[34 Pa.B. 5895]
[Continued from previous Web Page] § 5.32. Rate complaints.
(a) Prior to suspension. A person may file a complaint against a general rate increase within the meaning of section 1308(d) of the act (relating to voluntary changes in rates) within the time period specified in the notice provided to customers of the tariff filing.
(b) After suspension. A person may file a complaint within 45 days of the suspension date of a proposed general rate increase within the meaning of section 1308(d) of the act. A complaint filed after the 45 day suspension has expired will be accepted for good cause shown.
PETITIONS § 5.41. Petitions generally.
* * * * * (c) Copies shall also be served in compliance with Commission direction.
(d) Subsection (a) supersedes 1 Pa. Code § 35.17 (relating to petitions generally).
§ 5.42. Petitions for declaratory orders.
(a) Petitions for the issuance of a declaratory order to terminate a controversy or remove uncertainty shall [state]:
(1) State clearly and concisely the controversy or uncertainty which is the subject of the petition[, shall cite].
(2) Cite the statutory provision or other authority involved [and shall include].
(3) Include a complete statement of the facts and grounds prompting the petition[, together with].
(4) Include a full disclosure of the interest of the petitioner.
(b) [A] The petitioner shall serve a copy of the petition [shall be served] on the Office of Consumer Advocate, Office of Trial Staff, Office of Small Business Advocate [and], all persons directly affected and on other parties whom petitioner believes will be affected by the petition. [The service] Service shall be evidenced with a certificate of service filed with the petition.
* * * * * § 5.44. Petitions for appeal from actions of the staff.
(a) [Unless otherwise provided in this part, actions] Actions taken by [a subordinate officer] staff, other than a [hearing] presiding officer, under authority delegated by the Commission [may be appealed to the Commission by filing a petition within 10], will be deemed to be the final action of the Commission unless appealed to the Commission within 20 days after service of notice of the action, unless a different time period is specified in this chapter or in the act.
(b) An action taken by staff under delegated authority must note the parties' right to appeal the action under this section.
(c) [Subsection] Subsections (a) and (b) [supersedes] supersede 1 Pa. Code § 35.20 (relating to appeals from actions of the staff).
PROTESTS § 5.51. Protest to an application.
(a) A person objecting to the approval of an application [under consideration by the] filed with the Commission may file a protest to the application.
* * * * * § 5.52. Content of a protest to an application.
(a) Form. A protest to an application shall [on its face set] must:
(1) Set out clearly and concisely the facts from which the alleged interest or right of the protestant can be determined[,].
(2) State the grounds of the protest [and].
(3) Set forth the facts establishing the protestant's standing to protest.
(b) Motor carrier. [A person objecting to the approval of an application shall file with the Prothonotary and serve upon the applicant and applicant's attorney, if any, a written protest to the application which shall] Protests in motor carrier cases must conform with [the requirements of] § 3.381(c)(1) (relating to applications for transportation of property and persons).
(c) Filing and service. A protest shall be filed with the Secretary and served upon the applicant or the applicant's attorney, if any.
§ 5.53. Time of filing.
A protest shall be filed within the time specified in [§ 3.381(d) or § 3.502(d) (relating to applications for transportation of property and persons; and protests to applications for certificate of public convenience as a water supplier or wastewater collection, treatment and disposal supplier)] the published notice of the application. If no protest time is specified, the protest must be filed within 60 days of the date of publication of the notice.
§ 5.54. [Failure to file a protest to an application] (Reserved).
[If no protest is filed with the Commission on or before the date specified in the Pennsylvania Bulletin, the Commission may, in its discretion, take action specified in § 3.381(e) (relating to applications for transportation of property and persons).]
ANSWERS § 5.61. Answers to complaints, petitions [and], motions and preliminary objections.
(a) Time for filing. Unless a different time is prescribed by statute, by the Commission, or by the presiding officer:
(1) Answers to complaints, petitions and motions shall be filed with the Commission within 20 days after the date of service, unless a different time is prescribed by statute or by the Commission.
(2) Answers to preliminary objections shall be filed in accordance with § 5.101 (relating to preliminary objections).
(b) General form. The answer shall be in writing and [shall be]:
(1) Be set forth in paragraphs numbered to correspond with the [complaint] pleading being answered, if possible.
(2) [Answers shall advise] Advise the parties and the Commission as to the nature of the defense.
(3) [They shall admit] Admit or deny specifically all material allegations of the pleading answered[, and state].
(4) State concisely the facts and matters of law upon which they rely.
(5) Include a copy of a document, or the material part of a document when relied upon in the answer. If the writing or a copy is not accessible, the answer must set forth that the document is not accessible and the reason, and set forth the substance of the document.
