RULES AND REGULATIONS
Title 52--PUBLIC UTILITIES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[52 PA. CODE CHS. 1, 3 AND 5]
[36 Pa.B. 2097] [L-00020156]
Practice and Procedure Before the Commission
The Pennsylvania Public Utility Commission, on December 15, 2005, adopted a final rulemaking order revising and updating the Commission's rules of practice and procedure.
Executive Summary
Periodically the Commission reevaluates its procedural rules to ensure that they 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.
On October 30, 2004, the Pennsylvania Bulletin published the Commission's Order and Annex of proposed amendments at 34 Pa.B 5895. The Order established a 60-day deadline for Comments following publication in the Pennsylvania Bulletin. The Comment period expired on December 28, 2004. The Commission received nine sets of comments and additionally incorporated the views of individual Commission Bureaus in evaluating possible changes.
From December 2004 through December 2005, the Commission reviewed the proposed amendments and comments. On December 15, 2005, the Commission adopted an Order and Annex establishing final regulations. The Commission entered a final Order and Annex on January 4, 2006.
The final regulations accomplish a number of Commission objectives. First, the final rules abandon the proposal to allow electronic filing until development of an electronic filing capability at the Commission. Second, the final rules develop or expand definitions in response to comments of the parties and the Independent Regulatory Commission (IRRC). The final rules reorganize the procedural requirements to be more reader friendly and easier to navigate. Fourth, the final rules make a number of ministerial changes, such as shortening or lengthening time periods for filing various documents and changing terminology, to be more consistent with modern practice and the Pennsylvania Rules of Civil Procedure. Finally, the Commission abandoned proposals to use forms in lieu of regulatory requirements, particularly with regard to water applications and security transactions, in response to comments. Taken together, the combination of changes and continuation of existing practices 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 the notice of proposed rulemaking, published at 34 Pa.B. 5895 to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Committee on Consumer Affairs and the Senate Committee on Consumer Protection and Professional Licensure for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on March 20, 2006, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on March 21, 2006, and approved the final-form rulemaking.
Public Meeting held
December 15, 2005Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick
Final 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;
Docket No. L-00020156
Final 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.
On May 10, 2004, we entered an Order and Annex A. The Order contained an explanation for the proposed revisions. Annex A contained the proposed regulations.
On October 30, 2004, the Pennsylvania Bulletin published our Order and Annex A at 34 Pa.B. 5895. The Order established a 60-day Comment period following publication in the Pennsylvania Bulletin. The Comment period expired on December 28, 2004.
We thank the following for their comments to our proposed revisions: The Office of Consumer Advocate (OCA comment), the Office of Small Business Advocate (OSBA comment), Ryan, Russell, Ogden & Seltzer on behalf of Metropolitan Edison Company, Pennsylvania Electric Company, and Pennsylvania Power Company (Ryan comment), the Department of Environmental Protection (DEP comment), and Saul Ewing on behalf of the Practitioners' Group, a group of seasoned, respected, and experienced attorneys appearing before the Commission on multiple utility matters (the Utility Bar comment). On January 15, 2005, Thomas, Thomas, Armstrong, and Niessen submitted a comment (Thomas comment). The Independent Regulatory Review Commission (IRRC) submitted comments on January 28, 2005 (IRRC comment).
The language of the final regulations contained in Annex A reflects our resolution of these varied comments. The Order explains the reasoning for the final regulations.
The first part of the Order contains a general summary of the important changes to the regulations. The second part contains a regulation by regulation summary of the proposed regulation, the comments, and the Commission's reasoning and disposition reflected in the final regulation. Annex A reflects the final regulations.
A number of important general considerations guided the Commission when considering the merits of each comment. While recognizing that the final rules should be thorough and comprehensive, we seek to avoid making them unnecessarily lengthy and have therefore elected not to create a particular, narrowly-focused rule to address every possible situation that might arise in a proceeding.
Other considerations include an intention to avoid unduly restricting a presiding officer's ability to conduct hearings, to make rulings that resolve factual circumstances, and to make credibility determinations on a case-by-case basis. The Commission also wanted to ensure that the final rules are not unduly burdensome and strike the appropriate balance between the interests of pro se individual complainants, statutory parties, intervenors and involved utilities, jurisdictional or otherwise.
Summary of Changes Summary of Major Ministerial Changes
The term participant is replaced with the term party throughout the regulation. This change ensures that those who wish to appear before the Commission do so consistent with Pennsylvania law and Commission procedure based on standing as a party. This final change eliminates any uncertainty associated with the term participant. Each Section in which this is the only change is noted in the Annex below.
The word Prothonotary is changed to Secretary wherever it appears. This change reflects the absence of a Prothonotary at the Commission. The duties assigned to the Prothonotary are now assigned to the Secretary. This change aligns the Commission's rules with our structural practice and enabling statute set forth at Section 305(b) of the Public Utility Code, 66 Pa.C.S. § 305(b).
Executive Director is changed to Director of Operations throughout the Commission's rules. This change reflects the statutory language set forth in Section 305(a) of the Public Utility Code, 66 Pa.C.S. § 305(a). The Director of Operations has the responsibilities of the former Executive Director. This change aligns our practice with the enabling statute.
