Subchapter E. PRESIDING OFFICERS


Sec.


35.185.    Designation of presiding officers.
35.186.    Disqualification of a presiding officer.
35.187.    Authority delegated to presiding officers.
35.188.    Restrictions on duties and activities.
35.189.    Manner of conduct of hearings.
35.190.    Appeals to agency head from rulings of presiding officers.

Cross References

   This subchapter cited in 1 Pa. Code §  35.123 (relating to conduct of hearings); 6 Pa. Code §  3.7 (relating to appointment of a hearing examiner); 22 Pa. Code §  201.4a (relating to adjudicatory benefits appeal and request for administrative hearing); 34 Pa. Code §  111.35 (relating to dispositions of petitions); 34 Pa. Code §  131.54 (relating to manner and conduct of hearings); 34 Pa. Code §  501.8 (relating to hearings/appeals); 43 Pa. Code §  7.10 (relating to appeals); 67 Pa. Code §  491.6 (relating to notice and conduct of hearing); and 104 Pa. Code §  7.16 (relating to RTKL appeals).

§ 35.185. Designation of presiding officers.

 When evidence is to be taken in a proceeding, either the agency head or, when designated for that purpose, one or more of its members, examiners or other representative appointed according to law, may preside at the hearing.

Notes of Decisions

   Finder of Fact

   The Secretary of the Department of Public Welfare is clearly an ‘‘agency head,’’ and this chapter permits the Secretary to act in a fact-finding capacity in provider appeals. Siemon’s Lakeview Manor Estate v. Department of Public Welfare, 703 A.2d 551 (Pa. Cmwlth. 1997); appeal denied 727 A.2d 134 (Pa. 1998).

   The Public School Employees Retirement Board is an agency head and factfinder under this section and the hearing examiner is not the fact finder. Dowler v. Public School Employees Retirement Board, 620 A.2d 639 (Pa. Cmwlth. 1993).

Cross References

   This section cited in 4 Pa. Code §  89.22 (relating to hearing examiner); 4 Pa. Code §  265.3 (relating to level II hearings); 4 Pa. Code §  265.4 (relating to appeals—level III); 6 Pa. Code §  22.95 (relating to formal appeals and hearings); 6 Pa. Code §  30.14 (relating to procedure for designation); 6 Pa. Code §  30.23 (relating to procedure for redesignation); 12 Pa. Code §  11.14 (relating to presiding officer); 22 Pa. Code §  121.9 (relating to administrative loan collection review procedures); 22 Pa. Code §  201.2a (relating to definitions); 28 Pa. Code §  1113.2 (relating to administrative appeal procedures); 34 Pa. Code §  3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code §  71.25 (relating to hearing procedures); 34 Pa. Code §  95.91 (relating to hearings); 34 Pa. Code §  131.60 (relating to resolution hearings); 34 Pa. Code §  401.14 (relating to decertification or refusal to certify); 37 Pa. Code §  21.54 (relating to hearing examiner); 37 Pa. Code §  79.83 (relating to appointment of hearing examiner); 37 Pa. Code §  123.8 (relating to presiding officer); 37 Pa. Code §  407.33 (relating to hearings); 52 Pa. Code §  5.481 (relating to designation of presiding officers); 52 Pa. Code §  1003.73 (relating to Adjudication Department); 52 Pa. Code §  1005.181 (relating to designation of presiding officer); 58 Pa. Code §  51.27 (relating to hearings); 58 Pa. Code §  51.107 (relating to hearings); 58 Pa. Code §  491a.7 (relating to presiding officers); and 61 Pa. Code §  703.34 (relating to hearing procedure).

§ 35.186. Disqualification of a presiding officer.

 A presiding officer may withdraw from a proceeding when he deems himself disqualified, or he may be withdrawn by the agency head for good cause found after timely affidavits alleging personal bias or other disqualification have been filed and the matter has been heard by the agency head or by another presiding officer to whom the agency head has delegated the matter for investigation and report.

Notes of Decisions

   An allegation that the Acting Commissioner presided over some initial hearings although he had appointed a presiding officer to conduct the hearings in the case, thus allegedly commingling investigative, prosecutorial and adjudicative functions in contravention of the companies’ constitutional due process rights, was not sufficient to render the available administrative remedy inadequate, so the companies’ petition was dismissed for failure to exhaust their administrative remedies. National Home Life Assurance Co. v. Insurance Department, 483 A.2d 1036, 1038 (Pa. Cmwlth. 1984).

   Failure to move at the hearing that the hearing examiner disqualify himself on the grounds of bias constitutes a waiver of the issue. Savka v. Department of Education, 403 A.2d 142 (Pa. Cmwlth. 1979).

Cross References

   This section cited in 4 Pa. Code §  89.22 (relating to hearing examiner); 12 Pa. Code §  11.14 (relating to presiding officer); 34 Pa. Code §  3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code §  131.24 (relating to recusal of judge); 34 Pa. Code §  131.59 (relating to mediation); 34 Pa. Code §  401.14 (relating to decertification or refusal to certify); 52 Pa. Code §  5.482 (relating to disqualification of a presiding officer); 52 Pa. Code §  1003.73 (relating to Adjudication Department); 52 Pa. Code §  1005.183 (relating to disqualification of a presiding officer); 58 Pa. Code §  491a.6 (relating to hearing officers); 58 Pa. Code §  491a.7 (relating to presiding officers); and 61 Pa. Code §  703.34 (relating to hearing procedure).

