[36 Pa.B. 2097]
[Continued from previous Web Page] (iii) An officer or employee thereof if it is another agency, a political subdivision, or other governmental authority, agency or instrumentality.
(iv) An attorney having authority with respect thereto.
(2) A document filed by a corporation, trust, association or other organized group, may be required to be supplemented by appropriate evidence of the authority of the officer or attorney signing the documents.
(c) Effect.
(1) The signature of the individual signing a document filed with the Commission constitutes a certificate by the individual that:
(i) The individual has read the document being signed and filed, and knows the contents thereof.
(ii) The document has been signed and executed in the capacity specified upon the document with full power and authority to do so, if executed in a representative capacity.
(iii) The document is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, to the best of the individual's knowledge, information and belief formed after reasonable inquiry.
(iv) The document is not interposed for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2) If a document is signed in violation of this subsection, the presiding officer or the Commission, upon motion or upon its own initiative, may impose upon the individual who signed it, a represented party, or both, an appropriate sanction, which may include striking the document, dismissal of the proceeding or the imposition of civil penalties under section 3301 of the act (relating to civil penalties for violations).
(d) Supersession. Subsections (a)--(c) supersede 1 Pa. Code § 33.11 (relating to execution).
§ 1.36. Verification.
(a) Applications, petitions, formal complaints, motions and answers thereto containing an averment of fact not appearing of record in the action or containing a denial of fact must be personally verified by a party thereto or by an authorized officer or other authorized employee of the party if a corporation or association. Verification means a signed written statement of fact supported by oath or affirmation or made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). When verification is permitted, notarization is not necessary.
(b) The verification form should comply substantially with the following:
VERIFICATION I, ______ , hereby state that the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief) and that I expect to be able to prove the same at a hearing held in this matter. I understand that the statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).Date: ______ _________________
(Signature)(c) When an affidavit is used, it must be notarized and the form should comply substantially with the following:
AFFIDAVIT I, ______ (Affiant) being duly sworn (affirmed) according to law, depose and say that (I am authorized to make this affidavit on behalf of ______ corporation, being the holder of the office of ______ with that corporation, and that, I am an employee or agent of ______ and have been authorized to make this affidavit on its behalf and that) the facts above set forth are true and correct (or are true and correct to the best of my knowledge, information and belief) and (I or corporation) expect to be able to prove the same at any hearing hereof.______
(Signature of affiant)Sworn and subscribed before me this ______ day of ______ , 2____ ._________________
(Signature of official administering oath)
(My Commission Expires)(d) An applicant for motor carrier rights shall include in the verification the following statement:
Applicant is not now engaged in intrastate transportation of property or passengers for compensation in this Commonwealth except as authorized by the Pennsylvania Public Utility Commission certificate or permit, and will not engage in the transportation for which approval is herein sought, unless and until the transportation is authorized by your Honorable Commission.(e) An individual who executes a pleading, submittal or other document knowing that it contains a false statement and who causes it to be filed in the Commission shall be subject to prosecution for the Commission of a misdemeanor of the second degree in violation of 18 Pa.C.S. § 4904(a).
(f) Subsections (a)--(e) supersede 1 Pa. Code § 33.12 (relating to verification).
§ 1.37. Number of copies.
(a) General rule. When a pleading, submittal or document other than correspondence is submitted in hard copy, an original and three copies of each, including the cover letter, shall be furnished to the Commission at the time of filing.
(b) Exceptions.
(1) When the document is an application or petition, one copy may be filed without exhibits.
(2) When the document is a complaint or petition and more than one respondent is named, an additional copy of the complaint or petition must be filed for each additional respondent.
(3) When the document is subject to a statutory requirement or is otherwise ordered or requested by the Commission, a different number of copies may be designated.
(4) When the document is subject to § 5.409, § 5.502 or § 5.533 (relating to copies and form of documentary evidence; filing and service of briefs; and procedure to except to initial, tentative and recommended decisions), the filing must conform to the requirements in the applicable section.
(c) Subsections (a)--(c) supersede 1 Pa. Code § 33.15 (relating to number of copies).
§ 1.38. Rejection of filings.
The Commission may reject a filing if it does not comply with any applicable statute, regulation or order of the Commission.
Subchapter E. FEES § 1.42. Mode of payment of fees.
(a) Fees shall be paid by money order or check made payable to the Commonwealth of Pennsylvania or by any method currently acceptable to the Commission. For payments other than money order or check, the Secretary's Bureau shall be contacted for prior approval before submitting payment in a form other than money order or check. Payments by cash are not accepted without prior Secretary approval and remain at the risk of the sender.
(b) Subsection (a) supersedes 1 Pa. Code § 33.22 (relating to mode of payment of fees).
§ 1.43. Schedule of fees payable to the Commission.
(a) Fees for services. The fees for services rendered by the Commission are as follows:
Description Fee
(in dollars)
Initial filing of Form A for intangible transition property notice $550 Subsequent filing of notice changes in intangible transition property notice on Form B $350 Chapter 74 public information requests relating to perfection of security interests $10 plus standard per page copying costs Copies of papers, testimony, microfiche, records and computer printouts per sheet $ .75 Copies of microfiche per sheet $1.50 Copies of microfilm per roll $80 Certifying copy of a paper, testimony or record $5 Filing each securities certificate $350 Filing each abbreviated securities certificate $25 Filing each application for a certificate, permit or license or amendment of a certificate, permit or license $350 Filing an application for a certificate of public convenience for a motor common carrier of property $100 Filing an application for emergency temporary authority as common carrier of passengers or household goods in use, contract carrier of passengers or household goods in use, or broker or for an extension thereof $100 Filing an application for temporary authority as common carrier of passengers or household goods in use, contract carrier of passengers or household goods in use, or broker $100 Filing an application for a certificate to discontinue intrastate common carrier passenger or household goods in use service $10 (b) Supersession. Subsection (a) supersedes 1 Pa. Code §§ 33.21(b) and 33.23 (relating to filing fees; and copy fees).
