[36 Pa.B. 2097]
[Continued from previous Web Page] § 5.243. Presentation by parties.
(a) A party, has the right of presentation of evidence, cross-examination, objection, motion and argument subject to the limitations in §§ 5.75 and 5.76 (relating to notice, service and action on petitions to intervene; and limitation of participation in hearings). The taking of evidence and subsequent proceedings shall proceed with reasonable diligence and with the least practicable delay.
(b) When an objection to the admission or exclusion of evidence before the Commission or the presiding officer is made, the ground relied upon shall be stated briefly. A formal exception is unnecessary and may not be taken to rulings thereon.
(c) The presiding officer may require or allow a factual statement of the scope of a pleading or the position of a party in the proceeding. Facts admitted on the record by a party or by testimony, exhibits or in writing, need not be further proved.
(d) The Commission or the presiding officer may limit appropriately the number of witnesses who may be heard upon an issue.
(e) A party will not be permitted to introduce evidence during a rebuttal phase which:
(1) Is repetitive.
(2) Should have been included in the party's case-in-chief .
(3) Substantially varies from the party's case-in-chief.
(f) If a party conducts friendly cross-examination of a witness, the presiding officer may permit the other parties a second opportunity to cross-examine after friendly cross-examination is completed. The recross-examination shall be limited to the issues on which there was friendly cross-examination.
(g) Subsections (a)--(f) supersede 1 Pa. Code § 35.126 (relating to presentation by the parties).
§ 5.245. Failure to appear, proceed or maintain order in proceedings.
(a) After being notified, a party who fails to be represented at a scheduled conference or hearing in a proceeding will:
(1) Be deemed to have waived the opportunity to participate in the conference or hearing.
(2) Not be permitted thereafter to reopen the disposition of a matter accomplished at the conference or hearing.
(3) Not be permitted to recall witnesses who were excused for further examination.
(b) Subsection (a)(1)--(3) does not apply if the presiding officer determines that the failure to be represented was unavoidable and that the interests of the other parties and of the public would not be prejudiced by permitting the reopening or further examination. Counsel shall be expected to go forward with the examination of witnesses at the hearing under § 5.242 (relating to order of procedure), or as has been otherwise stipulated or has been directed by the presiding officer.
(c) If the Commission or the presiding officer finds, after notice and opportunity for hearing, that the actions of a party, including an intervenor, in a proceeding obstruct the orderly conduct of the proceeding and are inimical to the public interest, the Commission or the presiding officer may take appropriate action, including dismissal of the complaint, application, or petition, if the action is that of complainant, applicant, or petitioner.
TRANSCRIPT § 5.251. Recording of proceedings.
(a) If required by law, hearings will be stenographically reported by the Commission's official reporter.
(b) Notwithstanding the review provisions of § 5.252 (relating to review of testimony), the hearing transcript will be a part of the record and the sole official transcript of the proceeding.
(c) The transcripts will include a verbatim report of the hearings and nothing will be omitted therefrom except as is directed by the presiding officer. Changes in the transcript must be made as provided in § 5.253 (relating to transcript corrections).
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.131 (relating to recording of proceedings).
§ 5.252. Review of testimony.
(a) In proceedings when testimony was electronically recorded and subsequently transcribed, a party may review the recording to ensure it was transcribed accurately.
(b) Review will not be permitted except upon written request within 20 days after the transcript has been filed with the Commission.
(c) Upon request for review, the Office of Administrative Law Judge will schedule a time and place for the review which shall be open to all parties. The court reporting firm shall submit the tapes and equipment necessary for the review and shall arrange for the court reporter responsible for transcribing the tapes to be present at the review.
(d) Actual costs associated with making the tapes available for review, including the time of the court reporter, shall be paid by the party requesting review.
(e) Nothing in this section requires the electronic recording of testimony.
§ 5.253. Transcript corrections.
(a) A correction in the official transcript may be made only to make it accurately reflect the evidence presented at the hearing and to speak the truth.
(b) Proposed corrections of a transcript may be submitted by either of the following means:
(1) By written stipulation by the parties of record who were present when the transcription was taken.
(2) Upon written request of one or more parties of record present when the transcription was taken.
(c) Proposed corrections shall be filed as follows:
(1) Within 10 days after the transcript has been filed with the Commission.
(2) Within 10 days after the electronically recorded testimony has been reviewed.
(3) Upon permission of the presiding officer granted prior to the closing of the record.
(d) Objections or other comments to the proposed corrections shall be filed within 10 days of service of the proposed corrections.
(e) Proposed corrections and objections or other comments shall be served upon the parties of record present when the original transcription was taken.
(f) The presiding officer will rule upon a proposed correction of a transcript within 20 days of its receipt. A request for corrections not acted upon within 20 days is deemed to be:
(1) Denied if opposed in a timely manner.
(2) Granted if unopposed.
(g) Subsections (a)--(f) supersede 1 Pa. Code § 35.132 (relating to transcript corrections).
Subchapter C. INTERLOCUTORY REVIEW § 5.302. Petition for interlocutory Commission review and answer to a material question.