Summary of Major Substantive Changes
In addition to the ministerial changes set forth above, the Commission made some adjustments on important issues between the version set forth in the Proposed Regulations and our Final Regulations. These major changes, set forth in Annex A, are briefly presented here given their importance as reflected in the comments.
Electronic Filing. The Proposed Regulations added language that would permit electronic filing in the future. IRRC questions the wisdom of developing electronic filing requirements in advance of securing the funding and implementing an electronic system. The IRRC suggested addressing those requirements at a later date. The General Assembly subsequently approved funding for the Commission's electronic network. That system is under development.
We agree with IRRC that adoption of regulations governing electronic filing is inadvisable at this time. The final regulations delete any detailed reference or discussion of electronic filing. The final regulations do allow the parties, as opposed to the Commission, an option to use electronic service among themselves when they agree it is appropriate. The Commission does not permit electronic filing even as an option because the Commission is not presently equipped to accept electronic filing.
Section 1.8 Definitions. The Proposed Regulations contained no detailed definitions for many terms in the proposed rules. IRRC urged the Commission to develop definitions for adversarial proceedings, nonadversarial proceedings, informal proceedings, agency, political subdivision, and government entity. In response to these comments, the Commission has developed definitions and rules for many additional terms.
However, some terms are governed by statutes and court precedent. Reliance on a statute or reference for a definition requires revision of the definition if the statute or caselaw change. For that reason, the Commission did not develop definitions for terms that depended on a statute or caselaw. The Commission has, and will continue to, incorporate statutory or judicial changes in undefined terms using incorporation by adoption instead of amendment given the cost differential.
The Commission did, however, develop many of the definitions IRRC requests. This includes definitions for non-adversarial proceedings and informal proceedings.
Section 1.24. Notice of Appearance or Withdrawal and Telefacsimile Transmittals. The proposed regulation did not allow multiple appearances by a party represented by more than one attorney. The comments suggest that all attorneys listed on an initial pleading be considered attorneys of record and that parties be allowed to file using telefacsimile transmittals.
The Commission rejected the suggestion for multiple service on more than one attorney. The vast majority of proceedings before the Commission involve pro se litigants without counsel. Multiple appearances by a party represented by more than one attorney typically occur in high-profile or costly proceedings like rate cases. Multiple service requirements will increase the cost and burden of service on the Commission. This invites the submission of more pleadings raising, and resources devoted to deciding, claims of defective or imperfect service. This also requires more staff and resources than is the case today when the only apparent benefit seems to be the private litigant's ability to shift the cost and burden of duplication and service to the Commission even though those costs are recovered in assessments and rates.
Section 3.501 Application Requirements for a Certificate of Public Convenience for a Water Supplier or Wastewater collection, treatment or disposal provider. The Proposed Regulation eliminated the requirements imposed on an applicant seeking a Certificate of Public Convenience as a new or existing but uncertificated water supplier or wastewater collection, treatment, or disposal provider. The final regulation restores the existing requirements and meshes our enabling statute and regulations with those of the DEP.
The final regulation also formalizes the Commission's authority to reject nonconforming filings. The final regulation includes existing but uncertificated utilities. The final regulation in § 3.501(a)(2)(vi) requires an applicant to provide a Map of Service Area including the County Comprehensive Plan, Municipal Comprehensive Plan, and Zoning Designations if requested. An applicant letter is required to address compliance with the applicable requirements of these plans pursuant to § 3.501(a)(7) regardless of whether the Commission requests a copy of these voluminous documents. Section 3.501(b) provides additional considerations that the Commission will consider and may rely on. This includes Comprehensive Plans, Multimunicipal Plans, Zoning Ordinances and Joint Zoning Ordinances reflecting the Municipalities Planning Code. This reflects our agreement with IRRC and DEP about important considerations that should be considered when evaluating an application.
Sections 3.501(c) through (f) expand and retain the Commission's existing notice and publication requirements. Section 3.501(d) restores the existing 60-day notice and protest period as well as the requirement of daily publication for two weeks in a newspaper of general circulation located in the territory covered by the application. Section 3.501(f) restores service on the Office of Consumer Advocate and expands notice or service to include the statutory advocates, the central and regional office of the DEP, any utility or municipality within one mile or abutting an application's service territory, and customers of an initial or existing utility without a certificate.
Finally, the Commission retains an option to develop forms for purposes of § 3.501. The Commission believes this will make it easier for an applicant to obtain Commission authority although the final regulation establishes a process for development of any forms. This reflects comments asking the Commission to provide notice and an opportunity to provide input.
Sections 5.14 and 5.53. Applications Requiring Notice and Protest Period. The proposed regulation eliminated the list of applications subject to notice and publication in the existing regulation. The final regulation retains the existing list in response to comment. The final regulation at § 5.14(a) also requires publication of applications in the Pennsylvania Bulletin. The final regulation at § 5.14(b) details additional publication requirements.
The final regulation in § 5.14(c) provides that protest periods are governed by § 5.53, which, in turn, states that the protest period is governed by publication of the application. Sections 5.14(c) and 5.53 together establish a 60-day default period for those situations where publication inadvertently fails to establish a protest period. This default rule is tantamount to the general rule suggested in the IRRC comments.
