Subchapter G. PROPOSED REPORTS
PROPOSED REPORTS GENERALLY Sec.
35.201. Certification of record without proposed report.
35.202. Proceedings in which proposed reports are prepared.
35.203. Unavailability of presiding officer.
35.204. Oral argument before presiding officer.
35.205. Contents of proposed reports.
35.206. Proposed report a part of the record.
35.207. Service of proposed reports.
EXCEPTIONS TO PROPOSED REPORTS
35.211. Procedure to except to proposed report.
35.212. Content and form of briefs on exceptions.
35.213. Effect of failure to except to proposed report.
35.214. Oral argument on exceptions.
Cross References This subchapter cited in 25 Pa. Code § 973.7 (relating to fee dispute procedure); 34 Pa. Code § 125.6 (relating to decision on application); 43 Pa. Code § 5.7 (relating to reconsideration and appeals); 43 Pa. Code § 5.20 (relating to reconsideration and appeals); 43 Pa. Code § 5.27 (relating to reconsideration and appeals); 43 Pa. Code § 5.46 (relating to appeals); and 43 Pa. Code § 7.10 (relating to appeals).
PROPOSED REPORTS GENERALLY
§ 35.201. Certification of record without proposed report.
In proceedings in which the agency head has not presided at the reception of evidence, except as otherwise provided in this part, the presiding officer, as soon as practicable after the conclusion of the hearing and expiration of the time for filing of briefs, shall certify and file with the office of the agency, for the consideration of the agency head, a copy of the record of the hearing, and the briefs, if any, filed in the proceeding. When certifying the record to the agency head under this section the presiding officer may not include a proposed report concerning action to be taken by the agency on the matters in issue in the proceeding.
Cross References This section cited in 4 Pa. Code § 39.12 (relating to criminal cases); 4 Pa. Code § 39.13 (relating to civil cases); 4 Pa. Code § 265.2 (relating to level I review); 4 Pa. Code § 265.3 (relating to level II hearings); 4 Pa. Code § 265.4 (relating to appeals—level III); 4 Pa. Code § 607a.20 (relating to proposed decision and order); 6 Pa. Code § 22.95 (relating to formal appeals and hearings); 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); 28 Pa. Code § 1111.10 (relating to hearing examiner decisions); 28 Pa. Code § 1113.3 (relating to adjudication and order); 31 Pa. Code § 56.1 (relating to applicability of general rules); 31 Pa. Code § 56.2 (relating to adjudication procedure); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 81.83 (relating to conduct of hearings); 34 Pa. Code § 111.18 (relating to decisions of the Board); 34 Pa. Code § 121.27 (relating to show cause); 34 Pa. Code § 125.6 (relating to decision on application); 34 Pa. Code § 131.60 (relating to resolution hearings); 34 Pa. Code § 131.111 (relating to decisions of judges); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 37 Pa. Code § 21.61 (relating to hearing examiner’s recommendation); 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 § 5.531 (relating to certification of record without decision); 52 Pa. Code § 1005.202 (relating to certification of record without decision); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 58 Pa. Code § 494a.4 (relating to report or recommendation of the presiding officer); 61 Pa. Code § 703.5 (relating to other submissions); 61 Pa. Code § 703.34 (relating to hearing procedure); and 67 Pa. Code § 491.11 (relating to proposed report).
§ 35.202. Proceedings in which proposed reports are prepared.
In proceedings in which prior to the conclusion of the hearing, the agency head, with notice to the parties, directs (in specific cases or by regulation) the presiding officer to prepare a proposed report, the presiding officer shall retain the record, hold oral argument as he deems necessary under § 35.204 (relating to oral argument before presiding officer), review the record in light of the applicable law, and prepare, certify and file with the office of the agency:
(1) A proposed report.
(2) A copy of the record of the hearing.
(3) The briefs, if any, filed in the proceeding.