Subchapter F. SERVICE OF DOCUMENTS § 1.51. Instructions for service, notice and protest.
Upon receiving an application or petition, the Secretary will instruct the applicant or petitioner concerning the required service and public notice consistent with this section.
§ 1.53. Service by the Commission.
(a) Applicability. This section applies to service of an order, notice or other document originating with the Commission and other documents designated by the Commission, except when the Commission specifically requires a different form of service.
(b) Forms of service.
(1) First class mail. Service may be made by mailing a copy thereof to the person to be served, addressed to the person designated in the initial pleading, submittal or notice of appearance at the person's residence, principal office or place of business.
(2) Personal. Service may be made personally by anyone authorized by the Commission.
(c) Registered or certified mail. Service of a petition under § 3.391 (relating to arbitration of claims for billing and collecting services), and service of a complaint under section 702 of the act (relating to service of complaint on parties) must be by registered or certified mail, return receipt requested.
(d) Change of address. It is the duty of a party to apprise the Commission promptly of changes to the party's current address.
(e) Alternative service. If the Commission is unable to serve a party by mail at the party's last known address, the Commission may make service by publication in a newspaper of general circulation in the same area as the party's last known address. In the alternative, service may also be accomplished by publication in the Pennsylvania Bulletin or by service on the Secretary of the Commonwealth, if appropriate.
(f) Supersession. Subsections (a)--(e) supersede 1 Pa. Code § 33.31 (relating to service by the agency).
§ 1.54. Service by a party.
(a) Pleadings, submittals, briefs and other documents, filed in proceedings pending before the Commission shall be served upon parties in the proceeding and upon the presiding officer, if one has been assigned.
(b) Service may be made by one of the following methods:
(1) First class mail. Service may be made by mailing the requisite number of copies to each party as provided in § 1.59 (relating to number of copies to be served), properly addressed with postage prepaid.
(2) Personal. Service may be made personally.
(3) Electronic. Service may be made electronically, to those parties who have agreed to accept service in that manner. Documents served electronically need not be followed by service of a hard copy to the parties if the parties have so agreed. A final version in hard copy shall be stamped on the date due for filing with the Secretary regardless of any agreement among the parties. Any subsequent corrected version not otherwise substantively altering the final version in hard copy may be filed upon approval of the administrative law judge.
(4) Telefacsimile. Service may be made by telefacsimile to those parties who have agreed to accept service in that manner. Documents served electronically need not be followed by service of a hard copy if the parties have so agreed.
(c) In a proceeding in which only some of the parties participate, the parties, with the authorization of the presiding officer, may limit the service of documents to parties and persons or individuals which state on the record or request in writing that they wish to be served.
(d) Subsections (a) and (b) supersede 1 Pa. Code § 33.32 (relating to service by a party).
§ 1.55. Service on attorneys.
(a) When an attorney enters an appearance under § 1.24 (relating to notices of appearances or withdrawals), service must be directed to the attorney in the same manner as prescribed for his client.
(b) When a party is represented by an attorney, service upon the attorney shall be deemed service upon the party. Separate service on the party may be omitted.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 31.26 (relating to service on attorneys).
§ 1.56. Date of service.
(a) The date of service shall be the day when the document served meets one of the following conditions:
(1) The document is deposited in the United States mail.
(2) The document is deposited with an overnight express package delivery service.
(3) The document is delivered in person.
(4) The document is transmitted by telefacsimile or electronic mail as provided in § 1.54(b) (relating to service by a party) prior to 4:30 p.m. local prevailing time.
(5) The document enters an information processing system designated by the recipient for the purpose of receiving service and from which the recipient is able to retrieve the served document in a form capable of being processed by the recipient's system prior to 4:30 p.m. local time.
(b) Unless otherwise prescribed by the Commission or presiding officer, whenever a party is required or permitted to do an act within a prescribed period after service of a document upon the party and the document is served by first-class mail by the United States Postal Service, 3 days shall be added to the prescribed period.
(c) Subsection (a) supersedes 1 Pa. Code § 33.34 (relating to date of service).
§ 1.58. Form of certificate of service.
(a) The form of certificate of service shall be as follows:
I hereby certify that I have this day served a true copy of the foregoing document upon the parties, listed below, in accordance with the requirements of § 1.54 (relating to service by a party).
(List names and addresses of parties served.)
Dated this ______ day of ______ , 2 ____ .
_________________
(Signature)Counsel for
_________________(b) Subsection (a) supersedes 1 Pa. Code § 33.36 (relating to form of certificate of service).
§ 1.59. Number of copies to be served.
(a) One copy of a document shall be served on the presiding officer if one has been designated.
(b) The following number of copies of documents shall be served on other parties in a proceeding:
(1) Briefs:
(i) Service of hard copies--two copies.
(ii) Service by telefacsimile or electronic mail, when permitted--one copy.
(2) Other documents--one copy.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 33.37 (relating to number of copies).
Subchapter G. MATTERS BEFORE OTHER TRIBUNALS § 1.61. Notice and filing of copies of pleadings before other tribunals.
