[27 Pa.B. 414]
[Continued from previous Web Page]
INTERVENTION § 5.71. Initiation of intervention.
(a) Participation in a proceeding as an intervenor may be initiated as follows:
(1) By the filing of a notice of intervention by another agency of the Commonwealth which is authorized by statute to participate in the proceeding.
(2) By order of the presiding officer or the Commission upon grant of a petition to intervene.
(b) Subsection (a) supersedes 1 Pa. Code § 35.27 (relating to initiation of intervention).
§ 5.74. Filing of petitions to intervene.
(a) Petitions to intervene and notice of intervention may be filed following the filing of an application, petition, complaint or other document seeking Commission action, but no later than the date fixed for the filing of petitions to intervene in an order or notice with respect to the proceedings or, except for good cause shown, the date fixed for filing protests as published in the Pennsylvania Bulletin. Intervention will not be permitted once an evidentiary hearing has concluded absent extraordinary circumstances.
(b) The Commission or presiding officer may, where the circumstances warrant, permit the waiver of the requirements of § 5.409 (relating to copies and form of documentary evidence) with respect to copies of exhibits for the intervenor.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.30 (relating to filing of petitions to intervene).
MOTIONS § 5.102. Motions for summary judgment and judgment on the pleadings.
(a) Motion for judgment on the pleadings. After the pleadings are closed, but within a time so that the hearing is not delayed, a participant may move for judgment on the pleadings. An answer to a motion for judgment on the pleadings may be filed within 20 days of the date of service of the motion.
(b) Motion for summary judgment. After the pleadings are closed, but within a time so that the hearing is not delayed, a participant may move for summary judgment based on the pleadings and depositions, answers to interrogatories, admissions and supporting affidavits. Documents not already filed with the Commission shall be filed with the motion.
(1) An answer, including an opposing affidavit to a motion for summary judgment, may be filed within 20 days of the date of service of the motion.
(2) The answer may be supplemented by pleadings and depositions, answers to interrogatories or further affidavits and admissions.
(c) Decisions on motions.
(1) The presiding officer will grant or deny a motion for judgment on the pleadings or a motion for summary judgment, as appropriate. The judgment sought will be rendered if the pleadings, depositions, answers to interrogatories and admissions, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving participant is entitled to a judgment as a matter of law. If a motion is granted, the presiding officer will do so in the form of an initial or recommended decision which shall be subject to exceptions. As in the case of other initial or recommended decisions, the procedures regarding exceptions to the Commission apply. If the motion is denied, the presiding officer will do so in the form of a written order.
(2) The presiding officer may grant a partial summary judgment if the pleadings, depositions, answers to interrogatories and admissions, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving participant is entitled to a judgment as a matter of law on one or more but not all outstanding issues. The presiding officer will grant or deny the motion in the form of an order, or initial or recommended decision.
§ 5.103. Motions.
(a) Scope and content. A request may be made by motion for relief desired, except as may be otherwise expressly provided in this chapter and Chapters 1 and 3 (relating to rules of administrative practice and procedure; and special provisions). A motion shall set forth the ruling or relief sought, and state the grounds therefor and the statutory or other authority upon which it relies.
(b) Presentation of motions. A motion may be made in writing at any time, and a motion made during a hearing may be stated orally upon the record, or the presiding officer may require that an oral motion be reduced to writing and filed separately.
(c) Response to motions. A participant has 10 days from the date of service within which to answer or object to a motion, unless the period of time is otherwise fixed by the Commission or the presiding officer.
(d) Rulings on motions.
(1) The presiding officer is authorized to rule and will rule upon motions:
(i) Not formerly acted upon by the Commission prior to the commencement of the hearing where an immediate ruling is essential in order to proceed with the hearing.
(ii) Filed or made after the commencement of the hearing and prior to the submission of a decision in the proceeding.
(2) A motion made during the course of hearing, which if granted would otherwise dispose of parties' rights, should be acted upon by the presiding officer prior to taking further testimony if, in the opinion of the presiding officer, the action is warranted.
(3) If a motion involves a question of jurisdiction, the establishment of a prima facie case or standing, the presiding officer may render a final determination with regard to a motion prior to the termination of hearings by issuing an initial or recommended decision.
(e) Supersession. Subsection (a) is identical to 1 Pa. Code § 35.177 (relating to scope and contents of motions). Subsection (b) is identical to 1 Pa. Code § 35.178 (relating to presentation of motions). Subsection (c) supersedes 1 Pa. Code § 35.179 (relating to objections to motions). Subsection (d) supersedes 1 Pa. Code § 35.180 (relating to action on motions).
