[34 Pa.B. 5895]
[Continued from previous Web Page] § 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), including that acquired or developed in anticipation of litigation or for hearing, may be obtained as follows:
(1) A [participant] party may through interrogatories require both of the following:
(i) The other [participant] party to identify each person whom the [participant] party 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] party to have each expert [identified by the participant] so identified 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] party 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] party 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] party), if the written direct testimony is served on all [participants] parties 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] party shall still comply with paragraph (1)(i) within the time otherwise applicable.
* * * * * (b) [If the identity of an] An expert witness whose identity is not disclosed in compliance with subsection (a)(1)[, the witness] will not be permitted to testify on behalf of the defaulting [participant] party 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] party, the presiding officer may grant a continuance or other appropriate relief.
* * * * * (d) The answering [participant] party 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] when additional facts or information have become known to the answering [participant] party or where the interest of justice otherwise requires.
* * * * *
TIMING AND SUPPLEMENTAL RESPONSES § 5.331. Sequence and timing of discovery.
(a) A [participant or a person who has formally applied] party to the Commission [for participant status] proceeding may conduct discovery.
(b) A [participant] party 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 ''Staff 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] party). 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] The presiding officer, upon his own motion or motion of a [participant] party, may establish reasonable limitations upon the timing of discovery.
(e) Unless the presiding officer upon motion, for the convenience of [participants] parties 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] party is conducting [a] discovery will not operate to delay another [participant's] party's discovery.
§ 5.332. Supplementing responses.
A [participant] party 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] party 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] party 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] parties, or at a time prior to hearing through new requests to supplement prior responses.
TYPES OF DISCOVERY § 5.341. Written interrogatories to a party.
(a) Subject to the limitations provided by § 5.361 (relating to limitation of scope of discovery and deposition), a [participant] party may serve upon another [participant] party written interrogatories to be answered by the [participant] party served or, if the [participant] party served is a public or private corporation, similar entity or a partnership or association, by an officer or agent, who shall furnish the information as is available to the [participant] party.
(b) The party propounding interrogatories shall serve a copy on the parties and shall file a certificate of service with the Secretary. Interrogatories may not be filed with the Commission. [A copy of interrogatories shall be served on the active participants.]
(c) Interrogatories may relate to matters which can be inquired into under §§ 5.321, 5.323 and 5.324 (relating to scope; [trial] hearing preparation material; and discovery of expert testimony) and may include requests that the answering party provide copies of documents without making a separate request for the production of documents under § 5.349 (relating to requests for documents, entry for inspection and other purposes).
* * * * * (e) A [participant] party should use a logical and sequential numbering system for interrogatories.
§ 5.342. Answers or objections to written interrogatories by a [participant] party.
(a) Form. [An answer] Answers to [an interrogatory shall be] interrogatories must:
(1) Be in writing [and the answer shall identify].
(2) Identify the name and position of the individual who provided the answer.
(3) [An answer shall be] Be submitted as an answer and may not be submitted as an exhibit or in another form.
(4) [Each interrogatory shall be answered] Answer each interrogatory fully and completely unless an objection is made.
(5) [The answer shall first restate] Restate the interrogatory which is being answered or be inserted in the spaces provided in the interrogatories.
(6) Be verified in accordance with § 1.36 (relating to verification).
(b) Use. An answer may be used by a [participant] party for an appropriate purpose, if admissible under the applicable rules of evidence. An answer may not be offered into evidence by the [participant] party who provided it, except through the sworn oral testimony of the person who provided the answer.
(c) Objections. [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]:
(1) Restate the interrogatory or part thereof deemed objectionable and the specific ground for the objection.
(2) [The objection shall include] Include a description of the facts and circumstances purporting to justify the objection.
(3) [The objection shall be] Be signed by the attorney making it.
(4) [An interrogatory otherwise proper is not objectionable solely because] Not be valid if based solely on the claim that an answer will involve an opinion or contention that is related to a fact or the application of law to fact.
(5) [The statement of an objection does not] Not excuse the answering [participant] party from answering the remaining interrogatories or subparts of interrogatories to which no objection is stated.
(d) Service of answer and objections. The answering [participant] party shall serve [interrogatories] objections 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] parties.
(1) An objection shall be served within 10 days for rate proceedings, and 30 days of service of the interrogatories in other cases, except as agreed by the [participants] parties or as ordered by the presiding officer.
