PROPOSED RULEMAKING
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[52 PA. CODE CHS. 1, 3 AND 5]
[34 Pa.B. 5895] [L-00020156]
Practice and Procedure Before the Commission The Pennsylvania Public Utility Commission, on May 7, 2004, adopted at proposed rulemaking order revising and updating the Commission's rules of practice and procedure.
Executive Summary
Periodically, the Commission reevaluates its procedural rules in order to ensure that they effectuate and reflect the Commission's current policies and the current state of the law. On September 12, 2002, the Commission issued an Advance Notice of Proposed Rulemaking to solicit comments from interested persons regarding possible changes and development of the Commission's procedural rules. The Commission received nine sets of comments and additionally incorporated the views of individual Commission Bureaus in evaluating possible changes.
The proposed regulations accomplish a number of Commission objectives. First, the rules are prepared to accommodate electronic filing once such a system becomes available. Second, the rules in many cases are reorganized in order to be more reader friendly and easier to navigate. Third, the Commission made a number of small calibrations to the rules, such as shortening or lengthening time periods for filing various documents and changing terminology to be more in step with the Pennsylvania Rules of Civil Procedure and modern practice. Fourth, the Commission made several changes in order to afford it greater flexibility, such as the proposed changes to section 3.501, wherein the Commission proposes that the substantive requirements for an application be iterated in forms as opposed to the regulation. Taken together, the changes proposed by the Commission should provide for more efficient practice and procedure before the Commission.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 15, 2004, the Commission submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commission, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Meeting held
May 7, 2004Commissioners Present: Terrance J. Fitzpatrick, Chairperson; Robert K. Bloom, Vice Chairperson; Glen R. Thomas; Kim Pizzingrilli; Wendell F. Holland
Proposed Rulemaking for the Revision of Chapters 1, 3 and 5 of Title 52 of the Pennsylvania Code Pertaining to Practice and Procedure Before the Commission; Doc. No. L-00020156
Proposed Rulemaking Order By the Commission:
On September 12, 2002, the Commission adopted an Advance Notice of Proposed Rulemaking Order announcing our intention to revise the Commission's rules of practice and procedure, 52 Pa. Code Chapters 1, 3 and 5. We noted that the rules were last revised in 1996, and that since then the Commission's jurisdiction and responsibilities have changed significantly. We stated our intention to solicit input regarding proposed revisions and our commitment to carefully consider the views of all interested persons prior to taking any formal action.
Publication in the Pennsylvania Bulletin on September 28, 2002 established a sixty-day comment period, and we thank the following for their thoughtful and constructive comments: Metropolitan Edison Company, Pennsylvania Electric Company and Pennsylvania Power Company, combined comments; Superior Water Company; Verizon Pennsylvania and Verizon North Inc., combined comments; Office of Consumer Advocate; the law office of Kirkpatrick & Lockhart, LLP; the law office of Craig A. Doll; Department of Environmental Protection; PUC' s Office of Administrative Law Judge; Office of Small Business Advocate; and the PUC's Bureau of Transportation and Safety.
A core committee of Law Bureau and Office of Administrative Law Judge employees reviewed these comments, as well as our own recommendations, and prepared an initial draft of proposed changes. These were presented to a committee formed from the Commission's Bureaus, which suggested additional revisions. With the input and aid of the commentators and Commission staff, a recommendation was developed and is before us for review.
Accordingly, we are publishing the changes as marked in Annex A as a proposed rulemaking, and we once again ask the utility industry and the public utility bar to submit further detailed comments on the specific provisions that we propose.
The following is a description of the substantive changes we propose to make. Sections which are included in Annex A but not discussed here have only ministerial changes proposed to them. Specific changes appear in Annex A, where deletions are bracketed and additions are underlined. We thank those commentators who recommended routine ministerial corrections, but in the interest of brevity we will not address each comment in the discussion below.
Note that the term ''participant'' is replaced with the term ''party'' throughout the rules. Ensuring that those who wish to appear before the Commission become parties to the proceeding eliminates the uncertainty associated with the term ''participant,'' which does not firmly establish the status of a person. Each section when this is the only change is noted in the explanations below. Similarly, the word ''Prothonotary'' is changed to ''Secretary'' wherever it appears to reflect that the Commission no longer has a Prothonotary and that the duties previously assigned to that office now belong to the Secretary.
Chapter 1. Rules of Administrative Practice and Procedure
Subchapter A. General Provisions
Important changes to this chapter include correcting the Commission's address in Sections 1.3, 1.4 and 1.7, as well as updating the definitions in Section 1.8. These include adding definitions for ''individual,'' meant to permit distinction between the legal term ''person'' and a human being, and ''mediation,'' which has become an important process at the Commission, and ''verification,'' which is used throughout the rules but has not been defined. As noted above, the term ''participant'' is removed.
The Commission notes that OCA recommends adding a new section to define each type of order which the Commission issues, such as final order, tentative order, emergency order, and interlocutory order. Since the status of any Commission order is already defined by the state courts, such a regulation is not necessary and could, in fact, be rendered inaccurate should there be any change in case law prior to the next revision of these rules. Therefore, we decline to add the suggested section.
Subchapter B. Time
§ 1.11 Date of filing
The rule is changed to establish when a filing occurs if the Commission permits filing by electronic means. The requirement specifies that the document must: (1) enter the information processing system, (2) be designated by the Commission for the purpose of receiving documentary filings, (3) be in a form which the Commission is capable of retrieving, and (4) be in a form readable by the system. The revision does not permit electronic filing but it does specify how electronic filing will be achieved if the Commission permits it in the future.
An OCA recommendation to add a subsection informing the recipient of a Commission final order that an appeal may be taken within thirty days to the Commonwealth Court is declined since the appeal period is governed by the rules of the Commonwealth Court, not by Commission rules.