(a) When matters over which the Commission may have jurisdiction under the act are raised in proceedings filed with a court or other regulatory body by a person subject to the act, either an appropriate application or petition, or notice of the proceedings and copies of the material pleadings filed therein, shall be filed simultaneously with the Commission so that it may have sufficient notice and time for proper consideration of the matters within its jurisdiction.
(b) Upon filing of a petition for bankruptcy under the United States Bankruptcy Code (11 U.S.C.) by a jurisdictional utility or licensee or by a parent, affiliate, or direct or indirect subsidiary of a utility or licensee, the utility or licensee shall file a copy of the petition with the Commission, and serve the Office of Trial Staff, the Office of Consumer Advocate and the Office of Small Business Advocate.
(c) An entity subject to the regulatory jurisdiction of the Commission, or its trustee in bankruptcy, shall file a copy of the reorganization plan for itself or for its bankrupt parent, subsidiary or affiliate for Commission review within 10 days after the debtor has filed the plan, its supplements and amendments, or has received notice that the plan has been filed with the court.
(d) If the reorganization plan submitted under subsection (c) contemplates the abandonment of service, the submittal must include an application under Chapter 11 of the act (relating to certificates of public convenience). If a licensee's reorganization plan includes the abandonment of the license, the submittal must include the appropriate pleading as required by the act.
Subchapter H. PUBLIC ACCESS TO COMMISSION RECORDS § 1.71. Statement of objectives.
The Commission's records maintenance system is intended to provide for the greatest degree of public access to Commission documents that is consistent with the exercise of the functions of the Commission under the act and other applicable laws. The Commission's system is designed to meet that objective and to give public notice of which classes of documents are available for inspection. The system provides a predictable standard, which nevertheless permits the Commission to take cognizance of the circumstances of individual requests for documents which may militate in favor of or against disclosure.
§ 1.72. Content and review of formal case files.
(a) Format. Format for filing records in formal cases will conform with the following:
(1) The files for formal cases initiated prior to May 15, 1977, will contain a records, correspondence and testimony folder.
(2) The files for formal cases initiated on or after May 15, 1977, will contain a document, report and testimony folder.
(b) Contents. Contents of folders in formal cases will conform with the following:
(1) Formal cases initiated prior to May 15, 1977, will conform with the following:
(i) Testimony folder. This folder will contain hearing transcripts and exhibits.
(ii) Record folder. This folder will contain formal filings in a case, including but not limited to, complaints, petitions, answers, replies, motions, briefs and requests for procedural or interim orders and opinions.
(iii) Correspondence folder. This folder will contain staff reports, acknowledgments, proofs of service and other documents not covered by subparagraphs (i) and (ii).
(2) Formal cases initiated on or after May 15, 1977, will conform with the following:
(i) Testimony folder. This folder will contain the same material as described in subparagraph (i).
(ii) Document folder. This folder will contain formal filings in a case, including but not limited to, complaints, petitions, answers, replies, motions, briefs and requests for procedural or interim orders and opinions. In addition, it will contain correspondence from or to the Commission except for staff reports, investigative materials and other material not subject to the disclosure requirements of the Commission.
(iii) Report folder. This folder will contain staff reports, investigative materials and other material not subject to the disclosure requirements of the Commission.
(c) Access. Access to files in formal cases will conform with the following:
(1) The record and testimony folders for cases initiated prior to May 15, 1977, will be available for inspection upon request made to file room personnel during normal Commission business hours.
(2) The document and testimony folders for cases initiated on or after May 15, 1977, will be available for inspection upon request made to file room personnel during normal Commission business hours.
(3) Material contained in the correspondence folders of formal cases initiated prior to May 15, 1977, will be available for inspection if the material would otherwise have qualified for placement in the document folder, as described in subsection (b)(2)(ii) of cases initiated on or after May 15, 1977. The inspection will be subject to the procedures outlined in subsection (d).
(4) The material contained in the report folder of cases initiated on or after May 15, 1977, will not be available for public inspection except as described in § 1.74 (relating to disclosure of other documents).
(d) Procedures. Procedures for review of correspondence and report folders will conform with the following:
(1) Correspondence folders. Review procedures for correspondence folders will be as follows:
(i) A person desiring access to a correspondence folder of a formal case may request file room personnel for a review of the file to determine which material contained therein may be released for inspection.
(ii) The review will be made and the requestor notified within 30 days.
(iii) If dissatisfied with the results of the first review, the requestor may ask that the documents removed from the correspondence folder before it was given to him be reviewed again.
(iv) A 30-day period applies to the second request for review.
(2) Report folders. Review procedures for report folders will be as follows:
(i) A person may request file room personnel for a review of particular documents or for a specifically defined portion of the report folder to determine which, if any, material contained in the folder may be released for inspection.
(ii) The review, except for good cause, will be made and the requestor notified within 30 days.
§ 1.73. Fiscal records.
(a) Except as provided in subsection (b), an account, voucher or contract dealing with the receipt or disbursement of funds by the Commission or its acquisition, use or disposal of services or supplies, materials, equipment or other property will be available during normal Commission business hours upon request made to the Commission fiscal office. Fiscal records are retained in accordance with time periods set by applicable statutory, regulatory and administrative requirements.
(b) No fiscal record, nor unseverable part thereof, which contains material exempted from the disclosure requirements provided in the act of June 21, 1957 (P. L. 390, No. 212) (65 P. S. §§ 66.1--66.4) or which otherwise presents a substantial need for nondisclosure, will be available for public inspection.
§ 1.76. Tariffs, minutes of public meetings and annual reports.
Tariffs, minutes of public meetings and annual reports will be available for public inspection and copying upon request to the Secretary's Bureau during the Commission's office hours.