Cross References This section cited in 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers); 1 Pa. Code § 35.204 (relating to oral argument before presiding officer); 1 Pa. Code § 35.226 (relating to final orders); 4 Pa. Code § 265.2 (relating to level I review); 4 Pa. Code § 265.3 (relating to level II hearings); 4 Pa. Code § 265.4 (relating to appeals—level III); 4 Pa. Code § 607a.20 (relating to proposed decision and order); 12 Pa. Code § 11.15 (relating to final orders); 22 Pa. Code § 121.8 (relating to applicant and recipient appeals and hearings); 22 Pa. Code § 121.34 (relating to institutional appeals and hearings); 22 Pa. Code § 201.4a (adjudicatory benefit appeal and request for administrative hearing); 22 Pa. Code § 201.11 (relating to proposed opinion and recommendation); 22 Pa. Code § 351.1 (relating to purpose and scope); 28 Pa. Code § 301.7 (relating to fair hearing); 28 Pa. Code § 1113.3 (relating to adjudication and order); 31 Pa. Code § 56.1 (relating to applicability of general rules); 31 Pa. Code § 56.2 (relating to adjudication procedure); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 81.83 (relating to conduct of hearings); 34 Pa. Code § 95.91 (relating to hearings); 34 Pa. Code § 111.18 (relating to decisions of the Board); 34 Pa. Code § 131.60 (relating to resolution hearings); 34 Pa. Code § 131.111 (relating to decisions of judges); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 37 Pa. Code § 21.61 (relating to hearing examiner’s recommendation); 37 Pa. Code § 197.51 (relating to decision of the Hearing Board); 37 Pa. Code § 197.71 (relating to decision of the Hearing Board); 37 Pa. Code § 197.93 (relating to decision of the Hearing Board); 37 Pa. Code § 407.34 (relating to posthearing actions); 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 § 5.531 (relating to certification of record without decision); 52 Pa. Code § 1005.202 (relating to certification of record without decision); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 58 Pa. Code § 51.45 (relating to procedures); 58 Pa. Code § 494a.4 (relating to report or recommendation of the presiding officer); 61 Pa. Code § 703.5 (relating to other submissions); and 67 Pa. Code § 491.11 (relating to proposed report).
§ 35.203. Unavailability of presiding officer.
If a presiding officer becomes unavailable to the agency, the agency head will either designate another qualified officer to prepare a proposed report or will cause the record to be certified to it for decision, as may be deemed appropriate, giving notice to the parties.
Notes of Decisions Application
This regulation does not apply to proceedings in the Insurance Department. Kramer v. Insurance Department, 654 A.2d 203 (Pa. Cmwlth. 1995).
Compliance
If the hearing officer who denied an application for an insurance agent’s license leaves the Insurance Department after the initial hearing but before the matter is reviewed by the Insurance Commissioner and this section is not complied with, the matter will be remanded to the Department for a new hearing. Insurance Department v. MacFarland, 366 A.2d 957 (Pa. Cmwlth. 1976).
Cross References This section cited in 4 Pa. Code § 607a.20 (relating to proposed decision and order); 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); 31 Pa. Code § 56.1 (relating to applicability of general rules); 31 Pa. Code § 56.2 (relating to adjudication procedure); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 111.18 (relating to decisions of the Board); 34 Pa. Code § 131.60 (relating to resolution hearings); 34 Pa. Code § 131.111 (relating to decisions of judges); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 37 Pa. Code § 21.61 (relating to hearing examiner’s recommendation); 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 § 5.486 (relating to unavailability of presiding officer); 52 Pa. Code § 5.531 (relating to certification of record without decision); 52 Pa. Code § 1005.187 (relating to unavailability of presiding officer); 52 Pa. Code § 1005.202 (relating to certification of record without decision); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 58 Pa. Code § 494a.4 (relating to report or recommendation of the presiding officer); 61 Pa. Code § 703.5 (relating to other submissions); and 67 Pa. Code § 491.11 (relating to proposed report).
§ 35.204. Oral argument before presiding officer.
(a) If, in the opinion of the presiding officer in a proceeding subject to § 35.202 (relating to proceedings in which proposed reports are prepared), time permits and the nature of the proceedings, the complexity or importance of the issues of fact or law involved, and the public interest warrant, the presiding officer may, either of his own motion or at the request of a party or staff counsel at or before the close of the taking of testimony, allow and fix a time for the pre-sentation of oral argument, imposing the limits of time on the argument as he deems appropriate. Such argument shall be transcribed and bound with the transcript of testimony.
(b) In oral argument there may be presented proposed findings and conclusions and, if desired, the reasons therefor, and the proposed forms of order or regulation as may be deemed requisite in view of the facts, the law, and the public interest.
