendar days after mailing of the Commission’s letter-ruling regarding the request for reconsideration.

(b) A request for hearing must be in writing and contain at least the following information:

(1) The name, address, telephone number and electronic mail address of the officer or school filing the written request for hearing.

(2) A copy of the Commission’s letter-ruling on the request for reconsideration.

(3) A concise statement of the complaint.

(4) A concise statement of all relevant facts and the grounds upon which the complaint is based.

(5) The relief being sought.

(c) The date of receipt by the Executive Director of the written hearing request from the officer, CFI, MI or school and not the date of deposit in the mails is determinative of a timely request for a hearing.

(d) This section supplements 1 Pa. Code § 35.10 (relating to form and content of formal complaints).

This section cited in 37 Pa. Code § 79.81 (relating to general rules of Administrative Practice and Procedure).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.83 Appointment of hearing examiner.

(a) When the Executive Director receives a request for hearing, the Commission’s Chairperson or a designee will appoint a hearing examiner to preside over the formal hearing.

(b) It will be the responsibility of the appointed hearing examiner to schedule the hearing and conduct it in accordance with this section and 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure).

(c) Subsection (a) supplements 1 Pa. Code § 35.185 (relating to designation of presiding officers). Subsection (b) supplements 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers).

This section cited in 37 Pa. Code § 79.81 (relating to general rules of Administrative Practice and Procedure).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.84 Hearings.

(a) Hearings will be conducted in accordance with 2 Pa.C.S. § § 501—508 and 701—704 (relating to Administrative Agency Law).

(b) Legal counsel may represent the aggrieved individual or entity and the costs incurred for the representation shall be borne by the individual or entity.

(c) The hearing examiner will notify the aggrieved individual and, if applicable, the aggrieved entity and the Commission of the date, time and location of the hearing at least 60 days prior to the selected date. A courtesy copy will be forwarded to the appropriate chief probation officer and president judge. This subsection supersedes 1 Pa. Code § 35.105 (relating to notice of nonrulemaking proceedings).

(d) A prehearing conference may be held at the discretion of the hearing examiner. If a prehearing conference is held, it will be under 1 Pa. Code § 35.111 (relating to conferences to expedite hearings).

This section cited in 37 Pa. Code § 79.81 (relating to general rules of Administrative Practice and Procedure).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.85 Continuances.

(a) Continuances of hearings conducted under this section will only be granted upon a showing of good cause by the party requesting the continuance.

(b) Requests for continuances shall be made in writing to the hearing examiner.

(c) A party’s objections, if any, to a request for a continuance must be in writing and delivered to the hearing examiner and the other party. Objections shall be made immediately upon receipt of notification of a request for a continuance.

(d) This section supersedes 1 Pa. Code § 31.15(b) (relating to extensions of time).

This section cited in 37 Pa. Code § 79.81 (relating to general rules of Administrative Practice and Procedure).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.86 Failure to appear at a hearing.

(a) If an officer, CFI, MI or school or the officer’s, CFI’s, MI’s or school’s representative fails to appear at the scheduled hearing without good cause, as determined by the hearing examiner, the request for hearing shall be deemed abandoned and shall be dismissed with prejudice.

(b) If the Commission fails to appear at the hearing without good cause as determined by the hearing examiner, the hearing shall proceed in absentia.

(c) If neither the officer, CFI, MI or school nor the Commission or their representatives appear at the hearing, the hearing examiner shall reschedule the hearing.

This section cited in 37 Pa. Code § 79.81 (relating to general rules of Administrative Practice and Procedure).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

37 Pa. Code § 79.87 Hearing examiner recommendation.

(a) Within 30 days of conclusion of the hearings, the hearing examiner will propose findings of fact and conclusions of law to the Commission.

(b) Upon receipt and after review of the hearing examiner’s proposed findings of fact and conclusions of law and any exceptions and briefs, which may be submitted by either party, the Commission, or its designees, shall issue a final adjudication.

(c) The Executive Director shall forward the final adjudication to the officer, CFI, MI or school, or their legal counsel, if the officer, CFI, MI or school has made the Executive Director aware of the representation, and the appropriate chief probation officer and president judge.

(d) The officer, CFI, MI, school or Commission shall have the right to appeal the final adjudication in accordance with Pa.R.A.P. and 2 Pa.C.S. § § 501—508 and 701—704 (relating to Administrative Agency Law).

This section cited in 37 Pa. Code § 79.81 (relating to general rules of Administrative Practice and Procedure).

History

Authority: The provisions of this Chapter 79 issued under the County Probation and Parole Officers’ Firearm Education and Training Law (61 P.
Source: The provisions of this Chapter 79 adopted June 5, 2009, effective June 6, 2009, 39 Pa.

Part III Agencies and Offices

Subpart A Board of Pardons

Chapter 81 Board of Pardons

37 Pa. Code § 81.201 Scope.

This chapter is applicable to applications for clemency to the Board, including applications for commutation of capital sentences. This chapter will be liberally construed to secure the fair and just determination of every application for clemency.

The provisions of this § 81.201 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.202 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Application—The official form which shall be used to request a clemency hearing before the Board. Board—The Board of Pardons of the Commonwealth. Calendar—A published schedule of applications listed for public hearings during a particular session. Capital case—A case in which the applicant has requested a commutation of death sentence to life imprisonment. Clemency—The power of the Governor to pardon or commute a criminal sentence based upon recommendations by the Board. Commutation—The reduction of a legal penalty or punishment. Crime of violence—Includes the following:

(i) Murder of the third degree, voluntary manslaughter, rape, sexual assault, involuntary deviate sexual intercourse, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault), robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i),(ii) or (iii) (relating to robbery) or kidnapping.

(ii) An attempt to commit murder of the third degree, voluntary manslaughter, rape, sexual assault, involuntary deviate sexual intercourse, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1), robbery as defined in 18 Pa.C.S. § 3701 (a)(1)(i),(ii) or (iii) or kidnapping.

(iii) An offense committed while in visible possession of a firearm for which sentencing was imposed under 42 Pa.C.S. § 9712 (relating to sentences for offenses committed with firearms). Filing—The receipt of the application by the Board’s office. Final adverse decision—One of the following:

(i) The denial of a public hearing by the Board.

(ii) The Board not recommending an application to the Governor.

(iii) The Governor denying an application. Merit review—The process of reviewing an application by the Board to determine if the application has sufficient merit to hold a public hearing on the matter. Merit review vote—A public vote by the Board to determine if a public hearing will be held on an application. Pardon—Forgiveness; an act of grace from governing power which mitigates the punishment the law demands for the offense and restores the rights and privileges forfeited on account of the offense. The term does not mean expungement of the record. Secretary—The administrator of the Board. Vote—Action on approval or disapproval taken by a quorum of the Board at a public hearing.

The provisions of this § 81.202 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.211 Clemency.

The Board hears and acts upon applications for:

(1) Pardon.

(2) Commutation of sentences including:

(i) Death sentence to life imprisonment.

(ii) Life imprisonment to life on parole.

(iii) Minimum sentence.

(iv) Maximum sentence.

The provisions of this § 81.211 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.212 Prerelease arbitration.

In cases when eligibility for prerelease from incarceration is in dispute, the Commissioner or Deputy Commissioner of Corrections shall refer the cases to the Board for hearing and resolution as provided under section 1052(c) of the act of July 16, 1968 (P. L. 351, No. 173) (61 P. S. § 1052(c)).

The provisions of this § 81.212 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.221 Forms.

Applications shall be made on forms prescribed by the Board. The forms shall be obtained from the Secretary for a fee as established by Board resolution, except that the fee will be waived by the Board upon evidence satisfactory to the Board that the applicant is unable by reason of indigency to pay the fee. The official form to proceed without payment of costs shall be obtained from the Secretary and filed in place of the fee.

The provisions of this § 81.221 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.222 Filing.

(a) The original application and ten copies shall be filed with the Secretary of the Board, 333 Market Street, 15th Floor, Harrisburg, Pennsylvania 17126-0333.

(b) It is the responsibility of an applicant who is not confined to furnish five passport type photographs with the application.

The provisions of this § 81.222 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.223 Limitations on filing.

(a) Except as provided in § 81.224 (relating to request for early filing), an application may not be filed before the expiration of 12 months from a final adverse decision on any prior application.

(b) If an application receives two consecutive adverse decisions, an application may not be filed before the expiration of 24 months from the last adverse decision.

The provisions of this § 81.223 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

This section cited in 37 Pa. Code § 81.224 (relating to request for early filing).

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.224 Request for early filing.

(a) A request for permission to file a subsequent application before the time provided in § 81.223 (relating to limitations on filing) may be granted upon prior approval of at least 3 members of the Board.

(b) The Board will respond to the applicant’s early filing request within 90 days.

The provisions of this § 81.224 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

This section cited in 37 Pa. Code § 81.223 (relating to limitations on filing).

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.225 Filing fee.

(a) Except in capital cases, a filing fee to be determined by the Board shall accompany the application.

(b) The Board may waive the filing fee upon proof of indigency. The official form to proceed without payment of the fee shall be obtained from the Secretary and filed in place of the fee.

The provisions of this § 81.225 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.226 Use of application.

(a) A copy of each application will be sent by the Board to the court, to the district attorney of the county from which the applicant was sentenced and to the correctional institution in which the applicant is confined to obtain expressions of opinions as to the merits of the application, and to the Board of Probation and Parole for its investigation.

(b) When the reports and opinions have been received, the members of the Board will review the case and a merit review vote will be conducted at a public hearing. If a public hearing is denied, the applicant will be notified of the final adverse decision in writing by the Secretary.

(c) If a public hearing is granted, the Board will make every reasonable effort to notify victims or next of kin, including providing notification to victims who are registered with the Office of Victim Advocate, Department of Corrections, Board of Probation and Parole and those whose whereabouts are otherwise known.

(d) Victims will be notified of their opportunity to offer prior comment regarding an application that has been granted a public hearing. Comment may be submitted in writing or presented orally in person. The Board will provide notice to the victims or next of kin of the date, time and place of a public hearing pertaining to their case. Written communications with the Board will be confidential.

The provisions of this § 81.226 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

This section cited in 37 Pa. Code § 81.228 (relating to subsequent use by applicant); and 37 Pa. Code § 81.272 (relating to notice).

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.227 Application to be public.

The application will be available for public inspection.

The provisions of this § 81.227 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.228 Subsequent use by applicant.

An applicant’s representative or any of the persons named in § 81.226 (relating to use of application) may obtain a copy of the last application filed by the applicant, upon payment of the costs of reproduction. The cost of reproduction will be determined by Board resolution. Board resolutions are available for public inspection at the Board’s office.

The provisions of this § 81.228 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.231 Listing for hearing.

(a) Noncapital cases. Applications are subject to merit review by the Board to determine if a public hearing will be granted. For prisoners serving life sentences or sentences for crimes of violence, a vote by a majority of the Board is required to grant a public hearing. In all other cases, except capital cases, two votes are required for a public hearing to be granted.

(b) Capital cases. Applicants seeking commutation of a death sentence will automatically receive a public hearing. Applications for commutation of death sentences shall be filed with the Board within 10 days of the Governor’s issuance of a warrant specifying a week for execution.

The provisions of this § 81.231 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

This section cited in 37 Pa. Code § 81.271 (relating to request).

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.232 Interview of the applicant.

(a) If a public hearing is granted to an applicant who is serving a sentence of death, life or a sentence for murder, voluntary manslaughter, attempt to commit murder or attempt to commit voluntary manslaughter, each member of the Board will interview the applicant prior to the public hearing.

(b) If a member does not interview the applicant, that member may not vote at the public hearing.

(c) The interview will be conducted at a time, place and in a manner that is convenient to the Board. The interview may be conducted by the Board as a group or by an individual member. The interview will be held in private. The applicant’s attorney or representative will be permitted to attend. Persons attending an interview are subject to the rules of the Department of Corrections concerning entry into a prison by members of the public. The interview shall be recorded by the Board. Subsequent use of the recording will be at the Board’s sole discretion.

The provisions of this § 81.232 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

This section cited in 37 Pa. Code § 81.301 (relating to recommendation).

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.233 Publication.

(a) For every application to be heard, the Board will publish a notice stating:

(1) The applicant’s true name and other names by which the applicant is or has been known.

(2) The crimes for which the applicant has applied for clemency.

(3) The institution, if any, in which the applicant is confined.

(4) The time and place of the public hearing at which the application will be heard.

(b) Except in capital cases, the notice described in subsection (a) will be made at least 1 week prior to the public hearing on the application. The notice will be published in a newspaper of general circulation in the county where the crimes were committed. If the Board meets in emergency session to consider an application in a capital case, 1 week prior notice may be impossible. If time permits, notice of public hearings in capital cases will be made as provided in subsection (a). Under all circumstances, at least 24 hour notice will be given.

The provisions of this § 81.233 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.241 Granting continuances.

A continuance may be granted by the Board on its own motion or by the Secretary upon the written request of the applicant or the applicant’s representative. Only one continuance will be granted at the applicant’s request.

The provisions of this § 81.241 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.251 Preparation.

The Secretary will prepare a calendar of the cases to be heard by the Board at each hearing.

The provisions of this § 81.251 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.252 Distribution.

Calendars will be sent to each applicant or applicant’s representative, the district attorney of the county from which the applicant was sentenced, the Commissioner of Corrections, the Board of Probation and Parole, victims of the offense for which the applicant has sought a pardon or commutation of sentence, and, at the discretion of the Secretary, to other interested parties.

The provisions of this § 81.252 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.261 Time.

The Board will meet in regular public hearings each month except the months of January, July and August except as may be otherwise determined by the Board. Public hearings may be canceled at the discretion of the Board. Notice of public hearings will be published in accordance with the Sunshine Act (65 P. S. § § 271—286).

The provisions of this § 81.261 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.262 Place.

Hearings will be held in Harrisburg or at other locations in this Commonwealth the Board may designate.

The provisions of this § 81.262 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.263 Nature of hearings.

Hearings will be public. The hearings are audio-recorded by the Board to preserve a record of the proceedings for use by the Board. Other recordings, including photographs, motion pictures, video recordings and audio recordings are prohibited, unless 24 hours prior notice is given to the Board’s Secretary.

The provisions of this § 81.263 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.271 Request.

(a) A request for reconsideration of any decision may be made to the Board. The applicant shall show a change in circumstances since the application was filed, or other compelling reasons, sufficient to justify reconsideration. Dissatisfaction with the Board’s decision is not grounds to request reconsideration.

(b) The Board will take action on requests for reconsideration at the next possible public hearing. Meritorious requests may be addressed by the Board upon a public motion by any member. A request for reconsideration will be granted only upon a majority vote of the Board. If the matter to be reconsidered is the denial of a public hearing, another merit review vote will be taken immediately in accordance with § 81.231 (relating to listing for hearing). The date of the original final adverse decision of the Board will be used in calculating eligibility for refiling.

The provisions of this § 81.271 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.272 Notice.

If reconsideration is granted, notice will be made to interested parties by regular mail as set forth in § 81.226 (relating to use of application).

The provisions of this § 81.272 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.281 Appearance of applicant.

An applicant, if confined, may not appear at the public hearing, but may designate another person to appear for the applicant. An applicant, if not confined, shall appear personally at the public hearing unless excused by the Board.

The provisions of this § 81.281 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.282 Representation of applicant.

The applicant may be represented by legal counsel or another person designated by the applicant. The applicant may also be represented by a legal guardian, next friend or other person authorized by law to act on behalf of the applicant. If confined, the applicant may request representation from the Department of Corrections.

The provisions of this § 81.282 amended under the act of June 1, 1995 (P. L. 1017, No. 15) (Spec. Sess. No. 1).

The provisions of this § 81.282 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929; amended March 31, 2006, effective April 1, 2006, 36 Pa.B. 1495. Immediately preceding text appears at serial page (227814).

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.283 Commonwealth attorney.

The attorney for the Commonwealth or a designee has the right, and is encouraged, to appear at the public hearings to offer the Commonwealth’s opinion.

The provisions of this § 81.283 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.291 Call of calendar.

Applications will be called in the order of their listing on the calendar unless the Board directs otherwise. If there is no answer when a case is called, it will be passed temporarily and then called at the end of the list. If there is no answer when it is called subsequently, it will not be heard at that session. The application may be relisted for the next possible session if the applicant or the applicant’s representative contacts the Secretary and requests a relisting.

The provisions of this § 81.291 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.292 Advocacy.

(a) Noncapital cases. Fifteen minutes will be allowed for the entire presentation in support of an application, and 15 minutes will be allowed for the entire presentation in opposition to an application.

(b) Capital cases. In capital cases, a maximum of 30 minutes will be allowed for the entire presentation in support of an application, and a maximum of 30 minutes will be allowed for the entire presentation in opposition to an application.

The provisions of this § 81.292 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.293 Witnesses.

The Board may request or subpoena a person to appear at the public hearing as a witness.

The provisions of this § 81.293 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.294 Communications with the Board.

A person who wants to provide information to the Board regarding the merits of an application shall communicate or correspond with the Secretary.

The provisions of this § 81.294 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.301 Recommendation.

(a) An application for pardon, or for remission of fines and forfeitures, and the granting of reprieves, or commutation of sentence, shall be approved by the Board at a public hearing by a majority vote of the members, prior to delivery of the written recommendation to the Governor for a decision. An application for a pardon or commutation of a death or life imprisonment sentence must be approved at a public hearing by a unanimous vote of the members, prior to delivery of the written recommendation to the Governor for a decision.

(b) When the applicant is serving a sentence described in § 81.232 (relating to interview of the applicant), a recommendation and Warrant of Commutation that is presented to the Governor shall include a requirement that the applicant serve at least 1 year in a prerelease center prior to release on parole unless transfer of the applicant to a prerelease center is not appropriate due to a certified terminal illness.

(d) Recommendations for a pardon may be made conditional by a majority vote by the Board.

(e) If it is the Board’s desire that the commutation or pardon be conditional, any recommended Warrant of Commutation or Charter of Pardon presented to the Governor shall include the following language:

‘‘Subsequent to this date, if it is determined, upon public hearing by the Board of Pardons, that (name) has committed a probation or parole violation or has been convicted of a new criminal offense, this grant of clemency may be rendered null and void by myself or by my successors in office.’’

(f) When notified of a subsequent criminal offense conviction, or probation or parole violation, the Secretary will inform the Board. The Board will then decide, on a case-by-case basis, whether to hold a public hearing regarding the suspected violation of the conditional pardon or commutation. After public hearing, a majority of the Board may recommend to the Governor that clemency be revoked.

The provisions of this § 81.301 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929; amended May 29, 1998, effective May 30, 1998, 28 Pa.B. 2500. Immediately preceding text appears at serial pages (227815) to (227816).

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.302 Notification of Board action.

Within 14 days following the public hearing, the applicant and the interested parties will be notified of the action by the Board.

The provisions of this § 81.302 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.303 Charter and warrant.

If the recommendation of the Board is approved by the Governor, the Secretary will prepare the proper Charter of Pardon or Warrant of Commutation for the signature of the Governor and for the attachment of the Seal of the Commonwealth and the attestation of the Secretary of the Commonwealth.

The provisions of this § 81.303 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

37 Pa. Code § 81.304 Record maintenance.

(a) Records, documents and files maintained by the Board are confidential except as provided in subsection (b).

(b) The following records are public: monthly calendars, minutes of public hearings, vote sheets of public hearings, completed applications and lists of actions taken by the Governor. The Board’s written recommendation to the Governor will be made public only after the Governor has acted on an application.

The provisions of this § 81.304 adopted April 18, 1997, effective April 19, 1997, 27 Pa.B. 1929.

History

Authority: The provisions of this Chapter 81 issued under section 909 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 81 amended through March 22, 1985, effective March 16, 1985, 15 Pa.

Subpart B Department of Corrections

Chapter 91 Administration

37 Pa. Code § 91.1 Definitions.

The following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise: Board—Pennsylvania Board of Probation and Parole. Community corrections center—A minimum-security community-oriented facility operated or contracted by the Department for the purpose of facilitating special programs. Contraband—Material listed as contraband in 18 Pa.C.S. § § 5122 and 5123 (relating to weapons or implements for escape; and contraband), the Department of Corrections Inmate Handbook, or any Department document that is disseminated to inmates, such as material that an inmate is prohibited from possessing or material that an inmate is permitted to possess that has been altered or is being used for something other than its intended purpose. Department—The Department of Corrections. Department of Corrections Inmate Handbook—A document that is to be disseminated to inmates that contains all rules that an inmate shall follow to avoid discipline. It is updated through dissemination of written materials to inmates that describe the rule change when a change is made, or by dissemination of a revised handbook. Diagnostic and classification center—Facilities designated to receive and classify persons who have been committed to the custody of the Department. Facility—An institution, motivational boot camp or community corrections center operated or contracted by the Department. Facility manager—The chief administrator of a facility, that is, the superintendent of an institution, the commander of a motivational boot camp or the director of a community corrections center. Inmate—A person committed to the custody of or confined by the Department. Resident—An inmate assigned to a community corrections center. Secretary—The Secretary of the Department.

The provisions of this § 91.1 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186).

The provisions of this § 91.1 amended December 21, 2001, effective December 22, 2001, 31 Pa.B. 6932; amended April 15, 2005, effective April 16, 2005, 35 Pa.B. 2279. Immediately preceding text appears at serial pages (286419) to (286420).

History

Authority: The provisions of this Chapter 91 issued under section 916 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 91 adopted August 14, 1971, 1 Pa.

37 Pa. Code § 91.2 Agency purpose.

It is the goal of the Department to operate its institutions and programs to provide protection to the community, a safe and humane environment and opportunities for rehabilitation for the inmates.

The provisions of this § 91.2 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186).

The provisions of this § 91.2 amended December 21, 2001, effective December 22, 2001, 31 Pa.B. 6932. Immediately preceding text appears at serial page (249002).

History

Authority: The provisions of this Chapter 91 issued under section 916 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 91 adopted August 14, 1971, 1 Pa.

37 Pa. Code § 91.3 Reception and discharge of inmates.

The Department will accept and confine those persons committed to it under lawful court orders which conform to 42 Pa.C.S. § 9762 (relating to sentencing proceeding; place of confinement) when information has been provided to the Department as required by 42 Pa.C.S. § 9764 (relating to information required upon commitment and subsequent disposition). The Department will also accept persons for whom transfer from other correctional facilities has been approved in advance by the Secretary or a designee, under section 1 of the act of July 11, 1923 (P. L. 1044, No. 425) (61 P. S. § 72). Commitments and transfers will be accepted only during the facility’s normal business hours, except upon prior approval of the facility manager or a designee.

The provisions of this § 91.3 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186).

The provisions of this § 91.3 amended December 21, 2001, effective December 22, 2001, 31 Pa.B. 6932. Immediately preceding text appears at serial page (249002).

History

Authority: The provisions of this Chapter 91 issued under section 916 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 91 adopted August 14, 1971, 1 Pa.

37 Pa. Code § 91.4 Catchment areas.

Male inmates committed to the custody of the Department will be received at male diagnostic and classification centers and female inmates will be received at female diagnostic and classification centers unless granted other permission in advance by the Secretary or a designee.

The provisions of this § 91.4 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186).

The provisions of this § 91.4 amended December 21, 2001, effective December 22, 2001, 31 Pa.B. 6932. Immediately preceding text appears at serial pages (249002) to (249003).

History

Authority: The provisions of this Chapter 91 issued under section 916 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 91 adopted August 14, 1971, 1 Pa.

37 Pa. Code § 91.6 Use of force and restraints.

(a) Force and restraints will be used by corrections personnel only to accomplish legitimate penological and law enforcement objectives.

(1) A staff member may not use any greater force against an inmate than is necessary to protect the staff member or others from bodily harm or to protect property from damage or destruction or to prevent a criminal act or to effect compliance with rules when other methods of control are ineffective.

(2) A staff member may only use deadly force against an inmate when that force is necessary to prevent death, serious bodily harm to the staff member or others, or to prevent one or more of the following:

(i) An escape from a correctional facility other than a community corrections center or while in immediate pursuit of an inmate escaping from a correctional facility other than a community corrections center.

(ii) An escape from a work detail, transport or other approved temporary absence when deadly force is necessary to prevent the escape and the inmate has been convicted of an offense involving the threat of physical force or violence against any individual.

(3) A staff member may use force against an inmate when he reasonably believes that force is necessary to prevent the escape of an inmate or to recapture an escaped inmate.

(4) Instruments of restraint will only be used as a precaution against escape, as protection against an inmate injuring himself or others or on medical grounds at a doctor’s direction.

(b) Neither force nor restraints will be used for punishment or revenge.

(c) Use of chemical munitions will be closely controlled. Appropriate medical attention will be provided for any person involved in an incident where chemical munitions were used. Staff will follow the procedures set forth in DC-ADM 201—Use of Force—as to the availability and storage, method of use, training, medical staff role and reporting of the use of chemical munitions.

The provisions of this § 91.6 amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186).

The provisions of this § 91.6 amended April 15, 2005, effective April 16, 2005, 35 Pa.B. 2279. Immediately preceding text appears at serial pages (286421) to (286422).

Effect of Regulations

The administrative regulations, found in 37 Pa. Code § § 91.1—91.6, do not create rights in prison inmates; rather the administrative regulations create rules for corrections officers to follow in the performance of their duties. Commonwealth ex rel. Buehl v. Price, 705 A.2d 933 (Pa. Cmwlth. 1998); appeal denied 727 A.2d 1123 (Pa. 1998).

Validity of Restraint Policy

New prison restraint policy (behind-the-back handcuffing applied to all death-sentenced inmates for all out-of-cell movements) did not violate administrative regulation even though the inmate’s complaint indicates that the new policy was imposed after contraband was found in the unit housing death-sentenced inmates and that the new policy constituted a concession to corrections officers’ union, which had long been requesting the new policy, because the implementation of the new restraint policy was imposed to accomplish legitimate penological objectives, and does not evidence a retaliatory animus designed to penalize death-sentenced inmates. Commonwealth v. Price, 705 A.2d 933 (Pa. Cmwlth. 1998).

History

Authority: The provisions of this Chapter 91 issued under section 916 of The Administrative Code of 1929 (71 P.
Source: The provisions of this Chapter 91 adopted August 14, 1971, 1 Pa.

Chapter 96 Recidivism Risk Reduction Incentive—Statement of Policy

37 Pa. Code § 96.1 Authority and purpose.

(a) On September 25, 2008, the RRRI was established under the act. The RRRI seeks to improve public safety by encouraging eligible offenders to complete programs that scientific evidence suggests may reduce the risk that the offender will commit a future crime. Eligible offenders generally are low-risk offenders who have not committed personal injury crimes as defined in the Crime Victims Act (18 P. S. § § 11.101—11.5102), any violation of 18 Pa.C.S. Chapter 61 (relating to the Uniform Firearms Act) or certain other enumerated offenses. A judge sentencing an eligible offender to confinement in the Department generally is required to impose both a traditional minimum sentence and an RRRI minimum sentence equal to 3/4 of the minimum sentence if the traditional minimum sentence is 3 years or less and to 5/6 of the minimum sentence if the traditional minimum sentence is greater than 3 years.

(b) The Department will conduct an assessment of the treatment needs and risks of eligible offenders it receives using Nationally recognized assessment tools. The results of the assessment will be used to develop a program plan that is designed to reduce the risk of recidivism using RRRI programs. An RRRI program is a program that scientific evidence suggests may reduce the risk that an offender will commit additional crimes. An offender who successfully completes the program plan, maintains a good conduct record and continues to remain an eligible offender can be paroled on the RRRI minimum sentence date unless the Board determines that parole would present an unreasonable risk to public safety or that other specified conditions have not been satisfied.

(c) This chapter was established under the acts, and is intended to inform judges, prosecutors, defense counsel, defendants, court personnel and the general public about the RRRI.

History

Authority: The provisions of this Chapter 96 issued under 44 Pa.
Source: The provisions of this Chapter 96 adopted April 3, 2009, effective April 4, 2009, 39 Pa.

37 Pa. Code § 96.2 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—44 Pa.C.S. Chapter 53 (relating to recidivism risk reduction incentive). Board—The Pennsylvania Board of Probation and Parole. Court—The trial judge exercising sentencing jurisdiction over an eligible offender under the act or the president judge or the president judge’s designee if the original trial judge is no longer serving as a judge of the sentencing court. Defendant—An individual charged with a criminal offense. Department—The Department of Corrections of the Commonwealth. Eligible offender—A defendant or prisoner convicted of a criminal offense who will be committed to the custody of the Department and who meets the following eligibility requirements:

(i) Does not demonstrate a history of present or past violent behavior.

(ii) Has not been subject to a sentence the calculation of which includes an enhancement for the use of a deadly weapon as defined under law or the sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing, or the attorney for the Commonwealth has not demonstrated that the defendant has been found guilty of or was convicted of an offense involving a deadly weapon or offense under 18 Pa.C.S. Chapter 61 (relating to firearms and other dangerous articles) or the equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.

(iii) Has not been found guilty or previously convicted or adjudicated delinquent for or an attempt or conspiracy to commit a personal injury crime as defined under section 103 of the Crime Victims Act (18 P. S. § 11.103), or an equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.

(iv) Has not been found guilty or previously convicted or adjudicated delinquent for violating any of the following provisions or an equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation:

(A) 18 Pa.C.S. § 4302 (relating to incest).

(B) 18 Pa.C.S. § 5901 (relating to open lewdness).

(D) 18 Pa.C.S. § 6318 (relating to unlawful contact with minor).

(E) 18 Pa.C.S. § 6320 (relating to sexual exploitation of children).

(F) 18 Pa.C.S. Chapter 76, Subchapter C (relating to Internet child pornography).

(G) Received a criminal sentence under 42 Pa.C.S. § 9712.1 (relating to sentences for certain drug offenses committed with firearms).

(H) Any offense listed under 42 Pa.C.S. § 9795.1 (relating to registration).

(v) Is not awaiting trial or sentencing for additional criminal charges, if a conviction or sentence on the additional charges would cause the defendant to become ineligible under this definition.

(vi) Has not been found guilty or previously convicted of violating section 13(a)(3)(14), or (37) of The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. § 780-113(a)(14)(3) or (37)), when the sentence was imposed under 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii) (relating to drug trafficking sentencing and penalties). Program plan—An individualized plan recommended by the Department that contains approved treatment and other approved programs designed to reduce recidivism risk of a specific prisoner. RRRI—Recidivism Risk Reduction Incentive.

History

Authority: The provisions of this Chapter 96 issued under 44 Pa.
Source: The provisions of this Chapter 96 adopted April 3, 2009, effective April 4, 2009, 39 Pa.

37 Pa. Code § 96.3 RRRI programs.

(a) Before designating a program as an RRRI program, the Department will publish for public comment a detailed description of the program, the types of offenders who will be eligible to participate in the program, the name and citation of research reports that demonstrate the effectiveness of the proposed program and the name and address of a Department contact person responsible for receiving public comment. Publication will be made by placing the description on the Department’s public web site (www.cor.state.pa.us) as well as publishing the description in the Pennsylvania Bulletin and delivering a copy of the list to the Judiciary Committee of the Senate, the Judiciary Committee of the House of Representatives, the Board, the Pennsylvania Commission on Sentencing and the Victim Advocate.

(b) Public comment will be received for at least 60 days following the date of publication in the Pennsylvania Bulletin. The Department will consider public comment received prior to designating a program as an RRRI program.

History

Authority: The provisions of this Chapter 96 issued under 44 Pa.
Source: The provisions of this Chapter 96 adopted April 3, 2009, effective April 4, 2009, 39 Pa.

37 Pa. Code § 96.4 Commitment documents.

The Department’s Court Commitment Form (DC-300B) has been modified to enable the entry of the traditional minimum sentence, an RRRI minimum sentence and a maximum sentence. The DC-300B also includes an area in which court officials can indicate if the attorney for the Commonwealth waived the eligibility requirements. The DC-300B is included in the Administrative Office of the Pennsylvania Courts’ electronic docketing system.

History

Authority: The provisions of this Chapter 96 issued under 44 Pa.
Source: The provisions of this Chapter 96 adopted April 3, 2009, effective April 4, 2009, 39 Pa.

37 Pa. Code § 96.5 Assessment and program plan.

(a) The Department will assess the treatment needs and risks of every defendant sentenced to an RRRI minimum sentence. Assessments will be made using Nationally-recognized assessment tools that have been normed and validated.

(b) The Department will develop a program plan designed to reduce the risk of recidivism through the use of RRRI programs that are appropriate for the particular defendant. The program plan may also include non-RRRI programs that the Department in its sole discretion believes are appropriate for the particular defendant.

(c) Each defendant sentenced to an RRRI minimum sentence will be advised and asked to acknowledge that he is required to successfully complete the program plan. If the defendant refuses to sign the acknowledgement, a Department staff member will note the refusal to sign the acknowledgement.

History

Authority: The provisions of this Chapter 96 issued under 44 Pa.
Source: The provisions of this Chapter 96 adopted April 3, 2009, effective April 4, 2009, 39 Pa.

37 Pa. Code § 96.6 Notification to the Board and certification.

(a) The Department will, in a manner agreed to between the Board and the Department, inform the Board when a defendant who is scheduled for parole review is serving an RRRI minimum sentence.

(b) For each defendant serving an RRRI minimum sentence, the Department will, in a manner agreed to between the Board and the Department, and if appropriate, certify to the Board that the following conditions have been met:

(1) The Department conducted an appropriate assessment of the treatment needs and risks of the defendant using Nationally-recognized assessment tools that have been normed and validated.

(2) The Department developed a program plan based upon the assessment that was designed to reduce the risk of recidivism through the use of RRRI programs authorized and approved under the act that were appropriate for the particular defendant.

(3) The Department advised the defendant that he was required to successfully complete the program plan.

(4) The defendant successfully completed all required RRRI programs or other programs designated in the program plan.

(5) The defendant maintained a good conduct record following imposition of the RRRI minimum sentence. For purposes of this paragraph, generally a defendant may be deemed to have maintained good conduct if he incurred no more than one Class 1 misconduct or two Class 2 misconducts while incarcerated with the Department. However, reviewing staff shall have discretion to certify or refuse to certify that a defendant maintained good conduct based upon the totality of the defendant’s conduct with the Department.

(6) The defendant continues to be an eligible offender.

(c) The Department will continue to monitor the factors in subsection (b) until the defendant has been actually released from custody and will notify the Board of any material change in one or more of the factors.

History

Authority: The provisions of this Chapter 96 issued under 44 Pa.
Source: The provisions of this Chapter 96 adopted April 3, 2009, effective April 4, 2009, 39 Pa.

Chapter 97 State Intermediate Punishment Drug Offender Treatment Program

37 Pa. Code § 97.101 Authority and purpose.

(a) This chapter is published under the act and establishes the DOTP administered by the Department. This chapter is intended to inform judges, prosecutors, defense counsel, defendants and the general public about the DOTP.

(b) The DOTP is a form of State intermediate punishment that provides a sentencing alternative for a person who commits a drug-related offense as defined in the act. The DOTP offers a sentencing alternative that punishes a person who commits a drug-related offense, but also provides treatment that offers the opportunity for the person to address the drug or alcohol addiction or abuse issues related to their criminal behavior.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.102 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—42 Pa.C.S. Chapter 99 (relating to State intermediate punishment) establishing the DOTP. Commission—The Pennsylvania Commission on Sentencing. Community-based therapeutic community—A long-term residential addiction treatment program licensed by the Department of Health to provide addiction treatment services using a therapeutic community model, determined by the Department to be qualified to provide addiction treatment to eligible offenders and accredited as a therapeutic community for the treatment of drug and alcohol abuse and addiction by the Commission on Accreditation of Rehabilitation Facilities or another Nationally-recognized accreditation organization for community-based therapeutic communities for drug and alcohol treatment. Community corrections center—A residential program that is supervised and operated by the Department for inmates with prerelease status or who are on parole. Court—The trial judge exercising sentencing jurisdiction over an eligible offender under this chapter or the president judge if the original trial judge is no longer serving as a judge of the sentencing court. Defendant—An individual charged with a drug-related offense. Department—The Department of Corrections of the Commonwealth. DOTP—Drug Offender Treatment Program—An individualized treatment program established by the Department consisting primarily of drug and alcohol addiction treatment that satisfies the terms and conditions in section 9905 of the act (relating to drug offender treatment program). Drug-related offense—A criminal offense for which the defendant is convicted and that the court determines was motivated by the defendant’s consumption of or addiction to alcohol or a controlled substance, counterfeit, designer drug, drug, immediate precursor or marijuana, as those terms are defined in The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. § § 780-101—780-143). Eligible offender—

(i) Under 42 Pa.C.S. § 9721(a.1) (relating to sentencing generally), a defendant designated by the sentencing court as a person convicted of a drug-related offense who:

(A) Has undergone an assessment performed by the Department which assessment has concluded that the defendant is in need of drug and alcohol addiction treatment and would benefit from commitment to a drug offender treatment program and that placement in a drug offender treatment program would be appropriate.

(B) Does not demonstrate a history of present or past violent behavior.

(D) Provides written consent permitting the release of information pertaining to the defendant’s participation in a drug offender treatment program.

(ii) The term does not include a defendant who is subject to a sentence the calculation of which includes an enhancement for the use of a deadly weapon, as defined under law or the sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing, or a defendant who has been convicted of a personal injury crime as defined in section 103 of the Crime Victims Act (18 P. S. § 11.103), or an attempt or conspiracy to commit such a crime or who has been convicted of violating 18 Pa.C.S. § § 4302, 5901, 6312, 6318 and 6320 or Chapter 76, Subchapter C (relating to Internet child pornography). Expulsion—The permanent removal of a participant from a drug offender treatment program. Group home—A residential program that is contracted out by the Department to a private service provider for inmates with prerelease status or who are on parole. Individualized drug offender treatment plan—An individualized addiction treatment plan within the framework of the drug offender treatment program. Institutional therapeutic community—A residential drug treatment program in a State correctional institution, accredited as a therapeutic community for treatment of drug and alcohol abuse and addiction by the American Correctional Association or other Nationally-recognized accreditation organization for therapeutic community drug and alcohol addiction treatment. Outpatient addiction treatment facility—An addiction treatment facility licensed by the Department of Health and designated by the Department as qualified to provide addiction treatment to criminal justice offenders. Participant—An eligible offender actually sentenced to State intermediate punishment under 42 Pa.C.S. § 9721(a)(7). Transitional residence—A residence investigated and approved by the Department as appropriate for housing a participant in a DOTP.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.103 Commitment for assessment.

(a) Prior to imposing sentence, the court may, upon motion of the Commonwealth and agreement of the defendant, commit a defendant to the custody of the Department for the purpose of evaluating whether the defendant would benefit from a DOTP and whether placement in a DOTP is appropriate.

(b) The committing county shall deliver a defendant committed to the custody of the Department for purposes of an evaluation to the institution the Department has designated for reception of inmates from that county. The defendant shall be housed in a State correctional institution while undergoing the evaluation. The following documents shall be delivered to the Department simultaneously with the defendant’s arrival. The Department may refuse to accept for evaluation a defendant who is delivered to the Department by the county without all the documents listed as follows:

(1) A certified copy of the order committing the defendant to the Department’s custody for purposes of an evaluation.

(2) A summary of the offense for which the inmate has been convicted, including the criminal complaint and police report summarizing the facts of the crime, if available, or a copy of the affidavit of probable cause accompanying the arrest warrant.

(3) A record of the defendant’s adjustment in the county correctional facility, including, misconducts and escape history.

(4) Any current medical or psychological condition requiring treatment, including, suicide attempts.

(5) Any medical admission testing performed by the county and the results of those tests, including, hepatitis, HIV/AIDS, tuberculosis or other infectious disease testing.

(6) A notice of current and previously administered medications. The notice must include the name and dosage of the medications provided to the inmate while incarcerated in the county as well as over-the-counter medications used by the inmate and known to the county. The notice must list medications provided or used during the preceding calendar year.

(7) A 48 hour supply of current medications.

(c) Within 7 days of delivery of the defendant to the Department for an evaluation, the committing county shall provide the Department with the following:

(1) A summary of the disposition of all arrests noted on the defendant’s record of arrest and prosecution (RAP Sheet).

(2) Any available information regarding the defendant’s history of drug or alcohol abuse, addiction or treatment, including any evaluation performed using Court Reporting Network instruments or other evaluation techniques deemed appropriate by the court under 75 Pa.C.S. § 3816 (relating to requirements for driving under the influence offenders) or any other provision of law.

(3) A presentence investigation when available or if a presentence investigation cannot be completed, the official version of the crime for which the offender was convicted or a copy of the guilty plea transcript or a copy of the preliminary hearing transcript.

(4) A copy of the guideline sentence form issued by the Commission.

(5) Other information the court deems relevant to assist the Department with its assessment of the defendant.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.104 Assessment of addiction and other treatment needs.

(a) The Department will conduct a risk assessment and assess the addiction and other treatment needs of a defendant committed to its custody for purposes of an evaluation.

(1) The assessment of addiction shall be conducted using a Nationally-recognized assessment instrument or an instrument that has been normed and validated on the Department’s inmate population by a recognized expert in these matters.

(2) For purposes of this section the term ‘‘recognized expert’’ means an individual who has earned the Doctor of Philosophy or the similar terminal degree in his field of study and who has published a number of peer reviewed validation studies.

(3) The Department currently uses the Texas Christian University Drug Screen II, an instrument that was developed under a Federal grant specifically for criminal offenders, is consistent with the DSM-IV criteria for substance abuse/dependence and is used by a number of criminal justice agencies. The Department’s criteria for selecting an assessment instrument are that:

(i) The instrument must be supported by strong academic research.

(ii) The instrument correspond with the then current DSM criteria for substance abuse or addiction, or both.

(iii) When possible, the instrument produces results that are statistically as reliable as results produced by the Texas Christian University Drug Screen II.

(4) The instrument will be administered by persons skilled in the treatment of drug and alcohol addiction and trained to conduct assessments. The assessment will be reviewed and approved by a supervisor with at least 3 years of experience providing drug and alcohol counseling services. An individual will be considered skilled in the treatment of drug and alcohol addiction if they have 1 year of experience as a Commonwealth Drug and Alcohol Treatment Specialist 1, or 2 years of professional experience providing drug and alcohol counseling services directly to clients in a social work setting and have earned a bachelor’s degree that includes 18 credits in the behavioral sciences or 1 year of paraprofessional and 1 year of professional experience providing drug and alcohol counseling services directly to clients in a social work setting and are certified by the Pennsylvania Chemical Abuse Certification Board as a ‘‘Certified Addictions Counselor’’ or 1 year of professional experience providing drug and alcohol counseling services directly to clients in a social work setting and a master’s degree with major coursework in addictions science, psychology or social work or an equivalent combination of experience and training which includes 18 college credits in the behavioral sciences. An individual will be considered trained to conduct assessments if the individual has completed the Department’s internal training program in performing assessments or has equivalent experience and knowledge.

(b) The Department will provide a report of its assessment to the court, the defendant, the attorney for the Commonwealth and the Sentencing Commission within 60 days of the commitment of the defendant to the Department for purposes of evaluation. If the Department determines that the defendant will benefit from a DOTP and placement in a DOTP is appropriate, the report will include a proposed DOTP detailing the type of treatment proposed for the defendant. If the Department determines that the defendant will not benefit from a DOTP or that placement in a DOTP is inappropriate, the report will set forth the reasons for the Department’s determination.

(c) The Department encourages resolution of as many unresolved charges against the defendant as possible prior to commitment for an evaluation. Resolution of unresolved charges, including arrests that appear on a defendant’s RAP sheet for which a disposition is not noted, assists the Department in completing an evaluation in a timely fashion. The Department will reconsider its report if the defendant has been deemed inappropriate for a DOTP because of unresolved charges or because the disposition of all arrests on the defendant’s RAP sheet is not known and the committing county provides the Department with the resolution of the charges or disposition of the arrests.

(d) The act provides that the court may not modify or alter the terms of the Department’s proposed DOTP without the agreement of the Department and attorney for the Commonwealth. See section 9904(f) of the act (relating to referral to State Intermediate Punishment Program). A request for modification of the terms of a proposed DOTP shall be sent to the Deputy Superintendent for the Diagnostic and Classification Center at the State Correctional Institution at Camp Hill for male inmates and the Deputy Superintendent for Centralized Services at the State Correctional Institution at Muncy for female inmates.

(e) The sheriff or an agent shall return to the committing county a defendant whom the Department determines will not benefit from a DOTP or is inappropriate for placement in a DOTP within 60 days of the Department’s determination.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.105 DOTP Selection Committee.

(a) The Participant Selection Committee shall consist of the Diagnostic and Classification Center Director or a designee, the Deputy Superintendent responsible for the Diagnostic and Classification Center or a designee, and the Chief of the Department’s Central Office Treatment Division or a designee.

(b) The Participant Selection Committee shall apply the participant selection criteria to determine whether a defendant will benefit from a DOTP and whether the participant’s placement in a DOTP is appropriate.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.106 Participant selection criteria.

(a) An eligible offender, as that term is defined in the act, may be selected to be a participant in a DOTP. The Participant Selection Committee will consider all information relevant to determining which defendants are most likely to benefit from a DOTP by becoming productive, law-abiding members of society by addressing their abuse of or addiction to alcohol or other drugs. Selection criteria will include, but not necessarily be limited to, the following:

(1) Information furnished to the Department by the sentencing court.

(2) The results of the assessment of addiction and other treatment needs conducted by the Department.

(3) The length of the sentence that would be typically imposed under the standard range of the sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing.

(4) The eligible offender’s motivation to participate meaningfully in a DOTP.

(5) Whether the eligible offender has provided to the Department written consent permitting the release of information pertaining to the eligible offender’s participation in a DOTP.

(6) The eligible offender’s criminal history.

(7) The eligible offender’s escape or parole absconder history.

(8) The eligible offender’s institutional adjustment during current and prior incarcerations.

(9) The availability of the Department’s programming resources.

(b) An eligible offender does not have a right to placement in a DOTP. A DOTP is intended to assist defendants to become productive, law-abiding members of society and is not intended to be a means for a defendant simply to serve a shorter sentence. The goal of the Participant Selection Committee will be to select those defendants it believes will most likely benefit from a DOTP by becoming productive, law-abiding members of society while allowing the Department to use its available programming resources efficiently and effectively. The number of participants selected for a DOTP will be the number that the Participant Selection Committee believes will neither under use nor overtax the available programming resources.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.107 Drug offender treatment program.

(a) A DOTP developed for a defendant shall be designed to address the defendant’s individually assessed drug and alcohol abuse and addiction needs and other issues essential to the defendant’s successful reintegration into the community, including, education and employment issues.

(b) A DOTP developed for a defendant shall be 24 months in duration and include the following:

(1) A period of confinement in a State correctional institution of at least 7 months, including the assessment period prior to the imposition of sentence and a period of at least 4 months during which the defendant shall be placed in an institutional therapeutic community.

(2) A period of treatment in a community-based therapeutic community of at least 2 months.

(3) A period of at least 6 months treatment through an outpatient addiction treatment facility.

(4) A period of supervised reintegration into the community for the balance of the DOTP.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.108 Confinement in a State correctional institution.

(a) The Department will accommodate requests to conduct sentencing proceedings for persons committed to its custody by means of videoconferencing or teleconferencing subject to equipment and staff availability. A defendant who is not sentenced by means of videoconferencing or teleconferencing, but is sentenced to a DOTP following an evaluation and recommendation by the Department, shall be delivered to the institution the Department has designated for reception of inmates from the committing county. The defendant will be considered to be a participant upon receipt by the Department.

(b) The participant will be required to begin his individual DOTP while housed in a State correctional institution and may be required to begin additional programming intended to address other treatment needs identified during the participant’s incarceration.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.109 Program advancement and regression.

(a) An individual DOTP contemplates that a participant will advance through treatment provided in progressively less restrictive treatment settings. The Department anticipates that some participants who have progressed to a less restrictive treatment setting will benefit from an additional period of treatment or confinement in a more restrictive setting or location. Consistent with the minimum time requirements set forth in the act, the Department may transfer a participant to a State correctional institution, an institutional therapeutic community, a community-based therapeutic community, an outpatient addiction treatment program or an approved transitional residence. The Department may transfer a participant between less restrictive and more restrictive settings based upon the participant’s progress or regression in treatment or for medical, disciplinary or other administrative reasons.

(b) The Chief of the Department’s Central Office Treatment Division or a designee will determine whether a participant will be transferred to a different setting or location. The Department’s goal will be to take the action that it believes will maximize the use of programming resources by continuing to treat those participants it believes will most likely complete and benefit from a DOTP by becoming productive, law-abiding members of society while allowing the Department to use its available programming resources efficiently and effectively.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.110 Community-based therapeutic community.

(a) A participant who successfully completes the institutional therapeutic community portion of his DOTP and any required additional programming will be placed in a community-based therapeutic community. Placement in a community-based therapeutic community will not necessarily be made immediately upon successful completion of the institutional therapeutic community and any additional required programming, but will be made in sufficient time to permit the participant to complete the remaining portions of his DOTP.

(b) The participant will be required to continue engaging in his individual DOTP while housed in a community-based therapeutic community and may be required to participate in additional programming intended to address other treatment needs identified during his incarceration.

(c) The treatment staff of the community-based therapeutic community shall provide the Department with an informational report concerning the participant’s progress toward completion of the community-based treatment portion of the participant’s DOTP at the conclusion of the participant’s first 2 months in the community-based therapeutic community. The report must include a recommendation whether the participant has progressed sufficiently to begin the outpatient addiction treatment portion of his DOTP, if the participant should continue in the community-based treatment community, be returned to the institutional therapeutic community or to a State correctional institution or be expelled from the DOTP. The report must include specific reasons supporting the recommendation and a suggested plan for addressing any treatment deficiencies noted. The report shall be transmitted to the Chief of the Department’s Central Office Treatment Division or a designee.

(d) The Department will not be limited to approving or disapproving the recommendation of the community-based therapeutic community treatment staff and may select alternatives not recommended by the treatment staff.

(e) The Department may require the treatment staff of the community-based therapeutic community to submit reports in addition to the report required by subsection (c).

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.111 Outpatient addiction treatment facility.

(a) A participant who successfully completes the community-based therapeutic community and any additional required programming will be assigned to an outpatient addiction treatment facility. Assignment to an outpatient addiction treatment facility will not necessarily be made immediately upon successful completion of the community-based therapeutic community and any additional required programming, but will be made in sufficient time to permit the participant to complete the remaining portions of the participant’s DOTP. A participant may reside in a community corrections center, group home or an approved transitional residence while assigned to an outpatient addiction treatment facility program, but will not be permitted to begin residing in a group home or an approved transitional residence until the Department has completed its investigation, review and approval of the residence.

(b) A participant will be required to continue his individual DOTP while assigned to an outpatient addiction treatment facility program and may be required to participate in additional programming intended to address other treatment needs identified during his incarceration.

(c) The treatment staff of the outpatient addiction treatment facility shall provide the Department with an informational report concerning the participant’s progress toward completion of the outpatient addiction treatment portion of his DOTP at the conclusion of the participant’s first 6 months of treatment with the outpatient addiction treatment facility. The report must include a recommendation whether the participant has progressed sufficiently to begin his supervised reintegration into the community, if the participant should continue treatment with the outpatient addiction treatment facility, be returned to a community-based treatment community, institutional therapeutic community or to a State correctional institution or be expelled from the DOTP. The report must include specific reasons supporting the recommendation and a suggested plan for addressing any treatment deficiencies noted. The report shall be transmitted to the Chief of the Department’s Central Office Treatment Division or a designee.

(d) The Department will not be limited to approving or disapproving the recommendation of the outpatient addiction treatment facility treatment staff and may select alternatives not recommended by the treatment staff.

(e) The Department may require the treatment staff of the outpatient addiction treatment program to submit reports in addition to the report required by subsection (c).

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.112 Supervised reintegration into the community.

(a) A participant who successfully completes treatment through an outpatient addiction treatment facility and any additional required programming will begin supervised reintegration into the community for the remaining portion of his DOTP. The participant may continue or be permitted to begin to reside in a community corrections center, group home or an approved transitional residence during the period of supervised reintegration into the community, but will not be permitted to begin residing in an approved transitional residence until the Department has completed its investigation, review and approval of the residence.

(b) A participant residing in an approved transitional residence will be supervised by the Department during the remainder of his DOTP. The participant will be required to comply with any conditions imposed by the Department while residing in an approved transitional residence including abstaining from the use of alcohol or other drugs, submitting urine, hair or other samples the Department requests to monitor the participant’s use of alcohol or other drugs and engaging in additional treatment or programming required by the Department.

(c) A participant will continue to be subject to the treatment and disciplinary sanctions in § § 97.113 and 97.114 (relating to treatment sanctions; and disciplinary sanctions) while residing in an approved transitional residence.

(d) The Department will notify the sentencing court, the attorney for the Commonwealth and the Commission when the participant successfully completes the DOTP.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.113 Treatment sanctions.

(a) A participant who tests positive for the use of alcohol or other drugs shall receive a hearing according to the procedures in the Department’s inmate disciplinary policy. If the hearing examiner or community corrections hearing committee, as applicable, determines that the participant used alcohol or other drugs, the participant shall be subject to the following sanctions:

(1) A participant housed in a State correctional institution or institutional therapeutic community shall be expelled from the DOTP and housed as the Department deems appropriate pending further action by the sentencing court.

(2) A participant receiving treatment through a community-based therapeutic community, outpatient addiction treatment facility or during supervised reintegration to society shall be evaluated by the Department. The participant shall be housed as the Department deems appropriate pending completion of the evaluation. Following the evaluation, the participant may be placed in the treatment setting deemed appropriate by the Chief of the Department’s Central Office Treatment Division or a designee or suspended or expelled from the DOTP.

(b) Subject to the time limitations set forth in the act, a participant who requests assistance because he believes he is in danger of relapsing will be given the opportunity to receive treatment in a more restrictive treatment setting as deemed appropriate by the Chief of the Department’s Central Office Treatment Division or a designee.

(c) For purposes of this section, the term ‘‘other drugs’’ means a controlled substance, counterfeit, designer drug, drug, immediate precursor or marihuana as those terms are defined in The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. § § 780-101—780-143) or any prescription drug that has not been prescribed for the individual using the prescription drug.

This section cited in 37 Pa. Code § 97.112 (relating to supervised reintegration into the community); and 37 Pa. Code § 97.116 (relating to expulsion from a DOTP).

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.114 Disciplinary sanctions.

(a) A participant who is alleged to have violated the Department’s disciplinary rules, shall receive a hearing according to the procedures in the Department’s inmate disciplinary policy.

(b) If the hearing examiner or community corrections hearing committee, as applicable, determines that the participant committed a Class 1 or Class 2 misconduct, the Chief of the Department’s Central Office Treatment Division or a designee will determine whether the participant will be suspended or expelled from the DOTP, sanctioned according to the Department’s inmate disciplinary policy or be subject to other sanctions deemed appropriate.

This section cited in 37 Pa. Code § 97.112 (relating to supervised reintegration into the community); and 37 Pa. Code § 97.116 (relating to expulsion from a DOTP).

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.115 Suspension from a DOTP.

(a) A participant who violates the conditions of his DOTP, other than by testing positive for the use of alcohol or other drugs or by committing a violation of the Department’s disciplinary rules, may be suspended from participation in a DOTP.

(b) The Department’s goal in determining whether to suspend a participant from a DOTP will be to take the action it believes will maximize the efficient and effective use of programming resources by continuing to treat those participants it believes will most likely complete and benefit from a DOTP by becoming productive, law-abiding members of society if permitted to participate in continued treatment after a period of suspension.

(c) The Chief of the Department’s Central Office Treatment Division or a designee will be responsible for determining whether to suspend a participant from a DOTP. The determination whether to suspend a participant from a DOTP may be based upon any information deemed appropriate by the Chief of the Department’s Central Office Treatment Division or a designee.

(d) A participant who is suspended from participation in a DOTP will be housed in the setting deemed appropriate by the Chief of the Department’s Central Office Treatment Division or a designee and shall comply with the Department’s rules and any conditions imposed during the period of suspension. The Chief of the Department’s Central Office Treatment Division or a designee will determine the participant’s program status upon completion of the suspension.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.116 Explusion from a DOTP.

(a) In addition to the provisions of § § 97.113 and 97.114 (relating to treatment sanctions; and disciplinary sanctions), a participant who violates the conditions of his DOTP or who is not constructively participating in his DOTP or who will be unable to complete his DOTP within the period remaining on his 24 months sentence may be expelled from participation in a DOTP.

(b) The Department’s goal in determining whether to expel a participant from a DOTP will be to take the action it believes will maximize the efficient and effective use of programming resources by continuing to treat those participants it believes will most likely complete and benefit from a DOTP by becoming productive, law-abiding members of society if permitted to participate in continued treatment after being subject to sanctions or a period of suspension, or both.

(c) The Chief of the Department’s Central Office Treatment Division or a designee will be responsible for determining whether to expel a participant from a DOTP. The determination whether to expel a participant from a DOTP may be based upon any information deemed appropriate by the Chief of the Department’s Central Office Treatment Division or a designee.

(d) A participant who has been expelled from a DOTP may file a grievance with the Deputy Secretary for Reentry and Specialized Programs within 10 calendar days of the date of the expulsion.

(1) The grievance must be legible and the statement of facts may not exceed two pages.

(2) A participant is responsible for including all required documentation with the grievance. Failure to provide relevant documentation may result in the grievance being dismissed.

(3) A participant who is indigent as defined in Department policy DC-ADM 803, ‘‘Inmate Mail and Incoming Publications,’’ will be afforded copy service and legal postage up to a maximum of $10 per month and all moneys received in the inmate’s account shall be used to pay for the cost of the copies and legal postage. A nonindigent inmate will incur copying charges in accordance with Department policy 3.1.1, ‘‘Fiscal Administration.’’

(4) Documents submitted in support of a grievance will not be returned. The participant should make copies of supporting documents for submission to final review.

(5) The Deputy Secretary for Reentry and Specialized Programs may decide the grievance based upon the documentation presented as well as other information contained within the Department’s files and may interview the inmate and any involved staff member or contractor employee by means of videoconferencing if the Deputy Secretary for Reentry and Specialized Programs, in his sole discretion, believes an interview will assist him in understanding and evaluating the grievance.

(6) In reviewing a grievance, the Deputy Secretary for Reentry and Specialized Programs shall determine whether the participant violated the conditions of his DOTP or was meaningfully participating in the DOTP. The Deputy Secretary for Reentry and Specialized Programs may uphold or reverse the expulsion or take any other action that could have been taken by the Chief of the Department’s Central Office Treatment Division with respect to the alleged conduct at issue.

(e) The Department will promptly notify the sentencing court, the participant, the attorney for the Commonwealth and the Commission of the expulsion of a participant from a DOTP and of the reason for the expulsion. The inmate will be housed in a State correctional institution or county prison pending action by the court.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.117 Consent to disclosure of information.

The consent to disclosure of information must be in the following form:

I, the undersigned, hereby give my consent for the Commonwealth of Pennsylvania Department of Corrections, its officers, employees, volunteers, contractors and agents to release and disclose to any court, attorney for the Commonwealth, the Pennsylvania Commission on Sentencing and to my attorney information pertaining to my evaluation for and participation in a drug offender treatment program. This consent to release and disclosure includes medical and dental information, mental health treatment information, drug and alcohol treatment information, criminal history records information and any other information contained in records maintained by the Department of Corrections, its officers, employees, volunteers, contractors and agents. This consent to release and disclosure extends to records pertaining to any period during which I am or was committed to the custody of the Department of Corrections and shall not expire.

