Section 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.

Notation

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); 6 Pa. Code § 22.95 (relating to formal appeals and hearings); 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); 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); and 67 Pa. Code § 491.12 (relating to exceptions).