Subchapter I. AMENDMENTS OR WITHDRAWALS OF SUBMITTALS § 1.81. Amendments.
(a) An amendment to a submittal or pleading may be tendered for filing at any time and will be deemed filed in accordance with § 1.11 (relating to date of filing) unless the Commission otherwise orders.
(b) Subsection (a) is identical to 1 Pa. Code § 33.41 (relating to amendments).
§ 1.82. Withdrawal or termination.
(a) A party that desires to terminate an uncontested matter or proceeding before final decision by the Commission or otherwise desires to withdraw a submittal or pleading, shall file a petition for leave to withdraw the appropriate document. If no party objects to the petition within 10 days of service, the matter may be stricken by the Commission or by the presiding officer. If upon review the presiding officer or the Commission determines that the public interest requires continuation of the proceedings, the petition will be denied and the staff may be directed to participate.
(b) Withdrawal of a pleading in a contested proceeding is governed by § 5.94 (relating to withdrawal of pleadings in a contested proceeding).
(c) Subsections (a) and (b) supersede 1 Pa. Code § 33.42 (relating to withdrawal or termination).
Subchapter J. DOCKET § 1.86. Docket.
(a) The Secretary will maintain a docket of all proceedings, and each proceeding as initiated will be assigned an appropriate designation. The docket will be available for inspection and copying by the public during the Commission's office hours.
(b) Subsection (a) is identical to 1 Pa. Code § 33.51 (relating to docket).
CHAPTER 3. SPECIAL PROVISIONS
Subchapter A. SPECIAL COMMISSION ACTIONS
EMERGENCY RELIEF § 3.1. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Emergency--A situation which presents a clear and present danger to life or property or which is uncontested and requires action prior to the next scheduled public meeting.
Emergency order--An ex parte order issued by a single Commissioner, the Commission, the Commission's Director of Operations or the Commission's Secretary in response to an emergency.
Interim emergency order--An interlocutory order issued by a presiding officer which is immediately effective and grants or denies injunctive relief during the pendency of a proceeding.
EX PARTE EMERGENCY ORDERS § 3.2. Petitions for issuance of emergency orders.
(a) To the extent practicable, a petition for emergency order must be in the form of a petition as set forth in § 5.41 (relating to petitions generally) and shall be served on the persons directly affected by the application.
(b) A petition for emergency order must be supported by a verified statement of facts which establishes the existence of an emergency, including facts to support the following:
(1) The petitioner's right to relief is clear.
(2) The need for relief is immediate.
(3) The injury would be irreparable if relief is not granted.
(4) The relief requested is not injurious to the public interest.
§ 3.3. Disposition of ex parte emergency orders.
(a) Authority. The Chairperson, a Commissioner, the Commission's Director of Operations and the Commission's Secretary have the authority to issue an emergency order.
(b) Form. An emergency order will be issued in writing and filed with the Secretary with copies to Commissioners and the Director of Operations.
(c) Ratification. An emergency order or the denial of a petition for emergency order issued by a single Commissioner or the Director of Operations or the Commission's Secretary will be ratified, modified or rescinded by the Commission at the next scheduled public meeting after issuance of the order.
(d) Service. An emergency order or the denial of a petition for emergency order will be served by the Secretary as expeditiously as practicable upon the persons directly affected by the decision with copies to the Commissioners and the Director of Operations.
§ 3.4. Hearings following issuance of emergency orders.
(a) A person against whom an emergency order is issued may file a petition for an expedited hearing to determine whether the emergency order will remain in effect. The petition must conform to the form and service requirements in §§ 5.41--5.44 (relating to petitions generally).
(b) The petition for expedited hearing shall be filed with the Secretary and a copy served upon the Chief Administrative Law Judge.
(c) The hearing will be held before a presiding officer within 10 days of receipt of the petition by the Secretary.
(d) If the emergency order is issued by a single Commissioner or the Director of Operations or by the Commission's Secretary, the presiding officer will have the authority to stay the effect of the order until the next scheduled public meeting.
(e) The decision of the presiding officer will constitute a recommended decision to be acted upon by the Commission at its next scheduled public meeting.
§ 3.5. (Reserved).
INTERIM EMERGENCY RELIEF § 3.6. Petitions for interim emergency orders.
(a) A party may submit a petition for an interim emergency order during the course of a proceeding. The petition shall be filed with the Secretary and served contemporaneously on the Chief Administrative Law Judge and on the parties.
(b) To the extent practicable, a petition for an interim emergency order must be in the form of a petition as set forth in § 5.41 (relating to petitions generally). A petition for an interim emergency order must be supported by a verified statement of facts which establishes the existence of the need for interim emergency relief, including facts to support the following:
(1) The petitioner's right to relief is clear.
(2) The need for relief is immediate.
(3) The injury would be irreparable if relief is not granted.
(4) The relief requested is not injurious to the public interest.
(c) Allegations set forth in the petition shall be deemed to have been denied by the opposing parties, and an answer is not required. A party may file an answer in the form set forth in § 5.61 (relating to answers to complaints, petitions and motions) no later than 5 days after service of a copy of the petition.
(d) Other pleadings, memoranda or briefs related to a petition for interim emergency order are not permitted unless specifically requested by the presiding officer.
§ 3.6a. Hearing on petitions for interim emergency orders.
An interim emergency order may not be issued until the presiding officer holds a hearing on the merits of the petition. The hearing must be held within 10 days of the filing of the petition.
§ 3.7. Issuance of interim emergency orders.