The final regulation at § 5.14(d) restores and reinstates the list of applications subject to notice and publication in § 5.14(b) of the existing regulation. This responds to comments, particularly those of the Utility Bar, about retaining the list for certainty, clarity, and predictability. The final regulation at § 5.14(d) retains the existing protest periods. These are 15-days for the applications set forth in the list and 30-days for more complex applications. The Commission does so because applications range from basic transportation applications of small businesses seeking market entry to the complex applications of multiple service providers in other utility industries.
Section 5.24: Satisfaction of Formal Complaints. The proposed regulation established procedures allowing a complainant or respondent to submit proof of the satisfaction of formal complaints. The comments were concerned about a regulation that allowed a party to claim satisfaction without proof such as a written statement.
The final regulation for § 5.24(a) requires a complainant to file a certified statement of satisfaction. In the alternative, § 5.24(b) allows the respondent to file a certified writing of satisfaction provided the complainant acknowledges satisfaction to the respondent or the complainant acknowledges that they are not pursuing the matter. If the alternative satisfaction of § 5.24(b) is taken, the respondent must simultaneously serve the complainant a copy of the certified writing filed with the Commission. The complainant must also be provided a statement informing the complainant of their right to object in writing within 10 days. The docket is closed after 10 days unless the complainant objects in writing under § 5.24(c).
Sections 5.62 and 5.63: Answers seeking affirmative relief or raising new matter. The proposed regulation contains no requirement that answers raising new matter contain a notice to plead. The comments suggest that a notice to plead be specified in a new matter given that failure to file a timely reply is deemed a default and facts stated may be deemed to be admitted. The § 5.63(b) ramifications of not responding within the time period set forth in § 5.63(a) provide sufficient notice.
The Commission disagrees with this suggestion. A Notice to Plead requirement may be appealing because it might better inform the recipient of an obligation to file and answer. However, this well-intentioned procedural suggestion actually erects another procedural hurdle for dismissing otherwise valid pro se matters on grounds unrelated to the substantive issue. Dismissal of pro se complaints for failure to comply with a Notice to Plead undermines the value these complaints play in warning the Commission about possible utility service problems. Moreover, a disgruntled complainant can always file another complaint and that would require the expenditure of resources addressing a matter that could have been just as easily addressed in the first complaint. Finally, large respondents with seasoned or multiple numbers of attorneys need not be advised of the well-appreciated ramifications of failing to respond. Given these considerations, the Commission declines to require a Notice to Plead.
Sections 5.74: Filing of Petitions to Intervene. The proposed regulation established a uniform deadline for a private party's Petition to Intervene as well as a Notice of Intervention filed by the OTS, OCA, and OSBA.
In response to the comments, the final regulation distinguishes between a private party's Petition to Intervene and a statutory advocate's Notice of Intervention or Right of Participation. A Petition to Intervene is subject to express time limits although they can be set aside for good cause shown. A Notice of Intervention or Right of Participation, on the other hand, are not subject to an express time limit although a party making such a filing after expiration of the time period takes the record as the party finds it absent extraordinary circumstances. This approach reconciles the need for reasonable intervention limits with the statutory advocate's rights.
Section 5.101. Preliminary Objections. The proposed regulation substituted the phrase ''preliminary objection'' for the existing ''preliminary motion'' and deletes the requirement that all preliminary objections be filed at once.
The final regulation uses preliminary objection in place of preliminary motion. The final regulation also requires a party to serve all preliminary objections at one time. The final regulation retains the Commission's existing prohibition against the filing of a motion or preliminary objection in response to a preliminary objection. The final regulation requires a response to a preliminary objection within 10 days.
The response time period, the requirement to raise all preliminary objections at once, and a prohibition against preliminary objections in response to a preliminary objection should discourage dilatory pleading. This also reduces administrative costs for all parties given that such costs are, in the end, reflected in assessments and rates.
Section 5.342: Answers or objections to written interrogatories by a party. Section 5.342(a) imposes verification of answers in accord with Section 1.36. Section 5.342(c) governs objections. Section 5.342(d) imposes a 15-day period for answers in rate cases and a 20-day period for nonrate cases. This facilitates compliance with the statutory requirement in section 332(g) of the Public Utility Code. This also addresses concerns about an inconsistency between the general rule in § 5.342(d) and the additional rule in § 5.342(d)(1) of the proposed regulation. Section 5.342(e) of the final regulation establishes a 10-day period for filing objections regardless of the nature of the proceeding.
Detailed Discussion of Regulatory Changes Chapter 1. Rules of Administrative Practice and Procedures
Sections 1.2, 1.3, 1.4, and 1.7.
The proposed regulation makes ministerial changes concerning the name Secretary, the Commission's address, the location of the Commission's normal meeting place, and the use of the Commission's website. There were no objections to these ministerial changes. The final regulation makes the changes consistent with Commission practice and provides a liberal construction of the rules for pro se litigants.
Section 1.8 Definitions.
The proposed regulation updated definitions in Section 1.8. There are updated definitions for ''individual'' to distinguish between the legal term ''person'' and a human being. ''Mediation'' was defined given the important role it plays at the Commission. The proposed regulation also defined ''verification'' while ''party'' replaced ''participant'' throughout the regulation.