Subchapter B. HEARINGS
PREHEARING AND OTHER CONFERENCES § 5.222. Initiation of prehearing conferences in nonrate proceedings.
(a) In order to make possible a more effective use of hearing time in formal proceedings, other than rate proceedings which are governed by § 5.224 (relating to prehearing conference in rate proceedings), to otherwise expedite the orderly conduct and disposition of the proceedings and to serve the ends of justice and the public interest, it is the policy of the Commission to arrange for conferences between participants to the proceedings prior to the commencement of hearings.
(b) The Commission, or the presiding officer, with or without motion, and after consideration of the probability of beneficial results to be derived therefrom, may direct that a prehearing conference be held, and direct the participants to the proceeding to appear there to consider the matters enumerated in subsection (c). Notice of the time and place of the conference shall be given to all participants to the proceeding. Upon agreement of all the parties, the conferences may be conducted telephonically.
(c) The following matters shall be considered at prehearing conference:
(1) The possibilities for settlement of the proceeding, subject to the approval of the Commission.
(2) The amount of hearing time which will be required to dispose of the proceeding and the establishment of a schedule of hearing dates.
(3) Arrangements for the submission of direct testimony of witnesses in writing in advance of hearing to the extent practicable, and for the submission in advance of hearing or written requests for information which a participant contemplates asking another participant to present at hearing.
(4) Other matters that may aid in expediting the orderly conduct and disposition of the proceeding and the furtherance of justice, including, but not limited to, the following:
(i) The simplification of the issues.
(ii) The exchange and acceptance of service of exhibits proposed to be offered in evidence.
(iii) The obtaining of admissions as to, or stipulations of, facts not remaining in dispute, or the authenticity of documents which might properly shorten the hearing.
(iv) The limitation of the number of witnesses.
(v) A proposed plan and schedule of discovery which may include specific limitations on the number of written interrogatories and requests for admissions a participant may propound on another participant.
(d) Participants and counsel will be expected to attend the conference fully prepared for a useful discussion of all problems involved in the proceeding, both procedural and substantive, and fully authorized to make commitments with respect thereto. The preparation should include, among other things, advance study of all relevant materials, and advance informal communication between the participants, including requests for additional data and information, to the extent it appears feasible and desirable. Failure of a participant to attend the conference, after being served with notice of the time and place thereof, without good cause shown, shall constitute a waiver of all objections to the agreements reached, and an order or ruling with respect thereto.
(e) Subsections (a)--(c) supersede 1 Pa. Code § 35.112 (relating to conferences to expedite hearings). Subsection (d) is identical to 1 Pa. Code § 35.113 (relating to initiation of conferences).
§ 5.224. Prehearing conference in rate proceedings.
(a) In a rate proceeding, the presiding officer may schedule the following:
(1) A first prehearing conference to establish a schedule for discovery and tentative hearing dates, as well as the matters in § 5.222 (relating to initiation of prehearing conferences in nonrate proceedings).
(2) Other conferences as deemed necessary.
(3) A conference held telephonically, upon agreement of the parties.
(b) The first prehearing conference shall be held as soon as practicable after the entry of the order of investigation. The participants shall come to the first prehearing conference prepared to discuss the following:
(1) A proposed plan and schedule of discovery, which may include specific limitations on the number of written interrogatories and requests for admissions a participant may propound on another participant.
(2) Other proposed orders with respect to discovery, including the establishment of sanctions (in addition to those provided by §§ 5.371 and 5.372 (relating to sanctions--general; and sanctions--types)) against any party failing to respond to discovery in a timely manner.
(3) Tentative scheduling of evidentiary hearings, close of the record, filing of briefs and other matters deemed appropriate.
(c) At the first prehearing conference, participants may submit a written statement addressing the issues in subsection (b).
(d) Following the first prehearing conference, the presiding officer will enter an order establishing a tentative set of hearing dates, establishing a plan and schedule for discovery, identifying the active participants for purposes of service of documents, determining whether a public input hearing will be held, if that decision has not already been made, and addressing other matters deemed necessary.
(e) The second prehearing conference should be scheduled not fewer than 10 days prior to the first scheduled evidentiary hearings to do the following:
(1) Resolve outstanding discovery disputes.
(2) Schedule order of witnesses.
(3) Incorporate stipulations in record.
(4) Resolve other matters.