(a) During the course of a proceeding, a party may file a timely petition directed to the Commission requesting review and answer to a material question which has arisen or is likely to arise. The petition must be in writing with copies served on all parties and the presiding officer and state, in not more than three pages, the question to be answered and the compelling reasons why interlocutory review will prevent substantial prejudice or expedite the conduct of the proceeding.
(b) Within 10 days of service of the petition, each party may submit a brief directed to the Commission supporting or opposing the petition and addressing the merits of the question for which an answer is requested and whether a stay of proceedings is required to protect the substantial rights of a party. The brief may not exceed 15 pages.
(c) The petitioning party shall also provide with the brief rulings on its question and extracts from the record as will assist the Commission in reaching a decision.
(d) Additional briefs are not permitted unless directed by the Commission.
§ 5.303. Commission action on petition for interlocutory review and answer.
(a) Within 30 days of receipt of the petition, the Commission will, without permitting oral argument, do one of the following:
(1) Continue, revoke or grant a stay of proceedings if necessary to protect the substantial rights of the parties.
(2) Determine that the petition was improper and return the matter to the presiding officer.
(3) Decline to answer the question.
(4) Answer the question.
(b) The Commission will act promptly on petitions. Petitions for Commission review and answer which are not granted within 30 days of filing will be deemed to be denied.
§ 5.304. Interlocutory review of discovery matters.
(a) General. Rulings of presiding officers on discovery are not subject to interlocutory review unless one or more of the following apply:
(1) Interlocutory review is ordered by the Commission.
(2) Interlocutory review is certified by the presiding officer.
(3) The ruling has as its subject matter the deposing of a Commissioner or Commission employee.
(b) Standard for certification. A presiding officer may certify that a discovery ruling is appropriate for interlocutory review when the ruling involves an important question of law or policy that should be resolved immediately by the Commission.
(c) Petition for certification. A petition for interlocutory review of a presiding officer's ruling on discovery must:
(1) Be filed within 3 days of the ruling.
(2) Be in writing.
(3) State the question to be certified and the reasons why interlocutory review will prevent substantial prejudice or expedite the conduct of the proceedings.
(4) Be no more than 3 pages in length.
(5) Be filed with the Secretary and served on all parties and the presiding officer.
(d) Responsive brief. A party may file a responsive brief within 7 days of a request for certification, which:
(1) Either supports or opposes certification.
(2) Addresses the merits of the question for which certification is requested.
(3) Addresses whether a stay of proceedings is required to protect the substantial rights of a party.
(4) Does not exceed 15 pages.
(e) Presiding officer's decision. The presiding officer will announce the decision in writing or orally on the record within 5 days of the deadline for filing responsive briefs. The presiding officer's decision will include the reasons why certification has been granted or denied and whether a stay of the proceedings has been granted.
(1) If the presiding officer denies the request for certification, no further action is required of the presiding officer.
(2) If the presiding officer's decision is to grant the request for certification, the presiding officer will serve to each Commissioner the certified question within 5 days of the announcement of the decision. The presiding officer will include the reasons justifying certification, rulings on the certified question and extracts from the record that will assist the Commission in reaching a decision.
(f) Brief to the Commission following certification. Parties may submit a brief to the Commission and no other briefs are permitted unless directed by the Commission. A brief may not exceed 15 pages and must address:
(1) The issue of certification.
(2) The merits of the certified question.
(3) The stay of proceedings, when appropriate.
(g) Scheduling of certified question. Upon the expiration of the time provided for filing briefs, the Secretary will schedule the certified question for consideration at the next meeting of the Commission.
(h) Action by the Commission. Within 30 days of receipt of the certified question by the Secretary, the Commission will, without permitting oral argument, do one of the following:
(1) Continue, revoke or grant a stay of proceedings.
(2) Determine that the certification was improper and return the matter to the presiding officer for resolution.
(3) Answer the certified question.
(i) Failure to act. Failure of the Commission to act on a certified question within 30 days of its receipt will be deemed to be an affirmance of the decision of the presiding officer.
(j) Effect on proceedings. An interlocutory appeal from the ruling of the presiding officer on discovery will not result in a stay of the proceedings except upon a finding by the presiding officer or the Commission that extraordinary circumstances exist, or to protect the substantial rights of the parties.
§ 5.305. Interlocutory review of a material question submitted by a presiding officer.
(a) During the course of a proceeding, a presiding officer may certify to the Commission for review and answer a material question which has arisen or is likely to arise. The question will be accompanied by the following:
(1) An explanation of the compelling reasons why interlocutory review will prevent prejudice or expedite the conduct of the proceeding.
(2) A statement as to whether a stay of the proceedings has been placed in effect.
(3) An extract from the record that will assist the Commission.
(b) A copy of the question certified and the accompanying information will be served on the parties at the same time it is submitted to the Commission.
(c) Within 7 days of service of the certification, each party may submit a brief directed to the Commission addressing the merits of the question for which an answer is requested and whether a stay of proceedings is required to protect the substantial rights of a party. The brief may not exceed 15 pages.
(d) Additional briefs will not be permitted unless directed by the Commission.
(e) Within 30 days of receipt of the certified question, the Commission will, without permitting oral argument, do one of the following:
(1) Continue, revoke or grant a stay of proceedings.
