[27 Pa.B. 414]
[Continued from previous Web Page] § 5.349. Requests for documents, entry for inspection and other purposes.
(a) A participant may serve on another participant a request for either of the following:
(1) To produce and permit the participant making the request, or someone acting on the participant's behalf, to inspect and copy designated documents--including writings, drawings, graphs, charts, photographs, computer records and other compilations of data from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonable usable form--or to inspect a copy, test or sample tangible things which constitute or contain matters within the scope of §§ 5.321(b), 5.323 and 5.324 (relating to scope; trial preparation material; and discovery of expert testimony) and which are in the possession, custody or control of the participant upon whom the request is served.
(2) To permit entry upon designated land or other property in the possession or control of the participant upon whom the request is served for the purpose of inspecting and measuring, surveying, photographing, testing or sampling the property or a designated object or operation thereon, within the scope of §§ 5.321(b), 5.323 and 5.324.
(b) As an alternative to permission to inspect and copy, and if requested by the participant seeking discovery, the participant against whom discovery is sought shall reproduce the designated documents at the requesting participant's expense. Regulated utilities shall provide copies of requested materials to Commission staff, which shall include the Office of Trial Staff, the Office of Consumer Advocate and the Office of Small Business Advocate at no charge.
(c) The request shall set forth the items to be inspected either by individual item or by category, describe itemsand categories with reasonable particularity, and specify a reasonable time, place and manner of making the inspection and performing the related acts.
(d) The participant upon whom the request is served shall serve a written response within 15 days for rate proceedings, and 20 days after service of the request for all other cases. Time periods may be modified by the presiding officer, on motion, or by agreement of the participants. The response shall state that inspection and related activities will be permitted as requested. If the request is objected to, the objection shall be made in the manner described in § 5.342 (relating to answers or objections to written interrogatories by a participant). A participant may request another participant to produce or inspect documents as part of interrogatories filed under § 5.341 (relating to written interrogatories to a party). The participant submitting the request may move for an order under § 5.342(e) with respect to an objection or to other failure to respond to the request or any part thereof, or failure to permit inspection as requested.
(e) This section does not apply to official files of the Commission, or materials which are the product of or within the control of Commission advisory or adjudicatory staff, but shall apply only to materials within the control of staff as may be participating in the action as a participant. Access to official files of the Commission shall be as prescribed in §§ 1.71--1.77 (relating to public access to Commission records).
SANCTIONS § 5.371. Sanctions--general.
(a) The Commission or the presiding officer may, on motion, make an appropriate order if one of the following occurs:
(1) A participant fails to appear, answer, file sufficient answers, file objections, make a designation or otherwise respond to discovery requests, as required under this subchapter.
(2) A participant deponent or an officer or managing agent of a participant refuses to obey or induces another to refuse to obey an order of a presiding officer respecting discovery, or induces another not to appear.
(b) A motion for sanctions may be answered within 5 days of service or, in the alternative, the motion may be answered orally at a hearing if a timely hearing has been scheduled within the same 5-day period.
(c) 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.
(d) A failure to act described in subsection (a) may not be excused on the ground that the discovery sought is objectionable unless the participant failing to act has filed an appropriate objection or has applied for a protective order.
(e) If a deponent refuses to be sworn or to answer a question, the deposition shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on reasonable notice to persons affected thereby, the proponent may apply to the presiding officer for an order compelling the witness to be sworn or to answer.
Subchapter E. EVIDENCE AND WITNESSES § 5.401. Admissibility of evidence.
(a) Relevant and material evidence is admissible subject to objections on other grounds, but there shall be excluded evidence that is repetitious or cumulative, or evidence that is not of the kind which would affect reasonable and fair-minded persons in the conduct of their daily affairs.
(b) Subsection (a) supersedes 1 Pa. Code § 35.161 (relating to form and admissibility of evidence).
§ 5.412. Written testimony.
(a) Use of written testimony in Commission proceedings is encouraged, especially in connection with the testimony of expert witnesses. Written direct testimony is required of expert witnesses testifying in rate cases.
(b) Whenever in the circumstances of a particular case it is deemed necessary or desirable, the presiding officer may direct that expert testimony to be given upon direct examination shall be reduced to the form of prepared written testimony. A reasonable period of time will be allowed for the preparation of written testimony.
(c) Written testimony is subject to the same rules of admissibility and cross-examination of the sponsoring witness as if it were presented orally in the usual manner.
