[36 Pa.B. 2097]
[Continued from previous Web Page] The Commission recognizes the potential for ambiguity. The final regulation at § 5.102(b) contains the added phrase ''to a Motion for Summary Judgment.'' This clarifies that a Motion for Summary Judgment can rely on supplemental pleadings and depositions, answers to interrogatories, further affidavits or verifications and admissions appended in support of, and the basis for, the motion.
Section 5.103. Motions. The proposed regulation replaced ''participant'' with ''party'' in the provision. The proposed regulation to § 5.103(b) required a written motion to contain a notice to plead stating that a responsive pleading is due within 20 days of service. There are no substantive comments. The final regulation retains the Notice to Plead requirements and adopts the proposed 20-day period for answering or objecting to a motion.
Subchapter B. Hearings
Section 5.201--5.203. General. The proposed regulation replaced ''participant'' with ''party'' in the provisions. There are no substantive comments.
Sections 5.211--5.212. Notice of Hearing. The proposed regulation replaced ''participant'' with ''party'' in the provisions. There are no substantive comments.
Sections 5.221--5.224. Prehearing and Other Conferences. The proposed revisions contained language changes for brevity and clarity. The Utility Group comments suggests that the final regulation contain an express statement requiring the parties to be prepared to cooperatively prepare a procedural schedule at the prehearing conference. The Commission reflects our agreement with this suggestion in § 5.222(d)(2)(A). Moreover, a violation could result in sanctions or other action consistent with § 5.371(a)(1).
Section 5.222. Initiation of prehearing conferences in nonrate cases. The final regulation for § 5.222(d)(1) and (e)(2) lists mandatory and permissive topics for prehearing conferences in nonrate proceedings.
Section 5.223. Authority of presiding officer at prehearing conferences. The final regulation for § 5.223(c) allows a presiding officer to participate in settlement discussion upon agreement of the parties given the importance of having a mediator or presiding officer familiar with a proceeding. However, in recognition of the fact that all parties may not always want the same mediator or presiding officer at a conference and any settlement, the final regulation allows a party to request that a different presiding officer or mediator be assigned upon the request of a party.
Section 5.224. Prehearing conference in rate proceedings. The final § 5.224(c) delineates the mandatory subjects of a rate proceeding. Section 5.224(e) provides the presiding officer with discretion to schedule additional prehearing conferences. The proposed § 5.224(f) is deleted in response to comments. The final § 5.224(f) language deletes the phrase ''when justice so requires'' as a redundant statement of the obvious.
Sections 5.231--5.235. Settlement And Stipulations.
Section 5.231. Offers of settlement. The proposed regulation for § 5.231 was changed to reflect a regulatory style that limited a section to one topic. The new § 5.231(d) provided that a proposal to settle a discovery dispute is not admissible against a counsel or party in response to prior comments.
The Ryan comment repeats an earlier concern that proposals intended to resolve a discovery dispute should be prohibited in any adjudication of the dispute.
The Commission denies the suggested revision. The proposed regulation reflects adoption of most of the previous Ryan comments on this provision. The proposed revision in § 5.231(d) effectively provides the relief requested. More language could prevent any discussion of any permutation whatsoever of any proposal even remotely related to a proposed resolution. The proposed language is not warranted given this draconian potential.
Section 5.232. Settlement petitions and stipulations of fact. The proposed revision to § 5.232 was changed to ''Settlement petitions'' and all mention of stipulations is removed. The revision also required filing with the Secretary. Section 5.232(b) required identification of the parties that agreed to the settlement or which did not respond to attempts to secure agreement. Section 5.232(d) provided for review by the presiding officer.
IRRC questions use of the phrase ''in the public interest'' in the proposed regulation for § 5.232(d).
The Ryan comment proposes substantial and detailed procedures governing partial, contested, or uncontested settlements. The Ryan comment proposes that an presiding officer receive a settlement if the parties do not want the pleadings withdrawn and that the settlement identify the parties opposing, supporting, or taking no position on the settlement. The Ryan comment also proposes that each party receive a complete copy of any settlement or stipulation and that a hearing be required and findings made on the settlement or stipulations for partial settlements. Finally, the Ryan comment proposes that the settlement come directly to the Commission if the parties waive exception rights.
The Utility Group opposes removal of stipulations as a possible settlement document. This is inconsistent with current practice wherein stipulations are sometimes included in partial and complete settlements. The Utility Group also states that § 5.232(d)(2) misstates the law by requiring a hearing on a settlement petition if a timely objection is filed and a hearing is necessary in the public interest. The Utility Group claims that hearings are not required if an objection to a settlement raises only questions of policy or law. In the Utility Group's view, a hearing is required only when a timely objection raises issues of material fact.
The Commission disagrees with IRRC on the need to either eliminate or define the public interest. The presiding officer's obligation to determine whether a settlement is in the public interest is a necessary corollary to the Commission's fundamental statutory obligations under the Public Utility Code, particularly sections 501, 1301 and 1501. 66 Pa.C.S. §§ 501, 1301 and 1501. In evaluating any matter, the Commission is obligated to balance the interests of consumers in adequate, safe and reliable service at just and reasonable rates with the interests of utilities in a fair return on facilities devoted to public service. The particular balance struck, however, will always be dictated by the specific facts, circumstances, policy, and applicable law. To provide guidance in this area, the Commission has issued a proposed policy statement that sets forth the factors it will consider in evaluating the merits of a settlement involving violations of the Public Utility Code and Commission regulations.3 As such, crafting a finite definition for public interest in these regulations is not necessary.