There were several comments. IRRC expressed concern about using undefined terms. These terms are ''adversarial proceedings,'' ''nonadversarial proceedings,'' ''informal proceedings,'' ''agency,'' ''political subdivision,'' and ''government entity.'' IRRC believes the regulation would be improved by defining these terms. IRRC suggests cross-referencing definitions used elsewhere in the statute or regulations.
The final regulation reflects agreement with IRRC that a definition for nonadversarial proceedings is appropriate. The final regulation defines ''nonadversarial proceedings'' in order to distinguish those proceedings and other proceedings that may be subject to the prohibition against ex parte communications for contested ''on the record'' proceedings in 66 Pa.C.S. § 334(c). In this regard, the Commission may, in its discretion, designate a particular proceeding as adversarial and subject to ex parte prohibitions if warranted by the circumstances. The final regulation also reflects agreement with IRRC that a definition for informal proceeding is needed.
The final regulation does not define ''agency'' or ''political subdivision'' or ''government entity'' as suggested by IRRC. Defining these terms beyond the definition already provided by the regulations would require the Commission to amend the regulations whenever the cross-referenced definition is amended, revised, or addressed in the courts. The Commission prefers to incorporate legislative or judicial changes in practice instead of regulatory amendments. Other comments asked the Commission to distinguish between ''active'' and ''inactive'' parties in the regulations. The Commission declines to do that given the fact that this determination is better made on a case-by-case basis and not in a general regulation. The final regulation deletes the attempt to differentiate between ''active'' and ''inactive'' parties by referring only to parties in the final regulation.
The Commission agrees with other comments seeking clarification of terms. The final regulation adopts definitions for the terms ''electronic mail,'' ''formal complaint,'' ''formal investigation,'' ''formal proceeding,'' ''friendly cross-examination,'' ''informal complaint,'' ''informal investigation,'' ''informal proceeding,'' ''mediation,'' ''mediator,'' ''person,'' ''pleading,'' ''Secretary,'' ''Statutory Advocate,'' ''submittal,'' ''telefacsimile transmittal'' and ''verification.''
The definitions respond to other comments about the need for definitions. A definition for electronic mail is necessary to clarify when the parties can use electronic service among themselves as opposed to the prohibition against electronic filing with the Commission. This approach reflects comments suggesting that the Commission avoid electronic filing requirements due to the current unavailability of the system. The final rulemaking also defines formal and informal complaints, investigations, and proceedings. These definitions respond to comments suggesting the need to explain the difference between informal and formal matters at the Commission.
A revised definition of ''mediation'' and a definition of ''mediator'' respond to the Utility Bar comment on the need to distinguish between dispute resolution and litigation. However, the Commission denies the Ryan comment seeking the development of formal dispute resolution regulations in this rulemaking.
Revised definitions of friendly cross-examination, party, person, and pleading are developed. A definition of statutory advocate is developed to differentiate the service and intervention rights of public advocates and private parties. A revised definition of transmittal is developed in response to an IRRC suggestion. There is a revised definition of the term verification to ensure compliance with the requirement.
Subchapter B. Time
Section 1.11 Date of filing
The proposed regulation at § 1.11(a)(4) established how an electronic filing occurs at the Commission. The proposed regulation specified that it 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 did not permit electronic filing but specified how electronic filing may be permitted by the Commission.
The proposed regulation at § 1.11(a)(3) eliminated the use of a United States postage stamp on an envelope as postal proof of the date of filing. The proposed regulation limits postal proof of filing to United States Postal Service Form 3817. The proposed regulation at § 1.11(c) retained the prohibition against document filing by telefacsimile as well.
IRRC questions the wisdom of electronic filing when there is no system or funding for a system. IRRC is also concerned that elimination of proof of postal filing based on the date ''shown on the United States Postal Service (USPS) stamp on the envelope'' could be significant for individual pro se litigants unfamiliar with the intricacies of Postal Form 3817. IRRC further questions the reasonableness of precluding parties from filing documents by telefacsimile given that this is allowed in other agencies so long as an original is filed within a reasonable time thereafter. IRRC also identifies the inconsistent use of ''local time'' and ''Eastern Standard Time'' in the proposed regulation.
The Utility Bar encourages the Commission to adopt electronic filing for greater transparency. The Utility Bar shares IRRC's concerns about the wisdom of developing regulations for a non-existent system.
The Commission agrees with IRRC that electronic filing is premature. The Commission eliminates all regulations addressing electronic filing with the Commission in §§ 1.24(b)(2)(i)(A), 1.25(a), 1.32(d), 1.35(a)(2), 1.37(c), 1.53(b)(3), 1.54(b)(3), 1.56(a)(5), 1.59(b)(1)(ii), and 5.306. The final regulations at §§ 1.11(a)(4), 1.32(d), 1.35(a)(2), and 1.37(c) also prohibit the use of electronic filing by private parties.
The final regulations in §§ 1.24(b)(2)(i)(A), 1.25(a), 1.54(b)(3), 1.56(a)(5), and 1.59(b)(1)(ii) do allow the parties to use electronic communications to service documents or communicate among themselves when they deem it appropriate. Even in those cases, however, the parties must comply with traditional Commission filing requirements based on our decision to not incorporate electronic filing at this time due to the current unavailability of the system.