Cross References This section cited in 1 Pa. Code § 35.202 (relating to proceedings in which proposed reports are prepared); 4 Pa. Code § 607a.20 (relating to proposed decision and order); 12 Pa. Code § 11.14 (relating to presiding officer); 22 Pa. Code § 351.1 (relating to purpose and scope); 25 Pa. Code § 1021.132 (relating to oral argument after hearing); 31 Pa. Code § 56.1 (relating to applicability of general rules); 31 Pa. Code § 56.2 (relating to adjudication procedure); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 111.17 (relating to oral argument); 34 Pa. Code § 111.18 (relating to decisions of the Board); 34 Pa. Code § 131.60 (relating to resolution hearings); 34 Pa. Code § 131.102 (relating to oral argument); 34 Pa. Code § 131.111 (relating to decisions of judges); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 37 Pa. Code § 21.61 (relating to hearing examiner’s recommendation); 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 § 5.531 (relating to certification of record without decision); 52 Pa. Code § 5.532 (relating to oral argument before presiding officer); 52 Pa. Code § 1005.202 (relating to certification of record without decision); 52 Pa. Code § 1005.204 (relating to briefs and oral argument before presiding officer); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 58 Pa. Code § 51.27 (relating to hearings); 58 Pa. Code § 51.107 (relating to hearings); 58 Pa. Code § 494a.4 (relating to report or recommendation of the presiding officer); 61 Pa. Code § 703.5 (relating to other submissions); and 67 Pa. Code § 491.11 (relating to proposed report).
§ 35.205. Contents of proposed reports.
Proposed reports shall include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record, and (2) the appropriate regulation, order, sanction, relief, or denial thereof. There shall be stated all facts officially noticed under § 35.173 (relating to official notice of facts), relied upon in the decision.
Notes of Decisions Where a Medicare provider hearing is conducted by a hearing attorney designated by the Secretary of the Department of Public Welfare, the finder of fact is the Director of the Office of Hearings and Appeals, not the hearing attorney; to the extent inconsistent, the decisions in Klingerman Nursing Center, Inc. v. Department of Public Welfare, 458 A.2d 653 (Pa. Cmwlth. 1983) and Temple University v. Department of Public Welfare, 480 A.2d 1267 (Pa. Cmwlth. 1984) are specifically overruled. Northwestern Institute of Psychiatry v. Department of Public Welfare, 513 A.2d 495 (Pa. Cmwlth. 1986).
If the proposed report contains no recommended resolution to the matter, but only orders additional hearings, the Commission may properly return the matter to the administrative law judge with the direction to conduct further hearings, if necessary, or to resolve the issues and to present them to the Commission for its final determination. Hillman Coal and Coke Co. v. Pennsylvania Public Utility Commission, 433 A.2d 634 (Pa. Cmwlth. 1981).
Cross References This section cited in 4 Pa. Code § 265.2 (relating to level I review); 4 Pa. Code § 607a.20 (relating to proposed decision and order); 12 Pa. Code § 11.14 (relating to presiding officer); 22 Pa. Code § 121.9 (relating to administrative loan collection review procedures); 22 Pa. Code § 121.10 (relating to administrative wage garnishment procedures for Federal loans); 22 Pa. Code § 201.4a (relating to adjudicatory benefit appeal and request for administrative hearing); 22 Pa. Code § 201.11 (relating to proposed opinion and recommendation); 22 Pa. Code § 351.1 (relating to purpose and scope); 28 Pa. Code § 1113.3 (relating to adjudication and order); 31 Pa. Code § 56.1 (relating to applicability of general rules); 31 Pa. Code § 56.2 (relating to adjudication procedure); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 111.18 (relating to decisions of the Board); 34 Pa. Code § 131.60 (relating to resolution hearings); 34 Pa. Code § 131.111 (relating to decisions of judges); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 37 Pa. Code § 21.61 (relating to hearing examiner’s recommendation); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 49 Pa. Code § 37.83 (relating to hearing examiners); 52 Pa. Code § 5.531 (relating to certification of record without decision); 52 Pa. Code § 1005.202 (relating to certification of record without decision); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 58 Pa. Code § 51.28 (relating to report of the presiding officer); 58 Pa. Code § 51.108 (relating to report of the presiding officer); 58 Pa. Code § 494a.4 (relating to report or recommendation of the presiding officer); 61 Pa. Code § 703.5 (relating to other submissions); and 67 Pa. Code § 491.11 (relating to proposed report).