(2) [Within the time periods prescribed in this subsection, the] The answering or objecting [participant] party shall serve copies of the answer and the objection, if any, on the active [participants] parties.
(3) [If there is an objection, then the] The objecting [participant] party shall file copies of the objection with the [Prothonotary] Secretary, along with a certificate of service, which [shall identify] identifies 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)] (4) The [participant] party 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) Motion to compel. [The participant] Within 10 days of service of an objection to interrogatories, the party submitting the interrogatories may move that the presiding officer dismiss an objection and [direct] compel that the interrogatory be answered. If a motion to dismiss an objection to interrogatories is not filed within 10 days of service of the objection, the objected to interrogatory will be deemed withdrawn.
(1) The [participant] party 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]. 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] parties, rule in no more than 20 days of its presentation.
§ 5.343. Procedures in deposition by oral examination.
(a) A [participant] party 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] party and to the presiding officer. A [participant, or witness within the control of a participant,] party noticed to be deposed is required to appear without subpoena. A [nonparticipant] person who is not a party is not required to appear unless subpoenaed.
* * * * * (d) If the person to be examined is a [participant] party, 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] party, 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] party 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] nonparty 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] parties. A notice of deposition which is served upon a [nonparticipant] nonparty shall state that the [nonparticipant] nonparty may file objections within 10 days of service and identify the persons--names and addresses--to whom the objections shall be sent.
* * * * * § 5.344. Approval by presiding officer.
* * * * * (c) If a [participant] party provides notice scheduling the taking of a deposition prior to an expiration of 20 days after initiation of the proceedings, the [participant] party shall set forth the facts requiring the expedited discovery, and the presiding officer shall consider whether expedited discovery is warranted.
* * * * * § 5.345. Procedure on depositions by written questions.
(a) A [participant] party taking a deposition by written questions shall serve the questions upon the deponent and serve a copy upon each other [participant] party or his attorney of record. Within 30 days thereafter the [participant] party served and other [participants] parties may serve cross questions upon the deposing [participant] party and upon each other [participant] party or [his] the attorney of record. Reply questions [shall] must be similarly served by a [participant] party within 10 days of the service of cross questions.
* * * * * (c) Objections to the form of questions are waived unless filed and served upon the [participant] party 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).
* * * * * (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] party 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.
§ 5.347. Taking of depositions--objections.
* * * * * (b) Objections to the competency of a witness or to the competency, relevancy or materiality of the testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground for the objection is one which was known to the objecting [participant] party and which might have been obviated or removed if made at that time.
(c) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of oral questions or answers, in the oath or affirmation or in the conduct of [participants] parties and errors which might have been obviated, removed or cured if objections had been promptly made, are waived unless reasonable objection is made at the taking of the deposition.
(d) Errors and irregularities in the notice for taking a deposition are waived unless written objection is served upon the [participant] party giving the notice under § 5.344 (relating to approval by presiding officer).
* * * * * § 5.348. Transcript of deposition, objections and filing.
* * * * * (e) In lieu of participating in the oral examination, [participants] parties 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] parties or to the deponent.
* * * * * § 5.349. Requests for documents, entry for inspection and other purposes.
(a) A [participant] party may serve on another [participant] party a request for either of the following:
(1) To produce and permit the [participant] party making the request, or someone acting on the [participant's] party'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] hearing preparation material; and discovery of expert testimony) and which are in the possession, custody or control of the [participant] party upon whom the request is served.
(2) To permit entry upon designated land or other property in the possession or control of the [participant] party 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] party seeking discovery, the [participant] party against whom discovery is sought shall reproduce the designated documents at the requesting [participant's] party'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.
* * * * * (d) The [participant] party 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] parties. The response shall be verified and 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] party). A [participant] party may request another [participant] party to produce or inspect documents as part of interrogatories filed under § 5.341 (relating to written interrogatories to a party). The [participant] party 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] party. Access to official files of the Commission shall be as prescribed in §§ 1.71--1.77 (relating to public access to Commission records).
§ 5.350. Request for admissions.
(a) General. A [participant] party may serve upon another [participant] party a written request for the admission of the truth of any matters, within the scope of §§ 5.321--5.324 (relating to general), set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness, authenticity, correctness, execution, signing, delivery, mailing or receipt of a document described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or available for inspection and copying.
(b) Form. Each matter of which an admission is requested shall be separately set forth.
(c) Failure to admit. The matter is admitted unless, within 20 days after service of the request, the [participant] party to whom the request is directed answers or makes an objection to the matter, signed by the [participant] party or by his attorney.