The final regulation for § 1.54(b)(3) allows the parties to voluntarily use electronic service among themselves. However, even in such cases, the party must file a hard copy of the final version with the Secretary stamped on the due date. A party can file a corrected version so long as the version is not substantive and the presiding officer approves the filing.
The Commission rejects the Utility Group suggestion that we rewrite subsection (a)(1)--(4) by inserting semi-colons with ''or'' after (3) since the proposal does not reflect the correct format used by the Pennsylvania Bulletin in the publication of regulations.
The Commission agrees with IRRC that retention of the existing postal proof rule is advisable given the potential for confusion among parties unfamiliar with the intricacies of Form 3817. The Commission adopts many of the Utility Bar's ministerial corrections, including a suggestion that the Commission resolve an inconsistency between references to ''local time'' and ''Eastern Standard Time'' in the regulations. The Commission adopts ''prevailing local time'' to address this issue.
The Commission disagrees with IRRC's suggestion that the Commission approve the use of telefacsimile transmittals as do other Pennsylvania agencies. The Commission previously considered telefacsimile filing and rejected it for several reasons.
A telefacsimile transmittal contains no legal signature and, even if it did, the Commission's regulations require a party to file an original. A telefacsimile copy is not an original under traditional filing. We also agree with IRRC that electronic filing is not appropriate in this rulemaking. Given that telefacsimile transmittals are a form of electronic filing, we also reject the use of telefacsimile transmittals for filing with the Commission.
Another important consideration is cost. The Commission receives a voluminous amount of pleadings, petitions, complaints, answers, applications, and other documents numbering in the thousands on a monthly basis. This volume is what motivated the Commission, in part, to propose electronic filing in the proposed regulation. At the current time, the Commission's telefacsimile facilities are limited generally and even more so in the Secretary's Bureau.
The Secretary's Bureau is already challenged to accept, process, and identify the hard copy volume let alone additional telefacsimile transmittals that will occur if we allow telefacsimile transmittals. The Commission could easily be overwhelmed if multiple parties in one proceeding decide to use telefacsimile filing to submit their voluminous pleadings in the final hour on the final day. This challenge would be made worse if other parties also decided to use those same facilities on the same day.
However, in response to IRRC's suggestions that we prohibit electronic filing yet still consider the use of telefacsimile transmittals, the final regulation at § 1.54(b)(4) allows the parties the option to use electronic communications for service among themselves. In that instance, nevertheless, a final version must be filed with the Secretary no later than the close of business at the Commission on the due date regardless of the parties' agreement. This reconciles the prohibition against electronic filing with the Commission's limited facilities.
Section 1.15. Extensions of time and continuances.
Section 1.15(b). The proposed regulation inserted the phrase ''for a continuance'' in § 1.15(b).
IRRC and the Utility Bar suggest that the phrase ''timely filed'' replace the current ''filed at least 5 days prior to the hearing date'' language of § 1.15(b).
The Utility Bar also suggests that the word ''filing'' replace ''submitted'' in the last sentence of § 1.15(b).
The Commission disagrees with IRRC and the Utility Bar. The phrase ''timely filed'' should not replace the phrase ''filed at least five days in advance'' for several reasons. A strict limit leaves little or no discretion to address cases where a litigant, particularly a pro se litigant, is unable to comply due to unforeseen circumstances or inadvertence. A strict requirement also provides a costly and inefficient basis for dismissing a proceeding, typically involving pro se litigants, on procedural grounds knowing that the case will be refiled. The other recourse, dismissal with prejudice, is relatively draconian compared to the possible violation, e.g., a failure to file in 5 days.
The Commission retains the existing regulatory phrase. However, the Commission agrees that the word ''filed'' should replace the word ''submitted'' in the final regulation.
Subchapter C. Representation Before the Commission
The proposed regulation reflected electronic filing requirements and Pennsylvania Supreme Court authority over the practice of law. The Pennsylvania Supreme Court promulgates its own rules. The Commission concluded it lacks authority to promulgate rules that contravene the Pennsylvania Supreme Court rules.
The substance of the proposed regulation is that: (1) individuals 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 the Pennsylvania Supreme Court, and (4) in informal proceedings brought under Chapter 14 of the Public Utility Code or Chapters 56 and 64 of the Commission's regulations only, representation may be by other than a licensed attorney. Throughout, the information required to be provided by an attorney includes the Pennsylvania Supreme Court identification number.
The final regulation deletes the proposed electronic filing and reaffirms the Pennsylvania Supreme Court's authority over the practice of law that requires use of the Pennsylvania Supreme Court attorney identification number whenever appropriate.
Section 1.21. Appearance [in person]. The proposed regulation reflected the Supreme Court's authority over the practice of law in Pennsylvania.
IRRC suggests that the Commission define the term ''appropriate individual'' in § 1.21(d). The Utility Bar suggests that the Commission define the terms ''informal complaint'' and ''informal proceeding.'' They also want the Commission to address the relationship with an ''informal investigation'' under Subchapter B and Section 3.113. The Utility Bar concludes that the correct term should be ''informal complaint'' rather than ''informal proceeding'' in the final regulation.1 The OSBA comment suggests that § 1.21(a) be revised to allow sole proprietorships to represent themselves before the Commission.