Commission agrees with the Utility Group that the final regulation should retain stipulations, be they complete or partial, given the usefulness of partial, complete, or contested settlements. Settlements at the Commission frequently contain stipulations of fact by some or all of the parties. However, the Commission disagrees with the Ryan comment on mandating hearings when there are partial settlements or stipulations of fact.
The Commission must provide the fundamental due process rights of notice and an opportunity to be heard, and must render decision based on the record so the court can review the agency's determination. This does not always require the full panoply of trial-type formalities but, rather, notice and an opportunity to defend in an orderly proceeding adapted to the nature of the case. Conestoga National Bank v. Patterson, 442 Pa. 289, 275, A.2d 6 (1971). Accordingly, due process is a flexible concept and ''calls for such procedural protections as the situation demands.'' Pa. Coal Mining Assoc. v. Insurance Dept., 471 Pa. 370 A.2d 685, 690 (1977).
The Commission takes this approach to the issue of hearings in settlements. We decline to specify by regulation what due process is required for settlements and partial settlements. We believe that the appropriate use of a trial-type hearing, as opposed to some other procedure for being heard, such as the filing of written objections or comments, is a decision better made initially by a presiding officer under § 5.232(d) settlement review and in accordance with the requirements of Pennsylvania law.4 In addition, there are times, and section 332(g) rate case proceedings are a good example, where formal objection periods are abbreviated due to the press of time. Consequently, flexibility is the rule.
The Commission does, however, adopt much of the Ryan comment with some modifications. Section 5.232(a) restores stipulations, whole or partial, to the final regulation. Section 5.232(b) requires the settling parties to identity the parties to the settlement that support, oppose, take no position, or did not have an opportunity to enter into the settlement. Section 5.232(c) provides for service of the settlement on the parties with an opportunity for comment. Section 5.232(d) provides for review by a presiding officer. Sections 5.232(e), (f), and (g) provide for an opportunity to comment and review a settlement. Section 232(g) clarifies when, and how, objections to settlements are filed if a case is not assigned to a presiding officer. This balances the competing alternatives of an absolute requirement of hearings with the practical need for flexibility.
Section 5.233. Refusal to make admissions or stipulations. The proposed regulation made minor language. There are no substantive comments.
Section 5.234. Presentation and effect of stipulations. The proposed regulation made minor language changes. The OSBA comment suggests that stipulations in which only some, not all, of the parties stipulate be binding only on the parties to the stipulation. The Commission agrees with the OSBA. The final regulations clarify that in § 5.234(a).
Section 5.235. Restrictive amendments to applications for motor carrier of passenger and household goods in use authority. The proposed regulation clarifies the criteria to be addressed when stipulations are used for motor carrier cases. The IRRC and OSBA comments recommend that the word ''shall'' in § 5.235(a) not be bracketed.
The Commission agrees with IRRC and the OSBA. The final regulation reflects the need for an explanation for restrictive amendments as settlements. These restrictions can reduce, not increase, the number of carriers or even service quality in any given area. For these reasons, an explanation provides the Commission with a better understanding of the value, if any, of a restrictive covenant.
Sections 5.241--5.245. Hearings.
Section 5.241. Attendances. The proposed regulation contained language changes for brevity and clarity. There are no substantive comments.
Section 5.242. Order of procedure. The proposed regulation replaced the word ''participant'' with ''party'' throughout the provision. The OCA comment suggests that oral rejoinder, if any, occur before cross-examination is conducted since it is the last opportunity to present direct testimony. The Utility Group urges the Commission to provide more detail on this provision because parties sometimes abuse the opportunity by orally presenting new testimony, issues, and exhibits on the last day of a hearing with minimal opportunity to respond. The Utility Group suggests that the final regulation provide a right to respond if and when that occurs in a hearing.
The Commission understands the comments on this issue as it goes to the heart of procedural due process. The revision to the final regulation at § 5.242(a) limits the opportunities for abuse. The final revision requires that oral rejoinder by a party with the burden of proof shall be conducted before any cross-examination of the witness.
Section 5.243. Presentation by parties. The proposed regulation revised the presentation provisions by requiring an opportunity to respond in § 5.243(a). Limits are set forth in § 5.243(b). Section 5.243(f) addresses friendly cross-examination based on the definition set forth in § 1.8.
The Utility Group asks that friendly cross-examination be prohibited or discouraged because they believe it is repetitious and of minimal value. The final regulation retains the option for friendly cross-examination because that procedure is not always repetitious or of no value. The Commission believes that challenges to the inappropriate use or abuse of friendly cross-examination are better made on a case-by-case basis instead of a general rule. Moreover, § 5.243(e) reinforces a party's right to prevent the inappropriate or abuse of presentation rights.
Section 5.245. Failure to appear, proceed, or maintain order in a proceeding. The proposed regulation revised the language in the provision for clarity and brevity.
IRRC suggests that the final § 5.245 rule codify application of this provision to intervenors. The Utility Group states that the Commission should go further and allow a presiding officer to punish obstructive behavior by dismissing any complaint, application, petition, or intervenor. The Ryan comment suggests that the Commission address obstructive behavior in a new regulation at § 5.246, specifically noncompliance with prehearing orders and discovery, by granting a continuance until the exhibits become available or there is a complete response to the discovery.
We adopt IRRC's requested codification as § 5.245(c) in the final regulation. We decline to adopt the other suggestions. These issues are better presented to a presiding officer and not in a general rulemaking. Nothing in the current or final regulations prevents counsel from requesting a continuance, seeking dismissal of an application, complaint, petition, or even intervenor.
Our final rules are general rules of future applicability. Final rules are intended to establish general parameters. The final rules should not adopt suggestions that could encourage interlocutory appeals or needlessly narrow a presiding officer's discretion to address failures to appear, determine the order of proceedings, or maintain order.
