Pennsylvania Code & Bulletin
COMMONWEALTH OF PENNSYLVANIA

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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 51 Pa.B. 6892 (October 30, 2021).

Pennsylvania Code



Subchapter B. FORMAL PROCEEDINGS


APPEALS

Sec.


1230.38.    Commencement, form and content of Notice of Appeal.
1230.39.    Timeliness of Notice of Appeal.

SPECIAL ACTIONS


1230.43.    Orders to Show Cause, orders or petitions filed by the Office.
1230.44.    Answers to Orders to Show Cause, orders or other petitions filed by the Office.
1230.45.    Verifications and affidavits.
1230.46.    Entry of default judgment.

APPEALS


§ 1230.38. Commencement, form and content of Notice of Appeal.

 (a)  An appeal from an action of the Office shall start with the filing of a Notice of Appeal with the Department.

 (b)  The caption of a Notice of Appeal must be in the following form:

COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF HEALTH

Name of Appellant Address of Appellant Telephone Number of Appellant,     Appellant/Petitioner,     v. The Pennsylvania Department of Health, Office of Medical Marijuana,     Appellee/Respondent. | | | | | | | | Docket No.:


NOTICE OF APPEAL

 (c)  The Notice of Appeal must set forth the name, mailing address, e-mail address, permit number or application number, if one has been assigned, and telephone number of the appellant. If the appellant is represented by an attorney, the Notice of Appeal shall be signed by at least one attorney of record in the attorney’s individual name.

 (d)  If the appellant has received written notification of an action of the Office, a copy of the action must be attached to the Notice of Appeal.

 (e)  The Notice of Appeal must set forth in separate numbered paragraphs the specific objections to the action of the Office. The objections may be factual or legal.

 (f)  The Notice of Appeal must be typewritten on letter-size paper (approximately 8 to 8 1/2 inches by 10 1/2 to 11 inches) and pages after the first must be numbered. Photocopies will be accepted as typewritten, provided that the copies are legible. Failure to comply with these requirements will not result in rejection or dismissal of the Notice of Appeal. The Department may request that the appellant file an amended version of the Notice of Appeal in proper form.

 (g)  The appellant shall, concurrent with or prior to the filing of a Notice of Appeal, serve two copies on the Department’s Office of Legal Counsel in the same manner in which the Notice of Appeal is filed with the Department.

 (h)  Subsections (a)—(g) supersede 1 Pa. Code § §  35.5—35.7 and 35.20 (relating to informal complaints; and appeals from actions of the staff).

§ 1230.39. Timeliness of Notice of Appeal.

 (a)  Jurisdiction of the Department will not attach to an appeal from an action of the Office unless the Notice of Appeal is in writing and is timely filed with the Department within 30 days after the individual or person to whom the action of the Office is directed or issued has received written notice of the action, unless a different time is provided by statute.

 (b)  Failure to file a timely Notice of Appeal may be deemed an admission or may be dismissed with prejudice by the Department.

 (c)  The Office may file an answer and new matter to the Notice of Appeal within 30 days of its service on the Office, but is not required to do so.

 (d)  Subsection (a) supersedes 1 Pa. Code § §  35.5—35.7, 35.20 and 35.35 (relating to informal complaints; appeals from actions of the staff; and answers to complaints and petitions).

SPECIAL ACTIONS


§ 1230.43. Orders to Show Cause, orders or petitions filed by the Office.

 (a)  The Office may start an action by filing an Order to Show Cause, order or other petition filed by the Office and a notice of a right to respond or defend. The action is begun when the Order to Show Cause, order or other petition of the Office is filed with the Clerk.

 (b)  Service of the Order to Show Cause, order or other petition filed by the Office shall be by personal service or by United States first class mail, postage prepaid. In the instance of mail, service will be deemed complete 3 days after the date of mailing by the Office.

 (c)  An Order to Show Cause must set forth the authority under which the Department is authorized to act and must set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for action is based.

 (d)  The notice of a right to respond or defend shall conform substantially to the following:

[Case Caption]


NOTICE

 If you wish to defend against the claims set forth in the following pages, you must take action within thirty (30) days after this Order to Show Cause and notice are served by entering a written appearance personally or by attorney and filing in writing with the Clerk in accordance with §  1230.23 your answers, defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Department without further notice for any claim or relief requested by the Office. You should take this paper to your lawyer at once.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  35.14 (relating to orders to show cause).

§ 1230.44. Answers to Orders to Show Cause, orders or other petitions filed by the Office.

 (a)  Answers to Orders to Show Cause, orders or other petitions filed by the Office shall be filed with the Clerk within 30 days after the date of service of the Order to Show Cause, order or other petition filed by the Office, unless, for cause, the Department, with or without motion, prescribes a different time.

 (b)  Answers to Orders to Show Cause, orders or other petitions filed by the Office must set forth legal objections and any denial of facts in a single pleading.

 (c)  Answers must be in writing and drafted as to fully and completely advise the parties and the Department as to the nature of the defense, including affirmative defenses. Answers must admit or deny specifically and in detail each material allegation of the Order to Show Cause, order or petition filed by the Office, and state clearly and concisely the facts and matters of law relied upon.

 (d)  A Respondent failing to file an answer within the prescribed time will be deemed in default and, upon motion made as set forth in §  1230.46 (relating to entry of default judgment), all relevant facts in the Order to Show Cause, order or other petition filed by the Office may be deemed admitted, and default judgment may be entered.

 (e)  New matter or preliminary objections may not be filed. To the extent that new matter or preliminary objections are filed, new matter or preliminary objections will be deemed stricken.

 (f)  Subsections (a)—(e) supersede 1 Pa. Code §  35.37 (relating to answers to orders to show cause).

§ 1230.45. Verifications and affidavits.

 (a)  Pleadings or other documents containing an averment of fact not appearing of record in the action or containing a denial of fact shall be personally verified by a party thereto or by an authorized officer of the party if a corporation or other business entity. Verification means a signed written statement of fact supported by oath or affirmation or made subject to the penalties of 18 Pa.C.S. §  4904 (relating to unsworn falsification to authorities). If verification is required, notarization is not necessary.

 (b)  The verification form must comply substantially with the following:

VERIFICATION

 I,


, hereby state that the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief). I understand that the statements herein are made subject to the penalties of 18 Pa.C.S. §  4904 (relating to unsworn falsification to authorities).

   



Date

   



Signature

   



Printed Name

 (c)  When an affidavit is used, the form should comply substantially with the following:

AFFIDAVIT

 I,


(Affiant), being duly sworn (affirmed) according to law, depose and say that (I am authorized to make this affidavit on behalf of
corporation/business entity, being the holder of the office of
with that corporation/business entity,) and that the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief).

   



(Signature of affiant)

 Sworn and subscribed before me this


day of
, 20
.

   



(Signature of official administering oath)

§ 1230.46. Entry of default judgment.

 (a)  The Department, on motion of the Office, may enter default judgment against the Respondent for failure to file within the required time an answer to an Order to Show Cause, order or other petition allowed for under these regulations that contains a notice of a right to respond or defend.

 (b)  The Respondent may answer the motion for default judgment and request a hearing. If a request for a hearing on the default judgment is made, the Department may not grant default judgment prior to a hearing and the filing of an answer.

Cross References

   This section cited in 28 Pa. Code §  1230.44 (relating to answers to Orders to Show Cause, orders or other petitions filed by the Office).



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