Disclosure of medical/dental information may pertain to all aspects of my treatment and hospitalization, including psychological and psychiatric information and drug and/or alcohol information.

Disclosure of mental health records pertains to treatment, hospitalization, and/or outpatient care provided to me for the period listed above. I understand that my record may contain information regarding all aspects of my mental health treatment and hospitalization, including psychological and psychiatric information, drug and/or alcohol information.

In authorizing this disclosure, I expressly waive any and all rights I may have to the confidential maintenance of these records, including any such rights that exist under local, state, and federal statutory and/or constitutional law, rule or order, including those contained in the Pennsylvania Mental Health Procedures Act of 1976 and the Pennsylvania Drug and Alcohol Abuse Control Act of 1972.

I understand that I have no obligation to authorize disclosure of any information from my record and that I may revoke this consent, except to the extent that action has already been taken, at any time by notifying in writing the Medical Records Technician, Health Care Administrator, or Facility Manager. I also understand that revocation of this consent will result in my being expelled from the drug offender treatment program and that I will be resentenced by the court.

I understand that these records are the property of the Department of Corrections and that my authorization for their release does not require the Department of Corrections to release these records.

Furthermore, I will indemnify and hold harmless the Pennsylvania Department of Corrections, and its officers, employees, volunteers, contractors and agents, for any losses, costs, damages, or expenses incurred because of releasing information in accordance with this authorization.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

37 Pa. Code § 97.118 Applicability.

This chapter applies to any defendant sentenced to State intermediate punishment on or after December 13, 2008.

History

Authority: The provisions of this Chapter 97 adopted by 42 Pa.
Source: The provisions of this Chapter 97 adopted May 20, 2005, effective May 21, 2005, 35 Pa.

Chapter 111 Tort Claims Litigation

37 Pa. Code § 111.1 Service of process.

(a) Service of process on Commonwealth agencies in actions brought under 42 Pa.C.S. § § 8501—8564 (relating to matters affecting government units) shall be made at the principal office of the defendant agency as set forth in subsection (b) or at the local office of the defendant agency as designed in § 111.4(c) (relating to venue). Service of process shall also be made at the principal office of the Attorney General as set forth in subsection (b), and at the Office of Attorney General as set forth in subsection (d).

(b) The addresses of the principal offices designated to accept service of an agency are as follows:

Department of Aging Office of Chief Counsel 555 Walnut Street, 5th Floor Harrisburg, Pennsylvania 17101-1919

Department of Agriculture Office of Chief Counsel Room 201 Agriculture Building 2301 North Cameron Street Harrisburg, Pennsylvania 17110

Office of Attorney General Torts Litigation Unit 15th Floor, Strawberry SquareHarrisburg, Pennsylvania 17120

Office of Auditor General Office of Chief Counsel 229 Finance Building Harrisburg, Pennsylvania 17120

Department of Banking Office of Chief Counsel Market Square Plaza 17 North 2nd Street, 13th Floor Harrisburg, Pennsylvania 17101

Department of Community and Economic DevelopmentOffice of Chief CounselCommonwealth Keystone Building400 North Street, Plaza LevelHarrisburg, Pennsylvania 17120

Department of Conservation and Natural ResourcesOffice of Chief CounselRachel Carson State Office BuildingPost Office Box 8767Harrisburg, Pennsylvania 17105-8767

Department of Corrections Office of Chief Counsel2520 Lisburn Road Post Office Box 598 Camp Hill, Pennsylvania 17001-8764

Department of Education (If a Tort claim is made involving State universities, do not serve the Department of Education, serve the State System of Higher Education.)Office of Chief Counsel Ninth Floor, Harristown 2 333 Market Street Harrisburg, Pennsylvania 17126-0333

Pennsylvania Emergency Management AgencyOffice of Chief Council2605 Interstate DriveHarrisburg, Pennsylvania 17110

Department of Environmental Protection Office of Chief Counsel 16th Floor, Rachel Carson State Office BuildingPost Office Box 2063 Harrisburg, Pennsylvania 17105-2063

Fish and Boat Commission Office of Chief Counsel 1601 Elmerton Avenue Post Office Box 67000 Harrisburg, Pennsylvania 17106-7000

Game Commission Executive Director 2001 Elmerton Ave. Harrisburg, Pennsylvania 17110-9797

Department of General Services Office of Chief Counsel 603 North Office Building Harrisburg, Pennsylvania 17125

Governor’s Office Office of Counsel to Governor 225 Main Capitol Building Harrisburg, Pennsylvania 17120

Department of Health Office of Chief Counsel 8th Floor West, Health and Welfare Building Harrisburg, Pennsylvania 17108

Pennsylvania Higher Education Assistance AgencyOffice of Chief Counsel1200 North 7th StreetHarrisburg, Pennsylvania 17102

Pennsylvania Higher Educational Facilities AuthorityExecutive Director1035 Mumma RoadWormleysburg, Pennsylvania 17043**Post Office Box 990, Camp Hill, Pennsylvania 17001-0990

Pennsylvania Housing Finance AgencyOffice of Chief Counsel211 North Front StreetHarrisburg, Pennsylvania 17105-8029

Historical and Museum Commission Office of Chief Counsel 500 State Museum BuildingPost Office Box 1026 Harrisburg, Pennsylvania 17120

Insurance Department Office of Chief Counsel 13th Floor—Strawberry Square Harrisburg, Pennsylvania 17120

Department of Labor and Industry Office of Chief Counsel 10th Floor, Labor and Industry Building651 Boas Street Harrisburg, Pennsylvania 17121

Liquor Control Board Office of Chief Counsel 401 Northwest Office Building Harrisburg, Pennsylvania 17124-0001

Department of Military and Veterans Affairs Commonwealth of Pennsylvania Department of Military and Veterans Affairs Attn: Office of Chief CounselBuilding 7-36Fort Indiantown Gap Annville, Pennsylvania 17003-5002

Board of Probation and Parole Office of Chief Counsel 1101 South Front Street, Suite 5100 Harrisburg, Pennsylvania 17104

Public Utility CommissionSecretaryNorth Office BuildingPost Office Box 3265Harrisburg, Pennsylvania 17105-3265

Department of Public Welfare (Including restoration centers, State mental hospitals, mental retardation centers, youth development centers, youth forestry camps, and State general hospitals.)

Department of Public Welfare Office of Legal Counsel3rd Floor West, Health and Welfare Building Post Office Box 26757th and Forster Streets Harrisburg, Pennsylvania 17120

Department of Revenue Office of Chief Counsel Tenth Floor Strawberry Square Harrisburg, Pennsylvania 17128

Securities Commission Office of Chief Counsel 2nd Floor—Eastgate 1010 North 7th Street Harrisburg, Pennsylvania 17102-1410

Department of State Office of Chief Counsel 301 North Office Building Harrisburg, Pennsylvania 17120-0029

Pennsylvania State Police Office of Chief Counsel 3rd Floor, Department Headquarters 1800 Elmerton AvenueHarrisburg, Pennsylvania 17110

State System of Higher Education Office of Chief CounselDixon University Center2986 North Second StreetHarrisburg, Pennsylvania 17110

Department of Transportation Office of Chief Counsel 9th Floor, Commonwealth Keystone Building 400 North StreetHarrisburg, Pennsylvania 17120-0041

Department of Treasury Office of Chief CounselFinance BuildingHarrisburg, Pennsylvania 17120-0018

(c) Service upon bureaus and commissions not listed in subsection (b) shall be made upon the principal or local office of the bureau or commission, and shall also be made upon the offices of the Attorney General as designated in subsection (a).

(d) The office of the Attorney General designated for service of process only in actions where venue is located in the following counties is as follows:

(1) Adams, Berks, Bradford, Cameron, Carbon, Centre, Clinton, Columbia, Cumberland, Dauphin, Franklin, Fulton, Huntingdon, Juniata, Lackawanna, Lancaster, Lebanon, Lehigh, Luzerne, Lycoming, Mifflin, Monroe, Montour, Northampton, Northumberland, Perry, Pike, Potter, Schuylkill, Snyder, Sullivan, Susquehanna, Tioga, Union, Wayne, Wyoming and York—Torts Litigation Unit, 15th Floor, Strawberry Square, Harrisburg, Pennsylvania 17120.

(2) Allegheny, Armstrong, Beaver, Bedford, Blair, Butler, Cambria, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Indiana, Jefferson, Lawrence, McKean, Mercer, Somerset, Venango, Warren, Washington and Westmoreland—Torts Litigation Unit, 4th Floor, Manor Building, 564 Forbes Avenue, Pittsburgh, Pennsylvania 15219.

(3) Bucks, Chester, Delaware, Montgomery and Philadelphia—Torts Litigation Unit, 206 Philadelphia State Office Building, Philadelphia, Pennsylvania 19130.

Local Offices

Offices of Department of Transportation designated by 37 Pa. Code § 111.1 as local offices for service of process are also local offices for venue purposes under 42 Pa.C.S. § 8523(a). Department of Transportation v. Chatzidakis, 492 A.2d 1170 (Pa. Cmwlth. 1985).

Service of Process

In an action begun on January 20, 1982, the provisions of 37 Pa. Code § 111.1, which at that time required that service of process upon the Department be made at the office of Chief Counsel in Harrisburg, in conjunction with the provisions of this section, which at that time provided that venue in actions in trespass against the Commonwealth or Commonwealth parties would lie only in the county where the cause of action arose, the county where a transaction or occurrence took place out of which a cause of action arose, or where an office of the Commonwealth or a Commonwealth party is designated under § 111.1 (relating to service of process), permitted a Luzerne County judge to transfer the action for improper venue, since the cause of action arose in Wyoming County and the Department of Transportation maintenance shed located in Luzerne County was not a ‘‘principal office’’ of the Department. Cortese v. Department of Transportation, 463 A.2d 1293 (Pa. Cmwlth. 1983).

An action against Department of Transportation may be brought where its ‘‘principal office’’ is located or the ‘‘local office’’ which is in the county where the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. Bortulin v. Harley-Davidson Motor Co., 539 A.2d 906 (Pa. Cmwlth. 1988); appeal denied 554 A.2d 511 (Pa. 1988); and appeal denied 555 A.2d 116 (Pa. 1988).

Waiver

An agreement between the plaintiff, the Liquor Control Board and the Attorney General whereby the parties agreed to an extension of time for the Liquor Control Board to file an answer but not preliminary objections to the plaintiff’s complaint, constituted a waiver of this section’s service of process requirements. Leahy v. Liquor Control Board, 551 A.2d 1153 (Pa. Cmwlth. 1989).

Immediately preceding text appears at serial pages (230295) to (230296), (246795) to (246796) and (336813) to (336814).

This section cited in 37 Pa. Code § 111.4 (relating to venue).

History

Authority: The provisions of this Chapter 111 issued under 42 Pa.
Source: The provisions of this Chapter 111 adopted January 4, 1980, effective January 5, 1980, 10 Pa.

37 Pa. Code § 111.4 Venue.

(a) Venue in actions for claims against a Commonwealth party as defined in 42 Pa.C.S. § 8501 (relating to definitions) shall be in the county in which one of the following exists:

(1) The cause of action arose.

(2) A transaction or occurrence took place out of which the cause of action arose.

(3) The principal office of the Commonwealth party is located.

(4) The local office of the Commonwealth party is located.

(b) The principal offices of Commonwealth parties are the same as those offices designated in § 111.1(b) and (c) (relating to service of process).

(c) For purposes of subsection (a)(4), the local office of the Commonwealth party is the local office located in that county where the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose.

(d) Nothing in this section shall be deemed to change or alter the judicial discretion granted under 42 Pa.C.S. § 8523 (relating to venue and process) which permits a Judge of the Court of Common Pleas of Dauphin County to transfer an action to an appropriate county where venue would otherwise lie, if venue is obtained in the Twelfth Judicial District (Dauphin County) solely because the principal office of a Commonwealth party is located there.

Local Office

For purposes of determining venue within which the Commonwealth may be subject to suit, a ‘‘local office’’ was defined so as to restrict venue to the county where the cause of action arose, not simply any county within which the Commonwealth had an office. Bogetti v. Department of Transportation, 601 A.2d 421 (Pa. Cmwlth. 1991).

Third-Party Proceedings

Section 8523 of the Judicial Code, 42 Pa.C.S. § 8523, which required actions against a Commonwealth party be brought in and only in a county in which the principal or local office of the party was located, was not applicable to third-party proceedings in which the Commonwealth was joined as a defendant by the original defendants against whom the action was brought. Chen v. Philadelphia Elec. Co., 661 A.2d 25 (Pa. Cmwlth. 1995); appeal dismissed 680 A.2d 1156 (Pa. 1996); overruled, Ribnicky v. Yerex, 701 A.2d 1348 (Pa. 1997).

This section cited in 37 Pa. Code § 111.1 (relating to service of process).

History

Authority: The provisions of this Chapter 111 issued under 42 Pa.
Source: The provisions of this Chapter 111 adopted January 4, 1980, effective January 5, 1980, 10 Pa.

Subpart C Crime Commission

Chapter 121 Preliminary Provisions

37 Pa. Code § 121.1 Definitions.

The following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise: Chairperson—The Chairperson of the Commission. Commission—The Pennsylvania Crime Commission. Executive Director—The Executive Director of the Commission.

The provisions of this § 121.1 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (16860).

History

Source: The provisions of this § 121.

37 Pa. Code § 121.2 Liberal construction.

The provisions of this subpart shall be liberally construed so as to effectuate the statutory functions and policies of the Commission.

History

Source: The provisions of this § 121.

37 Pa. Code § 121.3 Amendments.

New rules may be adopted, and a rule may be amended or rescinded, upon approval of the Commission.

History

Source: The provisions of this § 121.

37 Pa. Code § 121.4 Severability.

If a provision of this subpart or the application thereof to a person or circumstance is held invalid, the other provisions and their application to other persons and circumstances may not be affected.

History

Source: The provisions of this § 121.

Chapter 123 Practice and Procedure

37 Pa. Code § 123.1 Conduct of investigations.

Investigations by the Commission shall be conducted, through its members and staff, in a manner consistent with the provisions of this subpart.

History

Source: The provisions of this § 123.

37 Pa. Code § 123.2 Staff authority.

Staff members designated as the Executive Director, Chief Counsel, Counsel, Director of Field Operations and Special Agents shall have the authority to administer oaths and affirmations, conduct interviews, receive and record testimony, receive and inspect documents and records, and otherwise obtain evidence and gather information by any lawful means.

The provisions of this § 123.2 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (5292).

History

Source: The provisions of this § 123.

37 Pa. Code § 123.3 Subpoenas.

(a) A person considered to have information relevant to an investigation may be required by subpoena to appear and testify at a Commission hearing. A person, corporation or entity or association of any kind having possession or control of documents or records deemed relevant to an investigation may be required by subpoena to produce the materials at a Commission hearing or, at the election of the Commission, to make them available for inspection by one or more members of the Commission or one or more members of the Commission staff. Subpoenas may be served by a person designated by the Executive Director. This subsection supersedes 1 Pa. Code § 35.142(a) and (b) (relating to subpoenas).

(b) The Commission will have the right to retain or have access to sub- poenaed documents and records for a reasonable period, and to make copies of them.

(c) All witnesses subpoenaed by the Commission shall be entitled to compensation and payment for expenses as provided by law. This subsection supersedes 1 Pa. Code § 35.142(c).

The provisions of this § 123.3 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (5292).

History

Source: The provisions of this § 123.

37 Pa. Code § 123.4 Hearings.

(a) Hearings may be conducted by and before any one or more members of the Commission or any one or more members of the Commission staff.

(b) Every hearing constituted and conducted under subsection (a) shall be deemed a hearing and proceeding by and before the Commission, and all powers and remedies available to the Commission will apply thereto.

(c) At the direction of the Chairperson, a member of the Commission who does not attend any hearing may be given full access to a transcript thereof or, if no transcript is made, a report of the information received therein prior to the making by the Commission of any finding, recommendation or report based in any part upon information received in the hearing.

The provisions of this § 123.4 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (5293).

History

Source: The provisions of this § 123.

37 Pa. Code § 123.5 Rights of witnesses.

The following rights shall be available to witnesses appearing at a hearing:

(1) Copies of rules. Witnesses to appear under subpoena shall be provided with a copy of this chapter. Witnesses who appear voluntarily may obtain a copy of this chapter upon request.

(2) Hearing participants. At closed hearings, persons permitted to be in the hearing room shall be limited to members of the Commission, staff members of the Commission, the witness, interpreters when needed, and—for the purpose of taking the evidence—a stenographer. No other persons may be present during the conduct of the hearing; however, the witness shall have the right to have his attorney available for consultation outside the hearing room while he testifies.

(3) Objections. Witnesses shall have the right to object to questions, state the grounds of their objections and obtain a ruling thereon. Rulings by the presiding officer shall be final.

(4) Closing statement. Witnesses who believe that the effect of testimony is unsatisfactory for any reason shall be given reasonable time in which to make an oral statement under oath or affirmation at the close of their testimony. Any such statement shall be uninterrupted; except that it may be interrupted or terminated by the presiding officer if he determines that a reasonable time has expired or that the statement is impertinent, scandalous, or otherwise improper. The witness may elaborate by written statement under oath or affirmation. The written statement shall be received in full as part of the hearing record if submitted within ten days of the date of the appearance of the witness, except that the Commission may strike any impertinent, scandalous, or otherwise improper matter from the statement.

The provisions of this § 123.5 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (5293).

History

Source: The provisions of this § 123.

37 Pa. Code § 123.6 Public access.

Hearings may be open or closed to the public, in whole or in part, as the Commission may direct. Evidence received in closed hearings will not be released to the general public without the approval of the Commission.

History

Source: The provisions of this § 123.

37 Pa. Code § 123.8 Presiding officer.

(a) The Chairperson of the Commission will preside over all hearings at which he is present. The Chairperson may designate a member of the Commission or its staff to preside over any hearing at which he will not be present. In the absence of such designation, a member will be chosen by the majority vote of the members present and voting to preside over such hearing; except that if no member is present the Executive Director, Chief Counsel, or Counsel for the Commission shall preside over such hearing. This subsection supersedes 1 Pa. Code § 35.185 (relating to designation of presiding officers).

(b) The presiding officer shall administer oaths and affirmations to witnesses, rule upon matters arising in the course of the hearing, and take such actions as may be necessary to ensure that the hearing proceeds in an orderly and proper manner. This subsection supersedes 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers).

The provisions of this § 123.8 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (5294).

History

Source: The provisions of this § 123.

37 Pa. Code § 123.9 Questioning.

The authority to question witnesses at a hearing shall be limited to the presiding officer, other members of the hearing panel, and such other persons as may be permitted to do so by the presiding officer.

History

Source: The provisions of this § 123.

37 Pa. Code § 123.10 Testimony.

(a) All testimony received at hearings shall be under oath or affirmation. The presiding officer may receive any evidence by testimony, deposition, exhibit, exemplar, or otherwise which he deems relevant and shall not be bound by the rules of evidence applicable in courts of law. Any witness desiring to read or place in the record of the hearing a prepared or written statement shall, unless excused from this requirement by the presiding officer, file a copy thereof with the Commission at least 24 hours in advance of the hearing. The presiding officer shall determine whether such statement may be read or placed in the record.

(b) Subsection (a) supersedes 1 Pa. Code § 35.137 (relating to oral examination).

The provisions of this § 123.10 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (5295).

History

Source: The provisions of this § 123.

37 Pa. Code § 123.11 Right of rebuttal.

(a) Any person who is individually identified, expressly or by clear implication, in a public hearing or report of the Commission, and who believes that evidence or comment made public in such hearing or report tends to defame him or otherwise adversely affect his reputation, shall have the right to appear personally at a public hearing and testify in his own behalf as to matters relevant to such evidence or comment.

(b) The rebuttal provided for in subsection (a) may be claimed as a matter of right up to 10 days from the date on which the evidence or comment was made public.

Construction with Constitution

Under the scheme of this regulation, there was no forum for an individual who believed that their reputation has been adversely affected to seek a remedy until after the possible damage had been done. This was clearly an unconscionable abrogation of a state protected constitutional right without procedural due process. Simon v. Commonwealth, 659 A.2d 631 (Pa. Cmwlth. 1995).

History

Source: The provisions of this § 123.

Chapter 125 Business of the Commission

37 Pa. Code § 125.1 General.

(a) Meetings of the members of the Commission will be held at the call of the Chairperson or any three other members, at such times and locations and for such purposes as may be determined by the Chairperson or the other three members calling the meeting.

(b) At the first meeting of the Commission of each calendar year, the members will select from their own numbers, by an affirmative vote of three of the five members, a Chairperson who shall serve for 1 year but will remain Chairperson until a successor is selected.

The provisions of this § 125.1 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (5296).

History

Source: The provisions of this § 125.

37 Pa. Code § 125.2 Quorum.

(a) Three members of the Commission will constitute a quorum for meetings.

(b) The majority vote of the members present and voting will constitute official action by the Commission.

History

Source: The provisions of this § 125.

37 Pa. Code § 125.3 Presiding officer.

The Chairperson of the Commission shall preside over all meetings at which he is present. He may designate a member of the Commission to preside over any meeting at which he will not be present. In the absence of such designation, a member shall be chosen by the majority vote of the members present and voting to preside over such meeting.

History

Source: The provisions of this § 125.

37 Pa. Code § 125.4 Attendance at meetings.

Attendance at meetings shall be limited to members of the Commission, the Executive Director, members of the Commission staff designated by the Executive Director, and such other persons as the Commission may designate; provided, however, that the meetings of the Commission at which confidential investigative information is not discussed shall be open to the public.

The provisions of this § 125.4 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (5296).

History

Source: The provisions of this § 125.

37 Pa. Code § 125.5 Minutes.

Minutes of the meetings will be kept by the Executive Director and filed in the executive office of the Commission. Minutes will not be open to inspection by persons other than members of the Commission and its staff except as authorized by the Chairperson and except as required by the act of July 19, 1974 (P. L. 486, No. 175) (65 P. S. § § 261—269) with respect to the public meetings of the Commission.

The provisions of this § 125.5 amended April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592. Immediately preceding text appears at serial page (5296).

History

Source: The provisions of this § 125.

37 Pa. Code § 125.11 Ratification by a majority of Commission members.

Notwithstanding any other provision of this chapter, any action of the Commission requiring the agreement of its members may be taken without a meeting if such action is approved or ratified by a majority of the members of the Commission.

History

Source: The provisions of this § 125.

37 Pa. Code § 125.12 Staff.

(a) The Commission may appoint such staff as it may deem necessary.

(b) Each applicant for a position on the Commission staff must, as a condition of employment, successfully pass a personal background investigation to the satisfaction of the Commission prior to being appointed as a staff member. The information received by the Commission as a result of a background investigation will be maintained by the Executive Director and will not be open to inspection by persons other than members of the Commission and its staff.

(c) Unless otherwise specifically approved by the Commission, no professional or investigative employe of the Commission shall engage in any other business, employment, profession, trade, business venture, enterprise, or occupation; undertake gainful work or employment; or render gainful services other than for the Commission. All administrative and clerical employes shall disclose in writing to the Executive Director all gainful occupation or employment for any person or entity other than the Commission. The Executive Director will have the authority to prohibit the employment by administrative or clerical employes when such employment is determined to interfere, conflict with, or effect the functions of the subject employe with relation to his duties to the Commission. Upon a determination that such employment is not permissible, the Executive Director will give written notice of such determination to the subject employe. Upon receipt of such notice, the employe shall immediately terminate the subject employment. An employe’s failure to comply with the provisions of this subsection shall be grounds for immediate termination of employment with the Commission.

(d) As of the date of employment with the Commission and on or before March 15 of each following year, each staff member of the Commission shall file with the Executive Director a sworn statement of financial interests. The financial interests of a spouse or child under 18 years of age of an employe, shall be deemed a financial interest of an employe. The financial statement shall contain the information detailed in § 125.13 (relating to forms).

(e) The financial statements of the employes will be maintained by the Executive Director at the headquarters of the Commission and will not be open to inspection by persons other than members of the Commission, the Executive Director, or such other persons designated by the Commission or the Executive Director.

(f) For the purposes of personal background questionnaires for employment, updates thereof, and the annual financial disclosure statements, each applicant and employe of the Commission shall execute a waiver of any and all rights to privacy for the purposes of submitting the required information and any further investigation by the Commission regarding the completeness or accuracy of the information submitted. The waiver shall remain in effect for the duration of the individual’s employment with the Commission.

The provisions of this § 125.12 adopted April 18, 1980, effective April 19, 1980, 10 Pa.B. 1592.

History

Source: The provisions of this § 125.

37 Pa. Code § 125.13 Forms.

The following forms have been promulgated as a part of this chapter:

Describe and state the amount of income received from source(s) other than the Pennsylvania Crime Commission.
Do you have any outstanding judgments against you? Describe.
Have you ever been declared bankrupt? Explain.
Are you a co-maker or endorser of a note? Describe.
Are you a party in a law suit? Explain.
Are you obligated to pay alimony, child support, or separate maintenance? Explain.
List your checking and savings accounts. Include the names of the institutions, the account numbers, and the present balances.
List and describe your stock holdings and/or bond holdings. Include the cash or market values.
List and describe the net cash value of your life insurance. Include the face amount of the policy(s).
Describe the location and market value of any real estate in which you have an interest, direct or indirect. You do not have to include your primary place of residence.
List and describe any businesses or enterprises in which you have an interest, direct or indirect.
Describe your automobiles by make and year. Include the market value(s).
List the names of all your creditors, including but not limited to installment debts, revolving charge accounts, automobile loans, real estate loans, stock pledges, and other personal or business debts. Include term of the debt, the number of months left to pay the debt, the unpaid balance, and any amounts past due.

The provisions of this § 125.13 adopted April 18, 1980, 10 Pa.B. 1592.

This section cited in 37 Pa. Code § 125.12 (relating to staff).

History

Source: The provisions of this § 125.

Chapter 127 Standardization of Personnel Rules

37 Pa. Code § 127.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Clerical or administrative position—Any clerk, typist, stenographer, administrative assistant or other position without supervisory responsibility. Commission—The Crime Commission of this Commonwealth. Demotion—A change to a position in a class carrying a lower maximum salary or duties. Employe—A person legally occupying a position with the Crime Commission and who does not have classified service status under the Civil Service Act. Probationary period—A preliminary period of employment prior to permanent appointment of an employe for the purpose of determining his fitness for a permanent employment. Professional position—Any special agent, director of field operations, director of intelligence, inspector, attorney, administrative officer, writer, analyst, liaison officer, public relations officer or consultant. Promotion—A change to a position in a class carrying a higher maximum salary or duties. Regular employe—An employe who has been appointed to a position in the Commission after completing his probationary period and who does not have classified service status under the Civil Service Act. Removal—The permanent separation from the Commission of an employe who has been permanently appointed. Third degree of relationship—Spouse, mother, father, grandmother, grandfather, child, aunt, uncle, sister, brother, niece, nephew or any spouse of said relatives.

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.2 Hiring policy.

(a) Antidiscrimination requirements. The recruitment and hiring procedures for all Commission positions shall be in strict conformity with the antidiscrimination requirements set forth in § 127.10 (relating to prohibitions).

(b) Regional positions. The recruitment and screening process for all positions shall be the responsibility of the Agent-in-Charge of the regional office. In the case of professional positions, when the Agent-in-Charge has narrowed the number of candidates to a select few, the Executive Director may assist in the final screening interviews. When the Agent-in-Charge has selected an appropriate candidate, the Agent-in-Charge shall forward a recommendation to the Executive Director. If the Executive Director approves the recommendation, the candidate may be:

(1) Hired in the case of a candidate for a clerical or administrative position.

(2) Scheduled for a final interview with the Commissioners in the case of a candidate for a professional position.

(3) The Commissioners may authorize the Executive Director to hire a candidate for a professional position without the necessity of a final interview with the Commissioners.

(c) Headquarters positions. The recruitment and screening process will be the responsibility of the Executive Director, who will conduct this process in consultation with appropriate supervisors. When the Executive Director completes the selection process, the candidate may be:

(1) Hired in the case of a candidate for a clerical or administrative position.

(2) Scheduled for a final interview with the Commissioners in the case of a candidate for a professional position.

(3) The Commissioners may authorize the Executive Director to hire a candidate for a professional position without the necessity of a final interview with the Commissioners.

(d) Degree of relationship. No person shall be employed by the Commission who is related to any Commissioner or the Executive Director, within the third degree of relationship.

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.3 Probation.

(a) No appointment to a position in the Commission will be deemed complete until after the expiration of a probationary period. The probationary period following initial employment shall be nine months. The probationary period following promotion shall be 6 months.

(b) At any time during the probationary period, the Commissioners may remove an employe if in the opinion of the Executive Director, the probation indicates that such employe is unable or unwilling to perform his duties satisfactorily or that his dependability does not merit his continuance in the employ of the Commission. The person so removed shall be considered permanently separated from his position.

(c) If the work of the employe has been satisfactory at the expiration of the probationary period, the employe shall become a regular employe of the Commission and continue in such employ unless separated from the Commission as provided in this chapter.

(d) If the probationary period has resulted from a promotion, removal action will not be deemed removal from the Commission staff. An employe so removed during a probationary period resulting from a promotion shall have the right to and shall be returned to the position held immediately prior to such promotion without the right or necessity of hearing or appeal.

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.4 Demotions.

The Commissioners may demote to a lower rated position any employe who does not satisfactorily perform the duties of the position to which he was appointed or promoted and who is able to perform the duties of the lower position. In case of such demotion, the employe shall have all rights of hearing and appeal as provided by § § 127.8 and 127.9 (relating to removal; and appeal).

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.5 Suspension.

The Commissioners may for good cause suspend an employe without pay for disciplinary purposes. Such suspension will not exceed in the aggregate 30 working days in 1 calendar year. Any employe so suspended shall have all rights of hearing and appeal as provided by § § 127.8 and 127.9 (relating to removal; and appeal).

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.6 Retirement.

The Executive Director, with the approval of the Commissioners, may recommend action regarding the retirement of an employe who, in the judgment of the Director, has become unfit for the efficient performance of the duties of his position owing to physical or mental disability. Any such employe so retired shall have all rights of hearing and appeal as provided by § § 127.8 and 127.9 (relating to removal; and appeal).

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.7 Resignation.

(a) No resignation shall be made or shall be valid unless it bears the signature of the person resigning and the date of the resignation in his handwriting; except that absence from duty for 5 consecutive working days without notice to the Executive Director may be regarded as an abandonment of a position and in effect, a resignation.

(b) Any person who resigns or is presumed to have resigned because of absence from duty for 5 consecutive working days without notice to the Executive Director, may ask the Commission, in writing, within 30 days after such resignation, for a private hearing, stating the reasons therefor. If on investigation by the Commission, there appears to be good evidence that the employe may have been forced to resign against his will and without just cause, or that his separation from the Commission has been involuntary and without just cause, the Commission will grant him, within 30 days, a hearing as provided in this chapter in the case of removal, and will treat the separation as though it were a removal.

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.8 Removal.

(a) No Commission employe shall be removed except for just cause. The Executive Director must furnish to the affected employe written notice of re moval, setting forth the reasons for such action and effective date thereof. Such written notice will be made part of the official record of the Commission.

(b) Within 20 days after receipt of such notice of removal from the Commission, the employe shall submit to the Commission such written answer as he may desire. Said answer may include a request for investigation.

(c) Within ten days after receipt of such answer and request, the Commission will initiate an investigation which will include a hearing. All hearings will be private unless otherwise requested in writing by the employe against whom the action is taken; provided however, that no confidential information involving the work of the Commission will be presented in a public hearing without the consent of the Commission. A written notice signed by the Executive Director will be forwarded to the employe setting forth the time and place when and where such employe will be given an opportunity to be heard before the Commission. The investigation and hearing will be for the purpose of fairly determining whether the employe involved merits continuance in his position or should be removed therefrom or otherwise disciplined for the good of the Commission. The Commission may delegate to a particular Commissioner or Commissioners the responsibility of conducting the investigation and hearing.

(d) At the hearing, the Commission will not be required to follow technical rules of evidence or court procedure, but will diligently seek all of the evidence and information bearing on the merits of the case.

(e) Within 60 days after receipt of the request for investigation, the full Commission will make its investigative and hearing findings and conclusions which will not become part of the public record of the Commission unless otherwise requested by the employe against whom the action relates. A written notice of said conclusions signed by the Executive Director will be forwarded to the employe. If the Commission finds that the action complained of was taken without just cause, the employe shall be reinstated to his position without loss of pay.

This section cited in 37 Pa. Code § 127.4 (relating to demotions); 37 Pa. Code § 127.5 (relating to suspension); and 37 Pa. Code § 127.6 (relating to retirement).

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.9 Appeal.

(a) If the Commission finds that the action complained of was taken with just cause, the employe shall have the right to have the matter submitted to arbitration within 15 days of the issuance of the Commission’s conclusions.

(b) The matter will be submitted for hearing by the Commission to the American Arbitration Association. The arbitration hearing will be a de novo hearing on the issue upon which the personnel action was based. The hearing will be private unless otherwise requested in writing by the employe against whom the action was taken; provided however, that no confidential information involving the work of the Commission will be presented in a public hearing without the consent of the Commission. At such arbitration hearing, all testimony shall be recorded by a competent public stenographer and in the case of a public hearing, the record of the hearing shall be made part of the public record of the Commission. The arbitrator shall confine himself to the precise issue upon which the action was based and shall have no authority to determine any other issues. The decision of the arbitrator shall be final and binding on the employe and the Commission and may not be appealed further. The Commission will request that the arbitrator issue his decision within 30 days after the arbitration hearing or receipt of the transcript of said hearing.

(c) All fees and expenses of the arbitrator and the public stenographer will be borne by the Commission. Either party desiring a record of the proceedings shall pay for such record.

This section cited in 37 Pa. Code § 127.4 (relating to demotions); 37 Pa. Code § 127.5 (relating to suspension); and 37 Pa. Code § 127.6 (relating to retirement).

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.10 Prohibitions.

(a) Politics prohibited. Politics prohibited shall include the following:

(1) No employe of the Commission shall be a member of or delegate or alternate to any political convention, nor shall he participate at any such convention, except in the performance of his official duty or as a visitor.

(2) No employe of the Commission shall serve as a member of any committee of any political party, or take an active part in political management or in political campaigns, or use his office or position to influence political movements.

(3) No employe of the Commission shall circulate or seek signatures to any nominations or other petition required by any primary or election law, nor shall he seek or accept election, nomination, or appointment as an officer of a political club or organization, or serve as a member of a committee of any such club or organization.

(4) No employe of the Commission shall in any manner participate in or interfere with the conduct of any election or the preparation therefor at the polling place or with the election officers while counting the votes or returning the election material to the place provided by law for that purpose, save only for the purpose of making and depositing his own ballot as speedily as it reasonably can be done.

(5) The rights of individual Commission employes are not impaired hereby, and the prerogative to attending meetings, to hear or see any candidate or nominee, and to express one’s individual opinion, shall remain inviolate.

(b) Discrimination prohibited. The Commissioners and the Executive Director will not discriminate against any person in recruitment, appointment, training, promotion, retention, or any other personnel action with respect to the Commission because of political or religious opinions or affiliations, or because of race, national origin, sex or age.

(c) A person in the employ of the Commission who knowingly violates a provision of this section shall be separated and removed from the Commission. An employe so separated and removed shall have all rights of hearing and appeal as provided in this chapter.

This section cited in 37 Pa. Code § 127.2 (relating to hiring policy).

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.11 Confidentiality of information.

As a condition of employment, each person in the employ of the Commission shall accept and execute a security agreement. The security agreement shall be binding upon the person both during the term of Commission employment and following the person’s separation from the Commission. A copy of the agreement is set forth in Appendix A.

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

37 Pa. Code § 127.12 Status of employes as of effective date.

An employe who holds a position with the Commission as of the effective date of this chapter shall, if he has completed his probationary period, be deemed a regular employe under this chapter and continue in that position, unless separated therefrom as provided in this chapter. The employe who has not completed the probationary period at the time this chapter takes effect shall retain his status as a probationary employe until the expiration of that probationary period. If he successfully completes his probationary period, he shall become a regular employe under this chapter and continue in that position unless separated therefrom as provided in this chapter.

History

Authority: The provisions of this Chapter 127 issued under the Pennsylvania Crime Commission Act (71 P.
Source: The provisions of this Chapter 127 adopted April 3, 1981, 11 Pa.

Subpart F Uniform Relocation Assistance

Chapter 151 General Provisions

37 Pa. Code § 151.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Acquired dwelling—A dwelling which has been acquired for a program or project by an acquiring agency. Acquiring agency—An entity vested with the power of eminent domain by the laws of the Commonwealth. Acquisition cost—General damages, or in the event of amicable acquisition, the price paid by the acquiring agency in lieu thereof. Act—The Eminent Domain Code (26 P. S. § § 1-101—1-617.1). Amount necessary to rent comparable decent, safe and sanitary dwelling—The actual rental paid by a displaced person for a decent, safe and sanitary replacement dwelling or the amount determined to be necessary to rent a comparable replacement dwelling, whichever is the lesser. Business—A lawful activity, with the exception of a farm operation, conducted primarily for the following purposes:

(i) The purchase, sale, lease or rental of personal or real property, or for the manufacture, processing or marketing of products, commodities or other personal property.

(ii) The sale of services to the public.

(iii) A nonprofit organization venture.

(iv) As qualification for damages under section 601-A (a), (b)(1) and (4) of the act (26 P. S. § 1-601A(a), (b)(1) and (4)) for assisting in the purchase, sale, resale manufacture, processing or marketing of products, commodities, personal property or services by the erection and maintenance of outdoor advertising displays whether or not the displays are located on the premises on which the activities are conducted. Comparable replacement dwelling—A dwelling which meets the following standards:

(i) Decent, safe and sanitary.

(ii) Functionally equivalent and substantially with same as the acquired dwelling with respect to number of rooms, area of living space, age and state of repair.

(iii) Adequate in size to accommodate the family or individual.

(iv) Located in a neighborhood or area not generally less desirable than that in which the acquired dwelling was located.

(v) Reasonably accessible to public services and the displaced person’s place of employment.

(vi) Available on the private market.

(vii) Open to persons regardless of race, color, religion or national origin in a manner consistent with Title VIII of the Federal Civil Rights Act of 1968 (42 U.S.C.A. § 3601 et seq.) and the Pennsylvania Human Relations Act (43 P. S. § § 951—962) and regulations promulgated under those acts.

(viii) Within the financial means of the displaced person. Decent, safe and sanitary—A replacement dwelling is decent, safe and sanitary if it meets the following standards:

(i) It conforms with local building and occupancy codes.

(ii) It has a continuing and adequate supply of potable water.

(iii) It has a kitchen, which contains a sink connected to hot and cold running water, an adequate sewage system, space for a refrigerator and a utility connection.

(iv) It has an adequate heating system to maintain a 70°F or 21.1°C temperature in the living area not including bedrooms.

(v) It has a bathroom, which is well lighted and ventilated, private, containing a basin and a bathtub or stall shower connected to an adequate supply of hot and cold running water, and a flush closet, all in working order and connected to a properly functioning sewage disposal system.

(vi) It has a safe and adequate electric system.

(vii) It appears to a knowledgable person to be structurally sound, weather-tight, in good repair and adequately maintained.

(viii) It has a safe means of egress to open space at ground level. For multifamily buildings, each unit has access either directly or through a common corridor. For three or more story buildings, the common corridor shall have at least two means of egress.

(ix) It has habitable floor space, which contains 150 square feet of habitable floor space for the first occupant and at least 100 square feet for each additional occupant or 70 square feet for mobile homes.

(x) Rooms are adequately ventilated. The habitable floor space is divided into sufficient rooms so as to be adequate for the family, particularly with regard to bedrooms. Displaced person—A condemnee or other person not illegally in occupancy of real property who moves his personal property as a result of the acquisition for a program or project of the real property, whole or in part, or as the result of written notice from the acquiring agency of intent to acquire or order to vacate the real property; and solely for the purpose of section 601-A(a), (b)(1) and (4) of the act (26 P. S. § 1-601A(a), (b)(1) and (4)), as a result of the acquisition or written notice of intent to acquire or order to vacate other real property on which the person conducts a business or farm operation. For the purpose of computing payments under Article VI-A of the act (26 P. S. § § 1-601A—1-606A) and the provisions of this chapter, members of a family shall be collectively regarded as a single displaced person. Dwelling—A single-family building, a single-family unit in a multifamily building, a unit of a condominium or cooperative housing project, a mobile home or other residential unit which is the established, fixed, permanent or ordinary dwelling place of residence of a person, as distinguished from temporary and transient, though actual, place of residence. It is a person’s legal residence as distinguished from a temporary place of abode; or a person’s home, as distinguished from a place to which business or pleasure may temporarily call a person. In instances where the place of permanent and usual abode may be in question, consideration should be given, but not limited to, the following indicia of permanent residency:

(i) The location in which a person is legally registered to vote.

(ii) The location which a person declares to be his residence and for the purpose of registration of his automobile and for the payment of Federal, State and municipal or local taxes.

(iii) The location in which the dependent children reside and attend the schools located within their assigned school districts. Family—Two or more displaced persons, one of whom is the head of a household, plus all other individuals regardless of blood or legal ties who live with and are considered a part of the family unit. If two or more individuals occupy the same dwelling with no identifiable head of a household, they shall be treated as one family for replacement housing payment purposes. Farm operation—An activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use, and customarily producing the products or commodities in sufficient quantity to be capable of contributing materially to the support of the operator. Loss of existing patronage—A decrease in net earnings. Original cost of personal property to the displaced person—The amount paid by the displaced person for the personal property, as indicated in his business records. In the event of personal property which was obtained without cost or for which there are no records, the replacement cost of equivalent property at the time of sale shall be used. Personal property—A tangible property not considered to be real property for purposes of general damages under the laws of the Commonwealth. Program or project—A program or project undertaken by or for an acquiring agency as to which it has the authority to exercise the power of eminent domain. Reasonable cost of a comparable replacement dwelling—The actual amount paid by a displaced person for a decent, safe and sanitary replacement dwelling or the amount determined to be necessary for the purchase of a comparable replacement dwelling, whichever is the lesser. Replacement cost of equivalent property at the time of sale—The current market cost, including delivery and installation costs, of similar personal property, considering such factors as physical and economic depreciation and functional obsolescence. Replacement dwelling—A dwelling purchased or rented and occupied by a displaced person as a result of the acquisition for a program or project of an acquired dwelling occupied by the displaced person, or as the result of written notice from the acquiring agency of intent to acquire or order to vacate the acquired dwelling. Value in place of personal property—The value the personal property would have, installed in real property housing a going business, considering such factors as original cost, delivery and installation costs, physical and economic depreciation and functional obsolescence.

The provisions of this § 151.1 amended through June 20, 1980, effective June 21, 1980, 10 Pa.B. 2463. Immediately preceding text appears at serial page 18858.

Value in Place

The trial court erred when it determined that a retail jewelry business’s inventory had ‘‘value in place,’’ where the inventory, i.e., jewelry for retail sale, can easily be moved without substantially destroying or diminishing its value. MS Jewelers, Inc. v. Redevelopment Authority of the City of Philadelphia, 725 A.2d 1245 (Pa. Cmwlth. 1999); appeal denied 747 A.2d 372 (Pa. 1999).

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.2 Purpose.

The provisions of this chapter have been promulgated to insure the following:

(1) That payment of special damages for displacement, authorized by Article VI-A of the act (26 P. S. § § 1-601A—1-606A) shall be made in a manner which is fair and reasonable, and as uniform as practicable.

(2) That displaced persons making proper application for a payment authorized for those persons under Article VI-A of the act (26 P. S. § § 1-601A—1-606A) shall be paid promptly after a move or, in hardship cases, be paid in advance.

(3) That persons aggrieved by a determination as to eligibility for a payment authorized by Article VI-A of the act (26 P. S. § § 1-601A—1-606A), or the amount of a payment, may elect to have their applications reviewed by the head of the acquiring agency or his designee.

(4) That displaced persons shall receive the maximum payments authorized by Article VI-A of the act (26 P. S. § § 1-601A—1-606A).

(5) That each acquiring agency may obtain the maximum Federal reimbursement for relocation payment and assistance costs authorized by Federal statute.

Special Damages

This section allows a condemnee to elect to negotiate first with the acquiring agency in an attempt to settle issues of eligibility for or regarding the amount of special damages but does not preclude the condemnee from petitioning for an appointment of viewers. Bernotas v. Chester County Water Resources Authority, 555 A.2d 309 (Pa. Cmwlth. 1989).

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.3 Scope of recoverable damages.

Except as provided in § 151.4 (relating to moving and related expenses) damages for dislocation are recoverable only under Article VI-A of the act (26 P. S. § § 1-601A—1-606A) and this chapter which together, are intended to implement the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C.A. § § 1415, 2473, 3307, 4601, 4602, 4621—4638 and 4651—4655). Damages are not recoverable under this act.

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.4 Moving and related expenses.

The following provisions shall govern the award of moving expenses and damages:

(1) An acquiring agency may adopt the moving expense allowance schedule of the Department of Transportation of the Commonwealth for the purposes of section 601-A(a)(2) of the act (26 P. S. § 1-601A(a)(2)).

(2) Damages payable under section 601-A(a) of the act (26 P. S. § 1-601A(a)) are attributable to personal property which a displaced person moves from the acquired premises.

(i) The distance of a move of 50 miles or less shall be presumed to be reasonable.

(ii) A displaced person shall have the burden of proving the reasonableness of a move of more than 50 miles.

(3) Damages payable under section 601-A(b)(1) and (2) of the act (26 P. S. § 1-601A(b)(1) and (2)) are ordinarily attributable to personal property which a displaced person does not move from a business or farm which is acquired or dislocated.

(i) A displaced person may claim damages for some items of personal property based on the cost which would have been incurred if the property had been moved and damages for other items based on their value in place, but only if the latter items cannot be moved without substantially destroying or diminishing their value, whether because of the unavailability of a comparable site for relocation or otherwise, or without substantially destroying or diminishing their utility in the relocated business or farm operation.

(ii) If the displaced person chooses to forego damages under section 601-A(b)(1) of the act (26 P. S. § 1-601A(b)(1)), he may claim damages for the unmoved personal property under section 601-A(b)(2) of the act (26 P. S. § 1-601A(b)(2)) determined as follows:

(A) The displaced person has the responsibility of selling the personal property at a commercially reasonable public or private sale, which sale may not be held until after 60 days notice to the acquiring agency.

(B) The original cost of each item of personal property is compared with the cost of replacing it with equivalent property in the marketplace to determine which is the lower figure.

(D) The total damages payable under this subsection is the lesser of 1/2 of the result derived from the procedures set forth in clause (C) or $10,000.

(iii) Personal property for which damages are paid under section 601-A(b)(1) of the act (26 P. S. § 1-601A(b)(1)) becomes the property of the acquiring agency and may be disposed of by the acquiring agency by sale or otherwise.

(iv) Where actual direct losses with reference to personal property are measured by the reasonable expenses which would have been required to relocate the personal property, payment will not exceed the replacement cost of equivalent property, taking into consideration the age and condition of the property.

(4) Damages under section 601-A(b)(3) of the act (26 P. S. § 1-601A(b)(3)) are payable to a displaced person whose business cannot be relocated without a substantial loss of existing patronage, based on a consideration of pertinent circumstances including the factors as the type of business conducted, the nature of the clientele and the relative importance to the displaced business of its present and proposed location.

(i) To be eligible for payment under this section, the business shall contribute materially to the income of the displaced owner.

(ii) Separate legal entities will not each be entitled to a payment under this subsection, if they actually constitute only one business. In determining whether two or more legal entities constitute a business, the following factors, among others, shall be taken into consideration:

(A) The extent to which the same premises and equipment are shared.

(B) The extent to which substantially identical or intimately interrelated business functions are pursued and business and financial affairs are commingled.

(C) The extent to which the entities are held out to the public, and to those customarily dealing with the entities, as one business.

(D) The extent to which the same person or closely related persons own, control or manage the affairs of the entities.

(iii) In the case of a nonprofit organization, the term ‘‘existing patronage’’ includes the membership persons, community and clientele served or affected by the activities of the nonprofit organization.

(iv) To be eligible for payment under section 601-A(b)(3) of the act (26 P. S. § 1-601A(b)(3)) a business shall occupy the premises from which it is displaced.

(A) [Reserved].

(B) Payment to an owner-occupant under section 601-A(b)(3) of the act (26 P. S. § 1-601A(b)(3)) shall be calculated on the basis of the fair monthly rental value of the portion of the premises occupied by the owner-occupant and used for business purposes. No payment will be made for the portion of the premises rented to one or more tenants.

(C) Payment to a tenant under section 601-A(b)(3) of the act (26 P. S. § 1-601A(b)(3)) shall be calculated on the basis of the rental being paid by the tenant for the portion of the premises occupied and used for business purposes by the tenant. No payment will be made for the portion of the premises rented to one or more subtenants.

(v) To be eligible for payment under this subsection, a displaced person shall make available to the acquiring agency copies of applicable Federal, State and local tax returns, and shall allow the acquiring agency to examine applicable books and records.

(vi) In the case of a business which relocates, loss of existing patronage shall be determined by comparing the average net earnings at the new location during a period of at least 6 months with the average net earnings during the 2 taxable years immediately preceding the taxable year in which the business is dislocated, or the applicable period provided for in paragraph (6).

(vii) In calculating damages according to the rental formula, the cost or value of utilities, such as heat, electricity, gas, water and sewer, shall be excluded from rental or rental value.

(5) A displaced farm operation is eligible for damages under section 601-A(b)(3) of the act (26 P. S. § 601A(b)(3)) if:

(i) The farm operator has discontinued (or relocated) his entire farm operation at the acquired property.

(ii) In the case of a partial taking, the property remaining after the acquisition is no longer capable of supporting a farm operation having substantially the same economic production.

(6) In determining whether damages are payable under section 601-A (b)(3) of the act (26 P. S. § 1-601A(b)(3)) and the amount of the damages, a period other than the 2 years immediately preceding the taxable year in which a business or farm operation moves from the acquired property may be used to determine the existing patronage and average annual net earnings of the business or farm operation in the following circumstances:

(i) If a business or farm has not been in continuous operation at the acquired property for 2 full years immediately preceding the taxable year in which the business or farm operation moves therefrom, but has been in continuous operation there for at least 1 year, the existing patronage and average annual net earnings may be determined by dividing the existing patronage and net earnings for the lesser period by the number of months in the period and multiplying the quotient by 12.

(ii) If, due to the general knowledge of the imminence of condemnation, the existing patronage and average annual net earnings of the business or farm operation were substantially lower than normal during the 2 years immediately preceding the taxable year in which the business or farm operation moves from the acquired property, the existing patronage and average annual net earnings shall be based on the 2 years immediately preceding the taxable year in which knowledge of the imminence of condemnation became general. If the business or farm was not in operation at the acquired property for 2 full years preceding the latter taxable year, but was in continuous operation there for at least 1 year, the existing patronage and average annual net earnings shall be determined by dividing the earnings for the lesser period by the number of months in the period and multiplying the quotient by 12.

(iii) If a business or farm operation was damaged by fire, flood or other disaster, whether natural or otherwise, in the 2-year period immediately preceding the taxable year in which the business or farm operation moved from the acquired property, the existing patronage and average net earnings shall be based on the 2 years immediately preceding the year of the disaster.

(7) The burden of reasonableness shall be met in accordance with the following:

(i) In proving damages for reasonable expenses incurred in searching for a replacement business or farm under section 601-A(b)(4) of the act (26 P. S. § 1-601A(b)(4)), a displaced person shall have the burden of proving the reasonableness of expenses in excess of $500, and of expenses incurred in searching more than 50 miles from the acquired property. The owner of a displaced advertising sign shall have the burden of proving the reasonableness of expenses in excess of $100 incurred in searching for a single replacement site, and in excess of $500 incurred in searching for replacement sites for signs displaced by a single project.

(ii) Eligible expenses under section 601-A(b)(4) of the act (26 P. S. § 1-601A(b)(4)) include transportation expenses, meals, lodging away from home, and the reasonable value of time actually spent in search, including the fees of real estate agents or real estate brokers. Expenses claimed except the value of time actually spent in search shall be supported by receipted bills. Payment for time actually spent in search shall be based on the applicable hourly wage rate for the person conducting the search, but may not exceed $10 per hour.

(8) Reasonable costs incurred in adapting a replacement business property for the installation of machinery, equipment and fixtures necessary for the operation of the displaced business in order to conform to health, safety or other legal requirements are reimbursable as moving expenses under section 601-A(a) of the act (26 P. S. § 1-601A(a)) if the acquired business property was not required to and did not conform to the requirements and damages were not paid to the owner or tenant of the acquired property based on a nonconforming use.

The provisions of this § 151.4 amended through June 20, 1980, effective June 21, 1980, 10 Pa.B. 2462. Immediately preceding text appears at serial pages (18861) and (23367).

Dislocation Damages

The period relevant for the determination of whether a substantial loss of existing patronage occurred is not the calendar year of the relocation, but rather a period of at least six months at the new location; and, if the business enjoyed an increase in net earnings during that period, dislocation damages cannot be awarded. Eisenberg v. Redevelopment Authority, 386 A.2d 163 (Pa. Cmwlth. 1978).

When the only ‘‘loss’’ suffered by relocation of a business was that of specific individual customers who were immediately replaced in greater numbers by other customers at the new location, there was no loss in earnings upon dislocation and the business is not entitled to dislocation damages. Neumann v. Department of Transportation, 372 A.2d 1240 (Pa. Cmwlth. 1977).

Moving Expenses

A horse business and a hay growing and cattle operation constitute only one business for moving expense purposes if the same persons own, control and manage both businesses, the same land was shared by both businesses, the income from both businesses was reported in combined form on federal income tax returns, the income and expenses of both businesses were credited and debited to the same account, the horse business was the only one held out to the public, and the hay was grown to feed the horses while the cattle were raised mostly for the personal use of the owners. Baker v. County of Allegheny, 412 A.2d 190 (Pa. Cmwlth. 1980).

Occupancy

Occupancy requires more than mere right to possess or control property.—the right must actually be exercised. Redevelopment Authority v. Stepanik, 360 A.2d 300 (Pa. Cmwlth. 1976).

Owner-Occupant

A property owner rented out part of the property as apartments, but had a bar and restaurant in part of the property, from which he lived upstairs, he was properly awarded business location damages, since such damages were based only on that portion of the property for which the owner qualified as an ‘‘owner-occupant’’ Redevelopment Authority v. Legosh, 394 A.2d 1089 (Pa. Cmwlth. 1978).

Relocation Damages

Tax returns for the two years immediately before and for one year immediately following the relocation of a business were admissible to prove that the business had prospered by the relocation and was not entitled to relocation damages. Neumann v. Department of Transportation, 372 A.2d 1240 (Pa. Cmwlth. 1977).

Search Expenses

Search expenses may be justified by production of a list of places visited, the distances traveled, and the dates of visits, and, if an hourly wage rate is not applicable, a daily wage rate may be substituted. Baker v. County of Allegheny, 412 A.2d 190 (Pa. Cmwlth. 1980).

If a condemnee occupies the property condemned both as a residence and as a place of business and suffers damages in the condemnation, the condemnee may be eligible for damages related to each aspect of the dislocation. If the unit occupied by the condemnee is a place of business and if the fair monthly rental value of that unit is in excess of $2500, the condemnee would be eligible for the $10,000 maximum amount of special dislocation damages allowed by 26 P. S. § 1-601A(b)(3). Department of Transportation v. Gaylor, 448 A.2d 656 (Pa. Cmwlth. 1982).

Validity

The provisions of 37 Pa. Code § 151.4 (relating to moving and related expenses) are valid since it complies with the intent of the Legislature, as expressed in 26 P. S. § 1-601A(b)(3), to deny special dislocation damages to landlords not physically occupying the premises condemned. Redevelopment Authority v. Stepanik, 387 A.2d 1292 (Pa. 1978).

The provisions of 37 Pa. Code § 151.4 (relating to moving and related expenses), formerly § 103.4(d) of the Uniform Relocation Assistance Regulations, was held to be consistent with 26 P. S. § 1-601A(b)(3), and not to be in derogation of an owner’s statutory rights in the determination of dislocation allowances. Redevelopment Authority v. Stepanik, 360 A.2d 300 (Pa. Cmwlth. 1976).

This section cited in 37 Pa. Code § 151.3 (relating to scope of recoverable damages).

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.5 Replacement housing for homeowners.

(a) If a displaced person purchases and occupies a decent, safe and sanitary dwelling at a price less than the reasonable cost of a comparable replacement dwelling, the amount of damages payable under section 601-A(a)(1) of the act (26 P. S. § 1-601A(a)(1)) shall be determined by using the actual cost rather than the reasonable cost of a comparable replacement dwelling. Reasonable costs of rehabilitating a replacement dwelling in order to make it decent, safe and sanitary and comparable to the acquired dwelling with respect to size and state of repair shall be included in calculating the actual cost.

(b) The amount necessary for the purchase of a comparable replacement dwelling may be determined by analyzing probable selling prices of comparable dwellings available on the market; by reference to a schedule prepared on the basis of an analysis; or in some other meaningful manner.

(c) If a displaced person purchases or retains a dwelling and moves it to another location, the displaced person shall be entitled to a payment under section 601-A(a)(1) of the act (26 P. S. § 1-601A(a)(1)) in the amount by which the acquisition cost of his acquired dwelling, including its site, is exceeded by the sum of the following:

(1) The purchase price paid for the replacement dwelling.

(2) The reasonable cost of acquiring a comparable replacement site, or, if the dwelling is moved onto other land owned by the displaced person, the fair market value of a comparable replacement site on the land. If the dwelling is moved onto the unacquired portion of property acquired in part for a program or project, the fair market value of the comparable replacement site shall be based on the after-value of the unacquired property.

(3) The reasonable cost of construction of a new foundation.

(4) The reasonable cost of moving the dwelling.

(5) The reasonable cost of connecting utilities.

(6) The reasonable cost of the improvements as are necessary to make the dwelling decent, safe and sanitary.

(7) The reasonable cost of restoring the dwelling to a condition comparable to its condition before the move; provided, however, that the total payment will not exceed the reasonable cost of a comparable replacement dwelling.

(d) If the acquired dwelling unit occupied by a displaced person is part of a structure owned by the person which also included space used for nonresidential purposes, that is, mixed-use property, the amount of damages payable under section 601-A(a)(1) of the act (26 P. S. § 1-601A(a)(1)) shall be determined by using as the acquisition payment of the dwelling unit only that part of the total payment which relates to the value of the residential use portion of the structure. Likewise, if the replacement dwelling unit is part of a structure which includes space used for nonresidential purposes, the amount of damages payable under section 601-A(a)(1) of the act (26 P. S. § 1-601A(a)(1)) shall be determined by using as the cost of the replacement dwelling only that part of the total cost which relates to the value of the residential use portion of the replacement structure.