The final regulation defines an ''appropriate individual'' for informal proceedings in a way that does not contravene the Pennsylvania Supreme Court's authority. The final regulations contain definitions for ''informal complaint,'' ''informal investigation,'' and ''informal proceeding'' as well. The final regulation rejects the OSBA comment that ''individual'' include sole proprietorships. The OSBA comment includes incorporated sole proprietorships although any incorporated entity must be represented by counsel.
Section 1.22. Appearance by attorney or certified legal intern. The proposed regulation is premised on the Pennsylvania Supreme Court's authority. The Utility Bar suggests that the phrase ''Subject to the provisions of § 1.21'' be added to underscore the view that § 1.22 does not mean that all must be represented by counsel including pro se individuals that represent themselves. The final regulation inserts the proposed phrase for clarification although the phrase is limited to § 1.21(a) because it governs pro se representation by individuals as defined in § 1.8.
Section 1.24. Notice of appearance or withdrawal. The proposed regulation established the process for filing a notice of appearance or withdrawal including pro se individuals. The proposed regulation permitted electronic filing.
Section 1.24(a). The Utility Bar suggests that the Commission require a pro se litigant to file a change of address with ''active'' parties under § 1.24(a).
The final regulation adopts the proposed regulation. The regulation does not require a pro se litigant to provide notice to ''active'' parties.
A regulation that imposes burdens on pro se litigants by attempting to differentiate between ''active'' and ''inactive'' parties in a regulation undermines the effort to end attempts to distinguish between ''active'' and ''inactive'' parties. It is difficult if not impossible to make that determination in a general rule when that decision is better made on a case-by-case basis by a presiding officer. For that reason, the definition of party does not differentiate between an active and inactive party.
Section 1.24(b)(1). The proposed regulation deems an attorney's signature on the pleading tantamount to an appearance in a representative capacity. The Utility Bar opposes this departure from traditional Commission practice. They view the departure as undermining support for electronic filing when the problem can be easily corrected with a letter of clarification. The Utility Bar alternatively suggests that all counsel listed on an initial pleading be deemed to have entered an appearance if the Commission retains the proposed regulation. The OSBA comment suggests that if the Commission does not intend an appearance sheet to substitute for notice under § 1.25, the Commission should automatically enter the appearance of each attorney listed on the initial pleading regardless of who signed the pleading.
The final regulation retains the proposed regulation holding that the attorney signing the initial pleading in a representative capacity is the attorney of record. There is no valid reason for replacing the proposed regulation with any proposed alternatives. The alternatives are costly, burdensome on the Commission and litigants, and encourage litigation based on allegations of incomplete or defective service of process on multiple attorneys in such instances. These alternatives may have merit in an electronic filing environment because of their potential to reduce duplication, storage, and retention costs. Our decision to prohibit electronic filing renders multiple attorney service inadvisable.
Section 1.24(b)(2)(i)(A). The proposed regulation required an electronic mailing address. IRRC questions the imposition of electronic mailing addresses in the absence of electronic filing. The final regulation agrees with IRRC and deletes the requirement to supply an electronic mailing address although a party can voluntarily provide that address to facilitate service among the parties.
Section 1.25(a). Form of Notice of Appearance. The proposed regulation allowed a party to request email receipt of documents. It also required a party to provide their Pennsylvania Attorney I.D. Number and electronic mailing address. The Utility Bar wants the Commission to clarify whether electronic requests are in lieu of, or in addition to, hard copy requests. This provision, in their view, does not address a telefacsimile number request. IRRC suggests that the electronic filing provisions in this Section reflect the Commission's response to their suggested elimination of electronic filing.
The final regulation prohibits electronic filing. The final regulation requires a party to provide a telefacsimile number and adds the word Pennsylvania to the Attorney I.D. Number. The final regulation inserts the phrase ''Other Jurisdictions Admitted'' for pro hac vice appearances and lets a party provide an email address.
The telefacsimile line is added for regulatory consistency. Pennsylvania is added to clarify that the Attorney I.D. number is the Pennsylvania Attorney I.D. Otherwise, a pro hac vice counsel must list their jurisdictional admissions. One can voluntarily provide an email address to facilitate electronic communication.
Subchapter D. Documentary Filings
The proposed regulation restructured the form of a documentary filing in formal cases to make it easier to follow. The proposed regulation contained a format for exchanging electronic documents among the parties. The final regulation prohibits electronic filing.
Section 1.31. The proposed regulation addressed documentary filing requirements and procedures. The proposed regulation addressed the form, attachments, identifying information, and electronically submitted documents.
Section 1.31(a). The proposed regulation required pleadings to be in numbered format. The OSBA claims that § 1.31(a) is routinely ignored and should be abandoned. The Commission disagrees. This requirement is a longstanding requirement that can be addressed if ignored.
Section 1.31(b). The proposed regulation required attachment of documents relied on in the pleadings as exhibits although copies of writings or orders of record with the Commission need not be attached if the docket reference number of the proceeding in which they were filed was provided.