Sections 5.251--5.253. Transcript. The proposed regulation made language changes for brevity and clarity. The word ''party'' replaced the word ''participant'' in the provisions. The OCA suggests that the transcript correction period be shortened. The Commission agrees with the OCA. The final regulation at § 5.253(c) shortens the transcript correction period.
Subchapter C. Interlocutory Review
Interlocutory Review: Sections 5.301--5.306. The proposed regulation made language changes for brevity, clarity and consistency. The word ''party'' replaced ''participant'' throughout the provisions. Section 5.306 provided for transmission by telefacsimile when expedited notification proved necessary.
The IRRC comment suggests that Section 5.306 be revised to reflect the Commission's response to IRRC's opposition to electronic filing.
The Commission retains the § 5.306 language. Section 5.306's reference to electronic filing is not mandatory. The reference is intended for use in exceptional circumstances and is accompanied by a requirement to file a hard copy. Exigent circumstances of the type envisioned by this regulation may, of necessity, require electronic means to accomplish expedited notice. The Commission made ministerial corrections to the final regulatory provisions in § 5.304(e) and (f) without changing their meaning.
Subchapter D. Discovery
Sections 5.321--5.324. General.
Section 5.321. General. The proposed regulation replaced ''participant'' with ''party'' throughout the provision. There are no substantive comments. The final regulation adopts the proposed regulation. The final regulation clarifies that § 5.321(f)(5) applies to rate increase cases.
Section 5.322. Informal agreement regarding discovery or deposition procedure. The proposed regulation replaced ''participant'' with ''party'' throughout the provision. There are no substantive comments. The final regulation adds the ministerial phrase ''authorized to administer oaths'' and adopts the proposed regulation.
Section 5.323. Hearing preparation material. The proposed regulation replaced ''participant'' with ''party'' throughout the provision. The proposed regulation also added surety, indemnitor, and agent to the list. There are no substantive comments.
Section 5.324. Discovery of expert testimony. The proposed regulation replaced ''participant'' with ''party'' throughout the provision.
IRRC and the Utility Group identifies an alleged conflict between the language in this provision and the exclusionary language of § 5.323(a).
The Commission's final regulations at § 5.324(a) and 5.323(a) must be read in light of § 5.321 and Pa.R.C.P. 4003.3--4003.5, which formed the basis for these regulations. The apparent ''allowance'' language of § 5.324(a) contrasted with the apparent ''preclusion'' language in § 5.323(a) is resolved by reference to the Civil Rules and § 5.321(a). Section 5.321(c) allows discovery not otherwise privileged and identification is provided. These regulations allow the discovery of hearing preparation material and expert testimony so long as they are not privileged. Section 5.321(a) establishes the privilege exclusion, § 5.323(a) permits discovery so long as the material is not privileged or mental impressions for hearing preparation, and § 5.324(a) applies the rule for discovery but expands it to hearing preparation material. The rules when read together allow the discovery of opinions so long as they are not privileged. This explains the apparent preclusion in § 5.323(a) with the apparent inclusion in § 5.324(a).
Sections 5.331--5.332. Timing and Supplemental Responses. The proposed regulation replaced ''participant'' with ''party'' throughout the provision. There were no substantive comments.
Sections 5.341--5.351. Types of Discovery.
Section 5.341. Written interrogatories to a party. The proposed regulation replaced ''participant'' with ''party'' throughout the provision.
The Utility Group suggests that the final § 5.341(b) regulation require service only on ''active'' parties and a certificate of service with the Secretary. The OCA recommends that the Commission rescind the prohibition against multi-part interrogatories set forth in § 5.341(d) of the existing regulation.
The Commission does not agree with the Utility Group on the need to differentiate between ''active'' and ''inactive'' parties in these general regulations for the reasons discussed throughout this rulemaking. The Commission also rejects the request to rescind the prohibition against multi-part interrogatories. The Commission does so because multi-part interrogatories may seek information on multiple matters that may or may not relate to one specific issue. By prohibiting this approach, the Commission's rules require the parties to focus on one issue in each interrogatory. In addition, a multi-part interrogatory may produce responses or objections that are so general that it is difficult to identify exactly what part of what multi-part interrogatory the responding party is addressing.
Section 5.342. Answers or objections to written interrogatories by a party. The proposed regulation replaced ''participant'' with ''party'' throughout the provision. The rule clarified the process for answering or objecting to interrogatories. The proposed rulemaking differentiated between rate cases, subject to section 1308 of the Public Utility Code, and other proceedings.
Section 5.342(a). The Utility Group and the OSBA comments oppose the verification requirement for interrogatories under § 5.342(a)(6). The Utility Group notes that interrogatories are answered by many persons, particularly in rate cases, and that it is unwieldy to impose verification. The Utility Group proposes an alternative requirement that a party answer each interrogatory fully, completely, and truthfully. The OSBA wonders whether the attorney or the experts must verify.
The Commission does not agree that verification should be rescinded. Verification is an inexpensive alternative to notarization, enhances the credibility and accountability of the responding party, and better identifies who says what in complex proceedings. Verification provides an incentive for counsel to be even more familiar with a client's responses than might be the case without verification.
Section 5.342(d). IRRC and the Utility Group note that § 5.342(d) and (d)(1) seems to be contradictory. Section (d) requires the filing of answers and objections on a 15-20 day difference in rate or nonrate proceedings. subsection (d)(1) states that objections are to be filed in 10 days for rate cases and 30 days for other cases. IRRC and the Utility Group urge the Commission to rectify the problem. The Utility Group urges the Commission to retain the current rule.
