[36 Pa.B. 2097]
[Continued from previous Web Page] (A) List the names and principal amounts of any securities already issued against the expenditures.
(B) State the dates upon or between which the expenditures were made.
(8) State whether a registration statement, application or declaration has been filed or will be filed with the Securities and Exchange Commission in respect to the securities herein proposed to be issued or assumed. If so, state:
(i) The date filed.
(ii) The nature of the application or declaration.
(iii) The closing date before the Securities and Exchange Commission.
(9) The public utility shall attach to each securities certificate:
(i) A balance sheet of the public utility set up by ledger accounts and not by groupings dated within at least 3 months of the date of securities certificate, including any transactions which have occurred between the date of the balance sheet and the date of filing the securities certificate and an explanation of any major contingent liabilities faced by the public utility.
(ii) An income account of the public utility set up by general ledger accounts, not by groupings, showing in detail the other credits and charges made to surplus during the year, for the 12-month period ending by the date of the balance sheet.
(iii) A statement with respect to the plant accounts appearing on the balance sheet showing the following:
(A) A summary by the detailed plant accounts prescribed in the system of accounts applicable to the public utility.
(B) The portion of the plant account balance representing increments in plant book values resulting from the acquisition of property through purchase, merger and consolidation or reorganization.
(C) The portion of the plant account balance representing increases in plant book values resulting from the recording of appraised values by the public utility unless the public utility has filed with the Commission an original cost study.
(iv) A statement of securities of other corporations owned by the public utility, including:
(A) The name of the issuer.
(B) The exact title of the security.
(C) The amount owned.
(D) The date acquired.
(E) The price paid.
(F) The book value.
(G) The market value.
(H) The cost to the affiliate, if acquired from an affiliate.
(V) A statement showing the status of the funded debt of the public utility outstanding at the date of the balance sheet, plus particulars of any important changes in the funded debt outstanding which have taken place since that date. The statement must be in the form available from the Commission.
(vi) A statement showing the status of outstanding capital stock of the public utility as of the date of the balance sheet, including any important changes in the capital stock outstanding which have taken place since the date of the balance sheet according to the form available from the Commission.
(vii) A copy of the registration statement filed by the public utility with the Securities and Exchange Commission under the Securities Act of 1933 (15 U.S.C.A. §§ 77A--77aa) with respect to the proposed issuance or assumption of securities.
(viii) Copies of applications and declarations filed by the public utility with the Securities and Exchange Commission with respect to the proposed issuance or assumption of securities, under the Public Utility Holding Company Act of 1935 (15 U.S.C.A. §§ 79--79z-6).
(ix) A copy of the resolution of the board of directors of the public utility authorizing the proposed issuance or assumption of securities.
(x) A copy of the stock certificate or other security proposed to be issued or assumed. Bonds or other evidences of indebtedness secured by mortgage, collateral trust agreement or other underlying instrument. This exhibit must be a copy of the underlying instrument, rather than of the evidence of indebtedness itself.
(xi) A statement showing, in journal entry form, the charges and credits to be made on the books of account of the public utility as a result of the proposed issuance or assumption of securities.
(xii) An affidavit in the form prescribed by §§ 1.35 and 1.36 (relating to execution; and verification).
(d) Format form. The Commission may provide a standard format form for use by an applicant for this section and will, to the extent practicable, provide the format form on the Commission's website.
(1) Any standard format form developed for purposes of this section 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 an interested agency is conducted.
(2) Any standard format form developed for purposes of this section that involves matters other than those governed by paragraph (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 an interested agency is conducted.
(3) Any standard format form developed for purposes of this section will be developed by staff and may be subject to formal approval by the Commission. Any standard format form developed for purposes of this section not otherwise subject to formal approval by the Commission will be subject to §§ 5.41--5.44 (relating to petitions).
§ 3.602. Abbreviated securities certificate.
(a) Scope of rule. The abbreviated procedure of subsections (b) and (c) applies to an issuance or assumption of a security which meets one of the following requirements:
(1) The issuance or assumption of securities has been authorized by another state commission having primary jurisdiction.
(2) The financing is provided by an agency of a state or the United States government.
(3) The issuance or assumption of securities is by a utility having a presence in this Commonwealth of less than 10% as measured by either:
(i) The ratio of gross investment within this Commonwealth to the utility's total gross investment.
(ii) The ratio of gross operating revenues from service rendered during the immediately preceding fiscal year under tariffs filed with the Commission for intra-State service to the total gross operating revenues of the public utility during the fiscal year from all service, wherever rendered, of the type described in section 102 of the act (relating to definitions).
(4) The declaration by a utility of a stock split if there is no impact on the control of the utility or negative impact attributable to commingling of competitive enterprises with noncompetitive enterprises.
(5) The issuance of a dividend by a utility in the form of the utility's stock if there is no impact on the control of the utility or negative impact attributable to commingling of competitive enterprises with noncompetitive enterprises.
(b) Form. At the election of the issuing public utility, a securities certificate relating to an issuance of securities within the scope of this rule may consist of two copies of a letter addressed to the Secretary and setting forth the following information:
(1) The name and address of the public utility.
(2) The title or capacity of the representative of the public utility executing the letter.
(3) The designation of the securities to be issued or assumed and the approximate number of shares, principal amount, or other units proposed to be issued or assumed.
(4) A statement setting forth the specific subsections that qualifies the issuance of the abbreviated procedure together with the underlying calculations, when applicable.
(5) A verification or affidavit conforming to § 1.36 (relating to verifications and affidavits) in compliance with section 1902 of the act (relating to contents of securities certificate).
(c) Filing and registration. An abbreviated securities certificate under this section, together with the filing fee specified in § 1.43 (relating to schedule of fees payable to the Commission), shall be filed with the Secretary.
(1) The certificate will be deemed, in fact and in law, to have been registered if no order of rejection has been entered after 20 days from the filing of a securities certificate.
(2) Prior to the expiration of the 20-day period, the Secretary may extend the 20-day consideration period to not more than a total of 40 days upon notification of the public utility served. Further extension to the period will be by the order of the Commission.
(d) Exemption. The filing of a securities certificate with the Commission under Chapter 19 of the act (relating to securities and obligations), relating to an issuance or assumption of securities is not required of a public utility which owns or operates facilities within this Commonwealth, but which has received no gross operating revenues for service rendered during the immediately preceding fiscal year and 12-month period under tariffs filed with the Commission for intrastate service within this Commonwealth.