(f) Combined with the second prehearing conference should be a settlement conference for the purpose of discussing settlement of the case or stipulation of certain issues, or both. In addition to the authority conferred by §§ 5.223(b), 5.232 and 5.233 (relating to authority of presiding officer at conferences; stipulations made in conferences; and refusal to make admissions or stipulate), if all parties agree, the presiding officer or a mediator may participate in the settlement discussions. A different judge or mediator will be assigned to participate in settlement discussions upon the request of a party. Participants, except the filing utility, shall file and serve on all other participants, on or before the date of the conference, a statement of position which identifies the issues as they appear. Also included shall be a listing of the names and addresses of the witnesses each participant intends to call and their proposed area of testimony.
(g) The presiding officer, or the Commission will have the authority to amend the requirements of this section either sua sponte or upon motion of a participant when justice so requires.
(h) The rules applicable to prehearing and other conferences in §§ 5.221--5.223 (relating to conferences to adjust, settle or expedite proceedings; initiation of prehearing conferences in nonrate proceedings; and authority of presiding officer at conferences) are applicable to prehearing conferences in rate cases except to the extent they are inconsistent with this section.
§ 5.231. Offers of settlement.
(a) It is the policy of the Commission to encourage settlements. Nothing contained in this chapter or Chapter 1 or 3 (relating to rules of administrative practice and procedure; and special provisions) precludes a participant in a proceeding from submitting, at any time, offers of settlement or proposals of adjustment, or from requesting conferences for that purpose. Participants may request that the presiding officer participate in the settlement conferences or that an additional presiding officer or mediator be designated to participate in the settlement conferences. Proposals of settlement, of adjustment, or of procedure to be followed, and proposed stipulations not agreed to by every participant, will not be admissible in evidence against a counsel or participant claiming the privilege.
(b) Subsection (a) supersedes 1 Pa. Code § 35.115 (relating to offers of settlement).
§ 5.232. Stipulations and settlement petitions.
(a) When the participants to a proceeding other than a general rate increase seek to settle the proceeding, but do not seek to have the underlying pleadings withdrawn, a stipulation or settlement petition shall be presented to the presiding officer, if one has been assigned. Otherwise, the stipulation or settlement petition shall be filed with the Prothonotary. If the petition is presented to the presiding officer, the Prothonotary shall also be served with three copies.
(b) A settlement agreement shall specifically identify the other participants that were provided or denied an opportunity to enter into the settlement.
(c) A copy of each stipulation or settlement petition shall be served upon each participant to the proceeding, and each participant shall have the opportunity to comment on the proposed settlement unless otherwise ordered by the presiding officer.
(d) The stipulation or settlement petition will be reviewed by the presiding officer, if one has been assigned, and otherwise will be reviewed by the Commission. If the presiding officer rules on the petition, the ruling will be made in the form of an initial or recommended decision, subject to § 5.537 (relating to rate case settlements).
(e) Upon agreement of the parties to waive the exception period, the presiding officer may present the recommended decision or initial decision directly to the Commission for review.
(f) If timely exceptions are filed, they will be considered in a ruling made on the settlement petition.
§ 5.235. Motor carrier restrictive amendments.
(a) The participants to motor carrier applications for passenger or household goods in use authority may stipulate as to restrictions or modifications to proposed motor carrier rights. Stipulations in the form of restrictive amendments or modifications shall be in writing, signed by each participant to the stipulation, and a copy submitted to the Prothonotary for insertion into the document folder.
(b) Restrictive amendments shall be binding on the parties but not on the Commission should it determine they are not in the public interest. If a restrictive amendment is not accepted by the Commission, it may remand the matter for appropriate proceedings.
§ 5.242. Order of procedure.
(a) In a proceeding, the complainant, petitioner or other participant having the burden of proof, shall open and close unless otherwise directed by the presiding officer. In a hearing on investigations and in proceedings which have been consolidated for hearing, the presiding officer may direct who shall open and close.
(b) Intervenors shall follow the participants on whose behalf the intervention is made. If the intervention is not in support of an original participant, the presiding officer will designate at what stage the intervenor will be heard.
(c) In proceedings where the evidence is peculiarly within the knowledge or control of another participant, the order of presentation set forth in subsections (a) and (b) may be varied by the presiding officer.
(d) The presiding officer may direct the order of participants for purposes of cross-examination, subject to the requirements of § 5.243(f) (relating to presentation by participants).
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.125 (relating to order of procedure).