The Commission agrees with IRRC on revising § 5.342(d) and (d)(1). The final rule deletes substantial portions of the proposed regulation and provides that all objections are to be served within 10 days of service of the interrogatories under § 5.61(a)(2). A certificate of service must also be filed with the parties and the Secretary. The final rule also retains the difference between rate and nonrate cases whenever possible, in this case the 15--20 day rules for answers to interrogatories, given the statutory limits of section 332(g) of the Public Utility Code.
Section 5.343. Procedures in deposition by oral examination. The proposed rulemaking made ministerial language changes that do not affect the substantive provisions. There are no substantive comments. The Commission adopts the proposed rule as final.
Section 5.344. Approval by presiding officer. The proposed rulemaking substituted ''party'' for ''participant'' throughout the provision. There are no substantive changes. There are no comments.
Section 5.345. Procedure on depositions by written questions. The proposed rulemaking substituted ''party'' for ''participant'' throughout the provision. There are no substantive changes. There are no comments.
Section 5.347. Taking of depositions--objections. The proposed rulemaking substituted ''party'' for ''participant'' throughout the provision. There are no substantive changes. There are no comments.
Section 5.348. Transcript of deposition, objections, and filing. The proposed rulemaking substituted ''party'' for ''participant'' throughout the provision. There are no substantive changes. There are no comments. The Commission adopts the proposed rule as final.
Section 5.349. Requests for documents, entry for inspection and other purposes. The proposed rule replaced ''participant'' with ''party'' throughout the provision. The OSBA opposes the verification requirement since the responses are required to only state that inspection and related activities are permitted.
The Commission adopts a final rule by adding the phrase ''or notarized, as permitted by § 1.36'' in § 5.349(d) of the final regulation. Verification is retained in the final regulation given that § 5.349(b) provides a party with an option to provide copies at the requesting party's expense or to permit inspection and copying. Verification ensures that the proffered inspection or copying happens in a reasonable and non-obstructive manner.
Section 5.350. Request for admission. The proposed rule replaced ''participant'' with ''party'' throughout the provision. There are no comments. The Commission adopts the proposed rule as final. The final regulation adds a phrase in § 5.350(d)(3) stating that ''grounds for objections shall be specifically stated.''
Section 5.351. On the record data requests. The proposed regulation essentially clarified operation of the current rule. The OSBA comment urges the Commission to clarify that the option to make a request orally or in writing in § 5.351(a) applies only to the requesting party.
The Commission adopts a rephrased provision for § 5.351(a). The revision inserts a second sentence to clarify that the ''party'' making the request in the first sentence can do so orally or in writing. Other ministerial changes are made as well.
Sections 5.361--5.364. Limitations. The proposed rule replaced ''participant'' with ''party'' throughout the provision. There are no comments. The Commission adopts the proposed rule.
Sections 5.371--5.373. Sanctions. The proposed rule replaced ''participant'' with ''party'' throughout the provision. The proposed regulation also extended the deadline for § 5.371(c) decisions from 15 to 20 days. There are no comments. The Commission adopts the proposed rule.
Subchapter E. Evidence and Witnesses
Sections 5.401--5.409. Evidence. The proposed regulation replaced ''participant'' with ''party'' throughout the provisions. The proposed regulation also revised § 5.402(b).
The IRRC and OCA comments suggest deletion of the word ''By'' in § 5.401(b)(2)(iii) in the phrase ''By considerations of undue delay or waste of time.'' The Commission agrees.
Sections 5.411--5.414. Witnesses. The proposed regulation replaced ''participant'' with ''party'' throughout the provisions. Other ministerial language changes are made as well.
The OSBA suggests that § 5.412(f) contain a revision establishing a general process for developing the record in a proceeding. The OSBA suggests that when the utility has the burden of proof, the utility files its written testimony followed sequentially by intervenor direct testimony, rebuttal testimony by all the parties, and surrebuttal testimony by all parties.
The Commission appreciates the OSBA's concerns about witness procedure. This concern varies from case to case and for that reason is better addressed by a presiding officer.
Sections 5.421--5.431. Subpoenas and Protective Orders. The proposed regulation replaced ''participant'' with ''party'' throughout the provisions. This proposed regulation is ministerial and does not impact the substantive meaning.
The OSBA reference to the word ''answer'' in their comment suggests that a party could file an answer to a subpoena in addition to appearing, objecting, or producing documents. The Utility Group suggests a provision be added to § 5.423 to include requests for a protective order for submittals in nonadversarial proceedings.
The Commission's reference to ''answer'' is for timeframe and content only. The word should not be read to authorize an answer as an alternative to objecting, making an appearance, or producing documents set forth in § 5.421(b)(1). For that reason, the final regulation at § 5.421(b)(3) specifies that a ''response'' shall be filed with the Commission and presiding officer within 10 days of service. This avoids ambiguity and is consistent with the OSBA's comment for a 10 day reply period.
The Commission agrees with the Utility Group. The final rule contains a new § 5.423(b) crafting a general rule for nonadversarial proceedings. The final regulation refers such requests to the Commission's Law Bureau for a recommended disposition. The remaining sections are revised to reflect inclusion of this request.
Sections 5.431. Close of the Record. The proposed regulation revised the provision for clarity and brevity. No comments were filed. The final rule adopts the proposed regulation with some additional ministerial language that does not change the substantive provisions.
Subchapter F. Presiding Officers
Sections 5.481--5.486. Presiding Officers. The current regulation governs the authority of a presiding officer. The current regulation in § 5.485(a) authorizes a presiding officer to note on the record a participant or counsel of record's disregard of a presiding officer's rulings on matters of order and procedure. The presiding officer may also prepare a special written report to the Commission when necessary.
The proposed regulation revised the language without a substantive change. There are no comments.