(d) Response. [If objection is made, the reasons shall be stated.]
(1) Answer. The answer shall admit or deny the matter or set forth in detail the reasons why the answering [participant] party cannot truthfully do so.
(2) Denial. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a [participant] party qualify [his] an answer or deny only a part of the matter of which an admission is requested, [he] the party shall specify so much of it as is true and qualify or deny the remainder. An answering [participant] party may not give lack of information or knowledge as a reason for failure to admit or deny unless [he] the party states he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.
(3) Objection. Objections shall be supported by reasons. A [participant] party who considers that a matter of which an admission has been requested presents a genuine issue for hearing may not, on that ground alone, object to the request.
[(c)] (e) Motion to determine sufficiency of response. The [participant] party who has requested the admission may move to determine the sufficiency of the answer or objection. Unless the presiding officer determines that an objection is justified, [he] the presiding officer will order that an answer be served. If the presiding officer determines that an answer does not comply with the requirements of this section, [he] the presiding officer may order either that the matter is admitted or may determine that final disposition of the request be made at a prehearing conference or at a designated time prior to hearing.
[(d)] (f) Effect of admission. A matter admitted under this section is conclusively established unless the presiding officer on motion permits withdrawal or amendment of the admission. An admission by a [participant] party under this section is for the purpose of the pending action only and is not an admission by him for another purpose. An admission may not be used against a [participant] party in another proceeding.
§ 5.351. On the record data requests.
(a) [During the course of a rate proceeding a participant] A party may request that a witness provide information or documents at a later time as part of the witness' response to a question posed during cross-examination in the course of a rate proceeding.
(1) Oral request. [The] A request [may be] made orally [or in writing so long as the written request is presented at the time the witness appears for cross-examination. An oral request] may be confirmed in writing by the [participant] party making the request.
(2) Written request. A written request shall be presented at the time the witness appears for cross-examination.
(b) The procedures for written interrogatories in § 5.342 (relating to answers or objections to written interrogatories by a [participant] party) [is applicable] applies to on the record data requests except [that answers]:
(1) Answers shall be supplied as soon as possible [after the request but in any event no]. The response period may not extend later than 10 days after the request is made[, unless the].
(2) The presiding officer [modifies] may modify the time period for good cause shown.
(c) Objections to a request shall be made at the time that the request is made. Limitations established in §§ 5.321, 5.322, 5.323 and 5.331(b) [are applicable] apply to on the record data requests.
LIMITATIONS § 5.361. Limitation of scope of discovery and deposition.
(a) [No discovery] Discovery or deposition is not permitted which:
* * * * * (2) Would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent, a person or [participant] party.
* * * * * (4) Would require the making of an unreasonable investigation by the deponent, a [participant] party or witness.
(b) In rate proceedings, discovery is not limited under subsection (a) solely because the discovery request requires the compilation of data or information which the answering [participant] party does not maintain in the format requested, in the normal course of business, or because the discovery request requires that the answering [participant] party make a special study or analysis, if the study or analysis cannot reasonably be conducted by the [participant] party making the request.
(c) If the information requested has been previously provided, the answering [participant] party shall specify the location of the information.
§ 5.362. Protective orders.
(a) Upon motion by a [participant] party or by the person from whom discovery or deposition is sought, and for good cause shown, the presiding officer may make an order which justice requires to protect a [participant] party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following:
* * * * * (6) That the [participants] parties simultaneously [shall] file specified documents or information enclosed in sealed envelopes to be opened as directed by the presiding officer.
* * * * * (b) If the motion for a protective order is denied in whole or in part, the presiding officer may order that a [participant] party or person provide or permit discovery.
(c) During the taking of a deposition on motion of a [participant] party or of the deponent, the presiding officer or other [Administrative Law Judge] administrative law judge may order the officer conducting the examination to cease from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in subsection (a). Upon demand of the objecting [participant] party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order and to obtain the presiding officer's ruling.
§ 5.364. Use of depositions at hearing.
(a) At hearing, part or all of a deposition, so far as admissible under 42 Pa.C.S. § 6101--6112 (relating to rules of evidence), may be used against a [participant] party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with one of the following provisions:
(1) A deposition may be used by a [participant] party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
(2) The deposition of a [participant] party or of anyone who at the time of taking the deposition was an officer, director or managing agent of a [participant] party or a person designated under §§ 5.343(e) or 5.345(a)(2) (relating to procedures in deposition by oral examination; and procedure on depositions by written questions) to testify on behalf of a public or private corporation, partnership, association or governmental agency which is a [participant] party, may be used by an adverse [participant] party for any purpose.