Verizon comments that Section 1.12 should be amended to provide that ''in no event shall the inclusion of a Saturday, Sunday or legal holiday, or any combination thereof, within the time period required for any responsive pleading, serve to shorten the time required for such responsive pleading to less than five business days.'' The Commission has not incorporated this recommendation since the present rules permit the use of the mailbox rule, thus adding three days, and the categories of responsive pleadings affected by this short response time are those which cannot be delayed further.
Subchapter C. Representation before the Commission
The Commission received comments regarding this subchapter from Verizon, OSBA, and OALJ. With the exception of OALJ, the commenters suggest that there are some circumstances when it would make sense to permit representation of others by someone other than an attorney licensed in the Commonwealth. As Verizon points out, many cases involve pro se complainants, simple factual issues and no legal issues, therefore not justifying the time, skill or expense of an attorney. OSBA notes the requirement that a business be represented by an attorney can leave a small business unable to pursue an adversarial proceeding with a public utility because of the cost. OSBA gives a reasoned, intelligent and persuasive argument in favor of permitting representation by someone other than an attorney in certain circumstances.
However, since the practice of law in Pennsylvania is regulated by the Pennsylvania Supreme Court, which has promulgated its own rules, it appears that the PUC lacks authority to promulgate any rule which is not consistent with the Supreme Court rules. Therefore, the proposed rules will not authorize the practice of law by any entity not already so authorized by the Supreme Court.
At the same time, we have attempted to rewrite these sections to make it clear that we are adhering to the rules of the Pennsylvania Supreme Court and to present the sections in a simpler, easier to read format.
The substance of this subchapter is that: (1) individuals, including sole proprietorships, may represent themselves, (2) in adversarial proceedings, any entity other than an individual must be represented by an attorney, (3) in nonadversarial proceedings, entities may be represented as permitted by the rules of corporations in Pennsylvania, and (4) in informal proceedings brought under Chapters 56 and 64 only, representation may be by other than a licensed attorney.
Throughout, the information required to be provided by an attorney includes his or her Supreme Court identification number.
The Commission recognizes that electronic filing and service will be practical in the future. Although the rules do not now grant permission, the proposed revisions will allow electronic service by the Commission for documents when the person agrees to it and provides an e-mail address.
Subchapter D. Documentary Filings
This subchapter has been rewritten to set forth the requirements for the form of a documentary filing in a formal case in an easy to read fashion. The format for electronically submitted documents is included.
§ 1.36. Verification
A detailed comment submitted by Daniel P. Delaney, Esquire, of Kirkpatrick and Lockhart, points out that verifications or affidavits are to be provided either by a party or an authorized officer of the party if a corporation or association, and that this requirement may cause hardship. Mr. Delaney points out that ''utility or corporate employee[s] involved in Commission proceedings are usually managers or mid-level employees who would not also be officers'' but they would have the actual knowledge necessary to attest to the facts included in a pleading. Accordingly, we are revising the requirement to read that the facts in a document be personally verified by a party or authorized officer or other authorized employee of the party if a corporation or association.
§ 1.38. Rejection of Filings
We are adding this section in order to enunciate the Commission's existing practice of rejecting non-conforming filings and filings by persons who fail to comply with their regulatory obligations.
Subchapter E. Fees
Phrasing has been revised to permit additional methods of payment in the future, such as credit cards, when the Commission is prepared to accept such methods.
Subsections (b), (c) and (d) of § 1.43 are removed from the schedule of fees to reflect that the Commission no longer performs testing. The remainder of the fees are not being changed.
OCA comments that the listed prices may still be too high for some people. We are sympathetic to the plight of those who cannot afford to pay, but there are other considerations here as well. It is important to keep in mind that parties to an action are served with documents in the case and pay no fee for them. Therefore, it is only non-parties who would be affected by our fee schedule.
The fee schedule is based on what is reasonable when considering the Commission's actual cost for services provided. The Commission must bear the cost of searching for and locating a file or document, taking the time and pay scale of the Secretary's Bureau employees into consideration, as well as paper and overhead. The Public Utility Code requires the Commission to establish a reasonable cost for copies and certification of documents and files. 66 Pa.C.S. § 317. This is meant to defray the cost of the service. If there were no fees, then the cost of photocopying and certification of records would have to be paid another way. The Commission's only other source of income is by assessment to certificated public utilities, which would have to be increased to pay the difference. Increased assessments would result in increased rates to ratepayers. The Legislature has made it clear, through its promulgation of Section 317 of the Public Utility Code, that it believes that the cost of the service should be paid by those receiving the service, not by the utilities. Therefore, we decline to create a sliding scale at this time.
Subchapter F. Service of Documents
With the advent of electronic service, it is necessary to amend subsection (a)(4) to Section 1.56, Date of Service, to provide that a faxed document be transmitted prior to 4:30 p.m. local time to thwart any attempt to send documents after offices have closed for the night. Subsection (a)(5) is added to provide for electronic service in the future when agreed to by the parties.
Subchapter G. Matters Before Other Tribunals
§ 1.61. Notice and filing of copies of pleadings before other tribunals
Subsection (c) is removed as identical to (d). Language is added to address the category of ''licensee.'' In addition, language is added to require that a licensee or utility whose parent company has declared bankruptcy inform us as well. Language in new (c) gives the Commission the ability to monitor bankruptcy proceedings without the responsibility of acting to approve the bankruptcy plans of certificated utilities.
No substantive changes are made to the remainder of Chapter 1.
Chapter 3. Special Provisions
All references to the office of Executive Assistant, and its mention, have been removed since it no longer exists at the Commission.
The emergency order sections have been reorganized to have those referring to ex parte emergency orders located together, and those sections referring to interim emergency orders located together. Language has been adjusted to provide parallel standards for both sections. The contents of section 3.5 have been relocated to section 3.3, resulting in the elimination of section 3.5. Section 3.9 has been relocated to section 3.6a for consistency.