The final regulation adopts the proposed revisions. The final regulation does not require the presiding officer to note noncompliance as is the case in the current regulation. Instead, the final regulation changes ''shall'' to ''may'' so that a presiding officer has the ability to distinguish between minor infractions compared to major infractions that are subject to the notation on the record rule.
Subchapter G. Briefs
Sections 5.501--5.502. Briefs. The proposed rulemaking intended to clarify the existing distinction between rate cases and nonrate cases. Rate cases are shortened proceedings subject to section 332(g) of the Public Utility Code. Nonrate cases are not. Consequently, the linguistic distinction and regulations often makes these distinctions throughout the regulations. Section 5.502(d) is one such place.
Main or Reply briefs are filed in rate cases. Initial or Response briefs are filed in nonrate cases. The Utility Group notes that the revision to § 5.502(d) inadvertently removes references to the filing of Initial Briefs. IRRC questions whether this is intentional. The OSBA comment requests insertion of language specifically referencing the number of copy obligation for parties in the final regulation. The OSBA also identified typographical errors.
The Commission agrees with IRRC, the Utility Group, and the OSBA. The final regulation for § 5.502(a) requires that copies be served in compliance with § 1.59(b)(1). Sections 5.502(b) and 5.502(c) are revised to reflect the continuing difference between nonrate and rate case filings. In response to the Utility Group comment in § 5.535 regarding the misuse of reply exceptions, § 5.502(d) now allows the filing of amicus curiae briefs. This will minimize any misuse of § 5.535 reply exceptions and maximizes due process opportunities to provide information on issues of interest to the Commission. Section 5.502(e) inserts the word ''Initial'' to include this brief as one of the briefs subject to filing deadlines.
Subchapter H. Exceptions, Appeals and Oral Argument
Section 5.532. Oral argument before presiding officer. The proposed regulation substituted ''party'' for ''participant'' throughout the provision. There are no comments.
Section 5.533. Procedure to except to initial, tentative, and recommended decisions. The proposed regulation substituted ''party'' for ''participant'' throughout the provision. IRRC suggests insertion of a bracket in the third sentence of § 5.533(c) wherein the existing word ''shall'' appears after ''exception'' and before ''exceptions shall'' in the proposed regulation. The Commission agrees with IRRC and brackets the word. There are no other comments.
Section 5.535. Replies. The proposed regulation substituted ''party'' for ''participant'' throughout the provision. The IRRC comment suggests that the word ''shall'' be bracketed and the word ''must'' be in bold type in § 5.535(a). The Utility Group comment urges the Commission to insert language permitting a party to file a reply in support of a party's position and prohibit a party from raising new arguments in support thereof.
The OSBA comment notes that the current § 5.535(b) seems to conflict with § 5.533(e). Section 5.535(b) allows last-day filing of reply exceptions subject to the 3-day rule. Section 5.533(e) prohibits last-day filing of reply exceptions and the use of the 3-day rule.
The Commission agrees with IRRC. The final regulation deletes the word shall consistent with our agreement.
The Commission also recognizes the Utility Group's concern that due process should allow a party to respond to new supporting arguments not raised by a party let alone in another reply raising new issues or arguments in the guise of allegedly supporting a party's position. The final regulations address the Utility Group's concern about new material and due process in two ways. Section 5.535(a) expressly prohibits the raising of new arguments or issues in a reply by limiting a reply to arguments or issues identified in an exception. Section 5.502(d) allows the filing of amicus curiae briefs to facilitate the raising of views that might otherwise appear as new arguments or issues in § 5.535 replies. Any exception or replies that transgresses these prohibitions are subject to a Motion to Strike.
The Commission recognizes the OSBA's argument about possible contradiction between §§ 5.533(e) and 5.535. In response to this concern, the general rule in § 5.535(b) provides that the mailbox rule cannot be used for reply exceptions unless the Commission determines otherwise. This language now mirrors the language in § 5.533(e) of the existing regulation addressing replies. The Commission also recognizes that in appropriate circumstances, such as when the Commission suspends the normal exception and reply periods, the mailbox rule may be appropriate.
Section 5.538. Oral argument before the Commission. The proposed regulation contained no substantive revisions to this section.
The Ryan comment urges the Commission to insert a new § 5.538(d) on oral argument before the Commission. The Ryan comment requests a governing process for granting oral argument before the Commission given the evolving nature of utility regulation and issues. The Ryan comment recognizes the existing regulation at § 5.538 but notes that parties rarely request it and the Commission rarely orders it sua sponte. The Ryan comment recommends a process similar to the Act 294 process wherein two Commissioners can request oral argument.
The Commission declines to adopt this suggestion. It is not clear if only two should have the authority to compel three other Commissioners to participate in oral argument. It is also not clear if any oral argument granted can be revoked based on a majority vote, if only two Commissioners are required to grant review, or upon a majority vote of the majority voting to grant review. Is it really unclear if the majority or two that granted oral argument can then vote to rescind any oral argument they originally supported. Finally, the infrequent use of the existing regulation undermines any professed need for an additional regulation.
Subpart I. Reopening, Reconsideration and Rehearing
Sections 5.571--5.572. The proposed regulation revised the language without substantive change to the provisions. There are no comments.
Appendix J. Reports of Compliance
Sections 5.591--5.592. The proposed regulation in § 5.591(a) required a party that had to do or perform an act to file a notice within 30 days of the effective date stating that the requirement has or has not been met. Section 5.592 deletes the existing reference to sections 1307 and 1308 of the Public Utility Code. Both provisions change ''participant'' to ''party'' as well.