(e) If the acquired dwelling unit occupied by a displaced person is located on a parcel of land owned by the person which is substantially larger than a normal home site, the amount of damages payable under section 601-A(a)(1) of the act (26 P. S. § 1-601A(a)(1)) shall be determined by using as the acquisition payment of the dwelling unit only that part of the total payment which relates to the value of the residential use portion of the parcel. Likewise, if the replacement dwelling unit is located on a parcel of land which is substantially larger than a normal home site, the amount of damages payable under section 601-A(a)(1) of the act (26 P. S. § 1-601A(a)(1)) shall be determined by using as the cost of the replacement dwelling only that part of the total cost which relates to the value of the residential use portion of the replacement parcel.

(f) The acquiring agency may, for good cause, extend the time within which a displaced person shall purchase and occupy a replacement dwelling in order to qualify for replacement housing for homeowners under section 602-A of the act (26 P. S. § 1-602A).

The provisions of this § 151.5 amended March 2, 1973, effective March 3, 1973, 3 Pa.B. 411.

This section cited in 37 Pa. Code § 151.7 (relating to replacement housing down payment).

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.6 Replacement rental housing.

Damages payable under section 603-A(a)(1) of the act (26 P. S. § 1-603(A)(a)(1)) are determined by subtracting from the amount necessary to rent a comparable decent, safe and sanitary dwelling for the next 4 years the following amount:

(1) The average monthly rental paid by the relocated individual or family during the last 3 months multiplied by 48.

(2) If the average monthly rental is not reasonably equal to market rentals for similar dwellings, or if the displaced person or family owned the acquired dwelling, 48 times the economic rent.

(3) If the average monthly rental being paid by a displaced person or family, or, in the case of an owner the fair rental value, not including rent supplements paid by public agencies, exceeds 25% of the monthly gross income of the person or family, 12 times the average monthly gross income of the person or family.

The provisions of this § 151.6 amended through August 29, 1975, effective August 30, 1975, 5 Pa.B. 2262. Immediately preceding text appears at serial page (11024).

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.7 Replacement housing down payment.

If a displaced person who is not eligible for a payment under section 602-A of the act (26 P. S. § 1-602A), or who elects the benefits available under section 603-A of the act (26 P. S. § 1-603A), purchases or retains a dwelling and moves it to another location, the displaced person shall be entitled to a payment under section 601-A(a)(1) of the act (26 P. S. § 1-601A(a)(1)), in an amount not to exceed the sum of § 151.5(c)(1)—(7) (relating to replacement housing for homeowners) provided:

(1) The total payment will not exceed $4,000.

(2) The displaced person shall equally match the amount of the payment which exceeds $2,000.

(3) The full amount of the payment must be applied to the expenditures enumerated in § 151.5(c)(1)—(7).

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.8 Time and conditions of payment.

(a) No payment of damages under sections 602-A and 603-A of the act (26 P. S. § § 1-602A and 1-603A) shall be made unless the displaced person or family is occupying and, except in the case of damages under section 603-A(a)(1) of the act (26 P. S. § 1-603A(a)(1)) has purchased decent, safe and sanitary replacement housing.

(1) Upon the request of the displaced person, and if necessary to expedite the purchase or rental of a replacement dwelling, the acquiring agency shall pay the agreed amount of damages or, if there is no agreement as to the amount due, make a pro tanto payment in the amount of its estimate of the damages in advance of occupancy or purchase of the replacement dwelling.

(2) However, in that event, payment will be made jointly to the displaced person and a lending institution, title company, the seller or similar party in order to assure that the funds are available and used exclusively for settlement of the replacement dwelling.

(b) In order to assure equitable determination of damages payable under Article VI-A of the act (26 P. S. § § 1-601A—1-606A), final determination of damages will not be made until the displaced person, family, business or farm operator has purchased or rented a replacement dwelling, business or farm. This paragraph does not apply, however, where the business or farm operation is discontinued.

(c) Claims for damages for displacement shall be filed within the 18-month period beginning on the date on which the displaced person receives final payment of the full acquisition cost for his acquired property, if any, or on the date on which he moves or moves his property from the acquired property, whichever is the later date; provided, however, that the acquiring agency may extend the time for filing for good cause.

Unless there is a demonstrated need for ready access of funds for condemnees who must borrow money to acquire replacement real estate, condemnees are not entitled to funds to be used in making down payments on replacement dwellings. Baker v. County of Allegheny, 412 A.2d 190 (Pa. Cmwlth. 1980).

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.9 Eligibility for special damages for displacement.

Eligibility for special damages for displacement under Article VI-A of the act (26 P. S. § § 1-601A—1-606A) is limited to persons, families, businesses and farm operations displaced on or after January 2, 1971.

(1) Persons, families, businesses and farm operations displaced prior to January 2, 1971, are eligible for the special damages for displacement as were provided in sections 608—610 of the act (26 P. S. § § 1-608—1-610) and sections 614—618 of the act (26 P. S. § § 1-614—1-618) (Repealed) prior to the December 29, 1971, amendment or by sections 304.1—304.7 of the State Highway Law (36 P. S. § § 670-304.1—670-304.7) (Repealed).

(2) Persons, families, businesses or farm operations displaced on or after January 2, 1971, and no later than December 29, 1971, are eligible for the greater of any item of special damages for displacement now provided in the act or previously provided in the act or the State Highway Law (36 P. S. § § 670-304.1—670-304.7) (Repealed).

(3) Eligibility for the special damages for displacement shall be without regard to a final disposition made of a claim for the damages under prior law.

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.10 Contingent attorney fees.

In order to assure that displaced persons actually receive the maximum amount of special damages for dislocation payable under Article VI-A of the act (26 P. S. § § 1-601A—1-606A), the amount of the damages offered to a displaced person by an acquiring agency on its own initiative shall not be considered as damages paid to the displaced person for the purpose of determining the amount of a contingent attorney fee. This paragraph applies, not only to the original offer made by the acquiring agency to the displaced person, but to a subsequent increase in the offer initiated by the acquiring agency, whether made before or after the displaced person engaged the attorney’s services; provided, however, that this paragraph will not apply to an original or increased offer or payment obtained as a direct result of the attorney’s services on behalf of the displaced person.

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.11 Information and advice about special damages.

(a) In order to assure that each displaced person receives the maximum payments to which he is entitled under Article VI-A of the act (26 P. S. § § 1-601A—1-606A) the acquiring agency shall:

(1) Provide each potential displaced person with an information statement outlining the payments to which he may be entitled under the act at the earliest possible date prior to displacement.

(2) Make available at a reasonably convenient place, and at times which shall include hours other than normal working hours, a responsible person who can provide information and advice to displaced persons regarding the payments to which they may be entitled.

(3) Make available to displaced persons assistance in filling out and filing the required claim forms for the payments to which they may be entitled.

(b) In addition to outlining available benefits, the information statement shall contain the name, address, telephone number and hours of availability of the responsible person who can be contacted regarding the benefits, and shall outline the grievance procedure for appeal of a disagreement regarding the benefits, established in accordance with § 151.12 (relating to grievance procedures).

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

37 Pa. Code § 151.12 Grievance procedures.

(a) Each acquiring agency shall establish a grievance procedure whereby the head of the acquiring agency or his designee shall hear the grievances of displaced persons regarding the acquiring agency’s determination of their eligibility for or the amount of an item of special damages for displacement.

(b) Delegation of authority to hear appeals shall be in writing and shall be available for examination by the appellant. The authority will not be delegated below the level of the supervisor of the employe who made the initial determination.

(c) An aggrieved displaced person shall have the opportunity for a prompt hearing at a reasonably convenient time and place, or may appeal in writing, at his option.

(d) An aggrieved displaced person shall have the right to be represented by counsel and to present evidence, including evidence of comparable replacement dwellings, moving expenses and other matters bearing on special damage for displacement.

(e) The appeal shall be disposed of promptly, and the results conveyed to the appellant in writing.

This section cited in 37 Pa. Code § 151.11 (relating to information and advice about special damages).

History

Authority: The provisions of this Chapter 151 issued under the Eminent Domain Code (26 P.
Source: The provisions of this Chapter 151 adopted July 14, 1972, effective July 15, 1972, 2 Pa.

Subpart H Arbitration Panels for Health Care

Chapter 171 Rules of Practice and Procedure

37 Pa. Code § 171.1 Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: Act—The Health Care Services Malpractice Act (40 P. S. § § 1301.101—1301.1006). Administrator—Office of the Administrator for Arbitration Panels for Health Care in Harrisburg, Pennsylvania. Arbitration panel—Arbitration Panels for Health Care. Complaint—Does not include notice complaint. Filed—Received by the Administrator at his office in Harrisburg, Pennsylvania. Legal papers—Includes all papers filed with the Administrator except letters. Mail—First class United States mail with adequate postage affixed, unless otherwise specified in the act or this chapter. Motions—Includes petitions and, where applicable, preliminary objections.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.2 Rules of construction of this chapter.

All references to singular shall include plural, and the plural the singular. All references to masculine shall include feminine and neuter.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.3 Practice before the arbitration panels.

(a) Only attorneys currently admitted to practice before the Bar of the Supreme Court of Pennsylvania may practice before the arbitration panels unless they are associated in the action with an attorney so admitted.

(b) Subsection (a) supersedes 1 Pa. Code § § 31.22 and 31.23 (relating to appearance by attorney and other representation prohibited at hearings).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.4 Filing papers.

(a) Unless otherwise directed, all papers shall be sent to:

Office of Administrator

Arbitration Panels for Health Care

#3 Riverside Office Center, Suite K

2101 North Front Street

Harrisburg, Pennsylvania 17110

(b) Subsection (a) supersedes 1 Pa. Code § 31.5 (relating to communications and filings generally).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.5 Computation of time.

(a) Except as otherwise provided by law, in computing any period of time prescribed or allowed by the act or by this chapter, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday nor a holiday. A part-day holiday shall be considered as other days and not as a holiday. Intermediate Saturdays, Sundays and holidays shall be included in the computation.

(b) Subsection (a) supersedes 1 Pa. Code § 31.12 (relating to computation of time).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.6 Jurisdiction of arbitration panels.

(a) The arbitration panels shall have jurisdiction to hear and decide any claim brought against a health care provider by a patient or his representative for loss or damages resulting from the furnishing of medical services which were or which should have been provided. The arbitration panels shall also have jurisdiction to hear and decide any claim asserted against a nonhealth care provider who is made a party defendant with a health care provider.

(b) The arbitration panels shall have jurisdiction over any claim:

(1) Commenced before the arbitration panels by a plaintiff, subject to the consent of all parties under § 171.7 (relating to election of jurisdiction).

(2) Referred to the arbitration panels by a court of common pleas or pursuant to 42 Pa.C.S. § 7362, following which the procedures established by the act and this chapter shall control the proceedings before the arbitration panels.

The provisions of this § 171.6 adopted January 23, 1981, effective January 24, 1981, 11 Pa.B. 407.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.7 Election of jurisdiction.

(a) The commencement of a claim with the Administrator after January 31, 1981, shall constitute a consent of the plaintiff to the jurisdiction of the arbitration panels for proceedings under the act and this chapter. Thereafter, each defendant and additional defendant shall have the right to file an Election of Jurisdiction form requesting transfer of the claim to a court of common pleas with venue. Failure to file the Election of Jurisdiction form requesting transfer within 40 days after service of the initial process upon the defendant or additional defendant shall constitute consent to the jurisdiction of the arbitration panels for proceedings under the act and this chapter. The Election of Jurisdiction shall be made on the form set forth in § 171.155 (relating to form for Election of Jurisdiction). Also, the parties may consent to jurisdiction by written stipulation filed with the Administrator. No action will be taken by the Administrator on any praecipe, motion, preliminary objection or stipulation filed in a claim until all parties to the claim consent to the jurisdiction of the arbitration panels in one of the manners in this subsection.

(b) Any opposition to a request for transfer of a defendant or additional defendant shall be filed within 10 days after service of the Election of Jurisdiction form requesting the transfer. The opposition may question the venue of the court to which transfer is requested and the timeliness of the request to transfer and may raise any other relevant opposition. In addition, within the 10 days after service of the Election of Jurisdiction form requesting transfer, the plaintiff may file with the Administrator a request to transfer the claim to a court of common pleas other than that requested by a defendant of additional defendant, specifying the basis for venue in the county selected by the plaintiff.

(c) The Administrator will transfer the claim to the appropriate court of common pleas with venue following the timely filing of an Election of Jurisdiction form requesting transfer of a claim to a court of common pleas and the passage of time for objections. In determining which of several courts with venue should receive the claim, preference shall be given to the request of the plaintiff, if any.

The provisions of this § 171.7 adopted January 23, 1981, effective January 24, 1981, 11 Pa.B. 407.

This section cited in 37 Pa. Code § 171.6 (relating to jurisdiction of arbitration panels).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.8 Binding arbitration.

At any time, the parties may stipulate in writing to waive their rights under the act to appeal the decision of the arbitration panels. No such waiver shall apply if it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.

The provisions of this § 171.8 adopted January 23, 1981, effective January 24, 1981, 11 Pa.B. 407.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.11 Applicability of laws and rules.

(a) Except as provided in the act or in this chapter, Pa.R.C.P. shall govern all proceedings.

(b) Neither local rules of civil procedure nor 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) shall be applicable to proceedings under the act.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.12 Form of papers filed.

(a) The title of each legal paper, excluding the notice complaint and the complaint, shall designate the name of the filing party and whether the party is a plaintiff, defendant, or additional defendant. All correspondence mailed to the Administrator shall contain the name and docket number of the claim which is the subject of the correspondence and state below the signature the name of the party on whose behalf the correspondence is sent and whether such party is a plaintiff, defendant, or additional defendant.

(b) Any paper filed with the Administrator shall be the original and shall be bound at the top of the page. Only a single original of the paper need be filed. The paper shall be in the size for papers filed in the Pennsylvania Supreme Court.

(c) Unless otherwise provided in this chapter, an exact copy of every paper filed with the Administrator shall be sent to every other party. Neither conciliation conference memoranda nor arbitration panel selection lists returned to the Administrator need be served upon the other parties.

(d) Every paper filed with the Administrator by an attorney shall contain the attorney’s signature and address.

(e) Subsections (a)—(d) supersede 1 Pa. Code § 33.2 (relating to form).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.13 Docket.

(a) The Administrator will maintain a docket of all claims, and each claim as initiated will be assigned an appropriate designation. The docket will be available for inspection and copying by the public during the office hours of the Administrator insofar as consistent with the proper discharge of the duties of the Administrator.

(b) Subsection (a) supersedes 1 Pa. Code § 33.51 (relating to docket).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.14 Conference and hearing locations.

Conciliation conferences, prehearing conferences and arbitration panel hearings will be conducted in the county where the cause of action arose, but may, within the discretion of the Administrator, be held in any other place. The time and place for such conferences and hearings will be set by the Administrator or the arbitration panel chairperson, where appropriate, in accordance with the provisions of this chapter.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.21 Pleadings allowed.

Those pleadings allowed by Pa.R.C.P. No. 1017 shall be allowed in an action brought before the arbitration panel.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.22 Captions.

Every legal paper shall contain a caption as set forth in § 171.151 (relating to form for caption) indicating the county in which the alleged cause of action arose. The caption of a notice complaint or a complaint shall set forth the names of all the parties; but in other legal papers, it is sufficient to state the name of the first party on each side in the complaint with an appropriate indication of other parties.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.23 Commencement of proceedings.

(a) An action may be commenced by the filing of the filing fee required by § 171.131 (relating to arbitration costs) and a notice complaint or a complaint with the Administrator. The filing shall be made in person or by certified mail, return receipt requested. The notice complaint shall be in the form set forth in § 171.152 (relating to form for notice complaint).

(b) Each notice complaint and complaint filed with the Administrator shall have attached a certification that, on or before the day of filing, a copy of such notice complaint or complaint was served in accordance with § 171.25 (relating to service) on all parties. The certification shall also contain the date of personal delivery or mailing to the Administrator. The certification shall clearly specify the address where service was sent and the form and date of mailing or personal service.

(c) When an action is transferred to the arbitration panels from another court or tribunal, the plaintiff shall be responsible for paying to the Administrator all necessary fees for the filing of a claim before the arbitration panels.

This section cited in 37 Pa. Code § 171.24 (relating to tolling of the statute of limitations).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.24 Tolling of the statute of limitations.

When an action is commenced before the arbitration panels, the statute of limitations shall be tolled as of the date the notice complaint or complaint is delivered to the Administrator in person or deposited in the mail in accordance with § 171.23 (relating to commencement of proceedings).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.25 Service.

(a) Except for conciliation conference memoranda and returned arbitration panel selection lists, exact copies of all papers filed with the Administrator shall be served on or before the date of filing by the filing party upon all counsel of record and directly upon any party who has no counsel of record. The paper filed with the Administrator shall contain a certification of such service.

(b) Unless otherwise directed, service of notice complaints, complaints, amended complaints, rules to file a complaint, writs to join additional defendants, and notices of arbitration hearings shall be made personally or by certified mail, return receipt requested. Unless otherwise directed, service of all other papers shall be made personally or by first class mail. Proof of the mailing of documents shall be prima facie evidence of service.

(c) Subsections (a) and (b) supersede 1 Pa. Code § § 33.32—33.35 (relating to service by a participant; effect of service upon an attorney; date of service; and proof of service).

This section cited in 37 Pa. Code § 171.23 (relating to commencement of proceedings).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.26 Notice of appearance.

(a) When a party proceeds without counsel, he shall file with the Administrator a written notice containing his telephone number and an address at which any notice or other written communication may be served upon him. This subsection supersedes 1 Pa. Code § 31.24(a) (relating to notice of appearance).

(b) When an attorney appears in a representative capacity for any party, he shall file with the Administrator a written notice of such appearance which shall state his name, firm’s name, address, telephone number, current attorney’s certificate number, and the name and address of the party on whose behalf he appears. This subsection supersedes 1 Pa. Code § 31.24(b) (relating to notice of appearance).

(c) An attorney’s notice of appearance shall be in the form set forth in § 171.153 (relating to form for notice of appearance).

(d) The attorney or party who has entered an appearance shall promptly notify the Administrator of any change or error in the information provided in the notice of appearance.

(e) The Administrator is under no duty to serve papers upon a party or attorney who fails to file a notice of appearance.

(f) If an attorney seeks to withdraw his appearance for a party when no other attorney is representing the party, the withdrawing attorney shall be granted leave to withdraw only upon petition showing good cause and prior notice to the party represented by the attorney. If the party is represented by co-counsel or if another attorney is entering his appearance concurrently with the request to withdraw, an attorney may withdraw his appearance by praecipe alone.

This section cited in 37 Pa. Code § 171.27 (relating to service on attorneys).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.27 Service on attorneys.

(a) Where an attorney has filed an appearance under § 171.26 (relating to notice of appearance), any subsequent notice or other written communication required to be served upon or furnished to the client shall be served upon or furnished to the attorney, or one of such attorneys if the client is represented by more than one attorney, at the stated address of the attorney in the same manner as prescribed for his client, notwithstanding the fact that such communication may in addition be furnished directly to the client.

(b) Subsection (a) supersedes 1 Pa. Code § 31.26 (relating to service on attorneys).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.28 Joinder of additional parties.

Subject to the limitations of Pa.R.C.P. at any time up to the selection of any panel members, a party may join any additional party who may be necessary and proper to a just determination of the claim.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.31 Discovery permitted.

Except as provided by this chapter or directed by the Administrator, parties to the arbitration may take depositions and obtain discovery regarding the subject matter of the arbitration and may use and exercise the same rights, remedies, and procedures and be subject to the same duties, liabilities and obligations in the arbitration procedure as if the subject matter of the arbitration were pending in a civil action before a court of common pleas of the Commonwealth.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.33 Discovery limitations.

(a) The time limits on commencing discovery in all claims shall be the same as those set forth in Pa.R.C.P.

(b) Unless otherwise directed, all discovery shall be completed within 30 days after the Administrator confirms that the claim is ready for arbitration pursuant to § 171.71(d) (relating to certificate of readiness). A petition for extension of time for discovery shall clearly demonstrate to the Administrator the petitioner’s diligence in the pursuit of discovery in the time permitted, the need for further discovery, and specific plans and schedule for a prompt conclusion to discovery. The time limitation placed on discovery does not relieve an expert witness or a party of a responsibility to file supplemental responses. The parties may file the supplemental responses after the close of discovery without seeking leave of the Administrator.

(c) Absent agreement of the parties or leave of the Administrator, depositions shall be held in the county in which the cause of action arose.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.34 Filing of discovery.

Unless otherwise provided in this chapter, all discovery which Pa.R.C.P. requires to be filed in a court shall be filed with the Administrator.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.35 Subpoenas.

(a) Upon payment of the appropriate fee by a party, the Administrator will issue subpoenas to require the attendance of witnesses and the production of documents and tangible things at a deposition or an arbitration hearing.

(b) Any witness who refuses to obey a subpoena issued by the Administrator or an arbitration panel; who refuses to be sworn or affirmed or to testify; or who is guilty of any contempt after summons to appear may be punished for contempt of court. The contempt of court proceedings shall be held in the court of common pleas in the county in which the cause of action arose.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.41 Ruling on prehearing procedures and discovery.

(a) Prior to the appointment of a chairperson of an arbitration panel, the Administrator will determine all questions involving prehearing procedures, discovery, and motions. After a chairperson has been designated by the Administrator, the chairperson shall assume such responsibilities. Prior to the first meeting of the arbitration panel, all petitions for approval of compromise, settlement or discontinuance required or authorized by law or rule of court will be determined by the Administrator.

(b) Unless otherwise directed by the act, this chapter or the Administrator, the parties may file any motion permitted under Pa.R.C.P.

(c) Unless the Administrator determines that depositions or oral argument are required, the Administrator will automatically decide motions and preliminary objections after answers thereto have been filed or the time for filing an answer has passed.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.42 Presenting motions.

All motions made prior to the commencement of the arbitration hearing shall be in writing, unless otherwise directed, and shall be filed with the Administrator.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.43 Oral argument.

(a) Any party—by filing a formal Request for Oral Argument—or the Administrator may request oral argument on any motion. The oral argument shall be held in Harrisburg, unless otherwise directed. The Administrator may direct that oral argument be made by a telephone conference call.

(b) The Administrator will have the power to control the form, manner and time of each oral argument.

(c) A party’s failure to file a specific Request for Oral Argument with his motion or answer to the motion will be deemed an election to proceed without oral argument. The Administrator may deny oral argument if he determines it will serve no useful purpose.

(d) This section may not affect the parties’ need to file memoranda of law or answers within the time limits provided by this chapter.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.44 Supporting legal authority.

(a) A party filing a preliminary objection, motion, answer to preliminary objection, or answer to a motion shall serve and file therewith a memorandum of law to be relied upon. The absence of the memorandum may be deemed by the Administrator as an admission that such party’s argument is not meritorious and may provide cause for its denial.

(b) Subsection (a) supersedes 1 Pa. Code § § 35.9, 35.17 and 35.35 (relating to formal complaints generally; petitions generally; and answers to complaints and petitions).

Interlocutory

The dismissal of an administrator of several counts of a complaint is an action for which an interlocutory appeal is permissible. Gilbert v. Cogan, 8 Pa. D. & C.3d 322 (1978).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.45 Time for filing opposition.

(a) A party’s answer to preliminary objections and the memorandum of law in support of the answer shall be filed within 20 days after service of the preliminary objections upon the party. A party’s answer to all other motions and the memorandum of law in support of the answer shall be filed within ten days after service of the motion upon the party.

(b) A party’s failure to timely file formal opposition may be deemed an admission that there is no objection to the preliminary objections or motion.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.46 Formal motions.

Letters shall not be used as substitutes for pleadings, motions, briefs, praecipes, answers to motions or other legal papers.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.47 Withdrawal of motions.

(a) Where a party wishes to withdraw his preliminary objections or mo- tion, he shall promptly file a praecipe to withdraw the preliminary objections or motion from consideration.

(b) Subsection (a) supersedes 1 Pa. Code § 35.51 (relating to withdrawal of pleadings).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.51 Scope and contents of motions.

After a hearing has commenced in a proceeding, a request may be made by motion for any procedural or interlocutory ruling or relief desired and permitted by Pa.R.C.P. except as may be otherwise expressly provided in this chapter. Motions shall set forth the ruling or relief sought, and state the grounds therefor and the legal authority relied upon.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.52 Presentation of motions.

Motions may be made in writing at any time. Motions made during hearings may be stated orally upon the record or the arbitration panel chairperson may require that such oral motions be reduced to writing and filed separately. Any objections to the motions shall be made promptly.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.53 Action on motions.

The arbitration panel chairperson is authorized to rule upon any motion not formally acted upon by the Administrator prior to the commencement of the hearing, where immediate ruling is essential in order to proceed with the hearing and upon any motion filed or made after his appointment as panel chairperson.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.61 Conciliation conference.

(a) At any time after the filing of the complaint, any party may file a request for a conciliation conference in the form in § 171.154 (relating to form for request for conciliation conference). In addition, at any time, the Administrator may determine that a conciliation conference would be beneficial to the progress of the claim and direct the parties or their counsel to attend.

(b) At a time and place designated by the Administrator with due consideration of those required to attend, the counsel to the parties and those parties for whom there is no counsel of record shall meet with the Administrator or his deputy to discuss possible settlement, compromise, or discontinuance of the claim. The Administrator may require any party or his representative to attend in person.

(c) Unless otherwise directed, at least 14 days prior to the conciliation conference, each party or his counsel shall submit to the Administrator a conciliation conference memorandum stating his view of the case and the terms and conditions of a possible settlement. While such memoranda will be held in confidence by the Administrator and not be given to the members of the arbitration panel, other parties, or members of the public, the parties are encouraged to exchange their memoranda prior to the conciliation conference.

(d) Prior to the conciliation conference, counsel shall discuss the issues of liability, damages and settlement with his client. Counsel shall come to the conciliation conference prepared and authorized to settle the action at an amount approved by his client.

(e) Unless waived by the Administrator, at least one conciliation conference shall be held prior to the filing of a certificate of readiness.

(f) Subsections (a)—(e) supersede 1 Pa. Code § § 35.111—35.116 (relating to prehearing conferences).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.62 Contents of conciliation conference memorandum.

The conciliation conference memorandum shall include or have attached thereto, where appropriate to the respective parties, the following:

(1) A summary of all items of damages which the plaintiff intends to prove, including medical and hospital expenses and loss of earnings. Claims for loss of earnings shall set forth the names of employers, dates of absences and rates of pay. If plaintiff is self-employed, information which forms the basis of the claim for the loss of earnings shall be supplied.

(2) Medical reports of any doctor who treated, examined or was consulted in connection with the injury forming the basis of the claim.

(3) All hospital records pertaining to the injury forming the basis of the claim. If reproduction of all records would be burdensome, the party shall instead produce a copy of the admission and discharge records and any other relevant records.

(4) The written reports of any expert whom the party expects to call at the arbitration hearing. The reports shall include the findings and conclusions of the expert.

(5) A statement fully disclosing all legal theories and contentions which the parties intend to pursue at the arbitration hearing.

(6) A statement indicating whether the parties have conferred previously concerning possible settlement or compromise of the claim and, if so, a statement of the lowest demand of the plaintiff and the highest offer of the defendant.

(7) The party’s evaluation of the case and the dollar amount for which the party would settle the case.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.71 Certificate of readiness.

(a) A party who believes that a claim is ready for an arbitration hearing may submit to the Administrator a certificate of readiness. The certificate of readiness may be submitted by any party after the expiration of 60 days from the filing of the initial complaint.

(b) The certificate of readiness shall be properly captioned and contain a certification stating:

(1) That the claim is ready for assignment to an arbitration panel.

(2) That the filing party’s discovery in the case will be completed within 30 days after the date the Administrator confirms that the claim is ready for arbitration pursuant to subsection (d).

(3) That the filing party has received the opinion of an expert supporting his position or specific reasons why he will not need expert testimony to prevail at the arbitration hearing.

(4) That a conciliation conference has been held or waived by the Administrator.

(5) That serious settlement negotiations have been conducted among the parties, but it does not appear further negotiations will be productive.

(6) Whether the claim involves a hospital administrator, podiatrist or osteopathic physician or surgeon.

(7) That on or before the day of filing, a copy of the certificate of readiness was mailed to or served personally upon all other parties.

(c) Any objection to a certificate of readiness must be properly captioned as such and filed within 14 days after the objecting party has received the certificate of readiness. The objection to a certificate of readiness shall set forth a detailed and specific explanation of why the claim is not ready for assignment to an arbitration panel.

(d) If, upon review of the record, the Administrator confirms that the claim is ready for arbitration, he will begin the selection of an arbitration panel and will notify the parties in writing of his decision.

(e) Solely for purposes of section 403 of the act (40 P. S. § 1301.403), a certificate of readiness will be considered to be filed when the Administrator receives it and one of the following conditions is satisfied:

(1) The certificate of readiness has been signed by all the parties to a claim.

(2) The certificate of readiness has been signed by one party and a stipulation has been signed by all other parties waiving any objection to the certificate.

(3) No timely objection to a certificate of readiness has been submitted to the Administrator.

(4) If any written objection was submitted, the Administrator has dismissed the objection and confirmed that the claim is ready for arbitration.

This section cited in 37 Pa. Code § 171.33 (relating to discovery limitations); 37 Pa. Code § 171.73 (relating to panel selection procedure); and 37 Pa. Code § 171.77 (relating to transfer to a Court of Common Pleas).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.72 Selection of panelists by stipulation.

(a) The parties may not be restricted to the arbitration panel members selected by the Administrator. Prior to the selection of panel members by the Administrator or at any time there is a vacancy on an arbitration panel, the parties may file with the Administrator a stipulation requesting the Administrator to fill any vacancy with a named person to serve within the appropriate category.

(b) The panel member candidates will be invited to serve by the Administrator.

This section cited in 37 Pa. Code § 171.74 (relating to filling vacancies).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.73 Panel selection procedure.

(a) After a certificate of readiness is filed in accordance with § 171.71(e) (relating to certificate of readiness), the Administrator will select a health care provider, an attorney, and a layperson as arbitration panel members for positions not already filled by stipulation of the parties. The Administrator will send to each party a list of the panel members with a biographical statement and a sample copy of the oath to be signed by each.

(b) Each party may challenge for cause any panel members selected by the Administrator. The Administrator’s determination of a challenge for cause shall be conclusive.

(c) Each party may exercise a peremptory challenge against one member of the panel selected by the Administrator. If a party makes one or more challenges for cause, he may indicate in order of preference the panel member against whom he would want to exercise his peremptory challenge after any challenges for cause have been decided. Any peremptory challenge not timely made to the panel members named on the list sent by the Administrator shall be deemed waived as to those members.

(d) Any challenges for cause or peremptory challenges must be received by the Administrator within 14 days from the mailing of the list first naming the challenged panel members. If a party learns of grounds for disqualification of an arbitration panel member, he shall promptly notify the Administrator and all other parties. Any challenges for cause filed more than 14 days after the mailing of the list of panel members will be considered only upon a showing of good cause for the delay in making the challenge and shall be based upon information received after the period for making a timely challenge.

(e) In order to achieve a fair distribution of peremptory challenges, the Administrator may, where there is more than one plaintiff or more than one defendant or more than one additional defendant, consider any one or more of such groups as a single party.

The provisions of this § 171.73 amended June 19, 1981, effective July 12, 1980, 11 Pa.B. 2134. Immediately preceding text appears at serial page (49307).

This section cited in 37 Pa. Code § 171.74 (relating to filling vacancies); and 37 Pa. Code § 171.77 (relating to transfer to a Court of Common Pleas).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.74 Filling vacancies.

(a) If any arbitration panel member should resign, die, withdraw, refuse, be disqualified, or be unable to perform the duties of service, the Administrator will, on proof satisfactory to him, declare the office vacant. Vacancies will be filled in accordance with subsections (b) and (c).

(b) If the office is declared vacant prior to the commencement of the hearing, the Administrator will appoint a substitute member from the same category in which the vacancy exists and the procedure in § 171.73 (relating to panel selection procedure) will be followed; however, only a party who has not previously exercised his peremptory challenge may peremptorily challenge an Administrator’s appointee. The parties may stipulate to a substitute member under § 171.72 (relating to selection of panelists by stipulation).

(c) If the office is declared vacant after commencement of the hearing, the matter shall be reheard before a new arbitration panel selected in accordance with § 171.73 unless all the parties, with the approval of the administrator agree otherwise.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.75 Panel membership requirements.

(a) No arbitration panel member may be related by blood or marriage to a fellow panel member or to any party or attorney of record in the claim.

(b) Panel members may reside in any county in this Commonwealth, not merely the county in which the arbitration hearing will be conducted.

(c) The attorney and the health care provider members of each arbitration panel shall be or have been practicing members of their respective professions. The attorney member shall have at least 3 years of trial experience and be in good standing with the Pennsylvania Supreme Court, and the health care provider member shall have a current, valid license or be a hospital administrator.

(d) No panel member may be a party in a current action based on professional malpractice.

(e) The parties may stipulate to waive any of the requirements in this section and to promptly file the stipulation with the Administrator.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.76 Invitation and disclosure of interests of panel members.

(a) After determining any challenges for cause and noting peremptory challenges, the Administrator will invite the selected members to serve on the arbitration panel. Prior to the arbitration hearing, each invited member shall sign and file with the Administrator an agreement to serve and an oath of office.

(b) A person invited to serve as an arbitration panel member may decline to serve or shall disclose to the Administrator under oath circumstances which might affect his impartiality.

(c) The Administrator will promptly communicate such disclosure to the parties. Written challenges for cause based on the disclosure must be received by the Administrator within 14 days after the date on the Administrator’s notice of disclosure or they shall be deemed waived. Thereafter, the Administrator will determine in his discretion whether the member should be disqualified and will inform the parties of his decision, which will be conclusive.

(d) The fact that a panel member is insured by the same company insuring the professional liability of a defendant or additional defendant in the subject action shall not be grounds for a valid challenge for cause.

(e) If an arbitration panel member knowingly fails to make the required disclosure contained in subsection (b), the Administrator will remove him from the arbitration panel and from the list of future arbitration panel candidates and will report the circumstances of the violation to the appropriate public prosecutor or licensure board or to the Disciplinary Board of the Supreme Court of Pennsylvania.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.77 Transfer to a Court of Common Pleas.

(a) If an arbitration panel is not selected as defined in subsection (b) by the Administrator within 90 days after the filing of a certificate of readiness as defined in § 171.71 (relating to certificate of readiness), the Administrator upon petition of any party will forthwith transfer the claim to the Court of Common Pleas having venue over the claim as defined in Pa.C.R.P. No. 1807.

(b) For purposes of this section, an arbitration panel shall be considered selected when the Administrator has chosen a health care provider, attorney, and layperson to sit on that arbitration panel. After the selection is made, the Administrator will send the list of panel members to the parties under § 171.73 (relating to panel selection procedure).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.81 Prehearing conference.

(a) At least 30 days before the date set for the arbitration panel hearing, counsel for the parties and the parties for whom there is no counsel of record shall meet with the panel chairperson in a prehearing conference. The parties to the prehearing conference shall consider:

(1) Simplification of the issues.

(2) The exchange of exhibits and other documentary evidence proposed to be offered in evidence.

(3) The obtaining of admissions or stipulations regarding facts and the authenticity of documents which might properly shorten the hearing.

(4) Limitation of the number of expert witnesses to be called and scheduling of appearances of expert witnesses.

(5) The estimated length of the hearing.

(6) The date for the first hearing and the scheduling of successive hearings.

(7) Other matters that may aid in the expeditious consideration and disposition of the claim.

(b) All parties shall come to the conference fully prepared for a useful discussion of all problems involved in the proceeding, both procedural and substantive, and fully authorized to make commitments with respect thereto. The preparation should include, among other things, advance study of all relevant material and advance informal communication between the parties, including requests for additional data and information, to the extent it appears feasible and desirable.

(c) The arbitration panel chairperson shall make an order reciting the agreements made at the prehearing conference by counsel or the parties as to any of the matters considered. Copies of the order shall be sent to the Administrator and counsel or the parties for whom there is no counsel of record and shall control the subsequent consideration of the action unless written objection specifying an error in the recitation of such agreements is received by the panel chairperson from counsel or a party within seven days after receipt of such order or unless modified at the arbitration panel hearing with the approval of the parties and the chairperson.

(d) At the prehearing conference, the parties shall supply to opposing counsel and the chairperson a copy of all exhibits to be offered at the hearing.

(e) Subsections (a)—(d) supersede 1 Pa. Code § § 35.111—35.116 (relating to prehearing conferences).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.91 Hearing location.

Arbitration panel hearings shall be conducted in the county where the cause of action arose, but may, within the discretion of the Administrator, be held in any other place. The time and place for such initial hearing will be set by the Administrator after consultation with the chairperson of the panel. The Administrator or panel chairperson will send by certified mail, return receipt requested, notice of the hearing to each party or counsel of record and to each arbitration panel member at least 14 days in advance unless all parties waive the notice.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.92 Requests for continuance or cancellation of an arbitration hearing.

(a) A request for a continuance shall be made in writing and filed with the Administrator and a copy sent to the panel chairperson. Following the arbitration hearing, the chairperson shall notify the Administrator of time, costs and expenses incurred by a continuance granted and the Administrator may tax the party who requested the continuance for costs incurred by the Administrator as a result of the continuance which costs would not have been incurred without the continuance.

(b) When an action has been settled or discontinued, the parties shall promptly notify the Administrator and the panel chairperson. If notification is made within 14 days of the scheduled arbitration hearing, each party shall bear an equal share of any fees the Administrator is required to pay the panel members, excluding fees paid to the panel chairperson for preparation for the arbitration hearing.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.93 Grounds for continuance.

The panel chairperson shall rule on a request for a continuance and shall notify the Administrator of his decision and the reason for any continuance granted. The grounds for continuance set forth in Pa.R.C.P. No. 216 shall be applicable to requests for continuance of an arbitration hearing.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.94 Interpreter.

The Administrator will arrange for the services of an interpreter at the arbitration hearing upon the request of any party made at least 30 days before the arbitration hearing. The cost will be paid by the Administrator.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.95 Trial briefs.

(a) At least 7 days prior to the beginning of the arbitration hearing, each party, by filing the original with the Administrator and a copy with the panel chairperson, shall submit to the panel a trial brief.

(b) Subsection (a) supersedes 1 Pa. Code § 35.221 (relating to briefs and oral agreement in absence of proposed report).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.96 Arbitration hearing procedure.

(a) Arbitration hearings shall be opened by the introduction of the oaths of the arbitration panel members and by recording the place, time and date of the hearing and the presence of the members, parties, and counsel.

(b) The plaintiff shall first present his claim and proofs and his witnesses, who shall submit to questions or other examination by the other parties and by the arbitration panel chairperson. The defendant shall then present his defense and proofs and his witnesses, who shall submit to questions or other examination by the other parties and by the arbitration panel chairperson. The plaintiff shall have the right to present evidence in rebuttal and the defendant shall have the right to present evidence in surrebuttal. Panel members, other than the panel chairperson, may question a witness only by submitting questions in writing to the chairperson who shall propound them if he finds such questions to be proper. The decision of the chairperson on the legal propriety of these questions shall be conclusive.

(c) The arbitration panel may in its discretion vary this procedure; but, in all cases, it shall afford full and equal opportunity to all parties for the presentation of any material and relevant proofs.

(d) The names and addresses of all witnesses and exhibits in order received shall be made a part of the record.

(e) Subsections (a)—(c) supersede 1 Pa. Code § § 35.125, 35.126 and 35.137 (relating to order of procedure; presentation by the parties; and oral examination).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.97 Applicability of laws and rules.

(a) Except as provided in this chapter, the arbitration panel is bound by the common and statutory law of the Commonwealth, Pa.R.C.P. and the Pennsylvania rules of evidence.

(b) Subsection (a) supersedes 1 Pa. Code § 35.161 (relating to form and admissibility of evidence).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.98 Powers and duties of panel chairperson.

The chairperson of the arbitration panel shall supervise the decorum of the proceedings. The chairperson may make and enforce rules and orders:

(1) Limiting the number of witnesses whose testimony is similar or cumulative.

(2) Limiting the number of attorneys representing the same party or the same group of parties who may actively participate in the trial of the case or may examine or cross-examine witnesses.

(3) Regulating the number and length of addresses to the arbitration panel.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.99 Absence of panel member at hearing.

If any panel member, after having received due notice of his appointment and the date, time and place of the arbitration hearing, fails to attend the hearing and undertake the duties of the appointment or give notice of his necessary absence to the Administrator more than 7 days in advance of the scheduled hearing, unless as a result of illness or other unavoidable cause, the Administrator may require the panel member to pay a sum equal to the costs incurred by the Administrator as a result of his absence.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.100 Hearing in absence of a party.

(a) The arbitration hearing may proceed in the absence of any party who, after due notice, fails to be present or fails to obtain a continuance.

(b) The arbitration panel may dismiss the action upon failure of the plaintiff to submit evidence and proof required for the making of an award.

(c) An award shall not be made solely on the default of a defendant. The arbitration panel members shall require the plaintiff to submit the evidence and proof as they may require for the making of an award.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.101 Hearing testimony under oath or affirmation.

All testimony taken before an arbitration panel shall be taken under oath or affirmation.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.102 Admission of exhibits and deposition into evidence.

(a) No exhibit or portion of a deposition shall be considered by an arbitration panel in its deliberations unless it is admitted into evidence by the arbitration panel chairperson.

(b) Subsection (a) supersedes 1 Pa. Code § 35.151 (relating to status of deposition as part of record).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.103 Presentation and effect of stipulations.

(a) Independently of the orders or rulings issued as a result of the pre-hearing conference, the parties may stipulate as to any relevant matters of fact or the authenticity of any relevant documents. The stipulations may be received in evidence at a hearing and, when so received, shall be binding on the parties with respect to the stipulated matters.

(b) Subsection (a) supersedes 1 Pa. Code § 35.155 (relating to presentation and effect of stipulations).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.104 Limitation on matters considered.

(a) Arbitration panel members shall not consider or bring into the deliberations any matters not admitted into evidence, but may consider those facts of which a court could properly take judicial notice and the chairperson shall so charge the panel.

(b) Subsection (a) supersedes 1 Pa. Code § 35.173 (relating to official notice of facts).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.105 Recording of proceedings.

(a) Unless directed by the Administrator, no official recording or transcript shall be made of the arbitration hearing. This shall not prevent a party from having a record or a transcript of the hearing made at his expense. If a party has a recording or a transcript made, he shall upon request furnish a copy to any other party upon payment of a reasonable charge.

(b) Subsection (a) supersedes 1 Pa. Code § § 35.131 and 35.133 (relating to recording of proceedings; and copies of transcripts).

The provisions of this § 171.105 amended June 6, 1980, effective July 1, 1980, 10 Pa.B. 2332. Immediately preceding text appears at serial pages (49314) to (49315).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.106 Points for charge.

(a) Counsel shall submit copies of requested points for charge and supporting brief to the arbitration panel chairperson and to the opposing attorneys before any closing addresses to the panel are begun or, if directed by the chairperson, at an earlier time.

(b) The arbitration panel chairperson shall rule on suggested points for charge and shall charge the members of the panel at the hearing in the presence of counsel prior to the beginning of deliberations by the panel. Counsel may object to the charge only before the panel retires to deliberate.

(c) If the arbitration panel chairperson determines during the deliberations of the panel that there is need for additional points for charge or correction of prior points for charge, he shall notify counsel for the parties and shall give the additional or corrected points for charge to the members of the panel in the presence of counsel. Counsel may object to the additional or corrected points for charge only before the panel resumes its deliberations.

The provisions of this § 171.106 amended June 19, 1981, effective July 12, 1980, 11 Pa.B. 2134. Immediately preceding text appears at serial page (50497).

Delayed Damages

Damages for delay must be requested as a point for charge under 37 Pa. Code § 171.106; absent such request, such damages are presumed to be included in the arbitrator’s award. Harmer v. Horsham Hospital, Inc., 431 A.2d 1187 (Pa. Cmwlth. 1981).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.107 Decision of panel by majority vote.

All decisions of the arbitration panel shall be by majority vote of the members, except decisions on questions of law and admissibility of evidence which shall be decided by the chairperson of the arbitration panel.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.108 Panel deliberations.

(a) Upon conclusion of the hearing, the arbitration panel members shall remain together and deliberate in private until a decision has been reached in the action and damages, if any, have been awarded.

(b) Upon reaching a decision as to liability and award of damages, if any, the panel shall promptly sign and transmit a statement of their determination, any findings of fact, and any answers to special written interrogatories to the Administrator and copies thereof to the parties.

(c) The Administrator will record on the docket the decision as to liability and award of damages and notify the parties of the docketing.

(d) A party may praecipe for entry of a judgment upon the arbitrators’ award if no timely Notice of Appeal has been filed.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.111 Admissibility of record on appeal.

(a) Where an appeal is taken, the decision and findings of fact of the arbitration panel shall be admissible as evidence before the court; however, any award of damages shall not be admissible as evidence.

(b) For the purpose of reporting the decision to the court where the appeal is taken, the decision which shall be admissible before the court of common pleas shall state as follows: ‘‘The Arbitration Panel for Health Care in this case found (for the plaintiff) (for the defendant(s)) (unanimously) (not unanimously).’’

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.112 Definition of record costs for appeal purposes.

(a) For the purpose of appeal under section 509 of the act (40 P. S. § 1301.509), record costs to be deposited by the appellant with the prothonotary of the court to which the appeal is taken shall be those fees received by the Administrator from the appellees pursuant to § 171.131 (relating to arbitration costs).

(b) A party taking an appeal from a decision rendered by an arbitration panel may make a written request for a certified statement of the record costs accrued in the case. A certified statement of the record costs will be furnished in writing by the Administrator within 7 days after receipt of the request.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.113 Limitation on panel member participation in appeals.

No arbitration panel member may participate as counsel or witness in a trial on appeal of a case heard by him.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.121 Offers of settlement.

(a) Nothing contained in this chapter shall be construed as precluding any participant in a case from submitting at any time offers of settlement or proposals of adjustments to all parties or from requesting a conference with the Administrator or his deputy for such purpose. Unaccepted proposals of settlement or of adjustment shall be privileged and shall not be admissible in evidence against any counsel or person claiming such privilege.

(b) Subsection (a) supersedes 1 Pa. Code § 35.115 (relating to offers of settlement).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.122 Approval of settlements.

Approval of a compromise, settlement, or discontinuance involving fiduciaries, minors, or incompetent parties by the Administrator or the arbitration panel shall relieve the parties of obtaining approval by an appropriate court where approval is required by Pa.R.C.P. In those actions in which Pa.R.C.P. requires court appointment of a guardian or other fiduciary in order to effect a compromise, settlement, or discontinuance, such appointment shall be obtained from the local court of common pleas prior to seeking approval of the compromise, settlement or discontinuance from the Administrator or the arbitration panel.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.123 Mandatory filing of certificates of readiness.

(a) In all actions commenced prior to the effective date of this section, the parties shall file a certificate of readiness within 1 year after the effective date of this section. In all actions commenced on or after the effective date of this section, the parties shall file a certificate of readiness within 1 year after the commencement of the action.

(b) Prior to the expiration of the period limited in subsection (a), any party may move for extension of the period. The motion must set forth the grounds for the request and the length of extension required. The Administrator will grant the extension only upon finding good cause. The order of extension, if any, will set forth the new date for certifying readiness, which may be sooner than that requested but may not be later. This subsection supersedes 1 Pa. Code § 31.15 (relating to extensions of time).

(c) If the documents are not filed within the time limits listed in subsections (a) and (b), the Administrator, with or without motion by any party, will require that good cause be shown why the case should not be dismissed for want of prosecution.

(d) For purposes of this section only:

(1) An action is commenced when the initial notice complaint or complaint is received by the Administrator.

(2) Actions will be processed under subsection (c) in order of their commencement.

Constitutionality

The Pennsylvania Health Care Services Malpractice Act (40 P. S. § 1301.101 et seq.) should not be held unconstitutional on the basis that delays in processing claims under the Act’s procedural provisions result in oppressive delay and infringe on the right to trial by jury because amendments to the Act and the provisions of 37 Pa. Code § 171.123(a) mandating filing of certificates of readiness assure litigants that trial will not be unreasonably delayed. Mattos v. Thompson, 421 A.2d 190 (Pa. 1980). (Dissenting Opinion.)

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.124 Second action.

(a) After a discontinuance or voluntary nonsuit without prejudice has been entered, the plaintiff may commence a second action on the same cause of action upon payment of the cost required for filing a new action. The second action shall be heard by the same arbitration panel members selected in the first action if such panel members have already been selected and if the members of the original panel agree to serve.

(b) After the entry of a compulsory nonsuit, the plaintiff may not commence a second action upon the same cause of action except by the process of appeal to a court of common pleas in accordance with the act.

(c) The entry by the Administrator of a judgment of non pros, a judgment by default or a dismissal shall be treated as an order of the Administrator with any appeal being made to the Commonwealth Court.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.131 Arbitration costs.

The following fees shall be paid to the Administrator in suits filed under the act:

(1) Complaint—$35 plus $10 for each extra defendant in cases involving more than one defendant.

(2) Joinder of additional defendants by a defendant—$10 for each defendant joined.

(3) Appeal—When an appeal is taken from a decision of an arbitration panel or of the Administrator, the appellant shall pay $25 to cover the responsibilities of the Administrator. This does not include any fees required by the court hearing the appeal.

(4) Subpoena—$1 for each subpoena issued.

This section cited in 37 Pa. Code § 171.112 (relating to definition of record costs for appeal purposes); and 37 Pa. Code § 171.23 (relating to commencement of proceedings).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.132 Payment of fees.

All fees shall be paid by check or money order made payable to the ‘‘Commonwealth of Pennsylvania.’’

The provisions of this § 171.132 amended February 8, 1980, effective February 12, 1980, 10 Pa.B. 977.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.133 Copy fees.

(a) Uncertified copies of documents filed with the Administrator will be furnished at a charge of 25¢ per page. Certified copies of documents filed with the Administrator will be furnished at a charge of $1 per page.

(b) Fees for copies of documents shall be paid in advance. The Administrator on request will advise as to the cost of preparing a copy of a particular paper.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.134 Witness fees and mileage allowance.

(a) The fees and mileage allowance for a subpoenaed witness shall be the same as those allowed in an action in the court of common pleas in the county in which the witness testifies.

(b) Subsection (a) supersedes 1 Pa. Code § 35.139 (relating to fees of witnesses).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.135 Fees of officers and deponents.

(a) A deponent whose deposition is taken and the notarial officer taking the deposition shall be entitled to the same fees as are paid for like services in the court of common pleas in the county where the deposition is taken, which fees shall be paid by the party at whose request the deposition is taken.

(b) Subsection (a) supersedes 1 Pa. Code § 35.152 (relating to fees of officers and deponents).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.141 Direct communications prohibited.

(a) Other than at the arbitration hearing, the parties and their counsel may not directly communicate in any way with the arbitration panel members concerning the pending arbitration. Any oral or written communications from the parties to an arbitration panel member, other than at hearings, shall be directed to the Administrator for transmittal to the member. Any arbitration panel member who is aware of direct communication shall promptly notify the Administrator; however, the parties and their counsel are permitted to communicate with the panel chairperson as provided by this chapter.

(b) The name of any party, counsel, or arbitration panel member who violates subsection (a) will be reported to the Attorney General to determine if a violation of the law has been committed.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.142 Authority of attorney.

Any act, other than verification, required or authorized by the act, this chapter or Pa.R.C.P. to be done by a party may be done by his counsel.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.143 Notice to Attorney General: constitutionality of statute.

(a) In any proceeding before an arbitration panel in which any portion of the act is alleged to be unconstitutional and the Commonwealth is not a party, the party raising the question of constitutionality shall promptly give notice thereof by registered mail to the Attorney General together with a copy of the legal paper raising the issue and shall file proof of the giving of the notice with the Administrator. The Attorney General may intervene as a party or may be heard without the necessity of intervention. The arbitration panel in its discretion may stay the proceedings pending the giving of the notice and a reasonable opportunity to the Attorney General to respond thereto. If the circumstances of the case require, the arbitration panel may proceed without prior notice in which event notice shall be given as soon as possible or the arbitration panel may proceed without waiving action by the Attorney General in response to a notice.

(b) Subsection (a) supersedes 1 Pa. Code § 35.28(b) (relating to eligibility to intervene).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.144 Attorney discipline.

The Administrator may, upon hearing and good cause shown, preclude any attorney from practice before the arbitration panel, subject to the same right of appeal as from other orders of the Administrator.

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.151 Form for caption.

The following is the form for caption:

(Title of legal paper with indication of the name and party designation of the filing party)

This section cited in 37 Pa. Code § 171.22 (relating to captions).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.152 Form for notice complaint.

The following is the form for notice complaint

This section cited in 37 Pa. Code § 171.23 (relating to commencement of proceedings).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.153 Form for notice of appearance.

The following is the form for notice of appearance:

This section cited in 37 Pa. Code § 171.26 (relating to notice of appearance).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.154 Form for request for conciliation conference.

The following is the form for request for conciliation conference:

This section cited in 37 Pa. Code § 171.61 (relating to conciliation conference).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

37 Pa. Code § 171.155 Form for election of jurisdiction.

The following is the form for an Election of Jurisdiction:

: No.

: County:

: (Form of action)

The provisions of this § 171.155 adopted January 23, 1981, effective January 24, 1981, 11 Pa.B. 407.

This section cited in 37 Pa. Code § 171.7 (relating to Election of Jurisdiction).

History

Authority: The provisions of this Chapter 171 issued under section 307(a) of the Health Care Services Malpractice Act (40 P.
Source: The provisions of this Chapter 171 adopted July 9, 1976, 6 Pa.

Subpart K Criminal Information

Chapter 195 Criminal Records

37 Pa. Code § 195.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise: Act—18 Pa.C.S. § § 9101—9183 (relating to criminal history record information). Administration of criminal justice—The activities directly concerned with the prevention, control, or reduction of crime and the apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders; criminal identification activities; or the collection, storage, dissemination, or usage of criminal history record information. Automated systems—A computer or other internally programmed device capable of automatically accepting and processing data, including computer programs, data communication links, input and output data, and data storage devices. Central repository—The central location for the collection, compilation, maintenance, and dissemination of criminal history record information by the Pennsylvania State Police. Criminal history record information—Information collected by criminal justice agencies concerning individuals and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, and dates and notations of arrests, indictments, informations, or other formal criminal charges and any dispositions arising therefrom; the term does not include intelligence information, investigative information, treatment information, or information and records specified in 18 Pa.C.S. § 9104. Criminal justice agency—Any court including the minor judiciary with criminal jurisdiction or any other governmental agency or subunit thereof created by statute or by the State or Federal constitutions, specifically authorized to perform as its principal function the administration of criminal justice, and which allocates a substantial portion of its annual budget to such function. Criminal justice agencies include, but are not limited to organized State and municipal police departments, local detention facilities, county, regional and State correctional facilities, probation agencies, district or prosecuting attorneys, parole boards, and pardon boards. Disposition—Information indicating that criminal proceedings have been concluded including information disclosing that police have elected not to refer a matter for prosecution, that a prosecuting authority has elected not to commence criminal proceedings, or that a grand jury has failed to indict and disclosing the nature of the termination of the proceedings or information disclosing that proceedings have been indefinitely postponed and also disclosing the reason for such postponement. Dispositions of criminal proceedings in this Commonwealth shall include, but not be limited to acquittal, acquittal by reason of insanity, pretrial probation or diversion, charge dismissed, guilty plea, nolle prosequi, no information filed, nolo contendere plea, convicted, abatement, discharge under the provisions of 234 Pa. Code (relating to rules of criminal procedure), demurrer sustained, pardoned, sentence commuted, mistrial-defendant discharged, discharge from probation or parole, or correctional supervision. Dissemination—The oral or written transmission or disclosure of criminal history record information to individuals or agencies other than the criminal justice agency which maintains the information. Expunge—To remove information so that there is no trace or indication that such information existed; or to eliminate all identifiers which may be used to trace the identity of an individual, allowing remaining data to be used for statistical purposes. Intelligence information—Information concerning the habits, practices, characteristics, history, possessions, associations or financial status of any individual. Investigative information—Information assembled as a result of the performance of any inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing; the term may include modus operandi information. Repository—Any location in which criminal history record information is collected, compiled, maintained, and disseminated by a criminal justice agency. Secondary dissemination—[Reserved]. Treatment information—Information concerning medical, psychiatric, psychological, or other rehabilitative treatment provided, suggested, or prescribed for any individual.

The provisions of this § 195.1 amended January 4, 1980, effective January 5, 1980, 10 Pa.B. 216.

History

Authority: The provisions of this Chapter 195 issued under the Criminal History Record Information Act, 18 Pa.
Source: The provisions of this Chapter 195 adopted January 4, 1980, effective January 5, 1980, 10 Pa.

37 Pa. Code § 195.2 Completeness and accuracy.

(a) As to each written indication contained in a repository’s records that a criminal charge has been brought against an individual, the repository shall maintain a complete and accurate criminal record as to that charge.

(b) A complete and accurate criminal history record as to a particular criminal charge shall include but shall not be limited to the following:

(1) The full name and any aliases of the individual charged.

(2) An accurate statement of the crime charged, including: the title of the offense; and the statutory citation; and for charges filed after January 1, 1980, the Offense Tracking Number (OTN)—with appropriate prefixes and suffixes—whenever an OTN has been assigned.

(3) The final or latest disposition of the charge.

(4) The sentence imposed for a conviction of the charge.

(c) The timely recording and reporting of dispositions, the taking and filing of fingerprints, the expunging of information, and the correcting of inaccurate information shall be conducted in the manner set forth in 18 Pa.C.S. § § 9111—9114, 9121—9123 and 9153.

The provisions of this § 195.2 amended January 16, 1981, effective January 17, 1981, 11 Pa.B. 354. Immediately preceding text appears at serial page (49347).

History

Authority: The provisions of this Chapter 195 issued under the Criminal History Record Information Act, 18 Pa.
Source: The provisions of this Chapter 195 adopted January 4, 1980, effective January 5, 1980, 10 Pa.

37 Pa. Code § 195.3 Uniform schedule of fees.

Individuals and noncriminal justice agencies requesting criminal history record information, whether for individual access and review or for other purposes, shall pay a nonrefundable fee not to exceed $10 for each request made; however, no fee shall be charged to recruiting offices of the armed forces of the United States, the Pennsylvania Civil Service Commission, or the Governor’s Office of Budget and Administration. The fee shall be paid by check or money order and shall be made payable to the responding repository.

The provisions of this § 195.3 amended through January 16, 1981, effective January 17, 1981, 11 Pa.B. 354. Immediately preceding text appears at serial page (52576).

History

Authority: The provisions of this Chapter 195 issued under the Criminal History Record Information Act, 18 Pa.
Source: The provisions of this Chapter 195 adopted January 4, 1980, effective January 5, 1980, 10 Pa.

37 Pa. Code § 195.4 Access and review.

(a) An individual shall be permitted to review his own criminal history record information maintained by any repository.