CHAPTER 5. FORMAL PROCEEDINGS
Subchapter A. PLEADINGS AND OTHER PRELIMINARY MATTERS
GENERAL PROVISIONS § 5.1 Pleadings allowed.
(a) The pleadings in an action before the Commission include the following:
(1) Application and protest.
(2) Formal complaint, answer, new matter and reply to new matter.
(3) Order to show cause and answer.
(4) Petition and answer.
(5) Preliminary objections.
(6) Motions.
(b) A pleading except a preliminary objection may be subject to a preliminary objection as set forth in § 5.101 (relating to preliminary objections).
APPLICATIONS § 5.12. Contents of applications.
(a) Applications must conform to this section unless a form or other specific requirements are provided in Chapter 3 (relating to special provisions). Applications must :
(1) Be in writing.
(2) State clearly and concisely the authorization or permission sought.
(3) Cite by appropriate reference the statutory provisions, regulations or other authority under which the Commission authorization or permission is sought.
(4) Set forth, in the order indicated, the following-unless otherwise provided by this chapter or in Chapter 3 for the specific type of application involved:
(i) The exact legal name of the applicant.
(ii) The jurisdiction under the statutes of which the applicant was created or organized and the location of the principal place of business of the applicant, when the applicant is a corporation, trust, association or other entity.
(iii) The name, title, mailing address, telephone number and electronic mail address, if available, of the person to whom correspondence or communication in regard to the application is to be addressed. The Commission will serve, when required, notices, orders and other papers upon the person named, and service will be deemed to be service upon the applicant.
(b) Subsection (a) supersedes 1 Pa. Code § 35.2 (relating to contents of applications).
§ 5.13. Applications for construction or alteration of crossings.
(a) Applications for construction, relocation, alteration, protection or abolition of a crossing under section 2702 of the act (relating to construction, relocation, suspension, and abolition of crossings) must comply substantially with the requirements as to crossing complaints as set forth in § 3.361 (relating to crossing complaints).
(b) Plans submitted for the construction, relocation, alteration, protection or abolition of a crossing complained against shall be accompanied by the names and post office addresses of the record owners of all property necessary to be acquired in the execution thereof, and shall, when directed by the Commission, be supplemented by a description by metes and bounds of all property necessary to be acquired.
§ 5.14. Applications requiring notice.
(a) General rule. Notice of applications to the Commission for authority under the act must be published in the Pennsylvania Bulletin and as may otherwise be required by the Commission.
(b) Supplemental requirements. The Secretary may require additional publication or notification in one or more of the following ways:
(1) Publication in a newspaper of general circulation serving the geographical territory affected by the application.
(2) Actual notification to the parties affected by the application.
(3) Another form of actual or constructive notification, including service of the application on interested persons.
(c) Protest deadlines. The time for filing protests to applications is governed by § 5.53 (relating to time of filing of protests).
(d) Publication of application. Except as set forth in §§ 3.361--3.363, 3.501 and 57.71--57.77 as relating to the 60-day protest period, or as otherwise provided by the Secretary, application to the Commission for the following types of authority will be published in the Pennsylvania Bulletin and, as directed by the Secretary, in a newspaper of general circulation serving the geographical territory affected by the application and shall be subject to a 15-day protest period.
(1) To initiate fixed utility service to the public, including the following:
(i) Electric.
(ii) Gas.
(iii) Telephone.
(iv) Water.
(v) Wastewater.
(vi) Pipeline.
(vii) Radio-telephone common carrier service.
(2) To initiate, in a different nature or to a different territory than is currently authorized, fixed utility service to the public, including the following:
(i) Electric.
(ii) Gas.
(iii) Telephone.
(iv) Water.
(v) Wastewater.
(vi) Pipeline.
(vii) Radio-telephone common carrier service.
(3) To abandon, in whole or in part, fixed utility service to the public, including to the following:
(i) Electric.
(ii) Gas.
(iii) Telephone.
(iv) Water.
(v) Wastewater.
(vi) Pipeline.
(vii) Radio-telephone common carrier service.
(4) To initiate rail utility service to the public.
(5) To initiate, in a different nature or to a different territory than is currently authorized, rail utility service to the public.
(6) To abandon, in whole or in part, rail utility service to the public.
(7) To acquire or transfer tangible or intangible utility property through sale, merger, consolidation, lease or transfer of stock.
(8) To acquire 5% or more of the voting stock of another corporation.
(9) To secure exemption under section 619 of the Pennsylvania Municipalities Planning Code (53 P. S. § 10619).
(10) To construct, alter or abandon, in whole or in part, or to change the status of a rail utility agency station or team track.
FORMAL COMPLAINTS § 5.22. Content of formal complaint.
(a) A formal complaint must set forth the following:
(1) The name, mailing address, telephone number, telefacsimile number and electronic mailing address, if applicable, of the complainant.
(2) If the complainant is represented by an attorney, the name, mailing address, telephone number, telefacsimile number and Pennsylvania Supreme Court identification number of the attorney and, if available, the electronic mailing address.
(3) The name, mailing address and certificate or license number of the respondent complained against, if known, and the nature and character of its business.
(4) The interest of the complainant in the subject matter--for example, customer, competitor, and the like.
(5) A clear and concise statement of the act or omission being complained of including the result of any informal complaint or informal investigation.
(6) A clear and concise statement of the relief sought.
(7) Except for a document referenced within § 5.21(b) (relating to formal complaints generally), a document, or the material part thereof, or a copy must be attached when a claim is based upon the document, the material part thereof, or a copy. If the document, the material part thereof, or a copy is not accessible, the complaint must set forth that the document, the material part thereof, or the copy is not accessible and the reason, and set forth the substance of the document or material part thereof.
(b) A verification executed in accordance with § 1.36 (relating to verification) shall be attached to the formal complaint.
(c) A complaint brought by a public utility or other person licensed by the Commission regarding the act, a regulation or order of the Commission must be substantially in the form prescribed by subsection (a). The complaint must reference the act, the regulation or order and shall quote the pertinent portions thereof.
(d) Subsections (a) and (c) supersede 1 Pa. Code § 35.10 (relating to form and content of formal complaints).
