[27 Pa.B. 414]
[Continued from previous Web Page]
Statement of Commissioner John Hanger One issue in this proceeding requires attention because it is a barrier to due process before this Commission.
Regulation 1.21 should be amended to make clear that nonattorneys may be witnesses presenting factual testimony in adversarial hearings before an ALJ without having to hire an attorney to sponsor testimony. As written, Regulation 1.21 requires attorney representation for partnerships, corporations, trust, associations, agencies, political subdivisions, and governmental entities in all adversarial proceedings. While attorneys should be required to represent others in matters requiring the practice of law, the existing requirement, as codified in the revised regulation, has been applied in inconsistent and incoherent ways. In particular, the owners of incorporated taxi cab companies are regularly prevented from even appearing as a witness to respond to allegations that a violation of the medallion act has occurred unless they hire an attorney to sponsor them.
Owners of incorporated cab companies and other closely-held utilities can responsibly appear as witness to provide testimony without difficulty and without reaching any ''legal issues'', let alone without practicing law. The ALJ should have the authority to require attorney representation if a case should ever involve legal matters.
Refusal to permit cab owners to testify without hiring an attorney to represent them routinely results in dismissal of the cases. Certainly, now that an attorney representation requirement is being imposed on incorporated medallion owners, many cab owners probably just go ahead and pay the fine even if they believe they have committed no violation. In short, small businesses are being deprived of their right to defend against an enforcement action, because it costs more money to defend the case than it does to pay the fine. That is wrong.
Ironically, these very same medallion cases, before the very same ALJs, are prosecuted by nonattorneys representing the Public Utility Commission and the Commonwealth of Pennsylvania. No Commission prosecutory law-yers present the testimony of the police officers who initiated the complaint. Why? Because the Commission considers it too expensive to do so. Of course, the Commission is right. Why should the prosecutor, who inherently must argue that a violation of the law occurred, be permitted to be a nonattorney when the respondent, who need only say what happened, hire an attorney? It is simply unfair and denies access to this Commission.
On the other hand, this Commission has routinely permitted municipal officials, corporate executives and other appropriate persons to appear on behalf of municipalities, governmental agencies, corporations and other entities in public input hearings during adversarial rate cases. While it is entirely appropriate to allow this practice in my view, this practice violates Regulation 1.21 as written and as interpreted by the Commission. After all, these individuals appear without counsel to provide factual testimony and make argument on behalf of their employers.
Regulation 1.21 harms the taxi industry, small water companies and other small, closely-held utilities. For example, most taxi cabs are owned by corporations although the ownership of the corporation is limited to one or a few individuals who in fact run the business and frequently drive cabs themselves. There usually are no outside shareholders.
Yet, this Commission continues to insist that to permit the medallion owners to appear before an ALJ as a witness without an attorney would be to condone the unauthorized practice of law, risking prosecution and the disbarment of our judges. Why is this any more the unauthorized practice of law than testimony at public input hearings in adversarial rate cases?
Certainly the issues are much more complex with much more money at stake in rate cases than in medallion cases. Medallion cases usually involve a proposed fine of no more than a few hundred dollars for violations of medallion regulations such as failing to maintain a current log, failure to display the taxi-driver certificate, or driving on worn tires or having a dirty trunk. The testimony provided by the witness is likely to include such statements as, ''the windshield was cracked because a rock hit it right before my cab was inspected,'' or ''I was on my way to the shop to have my taillight fixed when I was pulled over,'' or ''I was not on duty. I was picking my son up from school.''
The basis for the general rule requiring attorney representation in all adversarial cases is that only an attorney may represent another in the practice of law. Corporations and the other nonindividual parties specified are separate legal entities. To constitute the ''practice of laws,'' however the activity must include representation of others in legal matters. Permitting a witness to provide factual testimony simply is not a legal matter. ''Practicing law'' requires at least some degree of holding oneself out to the public to provide representation in legal matters. Allowing the owners of these small businesses to present factual matters concerning their own business simply is not the practice of law.
This Commission must not erect unnecessary and expensive barriers to participation in our proceedings.
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 5915 (December 7, 1996).)
Fiscal Note: Fiscal Note 57-156 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 1. RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE
Subchapter A. GENERAL PROVISIONS § 1.1. Scope of subpart.
(a) This subpart governs the practice and procedure before the Commission.
(b) This subpart is intended to supersede the applicability of 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) to practice and procedure before the Commission.
§ 1.3. Information and special instructions.