§ 5.243. Presentation by participants.
(a) A participant, subject to the limitations in §§ 5.75 and 5.76 (relating to notice, service and action on petitions to intervene; and limitation of participation in hearings), has the right of presentation of evidence, cross-examination, objection, motion and argument. The taking of evidence and subsequent proceedings shall proceed with reasonable diligence and with the least practicable delay.
(b) When an objection to the admission or exclusion of evidence before the Commission or the presiding officer is made, the ground relied upon shall be stated briefly. A formal exception is unnecessary and may not be taken to rulings thereon.
(c) The presiding officer may require or allow a factual statement of the scope of a pleading or the position of a participant in the proceeding. Facts admitted on record by a participant or by testimony, exhibits or in writing, need not be further proved.
(d) The Commission or the presiding officer may limit appropriately the number of witnesses who may be heard upon an issue.
(e) No participant will be permitted to introduce evidence during a rebuttal phase which is repetitive, which should have been included in the participant's case-in-chief or which substantially varies from the participant's case-in-chief unless the evidence is introduced in support of a proposed full or partial settlement between or among any of the participants.
(f) If a participant conducts friendly cross-examination of a witness, the presiding officer may permit the other participants a second opportunity to cross-examine after friendly cross-examination is completed. The recross-examination shall be limited to the issues on which there was friendly cross-examination.
(g) Subsections (a)--(f) supersede 1 Pa. Code § 35.126 (relating to presentation by the parties).
§ 5.253. Transcript corrections.
(a) A correction in the official transcript may be made only to make it conform to the evidence presented at the hearing and to speak the truth.
(b) Proposed corrections of a transcript may be submitted by either of the following means:
(1) By written stipulation by the participants of record who were present when the transcription was taken.
(2) Upon written request of one or more participants of record present when the transcription was taken.
(c) Proposed corrections shall be filed as follows:
(1) Within 30 days after the transcript has been filed with the Commission.
(2) Within 15 days after the electronically recorded testimony has been reviewed.
(3) Upon permission of the presiding officer granted prior to the closing of the record.
(d) Objections or other comments to the proposed corrections shall be filed within 15 days of service of the proposed corrections.
(e) Proposed corrections and objections or other comments shall be served upon the participants of record present when the original transcription was taken.
(f) The presiding officer will rule upon a proposed correction of a transcript within 30 days of its receipt. A request for corrections not acted upon within 30 days is deemed to be:
(1) Denied if opposed in a timely manner.
(2) Granted if unopposed.
(g) Subsections (a)--(f) supersede 1 Pa. Code § 35.132 (relating to transcript corrections).
Subchapter C. INTERLOCUTORY REVIEW § 5.301. Interlocutory review generally.
(a) The Commission will not permit interlocutory review of rulings made by a presiding officer during the course of proceedings, except as permitted by the act and as specified in this subchapter.
(b) Subsection (a) supersedes 1 Pa. Code § 35.190 (relating to appeals to agency head from rulings of presiding officers).
§ 5.302. Petition for interlocutory Commission review and answer to a material question.
(a) During the course of a proceeding, a participant may file a timely petition directed to the Commission requesting review and answer to a material question which has arisen or is likely to arise. The petition shall be in writing with copies served on all participants and the presiding officer and shall state, in not more than three pages, the question to be answered and the compelling reasons why interlocutory review will prevent substantial prejudice or expedite the conduct of the proceeding.
(b) Within 7 days of service of the petition, each participant may submit a brief directed to the Commission supporting or opposing the petition and addressing the merits of the question for which an answer is requested and whether a stay of proceedings is required to protect the substantial rights of a participant. The brief may not exceed 15 pages.
(c) The participant petitioning for Commission review and answer shall also provide with the brief rulings on its question and extracts from the record as will assist the Commission in reaching a decision.
(d) No additional briefs are permitted unless directed by the Commission.
§ 5.303. Commission action on petition for interlocutory review and answer.
(a) Within 30 days of receipt of the petition, the Commission will, without permitting oral argument, do one of the following:
(1) Continue, revoke or grant a stay of proceedings if necessary to protect the substantial rights of the participants.
(2) Determine that the petition was improper and return the matter to the presiding officer.
(3) Decline to answer the question.
(4) Answer the question.
(b) The Commission will act promptly on petitions. Petitions for Commission review and answer which are not granted within 30 days of filing will be deemed to be denied.
§ 5.304. Interlocutory review of discovery matters.