§ 5.24. Satisfaction of formal complaints.
(a) If the respondent satisfies a formal complaint either before or after a hearing, the complainant shall file with the Commission a certified statement to that effect. The certified statement must set forth that the complaint is satisfied and that the complaint docket should be marked closed. The presiding officer is not required to render a decision upon submission of the certified statement concerning the satisfaction of a complaint unless the parties request one for good cause.
(b) In lieu of the certified statement required by subsection (a), the respondent may provide a certified writing to the Commission that it has addressed the complaint and at least one of the following:
(1) That the complainant has acknowledged satisfaction to the respondent.
(2) That the complainant has acknowledged to the respondent that the complainant no longer wishes to pursue the complaint.
(c) In the case of certification of satisfaction under subsection (b), the respondent shall simultaneously serve a copy of the respondent's certified writing, including a statement informing the complainant of the complainant's right to object in writing within 10 days, upon the complainant. Unless the complainant objects, in writing, to the certification within 10 days of its filing, the complaint docket will be marked closed.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.41 (relating to satisfaction of complaints).
§ 5.31. Staff-initiated complaints.
(a) A Commission bureau may commence a proceeding pursuant to statutory or regulatory authority or pursuant to delegation by the Commission by filing a complaint in accordance with § 5.22 (relating to content of formal complaint). The complaint will contain a statement of the particular matter about which the bureau is complaining or inquiring, and the complaint will require that the respondent named file a written answer in the form required by § 5.61 (relating to answers to complaints, petitions and motions).
(b) A Commission bureau filing a complaint under this section involving a fixed utility or licensee will provide a copy to the Office of Trial Staff, the Chief Counsel, the Office of Consumer Advocate, and the Office of Small Business Advocate.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.14 (relating to orders to show cause).
§ 5.32. Complaints in rate proceedings.
(a) Prior to suspension. A person may file a complaint against a general rate increase within the meaning of section 1308(d) of the act (relating to voluntary changes in rates) within the time period specified in the notice provided to customers of the tariff filing.
(b) After suspension. A person filing a complaint during the suspension of a proposed general rate increase shall take the record of the suspended rate proceeding as it stands at the time of the complaint's filing.
PETITIONS § 5.41. Petitions generally.
(a) General requirements. Petitions for relief under the act or other statute that the Commission administers, must be in writing, state clearly and concisely the interest of the petitioner in the subject matter, the facts and law relied upon, and the relief sought. Petitions for relief must comply with § 1.51 (relating to Instructions for service, notice, and protest).
(b) Service. A copy of the petition shall be served on all persons directly affected and on other parties whom petitioner believes will be affected by the petition. Copies of the petition shall be served upon the office of trial staff, the Office of Consumer Advocate and the Office of Small Business Advocate. Service shall be evidenced with a certificate of service filed with the petition.
(c) Copies. Copies shall also be served as directed by the Commission.
(d) Subsection (a) supersedes 1 Pa. Code § 35.17 (relating to petitions generally).
§ 5.42. Petitions for declaratory orders.
(a) Petitions for the issuance of a declaratory order to terminate a controversy or remove uncertainty must:
(1) State clearly and concisely the controversy or uncertainty which is the subject of the petition.
(2) Cite the statutory provision or other authority involved.
(3) Include a complete statement of the facts and grounds prompting the petition.
(4) Include a full disclosure of the interest of the petitioner.
(b) The petitioner shall serve a copy of the petition on the Office of Trial Staff, Office of Consumer Advocate, Office of Small Business Advocate, all persons directly affected and on other parties who petitioner believes will be affected by the petition. Service shall be evidenced with a certificate of service filed with the petition.
(c) Copies shall also be served in compliance with Commission direction.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.19 (relating to petitions for declaratory orders).
§ 5.43. Petitions for issuance, amendment, repeal, or waiver of Commission regulations.
(a) A petition to the Commission for the issuance, amendment, waiver or repeal of a regulation must set forth clearly and concisely the interest of the petitioner in the subject matter, the specific regulation, amendment, waiver or repeal requested, and cite by appropriate reference the statutory provision or other authority involved. The petition must set forth the purpose of, and the facts claimed to constitute the grounds requiring the regulation, amendment, waiver or repeal. Petitions for the issuance or amendment of a regulation shall incorporate the proposed regulation or amendment.
(b) A copy of the petition shall be served on all persons directly affected and on other parties who petitioner believes will be affected by the petition. Copies of the petition shall be served on the Office of Trial Staff, the Office of Consumer Advocate and the Office of Small Business Advocate. Service be evidenced with a certificate of service filed with the petition.
(c) Copies shall also be served in compliance with Commission direction.
(d) Subsection (a) is identical to 1 Pa. Code § 35.18 (relating to petitions for issuance, amendment, waiver or repeal of regulations).
§ 5.44. Petitions for appeal from actions of the staff.
(a) Actions taken by staff, other than a presiding officer, under authority delegated by the Commission, will be deemed to be the final action of the Commission unless appealed to the Commission within 20 days after service of notice of the action, unless a different time period is specified in this chapter or in the act.
(b) An action taken by staff under delegated authority will note the parties' right to appeal the action under this section.
(c) Petitions for appeal from the actions of the staff will be addressed by the Commission at public meeting.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.20 (relating to appeals from actions of the staff).
PROTESTS § 5.51. Protest to an application.
(a) A person objecting to the approval of an application filed with the Commission may file a protest to the application.
(b) Protests to motor carrier property applications are not permitted. See § 3.381(c) (relating to applications for transportation of property, household goods in use and persons).
(c) Subsection (a) supersedes 1 Pa. Code § 35.23 (relating to protest generally).
§ 5.52. Content of a protest to an application.
(a) Form. A protest to an application must:
(1) Set out clearly and concisely the facts from which the alleged interest or right of the protestant can be determined.
(2) State the grounds of the protest .
(3) Set forth the facts establishing the protestant's standing to protest.
(b) Motor carrier. Protests in motor carrier cases must conform with § 3.381(c)(1) (relating to applications for transportation of property and persons).
(c) Filing and service. A protest shall be filed with the Secretary and served upon the applicant or the applicant's attorney, if any.
§ 5.53. Time of filing.