The Utility Bar opposes use of the word ''exhibits'' because it is misleading and denies attorneys any flexibility in defining how to attach their documents. The OSBA suggests that the Commission intended to include publicly available court decisions within the class of those not required to be produced.
The Commission deletes the word ''exhibit'' in response to the Utility Bar comment. The Commission agrees with the OSBA comment that reported court decisions do not have to be produced.
Section 1.31(c). The proposed regulation established requirements governing the information provided in any document filed with the Commission. The Utility Bar suggests the phrase ''caption of the proceeding'' for § 1.31(c)(2) and the phrase ''Within the title of the proceeding'' for § 1.31(c)(3). The Commission agrees.
Section 1.32. Form of Documents. The proposed regulation at § 1.32(d) requires that electronically filed documents comply with margin and spacing requirements applicable to other filed documents.
IRRC opposes electronic filing in this regulation. The Commission agrees. The final regulation eliminates this requirement because no document can currently be filed electronically with the Commission.
Section 1.33. Incorporation by Reference. The proposed language for § 1.33(b) deleted the existing 20-year time frame covering documents that cannot be incorporated by reference without determining if they are in the Commission's active files. IRRC and the OSBA suggest restoring some kind of cutoff to avoid subjecting every document to a burdensome determination of its status. The OSBA comment disputes the wisdom of requiring a party to contact the Commission to confirm that even a recently filed comment remains in the active records. This is burdensome and unnecessarily expensive. IRRC recognizes that 20 years may be too long and suggests that the Commission consider a shorter period.
The final regulation reinstates the existing rule. The Commission agrees that elimination of the current rule could be a burden if imposed on every document. The Commission realizes the existing 20-year rule reflects a requirement prior to electronic filing and duplication. Nevertheless, the Commission retains the existing rule pending examination of this issue in any subsequent rulemaking focused on electronic filing.
Section 1.35. Execution. The proposed regulation at § 1.35(a)(2) allowed an electronically filed document to contain an electronic signature in a form approved by the Commission.
IRRC opposes electronic filing. The final regulation deletes electronic filing in this provision based on IRRC's suggestion that such filing requirements are premature at this time.
Section 1.36. Verification. The proposed regulation expanded the pool of those who may sign the verification, to ''other authorized employees'' of the party of a corporation or association.
The Utility Group supports the use of verification but requests that the Commission include affidavits. IRRC and the Utility Group comments want the word ''utilized'' to replace the word ''permitted'' in the last sentence of § 1.36(a). The Utility Group believes this avoids confusion about verification in lieu of an affidavit. To the best of the Utility Group's knowledge, there are no specific provisions directing the use of verification or an affidavit in specified circumstances.
The Commission disagrees with replacing the word ''permitted'' with ''utilized'' in § 1.36(a). IRRC correctly notes that the word ''permitted'' means that verification is required. Verification is required in the final rules. The use of the word ''utilized'' is ambiguous. Counsel could argue that a party, not the rules, determines where verification or notarization is applicable. The final rules do want to allow the parties to choose between less expensive verification and more expensive notarization. The parties, however, cannot unilaterally decide when the regulations require them make that choice. The word ''utilized'' implies that and is to be avoided.
Section 1.37. Number of Copies. The proposed regulation at § 1.37(c) allowed a single copy of a document to be filed electronically with the Secretary's Bureau. IRRC opposes electronic filing in this regulation. The Commission agrees. The final regulation eliminates electronic filing of one copy.
Section 1.38. Rejection of Filings. The proposed regulation codifies existing Commission practice. The Commission can reject nonconforming filings or filings by persons that do not comply with Commission directives.
Three concerns underscore IRRC's objection. The proposal appears to preclude a utility from bringing or defending an action before the Commission for failing to satisfy any regulatory obligation. The statutory authority for this provision is unclear. Subchapter A of the Public Utility Code outlines the procedures for bringing matters to the Commission's attention. There is no indication the legislature intended to permanently foreclose Commission channels because a utility is not in full compliance with Commission regulations. Finally, IRRC questions the meaning of the phrase ''delinquent in its regulatory obligations'' and states that if the PUC believes this proposal is consistent with regulatory intent, it should explain the meaning of this phrase.
The Utility Bar has additional concerns. They agree with IRRC that the phrase ''delinquent in its regulatory obligations'' is unclear. The absence of any materiality standard concerns them. The Commission never rejects a pleading on minor grounds such as delinquencies in fine or assessment payments. The Commission must identify the reasons, establish a time limit, and allow a party an opportunity to cure any defect.
The Commission agrees with IRRC and revises the final rule accordingly. The final regulation does not automatically preclude access to Commission process. This more narrowly drawn provision is consistent with the Commission's authority in Section 501(b) of the Public Utility Code because it is a necessary and proper requirement not otherwise inconsistent with law. Moreover, any abuse can be addressed by an appeal from any staff action pursuant to § 5.44 of our regulations. The Commission also agrees with IRRC that the phrase ''delinquent in its regulatory obligations'' is vague. The final regulation removes the phrase.
Subchapter E. Fees
Section 1.42. Mode of payment of fees. The proposed regulation permitted other methods of payment in the future, such as credit cards, when the Commission is prepared to accept them.