(d) Except in a rate proceeding, cross-examination of the witness presenting written testimony shall proceed at the hearing at which testimony is authenticated if, not less than 20 days prior to the hearing, service of the written testimony is made upon each participant of record, unless the presiding officer for good cause otherwise directs. Unless the Commission by rule or order establishes otherwise, in a rate proceeding, the presiding officer will establish the schedule for the filing and authentication of written testimony, and for cross-examination by other participants.
(e) Written testimony shall normally be prepared in question and answer form, include a statement of the qualifications of the witness and be accompanied by exhibits to which it relates. A participant offering prepared written testimony shall insert line numbers in the left-hand margin on each page. A participant should also use a logical and sequential numbering system to identify the written testimony of individual witnesses.
(f) Written testimony shall be served upon the presiding officer and active participants in the proceeding in accordance with the schedule established by this chapter. At the same time the testimony is served, a certificate of service for the testimony shall be filed with the Prothonotary.
(g) At the hearing at which the testimony is authenticated, counsel for the witness shall provide two copies of the testimony to the court reporter.
(h) Subsections (a)--(g) supersede 1 Pa. Code §§ 35.138, 35.150 and 35.166 (relating to expert witnesses; scope and conduct of examination; and prepared expert testimony).
§ 5.413. (Reserved).
SUBPOENAS AND PROTECTIVE ORDERS § 5.421. Subpoenas.
(a) Issuance. A subpoena for the attendance of witnesses or for the production of documentary evidence, unless directed by the Commission upon its own motion, will issue only upon application in writing to the presiding officer, except that during a hearing in a proceeding, the application may be made orally on the record before the presiding officer, who will determine the necessity of issuing the subpoena. The written application shall specify as nearly as possible the general relevance, materiality and scope of the testimony or documentary evidence sought, including, as to documentary evidence, specification as nearly as possible of the documents desired and the facts to be proved by the documents in sufficient detail to indicate the necessity of the documents. The proposed subpoena may be attached to the application.
(b) Notice. An application for a subpoena shall be filed with the Commission and copies served by the petitioner upon the affected participant, the presiding officer, active participants of record, and if the subpoena is directed to a Commission employe, to the Commission's Law Bureau. The application shall contain a notice that an answer or objection thereto shall be filed with the Commission and presiding officer within 10 days of service of the application. When the person for whom a subpoena is sought is not a participant to the case, a copy of the subpoena application shall be served on the person. When the person for whom a subpoena is sought is not a party to the case, the application shall identify the persons--names and addresses--including the Secretary and presiding officer, to whom the answer or objection shall be sent.
(c) Service and return.
(1) Personal service. If service of the subpoena is made by a sheriff, like officer or deputy, service shall be evidenced by the return thereof. If made by another person, the person shall make affidavit thereof, describing the manner in which service was made, and shall return the affidavit on or with the original subpoena. In case of failure to make service, the reasons for the failure shall be stated on the original subpoena. In making service, a copy of the subpoena shall be exhibited to and left with the person to be served. The original subpoena, bearing or accompanied by the authorized return, affidavit or statement, shall be returned to the Secretary, or, if so directed on the subpoena, to the presiding officer before whom the person named in the subpoena is required to appear.
(2) Service by mail. Service of a subpoena upon a participant may also be accomplished by mail under §§ 1.54 and 1.55 (relating to service by a participant; and service on attorneys), or by a form of mail requiring a return receipt, postage prepaid, restricted delivery. Service is complete upon delivery of the mail to the participant or the persons referred to in Pa.R.C.P. No. 402(a)(2).
(d) Fees of witnesses. A witness subpoenaed by the Commission shall be paid the same fees and mileage as are paid for the like services in the courts of common pleas. A witness subpoenaed by a participant shall be paid the same fees by the participant. The Commission, before issuing a subpoena as provided in this section may require a deposit of an amount adequate to cover the fees and mileage involved.
(e) Supersession. Subsections (a)--(d) supersede 1 Pa. Code § 35.142 (relating to subpoenas).
§ 5.431. Close of the record.
(a) Once the record is closed, no additional evidence may be introduced or relied upon by a participant unless allowed for good cause shown by the Commission or presiding officer upon motion of a participant under § 5.402(b) (relating to admission of evidence) and § 5.571 (relating to reopening prior to a final decision), consistent with § 5.253 (relating to transcript corrections).
(b) Subsection (a) supersedes 1 Pa. Code §§ 35.231 and 35.232 (relating to reopening on application of party; and reopening by presiding officer).