A protest shall be filed within the time specified in the published notice of the application. If no protest time is specified, the protest shall be filed within 60 days of publication of the notice.
§ 5.54. (Reserved).
ANSWERS § 5.61. Answers to complaints, petitions, motions, and preliminary objections.
(a) Time for filing. Unless a different time is prescribed by statute, the Commission, or the presiding officer, answers to complaints and petitions shall be filed with the Commission within 20 days after the date of service.
(1) Answers to motions shall be filed within the 20 days provided by §§ 5.102 and 5.103 (relating to motions for summary judgment and judgment on the pleadings; and motions).
(2) Answers to preliminary objections shall be filed within the 10 days provided by § 5.101 (relating to preliminary objections).
(b) Form of answers to complaints. The answer must be in writing and:
(1) Set forth in paragraphs numbered to correspond with the complaint.
(2) Advise the parties and the Commission as to the nature of the defense.
(3) Admit or deny specifically all material allegations of the complaint.
(4) State concisely the facts and matters of law relied upon.
(5) Include a copy of a document, or the material part of a document when relied upon in the answer. If the writing or a copy is not available, the answer must set forth that the document is not available and the reason, and set forth the substance of the document.
(c) Failure to file an answer to a complaint. A respondent failing to file an answer within the applicable period may be deemed in default, and relevant facts stated in the pleadings may be deemed admitted.
(d) Answers to complaints in rate proceedings. For complaints which are docketed with Commission-instituted rate proceedings, an answer may be filed within 10 days of date of service. However, an answer is not required, except as may be directed by the Commission or the presiding officer.
(e) Form of answers to petitions. The answer must be in writing and:
(1) Advise the parties and the Commission of the parties' position on the issues raised in the petition.
(2) State the parties' standing to participate in any Commission proceeding resulting from the petition.
(3) State concisely the facts and matters of law relied upon.
(4) Include a copy of a document, or the material part of a document when relied upon in the answer. If the writing or a copy is not available, the answer must set forth that the document is not available and the reason, and set forth the substance of the document.
(f) Supersession. Subsections (b)--(e) supersede 1 Pa. Code § 35.35 (relating to answers to complaints and petitions).
§ 5.62. Answers seeking affirmative relief or raising new matter.
(a) Answers seeking affirmative relief. In its answer, a respondent may seek relief against other parties in a proceeding if common questions of law or fact are present. The answer must conform to this chapter for answers generally and set forth:
(1) The facts constituting the grounds of complaint.
(2) The provisions of the statutes, rules, regulations or orders relied upon.
(3) The injury complained of.
(4) The relief sought.
(b) Answers raising new matter. An affirmative defense shall be pleaded in an answer or other responsive pleading under the heading of ''New Matter.'' A party may set forth as new matter another material fact which is not merely a denial of the averments of the preceding pleading.
§ 5.63. Replies to answers seeking affirmative relief or new matter.
(a) Unless otherwise ordered by the Commission, replies to answers seeking affirmative relief or to new matter shall be filed with the Commission and served within 20 days after date of service of the answer, but not later than 5 days prior to the date set for the commencement of the hearing.
(b) Failure to file a timely reply to new matter may be deemed in default, and relevant facts stated in the new matter may be deemed to be admitted.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.39 (relating to replies to respondents seeking affirmative relief).
§ 5.65. Answers to amendments of pleadings.
(a) Except as provided under § 5.101 (referring to preliminary objections), an answer to an amendment, modification or supplement to an application, complaint, petition or other pleading set forth under § 5.91 (referring to amendments of pleadings generally) shall be filed with the Commission within 20 days after the date of service of the amendment, modification or supplement, unless for cause the Commission or presiding officer with or without motion prescribes a different time.
(b) Subsection (a) supersedes 1 Pa. Code § 35.40 (relating to answers to amendments of pleadings).
§ 5.66. Answers to petitions to intervene.
(a) A party may file an answer to a petition to intervene within 20 days of service, and in default thereof, may be deemed to have waived objection to the granting of the petition. Answers shall be served upon all other parties.
(b) Subsection (a) supersedes 1 Pa. Code § 35.36 (relating to answers to petitions to intervene).
INTERVENTION § 5.73. Form and content of petitions to intervene.
(a) Petitions to intervene must set out clearly and concisely the following:
(1) The facts from which the alleged intervention right or interest of the petitioner can be determined.
(2) The grounds of the proposed intervention.
(3) The petitioner's position regarding the issues in the proceeding.
(b) When the circumstances warrant, petitions to intervene filed on behalf of more than one person may be required to list those persons and entities comprising the represented group.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.29 (relating to form and contents of petitions to intervene).
§ 5.74. Filing of petitions to intervene.
(a) Petitions to intervene may be filed following the filing of an application, petition, complaint or other document seeking Commission action.
(b) Petitions to intervene shall be filed:
(1) No later than the date fixed for the filing of responsive pleadings in an order or notice with respect to the proceedings but not less than the notice and protest period established under §§ 5.14 and 5.53 (relating to applications requiring notice; and time of filing) absent good cause shown.
(2) No later than the date fixed for filing protests as published in the Pennsylvania Bulletin except for good cause shown.
(3) In accordance with § 5.53 if no deadline is set in an order or notice with respect to the proceedings.
(4) A statutory advocate may exercise a right of participation or file a notice of intervention consistent with law at any time in a proceeding. A statutory advocate exercising a right of participation or filing a notice of intervention following expiration of any protest or intervention period shall take the record as developed unless determined otherwise in exceptional circumstances for good cause shown.
(c) Except with regard to statutory advocates under subsection (b)(4), intervention will not be permitted once an evidentiary hearing has concluded absent extraordinary circumstances.
(d) The Commission or presiding officer may, when the circumstances warrant, permit the waiver of the requirements of § 5.409 (relating to copies and form of documentary evidence) with respect to copies of exhibits for the intervenor.
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.30 (relating to filing of petitions to intervene).
§ 5.75. Notice, service and action on petitions to intervene.
(a) Notice and service. Petitions to intervene, when tendered to the Commission for filing, must show service thereof upon all parties to the proceeding in conformity with § 1.54 (relating to service by a party).
(b) Action on petitions. As soon as practicable after the expiration of the time for filing answers to petitions as provided in § 5.66 (relating to answers to petitions to intervene), the Commission or presiding officer will grant or deny the petition in whole or in part or may, if found to be appropriate, authorize limited participation.