(c) Failure to file an answer. [Except for complaints which are docketed with Commission-instituted rate proceedings, a] A respondent failing to file an answer within the applicable period shall be deemed in default, and relevant facts stated in the complaint or petition may be deemed admitted. This subsection does not apply to complaints docketed pursuant to Commission-instituted rate proceedings.
(d) Rate proceedings. For complaints which are docketed with Commission-instituted rate proceedings, an answer may be filed within the time specified in § 5.32 (relating to rate proceedings). However, no answer is required, except as may be directed by the Commission or the presiding officer.
(e) Supersession. Subsections (a)--(d) supersede 1 Pa. Code § 35.35 (relating to answers to complaints and petitions).
§ 5.62. Answers seeking affirmative relief or raising new matter.
(a) Answers seeking affirmative relief. In its answer, a respondent may seek relief against other parties in a proceeding [by reason of the presence of] if common questions of law or fact are present. The answer shall conform to this chapter for answers generally and shall set forth [in its answer the]:
(1) The facts constituting the grounds of complaint[, the].
(2) The provisions of the statutes, rules, regulations or orders relied upon[, the].
(3) The injury complained of [and of the].
(4) The relief sought. [The answer shall conform to the requirements of this chapter for answers generally.]
(b) Answers raising new matter. An affirmative defense shall be pleaded in an answer or other responsive pleading under the heading of ''New Matter.'' A party may set forth as new matter another material fact which is not merely a denial of the averments of the preceding pleading.
[(c) A reply to new matter shall be filed within 20 days of the date of service of the answer or other pleading raising the new matter. Failure to file a timely reply to new matter shall be deemed in default, and relevant facts stated in the new matter may be deemed admitted].
§ 5.63. Replies to answers seeking affirmative relief or new matter.
(a) Unless otherwise ordered by the Commission, replies to answers seeking affirmative relief [shall] or to new matter must be filed with the Commission and served within 20 days after date of service of the answer, but not later than 5 days prior to the date set for the commencement of the hearing.
(b) Failure to file a timely reply to new matter will be deemed in default, and relevant facts stated in the new matter may be deemed to be admitted.
(c) [Subsection] Subsections (a) and (b) [is identical to] supersede 1 Pa. Code § 35.39 (relating to replies to respondents seeking affirmative relief).
§ 5.65. Answers to amendments of pleadings.
(a) [A participant may file] Except as provided under § 5.101 (referring to preliminary objections), an answer to an amendment, modification or supplement to an application, complaint, petition or other pleading set forth under § 5.91 (referring to amendments of pleadings generally)[. If made, answers shall] must be filed with the Commission within 20 days after the date of service of the amendment, modification or supplement, unless for cause the Commission or presiding officer with or without motion [shall prescribe] prescribes a different time.
(b) Subsection (a) [is identical to] supersedes 1 Pa. Code § 35.40 (relating to answers to amendments of pleadings).
§ 5.66. Answers to petitions to intervene.
(a) A [participant] party may file an answer to a petition to intervene within 20 days of service, and in default thereof, may be deemed to have waived objection to the granting of the petition. Answers shall be served upon all other [participants] parties.
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INTERVENTION § 5.73. Form and content of petitions to intervene.
(a) Petitions to intervene shall set out clearly and concisely the following:
(1) The facts from which [the nature of] the alleged intervention right or interest of the petitioner can be determined[, the].
(2) The grounds of the proposed intervention[, and the].
(3) The petitioner's position [of the petitioner] regarding the issues in the proceeding [, so as fully and completely to advise the participants and the Commission as to the specific issues of fact or law to be raised or controverted].
(b) Petitions to intervene filed on behalf of more than one person must list those persons and entities comprising the represented group.
(c) [Subsection] Subsections (a) and (b) [supersedes] supersede 1 Pa. Code § 35.29 (relating to form and contents of petitions to intervene).
§ 5.74. Filing of petitions to intervene.
(a) Petitions to intervene and [notice] notices of intervention may be filed following the filing of an application, petition, complaint or other document seeking Commission action[, but no].
(b) Petitions to intervene and notices of intervention shall be filed:
(1) No later than the date fixed for the filing of [petitions to intervene] responsive pleadings in an order or notice with respect to the proceedings [or, except for good cause shown,].
(2) No later than the date fixed for filing protests as published in the Pennsylvania Bulletin, except for good cause shown.
(3) In accordance with § 5.53 (relating to time of filing of protests) if no deadline is set in an order or notice with respect to the proceedings.
(c) Intervention will not be permitted once an evidentiary hearing has concluded absent extraordinary circumstances.