§ 35.206. Proposed report a part of the record.
Proposed reports shall become a part of the record.
Cross References This section cited in 4 Pa. Code § 607a.20 (relating to proposed decision and order); 12 Pa. Code § 11.14 (relating to presiding officer); 22 Pa. Code § 351.1 (relating to purpose and scope); 31 Pa. Code § 56.1 (relating to applicability of general rules); 31 Pa. Code § 56.2 (relating to adjudication procedure); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 111.18 (relating to decisions of the Board); 34 Pa. Code § 131.60 (relating to resolution hearings); 34 Pa. Code § 131.111 (relating to decisions of judges); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 37 Pa. Code § 21.61 (relating to hearing examiner’s recommendation); 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 § 5.531 (relating to certification of record without decision); 52 Pa. Code § 1005.202 (relating to certification of record without decision); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 58 Pa. Code § 494a.4 (relating to report or recommendation of the presiding officer); 61 Pa. Code § 703.5 (relating to other submissions); and 67 Pa. Code § 491.11 (relating to proposed report).
§ 35.207. Service of proposed reports.
Proposed reports shall be filed with the office of the agency, which shall serve copies thereof upon all parties and staff counsel, whose appearances have been entered under § 31.24 (relating to notice of appearance).
Notes of Decisions A claimant who is not provided with a report of an examiner who rules in favor of the claimant is not harmed by the omission so as to require reversal or remand of a Board decision reversing the examiner. Luckhardt v. State Employes Retirement Board, 459 A.2d 1347 (Pa. Cmwlth. 1983).
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.20 (relating to proposed decision and order); 12 Pa. Code § 11.14 (relating to presiding officer); 22 Pa. Code § 121.9 (relating to administrative loan collection review procedures); 22 Pa. Code § 121.10 (relating to administrative wage garnishment procedures for Federal loans); 22 Pa. Code § 201.11 (relating to proposed opinion and recommendation); 22 Pa. Code § 351.1 (relating to purpose and scope); 31 Pa. Code § 56.1 (relating to applicability of general rules); 31 Pa. Code § 56.2 (relating to adjudication procedure); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 111.18 (relating to decisions of the Board); 34 Pa. Code § 131.60 (relating to resolution hearings); 34 Pa. Code § 131.111 (relating to decisions of judges); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 37 Pa. Code § 21.61 (relating to hearing examiner’s recommendation); 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 § 5.531 (relating to certification of record without decision); 52 Pa. Code § 1005.202 (relating to certification of record without decision); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 61 Pa. Code § 703.5 (relating to other submissions); and 67 Pa. Code § 491.11 (relating to proposed report).
EXCEPTIONS TO PROPOSED REPORTS
§ 35.211. Procedure to except to proposed report.
A participant desiring to appeal to the agency head shall, within 30 days after the service of a copy of a proposed report or such other time as may be fixed by the agency head, file exceptions to the proposed report or part thereof in a brief (designated ‘‘brief on exceptions’’). ‘‘Briefs opposing exceptions’’ may be filed in response to briefs on exceptions within 20 days after the time limited for the filing of briefs on exceptions or such other time as may be fixed by the agency head. No further response will be entertained unless the agency head, with or without motion, so orders.
Notes of Decisions Waiver
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).
Brief on exceptions, although delivered to counsel for Department of Transportation within 30 days, was not filed with the administrative docket clerk until 31 days after the hearing examiner’s proposed report was mailed, therefore, applicant’s exceptions were irrevocably waived. J. B. Steven, Inc. v. Department of Transportation, 627 A.2d 278 (Pa. Cmwlth. 1993).
Cross References This section cited in 1 Pa. Code § 35.213 (relating to effect of failure to except to proposed report); 1 Pa. Code § 35.226 (relating to final orders); 4 Pa. Code § 265.3 (relating to level II hearings); 4 Pa. Code § 265.4 (relating to appeals—level III); 4 Pa. Code § 607a.21 (relating to exceptions); 6 Pa. Code § 22.95 (relating to formal appeals and hearings); 7 Pa. Code § 179.66 (relating to briefs and oral argument); 12 Pa. Code § 11.15 (relating to final orders); 22 Pa. Code § 121.9 (relating to administrative loan collection review procedures); 22 Pa. Code § 121.10 (relating to administrative wage garnishment procedures for Federal loans); 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 § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 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); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 34 Pa. Code § 501.8 (relating to hearings/appeals); 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 § 5.533 (relating to procedure to except to initial, tentative and recommended decisions); 52 Pa. Code § 5.535 (relating to replies); 52 Pa. Code § 1005.211 (relating to exceptions to recommended decisions); 52 Pa. Code § 1005.212 (relating to replies); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 58 Pa. Code § 51.28 (relating to report of the presiding officer); 58 Pa. Code § 51.108 (relating to report of the presiding officer); 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).