(c) Rights upon grant of petition. Admission as an intervenor will not be construed as recognition by the Commission that the intervenor has a direct interest in the proceeding or might be aggrieved by an order of the Commission in the proceeding. Intervenors are granted no rights which survive discontinuance of a case.
(d) Actions on petitions filed after a hearing has commenced. Except with regard to statutory advocates under § 5.74(b)(4) (relating to filing of petitions to intervene), petitions to intervene may be filed or will be acted upon during a hearing unless prohibited by the Commission or presiding officer after opportunity for all parties to object.
(e) Supersession. Subsections (a)--(d) supersede 1 Pa. Code § 35.31 (relating to notice and action on petitions to intervene).
AMENDMENT AND WITHDRAWAL OF PLEADINGS § 5.91. Amendments of pleadings generally.
(a) Generally. A modification of or supplement to an application, complaint, petition or other pleading shall be deemed as an amendment to the pleading, and must comply with the requirements of this subchapter relating to the pleading amended.
(b) Amendments in response to preliminary objections. A party may file an amended pleading as of course within 20 days after service of a copy of a preliminary objection filed under § 5.101 (referring to preliminary objections). If a party has filed an amended pleading as of course, the preliminary objections to the original pleading shall be deemed moot.
(c) Limitation. Except as otherwise provided in this subchapter, no amendment to a pleading may be filed within 5 days preceding the commencement of or during a hearing unless directed or permitted by the Commission or the presiding officer after opportunity for all parties to be heard thereon.
(d) Exception in rate cases. This section does not apply to an increase in the aggregate amount of a general rate increase request.
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.48 (relating to amendments of pleadings generally).
§ 5.92. Amendments to conform to the evidence.
(a) Amendment by consent. When the parties introduce issues at a hearing not raised by the pleadings whether by express or implied consent of the parties, the issues shall be treated in all respects as if they had been raised in the pleadings.
(b) Amendments by motion. Amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise new issues may be made upon motion of a party at any time during the hearing as set forth in § 5.102 (relating to motions for summary judgment and judgment on the pleadings).
(c) Amendment following objection. If evidence upon new issues is objected to on the ground that it is not within the issues raised by the pleadings, the Commission or the presiding officer may allow the pleadings to be amended and the evidence to be received, when it appears that the presentation of the merits of the proceedings will be served thereby without prejudicing the public interest or the rights of a party.
(d) Continuance following objection. A continuance may be granted by the Commission or the presiding officer under § 1.15 (relating to extensions of time and continuances) when necessary to allow the objecting party to address new issues and evidence.
(e) Notice of amendment. If an amendment adopted under this section has the effect of broadening the issues in the proceeding, notice of the amendment shall be given in the same manner as notice was given at the commencement of the proceeding and to the same persons who received the notice.
(f) Supersession. Subsections (a)--(e) supersede 1 Pa. Code § 35.49 (relating to amendments to conform to the evidence).
§ 5.93. Directed amendments.
(a) The Commission may at any time, or during a hearing, presiding officers may on their own motion or the motion of a party, direct parties to state their case by way of amendment more fully or in more detail. The amendment shall be reduced to writing and filed within the time fixed by the Commission or the presiding officer.
(b) Subsection (a) is identical to 1 Pa. Code § 35.50 (relating to directed amendments).
§ 5.94. Withdrawal of pleadings in a contested proceeding.
(a) Except as provided in subsection (b), a party desiring to withdraw a pleading in a contested proceeding may file a petition for leave to withdraw the appropriate document with the Commission and serve it upon the other parties. The petition must set forth the reasons for the withdrawal. A party may object to the petition within 20 days of service. After considering the petition, an objection thereto and the public interest, the presiding officer or the Commission will determine whether the withdrawal will be permitted.
(b) A protest to an application may be withdrawn by filing a notice of withdrawal directed to the Commission or the presiding officer. The notice must state that the protest is withdrawn and provide the reasons for the withdrawal.
(c) Withdrawal or termination of an uncontested proceeding is governed by § 1.82 (relating to withdrawal or termination).
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.51 (relating to withdrawal of pleadings).
PRELIMINARY OBJECTIONS § 5.101. Preliminary objections.
(a) Grounds. Preliminary objections are available to parties and may be filed in response to a pleading except motions and prior preliminary objections. Preliminary objections must be accompanied by a notice to plead, must state specifically the legal and factual grounds relied upon and be limited to the following:
(1) Lack of Commission jurisdiction or improper service of the pleading initiating the proceeding.
(2) Failure of a pleading to conform to this chapter or the inclusion of scandalous or impertinent matter.
(3) Insufficient specificity of a pleading.
(4) Legal insufficiency of a pleading.
(5) Lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action.
(6) Pendency of a prior proceeding or agreement for alternative dispute resolution.
(b) Notice to plead. A preliminary objection must contain a notice to plead which states that an answer to the objection shall be filed within 10 days of the date of service of the objection.
(c) General rule. Preliminary objections shall be raised at one time. The preliminary objections must be set forth in numbered paragraphs, state with specificity the legal and factual grounds relied upon, and may be inconsistent. Two or more preliminary objections may be raised in one pleading.
(d) Time for filing and form. Preliminary objections shall be filed as a separate document and within the same 20 days provided for in § 5.61 (relating to answers to complaints, petitions, and motions). Except as provided for in subsection (e), the filing of preliminary objections may not eliminate the requirement to file an answer to the complaint or other initiating pleading.
(e) Preliminary objection regarding insufficient specificity.
(1) If a preliminary objection regarding insufficient specificity in a pleading is filed, an answer is not required until further directed by the presiding officer or the Commission.
(2) When an amended pleading is filed in response to a preliminary objection alleging insufficient specificity in a pleading, the preliminary motion will be deemed to be moot in accordance with § 5.91 (relating to amendment of pleadings generally).
(f) Answer to a preliminary objection.
(1) Time for filing. An answer to a preliminary objection may be filed within 10 days of date of service.
(2) Form. The answer must be in writing and in numbered paragraphs to correspond with the preliminary objection, and address the legal and factual grounds relied on in the preliminary objection.
(g) Decision by presiding officer. A preliminary objection will be decided within 30 days of the assignment of the preliminary objection to the presiding officer.