(a) A presiding officer will issue an order granting or denying interim emergency relief within 15 days of the filing of the petition.
(b) An order granting a petition for interim emergency relief will set forth the findings required by § 3.6(b) (relating to hearing on petitions for interim emergency orders).
(c) An interim emergency order or an order denying interim emergency relief will be served as expeditiously as practicable on the parties.
§ 3.8. Form of interim emergency orders.
(a) An order following a hearing on a petition for interim emergency relief will include:
(1) A brief description of the evidence presented.
(2) A grant or denial of the petition.
(b) An order following a hearing on a petition for interim emergency relief may require a bond to be filed in a form satisfactory to the Secretary and will specify the amount of the bond.
§ 3.9. (Reserved).
§ 3.10. Commission review of interim emergency orders.
(a) An order granting or denying interim emergency relief is immediately effective upon issuance by the presiding officer. No stay of the order will be permitted while the matter is being reviewed by the Commission.
(b) When the presiding officer rules upon the petition for an interim emergency order, the presiding officer will also certify the question of the grant or denial of relief to the Commission as a material question in the form set forth in § 5.305 (relating to interlocutory review of a material question submitted by a presiding officer). Thereafter, the parties and the Commission shall follow the procedures in § 5.305, if applicable.
Subchapter B. INFORMAL PROCEEDINGS GENERALLY
INFORMAL COMPLAINTS AND INVESTIGATIONS § 3.111. Form and content of informal complaints.
(a) Informal complaints may be by letter or other writing. No form of informal complaint is suggested, except as set forth in §§ 56.162 and 64.152 (relating to informal complaint filing procedures), but in substance the letter or other writing must contain the essential elements of a formal complaint as specified in § 5.22 (relating to contents of formal complaint).
(b) Informal complaints shall be submitted to the Secretary for referral to the appropriate bureau, addressed to the following: Pennsylvania Public Utility Commission, Post Office Box 3265, Harrisburg, Pennsylvania 17105-3265.
(c) Subsection (a) supersedes 1 Pa. Code § 35.5 (relating to form and content of informal complaints).
§ 3.112. Action on informal complaints.
(a) Filing. The Secretary will place a copy of an informal complaint related to a docketed matter in the official document folder.
(b) Commission staff review.
(1) Commission staff will review the informal complaint to determine whether the subject matter is within the Commission's jurisdiction, except as set forth in Chapters 56 and 64 (relating to standards and billing practices for residential utility service; and standards and billing practices for residential telephone service).
(2) Commission staff will evaluate the allegations of the complaint, and, if warranted, institute an informal investigation or informal proceeding.
(3) Commission staff may institute formal action with respect to the subject matter of the informal complaint.
(c) Commission staff action. Upon the completion of the Commission's investigation of an informal complaint, the Commission staff will notify the informal complainant of the results of its review and investigation. The submission or withdrawal of an informal complaint is without prejudice to the right of the complainant to file and prosecute a formal complaint.
(d) Caveat. The submission of an informal complaint does not entitle complainant to a formal hearing before the Commission.
(e) Further action. A staff determination made under this provision is appealable under § 5.44 (relating to petitions for appeal from actions of the staff).
(f) Supersession. Subsections (a)--(d) supersede 1 Pa. Code §§ 35.6 and 35.7 (relating to correspondence handling of informal complaints; and discontinuance of informal complaints without prejudice).
§ 3.113. Resolution of informal investigations.
(a) The Commission staff may conduct informal investigations or informal proceedings in appropriate circumstances regarding the condition and management of a public utility or other person subject to its jurisdiction. The informal investigations are typically undertaken to gather data or to substantiate allegations of potential violations of the act and may be conducted with or without hearing.
(b) Under 65 Pa.C.S. Chapter 7 (relating to Sunshine Act), the Commission's official actions resolving informal investigations will be as follows:
(1) When the Commission staff determines that no violation or potential violation of the act has occurred, the informal investigation will be terminated by letter.
(2) When the Commission staff determines that a violation or potential violation of the act has occurred and when formal action is deemed to be warranted, the Commission staff will initiate a docketed on-the-record proceeding to resolve the issues.
(3) When the utility, or other person subject to the Commission's jurisdiction, has committed to undertake action to address or remedy a violation or potential violation of the act or to resolve another perceived deficiency at the utility, in the form of a settlement with the Commission staff or other resolution of the matter, the Commission's consideration of the settlement or approval of the utility's action will occur at public meeting. Except for staff reports and other documents covered by a specific legal privilege, documents relied upon by the Commission in reaching its determination shall be made part of the public record. Before the Commission makes a final decision to adopt the settlement or to approve the utility's action, the Commission will provide other potentially affected persons with the opportunity to submit exceptions thereon or to take other action provided for under law.
Subchapter D. CROSSING PROCEEDINGS § 3.361. Crossing complaints.
(a) Whenever a complaint is made under section 2702 of the act (relating to construction, relocation, suspension and abolition of crossings) that a crossing is dangerous or inadequate and requires reconstruction, relocation, alteration or abolition, public utilities, owners of the railroad right-of-way and municipal corporations concerned and, if applicable, the Department of Transportation, will be made parties respondent.
(b) In complaint proceedings under section 2702 of the act for the relocation, alteration or abolition of crossings, the complainant shall publish a concise statement of the proceeding which designates the crossing with sufficient particularity to be readily identifiable by owners of property adjacent thereto or affected thereby, with notice of time and place fixed by the Commission for hearing, once a week for 2 consecutive weeks immediately prior to the date of hearing in at least one newspaper of general circulation, in the county in which the crossing is located. Proof of the publication shall be filed with the Commission on or before the date of hearing.