The OCA comment suggests a revision to § 5.592(d) stating that rates cannot go into effect in a compliance tariff filing if an exception is filed. The OCA further suggests that the Commission should review and make a determination on the exceptions in order to avoid the additional cost and burden of permitting rates to go into effect and then issuing a subsequent order amending or denying portions of the compliance filing. The OSBA comment seeks a regulatory mandate that a clean and red-lined electronic copy be required so the parties can quickly identify the changes.
The Commission rejects these proposals. The Commission's long-standing practice in cases wherein complex exceptions are filed to a voluminous rate case is to allow a rate to sometimes go into effect, depending on the circumstances, to avoid undue harm to the utility or the consumers. These determinations are fact and issue based. As with the Ryan comment seeking detailed provisions on obstructive behavior, the OCA seeks a general rule of uniform applicability when a case-by-case approach is better.
The OSBA's suggestion about red-lined and original copies is a good idea in an electronic filing regulation. The Commission is reluctant to mandate a red-lined copy because many tariff filings are made by smaller companies that lack the technological means to inexpensively provide a red-lined copy. Moreover, the issue of a red-lined copy can be made to the presiding officer during the proceeding, requested in the exceptions as part of the Commission's order, or ordered by the Commission in the Final Order. For these reasons, the Commission is not imposing this requirement.
Subchapter K. Appeals to Court
Sections 5.631--5.632. The proposed regulation revised the language without substantive change to the provisions. There are no comments.
Accordingly, under 66 Pa.C.S. §§ 501, 504--506, 1301 and 1501, and sections 201--204 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201--1204) and the regulations promulgated thereunder in 1 Pa. Code §§ 7.1, 7.2 and 7.5, the Commission proposes adoption of the final regulations as revisions of the rules pertaining to practice and procedure before the Commission in Chapters 1, 3 and 5, as noted and set forth in Annex A; Therefore,
It Is Ordered That:
1. The regulations of the Commission, 52 Pa. Code Chapters 1, 3 and 5, are amended by amending §§ 1.2--1.4, 1.7, 1.8, 1.11, 1.15, 1.21--1.25, 1.31, 1.33, 1.35--1.37, 1.42, 1.43, 1.51, 1.53--1.56, 1.58, 1.59, 1.61, 1.71--1.73, 1.76, 1.81, 1.82, 1.86, 3.1--3.4, 3.6--3.8, 3.10, 3.111--3.113, 3.361, 3.363, 3.501, 3.502, 3.551, 3.601, 3.602, 5.1, 5.12--5.14, 5.22, 5.24, 5.31, 5.41--5.44, 5.51--5.53, 5.61--5.63, 5.65, 5.66, 5.73--5.75, 5.91--5.94, 5.101--5.103, 5.201--5.203, 5.212, 5.221--5.224, 5.231--5.235, 5.241--5.243, 5.245, 5.251--5.253, 5.302--5.306, 5.321--5.324, 5.331, 5.332, 5.341--5.345, 5.347--5.351, 5.361, 5.362, 5.364, 5.371--5.373, 5.401, 5.402, 5.404--5.409, 5.412, 5.421, 5.423, 5.431, 5.481--5.486, 5.501, 5.502, 5.532, 5.533, 5.535, 5.571, 5.572, 5.591, 5.592 and 5.631--5.633; by adding §§ 1.38, 3.6a and 5.32; and by deleting §§ 3.5, 3.9 and 5.54 to read as set forth in Annex A.
(Editor's Note: The proposal to amend § 1.32 (relating to form of documents) has been withdrawn by the Commission.)
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 by the designated standing committees of both houses of the General Assembly, and for review by IRRC.
5. The Secretary shall deposit this order and Annex A with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
6. These regulations shall become effective upon publication in the Pennsylvania Bulletin.
7. The contact person for this final-form rulemaking is Joseph K. Witmer, (717) 787-3663; or Jaime M. McClintock, (717) 783-2811. 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.
8. A copy of this order shall be served upon all persons who submitted comments in this rulemaking proceeding.
JAMES J. MCNULTY,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 1555 (April 1, 2006).)
Fiscal Note: Fiscal Note 57-236 remains valid for the final adoption of the subject regulations.
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.
(a) This subpart shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which it is applicable. The Commission or presiding officer at any stage of an action or proceeding may disregard an error or defect of procedure which does not affect the substantive rights of the parties.
(b) The singular includes the plural, and the plural, the singular. Words used in the masculine gender include the feminine and neuter. Words used in the past or present tense include the future.
(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 party.
(d) These liberal construction provisions apply with particularity in proceedings involving pro se litigants.
(e) Subsection (a) supersedes 1 Pa. Code § 31.2 (relating to liberal construction).
§ 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:
(1) By first-class mail:
Secretary
Pennsylvania Public Utility Commission
Post Office Box 3265
Harrisburg, Pennsylvania 17105-3265(2) In person or by mail other than first-class:
Secretary
Pennsylvania Public Utility Commission
Commonwealth Keystone Building
400 North Street
Harrisburg, Pennsylvania 17120(b) Subsection (a) is identical to 1 Pa. Code § 31.4 (relating to information and special instructions).
§ 1.4. Filing generally.
(a) Submittals, pleadings and other documents filed with the Commission should be addressed as follows:
(1) By first-class mail:
Secretary
Pennsylvania Public Utility Commission
Post Office Box 3265
Harrisburg, Pennsylvania 17105-3265(2) In person or by mail other than first-class:
Secretary
Pennsylvania Public Utility Commission
Commonwealth Keystone Building
400 North Street
Harrisburg, Pennsylvania 17120(b) Submittals, pleadings and other documents filed with the Commission should clearly designate the docket number or similar identifying symbols, if any, employed by the Commission, and should set forth a short title. The identity of the individual making the submission, including name, mailing address and status (for example, party, attorney for a party, and the like) must appear on the document, along with any special instructions for communication by other than first class mail.