Subchapter B. Informal Complaints
This subheading is changed to read ''Informal Complaints and Investigations'' to better reflect the content of the section it describes. Subsections have been created and labeled for ease of reference. Subsection (b) of section 3.112 provides guidance to Commission staff regarding appropriate action upon receipt of an informal complaint.
Subchapter D. Crossing Proceedings
§ 3.361. Crossing complaints.
Subsection (a) is revised to require that the owner of the railroad right-of-way, which may be different from the public utility operating over it, be made a party to a Commission proceeding.
§ 3.363. Claims for property damages from crossings.
Subsection (a)(2) has been modified to reflect that the forms are no longer listed in the regulations but are available from the Secretary.
Subchapter E. Motor Transportation Proceedings
This subchapter will be dealt with in a separate rulemaking proceeding. The Commission does not propose any changes at this time.
Subchapter G. Water or Wastewater Utility Proceedings
§ 3.501. Certificate of public convenience as a water supplier or wastewater collection, treatment or disposal provider
The Pennsylvania Department of Environmental Protection has asked that we include additional requirements in the application, including a county comprehensive plan, municipal comprehensive plan and zoning designations. These issues will be addressed, however the changes will be reflected in forms available from the Secretary rather than in the regulation itself. In the forms to be made available under this section, we will require an applicant to provide a letter wherein it certifies that it is in compliance with the above requirements, instead of having the Commission make that determination.
Additionally, clarifying language has been added to what is now subsection (d). The language was added in order to indicate that the utility shall notify existing customers of a filing by publication once a week for two weeks, as opposed to every day for two weeks.
Finally, Superior Water Company indicated that applications filed under this section should be served on any water or wastewater utility, municipal corporation or authority with a service area within one mile of the proposed new or affected service area. The Commission concurs with Superior's comments; however, because applications made under this section are frequently voluminous, the Commission shall require only that the applicant provide notice. Such nearby utilities will be able to obtain a complete copy of application from the applicant upon request. Utilities abutting the service area affected by the application will continue to receive the complete application without the need for a separate request.
§ 3.502. Protests to applications for certificate of public convenience as a water supplier or wastewater collection, treatment and disposal provider.
In subsection (a), a change has been made to indicate an attorney for a protestant must now supply his or her Pennsylvania attorney identification number.
Subchapter H. Forms
§ 3.551. Official forms
This section is replaced with a sentence stating that forms for applications, petitions, complaints and other matters are available on the Commission's website or from the Secretary.
Subchapter I. Registration of Securities
§ 3.601. General
The listing of necessary information has been replaced with a notice that a form is available from the Commission.
§ 3.602. Abbreviated securities certificate
Subsection (b) regarding the form has additional requirements.
Chapter 5. Formal Proceedings
Subchapter A. Pleadings and Other Preliminary Matters
New matter, reply to new matter, and motions have been added to the list of pleadings in section 5.1 to accurately reflect practice.
Contents of applications.
Section 5.12 is revised to lay out the requirements for inclusion in an application more clearly. A provision is added to prompt the inclusion of e-mail addresses where available. The Commission notes that OCA's request to require that service be made on OCA is not addressed because new applications are posted on the Commission's web site. OCA can review them on-line, thus avoiding another step for applicants to follow when filing with the Commission. Also, pursuant to section 5.14(b), the Secretary is authorized to direct service of applications upon the OCA and other interested persons in appropriate circumstances.
Applications requiring notice.
Section 5.14 is revised to eliminate the listing of those applications which require notice since this factor is subject to change and is not updated as often as the actual requirement changes. The section now sets forth the specific requirements of notice applicable to all applications which require notice. Protests are referred to another section.
Formal complaints.
Section 5.22 is revised to specify the requirements of a formal complaint both when the complainant is represented by an attorney and when complainant has no formal representation. An attorney is required to list his or her attorney identification number. Revised language seeks to elicit more detailed and easier to read complaints to facilitate Commission responses.
Section 5.24 is revised to provide for those circumstances in which a complainant does not wish to proceed but neither is the complainant satisfied. With the new language, a complaint can be closed after complainant acknowledges that he or she does not wish to pursue it.
A new section is being proposed at 5.32 to recognize that a complaint may be filed against a proposed rate filing but that a reasonable time limit should be placed on accepting those which will be considered within the context of the rate proceeding.
Petitions
No substantive changes are made to section 5.42. However, it is broken down for ease of reference.
Protests
Section 5.53 is revised to provide a consistent default filing time for filing protests, and Section 5.54 is deleted as redundant.
Answers
§ 5.61. Answers to complaints, petitions and motions.
Sections 5.61, 5.102 and 5.103 are revised to be consistent in providing the twenty day response time. Section 5.66 is also revised to confirm that an answer to a petition to intervene must be filed within 20 days of service.
Intervention
In response to comments indicating that there is some frustration with being faced with an unknown intervenor, a new subsection (b) is added to Section 5.73 to require that petitions to intervene filed on behalf of more than one person list those persons and entities comprising the represented group. Our revision to Section 5.74 sets a default deadline for filing a petition to intervene in order to have a clear limit on the time for intervention and the subsections are set up to notify the ALJ of the appropriate standard to use in considering a request for intervention.
Consolidation
No changes are recommended for the only section under this heading.
Amendment and Withdrawal of Pleadings
Sections starting here are revised to reflect the civil rules of procedure where possible and appropriate.
Motions
This rulemaking proposes to change the term ''preliminary motion'' to ''preliminary objection,'' to utilize the name recognized by practitioners elsewhere. In addition, section 5.101 is revised to accomplish a number of tasks. Subsection (c) refers back to § 5.91, which is revised to provide that an amended pleading filed in response to a motion for a more specific pleading shall result in the motion being deemed to be moot. An addition to subsection (d) requires that a preliminary motion contain a notice to plead. Amended subsection (e) emphasizes that the preliminary objections be decided within 30 days of filing or termination of mediation. Subsection (f) specifies what will happen after a ruling is issued.
