*1 Act 198 makes it clear that tax- spoken. individually who harmed

payers are zoning decision do fall within the def- persons. I aggrieved

inition of would Ship & Rail’s motion to

grant Preston longer taxpayers no have

standing to appeal.

Judge joins LEADBETTER

dissent. COMPANY,

CHIRO-MED REVIEW

Petitioner, OF

BUREAU WORKERS’

COMPENSATION,

Respondent Compensation,

Bureau of Workers’

Petitioner, Company,

Chiro-Med Review

Respondent. Pennsylvania.

Commonwealth Court of on Briefs June 2006.

Submitted Sept.

Decided *2 Plank, Harrisburg, peti-

Michael J. tioner. Kuzma, Deputy Coun-

Thomas J. Chief sel, Harrisburg, respondent. SMITH-RIBNER, Judge, BEFORE: SIMPSON, FLAHERTY, Judge, Judge. Senior Judge OPINION BY SIMPSON. a Bu- The novel issue here is whether (Bureau) Compensation reau of Workers’ may compensate a Utiliza- (URO) for the Organization tion Review revocation of authoriza- improper Bureau’s utilization reviews. Chiro- tion to conduct (Petitioner) Company peti- Review Med Officer’s tions for review of a Bureau that sustained its order revoking determination its authorization utilization reviews. Petitioner conduct by fail- Officer erred contends compensate it for losses of its au- improper revocation Bureau’s thorization. alleges the cross-appeal,

In a could not sustain Petition- Hearing Officer once he determined Petitioner er’s regulations upon which violated the Additionally, approve applica- in a has discretion was based. reau revocation authorized, tion once URO quash, motion Bureau raises issues years im- utilization reviews two jurisdiction, standing, sovereign perform reauthorization. munity. seeking before *3 If, however, the § Bureau Code 127.654. Pe- Concluding immunity bars sovereign acting information the URO not receives relief, we claim for additional titioner’s Act or its in accordance with the rules Bu- On the appeal.1 Petitioner’s may suspend Bureau and regulations, the reau’s we affirm the Offi- appeal, ultimately authorization. revoke URO’s cer’s order. §§ The Bureau’s 34 Pa.Code 127.668-.669. Background I. final; regulations pro- the decision is not novo, new, right or de a URO the vide 1993, Assembly the General amended officer. Pa. hearing before a review (Act)2 by Compensation the Act Workers’ 127.699(b)-.670(a). §§ Code adding implementing the provisions for process. The purpose utilization review hearing Upon the officer is new injured to the amendments was ensure in- required adjudication issue an to employees receive treatment while medical fact, law findings of conclusions of cludes the allowing employer challenges also for and the rationale the decision. 34 necessity and of medical reasonableness 127.670(d). officer’s The Code injuries. Chi treatment for work-related inform the and the decision must URO ro-Med Review Co. v. Bureau Workers’ appeal rights to this Bureau their Court. (Pa.Cmwlth.2005) Comp., 127.670(e). 34 Pa.Code (Chiro-Med I). utiliza implement To background, we turn to the this as With tion Act allowed process, review present matter. (De Department Industry of Labor regulations au II. Petitioner’s partment) promulgate Revocation of re thorizing perform UROs utilization Authorization 306(f.l) (f.2) of views. Sections See 2002, Peti- approved Prior to the Bureau Act;3 I. Chiro-Med 2002, July granted tioner as a URO reauthorization application Petitioner’s for Accordingly, Department promulgat- 1, through period regulations procedure August forth setting ed 2003, However, August authorizing pro- August as well 2004. URO as assignment of suspended process cedure for the utilization review (Code) to Petitioner based §§ 127.401- new utilization reviews itself. 34 Pa.Code acting in accor- information it was not are those .670. Relevant authorization, regulations. with the Bureau’s addressing sus- dance sections ability of a URO’s pension, and revocation investigation, Upon completion its perform utilization reviews. authorization Bureau revoked reviews, conduct utilization reviews on To a URO to perform utilization violated several grounds Bureau. Petitioner application must an with the file appealed. 127.651, §§ The Bu- Bureau’s 127.653. 34 Pa.Code 3, 1993, July Act of P.L. any reason 3.Added may quash We R.A.P.1972(7). 531(6) 531.1(7). appearing §§ on the record. Pa. 77 P.S. amended, 2. Act June P.L. 1-1041.1, §§ 2501-2626. P.S. to the extent of secur- ing