(a) Information as to procedures under this subpart, and instructions supplementing this subpart in special instances, will be furnished upon application to:
Prothonotary
Pennsylvania Public Utility Commission
Post Office Box 3265
North Office Building
Harrisburg, Pennsylvania 17105-3265(b) Subsection (a) is identical to 1 Pa. Code § 31.4 (relating to information and special instructions).
§ 1.4. Filing generally.
(a) Submittals, pleadings and other documents filed with the Commission should be addressed as follows:
Prothonotary
Pennsylvania Public Utility Commission
Post Office Box 3265
North Office Building
Harrisburg, Pennsylvania 17105-3265(b) Submittals, pleadings and other documents filed with the Commission should clearly designate the docket number or similar identifying symbols, if any, employed by the Commission, and should set forth a short title. The identity of the individual making the submission, including name, mailing address, and status (for example, party, attorney for a party, and the like) shall appear on the document, along with any special instructions for communication by other than first class mail.
(c) Submittals and pleadings, including documents filed under Chapter 5 (relating to formal proceedings) shall also comply with Subchapter D (relating to documentary filings).
(d) In a proceeding when, upon inspection, the Commission is of the opinion that a submittal or pleading tendered for filing does not comply with this subpart or this title or, if it is an application or similar document, does not sufficiently set forth required material or is otherwise insufficient, the Commission may decline to accept the document for filing and may return it unfiled, or the Commission may accept it for filing and advise the person tendering it of the deficiency and require that the deficiency be corrected.
(e) The Commission may order redundant, immaterial, impertinent or scandalous matter stricken from documents filed with it.
(f) Subsections (a)--(e) are identical to 1 Pa. Code § 31.5 (relating to communications and filings generally).
§ 1.5. Amendment to rules.
(a) Persons may file an application under §§ 5.1 and 5.11 (relating to pleadings allowed; and applications generally) requesting a general and permanent change in this subpart.
(b) Subsection (a) supersedes 1 Pa. Code § 31.6 (relating to amendments to rules).
§ 1.8. Definitions.
(a) Subject to additional definitions contained in subsequent sections which are applicable to specific chapters or subchapters, the following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Party--A person who appears in a proceeding before the Commission who has a direct interest in the subject matter of the proceeding.
(i) Active parties to a general rate case are those who intend to fully participate in the litigation of a case, which may include presenting witnesses, cross-examining witnesses from the other parties, making motions, conducting discovery, filing briefs, participating in settlement negotiations, and the like. Active parties to a general rate case are not required to serve any documents on inactive parties. The Commission will serve inactive parties with copies of all orders and recommended decisions issued in the case.
(ii) Inactive parties to a general rate case are those who do not intend to be active parties. Inactive parties have the right to testify at a hearing, including a public input hearing, but do not have the right to present other witnesses, cross-examine witnesses from other parties, make motions, conduct discovery, file briefs or participate in settlement negotiations.
* * * * * Prothonotary--The Commission officer with whom pleadings and other documents are filed and by whom official records are kept.
* * * * * § 1.9. (Reserved).
Subchapter B. TIME § 1.11. Date of filing.
(a) Whenever a pleading, submittal, or other document is required or permitted to be filed under this title or by statute, it will be deemed to be filed on one of the following dates:
(1) On the date actually received in the office of the Prothonotary.
(2) On the date deposited with an overnight express package delivery service as shown on the express delivery receipt attached to or included within the envelope containing the document.
(3) On the date deposited in the United States mail as shown by the United States Postal Service stamp on the envelope or on a United States Postal Service Form 3817 certificate of mailing. A mailing envelope stamped by an in-house postage meter is insufficient proof of the date of mailing.
(b) Failure to include a legible delivery receipt with the document may result in an untimely filing.
(c) A document transmitted by telecopier to the Commission will not be accepted for filing within the meaning of this section.
(d) Subsection (a) supersedes 1 Pa. Code § 31.11 (relating to timely filing required).
§ 1.12. Computation of time.
(a) Except as otherwise provided by statute, in computing a period of time prescribed or allowed by this title or by statute, the day of the act, event or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or holiday. A part-day holiday shall be considered as a holiday. Intermediate Saturdays, Sundays and legal holidays shall be included in the computation.