§ 3.363. Claims for property damages from crossings.
(a) Claims for property damage for property taken, injured or destroyed must conform with the following requirements:
(1) Be captioned '' ______ , Plaintiffs, v. Defendants.''
(2) Follow, in general as to form and content, the form available from the Secretary.
(3) Name as defendants those charged with the duty of paying the damages under the provisions of the order of the Commission.
(b) A prima facie claim shall first be filed with the Commission. After filing and service and opportunity to answer, the Commission may proceed to resolve the claim, or under section 2704 of the act (relating to compensation for damages occasioned by construction, relocation or abolition of crossings) may submit the matter to the court of common pleas of the proper county. In either case, notice will be given by the Commission to all parties to the claim.
Subchapter G. WATER OR WASTEWATER UTILITY PROCEEDINGS § 3.501. Certificate of public convenience as a water supplier or wastewater collection, treatment or disposal provider.
(a) Applicant. An applicant for a certificate of public convenience as a public water or wastewater collection, treatment or disposal provider, including noncertificated utilities, shall provide a copy of the business plan required by the Department of Environmental Protection (DEP) in 25 Pa. Code § 109.503(a)(3) (relating to public water system construction permits). The Commission may reject an application which fails to include the required information and documents. The following additional information, or documents, if not included in the business plan, shall also be included in the application, using the current forms and schedules specified by the Commission.
(1) Plant in service.
(i) Proposed utilities shall provide:
(A) A full description of the proposed waterworks or wastewater collection, treatment and disposal facilities and the manner, including the timing, in which the proposed service area and utility will be constructed.
(B) A breakdown of the cost of construction, by major plant category, including the sources of funds used to construct the facilities.
(ii) Utilities that have been providing service shall provide:
(A) The original cost, by year and major plant category, of used and useful plant in service and related accrued depreciation calculations.
(B) A breakdown of the sources of funds used to finance the construction of the facilities.
(2) Map of service area. A map or plan of suitable scale highlighting the boundaries of the proposed service area, including:
(i) A courses and distances or metes and bounds description.
(ii) The location or route of the proposed waterworks or wastewater collection, treatment or disposal facilities.
(iii) The approximate time schedule for installation of the various component facilities.
(iv) The elevations of major facilities and service areas.
(v) The DEP permitted productive or treatment capacity of sources or treatment facility and the pipe sizes and material used for construction for all transmission and distribution or collection facilities.
(vi) A copy of the county comprehensive plan, municipal comprehensive plan and applicable zoning designations, if requested.
(3) Customers.
(i) Proposed utilities shall provide an estimate of the number of customer connections by class in the first, fifth and tenth years, and completed development anticipated, as well as estimated water usage or gallons of wastewater treated in each of those years.
(ii) Utilities that have been providing service shall submit the actual number of customers by class and related consumption or gallons treated in the current calendar year and future number of connections anticipated for the next 10 years.
(iii) Each utility shall demonstrate its ability to provide adequate water supply, treatment, storage and distribution or adequate wastewater collection, treatment or disposal capacity to meet present and future customer demands.
(4) Rates.
(i) Proposed utilities shall provide a proposed initial tariff which includes rates, proposed rules, and conditions of service in the format specified by the Commission (classified rate schedule).
(ii) Utilities which have been providing service shall provide a proposed initial tariff which includes rates, proposed rules, and conditions of service. The utility shall notify the customers of the utility of the filing of the application and the rates filed.
(5) Cost of service.
(i) Proposed utilities shall provide a 1, 5 and 10-year estimate of operating revenues, operation and maintenance expenses, annual depreciation and taxes. If operating income reflects a loss, proposed utilities shall provide a detailed explanation of the source of funds to be used to subsidize the estimated losses in support of future viability.
(ii) Utilities that have been providing service shall file the two most recent Federal Income Tax Returns (corporation) or related Schedule C forms (partnership or individual). If tax returns reflect an operating loss, utilities shall describe in detail how the operating losses are subsidized, supported by an analysis of the future viability of the utility.
(6) Proof of compliance. Proof of compliance with applicable design, construction and operation standards of DEP or of the county health department, or both, including:
(i) Copies of public water supply/water quality management or National Pollution Discharge Elimination System (NPDES) permits if applicable.
(ii) Valid certified operators' certificates appropriate to the facilities being operated.
(iii) Utilities that have been providing service, a 5-year compliance history with DEP with an explanation of each violation.
(iv) A DEP 5-year compliance history of other utilities owned or operated, or both, by the applicant, including affiliates, and their officers and parent corporations with regard to the provision of utility service.
(7) Additional documentation. In addition to a copy of the documents submitted under paragraphs (1)--(6), the applicant shall submit a letter addressing all the applicable requirements or mandates of the following governmental entities. The letter must also append copies of certification issued by the following governmental entities confirming that the applicant does or does not meet all the applicable requirements or mandates of the following:
(i) DEP.
(ii) The Delaware River Basin Commission, the Susquehanna River Basin Commission, the Ohio River Basin Commission and the Great Lakes Commission.
(iii) The requirements of any Statewide water plan, including any local watershed areas.
(iv) The requirements of any officially adopted county comprehensive plans, municipal comprehensive plans, and applicable zoning designations, including any necessary amendments.
(8) Affected persons. The identity of public utilities, municipalities, municipal authorities, cooperatives and associations which provide public water supply service or wastewater collection, treatment or disposal service within each municipality, or a municipality directly adjacent to the municipalities, in which the applicant seeks to provide service that abuts or is situated within 1 mile of the applicant's proposed facilities.