The Officer conducted an evi- least authorization, dentiary hearing ing and concluded the Bu- a reinstatement of its did directing reau not abuse discretion revok- the Bureau to seeks an order Petitioner’s authorization. On assignment process and to forego its usual regulations we determined the Bureau’s utilization re- allot Petitioner additional Officer to conduct a required additional purpose views. The of these decision, new review of the Bureau’s not a Peti- assignments compensate be to would scope appellate limited review. Chiro- period tioner for income lost I. Accordingly, Med we vacated the Hear- re- Alternatively, Petitioner revocation. ing Officer’s decision and remanded for Officer for quests a remand *4 existing proceedings further based remedy. In implementation of the same record. Id. response, the Bureau filed a motion to raising appeal, Petitioner’s issues remand,

On Officer deter- jurisdiction, standing, sovereign immu- regula- mined Petitioner violated Bureau nity. 127.652(c)(pertain- §§ tions at 34 Pa.Code changes of application); contents appeal challenges The Bureau’s 127.657 (pertaining to local business of- Hearing authority Officer’s to sustain Peti 127.660(b) fices); (pertaining to list of appeal.4 tioner’s reviewers). Notwithstanding, mi- concluded the violations were Quash III. Bureau’s Motion to and, nor consequently, there was an insuf- 2478 C.D.2005 upon

ficient basis which to revoke Petition- er’s authorization. The reaching Prior to the merits of either therefore sustained appeal. Petitioner’s appeal, we examine the Bureau’s motion to Notably, the Hearing Officer’s order mere- The Bureau quash. contends Court ly appeal; sustained Petitioner’s it did not jurisdiction lacks to entertain Petitioner’s remedy address other to Pe- available standing to appeal, appeal, Petitioner lacks require titioner or the Bureau to take cor- and, Petitioner’s claims are barred sov- rective measures. ereign immunity. argu- We address each ment in turn.

Although it received no direction from details, Officer as to the Bu- A. Jurisdiction reau thereafter reissued Petitioner’s au- The Bureau first contends this Court thorization effective as of the date of the jurisdiction appeal lacks over Petitioner’s Hearing Officer’s second determination general because the nature (December 2005) through mid-October damages, claim is one for which we period 2006. The 10-month represents grant appellate jurisdiction. our We remaining amount of time on Petition- enjoys jurisdiction to conclude this Court prior er’s 2002-04 authorization Bu- for petition entertain the review. reau’s revocation. parties Subject jurisdiction Both re appeal. now matter Petitioner, prevailed competency who before the Hear- lates to the of a court to hear ted, agency’s practices agency 4. Our of a state whether the review determination I; ascertaining findings procedures is limited to were not followed. Chiro-Med whether Liability supported by Laundry Ins. Ass’n v. of fact were substantial evi- Owners Mut. dence, Comp., rights 853 A.2d 1130 whether constitutional were vio- Bureau Workers' lated, (Pa.Cmwlth.2004). whether an error of law was commit- case-by-case on a basis if general and determine controversies determined he aggrieved, is determined has person nature of matter Fraisar v. involved. (Pa.Cmwlth.2006). Comp. Appeal Gillis, standing. Robb v. 892 A.2d 74 Workers’ Welfare), Pub. a Bd. determining (Dep’t test whether “[T]he (Pa.Cmwlth.1998). jurisdiction subject court has matter competency the court to deter party allow a Courts general mine controversies class remedy awarded is claimed to where the which the for its presented case consider generally insufficient. See Marsh be belongs.” Comp. Heath ation v. Workers’ Hanley, (Pa.Super.2004) 856 A.2d 138 (Pa. Bd. Bd. Pa Appeal Probation & jury permitted did (plaintiffs appeal where role), 860 A.2d compensable bodily damages award (2004) (emphasis in original; citation omit injuries); Pittsburgh Constr. Co. Grif ted). words, “In we other determine pet. fith, (Pa.Super.2003), 834 A.2d 572 power whether ‘the court to enter [has] denied, allowance of upon inquiry, might whether it (2004) party had (prevailing ultimately decide that unable [is] court standing where disre cross-appeal *5 grant sought particular in the relief provision setting interest garded contract ” added.) Id. (Emphasis case.’ rate); Robb; Inc. v. see also Hercules AIU (Del.2000) Co., (party A.2d is Ins. 783 1275 763(a), § Pursuant to 42 Pa.C.S. if it by judgment did aggrieved favorable jurisdiction to enjoys this Court exclusive requested). all relief not receive appeals government hear de agency does terminations. Even where Court in Robb is instructive. Our decision remedy, There, gener petition physi- Petitioner a see a employer filed v. filed su- ally Northampton Employer Convalescent Center cal examination. compensa- Welfare, Public the workers’ Department persedeas, which (1997) (an (WCJ) a At appellate judge granted. 703 A.2d 1034 tion counsel admit- petition, claimant’s court cannot award relief which could physical to a employer ted was entitled agency), a lower by be awarded tribunal examination, improp- argued but WCJ may any remedy we determine whether erly claimant’s benefits because suspended have Accordingly, exists under the Act. we examina- petition a employer only filed subject jurisdiction to Pe matter entertain once Ultimately, parties agreed 763(a). tion. appeal. titioner’s Pa.C.S. examination, ben- to an claimant submitted Standing B. Claimant com- be reinstated. efits would employer’s request, WCJ plied, at Next, contends Peti Bureau with- indicating employer entered an order it standing appeal tioner lacks because However, the WCJ’s petition. drew the aggrieved by was not Officer’s claimant’s bene- order failed to reinstate Pa.C.S. determination. Pursuant fits. 702, any person by a “aggrieved” Com adjudication a appealed who has to the Workers’ agency monwealth Claimant (Board), Board adjudication may ap Compensation Appeal direct interest in standing. jurisdiction to claimant lacked peal to a court which concluded vested with the Board’s order deter- also Pa. R.A.P. reversed appeals. hear such We standing had because (“any party aggrieved, by appeal- mined claimant therefrom”). effectively denied claimant may appeal able order ... WCJ’s order other hold- “[a]ny held that party standing a has benefits. We Whether any contrary produce failed to discover case law would We agency’s addressing Commonwealth grossly inequitable essentially result right sovereign immunity to assert on a leaving right with a without a [claimant petition agency for review of an determina Robb, remedy....” at 718 A.2d