(a) Unless otherwise ordered by the Commission in exceptional situations, rulings of presiding officers on discovery are not subject to interlocutory review absent certification by the presiding officer that the ruling involves an important question of law or policy that should be resolved immediately by the Commission, except that an order of a presiding officer regarding the deposing of a Commissioner or Commission employe will be subject to interlocutory appeal to the Commission as provided in §§ 5.301--5.303 (relating to interlocutory review generally; petition for Commission review and answer to a material question; and Commission action on petition for review and answer).
(1) Participants desiring interlocutory review of a presiding officer's ruling on discovery shall, within 3 days of the ruling, petition the presiding officer to certify the question to the Commission. The request shall be in writing with copies served on all participants and shall state, in not more than three pages, the question to be certified and the reasons why interlocutory review will prevent substantial prejudice or expedite the conduct of the proceedings.
(2) Within 7 days of a request for certification, each participant may submit a brief to the presiding officer supporting or opposing certification and, in addition, addressing the merits of the question for which certification is requested and whether a stay of proceedings is required to protect the substantial rights of a participant. The brief may not exceed 15 pages.
(3) The presiding officer will, within 3 days of the deadline for filing briefs, announce the decision in writing or orally on the record, with the reasons why certification has been granted or denied and whether a stay of proceedings has been granted.
(4) If the presiding officer denies the request for certification, then no further action is required of the presiding officer.
(5) If the presiding officer's decision is to grant the request for certification, and unless the moving participant has withdrawn the request for certification, the presiding officer will, within 4 days of the announcement of the decision, deliver to the Commission and serve to each Commissioner the certified question, the reasons justifying certification, rulings on the certified question, and extracts from the record that will assist the Commission in reaching a decision.
(b) Each participant may, on or before the date the presiding officer is required to file the certification, submit a brief, not to exceed 15 pages, directed to the Commission addressing the issue of certification, the merits of the certified question, and the stay of proceedings. No additional briefs are permitted unless directed by the Commission.
(c) Upon the expiration of the time provided for filing briefs, the Secretary will schedule the certified question for consideration at the next meeting of the Commission.
(d) Within 30 days of receipt of the certified question by the Secretary, the Commission will, without permitting oral argument, do one of the following:
(1) Continue, revoke or grant a stay of proceedings.
(2) Determine that the certification was improper and return the matter to the presiding officer for resolution.
(3) Answer the certified question.
(e) Failure of the Commission to act on a certified question within 30 days of its receipt will be deemed to be an affirmance of the decision of the presiding officer.
(f) An interlocutory appeal from the ruling of the presiding officer on discovery will not result in a stay of the proceedings except upon a finding by the presiding officer or the Commission that extraordinary circumstances exist, or to protect the substantial rights of the participants.
§ 5.305. Interlocutory review of a material question submitted by a presiding officer.
(a) During the course of a proceeding, a presiding officer may certify to the Commission for review and answer a material question which has arisen or is likely to arise. The question shall be accompanied by the following:
(1) An explanation of the compelling reasons why interlocutory review will prevent prejudice or expedite the conduct of the proceeding.
(2) A statement as to whether a stay of the proceedings has been placed in effect.
(3) An extract from the record that will assist the Commission.
(b) A copy of the question certified and the accompanying information shall be sent to the participants at the same time it is submitted to the Commission.
(c) Within 7 days of service of the certification, each participant may submit a brief directed to the Commission addressing the merits of the question for which an answer is requested and whether a stay of proceedings is required to protect the substantial rights of a participant. The brief may not exceed 15 pages.
(d) No additional briefs are permitted unless directed by the Commission.
(e) Within 30 days of receipt of the certified question, the Commission will, without permitting oral argument, do one of the following:
(1) Continue, revoke or grant a stay of proceedings.
(2) Determine that the certification was improper and return the matter to the presiding officer for resolution.
(3) Answer the certified question.
(f) Failure of the Commission to act upon a certified question within 30 days of its receipt will be deemed to be an affirmance of the decision of the presiding officer.
§ 5.306. Notification by telephone.
A presiding officer may order notification of participants by telephone when time periods are short and delivery by mail may not prove adequate. A telephone notification will be confirmed by the presiding officer by service in writing.
Subchapter D. DISCOVERY § 5.321. Scope.
(a) Applicability. This subchapter applies to a proceeding in which:
(1) A complaint, protest or other adverse pleading has been filed.
(2) The Commission institutes an investigation.
(3) The Commission institutes an on-the-record proceeding.
