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COMMONWEALTH OF PENNSYLVANIA

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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 51 Pa.B. 6892 (October 30, 2021).

Pennsylvania Code



Subchapter G. RECOMMENDED DECISIONS AND APPEALS


RECOMMENDED DECISIONS

Sec.


1005.201.    Recommended decisions generally.
1005.202.    Certification of record without decision.
1005.203.    Appeal hearings.
1005.204.    Briefs and oral argument before presiding officer.

EXCEPTIONS TO RECOMMENDED DECISIONS


1005.211.    Exceptions to recommended decisions.
1005.212.    Replies.
1005.213.    Final orders and effect of failure to file exceptions.
1005.214.    Oral argument before the Authority.
1005.215.    Withdrawal of appeals.

RECOMMENDED DECISIONS


§ 1005.201. Recommended decisions generally.

 (a)  This subchapter applies only to proceedings referred to a presiding officer for a recommended decision by a provision of this part or order of the Authority.

 (b)  The Authority will employ the use of recommended decisions in lieu of proposed reports.

Cross References

   This section cited in 52 Pa. Code §  1003.54 (relating to protests); 52 Pa. Code §  1003.73 (relating to Adjudication Department); 52 Pa. Code §  1005.24 (relating to appeals from actions of the staff); 52 Pa. Code §  1005.184 (relating to authority of presiding officer); 52 Pa. Code §  1005.202 (relating to certification of record without decision); and 52 Pa. Code §  1011.4 (relating to annual assessments and renewal fees).

§ 1005.202. Certification of record without decision.

 (a)  If a proceeding is referred to a presiding officer as provided in §  1005.201 (relating to recommended decisions generally), that officer will normally file a decision. The record will be certified to the Authority without a decision of the presiding officer only as required or allowed by the Authority.

 (b)  Subsection (a) supersedes 1 Pa. Code § §  35.201—35.207 (relating to proposed reports generally).

Cross References

   This section cited in 52 Pa. Code §  1003.54 (relating to protests); 52 Pa. Code §  1003.73 (relating to Adjudication Department); 52 Pa. Code §  1005.24 (relating to appeals from actions of the staff); and 52 Pa. Code §  1011.4 (relating to annual assessments and renewal fees).

§ 1005.203. Appeal hearings.

 In the event a matter is referred to a presiding officer with instructions to conduct hearings to develop an evidentiary record or if the petition for appeal avers a material factual dispute which the presiding officer determines necessitates a hearing, the hearing will be conducted as provided in Subchapter B (relating to hearings).

Cross References

   This section cited in 52 Pa. Code §  1003.54 (relating to protests); 52 Pa. Code §  1003.73 (relating to Adjudication Department); 52 Pa. Code §  1005.24 (relating to appeals from actions of the staff); and 52 Pa. Code §  1011.4 (relating to annual assessments and renewal fees).

§ 1005.204. Briefs and oral argument before presiding officer.

 (a)  In matters which do not require a hearing to develop an evidentiary record, the presiding officer may issue a recommended decision upon review of the petition and answer, if any.

 (b)  On the presiding officer’s own motion or at the request of a party, the presiding officer may order the filing of briefs in a form consistent with Subchapter F (relating to briefs) on a schedule the presiding officer deems appropriate.

 (c)  In the event briefs are filed, on the presiding officer’s own motion or at the request of a party the presiding officer may order the presentation of oral argument and impose limits on the argument that are deemed appropriate. When determining the propriety of oral argument the presiding officer will consider the limitations of time, the nature of the proceedings, the complexity or importance of the issues of fact or law involved and the public interest.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code §  35.204 (relating to oral argument before presiding officer).

Cross References

   This section cited in 52 Pa. Code §  1003.54 (relating to protests); 52 Pa. Code §  1003.73 (relating to Adjudication Department); 52 Pa. Code §  1005.24 (relating to appeals from actions of the staff); and 52 Pa. Code §  1011.4 (relating to annual assessments and renewal fees).

EXCEPTIONS TO RECOMMENDED DECISIONS


§ 1005.211. Exceptions to recommended decisions.

 (a)  Subject to subsection (f), a party may file written exceptions to the recommended decision of a presiding officer with the Clerk within 15 days after the recommended decision is issued, unless some other exception period is provided. Exceptions may not be filed with respect to an interlocutory decision.

 (b)  Each exception must be numbered and identify the finding of fact or conclusion of law to which exception is taken and cite relevant pages of the decision. Supporting reasons for the exceptions must follow each specific exception.

 (c)  The exceptions must be concise. The exceptions and supporting reasons must be limited to 20 pages in length. Statements of reasons supporting excep-tions must, insofar as practicable, incorporate by reference and citation, relevant portions of the record and passages in previously filed briefs. A separate brief in support of or in reply to exceptions may not be filed with the Clerk.

 (d)  An original and 12 copies of the exceptions shall be filed with the Clerk.