§ 35.212. Content and form of briefs on exceptions.
(a) Briefs on exceptions.
(1) Briefs on exceptions shall contain:
(i) A short statement of the case.
(ii) A summary of the basic position of the party filing.
(iii) The grounds upon which the exceptions rest.
(iv) The argument in support with appropriate references to the record and legal authorities.
(2) There may also be included specific findings and conclusions proposed in lieu of those to which exception is taken and any proposed additional findings and conclusions.
(3) Exceptions to the form of order or regulation shall specify the portions thereof to which exception is taken, and may set forth a form of order or regulation suggested in lieu of that served.
(b) Briefs opposing exceptions. Briefs opposing exceptions shall generally follow the same style prescribed for briefs on exceptions, but may omit a statement of the case if it was correctly stated in a brief on exceptions.
(c) Length. Briefs on exceptions and briefs opposing exceptions shall be self contained and limited to 50 pages in length, provided that for good cause the limitation on length may be altered or waived for either class of briefs upon application to and order of the agency head of at least 5 days before the time fixed for filing of the respective briefs.
(d) Copies. Five copies of each brief shall be filed with the office of the agency in addition to the copies served on the participants in the proceedings.
Cross References This section cited in 1 Pa. Code § 33.15 (relating to number of copies); 4 Pa. Code § 607a.21 (relating to exceptions); 4 Pa. Code § 607a.22 (relating to brief opposing exceptions); 7 Pa. Code § 179.66 (relating to briefs and oral argument); 12 Pa. Code § 11.15 (relating to final orders); 22 Pa. Code § 201.11 (relating to proposed opinion and recommendation); 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 § 111.16 (relating to briefs: content and form and time for filing); 34 Pa. Code § 125.6 (relating to decision on application); 34 Pa. Code § 131.101 (relating to briefs, findings of fact and close of record); 34 Pa. Code § 131.112 (relating to correction or amendment of decision); 34 Pa. Code § 213.5 (relating to briefs); 49 Pa. Code § 31.103 (relating to applicability of other laws and rules); 49 Pa. Code § 31.115 (relating to disciplinary sanctions); 49 Pa. Code § 37.101 (relating to exceptions to the hearing examiner’s decision); 52 Pa. Code § 5.533 (relating to procedure to except to initial, tentative and recommended decisions); 52 Pa. Code § 1005.211 (relating to exceptions to recommended decisions); 55 Pa. Code § 41.191 (relating to determination 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).
§ 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).
§ 35.214. Oral argument on exceptions.
A party or staff counsel filing a brief on exceptions or brief opposing exceptions may by motion request an opportunity to present oral argument to the agency head on the proposed report. The motion shall be filed within the time limited for the filing of briefs opposing exceptions. If oral argument is ordered, it shall be limited, unless otherwise specified, to matters properly raised by the briefs.
Cross References This section cited in 7 Pa. Code § 179.66 (relating to briefs and oral argument); 12 Pa. Code § 11.15 (relating to final orders); 22 Pa. Code § 121.9 (relating to administrative loan collection review procedures); 22 Pa. Code § 121.10 (relating to administrative wage garnishment procedures for Federal loans); 22 Pa. Code § 201.12 (relating to oral argument before the Board); 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 § 111.17 (relating to oral argument); 34 Pa. Code § 125.6 (relating to decision on application); 34 Pa. Code § 131.102 (relating to oral argument); 34 Pa. Code § 131.112 (relating to correction or amendment of decision); 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 § 5.538 (relating to oral argument before the Commission); 52 Pa. Code § 1005.214 (relating to oral argument before the Authority); 55 Pa. Code § 41.191 (relating to determinations and recommendations by the Bureau); 58 Pa. Code § 51.45 (relating to procedures); 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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