(c) Submittals and pleadings, including documents filed under Chapter 5 (relating to formal proceedings) must also comply with Subchapter D (relating to documentary filings).
(d) In a proceeding when, upon inspection, the Commission is of the opinion that a submittal or pleading tendered for filing does not comply with this subpart or this title or, if it is an application or similar document, does not sufficiently set forth required material or is otherwise insufficient, the Commission may decline to accept the document for filing and may return it unfiled, or the Commission may accept it for filing and advise the person tendering it of the deficiency and require that the deficiency be corrected.
(e) The Commission may order redundant, immaterial, impertinent or scandalous matter stricken from documents filed with it.
(f) Subsections (a)--(e) are identical to 1 Pa. Code § 31.5 (relating to communications and filings generally).
§ 1.7. Sessions of the Commission.
Public meetings of the Commission ordinarily will be held in its offices in the Commonwealth Keystone Building, Harrisburg. Schedules for public meetings can be obtained from the Commission Secretary or viewed on the Commission's 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:
Act--66 Pa.C.S. §§ 101--3315 (relating to the Public Utility Code).
Adjudication--An order, decree, decision, determination or ruling by the Commission affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of the parties to the proceeding in which the adjudication is made.
Applicants--In proceedings involving applications for permission or authorization which the Commission may give under statutory or other authority delegated to it, the parties on whose behalf the applications are made.
Adversarial proceeding--A proceeding initiated by a person to seek authority, approvals, tariff changes, enforcement, fines, remedies or other relief from the Commission which is contested by one or more other persons and which will be decided on the basis of a formal record.
Electronic mail--A means of dispatching or receiving a submittal in relation to a Commission matter through electronic means.
Formal complaint--A verified written document filed with the Commission under 66 Pa.C.S. § 701 (relating to complaints) requesting a legal proceeding before a presiding officer or a mediator.
Formal investigation--A matter initiated by the Commission or Commission staff that results in a formal record.
Formal proceeding--A matter intended to produce a formal record.
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, 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 party who does not disagree with the witness' position on an issue.
Individual--A natural person.
Informal complaint--A document or communication to the Commission seeking action on a matter that lacks the legal or other requirements of a formal complaint under 66 Pa.C.S. § 701 and does not involve a legal proceeding before a presiding officer or mediator.
Informal investigation--A matter initiated by the Commission staff that may result in a formal complaint, a settlement or other resolution of the matter or termination by letter.
Informal proceeding--A matter not intended to produce a formal record.
Initial decision--A decision by a presiding officer which becomes final unless timely exceptions are filed by a participant, the Commission requests review upon its own motion or as otherwise established by the act.
Intervenor--A person intervening or petitioning to intervene as a party as provided by §§ 5.71--5.76 (relating to intervention).
Mediation--An informal, nonadjudicative Commission process through which a Commission-designated mediator assists the parties in an attempt to reach a mutually acceptable resolution.
Mediator--An individual designated to conduct a mediation.
Nonadversarial proceeding--A proceeding initiated by a person which is not contested or a proceeding initiated by the Commission or at the request of a person to develop regulations, policies, procedures, technical rules or interpretations of law.
Notarial officer--An officer authorized under § 5.346 (relating to persons before whom depositions may be taken) to take depositions for use before the Commission or presiding officer.
Party--A person who appears in a proceeding before the Commission.
Person--Except as otherwise provided in this subpart or in the act, the term includes individuals, corporations, partnerships, associations, joint ventures, other business organizations, trusts, trustees, legal representatives, receivers, agencies, governmental entities, municipalities or other political subdivisions.
Petitioners--Persons seeking relief, not otherwise designated in this section.
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 formal proceeding.
Presiding officer--A person designated by the Commission to preside over a matter.
Principal--A party with power to authorize its counsel to enter into stipulations or settlement agreements.
Proof of service--A certificate of service which complies with §§ 1.57 and 1.58 (relating to proof of service; and form of certificate of service).
Protestants--Persons objecting on the ground of private or public interest to the approval of an application or other matter which the Commission may have under consideration.
Rate proceeding--An on the record proceeding brought by or before the Commission, the purpose of which is to determine the justness and reasonableness of a proposed or present rate for utility service, including, but not limited to, proceedings initiated under sections 1307, 1308, 1310 and 1312 of the act.
Recommended decision--An opinion and order submitted for the approval of the Commission by the presiding officer.
Respondents--Persons subject to a statute or other delegated authority administered by the Commission, who are required to respond to an order or notice issued by the Commission instituting a proceeding or investigation on its own initiative or otherwise.
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.
Staff--The Commission's Office of Trial Staff prosecutor or Law Bureau staff counsel and other Commission employees participating in a proceeding before the agency.
Statutory advocate--The Office of Trial Staff, the Office of Consumer Advocate and the Office of Small Business Advocate.
Submittal--An application, amendment, exhibit or similar document involving matters filed in an adversarial or nonadversarial proceeding.
Telefacsimile transmittal--A means of dispatching or receiving a submittal in a Commission matter through electronic means that prints a hard copy facsimile of a document in a legible form at the recipient's machine.
Tentative decision--An order of the Commission which becomes final unless exceptions are filed by a party within the time period specified by statute or as set forth in the order.
Trade secret--A private formula, pattern, device, cost study or compilation of information which is used in a business and which, if disclosed, would provide the opportunity to obtain an advantage over competitors who do not know or use it.
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).
(b) Subsection (a) supersedes 1 Pa. Code § 31.3 (relating to definitions).
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 Secretary.
(2) On the date deposited with an overnight express 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.