(b) Except as otherwise provided by statute, in computing a period of time prescribed or allowed by this title or by statute which is measured by counting a specified number of days backward from a scheduled future act, event or default, the day of the scheduled future act, event or default is not included. The day on which the prescribed or allowed action is to occur shall be included, unless it is a Saturday, Sunday or a legal holiday in this Commonwealth, in which event the day of the prescribed or allowed action shall run until the next preceding day which is neither a Saturday, Sunday or holiday. A part-day holiday shall be considered as a holiday. Intermediate Saturdays, Sundays and legal holidays are included in the computation.
(c) Subsection (a) supersedes 1 Pa. Code § 31.12 (relating to computation of time).
§ 1.13. Issuance of Commission orders.
(a) In computing a period of time involving the date of the issuance of an order by the Commission, the day of issuance of an order will be the date the Secretary enters the order. An order will not be made public prior to its entry except where, in the Commission's judgment, the public interest so requires. The date of entry of an order may or may not be the day of its adoption by the Commission. The Secretary will clearly indicate on each order the date of its adoption by the Commission and the date of its entry.
(b) At the time a decision of a presiding officer becomes effective as an adjudication of the Commission in the absence of Commission review as provided for in section 332(h) of the act (relating to procedures in general) the Secretary will issue and serve upon the parties of record an appropriate notice of the date the adjudication became effective as a Commission order.
(c) The date of entry of an order which is subject to review by Commonwealth Court is governed by Pa.R.A.P. No. 108. The date of issuance of any other order shall be deemed to be the date of entry for the purposes of computing the time for appeal under an applicable statute relating to judicial review of Commission action.
(d) Subsections (a) and (b) are identical to 1 Pa. Code § 31.13 (relating to issuance of agency orders).
§ 1.14. Effective dates of Commission orders.
(a) An order of the Commission promulgating regulations shall be effective upon publication in the Pennsylvania Bulletin unless otherwise specially provided in the order.
(b) Except as provided in subsection (a), an order of the Commission shall be effective as of the date of entry unless otherwise specially provided in the order.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 31.14 (relating to effective dates of agency orders).
§ 1.15. Extensions of time and continuances.
(a) Extensions of time shall be governed by the following:
(1) Except as otherwise provided by statute, whenever under this title or by order of the Commission, or notice given thereunder, an act is required or allowed to be done at or within a specified time, the time fixed or the period of time prescribed may, by the Commission, the presiding officer or other authorized person, for good cause be extended upon motion made before expiration of the period originally prescribed or as previously extended. Upon motion made after the expiration of the specified period, the act may be permitted to be done where reasonable grounds are shown for the failure to act.
(2) Request's for the extension of time in which to file briefs shall be filed at least 5 days before the time fixed for filing the briefs unless the presiding officer, for good cause shown allows a shorter time.
(b) Except as otherwise provided by statute, requests for continuance of hearings or for extension of time in which to perform an act required or allowed to be done at or within a specified time by this title or by order of the Commission or the presiding officer, shall be by motion in writing, timely filed with the Commission, stating the facts on which the application rests, except that during the course of a proceeding, the requests may be made by oral motion in the hearing before the Commission or the presiding officer. Only for good cause shown, will requests for continuance be considered. The requests should be submitted at least 5 days prior to the hearing date.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 31.15 (relating to extensions of time).
Subchapter C. REPRESENTATION
BEFORE THE COMMISSION§ 1.21. Appearance in person.
(a) Individuals may represent themselves.
(b) In adversarial proceedings, partnerships, corporations, trusts, associations, agencies, political subdivisions and government entities shall be represented only under § 1.22 (relating to appearance by attorneys and legal intern). For purposes of this section, any request for a general rate increase under section 1307(f) or 1308(d) of the act (relating to sliding scale of rates; adjustments; and voluntary changes in rates) shall be considered to be an adversarial proceeding.
(c) In nonadversarial proceedings, a member of a partnership may represent the partnership, a bona fide officer of a corporation, trust or association may represent the corporation, trust or association, and an officer or employe of another agency, a political subdivision or governmental entity may represent the agency or political subdivision in presenting a submittal to the Commission subject to this chapter and Chapter 5 (relating to formal proceedings).
(d) In informal proceedings brought under Chapters 56 and 64 (relating to standards and billing practices for residential utility service; and standards and billing practices for residential telephone service), parties may be represented by one of the following:
(1) Paralegals working under the direct supervision of an attorney admitted to the Pennsylvania Bar.
(2) Another appropriate individual.
(e) Subsection (a) supersedes 1 Pa. Code § 31.21 (relating to appearance in person).