[(b)] (d) The Commission or presiding officer may, [Where] when 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)] (e) Subsections (a) [and (b)]--(d) supersede 1 Pa. Code § 35.30 (relating to filing of petitions to intervene).
§ 5.75. Notice, service and action on petitions to intervene.
(a) Notice and service. Petitions to intervene, when tendered to the Commission for filing, shall show service thereof upon all [participants] parties to the proceeding in conformity with § 1.54 (relating to service by a [participant] party).
* * * * * (c) Rights upon grant of petition. Admission as an intervenor will not be construed as recognition by the Commission that the intervenor has a direct interest in the proceeding or might be aggrieved by an order of the Commission in the proceeding. Intervenors are granted no rights which survive discontinuance of a case by the moving party.
(d) Actions on petitions filed after a hearing has commenced. [No petitions] Petitions to intervene may be filed or will be acted upon during a hearing unless permitted by the Commission or presiding officer after opportunity for all parties to object.
[(c)] (e) Supersession. Subsections (a) [and (b)]--(d) supersede 1 Pa. Code § 35.31 (relating to notice and action on petitions to intervene).
AMENDMENT AND WITHDRAWAL OF PLEADINGS § 5.91. Amendments of pleadings generally.
(a) Generally. A modification of or supplement to an application, complaint, petition[,] or other pleading shall be deemed as an amendment to the pleading, and shall comply with the requirements of this subchapter relating to the pleading amended insofar as appropriate.
(b) Amendments in response to preliminary objections. A party may file an amended pleading as of course within 20 days after service of a copy of a preliminary objection filed under § 5.101(referring to preliminary objections). If a party has filed an amended pleading as of course, the preliminary objections to the original pleading will be deemed moot.
[(b)] (c) Limitation. Except as otherwise provided in this subchapter, no amendment to a pleading may be filed within 5 days preceding the commencement of or during a hearing unless directed or permitted by the Commission or the presiding officer after opportunity for all parties to be heard thereon.
[(c)] (d) Exception in rate cases. This section does not apply to an increase in the aggregate amount of a general rate increase request.
[(d)] (e) Subsections (a)--[(c)] (d) supersede 1 Pa. Code § 35.48 (relating to amendments of pleadings generally).
§ 5.92. Amendments to conform to the evidence.
(a) Amendment by consent. When[,] the parties introduce issues at a hearing[, issues] not raised by the pleadings [are introduced] whether by express or implied consent of the [participants, they] parties, the issues shall be treated in all respects as if they had been raised in the pleadings.
(b) Amendments by motion. Amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise new issues may be made upon motion of a [participant] party at any time during the hearing as set forth in § 5.102 (relating to motions for summary judgment and judgment on the pleadings).
(c) Amendment following objection. If evidence upon new issues is objected to on the ground that it is not within the issues raised by the pleadings, the Commission or the presiding officer may allow the pleadings to be amended and the evidence to be received, when it appears that the presentation of the merits of the proceedings will be served thereby without prejudicing the public interest or the rights of a [participant] party.
(d) Continuance following objection. [When, in the discretion of the Commission or the presiding officer, a continuance is necessary in order to enable the objecting participant to meet the new issues and evidence, a] A continuance may be granted by the Commission or the presiding officer under § 1.15 (relating to extensions of time and continuances) when necessary to allow the objecting party to meet new issues and evidence.
[(b)] (e) Notice of amendment. If an amendment adopted under [subsection (a)] this section has the effect of broadening the issues in the proceeding, notice of the amendment shall be given in the same manner as notice was given at the commencement of the proceeding and to the same persons who received the notice.
[(c)] (f) Supersession. Subsections (a) [and (b) are identical to]--(e) supersede 1 Pa. Code § 35.49 (relating to amendments to conform to the evidence).
§ 5.93. Directed amendments.
(a) The Commission may at any time, or during a hearing, presiding officers may on their own motion or the motion of a [participant] party, direct [participants] parties to state their case by way of amendment more fully or in more detail. The amendment shall be reduced to writing and filed within the time fixed by the Commission or the presiding officer.
* * * * * § 5.94. Withdrawal of pleadings in a contested proceeding.
(a) Except as provided in subsection (b), a [participant] party desiring to withdraw a pleading in a contested proceeding may file a petition for leave to withdraw the appropriate document with the Commission and serve it upon [participants] the other parties. The petition shall set forth the reasons for the withdrawal. A [participant] party may object to the petition within 10 days of service. After considering the petition, an objection thereto and the public interest, the presiding officer or the Commission will determine whether the withdrawal will be permitted.
(b) A protest to an application may be withdrawn by filing a [letter] notice of withdrawal directed to the Commission or the presiding officer. The [letter] notice shall state that the protest is withdrawn and provide the reasons for the withdrawal.