(b) Discretion. The presiding officer may vary provisions of this subchapter as justice requires.
(c) Scope. Subject to this subchapter, a participant may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of another party or participant, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of a discoverable matter. It is not ground for objection that the information sought will be inadmissible at hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(d) Exceptions. This subchapter will not apply to discovery sought of Commissioners or Commission staff serving in an advisory or adjudicatory capacity.
(e) Commission staff. This subchapter shall apply equally to Commission staff serving in a prosecutory or party capacity in proceedings before the Commission, with no exceptions other than as specifically set forth in this chapter.
(f) Purpose and methods. A participant may obtain discovery for the purpose of preparation of pleadings, or for preparation or trial of a case, or for use at a proceeding initiated by petition or motion, or for any combination of these purposes, by one or more of the following methods:
(1) Deposition upon oral examination or written questions.
(2) Written interrogatories to a participant.
(3) Production of documents and things and entry for inspection and other purposes.
(4) Requests for admission.
(5) On the record data requests.
(g) Supersession. Subsections (a)--(e) supersede 1 Pa. Code § 35.145 (relating to depositions).
§ 5.324. Discovery of expert testimony.
(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under § 5.321 (relating to scope), may be obtained as follows:
(1) A participant may through interrogatories require both of the following:
(i) The other participant to identify each person whom the participant expects to call as an expert witness at hearing and to state the subject matter on which the expert is expected to testify.
(ii) The other participant to have each expert identified by the participant state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The participant answering the interrogatories may file as the answer a report of the expert, have the interrogatories answered by the expert or provide written direct testimony of the expert. The answer, separate report or testimony shall be signed by the expert and shall be deemed to be provided under oath in accordance with section 333(d) of the act (relating to prehearing procedures).
(2) If the participant against whom discovery is sought, under paragraph (1)(ii), responds by the filing of written direct testimony, the response shall be considered timely, regardless of § 5.342 (relating to answers or objections to written interrogatories by a participant), if the written direct testimony is served on all participants at least 10 days prior to the date on which the expert is scheduled to testify or in accordance with the schedule for the submission of written testimony established by the presiding officer. However, the participant shall still comply with paragraph (1)(i) within the time otherwise applicable.
(3) Upon cause shown, the presiding officer may order further discovery by other means, subject to restrictions as to scope and provisions concerning fees and expenses as he may deem appropriate.
(b) If the identity of an expert witness is not disclosed in compliance with subsection (a)(1), the witness will not be permitted to testify on behalf of the defaulting participant at hearing. If the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting participant, the presiding officer may grant a continuance or other appropriate relief.
(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subsection (a), the expert's direct testimony at hearing may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, written direct testimony or supplement thereto. The expert will not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.
(d) The answering participant may supplement answers only to the extent that facts, or opinions based on those facts, can reasonably be shown to have changed after preparation of the answer or where additional facts or information have become known to the answering participant or where the interest of justice otherwise requires.
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.152 (relating to fees of officers and deponents).
TIMING AND SUPPLEMENTAL RESPONSES § 5.331. Sequence and timing of discovery.
(a) A participant or a person who has formally applied to the Commission for participant status may conduct discovery.
(b) A participant shall endeavor to initiate discovery as early in the proceedings as reasonably possible. In a proceeding, the right to discovery commences when a complaint, protest or other adverse pleading is filed or when the Commission institutes an investigation or on the record proceeding, whichever is earlier.
(c) Commission staff may initiate discovery at an earlier time. Commission staff discovery prior to formal Commission action to initiate a proceeding shall be designated as ''data requests'' and shall be answered fully and completely by the utility within the time periods specified at § 5.342(d) (relating to answers or objections to written interrogatories by a participant). Unless a presiding officer has been designated, objections and motions to compel shall be ruled upon by the Chief Administrative Law Judge.
(d) In a rate proceeding, initial discovery directed to data or information supplied by the public utility at the time of the initiation of the proceeding shall be submitted to the utility within 10 working days following the first prehearing conference. Discovery directed to other matters shall be available until the close of evidentiary hearings. In other proceedings, the presiding officer, upon motion of a participant, may establish reasonable limitations upon the timing of discovery.
(e) Unless the presiding officer upon motion, for the convenience of participants and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a participant is conducting a discovery will not operate to delay another participant's discovery.
§ 5.332. Supplementing responses.