Settlement and Stipulations
The format in Section 5.231 is changed to reflect the better regulatory style of limiting a subsection to one topic. In addition, new subsection (d) provides that a proposal to settle a discovery dispute is not admissible against a counsel or party, in response to the concern raised by FirstEnergy in its comments.
The title to section 5.232 is changed to ''Settlement petitions'' and all mention of stipulations is removed. The section is revised to require filing with the Secretary. Subsection (b) requires identification of the parties which agreed to the settlement or which didn't respond to the attempts to secure agreement. Subsection (d) provides for review by the presiding officer, who is charged with determining and taking appropriate action. Our thanks to FirstEnergy for their detailed comments and proposed language in this section.
The remaining revisions are largely ministerial with very few substantive changes.
Accordingly, under 66 Pa.C.S. §§ 501, 504--506, 1301 and 1501, and the Commonwealth Documents Law, 45 P. S. §§ 1201 et seq., and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2, and 7.5, the Commission proposes adoption of the proposed regulations for revisions of the rules pertaining to practice and procedure before the Commission, as noted and set forth in Annex A; Therefore,
It Is Ordered that:
1. This docket be continued to consider proposed regulations set forth in Annex A.
2. The Secretary shall submit this order and Annex A to the Office of Attorney General for approval as to legality.
3. The Secretary shall submit this order and Annex A to the Governor's Budget Office for review of fiscal impact.
4. The Secretary shall submit this order and Annex A for review and comment by the designated standing committees of both houses of the General Assembly, and for review and comment by the Independent Regulatory Review Commission.
5. The Secretary shall deposit this order and Annex A with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin. Interested persons may submit written comments, an original and 15 copies to James J. McNulty, Secretary, Pennsylvania Public Utility Commission, P. O. Box 3265, Harrisburg, PA 17105-3265 and shall have 60 days from the date this order is published to submit comments.
6. The contact person for this rulemaking is W. Blair Hopkin, Law Bureau, (717) 783-6152. Alternate formats of this document are available to persons with disabilities and may be obtained by contacting Sherri DelBiondo, Regulatory Coordinator, Law Bureau, (717) 772-4597.
7. A copy of this order shall be served upon all persons who submitted comments in this rulemaking proceeding.
JAMES J. MCNULTY,
SecretaryFiscal Note: 57-236. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart A. GENERAL PROVISIONS
CHAPTER 1. RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE
Subchapter A. GENERAL PROVISIONS § 1.2. Liberal construction.
* * * * * (c) The Commission or presiding officer at any stage of an action or proceeding may waive a requirement of this subpart when necessary or appropriate, if the waiver does not adversely affect a substantive right of a [participant] party.
* * * * * § 1.3. Information and special instructions.
(a) Information as to procedures under this subpart, and instructions supplementing this subpart in special instances, will be furnished upon application to:
By first-class mail:
[Prothonotary] Secretary
Pennsylvania Public Utility Commission
Post Office Box 3265
[North Office Building]
Harrisburg, Pennsylvania [17120-3265] 17105-3265In person or by mail other than first-class:
Secretary
Pennsylvania Public Utility Commission
Commonwealth Keystone Building
400 North Street
Harrisburg, Pennsylvania 17120* * * * * § 1.4. Filing generally.
(a) Submittals, pleadings and other documents filed with the Commission should be addressed as follows:
By first-class mail:
[Prothonotary] Secretary
Pennsylvania Public Utility Commission
Post Office Box 3265
[North Office Building]
Harrisburg, Pennsylvania 171015-3265In person or by mail other than first-class:
Secretary
Pennsylvania Public Utility Commission
Commonwealth Keystone Building
400 North Street
Harrisburg, Pennsylvania 17120* * * * * § 1.7. Sessions of the Commission.
Public meetings of the Commission ordinarily will be held in its offices in the [North Office] Commonwealth Keystone Building, Harrisburg. Schedules for public meetings can be obtained from the Commission Secretary or viewed on the Commission website.
§ 1.8. Definitions.
(a) Subject to additional definitions contained in subsequent sections which are applicable to specific chapters or subchapters, the following words and terms, when used in this subpart, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Formal record--The pleadings and submittals in a matter or proceeding, a notice or Commission order initiating the matter or proceeding, and if a hearing is held, the following: the designation of the presiding officer, transcript of hearing, exhibits received in evidence, [exhibits offered but not received in evidence,] offers of proof, motions, stipulations, subpoenas, proofs of service, references to the Commission and determinations made by the Commission thereon, certifications to the Commission, and anything else upon which action of the presiding officer or the Commission may be based.
Friendly cross-examination--Cross-examination of a witness by a [participant] party who does not disagree with the witness' position on an issue.
Individual--A natural person.
* * * * * [Intervenors] Intervenor--[Persons] A person intervening or petitioning to intervene as provided by §§ 5.71--5.76 (relating to intervention)[, when admitted as a participant to a proceeding].
Mediation--An informal, nonadjudicative Commission process through which a neutral third party (the mediator) assists the parties in reaching a mutually acceptable resolution.
* * * * * [Participant--A party, Office of Trial Staff prosecutor, Law Bureau staff counsel or another person admitted by the Commission to limited participation in a proceeding. Except as otherwise provided in specific provisions of this part, participants have the same rights granted to parties by this part.]
Party--A person who appears in a proceeding before the Commission who has a direct interest in the subject matter of the proceeding.