tion, the Bureau nor Petitioner and neither observe, authority. such We provides Here, complains Petitioner however, sovereign immunity is non-waiva meaningful Officer denied it a time. may ble and be asserted remedy compensate it for revenue lost Auth, Housing v. Phila. Williams period the Bureau revoked (Pa.Cmwlth.2005) (“defense reissued, period authorization until it was un governmental immunity is an absolute proposed findings months. In its 25/£ defense, subject any proce waivable fact, requested assignment Petitioner govern dural device that could render the reviews; however, of additional utilization agency beyond exceptions mental liable Officer failed to address Peti granted legislature”); Warnecki Se. Robb, request. tioner’s As in (Pa. Auth., Transp. 689 A.2d 1023 only is the means which it Cmwlth.1997). challenge Officer’s failure to Moreover, compensate permit it for our courts will not the Bureau’s actions. Thus, party indirectly to do that which it cannot although “prevailed” be directly. Shep low, do Commonwealth ex rel. standing we conclude it has because Bank, Penn 31 Pa. pard Cent. Nat’l did not receive all the it requested. relief (1977). Cmwlth. As Marsh; Robb; Co.; Pittsburgh Constr. *6 above, agencies stated en Commonwealth Hercules, Inc. joy immunity Pennsylvania pursuant 2310, Constitution, § 42 1 Pa.C.S. and Pa. Sovereign Immunity C. 8521(a) immunity § (sovereign gener C.S. Finally, the Bureau contends it is im- ally). impose liability To on a Common mune from act pursuant party, alleged negligent Petitioner’s claims to wealth 2810, § 1 that rec which must involve a cause of action is Pa.C.S. reaffirmed the statute, common ognized at law sovereign immunity provision found in Ar- 1, the matter must fall within one of the 11, Pennsylvania ticle Section immunity listed in exceptions sovereign § 1 provides, Constitution.5 Pa.C.S. 2310 8522(b). 8522; § § 42 42 Pa.C.S. Pa.C.S. “Commonwealth, in part, the and its offi- Corr., Dep’t Raker v. Pa. 844 A.2d 659 employees acting cials and within of (Pa.Cmwlth.2004), pet. ap allowance duties, scope of their shall continue to for of denied, 692, A.2d 770 peal 859 enjoy sovereign immunity im- and official (2004). munity and remain immune from suit ex- cept Assembly specifi- as the General shall Here, petition for review did cally immunity.” opposition, In waive negligently not revoked allege argues sovereign immunity and, its utilization review authorization applicable proceedings satisfy because the be- first consequently, it does not 8522(a). § from a for 42 See Crock- petition prong fore us result of Pa.C.S. (Pa. TJniv., 811 A.2d 1094 damages. not a action for ett v. Edinboro civil 11, Legislature and in such cases as the provides 5. Pa. art. 1 in relevant courts Const, part: may brought against may be "[s]uits law direct.” manner, in such in such Commonwealth 986