§ 1.22. Appearance by attorney or certified legal intern.
(a) Individuals, partnerships, associations, corporations or governmental entities may be represented in a proceeding by an attorney at law admitted to practice before the Supreme Court of Pennsylvania.
(b) An attorney licensed in a jurisdiction which does not accord like privileges to members of the bar of this Commonwealth may appear before the Commission with the permission of the presiding officer or the Commission consistent with Pa.B.A.R. No. 301 (relating to admission pro hac vice).
(c) Law students meeting the requirements of PA.B.A.R. No. 321 (relating to requirements for formal participation in legal matters by law students) may appear in a Commission proceeding consistent with Pa.B.A.R. No. 322 (relating to authorized activities of certified legal interns).
(d) Subsection (a) supersedes 1 Pa. Code § 31.22 (relating to appearance by attorney).
§ 1.23. Other representation prohibited at hearings.
(a) Participants, individuals, partnerships, associations, corporations or governmental entities may not be represented at a hearing before the Commission or a presiding officer except:
(1) As stated in § 1.21 or § 1.22 (relating to appearance in person; and appearance by attorney or certified legal intern).
(2) As otherwise permitted by the Commission in a specific case.
(b) Subsection (a) supersedes 1 Pa. Code §§ 31.23 (relating to other representation prohibited at hearings).
§ 1.24. Notice of appearance or withdrawal.
(a) An individual appearing without representation before the Commission or a presiding officer shall file with the Prothonotary an address for service of a notice or other written communication. A change in address which occurs during the course of the proceeding shall be reported to the Prothonotary promptly.
(b) An attorney whose name and address appear in a representative capacity on an initial pleading filed with the Prothonotary or a presiding officer shall be considered to have entered an appearance in that proceeding. An attorney who enters the matter at a later stage of the proceeding shall file with the Prothonotary a writtennotice of the appearance, which shall state his name, address and telephone number and the name and address of the person on whose behalf he appears. The notice shall be served on the participants in the proceeding. A change in address which occurs during the course of the proceeding shall be reported to the Prothonotary promptly.
(c) A person appearing or practicing before the Commission in a representative capacity may be required to file a power of attorney with the Commission showing his authority to act in that capacity.
(d) An attorney who wishes to withdraw an appearance shall file with the Prothonotary a written notice of withdrawal. The notice shall be served on the participants and the presiding officer, if one has been designated.
(e) Subsections (a)--(d) supersede 1 Pa. Code § 31.24 (relating to notice of appearance).
§ 1.27. Suspension and disbarment.
(a) The Commission may deny, temporarily or permanently, the privilege of appearing or practicing before it in any way to a person who is found by the Commission, after notice and opportunity for hearing in the matter, to have done one or more of the following:
(1) Lacked the requisite qualifications to represent others.
(2) Lacked the requisite technical education, training or experience for a particular project or type of project submitted for Commission approval.
(3) Engaged in unethical, contemptuous or improper conduct before the Commission.
(4) Repeatedly failed to follow Commission or presiding officer directives.
(b) For the purpose of subsection (a), practicing before the Commission shall include:
(1) Transacting business with the Commission.
(2) The preparation of a statement, opinion or other paper by an attorney, accountant, engineer or other expert, filed with the Commission in a pleading, submittal or other document with the consent of the attorney, accountant, engineer or other expert.
(3) Appearances at a hearing before the Commission or a presiding officer.
(c) Subsections (a) and (b) are identical to 1 Pa. Code § 31.28 (relating to suspension and disbarment).
Subchapter D. DOCUMENTARY FILINGS § 1.31. Form of documentary filings generally.
(a) Applications, petitions, complaints, answers or similar documents shall be divided into numbered paragraphs.
(b) Copies of contracts, agreements, certificates, permits or other writings referred to in the application or petition, shall be attached as exhibits. Copies of writings or orders already of record with the Commission need not be attached to the application or petition if reference by docket number is made to the proceeding in which they were filed.
(c) Pleadings, submittals or other documents filed with the Commission in a proceeding shall clearly show the docket number or similar identifying symbols, if any, and title of the proceeding before the Commission. They shall also show, in the title of a particular pleading, submittal or other document filed, the name of the person on whose behalf the filing is made. If more than one person is involved, a single name only need be included in the title.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 33.1 (relating to title).
§ 1.33. Incorporation by reference.