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MOTIONS § 5.101. Preliminary [motion] objections.
(a) [A preliminary motion is] Preliminary objections are available to [participants] parties and may be filed in response to a pleading except motions and prior preliminary objections. [The preliminary motion] Preliminary objections shall state specifically the grounds relied upon, the standing of the party and shall be limited to the following grounds:
(1) [A motion questioning the] Lack of Commission jurisdiction [of the Commission] over the subject matter of the proceeding or the person of a party, or improper service of the pleading initiating the proceeding.
(2) [A motion to strike a pleading that is insufficient as to form] Failure of a pleading to conform to this chapter or the inclusion of scandalous or impertinent matter.
(3) [A motion to dismiss a pleading that is insufficient as to substance, that does not indicate on its face the standing of the party to participate in the proceeding or that fails to join an indispensable party] Insufficient specificity in a pleading.
(4) [A motion for a more specific pleading] Legal insufficiency of a pleading (demurrer).
(5) Lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action.
(6) Pendency of a prior proceeding or agreement for alternative dispute resolution.
(b) [Except when a motion for a more specific pleading is filed, a preliminary motion shall be filed along with an answer] Preliminary objections must be filed together within the time period prescribed by § 5.61 (relating to answers to complaints, petitions [and], motions and preliminary objections). [All preliminary motions shall be raised at the same time.] Two or more preliminary objections may be raised in one pleading.
(c) [If a motion for more specific pleading is filed, no answer may be filed until further directed by the presiding officer or the Commission. A motion for more specific pleading shall be filed within the time period prescribed by § 5.61.] A party may file an amended pleading as of course within 20 days following service of preliminary objections. When an amended pleading is filed as of course, the preliminary objections shall be deemed to be moot in accordance with § 5.91 (relating to amendments of pleadings generally). Objections to an amended pleading shall be made by filing new preliminary objections.
(d) An answer to a preliminary [motion] objection may be filed within 10 days of date of service. A preliminary motion must contain a notice to plead which states that an answer to the objection shall be filed within 10 days of the date of service of the objections.
(e) A preliminary [motion] objection shall be decided [by the presiding officer or the Commission] within 30 days of the [filing of the motion] assignment of the preliminary objection or within 30 days of the termination of mediation.
(f) The party filing preliminary objections has no duty to file an answer or other responsive pleading prior to a ruling on the preliminary objections.
(1) If a preliminary [motion to strike] objection is granted, the [participant] party who submitted the stricken pleading has the right to file an amended pleading within 10 days of service of the order.
(2) If a preliminary objection is overruled, the objecting party shall have the right to plead over within 20 days after notice of the order or within such other time as the presiding officer or the Commission fix.
* * * * * § 5.102. Motions for summary judgment and judgment on the pleadings.
(a) [Motion for judgment on the pleadings] Generally. After the pleadings are closed, but within a time so that the hearing is not delayed, a [participant] party may move for judgment on the pleadings or summary judgment. A motion must contain a notice which states that an answer or other responsive pleading shall be filed within 20 days of service of the motion.
(b) Answers. An answer to a motion for judgment on the pleadings or summary judgment, including an opposing affidavit or verification to a motion for summary judgment, may be filed within 20 days of the date of service of the motion. The answer may be supplemented by pleadings and depositions, answers to interrogatories or further affidavits or verifications and admissions.
[(b)] (c) 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] A motion for summary judgment must be 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)] (d) Decisions on motions.
(1) Standard for grant or denial on all counts. 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] party 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) Standard for grant or denial in part. 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] party 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.]
(3) Form of decision. The presiding officer will grant, in whole or in part, the motion in the form of an initial or recommended decision which shall be subject to exceptions as set forth in § 5.533 (relating to exceptions). Denial of a motion will be in the form of a written order.
§ 5.103. Motions.
* * * * * (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. Written motions shall contain a notice which states that a responsive pleading shall be filed within 20 days of the date of service of the motion.
(c) Response to motions. A [participant] party has [10] 20 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.
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Subchapter B. HEARINGS
GENERAL § 5.201. Notice of proceeding; hearing; waiver of hearing.
* * * * * (b) If the appropriate pleading is not filed within the set period of time, or [where] when the [participants] parties have waived hearings, the Commission may dispose of the matter without a hearing upon the basis of the pleadings or submittals and the studies and recommendations of the staff.
* * * * * § 5.202. Scheduling of hearing.
* * * * * (b) Proceedings pending on the calendar will be heard so far as practicable, in their order of assignment to the calendar at the times and places fixed by the Commission or presiding officer, giving regard to the convenience and necessity of the [participants] parties and their attorneys.