(3) The deposition of a witness[, whether or not a participant,] may be used by a [participant] party for a purpose if the presiding officer finds one of the following:
* * * * * (ii) That the witness is outside this Commonwealth, unless it appears that the absence of the witness was procured by the [participant] party offering the deposition.
* * * * * (iv) That the [participant] party offering the deposition has been unable to procure the attendance of the witness by subpoena.
* * * * * (4) If only part of a deposition is offered in evidence by a [participant] party, another [participant] party may require him to introduce all of it which is relevant to the part introduced, and a [participant] party may introduce other parts.
* * * * * (c) A [participant] party may not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or a part thereof for a purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition[, but this]. This does not apply to the use by an adverse [participant] party of a deposition as described in subsection (a)(2). At the hearing, a [participant] party may rebut relevant evidence contained in a deposition whether introduced by him or by another [participant] party.
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] party 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] party deponent or an officer or managing agent of a [participant] party refuses to obey or induces another to refuse to obey an order of a presiding officer respecting discovery, or induces another not to appear.
* * * * * (c) The presiding officer shall rule on the motion as soon as practicable[; however, the] The motion should be decided within [15] 20 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] party failing to act has filed an appropriate objection or has applied for a protective order.
* * * * * § 5.372. Sanctions--types.
(a) The presiding officer, when acting under § 5.371 (relating to sanctions--general), may make one of the following:
* * * * * (2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting [him] the party from introducing in evidence designated documents, things or testimony.
(3) An order striking out pleadings or parts thereof, staying further proceedings until the order is obeyed, or entering a judgment against the disobedient [participant] party or [party] individual advising the disobedience.
* * * * * (b) In addition to the sanctions described in subsection (a), in rate proceedings, when a [participant] party fails to answer discovery requests on the date due, the presiding officer may issue an order that the hearing schedule be modified, that the deadline for the filing of other [participants'] parties' written testimony be extended, or that provides other relief that will allow the other [participants] parties a sufficient and reasonable opportunity to prepare their cases.
(c) A witness whose identity has not been revealed as provided in this chapter will not be permitted to testify on behalf of the defaulting party at hearing on the action. If the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting [participant] party, the presiding officer may grant a continuance or other appropriate relief.
§ 5.373. Subpoenas.
(a) If issuance of a subpoena is required by operation of this chapter, or because a [participant] party or witness has not otherwise appeared, issuance of the subpoena shall be in accordance with § 5.421 (relating to subpoenas).
* * * * *
Subchapter E. EVIDENCE AND WITNESSES
EVIDENCE § 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].
(b) Evidence shall be excluded if:
(1) It 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].
(2) Its probative value is outweighed by:
(i) The danger of unfair prejudice.
(ii) Confusion of the issues.
(iii) By considerations of undue delay or waste of time.
[(b) Subsection] (c) Subsections (a) and (b) [supercedes] supersede 1 Pa. Code § 35.161 (relating to form and admissibility of evidence).
§ 5.402. Admission of evidence.
(a) A [participant] party shall move the admission of evidence into the record upon presentation of the sponsoring witness, and after opportunity for other [participants] parties to examine the [qualifications of the] witness.
(b) [In order for] For an exhibit to be received into evidence, it [shall] must be marked for identification and moved into evidence. [If a motion to move an exhibit into evidence is made after the close of the record, it shall be in writing and be subject to the same objections which could have been made at the hearing.]
* * * * * § 5.404. Additional evidence.
(a) At any stage of the hearing or thereafter, the Commission or the presiding officer may call for further admissible evidence upon an issue and require that the evidence be presented by the [participants] parties concerned, either at the hearing or at the adjournment thereof.
* * * * * § 5.405. Effect of pleadings.
(a) [Applications, complaints, orders to show cause, answers and similar formal documents upon which hearings are fixed] Pleadings listed in § 5.1 (relating to pleadings allowed) shall, without further action, be considered as part of the record as pleadings.
* * * * * (c) A fact admitted by a [participant] party in an answer, filed under oath, to a numbered allegation in a pleading may be considered as evidence of the fact without the pleading and answer being offered and received into evidence.
* * * * * § 5.406. Public documents.