A participant or an expert witness who has responded to a request for discovery with a response that was complete when made is under a duty to supplement a response to include information thereafter acquired, as follows:
(1) A participant is under a continuing duty to supplement responses with respect to a question directly addressed to the identity and location of persons having knowledge of discoverable matters and the identity of each person expected to be called as an expert witness at hearing, the subject matter on which the expert is expected to testify and the substance of the testimony as provided in § 5.324(a)(1) (relating to discovery of expert testimony).
(2) A participant or an expert witness is under a continuing duty to amend a prior response upon discovering that the response is incorrect or incomplete.
(3) A duty to supplement responses may be imposed by order of the presiding officer, agreement of the participants, or at a time prior to hearing through new requests to supplement prior responses.
§ 5.342. Answers or objections to written interrogatories by a participant.
(a) An answer to an interrogatory shall be in writing and the answer shall identify the name and position of the individual who provided the answer. An answer shall be submitted as an answer and may not be submitted as an exhibit or in another form. Each interrogatory shall be answered fully and completely unless an objection is made. The answer shall first restate the interrogatory which is being answered.
(b) An answer may be used by a participant for an appropriate purpose, if admissible under the applicable rules of evidence. An answer may not be offered into evidence by the participant who provided it, except through the sworn oral testimony of the person who provided the answer.
(c) If objected to, the reasons for the objection to an interrogatory shall be stated in lieu of an answer. An objection shall be prepared, filed and served in the same manner provided for an answer, except that an objection shall be contained in a document separate from an answer as required by the time provisions of subsection (d). An objection shall restate the interrogatory or part thereof deemed objectionable and the specific ground for the objection. The objection shall include a description of the facts and circumstances purporting to justify the objection. The objection shall be signed by the attorney making it. An interrogatory otherwise proper is not objectionable solely because an answer will involve an opinion or contention that is related to a fact or the application of law to fact. The statement of an objection does not excuse the answering participant from answering the remaining interrogatories or subparts of interrogatories to which no objection is stated.
(d) The answering participant shall serve interrogatories and answers within 15 days for rate proceedings, and 20 days after service of the interrogatories for other cases. Time periods may be modified by the presiding officer, on motion or by agreement of the participants.
(1) An objection shall be served within 10 days of service of the interrogatories, except as agreed by the participants or as ordered by the presiding officer. Within the time periods prescribed in this subsection, the answering or objecting participant shall serve copies of the answer and the objection, if any, on the active participants. If there is an objection, then the objecting participant shall file copies of the objection with the Prothonotary, along with a certificate of service, which shall identify specifically the interrogatories to which an answer and objection have been provided. A copy of the objection shall also be served upon the presiding officer.
(2) The participant against whom the interrogatories are directed shall remain under a duty to meet the time requirements for answering or objecting to the interrogatories or subpart of interrogatories for which the time period for response has not been modified specifically.
(e) The participant submitting the interrogatories may move that the presiding officer dismiss an objection and direct that the interrogatory be answered.
(1) The participant against whom the motion to compel is directed may file an answer within 5 days of service of the motion or, in the alternative, respond orally at the hearing if a timely hearing has been scheduled within the same 5-day period.
(2) The presiding officer shall rule on the motion as soon as practicable; however, the motion should be decided within 15 days of its presentation, unless the motion presents complex or novel issues. If it does have complex or novel issues the presiding officer shall, upon notice to the participants, rule in no more than 20 days of its presentation.
§ 5.343. Procedures in deposition by oral examination.
(a) A participant desiring to take the deposition of a person upon oral examination, other than under § 5.322 (relating to informal agreement regarding discovery or deposition procedure), shall give 20 days notice in writing to the active participant and to the presiding officer. A participant, or witness within the control of a participant, noticed to be deposed is required to appear without subpoena. A nonparticipant is not required to appear unless subpoenaed.
(b) The notice shall conform with the requirements in subsections (c)--(f) and § 5.344 (relating to approval by presiding officer) and shall state the time and place of taking the deposition and the name and address of each person to be examined if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs.
(c) The notice shall include a brief statement of the matters for which inquiry is being made.
(d) If the person to be examined is a participant, the notice may include a request made in compliance with § 5.349 (relating to requests for documents, entry for inspection and other purposes) for the production of documents and tangible things at the taking of the deposition. If the person to be examined is not a participant, and is to be served with a subpoena duces tecum to provide designated materials, the notice shall specify the materials to be produced.