(c) The Commission or the presiding officer in the exercise of discretion, for cause, may advance or postpone [proceeding] proceedings on the hearing calendar with notice to the [participants] parties.
* * * * * § 5.203. Hearing in rate proceedings.
* * * * * (b) [Ordinarily, hearings in rate proceedings will be scheduled with regard to the convenience of the parties, attorneys and witnesses, as well as that of the presiding officer and the Commission staff. In scheduling hearings, however, the] The presiding officer will be guided by the requirement of section 315 of the act (relating to burden of proof) that rate cases are to be given preference over all other proceedings, and are to be decided as speedily as possible.
(c) The presiding officer may continue a scheduled hearing upon his own motion or upon the request of a party for good cause shown. Mere convenience or other engagements of counsel [shall] will not ordinarily constitute grounds for continuance.
[(c)] (d) Subsections (a) [and (b)]--(c) supersede 1 Pa. Code §§ 35.121 and 35.123 (relating to initiation of hearings; and conduct of hearings).
NOTICE OF HEARING § 5.212. Notice of nonrulemaking proceedings.
(a) The presiding officer, the Office of Administrative Law Judge or the Commission is authorized to schedule prehearing conferences and hearings. [Participants] Parties shall be given reasonable notice of the time and place of the prehearing conference or hearing. In fixing the time and place of conferences and hearings, regard will be given to the convenience and necessity of the [participants] parties or their attorneys so far as time and the proper execution of the functions of the Commission permit.
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PREHEARING AND OTHER CONFERENCES § 5.221. Conferences to adjust, settle or expedite proceedings.
(a) [In order to] To provide opportunity for the submission and consideration of facts, arguments, offers [or] of settlement or proposals of adjustment, for settlement of a proceeding, or the issues therein, or consideration of means by which the conduct of the hearing may be facilitated and the disposition of the proceeding expedited, conferences between the [participants] parties may be held at any time prior to or during hearings as time, the nature of the proceeding, and the public interest permit.
* * * * * § 5.222. Initiation of prehearing conferences in nonrate proceedings.
(a) [In order to] 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] parties 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] parties 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] parties 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:
* * * * * (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] party contemplates asking another [participant] party 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:
* * * * * (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] party may propound on another [participant] party.
(d) [Participants] Parties 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] parties, including requests for additional data and information, to the extent it appears feasible and desirable. Failure of a [participant] party 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.
* * * * * § 5.223. Authority of presiding officer at conferences.
(a) The presiding officer at a conference may dispose of procedural matters which he is authorized to rule upon during the course of the proceeding. [Where] When it appears that the proceeding would be substantially expedited by distribution of proposed exhibits and written prepared testimony reasonably in advance of the hearing session, the presiding officer, at his discretion, and with regard for the convenience and necessity of the [participants] parties, may direct advance distribution by a prescribed date. The rulings of the presiding officer made at the conference shall control the subsequent course of the hearing, unless modified for good cause shown.
(b) The presiding officer will have authority to participate in the discussions, to arrange for recording stipulations or agreements reached at conference, to fix the date of initial hearing and the date for additional hearings which may be required to dispose of the proceeding, and otherwise to assist the [participants] parties to reach agreement that will expedite the proceeding and serve the ends of justice.
* * * * * § 5.224. Prehearing conference in rate proceedings.
* * * * * (b) The first prehearing conference shall be held as soon as practicable after the entry of the order of investigation. The [participants] parties 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] party may propound on another [participant] party.
* * * * * (c) At the first prehearing conference, [participants] parties 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:
* * * * * (3) Incorporate stipulations in the record.
* * * * * (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 and] settlement petitions; and refusal to make admissions or [stipulate] stipulations), 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] Parties, except the filing utility, shall file and serve on all other [participants] parties, 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] party 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] party when justice so requires.
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[SETTLEMENT AND STIPULATIONS] SETTLEMENTS § 5.231. Offers of settlement.
* * * * * (b) Nothing contained in this chapter or Chapter 1 or 3 (relating to rules of administrative practice and procedure; and special provisions) precludes a [participant] party in a proceeding from submitting, at any time, offers of settlement or proposals of adjustment, or from requesting conferences for that purpose.
(c) [Participants] Parties 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.
(d) Proposals of settlement, of adjustment, or of procedure to be followed, and proposed stipulations not agreed to by every [participant] party, including proposals intended to resolve discovery disputes, will not be admissible in evidence against a counsel or [participant] party claiming the privilege.
[(b) Subsection] (e) Subsections (a)--(d) [supersedes] supercede 1 Pa. Code § 35.115 (relating to offers of settlement).
§ 5.232. [Stipulations and settlement] Settlement petitions.