* * * * * (b) Upon the request of a [participant] party and at the direction of the presiding officer or the Commission, a party who incorporates by reference a pleading shall provide a copy of the pleading to the [participant] party requesting one.
* * * * * § 5.407. Records of other proceedings.
(a) When a portion of the record in another proceeding before the Commission is offered in evidence and shown to be relevant and material to the instant proceeding, a true copy of the record shall be presented in the form of an exhibit, together with additional copies as provided in § 5.409 (relating to copies and form of documentary evidence), unless both of the following occur:
(1) The [participant] party offering the record agrees to supply, within a period of time specified by the Commission or the presiding officer, the copies at his own expense, if any, when so required.
* * * * * § 5.408. Official and judicial notice of fact.
(a) Official notice or judicial notice of facts may be taken by the Commission or the presiding officer.
(b) When the decision of the Commission or the presiding officer rests on official notice or judicial notice of a material fact not appearing in the evidence in the record, [upon] the parties will be so notified.
(c) Upon notification that facts are about to be or have been noticed, a party adversely affected shall have the opportunity upon timely request to show that the facts are not properly noticed or that alternative facts should be noticed.
(d) The Commission or the presiding officer in its discretion will determine whether written presentations suffice, or whether oral argument, oral evidence or cross-examination is appropriate in the circumstances.
(e) The Commission or presiding officer may also give official notice as the term is defined in section 331(g) of the act (relating to powers of commission and administrative law judges).
[(b) Subsection] (f) Subsections (a)--(e) [is identical to] supersede 1 Pa. Code § 35.173 (relating to official notice of facts).
§ 5.409. Copies and form of documentary evidence.
(a) Except as otherwise provided in this chapter, Chapters 1 and 3 (relating to rules of administrative practice and procedure; and special provisions), when exhibits of a documentary character are offered in evidence, copies shall be furnished to the presiding officer and to the [participants] parties present at the hearing, unless the presiding officer otherwise directs. Two copies of each exhibit of documentary character shall be furnished for the use of the Commission unless otherwise directed by the presiding officer.
* * * * *
WITNESSES § 5.412. Written testimony.
(a) General. 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) Use. [Whenever in the circumstances of a particular case it is deemed necessary or desirable, the] The presiding officer may direct that expert testimony to be given upon direct examination [shall] be [reduced to the form of] submitted as prepared written testimony. A reasonable period of time will be allowed [for the preparation of] to prepare written testimony.
(c) Rules regarding use. 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) Cross-examination. [Except in a rate proceeding, cross] 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] party of record at least 20 days prior to the hearing, unless the presiding officer for good cause otherwise directs. [Unless the Commission by rule or order establishes otherwise, in] In a rate proceeding, the presiding officer or the Commission will establish the schedule for the filing and authentication of written testimony, and for cross-examination by other [participants] parties.
(e) Form. 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] party offering prepared written testimony shall insert line numbers in the left-hand margin on each page. A [participant] party should also use a logical and sequential numbering system to identify the written testimony of individual witnesses.
(f) Service. Written testimony shall be served upon the presiding officer and [active participants] parties 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] Secretary.
(g) Copies. 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) Supersession. 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).
SUBPOENAS AND PROTECTIVE ORDERS § 5.421. Subpoenas.
(a) Issuance.
(1) A subpoena [for the attendance of witnesses or for the production of documentary evidence, unless directed] may be issued by the Commission upon its own motion[,].
(2) Other than under paragraph (1), a subpoena 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.
(b) Form. The written application [shall]:
(1) 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].
(2) Shall list the facts to be proved by the documents in sufficient detail to indicate the necessity of the documents.
(3) 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.
(4) Shall include a certificate of service.
(5) [The] May have the proposed subpoena [may be] attached to the application.
[(b) Notice] (c) Service. An application for a subpoena [shall] must be filed with the Commission and copies served by the petitioner upon [the affected participant, the]:
(1) The person to be subpoenaed.
(2) The presiding officer[, active participants of record, and if the subpoena is directed to a Commission employe, to the].
(3) Active parties.
(4) The Commission's Law Bureau, if the subpoena is directed to a Commission employee. [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]
(5) The person for whom the subpoena is sought when the person is not a party to the case. When the person for whom a subpoena is sought is not a party to the case, the application shall identify the person---names and addresses--including the Secretary and presiding officer, to whom the answer or objection shall be sent.
[(c)] (d) Service and return.