(a) Except as otherwise provided in subsection (b), documents on file with the Commission may be incorporated by reference into a subsequently filed pleading, submittal or other document. A document may be so incorporated only by reference to the specific document and to the prior filing and docket number at which it was physically filed.
(b) No document which has been on file with the Commission for a period of more than 20 years may be incorporated by reference in a current document unless the person filing the current document first makes inquiry to the Prothonotary's office and ascertains that the earlier document continues to be readily available in the active records of the Commission.
§ 1.34. Single pleading or submittal covering more than one matter.
(a) Except as otherwise provided under this chapter and Chapter 5 (relating to formal proceedings), a single pleading or submittal may be accepted for filing with respect to a particular transaction and one or more related transactions and shall be deemed to be a single filing for purposes of the computation of fees under § 1.43 (relating to schedule of fees payable to the Commission).
(b) If, upon review, the Commission determines that the transactions are not closely related or otherwise properly joined, the Commission will direct that the single pleading be refiled as two or more separate pleadings each subject to a separate filing fee.
(c) Subsection (a) supersedes 1 Pa. Code § 33.4 (relating to single pleading or submittal covering more than one matter).
§ 1.36. Verification.
(a) Applications, petitions, formal complaints, motions and answers thereto containing an averment of fact not appearing of record in the action or containing a denial of fact shall be personally verified by a party thereto or by an authorized officer of the party if a corporation or association. Verification means a signed written statement of fact supported by oath or affirmation or made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). If verification is required, notarization is not necessary.
(b) The verification form should comply substantially with the following:
VERIFICATION
I, ______ , hereby state that the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief) and that I expect to be able to prove the same at a hearing held in this matter. I understand that the statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).
Date: ______ __________
(Signature)(c) When an affidavit is used, the form should comply substantially with the following:
AFFIDAVIT
I, ______ (Affiant) being duly sworn (affirmed) according to law, depose and say that (I am authorized to make this affidavit on behalf of ______ corporation, being the holder of the office of ______ with that corporation, and that) the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief) and (I or ______ corporation) expect to be able to prove the same at any hearing hereof.
__________
(Signature of affiant)Sworn and subscribed before me this ______ day of ______ , 19 ____ .
__________
(Signature of official
administering oath)
(My Commission Expires)(d) An applicant for motor carrier rights shall include in the verification the following statement:
Applicant is not now engaged in intrastate transportation of property or passengers for compensation in this Commonwealth except as authorized by the Pennsylvania Public Utility Commission certificate or permit, and will not engage in the transportation for which approval is herein sought, unless and until the transportation is authorized by your Honorable Commission.(e) An individual who executes a pleading, submittal or other document knowing that it contains a false statement and who causes it to be filed in the Commission shall be subject to prosecution for the commission of a misdemeanor of the second degree in violation of 18 Pa.C.S. § 4904(a).
(f) Subsections (a)--(e) supersede 1 Pa. Code § 33.12 (relating to verification).
§ 1.37. Number of copies.
(a) An original and three copies of pleadings, submittals or documents other than correspondence shall be furnished to the Commission at the time of filing, except as may be otherwise required by statute or ordered or requested by the Commission, and except as required by §§ 5.409, 5.502 and 5.533 (relating to copies and form of documentary evidence; documentary evidence; filing and service of briefs; and procedure to except to initial, tentative and recommended decisions).
(b) In the case of applications and petitions, one of the copies filed with the Commission may be filed without exhibits.
(c) In the case of complaints or petitions, when more than one respondent is named, an additional copy of the complaint or petition shall be filed for additional respondent.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 33.15 (relating to number of copies).
Subchapter E. FEES § 1.43. Schedule of fees payable to the Commission.
(a) Fees for service. The fees for services rendered by the Commission are as follows:
Description Fee (in dollars) * * * * *
Copies of microfilm per roll $80 * * * * *
Subchapter F. SERVICE OF DOCUMENTS § 1.51. Instructions for service and notice.
Upon receipt of an application or initial petition, the Prothonotary will instruct the applicant or petitioner concerning the required service and public notice.
§ 1.52. (Reserved).
§ 1.53. Service by the Commission.
(a) Except when service by another method is specifically required by the Commission, an order, notice or other document originating with the Commission, including forms of Commission action and similar process, and other documents designated by the Commission, shall be served by the Commission by mailing a copy thereof to the person to be served, addressed to the person designated in the initial pleading, submittal or notice of appearance at the principal office or place of business. When service is not accomplished by mail, it may be effected by anyone authorized by the Commission.
