§ 35.190. Appeals to agency head from rulings of presiding officers.
(a) During hearing or conference. Rulings of presiding officers may not be appealed from during the course of hearings or conferences except in extraordinary circumstances where prompt decision by the agency head is necessary to prevent detriment to the public interest. In such instance the matter shall be referred forthwith by the presiding officer to the agency head for determination.
(b) Offers of proof. An offer of proof made in connection with an objection taken to a ruling of the presiding officer rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by testimony; and if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of the evidence shall be marked for identification and shall constitute the offer of proof.
(c) Action by agency head. Unless the agency head acts upon a question referred by a presiding officer to the agency head for determination or upon an appeal taken to the agency head from a ruling of a presiding officer within 30 days after referral or filing of the appeal, whichever is later, such referral or appeal shall be deemed to have been denied. The participants in the proceeding shall be given appropriate notice of the date of the referral or appeal, by the presiding officer or the appellant, as the case may be.
Notes of Decisions Regulation Inapplicable
Convicted voluntary murderer and former doctor in Massachusetts incorrectly maintained that the Commonwealth’s appeal from the hearing examiner’s decision was deemed denied because the appeal was not acted upon within 30 days by the State Board of Medicine. The Board delegated the application to a hearing examiner for hearing and decision. The procedure provides that an application for review may be made to the Board within 20 days of the date of a hearing examiner’s decision and that the Board may hear arguments and additional evidence if deemed advisable. There is, however, no time limitation on the issuance of a determination by an agency on appeal; nor is there a ‘‘deemed denial’’ period in the applicable statutes. Therefore, reliance on this regulation lent no support to applicant’s position. Barran v. State Board of Medicine, 670 A.2d 765 (Pa. Cmwlth. 1996); appeal denied 679 A.2d 320 (Pa. 1996).
Cross References This section cited in 1 Pa. Code § 35.162 (relating to reception and ruling on evidence); 4 Pa. Code § 607a.21 (relating to exceptions); 7 Pa. Code § 179.59 (relating to presiding officers); 7 Pa. Code § 179.96 (relating to conduct of hearing); 12 Pa. Code § 11.14 (relating to presiding officer); 22 Pa. Code § 351.1 (relating to purpose and scope); 28 Pa. Code § 301.7 (relating to fair hearing); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 111.21 (relating to content and form); 34 Pa. Code § 111.24 (relating to disposition of request for supersedeas); 34 Pa. Code § 125.6 (relating to decision on application); 34 Pa. Code § 131.24 (relating to recusal of judge); 34 Pa. Code § 131.41 (relating to request for supersedeas or reconsideration of supersedeas); 34 Pa. Code § 131.43 (relating to disposition of request for supersedeas); 34 Pa. Code § 131.49 (relating to disposition of automatic request for special supersedeas under section 413(a.1) of the act (77 P. S. § 774(1)); 34 Pa. Code § 131.50a (relating to employee request for special supersedeas under sections 413(c) and (d) of the act); 34 Pa. Code § 131.111 (relating to decisions of judges); 34 Pa. Code § 131.112 (relating to correction or amendment of decision); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 37 Pa. Code § 203.103 (relating to hearing procedures); 40 Pa. Code § 17.9 (relating to briefs); 52 Pa. Code § 5.301 (relating to interlocutory review generally); 52 Pa. Code § 5.414 (relating to offers of proof); 52 Pa. Code § 1005.131 (relating to interlocutory review generally); 52 Pa. Code § 1005.153 (relating to offers of proof); 58 Pa. Code § 491a.7 (relating to presiding officers); 61 Pa. Code § 703.34 (relating to hearing procedure) and 61 Pa. Code § 703.45 (relating to appeal rights).
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