(b) The individual wishing to review his own record shall complete a Request for Review of Criminal History Record Information Form which may be obtained from the Pennsylvania State Police or from any repository. The individual making such a request shall be required to indicate on the application form only his full name including any aliases, his current address, the date and place of his birth, and his social security number. The completed form should then be delivered, by mail or in person, to the repository maintaining the information the individual wishes to review.

(c) An individual exercising his right to review his criminal history record information shall be informed that he is not required to divulge the information or the lack thereof to any person or agency.

(d) If, after a proper search, criminal history record information is not found in the responding repository, the individual shall be so informed, in writing, within 30 days of receipt by the repository of the application form and fee.

(e) If criminal history record information is found in the responding repository, the repository shall, within 30 days of receipt of the application form and fee, deliver by mail to the address indicated on the application form or deliver in person a copy of the information to the individual making the request.

(f) If the individual requests information from a repository other than the central repository, the repository which disseminates the criminal history record information shall indicate to the recipient that the information disseminated is only that information contained in its own files as of the date of the last entry and that a summary of the statewide criminal history record information may be obtained from the central repository.

History

Authority: The provisions of this Chapter 195 issued under the Criminal History Record Information Act, 18 Pa.
Source: The provisions of this Chapter 195 adopted January 4, 1980, effective January 5, 1980, 10 Pa.

37 Pa. Code § 195.5 Challenge.

(a) Enclosed along with the copy of the criminal history record information shall be a postage paid form—the Challenge Form—which is to be completed and returned within 30 days of the date the form is received by the subject of the criminal history record information and which states that the subject has reviewed the criminal history record information and that he understands that those portions of the record not challenged shall be presumed by law to be accurate. The challenge form shall state in bold letters:

(b) An individual wishing to challenge the accuracy of the reviewed criminal history record information must, within 30 days of the date the information is received, submit the Challenge Form to the repository identifying therein the portion or portions of the record being challenged and providing his correct version of his record and an explanation of why he believes his version to be correct.

(c) Upon receiving such written notification of a challenge, the repository maintaining the criminal history information being challenged shall conduct a review for accuracy, which review shall be completed within 60 days of the date the challenge is received. The responding repository has the burden of showing the accuracy of the information; except that, when the information has been contributed by another repository, the contributing repository shall, upon request by the responding repository, verify or correct the information within 30 days of the date the request for verification is received.

(d) The findings of the repository shall be communicated to the individual. If the repository determines that the record is correct, the repository shall so notify the individual and advise him of his right to appeal. The notice and advice shall be delivered to the individual at the address indicated on the Challenge Form.

(e) If the challenge is determined to be valid, the repository shall so notify the individual by mail at the address indicated on the challenge form, and the repository shall insure that:

(1) The record is corrected.

(2) A certified and corrected copy of the record is provided to the individual.

(3) Errors in criminal history record information previously disseminated to criminal justice agencies are eliminated and replaced with corrected information.

(4) The individual is supplied with the names and addresses of those noncriminal justice agencies and individuals which have received erroneous criminal history record information.

(5) Every reasonable effort is made to notify those individuals and noncriminal justice agencies to whom the erroneous information was disseminated; the notification shall include a certified and corrected copy of the record.

History

Authority: The provisions of this Chapter 195 issued under the Criminal History Record Information Act, 18 Pa.
Source: The provisions of this Chapter 195 adopted January 4, 1980, effective January 5, 1980, 10 Pa.

37 Pa. Code § 195.6 Security.

A criminal justice agency which collects, compiles, maintains or disseminates criminal history record information shall develop and implement a plan to insure the security of the information contained in its repositories. The plan shall conform to the requirements of 18 Pa.C.S. § 9131 (relating to security requirements for repositories) and a copy of the plan shall be submitted to the Attorney General by March 5, 1980. The Attorney General may approve or disapprove the plan or portions thereof and may require that different procedures be implemented to insure security.

History

Authority: The provisions of this Chapter 195 issued under the Criminal History Record Information Act, 18 Pa.
Source: The provisions of this Chapter 195 adopted January 4, 1980, effective January 5, 1980, 10 Pa.

Subpart L State Health Facility Hearing Board

Chapter 197 Practice and Procedure

37 Pa. Code § 197.1 Definitions.

(a) Subject to additional definitions contained in subsequent sections of this chapter, the following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The Health Care Facilities Act (35 P. S. § § 448.101—448.904). Appellant—A person filing an appeal with the Hearing Board. Applicant—A person filing an application for a certificate of need. Department—The Department of Health of the Commonwealth. Documents—Notices, petitions, briefs, reply briefs, rules, motions, praecipes and other papers. Health service area—The area served by a health systems agency as designated in accordance with Title XV of the Public Health Service Act (42 U.S.C.A. § § 300k-1—300n-6) (Repealed). Health systems agency—An entity which has been conditionally or fully designated under Title XV of the Public Health Service Act (42 U.S.C.A. § § 300k-1—300n-6) (Repealed). Hearing Board—The State Health Facility Hearing Board created under the act. Party—The appellant, the Department, a certificate of need applicant and a person who has been granted party status by order of the Hearing Board. The term is not synonymous with the term ‘‘parties to the proceeding’’ as used in section 703(a) of the act (35 P. S. § 448.703(a)). Person—A natural person; corporation including associations, joint stock companies and insurance companies; partnership; trust; estate; association; the Commonwealth and a local governmental unit, authority and agency thereof. The term includes entities owning or operating a health care facility or health maintenance organization. Petitioner—A person filing a petition with the Hearing Board. Project—A proposal by a person to offer, develop, construct or otherwise establish or undertake to establish a new institutional health service. Specification of objections—The appellant’s reasons for appealing the decision of the Department as set forth in the notice of appeal and the appeal brief.

(b) Subsection (a) supplements 1 Pa. Code § 31.3 (relating to definitions).

The provisions of this § 197.1 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.1 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial page (113596).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.2 Applicability of general rules of practice and procedure.

(a) Part II of 1 Pa. Code (relating to general rules of administrative practice and procedure) applies to practice and procedure before the Hearing Board insofar as it is not inconsistent with this chapter.

(b) Subsection (a) supplements 1 Pa. Code § 31.1 (relating to scope of part).

The provisions of this § 197.2 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.3 Powers and duties of Hearing Board.

The Hearing Board has the power and the duty to do the following:

(1) Hear appeals from decisions of the Department on applications for certificate of need or amendments thereto.

(2) Hear appeals from decisions of the Department which require a person to obtain a certificate of need for major medical equipment or the acquisition of an existing health care facility.

(3) Hear upon petition objections to published regulations, criteria or standards of health systems agencies or the Department as to the policies therein set forth and where appropriate to request the promulgating agency to reconsider the policies.

(4) Hear appeals from decisions of the Department pertaining to licensure.

The provisions of this § 197.3 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.4 Filings.

(a) Unless otherwise directed, all documents shall be filed with the Hearing Board. Papers may be filed by any of the following methods:

(1) By personal filing.

(2) By first class mail to: State Health Facility Hearing Board Room 1739, Harristown II 333 King Boulevard Post Office Box 11563 Harrisburg, Pennsylvania 17108

(3) By a recognized commercial courier service.

(b) Unless otherwise directed, the original and four copies of every document shall be filed with the Hearing Board. A party requesting the return of a date-stamped copy of a document shall include an extra copy thereof accompanied by a self-addressed, stamped envelope. This subsection supersedes 1 Pa. Code § 33.15 (relating to number of copies).

(c) When a document is filed by mail, the date of mailing as evidenced by the postmark on the envelope shall be considered the date of filing. If the postmark is illegible, the burden of proof is on the person mailing the document to establish the date of mailing.

(d) When a document is filed by delivery to a recognized courier service, the date of delivery to the courier shall be considered the date of filing.

(e) This section supplements in part and supersedes in part 1 Pa. Code § 31.11 (relating to timely filing required).

The provisions of this § 197.4 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.4 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3611. Immediately preceding text appears at serial pages (95153) to (95154).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.5 Service on other parties.

(a) Except as otherwise provided in this chapter, copies of all documents filed with the Hearing Board shall be served upon a party who has entered an appearance in the appeal or petition proceeding. The copies shall be served by the filing party, on or before the date of filing with the Hearing Board.

(b) Service shall be either by personal service, by first class mail or by a recognized commercial courier service.

(c) A document filed with the Hearing Board shall be accompanied by a Certificate of Service, as set forth in § 197.6 (relating to form of certificate of service), indicating the party or parties served, the method of service and the date of service.

(d) Subsections (a) and (b) supplement 1 Pa. Code § 33.32 (relating to service by a participant). Subsection (c) supersedes 1 Pa. Code § 33.35 (relating to proof of service).

The provisions of this § 197.5 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.5 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3611. Immediately preceding text appears at serial page (95154).

This section cited in 37 Pa. Code § 197.66 (relating to service of petition); and 37 Pa. Code § 197.68 (relating to reply to petition).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.6 Form of certificate of service.

(a) The following is the form of certificate of service.

COMMONWEALTH OF PENNSYLVANIASTATE HEALTH FACILITY HEARING BOARDIN RE:: : DOCKET NO. :

(b) Subsection (a) supersedes 1 Pa. Code § 33.36 (relating to form of certificate of service).

The provisions of this § 197.6 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.6 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial pages (70902) and (61876).

This section cited in 37 Pa. Code § 197.5 (relating to service on other parties); 37 Pa. Code § 197.34 (relating to notice of appeal); 37 Pa. Code § 197.64 (relating to contents of petition); and 37 Pa. Code § 197.84 (relating to notice of appeal and answer).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.7 Computation of time.

(a) Except as otherwise provided by law, in computing a period of time prescribed or allowed by the act or by this chapter; the day of the act, event or default from which the designated period of time begins to run may not be included. The last day of the period so computed shall be included unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is not a Saturday, Sunday nor a holiday. Intermediate Saturdays, Sundays and holidays shall be included in the computation.

(b) Subsection (a) of this section supplements 1 Pa. Code § 31.12 (relating to computation of time).

The provisions of this § 197.7 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.7 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial pages (83471) to (83472).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.8 Extension of time.

(a) Except for the filing of a notice of appeal under § § 197.34 or 197.84 (relating to notice of appeal; or notice of appeal and answer), where an act is required or allowed to be done at or within a specified period of time; the time fixed or the period of time prescribed may for good cause be extended upon motion made before expiration of the period originally prescribed or as previously extended; and, upon motion made after the expiration of the specified period, the act may for good cause be permitted to be done where reasonable grounds are shown for the failure to file the motion for extension of time within the prescribed time period.

(b) Requests for continuance or rescheduling of hearings or for the extension of time in which to perform an act required or allowed to be done at or within a specified time by this chapter or by order of the Board, shall be by motion in writing, shall be timely filed with the Board, and shall state the facts on which the application rests; except that during the course of a hearing, the requests may be made by oral motion in the hearing before the presiding member of the Hearing Board.

(c) Extensions of time may be granted by a member of the Hearing Board, or by the Executive Director of the Hearing Board.

(d) Subsections (a)—(c) supplement 1 Pa. Code § 31.15 (relating to extensions of time).

The provisions of this § 197.8 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.9 Appearances.

(a) An individual may appear in a proceeding before the Hearing Board in his own behalf. A member of a partnership may represent the partnership; a bona fide officer of a corporation, trust or association may represent the corporation, trust or association; and an officer or employe of another agency or political subdivision may represent the agency or political subdivision in an appeal or petition before the Hearing Board. This subsection supersedes 1 Pa. Code § 31.21 (relating to appearance in person).

(b) A person may be represented in any proceeding by an attorney at law.

(c) Only attorneys currently admitted to practice before the Supreme Court of Pennsylvania may practice before the Hearing Board unless they are associated in the proceeding with an attorney so admitted. This subsection supplements 1 Pa. Code § 31.22 (relating to appearance by attorney).

(d) If a party is represented by an attorney, the signing of the first document filed on behalf of the party shall be deemed an entry of appearance. Appearance by attorneys not signing the initial document shall be by notice of appearance in the form indicated in § 197.10 (relating to form of notice of appearance). Subsequent to the filing of the notice of appearance, an additional notice or other written communication required to be served on or furnished to a person may be sent to the attorney of record for the person at the stated address of the attorney. This subsection supersedes 1 Pa. Code § 31.24 (relating to notice of appearance).

The provisions of this § 197.9 issued under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.9 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial page (61877).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.10 Form of notice of appearance.

(a) The following is the form of notice of appearance:

COMMONWEALTH OF PENNSYLVANIASTATE HEALTH FACILITY HEARING BOARDIN RE:: : DOCKET NO. :

(b) Subsection (a) supersedes 1 Pa. Code § 31.25 (relating to form of notice of appearance).

The provisions of this § 197.10 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. 102(a).

The provisions of this § 197.10 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial pages (61877) and (61878).

This section cited in 37 Pa. Code § 197.9 (relating to appearances); and 37 Pa. Code § 197.68 (relating to reply to petition).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.11 Size and form of documents.

(a) All documents filed with the Hearing Board shall be on paper 8 to 8 1/2 inches wide by 10 1/2 to 11 inches long.

(b) Mimeographed copies are acceptable, if copies are clearly legible. With exception of the certified record, documents may not be backed or bound. Pages shall be fastened by staples.

The provisions of this § 197.11 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.11 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial page (83474).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.11a Motions and petitions.

(a) Oral motions and petitions are not permitted unless the Hearing Board finds the submission of the motion or petition in writing to be impracticable under the circumstances.

(b) A motion or petition shall identify the specific statutory provision, section or subsection of this chapter or 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) which authorizes the filing of the motion or petition. Failure to do so may result in a summary denial of the motion or petition.

(c) Upon the filing of a motion or petition, a party to the proceeding may file an answer within 10 days of the filing thereof. The failure to file an answer within the time shall be deemed to be a waiver of objection to the motion or petition.

(d) Rejoinders to answers to motions or petitions are not permitted, except by written order of the Hearing Board.

(e) A motion or petition, and an answer thereto, may be accompanied by a memorandum of law. Failure to submit a memorandum of law at the time of filing the motion or petition or response thereto shall be deemed a waiver of the right to do so.

(f) Subsection (a) supersedes 1 Pa. Code § 35.17 (relating to petitions generally) and supplements § 35.178 (relating to presentation of motions). Subsection (c) supplements 1 Pa. Code § 35.35 (relating to answers to complaints and petitions) and supplements § 35.179 (relating to objections to motions).

The provisions of this § 197.11a issued under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)).

The provisions of this § 197.11a adopted September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.12 Verification.

(a) Except as otherwise required by statute, rule of court or this chapter, it is not necessary to verify under oath a document filed with the Hearing Board.

(b) This section supersedes 1 Pa. Code § 33.12 (relating to verification).

The provisions of this § 197.12 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.13 Prehearing discovery.

(a) No prehearing discovery may be permitted in a proceeding before the Hearing Board, except by written permission of the Hearing Board. Permission shall be granted only where the Hearing Board is convinced that the prehearing discovery is essential to a fair disposition of the case.

(b) A party wishing to conduct prehearing discovery shall file with the Hearing Board a motion to permit prehearing discovery. The motion shall include the nature of the proposed discovery—that is, depositions or interrogatories, the time and place of the proposed discovery, the persons to be deposed or interrogated, the subject matter and the reasons for requesting permission to conduct prehearing discovery.

(c) A party may file, within 10 days of the filing of a motion to permit prehearing discovery, objections to the motion to permit prehearing discovery, setting forth the reasons why the discovery should not be permitted.

(d) The filing of a motion to permit prehearing discovery or objections thereto will not stay the proceedings.

The provisions of this § 197.13 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.13a Subpoenas.

(a) A party may apply in writing to the Hearing Board for subpoenas for the attendance of witnesses or for the production of documents. The application shall identify the names and addresses of the persons to be subpoenaed.

(b) Except by special permission of the Hearing Board, subpoenas may not be issued for the attendance of witnesses or the production of documents which have not been listed in the prehearing memorandum required by § 197.46(b) (relating to prehearing conference).

(c) Service of subpoenas shall be by personal service, unless the person to be subpoenaed agrees to accept service by mail. In making service, a copy of the subpoena shall be left with the person to be served. The original subpoena, accompanied by an affidavit describing the manner in which service was made, shall be filed with the Hearing Board. Where service of the subpoena is by mail, the document evidencing agreement to accept service by mail shall be filed with the Hearing Board.

(d) A motion to quash a subpoena may be filed only by the person subpoenaed. The motion shall specify the reasons why the person subpoenaed should not be compelled to appear and testify. Answers or other responses to motions to quash by other parties to the proceeding will not be entertained.

(e) Persons who are subpoenaed shall be paid the same fees and mileage as are paid for like services in the court of common pleas of the county in which the hearing is held, and the appropriate fee shall be tendered at the time of service of the subpoena.

(f) This section supplements 1 Pa. Code § 35.142 (relating to subpoenas).

The provisions of this § 197.13a issued under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)).

The provisions of this § 197.13a adopted September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.14 Requests for rescheduling of a hearing.

Except in the case of unforeseeable circumstances, such as sudden illness or death in family a request for rescheduling of a hearing shall be in writing and filed with the Hearing Board no later than 7 days before the scheduled hearing date. The Board member who will hear the case or the Executive Director of the Hearing Board may grant the request upon good cause shown.

The provisions of this § 197.14 issued under the Health Care Facilities Act (35 P. S. § § 448.101—448.904).

The provisions of this § 197.14 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.15 Recording of proceedings.

(a) In the case of appeals filed under § § 197.32—197.52 (relating to appeals from decisions pertaining to certificates of need) or appeals filed under § § 197.81—197.94 (relating to appeals from decisions pertaining to licensure); a stenographic record shall be taken; and, at the discretion of the hearing board member who presides at the hearing, the record shall be transcribed and a copy thereof shall be provided at cost to a party requesting the record. This subsection supplements 1 Pa. Code § 35.131 (relating to recording of proceedings).

(b) In the case of petitions filed under § § 197.61—197.72 (relating to petitions pertaining to objections to published regulations, criteria or standards of the Department or health systems agency), a stenographic record shall be taken only if requested by at least one of the participants at the hearing. Where a stenographic record is requested, the person making the request shall pay the cost thereof. This subsection supplements in part and supersedes in part 1 Pa. Code § 35.131.

The provisions of this § 197.15 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.16 Discontinuances.

(a) The Hearing Board may, at its sole discretion, discontinue a proceeding without prejudice as to a party upon the filing of a motion to discontinue without prejudice. The motion shall set forth the specific reasons for requesting the discontinuance and shall certify that all parties to the proceeding have been consulted and have no objections to the discontinuance.

(b) A proceeding before the Hearing Board may be discontinued with prejudice as to a party at any time upon filing by the party of a praecipe for discontinuance.

The provisions of this § 197.16 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.16a Inactive appeals.

In the case of an appeal which has been inactive for a period of at least 1 year, the Executive Director shall cause to be issued a rule directing the appellant to show cause why the appeal should not be discontinued for want of prosecution. If no answer to the rule to show cause is filed by the appellant, or if appellant fails to show good cause for continuing the appeal, an order shall be issued discontinuing the appeal with prejudice.

The provisions of this § 197.16a issued under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)).

The provisions of this § 197.16a adopted September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.17 Ex parte communications.

No ex parte communications shall occur between a party or a person acting on behalf of a party and a board member or employe of the Hearing Board after the filing of a Notice of Appeal under § § 197.34 or 197.84 (relating to notice of appeal; or notice of appeal and answer).

The provisions of this § 197.17 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.18 Attorney discipline.

The Hearing Board may, upon hearing and good cause shown, exclude an attorney from practice before the Hearing Board, subject to the same right of appeal as from other decisions of the Hearing Board. Good cause for exclusion includes, but is not limited to:

(1) Intentional disruption or delay of proceedings.

(2) Contemptuous conduct at hearings.

(3) Willful failure to comply with a lawful order of the Hearing Board.

(4) Conduct constituting an affront to the dignity and authority of the Hearing Board.

The provisions of this § 197.18 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.19 Executive Director’s authority.

In the interest of an economical and judicious use of the Hearing Board’s time and to expedite the response to routine motions, petitions, notices and requests; the Executive Director of the Hearing Board, upon consultation with at least one member of the Board, is authorized to rule upon and execute orders and notices on behalf of the Hearing Board in all matters which do not affect the substantive rights of the parties.

The provisions of this § 197.19 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.20 Public access to records and hearings.

(a) All records of the Hearing Board, except personnel files, will be made accessible to the public upon written request. The records will be made available for inspection during regular business hours, and copies may be obtained at 25¢ a page.

(b) All hearings will be open to the public.

The provisions of this § 197.20 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)).

The provisions of this § 197.20 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642. Immediately preceding text appears at serial page (61881).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.32 Appealable decisions.

(a) The following decisions of the Department may be appealed:

(1) The granting or refusal of a certificate of need or amendment thereto.

(2) The decision to require a person to obtain a certificate of need for major medical equipment or the acquisition of an existing health care facility.

(3) The denial of a request for reconsideration of the decision of the Department to grant or refuse a certificate of need.

(4) The decision that a project is reviewable.

(b) Subsection (a) supersedes 1 Pa. Code § 35.226 (relating to final orders).

The provisions of this § 197.32 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.32 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial page (70907).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); 37 Pa. Code § 197.33 (relating to standing to file an appeal); 37 Pa. Code § 197.36 (relating to certification of the record below); and 37 Pa. Code § 197.45 (relating to scope of review).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.33 Standing to file an appeal.

The following persons have standing to appeal a decision of the Department which is appealable under § 197.32(a)(1)—(3) (relating to appealable decisions):

(1) The applicant.

(2) The health systems agency for the health service area in which the proposed new institutional health service is to be offered or developed.

(3) A person who was a party before the health systems agency under section 703(a) of the act (35 P. S. § 448.701).

(b) The following persons shall have standing to appeal a decision of the Department which is appealable under § 197.32(a)(4):

(1) The person whose project has been determined to be reviewable.

(2) The health systems agency for the health service area in which the proposed new institutional health service is to be offered or developed.

The provisions of this § 197.33 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.33 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial page (70908).

Standing

A health system agency has standing to appeal a Department of Health adjudication of nonreviewability to the Commonwealth Court. Southern Chester County Medical Center v. Department of Health, 494 A.2d 885 (Pa. Cmwlth. 1985).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.34 Notice of appeal.

(a) The appellant shall file a notice of appeal, in the form set forth in § 197.35 (relating to form of notice of appeal) within 30 days of the decision or the date of mailing of the decision which is being appealed, whichever is later. The filing of a petition for reconsideration with the Department does not toll the running of the 30-day period.

(b) The notice of appeal shall set forth in general terms the specification of objections. Specific arguments shall be reserved for the appeal brief. Except for issues which are based on facts and evidence not known to appellant in advance of the hearing, issues not raised and argued in the appeal brief shall be deemed to be waived.

(c) A copy of the notice of appeal shall be sent to the Department, to the health systems agency in the area in which the health care facility is located, to the applicant and to each person who has filed an objection to the application for the certificate of need in the proceedings before the health systems agency or the Department unless the objection was withdrawn prior to the filing of the notice of appeal. A certificate of service in the form set forth in § 197.6 (relating to form of certificate of service) shall be attached to the notice of appeal.

(d) Service of a copy of the notice of appeal on the persons to be served by subsection (c) will not be deemed a waiver of appellant’s right to object to the person’s right to become a party to the appeal.

(e) The failure to serve a copy of the notice of appeal upon all parties required to be served under subsection (c) will not stay the proceedings; however, upon the omission, the Board will issue an order directing the appellant to serve all parties, and the failure to do so within the time specified in the order may result in the dismissal of the appeal.

(f) This subsection supplements 1 Pa. Code § 33.32 (relating to service by a participant) and supersedes 1 Pa. Code § 33.35 (relating to proof of service).

The provisions of this § 197.34 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.34 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial page (103554).

Specification of Objections

The hospital’s notices of appeal set forth only the very general statement that the Department of Health’s approval of the CONs was not supported by substantial evidence. In those notices of appeal, the specific issues raised all related to whether a proper comparative review was performed and whether the determination of the number of CONs needed was proper. The hospital was required to preserve the specific issues in the pleadings and briefs before the State Health Facility Board and it did not do so, therefore, the specific issues were waived. North Hills Passavant Hospital v. Department of Health, 674 A.2d 742 (Pa. Cmwlth. 1996).

Time Limits

If an individual seeking an appeal can establish that the copy of the decision providing the individual with notice did not contain the mailing date on its face, the appeal period does not run against that individual. Stewart v. State Health Facility Hearing Board, 543 A.2d 1290 (Pa. Cmwlth. 1988); appeal denied 604 A.2d 1032 (Pa. 1992).

This section cited in 37 Pa. Code § 197.8 (relating to extension of time); 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.17 (relating to ex parte communications).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.35 Form of notice of appeal.

The following is the form of notice of appeal:

COMMONWEALTH OF PENNSYLVANIASTATE HEALTH FACILITY HEARING BOARD

The provisions of this § 197.35 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.35 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial pages (70909) and (70910).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.34 (relating to notice of appeal).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.36 Certification of the record below.

(a) The Department will file with the Hearing Board a certified copy of the record below within 20 days of the filing of a notice of appeal.

(b) In the case of appeals filed under § 197.32(a)(4) (relating to appealable decisions), the record will consist of the Department’s letter of determination that the project is reviewable, together with other documents, telephone logs, memoranda and exchange of correspondence between the Department, the appellant and the health systems agency relating to the determination of reviewability.

(1) The attached documents are a true and complete copy of the official project file of the certificate of need application for Project No.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.37 Objections to the record.

(a) A party may file objections to the record, in the form set forth in § 197.38 (relating to form of objection to the record), within 15 days of the filing of the record.

(b) Either the Executive Director upon consultation with at least one member of the Board or a board member will consider the objection to the record and issue a ruling thereon. This subsection supplements 1 Pa. Code § 35.187(4) (relating to authority delegated to presiding officers).

The provisions of this § 197.37 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.37 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial pages (103556) and (83481).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.36 (relating to certification of the record below).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.38 Form of objection to record.

The following is the form of objection to the record:

COMMONWEALTH OF PENNSYLVANIASTATE HEALTH FACILITY HEARING BOARD

The provisions of this § 197.38 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.38 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial pages (70911) and (70212).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.37 (relating to objections to the record).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.39 Consolidation of appeals.

(a) The Hearing Board may, upon its own motion or upon motion of a party, consolidate two or more appeals when:

(1) The appeals relate to the same decision of the Department.

(2) The appeals involve common questions of law or fact.

(b) Subsection (a) supplements 1 Pa. Code § 35.45 (relating to consolidation).

The provisions of this § 197.39 amended under section 805 of the Health Care Facilities Act (35 P. S. § 448.805); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.39 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642. Immediately preceding text appears at serial page (61888).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.40 Preliminary motions.

(a) A party may file a motion to strike the appeal on the grounds that appellant lacks standing to file the appeal, or a motion to quash the appeal on the grounds that it does not conform to the act or this chapter. A motion shall be filed within 10 days of the last date for filing of the notice of appeal. This subsection supplements 1 Pa. Code § 35.54 (relating to motions as to complaint).

(b) Upon receipt of a motion to strike or motion to quash, the Hearing Board may issue a rule to show cause why the appeal should not be stricken or quashed.

(c) The Hearing Board may, on its own motion at any time, issue a rule to show cause why an appeal should not be stricken for lack of standing or quashed for failure to conform to the act or this chapter.

(d) Where the preliminary motion, or an answer thereto, contains allegations of fact which do not appear of record, the allegations shall be verified under oath.

(e) Where a rule to show cause is issued under subsections (b) or (c) all proceedings shall be stayed pending disposition of the matter by the Hearing Board unless the rule to show cause specifically states otherwise.

The provisions of this § 197.40 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.40 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial pages (70912) and (70913).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.40a Petition to intervene.

(a) A petition to intervene may be filed by a person claiming a right to intervene or an interest of the nature that intervention in the proceeding is appropriate. The right or interest includes, but is not limited to, the following:

(1) A right conferred by the laws of the United States or of the Commonwealth.

(2) An interest which may be directly affected and which is not adequately represented by existing parties. The following may have an interest:

(i) Competitors of the certificate of need applicant.

(ii) Consumers, affected persons and directly affected persons, as defined in the act.

(b) Petitions to intervene shall be filed within 30 days prior to the date of the hearing.

(c) Petitions to intervene shall set out clearly and concisely the facts from which the nature of the alleged right or interest of the petitioner can be determined. The petition shall specifically state whether petitioner wishes to acquire party status as an appellant or an appellee, and shall specifically set forth the reasons why petitioner’s interests cannot be adequately represented by the existing party to the proceeding.

(d) If the petition to intervene is granted, the intervenor shall have, in the proceedings before the Hearing Board, all of the rights and duties of the other parties to the proceedings, except that the Hearing Board may refuse to permit the intervenor to file a prehearing brief if it believes that the filing of the brief will delay the proceedings.

(e) If the petition to intervene is granted, the Department will, within 20 days of the date of the order granting intervention, serve a copy of the certified record upon the intervenor.

(f) Subsection (a) supplements 1 Pa. Code § 35.28 (relating to eligibility to intervene). Subsection (b) supplements 1 Pa. Code § 35.30 (relating to filing of petitions to intervene). Subsection (c) supplements 1 Pa. Code § 35.29 (relating to form and contents of petitions to intervene).

The provisions of this § 197.40a issued under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)).

The provisions of this § 197.40a adopted September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609.

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.41 Commencement of appeal.

Upon receipt of a notice of appeal, the Board will assign the appeal a docket number, and will send a letter of acknowledgement and a prehearing briefing schedule to the parties. The appeal will be deemed to commence with the mailing of the letter of acknowledgement and prehearing briefing schedule.

The provisions of this § 197.41 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.41 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial pages (83483) to (83484).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.42 Appeal briefs.

(a) The appellant shall file an appeal brief with the Hearing Board within 20 days of the certification of the record below.

(b) The appeal brief shall contain:

(1) A summary of the facts.

(2) A statement of the legal issues involved in the appeal.

(3) A statement of the legal arguments upon which the appeal is based.

(c) The appeal brief shall be limited to those issues which may be raised under § 197.44 (relating to limitation of issues and evidence).

(d) No further prehearing briefs may be filed by the appellant except by permission of the Hearing Board.

(e) The failure of appellant to file an appeal brief within the time prescribed by subsection (a) or an extension thereof granted by the Hearing Board may result in the Hearing Board’s quashing the appeal.

The provisions of this § 197.42 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.42 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial page (83484).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.43 Reply briefs.

(a) A party of record may file a brief in reply to the appeal brief. The filing of a reply brief is mandatory for a party intending to participate in the hearing. The brief shall be filed within 30 days of the filing of the appeal brief with the Hearing Board.

(b) A reply brief shall contain the following:

(1) A summary of the facts.

(2) A statement of the legal issues involved in the appeal.

(3) A statement of the legal arguments upon which the replying party relies.

(d) The Hearing Board is not required to accept for filing a reply brief filed beyond the time prescribed by subsection (a) or an extension thereof granted by the Hearing Board.

The provisions of this § 197.43 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.43 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial pages (83484) and (95155).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.43a Amicus curiae briefs.

(a) A person interested in the questions involved in a matter pending before the Hearing Board may request leave to file a brief amicus curiae in regard to those questions.

(b) The request shall be in the form of a motion for leave to file a brief amicus curiae. The motion shall set forth:

(1) The name and address of the person filing the motion.

(2) If the person filing the motion represents other persons, the identity of the persons.

(3) The nature of the interest of the person filing the motion.

(c) A motion for leave to file a brief amicus curiae shall be filed with the Hearing Board not later than 15 days prior to the date fixed for the hearing of the appeal.

(d) Within 10 days of the filing of a motion for leave to file a brief amicus curiae, a party of record may file objections to the motion, setting forth specific reasons for the objections.

(e) On or before the date fixed for the hearing of the appeal, the Hearing Board will issue an order either denying or granting the motion. If the motion is granted, the order will include the time for filing the brief and other instructions as the Hearing Board considers appropriate.

The provisions of this § 197.43a issued under section 805 of the Health Care Facilities Act (35 P. S. § 448.805); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.43a adopted May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.44 Limitation of issues and evidence.

(a) The appeal shall be limited to those issues raised by the appellant in the specification of objections to the decision of the Department. No issues may be raised which were not raised in the proceedings before the health systems agency or the Department.

(b) The Board will entertain no evidence that the Board is satisfied that the appellant was able, by exercise of reasonable diligence, to have submitted before the health systems agency and the Department. This subsection supersedes in part 1 Pa. Code § 35.161 (relating to form and admissibility of evidence).

The provisions of this § 197.44 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.42 (relating to appeal briefs).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.45 Scope of review.

(a) In the case of appeals filed under § 197.32(1), (2) and (4) (relating to appealable decisions) the Hearing Board will limit its review to the following issues:

(1) Whether the decision of the Department is supported by substantial evidence.

(2) Whether there was a violation of constitutional or statutory law or the regulations of the Department.

(3) Whether there was any prejudicial procedural error committed during the review.

(b) In the case of appeals filed under § 197.32(3) the Hearing Board will limit its review to the question of whether the Department abused its discretion in denying the request for reconsideration.

The provisions of this § 197.45 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

Under this section, the Board’s scope of review is limited to three areas: 1) whether the decision of the Department is supported by substantial evidence; 2) whether there was any violation of constitutional or statutory law or the regulations of the Department; 3) whether there was any prejudicial procedural error committed during the review; and the Board exceeded its scope of review by substituting its own evaluation for that of the Department. Rehab Hospital Services Corp. v. Health Systems Agency of Southwestern Pennsylvania, 475 A.2d 883 (Pa. Cmwlth. 1984).

Where the Department of Health’s decision to grant a certificate of need was supported by substantial evidence in the record, the Board exceeded its scope of review, which is limited to those areas specified in this section, by substituting its own evaluation of the evidence for that of the Department. Rehab Hospital Services Corp. v. Health Systems Agency of Southwestern Pennsylvania, 475 A.2d 883 (Pa. Cmwlth. 1984).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.46 Prehearing conference.

(a) The Hearing Board will schedule a prehearing conference at a time and place to be determined by the Hearing Board. Notice of the prehearing conference shall be sent by first class mail to the parties at least 15 days before the date of the prehearing conference.

(b) Each party shall submit, on the date specified in the order scheduling the prehearing conference, a prehearing memorandum, which shall contain the following information:

(1) A list of exhibits proposed to be offered in evidence.

(2) A list of the witnesses who will testify at the hearing and a brief synopsis of the testimony each witness will offer.

(3) An estimate of the length of time required for the presentation of the party’s case.

(c) In the event that a party wishes to submit into evidence the professional qualifications or curriculum vitae of a witness, the qualifications shall be set forth in writing and exchanged among counsel at the prehearing conference.

(d) The prehearing conference may be waived, at the discretion of the Hearing Board.

(e) Subsections (a)—(d) supplement 1 Pa. Code § § 35.111—35.116 (relating to prehearing conferences).

The provisions of this § 197.46 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.46 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial page (83487).

This section cited in 37 Pa. Code § 197.13a (relating to subpoenas); and 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.46a Decision without hearing.

(a) At any time following the filing of reply briefs, but not later than 30 days prior to the commencement of the hearing, a party may file a motion for decision without hearing. The motion may include a request for oral argument. The motion shall set forth with specificity the reasons why a hearing is believed to be unnecessary.

(b) Within 10 days of the filing of a motion for decision on the pleadings, a party may file an answer in opposition.

(c) If the motion for decision without hearing is granted, the Hearing Board may require the parties to file a stipulation of facts to supplement the certified record.

The provisions of this § 197.46a issued and amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.46a adopted August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551; corrected August 26, 1983, 13 Pa.B. 2626; amended September 4, 1987, effective September 5, 1987, 17 Pa.B. 3609. Immediately preceding text appears at serial page (83487).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.47 Scheduling and announcement of hearings.

(a) Wherever possible, the Hearing Board will schedule a hearing to be held within 30 days of the last date for filing reply briefs or, when a prehearing conference is held, within 30 days of the conference unless this time is extended by mutual agreement of the parties and the Hearing Board.

(b) The Hearing Board will determine the location of the hearing. The hearing will be in the county where the health care facility in question is situated, if possible; otherwise, the hearing will be held in the health service area in which the certificate of need application arises.

(1) By written notice to parties of record no later than 21 days before the hearing date.

(2) By publication in a newspaper of general circulation in the area where the certificate of need application arises. The publication will occur at least 14 days before the date of the hearing.

(3) By publication in the Pennsylvania Bulletin at least 14 days before the date of the hearing.

(d) The notices required by subsections (c)(2) and (3) shall include the time within which petitions to intervene shall be filed with the Hearing Board.

The provisions of this § 197.47 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.48 Procedure at hearing.

(a) The party filing the appeal shall have the burden of proof.

(b) The party filing the appeal shall open and close, unless otherwise directed by the hearing board member conducting the hearing. This subsection supplements 1 Pa. Code § 35.125(a) (relating to order of procedure).

(c) Parties to the proceeding shall have the right of presentation of evidence, cross examination, objection, motion and argument. This subsection supplements 1 Pa. Code § 35.126 (relating to presentation by the parties).

(d) In the case of appeals involving more than two parties, the Hearing Board member conducting the prehearing conference will establish the order in which the parties shall examine witnesses, conduct cross examination and present opening and closing statements. None of the parties at the prehearing conference shall be required to address substantive matters, including matters of evidence, until the order has been established.

(e) The Hearing Board member conducting the hearing may limit the number of witnesses who may be heard upon an issue. This subsection supplements 1 Pa. Code § 35.127 (relating to limiting number of witnesses).

(f) A witness shall be sworn or shall affirm before giving testimony. This subsection supplements 1 Pa. Code § 35.137 (relating to oral examination).

(g) Where documents are offered in evidence, they shall be verified by a witness before being admitted unless the parties agree to their admission without verification.

The provisions of this § 197.48 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.48 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial pages (70918) and (70919).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.49 Correction of transcript.

(a) Upon the conclusion of the hearing, copies of the transcript shall be provided to those parties requesting them, at cost, as soon as practicable. Within 10 days of the mailing of the transcript, a party may file a motion to correct the transcript, for the purpose of correcting typographical errors and unintelligible phrases and making the transcript conform to the evidence.

(b) Subsection (a) supersedes 1 Pa. Code § 35.132 (relating to transcript corrections) and supplements 1 Pa. Code § 35.133 (relating to copies of transcripts).

The provisions of this § 197.49 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.50 Posthearing filings.

At the conclusion of the hearing, the hearing board member conducting the hearing shall establish a schedule for the filing of posthearing briefs and requests for findings of fact and conclusions of law.

The provisions of this § 197.50 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.51 Decision of the Hearing Board.

(a) Upon the expiration of the time period for filing posthearing briefs and requests for findings of fact and conclusions of law, if any, the hearing board member who presided at the hearing shall prepare a proposed adjudication and order for consideration by the full Hearing Board. This subsection supersedes 1 Pa. Code § 35.202 (relating to proceedings in which proposed reports are prepared).

(b) The Hearing Board may:

(1) Affirm the decision of the Department.

(2) Reverse the decision of the Department.

(3) Remand the matter to the Department for further action consistent with order of the Hearing Board.

(c) In the event of a tie vote by the Hearing Board members participating in the adjudication, the decision of the Department will be deemed to be affirmed.

The provisions of this § 197.51 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.51 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial pages (70919) and (70920).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.52 Distribution of decision.

A copy of the decision of the Hearing Board will be sent by first class mail to:

(1) The applicant.

(2) The Department.

(3) The appropriate health systems agency.

(4) Other parties to the proceeding.

(5) A person who has made a written request for a copy.

(6) A newspaper of general circulation in the area where the certificate of need application arises.

The provisions of this § 197.52 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.61 Persons who may file.

A person may file a petition requesting the Hearing Board to review regulations, criteria or standards issued or promulgated by the Department or by a health systems agency.

The provisions of this § 197.61 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.62 Reviewable regulations, criteria or standards.

(a) Petitions may be filed only as to regulations, criteria and standards which have been officially adopted or approved by the Department or by a health systems agency. Objections to proposed regulations, criteria or standards shall not be considered.

(b) Objections to proposed regulations, criteria or standards shall be sent to the Department or the appropriate health systems agency during the official comment period.

The provisions of this § 197.62 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.62a Prerequisite to filing.

No petition will be considered by the Hearing Board until the petitioner has advised the Department or health systems agency, in writing, of its objections to the regulations, criteria or standards and has received a negative reply from the Department or health systems agency. The failure of the Department or health systems agency to respond to the petitioner’s objection within 30 days of receipt thereof will be deemed a negative reply.

The provisions of this § 197.62a issued under section 805 of the Health Care Facilities Act (35 P. S. § § 448.805); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.62a adopted May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.63 Consolidation of petitions.

(a) In the event that more than one petition is filed relating to the same regulations, criteria or standards, the Hearing Board may, upon its own motion, consolidate the petitions. One docket number shall be assigned to the consolidated proceeding.

(b) Subsection (a) supplements 1 Pa. Code § 35.45 (relating to consolidation).

The provisions of this § 197.63 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.64 Contents of petition.

(a) The petition requesting Hearing Board review of regulations, criteria or standards shall be in the form set forth in § 197.65 (relating to form of petition) and include the following:

(1) The regulation, criterion or standard to which petitioner objects.

(2) The date of adoption or approval of the regulation, criterion or standard.

(3) The entity adopting or approving the regulation, criterion or standard.

(4) The date of written notification to the Department or health systems agency of petitioner’s objections to the regulation, criterion or standard. A copy of the notification shall be attached to the petition.

(5) The date of the negative reply, if any, from the Department or health systems agency. A copy of the reply shall be attached to the petition.

(6) Specific objection of the petitioner to the regulation, criterion or standard.

(7) The reasons for objection of the petitioner.

(8) The consequences which petitioner alleges will result from the continued application or enforcement of such regulation, criterion, or standard.

(9) Whether a hearing on the petition and a stenographic record are requested.

(b) The petition shall also include as an attachment a copy of the regulation, criterion or standard to which the petition applies.

(c) In addition to the petition containing the information set forth in subsection (a), petitioner shall have the option of filing a memorandum of law in support of the petition. The memorandum shall be filed at the time of filing the petition. An original and three copies shall be filed.

(d) A certificate of service in the form set forth in § 197.6 (relating to form of certificate of service) shall be attached to the petition.

The provisions of this § 197.64 amended under section 805 of the Health Care Facilities Act (35 P. S. § 448.805); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.64 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642. Immediately preceding text appears at serial page (61896).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.65 Form of petition.

The following is the form for a petition requesting Hearing Board review of regulations, criteria or standards:

COMMONWEALTH OF PENNSYLVANIASTATE HEALTH FACILITY HEARING BOARD

The provisions of this § 197.65 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.65 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial pages (70923) and (70924).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.64 (relating to contents of petition).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.66 Service of petition.

On or before the date of filing with the Hearing Board, petitioner shall serve a copy of the petition and memorandum of law, if any, upon the Department and the health systems agency—when the objection is to a regulation, criterion or standard of the health systems agency—in the manner set forth in § 197.5 (relating to service on other parties).

The provisions of this § 197.66 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.67 Failure to conform to rules.

(a) The Department or appropriate health systems agency may, within 10 days of the filing of a petition, file a motion to dismiss the petition for failure to conform to this chapter.

(b) Upon receipt of a motion to dismiss the petition, the Hearing Board will forthwith issue a rule to show cause why the petition should not be dismissed.

(c) The Hearing Board may, on its own motion at any time, issue a rule to show cause why the petition should not be dismissed for the reasons set forth in subsection (a).

(d) Where a rule to show cause is issued under subsections (b) or (c), proceedings shall be stayed pending disposition of the matter by the Hearing Board.

The provisions of this § 197.67 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.68 Reply to petition.

(a) The Department or the health systems agency, whichever is appropriate, may file a reply to the petition within 30 days of the filing of the petition with the Hearing Board. Such reply, if any, may be in the form of a memorandum of law; and shall be accompanied by a Certificate of Service under § 197.5 (relating to service on other parties).

(b) If a hearing is granted to petitioner by the Hearing Board, the Department or health systems agency, whichever is appropriate, may participate. If participation is planned, the Department or health systems agency shall file a reply as described in subsection (a) and a notice of appearance. The notice of appearance shall be in the form set forth in § 197.10 (relating to form of notice of appearance) but shall include, in addition, a request for a stenographic record, if one is desired.

The provisions of this § 197.68 amended under section 805 of the Health Care Facilities Act (35 P. S. § 448.805); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.68 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended May 21, 1982, effective May 22, 1982, 12 Pa.B. 1642. Immediately preceding text appears at serial page (61898).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.69 Consideration of petition.

Upon the conclusion of the time period for filing a reply to the petition, the Hearing Board will consider the petition and any reply thereto and may:

(1) Deny the petition as being without merit.

(2) Grant a hearing, if one has been requested and the Hearing Board determines that one is warranted, to be held in accordance with § 197.70 (relating to hearing).

(3) Grant the relief, without hearing, and request the Department or health systems agency to reconsider the regulations, criteria or standards.

The provisions of this § 197.69 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.70 Hearings.

(a) Hearings for review of regulations, criteria or standards will be held in Harrisburg, unless the Hearing Board for good cause determines that another location would be more suitable.

(b) The time, date and place of the hearing will be announced by the Hearing Board by written notice to the petitioner and to the Department or health systems agency no later than 21 days before the hearing date.

(c) Hearings shall be confined to oral argument only. This subsection supersedes 1 Pa. Code § 35.126 (relating to presentation by the parties).

(d) The petitioner shall open, and after the presentation of other arguments, if any, may conclude by way of rebuttal. This subsection supplements 1 Pa. Code § 35.125 (relating to order of procedure).

(e) The time for argument shall be limited to not more than 30 minutes for each side, unless the time is extended by the board member presiding at the hearing. Where more than one petitioner is participating in a consolidated proceeding, the maximum time shall be divided among the petitioners as they may decide. Notwithstanding these time limits, each petitioner shall be allowed at least 5 minutes to present his case.

(f) At the discretion of the board member presiding at the hearing, an argument may be terminated notwithstanding the fact that the maximum time for argument has not been exhausted.

The provisions of this § 197.70 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.69 (relating to consideration of petition).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.71 Decision of the Hearing Board.

(a) Upon the conclusion of the hearing, if any, the hearing board member who presided shall prepare a report and recommendation for consideration by the full Hearing Board. This subsection supersedes 1 Pa. Code § 35.202 (relating to proceedings in which proposed reports are prepared).

(b) At least two of the three members will vote in favor of requesting reconsideration; otherwise, the Hearing Board will not request reconsideration of the regulations, criteria or standards.

(c) If the Hearing Board, with or without a hearing, determines that petitioner’s objections to the regulations, criteria or standards are valid, it will request the Department or health systems agency to reconsider its regulation, criterion or standard. The request shall set forth with specificity the reasons for suggesting the reconsideration.

The provisions of this § 197.71 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.72 Distribution of decision.

A copy of the decision of the Hearing Board will be sent by first class mail to:

(1) The petitioner.

(2) The Department or the health systems agency which adopted or approved the regulation, criterion or standard in question.

(3) The Office of General Counsel.

(4) The Office of Attorney General.

(5) A person who has made a written request for a copy.

The provisions of this § 197.72 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.81 Definitions.

(a) For purposes of appeals relating to licensure filed under Chapter 8 of the act (35 P. S. § § 448.801a—448.820) this section, and § § 197.82—197.94 (relating to appeals from decisions pertaining to licensure), the following terms, have the following meanings, unless the context clearly indicates otherwise: Applicant—A person filing an application with the Department to maintain and operate a health care facility. Decision—The term includes order, decree, rule or determination. Health care facility—A general, tuberculosis, chronic disease or other type of hospital; a skilled nursing facility; a home health care agency; an intermediate care facility; an ambulatory surgical facility; and a birth center regardless of whether the facility is operated for profit or by an agency of the Commonwealth or local government. The term does not include an office used primarily for the private practice of medicine, osteopathy, optometry, chiropractic, podiatry or dentistry; a program which renders treatment or care for drug or alcohol abuse or dependence unless located within a health facility; or a facility providing treatment solely on the basis of prayer or spiritual means. A mental retardation facility is not a health care facility except to the extent that it provides skilled nursing care. The term health care facility does not apply to a facility which is conducted by a religious organization for the purpose of providing health care services exclusively to clergymen or other persons in a religious profession who are members of a religious denomination. Home health care agency—An organization or part thereof staffed and equipped to provide nursing and at least one therapeutic service to disabled, aged, injured or sick persons in their place of residence. The agency may also provide other health-related services to protect and maintain persons in their own home. Hospital—An institution having an organized medical staff which is primarily engaged in providing to inpatients, by or under the supervision of physicians, diagnostic and therapeutic services, and rehabilitation services for injured, disabled, pregnant, diseased or sick, or mentally ill persons. The term includes facilities for the diagnosis and treatment of disorders within the scope of specific medical specialties but not facilities caring exclusively for the mentally ill. Intermediate care facility—An institution which provides on a regular basis health-related care and services to resident individuals who do not require the degree of care and treatment which a hospital or skilled nursing facility is designed to provide but who because of their mental or physical condition require health-related care and services above the level of room and board. Intermediate care facilities exclusively for the mentally retarded commonly called ICF/MR are not considered intermediate care facilities for the purpose of the act. Licensee—A person who has been issued a license, including a provisional license, to maintain and operate a health care facility. Skilled nursing facility—A facility or part of a facility in which professionally supervised nursing care and related medical and other health services are provided for a period exceeding 24 hours for two or more individuals who are not in need of hospitalization and are not relatives of the nursing home administrator but who—because of age, illness, disease, injury, convalescence or physical or mental infirmity—need the care.

(b) Subsection (a) supplements 1 Pa. Code § 31.3 (relating to definitions).

The provisions of this § 197.81 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.82 Appealable decisions.

The following decisions of the Department relating to licensure may be appealed:

(1) Those relating to an application to secure a license to maintain and operate a health care facility.

(2) Those relating to the renewal, suspension or revocation of a license to maintain and operate a health care facility.

(3) Those relating to the issuance of a provisional license to maintain and operate a health care facility.

(4) Those relating to the suspension of admissions for any of the reasons set forth in section 811 of the act (35 P. S. § 448.811).

The provisions of this § 197.82 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); 37 Pa. Code § 197.81 (relating to definitions); and 37 Pa. Code § 197.83 (relating to standing to appeal).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.83 Standing to appeal.

The following persons will be considered parties and will have standing to appeal a decision of the Department relating to licensure which is appealable under § 197.82 (relating to appealable decisions).

(1) An applicant who is denied a license to maintain and operate a health care facility or who is issued a provisional license rather than a regular license.

(2) A licensee whose license to maintain and operate a health care facility, a portion of a health care facility or a particular service offered by a health care facility is not renewed or is suspended or revoked by the Department.

(3) A licensee who is adversely affected by a decision which suspends admissions for any of the reasons set forth in section 811 of the act (35 P. S. § 448.811).

The provisions of this § 197.83 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.84 Notice of appeal and answer.

(a) The appellant shall file a notice of appeal, in the form set forth in § 197.85 (relating to form of notice of appeal), within 30 days of the date of mailing of the decision by the Department.

(b) Where the decision of the Department is in the form of a rule or order to show cause, the appellant shall, at the time of filing the notice of appeal, file an answer to the rule or order, which answer shall be drawn so as specifically to admit or deny the allegations or charges which may be made in the rule or order. Failure to file the answer shall be deemed an admission by the appellant that the factual allegations or charges contained in the rule or order are true.

(c) On or before the date of filing with the Hearing Board, a copy of the notice of appeal and answer, if any, shall be served on the Department and a certificate of service in the form set forth in § 197.6 (relating to form of certificate of service) be attached thereto.

The provisions of this § 197.84 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.8 (relating to extension of time); 37 Pa. Code § 197.15 (relating to recording of proceedings); 37 Pa. Code § 197.17 (relating to ex parte communications); 37 Pa. Code § 197.81 (relating to definitions); and 37 Pa. Code § 197.86 (relating to certification of rule or order).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.85 Form of notice of appeal.

The following is the form of notice of appeal:

COMMONWEALTH OF PENNSYLVANIASTATE HEALTH FACILITY HEARING BOARD

The provisions of this § 197.85 amended under section 805(b) of the Health Care Facilities Act (35 P. S. § 448.805(b)); and 2 Pa.C.S. § 102(a).

The provisions of this § 197.85 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455; amended August 19, 1983, effective August 20, 1983, 13 Pa.B. 2551. Immediately preceding text appears at serial pages (61905) and (61906).

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); 37 Pa. Code § 197.81 (relating to definitions); and 37 Pa. Code § 197.84 (relating to notice of appeal and answer).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.86 Certification of rule or order.

The Department will file with the Hearing Board, within 15 days of the Department’s receipt of a notice of appeal filed under § 197.84 (relating to notice of appeal and answer), a certified copy of the rule or order upon which the action is based, including any allegations or charges which may be made in the rule or order.

The provisions of this § 197.86 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.87 Supersedeas.

(a) An appeal to the Hearing Board from a decision of the Department relating to licensure may not act as an automatic supersedeas of the decision of the Department; but, upon cause shown, the Board may grant a supersedeas.

(b) No application for supersedeas will be considered by the Hearing Board until the application has been presented to the Department and a decision thereon has been rendered by the Department.

(c) An application for supersedeas filed with the Hearing Board shall show that application has been made to the Department and denied, with the reasons given by it for the denial. The application shall also show the reasons for the relief requested and the facts relied upon; and, if the facts are subject to dispute, the application shall be supported by sworn or verified statements or copies thereof. With the application shall be filed parts, if any, of the record as are relevant to the relief sought.

(d) Upon receipt of an application for supersedeas, a member of the Hearing Board may issue an order denying or granting the relief sought.

The provisions of this § 197.87 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.88 Prehearing conference.

(a) The hearing board member who will preside at the hearing shall schedule a prehearing conference, at a time and place to be determined by the member. Notice of the prehearing conference shall be sent by first class mail to the parties at least 15 days before the date of the prehearing conference.

(b) Each party shall submit, at least 5 days prior to the prehearing conference, a prehearing memorandum, which shall contain the following information:

(1) A short summary of the factual issues involved.

(2) A statement of the legal issues.

(3) Stipulations of fact, if any.

(4) A list of exhibits proposed to be offered in evidence.

(5) A list of the witnesses who will testify at the hearing, and a brief synopsis of the testimony each witness will offer.

(6) An estimate of the length of time required for the presentation of the case of the party.

(c) The prehearing conference may be waived, at the discretion of the hearing board member who will preside at the hearing.

(d) Subsections (a)—(c) supplement 1 Pa. Code § § 35.111—35.116 (relating to prehearing conferences).

The provisions of this § 197.87 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.89 Scheduling and announcement of hearings.

(a) Hearings when feasible shall be held in the locality where the health care facility is based.

(b) Wherever possible, the Hearing Board will schedule a hearing to be held within 30 days of the prehearing conference unless the time is extended by mutual agreement of the parties and the Hearing Board.

(c) The time, date and place of the hearing will be announced by the Hearing Board at least 10 days before the hearing date in the following manner:

(1) By written notice to the parties of record.

(2) By publication in a newspaper of general circulation in the area in which the hearing will be held.

(3) By publication in the Pennsylvania Bulletin.

(d) Subsection (c) supersedes 1 Pa. Code § 35.105 (relating to notice of nonrulemaking proceedings).

The provisions of this § 197.89 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.90 Procedure at hearing.

(a) The Department will have the burden of proof.

(b) The Department will open and close, unless otherwise directed by the hearing board member conducting the hearing. This subsection supersedes 1 Pa. Code § 35.125(a) and supplements 1 Pa. Code § 35.125(b)—(d) (relating to order of procedure).

(c) Parties to the proceeding shall have the right of presentation of evidence, cross-examination, objection, motion and argument. This subsection supplements 1 Pa. Code § 35.126 (relating to presentation by the parties).

(d) The hearing board member conducting the hearing may limit the number of witnesses who may be heard upon any issue. This subsection supplements 1 Pa. Code § 35.127 (relating to limiting number of witnesses).

(e) Each witness shall be sworn or affirm before giving testimony. This subsection supplements 1 Pa. Code § 35.137 (relating to oral examination).

(f) Where documents are offered in evidence, they shall be verified by a witness before being admitted unless the parties agree to their admission without verification. This subsection supersedes 1 Pa. Code § 33.12 (relating to verification).

The provisions of this § 197.90 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.91 Correction of transcript.

(a) Upon the conclusion of the hearing, copies of the transcript shall be provided to those parties requesting them at cost, as soon as practicable. Within 10 days of the mailing of the transcript, a party may file a motion to correct the transcript, for the purpose of correcting typographical errors and unintelligible phrases and making the transcript conform to the evidence.

(b) Subsection (a) supersedes 1 Pa. Code § 35.132 (relating to transcript corrections) and supplements 1 Pa. Code § 35.133 (relating to copies of transcripts).

The provisions of this § 197.91 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.92 Posthearing filings.

At the conclusion of the hearing, the Hearing Board member conducting the hearing shall establish a schedule for the filing of posthearing briefs and requests for findings of fact and conclusions of law.

The provisions of this § 197.92 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.93 Decision of the Hearing Board.

(a) Upon the expiration of the time period for filing posthearing briefs and requests for findings of fact and conclusion of law, if any, the hearing board member who presided at the hearing shall prepare a proposed adjudication and order for consideration by the full Hearing Board. This subsection supersedes 1 Pa. Code § 35.202 (relating to proceedings in which proposed reports are prepared).

(b) The Hearing Board may:

(1) Affirm the decision of the Department.

(2) Reverse the decision of the Department.

(3) Remand the matter to the Department for further hearing, review or reconsideration.

(c) In the event of a tie vote by the hearing board members participating in the adjudication, the decision of the Department will be deemed to be affirmed.

The provisions of this § 197.93 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

37 Pa. Code § 197.94 Distribution of decision.

A copy of the decision of the Hearing Board shall be sent by first class mail to:

(1) The appellant.

(2) The Department.

(3) Other parties to the proceeding, if any.

(4) A person who has made a written request for a copy.

(5) A newspaper of general circulation in the area in which the appeal arises.

The provisions of this § 197.94 adopted May 1, 1981, effective May 2, 1981, 11 Pa.B. 1455.

This section cited in 37 Pa. Code § 197.15 (relating to recording of proceedings); and 37 Pa. Code § 197.81 (relating to definitions).

History

Authority: The provisions of this § 197.
Source: The provisions of this § 197.

Subpart M Coroners

Chapter 199 Coroner’s Education Board

37 Pa. Code § 199.1 Definitions.

The following words and terms, when used in this chapter have the following meanings, unless the context clearly indicates otherwise: Act—The Act of March 2, 1988 (P. L. No. 1988—No. 22) (16 P. S. § § 9525.1—9525.6). Basic Education Course—The course of instruction required by the act to be given to coroners upon their first election to office and to chief deputy and full-time deputy coroners upon first being appointed to either position. Board—The Coroners’ Education Board. Certification—Documentation issued by the Board indicating that education requirements have been met. Continuing education—Yearly educational requirement mandated by the act for every coroner, chief deputy coroner and full-time deputy coroner. Examination—The examination given at the conclusion of the Basic Education Course. Full-time deputy coroner—An individual employed by a county and deemed by the county to be ‘‘full-time.’’ Just-cause—Instances such as job-related emergencies, or illness or accident suffered either by a person required to meet basic education requirements or by the person’s immediate family or death of the person’s immediate family member or in instances when an appointment to fill a vacancy occurs prior to the next scheduled Basic Education Course.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.2 Application of act.