* * * * * (2) Service by mail. Service of a subpoena upon a [participant] party may also be accomplished by mail under §§ 1.54 and 1.55 (relating to service by a [participant] party; 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] party or the persons referred to in Pa.R.C.P. No. 402(a)(2) (relating to manner of service acceptance of service).
[(d)] (e) 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] party shall be paid the same fees by the [participant] party. 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)] (f) Supersession. Subsections (a)--[(d)] (e) supersede 1 Pa. Code § 35.142 (relating to subpoenas).
§ 5.423. Orders to limit availability of proprietary information.
(a) General rule. A protective order to limit the disclosure of a trade secret or other confidential information on the public record shall be issued only when a [participant] party demonstrates that the potential harm to the [participant] party of providing the information would be substantial and that the harm to the [participant] party if the information is disclosed without restriction outweighs the public's interest in free and open access to the administrative hearing process. A protective order to protect trade secrets or other confidential information shall apply the least restrictive means of limitation which will provide the necessary protections from disclosure. In considering whether a protective order to limit the availability of proprietary information should issue, the Commission or the presiding officer should consider, along with other relevant factors, the following:
* * * * * (3) The worth or value of the information to the [participant] party and to the [participant's] party's competitors.
* * * * * (b) Restrictions.
(1) A protective order to restrict disclosure of proprietary information may require that a [participant] party receive, use or disclose proprietary information only for the purposes of preparing or presenting evidence, cross-examination or argument in the proceeding, or may restrict its inclusion in the public record.
* * * * * (3) A public reference to proprietary information by the Commission or by a [participant] party afforded access thereto shall be to the title or exhibit reference in sufficient detail to permit persons with access to the proprietary information to fully understand the reference and not more. The proprietary information shall remain a part of the record, to the extent admitted, for purposes of administrative or judicial review.
(4) Prior to the issuance of a protective order, a [participant] party may not refuse to provide information which the [participant] party reasonably believes to be proprietary to a [participant] party who agrees to treat the information as if it were covered by a protective order until the presiding officer or the Commission issues the order or determines that issuance of the order would not be appropriate. The [participant] party claiming the privilege shall file a petition for protective order under subsection (a) within 14 days of the date the request for information was received.
(5) A [participant] party receiving proprietary information under this section retains the right, either before or after receipt of the information, to challenge the legitimacy of the claim that the information is proprietary, and to challenge the admissibility of the proprietary information [and to object to the production of proprietary information on a proper ground].
(c) Access to representatives of [participants] parties. Proprietary information provided to a [participant] party under this section shall be released to the counsel and eligible outside experts of the receiving [participant] party unless the [participant] party who is releasing the information demonstrates that the experts or counsel previously [has] violated the terms of a recent protective order issued by the Commission. To be eligible to receive proprietary information, the expert, subject to the following exception, may not be an officer, director, stockholder, partner, owner or [employe] employee of a competitor of the producing [participant] party. An expert will not be ineligible on account of being a stockholder, partner or owner of a competitor or affiliate unless the ownership interest is valued at more than $10,000 or constitutes a more than 1% interest, or both. No other persons may have access to the proprietary information except as authorized by order of the Commission or of the presiding officer.
(d) Special restrictions. A protective order which totally prohibits the disclosure of a trade secret or other confidential information, limits the disclosure to particular [participants] parties or representatives of [participants] parties--except as permitted by subsection (c)--or which provides for more restrictive rules than those permitted in subsections (b) and (c) [shall] will be issued only in extraordinary circumstances and only when the [participant] party from whom the information is sought demonstrates that a greater restriction is necessary to avoid severe and extreme prejudice.
(e) Return of proprietary information. A [participant] party providing proprietary information under this section may request that the [participants] parties receiving the information return the information and the copies thereof to the [participant] party at the conclusion of the proceeding, including appeals taken.
CLOSE OF THE RECORD § 5.431. Close of the record.
(a) In a contested proceeding before a presiding officer, the record shall be closed at the conclusion of the hearings unless otherwise directed by presiding officer or the Commission.
(b) [Once the record is closed, no additional] Additional evidence may not be introduced or relied upon by a [participant] party unless allowed for good cause shown by the Commission or presiding officer upon motion of a [participant] party 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) or upon motion of the presiding officer or Commission as provided under § 5.71 (relating to initiation of intervention).
[(b) Subsection] (c) Subsections (a)--(b) [supercedes] supersede 1 Pa. Code §§ 35.231 and 35.232 (relating to reopening on application of party; and reopening by presiding officer).