Cmwlth.2002) Pennsylvania State In Stackhouse v. (sovereign immunity barred Police, (Pa.Cmwlth.2006), pet. Practices the Unfair Trade action under — denied, Pa. allowance Law, of De- Protection Act and Consumer of for -, (2006), A.2d we examined the 539 amended, P.L. cember relief in language requested determin- 201-1-9.3). Moreover, §§ assum- 73 P.S. sovereign immunity ing whether barred actions alleged the Bureau’s ing Petitioner Pennsyl- plaintiffs against claims Petitioner’s claim does negligent, were (PSP). There, vania State Police excep- any fall within enumerated declaratory and filed an action for plaintiff in 42 immunity found sovereign tions monetary injunctive well as for relief as 8522(b). Pa.C.S. allegedly resulting from a PSP damages a legislative pro- the Act is Additionally, trial investigation. The court dismissed nouncement, sovereign any waiver of complaint grounds on the plaintiffs immunity specifically expressed. sovereign immunity. must be Drumheller, generally Powell we reviewed the lan On (1995) (a may party A.2d 619 injunctive plaintiffs request guage bring against a only an action Common- comprised requests relief and found agency wealth where Commonwealth barring an distinct remedies: order two immunity); expressly sovereign waived gath information using the PSP Inc. v. Commonwealth New Founds. any pur investigation ered Servs., Pa., Dep’t Gen. mandating the PSP to pose; order (“[a]bsent (Pa.Cmwlth.2006) legislative guidelines policies relative institute immunity, no seek abrogation party investigations. affair As to the internal against [a to obtain relief Commonwealth request, we reversed the plaintiffs first enjoy.”).6 private parties agency] court such actions are trial because Here, Act the Gen- nothing suggests Id.; immunity. Bon by sovereign barred sovereign Assembly Run, eral intended waive savage Borough Warrior (Pa.Cmwlth.1996). immunity. reviewing A.2d 1330 *7 however, request, we plaintiffs second Furthermore, request Petitioner’s claim was barred sover determined the assignments additional utilization review immunity plaintiff sought eign because monetary damages rather than does by the compel an affirmative action Fawber v. result. In command a different PSP, implementation guidelines (1987) Cohen, Hence, language of the relief policies. explained: Supreme Court sov was determinative whether request ereign immunity plaintiffs barred the [sjuits to compel which seek affirmative claims. toor part action on the state officials recover money damages or to obtain Here, compel a Com- Petitioner seeks are from the Commonwealth property perform an affirmative party monwealth which immunity; rule of suits Procedurally, within the manner. particular in a task officials simply to restrain state relief us request seek reaches Petitioner’s are not performing petition affirmative acts for review. Neverthe- through (Citation less, mandating specific it order immunity. seeks an within the rule deleted.) sovereign immunity omitted; remedy. Because bars emphasis Code, 1702(b) may be to Section of the Procurement certain example, 6. For actions 1702(b). brought pursuant 62 Pa.C.S. against the Commonwealth violated money Hearing claim for dam- Officer found Petitioner Petitioner’s direct in ages, sought petition the relief the Bureau as- applicable regulations, which is meant to financial serts, authority to sustain Peti- he lacked compensation, Shep- is likewise barred. the Bureau appeal. Specifically, tioner’s Accordingly, pard. we required was contends the appeal.7 discretion because to defer to the Bureau’s regard- regulations permit revocation Remedy D. Denial of violation and degree less of the As a result of our decision on the motion in I does our decision Chiro-Med because quash, we do not decide Petitioner’s ignore not authorize the Officer to merits, central Hear- issue remedy compen- Officer denied it a sate for income lost the extended noted, previously As period that its authorization was revoked.8 novo, new, conducted a de review. Chi- note, however, We that after the 127.670(d). I; Ex ro-Med 34 Pa.Code Officer’s decision on remand the Bureau amining concept of de novo review took action which afforded some relief to Department Millcreek Manor v. Public Specifically, apparent Petitioner. at- (Pa.Cmwlth. Welfare, to return tempt position Petitioner to the 2002), explained: we enjoyed revocation, before entails, as term “De novo” review reinstated Petitioner’s authorization for suggests, full consideration of the case unexpired term as of the time of revo- if it anew as was heard before cation, and assignments renewed to it. previously no decision had been ren- currently This action is not before us for reviewing body review. is in effect dered. The prior substituted for the decision-maker Appeal Bureau’s IV. conducting and redecides the case. 2570 C.D.2005 novo, hears the hearing de the tribunal ju- original, appellate, matter in its now turn to the We Bureau’s (Citations risdiction. and footnote omit- which raises issues as to the merits of the ted.) Hearing Officer’s decision. Once the sovereign immunity pre-revocation telephone