(i) Active parties [to a general rate case] are those who intend to fully participate in the litigation of a case, which may include presenting witnesses, cross-examining witnesses from the other parties, making motions, conducting discovery, filing briefs, participating in settlement negotiations, and the like. Active parties [to a general rate case] are not required to serve any documents on inactive parties. [The Commission will serve inactive parties with copies of all orders and recommended decisions issued in the case.]
(ii) Inactive parties [to a general rate case] are those who do not intend to be active parties. Inactive parties have the right to testify at a [hearing, including a] public input hearing[, but]. Inactive parties do not have the right to present other witnesses, cross-examine witnesses from other parties, make motions, conduct discovery, file briefs or participate in settlement negotiations. The Commission will serve inactive parties with copies of all orders and decisions issued in the case.
Person--Except as otherwise provided in this subpart or in the act, the term includes individuals, corporations, partnerships [and], associations, joint ventures, other business organizations, trusts, trustees, legal representatives, receivers, agencies, municipalities or other political subdivisions.
* * * * * Pleading--An application, complaint, petition, answer, motion, preliminary objection, protest, reply, order to show cause, new matter and reply to new matter or other similar document filed in a proceeding.
* * * * * [Prothonotary--The Commission officer with whom pleadings and other documents are filed and by whom official records are kept.]
* * * * * Secretary--The Secretary of the Commission, who is the Commission officer with whom pleadings and other documents are filed and by whom official records are kept.
* * * * * Submittal--An application, amendment, exhibit or similar document filed in an ex parte or other [nonadversary] nonadversarial proceeding.
* * * * * Verification--When used in reference to a written statement of fact by the signer, means supported by oath or affirmation or made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).
* * * * *
Subchapter B. TIME § 1.11. Date of filing.
(a) Whenever a pleading, submittal[,] or other document is required or permitted to be filed under this title or by statute, it will be deemed to be filed on one of the following dates:
(1) On the date actually received in the office of the [Prothonotary] Secretary.
(2) On the date deposited with an overnight express [package] delivery service as shown on the express delivery receipt attached to or included within the envelope containing the document.
(3) On the date [deposited in the United States mail as shown by the United States Postal Service stamp on the envelope or] noted on a United States Postal Service Form 3817 certificate of mailing. A mailing envelope stamped by an in-house postage meter is insufficient proof of the date of mailing.
(4) On the date that it enters an information processing system designated by the Commission for the purpose of receiving documentary filings and from which the Commission is able to retrieve the electronic record and is in a form capable of being processed by that system, if prior to 4:30 p.m. local time. On the following date, if after 4:30 p.m. local time.
(b) Failure to include a legible delivery receipt with [the] a document submitted in accordance with the methods specified in subsection (a)(2) may result in an untimely filing.
(c) A document transmitted by [telecopier] telefacsimile to the Commission will not be accepted for filing within the meaning of this section.
* * * * * § 1.15. Extensions of time and continuances.
(a) Extensions of time shall be governed by the following:
* * * * * (2) [Request's] Requests for the extension of time in which to file briefs shall be filed at least 5 days before the time fixed for filing the briefs unless the presiding officer, for good cause shown, allows a shorter time.
(b) Except as otherwise provided by statute, requests for continuance of hearings or for extension of time in which to perform an act required or allowed to be done at or within a specified time by this title or by order of the Commission or the presiding officer, shall be by motion in writing, timely filed with the Commission, stating the facts on which the application rests, except that during the course of a proceeding, the requests may be made by oral motion in the hearing before the Commission or the presiding officer. Only for good cause shown[,] will requests for continuance be considered. The requests for a continuance should be submitted at least 5 days prior to the hearing date.
* * * * *
Subchapter C. REPRESENTATION BEFORE THE COMMISSION § 1.21. Appearance [in person].
* * * * * (b) [In adversarial proceedings, partnerships, corporations, trusts, associations, agencies, political subdivisions and government entities] Except as provided in subsection (a), persons in adversarial proceedings shall be represented [only under] in accordance with § 1.22 (relating to appearance by attorneys and legal intern). For purposes of this section, any request for a general rate increase under section 1307(f) or 1308(d) of the act (relating to sliding scale of rates; adjustments; and voluntary changes in rates) shall be considered to be an adversarial proceeding.
(c) In nonadversarial proceedings, [a member of a partnership may represent the partnership, a bona fide officer of a corporation, trust or association may represent the corporation, trust or association, and an officer or employe of another agency, a political subdivision or governmental entity may represent the agency or political subdivision in presenting a submittal to the Commission subject to this chapter and Chapter 5 (relating to formal proceedings).] persons may be represented in the following manner:
(1) A partner may represent the partnership.
(2) A bona fide officer of a corporation, trust or association may represent the corporation, trust or association.
(3) An officer or employee of an agency, political subdivision or government entity may represent the agency, political subdivision or government entity.
(d) In informal proceedings brought under Chapters 56 and 64 (relating to standards and billing practices for residential utility service; and standards and billing practices for residential telephone service), parties may be represented by one of the following:
(1) [Paralegals] A paralegal working under the direct supervision of an attorney admitted to the Pennsylvania Bar.
(2) [Another] An appropriate individual.
* * * * * § 1.22. Appearance by attorney or certified legal intern.
(a) [Individuals, partnerships, associations, corporations or governmental entities may be represented in a proceeding by an] An attorney at law admitted to practice before the Supreme Court of Pennsylvania shall represent persons in Commission proceedings.
(b) An attorney not licensed in [a jurisdiction which does not accord like privileges to members of the bar of] this Commonwealth may appear before the Commission [with the permission of the presiding officer or the Commission consistent with Pa.B.A.R. No. 301 (relating to admission pro hac vice)] in accordance with the Pennsylvania Bar Admission Rules.
(c) [Law students] A law student meeting the requirements of [PA] Pa.B.A.R. No. 321 (relating to requirements for formal participation in legal matters by law students) may appear in a Commission proceeding consistent with Pa.B.A.R. No. 322 (relating to authorized activities of certified legal interns).