 (e)  Unless otherwise ordered by the Authority, § §  1001.11 and 1001.54 (relating to date of filing; and date of service) will not be available to extend the time periods for filing exceptions.

 (f)  A presiding officer’s decision related to an enforcement proceeding will not be subject to exception or administrative appeal, except as provided in section 5705(a) of the act (relating to contested complaints).

 (g)  Subsections (a)—(f) supersede 1 Pa. Code § §  35.211 and 35.212 (relating to procedure to except to proposed report; and content and form of briefs on exceptions).

Cross References

   This section cited in 52 Pa. Code §  1003.13 (relating to hearings following issuance of emergency orders); 52 Pa. Code §  1003.25 (relating to Authority review of interim emergency orders); 52 Pa. Code §  1003.32 (relating to out of service designation); 52 Pa. Code §  1003.51 (relating to applications generally); 52 Pa. Code §  1005.213 (relating to final orders and effect of failure to file exceptions); 52 Pa. Code §  1005.214 (relating to oral argument before the Authority); and 52 Pa. Code §  1011.4 (relating to annual assessments and renewal fees).

§ 1005.212. Replies.

 (a)  A party has the right to file a reply to an exception in proceedings before the Authority. Unless otherwise directed by the Authority or presiding officer, a reply shall be filed within 10 days of the date that an exception is filed and be limited to 20 pages in length and in paragraph form. A reply must be concise and incorporate by reference relevant passages in previously filed briefs. A reply may not raise new arguments or issues, but be limited to responding to the arguments or issues in the exception.

 (b)  Unless otherwise ordered by the Authority, § §  1001.11 and 1001.54 (relating to date of filing; and date of service) will not be available to extend the time periods for filing replies to an exception.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  35.211 (relating to procedure to except to proposed report).

Cross References

   This section cited in 52 Pa. Code §  1003.13 (relating to hearings following issuance of emergency orders); 52 Pa. Code §  1003.25 (relating to Authority review of interim emergency orders); and 52 Pa. Code §  1003.32 (relating to out of service designation).

§ 1005.213. Final orders and effect of failure to file exceptions.

 (a)  Enforcement proceedings. A presiding officer’s decision related to an enforcement proceeding will become a final order or adjudication of the Authority as provided in section 5705(a) of the act (relating to contested complaints).

 (b)  Other proceedings. If no exceptions are filed in a proceeding included within §  1005.211(a) (relating to exceptions to recommended decisions), the decision of the presiding officer will become a final order or adjudication of the Authority without further Authority action unless, within 15 days after the decision is issued, two or more members of the Authority request that the General Counsel schedule the decision for Authority review. Authority action on exceptions will be a final order or adjudication.

 (c)  Supersession. Subsections (a) and (b) supersede 1 Pa. Code § §  35.213 and 35.226 (relating to effect of failure to except to proposed report; and final orders).

Cross References

   This section cited in 52 Pa. Code §  1001.13 (relating to issuance of Authority orders); 52 Pa. Code §  1003.13 (relating to hearings following issuance of emergency orders); 52 Pa. Code §  1003.25 (relating to Authority review of interim emergency orders); and 52 Pa. Code §  1003.32 (relating to out of service designation).

§ 1005.214. Oral argument before the Authority.

 (a)  In a case brought to the Authority by the filing of an exception or appeal, a request for oral argument before the Authority shall be filed in writing together with the appeal.

 (b)  In a case where exceptions are filed under §  1005.211 (relating to exceptions to recommended decisions), a request for oral argument before the Authority shall be filed in writing together with exceptions to the recommended decision or a reply.

 (c)  In a case where a recommended decision will not be issued, a request for oral argument before the Authority shall be filed in writing together with the initial or responding brief.

 (d)  If oral argument is ordered, it shall be limited, unless otherwise specified, to matters properly raised by the briefs.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code § §  35.214 and 35.221 (relating to oral argument on exceptions; and briefs and oral argument in absence of proposed report).

Cross References

   This section cited in 52 Pa. Code §  1003.13 (relating to hearings following issuance of emergency orders); 52 Pa. Code §  1003.25 (relating to Authority review of interim emergency orders); and 52 Pa. Code §  1003.32 (relating to out of service designation).

§ 1005.215. Withdrawal of appeals.

 (a)  The filing of exceptions to a recommended decision will be deemed to be an appeal to the Authority of the recommended decision and is subject to review by the Authority.

 (b)  An appeal to the Authority may be withdrawn at any time. If the presiding officer’s previous decision is not otherwise subject to Authority review, it becomes final and effective upon the filing of a notice of withdrawal.

Cross References

   This section cited in 52 Pa. Code §  1003.13 (relating to hearings following issuance of emergency orders); 52 Pa. Code §  1003.25 (relating to Authority review of interim emergency orders); and 52 Pa. Code §  1003.32 (relating to out of service designation).



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