(a) Generally. [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] A settlement petition shall be filed with the [Prothonotary] Secretary in accordance with § 5.41 (relating to petitions generally). [If the petition is presented to the presiding officer, the Prothonotary shall also be served with three copies.]
(b) Representation of other parties' agreement. A settlement agreement shall specifically identify the other [participants] parties supporting the settlement, opposing or taking no position on the settlement, if known, and the other parties that were provided or denied an opportunity to enter into the settlement.
(c) Service. A copy of each [stipulation or] settlement petition shall be served upon each [participant] party to the proceeding, and each [participant] party shall have the opportunity to comment on the proposed settlement unless otherwise ordered by the presiding officer.
(d) Review. 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.
(1) The presiding officer will determine if the settlement is in the public interest.
(2) The presiding officer will hold a hearing if a timely objection is filed and the hearing is necessary in the public interest.
(3) 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), if approved, or in the form of an order, if disapproved.
(e) Waiver of exceptions. [Upon] The exception period may be waived 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) Disposition of exceptions. If timely exceptions are filed, they will be considered in a ruling made on the settlement petition.
§ 5.233. Refusal to make admissions or [stipulate] stipulations.
(a) Generally. A party may move for sanctions under subsection (b) when the following conditions are satisfied:
(1) [If a] A party [attending] refuses to admit or stipulate to the genuineness of documents or the truth of matters of fact during a conference convened under this chapter and Chapter 1 or 3 (relating to rules of administrative practice and procedure; and special provisions) [refuses to admit or stipulate the genuineness of documents or the truth of matters of fact and if the participant].
(2) The party requesting the admissions or stipulations thereafter proves the genuineness of the document or the truth of a matter of fact[, he].
(b) Sanctions. The requesting party may apply to the presiding officer for an order requiring the other party to pay [him] the reasonable expenses incurred in making the proof, including reasonable attorney's fees. [Unless] The presiding officer will grant an order for sanctions unless the presiding officer finds that there were good reasons for the refusal to admit or stipulate or that the admissions or stipulations sought were of no substantial importance[, the order will be made].
(c) Appeal. An interlocutory appeal may be taken to the Commission immediately from the order made by a presiding officer under Subchapter C (relating to interlocutory review).
(d) Compliance. If a party refuses to comply with the order after it becomes final, the [agency] Commission or presiding officer may strike all or part of the pleadings of the party or limit or deny further participation by the party.
[(b) Subsection] (e) Subsections (a)--(d) [is identical to] supersede 1 Pa. Code § 35.116 (relating to refusal to make admissions or stipulate).
§ 5.234. Presentation and effect of stipulations.
(a) [Independently of the orders or rulings issued as provided by §§ 5.221--5.224 (relating to prehearing and other conferences) the participants] Parties may stipulate [as] to relevant matters of fact or the authenticity of relevant documents. The stipulations may be received in evidence at a hearing, and when so received shall be binding on the [participants] parties with respect to the matters therein stipulated.
(b) The parties may make stipulations independently of orders or rulings issued under §§ 5.221--5.224 (relating to prehearing and other conferences).
[(b)] (c) * * *
[(c)] (d) [Subsection] Subsections (a) and (b) [is identical to] supersede 1 Pa. Code § 35.155 (relating to presentation and effect of stipulations). Subsection [(b)] (c) supplements 1 Pa. Code § 35.155.
§ 5.235. Restrictive amendments to applications for motor carrier of passenger and household goods in use authority.
(a) [The participants] Parties to motor carrier applications for passenger and 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]:
(1) Be in writing[,].
(2) Explain why the stipulation is in the public interest.
(3) Be signed by each [participant] party to the stipulation[, and a copy].
(4) Be submitted to the Secretary for insertion into the document folder.
* * * * *
HEARINGS § 5.241. [Appearances] Attendance.
(a) The presiding officer before whom the hearing is held shall enter upon the record all [appearances, with a notation on whose behalf each appearance is made] parties in attendance.
* * * * * § 5.242. Order of procedure.
(a) In a proceeding, the [complainant, petitioner or other participant] party 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] party on whose behalf the intervention is made. If the intervention is not in support of an original [participant] party, 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 [partici- pant] party, 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] parties for purposes of cross-examination, subject to [the requirements of] § 5.243(f) (relating to presentation by [participants] parties).
* * * * * § 5.243. Presentation by [participants] parties.
(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),] party has the right of presentation of evidence, cross-examination, objection, motion and argument 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). The taking of evidence and subsequent proceedings shall proceed with reasonable diligence and with the least practicable delay.
* * * * * (c) The presiding officer may require or allow a factual statement of the scope of a pleading or the position of a [participant] party in the proceeding. Facts admitted on the record by a [participant] party or by testimony, exhibits or in writing, need not be further proved.