* * * * * § 1.23. Other representation prohibited at hearings.
(a) [Participants, individuals, partnerships, associations, corporations or governmental entities] Persons may not be represented at a hearing before the Commission or a presiding officer except[:
(1) As] as stated in § 1.21 or § 1.22 (relating to appearance in person; and appearance by attorney or certified legal intern).
[(2) As otherwise permitted by the Commission in a specific case.]
* * * * * § 1.24. Notice of appearance or withdrawal.
(a) Individuals. An individual appearing without legal representation before the Commission or a presiding officer shall file with the [Prothonotary] Secretary an address for service of a notice or other written communication. A change in address which occurs during the course of the proceeding shall be reported to the [Prothonotary] Secretary promptly.
(b) Attorneys.
(1) Appearance by initial pleading. An attorney [whose name and address appear] who signs an initial pleading in a representative capacity [on an initial pleading filed with the Prothonotary or a presiding officer] shall be considered to have entered an appearance in that proceeding.
(2) Appearance in all other instances. An attorney [who enters the matter at a later stage of the proceeding] shall file with the [Prothonotary] Secretary a [writtennotice] written notice of [the] appearance[, which shall state his].
(i) Content of notice. Initial pleadings, entries of appearance and notices of withdrawal shall include:
(A) The attorney's name, mailing address and [telephone number and the] electronic mailing address, if applicable.
(B) Pennsylvania attorney identification number or, if not licensed in this Commonwealth, identification of the jurisdictions in which the attorney is licensed to practice law.
(C) Telephone number and telefacsimile number, if applicable.
(D) The name and address of the person [on whose behalf he appears] represented.
(ii) Filing.
(A) Appearance. The notice [shall] of appearance must be served on the [participants in] parties to the proceeding, and a certificate of service shall be filed with the Secretary.
(B) Change in address. A change in address which occurs during the course of the proceeding [shall] must be reported to the [Prothonotary] Secretary promptly.
[(c) A person appearing or practicing before the Commission in a representative capacity may be required to file a power of attorney with the Commission showing his authority to act in that capacity.
(d)] (3) Withdrawal. An attorney [who wishes to] may withdraw an appearance [shall file with the Prothonotary] by filing a written notice of withdrawal with the Secretary. The notice shall be served on the [participants] parties and the presiding officer, if one has been designated.
[(e)] (c) Supersession. Subsections (a)--[(d)] (e) supersede 1 Pa. Code § 31.24 (relating to notice of appearance).
§ 1.25. Form of notice of appearance.
(Editor's Note: For purposes of this section, brackets contained within the form are contained in the existing format of the form, and are not indicative of language to be deleted, with one exception. The term ''participant'' is being replaced with the term ''party.'')
(a) The form of notice of appearance is as follows:
COMMONWEALTH OF PENNSYLVANIA
BEFORE THE PENNSYLVANIA PUBLIC UTILITY
COMMISSIONIn the Matter of:
[File, Docket or other identifying No.:]
NOTICE OF APPEARANCE Please enter my appearance in the above-designated matter on behalf of ______ .
I am authorized to accept service on behalf of said [participant] party in this matter.
[CHECK ONE] [ ] On the basis of this notice, I request a copy of each document hereafter issued by the Commission in this matter.
[ ] I request that a copy of each document hereafter issued by the Commission in this matter be transmitted electronically to the electronic mail address listed below in instances where service by electronic means is permitted.
[ ] I am already receiving or have access to a copy of each document issued by the Commission in this matter (alone, or in a consolidated proceeding) and do not on the basis of this notice require an additional copy.
_________________
Signature
_________________
Name (Printed)
_________________
P. O. address
_________________
City, state and zip code
_________________
Telephone Number (including area code)
_________________
Attorney I.D. No.
_________________
Electronic Mail Address* * * * *
Subchapter D. DOCUMENTARY FILINGS § 1.31. [Form of] Requirements for documentary filings [generally].
(a) Form. [Applications, petitions, complaints, answers or similar documents shall] Pleadings must be divided into numbered paragraphs.
(b) Attachments. Copies of [contracts, agreements, certificates, permits or other writings referred to] documents relied upon in the [application or petition, shall] pleadings must be attached as exhibits. Copies of writings or orders already of record with the Commission need not be attached to the [application or petition] pleading if reference by docket number is made to the proceeding in which they were filed in accordance with § 1.33 (referring to incorporation by reference).
(c) Identifying information. [Pleadings, submittals or other documents] Documents filed with the Commission in a proceeding [shall] must clearly [show] contain the following information:
(1) The docket number or similar identifying symbols, if any[, and].
(2) The title or caption of the proceeding before the Commission.
(3) [They shall also show, in the title of a particular pleading, submittal or other document filed,] Within the title, the name of the person on whose behalf the filing is made. If more than one person is involved, only a single name [only need be included in the title] is necessary.
(d) Supersession. Subsections (a)--(c) supersede 1 Pa. Code § 33.1 (relating to title).
§ 1.32. Form of documents.
* * * * * (d) Electronically submitted documents. Margins, spacing and type size of electronically submitted documents must be in accordance with the requirements in subsections (a) and (b).
[(d)] (e) * * *
§ 1.33. Incorporation by reference.
(a) [Except as otherwise provided in subsection (b), documents] Documents on file with the Commission may be incorporated by reference into a [subsequently filed] subsequent pleading, submittal or other document. A document may be so incorporated only by reference to the specific document and to the prior filing and docket number at which it was [physically] filed.
(b) [No document which has been] Documents on file with the Commission [for a period of more than 20 years] may not be incorporated by reference in a current document unless the person filing the current document first [makes inquiry to the Prothonotary office and] ascertains that the earlier document continues to be readily available in the active records of the Commission.
§ 1.35. Execution.
