§ 35.180. Action on motions.
(a) The presiding officer designated to preside at a hearing is authorized to rule upon any motion not formally acted upon by the agency head prior to the commencement of the hearing where immediate ruling is essential in order to proceed with the hearing, and upon any motion filed or made after the commencement of the hearing and prior to the submission of his proposed report in the proceedings, except that no motion made before or during a hearing, a ruling upon which would involve or constitute a final determination of the proceeding, shall be ruled upon by a presiding officer except as a part of his proposed report submitted after the conclusion of the hearing. A presiding officer may refer any motion to the agency head for ultimate determination. The agency head will rule upon all other motions and upon such motions as presiding officers may certify to the agency head for disposition.
(b) With respect to any motion filed with the agency head after a hearing has commenced, or made to a presiding officer after a hearing has commenced and referred to the agency head, unless the agency head acts within 30 days after such filing or referral, whichever is later, the motion shall be deemed to have been denied. The presiding officer, either by an announcement on the record where the hearing is in session or by written notice if the hearing is in recess, shall notify the parties to the proceeding of the date on which a motion is referred to the agency head.
Notes of Decisions Finder of Fact
The Public School Employees Retirement Board is an agency head and factfinder under this section and the hearing examiner is not the factfinder. Dowler v. Public School Employees Retirement Board, 620 A.2d 639 (Pa. Cmwlth. 1993).
The Deputy Insurance Commissioner, who reviewed and granted a motion for summary judgment after finding no factual dispute, complied with this section when he acted on behalf of the Commissioner and not as a presiding officer. United Health-Care Benefits Trust v. Insurance Commission of Pennsylvania, 620 A.2d 81 (Pa. Cmwlth. 1993).
The rules of the EHB supplemented those under this section to provide that final decisions of the EHB shall be by majority vote. Snyder v. Department of Environmental Resources, 588 A.2d 1001 (Pa. Cmwlth. 1991); appeal granted 606 A.2d 904 (Pa. 1992); appeal dismissed 632 A.2d 308 (Pa. 1993).
Where no material facts were in dispute, it was proper for the presiding officer to decide a motion to dismiss after briefs and oral arguments and without an evidentiary hearing under this section. Mellinger v. Department of Community Affairs, 533 A.2d 1119 (Pa. Cmwlth. 1987).
It is improper for an administrative law judge to grant summary judgment, which constitutes a final determination of the proceedings under subsection (a), prior to the conclusion of a hearing. 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).
A hearing is not required when the entire board rather than the presiding officer alone dismisses a claim of a petitioner. Lebanon County Sewage Council v. Department of Environmental Resources, 382 A.2d 1310 (Pa. Cmwlth. 1978).
Waiver of Error
While it was procedural error for a hearing officer to dismiss proceedings prior to the submission of a final report, that error was waived by the contractor and will not be heard on appeal. Balfour Beatty Construction Co. v. Department of Transportation, 783 A.2d 901 (Pa. Cmwlth. 2001).
Cross References This section cited in 4 Pa. Code § 89.30 (relating to motions); 12 Pa. Code § 11.11 (relating to motions); 34 Pa. Code § 131.53b (relating to bifurcation and motions for disposition of a petition); 52 Pa. Code § 5.103 (relating to hearing motions); 52 Pa. Code § 1005.71 (relating to motions); 55 Pa. Code § 41.132 (relating to actions on motions); 58 Pa. Code § 493a.8 (relating to motions generally); 58 Pa. Code § 493a.9 (relating to preliminary motions); and 61 Pa. Code § 703.34 (relating to hearing procedure).
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