(9) Other requirements. Demonstrate compliance with DEP regulations in 25 Pa. Code § 109.503(a)(3) or section 5 of the Pennsylvania Sewage Facilities Act requirements (35 P. S. § 750.5), whichever is applicable; or whether the applicant has contacted each public water supplier or wastewater collection, treatment or disposal supplier in paragraph (8), and one of the following applies:
(i) Whether a supplier is willing and able to serve the area which the applicant seeks to serve either directly or through the bulk sale of water to the applicant, or treatment of wastewater to the applicant.
(ii) If one or more supplier is willing to serve the area (either directly or through the bulk sale of water to applicant), the applicant should demonstrate that, when considering both the cost of service and the quality of service, the ultimate consumer would be better served by the applicant than by the other water suppliers.
(10) Verification. A verification that the water sources and customers are metered in accordance with § 65.7 (relating to metered service). If unmetered water service is currently provided, the applicant shall provide a metering plan to the Commission.
(b) Additional considerations. The Commission will consider and may rely upon the comprehensive plans, multimunicipal plans, zoning ordinances and joint municipal zoning ordinances, consistent with the authority in sections 619.2 and 1105 of the Municipalities Planning Code (53 P. S. §§ 10619.2 and 11105), when reviewing applications for a certificate of public convenience as a public water supplier or wastewater collection, treatment or disposal provider.
(c) Filing. Applications under this section must conform to §§ 1.31 and 1.32 (relating to requirements for documentary filings; and form of documents), and include a mode of payment as prescribed by § 1.42 (relating to mode of payment of fees) and in the amount delineated in § 1.43 (relating to schedule of fees payable to the Commission). The applicant shall file with the Commission the original and three copies of the application. An application which fails to include the information and documents outlined in subsections (a) and (b), as specified by the Commission for water and wastewater collection, treatment or disposal companies, is subject to rejection by the Commission. The original and three copies must contain exhibits. An affidavit of service showing the identity of those served under subsection (f) shall accompany the original and the copies of the application filed with the Commission.
(d) Notice. The application will be docketed by the Secretary of the Commission and thereafter forwarded for publication in the Pennsylvania Bulletin with a 60-day protest period. The applicant shall also publish notice of application as supplied by the Secretary, daily for 2 consecutive weeks in one newspaper of general circulation located in the territory covered by the application and shall submit proof of publication to the Commission. In addition, the utility or applicant shall individually notify existing customers of the filing of the application.
(e) Application form. The Commission may provide a standard application form for use by an applicant for § 3.501 and will, to the extent practicable, provide the application form on the Commission's website.
(1) Any standard application form developed for purposes of § 3.501 that involves a matter of an interagency nature will be developed or revised only after notice is published in the Pennsylvania Bulletin, posted on the Commission's website to the extent practicable, and after consultation with interested persons or agencies is conducted.
(2) Any standard application form developed for purposes of § 3.501 that involves matters other than those governed by § 3.501(e)(1) will be developed or revised only after notice is published in the Pennsylvania Bulletin, posted on the Commission's website to the extent practicable, and after consultation with any interested persons or agencies is conducted.
(3) Any standard application form developed for purposes of § 3.501 will be developed by the Commission staff and may be subject to formal approval by the Commission. Any standard application form developed for purposes of § 3.501 not formally approved by the Commission shall be subject to § 5.44 (relating to petitions for appeal from actions of the staff).
(f) Copies. At the time of filing, the applicant shall cause a complete copy of the application with exhibits to be served by registered or certified mail, return receipt requested, upon:
(1) Each city, borough, town, township, county and related planning office which is included, in whole or in part, in the proposed service area.
(2) A water or wastewater utility, municipal corporation or authority which provides water or wastewater collection, treatment or disposal service to the public and whose service area abuts or is within 1 mile of the service area proposed in the application.
(3) The statutory advocates and DEP's central and regional offices.
(g) References. Subsection (a) supplements § 5.11 (relating to applications generally).
§ 3.502. Protests to applications for certificate of public convenience as a water supplier or wastewater collection, treatment or disposal provider.
(a) Protests generally. A person objecting to the application shall file with the Secretary and serve upon the applicant or applicant's attorney, if any, a written protest which must contain the following:
(1) The applicant's name and the docket number of the application.
(2) The name, business address and telephone number of the protestant.
(3) The name, business address, Pennsylvania attorney identification number and telephone number of the protestant's attorney or other representative.
(4) A statement of the nature of the protestant's interest in the application.
(b) Participation in a proceeding. Upon the filing of a timely protest the protestant will be allowed to participate in the proceeding as a party intervenor. Statutory advocates participate in any proceeding based on their statutory right of participation.
(c) Motions. A protest will be treated as a pleading; and the applicant may, within 20 days after the closing date for the filing of protests, file motions to strike, to dismiss, or for amplification as provided in § 5.101 (relating to preliminary motion).
(d) Protests: time of filing. A protest shall be filed within the time specified in the notice appearing in the Pennsylvania Bulletin, which shall be at least 60 days from the date of publication thereof except when the need for the proposed service or other exigent circumstances supports a request for a shorter protest period. Failure to file the protest in accordance with this subsection shall be a bar to subsequent participation in the proceeding, except if permitted by the Commission for good cause shown or as provided in § 5.71 (relating to initiation of intervention).
Subchapter H. FORMS § 3.551. Official forms.
Forms for applications, petitions, complaints and other matters are available on the Commission's website or from the Secretary of the Commission, P. O. Box 3265 Harrisburg, Pennsylvania, 17105-3265; (717) 772-7777.