(b) Service of a petition under § 3.391 (relating to arbitration of claims for billing and collecting services), and service of a complaint under section 702 of the act (relating to service of complaint on parties) shall be by registered or certified mail, return receipt requested.
(c) It is the duty of a participant to apprise the Commission of changes to the participant's current address.
(d) If the Commission is unable to serve a participant by mail at the participant's last known address, the Commission may serve the participant by publication in a newspaper of general circulation in the same area as the participant's last known address. In the alternative, service may also be accomplished by publication in the Pennsylvania Bulletin or by service on the Secretary of the Commonwealth, if appropriate.
(e) Subsection (a) supersedes 1 Pa. Code § 33.31 (relating to service by the agency).
§ 1.54. Service by a participant.
(a) Pleadings, submittals, briefs and other documents, filed in proceedings pending before the Commission shall be served upon participants in the proceeding and the presiding officer, if one has been assigned.
(b) Service may be in person, by available delivery service, by mail or as otherwise directed by the Commission. Service may also be by telecopier to those parties who have agreed to accept service in that manner.
(c) Service by mail shall be made by delivering the requisite number of copies to each participant as provided in § 1.59 (relating to number of copies to be served), properly addressed with postage prepaid, and first class mail shall be utilized. Service by telecopier shall be followed by service of a hard copy either by mail, by available delivery service or in person.
(d) In a proceeding in which only some of the participants participate actively, the active participants, with the authorization of the presiding officer, may serve documents upon the other active participants and to inactive participants which state of record on the record or request in writing that they wish to be served.
(e) Subsections (a)--(c) supersede 1 Pa. Code § 33.32 (relating to service by a participant).
§ 1.56. Date of service.
(a) The date of service shall be the day when the document served meets one of the following conditions:
(1) The document is deposited in the United States mail.
(2) The document is deposited with an overnight express package delivery service.
(3) The document is delivered in person.
(4) The document is transmitted by telecopier as provided in § 1.54 (relating to service by a participant).
(b) Unless otherwise prescribed by the Commission or presiding officer, whenever a participant is required or permitted to do an act within a prescribed period after service of a document upon the participant and the document is served by mail, 3 days shall be added to the prescribed period.
(c) Subsection (a) supersedes 1 Pa. Code § 33.34 (relating to date of service).
§ 1.57. Proof of service.
(a) A certificate of service in the form prescribed by § 1.58 (relating to form of certificate of service) shall accompany and be attached to the original and all copies of pleadings, submittals or other documents filed with the Commission when service is required to be made by the parties.
(b) Subsection (a) supersedes 1 Pa. Code § 33.35 (relating to proof of service).
Subchapter G. MATTERS BEFORE OTHER TRIBUNALS § 1.61. Notice and filing of copies of pleadings before other tribunals.
(a) When matters over which the Commission may have jurisdiction under the act are raised in proceedings filed with a court or other regulatory body by a person subject to the act, either an appropriate application or petition, or notice of the proceedings and copies of the material pleadings filed therein, shall be filed simultaneously with the Commission so that it may have sufficient notice and time for proper consideration of the matters within its jurisdiction.
(b) A public utility subject to the jurisdiction of the Commission which files a petition under Chapter 7, 9, 11 or 13 of the United States Bankruptcy Code (11 U.S.C.A. §§ 701--766, 901--946, 1101--1174 and 1301--1330), its supplements and amendments, or against which the petition is filed, shall, within 10 days of the filing thereof or notification of the filing, file a copy of the petition with the Commission and with the Office of Consumer Advocate, 1425 Strawberry Square, Harrisburg, Pennsylvania 17120 and with the Office of Small Business Advocate, Suite 1102 Commerce Building, 300 North Second Street, Harrisburg, Pennsylvania 17101.
(c) A public utility which is subject to the regulatory jurisdiction of the Commission, or the public utility's trustee in bankruptcy, shall file a petition for Commission approval of a reorganization plan as to the public interest therein and the fairness thereof, accompanied by a copy of the plan within 10 days after the debtor has filed the plan, its supplements and amendments, or has received notice that the plan has been filed with the court.
(d) A public utility which is subject to the regulatory jurisdiction of the Commission, or its trustee in bankruptcy, shall file a petition for Commission approval of a reorganization plan as to the public interest therein and the fairness thereof, accompanied by a copy of the plan within 10 days after the debtor has filed the plan, its supplements and amendments, or has received notice that the plan has been filed with the court.