Subchapter F. PRESIDING OFFICERS § 5.482. Disqualification of a presiding officer.
(a) A participant may file a motion for disqualification of a presiding officer which shall be accompanied by affidavits alleging personal bias or other disqualification.
(b) A presiding officer may withdraw from a proceeding when deemed disqualified in accordance with law.
(c) A motion for disqualification shall be served on the presiding officer and the participants to the proceeding.
(d) The presiding officer will rule upon a motion for disqualification within 30 days of receipt. Failure to rule upon a motion for disqualification within 30 days of its receipt will be deemed to be a denial of the motion.
(e) The ruling of the presiding officer on a motion for disqualification is subject to the interlocutory appeal procedure in § 5.303 (relating to Commission action on petitions for review and answer).
(f) Subsections (a)--(e) supersede 1 Pa. Code § 35.186 (relating to disqualification of a presiding officer).
§ 5.483. Authority of presiding officers.
(a) The presiding officer will have the authority specified in the act, subject to this title. This authority includes, but is not limited to, the power to exclude irrelevant, immaterial or unduly repetitive evidence, to prevent excessive examination of witnesses, to schedule and impose reasonable limitations on discovery and to otherwise regulate the course of the proceeding.
(b) Subsection (a) supersedes 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers).
Subchapter G. BRIEFS § 5.502. Filing and service of briefs.
(a) An original and nine copies of a brief shall be filed with the Commission under § 1.4 (relating to filing generally).
(b) Except for rate proceedings or as provided by agreement or by direction of the presiding officer, the first or initial brief shall be filed by the participants upon whom rests the burden of proof and the other participants may then respond. If briefs are filed simultaneously, reply briefs may be filed. No additional briefs will be accepted. An initial brief, responding briefs and reply brief shall be filed and served within the time fixed by the presiding officer. If no specific times are fixed, initial briefs shall be filed and served within 30 days after the date of service of notice of the filing of the transcript and responding briefs or reply briefs shall be filed within 50 days after date of service of the notice of the filing of the transcript.
(c) Briefs not filed and served on or before the dates fixed therefor will not be accepted, except by special permission of the Commission or the presiding officer.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 35.191 and 35.193 (relating to proceedings in which briefs are to be filed; and filing and service of briefs).
Subchapter H. EXCEPTIONS, APPEALS AND ORAL ARGUMENT § 5.533. Procedure to except to initial, tentative and recommended decisions.
(a) In a proceeding, exceptions may be filed by a participant and served within 20 days after the initial, tentative or recommended decision is issued unless some other exception period is provided. No exceptions may be filed with respect to an interlocutory decision.
(b) Each exception shall be numbered and shall identify the finding of fact or conclusion of law to which exception is taken and cite relevant pages of the decision. Supporting reasons for the exceptions shall follow each specific exception.
(c) The exceptions shall be concise. The exceptions and supporting reason shall be limited to 40 pages in length. Statements of reasons supporting the exception shall, insofar as practicable, incorporate by reference and citation, relevant portions of the record and passages in previously filed briefs. No separate brief in support of or in reply to exceptions shall be filed with the Prothonotary under § 1.4 (relating to filing generally).
(d) An original and nine copies of the exceptions shall be filed with the Prothonotary under § 1.4.
(e) Unless otherwise ordered by the Commission, the provisions of §§ 1.11(a)(2) and (3) and 1.56(b) (relating to date of filing; and date of service) will not be available to extend the time periods for filing exceptions and replies to exceptions.
(f) Subsections (a)--(e) supersede 1 Pa. Code §§ 35.211 and 35.212 (relating to procedure to except to proposed report; and content and form of briefs on exceptions).
§ 5.536. Effect of failure to file exceptions.
(a) If no exceptions are filed in a proceeding included within § 5.533(a) (relating to procedure to except to initial, tentative and recommended decisions), the decision of the administrative law judge will become final, without further Commission action, unless, within 15 days after the decision is issued, two or more Commissioners request that the Commission review the decision.
(b) A tentative decision, issued by the Commission, subject to exceptions, shall become final, without further Commission action, if no exceptions are filed under § 5.333(a).
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 35.213 and 35.226 (relating to effect of failure to except to proposed report; and final orders).
§ 5.539. Withdrawal of appeals.
(a) The filing of exceptions to a recommended or initial decision shall be deemed to be an appeal to the Commission of the recommended or initial decision and is subject to review by the Commission.
