§ 35.213. Effect of failure to except to proposed report.
Failure to file a brief on exceptions within the time allowed under § 35.211 (relating to procedure to except to proposed report) shall constitute a waiver of all objections to the proposed report. Objections to any part of a proposed report which is not the subject of exceptions may not thereafter be raised before the agency head in oral argument, or in an application for agency rehearing or reconsideration, and shall be deemed to have been waived. The agency head may refuse to consider exceptions to a ruling admitting or excluding evidence unless there was an objection at the time the ruling was made or within any deferred time provided by the presiding officer.
Notes of Decisions Exceptions Adequate
Exceptions to the Administrative Law Judge’s recommended decision which allege mathematical errors in ratemaking acknowledged by all parties and harmful to one of them, are not too general and unspecific under this section and may be dismissed out of hand by the Commission. T. W. Phillips Gas and Oil Co. v. Pennsylvania Public Utility Commission, 474 A.2d 355 (Pa. Cmwlth. 1984).
Jurisdictional Issues
A party is not required to challenge the authority of an administrative law judge to grant summary judgment in exceptions to the initial decision because such an issue is jurisdictional and may be raised at any time. Carol Lines, Inc. v. Pennsylvania Public Utility Commission, 439 A.2d 838 (Pa. Cmwlth. 1981); appeal after remanded 480 A.2d 1324 (Pa. Cmwlth 1984).
Waiver
The Commission ordered a review of the hearing officer’s proposed order almost 5 months after the latest date to do so as provided by the Rules of Administrative Procedure. It would be improper to allow the Commission to arbitrarily initiate a review outside the applicable time limits. Therefore, the issues not raised by the staff’s exceptions are deemed to be waived. Kalin v. Securities Commission, 805 A.2d 1258 (Pa. Cmwlth. 2002).
After the Secretary of an agency circulated a copy of the Proposed Report and Recommended Order and advised counsel for the agency that exceptions could be filed within 30 days, and after no exceptions were filed, such inaction constituted a waiver of objections to the Proposed Report and the Proposed Report was deemed a final order by operation of law. Earth Share v. Office of Administration, 660 A.2d 138 (Pa. Cmwlth. 1995).
Taxi company could not raise issue of improper muzzling in Petition for Review where it failed to answer complaint brought by visually handicapped person, offer evidence, cross-examine complainant at Administrative Law Judge hearing, raise issue of improper muzzling and failed to file exceptions to ALJ’s order. Metro Transportation Company v. Pennsylvania Public Utility Commission, 525 A.2d 24 (Pa. Cmwlth. 1987).
Cross References This section cited in 4 Pa. Code § 265.2 (relating to level I review); 4 Pa. Code § 265.4 (relating to appeals—level III); 4 Pa. Code § 607a.21 (relating to exceptions); 7 Pa. Code § 179.66 (relating to briefs and oral argument); 12 Pa. Code § 11.15 (relating to final orders); 22 Pa. Code § 351.1 (relating to purpose and scope); 28 Pa. Code § 301.7 (relating to fair hearing); 31 Pa. Code § 56.1 (relating to applicability of general rules); 31 Pa. Code § 56.2 (relating to adjudication procedure); 34 Pa. Code § 95.98 (relating to decisions of the Board); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 125.6 (relating to decision on application); 34 Pa. Code § 131.112 (relating to correction or amendment of decision); 37 Pa. Code § 203.103 (relating to hearing procedures); 43 Pa. Code § 7.12 (relating to discipline and discharge); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 52 Pa. Code § 5.536 (relating to effect of failure to file exceptions); 52 Pa. Code § 1005.213 (relating to final orders and effect of failure to file exceptions); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 58 Pa. Code § 494a.7 (relating to exceptions); 61 Pa. Code § 703.5 (relating to other submissions); and 67 Pa. Code § 491.12 (relating to exceptions).
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