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Pennsylvania Code



Subchapter H. AGENCY ACTION


BRIEFS AND ARGUMENT IN ABSENCE OF
PROPOSED REPORT

Sec.


35.221.    Briefs and oral argument in absence of proposed report.

DECISIONS


35.225.    Interlocutory orders.
35.226.    Final orders.

Cross References

   This section cited in 34 Pa. Code §  125.6 (relating to decision on application).

BRIEFS AND ARGUMENT IN ABSENCE OF
PROPOSED REPORT


§ 35.221. Briefs and oral argument in absence of proposed report.

 In proceedings in which the agency head has not directed the preparation of a proposed report, a participant filing a brief may by motion request an opportunity to present oral argument to the agency head. The motion shall be filed within the time limited for the filing of reply briefs. 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 4 Pa. Code §  89.32 (relating to briefs and oral argument); 4 Pa. Code §  265.4 (relating to appeals—level III); 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 §  95.91 (relating to hearings); 34 Pa. Code §  111.16 (relating to briefs: content and form and time for filing); 34 Pa. Code §  111.17 (relating to oral argument); 34 Pa. Code §  121.27 (relating to orders to show cause); 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 §  131.102 (relating to oral argument); 37 Pa. Code §  171.95 (relating to trial briefs); 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); and 61 Pa. Code §  703.5 (relating to other submissions).

DECISIONS


§ 35.225. Interlocutory orders.

 (a)  When the agency head has made an order which is not a final order, a participant may by motion request that the agency head find, and include the finding in the order by amendment, that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order under 42 Pa.C.S. §  702 (relating to interlocutory order) may materially advance the ultimate termination of the matter. The motion shall be filed within 10 days after service of the order, and shall be subject to §  35.179 (relating to objections to motions). Unless the agency head acts within 30 days after the filing of the motion, the motion shall be deemed denied.

 (b)  Neither the filing of a motion under subsection (a), nor the adoption of an amended order containing the requested finding, shall stay a proceeding before the agency head or presiding officer unless otherwise ordered by the agency head or the Commonwealth Court.

Source

   The provisions of this §  35.225 amended through May 20, 1977, 7 Pa.B. 1308. Immediately preceding text appears at serial page (19282).

Cross References

   This section cited in 4 Pa. Code §  89.33 (relating to decisions); 12 Pa. Code §  11.15 (relating to final orders); 22 Pa. Code §  351.1 (relating to purpose and scope); 25 Pa. Code §  1021.153 (relating to amendment of interlocutory orders); 28 Pa. Code §  301.7 (relating to fair hearing); 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 §  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 §  131.53b (relating to bifurcation and motions for disposition of a petition); 34 Pa. Code §  131.56a (relating to withdrawal of appearance); 34 Pa. Code §  131.111 (relating to decisions of judges); 52 Pa. Code §  5.633 (relating to certification of interlocutory orders); 52 Pa. Code §  1005.243 (relating to certification of interlocutory orders); and 61 Pa. Code §  703.45 (relating to appeal rights).

§ 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 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).

   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).

Cross References

   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 appeals—level III); 4 Pa. Code §  607a.20 (relating to proposed decision and order); 4 Pa. Code §  607a.24 (relating to final decision and order); 6 Pa. Code §  22.95 (relating to formal appeals and hearings); 6 Pa. Code §  30.23 (relating to procedure for redesignation); 7 Pa. Code §  179.70 (relating to Commission decisions); 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 examiner’s 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); 58 Pa. Code §  51.106 (relating to procedure in lieu of hearing); and 61 Pa. Code §  703.45 (relating to appeal rights).


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