(h) Amended pleading. If a preliminary objection is granted, the party who submitted the stricken pleading has the right to file an amended pleading within 10 days of service of the order.
(i) Supersession. Subsections (a)--(h) supersede 1 Pa. Code §§ 35.54 and 35.55 (relating to motions as to complaint; and motions as to answer).
§ 5.102. Motions for summary judgment and judgment on the pleadings.
(a) Generally. After the pleadings are closed, but within a time so that the hearing is not delayed, a party may move for judgment on the pleadings or summary judgment. A motion must contain a notice which states that an answer or other responsive pleading shall be filed within 20 days of service of the motion.
(b) Answers. An answer to a motion for judgment on the pleadings or summary judgment, including an opposing affidavit or verification to a motion for summary judgment, may be filed within 20 days of the date of service of the motion. The answer to a motion for summary judgment may be supplemented by depositions, answers to interrogatories or further affidavits and admissions.
(c) Motion for summary judgment. A motion for summary judgment must be based on the pleadings and depositions, answers to interrogatories, admissions and supporting affidavits. Documents not already filed with the Commission shall be filed with the motion.
(d) Decisions on motions.
(1) Standard for grant or denial on all counts. The presiding officer will grant or deny a motion for judgment on the pleadings or a motion for summary judgment, as appropriate. The judgment sought will be rendered if the applicable pleadings, depositions, answers to interrogatories and admissions, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.
(2) Standard for grant or denial in part. The presiding officer may grant a partial summary judgment if the pleadings, depositions, answers to interrogatories and admissions, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law on one or more but not all outstanding issues.
(3) Form of decision. The presiding officer will grant, in whole or in part, the motion in the form of an initial or recommended decision which shall be subject to exceptions as set forth in § 5.533 (relating to exceptions). Denial of a motion will be in the form of a written order.
§ 5.103. Motions.
(a) Scope and content. A request may be made by motion for relief desired, except as may be otherwise expressly provided in this chapter and Chapters 1 and 3 (relating to rules of administrative practice and procedure; and special provisions). A motion must set forth the ruling or relief sought, and state the grounds therefor and the statutory or other authority upon which it relies.
(b) Presentation of motions. A motion may be made in writing at any time, and a motion made during a hearing may be stated orally upon the record, or the presiding officer may require that an oral motion be reduced to writing and filed separately. Written motions must contain a notice which states that a responsive pleading shall be filed within 20 days of the date of service of the motion.
(c) Response to motions. A party has 20 days from the date of service within which to answer or object to a motion, unless the period of time is otherwise fixed by the Commission or the presiding officer.
(d) Rulings on motions.
(1) The presiding officer is authorized to rule and will rule upon motions:
(i) Not formerly acted upon by the Commission prior to the commencement of the hearing where an immediate ruling is essential in order to proceed with the hearing.
(ii) Filed or made after the commencement of the hearing and prior to the submission of a decision in the proceeding.
(2) A motion made during the course of hearing, which if granted would otherwise dispose of parties' rights, should be acted upon by the presiding officer prior to taking further testimony if, in the opinion of the presiding officer, the action is warranted.
(3) If a motion involves a question of jurisdiction, the establishment of a prima facie case or standing, the presiding officer may render a final determination with regard to a motion prior to the termination of hearings by issuing an initial or recommended decision.
(e) Supersession. Subsection (a) is identical to 1 Pa. Code § 35.177 (relating to scope and contents of motions). Subsection (b) is identical to 1 Pa. Code § 35.178 (relating to presentation of motions). Subsection (c) supersedes 1 Pa. Code § 35.179 (relating to objections to motions). Subsection (d) supersedes 1 Pa. Code § 35.180 (relating to action on motions).
Subchapter B. HEARINGS
GENERAL § 5.201. Notice of proceeding; hearing; waiver of hearing.
(a) When notice and hearing are required under the act, publication in the Pennsylvania Bulletin of a notice of application or other initial pleading is sufficient to provide notice of the proceeding. Service on interested persons is also sufficient to provide notice. The notice must fix a reasonable period of time, but not less than 15 days, within which a person desiring to be heard may file a petition to intervene, a protest, complaint or other appropriate pleading. Hearings will be held upon the filing of the pleading, unless waived by the parties.
(b) If the appropriate pleading is not filed within the set period of time, or when the parties have waived hearings, the Commission may dispose of the matter without a hearing upon the basis of the pleadings or submittals and the studies and recommendations of the staff.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 35.101, 35.103 and 35.121 (relating to waiver of hearing; preliminary notice to Department of Justice; and initiation of hearings).
§ 5.202. Scheduling of hearing.
(a) The Commission will schedule hearings other than those involving the lawfulness of rates and will maintain a hearing calendar of all proceedings set for hearing.
(b) Proceedings pending on the calendar will be heard so far as practicable, in their order of assignment to the calendar at the times and places fixed by the Commission or presiding officer, giving regard to the convenience and necessity of the parties and their attorneys.
(c) The Commission or the presiding officer in the exercise of discretion, for cause, may advance or postpone proceedings on the hearing calendar with notice to the parties.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.102 (relating to hearing calendar).
§ 5.203. Hearing in rate proceedings.
(a) Hearing dates in rate proceedings will be fixed by the presiding officer.
(b) The presiding officer will be guided by the requirement of section 315 of the act (relating to burden of proof) that rate cases are to be given preference over all other proceedings, and are to be decided as speedily as possible.
(c) The presiding officer may continue a scheduled hearing upon his own motion or upon the request of a party for good cause shown. Mere convenience or other engagements of counsel will not ordinarily constitute grounds for continuance.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 35.121 and 35.123 (relating to initiation of hearings; and conduct of hearings).
NOTICE OF HEARING § 5.212. Notice of nonrulemaking proceedings.
(a) The presiding officer, the Office of Administrative Law Judge or the Commission is authorized to schedule prehearing conferences and hearings. Parties shall be given reasonable notice of the time and place of the prehearing conference or hearing. In fixing the time and place of conferences and hearings, regard will be given to the convenience and necessity of the parties or their attorneys so far as time and the proper execution of the functions of the Commission permit.
(b) A protestant in a motor carrier case shall attend the initial hearing or prehearing conference, if one has been scheduled. Failure to attend may result in the dismissal of the protest by the Commission or presiding officer.
