This article originally appeared in The Legal Intelligencer

In-House Counsel

Countdown FiveFor 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.

The Pennsylvania General Rules of Administrative Practice and Procedure (general rules) set the basic ground rules for administrative litigation in agencies of the commonwealth. However, state agencies can and often do alter these procedures by publishing rules of their own. The degree of difference between the general rules and an agency’s specific rules can vary widely depending on the agency and subject matter.

In this golden age of administrative law, here are five crucial mistakes to avoid in Pennsylvania administrative litigation.

• Alienating agency counsel.

Having worked as a government attorney for 20 years, there were very few instances where I allowed an overly aggressive trial attorney used to contentious court battles have his way without a fight. Agency counsel are often dedicated professionals with large caseloads that ­respond more favorably to counsel who engage in a constructive ­dialogue about the issues instead of rough-and-tumble tactics. While the adversarial nature of litigation is unavoidable even in an ­administrative context, counsel handling a dispute with an agency should keep a running dialogue with agency counsel in the hopes of coming to an amicable ­resolution where both sides come away with a win.

• Failure to timely answer complaints and petitions.

This sounds like a no-brainer, but there is a tendency for some attorneys who do not regularly practice before administrative agencies to assume that the rules ­governing the timely filing of pleadings and other documents are relaxed in an administrative setting. This may be the result of the widely understood principle that the rules of evidence are not strictly enforced in such proceedings. But the two should never be confused with one another. Rule 31.11 of the General Rules makes it clear that pleadings such as answers to complaints and petitions must be received for filing at the office of the agency within the time limits, if any, for the filing. Generally speaking, the default time limit for such answers under Rule 35.35 is 20 days, but an agency can shorten that time to as little as 10 days. This requires fast action on counsel’s part to avoid a default.

• Failure to exhaust administrative remedies.

It is generally well known that exhaustion of available administrative remedies is a condition precedent to filing an ­appeal or petition for review adverse to a state agency in the Commonwealth Court. But it is not uncommon for inexperienced counsel—interested in getting the case before the Commonwealth Court as soon as possible—to pull the trigger too early, without fully exhausting all administrative remedies. One of the biggest traps in that regard is Rule 35.20, which requires actions taken by a subordinate officer of an agency to be appealed to the agency head within 10 days. This is exactly what happened in Citizens Concerned About Taxes v. Department of Education , 739 A.2d 1129 (Pa. Cmwlth. 1999), where the Commonwealth Court determined that it lacked appellate jurisdiction over the Pennsylvania Department of Education’s final approval of the school board’s plan for bid awards, where the petitioners failed to appeal to the secretary of education the ­issues addressed by the division chief.

• Failure to preserve issues and introduce evidence before the agency.

The Commonwealth Court has made it crystal clear that “when a party fails to raise an issue, even one of a constitutional dimension, in an agency proceeding, the issue is waived and cannot be considered for the first time in a judicial appeal,” as in R.J.W. v. Department of Human Services , 139 A.3d 270 (Pa.Cmwlth. 2016). The Commonwealth Court has also reiterated time and time again that “the court expects that the record will be developed at the administrative hearing, not at the appellate level,” as in Umedman v. Unemployment Compensation Board of Review, 52 A.3d 558 (Pa.Cmwlth. 2012). Despite these long-established principles, there is no shortage of decisions from the Commonwealth Court denying review of new issues and evidence on the grounds that counsel failed to make a proper record before the agency.

• Failure to appreciate the Commonwealth Court’s jurisdiction.

The determination as to whether a state administrative agency’s action is subject to challenge in the commonwealth’s original or appellate jurisdiction is not ­always a clear one. While a comprehensive discussion of the finer points of the Commonwealth Court’s original and ­appellate jurisdiction is beyond the scope of this article, counsel is advised that the starting point for such a determination is whether a statute or court rule specific to the matter under review specifies that a challenge to the agency’s determination be styled in the Commonwealth Court’s original or appellate jurisdiction. In the absence of such specificity, counsel should proceed with great caution before limiting its challenge to the Commonwealth Court’s original jurisdiction. The Commonwealth Court’s original jurisdiction of actions against the commonwealth is limited to those not within its appellate jurisdiction. Both the Administrative Agency Law and the Judicial Code contemplate that a person aggrieved by an adjudication of a ­commonwealth agency have a right to file an appeal in the Commonwealth Court’s appellate jurisdiction, 2 Pa.C.S. Section 702; 42 Pa.C.S. Section 763(a). Any such appeal must ordinarily be filed within 30 days of the adjudication. Bypassing the filing of an appeal in favor of an action in the Commonwealth Court’s original ­jurisdiction is a decision that should not be taken lightly in light of the ­possibility that a wrong decision could result in waiver of valuable appellate rights.

Reprinted with permission from the “December 27, 2016” edition of the “The Legal Intelligencer”© 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or visit

Christopher D. Carusone is a Partner in the Firm’s Harrisburg office, where he serves as Chair of the Firm’s Government Law & Regulatory Affairs and Energy & Utilities Groups, as well as Co-Chair of the Internal Investigations Group.