1. (a) An appeal or complaint may be amended as of right within 20 days after the filing thereof.
2. (b) After the 20-day period for amendment as of right, the Board, upon motion by the appellant or complainant, may grant leave for further amendment of the appeal or complaint. This leave may be granted if no undue prejudice will result to the opposing parties. The burden of proving that no undue prejudice will result to the opposing parties is on the party requesting the amendment.
3. (c) These motions shall be governed by the procedures in § § 1021.91 and 1021.95 (relating to general; and miscellaneous motions) except that the motion shall be verified and supported by affidavits.
4. (d) If motion to amend is granted, a party may request, in writing, a period of time to conduct additional discovery limited to the issues raised by the amendment. These requests shall specify a period deemed necessary therefor. The Board will act on any such request as its discretion requires.

5. (e) Subsections (a)—(d) supersede 1 Pa. Code § § 35.5—35.7 and 35.9—35.11 (relating to informal complaints; and formal complaints).

   Comment: In addition to establishing a new standard for assessing requests for leave to amend an appeal, this rule clarifies that a nunc pro tunc standard is not the appropriate standard to be applied in determining whether to grant leave for amendment of an appeal, contrary to the apparent holding in Pennsylvania Game Commission. v. Department of Environmental Resources, 509 A.2d 877 (Pa. Cmwlth. 1986).

Source

The provisions of this § 1021.53 amended August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended February 10, 2006, effective February 11, 2006, 36 Pa.B. 709. Immediately preceding text appears at serial pages (313848) to (313849).

Notes of Decisions

Company was not entitled to leave to amend its notice of pleading on appeal to the Environmental Hearing Board from issuance by the Department of Environmental Protection of a mining permit revision regarding protection of biologically diverse streams, where company’s request failed to provide any facts or averments demonstrationg that the requested relief would not result in prejudice to Department. The company bore the burden of establishing a lack of prejudice, and it failed to satisfy its burden in this regard. Consol Pennsylvania Coal Co., LLC v. Dep’t of Envtl. Prot., 129 A.3d 28 (Pa. Cmwlth. 2015).

Cross References

This section cited in 25 Pa. Code § 1021.52 (relating to timeliness of appeal); and 25 Pa. Code § 1021.83 (relating to substitution of parties).