Coroners, whether elected or appointed, and their deputies, are subject to the act and of this chapter.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.3 Appeal procedure.

A coroner or deputy aggrieved by a decision of the Board has the right to appeal in accordance with 2 Pa.C.S. (relating to administrative law and procedure).

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.11 Board chairperson.

The Board members will elect a chairperson from the Board membership at the first regularly scheduled meeting of each calendar year.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.12 Temporary chairperson.

In the absence of the elected chairperson, any Board member may serve as temporary chairperson with the approval of a majority of the Board members present.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.13 Meeting schedule.

The Board will schedule six regular meetings per calendar year, with the meeting dates to be set at or before the first meeting of the calendar year.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.21 General requirement.

Newly elected coroners and newly appointed chief deputy and full-time deputy coroners shall attend the Basic Education Course and pass the examination.

(1) The Basic Education Course is a minimum 32 hours of instruction given between the date of each municipal election and December 31 of that year.

(2) The course of instruction includes subjects such crime-scene investigation, toxicology, forensic autopsies and the legal duties of a coroner.

(3) A written examination is given at the conclusion of the course.

This section cited in 37 Pa. Code § 199.25 (relating to exemptions for licensed professionals).

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.22 Basic Education Course costs.

Costs for those persons statutorily required to attend the Basic Education Course will be the minimum necessary to pay the cost of instruction, required course materials, and room and board. A schedule of cost options to attend the Basic Education Course is available upon request from the Board.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.23 Postponement for just cause.

The determination of the existence of just cause to postpone attendance at the Basic Education Course or completion of the examination, will be at the discretion of the Board. The person seeking exemption bears the responsibility of initiating contact with the Board within 30 days of the event asserted as just cause.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.24 Exemption for qualified forensic pathologists.

A licensed forensic pathologist may be exempt from the requirement of attendance at the Basic Education Course and completion of the examination. The Board will determine eligibility for exemption. Based upon the applicant’s ability to demonstrate active, current involvement in the practice of forensic pathology.

This section cited in 37 Pa. Code § 199.25 (relating to exemptions for licensed professionals).

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.25 Exemptions for licensed professionals.

With the exception of § 199.24 (relating to exemption for qualified forensic pathologists), exemptions from § 199.21 (relating to general requirement) will not be permitted based on other types of education or experience.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.26 Eligibility for certification.

(a) Persons statutorily required to complete the Basic Education Course and pass the examination will receive certification from the Board.

(b) Persons who are under no statutory obligation to do so, but who register for the Basic Education Course through the Board, attend the course and pass the examination, will receive certification. Certification will expire in 1 year, unless the Board receives evidence of yearly compliance with the continuing education requirement.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.27 Failure of coroner to attend Basic Education Course or to pass examination.

When a person elected for the first time to the office of coroner fails to attend the Basic Education Course and pass the examination, the Board will notify the Governor, following the last Board meeting of the year, unless the Board has postponed compliance for just cause.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.28 Failure of chief deputy coroner or full-time deputy coroner to attend Basic Education Course or pass examination.

When a chief deputy coroner or full-time deputy coroner fails to attend the Basic Education Course and pass the examination, the Board will notify the coroner of the appropriate county and the county commissioners or county executive, as appropriate, unless the Board has postponed compliance for just cause. The notification will be made in writing within 30 days of the examination.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.29 Appointees’ basic education requirement.

A person appointed to fill a vacancy in the office of coroner who has never taken the Basic Education Course and passed the examination shall attend the next scheduled course and pass the examination given at its conclusion. The failure to meet the basic education requirement will result in a vacancy in the office.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.30 Appointments made more than 6 months prior to course.

When a chief deputy coroner or full-time deputy is appointed more than 6 months before the next scheduled Basic Education Course, the coroner making the appointment shall apply to the Board for an extension of time in which the deputy may take the required course.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.41 Continuing education.

Coroners and deputy coroners are required to obtain a minimum of 8 hours of continuing education credits in each calendar year. Continuing education credits are to be obtained in subject areas relevant to the statutorily defined duties of coroners and deputy coroners.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.42 Approval of course for continuing education credit.

Persons seeking to have a course approved for continuing education credit shall submit a course approval application form to the chairperson of the Board at least 90 days prior to the date of instruction. Approval will not be given retroactively.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.43 Standards for course approval.

In evaluating the suitability of a course proposed for continuing education credit, the chairperson and the Board shall consider factors such as the relevancy of the course content to the duties of the coroner and the qualifications of the course instructors, including education and experience in the subject matter of the course.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.44 Approval by chairperson.

The chairperson of the Board has the right to approve courses for continuing education credits subject to ratification by the Board.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.45 Board ratification.

Continuing education courses approved by the chairperson of the Board will be proposed for Board ratification at the next regularly scheduled Board meeting.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.46 Approval by simple majority.

Concurrence by a simple majority of the Board is needed to ratify the chairperson’s approval of a course for continuing education.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.47 Unit of credit.

(a) Attendees at approved continuing education courses will be granted 1 hour of continuing education credit for 1 hour of instruction. Credit in excess of 8 hours will not be given.

(b) Teachers at an approved continuing education course will be granted 1 hour of continuing education credit for each hour of instruction. Credit in excess of 8 hours will not be given.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.48 Continuing education for persons required to attend Basic Education Course.

Within the first year of election or appointment, persons required to complete the Basic Education Course shall also obtain 8 hours of continuing education.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.49 Failure of coroner to meet continuing education requirements.

When a person holding the office of coroner fails to meet yearly continuing education requirements, the Board will notify the Governor, in writing, following the last Board meeting of the calendar year.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.50 Failure of chief deputy coroner or full-timer deputy coroner to meet continuing education requirements.

When a chief deputy coroner or full-time deputy coroner fails to meet yearly continuing education requirements, the Board will notify the coroner of the proper county and the county commissioners or county executive, as appropriate. The notification will be made in writing following the last Board meeting of the year.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.51 Requirements for reappointees to vacancies.

If a coroner reappoints a chief deputy or full-time deputy to a vacancy created by that individual’s failure to meet the yearly continuing education requirement, the Board will deem that individual to be newly appointed and subject to § 199.21 (relating to general requirement).

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.61 Statement of Board approval.

Course providers may not represent that a course has been approved for continuing education requirements unless written authorization has been received from the Board.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.62 Verification of attendance.

Course providers are responsible for taking attendance, verifying attendance upon Board request and notifying course attendees of approved hours of credit.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.63 Certificate of attendance.

Course providers are responsible for providing a written certificate of attendance to the attendee indicating course title and date, the name of course provider and the number of hours of approved credit earned.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.64 Notification to Board.

Course providers shall submit to the Board a list of all course attendees with the number of credit hours earned, within 60 days of completion of the course.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.71 Board to maintain current list.

The Board will maintain a list of all currently elected coroners.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

37 Pa. Code § 199.72 Coroners’ duty to notify Board.

Coroners shall provide the Board with the names of all chief deputy coroners and full-time deputy coroners within 30 days of their appointment. Coroners shall notify the Board within 30 days of the departure of chief deputy and full-time deputy coroners. Notification shall be made in writing addressed to Chairperson, Coroners’ Education Board, c/o Office of Attorney General, 16th Floor Strawberry Square, Harrisburg, Pennsylvania 17120.

History

Authority: The provisions of this Chapter 199 issued under section 6 of the act of March 2, 1988 (P.
Source: The provisions of this Chapter 199 adopted June 15, 2001, effective June 16, 2001, 31 Pa.

Part IV Municipal Police Officers’ Education and Training Commission

Subpart C Law Enforcement Officer Hiring and Separation

Chapter 241 Law Enforcement Background Investigations—Temporary Regulations

37 Pa. Code § 241.1 Scope.

This chapter sets forth regulations for the hiring and separation of a law enforcement officer by a law enforcement agency. This chapter is applicable to law enforcement agencies within the Commonwealth that are required to report information, or that may request information or records in accordance with the act.

37 Pa. Code § 241.2 Definitions.

In addition to the definitions contained in the act, the following words and terms, when used in this chapter, have the following meanings: Act—44 Pa.C.S. Chapter 73 (relating to law enforcement background investigations and employment information). Coercion of a false confession—A violation of 18 Pa.C.S. § 2906 or § 5301 (relating to criminal coercion; and official oppression); an equivalent offense in another jurisdiction or behavior in violation of applicable agency policies. Criminal conviction—A finding, verdict of guilt or the entering of a plea of guilty or nolo contendere, whether or not judgement of sentence has been imposed, including, without limitation, comparable dispositions as provided in other State or Federal laws. The term does not include a conviction which has been overturned, expunged pursuant to 18 Pa.C.S. Chapter 91 (relating to criminal history record information) or comparable process in another jurisdiction, or for which a person has been pardoned. Discrimination—A violation of 18 U.S.C.A. § 242, regarding deprivation of rights under color of law, or behavior in violation of applicable agency policies prohibiting different treatment based on, but not limited to: race; color; religion; sex, including pregnancy, transgender status and sexual orientation; national origin; age, consisting of those 40 years of age or older; disability or genetic information. Domestic violence—Conduct which includes but is not limited to:

(1) Conduct which could form the basis for an arrest pursuant to 18 Pa.C.S. § 2711 (relating to probable cause arrests in domestic violence cases).

(2) An act that meets the definition of abuse in 23 Pa.C.S. § 6102 (relating to definitions).

(3) A violation of applicable agency policies prohibiting the use of physical, psychological or emotional abuse of a family or household member, sexual or intimate partner, or person who shares biological parenthood. Employment status—Information indicating whether a law enforcement officer has been offered employment, is currently employed or was previously employed by the law enforcement agency. Excessive force—A use of force by an individual within his or her scope of official law enforcement duties not otherwise permitted under 18 Pa.C.S. § 508 (relating to use of force in law enforcement), equivalent behavior in another jurisdiction or behavior in violation of applicable agency policies. Filing a false report—Intentionally and knowingly submitting an official report or document the law enforcement officer knows to be false. This includes, but is not limited to, conduct which would be a violation of 18 Pa.C.S. § § 4101, 4104(a), 4904, 4905, 4906.1, 4910, 4911 or behavior in violation of applicable agency policies. Harassment—A violation of 18 Pa.C.S. § 2709 or § 2709.1 (relating to harassment; and stalking), an equivalent offense in another jurisdiction, or behavior in violation of applicable agency policies. Judicial finding of dishonesty—A finding by a court or judicial body that a law enforcement officer has engaged in conduct constituting a crime that involves deceit or falsification. Sexual abuse—Conduct or behavior which would constitute a violation of 18 Pa.C.S. Chapter 31, Subchapter B (relating to definition of offenses), also including, but not limited to, 18 Pa.C.S. § § 2910, 3011(a)(1), 3011(a)(2), 5902(b), 5902(b.1), 5902(d), 6301(a)(1)(ii), 6312, 6318, 6320, or 7507.1, or an equivalent offense in another jurisdiction. Sexual misconduct—Behavior of a sexual nature in violation of applicable agency policies. Theft—A violation of 18 Pa.C.S. Chapter 39 (relating to theft and related offenses), an equivalent offense in another jurisdiction or a violation of applicable agency policies. TACS—Training and Certification System—The secure web-based electronic database used to collect and retain information for programs managed by the Commission.

37 Pa. Code § 241.3 Confidentiality.

Information furnished under this chapter by an applicant, law enforcement agency, or collected by the Commission under this chapter, is confidential and not subject to public disclosure, with the exception of information expressly identified within the act as eligible under the Right-to-Know Law (65 P.S. § § 67.101—67.3104). Secondary dissemination of confidential information is strictly prohibited.

37 Pa. Code § 241.4 Law enforcement agency enrollment.

(a) The Commission will publish information on the Commission’s public web site regarding procedures for agencies to enroll in TACS.

(b) A law enforcement agency shall enroll in TACS as directed on the Commission’s public web site within 30 days of a determination by the law enforcement agency that the law enforcement agency is subject to the act.

(c) A law enforcement officer who is employed with a law enforcement agency and whose information is contained in TACS will be eligible to participate in the Commission’s annual in-service training program.

37 Pa. Code § 241.5 Background investigations.

(a) Request for disclosure of employment information.

(1) A prospective employing law enforcement agency shall request employment information from an applicant’s former employing law enforcement agencies. The request shall be on a form promulgated by the Commission and signed by the prospective employing law enforcement agency’s chief of police or other authorized representative. The request shall include an authorization and release signed by the applicant.

(2) An applicant’s former employing law enforcement agency shall:

(i) Maintain employment information and records specified in section 7308 of the act (relating to maintenance of records) in accordance with the applicable retention and disposition schedules established by law.

(ii) Provide the prospective employing law enforcement agency access to the requested records within 30 days of receipt of the request.

(b) Request for background information.

(1) All prospective employing law enforcement agencies shall conduct:

(i) A criminal history check, including the submission of fingerprints to the State Police Central Repository and the Federal Bureau of Investigation.

(ii) A check of the applicant’s credit history.

(iii) Personal interviews with at least three people who have personal knowledge of the applicant but are not related to the applicant, nor are a member of the applicant’s household.

(iv) Interviews of the applicant’s employers, if any, for the past 5 years to determine the applicant’s work history.

(v) A review of the applicant’s employment information from each previous law enforcement employer to determine the applicant’s law enforcement work history.

(vi) A check of the applicant’s driving history that includes a review of all traffic violations and verification that the applicant has a valid driver’s license.

(vii) A verification of the applicant’s eligibility to lawfully possess a firearm.

(2) A prospective employing law enforcement agency may establish higher standards for background investigations of applicants if those standards are not contrary to State or Federal law.

(3) If an applicant is prohibited from possessing, using or controlling a firearm under State or Federal law, the applicant may not be employed as a law enforcement officer in a position which requires possession, use or access to a firearm, except as provided for under section 925 of the Gun Control Act of 1968 (18 U.S.C.A. § 925), regarding exceptions: relief from disabilities.

37 Pa. Code § 241.6 Request for separation record.

A prospective employing law enforcement agency shall request an applicant’s separation record from the Commission when a conditional offer of employment is made to an applicant.

(1) A request for a separation record shall be submitted in TACS and shall include a notarized waiver form signed by the applicant.

(2) The Commission will provide the separation record for the applicant or certification that a separation record does not exist. If an applicant is currently employed by a law enforcement agency within the Commonwealth, the Commission will provide a prospective employing law enforcement agency with the current employing law enforcement agency information.

37 Pa. Code § 241.7 Hiring information.

(a) Within 7 days of completion of the selection or hiring process, a prospective employing law enforcement agency shall notify the Commission of the applicant’s final employment status in TACS.

(b) A hiring report shall be submitted to the Commission by a prospective law enforcement agency when an applicant who is hired has a history of either final and binding disciplinary action or a criminal conviction, or both, for:

(1) Excessive force.

(2) Harassment.

(3) Theft.

(4) Discrimination.

(5) Sexual abuse.

(6) Sexual misconduct.

(7) Domestic violence.

(8) Coercion of a false confession.

(9) Filing a false report.

(10) Judicial finding of dishonesty.

(1) Be on a form promulgated by the Commission, and which is available on its publicly available web site.

(2) Contain a notarized signature of the prospective law enforcement agency’s chief of police or designated representative.

(3) Include the reasoning and rationale for hiring the applicant.

(4) Be submitted to the Commission in TACS.

(5) Be made part of the applicant’s electronic record within TACS.

37 Pa. Code § 241.8 Submission of separation record.

(a) A law enforcement agency shall update the employment status of a law enforcement officer and submit a separation record in TACS no more than 15 days after the law enforcement officer’s separation from employment.

(b) A separation record shall be on a form promulgated by the Commission and shall include a notation of final and binding disciplinary action or a criminal conviction.

(c) If a separation record form is incomplete, the Commission will notify the submitting law enforcement agency that the separation record form has been rejected. The submitting law enforcement agency shall submit a corrected separation record form to the Commission within 15 days of receiving the rejection notice.

37 Pa. Code § 241.9 Officer review.

(a) A law enforcement officer may request their separation record form from the Commission.

(1) A request to review a separation record form shall be made on a notarized waiver form and submitted to the Commission in TACS.

(2) A request to review a separation record form shall include the employing law enforcement agency name and dates the law enforcement officer was employed by the law enforcement agency.

(3) The Commission will provide the law enforcement officer a copy of the requested separation record form upon receipt of the request.

(b) A law enforcement officer who disagrees with the contents of a separation record may submit to the previous employing law enforcement agency a request for correction or removal of the portion of the separation record believed to be incorrect.

(1) A request for correction or removal of a portion of a separation record shall be submitted directly to the previous employing law enforcement agency on the correction request form promulgated by the Commission.

(2) A law enforcement agency shall respond to a request for correction or removal of records by providing the requesting law enforcement officer with a written response on the correction request form within 15 days. The response shall include the reasons for the correction or removal of a portion of the record or the refusal to do so.

37 Pa. Code § 241.10 Amending separation records.

A law enforcement agency may submit a corrected or amended separation record form to the Commission for a law enforcement officer who was previously employed by the agency, and for whom the agency has previously submitted a separation record form.

(1) A corrected or amended separation record form shall be submitted in TACS and shall be accompanied by the correction request form from the law enforcement officer requesting the change.

(2) If a law enforcement agency submits a corrected or amended separation record form that is not based on a request from a law enforcement officer, the law enforcement agency shall notify the affected law enforcement officer.

(i) The law enforcement agency shall notify the affected law enforcement officer by certified mail that a previously submitted separation record form will be changed and submitted to the Commission.

(ii) The law enforcement agency shall attach documentation of the notification to the affected law enforcement officer to the submission of the corrected or amended separation record form in TACS.

37 Pa. Code § 241.11 Officer statement of disagreement.

A law enforcement officer who disagrees with a law enforcement agency determination regarding the correction or removal of a portion of a separation record, may submit a written statement of disagreement to the Commission and to the previously employing law enforcement agency.

(1) The written statement of disagreement shall be submitted to the Commission by the law enforcement officer in TACS and shall be accompanied by the correction request form that was submitted to and returned by the previously employing law enforcement agency.

(2) The law enforcement officer’s written statement of disagreement will be provided by the Commission with any future requests for the law enforcement officer’s separation record form.

(3) The previously employing law enforcement agency shall maintain the law enforcement officer’s written statement of disagreement with, and as part of, the law enforcement officer’s separation records maintained pursuant to the act.

37 Pa. Code § 241.12 Record retention by law enforcement agency.

A law enforcement agency shall maintain employment information and records specified in section 7308 of the act (relating to maintenance of records) in accordance with the applicable retention and disposition schedules established by law.

37 Pa. Code § 241.13 Record security procedures.

(a) A law enforcement agency shall maintain employment information and records specified in section 7308 of the act (relating to maintenance of records) in accordance with security protocols to ensure the security of those records.

At a minimum, a law enforcement agency shall:

(1) Ensure only authorized personnel have access to employment information, including separation records.

(2) Maintain employment information, including separations records, in a manner and location that protects against loss, damage and unauthorized alteration, removal or destruction.

(3) Ensure employment information, including separation records, are accessible for dissemination to or review by a prospective law enforcement agency in accordance with section 7304 of the act (relating to disclosure of employment information).

(b) The Commission will ensure TACS is in compliance with the most current Criminal Justice Information Service Security Policy from the Federal Bureau of Investigation.

Subpart D Law Enforcement Mental Health

Chapter 261 Law Enforcement Mental Health Evaluations—Temporary Regulations

37 Pa. Code § 261.1 Scope.

This chapter sets forth regulations for a law enforcement agency to provide a law enforcement officer with a mental health evaluation for post-traumatic stress disorder. This chapter is applicable to law enforcement agencies and law enforcement officers within the Commonwealth as identified in the act.

37 Pa. Code § 261.2 Definitions.

In addition to the definitions contained in the act, the following words and terms, when used in this chapter, have the following meanings: Act—44 Pa.C.S. Chapter 72 (relating to mental health evaluations). Commission—The Municipal Police Officers’ Education and Training Commission. Essential job functions of a police officer—The job functions and tasks essential to performing the full duties of a municipal police officer, including, but not limited to, the ability to effectuate arrests, proficiently handle firearms, operate a police vehicle and perform a variety of physical tasks, the ability to communicate effectively, both verbally and in writing, the ability to comprehend documents and apply rules, procedures, and precedent, and other mental tasks, as well as perform rescue functions and other miscellaneous duties. Fitness for duty evaluation—A formal, specialized psychological examination to determine whether a law enforcement officer is able to safely and effectively perform essential job functions of a police officer. Lethal force—Force that directly causes the death of another person. Licensed mental health professional—A licensed psychologist with education, training and experience in the diagnostic evaluation of mental and emotional disorders. Mental health evaluation—An evaluation conducted by a licensed mental health professional to provide the licensed mental health professional with an impression of the way a person feels, reasons, thinks and remembers in order to diagnose mental health disorders. Police Chief or supervising law enforcement officer—The agency executive, chief of police or officer in charge of a police department enumerated under the act, or the person or governing body exercising executive oversight of a police department enumerated under the act. TACS—Training and Certification System—The web-based electronic database used to collect and retain information for programs managed by the Commission.

37 Pa. Code § 261.3 Duties of law enforcement agency.

(a) In accordance with section 7203(a)(1) of the act (relating to mental health evaluations for law enforcement officers), a law enforcement agency shall provide a law enforcement officer employed by the law enforcement agency with a mental health evaluation for post-traumatic stress disorder when requested by a law enforcement officer.

(1) The law enforcement agency shall make a request for a mental health evaluation to a licensed mental health professional on a form promulgated by the Commission.

(2) The law enforcement agency shall schedule the mental health evaluation with a licensed mental health professional to occur within 10 calendar days of the request by the law enforcement officer.

(3) The law enforcement agency shall be responsible for costs associated with a mental health evaluation.

(4) The law enforcement agency shall notify the Commission within 5 calendar days, whenever the evaluation, diagnosis or treatment of a law enforcement officer, who requests a mental health evaluation under subsection (a), results in the officer being unable to perform the essential job functions of a law enforcement officer. This notification:

(i) Shall be accomplished through TACS.

(ii) Shall indicate only the new duty status.

(iii) May not include any information concerning the evaluation, diagnosis or treatment of the law enforcement officer.

(b) In accordance with section 7203(a)(2) of the act, a law enforcement agency shall provide a law enforcement officer employed by the law enforcement agency with a mental health evaluation for post-traumatic stress disorder when a police chief or other supervising law enforcement officer recommends a mental health evaluation.

(1) The law enforcement agency shall make a request for a mental health evaluation to a licensed mental health professional on a form promulgated by the Commission.

(2) The law enforcement agency shall schedule the mental health evaluation with a licensed mental health professional to occur within 10 calendar days of the recommendation of the police chief or supervising law enforcement officer.

(3) The law enforcement agency shall be responsible for the costs associated with the mental health evaluation.

(4) The law enforcement agency shall notify the Commission within 5 calendar days, whenever the evaluation, diagnosis or treatment of a law enforcement officer, who is recommended for a mental health evaluation under subsection (b), results in the law enforcement officer being unable to perform the full duties of a law enforcement officer. This notification:

(i) Shall be accomplished through TACS.

(ii) Shall indicate only the new duty status.

(iii) May not include any information concerning the evaluation, diagnosis or treatment of the law enforcement officer.

(c) In accordance with section 7203(a)(3) of the act, a law enforcement agency shall provide a law enforcement officer employed by the agency with a mental health evaluation for post-traumatic stress disorder after being directly involved in an incident where lethal force was used in the course of law enforcement duties.

(1) The law enforcement agency shall make a request for a mental health evaluation to a licensed mental health professional on a form promulgated by the Commission.

(2) The law enforcement agency shall schedule the mental health evaluation with a licensed mental health professional to occur within 30 calendar days of the incident involving the use of lethal force.

(3) The law enforcement agency shall be responsible for the costs associated with the mental health evaluation.

(4) The law enforcement agency shall notify the Commission within 5 calendar days, whenever the evaluation, diagnosis or treatment of a law enforcement officer, who is provided a mental health evaluation under subsection (c), results in the officer being unable to perform the full duties of a law enforcement officer. This notification:

(i) Shall be accomplished through TACS.

(ii) Shall indicate only the new duty status.

(iii) May not include any information concerning the evaluation, diagnosis or treatment of the law enforcement officer.

(d) Administrative duty. A law enforcement officer shall be assigned to administrative duty if the law enforcement officer either:

(1) Fails to undergo a scheduled mental health evaluation as required under subsections (a), (b) or (c).

(2) Is not yet able to resume full duties as determined by a licensed mental health professional.

(e) Notification. The law enforcement agency shall provide written notification to the Commission when a law enforcement officer, who is required to participate in a mental health evaluation under this section, fails to comply with the requirements of § 261.5 (relating to duties of law enforcement officer).

This section cited in 37 Pa. Code § 261.4 (relating to duties of licensed mental health professional); and 37 Pa. Code § 261.5 (relating to duties of law enforcement officer).

37 Pa. Code § 261.4 Duties of licensed mental health professional.

(a) Whenever a request for a mental health evaluation of a law enforcement officer is received, a licensed mental health professional shall:

(1) Schedule the mental health evaluation to occur within 10 days of the request made under § 261.3(a) or (b) (relating to duties of law enforcement agency).

(2) Schedule the mental health evaluation to occur within 30 days of the incident which prompted the request under § 261.3(c).

(3) Conduct a mental health evaluation, including a fitness for duty evaluation, clinical interview and objective testing, to determine if the law enforcement officer is both:

(i) Experiencing symptoms of post-traumatic stress disorder.

(ii) Fit to perform the essential job functions of a police officer.

(4) Conduct follow-up fitness for duty evaluations to determine if the law enforcement officer is fit to perform the essential job functions of a police officer if:

(i) The initial mental health evaluation is insufficient to determine if the law enforcement officer is experiencing symptoms of post-traumatic stress disorder.

(ii) The initial mental health evaluation is insufficient to determine if the law enforcement officer is fit to perform the essential job functions of a police officer.

(b) Treatment. If a licensed mental health professional determines during a mental health evaluation that a law enforcement officer has symptoms of post-traumatic stress disorder, the law enforcement officer shall be provided with treatment by a licensed mental health care professional until the licensed mental health care professional determines that the law enforcement officer is able to resume full duties.

(c) Notification. Upon completion of the mental health evaluation, a licensed mental health professional shall notify the law enforcement agency of the results of the mental health evaluation on a form promulgated by the Commission.

37 Pa. Code § 261.5 Duties of law enforcement officer.

Whenever a law enforcement officer is subject to a mental health evaluation under § 261.3 (relating to duties of law enforcement agency), the law enforcement officer shall:

(1) Attend and participate in the scheduled mental health evaluation.

(2) Attend and participate in any follow-up evaluations.

(3) Notify law enforcement agencies that employ the law enforcement officer, when the law enforcement officer is employed by multiple law enforcement agencies and is placed on administrative duty by any of the employing law enforcement agencies.

(4) Notify an agency for which the law enforcement officer is employed as a peace officer, as defined in 18 Pa.C.S § 501 (relating to definitions), when the law enforcement officer is employed by multiple agencies and is placed on administrative duty by any of the employing law enforcement agencies.

This section cited in 37 Pa. Code § 261.3 (relating to duties of law enforcement agency); and 37 Pa. Code § 261.6 (relating to duties of Commission).

37 Pa. Code § 261.6 Duties of Commission.

(a) Upon notice by a law enforcement agency of a change of duty status for a law enforcement officer, the Commission will ensure that the appropriate duty status is reflected in TACS.

(b) Upon written notice by a law enforcement agency of a law enforcement officer’s failure to comply with § 261.5 (relating to duties of law enforcement officer), the Commission:

(i) Will provide the law enforcement officer with notice and an opportunity to be heard, as prescribed by 37 Pa. Code Chapter 203, Subchapter G (relating to notice and hearings).

(ii) May suspend or revoke the certification of that law enforcement officer, in accordance with 37 Pa. Code § 203.14 (relating to revocation of certification).

37 Pa. Code § 261.7 Confidentiality.

(a) Any request or recommendation for a mental health evaluation of a law enforcement officer, made under this chapter, whether verbal or written, shall be considered confidential. No person may divulge or discuss a recommendation or request made under this chapter, unless such communication is necessary to comply with this chapter.

(b) The results of any mental health evaluation of a law enforcement officer, conducted under this chapter, whether verbal or written, shall be considered confidential. All records kept, stored or otherwise retained by a law enforcement agency, the Commission or by a licensed mental health professional, which are generated as a result of an action under this chapter, shall be kept separate from other employment records. No person may divulge or discuss the results of any mental health evaluation of a law enforcement officer made under this chapter, unless such communication is necessary to comply with this chapter.

Part V Bureau of Consumer Protection

Chapter 301 Automotive Industry Trade Practices

37 Pa. Code § 301.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Advertisement—An oral, written or graphic statement which offers for sale a particular motor vehicle or motor vehicle goods and services or which indicates the availability of a motor vehicle or motor vehicle goods and services, including a statement or representations made in a newspaper, periodical, pamphlet, circular, other publication or on radio or television; contained in a notice, handbill, sign, billboard, poster, bill, catalog or letter; placed on a web site, in a mobile application, on a social media outlet or on any other electronic platform; or printed on or contained in a tag or label which is attached to merchandise. Bona fide, substantial reduction—A reduction of at least 5.0% of the usual selling price. Bureau—The Bureau of Consumer Protection of the Commonwealth. Clear and conspicuous—A statement, representation or term differing from other statements, representations or terms being made so as to be readily noticeable to the person to whom it is being disclosed either by its size, sound, color, placement in the advertisement or the like. Dealer or motor vehicle dealer—A person who is engaged in the business of selling, offering for sale or negotiating the retail sale of motor vehicles and including the officers, agents and employes of the person and a combination or association of dealers; a person shall be considered to be ‘‘in the business of selling’’ motor vehicles if that person sells or negotiates the sale of five or more motor vehicles in a calendar year or sells or negotiates the sale of a vehicle which is not owned by the person or which is acquired for resale purposes. Guarantee or guaranty—A warranty. Implied warranty—A warranty which arises under Commonwealth statute in the connection with the sale of goods and services. Manufacturer—A person who does the following:

(i) Engages in the business of manufacturing or assembling new and unused motor vehicles.

(ii) Engages in the business of importing new and unused motor vehicles into the United States.

(iii) Engages in the business of selling or distributing new and unused motor vehicles to motor vehicle dealers in this Commonwealth. Motor vehicle—A self-propelled, motorized conveyance driven or drawn upon public roads, streets or highways which is designed to transport not more than 15 persons. Purchaser—A person who has obtained ownership of a motor vehicle by transfer or purchase or who has entered into an agreement or contract for the purchase of a motor vehicle. Rebuilt or remanufactured—Disassembled and reassembled with defective and worn parts replaced. Reconditioned—Repaired or restored to working order. Repair shop—A person who, for compensation, engages in the business of diagnosing or repairing malfunctions of or damage to motor vehicles or who performs maintenance service on motor vehicles, including but not limited to auto body shops and retail stores which offer automotive services, motor vehicle dealers who provide or offer automotive repairs and services, and businesses which specialize in automotive repairs and services but excluding the Commonwealth and the United States Government and agencies, departments and political divisions thereof and excluding an establishment which repairs, services and maintains vehicles for the exclusive use of its employes. Used motor vehicle—A motor vehicle which has been sold, bargained, exchanged or given away; which has had title transferred from the person who first acquired it from the manufacturer or dealer; or which has an odometer reading of 500 miles or more, not including mileage incurred in delivery from the manufacturer or in transporting the vehicle between dealers for sale. Usual selling price—The price at which an advertiser has sold or offered for sale the advertised vehicles or services, or both, or their substantial equivalent for not less than 30 days during the 90-day period preceding the date of publication of an advertisement; if the advertised vehicles or services, or both, or their substantial equivalent have not been sold or offered for sale at one price for 30 days during the 90-day period preceding the date of publication of an advertisement, then the lowest price at which the goods and services have been sold or offered for sale during the preceding 90 days shall be deemed the usual selling price. Warranty—Either of the following:

(i) An affirmation of fact or a promise made in connection with the sale, repair or maintenance of a motor vehicle which relates to the nature of the goods or services and affirms or promises that the goods or services are defect-free or will meet a specified level of performance over a specified period of time.

(ii) An undertaking, affirmation or promise made in connection with the sale, repair or maintenance of a motor vehicle to refund, repair, replace or take other remedial action with respect to the goods or services, or both, in the event that the goods or services, or both, fail to meet the specifications set forth or implied under the circumstances surrounding the transaction.

The provisions of this § 301.1 amended under section 3.1 of the Unfair Trade Practices and Consumer Protection Law (73 P.S. § 201-3.1).

The provisions of this § 301.1 amended July 19, 2024, effective August 19, 2024, 54 Pa.B. 4122. Immediately preceding text appears at serial pages (389175) to (389176) and (336845).

When automobile had been damaged, repaired and repainted, the court held that the automobile was ‘‘reconditioned’’ and not ‘‘new.’’ Pirozzi v. Penske Olds-Cadillac-GMC, Inc., 605 A.2d 373 (Pa. Super. 1992); appeal denied 616 A.2d 985 (Pa. 1992).

History

Authority: The provisions of this Chapter 301 issued under section 3.
Source: The provisions of this § 301.

37 Pa. Code § 301.2 Advertising and sales presentation requirements.

With respect to an advertisement or sales presentation offering or making available for sale a new or used motor vehicle or maintenance service or repair on a new or used motor vehicle, the following will be considered unfair methods of competition and unfair or deceptive acts or practices:

(1) The use of different type, size, style, location, sound, lighting or color, so as to obscure or make misleading a material fact in an advertisement or sales presentation.

(2) The misrepresentation in any way of the size, inventory or nature of the business of the advertiser or seller; the expertise of the advertiser or seller or his agents or employes; or the ability or capacity of the advertiser or seller to offer price reductions.

(3) The use of an advertisement or sales presentation as part of a plan or scheme not to sell the vehicles or services advertised, or both, or not to sell the vehicles or services advertised or presented at the advertised price. The following will be prima facie evidence of a plan or scheme not to sell the motor vehicles or services or not to sell the vehicles or services at the advertised or represented prices:

(i) Refusing to show, display, sell or otherwise provide the goods and services advertised in under the terms of the advertisement.

(ii) Disparaging by act or word the advertised goods and services; the warranty; the credit terms; the availability of service, repairs or parts; or anything which in any other respect is a material fact connected with the sale of the advertised goods and services.

(iii) Refusing to take orders for advertised goods and services or taking orders at a price greater than the advertised price.

(iv) Showing, demonstrating or delivering advertised goods or services which are obviously defective, unusable or unsuitable for the purpose represented or implied in the advertisement or sales presentation.

(v) Accepting a deposit for advertised goods or services, then switching the purchaser to higher priced goods or services.

(vi) Failing to make delivery of the advertised goods and services within the promised delivery period unless the failure is caused by reasons beyond the control of the advertiser.

(vii) Using a sales plan or method of compensating or penalizing sales persons which is designed to prevent or discourage them from selling advertised goods and services or from selling the same at the advertised price; this subparagraph may not apply to a sales plan or method of compensation whereby a salesperson realizes a fixed percentage rate of the gross amount of sales made by the salesperson within a specified time period nor to a salesperson bonus plan designed to encourage or reward the selling of goods and services offered by the advertiser, including those advertised.

(4) The failure or refusal to sell a motor vehicle or other goods or services under terms or conditions, including price or warranty, which a motor vehicle manufacturer or dealer or repair shop has advertised or otherwise represented.

(5) The representation in an advertisement or sales presentation that a motor vehicle or motor vehicle goods or services are of a particular style, model, standard, quality or grade if they are of another or if the representation conflicts with a written notice or disclosure required under this chapter. For the purposes of this chapter, a motor vehicle which is offered for sale is represented to be roadworthy, and the advertiser or seller shall disclose in writing prior to sale the following conditions if the advertiser or seller knows or should know that the conditions exist in the motor vehicle:

(i) Frame bent, cracked or twisted.

(ii) Engine block or head cracked.

(iii) Vehicle unable to pass State inspection.

(iv) Transmission damaged, defective or so deteriorated as to require replacement.

(v) Vehicle flood damaged.

(vi) Differential damaged, defective or so deteriorated as to require replacement.

(5.1)(i) The advertisement or offering of a motor vehicle for sale unless:

(A) A certified inspection mechanic designated by the selling motor vehicle dealer has inspected the motor vehicle not more than 30 days after the motor vehicle comes into the inventory of the selling motor vehicle dealer or advertiser for all conditions listed in paragraph (5); and

(B) The selling motor vehicle dealer has inspected the motor vehicle not more than 30 days prior to the sale if the motor vehicle accumulates 500 or more miles while in the inventory of the selling motor vehicle dealer or advertiser for all conditions listed in paragraph (5), except the condition listed in paragraph (5)(iii).

(ii) This section shall not apply to the advertisement or offering for sale of a motor vehicle under any of the following circumstances:

(A) To another motor vehicle dealer.

(B) Pursuant to a duly authorized vehicle auction license.

(D) Located outside this Commonwealth at all times during which it is advertised or offered for sale.

(6) The making of a representation or statement of a fact in an advertisement or sales presentation if the advertiser or salesperson knows or should know that the representation or statement is false and misleading or if the advertiser or salesperson does not have sufficient information upon which a reasonable belief in the truth of the representation could be based.

(7) The advertising by a motor vehicle dealer or repair shop of a motor vehicle for sale or of a motor vehicle repair or maintenance service in which the advertisement does not disclose the business name and address of the advertiser or the word ‘‘dealer.’’

(8) The advertising by a motor vehicle dealer or repair shop of the price or specific dollar amount of a motor vehicle or motor vehicle repair or maintenance service unless the price includes charges of any type which are necessary or usual prior to delivery of the vehicle or service to a purchaser, including but not limited to charges for freight, handling and vehicle preparation but excluding taxes and registration and licensing costs in the case of a new or used motor vehicle and including all parts and labor in the case of motor vehicle service. If a manufacturer advertises the price of a new motor vehicle and the name of a specific motor vehicle dealer is mentioned in the advertisement, the advertised price shall include charges for freight, handling and dealer preparation which charges are necessary or usual prior to delivery of the vehicle to a purchaser by the named motor vehicle dealer.

(9) The advertising by a motor vehicle dealer of a motor vehicle for sale at a specified price if the price does not include equipment with which the models of motor vehicles are minimally equipped by the manufacturer unless the advertisement clearly and conspicuously discloses that the equipment is not included in the advertised price.

(10) The use, by a motor vehicle dealer or manufacturer in an advertisement for the sale of motor vehicles, of such terms as ‘‘standard factory equipment’’ or ‘‘fully equipped’’ or words of similar meaning; except that an advertiser is not prohibited from identifying certain specified equipment as standard factory equipment if such is in fact true.

(11) The advertising by a motor vehicle dealer or manufacturer of a motor vehicle for sale in which the year, make, model and series, if the advertised motor vehicle has a designated model or series, are not clearly disclosed.

(12) The advertising by a motor vehicle manufacturer, dealer or repair shop in which the advertisement states directly or by implication that the price of the motor vehicle or motor vehicle maintenance or repairs advertised is a reduction from the usual price, including but not limited to those advertisements which contain either a specific dollar amount of reduction or a percentage of reduction from usual selling price, unless the price from which a reduction is indicated is the usual price at which the advertised goods or services, or both, have been sold or offered for sale. For the purposes of this paragraph, the terms ‘‘sale,’’ ‘‘discount,’’ ‘‘price cut,’’ ‘‘special,’’ ‘‘savings,’’ and other similar words or phrases shall be deemed to indicate a price reduction advertisement.

(13) The advertising by a motor vehicle manufacturer, dealer or repair shop of a price reduction in the sale of a motor vehicle or motor vehicle maintenance or repair services unless the advertised sale price constitutes a bona fide substantial reduction from the usual selling price or the advertisement discloses the actual dollar amount of reduction or percentage of reduction.

(14) The advertising by a motor vehicle manufacturer, dealer or repair shop of a price reduction in the cost of motor vehicles or motor vehicle maintenance or repair services for which the manufacturer, dealer or shop in whose name the advertisement is placed does not maintain records necessary to establish the usual selling price of the motor vehicles, goods or services upon which the price reduction is advertised. The records shall be maintained for a period of 60 days following the termination of the offer and shall be made available for inspection by the Bureau upon demand during business hours. The failure of a manufacturer, dealer or repair shop to substantiate the usual selling price through documentation shall constitute a presumption that the price reduction advertisement was not predicated upon a reduction from the usual selling price and that the claimed reduction was neither substantial nor bona fide as required in paragraph (13).

(15) The use, by a motor vehicle dealer in an advertisement for the sale of motor vehicles of such terms as ‘‘at wholesale’’ or other similar phrases.

(16) The advertising by a motor vehicle dealer or repair shop of the immediate availability of a new motor vehicle or motor vehicle goods and services with the intent not to supply reasonably expectable public demand unless the advertisement discloses a specific limitation of quantity.

(17) The advertising by a motor vehicle dealer of a specific motor vehicle offered for sale where no advertised vehicle is in the stock of the advertiser on the date of placing the advertisement unless the advertisement states ‘‘Not in Stock’’ or ‘‘Order Yours Now’’ or other phrases of similar import which will clearly indicate that the vehicles are not available for immediate delivery and the period of time in which delivery will be made.

(18) The advertising by a motor vehicle manufacturer, dealer or repair shop of a sale or promotion in connection with the sale of a motor vehicle or motor vehicle maintenance or repair services unless the advertisement clearly and conspicuously discloses the expiration date, if any, and other conditions of the sale or promotion, including but not limited to whether the supply of vehicles or other sale goods is limited and, if so, in what manner.

(19) The advertising or presenting for sale by a motor vehicle dealer of a motor vehicle previously used as an ‘‘executive’’ or ‘‘demonstrator’’, or with any prior usage which is required to be noted on a Pennsylvania Certificate of Title or which appears on the title of a state through which the dealer has acquired ownership unless the advertiser or salesperson clearly and conspicuously discloses the prior usage.

(20) The advertising by a motor vehicle dealer of a motor vehicle for sale at a price or price comparison which represents less than the total cash price to be paid by a retail purchaser unless the advertisement clearly and conspicuously discloses that the price is offered with reference to a trade-in or other method of price reduction and discloses the amount of such allowance. A set-off, discount, trade-in allowance, or other price reduction shall be shown as a specific dollar reduction from the advertised price required in this paragraph and shall be incorporated with the advertised price.

(21) The advertising by a motor vehicle dealer of the price which will be paid by the dealer for trade-in vehicles unless the price of the motor vehicles offered for sale by the dealer to the owner of a trade-in vehicle is within the range of prices at which the dealer usually sells the vehicles and is not increased because of the amount offered for the trade-in vehicle.

(22) The advertising by a motor vehicle dealer of a specific price to be paid by the dealer for trade-in vehicles unless either the advertised price will be paid for trade-in vehicles, regardless of their condition or age or unless the advertisement clearly and conspicuously discloses conditions which trade-in vehicles shall meet before the price is paid.

(23) The advertising by a motor vehicle dealer that a range of prices, such as, ‘‘up to $700’’ or ‘‘as much as $700,’’ will be paid by the dealer for trade-in vehicles unless the advertisement clearly and conspicuously discloses the criteria which the dealer uses to determine the amount to be paid for a particular vehicle.

(24) The advertising or presenting for sale by a motor vehicle manufacturer, dealer or repair shop in which a warranty or guaranty is referred to or offered unless the manufacturer, dealer or repair shop complies with all requirements of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (15 U.S.C.A. § § 2301—2312) and 16 CFR Parts 700—703 (relating to rules, regulations, statements and interpretations under the Magnuson-Moss Warranty Act).

(25) The use in an advertisement or sales presentation by a motor vehicle manufacturer, dealer or repair shop of the term ‘‘satisfaction guaranteed or your money back,’’ ‘‘free trial period,’’ or other similar phrases when the advertiser or salesperson does not intend to promptly make a full refund or fails to make full refund within a reasonable period of time not to exceed 5 days. A reasonable conditions or limitations on such offer must be clearly and conspicuously disclosed at the time of making the offer.

(26) The advertising by a motor vehicle dealer or repair shop that it will perform a ‘‘tune-up’’ on a motor vehicle unless the specific work to be performed is set forth and, if a price is advertised, unless the advertisement clearly and conspicuously discloses whether the advertised price includes parts or labor, or both.

The provisions of this § 301.2 amended under section 3.1 of the Unfair Trade Practices and Consumer Protection Law (73 P.S. § 201-3.1).

The provisions of this § 301.2 amended July 19, 2024, effective August 19, 2024, 54 Pa.B. 4122. Immediately preceding text appears at serial pages (336845) to (336846) and (255797) to (255800).

The finding that an automobile salesman did not disclose to the buyer of a used car the known fact that the car had been flood damaged established that the salesman and his employer violated the provisions of 37 Pa. Code § 301.2(5)(v), and further such violations should have been enjoined. Commonwealth v. Luther Ford Sales, Inc., 430 A.2d 1053 (Pa. Cmwlth. 1981).

History

Authority: The provisions of this Chapter 301 issued under section 3.
Source: The provisions of this § 301.

37 Pa. Code § 301.3 General provisions—manufacturer.

With respect to a manufacturer, the following will be considered unfair methods of competition and unfair or deceptive acts or practices:

(1) Furnishing replacement parts or equipment for motor vehicles under the terms of a warranty or guaranty which are not of equal or superior quality or which change the terms of the original warranty or guarantee.

(2) Failing to furnish to its dealers price lists or change notices for motor vehicles, optional equipment, accessories and transportation or destination charges on which dealers may rely in executing contracts with purchasers.

(3) To increase prices of motor vehicles which the dealer had ordered for private retail consumers prior to the dealer’s receipt of the written official price increase notification. A sales contract signed by a private retail consumer shall constitute evidence of the order.

(4) Substituting for identified specified equipment other equipment unless the purchaser is immediately notified in writing of the proposed substitution and is given the opportunity to rescind the purchase agreement within 5 days of notification of the substitution.

(5) Failing to cancel upon request a purchase order and to refund to the dealer monies received when unable to deliver a motor vehicle as ordered within 8 weeks from the date of the purchase order: unless the purchase order specifies a longer time period for delivery; unless the dealer was notified, prior to the date of the purchase order, of a longer delivery period; or unless the delay is caused by acts beyond the control of the manufacturer.

History

Authority: The provisions of this Chapter 301 issued under section 3.
Source: The provisions of this § 301.

37 Pa. Code § 301.4 General provisions—motor vehicle dealer.

(a) With regard to a motor vehicle dealer, the following will be considered unfair methods of competition and unfair or deceptive acts or practices:

(1) Failing to prepare a written contract for the sale of a motor vehicle and failing to provide the purchaser with a copy of the same at the time the purchaser signs the contract.

(2) Using a printed or written contract form agreement, receipt or invoice in connection with the sale of a motor vehicle which is not clearly identified and which does not contain the following:

(i) The name and address of the dealer and purchaser.

(ii) The make, model, year and vehicle identification number of the vehicle purchased and the trade-in vehicle, if any.

(iii) A description of the purchased vehicle as either ‘‘new’’ or ‘‘used’’ and, if used, a brief description of its prior usage such as ‘‘executive,’’ ‘‘demonstrator,’’ ‘‘reconstructed,’’ or any prior usage which is required to be noted on a Pennsylvania Certificate of Title or which appears on the title of any state through which the dealer has acquired ownership.

(iv) The total contract price, including an itemized list of charges for repairs, services, dealer-installed optional accessories and documentary preparation which are not included in the purchase price.

(v) A list of conditions precedent to the dealer’s acceptance of the contract set forth in a clear and conspicuous manner as well as a statement that the purchaser may cancel the contract at any time until the conditions are met; for example, if the contract must be signed by an authorized dealer representative, the document shall state, in a form, substantially as follows:

This contract is not binding upon either the dealer or the purchaser until signed by an authorized dealer representative. YOU, THE BUYER, MAY CANCEL THIS CONTRACT AND RECEIVE A FULL REFUND ANY TIME BEFORE RECEIPT OF A COPY OF THIS CONTRACT SIGNED BY AN AUTHORIZED DEALER REPRESENTATIVE BY GIVING WRITTEN NOTICE OF CANCELLATION TO DEALER.

(vi) A brief statement of an express warranty, such as ‘‘Manufacturer’s limited warranty’’ or ‘‘Our own 90-day full warranty,’’ and the place where a full copy of the written warranty may be obtained.

(3) Failing to provide a purchaser, at no additional charge, an exact copy of each document required by law to be provided including, but not limited to the agreement of sale, installment sales contract, odometer statement, and warranty and other documents in which legal obligations are imposed on the buyer. Copies of other documents signed by the purchaser and requested by the purchaser shall be made available for a reasonable fee.

(4) Using in a motor vehicle purchase contract a liquidated damage clause or similar clause which requires the forfeiture of a purchaser’s deposit or security when the purchaser cancels or breaches the contract unless: the clause contains a specific dollar amount or item to be retained by the dealer; the clause is clear and conspicuous; the purchaser assents to the clause by initialing the same; and the clause is not otherwise unlawful.

(5) Representing that a motor vehicle offered for sale can or will be delivered on or about a certain date or within a specified period when the dealer knows or should know that the vehicle cannot be delivered by or within the time specified or when the dealer has no information on which to base the representation.

(6) Failing to refund the full amount of a purchaser deposit promptly when:

(i) The purchaser cancels the contract prior to its acceptance by an authorized dealer representative.

(ii) The contract is conditioned upon the purchaser obtaining financing of his choice and the purchaser cannot obtain the financing after exerting reasonable efforts to do so.

(iii) The dealer does not accept the contract.

(iv) The dealer fails to deliver to the purchaser a motor vehicle which conforms to the terms of the contract.

(v) The purchaser cancels the contract because the dealer fails to deliver the motor vehicle within the time specified in the contract or, if no time period is specified, within 8 weeks after the date of the contract unless the delay is caused by acts beyond the control of the dealer and the manufacturer.

(7) Increasing the contract price of a motor vehicle after the contract has been accepted by the dealer or the authorized dealer representative unless the increase is due to the passage of a law or regulation of the United States or the Commonwealth which: requires the addition of new equipment to certain vehicles; changes transportation costs or existing tax rates; or, in the case of foreign-made vehicles, is due to a revaluation of the United States dollar vis-a-vis the currency of the country of manufacture.

(8) Reappraising the value of a trade-in vehicle unless the dealer can establish that the vehicle has suffered damage or serious mechanical deterioration since the date of the valuation but prior to its delivery to the dealer, or unless parts or accessories, or both, including tires, have been removed or replaced with parts or accessories of inferior quality.

(9) Where no express warranty is given, attempting to exclude the implied warranties of merchantability and fitness for a particular purpose in the sale of a motor vehicle purchased primarily for personal, family or household purposes unless the following notice in at least 20-point bold type is prominently affixed to a window in the motor vehicle so as to be easily read from the outside and is brought to the attention of the prospective purchaser by the seller:

This vehicle is sold without any warranty. The purchaser will bear the entire expense of repairing or correcting any defects that presently exist and/or may occur in the motor vehicle unless the salesperson promises in writing to correct such defect or promises in writing that certain defects do not exist.

This paragraph prohibits the use of the term ‘‘AS IS’’ unless the sales contract, receipt, agreement or memorandum contains the following information in a clear, concise and conspicuous manner on the face of the document; the notice shall be in addition to the window statement required by this paragraph and may not contradict an oral or written statement, claim or representation made directly or by implication with regard to the quality, performance, reliability or lack of mechanical defects of a motor vehicle which is offered for sale:

(9.1) In an instance where a motor vehicle is not roadworthy at the time the motor vehicle is offered for sale, using the term ‘‘AS-IS’’ as set forth in this section does not satisfy the written disclosure requirement in § 301.2(5) (relating to advertising and sales presentation requirements). The written contract, required under subsection (a)(1) for the sale of a motor vehicle, must instead include, in a clear and conspicuous manner on the face of the document, information that the motor vehicle is sold ‘‘AS-IS’’ and a list of the conditions, as set forth in § 301.2(5) of this chapter, present in the motor vehicle.

(10) Failing to forward to the proper Commonwealth agency amounts and forms tendered by a purchaser, such as sales tax and transfer and registration fees, within the time prescribed by law.

(b) If the sales presentation and agreement of sale has been effected in a language other than English, the written information, notice and disclosures required by subsection (a) shall be given in the principal language in which the sale was transacted as well as English.

The provisions of this § 301.4 amended under section 3.1 of the Unfair Trade Practices and Consumer Protection Law (73 P.S. § 201-3.1).

The provisions of this § 301.4 amended July 19, 2024, effective August 19, 2024, 54 Pa.B. 4122. Immediately preceding text appears at serial pages (255800) to (255803).

There was no error in refusing to grant injunctive relief and impose civil penalties for alleged violations of 37 Pa. Code § 301.4(7) and (8) by an automobile dealership and its salesmen who wrongfully reserved in a used car sales contract, but did not attempt to exercise, the right to change the price of a new car if the manufacturer changed the price to the dealer before delivery and the right to reappraise a trade-in vehicle at the time of delivery of the new vehicle. Commonwealth v. Luther Ford Sales, Inc., 430 A.2d 1053 (Pa. Cmwlth. 1981).

History

Authority: The provisions of this Chapter 301 issued under section 3.
Source: The provisions of this § 301.

37 Pa. Code § 301.5 General provisions—repair shop/dealer service department.

With regard to a repair shop, the following is considered unfair methods of competition and unfair or deceptive acts or practices:

(1) Making a statement, directly or indirectly, which the dealer or repair shop knows or should know to be untrue or misleading including but not limited to the following:

(i) That repairs are necessary or desirable or that repairs are not necessary or desirable when such is not, in fact, true.

(ii) That a vehicle is in a dangerous condition or use of the vehicle may produce harm to the customer or that a vehicle is not in a dangerous condition or use of the vehicle may not produce harm to the customer when such is not, in fact, true.

(iii) That repairs have been performed on a vehicle when such is not, in fact, true.

(2) Failing to record in writing and to provide a copy of the record to the customer, where possible, prior to commencing repairs on the vehicle of a customer:

(i) The name and address of the customer and a telephone number, if any, at which the customer can be reached.

(ii) The date and approximate time the vehicle of the customer was delivered for repairs.

(iii) The year, make and registration number of the vehicle of the customer.

(iv) The odometer reading on the vehicle of the customer.

(v) The specific repairs requested by the customer or, if there is no specific request, a brief description of the problems encountered by the customer with the vehicle.

(3) Charging a customer for repairs which were not authorized in writing or charging a customer a price for agreed-upon maintenance or repair services which price, including parts and labor, was not authorized in writing or displayed in a clear and conspicuous manner on the premises. If the repair shop is unable to obtain advance written authorization because the specific repairs or costs thereof are not known when the vehicle is delivered for repair, the customer shall be so informed and shall be afforded the opportunity to select one of the following options:

(i) No repairs may be performed until the customer is notified of the exact nature of the repairs to be performed and the total price to be charged, including parts and labor and the oral or written authorization of the customer to perform the repairs is obtained.

(ii) Repairs may be initiated, but, if repairs will exceed a price specified in advance by the customer, the oral or written authorization of the customer to proceed further shall be obtained.

(iii) Repair of the described problem may be authorized without limitation of price provided the customer is informed of the hourly labor rate prior to commencement of repairs.

(4) Failing to display in a clear and conspicuous manner on the premises where possible and failing to disclose to a customer prior to obtaining oral or written authorization for repairs:

(i) That the customer has the right upon request to have parts replaced returned to the customer at the completion of the service or to inspect the parts, where possible, if the parts are being returned to the manufacturer or some other person under the terms of the warranty or rebuilding arrangement.

(ii) Whether a part to be supplied is new, used, reconditioned or rebuilt.

(iii) The conditions under which the repair shop may impose daily or hourly storage charges for a vehicle and the amount of the charges.

(iv) The amount of a charge to a customer for an estimate or diagnosis.

(5) Failing to maintain the following written record when oral authorization is received for certain repairs:

(i) The date and time the authorization is received.

(ii) The identity of the employe receiving the oral authorization and the name of the person making the authorization.

(iii) A description of the exact authorization received.

(iv) If authorization is received over the telephone and the shop placed the call, the telephone number called.

(6) Failing to complete repairs on a motor vehicle within 24 hours of its delivery by the customer or within the time specified by the repair shop or dealer unless the customer is informed of and consents to the delay.

(7) Failing to remedy promptly, at no charge to the customer, a repair or maintenance service performed by it on the customer’s vehicle which was not performed in a skilled and workmanlike manner; provided that the customer promptly complains or brings the matter to the attention of the repair shop.

(8) Failing to provide a customer at the completion of repair or maintenance work, including warranty repair work, performed on the vehicle of the customer a dated, written invoice containing the following information:

(i) The name and address of the customer and repair shop.

(ii) The date the vehicle of the customer was delivered for service.

(iii) The year, make and registration number of the vehicle of the customer and the odometer reading of the vehicle at the time the repairs were completed.

(iv) An itemized list of the specific repair or maintenance services performed on the motor vehicle of the customer.

(v) A list of the parts supplied by name or number, the price charged for the parts and the total amount charged the customer for the parts.

(vi) If a part supplied was not new, a statement that the part was either used, reconditioned or rebuilt.

(vii) The labor charge for the repair work, setting forth the number of hours, the price charged for each hour and the total amount charged the customer for labor.

(viii) The total amount charged to the customer for parts and labor; provided, however, that the price information required by this subparagraph and subparagraphs (v) and (vii) need not be provided if the price charged to the customer for the repair or maintenance work is a single charge for the particular service which charge was included in a schedule of charges posted in a clear and conspicuous manner on the premises of the repair shop or otherwise disclosed to the customer at the time the vehicle was delivered for service or repair. No other charges are permitted by this paragraph unless they are clearly and conspicuously disclosed to the customer prior to the commencement of repairs.

(9) Charging a customer for repairs which have not actually been performed.

(10) Failing or refusing to provide a customer with an exact copy at no additional charge of a document in addition to those required by paragraphs (2) and (8) in which legal obligations are imposed on the customer.

(11) Using a vehicle of a customer for a purpose other than a test drive or delivery to the customer unless the express written authorization of the customer is obtained in advance.

History

Authority: The provisions of this Chapter 301 issued under section 3.
Source: The provisions of this § 301.

37 Pa. Code § 301.6 Interpretation.

No provision of this chapter or the application thereof will be interpreted to be inconsistent with the Board of Vehicles Act (63 P. S. § § 818.1—818.28), nor will this chapter limit another practice which may be considered unlawful under sections 1—9.2 of the Unfair Trade Practices and Consumer Protection Law (73 P. S. § § 201-1—201-9.2).

History

Authority: The provisions of this Chapter 301 issued under section 3.
Source: The provisions of this § 301.

Chapter 305 Loan Broker Trade Practices

37 Pa. Code § 305.1 Scope.

This chapter establishes what are determined to be unfair methods of competition and unfair or deceptive acts or practices by loan brokers, but may not be interpreted to limit the power of the Attorney General to determine that another practice is unlawful under sections 1—9.2 of the Unfair Trade Practices and Consumer Protection Law (73 P. S. § § 201-1—201-9.2).