7. Because we conclude reau held a confer- claim, bars Petitioner's we will not address ence with Petitioner to address the results of the Bureau’s contention Petitioner waived its investigation, and notified Petitioner *8 damages present claim because it failed to deci- letter of October 2003 of its revocation testimony Hearing on the issue before the right Hearing to to the sion and the Officer. Also, fully Petitioner Officer. R.R. 3a-4a. Hearing participated Officer. before the Hearing 8. Petitioner asserts the Officer’s de- Hearing claims the Officer Petitioner also remedy of a nial is in violation of Article failing process by it due denied substantive Pennsylvania § 11 of the Constitution and of remedy. adequate Petitioner as- an process. Notably, does federal due Petitioner right property a in its authorization. serts challenge constitutionality Act the of the addition, right property a in Petitioner claims or of the assignments during the rev- lost income from Nevertheless, the Bureau afforded Petition- Recognizing possesses a ocation. procedural process providing due it er authorization, right property in its limited opportunity to heard. with notice and be spe- Dist., sovereign immunity the nevertheless bars Flickinger 62 v. Lebanon Sch. 898 A.2d (Pa.Cmwlth.2006). sought specifically, here. More the Bu- cific relief 988 finder, pleas, conducting fact in new review of license

Courts whether a discuss review, conducting may modify modify de im- penalty novo can the suspensions, imposed by an penalty administrative posed by where the record evi- PennDOT in the of agency primarily liquor areas its dences PennDOT abused discretion suspensions and Depart license various range possible selecting penal- when of (PennDOT) ment Transportation of sus provided by ties statute. pensions. now Speaking through Senior Here, of although right the review Judge Kelley, Department in Transpor of by regu Officer is provided tation, Driver v. Licensing Bureau of statute, rather we conclude lation than

Fiore, A.2d 138 Pa.Cmwlth. 588 1332 authority has alter the Officer (1991), the de we examined evolution of the the Bureau’s determination. Under suspensions novo in review driver’s license regulation, the officer is applicable ability modify and the fact finder’s the adjudication to “issue written required penalty imposed by PennDOT. In our all findings ... ... relevant [including] examination, traditionally a we noted that conclusions, [stating] and the rationale not, trial court could new modi for the 34 127.670. decision.” Pa.Code fy un agency’s penalty an administrative Interestingly, although revo the Bureau’s findings less court made of fact and cation letter identified the manner agen of from the conclusions law different regulations, which Petitioner violated cy. Transp., Dep’t Bureau of Traf of findings Bureau made no specific 384 Safety Kobaly, Pa. fic Moreover, fact and conclusions law. (1978); Dep’t Transp., Bureau investiga letter Chevrolet, Bureau’s was based on III Century Motor Vehicles v. evidentiary Inc., tion and did not result from an Pa.Cmwlth. 617 A.2d Thus, the deci (1992). hearing. Hearing Officer’s facts pronouncement sion was the first However, Supreme revisited Court resulting of law and conclusions approach traditional Adair Penn- evidentiary hearing Bu relative Board, sylvania Liquor Control reau’s revocation of Petitioner’s authoriza (1988). There, the statu- tion. tory language allowing com- pleas provided mon could court “sus- Here, found, tain, reject, modify findings, alter dispute, Bureau does Liquor penalties” conclusions and minor. regulations violations of the were Control Board. 471 of See Former Section anew, Reviewing the matter Liquor expan- Code.9 Because could conclude minor vio properly statutory sive conclud- language, the Court lations did not revocation. See warrant pleas Liquor ed could alter the common generally Graterford, State Corr. Inst. regardless Control determination Board’s Brumfield, Corr. v. 141 Pa. Dep’t of findings whether made conclu- (1991) (State 43, 594 A.2d Cmwlth. materially those sions different from modify ap could Civil Service Commission board. authority’s disciplinary measure pointing *9 only charge against employee where one Recog-