(a) Signature. [Except as may be otherwise ordered or requested by the Commission, the original copy of a] A pleading, submittal or other document [shall] must be signed in ink by the party in interest, or by [his] the party's attorney, as required by subsection (b), and show the office and post office address of the party or attorney. [Other]
(1) An original hard copy must be signed, and other copies filed shall conform thereto unless otherwise ordered by the Commission.
(2) If the Commission permits a document to be submitted in electronic form, the document may be signed electronically using a method preapproved by the Commission.
(b) [Subscription] Signatory.
(1) A pleading, submittal or other document filed with the Commission [shall] must be [subscribed] signed by one of the following:
* * * * * (2) A document filed by a corporation, trust, association or other organized group, may be required to be supplemented by appropriate evidence of the authority of the officer or attorney [subscribing] signing the documents.
(c) Effect.
(1) The signature of the [person subscribing] individual signing a document filed with the Commission constitutes a certificate by the individual that:
(i) The [person] individual has read the document being [subscribed] signed and filed, and knows the contents thereof.
(ii) The document has been [subscribed] signed and executed in the capacity specified upon the document with full power and authority to do so, if executed in a representative capacity.
(iii) The document is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, to the best of the [person's] individual's knowledge, information and belief formed after reasonable inquiry.
* * * * * (2) If a document is signed in violation of this subsection, the presiding officer or the Commission, upon motion or upon its own initiative, may impose upon the [person] individual who signed it, a represented party, or both, an appropriate sanction, which may include striking the document, dismissal of the proceeding or the imposition of civil penalties under section 3301 of the act (relating to civil penalties for violations).
(d) Supersession. Subsections (a)--(c) [are identical to] supersede 1 Pa. Code § 33.11 (relating to execution).
§ 1.36. Verification.
(a) Applications, petitions, formal complaints, motions and answers thereto containing an averment of fact not appearing of record in the action or containing a denial of fact [shall] must be personally verified by a party thereto or by an authorized officer or other authorized employee of the party if a corporation or association. Verification means a signed written statement of fact supported by oath or affirmation or made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). [If] When verification is [required] permitted, notarization is not necessary.
* * * * * (c) When an affidavit is used, it must be notarized and the form should comply substantially with the following:
AFFIDAVIT I, ______ (Affiant) being duly sworn (affirmed) according to law, depose and say that (I am authorized to make this affidavit on behalf of ______ corporation, being the holder of the office of ______ with that corporation, and that) the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief) and (I or corporation) expect to be able to prove the same at any hearing hereof.
_________________
(Signature of affiant)Sworn and subscribed before me this ______ day of ______ , [19] 2 ____ .
_________________
(Signature of official administering oath)
(My Commission Expires)* * * * * § 1.37. Number of copies.
(a) General rule. [An] When a pleading, submittal or document other than correspondence is submitted in hard copy, an original and three copies of [pleadings, submittals or documents other than correspondence shall] each, including the cover letter, must be furnished to the Commission at the time of filing[, except as may be otherwise required by statute or ordered or requested by the Commission, and except as required by §§ 5.409, 5.502 and 5.533 (relating to copies and form of documentary evidence; filing and service of briefs; and procedure to except to initial, tentative and recommended decisions)].
(b) Exceptions.
(1) [In the case of applications and petitions] When the document is an application or petition, one [of the copies filed with the Commission] copy may be filed without exhibits.
[(c) In the case of complaints]
(2) When the document is a complaint or [petitions, when] petition and more than one respondent is named, an additional copy of the complaint or petition [shall] must be filed for each additional respondent.
(3) When the document is subject to a statutory requirement or is otherwise ordered or requested by the Commission, a different number of copies may be designated.
(4) When the document is subject to the requirements of § 5.409, § 5.502 or § 5.533 (relating to copies and form of documentary evidence; filing and service of briefs; and procedure to except to initial, tentative and recommended decisions), the filing shall conform to the requirements set forth in the applicable section.
(c) Electronic filing. When permitted by the Commission or the Office of Administrative Law Judge, a single copy of a document may be submitted electronically to the Secretary's Bureau for filing.
* * * * * § 1.38. Rejection of filings.
The Commission may reject a filing if it does not comply with any applicable statute, regulation or order, or if the filing utility is otherwise delinquent in its regulatory obligations.
Subchapter E. FEES § 1.42. Mode of payment of fees.
(a) Fees [shall] must be paid by money order or check made payable to the Commonwealth of Pennsylvania or by any method currently acceptable to the Commission. The Secretary's Bureau should be contacted prior to submitting payment in a form other than money order or check. Cash is sent at the risk of the sender.
* * * * * § 1.43. Schedule of fees payable to the Commission.
* * * * * [(b) Fees for testing. The fees fixed by section 317 of the act (relating to fees for services rendered by commission) to be charged and collected from public utilities for the testing of their instruments of precision and measuring apparatus are as follows:
Description (in dollars) Testing each watthour meter $16 Testing each indicating instrument 10 Testing each transformer 10 Testing each standard cell 5 Testing each standard resistance 10 Testing each potentiometer 50 Testing each gas meter prover 35 Testing each calorimeter tested at the gas company's plant 35 Testing each calorimeter tested at the Commission laboratory 10 Each water meter testing apparatus tested at the company's plant 15 Each water meter tested at the Commission laboratory 3
(c) Condensation and steam flow meters.
(1) The schedule of fees for testing condensation and steam flow meters is as follows:
(i) For condensation meters having an outlet not exceeding 2 inches--$5.
(ii) For condensation meters having an outlet in excess of 2 inches--$10.
(iii) For steam flow meters--$25.
(2) Upon receipt of complete specifications, the Commission will determine the fees for testing those meters located so that the cost is out of proportion to the fee specified or those not included in the classification in this subsection
(d) Water meters.