History

Authority: The provisions of this Chapter 305 issued under the Unfair Trade Practices and Consumer Protection Law (73 P.
Source: The provisions of this Chapter 305 adopted August 15, 1986, effective August 16, 1986, 16 Pa.

37 Pa. Code § 305.2 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Borrower—A person seeking the services of a loan broker. Fee—oney or other valuable consideration paid or promised to be paid by a borrower for services rendered or to be rendered by a person acting as a loan broker as that term is defined in this chapter. The term does not include a bona fide fee or expense paid by a borrower which the loan broker pays to a third party specifically for credit reporting and appraisal services. Loan—An agreement to advance money secured by owner-occupied single-family residential real estate in return for the promise that the money shall be repaid and that payments shall be made for the use of the money. Loan broker—A person, copartnership, association or corporation engaged in providing services for the purpose of procuring or attempting to procure a loan on behalf of a borrower where a fee or other valuable consideration is charged for the services. The term does not include a person, copartnership, association or corporation expressly regulated by a regulatory body or officer of this Commonwealth or of the United States, such as State and nationally chartered banks, savings and loan associations and their regulated subsidiaries.

History

Authority: The provisions of this Chapter 305 issued under the Unfair Trade Practices and Consumer Protection Law (73 P.
Source: The provisions of this Chapter 305 adopted August 15, 1986, effective August 16, 1986, 16 Pa.

37 Pa. Code § 305.3 General provisions.

(a) With respect to a loan broker, the following are considered unfair methods of competition and unfair or deceptive acts or practices:

(1) Employing a device, scheme or artifice to defraud.

(2) Making false or misleading statements of fact or omitting material facts in order to make a statement not misleading.

(3) Engaging in an act, practice or course of conduct which creates a likelihood of confusion or misunderstanding.

(4) Failing to use due diligence and make reasonable efforts to procure a loan on behalf of a borrower.

(5) Retaining a fee paid by a borrower to the loan broker where a loan is not procured within the time specified by the loan broker at the rate, term and overall cost agreed to by the loan broker and borrower, regardless of an express written agreement to the contrary. This paragraph does not apply if the failure to procure a loan is due solely to the borrower’s negligence or outright refusal to provide information specifically requested by the loan broker.

(6) Failing to escrow a fee which is paid by the borrower prior to procuring a loan in an interest bearing account of an institution regulated by the Federal Reserve Board, the Federal Home Loan Bank Board, Comptroller of the Currency or the Department of Banking.

(7) Failing to promptly refund to the borrower an escrowed amount with interest if a loan is not procured as set forth in paragraph (5).

(b) This section may not be interpreted to limit the power of the Attorney General to determine that another practice is unlawful under sections 1—9.2 of the Unfair Trade Practices and Consumer Protection Law (73 P. S. § § 201-1—201-9.2).

History

Authority: The provisions of this Chapter 305 issued under the Unfair Trade Practices and Consumer Protection Law (73 P.
Source: The provisions of this Chapter 305 adopted August 15, 1986, effective August 16, 1986, 16 Pa.

37 Pa. Code § 305.4 Waiver of rights.

A waiver of this chapter by a borrower prior to or at the time of entering into an agreement with a loan broker is contrary to public policy and is void. An attempt by a loan broker to have a borrower waive his rights under this chapter shall be deemed to be fraudulent conduct under section 201-2(4)(xvii) of the Unfair Trade Practices and Consumer Protection Law (73 P. S. § 201-2(4)(xvii)).

History

Authority: The provisions of this Chapter 305 issued under the Unfair Trade Practices and Consumer Protection Law (73 P.
Source: The provisions of this Chapter 305 adopted August 15, 1986, effective August 16, 1986, 16 Pa.

Chapter 307 Plain Language Consumer Contract Preapproval— Statement of Policy

37 Pa. Code § 307.1 Scope.

In this chapter, the OAG explains how to submit a contract for its preapproval under the PLA. Additional written materials are available from the OAG to help you comply with the PLA.

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

37 Pa. Code § 307.2 Materials used in preapproval.

(a) The following materials are used in preapproval:

(1) An application for contract preapproval.

(2) A test of readability.

(3) Illustrations for the test of readability.

(b) You can request these materials by writing or calling the OAG, and asking for the Plain Language Contract Preapproval Materials: Office of Attorney GeneralBureau of Consumer Protection14th Floor, Strawberry SquareHarrisburg, PA 17120ATTN: PLA(717) 787-9707 or 1-800-441-2555

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

37 Pa. Code § 307.3 Contracts and language subject to preapproval.

The PLA and our preapproval apply only to consumer contracts as defined under section 3 of the PLA (73 P. S. § 2203). For the purpose of the PLA, a consumer contract is mainly limited to transactions primarily for personal, family or household purposes in amounts up to $50,000. In the opinion of the Attorney General, the PLA applies only to contracts executed after June 24, 1994, the effective date of the PLA.

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

37 Pa. Code § 307.4 Definitions.

(a) The following terms have the following meanings when used in this chapter: OAG—The Office of Attorney General. PLA—The Plain Language Consumer Contract Act (73 P. S. § § 2201—2212).

(b) Section 3 of the PLA (73 P. S. § 2203) contains definitions as follows: Consumer—Any individual who borrows, buys, leases or obtains credit, money, services or property under a consumer contract. Consumer contract or contract—A written agreement between a consumer and a party acting in the usual course of business, made primarily for personal, family or household purposes in which a consumer does any of the following:

(i) Borrows money.

(ii) Buys, leases or rents personal property, real property or services for cash or on credit.

(iii) Obtains credit.

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

37 Pa. Code § 307.5 Exclusions.

The PLA excludes certain contracts from its application as stated under section 4 of the PLA (73 P. S. § 2204). The exclusions include:

(1) Real estate conveyance documents and contracts, deeds and mortgages, real estate certificates of title and title insurance contracts.

(2) Consumer contracts involving amounts of more than $50,000.

(3) Marital agreements.

(4) Contracts to buy securities.

(5) Documents used by financial institutions, which financial institutions are subject to examination or other supervision by Federal or State regulatory authorities, or documents used by affiliates, subsidiaries or service corporations of the financial institutions.

(6) Contracts for insurance or insurance policies.

(7) Contracts subject to examination or other supervision by the Pennsylvania Public Utility Commission or by the Federal Energy Regulatory Commission.

(8) Commercial leases.

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

37 Pa. Code § 307.6 Our policy in preapproving contracts.

(a) Under section 2(b) of the PLA (73 P. S. § 2202(b)), the legislative intent is to promote the writing of consumer contracts in plain language. Section 2(b) states, that the PLA will protect consumers from making contracts they do not understand. Finally, the legislative intent is to help consumers to better know their rights and duties under those contracts.

(b) The OAG uses only the test of readability in preapproving consumer contracts. The OAG considers the contract as a whole. The OAG takes into account the nature and complexity of the transactions, the identity of the parties and the information that the parties need about their rights and responsibilities.

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

37 Pa. Code § 307.7 Instructions for obtaining preapproval.

(a) Each contract you submit to us must be accompanied by a separate application for contract preapproval even if you submit several similar contracts. If you have several similar contracts, we suggest that you submit only one for preapproval. You can then use the preapproved contract as your model for other similar contracts. However, each separate contract must be preapproved before it can be represented as complying with the PLA.

(b) To obtain preapproval:

(1) Complete the application for contract preapproval.

(2) Enclose 3 copies of each contract you wish preapproved.

(3) Underline in red on each copy language required by Federal or State law or regulation.

(4) Mail the application and 3 copies of each contract to: Office of Attorney GeneralBureau of Consumer Protection14th Floor, Strawberry SquareHarrisburg, Pennsylvania 17120Attn: PLA

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

37 Pa. Code § 307.8 How we conduct our preapproval.

We will use the test of readability as a checklist. A checkmark indicates the contract fails the test of readability for preapproval purposes. A number written on your contract corresponds with the number on the test of readability. Please contact the Office of Attorney General if you wish to check on the status of your contract.

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

37 Pa. Code § 307.9 Determination.

(a) We will return to you a copy of the contract and test of readability, if applicable. We will advise you whether the contract is preapproved as complying with the PLA. If the contract does not meet the test of readability under section 5 of the PLA (73 P. S. § 2205), you may make changes and resubmit your contract. You must complete a new application if you decide to submit your contract.

(b) If we determine that your contract is not a consumer contract subject to preapproval under the PLA, we will decline to preapprove it.

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

37 Pa. Code § 307.10 Effect of preapproval.

(a) A consumer contract preapproved by the Office of Attorney General is considered by this Office to comply with the PLA. Preapproval of a contract will be considered by the Office of Attorney General as a good faith effort to comply with section 8(a)(3) of the PLA (73 P. S. § 2208(a)(3)).

(b) Note the limited effect of preapproval under the PLA. Plain language approval of the wording and format of a contract, or any writing required to complete a consumer transaction, does not mean or imply that its contents are approved by the Office of Attorney General. An oral or written reference to plain language approval must be accompanied by the following statement:

‘‘In the opinion of the Office of Attorney General, a preapproved consumer contract meets the Test of Readability under 73 P. S. § 2205 of the Plain Language Consumer Contract Act. Preapproval of a consumer contract by the Office of Attorney General only means that simple, understandable and easily readable language is used. It is not an approval of the contents or legality of the contract.’’

You must complete this Application to obtain preapproval of a consumer contract under Pennsylvania’s Plain Language Consumer Contract Act.

Identify the person submitting the contract for preapproval:

MAIL

A SEPARATE APPLICATION FOR EACH CONTRACT.
THREE (3) COPIES OF EACH CONTRACT WITH REQUIRED LANGUAGE UNDERLINED IN RED.

TO: Office of Attorney General Bureau of Consumer Protection 14th Floor, Strawberry Square Harrisburg, Pennsylvania 17120 Attn: PLA

The TEST OF READABILITY is a checklist based on section 5 of the PLA (73 P. S. § 2205). A checkmark indicates the contract cannot be preapproved under the Plain Language Consumer Contract Act. On the document you submitted, examples indicating where these problems occur are listed by number.

LANGUAGE GUIDELINES

These illustrations provide guidance as to how the Test of Readability may apply to a contract.

I. ORGANIZATION

Use headings and subheadings to show the order in which information is presented and to identify the content of each section.

These headings provide few clues about organization and document content:

We agree to . . .

You agree to . . .

Both of us agree to . . .

You also agree to . . .

Both of us also agree to . . .

These headings identify and locate useful information:

Borrower’s promise to pay

Interest

Monthly payments

Borrower’s right to make prepayments

How much may I prepay without penalty?

What is the penalty if I pay more?

Charges for late payment

II. LANGUAGE AND STYLE

A. IDENTIFICATION OF PARTIES

Use simple names.

Define the names and pronouns.

Use names and pronouns consistently.

In the following example, the consumer is called ‘‘I’’ in one paragraph, then referred to as ‘‘borrower’’ in another paragraph, with no explanation:

B. EXPLAIN AT THE BEGINNING THAT THE FORM IS A CONTRACT BETWEEN PARTIES.

A legalese start of a contract:

This agreement, made the first day of July, 1994, between Sara Smith, the party of first part, and John Jones, the party of the second part. Witnesseth;

Clearer explanation:

July 1, 1994

This is a lease. Sara Smith is the landlord. John Jones is the tenant.

C. USE WORDS THAT CONVEY MEANINGS CLEARLY AND DIRECTLY.

D. USE PRESENT TENSE AND ACTIVE VOICE WHENEVER POSSIBLE.

PASSIVE

If the outstanding balance is prepaid in full, the unearned finance charge will be refunded.

Buyer is obligated to make all payments hereunder.

Membership fees paid prior to the opening of the club will be placed in trust.

ACTIVE

If I pay the whole amount before the due date, you will refund the unearned portion of the finance charge.

I will make all payments as they become due.

If I pay membership fees before the club opens, the club will put the money in a trust account.

E. USE FAMILIAR VOCABULARY.

Rephrase legal jargon and redundant words into simple language.

This sentence obscures the meaning with jargon:

Purchaser certifies that no oral or written statements, promises, representations or guarantees, other than those herein contained, have been made in relation to this agreement.

This sentence clarifies:

This contract contains all the agreements between the BUYER and the SELLER. By signing this contract, both the BUYER and the SELLER agree to do what the contract says. Nothing which the BUYER has said orally to the SELLER or the SELLER has said orally to the BUYER changes the terms of this contract.

F. DEFINE TECHNICAL OR LEGAL TERMS THAT ARE NOT USED IN THE ORDINARY SENSE.

Example:

Any payment made before it is due is called a ‘‘prepayment.’’

G. CLARIFY CONDITIONS AND EXCEPTIONS.

Do not treat rights or responsibilities of the parties as conditions or exceptions.

For example, in this contract the Seller’s right to hire an attorney is treated as a condition:

If the Buyer defaults and the Seller commences collection through an attorney, the Buyer will be liable for attorney’s fees.

This language clarifies the Seller’s right to hire an attorney:

If the BUYER is behind in making payments, the SELLER may:

Hire an attorney to collect the money.

AND

Charge the BUYER for the attorney’s fees.

III. VISUAL SUGGESTIONS

A. Use margins adequate for ease of reading.

B. Use easy to read type size.

C. Use adequate space between lines and paragraphs.

D. Use boldface type for caption sections and subsections.

E. Use line length that makes the contract easy to read.

F. Use column width that makes the contract easy to read.

IV. GENERAL PRACTICE POINTERS

A. Use short words, short sentences and short paragraphs.

B. Use active voice.

C. Eliminate legalese such as: HEREBY, THEREOF, HERETOFORE, THEREAFTER.

D. Use familiar vocabulary.

E. Rephrase legal jargon into simple language.

F. Use names or pronouns consistently.

G. Define words by using commonly understood meanings.

The provisions of the Appendix C adopted March 31, 1995, effective April 1, 1995, 25 Pa.B. 1167.

History

Source: The provisions of this Chapter 307 adopted September 23, 1994, effective September 24, 1994, 24 Pa.

Chapter 309 Dog Purchaser Protection

37 Pa. Code § 309.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings: Kennel—A kennel as defined in section 102 of the Dog Law (3 P. S. § 459-101) or a dealer licensed by the United States Department of Agriculture under section 4 of the Animal Welfare Act (7 U.S.C.A. § 2134). Pet shop—A pet shop-kennel as defined in section 102 of the Dog Law. Seller—A kennel, pet shop operator or other individual who sells dogs to the public and who owns or operates a kennel or pet shop licensed by the Department of Agriculture or the United States Department of Agriculture. The term does not include nonprofit kennels as defined under section 102 of the Dog Law. Veterinarian—An individual licensed under the laws of the Commonwealth or another state to practice veterinary medicine and surgery.

History

Authority: The provisions of this Chapter 309 issued under section 9.
Source: The provisions of this Chapter 309 adopted February 11, 2000, effective February 12, 2000, 30 Pa.

37 Pa. Code § 309.2 Notice to be posted.

(a) A seller to whom this chapter applies shall keep posted at all times the following notice, in the following form:

This notice shall be conspicuously posted in the place of business of persons subject to this section as enforced by the Pennsylvania Office of Attorney General. This disclosure of rights is a summary of Pennsylvania law. A written notice setting forth the rights provided under Section 9.3 of the Unfair Trade Practices and Consumer Protection Law shall be provided to you at the time of the sale. A civil penalty of up to $1,000 shall be levied for each violation in addition to any other penalty under this law.

(1) A seller shall provide you with a health record for the dog at the time of sale. The health record must contain information as required by the law (73 P. S. § 201-9.3(a)(1)).

(2) The seller shall provide a health certificate issued by a veterinarian within 21 days prior to the date of sale or a guarantee of good health issued and signed by the seller. The health certificate and the guarantee of good health must contain information as required by the law. 73 P. S. § 201-9.3(a)(2)(i); 73 P. S. § 201-9.3(a)(2)(ii).

(3) To preserve your rights under the law, you must take your newly purchased dog to a licensed veterinarian for examination within 10 days of purchase. If a veterinarian determines, within 10 days of purchase, that your dog is clinically ill or has died from an injury sustained or illness likely to have been contracted on or before the date of sale and delivery, you have the following options:

(i) Return the dog for a complete refund;

(ii) Return the dog for a replacement dog of equal value; or

(iii) Retain the dog and receive reimbursement for reasonable veterinary fees, not exceeding the purchase price. These options do not apply where a seller, who has provided a health certificate issued by a veterinarian, discloses in writing at the time of sale the health problem for which the buyer later seeks to return the dog.

(4) If, within 30 days of purchase, a licensed veterinarian determines that your dog has a congenital or hereditary defect which adversely affects the animal’s health or that your dog died from a congenital or hereditary defect, you have the same options as outlined in section 3 (above).

(5) Within 2 business days of a veterinarian’s certification of your dog’s illness, defect or death, you must notify, in writing, the seller of the name, address and telephone number of the examining veterinarian. Such notice shall be effective upon depositing the same in the United States mail or upon other service which provides the seller the required information. Failure to notify the seller within 2 business days will result in forfeiture of rights.

(6) Refunds or reimbursements shall be made no later than 14 days after the seller receives the veterinarian certification. Veterinarian certification shall be presented to the seller not later than 5 days after you receive it.

(7) Registerable Dogs—If the seller does not provide within 120 days all documentation to effect registration, you may exercise one of the following options:

(i) Return the dog and receive a full refund of the purchase price; or

(ii) Retain the dog and receive a 50% refund of the purchase price.

(8) If registerable, the seller shall provide at the time of sale: the breeder’s name and address, the name and registration number of the dam and sire, and the name and address of the pedigree registry organization where the dam and sire are registered.

For further information concerning your rights under section 9.3 of the Unfair Trade Practices and Consumer Protection Law, contact: Pennsylvania Office of Attorney General, Consumer Protection Hotline (800) 441-2555, www.attorneygeneral.gov.

(b) The notice in subsection (a) must be:

(1) Visible where dogs for purchase are displayed or where payments are made for dog purchases at the seller’s place of business.

(2) A minimum size of 8.5 inches by 14 inches.

(3) In plain language and legible.

(4) A minimum 12 point typeset for the body of the notice and a minimum 48 point typeset for the title ‘‘Public Notice.’’

History

Authority: The provisions of this Chapter 309 issued under section 9.
Source: The provisions of this Chapter 309 adopted February 11, 2000, effective February 12, 2000, 30 Pa.

Part VI Commission on Crime and Delinquency

Chapter 401 Preliminary Provisions

37 Pa. Code § 401.1 Definitions.

The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise: Act 274—The act of November 22, 1978 (P.L. 1166, No. 274) (71 P.S. § § 1190.21—1190.32). Chairman—The Chairman of the Commission. Commission—The Pennsylvania Commission on Crime and Delinquency established by section 2 of Act 274 (71 P.S. § 1190.22). Commissioner—A member or the Chairman of the Commission. Crime Control Act—Title I, Omnibus Crime Control and Safe Streets Act of 1968, as amended (42 U.S.C.A. § 3701 et seq.). Executive Director—The Executive Director of the Commission. Juvenile Justice Act—Juvenile Justice and Delinquency Prevention Act of 1974, 5 U.S.C. § 5108; 18 U.S.C. § § 4351—4353 and 5031—5042; 42 U.S.C.A. § § 3701, 3723, 3733, 3758, 3772—3774, 3811—3814, 3821, 3882, 3883, 3888, 5601—5603, 5611—5619, 5651—5661, 5671, 5672, 5701, 5702, 5711—5716, 5731, 5732, 5741 and 5751. Juvenile Justice and Delinquency Prevention Committee—The advisory committee for juvenile justice and delinquency prevention established by section 6 of Act 274 (71 P.S. § 1190.26). Regional Advisory Committee—An advisory committee for regional criminal justice planning established by section 8 of Act 274 (71 P.S. § 1190.28). (Editor’s Note: The Regional Advisory Committee has been replaced by local criminal justice planning agencies pursuant to the act of December 17, 1981 (P.L. 429, No. 134)

History

Authority: The provisions of this Chapter 401 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 401 adopted December 7, 1979, effective December 8, 1979, 9 Pa.

37 Pa. Code § 401.11 Operating procedures.

(a) The Commission will hold regular meetings in the main conference room of the Commission at 3101 N. Front Street, Harrisburg, Pennsylvania, or at other locations as the Chairman may designate.

(b) Special Commission meetings may be called by the Chairman as he deems necessary.

(d) A designated employe of the Commission will serve as secretary and will record minutes of meetings. The minutes of meetings will be kept on file as a public record.

(e) Unless otherwise directed by the Commission, its meetings will be open to the public.

(f) Prior to each meeting, the Executive Director, in consultation with the Chairman, will prepare and distribute an agenda.

(g) After the Chairman has determined that a quorum is present at a Commission meeting, it will be presumed that the quorum continues until the meeting is concluded.

(h) The Executive Director will inform the Chairman in each instance where a Commissioner is absent from three consecutive regularly scheduled meetings or for more than 1/2 of the regularly scheduled meetings in a calendar year. The Chairman will then call the absences to the attention of the Commissioner concerned and may take other actions he deems appropriate in the circumstances.

(i) During the initial consideration of a subgrant application by the Commission, a representative of the applicant may address the Commission on issues raised in either staff or advisory committee reviews of the application or in response to questions from members of the Commission. Each applicant should have only one individual to represent the applicant although that person may consult with others in preparing a response to a particular question. When an application involves technical issues and the principal speaker believes he cannot competently address those issues, then an appropriate specialist may also speak on behalf of the applicant.

(j) During the consideration by the Commission of an appeal from the administrative rejection of an application, the applicant shall have the right to address the Commission. The presentation should be limited to those issues raised in the written request for appeal. The applicant should designate one individual to present the applicant’s case and to respond to questions from the Commission; however, technical issues may be addressed by an appropriate specialist.

(k) A fiscal or programmatic information presented at a Commission meeting by an applicant which is not also set forth in the subgrant application or which is contradicted by the subgrant application will be ruled out of order by the Chairman.

(l) An applicant who wishes to make a modification to an application as a result of Commission comment may submit a revised application for future consideration by the Commission. In its discretion, the Commission may approve a subgrant application subject to fiscal or programmatic conditions.

(m) The Chairman may, in his discretion, consolidate the consideration of two or more applications in order to expedite the business of the Commission. A Commissioner will have the right to have an individual application removed from the consolidated consideration so that it may be discussed and voted upon separately.

(n) The affirmative vote of a simple majority of the Commissioners present will be sufficient to approve a motion, and a tie vote will defeat the motion. A Commissioner may change his vote prior to the announcement of the result by the Chairman. The Chairman, in his discretion, may vote either to make or break a tie vote.

(o) A motion to amend a pending motion may be made by a Commissioner, and a vote on the amendment will be taken prior to a vote on the main motion.

(p) No action will be reconsidered by the Commission unless a motion for reconsideration is made by a Commissioner who is on the prevailing side and the motion for reconsideration is approved by at least a 2/3 majority of the Commissioners present.

(q) Parliamentary procedure matters not governed by explicit rules, procedures, or policies of the Commission or the statutes under which it acts will be governed by Robert’s Rules of Order Revised.

The provisions of this § 401.11 amended February 11, 1983, effective February 12, 1983, 13 Pa.B. 705. Immediately preceding text appears at serial pages (66596), (49364), and (49365).

History

Authority: The provisions of this Chapter 401 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 401 adopted December 7, 1979, effective December 8, 1979, 9 Pa.

37 Pa. Code § 401.12 Conflict of interest.

(a) No Commissioner will participate personally, through decision, disapproval, recommendation, the rendering of advice, investigation or otherwise, in any proceeding, application, request for a ruling, contract, grant, claim, controversy, or other particular matter in which LEAA funds are used where, to his knowledge, he or his immediate family, partners, organization—other than a public agency—in which he is serving as officer, director, trustee, partner or employe, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest.

(b) The appearance of conflict of interest is as undesirable as an actual conflict of interest and an appearance of impropriety is to be avoided by Commissioners. It is the policy of the Commission that those Commissioners who have a conflict of interest will disqualify themselves from voting on any matter for which the conflict exists. A conflict of interest exists when the vote of a Commissioner is influenced or may appear to the public to be influenced by some consideration apart from the merits of the issue being voted upon. The disqualification of a Commissioner will be a matter of personal decision to each Commissioner.

(c) In the event a Commissioner is in doubt concerning the existence or appearance of conflict of interest as to himself in any matter, he may request a determination of that issue by the Chairman.

The provisions of this § 401.12 amended February 1, 1980, effective February 2, 1980, 10 Pa.B. 463. Immediately preceding text appears at serial page (46854).

History

Authority: The provisions of this Chapter 401 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 401 adopted December 7, 1979, effective December 8, 1979, 9 Pa.

37 Pa. Code § 401.13 Public access to records.

(a) The public records of the Commission will be open for examination and inspection by a member of the public at the Commission’s Harrisburg offices during regular Commonwealth business hours.

(b) Photocopies of its public records will be produced on request by the Commission, subject to the following fees:

(1) Each page—25¢

(2) Each page, certified—$1.00

History

Authority: The provisions of this Chapter 401 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 401 adopted December 7, 1979, effective December 8, 1979, 9 Pa.

Chapter 405 Grants Management

37 Pa. Code § 405.3 Juvenile Justice Act funding transition.

No application for Juvenile Justice Act funds to support a new program of juvenile predispositional or postadjudicatory services for status offenders will be accepted by the Commission after December 1, 1980.

The provisions of this § 405.3 adopted October 31, 1980, effective November 1, 1980, 10 Pa.B. 4254; amended June 4, 1982, effective June 5, 1982, 12 Pa.B. 1764. Immediately preceding text appears at serial page (66597).

History

Authority: The provisions of this Chapter 405 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 405 adopted August 1, 1980, effective August 2, 1980, 10 Pa.

37 Pa. Code § 405.4 Modification of match for juvenile justice projects.

The matching contribution required in an application for Crime Control Act funds to support a juvenile justice project shall be the same as that required under existing Commission policies for an application for Juvenile Justice Act funds.

The provisions of this § 405.4 adopted March 27, 1981, effective March 28, 1981, 11 Pa.B. 1096.

History

Authority: The provisions of this Chapter 405 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 405 adopted August 1, 1980, effective August 2, 1980, 10 Pa.

Chapter 407 Administrative Proceedings

37 Pa. Code § 407.1 Unappealable rejections of applications.

(a) The rejection of an application by the Executive Director or his designee as being improperly executed, incomplete—lacking required information, attachments, endorsements, clearances, agreements or other documentation—or not within a program category authorized by Federal statutes shall be final. A rejection may not preclude the submission of a corrected application by an applicant.

(b) The rejection of an application by the Executive Director due to a lack of available funds in the relevant State comprehensive plan program category shall be final.

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

37 Pa. Code § 407.2 Appealable rejections of applications.

The rejection of an application by the Executive Director for any of the following reasons may be appealed to the Commission:

(1) The project is inadequately described in the program narrative portion of the application so that it is not feasible to complete a review and fairly consider the application for funding.

(2) The application contains fiscal, programmatic, legal or other deficiencies in number or a substantial nature that it appears unlikely they can be rectified prior to the timely consideration of the application for final approval.

(3) The project is not fundable under the Commission’s current funding policies and priorities.

This section cited in 37 Pa. Code § 407.3 (relating to rejected applications review procedure).

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

37 Pa. Code § 407.3 Rejected applications review procedure.

(a) The review shall be requested by sending to the Executive Director a written request for Commission review, specifying the factual and legal grounds believed to establish the incorrectness of the rejection. The request for review shall be mailed or delivered to the Office of the Executive Director within 20 days after the date of the rejection notice. This subsection supplements 1 Pa. Code § 31.5 (relating to communications and filings generally).

(b) Upon receipt of a timely request for Commission review, the Executive Director will cause the matter to be placed on the agenda of a subsequent meeting of the Commission for disposition and shall give written notice to the applicant of that action. The notice shall specify the time and place of the Commission meeting at which the appeal shall be considered and shall inform the applicant of its right to appear and be heard in support of its appeal.

(c) If the Commission determines that the rejection was incorrect, the application shall be deemed resubmitted for further processing under current procedures and subject to a new 90-day application consideration period commencing with the date of the Commission determination.

(d) The rejection of an application by the Executive Director under the provisions of § 407.2(1) or (2) (relating to appealable rejections of applications) may not preclude the resubmission of a corrected application by the applicant.

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

37 Pa. Code § 407.11 Reconsideration permitted.

The disapproval of an application, in whole or in part, by the Commission may be subject to reconsideration by the Commission.

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

37 Pa. Code § 407.12 Reconsideration procedure.

(a) Reconsideration shall be requested by sending to the Executive Director a written request for Commission reconsideration, specifying the factual and legal grounds believed to establish the incorrectness of the disapproval. A request for reconsideration which fails to provide significant additional factual information or to address any legal issues or which merely restates the need for a project or the qualifications of the applicant or contractor shall be considered insufficient and may be denied in writing by the Executive Director. The request for Commission reconsideration shall be mailed or delivered to the Office of the Executive Director within 20 days after the date of the disapproval letter. This subsection supplements 1 Pa. Code § 31.5 (relating to communications and filings generally).

(b) Upon receipt of a timely and sufficient request for Commission reconsideration, the Executive Director will cause the matter to be placed on the agenda of a subsequent meeting of the Commission for disposition and will give written notice to the applicant of that action. The notice will specify the time and place of the Commission meeting at which the appeal shall be considered and will inform the applicant of its right to appear and be heard in support of its request for reconsideration.

(c) In the case of a request for reconsideration of an application concerning a juvenile justice or delinquency prevention program, where the Juvenile Advisory Committee has not previously reviewed the application, the Executive Director will, before having the matter placed on the Commission’s agenda, refer the same to the Juvenile Advisory Committee for its review and recommendation. The scope of the Juvenile Advisory Committee’s review shall be limited to the issues raised in the applicant’s request for reconsideration. The Juvenile Advisory Committee’s review will be completed within 30 days after submission of the matter to it.

(d) In the case of a request for reconsideration of an application concerning a courts program which had been denied funding or which received a conditional approval due, in whole or in part, to the recommendation of the Judicial Planning Committee or its Secretariat, the Executive Director will, before having the matter placed on the Commission’s agenda, refer the same to the Judicial Planning Committee for its review and recommendation. The scope of the Judicial Planning Committee’s review will be limited to the issues raised in the applicant’s request for reconsideration. The Judicial Planning Committee will be allowed 30 days to respond after submission of the matter to it.

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

37 Pa. Code § 407.21 Effect of application rejection.

(a) For purposes of applying the provisions of section 402(b)(3)(A) of the Crime Control Act and section 223(a) of the Juvenile Justice Act, the issuance of a notice of rejection of an application shall be deemed a disapproval of the application, effective on the date of mailing of the notice.

(b) Subsection (a) supersedes 1 Pa. Code § 31.14(b) (relating to effective dates of agency orders).

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

37 Pa. Code § 407.31 Applicability of general rules.

The provisions of 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) shall be applicable to proceedings for the termination of financial assistance.

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

37 Pa. Code § 407.32 Initiation of subgrant termination proceedings.

(a) Proceedings to terminate a subgrant for cause prior to the expiration of the project period will be initiated by the Executive Director by serving an order to show cause on the subgrantee. This subsection supplements 1 Pa. Code § 35.14 (relating to orders to show cause).

(b) Where a subgrantee-municipality has contracted with a private, nonprofit entity to perform all or substantially all of the project’s activities, a copy of the order to show cause and of other pleadings, motions, orders and notices to be served on the subgrantee will be sent to the entity.

(c) The initiation of termination proceedings shall automatically suspend the payment of subgrant funds to the subgrantee until the time as the Commission takes final action on the termination.

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

37 Pa. Code § 407.33 Hearings.

(a) Following the timely receipt of a subgrantee’s answer, a hearing shall be scheduled before a hearing examiner designated by the Executive Director. This subsection supplements 1 Pa. Code § 35.185 (relating to designation of presiding officers).

(b) It will be the burden of the Director of the Bureau of Administration and Finance or the Chief Auditor, as the case may be, to establish by substantial evidence that termination of financial assistance to the subgrantee is warranted.

(c) The hearing examiner will not be bound by technical rules of evidence and all relevant and material evidence of reasonably probative value shall be admissible.

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

37 Pa. Code § 407.34 Posthearing actions.

(a) After the conclusion of the hearing and after receipt of briefs and proposed findings of fact and conclusions of law, if any, the hearing examiner will promptly submit his report and recommendations, together with a proposed final order, to the Executive Director. This subsection supersedes 1 Pa. Code § 35.202 (relating to proceedings in which proposed reports are prepared).

(b) The Executive Director will submit the hearing examiner’s report, recommendations, and proposed final order to the Commission members for consideration at their next public meeting.

History

Authority: The provisions of this Chapter 407 issued under act of November 22, 1978 (P.
Source: The provisions of this Chapter 407 adopted November 13, 1981, effective November 14, 1981, 11 Pa.

Chapter 411 Crime Victims Compensation

37 Pa. Code § 411.1 Scope.

Except as otherwise provided, this chapter applies to claims for compensation relating to crime injuries occurring on or after December 12, 2009.

The provisions of this § 411.1 amended under section 312(3) of the Crime Victims Act (18 P. S. § 11.312(3)).

The provisions of this § 411.1 amended December 11, 2009, effective December 12, 2009, 39 Pa.B. 6980. Immediately preceding text appears at serial page (326790).

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.2 Definitions.

(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The Crime Victims Act (18 P. S. § § 11.101—11.5102). Average weekly wage—The amount designated for persons covered by Articles I and II of the Unemployment Compensation Law (43 P. S. § § 751—771) in this Commonwealth as determined periodically by the Department of Labor and Industry. Dependent child—The child of a direct victim or intervenor on whose behalf regular payments are received for the purpose of whole or partial support and who is one of the following:

(i) Under 18 years of age, including an unborn child for the purposes of this chapter only as defined by 18 Pa.C.S. § 3203 (relating to definitions).

(ii) Eighteen years of age or older but under 23 years of age and currently attending secondary school or is a full-time student in a postsecondary educational institution.

(iii) Eighteen years of age or older but unable to provide for his own support due to a physical or mental disability. Final decision—An OVS determination of a claim that may be appealed by the claimant as provided in 2 Pa.C.S. Chapter 7, Subchapter A (relating to judicial review of Commonwealth agency action). Guardian—A person appointed by a court for the care and management of a person or estate of a minor or incapacitated person, or designated by a parent of a minor to perform that role. Health care provider—

(i) An individual authorized by a licensing board or agency of the Commonwealth or equivalent governmental entity to practice the science and skill of diagnosis and treatment of ailments of the human body.

(ii) The term includes medical doctor, osteopathic physician, chiropractor, dentist, registered nurse, optometrist, pharmacist, physical therapist, podiatrist, psychologist, licensed professional counselor and licensed social worker. Human services provider—Social workers, children and youth caseworkers, Area Agency on Aging, victim service providers (system and community based advocates) and other social service professionals, including mental health, substance abuse and medical social work. Immediate need—One hundred and twenty days from the date of the crime or 120 days from the date the victim is threatened by any change of circumstance or indicator of danger and a move or relocation is necessary to become or remain safe. Medical care—Diagnostic, treatment or rehabilitative services performed in a health care facility regulated by the Commonwealth or equivalent governmental entity or performed by a health care provider or person under the direct supervision of a health care provider. OVS—The Office of Victims’ Services in the Pennsylvania Commission on Crime and Delinquency. PFA—Protection From Abuse Order issued under 23 Pa.C.S. Chapter 61 (relating to protection from abuse). Pigeon drop—The act of approaching a person and asking that person if he would like to share an amount of found money. In order to share the money, the person shows a good faith effort by willingly providing a specified amount of money with the expectation of receiving part of the ‘‘found’’ money. Primary source of income—Fifty percent or more of the direct victim’s gross annual income. Principal support—Fifty percent or more of a claimant’s living expenses. Private residence—Includes a house, apartment, condominium, mobile home or other personal living space.

(b) The definitions in section 103 of the act (18 P. S. § 11.103) are incorporated by reference.

The provisions of this § 411.2 amended under section 312(3) of the Crime Victims Act (18 P. S. § 11.312(3)).

The provisions of this § 411.2 amended December 11, 2009, effective December 12, 2009, 39 Pa.B. 6980. Immediately preceding text appears at serial pages (326790) and (325291).

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.3 Persons eligible for compensation.

(a) General rule. Except as otherwise provided in the act, the following persons are eligible for compensation:

(1) A direct victim.

(2) An intervenor.

(3) A surviving spouse, parent or child of a deceased direct victim or intervenor.

(4) Other persons dependent for principal support upon a deceased direct victim or intervenor.

(5) A person who assumes the obligation or who pays for the crime scene cleanup, funeral or burial expenses incurred as a direct result of the crime.

(6) Hospitals or other licensed health care providers.

(7) Persons eligible for counseling.

(b) Exception. A person who is criminally responsible for the crime upon which a claim is based or an accomplice of the person is not eligible to receive compensation with respect to the claim. A member of the family of the individual who committed the crime is not eligible if the offender is living in the same household as the direct victim and will substantially benefit from the award. The Attorney General may at any time sue the offender or the direct victim, or both, to recover the award if the offender benefits from the award.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.11 Filing procedures.

(a) A claim may be filed by a person eligible under the act and § 411.3(a) (relating to persons eligible for compensation).

(b) A claim shall be filed within the prescribed time frame under section 702(b) of the act (18 P. S. § 11.702(b)).

(d) A claim may be filed by mail, in person or electronically. If filed by mail, a claim is deemed filed on the date it is postmarked. If filed by electronic means or in person, it is deemed filed on the date received by OVS.

(e) When OVS receives a claim, a claim number is assigned and the data is entered into OVS’s records.

(f) In determining whether the direct victim or intervenor complied with the act’s requirement of reporting the crime to proper authorities within the prescribed time period after the occurrence of the crime, the following apply:

(1) Proper authorities may include a law enforcement officer; district attorney or other applicable prosecutorial authority; district justice; military police; campus police; United States Postal Inspection Service; appropriate hospital security; probation and parole officer; child protective services; adult protective services or, in the case of a PFA order, the prothonotary or equivalent authority. If the crime occurs in a foreign country, a proper authority includes the United States consulate.

(2) OVS may consider a delay past the prescribed time period to be justified when one of the following circumstances exist:

(i) The direct victim, intervenor or claimant is mentally or physically incapacitated.

(ii) The victim is a minor.

(iii) There is a fear of retaliation.

(iv) The occurrence of the crime is not readily apparent.

(v) Other circumstances when good cause is shown by the claimant.

(g) In making the determinations discussed in subsections (b) and (f) for claims where the occurrence of the crime is not readily apparent, OVS may deem the prescribed time periods to begin to run on the date and time that the person with the obligation to report the crime or file the claim has knowledge that a crime occurred.

(h) Claimants do not have to wait until a PFA becomes final to file a claim. In the process of verifying a claim, OVS will confirm the disposition of a final PFA order.

(i) If a temporary PFA order is issued and the claimant chooses not to pursue a final order, OVS will consider the PFA order withdrawn and deny the claim unless OVS determines the withdrawal to be justified. OVS may consider the withdrawal of a PFA justified when one of the following circumstances exist:

(1) The direct victim, intervenor or the claimant is mentally or physically incapacitated.

(2) There is a fear of retaliation.

(3) Other circumstances when good cause is shown by the claimant.

(j) Subsections (h) and (i) only cover the filing of an initial PFA. If there is a violation of a PFA involving an otherwise eligible crime, the crime shall be reported within the prescribed time frame set forth under section 707(a)(3) of the act (18 P. S. § 11.707(a)(3)) in a timely manner to the proper authorities, which may include filing of a private criminal complaint, to be considered for compensation payments.

(k) When requested by OVS, the claimant shall submit copies of documents that are needed to process the particular type of claim, which include the following:

(1) Medical treatment expenses.

(i) Itemized bills in the name of the claimant showing the name, address and telephone number of the provider, dates of service, type of service performed and the amount charged for each service.

(ii) Insurance benefit statements indicating payments or rejection.

(iii) Canceled checks, verification from a medical provider or receipts for any medical bills related to the injury that were paid by the direct victim, intervenor or claimant.

(iv) Written justification if the direct victim or intervenor is covered by an insurance plan or Medical Assistance, but did not utilize the prescribed coverage, such as that the direct victim or intervenor could not obtain the required care, could not maintain ongoing care from a previous provider, travel considerations or other circumstances when good cause is shown by the claimant.

(2) Funeral expenses.

(i) Certified death certificate.

(ii) Itemized funeral bills in the name of the claimant for which the claimant is responsible.

(iii) Canceled checks, receipts or verification from a provider for funeral bills relating to the death that were paid by claimant.

(iv) Statements for benefits or payments received by the claimant as a result of the death of the direct victim or intervenor, such as life insurance or Social Security death benefits.

(3) Loss of earnings.

(i) Stolen money.

(A) Statements for the month of the crime of payments such as Social Security, retirement, pension, disability, court-ordered child support or court-ordered spousal support.

(B) Federal tax returns as filed, including all schedules if applicable, for the years requested or a signed statement that the claimant is not required to file a tax return.

(ii) Loss of wages.

(A) Pay stubs or other earnings records for periods immediately prior to the loss. If not obtainable, withholding statements and Federal tax returns as filed, including schedules, if applicable, for the years requested, or a written statement that Federal tax returns were not filed.

(B) Full name and complete address of claimant’s employer.

(C) Full name and complete address of a physician or psychologist who will certify the existence, duration and cause of the disability.

(4) Loss of support.

(i) Certified death certificate.

(ii) Full name and complete address of employer of the deceased.

(iii) Federal tax returns as filed, including schedules, if applicable, for the years requested, or a written statement that Federal tax returns were not filed. If unavailable, pay stubs, withholding statements or other earnings records for periods immediately prior to the injury.

(iv) Statements for benefits received as a result of the death of the direct victim or intervenor, such as life insurance, Social Security, veterans’ benefits or survivor benefits.

(v) Documents that demonstrate financial dependency, including birth certificates, support orders or Federal tax returns as filed.

(vi) Guardianship papers, when applicable.

(5) Counseling expenses.

(i) Itemized bills in the name of the claimant showing the name, address and telephone number of the provider, dates of service and the amount charged.

(ii) Insurance benefit statements indicating payments or rejection.

(iii) Canceled checks, verification from a provider or receipts for any counseling bills related to the injury that were paid by the direct victim, intervenor or claimant.

(v) The following information establishing the claimant’s relationship to the direct victim, the claimant witnessing the crime or the claimant’s discovery of the homicide victim:

(A) Witness. If the witness is not listed in the police report obtained by OVS, a written statement provided by someone who could substantiate that the witness was at the scene, preferably written by someone named in the police report.

(B) Relative of direct victim. A copy of a birth certificate, if applicable, or other identifiable information acknowledging the relationship to the direct victim.

(C) Individual engaged to the direct victim. An engagement announcement or a copy of the application for a marriage license. If either is unavailable, a written statement from the engaged individual plus a written statement from a family member acknowledging the intent of the union.

(D) Shared household. A copy of a document, such as a bill or lease or mortgage agreement that indicates the same address for the direct victim and the victim or claimant filing for counseling expenses.

(E) Individual who discovers homicide body. A police report.

(F) Individual responsible for the direct victim’s welfare. Foster parent documentation, guardianship papers or other documentation showing that the claimant filing for counseling is an individual responsible for the direct victim’s welfare.

(6) Crime-scene cleanup expenses.

(i) Itemized bills and receipts in the name of the claimant related to the crime scene cleanup for which the claimant is responsible.

(ii) Cancelled checks, receipts or verification from a provider for bills related to the crime scene cleanup.

(iii) Documentation of homeowner’s or renter’s insurance coverage.

(7) Relocation expenses.

(i) Itemized bills and receipts related to the relocation for which the claimant is responsible.

(ii) Cancelled checks, receipts or verification from a provider for bills related to the relocation.

(iii) A verification letter from a human service agency, law enforcement or medical provider explaining the immediate need for relocation.

(8) Miscellaneous expenses.

(i) Itemized bills and receipts in the name of the claimant for which the claimant is responsible related to the miscellaneous expense.

(ii) Cancelled checks, receipts or verification from a provider for bills related to the injury.

(l) The claimant shall provide OVS with information pertaining to payments received or to be received by another source as a result of the injury, including restitution payments, workers compensation, insurance benefits or awards or settlements in a civil action.

(m) If a minor or incapacitated person has more than one guardian, OVS will determine the appropriate party for filing a claim on behalf of the minor or incapacitated person.

(n) If the direct victim or intervenor dies while a nonhomicide claim relating to that direct victim or intervenor is being processed, OVS may substitute the executor or administrator of the direct victim or intervenor and complete the processing of the claim. A claim may not be filed by the estate of a direct victim or intervenor.

(o) The claimant may request a supplemental award by submitting additional out-of-pocket expenses or losses at any time after the initial claim, provided that the claimant has not received the maximum award payable by law. OVS will verify out-of-pocket expenses and losses submitted for a supplemental award to determine that they directly relate to the original crime.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.12 Review.

(a) OVS will review the claim and supporting documents and investigate the validity of the claim. OVS will conduct a comprehensive investigation of the claim including, as necessary, an examination of police, court and official records and reports concerning the crime and an examination of medical and hospital reports relating to the injury upon which the claim is based.

(b) If additional information is needed to determine the eligibility or validity of a claim, or to substantiate the degree of loss, OVS may ask the claimant for that information or request it directly from outside entities to the extent permitted by law.

(c) OVS may issue subpoenas and subpoenas duces tecum, either on its own instance or upon written application of a party. Subpoenas and subpoenas duces tecum must comply with 231 Pa. Code (relating to rules of civil procedure). Their issuance must depend upon a showing of necessity. OVS, on its own motion or on the application of the claimant, will, whenever necessary, and upon the terms and conditions as OVS may determine, take or cause to be taken affidavits and depositions of witnesses residing within or outside this Commonwealth.

(d) OVS may not request or review counseling notes of mental health service providers. OVS will request an assessment from the mental health service provider as to the extent the service provided is needed as a direct result of the crime.

(e) OVS, at its expense, may direct an examination of the direct victim or intervenor by a health care provider designated by OVS. The direct victim or intervenor’s failure to appear for the examination may result in OVS’s denial of the applicable portion of the claimant’s request for reimbursement.

(f) OVS will investigate and determine claims regardless of whether the alleged criminal has been apprehended, prosecuted or adjudicated for the criminal incident which is the basis for the claim.

This section cited in 37 Pa. Code § 411.13 (relating to closing of claims).

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.13 Closing of claims.

(a) OVS will close a claim when a determination has been made and written notification has been given to the claimant.

(b) When OVS has requested additional information under § 411.12(b) (relating to review) and the information is not provided within 60 days of the request, OVS will close the claim file until the requested information is received.

(c) If sufficient information is not provided to OVS to determine eligibility within 2 years from the date of the filing of the claim, the claim will be closed with no further right of appeal. OVS will attempt to notify the claimant in writing 6 months prior to the closing of the claim.

(d) Eligible claims in which no verifiable out-of-pocket expense or loss has been received by OVS within 5 years from the date of the filing of the claim will be closed with no further right of appeal. OVS will attempt to notify the claimant in writing 6 months prior to the closing of the claim.

(e) Subsection (d) does not apply when the direct victim was a minor at the time the crime was committed.

(f) OVS may reopen a claim at any time for further investigation.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.14 Determinations.

(a) If OVS is able to make a determination that the claim does not meet the basic eligibility requirements or the action of the direct victim, intervenor or claimant affects the award, the claim will be denied in writing as a statutory denial or denial for cause.

(b) OVS will determine whether to grant an award, increase or decrease an award or deny the claim based on the supporting documents, the report of the investigation and staff recommendations.

(c) OVS will promptly notify the claimant of its determination in writing. OVS may also send a copy of the determination to all appropriate individuals, including the State Treasurer, court personnel, the prosecutor of the county where the crime occurred, victim advocate or the claimant’s attorney of record.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.15 Actions affecting awards.

(a) Except as provided in the act, OVS may deny a claim or reduce the amount awarded if it finds that the conduct of the direct victim or intervenor contributed to the injury. The conduct of the direct victim or intervenor will be deemed to have contributed to the injury if the direct victim or intervenor did one of the following:

(1) Initiated, provoked or prolonged a verbal or physical confrontation with the offender.

(2) Participated in an illegal act that was causally related to the injuries sustained.

(3) Acted in a manner that placed the direct victim or intervenor into a situation likely to result in injury.

(4) Entered, knowingly and willingly, into a vehicle driven by someone under the influence.

(5) Sought retaliation against the offender.

(6) Entered into a physical altercation by mutual consent.

(7) Was charged by law enforcement with criminal conduct as a result of the crime.

(b) In determining whether the conduct of a direct victim or intervenor warrants a denial or reduction of the award, OVS may consider evidence indicating that the direct victim or intervenor was acting with legal justification as defined in 18 Pa.C.S. (relating to the Crimes Code) or other evidence of mitigation that the claimant asks OVS to consider.

(c) OVS may assess a contribution amount or deny in auto-related crimes when the victim is the driver of the vehicle and the victim does not have a valid license or the victim’s driver’s license has been revoked or was under suspension at the time of the crime.

(d) OVS will assess a $5,000 contribution for an award for medical expenses, or the current amount of medical benefits coverage required under Pennsylvania law, if a direct victim or intervenor was injured while driving his own car without insurance.

(e) Stolen cash claims that are received and are eligible for an award will have a minimum 10% contribution assessed if they fall under the definition of ‘‘pigeon drop.’’

(f) OVS may deny a claim or reduce the amount awarded or require repayment of a prior award if it finds that a direct victim, intervenor or claimant has not cooperated fully with law enforcement agencies or OVS. Failure to cooperate includes one or more of the following:

(1) Failure to cooperate fully with a law enforcement agency in the investigation of the crime on which the claim is based.

(2) Failure to cooperate fully in the prosecution of the alleged offender of the crime on which the claim is based.

(3) Failure to provide truthful, complete and accurate information for OVS to determine the eligibility or validity of a claim or amount of an award.

(4) In crimes involving stolen or defrauded money, failure to implement personal crime prevention techniques recommended by the local police department, victim service programs or crime prevention programs at OVS’s request when crimes are similar in nature and repeated.

(g) OVS may consider a failure to cooperate with law enforcement and OVS to be justified when one of the following circumstances exist:

(1) The direct victim, intervenor or the claimant is mentally or physically incapacitated.

(2) There is a fear of retaliation.

(3) The victim is a minor.

(4) Other circumstances when good cause is shown by the claimant.

(h) If the crime involved is related to domestic violence, the conduct of the direct victim will not be considered unless the direct victim was the primary aggressor. In determining which party was the primary aggressor, OVS will consider the following:

(1) Prior acts of domestic violence.

(2) The relative severity of the injuries inflicted upon the persons involved in those prior acts of domestic violence.

(3) The likelihood of future injury.

(4) Whether, during the prior acts, one of the parties acted in self-defense.

(5) The totality of the circumstances surrounding the crime.

This section cited in 37 Pa. Code § 411.18 (relating to actions affecting awards).

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.16 Reductions, offsets and limitations.

(a) Except as otherwise provided in the act, an award made under the act and this chapter shall be reduced by the amount of any payments received or to be received as follows by the claimant as a result of the injury:

(1) From or on behalf of the individual who committed the crime.

(2) Under insurance or health and welfare programs, including those mandated by law.

(3) Under a contract of insurance wherein the claimant is the beneficiary.

(4) From public funds.

(5) As an emergency award under section 706 of the act (18 P. S. § 11.706).

(6) Under pension programs, including those providing for disability or survivor’s benefits.

(7) Under a settlement or award made by or on behalf of a party alleged to be responsible in whole or in part for the injury, without regard to the party’s criminal culpability.

(b) Any decision by OVS to reduce, offset or limit an award to a claimant will only be made after first considering the ability of OVS to exercise its right to subrogation and restitution.

(c) Charitable donations specifically designated for a funeral expense or which appear on a funeral bill as a direct payment and charitable donations specifically designated for an eligible expense or which appear on any bill as a direct payment will be used as an offset.

(d) In claims involving death or burial, OVS will reimburse travel expenses for the transport of a body or making funeral arrangements for no more than two persons, including a person designated by the family or person who pays for the funeral.

(e) In claims involving death or burial, reimbursement will not be made for alcoholic beverages, postage, thank you gifts and newspaper articles or paid advertisements relating to the death or burial, other than the obituary and notice of the time and place of the funeral or burial services.

(f) When an injury is the result of a motor vehicle incident and the injury is covered by liability or first party benefits, including under/insured and uninsured motorist coverages, a provider may not request payment in excess of reimbursement allowances applicable in this Commonwealth under the Medicare Program (see 75 Pa.C.S. § 1797(a) (relating to customary charges for treatment)) or their usual and customary charge, whichever is less.

(g) Medical, rehabilitation or other devices, including wheel chairs, chair lifts, ramps, van conversion equipment, therapy spas or special needs home remodeling that exceeds $5,000 will need to have two bids unless good cause is shown. OVS will pay the lowest amount unless good cause is shown justifying the higher amount.

(h) If the direct victim or intervenor has no financial means to order the needed services or equipment that exceed $5,000 listed in subsection (g), OVS will assist the claimant by evaluating the claim prior to purchase and make information available to the potential providers.

(i) In claims involving stolen money or crime scene clean-up, if a claimant chooses not to access any of his homeowner’s or renter’s insurance, OVS will apply as an offset any amount that the claimant would have been paid by the insurance company.

This section cited in 37 Pa. Code § 411.18 (relating to awards).

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.17 Emergency awards.

(a) If it appears to OVS that the claimant has an urgent financial need, OVS may make an emergency award to the claimant as a determination on the claim.

(b) An emergency award is solely for a claimant who incurs an undue hardship by paying medical expenses or funeral expenses out of his own pocket, or who incurred loss of earnings or support as a result of the crime incident.

(d) OVS will expeditiously determine that the eligibility requirements have been met, review submitted documentation and process the request.

(e) OVS may reconsider an emergency award as a determination and may increase previous awards for emergency compensation up to $5,000 per claim.

The provisions of this § 411.17 amended under section 312(3) of the Crime Victims Act (18 P. S. § 11.312(3)).

The provisions of this § 411.17 amended December 11, 2009, effective December 12, 2009, 39 Pa.B. 6980. Immediately preceding text appears at serial page (325300).

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.18 Awards.

(a) If the losses payable by OVS for out-of-pocket loss and loss of support or loss of earnings exceed the overall monetary limitation in the act, or the overall limitation as reduced by a contribution assessed by OVS under § 411.15 (relating to actions affecting awards), OVS will allocate the award as follows:

(1) Out-of-pocket losses will be paid in full, followed by as much of the loss of support or loss of earnings as resources allow.

(2) If the total out-of-pocket losses exceed the overall limitation in the act, OVS will attempt to pay unpaid providers in full, followed by reimbursements to claimants for expenses already paid. OVS will attempt to satisfy the expenses of as many unpaid providers as feasible, to minimize the number of creditors seeking payment from the claimant.

(3) If more than one claimant files a claim for allowable expenses relating to the death of the victim or the intervenor, the award will be divided proportionately among the claimants when filed within the same time frame. In all other cases, awards are considered in the order that they are received.

(b) A claimant may not accept a portion of OVS’s determination and reject another portion of the same determination. If a claimant desires to contest a portion of OVS’s determination, the claimant shall contest the entire determination.

(c) OVS will reduce an award of compensation by the amount of any other payments received or to be received by the claimant as a result of the injury, as set forth in the act and under § 411.16 (relating to reductions, offsets and limitations).

(d) After OVS has made an award relating to an injury, a person who receives any amounts paid by another source as a result of the injury shall notify OVS about the payments.

(e) If a court has ordered an offender to pay restitution for the injury, but the order is not specific as to which components of the claimant’s loss are to be reimbursed by the restitution payments, OVS will deem the restitution payments as being applied first to property losses incident to the crime that cannot be compensated under the act. Only after the property losses are fully paid will OVS use the restitution payments to offset for losses for which OVS has awarded or may award compensation.

(f) OVS may make a supplemental award to a claimant who previously received an award from OVS and who subsequently incurs an additional loss that is attributable to the original injury when the maximum award under the law has not been exceeded.

(g) If a claimant is liable for a bill incurred for out-of-pocket losses as a result of the crime injury but has not paid the balance, OVS will order payment to be made directly to the provider of the service.

(h) OVS may reimburse all medical copays and deductibles.

(i) If OVS makes an error in the amount of an award, OVS may seek repayment of the award.

(j) OVS retains the discretion to determine the priority of awards.

(k) In determining whether an injury is a direct result of a crime, OVS may consider a certification by a service provider.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.31 Reconsideration.

(a) A claimant may contest OVS’s determination by submitting a written request for reconsideration no later than 30 days from the date of the determination. If a request for reconsideration is not filed within the time required, the determination becomes a final decision of OVS.

(b) OVS may consider a delay past the prescribed time period to be justified when one of the following circumstances exist:

(1) The direct victim, intervenor or the claimant is mentally or physically incapacitated.

(2) Other circumstances when good cause is shown by the claimant.

(c) If requesting reconsideration, the claimant shall provide any additional information or clarification that would assist OVS in conducting its reconsideration.

(d) Based on further review and additional information or clarification that OVS receives, OVS will issue a reconsidered determination that either reaffirms or modifies the determination.

(e) OVS may issue the reconsidered determination as a final decision of the agency if it determines that the facts developed in the claims determination process establish that a particular determination is warranted as a matter of law.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.32 Hearing.

(a) If OVS is unable to determine if a claim is justified based upon supporting documents, it may direct a hearing before a hearing examiner designated by the OVS.

(b) Except for request for reconsideration falling under § 411.31(e) (relating to reconsideration), a claimant may appeal the reconsidered determination by OVS by requesting a hearing.

(c) A claimant may submit a written request for a hearing no later than 30 days after OVS issues its reconsidered determination. If a claimant fails to file the request for hearing within this time, the reconsideration determination becomes a final decision of OVS.

(d) OVS may consider a delay past the prescribed time period to be justified when one of the following circumstances exist:

(1) The direct victim, intervenor or the claimant is mentally or physically incapacitated.

(2) Other circumstances when good cause is shown by the claimant.

(e) If requesting a hearing, the claimant shall provide a specific reason why the claimant asserts that OVS’s determination is not correct.

(f) A hearing officer who has no previous involvement in any aspect of the claim will be assigned by OVS.

(g) Title 1 of the Pennsylvania Code, Part II (relating to the General Rules of Administrative Practice and Procedures) governs a hearing to the extent that its provisions are not inconsistent with this chapter.

(h) At least 30 days before the date of hearing, the claimant, the claimant’s attorney and the victim’s advocate will be provided written notice of the time, place and purpose of the hearing.

(i) The claimant shall provide written confirmation to OVS of the claimant’s intent to attend the hearing, including documentary exhibits to be presented and a list of witnesses which must be received by OVS at least 10 days prior to the hearing date.

(j) Failure to comply with the confirmation requirements in subsection (i) may result in cancellation of the hearing.

(k) A cancelled hearing may be rescheduled if the claimant shows good cause for failure to comply with subsection (i). A hearing will not be rescheduled more than once, unless OVS deems it necessary.

