§ 35.226. Final orders.
(a) Adjudications of an agency head shall be final orders, subject only to application for rehearing, if any, provided for by the statute under which the proceeding is initiated and conducted, except proposed regulations that may be issued in rulemaking. Final orders shall include:
(1) Adjudications by the agency head in proceedings in which the agency head has presided at the reception of evidence.
(2) Adjudications by the agency head upon appeal of proposed reports by participants, by filing exceptions in the manner and time provided by § 35.211 (relating to procedure to except to proposed report), or upon review initiated by the agency head within 10 days next following the expiration of the time for filing exceptions under the section, or another time as the agency head may fix in specific cases.
(3) Proposed reports, upon the expiration of the time provided for an appeal to or review by the agency head without the appeal or review having been initiated.
(4) Adjudications by the agency head in proceeding in which a presiding officer has presided at the reception of evidence and which are not subject to § 35.202 (relating to proceedings in which proposed reports are prepared).
(b) No application for rehearing, provided for by the statute under which a proceeding is initiated and conducted, will be entertained by the agency head until an adjudication is issued and becomes a final order under the provisions of this section.
Notes of Decisions
Lack of Specificity
The Commission ordered a review of the hearing officers 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 staffs 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).
This section cited in 1 Pa. Code § 31.13 (relating to issuance of agency orders); 4 Pa. Code § 89.33 (relating to decisions); 4 Pa. Code § 265.4 (relating to appealslevel III); 6 Pa. Code § 22.95 (relating to formal appeals and hearings); 6 Pa. Code § 30.23 (relating to procedure for redesignation); 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 § 201.11 (relating to proposed opinion and recommendation); 22 Pa. Code § 201.12 (relating to oral argument before the Board); 25 Pa. Code § 1021.134 (relating to adjudications); 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 § 111.18 (relating to decisions of the Board); 34 Pa. Code § 131.56a (relating to withdrawal of appearance); 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 § 73.1 (relating to appeals and petitions for administrative review); 37 Pa. Code § 197.32 (relating to appealable decisions); 37 Pa. Code § 203.103 (relating to hearing procedures); 49 Pa. Code § 37.101 (relating to exceptions to the hearing examiners decision); 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); 58 Pa. Code § 51.26 (relating to procedure in lieu of hearing); and 58 Pa. Code § 51.106 (relating to procedure in lieu of hearing).
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