(1) The petition shall contain a concise statement of the relevant facts and set forth the grounds upon which Commission approval should be granted.
(2) If the reorganization plan contemplates the issuance of new securities or a change in the terms and conditions of securities already outstanding, the record shall be developed to show the same information which the Commission requires in securities certificates.
(3) If the reorganization plan contemplates the abandonment of service, the petition shall include an application under section 1102(a)(2) of the act (relating to enumeration of acts requiring certificate).
(4) The Commission will make a finding and certify its approval or disapproval of the plan to the bankruptcy court in which the petition is filed.
Subchapter H. PUBLIC ACCESS TO COMMISSION RECORDS § 1.72. Formal case files.
(a) Format. Format for filing records in formal cases shall conform with the following:
(1) The files for formal cases initiated prior to May 15, 1977, shall contain a records, correspondence and testimony folder.
(2) The files for formal cases initiated on or after May 15, 1977, shall contain a document, report and testimony folder.
(b) Contents. Contents of folders in formal cases shall conform with the following:
(1) Formal cases initiated prior to May 15, 1977, shall conform with the following:
(i) Testimony folder. This folder shall contain hearing transcripts and exhibits.
* * * * * (2) Formal cases initiated on or after May 15, 1977, shall conform with the following:
(i) Testimony folder. This folder shall contain the same material as described in subsection (b)(1)(i).
* * * * * § 1.76. Tariffs, minutes of the public meeting and annual reports.
Tariffs, minutes of the public meeting and annual reports shall be available for public inspection and copy-ing upon request to the Office of the Secretary during normal Commission business hours.
§ 1.77. Extensions of time to review folders.
For good cause the Commission may extend the time limits applicable to requests for access to documents. In the case of documents displaying no need for confidentiality, or, conversely, documents containing information which the Commission considers improper for public inspection, the Commission may direct the appropriate treatment thereof, notwithstanding contrary provisions in §§ 1.71--1.76.
Subchapter I. AMENDMENTS OR WITHDRAWALS OF SUBMITTALS
Subchapter J. DOCKET § 1.86. Docket.
(a) The Prothonotary will maintain a docket of all proceedings, and each proceeding as initiated shall be assigned an appropriate designation. The docket shall be available for inspection and copying by the public during the Commission's office hours.
(b) Subsection (a) is identical to 1 Pa. Code § 33.51 (relating to docket).
Subchapter K. WAIVER OF RULES § 1.91. Applications for waiver of formal requirements.
(a) A request for waiver of, or exception to, any provision of this chapter or Chapter 3 or 5 (relating to special provisions; and formal proceedings) or a regulation or requirement with which the document tendered is in conflict or does not conform may accompany a pleading, submittal or other document subject to rejection under § 1.4 (relating to filing generally). The request shall show the nature of the waiver or exception desired and set forth the reasons in support thereof. Unacceptable filings may be returned by the Commission with an indication of the deficiencies thereof and the reasons for nonacceptance and return.
(b) Unless the Commission expressly orders, acceptance for filing will not waive a failure to comply with this title or other applicable requirements, and the failure may be cause for striking all or any part of the filings.
(c) Subsections (a) and (b) are identical to 1 Pa. Code § 33.61 (relating to applications for waiver of formal requirements).
Subchapter L. UNOFFICIAL STATEMENTS AND OPINIONS § 1.96. Unofficial statements and opinions by Commission personnel.
Statements contained in formal opinions of the Commission or in decisions of a presiding officer which are not necessary in resolving the case, and informal opinions, whether oral or written, expressed by Commissioners, presiding officers, legal counsel, employes or representatives of the Commission and reports drafted by Commission bureaus are only considered as aids to the public, do not have the force and effect of law or legal determinations, and are not binding upon the Commonwealth or the Commission.
CHAPTER 3. SPECIAL PROVISIONS
Subchapter A. SPECIAL COMMISSION ACTIONS
EMERGENCY RELIEF § 3.1. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Emergency--A situation which presents a clear and present danger to life or property or which is uncontested and requires action prior to the next scheduled public meeting.
Emergency order--An ex parte order issued by a single Commissioner, the Commission, the Commission's Director of Operations or Executive Assistant, or the Commission's Secretary in response to an emergency.
Interim emergency order--An interlocutory order issued by a presiding officer which is immediately effective and grants or denies injunctive relief during the pendency of a proceeding.
§ 3.2. Issuance of emergency order.