* * * * * (e) [No participant] A party will not be permitted to introduce evidence during a rebuttal phase which [is]:
(1) Is repetitive[, which should].
(2) Should have been included in the [participant's] party's case-in-chief [or which substantially].
(3) Substantially varies from the [participant's] party'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] party conducts friendly cross-examination of a witness, the presiding officer may permit the other [participants] parties 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.
* * * * * § 5.245. Failure to appear, proceed or maintain order in proceedings.
(a) After being notified, a [participant] party who fails to be represented at a scheduled conference or hearing in a proceeding shall [be]:
(1) Be deemed to have waived the opportunity to participate in the conference or hearing[, and shall not].
(2) Not be permitted thereafter to reopen the disposition of a matter accomplished at the conference or hearing[, or].
(3) Not be permitted to recall [for further examination of] witnesses who were excused[, unless] for further examination.
(b) Subsection (a)(1)--(3) does not apply if the presiding officer determines that the failure to be represented was unavoidable and that the interests of the other [participants] parties and of the public would not be prejudiced by permitting the reopening or further examination. Counsel shall be expected to go forward with the examination of witnesses at the hearing under § 5.242 (relating to order of procedure), or as has been otherwise stipulated or has been directed by the presiding officer.
[(b) If the actions of a participant in a proceeding are determined by] (c) If the Commission or the presiding officer finds, after notice and opportunity for hearing, [to be obstructive to] that the actions of a party in a proceeding obstruct the orderly conduct of the proceeding and are inimical to the public interest, the Commission or the presiding officer may take appropriate action, including [but not limited to, where appropriate,] dismissal of the complaint, application, or petition, if the action is that of complainant, applicant[,] or petitioner.
TRANSCRIPT § 5.251. Recording of proceedings.
(a) If required by law, hearings will be stenographically reported by the Commission's official reporter.
(b) Notwithstanding the review provisions of § 5.252 (relating to review of testimony), the hearing transcript [of the report] will be a part of the record and the sole official transcript of the proceeding.
(c) The transcripts will include a verbatim report of the hearings and nothing will be omitted therefrom except as is directed by the presiding officer. [After the closing of the record, there will not be received in evidence or considered as part of the record a document except as provided in § 5.404 (relating to additional evidence) or changes] Changes in the transcript must be made as provided in § 5.253 (relating to transcript corrections).
[(b) Subsection] (d) Subsections (a)--(c) [is identical to] supersede 1 Pa. Code § 35.131 (relating to recording of proceedings).
§ 5.252. Review of testimony.
* * * * * (c) Upon request for review, the Office of Administrative Law Judge [shall] will schedule a time and place for the review which shall be open to all [participants of record] parties. The court reporting firm shall submit the tapes and equipment necessary for the review and shall arrange for the court reporter responsible for transcribing the tapes to be present at the review.
* * * * * § 5.253. Transcript corrections.
(a) A correction in the official transcript may be made only to make it [conform to] accurately reflect 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] parties of record who were present when the transcription was taken.
(2) Upon written request of one or more [participants] parties of record present when the transcription was taken.
* * * * * (e) Proposed corrections and objections or other comments [shall] must be served upon the [participants] parties of record present when the original transcription was taken.
* * * * *
Subchapter C. INTERLOCUTORY REVIEW § 5.302. Petition for interlocutory Commission review and answer to a material question.
(a) During the course of a proceeding, a [participant] party 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] must be in writing with copies served on all [participants] parties and the presiding officer and shall [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] party 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] party. The brief may not exceed 15 pages.
(c) The [participant petitioning for Commission review and answer] petitioning party shall also provide with the brief rulings on its question and extracts from the record as will assist the Commission in reaching a decision.
* * * * * § 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] parties.
* * * * * § 5.304. Interlocutory review of discovery matters.
(a) General. [Unless otherwise ordered by the Commission in exceptional situations, rulings] Rulings of presiding officers on discovery are not subject to interlocutory review [absent certification] unless one or more of the following apply:
(1) Interlocutory review is ordered by the Commission.
(2) Interlocutory review is certified by the presiding officer [that].
(3) The ruling has as its subject matter the deposing of a Commissioner or Commission employee.
(b) Standard for certification. A presiding officer may certify that a discovery ruling is appropriate for interlocutory review when 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 interlocutory Commission review and answer to a material question; and Commission action on petition for review and answer)].
[(1)] (c) Petition for certification. [Participants desiring] A petition for interlocutory review of a presiding officer's ruling on discovery [shall,] must:
(1) Be filed within 3 days of the ruling[, petition the presiding officer to certify the question to the Commission. The request shall be].