(b) An appeal to the Commission may be withdrawn at any time. If the presiding officer's previous decision is not otherwise subject to Commission review, it becomes final and effective upon the filing of a notice of withdrawal.
Subchapter I. REOPENING, RECONSIDERATION AND REHEARING § 5.572. Petitions for relief following a final decision.
(a) Petitions for rehearing, reargument, reconsideration, clarification, rescission, amendment, supersedeas or the like shall be in writing and shall specify, in numbered paragraphs, the findings or orders involved, and the points relied upon by petitioner, with appropriate record references and specific requests for the findings or orders desired.
(b) A copy of every petition covered by subsection (a) shall be served upon each participant to the proceeding.
(c) Petitions for reconsideration, rehearing, reargument, clarification, supersedeas or others shall be filed within 15 days after the Commission order involved is entered or otherwise becomes final.
(d) Petitions for rescission or amendment may be filed at any time according to the requirements of section 703(g) of the act (relating to fixing of hearings).
(e) Answers to a petition covered by subsection (a) shall be filed and served within 10 days after service of a petition.
(f) Subsections (a)--(e) supersede 1 Pa. Code § 35.241 (relating to application for rehearing or reconsideration).
Subchapter J. REPORTS OF COMPLIANCE § 5.591. Reports of compliance.
(a) When a person subject to the jurisdiction of the Commission is required to do or perform an act by a Commission order, permit or license provision, there shall be filed with the Prothonotary within 30 days following the date when the requirement becomes effective, a notice, stating that the requirement has or has not been met or complied with, unless the Commission, by regulation, by order or by making specific provision therefor in a license or permit, provides otherwise for compliance or proof of compliance.
(b) Subsection (a) is identical to 1 Pa. Code § 35.251 (relating to reports of compliance).
§ 5.592. Compliance with orders prescribing rates.
(a) When the Commission makes a final decision concerning a rate filing, as defined in sections 1307 and 1308 of the act (relating to sliding scale of rates; adjustments; and voluntary changes in rates) and permits or requires the adoption of rates other than the rates originally filed, the public utility affected shall file, within 20 days of entry of the final order, a tariff revision consistent with the Commission's decision together with a proof of revenues and supporting calculations. The utility shall simultaneously serve copies of the tariff revision, along with the proof of revenues and supporting calculations, on the active participants in the proceeding.
(b) Unless otherwise specified in the order, the tariff revision shall be effective upon statutory notice to the Commission and to the public and, whether made effective on statutory notice or under authority granted in the order, shall bear under the effective date on the title page the following notation:
Filed in compliance with the order of Pennsylvania Public Utility Commission, entered ______ , 19 ____ , at ______ .
(c) Exceptions to a tariff revision under this section may be filed by a participant to the proceeding within 10 days of the date of service of the compliance filing, and shall be strictly limited in scope to the factual issue of alleged deviation from requirements of the Commission order. The utility making the compliance filing may respond to exceptions within 5 days. No further pleadings will be permitted.
(d) No rates contained in a tariff revision filed in compliance with a Commission order may be imposed prior to entry of a subsequent order by the Commission approving the compliance filing. Notwithstanding the filing of an exception, the Commission may allow the compliance rates to become effective.
CHAPTER 57. ELECTRIC SERVICE
Subchapter B. SERVICE AND FACILITIES § 57.26. Construction and maintenance of facilities.
Overhead and underground transmission and distribution facilities and crossings of the wires or cables of every public utility over or under the facilities of other public utilities, cooperative associations or communication utilities, including parallel or random installation of underground electric supply and communications conductors or cable, shall be constructed and maintained in accordance with safe and reasonable standards, as set forth in the most recent National Electrical Safety Code.
Subchapter D. ACCOUNTS AND RECORDS § 57.45. Preservation of records.
A public utility shall keep and preserve its records in conformity with the provisions applicable to it in the most recent publication of the National Association of Regulatory Utility Commissioners, entitled ''Regulations to Govern the Preservation of Records of Electric, Gas and Water Utilities.''
CHAPTER 59. GAS SERVICE
ACCOUNTS AND RECORDS § 59.45. Preservation of records.
Each gas utility shall keep and preserve its record in conformity with the provision applicable to it in the current publication of the National Association of Regulatory Utility Commissioners, 1102 ICC Bldg., Post Office Box 684, Washington, D. C. 20044, entitled ''Regulations to Govern the Preservation of Records of Electric, Gas and Water Utilities.''
[Pa.B. Doc. No. 97-113. Filed for public inspection January 24, 1997, 9:00 a.m.]
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