Subchapter I. REGISTRATION OF SECURITIES § 3.601. General.
(a) Scope. A public utility shall file with the Commission and receive from it notice of registration of a securities certificate before the public utility issues or assumes securities.
(b) Format. A securities certificate must be in a form consistent with §§ 1.31 and 1.32 (relating to requirements for documentary filings; and form of documents), accompanied by payment in the amount provided in § 1.43 (relating to schedule of fees payable to the Commission) and in a payment mode provided for in § 1.31.
(c) Form. The securities certificate must provide information required by the Commission on a form available from the Commission or shown on its website as well as additional information required by the Commission. The securities certificate must contain the following information:
(1) The name and address of the public utility filing the securities certificate.
(2) The name and address of the public utility's attorney.
(3) A brief corporate history of the public utility, a general description of the territory in which it actually furnishes service to the public, and of the kind of service rendered.
(4) Whether the public utility is controlled by a corporation, and, if so:
(i) The name of the controlling corporation.
(ii) The form and manner of control.
(iii) The extent of control.
(iv) Whether control is direct or indirect.
(v) The names of intermediaries through which control, if indirect, is held. When control is in a holding company organization, show the chain of ownership of control to the main parent company.
(5) The following information regarding the securities which the public utility proposes to issue or assume:
(i) The exact title of security.
(ii) The aggregate par value, or if no par value then the number of shares, or the principal amount to be issued or assumed.
(iii) In the case of stock certificates, as applicable:
(A) Par value.
(B) Dividend rate and payment dates.
(C) Redemption value.
(D) Liquidation value.
(E) Voting powers.
(F) Preferences as to assets and dividends.
(G) Cumulative and participating dividend provisions.
(H) Callability and conversion provision.
(iv) In the case of evidences of indebtedness, as applicable:
(A) Nominal date of issue.
(B) Date of maturity.
(C) Interest rate and payment dates.
(D) Extent to which taxes on securities are assumed by the issuer.
(E) Callability and conversion provisions.
(F) Maintenance.
(G) Depreciation and sinking or other fund provision.
(H) Name and address of trustee and whether affiliated with the public utility.
(6) The method by which the public utility proposes to dispose of the securities, giving pertinent details as to date and manner of sale, exchange or other disposition. If sale, include minimum net price to the public utility, maximum commission or fee to be paid to investment bankers, brokers or others, and whether securities are to be sold on an underwriting or take-down basis. State whether or not those negotiating or arranging the sale are in any way affiliated with the utility. If a private sale, state whether the purchasers are in any way affiliated with the utility. Show in tabular form an estimate in reasonable detail of the expenses to be incurred in issuing the securities, including, by groups, legal fees, fees and documentary taxes to governmental authorities, printing expenses, underwriting or brokerage commission, duplicate interest and other expenses.
(7) The purpose for which the public utility proposes to issue or assume the securities.
(i) If the purpose is the acquisition of all or part of the assets of a going concern, state:
(A) The name and address of the vendor and the docket number of Commission approval of the acquisition.
(B) A brief description of property, and whether it is all or part of a completed system.
(C) The full consideration to be paid, including any indebtedness to be assumed by the utility.
(D) The manner of determining consideration.
(E) The manner in which acquisition is to be recorded on the public utility's books.
(F) The original cost of physical property to be acquired, stated according to plant accounts prescribed by the classification of accounts applicable to the public utility.
(G) The depreciation applicable thereto as recorded on the books of the vendor.
(H) The manner of determining the original cost and depreciation.
(I) An income statement for the latest available 12 months applicable to the operation of the property being acquired.
(ii) If the purpose is the purchase or construction of new facilities, or the betterment of existing facilities, give:
(A) A brief description of the new facilities or betterments.
(B) A list of plant accounts prescribed by the classification of accounts applicable to the utility to be charged with the new facilities or betterments, showing opposite each account the estimated cost to be charged.
(C) A list of the accounts and the amounts to be credited thereto for the retirements of any property resulting from the purchase or construction of new facilities or betterments.
(D) The manner of determining amounts at which retired property is to be credited.
(E) The date when it is expected that the purchase or construction or betterment will be completed.
(iii) If the purpose is to obtain working capital, explain any unusual condition which exists, or will exist, in the public utility's current assets or current liabilities, stating:
(A) The approximate cost of average materials and supplies inventory which the public utility expects to carry.
(B) The average time elapsing between the date when the public utility furnishes or begins a period of furnishing service to customers and the date when collection is made from customers for the service.
(C) The minimum bank balance requirements.
(D) A statement, by accounts, of the operating expenses for the latest available 12 months.
(iv) If the purpose is to refund obligations, describe obligations in detail.
(A) Explain the purpose for which obligations were issued, or refer to number of securities certificate, securities application or certificate of notification in which the purpose appears.
(B) State the date of last disposition of obligation, the amount disposed of and the price received.
(C) State whether refunding is to meet maturity, or to effect saving in interest or other annual charges; if to effect saving, state date when, and price at which obligations are to be called, and submit statement showing saving to be effected as a result of refunding.
(D) State disposition to be made of any discount or expense remaining unamortized on the obligations to be refunded and of any premium included in the call price.
(E) State whether any unamortized debt discount and expense was originally incurred in connection with securities not now outstanding, and if so, give amount applicable to each issue.
(v) If the purpose is reimbursement for moneys already expended, state the purpose for which the moneys were expended in as complete detail as if the securities now being issued were for that purpose as required by this subsection and by subsections (a), (b) and (d).
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