(e) A participant may in his notice and in a subpoena, if issued, name as the deponent a public or private corporation, a partnership or association or a governmental agency. In that event, the organization named shall file within 10 days of service a designation of one or more officers, directors or managing agents, or other persons who consent to testify on its behalf, and may set forth, for the persons designated, the matters on which he will testify. A subpoena shall advise a nonparticipant organization of its duty to make a designation. The person designated shall testify as to matters known or reasonably available to the organization. This subsection does not preclude taking a deposition by other procedures authorized in this chapter.
(f) An objection to the notice of deposition may be filed within 10 days of service of the notice. A copy of the objection shall be served upon the presiding officer and the active participants. A notice of deposition which is served upon a nonparticipant shall state that the nonparticipant may file objections within 10 days of service and identify the persons--names and addresses--to whom the objections shall be sent.
(g) Subsections (a)--(f) supersede 1 Pa. Code §§ 35.142, 35.145 and 35.146 (relating to subpoenas; depositions; and notice and application).
§ 5.345. Procedure on depositions by written questions.
(a) A participant taking a deposition by written questions shall serve the questions upon the deponent and serve a copy upon each other participant or his attorney of record. Within 30 days thereafter the participant served and other participants may serve cross questions upon the deposing participant and upon each other participant or his attorney of record. Reply questions shall be similarly served by a participant within 10 days of the service of cross questions.
(b) The questions shall contain a notice stating the name and address of each person to be examined if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. A deposition upon written questions may be taken of a public or private corporation, a partnership or association, or a governmental agency in accordance with § 5.343(e) (relating to procedures in deposition by oral examination).
(c) Objections to the form of questions are waived unless filed and served upon the participant propounding them within the time allowed for serving the succeeding cross or other questions or within 10 days after service of the last questions. Other objections may be made at the hearing except as otherwise provided by §§ 5.346--5.348 (relating to persons before whom depositions may be taken; taking of depositions--objections; and transcript of deposition, objections and filing).
(d) A copy of questions for the taking of a deposition, as well as a signature page and envelope bearing the caption and marked ''Deposition of ______'' (name of witness), shall be transmitted to the person being deposed who shall complete, certify and return the completed deposition to the sender.
(e) After the service of questions and prior to the taking of the testimony of the deponent, the presiding officer, on motion promptly made by a participant or a deponent, may make an order in accordance with § 5.362 (relating to protective orders) or an order that the deposition may not be taken except upon oral examination.
§ 5.346. Persons before whom depositions may be taken.
(a) Within the United States or within a territory or possession subject to the dominion of the United States, depositions other than by interrogatories shall be taken before an officer authorized to administer oaths by the laws of the United States, of the Commonwealth or of the place where the examination is held, or before a person appointed by the presiding officer. A person so appointed shall have power to administer oaths and take testimony.
(b) No deposition may be taken before a person who is a relative, employe or attorney of any of the parties, who is a relative or employe of the attorney, or who is financially interested in the action.
(c) Depositions by written questions need only be answered under oath and notarized.
(d) Attendance of a witness at a deposition may be compelled by subpoena.
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.148 (relating to officer before whom deposition is taken).
§ 5.348. Transcript of deposition, objections and filing.
(a) The person before whom the deposition is taken shall put the witness on oath or affirmation and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness.
(b) The testimony of the witness shall be transcribed. Objections to the manner of preparation or the correctness of the transcript are waived unless they are filed in writing with the presiding officer promptly after the grounds of objection become known or could have been discovered with reasonable diligence.
(c) When the testimony is fully transcribed, a copy of the deposition with the original signature page shall be submitted to the witness for inspection and signing and shall be read to or by him and shall be signed by him unless the witness is ill or cannot be found or refuses to sign. Changes which the witness desires to make shall be entered upon the deposition by the person before whom it was taken with a statement of the reasons given by the witness for making the changes. If the deposition is not signed by the witness within 30 days of its submission to him, the person before whom the deposition was taken shall sign it and state on the record why it was not signed. The deposition may then be used as fully as though signed, unless the presiding officer holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(d) The person before whom the deposition is taken shall certify on the deposition that the witness was sworn by the person and the deposition is a true record of the testimony given by the witness.
(e) In lieu of participating in the oral examination, participants served with notice of taking a deposition may transmit written questions to the person taking the deposition, who shall propound them to the witness and record the answers verbatim.
(f) Upon payment of reasonable charges, the person before whom the deposition was taken shall furnish a copy thereof to participants or to the deponent.
(g) Subsections (a)--(f) supersede 1 Pa. Code § 35.149 (relating to oath and reduction to writing).
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