§ 35.187. Authority delegated to presiding officers.

 Presiding officers designated by the agency head to preside at hearings shall have the authority, within the powers and subject to the regulations of the agency, as follows:

   (1)  To regulate the course of hearings, including the scheduling thereof, subject to the approval of the agency head, and the recessing, reconvening, and the adjournment thereof, unless otherwise provided by the agency head, as provided in §  35.102(b) (relating to hearing calendar).

   (2)  To administer oaths and affirmations.

   (3)  To issue subpoenas.

   (4)  To rule upon offers of proof and receive evidence.

   (5)  To take or cause depositions to be taken.

   (6)  To hold appropriate conferences before or during hearings.

   (7)  To dispose of procedural matters but not, before their proposed report, if any, to dispose of motions made during hearings to dismiss proceedings or other motions which involve final determination of proceedings.

   (8)  Within their discretion, or upon direction of the agency head, to certify any question to the agency head for consideration and disposition by the agency head.

   (9)  To submit their proposed reports in accordance with §  35.202 (relating to proceedings in which proposed reports are prepared).

   (10)  To take other action necessary or appropriate to the discharge of the duties vested in them, consistent with the statutory or other authorities under which the agency functions and with the regulations and policies of the agency.

Notes of Decisions

   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 §  89.22 (relating to hearing examiner); 6 Pa. Code §  3.10 (relating to hearing authority); 6 Pa. Code §  22.95 (relating to formal appeals and hearings); 10 Pa. Code §  3.11 (relating to hearing rules); 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); 25 Pa. Code §  1021.107 (relating to authority delegated to hearing examiners); 34 Pa. Code §  3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code §  71.25 (relating to hearing procedures); 34 Pa. Code §  95.91 (relating to hearings); 34 Pa. Code §  131.202 (relating to first hearing information and stay); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 34 Pa. Code §  401.14 (relating to decertification or refusal to certify); 37 Pa. Code §  79.83 (relating to appointment of hearing examiner); 37 Pa. Code §  123.8 (relating to presiding officer); 37 Pa. Code §  197.37 (relating to objections to the record); 37 Pa. Code §  203.103 (relating to hearing procedures); 49 Pa. Code §  16.53 (relating to powers and duties of hearing examiners); 51 Pa. Code §  21.24 (relating to hearing officer); 52 Pa. Code §  5.483 (relating to authority of presiding officers); 52 Pa. Code §  1003.73 (relating to Adjudication Department); 52 Pa. Code §  1005.184 (relating to authority of presiding officer); 58 Pa. Code §  145.12 (relating to hearing authority); 58 Pa. Code §  491a.7 (relating to presiding officers); and 61 Pa. Code §  703.34 (relating to hearing procedure).

§ 35.188. Restrictions on duties and activities.

 (a)  Presiding officers may perform no duties inconsistent with their duties and responsibilities as such.

 (b)  Save to the extent required for the disposition of ex parte matters as authorized by law and by the regulations of the agency, no presiding officer shall, in a proceeding which the agency head has directed be conducted under this subsection, consult a person or party on a fact in issue unless upon notice and opportunity for participants to participate.

Cross References

   This section cited in 4 Pa. Code §  89.22 (relating to hearing examiner); 34 Pa. Code §  3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code §  131.59 (relating to mediation); 34 Pa. Code §  131.59a (relating to voluntary mediation); 34 Pa. Code §  131.59b (relating to mandatory mediation); 34 Pa. Code §  131.202 (relating to first hearing information and stay); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 34 Pa. Code §  401.14 (relating to decertification or refusal to certify); 37 Pa. Code §  203.103 (relating to hearing procedures); 52 Pa. Code §  5.484 (relating to restrictions on duties and activities); 52 Pa. Code §  1005.185 (relating to restrictions on duties and activities); 58 Pa. Code §  491a.7 (relating to presiding officers); and 61 Pa. Code §  703.34 (relating to hearing procedure).

§ 35.189. Manner of conduct of hearings.

 It is the duty of the presiding officer to conduct a fair and impartial hearing and to maintain order. Any disregard by participants or counsel of rulings of the presiding officer on matters of order and procedure shall be noted on the record, and if he deems it necessary, shall be made the subject of a special written report to the agency head. In the event that participants or counsel should be guilty of disrespectful, disorderly or contumacious language or conduct in connection with any hearing, the presiding officer immediately may submit to the agency head his report thereon, together with his recommendations, and in his discretion suspend the hearing.

Cross References

   This section cited in 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 §  401.14 (relating to decertification or refusal to certify); 37 Pa. Code §  203.103 (relating to hearing procedures); 52 Pa. Code §  5.485 (relating to manner of conduct of hearings); 52 Pa. Code §  1005.186 (relating to manner of conduct of hearings); 58 Pa. Code §  491a.7 (relating to presiding officers); and 61 Pa. Code §  703.34 (relating to hearing procedure).

§ 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); 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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