(l) The attorney representing OVS may submit a prehearing memorandum to the hearing officer, with a copy to the claimant, outlining the legal and factual positions of OVS with respect to the claim and listing witnesses and documentary exhibits to be presented at the hearing. The attorney representing OVS may subpoena for attendance of witnesses or for production of documentary evidence.

(m) The claimant may subpoena for attendance of witnesses or for production of documentary evidence.

(n) Upon a showing of relevancy and materiality, the hearing officer may issue subpoenas for both the OVS and the claimant for attendance of witnesses or for the production of documentary evidence.

(o) In conducting the hearing, the hearing officer will liberally allow the admission of evidence that may not conform to the strict rules of evidence under common law or court rules. A stenographer or court reporter shall record the proceedings. Witnesses shall testify under oath.

(p) The claimant shall have the burden of proving entitlement to compensation by a preponderance of the evidence.

(q) Both OVS and the claimant may present testimony in support of their respective positions and cross-examine the opposing party’s witnesses.

(r) Hearings generally will be open to the public except that the hearing may be held in camera in any of the following instances:

(1) Prosecution against the alleged perpetrator of the crime is pending.

(2) The welfare and safety of the direct victim, intervenor or his family or community may be adversely affected by a public hearing.

(3) To protect the rights and interests of a minor.

(s) A claimant may have support persons or victim advocates, or both, accompany him. The number of advocates and support persons may be limited by the hearing officer.

(t) Upon adjourning the hearing, the hearing officer will offer the claimant and OVS’s attorney an opportunity to file posthearing briefs, to be filed after the transcript is issued, on a schedule to be determined by the hearing officer.

(u) Upon receipt of the transcript from the stenographer, notification will be sent by certified mail to the claimant that the transcript is available and can be purchased at the claimant’s own expense.

(v) OVS will reimburse claimants $20 per day for attendance at a hearing directed by OVS in connection with the claim. Additional expenses will be reimbursed as follows:

(1) Private vehicle usage at mileage rate currently paid by the Commonwealth to its own employees for travel.

(2) Common carrier fares when preapproved by OVS.

(3) Lodging the night before or the night after a hearing session, to a daily maximum of $75, if the claimant must travel at least 50 miles from home for the hearing.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.33 Final decision after hearing.

(a) The hearing officer will issue a report and recommendation which will be delivered to a designated Commission official acting on behalf of OVS who has no previous involvement in the claim.

(b) The designated Commission official will review the report and recommendation, the hearing transcript and the documentary exhibits. The designated Commission official may not have access to information not in the hearing record.

(c) The designated Commission official may not be advised in the hearing process by an attorney or any OVS staff member who has previous involvement with any aspect of the claim that is being heard. The designated Commission official may request the General Counsel of the Commonwealth to appoint an attorney who has no prior involvement to provide advice on the matter.

(d) Upon completing the review of the hearing officer’s report and recommendation, the designated Commission official will do one of the following on behalf of OVS:

(1) Adopt the hearing officer’s report and recommendation as written as a final decision.

(2) Modify the report and recommendation and issue the modified document as the final decision.

(3) Reject the report and recommendation in its entirety and prepare and issue a final decision for OVS.

(e) The designated Commission official will distribute the final decision to the claimant, the claimant’s attorney, the victim’s advocate and to OVS.

(f) The claimant shall have the right of further appeal as set forth in the act or other applicable law.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.41 Amount.

An award made under the act and this chapter will be in an amount not exceeding out-of-pocket loss, together with loss of past, present or future earnings or support resulting from the injury. The total amount of an award may not exceed $35,000 except for payment of the following:

(1) Counseling, the maximum amount of which must be in accordance with section 707(b)(4.1) of the act. (18 P. S. § 11.707(b) (4.1))

(2) Forensic rape examination and medications directly related to the sexual offense, the amount of which may not exceed $1,000.

(3) Reasonable and necessary costs of cleaning the crime scene of a private residence, the amount of which may not exceed $500.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.42 Out-of-pocket loss.

(a) General. The following general provisions apply to reimbursement for out-of-pocket loss.

(1) OVS may make a monetary award for an out-of-pocket loss as it is defined in the act.

(2) OVS may pay the service provider directly or reimburse the claimant for amounts paid, as applicable.

(b) Medical expenses. The following provisions for payment of medical expenses apply:

(1) OVS will pay a hospital or other licensed health care provider at the rate of 65% of the usual and customary charge for the service rendered.

(2) This rate will apply to any bill for services incurred on or after December 12, 2009.

(3) Forensic rape examinations.

(i) OVS will reimburse a maximum of $1,000 to a hospital or other licensed health care provider, or both, for a forensic rape examination and medications directly related to the sexual offense.

(ii) The reimbursement will not include expenses for analyzing collected evidence for DNA or presence of Rohypnol or other similar drugs.

(iii) Claims shall be filed with OVS no later than 1 year after the date of the crime.

(iv) OVS will reimburse a direct victim who is erroneously billed and subsequently pays the cost of the forensic rape examination or medications directly related to the sexual offense. The reimbursement will be subject to the $1,000 monetary limitation.

(c) Funeral expenses. Except as otherwise set forth in this subsection, OVS will reimburse for expenses relating to a funeral of a direct victim or intervenor. The total reimbursement amount for funeral expenses will not exceed $6,500.

(1) Funeral expenses to be reimbursed are as follows:

(i) Cremation.

(ii) Interment.

(iii) Body preparation including embalming.

(iv) Grave opening and closing.

(v) Cemetery plot, tent and chairs.

(vi) Mausoleum.

(vii) Viewing services and facilities.

(viii) Automotive equipment, such as the hearse, limousine and flower car.

(ix) Death announcements, prayer cards, register book and thank you cards.

(x) Casket or urn.

(xi) Minister, pastor, rabbi or other member of the clergy.

(xii) Monument.

(xiii) Floral arrangements.

(xiv) Funeral or memorial meal.

(xv) Clothing purchased for the deceased for the funeral or interment.

(xvi) Other miscellaneous expenses, including organist, programs, death certificates, obituary notice and notice of the time and place of the funeral or burial services.

(d) Replacement of personal health-related items damaged or stolen as a result of a crime. Except as otherwise set forth in this subsection, OVS will reimburse a claimant for costs for the replacement of each prosthetic device, wheelchair, cane, walker, hearing aid, eyeglasses or other corrective lenses, dental device or prescription medications. Reimbursement will not exceed $1,000 and will be subject to the following limitations:

(1) Two hundred dollars for eyeglass frames.

(2) One thousand dollars for replacement of all combined prescription medications stolen or damaged in a single crime incident.

(3) One hundred dollars for replacement of canes.

(4) Two hundred fifty dollars for replacement for walkers.

(e) Counseling. OVS will pay expenses of counseling performed by or under the supervision of a psychiatrist, psychologist, licensed professional counselor or licensed social worker to claimants as follows:

(1) A maximum of $10,000 in total expenses of a direct victim who was under 18 years of age upon the occurrence of the crime.

(2) A maximum of $5,000 in total expenses of a direct victim who was 18 years of age or older upon the occurrence of the crime.

(3) A maximum of $5,000 in total expenses of any of the following individuals affected by the homicide of a direct victim:

(i) An individual responsible for the welfare of the direct victim, which includes legal guardians and foster parents.

(ii) An individual related in the second degree of consanguinity or affinity to the direct victim.

(iii) An individual residing in the same household with the direct victim.

(iv) An individual engaged to be married to the direct victim.

(4) A maximum of $2,500 in total expenses of any of the individuals described in paragraph (3) affected by a crime against a direct victim that is not a homicide.

(5) A maximum of $1,500 in total expenses of an individual who:

(i) Is physically present at a crime scene and witnesses a violent crime.

(ii) Discovers the body in a homicide.

(6) For counseling expenses relating to a homicide, OVS may not reduce the amount of the award or deny the reimbursement due to the conduct of the direct victim.

(f) Relocation expenses. OVS will reimburse for expenses incurred by the temporary or permanent relocation of a direct victim and individuals residing in the direct victim’s household when immediate relocation is necessary to protect their health and safety. This reimbursement will not exceed $1,000 per household for each direct victim for the following:

(1) Relocation expenses to be reimbursed are as follows:

(i) Lodging to a daily maximum of $75.

(ii) Rental of substitute living quarters.

(iii) Utility connection fees, which do not include cable.

(iv) Rental of a passenger vehicle for a total daily maximum of $30.

(v) Private vehicle usage at mileage rate currently paid by the Commonwealth to its own employees for travel.

(vi) Common carrier fares.

(vii) Moving company charges or van rental.

(viii) Tolls and parking expenses.

(ix) Rental of post office box.

(x) Charges for storage of personal belongings.

(xi) Child care expenses.

(2) Reimbursement will be made only when a medical provider, human services provider or law enforcement representative, which may include a district attorney or other prosecutorial agency, verifies the immediate need for relocation.

(3) OVS may consider a delay past the prescribed immediate need time period to be justified when the direct victim, intervenor or claimant is mentally or physically incapacitated, there is a fear of retaliation or other circumstances when good cause is shown by the claimant.

(g) Travel expenses. OVS will reimburse expenses associated with travel necessary and reasonable as determined by OVS to obtain medical care or counseling, attend or participate in criminal justice or protection from abuse proceedings, and other circumstances when good cause is shown by the claimant. In the case of an injury that results in death, for travel in connection with making the funeral arrangements, transport of the body and attendance of funeral services as follows:

(1) Meals totaling no more than $28 per day, with no more than $6 for breakfast, $6 for lunch and $16 for dinner.

(2) Lodging to a daily maximum of $75.

(3) Private vehicle usage at mileage rate currently paid by the Commonwealth to its own employees.

(4) Vehicle rental to a daily maximum of $30.

(5) Payment of a driver other than common carriers needed as result of a crime at maximum hourly rate of $8.

(6) Common carrier fares in full.

(7) Tolls and parking expenses.

(8) Meals and lodging reimbursement, limited to trips of 50 miles or more from the eligible person’s home.

(9) Containers or other necessary requirements to transport the body.

(10) In the case of an injury that results in death, for travel in connection with the transport of the body, making funeral arrangements and attending the funeral services not to exceed 5 days.

(h) Crime scene clean up. The cost of cleaning the crime scene of a private residence up to a maximum of $500.

(1) Reimbursement will be limited to the cost of cleaning supplies purchased for the purpose of cleaning the scene, the cost of any necessary equipment purchased or rented and the cost of professional labor for the purpose of cleaning the crime scene.

(2) Multiple private residences may each be considered for crime scene cleanup if the sites are identified in the police report. The maximum award amount for each crime scene cleanup is $500.

(3) Cleaning means to remove or attempt to remove blood and stains caused by bodily fluids, food, paint or other materials used to deface property as a direct result of the crime or other dirt or debris caused by the processing of the crime scene.

(4) Stains deliberately caused by acts of vandalism and other intentional acts are property damage which is expressly excluded from the definition of ‘‘out of pocket loss’’ contained in the act.

(i) Miscellaneous expenses. OVS may reimburse a claimant for other services reasonably necessary, including the following:

(1) The purchase or rental of nonmedical remedial care or products that are needed to assist in normal, daily life functions and are prescribed or recommended by a health care provider, such as a wheel chair ramp, lifts or other special accommodations, including equipment or robotic devices needed to assist in normal, daily life functions.

(2) The cost of obtaining services needed as a result of the crime such as laundering, cleaning, child care, administration of medication, food shopping and meal preparation.

(i) Members of the family of the direct victim or intervenor engaged to perform the services will be paid their net loss of earnings not to exceed the average weekly wage and if not otherwise reimbursed for the loss of earnings.

(ii) Individuals engaged to perform services who are not family members will be paid a maximum hourly rate of $8.

(3) At the discretion of OVS, telephone and television expenses incurred in connection with inpatient care of the direct victim or intervenor due to the injury.

(4) At the discretion of OVS, charges incurred for records, products or services including those for rehabilitation, rehabilitative occupational training, other remedial treatment and care, tutors and interpreters.

The provisions of this § 411.42 amended under section 312(3) of the Crime Victims Act (18 P. S. § 11.312(3)).

The provisions of this § 411.42 amended December 11, 2009, effective December 12, 2009, 39 Pa.B. 6980. Immediately preceding text appears at serial pages (325305) to (325309).

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.43 Loss of earnings.

(a) OVS may make an award for the loss of cash equal to one month’s net worth of Social Security, railroad retirement, pension plan, retirement plan, disability, veteran’s retirement, court-ordered child support or court-ordered spousal support payments if the payments are the primary source of the victims income and the victim is deprived of the money as a direct result of a crime. The actual amount stolen must be indicated in the police report. In no instance may payment exceed the amount stolen. Changes or amendments to the amount stolen must be made to the police within 2 weeks of the crime and subsequently documented by the police.

(b) OVS may make an award within the monetary limitations of the act to compensate a direct victim, intervenor or claimant for loss of earnings attributable to the injury not to exceed the average weekly wage if the claimant was not otherwise reimbursed for the loss. A loss of earnings must be definitely ascertainable at the time of the injury and may not include a loss that is conditioned upon future events.

(c) In claims involving the death of a direct victim or intervenor, OVS may pay up to 2 week’s net loss of earnings in connection with the death not to exceed the average weekly wage if the claimant was not otherwise reimbursed for the loss. The loss is limited to that suffered by a claimant who incurred a loss of earnings as a result of one of the following:

(1) Trauma.

(2) Making funeral arrangements.

(3) Accompanying the deceased to the place of interment.

(d) The following formula will be used to calculate loss-of-earnings for wage earners:

Loss of Earnings = Gross Earnings - Estimated Tax Obligations - Other Benefits Received

(e) For purposes of the formula in subsection (d), the following apply:

(1) ‘‘Gross earnings’’ include taxable and nontaxable income that was terminated or reduced as a result of injury. Overtime may be included if the claimant demonstrates a history of regular overtime pay or provides verification that overtime is a condition of employment.

(2) Estimated tax obligations include Federal, State and local taxes.

(3) ‘‘Other benefits received’’ include disability payments, employer paid leave, cash assistance, food stamps, workers’ compensation, restitution or awards or settlements from a civil action or insurance payment.

(f) In calculating gross earnings, OVS may use either a time period immediately preceding the crime, the tax year in which the crime occurred or the most recent tax year that ended prior to the year of the crime.

(g) As a condition for continuing receipt of loss of earnings benefits, OVS may require the claimant to file a claim for and pursue other benefits to which the claimant may be entitled and which could be an offset to the loss of earnings award.

(h) For a claimant who is self-employed and who continues to operate his business during the period of disability, OVS may compensate the claimant for the amount paid to other persons hired to perform the services usually performed by the claimant.

(i) For a claimant whose unemployment compensation benefits are suspended as a result of the injury, OVS may make an award to replace the suspended benefits.

(j) If the claimant was unemployed at the time of the injury and provides OVS with an affidavit from the employer on company letterhead stating the beginning date of employment, the hours per week to be worked, and the pay rate along with the employer’s Federal Identification Number (FID#) certifying that the claimant was unable to begin because of the injury, OVS may measure loss of earnings based on anticipated earnings that would have been received in the new position.

(k) If the claimant was self-employed for less than a year prior to the injury and the tax records consequently provide a questionable measure of the claimant’s earning potential, OVS may measure gross earnings by using the claimant’s earnings as an employee for the period immediately prior to the start of the claimant’s business.

(l) If a claimant is self-employed and is unable to fulfill a contract negotiated and signed prior to the crime due to the injury, OVS may consider the lost net income.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.44 Loss of support.

(a) OVS may make an award within the monetary limitations of the act to compensate an eligible person or persons who, as a consequence of the injury causing the death of a direct victim or intervenor, is deprived of the financial support that the direct victim or intervenor had been required by court order to provide or had actually been providing at the time of the injury that caused the death. When a court-ordered support obligation is in effect at the time of an injury causing the death, the following formula will be used to calculate loss of support:

(b) For purposes of the formula in subsection (a), the following apply:

(1) ‘‘Support’’ includes annual support based on obligation specified in the order plus any amount in arrears due to the claimant at time of death.

(2) ‘‘Other benefits received’’ include restitution, insurance benefits, Social Security or pension benefits and awards from civil actions.

(c) When no court-ordered support obligation is in effect at the time of an injury causing the death of a direct victim or intervenor, the following formula will be used to calculate loss of support:

(d) For purposes of the formula in subsection (c), the following apply:

(1) ‘‘Support’’ includes the gross earnings less estimated tax obligations multiplied by 80%. Gross earnings include all taxable and nontaxable income that terminated at time of death such as wages, business income, retirement payments, Social Security payments and other benefits.

(2) ‘‘Other benefits received’’ include restitution, insurance benefits, Social Security or pension benefits and awards from civil actions.

(3) Loss of support must be definitely ascertainable at the time of the injury that caused the death and may not include a loss that is conditioned upon future events.

(e) In applying the formula in subsection(c), the following conditions apply:

(1) A surviving spouse or dependent child will be allocated up to 80% of the net annual earnings of the victim or intervenor.

(2) A surviving parent will be allocated the actual amount of support provided by the direct victim or intervenor, not to exceed 80% of the net annual earnings.

(3) Any other person dependent upon the direct victim or intervenor for principal support will be allocated the actual amount of support provided by the direct victim or intervenor, not to exceed 80% of the net annual earnings.

(f) When calculating loss of support, OVS may consider as applicable, the life expectancy or labor force participation expectancy of the direct victim or intervenor, or the age of the dependent.

(g) In calculating gross earnings, OVS may use either a time period immediately preceding the crime, the tax year in which the crime occurred or the most recent tax year that ended prior to the year of the crime.

(h) If the direct victim or intervenor was not employed at the time of the crime, OVS may use employment history up to the 3 years immediately preceding the crime to estimate potential support that would have been provided to an eligible person.

(i) If more than one person is eligible for a loss of support award, OVS will allocate each a share of the total annual amount based on OVS’s determination of fairness and equity under the circumstances of the claim.

(j) If the total uncompensated loss of support for two or more eligible persons exceeds the monetary limitations in the act, the limited resources will be distributed at the discretion of OVS proportionately among the eligible persons.

(k) OVS may provide a lump sum or accelerated payments for loss of support. The calculated maximum can be dispersed in one lump sum if extenuating circumstances necessitate, or under lesser conditions, paid out in a 3-year to 5-year payment plan. Also, if the total projected award is of a lesser amount, and extended yearly payments are impractical, the award will be paid in total in a single sum. In claims in which OVS make protracted payments into the future, the claimant is subject to a continuing obligation to provide information that OVS requests. Failure to provide this information when requested may result in the suspension of future payments or may require repayment of prior accelerated payments.

(l) The claimant or the recipient of a loss of support award has a continuing obligation to report to OVS any change in circumstances, such as if the recipient obtains a new source of support. In these circumstances, OVS may terminate or reduce protracted payments made under the original award.

(m) When an award for loss of support is paid to a person for the benefit of another person, OVS may require the payee to file a periodic accounting of OVS’s payments or take other action as OVS may determine necessary and appropriate for the benefit of the beneficiary.

(n) As a condition for continuing receipt of loss of support benefits, OVS may require the claimant to file a claim for and pursue other benefits to which the claimant may be entitled to offset the loss of support benefits.

(o) At any time, OVS may reconsider and modify a future loss of support award previously issued or a protracted payment if another eligible person qualifies for a loss of support award.

(p) Gifts of property or money bestowed upon the dependent on special occasions may not be considered in making a determination of dependency.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.51 Subrogation.

(a) Payment of an award made under the act shall subrogate the Commonwealth, to the extent of any payment, to any right of action against any person accruing to the claimant, the direct victim or the intervenor to recover losses resulting from the crime with respect to which the award is made. In such a case, the Commonwealth will be entitled to bring an action against the person causing or otherwise liable for the personal injuries or death for which the payment was made. Money recovered under this section shall be deposited in the Crime Victim’s Compensation Fund established under the act.

(b) If an amount greater than that paid under the act is recovered and collected in such an action, the Commonwealth will pay the balance to the claimant. The Attorney General shall enforce any subrogation. A claimant who fails to notify OVS of the receipt of funds from another claim or award arising out of the crime shall forfeit and pay to the Commonwealth an amount equal to all awards paid by OVS to the claimant or on the claimant’s behalf.

(c) The OVS has the discretion to settle subrogation claims for an amount less than the award. Unless good cause is shown by the claimant or claimant’s attorney, under no circumstances will OVS settle subrogation claims for an amount that is less than 75% of the original award to the claimant. OVS reserves the right to assert further subrogation on additional recovery by the claimant. If the direct victim or intervenor incurs additional expenses related to the injury, the claimant must exhaust the actual insurance or civil recovery as well as the amount OVS reduced prior to receiving further payments from OVS.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.52 Representation by attorney.

(a) Title 1 of the Pennsylvania Code, Part II (relating to General Rules of Administrative Practice and Procedures) applies to the representation of a claimant by an attorney before OVS or in a hearing related to a claim submitted to OVS.

(b) If an attorney has filed a notice of appearance on behalf of the claimant, the notice shall remain in effect until one of the following occurs:

(1) The claimant files with OVS a written revocation of the authority of the attorney.

(2) The attorney files with OVS a written statement of withdrawal from the case.

(3) The attorney makes a statement of withdrawal from the case on the record at a hearing.

(4) OVS receives notice of the license suspension or revocation or the death of the attorney.

(c) During the period in which a notice of appearance filed under this section remains in effect, OVS may communicate with the attorney instead of the claimant. Service upon the attorney shall be deemed effective service upon the claimant.

(d) An attorney who represents a claimant before OVS may receive a fee for that representation only under the act. After OVS makes an award, the attorney may request that OVS pay attorney’s fees and costs by filing with OVS an affidavit of services, listing the nature of each service rendered and the amount of time spent in rendering the service, plus an itemized list of costs incurred in the preparation, procuring and filing of record papers regarding the claim.

(e) In evaluating applications for attorney’s fees, OVS will consider the following factors:

(1) The time and labor required.

(2) The novelty and difficulty of the questions.

(3) The skill needed to perform the legal service properly.

(4) Awards in similar claims.

(f) A payment for attorney’s fees shall be in addition to the award made to the direct victim, claimant or intervenor, but may not exceed 15% of that award. OVS may not reduce an award to a direct victim on account of payment of attorney’s fees.

(g) OVS may award no more than $75 per hour to an attorney in the preparation and presentation of a claim that is awarded.

(h) It is unlawful for an attorney to contract for or receive a sum larger than the amount allowed.

(i) OVS may deny or reduce an award for attorney’s fees if an attorney asserts a false claim as to the time spent on a matter concerning OVS or asserts a false claim as to the services rendered to a claimant. OVS may refer the matter to the Disciplinary Board of the Pennsylvania Supreme Court, the Attorney General or other appropriate authorities.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

37 Pa. Code § 411.53 Prohibitions.

(a) Providers who write off bills to a direct victim or intervenor may not at any point following the write off seek reimbursement from OVS, direct victim, claimant or intervenor.

(b) A funeral director who assumes the obligation to pay for funeral expenses may not seek reimbursement from the direct victim or intervenor’s family.

(c) A person who assumes the obligation for crime scene clean up may not seek reimbursement from the direct victim or intervenor’s family.

History

Authority: The provisions of this § 411.
Source: The provisions of this § 411.

Chapter 421 Deputy Sheriffs’ Education and Training Board

37 Pa. Code § 421.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The Deputy Sheriffs’ Education and Training Act (71 P. S. § § 2101—2109). Basic training—A course of training administered by the Deputy Sheriffs’ Education and Training Board under section 5 of the act (71 P. S. § 2105). Board—The Deputy Sheriffs’ Education and Training Board. Continuing education—A course of training administered by the Board under section 6 of the act (71 P. S. § 2106). Deputy sheriff—A person, whether full-time or part-time, who is titled, sworn-in or authorized to act as a deputy sheriff or who performs the duties of a deputy sheriff.

The provisions of this § 421.1 amended January 17, 2003, effective January 18, 2003, 33 Pa.B. 353. Immediately preceding text appears at serial page (267350).

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.2 Responsibilities of sheriffs.

(a) The sheriff of each county shall submit and maintain with the Board current information on deputy sheriffs on a form to be supplied by the Board.

(b) Whenever a deputy sheriff is newly employed, discharged or leaves employment, the sheriff shall record the information on the form and forward the form to the Board within 10 days.

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.3 Training required.

(a) A newly-hired deputy sheriff is required to undergo basic training of not more than 760 hours.

(b) A deputy sheriff holding Board certification is required to undergo continuing education of at least 20 hours every 2 years.

(c) To successfully complete basic training or continuing education, a deputy sheriff shall attain at least a minimum score established by the Board on each written test and shall demonstrate proficiency in all practical skills. Prior to the commencement of instruction for which a test will be administered, the Board will notify the deputy sheriff of the minimum score required.

The provisions of this § 421.3 amended January 17, 2003, effective January 18, 2003, 33 Pa.B. 353. Immediately preceding text appears at serial page (267350).

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.4 Waiver of training.

(a) The Board upon request and for cause shown may extend the time up to 1 year for a newly-hired deputy sheriff to fulfill the basic training requirements of the act. Examples of good cause are:

(1) A medical problem.

(2) A family crisis or obligation.

(3) A conflict with other employment.

(b) The Board upon request may grant a deputy sheriff a reduction in the hours of basic training generally required. The determination will be based upon the Board’s evaluation of the prior education, training or experience of the deputy sheriff under the following criteria:

(1) The Board will grant a full waiver of basic training upon application by a deputy sheriff who has served a full, 4-year term as sheriff within this Commonwealth.

(2) A deputy sheriff in one or more of the following categories may apply for a partial waiver of basic training:

(i) Trained by the State Police and previously employed as a member of the State Police.

(ii) Certified as a municipal police officer in this Commonwealth.

(iii) Graduated from a course of basic training approved by the Municipal Police Officers’ Education and Training Commission.

(3) The Board will grant a partial waiver of basic training to a deputy sheriff in one or more of the categories in paragraph (2) who holds current certifications in basic first aid or its equivalent, adult/child/infant cardio-pulmonary resuscitation (CPR) and police firearms range qualification.

(4) A deputy sheriff who has been granted a partial waiver of basic training shall be required to attend a waiver course of not more than 100 hours administered by the Board, attain at least a minimum score established by the Board on each written test and demonstrate proficiency in all practical skills. Prior to the commencement of instruction for which a test will be administered, the Board will notify the deputy sheriff of the minimum score required.

The provisions of this § 421.4 amended January 17, 2003, effective January 18, 2003, 33 Pa.B. 353. Immediately preceding text appears at serial pages (267350) to (267351).

Sufficiency of the Evidence

The Board’s decision that the Allegheny County Police Academy’s training was not specifically focused upon or adapted to deputy sheriff’s skills and knowledge was not supported by substantial evidence, where the Board did not give due consideration to whether Allegheny County’s existing program adhered to all the training standards set forth in the act (not just promoting the most economic and efficient program for training) and by the Board, so as to warrant training credit. Coon v. Deputy Sheriff’s Education and Training Board, 533 A.2d 804 (Pa. Cmwlth. 1987).

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.5 Code of conduct.

(a) The Board or school may establish reasonable rules governing attendance and conduct expected of a deputy sheriff who is attending training required under the act. The Board will provide each deputy sheriff with a copy of any rules of attendance and conduct no later than 14 days prior to the start of instruction.

(b) Violations of attendance policy or departures from the expected standards of conduct may result in the Board’s imposition of disciplinary sanctions, which may include expulsion from the training or denying or withdrawing certification.

The provisions of this § 421.5 adopted January 17, 2003, effective January 18, 2003, 33 Pa.B. 353.

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.11 Basic training.

The Board will determine the curriculum for basic training, which will include at least the following topics:

(1) Civil law and procedure.

(2) Communications.

(3) Control and defensive tactics.

(4) Courtroom security.

(5) Crimes Code and criminal procedure.

(6) Criminal investigation.

(7) Criminal justice system and law enforcement.

(8) Crisis intervention.

(9) Cultural diversity and ethnic intimidation.

(10) Emergency management.

(11) Emergency vehicle operation.

(12) Ethics and professional development.

(13) Families in crisis and domestic violence.

(14) Firearms.

(15) First aid and cardio-pulmonary resuscitation.

(16) Motor vehicle code and enforcement.

(17) Patrol procedures and operations.

(18) Physical conditioning.

(19) Physical and judicial security.

(20) Prisoner transportation.

(21) Related social sciences.

(22) Related legal issues.

(23) Special needs groups.

(24) Unified court system.

The provisions of this § 421.11 amended January 17, 2003, effective January 18, 2003, 33 Pa.B. 353. Immediately preceding text appears at serial page (267351).

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.12 Continuing education.

Continuing education will consist of topics to be determined every 2 years by the Board. The Board will make available to the public the list of course topics no later than 14 days prior to the commencement of course instruction.

The provisions of this § 421.12 adopted January 17, 2003, effective January 18, 2003, 33 Pa.B. 353.

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.21 Reconsideration of adverse determination and request for hearing.

(a) In the following cases the individual affected or the sheriff involved may file a written request for reconsideration of the adverse determination and request for hearing under 2 Pa.C.S. § § 501—508 (relating to practice and procedure of Commonwealth agencies):

(1) The Board disapproves an application or reapplication for enrollment in the training course.

(2) The Board disapproves a waiver.

(3) The Board disapproves a request or application for reimbursement.

(4) The Board revokes a previously issued certification.

(b) The request shall be received by the Board not later than 20 days after receipt of the adverse notice by the sheriff or the individual involved.

(c) Subsections (a) and (b) supplement 1 Pa. Code § 31.5 (relating to communications and filing generally) and 1 Pa. Code § 35.5 (relating to form and content of informal complaints).

(d) When the hearing adjudication by the Board results in an adverse determination, the individual involved may file a written request for review before the Commission.

(e) The written request for review shall be received by the Commission no later than 20 days after receipt of the adverse adjudication by the individual involved.

(f) The Executive Director will determine whether review will be granted, and notice thereof shall be sent to all parties to the proceedings.

(g) The standard of review of the hearing adjudication by the Commission shall be whether the Board abused its discretion.

(h) Subsections (a)—(d) supplement 1 Pa. Code § 35.9 (relating to formal complaints generally).

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.22 Hearing procedure.

Hearings will be conducted under 2 Pa.C.S. § § 501—508 and 701—704 (relating to practice and procedure of Commonwealth agencies and judicial review of Commonwealth agency action) and 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.31 Reimbursement to counties.

(a) A county shall initially pay the deputy sheriff’s ordinary and necessary living and travel expenses in connection with training, except for those items that the Board provides directly to a deputy sheriff.

(b) Upon application by a county, the Commission will provide reimbursement as set forth in section 9 of the act (71 P. S. § 2109) for items paid by the county.

(c) The Commission will provide reimbursement only in connection with a deputy sheriff’s attendance at a school authorized by the Board to provide basic training or continuing education.

(d) The county may apply to the Commission for reimbursement, on a form to be supplied by the Commission, at the conclusion of the required training for each deputy sheriff who has attended basic training or continuing education.

(e) Reimbursement will be limited to the following:

(1) Tuition. Tuition will be provided by the Board.

(2) Living expenses. Allowable subsistence and lodging shall be provided for a deputy sheriff who is not commuting to and from school. A deputy sheriff who is commuting will be allowed reimbursement only for lunch.

(3) Travel expenses. A commuter is entitled to claim mileage costs for each day the commuter is required to attend the approved training course. The mileage allowance, whether commuter or noncommuter, will only be allowed to the training school from the deputy sheriff’s place of employment.

(4) Determination of expenses. The determination of ordinary and necessary living and travel expenses will be governed by 4 Pa. Code Chapter 40 (relating to travel and subsistence).

(f) If the Commission determines that the application and request for reimbursement do not meet the requirements of the act and this chapter, the Commission’s Executive Director or a designee will send written notification within 10 business days to the county by regular mail and, if feasible, electronic mail. The notification will set forth the reasons upon which the adverse determination is based.

The provisions of this § 421.31 amended January 17, 2003, effective January 18, 2003, 33 Pa.B. 353. Immediately preceding text appears at serial pages (267352) to (267353).

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

37 Pa. Code § 421.32 Restrictions on reimbursement.

(a) If a deputy sheriff has successfully completed the certified basic training course and if reimbursement for the deputy is claimed by or paid to a county, the deputy may not again be claimed for reimbursement for repetition of the basic training course regardless of reemployment by another county.

(b) If a deputy sheriff does not successfully complete the certified basic training course and if reimbursement for the deputy is claimed by or paid to a county, the county is not eligible for further reimbursement on behalf of the deputy in the event that the deputy subsequently attends another basic training course.

(c) A county will be reimbursed once, for each deputy sheriff attending a certified continuing education course within a 2-year period.

The provisions of this § § 421.32 amended January 17, 2003, effective January 18, 2003, 33 Pa.B. 353. Immediately preceding text appears at serial page (267353).

History

Authority: The provisions of this Chapter 421 issued under section 3 of the act of November 22, 1978 (P.
Source: The provisions of this Chapter 421 adopted April 18, 1986, effective April 19, 1986, 16 Pa.

Chapter 431 Constables’ Education and Training Board

37 Pa. Code § 431.1 Purpose.

This chapter sets forth standards and procedures relating to the certification of constables and deputy constables and their qualification to carry or use firearms in the performance of their duties.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.2 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—42 Pa.C.S. § § 2941—2950 (relating to constables). Basic training—A course of training administered by the Board under section 2945 of the act (relating to program contents). Board—The Constables’ Education and Training Board of the Commission. Certification—The Board’s official determination that a constable or deputy constable has completed successfully the training required by the act. Commission—The Commission on Crime and Delinquency. Constable—A person currently serving as constable or deputy constable. Continuing education—A course of annual training administered by the Board under section 2946 of the act (relating to continuing education). Firearms qualification—The Board’s official determination under the act that a constable is qualified to carry or use firearms in the performance of duties. School—A facility approved by the Board that enters a contract with the Commission to conduct training. Waiver—The Board’s grant of permission to a constable to reduce the hours of classroom attendance in a Board training course.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.11 Registration.

(a) A person shall register with the Board for certification by completing and submitting a form provided by the Board. The person will be required to provide information such as mailing address and telephone number, Social Security number, date of birth and office held or sought. A constable shall set forth the beginning date and expiration date of the term of office held, and provide documentary evidence of election or appointment.

(b) A registrant shall inform the Board of a change to registration information within 15 days of the change.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.12 Initial certification.

The Board will issue a certification to a constable who successfully completes basic training or attains a passing grade on the Board’s basic training waiver examination. An initial certification will be valid through December 31 of the year following initial certification.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.13 Annual certification.

(a) If a constable successfully completes continuing education, the Board will certify the constable for the next calendar year.

(b) To maintain continuous certification, a constable shall complete continuing education during the calendar year following the year in which the constable completed one of the following:

(1) Basic training.

(2) The basic training waiver examination.

(3) A previous course of continuing education.

This section cited in 37 Pa. Code § 431.14 (relating to lapse of certification).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.14 Lapse of certification.

(a) The certification of a constable who fails to complete continuing education successfully within the time allowed in § 431.13(b) (relating to annual certification) shall lapse and the Board will list the constable as inactive.

(b) The Board will reactivate a certification that is lapsed if the constable completes continuing education within 5 years of the lapse. The reactivated certification will be effective for the calendar year following completion of continuing education.

(c) For good cause shown, the Board may reactivate the certification in the same calendar year in which the constable completes continuing education. Examples of good cause are a medical problem, family crisis or obligation, or conflict with other employment.

(d) The Board will reactivate a certification 5 years or more after the lapse of a constable’s certification upon the constable’s successful completion of a basic training course.

The provisions of this § 431.14 amended under 44 Pa.C.S. § 7144(10).

The provisions of this § 431.14 amended March 7, 2014, effective March 8, 2014, 44 Pa.B. 1313. Immediately preceding text appears at serial pages (296523) to (296524).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.15 Certification numbers.

(a) The Board will issue a unique certification number to a constable who obtains initial certification.

(b) The Board will reissue the original certification number to a constable who successfully completes continuing education.

(c) A person is required to notify the Board by telephone, facsimile transmission or electronic mail within 48 hours after the person has vacated the office of constable or deputy constable. The Board will place the person’s certification number into inactive status upon notification.

(d) A person who is reelected or reappointed to the office of constable after vacating it shall notify the Board. Based upon the timing of reelection or reappointment, the Board will do one of the following:

(1) If the reelection or reappointment occurs less than a year from the date on which the office was vacated, the Board will reactivate the constable’s certification number upon notification.

(2) If the reelection or reappointment occurs a year or more but less than 5 years after the date on which the office was vacated, the Board will reactivate the original certification upon the constable’s successful completion of a continuing education course.

(3) If the reelection or reappointment occurs 5 years or more after the date on which the office was vacated, the Board will reactivate the original certification upon the constable’s successful completion of a basic training course.

The provisions of this § 431.15 amended under 44 Pa.C.S. § 7144(10).

The provisions of this § 431.15 amended March 7, 2014, effective March 8, 2014, 44 Pa.B. 1313. Immediately preceding text appears at serial page (296524).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.21 Curriculum.

Basic training will consist of instruction in the following topics:

(1) Role of the constable in the justice system.

(2) Professional development, including instruction in the interpretation and application of the fees provided for in section 2950 of the act (relating to fees).

(3) Civil law and process.

(4) Criminal law and process.

(5) Use of force.

(6) Mechanics of arrest.

(7) Defensive tactics.

(8) Prisoner transport and custody.

(9) Court security.

(10) Crisis intervention.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.22 Requirements.

(a) A constable will be required to attain the following to complete a basic training course:

(1) Attend 80 hours of basic training.

(2) Attain a passing score as established by the Board on the written examination for each topic.

(3) Demonstrate proficiency in each examination of practical skills, such as defensive tactics and mechanics of arrest.

(b) A constable who fails to achieve a passing score on a written examination may undergo a second written examination.

(c) A constable who fails to achieve a passing score on a second written examination may attend and complete a second basic training course in its entirety. The constable shall bear financial responsibility for the cost of the additional basic training course.

(d) A constable may attend a third basic training course upon failing to complete the second basic training course, but will not be given additional opportunities upon failing to complete the third course. The constable shall bear financial responsibility for the cost of the additional basic training course.

The provisions of this § 431.22 amended under 44 Pa.C.S. § 7144(10).

The provisions of this § 431.22 amended March 7, 2014, effective March 8, 2014, 44 Pa.B. 1313. Immediately preceding text appears at serial page (296525).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.23 Eligibility for waiver.

A constable who has the following qualifications may apply to the Board for a waiver of the requirement to complete basic training:

(1) Current employment as a municipal police officer or deputy sheriff in this Commonwealth with current training and certification required to perform the occupation.

(2) Employment within the past 2 years as a State Police officer, municipal police officer or deputy sheriff with current training and certification required to perform the occupation at the time the constable terminated the employment.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.24 Waiver examination.

(a) A constable who has been granted a waiver of basic training shall attain a passing score as established by the Board on the Board’s basic training waiver examination.

(b) A constable shall have one opportunity to obtain a passing score on a basic training waiver examination. A constable who fails the basic training waiver examination shall complete basic training to obtain an initial certification.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.25 Attendance policies.

(a) Withdrawal. A constable who enrolls in a basic training course may withdraw from the course without penalty upon timely notification to the school conducting the basic training course. A notification shall be deemed timely if it is delivered to the director of the school or a designee no later than 7 calendar days prior to the start of classes. The school may assess a failing grade for all or part of the basic training course, if the constable fails to provide timely notification or to show good cause. A notification shall be deemed untimely if the notice is not received by the director of the school or a designee within 7 calendar days prior to the start of classes.

(b) Financial responsibility. If notification to withdraw is not given or is deemed untimely and good cause is not shown, and the constable wants to attend another basic training course in the same training year or in the next training year, the constable shall bear financial responsibility for the cost of the additional basic training course. Payment must be received by the Commission within 2 weeks of class start date in the form of a certified check or money order.

(c) Additional attendance. A constable who successfully completes a basic training course may not attend another basic training course in the same training year.

The provisions of this § 431.25 amended under 44 Pa.C.S. § 7144(10).

The provisions of this § 431.25 amended March 7, 2014, effective March 8, 2014, 44 Pa.B. 1313. Immediately preceding text appears at serial page (296526).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.31 Curriculum.

The Board may adjust annually the content of continuing education as it deems necessary to address new or varied topics or skills required to perform judicial duties set forth in the act.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.32 Requirements.

(a) A constable shall attain the following to complete continuing education:

(1) Attend the hours of continuing education per year as determined annually by the Board and published in a Board training bulletin.

(2) Attain a passing score as established by the Board on each written examination taken.

(3) Demonstrate proficiency in each examination of practical skills.

(b) A constable who fails to attain a passing score on any written examination may undergo a second examination for that topic.

(c) A constable who fails to attain a passing score in a second examination may attend and complete another course in the failed module to be certified. The constable shall bear financial responsibility for a second continuing education course.

(d) A constable who fails two successive continuing education courses will not be allowed to attend a third course.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.33 Eligibility for waiver.

A constable who is currently employed as a municipal police officer or deputy sheriff may apply annually to the Board for a waiver of topics in that year’s continuing education curriculum if the constable demonstrates that the equivalent training and certification are current.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.34 Scope of waiver.

(a) At the beginning of each calendar year, the Board will publish a list of specific topics available for waiver consideration.

(b) The Board will grant a waiver of continuing education for those topics that also were covered in the certification training for municipal police officers or deputy sheriffs.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.35 Attendance policies.

(a) Withdrawal. A constable who enrolls in a continuing education course may withdraw without penalty upon timely notification to the school conducting the continuing education course. A notification shall be deemed timely if it is delivered to the director of the school or a designee no later than 7 calendar days prior to the start of classes. The school may assess a failing grade for all or part of the continuing education course if the constable fails to provide timely notification or to show good cause. A notification shall be deemed untimely if the notice is not received by the director of the school or a designee within 7 calendar days prior to the start of classes.

(b) Financial responsibility. If notification to withdraw is not given or is deemed untimely and good cause is not shown, and the constable wishes to attend another continuing education course in the same training year or in the next training year, the constable shall bear financial responsibility for the cost of the additional continuing education course. Payment must be received by the Commission within 2 weeks of class start date in the form of a certified check or money order.

(c) Additional attendance. A constable who successfully completes a continuing education course may not attend another continuing education course in the same training year.

The provisions of this § 431.35 amended under 44 Pa.C.S. § 7144(10).

The provisions of this § 431.35 amended March 7, 2014, effective March 8, 2014, 44 Pa.B. 1313. Immediately preceding text appears at serial page (296527).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.41 Qualification course.

(a) A constable shall complete a basic firearms qualification course established by the Board to attain initial firearms qualification.

(b) After a constable attains initial firearms qualification, the constable shall complete the Board’s annual firearms qualification course to maintain firearms qualification.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.42 Eligibility for firearms qualification.

A constable holding certification who is 21 years of age or older and who is not precluded under State or Federal law from possessing or using a firearm may enroll in a firearms qualification course.

The provisions of this § 431.42 amended under 44 Pa.C.S. § 7144(10).

The provisions of this § 431.42 amended March 7, 2014, effective March 8, 2014, 44 Pa.B. 1313. Immediately preceding text appears at serial pages (296527).

This section cited in 37 Pa. Code § 431.44 (relating to requirements); and 37 Pa. Code § 431.48 (relating to lapse of qualification).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.43 Firearm and ammunition.

(a) As a prerequisite for attending a firearms qualification course, a constable shall provide at all times during the course a firearm and ammunition, magazines, speed loaders, safety accessories and cleaning equipment specific to the firearm. The Board will provide ammunition to the constable for use during instruction. The constable shall provide ammunition for use during the qualification test.

(b) The firearm provided shall be of a design generally acceptable for law enforcement usage, and shall be in a condition for safe operation as designed and intended by the firearm manufacturer. The firearm provided shall be one of the following calibers:

(1) .380.

(2) .38 special.

(3) .357.

(4) .40.

(5) .45.

(6) 9mm.

(c) The ammunition provided shall be of a type and design generally acceptable for law enforcement usage, and may not be remanufactured or reloaded.

The provisions of this § 431.43 amended under 44 Pa.C.S. § 7144(10).

The provisions of this § 431.43 amended March 7, 2014, effective March 8, 2014, 44 Pa.B. 1313. Immediately preceding text appears at serial pages (296527) to (296528).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.44 Requirements.

(a) A constable who meets the eligibility criteria of § 431.42 (relating to eligibility for firearms qualification) shall attain the following to obtain firearms qualification:

(1) Attend training scheduled by the Board, except for topics specifically waived by the Board under this chapter.

(2) Attain a passing score as established by the Board on each written examination.

(3) Demonstrate proficiency in each examination of practical skills, using the same firearm and the same or comparable ammunition that the constable will carry in the performance of duties during the upcoming year.

(b) A constable who fails to attain a passing score on a written examination or course-of-fire may undergo one retest of the applicable written examination or practical skill proficiency examination.

(c) A constable who fails to attain a passing score in a retest of a written examination or practical skill proficiency examination shall attend a second firearms qualification course in its entirety and complete it successfully to obtain a firearms qualification. The constable shall bear financial responsibility for the second firearms qualification course.

(d) A constable who fails two successive firearms qualification courses will not be afforded an opportunity to attend a third course.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.47 Attendance policies.

(a) Withdrawal. A constable who enrolls in a firearms qualification course may withdraw from the course without penalty upon timely notification to the school conducting the firearms qualification course. A notification shall be deemed timely if it is delivered to the director of the school or a designee no later than 7 calendar days prior to the start of classes. The school may assess a failing grade for all or part of the course if the constable fails to provide timely notice or to show good cause. A notification shall be deemed untimely if the notice is not received by the director of the school or a designee within 7 calendar days prior to the start of classes.

(b) Financial responsibility. If notification to withdraw is not given or is deemed untimely and good cause is not shown, and the constable wishes to attend another firearms qualification course in the same training year or in the next training year, the constable shall bear financial responsibility for the cost of the additional firearms qualification course. Payment must be received by the Commission within 2 weeks of class start date in the form of a certified check or money order.

(c) Additional attendance. A constable who successfully completes a firearms qualification course may not attend another firearms qualification course in the same training year.

(d) New weapons. If a constable obtains a new weapon after having successfully completed the annual firearms qualification, the constable may attend, without penalty, another firearms training class and complete the qualification course-of-fire using the new weapon. Attendance at another firearms course is subject to course availability.

(e) Advanced firearms failures. If a constable attends an advanced firearms qualification course and fails to successfully complete the qualification course-of-fire, the constable may attend, without penalty, a basic or annual firearms qualification course in its entirety.

(f) Weapons malfunctions. If a constable fails to successfully complete the qualification course-of-fire during a firearms qualification course because of a weapon malfunction, the constable may attend, without penalty, another firearms qualification course in its entirety, or may retake, without penalty, the portion of the firearms qualification course during and after which the malfunction occurred. Attendance at another firearms course is subject to course availability. A firearms instructor shall document weapons malfunctions.

The provisions of this § 431.47 amended under 44 Pa.C.S. § 7144(10).

The provisions of this § 431.47 amended March 7, 2014, effective March 8, 2014, 44 Pa.B. 1313. Immediately preceding text appears at serial page (296529).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.48 Lapse of qualification.

(a) A firearms qualification will lapse immediately if a constable no longer meets all of the eligibility criteria in § 431.42 (relating to eligibility for firearms qualification), or does not complete a firearms qualification course in the calendar year following the constable’s most recent completion of a firearms qualification course.

(b) The Board will reactivate a firearms certification that is lapsed for 3 years or more upon the constable’s successful completion of a basic firearms qualification course.

The provisions of this § 431.48 amended under 44 Pa.C.S. § 7144(10).

The provisions of this § 431.48 amended March 7, 2014, effective March 8, 2014, 44 Pa.B. 1313. Immediately preceding text appears at serial page (296529).

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.51 Board approval of school.

(a) The Board will approve one or more schools to conduct training under the act.

(b) Selections will be made from a list of schools solicited by the Commission through a competitive process.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.52 Scope of approval.

Board approval of a school shall be effective only for the duration of a contract executed between the Commission and the school.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.53 Board certification of instructors.

The Board will certify training instructors from persons who apply to the Board through a school and submit information as requested. Information shall include a detailed description of the formal training and actual experience in the specific topics for which certification is being sought, and a description of instructional experience.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

37 Pa. Code § 431.54 Scope and limitations of instructor certification.

A person certified by the Board as an instructor shall use the certification only for Board training in a school. Board certification shall be effective only if the instructor is actively teaching in a school the topics for which certification was granted.

History

Authority: The provisions of this Chapter 431 issued under 42 Pa.
Source: The provisions of this Chapter 431 adopted March 28, 2003, effective March 29, 2003, 33 Pa.

Chapter 451 Intermediate Punishment Programs

37 Pa. Code § 451.1 Purpose.

This chapter establishes procedures for counties to:

(1) Qualify for Prison Facilities Improvement Act funding through the Department of Corrections.

(2) Receive authority to sentence offenders to intermediate punishment programs in accordance with the Intermediate Punishment Sentencing Act.

(3) Apply for Federal or State funds administered by the Commission on Crime and Delinquency that are available to support intermediate punishment programs.

The provisions of this § 451.1 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160830).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.2 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Board—A county prison board, an intermediate punishment board, the Criminal Justice Coordinating Commission in counties of the first class, or another county entity which, with the approval of the county commissioners, performs the functions of an intermediate punishment board. Collateral contact—Communication by telephone with the offender or communication in a manner with the offender’s drug and alcohol counselor, employer, teacher or another person having regular contact with the offender. Community Services Program—Unpaid work performed for government, nonprofit and community-based organizations which provide services to meet human needs and have nondiscriminatory admission policies. Typical tasks include removing litter from highways and parks, beautification of public property or other public works projects, maintenance work in hospitals and nursing homes, and clerical work in public agencies. Commission—The Commission on Crime and Delinquency. County Intermediate Punishment Act—The act of December 19, 1990 (P. L. 799, No. 193) (61 P. S. § § 1101—1114) relating to the development, implementation and operation of intermediate punishment programs. Court—The trial judge exercising sentencing jurisdiction over offenders eligible for intermediate punishment. DUI—The offense of driving under the influence of alcohol or a controlled substance as defined in 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance). Electronic Monitoring Program—A sentence in which the offender is required to wear or carry an electronic device which transmits the offender’s location to a receiver maintained by criminal justice personnel, usually a probation office. The sentence is generally combined initially with either house arrest or intensive supervision. Eligible offender—

(i) A person convicted of an offense who does not demonstrate a present or past pattern of violent behavior and who would otherwise be sentenced to partial confinement under 42 Pa.C.S. § 9724 (relating to partial confinement) or total confinement under 42 Pa.C.S. § 9725 (relating to total confinement) in a county correctional facility.

(ii) The term does not include an offender convicted of:

(A) Murder.

(B) Voluntary manslaughter.

(D) Statutory rape.

(E) Aggravated assault.

(F) Robbery.

(G) Burglary of the first degree, as provided in 18 Pa.C.S. § 3502 (relating to burglary).

(H) Involuntary deviate sexual intercourse.

(I) Arson.

(J) Extortion accompanied by threats of violence.

(K) Assault by prisoner.

(L) Assault by life prisoner.

(M) Kidnapping.

(N) Aggravated indecent assault.

(O) Escape.

(P) Drug trafficking, as provided in 18 Pa.C.S. § 6314 (relating to sentencing and penalties for trafficking drugs to minors) or 18 Pa.C.S. § 7508 (relating to drug trafficking sentencing and penalties). House Arrest Program—A sentence which orders offenders confined to their own residences except for preapproved excursions for medical treatment, employment, performance of community service, and drug or alcohol, or both, treatment or counseling. House arrest may be combined, with electronic monitoring to detect violations. Individualized Services Program—A program which provides for the evaluation of offenders and the development of a specialized treatment regimen based on the evaluation. The regimen may include psychiatric, psychological and medical services, education, vocational training, drug and alcohol screening and counseling, individual and family counseling and transportation subsidies. Intensive Supervision Program—A sentence with increased supervision, surveillance and control; reduced caseloads for probation officers; increased number of contacts per month; and mandated activities for the offender, including work or vocational training, community service and drug and alcohol treatment. Intermediate Punishment Sentencing Act—The act of December 19, 1990 (P. L. 1196, No. 201), which amended 18 Pa.C.S. § § 2154.1 and 3502 and 42 Pa.C.S. § § 9721, 9729, 9763 and 9773. Plan—A County Intermediate Punishment Plan which describes proposed intermediate punishment programs and their interrelationships. Prison Facilities Improvement Act—The act of July 1, 1990 (P. L. 315, No. 71) (61 P. S. § § 390.101—390.1303) relating to the financing and construction of State and county correctional facilities improvements. Program—A plan component which provides for a residential or nonresidential penal resource available in a community for the sentencing of eligible offenders who would otherwise be sentenced to partial or total confinement. Residential rehabilitative center—A community-based facility to which offenders can be sentenced directly where a range of rehabilitative services is available, including drug and alcohol treatment and counseling.

The provisions of this § 451.2 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160830) to (160832).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.31 Funding qualification only.

Section 11(a) of the County Intermediate Punishment Act (61 P. S. § 1111(a)) requires a county to submit an Intermediate Punishment Plan to the Commission to qualify for funding under the Prison Facilities Improvement Act. While it is necessary only to comply with § 451.32 (relating to preparation of the Plan) when applying for funding, counties are strongly encouraged to develop plans which also incorporate the elements listed in § 451.33 (relating to areas to be addressed in development of a Plan).

The provisions of this § 451.31 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160832).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.32 Preparation of the Plan.

A Plan shall be prepared by a board, as provided in section 5 of the County Intermediate Punishment Act (61 P. S. § 1105). The Plan shall be executed by the president of the board and chairperson of the county commissioners or equivalent persons in appropriate counties, and submitted to the Commission.

(1) The Plan submitted shall at a minimum provide a description of the following:

(i) Training programs for the board and staff.

(ii) Public information and education programs, in addition to the annual report, which shall regularly advise the public of the success or failure of the Plan in the following particulars:

(A) Protecting society and promoting efficiency and economy in the delivery of corrections services.

(B) Promoting accountability of offenders to the community.

(C) Filling gaps in local correctional systems and addressing local needs through expansion of punishment and services available to the court.

(D) Providing opportunities for offenders who demonstrate special needs to receive services which enhance their ability to become contributing members of the community.

(iii) The designation of an entity or county government office with overall responsibility for supervision of the fiscal affairs of the program.

(iv) The use of existing community agencies and organizations whenever possible.

(v) A mechanism to advise the courts of the extent and availability of services and programs provided under the Plan.

(vi) The costs associated with the various programs; for example, costs of personnel and consultants, outside contractors, capital equipment, materials and supplies, other program expenses and sources of funding.

(vii) An agreement as to each county’s responsibilities for joint judicial districts.

(2) A county shall certify that it is in compliance with paragraph (1) by the signature of the president of the board and the chairperson of the county commissioners, or equivalent persons in applicable counties, in the manner and form prescribed from time to time by the Commission.

(3) The Plan submitted shall be reviewed by the staff of the Commission for compliance with paragraphs (1) and (2). Within 90 days, the Commission staff will do one of the following:

(i) Notify the board that the Plan has been accepted for submission and concurrently notify the Department of Corrections.

(ii) Notify the board of the deficiencies in the Plan and the amendments which shall be made or added to satisfy paragraphs (1) and (2).

The provisions of this § 451.32 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160832) to (160833).

This section cited in 37 Pa. Code § 451.31 (relating to funding qualification only); 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); and 37 Pa. Code § 451.35 (relating to project grant requests).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.33 Areas to be addressed in development of a Plan.

In developing a Plan, counties shall prepare the following:

(1) An assessment of available countywide correctional services and future needs.

(2) A review of current sentencing procedures and the impact these procedures have on county correctional resources.

(3) A review of current alternatives to pretrial detention and the potential these programs have for affecting on the jail population.

(4) A description of the existing resources in the county which can be used as intermediate punishments or support services to offenders sentenced to intermediate punishment.

(5) The formulation of policy statements targeted to the needs identified by the county and the impact these policies will have on the use of confinement and intermediate punishment.

(6) The development of goals and objectives which are aimed at effective utilization of existing and projected correctional resources.

(7) The development of an evaluation strategy which measures the qualitative and quantitative performances of all programs.

The provisions of this § 451.33 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160833) to (160834).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.34 Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only.

(a) A county submitting a Plan for both Prison Facilities Improvement Act qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only shall comply with § § 451.32, 451.51 and 451.52 (relating to preparation of the Plan; program elements; and sentencing restrictions) and the minimum program standards at § § 451.111—451.124 (relating to intermediate punishment program minimum standards). Counties are also strongly encouraged to develop Plans which incorporate the elements listed under § 451.33 (relating to areas to be addressed in development of a Plan).

(b) A county shall certify that it is in compliance with subsection (a) by the signature of the president of the board and the chairperson of the county commissioners, or equivalent persons in applicable counties, in the manner and form prescribed by the Commission.

(c) For each Program not included in § 451.51 or the minimum standards beginning at § 451.111 (relating to Alcohol and Drug Outpatient Treatment Program), a county shall submit a description in sufficient detail to enable the Commission to evaluate the same.

(d) The Plan submitted shall be reviewed by the staff of the Commission for compliance with subsections (a)—(c). Within 90 days, the Commission staff will do one of the following:

(1) Notify the board that the Plan has been approved for the purpose of Intermediate Punishment Sentencing Act authority and concurrently notify the Department of Corrections when Prison Facilities Improvement Act funding is at issue.

(2) Notify the board of the deficiencies in the Plan and the amendments which shall be made or added to satisfy subsections (a)—(c).

The provisions of this § 451.34 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160834).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.35 Project grant requests.

A county submitting a grant application to the Commission for funding for new or enhanced programs shall comply with § § 451.32 and 451.33 (relating to preparation of the Plan; and areas to be addressed in development of a Plan) in addition to the requirements in the Commission’s Applicant’s Manual, which governs the subgrant process.

The provisions of this § 451.35 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160835).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.51 Program elements.

(a) A program may be either residential or nonresidential and either custodial or noncustodial, or a combination thereof, and may include the following:

(1) House arrest.

(2) Electronic monitoring.

(3) House arrest combined with electronic monitoring.

(4) Probation with daily reporting.

(5) Intensive supervision.

(6) Full-time participation in a community public works project.

(7) Full- or part-time participation in a public or private community service project.

(8) Housing in a community residential treatment or residential rehabilitative center.

(b) These intermediate punishments may be combined with treatment in a detoxification center and may include additional restrictions as authorized in 42 Pa.C.S. § 9763(b) (relating to conditions of intermediate punishment).

(1) An inpatient drug and alcohol program based on objective assessment that an offender is dependent on alcohol or drugs.

(2) Residential rehabilitative center services.

(3) Individualized treatment services.

(d) In addition to Programs set forth in subsections (a)—(c), partial confinement sentences, such as work release, work camps and halfway facilities, may be developed as intermediate punishments.

The provisions of this § 451.51 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160835).

Constructive Custody

Where a parolee participates in a residential rehabilitation program in a locked facility with restriction of movement, and where participation in the program is a condition of parole, the time spent in the program might be considered akin to imprisonment. Meehan v. Board of Probation and Parole, 783 A.2d 362 (Pa. Cmwlth. 2001).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.52 Sentencing restrictions.