(a) To the extent practicable, a petition for emergency relief shall be:
(1) In the form of a petition as set forth in § 5.41 (relating to petitions generally).
(2) Supported by an affidavit verifying facts which establish the existence of an emergency.
(3) Served on the persons directly affected by the application.
(b) When there is an actual or declared emergency, the Chairman, a Commissioner, the Commission's Director of Operations and the Executive Assistant, and the Commission's Secretary have the authority to issue an emergency order.
(c) An emergency order shall be served as expeditiously as practicable upon the persons directly affected by the order.
(d) Notice of denial of a petition for emergency order by less than the full Commission shall be served by the Secretary with copies to Commissioners.
§ 3.3. Form of emergency order.
An emergency order shall be issued in writing and shall be filed with the Prothonotary with copies to Commissioners, and the Director of Operations.
§ 3.4. Hearing on emergency order.
(a) Upon petition by a person against whom an emergency order is issued, an expedited hearing before a presiding officer will be conducted within 10 days to determine whether or not the emergency order will remain in effect. The petition shall be served upon the Commission with a copy to the Chief Administrative Law Judge. The presiding officer will take into account the irreparable harm, if any, which staying or continuing the emergency order would cause the public interest or the person directly affected.
(b) If the emergency order is issued by a single Commissioner or the Director of Operations or the Executive Assistant, or by the Commission's Secretary, then the presiding officer will have the authority to stay the effect of the order until the next scheduled public meeting. The decision of the presiding officer will constitute a recom-mended decision to be acted upon by the Commission at its next scheduled public meeting.
§ 3.5. Ratification of emergency order.
(a) An emergency order issued by a single Commissioner or the Director of Operations or the Executive Assistant or the Commission's Secretary will be ratified, modified or rescinded by the Commission at the next scheduled public meeting after issuance of the order.
(b) When a petition for emergency order has been denied by less than the full Commission, the denial will be deemed ratified by the Commission if the Commission does not act to the contrary during the first public meeting after the Secretary served the notice of its denial.
§ 3.6. Petitions for interim emergency orders.
(a) To the extent practicable, a petition for an interim emergency order shall be in the form of a petition as set forth in § 5.41 (relating to petitions generally). A petition for an interim emergency order may be submitted by a participant during the pendency of a proceeding and, to the extent practicable, shall be supported by an affidavit verifying facts which establish the existence of the need for interim emergency relief.
(b) An allegation contained in the petition shall be deemed to have been denied by the opposing parties, and an answer is not required. If a participant desires, an answer in the form set forth in § 5.61 (relating to answers to complaints, petitions and motions) may be filed no later than 5 days after receipt of a copy of the petition.
(c) No other pleadings, memoranda or briefs related to a petition for interim emergency orders are permitted unless specifically requested by the presiding officer.
(d) A copy of the petition shall be served on the Chief Administrative Law Judge at the same time the petition is filed with the Prothonotary and served on the participants.
§ 3.7. Issuance of interim emergency orders.
(a) A presiding officer may issue an interim emergency order upon finding that the following exist:
(1) The petitioner's right to relief is clear.
(2) The need for relief is immediate.
(3) The injury would be irreparable if relief is not granted.
(4) The relief requested is not injurious to the public interest.
(b) An order granting or denying interim emergency relief will be issued within 15 days of receipt of the petition.
(c) An interim emergency order or an order denying interim emergency relief shall be served as expeditiously as practicable on the participants.
§ 3.8. Form of interim emergency order.
An order granting or denying interim emergency relief shall:
(1) Contain a brief description of the evidence presented in support of or in opposition to the petition and shall specify how that evidence meets or fails to meet the criteria in § 3.7 (relating to the issuance of interim emergency orders).
(2) If relief is granted, determine whether or not a bond--in form satisfactory to the Chief Administrative Law Judge--shall be posted by the petitioner.
(3) If a bond is required, determine the amount of the bond.
§ 3.10. Commission review of interim emergency orders.
(a) An order granting or denying interim emergency relief is immediately effective upon issuance by the presiding officer. No stay of the order will be permitted while the matter is being reviewed by the Commission.
(b) When the presiding officer rules upon the petition for an interim emergency order, the presiding officer shall also certify the question of the granting or denial of relief to the Commission as a material question in the form set forth in § 5.305 (relating to interlocutory review of a material question submitted by a presiding officer). Thereafter, the participants and the Commission shall follow the procedures in § 5.305, if applicable.
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