(b) Failure to include a legible delivery receipt with a document submitted in accordance with the methods specified in subsection (a)(2) or (3) may result in an untimely filing.
(c) A document transmitted by telefacsimile to the Commission will not be accepted for filing within the meaning of this section.
(d) Subsection (a) supersedes 1 Pa. Code § 31.11 (relating to timely filing required).
§ 1.15. Extensions of time and continuances.
(a) Extensions of time shall be governed by the following:
(1) Except as otherwise provided by statute, whenever under this title or by order of the Commission, or notice given thereunder, an act is required or allowed to be done at or within a specified time, the time fixed or the period of time prescribed may, by the Commission, the presiding officer or other authorized person, for good cause be extended upon motion made before expiration of the period originally prescribed or as previously extended. Upon motion made after the expiration of the specified period, the act may be permitted to be done where reasonable grounds are shown for the failure to act.
(2) 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 filed at least 5 days prior to the hearing date.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 31.15 (relating to extensions of time).
Subchapter C. REPRESENTATION BEFORE THE COMMISSION § 1.21. Appearance.
(a) Individuals may represent themselves.
(b) Except as provided in subsection (a), persons in adversarial proceedings shall be represented 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 § 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, 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) and Chapter 14 of the act (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) A paralegal working under the direct supervision of an attorney admitted to the Pennsylvania Bar.
(2) An appropriate individual including a family member or other individual or entity with oral or written authority.
(e) Subsection (a) supersedes 1 Pa. Code § 31.21 (relating to appearance in person).
§ 1.22. Appearance by attorney or certified legal intern.
(a) Subject to § 1.21(a) (relating to appearance), 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 this Commonwealth may appear before the Commission in accordance with the Pennsylvania Bar Admission Rules.
(c) A law student meeting the requirements of 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).
(d) Subsection (a) supersedes 1 Pa. Code § 31.22 (relating to appearance by attorney).
§ 1.23. Other representation prohibited at hearings.
(a) Persons may not be represented at a hearing before the Commission or a presiding officer except as stated in § 1.21 or § 1.22 (relating to appearance; and appearance by attorney or certified legal intern).
(b) Subsection (a) supersedes 1 Pa. Code §§ 31.23 (relating to other representation prohibited at hearings).
§ 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 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 Secretary promptly.
(b) Attorneys.
(1) Appearance by initial pleading. An attorney who signs an initial pleading in a representative capacity shall be considered to have entered an appearance in that proceeding.
(2) Appearance in all other instances. An attorney shall file with the Secretary a written notice of appearance.
(i) Content of notice. Initial pleadings, entries of appearance and notices of withdrawal must include:
(A) The attorney's name, mailing address and electronic mailing address, if available.
(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 represented.
(ii) Filing.
(A) Appearance. The notice of appearance shall be served on the 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 be reported to the Secretary and the parties promptly.
(3) Withdrawal. An attorney may withdraw an appearance by filing a written notice of withdrawal with the Secretary. The notice shall be served on the parties and the presiding officer, if one has been designated.
(c) Supersession. Subsections (a)--(e) supersede 1 Pa. Code § 31.24 (relating to notice of appearance).
§ 1.25. Form of notice of appearance.
(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 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 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)
_________________
Telefacsimile Number
Including Area Code
_________________
Pennsylvania Attorney I.D. No./
Other Jurisdiction(s) Admitted
_________________
Electronic Mail Address
(Optional)(b) Subsection (a) is identical to 1 Pa. Code § 31.25 (relating to form of notice of appearance).
Subchapter D. DOCUMENTARY FILINGS § 1.31. Requirements for documentary filings.
(a) Form. Pleadings must be divided into numbered paragraphs.
(b) Attachments. Copies of documents relied upon in the pleadings must be identified and attached. Copies of reported court decisions, writings or orders already of record with the Commission need not be attached to the 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. Documents filed with the Commission in a proceeding must clearly contain the following information:
(1) The docket number or similar identifying symbols, if any.
(2) The title or caption of the proceeding before the Commission.
(3) Within the title of the document, the name of the person on whose behalf the filing is made. If more than one person is involved, only a single name is necessary.
(d) Supersession. Subsections (a)--(c) supersede 1 Pa. Code § 33.1 (relating to title).
§ 1.33. Incorporation by reference.
(a) Documents on file with the Commission may be incorporated by reference into a 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 filed.
(b) Documents on file with the Commission for more than 20 years may not be incorporated by reference in a current document unless the person filing the current document first ascertains that the earlier document continues to be readily available in the active records of the Commission.
§ 1.35. Execution.
(a) Signature. A pleading, submittal or other document must be signed in ink by the party in interest, or by the party's attorney, as required by subsection (b), and show the office and mailing address of the party or attorney. An original hard copy must be signed, and other copies filed shall conform thereto unless otherwise ordered by the Commission.
(b) Signatory.
(1) A pleading, submittal or other document filed with the Commission must be signed by one of the following:
(i) The person filing the documents, and severally if there is more than one person so filing.
(ii) An officer if it is a corporation, trust, association or other organized group.
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3 Proposed Policy Statement for Litigated and Settled Proceedings Involving Violations of the Public Utility Code and Commission Regulations, Docket No. M-0005187 (Order adopted Aug. 11, 2005).
4 See, e.g. Chester Water Authority v. Pa. PUC, 868 A.2d 384 (Pa. 2005)(constitutional procedural due process is a flexible concept, and thus, implicates procedural protections as each particular situation demands); Lehigh Valley Power v. Pa. PUC, 563 A.2d 548 (Pa. Cmwlth. 1989)(trial-type hearing necessary only to resolve disputed questions of fact).
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