(2) Be in writing [with copies served on all participants and shall state, in not more than three pages,].
(3) State the question to be certified and the reasons why interlocutory review will prevent substantial prejudice or expedite the conduct of the proceedings.
(4) Be no more than 3 pages in length.
(5) Be filed with the Secretary and served on all parties and the presiding officer.
[(2)] (d) Responsive brief. [Within] A party may file a responsive brief within 7 days of a request for certification, [each participant may submit a brief to the presiding officer supporting or opposing] which:
(1) Either supports or opposes certification [and, in addition, addressing].
(2) Addresses the merits of the question for which certification is requested [and].
(3) Addresses whether a stay of proceedings is required to protect the substantial rights of a [participant] party.
(4) [The brief may] May not exceed 15 pages.
[(3)] (e) Presiding officer's decision. The presiding officer will[, within 3 days of the deadline for filing briefs,] announce the decision in writing or orally on the record[, with] within 3 days of the deadline for filing responsive briefs. The presiding officer's announcement will include the reasons why certification has been granted or denied and whether a stay of proceedings has been granted.
[(4)] (1) If the presiding officer denies the request for certification, [then] no further action is required of the presiding officer.
[(5)] (2) 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[,] within 4 days of the announcement of the decision. The presiding officer will include the reasons justifying certification, rulings on the certified question[,] and extracts from the record that will assist the Commission in reaching a decision.
[(b)] (f) Brief to the Commission following certification. [Each participant may, on or before the date the presiding officer is required to file the certification,] Parties may submit a brief[, not to exceed 15 pages, directed] to the Commission [addressing] and no other briefs are permitted unless directed by the Commission. A brief must:
(1) Address the issue of certification[, and].
(2) Address the merits of the certified question[, and].
(3) Address the stay of proceedings, when appropriate.
(4) Not exceed 15 pages. No additional briefs are permitted unless directed by the Commission.
[(c)] (g) Scheduling of certified question. 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)] (h) Action by the Commission. Within 30 days of receipt of the certified question by the Secretary, the Commission will, without permitting oral argument, do one of the following:
* * * * * [(e)] (i) Failure to act. 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)] (j) Effect on proceedings. 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] parties.
§ 5.305. Interlocutory review of a material question submitted by a presiding officer.
* * * * * (b) A copy of the question certified and the accompanying information shall be [sent to] served on the [participants] parties at the same time it is submitted to the Commission.
(c) Within 7 days of service of the certification, each [participant] party 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] party. The brief may not exceed 15 pages.
* * * * * § 5.306. [Notification by telephone] Expedited notification.
A presiding officer may order notification of [participants] parties by telephone, telefacsimile or other electronic means when time periods are short and delivery by mail may not prove adequate. [A telephone notification] Notification by means other than by mail will be confirmed by the presiding officer by service in writing.
Subchapter D. DISCOVERY
GENERAL § 5.321. Scope.
* * * * * (c) Scope. Subject to this subchapter, a [participant] party 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] does not apply to discovery sought of Commissioners or Commission staff serving in an advisory or adjudicatory capacity.
(e) Commission staff. This subchapter [shall apply] applies 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] party 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:
* * * * * (2) Written interrogatories to a [participant] party.
* * * * * § 5.322. Informal agreement regarding discovery or deposition procedure.
The [participants] parties may by agreement provide that depositions may be taken before a person, at any time or place, upon any notice, and in any manner, and when so taken may be used like other depositions. The [participants] parties may modify the procedures provided by this chapter for methods of discovery and, notwithstanding any provisions of this subchapter, [participants] parties are encouraged to exchange information on an informal basis.
§ 5.323. [Trial] Hearing preparation material.
(a) Generally. Subject to this subchapter, a [participant] party may obtain discovery of any matter discoverable under § 5.321(b) (relating to scope) even though prepared in anticipation of litigation or hearing by or for another [participant] party or by or for that other [participant's] party's representative, including his attorney, consultant, surety, indemnitor, insurer or agent. The discovery may not include disclosure of the mental impressions of a [participant's] party's attorney or his conclusions, opinions, memoranda, notes, summaries, legal research or legal theories. With respect to the representative of a [participant] party other than the [participant's] party's attorney, discovery may not include disclosure of his mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy, tactics or preliminary or draft versions of written testimony or exhibits, whether or not final versions of the testimony or exhibits are offered into evidence.
(b) Statements. Upon written request, a [participant] party is entitled to immediate receipt of a photostatic copy or like reproduction of a statement concerning the action or its subject matter previously made by that [participant] party, another [partici- pant] party or a witness. If the statement is not provided, the [participant] party may move for an order from the presiding officer. For purposes of this subsection, a statement previously made is one of the following:
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