(c) Subsection (a) supersedes 1 Pa. Code §§ 35.105 and 35.106 (relating to notice of nonrulemaking proceedings; and contents of notice of nonrulemaking proceedings).
PREHEARING AND OTHER CONFERENCES § 5.221. Conferences to adjust, settle or expedite proceedings.
(a) To provide opportunity for the submission and consideration of facts, arguments, offers of settlement or proposals of adjustment, for settlement of a proceeding, or the issues therein, or consideration of means by which the conduct of the hearing may be facilitated and the disposition of the proceeding expedited, conferences between the parties may be held at any time prior to or during hearings as time, the nature of the proceeding, and the public interest permit.
(b) Subsection (a) is identical to 1 Pa. Code § 35.111 (relating to conferences to adjust, settle or expedite proceedings).
§ 5.222. Initiation of prehearing conferences in nonrate proceedings.
(a) To make possible a more effective use of hearing time in formal proceedings, other than rate proceedings which are governed by § 5.224 (relating to prehearing conference in rate proceedings), to otherwise expedite the orderly conduct and disposition of the proceedings and to serve the ends of justice and the public interest, it is the policy of the Commission to arrange for conferences between parties to the proceedings prior to the commencement of hearings.
(b) The Commission, or the presiding office may direct that a prehearing conference be held, and direct the parties to the proceeding to appear to consider the matters enumerated in subsection (c). Notice of the time and place of the conference shall be given to all parties to the proceeding. The conferences may be conducted telephonically.
(c) The following matters shall be considered at prehearing conference:
(1) The possibilities for settlement of the proceeding, subject to the approval of the Commission.
(2) The amount of hearing time which will be required to dispose of the proceeding and the establishment of a schedule of hearing dates.
(3) Arrangements for the submission of direct testimony of witnesses in writing in advance of hearing to the extent practicable, and for the submission in advance of hearing or written requests for information which a party contemplates asking another party to present at hearing.
(4) Other matters that may aid in expediting the orderly conduct and disposition of the proceeding and the furtherance of justice, including the following:
(i) The simplification of the issues.
(ii) The exchange and acceptance of service of exhibits proposed to be offered in evidence.
(iii) The obtaining of admissions as to, or stipulations of, facts not remaining in dispute, or the authenticity of documents which might properly shorten the hearing.
(iv) The limitation of the number of witnesses.
(v) A proposed plan and schedule of discovery which may include specific limitations on the number of written interrogatories and requests for admissions a party may propound on another party.
(d) Parties and counsel will be expected to attend the conference fully prepared for a useful discussion of all problems involved in the proceeding, both procedural and substantive, and fully authorized to make commitments with respect thereto.
(1) The preparation must include submission of a prehearing memorandum and list:
(i) The presently identified issues.
(ii) The names and addresses of the witnesses.
(iii) The proposed area of testimony of each witness.
(2) The preparation may include:
(i) Development of a proposed procedural schedule.
(ii) Advance study of all relevant materials.
(iii) Advance informal communication between the parties, including requests for additional data and information, to the extent it appears feasible and desirable.
(e) Failure of a party to attend the conference, after being served with notice of the time and place thereof, without good cause shown, shall constitute a waiver of all objections to the agreements reached and to an order or ruling with respect thereto.
(e) Subsections (a)--(c) supersede 1 Pa. Code § 35.112 (relating to conferences to expedite hearings). Subsection (d) is identical to 1 Pa. Code § 35.113 (relating to initiation of conferences).
§ 5.223. Authority of presiding officer at conferences.
(a) The presiding officer at a conference may dispose of procedural matters which he is authorized to rule upon during the course of the proceeding. When it appears that the proceeding would be substantially expedited by distribution of proposed exhibits and written prepared testimony reasonably in advance of the hearing session, the presiding officer, at his discretion, and with regard for the convenience and necessity of the parties, may direct advance distribution by a prescribed date. The rulings of the presiding officer made at the conference will control the subsequent course of the hearing, unless modified for good cause shown.
(b) The presiding officer will have authority to participate in the discussions, to arrange for recording stipulations or agreements reached at conference, to fix the date of initial hearing and the date for additional hearings which may be required to dispose of the proceeding, and otherwise to assist the parties to reach agreement that will expedite the proceeding and serve the ends of justice.
(c) The presiding officer may participate in settlement discussions upon agreement of all parties. A different presiding officer or a mediator, if appropriate, will be assigned by the Chief Administrative Law Judge to participate in settlement discussions upon the request of a party.
(d) Subsection (a) is identical to 1 Pa. Code § 35.114 (relating to authority of presiding officer at conference) and subsection (b) supplements § 35.114.
§ 5.224. Prehearing conference in rate proceedings.
(a) In a rate proceeding, the presiding officer may schedule the following:
(1) A first prehearing conference to establish a schedule for discovery and tentative hearing dates, as well as the matters in § 5.222 (relating to initiation of prehearing conferences in nonrate proceedings).
(2) Other conferences as deemed necessary.
(3) A conference held telephonically, upon agreement of the parties.
(b) The first prehearing conference shall be held as soon as practicable after the entry of the order of investigation. The parties shall come to the first prehearing conference prepared to discuss the following:
(1) A proposed plan and schedule of discovery, which may include specific limitations on the number of written interrogatories and requests for admissions a party may propound on another party.
(2) Other proposed orders with respect to discovery, including the establishment of sanctions (in addition to those provided by §§ 5.371 and 5.372 (relating to sanctions-general; and sanctions-types)) against any party failing to respond to discovery in a timely manner.
(3) Tentative scheduling of evidentiary hearings, close of the record, filing of briefs and other matters deemed appropriate.
(c) At the first prehearing conference, parties may submit a written statement addressing the issues in subsection (b) and shall list:
(1) The presently identified issues.
(2) The names and addresses of the witnesses.
(3) The proposed area of testimony of each witness.
(d) Following the first prehearing conference, the presiding officer will enter an order establishing a tentative set of hearing dates, establishing a plan and schedule for discovery, determining whether a public input hearing will be held, if that decision has not already been made, and addressing other matters deemed necessary.
(e) Further prehearing conferences may be scheduled at the discretion of the presiding officer.
