Five Crucial Mistakes to Avoid During Pa. Administrative Litigation

For attorneys who routinely litigate matters adverse to federal and state government agencies, sometimes ­referred to as government and regulatory law, the trend has been easy to see. Over the last half century or so, the U.S. Supreme Court has gradually expanded the degree of deference traditionally afforded to the rules and adjudications of administrative ­agencies. This has included not only ­deference to legislative rules resting on legislatively conferred rulemaking powers, referred to as Chevron deference, but also to interpretive rules created by an agency based on its specialized role and expertise, referred to as Skidmore deference. This has even included deference to an agency’s interpretation of its own regulations, referred to as Seminole deference, although this type of deference was limited somewhat by the U.S. Supreme Court in 2012. Of course, this expansive concept of deference has always included deference to an agency’s factual findings and conclusions in an adjudication, akin to the deference afforded to trial courts on appeal. The Pennsylvania courts, ­battling large caseloads, have welcomed this expansion, incorporating these concepts into state law. As a result, the need to win a dispute at the administrative level—and therefore the need for counsel experienced in administrative practice and procedure—has never been greater.

The Pennsylvania Administrative Agency Law, in relevant part, provides: “No adjudication of a commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard,” 2 Pa.C.S. Section 504. An “adjudication” is defined as: “Any final order, decree, decision, determination or ruling by an agency affecting personal or rights, privileges, immunities, duties, liabilities or obligations of any or all the parties to the proceeding in which the adjudication is made. The term does not include any order based upon a proceeding before a court or which involves the seizure or forfeiture of property, paroles, pardons or releases from mental institutions,” 2 Pa.C.S. Section 101.