(a) Only eligible offenders may be sentenced to intermediate punishment.

(b) A person convicted of DUI is eligible for sentencing to only the following types of programs, if the Court elects to sentence the offender to intermediate punishment:

(1) A residential inpatient drug and alcohol program or a residential rehabilitative center program.

(2) House arrest and electronic monitoring combined with drug and alcohol treatment.

The provisions of this § 451.52 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160836).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.101 Scope.

(a) If the minimum standards incorporate the requirements of another State agency as reflected in their regulations, the latter will govern.

(b) In instances where reference is made to minimum standards for the housing of offenders, efforts should be made to establish separate facilities for eligible female offenders.

The provisions of this § 451.101 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160836).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.111 Alcohol and Drug Outpatient Treatment Program.

(a) The board shall approve and implement written policies and procedures for the Alcohol and Drug Outpatient Treatment Program. The board shall docu-ment that the services are provided by a current licensee of the Department of Health, Office of Drug and Alcohol Programs (ODAP) for outpatient activities. Chapter 709, Subchapter I (relating to standards for outpatient activities) of Title 28 of the Pennsylvania Code is incorporated by reference and is applicable to alcohol and drug outpatient treatment programs in free-standing facilities. Chapter 709, Subchapter C (relating to general standards for freestanding treatment activities) of Title 28 of the Pennsylvania Code is incorporated by reference and is applicable to drug and alcohol outpatient programs and residential inpatient nonhospital drug and alcohol programs. Chapter 711, Subchapter H (relating to standards for outpatient activities) of Title 28 of the Pennsylvania Code is incorporated by reference and is applicable to outpatient drug and alcohol treatment provided by treatment centers which are part of a health care facility.

(b) The Alcohol and Drug Outpatient Treatment Program policies and procedures shall include the following elements:

(1) A drug testing capability.

(2) Diagnostic assessment of an offender’s dependency on alcohol or other drugs by the Office of Drug and Alcohol Programs or a designee, a county authority on drugs and alcohol or a designee or clinical personnel of a facility licensed by the Office of Drug and Alcohol Programs. Counties are encouraged, in addition, to conduct full clinical diagnostic evaluations.

(3) Provisions for treatment under 75 Pa.C.S. § 1548(b) (relating to requirements for driving under influence offenders).

(4) A monitoring component to ensure offenders’ compliance with the conditions of the Program.

(5) Policy and procedure for responding to major and minor violations of Program conditions.

The provisions of this § 451.111 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160836) to (160837).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 37 Pa. Code § 451.116 (relating to Halfway Facility or Residential Rehabilitative Center Program); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.112 Community Service Program.

(a) The board shall approve and implement written policies and procedures for community service.

(b) The Community Service Program policies and procedures shall include the following elements:

(1) A drug testing capability for appropriate offenders. Those counties which choose to contract out the coordination of a Community Service Program to a noncourt agency, such as the Red Cross or United Way, shall implement procedures to ensure the proper conducting of the drug testing.

(2) Equitable and consistent assignment of community service hours within a standard range.

(3) Procedures for the documented onsite supervision of each offender performing community service.

(4) The establishment of an annual reporting system to collect individual offender and aggregate program data on community service ordered and community service performed.

(5) The anticipated length of offenders’ participation in the Program.

(6) A monitoring component to ensure offenders’ compliance with the conditions of the Program.

(7) Policy and procedure for responding to major and minor violations of Program conditions.

The provisions of this § 451.112 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160837) to (160838).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act Funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.113 Drug Testing Program.

(a) The board will approve and implement written policies and procedures for the Drug Testing Program.

(b) The Drug Testing Program policies and procedures shall include the following elements:

(1) The purposes of testing, that is, whether it is for rehabilitative or treatment purposes, for the protection of the community, for the use of the Court in sentencing or for the compilation of statistics.

(2) The manner of offender selection, that is, whether Court-ordered, randomly selected or applicable to eligible offenders.

(3) The frequency of testing.

(4) The chain-of-custody procedures.

(5) Confirmation procedures for positive drug tests through the use of a more sensitive procedure than used in initial screening and the rationale for use of the particular method selected.

(6) A description of drug testing methodologies.

(7) A policy regarding reporting and use of testing results.

(8) A confidentiality policy.

(9) Evaluation procedures.

(10) A monitoring component to ensure offenders’ compliance with the conditions of the Drug Testing Program.

(11) Policy and procedure for responding to major and minor violations of Drug Testing Program conditions.

The provisions of this § 451.113 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160838) to (160839).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.114 Electronic Monitoring Program.

(a) The board shall approve and implement written policies and procedures for the Electronic Monitoring Program.

(b) The Electronic Monitoring Program policies and procedures shall include the following elements:

(1) A drug testing capability for appropriate offenders.

(2) The timely detection of violations.

(3) The maintenance of a 24-hour-per-day response to detect violations.

(4) A monitoring component to ensure offenders’ compliance with the conditions of the Electronic Monitoring Program.

(5) Policy and procedure for responding to major and minor violations of Electronic Monitoring Program conditions.

The provisions of this § 451.114 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160839).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 37 Pa. Code § 451.117 (relating to House Arrest Program); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.115 Fines Program.

(a) The board will approve and implement written policies and procedures for the Fines Program.

(b) The Fines Program policies and procedures shall include the following elements:

(1) The establishment of administrative standards regarding the time and amount of payment, the scheduling of installment payments and the monitoring thereof. Consideration should be given to shifting routine payment duties to nonprofessional staff.

(2) The communication of the importance of the collection effort to managers and supervisors.

(3) The establishment of an annual reporting system to collect individual offender and aggregate program data on fines ordered and fines collected.

(4) A monitoring component to ensure offenders’ compliance with the conditions of the Fines Program.

(5) Policy and procedure for responding to major and minor violations of Fines Program conditions.

The provisions of this § 451.115 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160839) to (160840).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.116 Halfway Facility or Residential Rehabilitative Center Program.

(a) The board will approve and implement written policies and procedures for the Halfway Facility or Residential Rehabilitative Center Program. Halfway facilities may be utilized for the reintegration of offenders into the community following confinement or as an alternative form of partial confinement in lieu of traditional confinement. Drug and alcohol treatment services provided to offenders in either halfway facilities or residential rehabilitative centers shall meet the requirements of § 451.111(a) (relating to Alcohol and Drug Outpatient Treatment Program).

(b) The Halfway Facilities Program policies and procedures shall include the following elements:

(1) A drug testing capability for appropriate offenders.

(2) A requirement that the needs of the offender, such as literacy, education, employment, curfews, AA/NA participation, outpatient treatment for alcohol, drugs or MH/MR, and job development, be evaluated and addressed.

(3) The anticipated length of offenders’ participation in the Halfway Facilities Program.

(4) A requirement that Halfway Facilities Program staff responsible for supervising offenders sentenced to a halfway facility or residential rehabilitation center make weekly, face-to-face contact with the staff thereof to discuss intermediate punishment offender residents.

(5) A requirement that Halfway Facilities Program staff responsible for supervising offenders sentenced to a halfway facility or residential rehabilitative center make a minimum of four face-to-face contacts per month.

(6) A monitoring component to ensure offenders’ compliance with the conditions of the Halfway Facilities Program.

(7) Policy and procedure for responding to major and minor violations of Halfway Facilities Program conditions.

The provisions of this § 451.116 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160840) to (160841).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.117 House Arrest Program.

(a) The board will approve and implement written policies and procedures for the House Arrest Program.

(b) The House Arrest Program policies and procedures shall include the following elements:

(1) A drug testing capability for appropriate offenders.

(2) A requirement that offenders be employed or actively seeking employment or enrolled in educational program/vocational training or participating in community service, unless an offender is physically or mentally incapable of performing the same, and have fixed residences.

(3) A monitoring component which defines the frequency of face-to-face and collateral contacts to ensure offenders’ compliance with the conditions of the House Arrest Program.

(4) Limitation of the caseloads of House Arrest Program supervising officers consistent with the supervisory plan described in paragraph (3).

(5) A requirement that a minimum of two face-to-face and three collateral contacts be made by the supervising officers each month.

(6) Policy and procedure for responding to major and minor violations of House Arrest Program conditions.

(c) If utilized in conjunction with the House Arrest Program, electronic monitoring shall meet the requirements of § 451.114 (relating to Electronic Monitoring Program).

(d) A House Arrest Program for eligible DUI offenders shall be combined with an Electronic Monitoring Program in accordance with § 451.52(b)(2) (relating to sentencing restrictions).

The provisions of this § 451.117 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160841).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.118 Individualized Services Program.

(a) The board shall approve and implement written policies and procedures for the Individualized Services Program. The board shall document, when appropriate, that the services provided are in compliance with applicable State and local laws and regulations.

(b) The Individualized Services Program policies and procedures shall include the following elements:

(1) A drug testing capability for appropriate offenders.

(2) Licensure by the Department of Health’s Office of Drug and Alcohol Programs, when applicable.

(3) Establishment of services based upon offenders’ needs and available community resources.

(4) Efforts to recruit, screen and select service providers.

(5) Guidelines to monitor the purchase of offender services.

(6) A monitoring component to ensure offenders’ compliance with the conditions of the Individualized Services Program.

(7) Policy and procedure for responding to major and minor violations of Individualized Services Program conditions.

The provisions of this § 451.118 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160841) to (160842).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.119 Intensive Supervision Program.

(a) The board will approve and implement written policies and procedures for the Intensive Supervision Program.

(b) The Intensive Supervision Program policies and procedures shall include the following elements:

(1) A drug testing capability for appropriate offenders.

(2) A monitoring component which defines the frequency and method of face-to-face and collateral contacts to ensure offenders’ compliance with the conditions of the Intensive Supervision Program.

(3) Limitation of the caseloads of Intensive Supervision Program supervising officers consistent with the supervisory component described in paragraph (2).

(4) A requirement that a minimum of eight to twelve face-to-face and four to six collateral contacts be made by the supervising officers each month.

(5) A requirement that face-to-face and telephone contacts with offenders be made at all hours, 7 days per week.

(6) A requirement that there be additional qualifications for participating offenders, such as work or vocational training, community service, drug or alcohol treatment and, in appropriate cases, a curfew.

(7) Policy and procedure for responding to major and minor violations of Intensive Supervision Program conditions.

The provisions of this § 451.119 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160842).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.120 Probation with Daily Reporting Program.

(a) The board shall approve and implement written policies and procedures for the Probation with Daily Reporting Program.

(b) The Probation with Daily Reporting Program policies and procedures shall include the following elements:

(1) A drug testing capability for appropriate offenders.

(2) Requirements that the offenders:

(i) Report each day to a location designated by the board.

(ii) Provide a daily schedule of planned activities.

(iii) Participate in designated programs, services and activities.

(iv) Report by phone to the designated location throughout the day.

(3) A requirement that the Daily Reporting Program staff make random phone checks both during the day and at home following curfew, if one is imposed.

(4) A monitoring component to ensure the offenders’ compliance with the conditions of the Daily Reporting Program.

(5) Policy and procedure for response to major and minor violations of Daily Reporting Program conditions.

The provisions of this § 451.120 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160842) to (160843).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.121 Residential Inpatient Drug and Alcohol Program.

(a) The board shall approve and implement written policies and procedures for the Residental Inpatient Drug and Alcohol Program. The board shall document that the services are provided by a licensee of the Department of Health, Office of Drug and Alcohol Programs (ODAP) for residential inpatient drug and alcohol treatment. Chapter 709, Subchapter E (relating to standards for inpatient nonhospital activities—residential treatment and rehabilitation) of Title 28 of the Pennsylvania Code is incorporated by reference and is applicable to nonhospital residential drug and alcohol treatment services. Chapter 709, Subchapter C (relating to general standards for freestanding treatment activities) of Title 28 of the Pennsylvania Code is incorporated by reference and is applicable to nonhospital residential drug and alcohol treatment services. Chapter 711, Subchapter D (relating to standards for inpatient nonhospital activities—residential treatment and rehabilitation) of Title 28 of the Pennsylvania Code is incorporated by reference and is applicable to residential nonhospital drug and alcohol treatment services provided by a treatment center which is part of a health care facility. The board shall also document that facilities to which offenders are sentenced for residential treatment are in compliance with other State and local laws and regulations.

(b) The Residential Inpatient Drug and Alcohol Program policies and procedures shall include the following elements:

(1) A drug testing capability.

(2) Establishment of services based on an assessment of the offenders’ needs and available community resources.

(3) Establishment of aftercare and followup services involving sustained and frequent interaction with recovering individuals who have progressed from the intensive or primary phase of treatment.

(4) Efforts to recruit, screen and select service providers.

(5) Guidelines to monitor the purchases of services for offenders.

(6) A monitoring component to ensure the offenders’ compliance with the conditions of the Residential Inpatient Drug and Alcohol Program.

(7) Policy and procedure for responding to major and minor violations of Residential Inpatient Drug and Alcohol Program conditions.

The provisions of this § 451.121 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160843) to (160844).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.122 Victim Restitution Program.

(a) The board shall approve and implement written policies and procedures for the Victim Restitution Program.

(b) The Victim Restitution Program policies and procedures shall include the following elements:

(1) The requirement that an offender pay a reasonable amount of restitution as determined by the court.

(2) The requirement that the amount of restitution be fixed by the court.

(3) The development, whenever feasible, of private sector or subsidized employment, or both, to enable indigent offenders to pay restitution.

(4) The development of a strategy to encourage payment of restitution.

(5) The establishment of a reporting system to collect individual offender and aggregate program data on restitution ordered and restitution collected.

(6) A drug testing capability for appropriate offenders.

(7) A monitoring component to ensure the offender’s compliance with conditions of the Victim Restitution Program.

(8) Policy and procedure for responding to major and minor violations of Victim Restitution Program conditions.

The provisions of this § 451.122 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160844).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.123 Work Camp Program.

(a) The board will approve and implement written policies and procedures for the Work Camp Program.

(b) The Work Camp Program policies and procedures shall include the following elements:

(1) A drug testing capability for appropriate offenders.

(2) A requirement that offenders be housed separately from the general prison population.

(3) The anticipated length of offenders’ participation in the Work Camp Program.

(4) An aftercare program that will be part of postrelease supervision.

(5) The training, treatment and education given during confinement to promote the development of new behavior.

(6) An inmate safety program.

(7) Liability issues involving work assignments.

(8) A monitoring component to ensure offenders’ compliance with the conditions of the Work Camp Program.

(9) Policy and procedure for responding to major and minor violations of Work Camp Program conditions.

The provisions of this § 451.123 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial page (160845).

This section cited in 37 Pa. Code § 451.34 (relating to Prison Facilities Improvement Act funding qualification and Intermediate Punishment Sentencing Act authority or Intermediate Punishment Sentencing Act authority only); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); and 204 Pa. Code § 303a.1 (relating to preliminary provisions).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

37 Pa. Code § 451.124 Work Release Program.

(a) The board will approve and implement written policies and procedures for the Work Release Program.

(b) The Work Release Program policies and procedures shall include the following elements:

(1) The specific criteria for eligibility for sentencing to work release.

(2) A drug testing capability for appropriate offenders.

(3) A mandated number of visits to or contacts with the work place by Work Release Program staff.

(4) Procedures for notifying employers of their responsibilities to their employed offenders.

(5) Procedures for notifying employers of the status of their employed offenders.

(6) The length of offenders’ participation in the Work Release Program.

(7) The mechanics of accounting for and auditing of offender earnings.

(8) A monitoring component to ensure offenders’ compliance with the conditions of the Work Release Program.

(9) Policy and procedure for responding to major and minor violations of Work Release Program conditions.

The provisions of this § 451.124 adopted September 27, 1991, effective September 28, 1991, 21 Pa.B. 4406; amended December 25, 1992, effective December 26, 1992, 22 Pa.B. 6112. Immediately preceding text appears at serial pages (160845) to (160846).

History

Authority: The provisions of this Chapter 451 issued under section 7(b) of the County Intermediate Punishment Act (61 P.
Source: The provisions of this Chapter 451 adopted September 27, 1991, effective September 28, 1991, 21 Pa.

Chapter 471 First Chance Trust Fund—Statement of Policy

37 Pa. Code § 471.101 Purpose.

This chapter is adopted to administer the Fund.

The provisions of this § 471.101 amended under section 1751-A.1 of The Fiscal Code (72 P.S. § 1751-A.1).

The provisions of this § 471.101 amended January 6, 2023, effective January 7, 2023, 53 Pa.B. 20; amended February 6, 2026, effective February 7, 2026, 56 Pa.B. 797. Immediately preceding text appears at serial page (413049).

History

Authority: The provisions of this Chapter 471 issued under section 12.
Source: The provisions of this Chapter 471 adopted January 26, 2018, effective January 27, 2018, 48 Pa.

37 Pa. Code § 471.102 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Child—An individual under 18 years of age who resides in this Commonwealth. Department—The Department of Corrections of the Commonwealth. Fund—The First Chance Trust Fund established under section 1753-A.1 of The Fiscal Code (72 P.S. § 1753-A.1). Program—An evidence-based or outcome-based program for children who meet the eligibility requirements determined by the Commission aimed at reducing risk factors and producing positive outcomes, which may include mentoring, individual counseling and therapeutic services, and family-strengthening activities. Scholarship program—A program which assists students in obtaining education or other vocational training that meets all of the following criteria:

(i) The students reside within this Commonwealth and attend an educational or vocational training institution located in this Commonwealth.

(ii) The students are 24 years of age or younger.

(iii) The students meet other eligibility requirements as determined by the Commission in accordance with section 1753-A.1 of The Fiscal Code.

The provisions of this § 471.102 amended under section 1751-A.1 of The Fiscal Code (72 P.S. § 1751-A.1).

The provisions of this § 471.102 amended January 6, 2023, effective January 7, 2023, 53 Pa.B. 20; amended February 6, 2026, effective February 7, 2026, 56 Pa.B. 797. Immediately preceding text appears at serial pages (413049) to (413050).

History

Authority: The provisions of this Chapter 471 issued under section 12.
Source: The provisions of this Chapter 471 adopted January 26, 2018, effective January 27, 2018, 48 Pa.

37 Pa. Code § 471.103 Risk factors.

The Commission is required under Subarticle F of Article XVII-A.1 of The Fiscal Code (72 P.S. § § 1751-A.1—1755-A.1) to identify risk factors that lead to criminal behavior for children and students in regions of this Commonwealth which have statistically higher high school dropout rates, high incarceration rates or are in areas of high crime, which shall be used by the Commission in determining eligibility for allocation of funds. Research has identified risk factors that are known to predict increased likelihood of delinquency and violent behavior among youth. The Risk and Protective Framework, which is utilized to implement the Communities-That-Care model, and the Pennsylvania Youth Survey, identify these risk factors as follows:

• Community

o Low neighborhood attachment

o Perceived availability of drugs (risk factor for violence only)

o Perceived availability of handguns

o Community laws and norms favorable toward drug use, firearms and crime

• Family

o Family history of antisocial behavior

o Poor family management

o Family conflict

o Parental attitudes favorable toward drugs and antisocial behavior

• School

o Academic failure

o Low commitment toward school

• Peer and Individual

o Rebelliousness

o Gang involvement

o Perceived risk of drug use

o Attitudes favorable toward antisocial behavior and drug use

o Friend’s use of drugs

o Sensation seeking

o Rewards for antisocial behavior

o Interaction with antisocial peers

o Depressive symptoms

Source: Pennsylvania Youth Survey (PAYS) State Report 2023.

The provisions of this § 471.103 amended under section 1751-A.1 of The Fiscal Code (72 P.S. § 1751-A.1).

The provisions of this § 471.103 amended January 6, 2023, effective January 7, 2023, 53 Pa.B. 20; amended February 6, 2026, effective February 7, 2026, 56 Pa.B. 797. Immediately preceding text appears at serial pages (413050) and (419815).

History

Authority: The provisions of this Chapter 471 issued under section 12.
Source: The provisions of this Chapter 471 adopted January 26, 2018, effective January 27, 2018, 48 Pa.

37 Pa. Code § 471.104 Maintenance and use of the Fund.

(a) The Commission will allocate revenues from the Fund for the following purposes:

(1) Establishing and operating a scholarship program for students in those regions of this Commonwealth which have statistically higher high school dropout rates, incarceration rates or high crime rates as determined by the Commission.

(2) Providing grants to programs that benefit children in those regions of this Commonwealth which have statistically higher high school dropout rates, incarceration rates or high crime rates as determined by the Commission.

(b) Students and programs that benefit children in those regions of this Commonwealth which have statistically higher high school dropout rates, incarceration rates or high crime rates as determined by the Commission shall be eligible for participation in the grant and scholarship programs as provided for in this chapter. The Commission will utilize data provided by the Department of Education to determine regions of this Commonwealth having statistically higher high school dropout rates, data provided by the Department to determine regions of this Commonwealth having statistically higher incarceration rates and data provided by the Pennsylvania State Police to determine regions of this Commonwealth having statistically higher crime rates.

(c) Members of the Juvenile Justice and Delinquency Prevention Committee, the Victims Services Advisory Committee, the School Safety and Security Committee, and the Commission shall establish the application process for the scholarship program and grants to programs. Recommendations to the Commission regarding scholarship and grant awards shall be made by this workgroup.

(d) Within 15 days of the last day of each month, the Commission and the Office of the Budget, in consultation with the State Treasurer, will compute the total amount of revenue from all sources received by the Commonwealth during the immediately preceding month which will be deposited into the Fund by the State Treasurer in accordance with this chapter.

The provisions of this § 471.104 amended under section 1751-A.1 of The Fiscal Code (72 P.S. § 1751-A.1).

The provisions of this § 471.104 amended January 6, 2023, effective January 7, 2023, 53 Pa.B. 20; amended February 6, 2026, effective February 7, 2026, 56 Pa.B. 797. Immediately preceding text appears at serial pages (419815) to (419816).

History

Authority: The provisions of this Chapter 471 issued under section 12.
Source: The provisions of this Chapter 471 adopted January 26, 2018, effective January 27, 2018, 48 Pa.

Part VII Precious Metals

Chapter 501 Purchase and Sale of Precious Metals

37 Pa. Code § 501.1 Scope.

This chapter prescribes the information that county sheriffs shall obtain from persons or businesses seeking to be licensed as precious metals dealers, the information and verification practices the dealers shall carry out in recording precious metals transactions, the fee for an annual license as a precious metals dealer, the provisions for posting prices and the standards for scales and weighing devices. This chapter implements parts of the act so as to render the act enforceable, and parties administering or conducting business under the act shall familiarize themselves with it. The act does not supersede or preclude the adoption of a municipal ordinance applicable to dealers in precious metals if the municipal ordinance meets the minimum requirements of the act.

37 Pa. Code § 501.2 Definitions.

(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The act of February 24, 1984 (P. L. 92, No. 17) (73 P. S. § § 1931—1942). Dealer in precious metals—An individual, partnership, association, corporation or business entity, who or which purchases precious metals from the general public for resale or refining or an individual who acts as agent for the individual, partnership, association, corporation or business entity for the purchases. The term does not include financial institutions licensed under Federal or State banking laws, the purchaser of precious metals who purchases from a seller seeking a trade-in or allowance, the manufacturers of jewelry or of other items composed, in whole or in part, of gold, silver or platinum and the purchaser of precious metals for his own use or ownership and not for resale or refining. Precious metals—Items containing or being of gold, silver or platinum, including, but not limited to, jewelry and silver services. The term does not include coins, ingots, bullion or photographic film or articles containing less than 5% of gold, silver or platinum by weight.

(b) Other words and terms used in this chapter have the meanings contained in section 1 of the act (73 P. S. § 1931).

37 Pa. Code § 501.3 License applications.

An application for an annual license as a dealer in precious metals shall be submitted to the sheriff of each county in which the dealer purchases precious metals. The dealer applicant shall provide all of the information required by § 501.4 (relating to information to be provided in license applications) in a complete, accurate and legible manner on a form to be supplied by the county sheriff. Forms that satisfy the informational requirements of § 501.4 are deemed approved by the Office of Attorney General.

37 Pa. Code § 501.4 Information to be provided in license applications.

(a) Individuals. Individuals shall provide the following information:

(1) Full name, any previous names and any aliases.

(2) Current address and telephone number and complete address of all residences during the preceding 5 years.

(3) Age.

(4) Sex.

(5) Name, address and telephone number of the applicant’s employer, if any.

(6) Address and telephone number of the applicant’s place of business.

(7) Name under which the applicant’s business will be operated and, if the business is to be conducted under an assumed or fictitious name, the date of registration of the fictitious name.

(8) Whether the applicant has been indicted or convicted of a crime in this Commonwealth or elsewhere.

(9) Whether the applicant has ever had an application for a precious metals dealer license rejected or has ever had a precious metals dealer license suspended, cancelled or revoked by a Federal, State or municipal authority.

(b) Business combinations. Business combinations shall provide the following information:

(1) Name under which the business will be operated, and, if the business is to be conducted under an assumed or fictitious name, the date of registration of the fictitious name.

(2) Address and telephone number of the applicant’s place of business.

(3) For Commonwealth corporations, the date of incorporation and for foreign corporations, the date of registration in the Commonwealth and the name of the state in which they are incorporated and the date of incorporation.

(4) For all business partners or for all corporate officers and all members of the corporation’s board of directors, the information required of individuals in subsection (a)(1)—(4).

(5) For the applicant business organization and for each of its partners or officers, the information required of individuals in subsection (a)(8) and (9).

(6) The complete name, address and telephone number of an office manager.

This section cited in 37 Pa. Code § 501.3 (relating to license applications).

37 Pa. Code § 501.5 License fee.

The annual license fee is $50 payable at the time application is made to the county treasurer to be paid in a form satisfactory to the county treasurer.

37 Pa. Code § 501.6 Records of transactions.

The dealer shall completely, accurately and legibly record every transaction on a form provided by and prepared by the dealer. Forms that meet all of the requirements for information as set forth in this section are deemed approved by the Office of Attorney General. The record of every transaction shall include:

(1) The name, address, age, sex, race and driver’s license number, if any, of the seller shall be entered.

(2) The identity of the seller shall be established by requiring the seller to produce an identification issued by a governmental agency with a photo of the seller thereon, if available, and at least one other corroborating means of identification. Otherwise, identification sufficient to reliably establish the person’s true identity shall be required.

(3) The seller shall be required to sign the form on which is recorded the information required by this section.

(4) An accurate description of the property purchased shall include all names, initials, serial numbers or other identifying marks or monograms on each item purchased.

(5) The time and date of the transaction shall be recorded at the time of the transaction. Records of transactions shall be maintained by the dealer in precious metals for a period of 1 year and shall be available for inspection by any law enforcement official of the Federal Government, the Commonwealth or its municipalities. A copy of every record of transaction shall be delivered or mailed to the district attorney of the county in which a purchase of precious metals is made by the close of the next working day after the day on which the metal is purchased. The district attorney may authorize records to be delivered or mailed to the police department of the municipality in which the precious metal is purchased in lieu of delivery or mailing to the district attorney. Each item of precious metal purchased by a dealer in precious metals shall be retained in unaltered condition for 5 full working days after report of its purchase has been filed with the proper district attorney or his designee.

This section cited in 37 Pa. Code § 501.8 (relating to purchase from minors).

37 Pa. Code § 501.7 Time and manner of keeping records by district attorneys and police departments.

The record of every transaction received by a district attorney or police department shall be kept in a safe and secure place at an appropriate official location for 24 months. Records of dealer transactions may be made available to law enforcement officials, other governmental entities and persons who, in the opinion of the custodian of the dealer transaction record, should be permitted access, such as an insurance company.

37 Pa. Code § 501.8 Purchases from minors.

When a purchase is made from a minor, the written authority of the parent, guardian or person in loco parentis authorizing the sale shall be attached and maintained with the record of transaction described in § 501.6 (relating to records of transactions).

37 Pa. Code § 501.9 Posting of prices.

(a) When a weighing device is used to purchase precious metals, there shall be posted, on a conspicuous sign located close to the weighing device, a statement of prices for the precious metals being purchased as a result of the weight determination.

(b) The statement of prices shall include, but not be limited to, the following in terms of the price per troy ounce:

(1) The price for 24 karat, 18 karat, 14 karat and 10 karat gold.

(2) The price for pure silver and sterling silver.

(3) The price for platinum.

(c) When the weight determination is expressed in metric units, a conversion chart to troy ounces shall be prominently displayed so as to facilitate price comparison. The metric equivalent of a troy ounce is 31.10348 grams.

37 Pa. Code § 501.10 Scales and weighing devices.

(a) A weighing device used in the purchase of precious metals shall be positioned in such a manner that its indications may be accurately read and the weighing operation observed from a position which may be reasonably assumed by the buyer and the seller. A verbal statement of the result of the weighing shall be made by the person operating the device and recorded on the dealer’s record of transaction.

(b) The minimum graduation on the weighing device used for the purchase of precious metals shall not exceed 0.1 gram or 0.1 pennyweight for weighing devices whose capacities are 3,000 grams or 100 troy ounces and less. The minimum weight load permitted to be determined on a weighing device shall not be less than the equivalent of 25 times the smallest graduation on the weighing device.

37 Pa. Code § 501.11 Penalties.

(a) The purchase of an item of precious metal by an unlicensed dealer in precious metals shall constitute a violation of the act, and the dealer shall be guilty of a misdemeanor of the third degree.

(b) A licensed dealer in precious metals who violates the act shall be guilty of a misdemeanor of the third degree.

(c) An individual, partnership, association, corporation or business entity violating the act shall, upon conviction, in addition to the penalties set forth in subsections (a) and (b), suffer immediate revocation of an existing license issued under the act and be ineligible to apply for a dealer’s license under the act for 5 years thereafter.

Part VIII Automated Criminal Justice Information Systems

Chapter 601 Automated Criminal Justice Information Systems— Statement of Policy

37 Pa. Code § 601.1 Background.

(a) Amendments to the act permit criminal justice agencies to place intelligence, investigative and treatment information in their automated data processing systems subject to certain restrictions and requirements.

(b) The Office of Attorney General has the duty to adopt and issue guidelines for criminal justice agencies to follow in implementing the amendments. This chapter shall be in effect until regulations are promulgated under the act.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.2 Scope.

This chapter is applicable to criminal justice agencies, as defined at 18 Pa.C.S. § 9102 (relating to definitions), which establish and operate an automated criminal justice information system and collect protected information in or disseminate protected information from that system.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.3 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The Criminal History Record Information Act, 18 Pa.C.S. § § 9101—9183. Automated system—A computer or other internally programmed device capable of automatically accepting and processing data, including computer programs, data communication links, input and output data and data storage devices. Central repository—The central location for the collection, compilation, maintenance and dissemination of criminal history record information by the State Police. Criminal history record information—Information collected by criminal justice agencies concerning individuals, and arising from the initiation of a criminal proceeding, consisting of identifiable descriptions, dates and notations of arrests, indictments, informations or other formal criminal charges and dispositions arising therefrom. The term does not include intelligence information, investigative information or treatment information, including medical and psychological information, or information and records specified in 18 Pa.C.S. § 9104 (relating to scope). Criminal justice agency—A court, including the minor judiciary, with criminal jurisdiction or another governmental agency, or subunit thereof, created by statute or by the State or Federal Constitutions, specifically authorized to perform as its principal function the administration of criminal justice, and which allocates a substantial portion of its annual budget to that function. The term includes organized State and municipal police departments; local detention facilities; county, regional and State correctional facilities; probation agencies; district or prosecuting attorneys; parole boards; pardon boards and agencies or subunits thereof, as are declared by the Attorney General to be criminal justice agencies as determined by a review of applicable statutes and the State and Federal constitutions, or both. Intelligence information—Information concerning the habits, practices, characteristics, possessions, associations or financial status of an individual compiled in an effort to anticipate, prevent, monitor, investigate or prosecute criminal activity. Notwithstanding the definition of ‘‘treatment information’’ the term may include information on prescribing, dispensing, selling, obtaining or using a controlled substance as defined in The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. § § 780-101—780-144). Investigative information—Information assembled as a result of the performance of an inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing and may include modus operandi information. Protected information—Intelligence, investigative or treatment information. Repository—A location in which criminal history record information is collected, compiled, maintained and disseminated by a criminal justice agency. Treatment information—Information concerning medical, psychiatric, psychological or other rehabilitative treatment provided, suggested or prescribed for an individual charged with or convicted of a crime.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.4 Duties of criminal justice agencies.

A criminal justice agency may place intelligence information in and disseminate intelligence information from an automated system only if:

(1) The agency has adopted policies and procedures consistent with this chapter and the act.

(2) The head of the agency or a designee has designated an intelligence officer to act for the agency as set forth in this chapter.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.5 Collection of protected information in automated systems.

(a) Intelligence information. A criminal justice agency may collect intelligence information in an automated system only if the following conditions are met:

(1) The intelligence information concerns an individual or group which the criminal justice agency reasonably suspects of criminal activity.

(2) The intelligence information is related to criminal activity that would give rise to prosecution for a State offense graded a misdemeanor or felony or for a Federal offense for which the penalty is imprisonment for more than 1 year.

(3) The intelligence information is categorized based upon subject matter.

(4) The intelligence information does not concern participation in a political, religious or social organization, or in the organization or support of a nonviolent demonstration, assembly, protest, rally or similar form of public speech, unless there is a reasonable suspicion that the participation by the subject of the information is related to criminal activity or prison rule violation.

(5) The intelligence information is not collected in violation of State law.

(b) Investigative and treatment information. Investigative information and treatment information may be placed within an automated or electronic criminal justice information system.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.6 Security.

(a) Security requirements. Every criminal justice agency collecting, storing or disseminating intelligence information, investigative information or treatment information shall insure the confidentiality and security of the information by providing that, wherever the information is maintained, the criminal justice agency shall:

(1) Institute procedures to reasonably protect a repository from theft, fire, sabotage, flood, wind or other natural or manmade disasters.

(2) Select, supervise and train personnel authorized to have access to intelligence information, investigative information or treatment information.

(3) Insure that the equipment used for maintaining intelligence information, investigative information or treatment information is dedicated solely to purposes related to the administration of criminal justice. If the equipment is not used solely for the administration of criminal justice, the criminal justice agency is accorded equal management participation in computer operations used to maintain the intelligence information, investigative information or treatment information.

(4) Adopt administrative, technical and physical safeguards, including audit trails, to insure against unauthorized access and against intentional or unintentional damages.

(5) Label information to indicate levels of sensitivity and levels of confidence in the information.

(b) Special requirement for protected information. Access to the intelligence, investigative or treatment information contained in an automated criminal justice system is restricted to the authorized employes of the criminal justice agency and may not be accessed by other individuals inside or outside of the agency except by the process of dissemination.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.7 Dissemination of information.

(a) Intelligence information. A criminal justice agency may disseminate intelligence information only if the following conditions are met:

(1) An authorized intelligence officer determines that the information to be disseminated is reliable.

(2) The information is requested in connection with the duties of the criminal justice agency requesting the information, and the request for information is based upon a name, fingerprints, modus operandi, genetic typing, voice print or other identifying characteristic.

(3) The criminal justice agency requesting the information certifies to the disseminating agency that it has adopted policies and procedures consistent with this chapter and the act.

(b) Corrections to information. If an intelligence officer of a disseminating agency is notified that intelligence information which has been previously disseminated to another criminal justice agency is materially misleading, obsolete or otherwise unreliable, the information shall be corrected and the recipient agency notified of the change within a reasonable period of time.

(c) Investigative or treatment information. A criminal justice agency may disseminate investigative or treatment information only to a criminal justice agency which requests the information in connection with its duties, and the request is based upon a name, fingerprints, modus operandi, genetic typing, voice print or other identifying characteristics.

(d) Notations on the record. Criminal justice agencies maintaining intelligence information, investigative information or treatment information shall enter, as a permanent part of an individual’s information file, a listing of the persons and agencies to whom they have disseminated that particular information, the date of the dissemination, and the purpose for which the information was disseminated. This listing shall be maintained separate from the record itself.

(e) Secondary dissemination prohibited. A criminal justice agency which possesses protected information, but which is itself not the source of the information, may not disseminate or disclose the information to another criminal justice agency but shall refer the requesting agency to the agency which was the source of the information. This prohibition does not apply if the agency receiving the information is investigating or prosecuting a criminal incident in conjunction with the agency possessing the information. Agencies receiving protected information assume the same level of responsibility for the security of the information as the agency which was the source of the information.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.8 Retention of records.

Criminal justice agencies shall establish retention schedules for intelligence information. Intelligence information shall be purged under the following conditions:

(1) The data is no longer relevant or necessary to the goals and objectives of the criminal justice agency.

(2) The data has become obsolete, making it unreliable for present purposes, and the utility of updating the data would be worthless.

(3) The data cannot be used for strategic or tactical intelligence studies.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.9 Review and audit.

(a) Review of policies and procedures. The Office of Attorney General will conduct reviews of State criminal justice agencies’ automated policies and procedures established under this chapter to ensure that this chapter is upheld.

(b) Municipal police audits. The State Police shall conduct an annual audit of at least 5% of municipal police department plans, policies or procedures which are implemented under 18 Pa.C.S. § 9106(c) (relating to prohibited information), to ensure that this chapter is upheld. The first audit shall be conducted by February 18, 1992. A copy of the audit shall be submitted to the Office of Attorney General.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.10 Plan approval.

(a) Before a municipal police department requests dissemination of protected information from another criminal justice agency, the police department shall file a copy of its procedures with the State Police for approval. The plan shall be reviewed within 60 days.

(b) Before a district attorney requests dissemination of protected information from another criminal justice agency, the district attorney shall file a copy of its procedures with the Office of Attorney General for approval. The plan will be reviewed within 60 days.

(c) Before a State criminal justice agency requests dissemination of protected information from another criminal justice agency, the agency shall file a copy of its procedures with the Office of Attorney General.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

37 Pa. Code § 601.11 Penalties.

A person, including an agency or organization, who violates this chapter or the plans approved under this chapter shall be subject to the administrative penalties provided in 18 Pa.C.S. § 9181 (relating to general administrative sanctions) and the civil penalties provided in 18 Pa.C.S. § 9183 (relating to civil actions) in addition to other civil or criminal penalties provided by law.

History

Source: The provisions of this Chapter 601 adopted April 5, 1991, effective April 6, 1991, 21 Pa.

Part IX Fireworks

Chapter 711 Registration for Fireworks Displays

37 Pa. Code § 711.1 Registration of fireworks displayers and exhibitors.

A business entity, including a corporation, partnership or sole proprietorship, which intends to perform, provide or supervise a fireworks display or exhibition for profit within this Commonwealth shall register the intention in writing to the Office of Attorney General, Criminal Law Division, 16th Floor Strawberry Square, Harrisburg, Pennsylvania 17120, prior to performing, providing or supervising a fireworks display or exhibition.

The provisions of this § 711.3 (relating to duration of registration).

History

Authority: The provisions of this Chapter 711 issued under section 5.
Source: The provisions of this Chapter 711 adopted April 17, 1992, effective April 18, 1992, 22 Pa.

37 Pa. Code § 711.2 Contents of registration.

A request for registration shall contain the following information:

(1) The full name of the business entity.

(2) The current address and phone number of the business entity.

(3) The name under which the business will be operating if it is different than the name of the business entity.

(4) The name, address, date of birth and social security number of the owner of the business if it is a sole proprietorship.

(5) The name, address, date of birth and social security number of the partners in the business, if it is a partnership.

(6) The name, address, date of birth and social security number of the president and majority shareholders in the corporation.

(7) A description of the type of business activity that will be conducted.

(8) The permit number, type and expiration date of the applicant’s ATF (Department of Treasury, Bureau of Alcohol, Tobacco and Firearms) permit.

(9) The permit number and expiration date of the applicant’s Department of Environmental Resources storage permit.

(10) The identity of local permits for the supervised display of fireworks.

The provisions of this § 711.3 (relating to duration of registration).

History

Authority: The provisions of this Chapter 711 issued under section 5.
Source: The provisions of this Chapter 711 adopted April 17, 1992, effective April 18, 1992, 22 Pa.

37 Pa. Code § 711.3 Duration of registration.

Upon receipt of a request for registration under § 711.1 (relating to registration of fireworks displayers and exhibitors) which contains all of the information required by § 711.2 (relating to contents of registration), the Attorney General will issue a certificate of registration which is valid for 1 year from the date of its issuance. The certificate of registration does not relieve the entity of the necessity of obtaining a permit from the city, borough, town or township wherein a display or exhibition is to occur.

History

Authority: The provisions of this Chapter 711 issued under section 5.
Source: The provisions of this Chapter 711 adopted April 17, 1992, effective April 18, 1992, 22 Pa.

37 Pa. Code § 711.4 Revocation and denial.

The Attorney General may revoke or deny the registration of a business entity for failure to comply with the act of May 15, 1939 (P. L. 134, No. 65) (35 P. S. § § 1271—1277), known as the Fireworks Law, or other applicable State or Federal laws regulating the purchase, possession, transportation or storage of fireworks or other explosives.

History

Authority: The provisions of this Chapter 711 issued under section 5.
Source: The provisions of this Chapter 711 adopted April 17, 1992, effective April 18, 1992, 22 Pa.

Part X Low-Level Radioactive Waste Disposal Regional Facilities

Chapter 721 Low-Level Radioactive Waste Disposal Regional Facility Siting Fund Disclosure Statement Fees

37 Pa. Code § 721.1 Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: Act—The Low-Level Radioactive Waste Disposal Regional Facility Act (35 P. S. § § 7131.101—7131.1101). Business concern—A corporation, association, firm, partnership, trust or other form of commercial organization. Contractor—A person who enters into a contract with the Department of Environmental Resources to implement the Low-Level Radioactive Waste Disposal Act (35 P. S. § § 7130.101—7130.905). Contributor—A person who is mandated to make or who is voluntarily making contributions to the Regional Facility Siting Fund created under the act. Debt liability—An obligation to repay funds advanced for the overall operations or the acquisition or refinancing of major assets of a contractor or contributor, excluding the obligation to repay nonaffiliated suppliers of materials, equipment, supplies or inventory entered into in the ordinary course of business. Key employe—With respect to radioactive waste operations of a business concern, a person employed by a contractor or a contributor in a supervisory capacity or empowered to make discretionary decisions. The term does not include employes exclusively engaged in the physical or mechanical collection, transportation, treatment, storage or disposal of radioactive waste. Examples of key employes include senior nuclear executives and plant managers.

History

Authority: The provisions of this Chapter 721 issued under section 503(c) of the Low-Level Radioactive Waste Disposal Regional Facility Act (35 P.
Source: The provisions of this Chapter 721 adopted February 4, 1994, effective February 5, 1994, 24 Pa.

37 Pa. Code § 721.2 Disclosure statement fee.

(a) The fee for each disclosure statement and each supplement or material change to information contained in a disclosure statement, submitted to the Attorney General under sections 501—503 of the act (35 P. S. § § 7131.501—7131.503) is $825 per each individual required to be listed therein or shown to have a beneficial interest other than an equity interest or debt liability in the business of the contractor or contributor, as further described in subsection (b).

(b) For purposes of this section, individuals required to be listed in a disclosure statement include contractors and contributors.

(c) If a contractor or contributor is a business concern, then all officers, directors, partners or key employes, and every person holding an equity in or debt liability of that business concern shall be listed in the disclosure statement. If the business concern or its parent organization is a publicly traded corporation or subsidiary of a publicly traded corporation, the contractor or contributor need only list the beneficial owners of more than 5% of the equity in or debt liability of the business concern. The following exceptions apply:

(1) If the debt liability of the business concern or its parent organization or subsidiary is held by a chartered lending institution, the contractor or contributor need only supply the name and address of the lending institution.

(2) If a class of equity securities of the business concern or its parent organization or subsidiary is registered on a National securities exchange, the contractor or contributor will be deemed in compliance with the provisions of this section requiring the disclosure of its equity and debt liabilities of itself, its parent organization and subsidiaries, if the business concern supplies copies of filings received by it, its parent organization and subsidiaries of Schedule 13-D or Schedule 13-G under section 13(g)(1) the Securities Exchange Act of 1934 (15 U.S.C.A. § 78m(g)(1)).

(d) For a business concern disclosed in a disclosure statement, the contractor or contributor shall supply the information described in subsection (c) except that key employes of the business concern need not be listed.

(e) The total fee will be calculated by the Office of Attorney General based upon the information contained in the disclosure statement submitted by the contractor or contributor under this chapter.

History

Authority: The provisions of this Chapter 721 issued under section 503(c) of the Low-Level Radioactive Waste Disposal Regional Facility Act (35 P.
Source: The provisions of this Chapter 721 adopted February 4, 1994, effective February 5, 1994, 24 Pa.

Part XI Office of the Victim Advocate

Chapter 802 The Domestic and Sexual Violence Address Confidentiality Program

37 Pa. Code § 802.1 Scope.

This chapter sets forth standards and procedures relating to participation in the ACP on or after June 1, 2005, as well as waiver requests from entities that have an interest in obtaining an ACP participant’s actual address.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.2 Definitions.

(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise: ACP—The Domestic and Sexual Violence Victim Address Confidentiality Program (see 23 Pa.C.S. § 6703 (relating to Address Confidentiality Program)). ACP authorization card—A card issued by the OVA under § 802.12 (relating to certification). ACP code—An identifying number unique to each ACP participant. Act—The Domestic and Sexual Violence Victim Address Confidentiality Act (23 Pa.C.S. § § 6701—6713). Agent for service of process—Third party agent for the formal delivery of a writ, summons or other legal process. Cohabitant—A person who is a member of the same household as an ACP participant who is certified by the OVA to participate in ACP. OVA—The Office of the Victim Advocate. Victim service provider—A State or local agency that provides services to victims of domestic violence, sexual assault or other crimes.

(b) The definitions in section 6702 of the act (23 Pa.C.S. § 6702) (relating to definitions) are incorporated by reference.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.3 Persons eligible for participation.

(a) Except as otherwise provided in the act, the following persons are eligible for participation:

(1) Victims of domestic violence.

(2) Victims of sexual assault.

(3) Victims of stalking.

(4) A minor child who is a member of the same household as an ACP participant.

(5) An adult who is a cohabitant of an ACP participant.

(6) An ACP participant who notifies OVA of the ACP participant’s intent to continue participation prior to expiration of the 3-year ACP certification period.

(b) An adult who is a cohabitant of an ACP participant shall apply separately for participation.

(c) Minor children who are enrolled with an adult ACP participant are required to apply separately upon reaching 18 years of age.

(d) Commonwealth residency is not a requirement for ACP participation. ACP applicants who do not provide a Commonwealth residential address will be enrolled as a ‘‘Non-PA Resident.’’ This designation will appear on the ACP participant’s ACP authorization card.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.11 Application.

(a) An application may be filed by any eligible person on the form provided by OVA.

(1) An eligible ACP participant may apply, in person, at a victim service provider.

(2) The role of the victim service provider is to:

(i) Assist the eligible person in determining whether ACP should be part of the person’s overall safety plan.

(ii) Explain ACP services and limitations.

(iii) Explain ACP participants’ responsibilities.

(iv) Assist the person eligible for participation with the completion of application materials.

(b) The completed application must include the following:

(1) An affidavit from the applicant describing, in detail, a perpetrator’s violent actions or threatened violent actions, or course of stalking conduct and describing, in detail, the applicant’s fear of future violent acts of abuse, sexual assault or stalking, or all, by the perpetrator.

(2) Designation of the OVA as the applicant’s agent for service of process.

(3) An applicant’s mailing address to which mail can be forwarded by the OVA.

(4) An applicant’s actual address and telephone number, if different from the applicant’s mailing address.

(5) A listing of minor children residing at the actual address, each minor child’s date of birth and each minor child’s relationship to the applicant.

(6) When applicable, a listing of all pending civil and criminal proceedings, including, but not limited to, domestic relations, family court, child custody or Protection From Abuse proceedings, in which the applicant or minor child is a victim, witness, plaintiff or defendant.

(7) When applicable, an explanation of the applicant’s probation or parole supervision requirements (Federal, State or county) as well as the name and phone number of the applicant’s probation or parole officer.

(8) A signed statement affirming that information provided on the ACP application is true and acknowledging the applicant’s duty to notify OVA of any change in information provided on the application.

(9) The date and signature of the applicant and the signature of any person who assisted in the preparation of the application.

(c) Completed applications shall be submitted to the ACP substitute address by mail. Applications submitted by means of facsimile or electronic mail will not be accepted.

(d) Application packets must contain the following completed materials:

(1) Completed and signed ACP application form.

(2) Criminal/civil case information.

(3) Affidavit.

(4) Signed ACP authorization card.

(e) Upon receipt, OVA will determine if the applicant meets the prescribed criteria for eligibility for enrollment in ACP in accordance with 23 Pa.C.S. § 6704 (relating to persons eligible to apply), which is incorporated by reference.

(f) For purposes of ACP, residents of temporary housing (30 days or less), such as emergency domestic violence shelter, are not eligible to enroll in ACP until a permanent, residential address is obtained, unless otherwise determined by the OVA, at the sole discretion of the OVA.

(g) OVA will contact the applicant if additional information is necessary for OVA to determine the eligibility of the applicant or minor child for participation in ACP.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.12 Certification.

(a) If OVA determines that an applicant is eligible for participation in ACP, the ACP participant is assigned a unique ACP number, known as an ACP code.

(b) ACP participant data will be entered into OVA’s confidential records.

(c) An ACP authorization card is created and certified by OVA. The ACP authorization card contains the ACP participant’s substitute address.

(d) Certification is valid for 3 years unless the certification is withdrawn by OVA, at the sole discretion of OVA, or canceled by the ACP participant prior to the expiration of the 3-year period.

(e) If the ACP participant is a victim, witness, plaintiff or defendant involved in an ongoing civil or criminal case, OVA will provide, upon certification, notice of the ACP participant’s substitute address to appropriate court officials in which an ACP participant is a victim, witness, plaintiff or defendant. Appropriate officials may include, but not be limited to, the county district attorney, clerks of court or other agencies with prosecutorial authority.

(f) If an ACP participant who is a victim, witness, plaintiff or defendant involved in an ongoing civil or criminal case cancels, withdraws or expires from ACP participation, OVA will provide notice to any appropriate court officials previously notified.

(g) Upon certification by OVA, the ACP participant will receive the following:

(1) Notification of the ACP participant’s enrollment in ACP.

(2) A completed and laminated ACP authorization card with the ACP participant’s ACP code on the ACP authorization card.

(3) ACP materials advising the ACP participant how to use ACP when the ACP participant is dealing with Commonwealth and local agencies.

(h) If OVA determines, in the sole discretion of OVA, that an applicant or minor child does not meet the criteria for ACP certification, the applicant will receive notice of this decision from OVA.

This section cited in 37 Pa. Code § 802.2 (relating to definitions).

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.13 Use of substitute address.

(a) The substitute address shall be used in the following format on all mail sent to an ACP participant:

Participant Name, (ACP #

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.14 Marriage licenses.

(a) ACP participants may use the substitute address as the ACP participant’s residential address when applying for a marriage license.

(b) ACP participants residing with the ACP participant’s parents may use the substitute address as the ACP participant’s residential address when applying for a marriage license.

(c) Adult children of an ACP participant may use the substitute address as the ACP participant’s residential address when applying for a marriage license.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.15 Certificate of vehicle title, security interest in vehicle, vehicle registration and driver’s license.

(a) ACP participants may use the substitute address as the ACP participant’s actual address when applying to the Department of Transportation (PennDOT) for the following:

(1) A vehicle certificate of title.

(2) A perfection of a security interest in a vehicle.

(3) Vehicle registration, including the process of self-certification of financial responsibility.

(4) Applying for or renewing a Commonwealth driver’s license or a PennDOT identification card.

(b) ACP participants are responsible for any fee associated with the issuance of an updated Commonwealth driver’s license or identification card.

(c) ACP participants shall utilize a centralized address provided by PennDOT when applying for or renewing a Commonwealth driver’s license or a PennDOT identification card.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.16 ACP participant responsibility.

ACP participants shall:

(1) Notify OVA of any change in the information provided to OVA during the ACP certification procedure.

(2) Provide the ACP participant’s actual address to OVA but can opt to receive mail forwarded by OVA at an alternative address.

(3) Accept all mail forwarded to them by OVA.

(4) Designate OVA as the ACP participant’s legal agent for service of process and maintain responsibility for all legal documents received by OVA on behalf of the ACP participant.

(5) Present the ACP participant’s ACP authorization card to Commonwealth and local government agencies to receive ACP privileges.

(6) Notify OVA of any name change or change of actual address within 5 calendar days of the date that the change occurs.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.17 Cancellation, expiration and voluntary withdrawal.

(a) ACP participation will expire 3 years after the date of ACP certification. The date of expiration will be indicated on the ACP authorization card.

(b) At least 60 days prior to the expiration of certification, OVA will send written notification to the ACP participant’s actual address to afford the ACP participant the option of continuing the ACP participant’s ACP certification.

(c) ACP participants may voluntarily withdraw from ACP at any time by advising OVA in writing of the ACP participant’s intent to withdraw. OVA will verify, to the extent possible, the accuracy of the request to ensure that the ACP participant is making the request knowingly and voluntarily.

(d) The OVA may, in its sole discretion, cancel an ACP participant’s certification if the following occurs:

(1) The ACP participant provides false information on any part of the ACP application.

(2) The ACP participant fails to notify OVA of a change of name or change of address within 5 calendar days of the date that the change occurred.

(3) The ACP participant’s mail is returned to OVA as nondeliverable.

(e) Mail that is returned to OVA as nondeliverable will be retained for 5 business days before being returned to the sender as nondeliverable.

(f) ACP participants whose participation is canceled, withdrawn or expires may reapply for participation in ACP.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.21 Agency of use of substitute address.

(a) Commonwealth and local government agencies will accept the substitute address indicated on an ACP participant’s ACP authorization card whenever the ACP participant’s actual address is required except as set forth in 23 Pa.C.S. § 6707(2) (relating to agency use of designated address), which is incorporated by reference.

(b) The substitute address shall be in the following format on all mail sent to the ACP participant by a Commonwealth or local government agency:

Jane Doe, (ACP #

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.22 ACP records and release of information.

(a) Records regarding ACP applicants and participants are the property of OVA. This includes, but is not limited to, the following records:

(1) ACP applications.

(2) Actual residential, work or school, or both, addresses of ACP participant.

(3) Records related to Commonwealth or local government agencies’ requests for waiver.

(b) OVA will verify the enrollment status of an ACP participant to Commonwealth and local government agencies. No other information regarding ACP participants will be released to any entities or persons except as provided in this section and § 802.23 (relating to disclosure of actual address) or as permitted and agreed to by the ACP participant in writing.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.23 Disclosure of actual address.

(a) OVA will disclose the actual address of an ACP participant in accordance with 23 Pa.C.S. § 6708 (relating to disclosure of actual address), which is incorporated by reference.

(b) Government agencies may request emergency disclosure of an ACP participant’s actual address by contacting the phone number established by the OVA.

(c) For government agencies making requests for emergency disclosure, the requirements are contained in 23 Pa.C.S. § 6710(c) (relating to emergency disclosure), which are incorporated by reference.

(d) The OVA will disclose an ACP participant’s actual address in accordance with 23 Pa.C.S. § 6710(b), which is incorporated by reference.

(e) Determinations regarding the emergency disclosure of an ACP participant’s actual address will be made solely at the discretion of the Victim Advocate or the designee of the Victim Advocate.

This section cited in 37 Pa. Code § 802.22 (relating to ACP records and release of information).

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.31 Agency request for waiver.

(a) A Commonwealth or local government agency requesting disclosure of an ACP participant’s actual address will provide OVA with the information set forth in 23 Pa.C.S. § 6709(a) (relating to waiver process), which is incorporated by reference, and specify in the written statement what persons shall have access to the actual address information, where the actual address information shall be maintained and how the actual address information shall be maintained.

(b) The completed request for a waiver shall be sent to OVA by means of certified mail.

(c) Upon receipt of an agency waiver request, OVA will contact the ACP participant in accordance with 23 Pa.C.S. § 6709(b), which is incorporated by reference.

(d) Whenever possible, the ACP participant may be given the opportunity to be heard by the Victim Advocate or Victim Advocate’s designee regarding the waiver request. Notice and the opportunity to be heard regarding disclosure of an ACP participant’s actual address may not be provided to an ACP participant if the requirements of 23 Pa.C.S. § 6709(b)(3) are met, which are incorporated by reference.

(e) The OVA may grant the waiver request of Commonwealth and local government agencies if the ACP participant provides written consent to OVA to disclose the ACP participant’s actual address.

This section cited in 37 Pa. Code § 802.32 (relating to waiver review).

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.32 Waiver review.

(a) Promptly after receiving a complete waiver request as set forth in § 802.31 (relating to agency request for waiver) from a Commonwealth or local government agency, the OVA will review the request and determine whether to grant or deny the waiver request.

(b) The OVA may require additional information during the review of the waiver request, and the request for information will toll the waiver review process until the Commonwealth or local government agency complies with OVA’s request for additional information.

(c) The OVA will grant a request for waiver from a Commonwealth or local government agency in accordance with 23 Pa.C.S. § 6709(d) (relating to waiver process), which is incorporated by reference.

(d) When the OVA grants a waiver to a Commonwealth or local government agency, OVA will provide, in writing, to the requesting agency the following:

(1) The ACP participant’s actual address.

(2) A description of the scope of permitted use of the ACP participant’s actual address.

(3) A listing of the names or classes of persons permitted to have access to and use of the actual address.

(4) An explanation that the agency receiving the actual address is required to limit access to and use of the actual address.

(5) When the permitted use of the actual address is only for a set period of time, OVA will provide a date that the granted waiver expires. Upon reaching the expiration date, the agency which obtained a waiver will be required to no longer maintain, use or have access to the ACP participant’s actual address and shall delete all references to the ACP participant’s actual address from all of its files.

(e) A Commonwealth or local government agency receiving a waiver by the OVA shall comply with 23 Pa.C.S. § 6709(f), which is incorporated by reference.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.

37 Pa. Code § 802.33 Waiver appeal process.

(a) When the OVA denies a request for a waiver, the Commonwealth or local government agency requesting the waiver will be notified of the refusal, in writing, by the OVA and provided the reasons for denial of the waiver.

(b) Within 15 calendar days of receiving written notice of the waiver denial, the Commonwealth or local government agency may file a written exception with the OVA. The exception must:

(1) Attach a copy of the letter from OVA denying the original waiver request.

(2) State the reason that and the grounds upon which the original waiver request should be granted.

(3) Specifically respond to the reasons stated by the OVA for denying the original waiver request.

(c) The filing of an exception to the OVA shall be submitted by means of certified mail and the date of actual delivery to the OVA controls for purposes of time calculations.

(d) If a Commonwealth or local government agency timely files exceptions, the OVA will review the exception request in accordance with 23 Pa.C.S. § 6709(i) (relating to waiver process), which is incorporated by reference.

(e) A Commonwealth or local government agency may appeal the final determination of the OVA in accordance with 23 Pa.C.S. § 6709(j), which is incorporated by reference.

History

Authority: The provisions of this Chapter 802 issued under 23 Pa.
Source: The provisions of this Chapter 802 adopted June 1, 2007, effective June 2, 2007, 37 Pa.