(f) The presiding officer, or the Commission will have the authority to amend the requirements of this section either sua sponte or upon motion of a party.
(g) The rules applicable to prehearing and other conferences in §§ 5.221--5.223 (relating to conferences to adjust, settle or expedite proceedings; initiation of prehearing conferences in nonrate proceedings; and authority of presiding officer at conferences) are applicable to prehearing conferences in rate cases except to the extent they are inconsistent with this section.
SETTLEMENTS § 5.231. Offers of settlement.
(a) It is the policy of the Commission to encourage settlements.
(b) Nothing contained in this chapter or Chapter 1 or 3 (relating to rules of administrative practice and procedure; and special provisions) preclude a party in a proceeding from submitting, at any time, offers of settlement or proposals of adjustment, or from requesting conferences for that purpose.
(c) Parties may request that the presiding officer participate in the settlement conferences or that an additional presiding officer or mediator be designated to participate in the settlement conferences.
(d) Offers of settlement, of adjustment, or of procedure to be followed, and proposed stipulations not agreed to by every party, including proposals intended to resolve discovery disputes, will not be admissible in evidence against a counsel or party claiming the privilege.
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.115 (relating to offers of settlement).
§ 5.232. Settlement petitions and stipulations of fact.
(a) Generally. A settlement petition, which may contain stipulations of fact by all or some of the parties, shall be filed with the Secretary in accordance with § 5.41 (relating to petitions generally).
(b) Positions of the parties. A settlement agreement must specifically identify the parties:
(1) Supporting the settlement.
(2) Opposing the settlement.
(3) Taking no position on the settlement.
(4) Denied an opportunity to enter into the settlement.
(c) Service. A copy of each settlement petition, which may contain stipulations of fact by all or some of the parties, shall be served upon each party to the proceeding, and each party shall have the opportunity to comment on the proposed settlement unless otherwise ordered by the presiding officer.
(d) Review of settlement by the presiding officer. The settlement petition will be reviewed by the presiding officer, if one has been assigned. If the presiding officer rules on the petition, the ruling will be made in the form of an initial or recommended decision, subject to § 5.537 (relating to rate case settlements), if approved, or in the form of an order, if disapproved. The presiding officer will determine if the settlement is in the public interest.
(e) Waiver of exceptions. The exception period may be waived upon agreement of the parties.
(f) Disposition of exceptions. If timely exceptions are filed, they will be considered in a ruling made on the settlement petition.
(g) Review of a settlement petition by the Commission. When no presiding officer has been assigned, the Commission will review the settlement. Parties not joining in the settlement may submit objections to the Commission within 20 days of the filing of the petition unless another time period is set by the Commission.
§ 5.233. Refusal to make admissions or stipulations.
(a) Generally. A party may move for sanctions under subsection (b) when the following conditions are satisfied:
(1) A party refuses to admit or stipulate to the genuineness of documents or the truth of matters of fact during a conference convened under this chapter and Chapter 1 or 3 (relating to rules of administrative practice and procedure; and special provisions).
(2) The party requesting the admissions or stipulations thereafter proves the genuineness of the document or the truth of a matter of fact.
(b) Sanctions. The requesting party may apply to the presiding officer for an order requiring the other party to pay the reasonable expenses incurred in making the proof, including reasonable attorney's fees. The presiding officer will grant an order for sanctions unless the presiding officer finds that there were good reasons for the refusal to admit or stipulate or that the admissions or stipulations sought were of no substantial importance.
(c) Appeal. An interlocutory appeal may be taken to the Commission immediately from the order made by a presiding officer under Subchapter C (relating to interlocutory review).
(d) Compliance. If a party refuses to comply with the order after it becomes final, the Commission or presiding officer may strike all or part of the pleadings of the party or limit or deny further participation by the party.
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.116 (relating to refusal to make admissions or stipulate).
§ 5.234. Presentation and effect of stipulations.
(a) Parties may stipulate to relevant matters of fact or the authenticity of relevant documents. The stipulations may be received in evidence at a hearing, and when so received shall be binding on the parties to the stipulation with respect to the matters therein stipulated.
(b) The parties may make stipulations independently of orders or rulings issued under §§ 5.221--5.224 (relating to prehearing and other conferences).
(c) The Commission may disregard in whole or in part a stipulation of facts under this section but may grant further hearing if requested by a party to the stipulation within 15 days after issuance of a Commission order disregarding the stipulation of fact.
(d) Subsections (a)--(b) supersede 1 Pa. Code § 35.155 (relating to presentation and effect of stipulations). Subsection (c) supplements 1 Pa. Code § 35.155.
§ 5.235. Restrictive amendments to applications for motor carrier of passenger and household goods in use authority.
(a) Parties to motor carrier applications for passenger and household goods in use authority may stipulate as to restrictions or modifications to proposed motor carrier rights. Stipulations in the form of restrictive amendments or modifications must:
(1) Be in writing.
(2) Explain why the stipulation is in the public interest.
(3) Be signed by each party to the stipulation.
(4) Be submitted to the Secretary for insertion into the document folder.
(b) Restrictive amendments shall be binding on the parties but not on the Commission if it is determined they are not in the public interest. If a restrictive amendment is not accepted by the Commission, it may remand the matter for appropriate proceedings.
HEARINGS § 5.241. Attendance.
(a) The presiding officer before whom the hearing is held will enter upon the record all parties in attendance.
(b) Subsection (a) supersedes 1 Pa. Code § 35.124 (relating to appearances).
§ 5.242. Order of procedure.
(a) In a proceeding, the party having the burden of proof, shall open and close unless otherwise directed by the presiding officer. In a hearing on investigations and in proceedings which have been consolidated for hearing, the presiding officer may direct who will open and close. Oral rejoinder, if proposed by the party with the burden of proof, shall be completed before any cross-examination of the witness is conducted.
(b) Intervenors shall follow the party on whose behalf the intervention is made. If the intervention is not in support of an original party, the presiding officer will designate at what stage the intervenor will be heard.
(c) In proceedings when the evidence is peculiarly within the knowledge or control of another party, the order of presentation set forth in subsections (a) and (b) may be varied by the presiding officer.
(d) The presiding officer may direct the order of parties for purposes of cross-examination, subject to § 5.243(f) (relating to presentation by parties).
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.125 (relating to order of procedure).
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