IRRC suggests that the regulations replace the nonregulatory ''should'' with the regulatory ''shall'' in the second sentence if the Commission retains this revision.
The Commission agrees with IRRC. The final regulation replaces ''should'' with ''shall.'' The final regulation limits payment methods to the forms of payment allowed in the existing regulation given the Commission's limitations. The Commission concludes that electronic payments, like electronic filing, are inadvisable at this time.
Section 1.43. Schedule of fees payable to the Commission. The proposed regulation rescinded subsections (b), (c) and (d) of § 1.43 to reflect that the Commission no longer performs testing. The remaining fees are not changed.
The Ryan comment wants the Commission to impose a $25 fee for filing a Formal Complaint. The final regulation rejects this suggestion. The General Assembly recently rejected a $25 filing fee when adopting amendments to the Public Utility Code. Such a fee could undermine the warning service that formal complaints of this nature play in advising the Commission about potential service problems. A fee could also frustrate the role that such formal complaints play in helping the Commission meets its statutory obligation to ensure the delivery of adequate, efficient, safe and reasonable service under Section 1501 of the Public Utility Code.
Subchapter F. Service of Documents
The proposed regulations amended Section 1.56(a)(4) to provide that a faxed document must be transmitted prior to 4:30 p.m. local time. This thwarted attempts to send documents after offices close. Section 1.56(a)(5) provided for electronic service when agreed to by the parties. The proposed regulation revised §§ 1.53(b)(3), 1.54(b)(3), 1.56(a)(5), and 1.59(b)(1)(ii) to reflect electronic filing.
IRRC opposes electronic filing regulations and the Commission agrees. The final regulations prohibit electronic filing.
Section 1.53. Service by the Commission. The proposed regulation revised the applicability of this provision, revised the forms of service to allow electronic filing, made minor revisions to registered or certified mail requirements, and addressed provisions concerning change of address and alternative service.
Section 1.53(b)(1). Forms of Service. The proposed regulation allowed service by person, by anyone authorized by the Commission, or by electronic means. IRRC and the OSBA suggest that the word ''by'' be inserted between ''made'' and ''mailing'' in the first sentence. The Utility Group states that the proposed regulation excludes service by mail to a person's residence. The Utility Group wants the Commission to include residence in the final regulation.
The Commission agrees with IRRC and the Utility Group. The final regulation inserts ''by'' between ''made'' and ''mailing'' in the first sentence as well as ''residence'' after ''person's'' and before ''principle'' in § 1.53(b)(1).
Section 1.53(b)(3). Electronic Filing. The proposed regulation allowed the Commission to serve a recipient electronically. IRRC opposes electronic filing in this rulemaking. The Commission agrees with IRRC. The final regulation eliminates § 1.53(b)(3).
Section 1.54. Service by a party. The proposed regulation provided detailed provisions governing electronic service.
Section 1.54(b)(3). Section 1.54(b)(3) authorized electronic service among the parties. IRRC asks the Commission to review this provision as part of their response to IRRC's comment about electronic filing. The Ryan comment proposed a series of revisions to § 1.54 detailing who, what, when, and where service is provided, particularly relating to multi-attorney service.
The Commission agrees with IRRC. Section 1.54(b)(3) is revised to prohibit electronic filing in the final regulation. The final regulation does allow the parties to use electronic service voluntarily. However, even in those situations where the parties agree to use electronic filing, the final regulation at § 1.54(b)(3) requires that the filing be stamped on the due date. The Commission uses the term stamped instead of postmarked so that a filing party can use the United States Postal Service or an overnight delivery service. Corrected versions can be filed if they are not substantive and with the approval of the Presiding officer. This optional use of electronic communications preserves traditional filing given our adoption of IRRC's comment prohibiting electronic filing.
The Commission does not adopt the Ryan comment on detailed service provisions that include service on multiple numbers of attorneys. The Ryan comment is costly to private parties and the Commission. The suggestion imposes unnecessary burdens on the Commission to provide a minimal benefit. The only benefit seems to be that a party with resources sufficient to retain multiple numbers of attorneys is no longer required to assume the cost and burden of informing those attorneys. This suggestion effectively shifts duplication and distribution costs to the public and the Commission. The suggestion could also dramatically increase the number of challenges based on defective or imperfect service.
Section 1.55. Service on attorneys. This proposed regulation detailed service on attorneys including electronic service. The Ryan comment wants §§ 1.54(a) and 1.55(b) revised to authorize multiple attorney service.
The Commission disagrees with the Ryan comment on multiple attorney service. This comment essentially shifts duplication, distribution, and noncompliance responsibilities from a private party with resources sufficient to have multiple attorneys to the Commission and the public. This needlessly complicates litigation when the only discernible benefit seems to be that litigants no longer bear the cost of circulating information among their multiple counsels in complex litigation. This also increases the potential for parties to raise, and require the Commission to devote resources deciding, allegations of defective or imperfect service.
Section 1.56. Date of Service. The proposed regulation changed the time requirement to 4:30 p.m. prevailing local time in § 1.56(a). The proposed regulation also dates service for electronic filings as the date the document entered an information system designated by the recipient for receiving service and from which the recipient could retrieve the filing.
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1 Utility Bar, p. 7.
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