Subchapter F. PRESIDING OFFICERS § 5.481. Designation of presiding [officers] officer.
* * * * * § 5.482. Disqualification of a presiding officer.
(a) A [participant] party may file a motion for disqualification of a presiding officer which shall be accompanied by affidavits alleging personal bias or other disqualification.
* * * * * (c) A motion for disqualification shall be served on the presiding officer and the [participants] parties to the proceeding.
* * * * * § 5.483. Authority of presiding [officers] officer.
* * * * * § 5.484. Restrictions on duties and activities.
* * * * * (b) Save to the extent required for the disposition of ex parte matters not prohibited by the act, no presiding officer will consult a person or [participant] party on a fact in issue unless upon notice and opportunity for all [participants] parties to participate.
* * * * * § 5.485. Manner of conduct of hearings.
(a) [It is the duty of the] The presiding officer [to] shall conduct a fair and impartial hearing and [to] maintain order. [Disregard by participants or counsel of rulings of the presiding officer on matters of order and procedure will be noted on the record, and where he deems it necessary, will be made the subject of a special written report to the Commission. In the event that participants or counsel should be guilty of disrespectful, disorderly or contumacious language or conduct in connection with a hearing, the presiding officer immediately may submit to the Commission his report thereon, together with his recommendations, and in his discretion suspend the hearing.]
(b) The presiding officer shall note on the record a party's disregard of a ruling. When necessary, the presiding officer may submit a report to the Commission recommending suspension and disbarment of the offending person as provided by § 1.27 (referring to suspension and disbarment).
(c) [Subsection] Subsections (a) and (b) [is identical to] supersede 1 Pa. Code § 35.189 (relating to manner of conduct of hearings).
§ 5.486. Unavailability of presiding officer.
(a) If a presiding officer becomes unavailable, the chief administrative law judge may either designate another qualified officer to prepare the initial or recommended decision or cause the record to be certified to the Commission for decision.
* * * * *
Subchapter G. BRIEFS § 5.501. Content and form of briefs.
(a) Briefs shall contain the following:
* * * * * (2) [Where evidence is relied upon by the participant filing the brief, he shall make reference] Reference to the pages of the record or exhibits where the evidence relied upon by the filing party appears.
* * * * * § 5.502. Filing and service of briefs.
(a) Number of copies. An original and nine copies of a brief shall be filed with the Commission under § 1.4 (relating to filing generally).
(b) Types of briefs in nonrate proceedings. [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.]
(1) Initial brief. An initial brief shall be filed by the party with the burden of proof except as provided by agreement or by direction of the presiding officer.
(2) Response brief. A party may file a response brief to the initial brief.
(c) Types of briefs in rate proceedings.
(1) Main brief. A main brief may be filed by a party except as provided by agreement or by direction of the presiding officer.
(2) Reply brief. A party may file a reply brief to a main brief regardless of whether the party filed a main brief.
(d) Deadlines. [An initial brief, responding] Main briefs, responsive briefs and reply [brief shall] briefs must be filed and served within the time fixed by the presiding officer. If no specific times are fixed, [initial] main briefs shall be filed and served within 30 days after the date of service of notice of the filing of the transcript and [responding] responsive briefs or reply briefs shall be filed within 50 days after date of service of the notice of the filing of the transcript.
[(c)] (e) Briefs not filed and served on or before the dates fixed therefore will not be accepted, except by special permission of the Commission or the presiding officer as permitted under § 1.15 (relating to extensions of time and continuances).
[(d)] (f) Subsections (a)--[(c)] (e) 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 § 5.532. Oral argument before presiding officer.
(a) When, in the opinion of the presiding officer, time permits and the nature of the proceedings, the complexity or importance of the issues of fact or law involved, and the public interest warrant, the presiding officer may, either on the presiding officer's own motion or at the request of a [participant] party, allow and fix a time for the presentation of oral argument, imposing limits on the argument that are deemed appropriate.
* * * * * § 5.533. Procedure to except to initial, tentative and recommended decisions.
(a) In a proceeding, exceptions may be filed by a [participant] party and served within 20 days after the initial, tentative or recommended decision is issued unless some other exception period is provided. [No exceptions] Exceptions may not be filed with respect to an interlocutory decision.