Our decision in Fiore followed. Adair, supported by substantial evidence and application of we was nizing the limited minor). charge common other was nevertheless determined 1951, 990, amended, 12, April as deleted when Section 471 was reenacted 9. of P.L. Act 1987, 29, of formerly language § was the Act June P.L. P.S. 4-471. This amended (UROs). addition, majority The affirms es- authority Hearing In tions is sentially Officer to sustain because Petitioner’s violations necessarily implied by appeal process. Hearing “were minor” and because the regulations do not ex- expressly While the ignore the viola- Officer had discretion plain what outcomes can be achieved only option affirming had the tions and outcomes appeal process, least two reversing or the Bureau’s revocation. underlying adjudication are obvious: the is Review Co. v. Bureau Chiro-Med Therefore, either affirmed or reversed. (Pa. Compensation, 879 A.2d 373 Workers’ appeal process implies the existence of an Cmwlth.2005) (Chiro-Med), va Court in authority the reviewer to do some- prior Hearing cated a decision of the Offi thing other than affirm the Bureau. cer, denied Petitioner’s which Accordingly, Hearing we affirm the Offi- of Petitioner’s au the Bureau’s revocation cer’s order.10 perform thorization to utilization reviews. The concluded that the Of Court

ORDER ficer reviewed the Bureau’s improperly NOW, day September, AND this 28th an revocation decision under abuse of dis hereby it is ordered Chiro-Med Re- conducting cretion standard rather than Review, Company’s ap- view Petition for issuing proper de novo deci- QUASHED. C.D.2005, pearing at 2478 is sion based on the evidence. The Court Further, May 2005 order of the Department relied on Millcreek Manor v. Compensation, appeal- Bureau Workers’ (Pa. Welfare, Public C.D.2005, ed at 2570 is AFFIRMED. Cmwlth.2002), Pennsylva and Lawson v. Welfare, nia Public Department SMITH-RIBNER, Judge concurring (Pa.Cmwlth.2000), support dissenting opinion. con conclusion that I concur in the decision to appellate ducted an review the Bureau’s appeal of Company Chiro-Med Review proper than a revocation decision rather (Petitioner). dissent, however, I from the However, in de novo nowhere review. majority’s decision to affirm the order of upon or in the cases it relied Chiro-Med the Bureau of Compensation Workers’ did the authorize the Offi Court Hearing Officer because of the error clear conducting cer in his de novo review to of law committed this matter. The ignore any violations that he found and Hearing Officer reversed the Bureau’s rev- reject regu the Bureau’s revocation. The authority perform ocation of Petitioner’s the Bureau to revoke a permit lations despite finding utilization reviews that Pe- authorization when the Bureau de URO’s titioner violated certain Cost Containment 127.1-127.755, §§ termines that the URO has violated Regulations, 84 Pa.Code governing Organiza- Utilization 34 Pa.Code 127.669. Review therefore, Court, parties appealed 10. After the to this the issue is waived. AT & T v. (DiNapoli), Department Appli- Comp. Appeal Bd. Petitioner filed with the Workers’ Nevertheless, (Pa.Cmwlth.2003). Attorney's pursuant cation to the Act A.2d 355 Fees amended, permit attorney's Act does fees of December P.L. the Cost 2031-35, adjudication grant, commonly §§ as the where the involved the 71 P.S. known suspension Cost The denied and revocation or license Act. Act, Application jurisdic- registration. Section 2 of the Cost dismissed the for want of Thus, event, tion. failed to address P.S. 2032. Petitioner On attorney’s Application fees. in its brief to this Court not entitled to *10 the Hearing Bu- the Officer found Hearing The Officer credited the states that minor and that Bureau following made violations to be the reau’s witnesses and the that findings regarding dispute did not fact. Petitioner’s violations page at his decision: majority’s acquiescence Contrary finds that Hearing 51. This Officer in the conclusion that Peti- unsupported Regulations has violated Chiro-Med are de minimis and tioner’s violations period August the sanction, I worthy avoiding therefore 2, 2003 follows: October as Hearing expressed note that the