(1) The schedule of fees for testing meters is as follows:
(i) For each water meter having an outlet not exceeding 1 inch--$5.
(ii) For other water meters having an outlet not exceeding 2 inches--$10.
(2) Rates for testing other meters, including those which are located so that the cost is out of proportion to the fee specified, will be furnished by the Commission upon the receipt of complete specifications.
(e)] (b) Supersession. [Subsections] Subsection (a)[--(d) supersede] supersedes 1 Pa. Code §§ 33.21(b) and 33.23 (relating to filing fees; and copy fees).
Subchapter F. SERVICE OF DOCUMENTS § 1.51. Instructions for service and notice.
Upon [receipt of] receiving an application or initial petition, the [Prothonotary] Secretary will instruct the applicant or petitioner concerning the required service and public notice.
§ 1.53. Service by the Commission.
(a) [Except when service by another method is specifically required by the Commission,] Applicability. This section applies to service of an order, notice or other document originating with the Commission[, including forms of Commission action and similar process,] and other documents designated by the Commission, [shall be served by the Commission] except when the Commission specifically requires a different form of service.
(b) Forms of service.
(1) First class mail. Service may be made mailing a copy thereof to the person to be served, addressed to the person designated in the initial pleading, submittal or notice of appearance at the person's principal office or place of business.
(2) Personal. [When service is not accomplished by mail, it] Service may be [effected] made personally by anyone authorized by the Commission.
(3) Electronic. Service may be made electronically, when the recipient has specifically authorized electronic service in the matter.
[(b)] (c) Registered or certified mail. Service of a petition under § 3.391 (relating to arbitration of claims for billing and collecting services), and service of a complaint under section 702 of the act (relating to service of complaint on parties) [shall] must be by registered or certified mail, return receipt requested.
[(c)] (d) Change of address. It is the duty of a [participant] party to apprise the Commission promptly of changes to the [participant] party's current address.
[(d)] (e) Alternative service. If the Commission is unable to serve a [participant] party by mail at the [participant's] party's last known address, the Commission may [serve the participant] make service by publication in a newspaper of general circulation in the same area as the [participant's] party's last known address. In the alternative, service may also be accomplished by publication in the Pennsylvania Bulletin or by service on the Secretary of the Commonwealth, if appropriate.
[(e)] (f) Supersession. [Subsection] Subsections (a)--(e) [supersedes] supersede 1 Pa. Code § 33.31 (relating to service by the agency).
§ 1.54. Service by a [participant] party.
(a) Pleadings, submittals, briefs and other documents, filed in proceedings pending before the Commission [shall] must be served upon [participants] parties in the proceeding and upon the presiding officer, if one has been assigned.
(b) Service may be [in person, by available delivery service, by mail or as otherwise directed by the Commission. Service may also be by telecopier to those parties who have agreed to accept service in that manner.] made by one of the following methods:
(1) First class mail. Service may be made by mailing the requisite number of copies to each party as provided in § 1.59 (relating to number of copies to be served), properly addressed with postage prepaid.
(2) Personal. Service may be made personally.
(3) Electronic. Service may be made electronically, to those parties who have agreed to accept service in that manner. Documents served electronically need not be followed by service of a hard copy if the parties have so agreed.
(4) Telefacsimile. Service may be made by telefacsimile to those parties who have agreed to accept service in that manner. Documents served by telefacsimile need not be followed by service of a hard copy if the parties have so agreed.
(c) [Service by mail shall be made by delivering the requisite number of copies to each participant as provided in § 1.59 (relating to number of copies to be served), properly addressed with postage prepaid, and first class mail shall be utilized. Service by telecopier shall be followed by service of a hard copy either by mail, by available delivery service or in person.
(d) In a proceeding in which only some of the participants participate actively, the active participants, with the authorization of the presiding officer, may serve documents upon the other active participants and to inactive participants which state of record on the record or request in writing that they wish to be served.
(e)] Subsections (a)[--(c)] and (b) supersede 1 Pa. Code § 33.32 (relating to service by a [participant] party).
§ 1.55. Service on attorneys.
(a) [In a proceeding where an attorney has filed a pleading or submittal on behalf of a client or has entered an appearance under § 1.24(b) (relating to notice of appearance or withdrawal), a notice or other written communication required to be served upon or furnished to the client shall be served upon or furnished to the attorney--or one attorney if the client is represented by more than one attorney--] When an attorney enters an appearance under § 1.24 (relating to notices of appearances or withdrawals), service must be directed to the attorney in the same manner as prescribed for his client.
(b) When a [participant has appeared] party is represented by an attorney, service upon the attorney shall be deemed service upon the [participant and separate] party. Separate service on the [partici- pant] party may be omitted.
* * * * * § 1.56. Date of service.
(a) The date of service shall be the day when the document served meets one of the following conditions:
* * * * * (4) The document is transmitted by [telecopier] telefacsimile as provided in § 1.54 (relating to service by a [participant] party) prior to 4:30 p.m. local time.
(5) The document enters an information processing system designated by the recipient for the purpose of receiving service and from which the recipient is able to retrieve the served document in a form capable of being processed by the recipient's system prior to 4:30 p.m. local time.
(b) Unless otherwise prescribed by the Commission or presiding officer, whenever a [participant] party is required or permitted to do an act within a prescribed period after service of a document upon the [participant] party and the document is served by first-class mail by the United States Postal Service, 3 days shall be added to the prescribed period.
* * * * * § 1.58. Form of certificate of service.
(a) The form of certificate of service shall be as follows:
I hereby certify that I have this day served a true copy of the foregoing document upon the [participants] parties, listed below, in accordance with the requirements of § 1.54 (relating to service by a [participant] party).
(List names and addresses of [participants] parties served.)
Dated this _____ day of ______ , [19] 2 ____ .
_________________
(Signature)
Counsel for
_________________* * * * *
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