* * * * * (c) The exceptions shall be concise. The exceptions and supporting [reason shall] reasons shall be limited to 40 pages in length. Statements of reasons supporting [the exception] shall exceptions shall, insofar as practicable, incorporate by reference and citation, relevant portions of the record and passages in previously filed briefs. [No] A separate brief in support of or in reply to exceptions [shall] may not be filed with the [Prothonotary] Secretary under § 1.4 (relating to filing generally).
(d) An original and nine copies of the exceptions shall be filed with the [Prothonotary] Secretary under § 1.4.
* * * * * § 5.535. Replies.
(a) A [participant] party has the right to file a reply to an exception in proceedings before the Commission. Unless otherwise directed by the presiding officer or Commission, a reply shall be filed within 10 days of the date that an exception is due and be limited to 25 pages in length and in paragraph form. A reply shall must be concise and incorporate by reference relevant passages in previously filed briefs.
* * * * * (c) [Subsection] Subsections (a) and (b) [super- cedes] supersede 1 Pa. Code § 35.211 (relating to procedure to except to proposed report).
Subchapter I. REOPENING, RECONSIDERATION AND REHEARING § 5.571. Reopening prior to a final decision.
(a) After the record closes, documents will not be received in evidence or considered as part of the record or changes made in the transcript, except as provided in §§ 5.404 and 5.253 (relating to additional evidence; and transcript corrections).
(b) At any time after the record is closed but before a final decision is issued, a [participant] party may file a petition to reopen the proceeding for the purpose of taking additional evidence.
[(b)] (c) * * *
[(c)] (d) Within 10 days following the service of the petition, another [participant] party may file an answer thereto.
[(d) The presiding officer, before issuance of the presiding officer's decision or certification of the record to the Commission, otherwise the Commission, upon notice to the participants,] (e) The record may [reopen the] be reopened upon notification to the parties in a proceeding for the reception of further evidence if there is reason to believe that conditions of fact or of law have so changed as to require, or that the public interest requires, the reopening of the proceeding.
(1) The presiding officer may reopen the record if the presiding officer has not issued a decision or has not certified the record to the Commission.
(2) The Commission may reopen the record after the presiding officer has issued a decision or certified the record to the Commission.
[(e)] (f) Subsections (a)--[(d)] (e) supersede 1 Pa. Code §§ 35.231--35.233 (relating to reopening of record).
§ 5.572. Petitions for relief [following a final decision].
* * * * * (b) A copy of every petition covered by subsection (a) shall be served upon each [participant] party to the proceeding.
* * * * *
Subchapter J. REPORTS OF COMPLIANCE § 5.591. Reports of compliance.
(a) [When a] A person subject to the jurisdiction of the Commission who is required to do or perform an act by a Commission order, permit or license provision[, there] shall [be filed] file with the [Prothonotary within 30 days following the date when the requirement becomes effective,] Secretary a notice[,] stating that the requirement has or has not been met or complied with.
(b) The notice shall be filed within 30 days following the date when the requirement becomes effective, unless the Commission, by regulation, by order or by making specific provision [therefor] thereof in a license or permit, provides otherwise for compliance or proof of compliance. The notice must be accompanied by a verification in accordance with § 1.36 (relating to verification and affidavit).
[(b) Subsection] (c) Subsections (a)--(b) [is identical to] supersede 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] parties 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] 2 _____ at _____ .''
(c) Exceptions to a tariff revision under this section may be filed by a [participant] party 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.
* * * * *
Subchapter K. APPEALS TO COURT § 5.631. Notice of taking appeal.
When an appeal is taken from an order of the Commission to the Commonwealth Court, the appellant shall immediately give notice of the appeal to all [participants] parties to the Commission proceeding as provided by § 1.54 (relating to service by a [participant] party).
§ 5.632. Preparation and certification of records.
[No] A record will not be certified as complete until copies of exhibits or other papers have been furnished [where] when necessary to complete the Commission file. Copies will be requested by the Commission.
§ 5.633. Certification of interlocutory orders.
(a) When the Commission has made an order which is not a final order, a [participant] party may by motion request that the Commission find, and include the findings in the order by amendment, that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal to Commonwealth Court from the order may materially advance the ultimate termination of the matter. The motion shall be filed within 10 days after service of the order, and is procedurally governed by § 5.103(a)--(c) (relating to hearing motions). Unless the Commission acts within 30 days after the filing of the motion, the motion [shall] will be deemed denied.
* * * * *
[Pa.B. Doc. No. 04-1956. Filed for public inspection October 29, 2004, 9:00 a.m.]
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