a. submitted six determi- Chiro-Med the fact that Petitioner did concern over by in May nations and June of 2003 and that its conduct regulations violate the not Chiro- reviewers that were on Nevertheless, he condoned. should not be panel Med’s reviewers. Chiro-Med must reason- response his be decided that report change a in the list of failed and that an able the violations despite reviewers the Bureau within Peti- to revoke insufficient basis existed Reg- in days change of the violation Hearing The Offi- tioner’s authorization. 127.660 ulation and 127.652. violations, the may simply ignore not cer open may b. for busi- agree Chiro-Med was I the Bureau that he and with in August on 2003 violation validly regula- ness disregard promulgated Regulation 127.657. “are not regulations that the tions and importance, but optional graduated or Though c. finds this upon equally instead apply any in the changes that fee schedule Officer, Bu- Bureau and Chiro-Med.” by of fair- principles were motivated Brief, reau reasonableness, and neverthe- ness less, notify the failure to Chiro-Med’s disagrees that evidently majority The sched- Bureau of deviation fee by Bu- Officer is bound Regulation ule violated 127.652. just as regulations reau’s Also, author- The that Petitioner violated bound them. without regulations whatsoever, concludes that majority any changes ity that information authority to must be Officer had application contained in a URO’s 127.652; de- Bureau, decision reported to the Section alter Bureau’s revocation violation spite having office found Petitioner’s that shall have its business URO it in- regulations. majority mini- finds this at a The open within Commonwealth Monday teresting specific made no p.m. to 5 that Bureau mum from a.m. and findings and law through Friday, holidays, Section of fact conclusions except was based 127.657; that shall have avail- that its revocation letter a URO although ma- hearing, evidentiary services able contract or otherwise the authority for its contention jority no specialty of a distri- offers sufficient number before required other was qualified that physicians bution of authorization. revoke the that the Bureau could practitioner reviewers ensure that regulations provide required, and The perform URO can reviews upon authorization list a URO’s any changes in the of reviewers revoke URO’s following a conference “investigation and reported must be to the Bureau within Medical Cost Con- The of the days change. 127.660. with Chief of the Section Division, Bureau deter- if the of the tainment specify does not nature majority ... has violated mines a URO specific forth the violations found set chapter.” of the act or simply requirements It requirements *11 Bureau fol- 34 Pa.Code 127.669. The Pennsylvania COMMONWEALTH regulatory process.

lowed quite The case law is clear. In UGI v. Utilities, v. Unemployment Compen Inc. LOPEZ, Appellant. Barbara Jean (Pa. Review,

sation Board Cmwlth.2001), this Court affirmed the dis Pennsylvania. Court of Commonwealth unemployment in an missal of May 2006. case because the was not filed on Briefs Submitted specified manner and within the time Sept. Decided conclud Board The Court regulations that applicable appeal ed compli

do not for “substantial also that a court

ance.” It observed agency’s interpretation to an

should defer regulation interpre

of its own unless that clearly is inconsis

tation is erroneous and reg

tent with the statute under which the promulgated.

ulation was

In Popowsky Pennsylvania Public Commission,

Utility 853 A.2d 1106- (Pa.Cmwlth.2004), appeal granted, (2005), 868 A.2d the Court Teledyne

cited Columbia-Summerill Car

negie Unemployment Compensation Review,

Board 160 Pa.Cmwlth. (1993), proposition A.2d 665 for the just agency,

the PUC “like can other ignore apply regula or fail to its own

tions, persons subject and those

agency’s regulation are also Be bound.”

cause the Officer here was bound regulations, the Bureau’s he was not ignore

authorized to Petitioner’s violations

by dismissing them as de minimis. The

Hearing Officer committed an error of law result, regard,

in this aas his order

should Bureau’s revo be reversed and the rein

cation of Petitioner’s authorization

stated.