(2) Determine that the certification was improper and return the matter to the presiding officer for resolution.
(3) Answer the certified question.
(f) Failure of the Commission to act upon a certified question within 30 days of its receipt will be deemed to be an affirmance of the decision of the presiding officer.
§ 5.306. Expedited notification.
A presiding officer may order notification of parties by telephone, telefacsimile or other electronic means when time periods are short and delivery by mail may not prove adequate. Notification by means other than by mail will be confirmed by the presiding officer by service in writing and a filing will be made with the Secretary regarding confirmation.
Subchapter D. DISCOVERY
GENERAL § 5.321. Scope.
(a) Applicability. This subchapter applies to a proceeding in which:
(1) A complaint, protest or other adverse pleading has been filed.
(2) The Commission institutes an investigation.
(3) The Commission institutes an on-the-record proceeding.
(b) Discretion. The presiding officer may vary provisions of this subchapter as justice requires.
(c) Scope. Subject to this subchapter, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of another party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of a discoverable matter. It is not ground for objection that the information sought will be inadmissible at hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(d) Exceptions. This subchapter does not apply to discovery sought of Commissioners or Commission staff serving in an advisory or adjudicatory capacity.
(e) Commission staff. This subchapter applies equally to Commission staff serving in a prosecutory or party capacity in proceedings before the Commission, with no exceptions other than as specifically set forth in this chapter.
(f) Purpose and methods. A party may obtain discovery for the purpose of preparation of pleadings, or for preparation or trial of a case, or for use at a proceeding initiated by petition or motion, or for any combination of these purposes, by one or more of the following methods:
(1) Deposition upon oral examination or written questions.
(2) Written interrogatories to a party.
(5) On the record data requests in rate cases.
(g) Supersession. Subsections (a)--(e) supersede 1 Pa. Code § 35.145 (relating to depositions).
§ 5.322. Informal agreement regarding discovery or deposition procedure.
The parties may by agreement provide that depositions may be taken before a person authorized to administer oaths, at any time or place, upon any notice, and in any manner, and when so taken may be used like other depositions. The parties may modify the procedures provided by this chapter for methods of discovery and, notwithstanding any provisions of this subchapter, parties are encouraged to exchange information on an informal basis.
§ 5.323. Hearing preparation material.
(a) Generally. Subject to this subchapter and consistent with Pa. R.C.P. 4003.3 (relating to scope of discovery trial preparation material generally), a party may obtain discovery of any matter discoverable under § 5.321(b) (relating to scope) even though prepared in anticipation of litigation or hearing by or for another party or by or for that other party's representative, including his attorney, consultant, surety, indemnitor, insurer or agent. The discovery may not include disclosure of the mental impressions of a party's attorney or his conclusions, opinions, memoranda, notes, summaries, legal research or legal theories. With respect to the representative of a party other than the party's attorney, discovery may not include disclosure of his mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy, tactics or preliminary or draft versions of written testimony or exhibits, whether or not final versions of the testimony or exhibits are offered into evidence.
(b) Statements. Upon written request, a party is entitled to immediate receipt of a photostatic copy or like reproduction of a statement concerning the action or its subject matter previously made by that party, another party or a witness. If the statement is not provided, the party may move for an order from the presiding officer. For purposes of this subsection, a statement previously made is one of the following:
(1) A written statement signed or otherwise adopted or approved by the person making it.
(2) A stenographic, mechanical, electrical or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
§ 5.324. Discovery of expert testimony.
(a) Consistent with Pa.R.C.P. 4003.5 (relating to discovery of expert testimony trial preparation material), discovery of facts known and opinions held by an expert, otherwise discoverable under § 5.321 (relating to scope), including that acquired or developed in anticipation of litigation or for hearing, may be obtained as follows:
(1) A party may through interrogatories require both of the following:
(i) That the other party identify each person whom the party expects to call as an expert witness at hearing and to state the subject matter on which the expert is expected to testify.
(ii) That the other party have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as the answer a report of the expert, have the interrogatories answered by the expert or provide written direct testimony of the expert. The answer, separate report or testimony shall be signed by the expert and shall be deemed to be provided under oath in accordance with section 333(d) of the act (relating to prehearing procedures).
(2) If the party against whom discovery is sought, under paragraph (1)(ii), responds by the filing of written direct testimony, the response shall be considered timely, regardless of § 5.342 (relating to answers or objections to written interrogatories by a party), if the written direct testimony is served on all parties at least 20 days prior to the date on which the expert is scheduled to testify or in accordance with the schedule for the submission of written testimony established by the presiding officer. However, the party shall still comply with paragraph (1)(i) within the time otherwise applicable.
(3) Upon cause shown, the presiding officer may order further discovery by other means, subject to restrictions as to scope and provisions concerning fees and expenses as he may deem appropriate.
(b) An expert witness whose identity is not disclosed in compliance with subsection (a)(1) will not be permitted to testify on behalf of the defaulting party at hearing. If the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the presiding officer may grant a continuance or other appropriate relief.
(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subsection (a), the expert's direct testimony at hearing may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, written direct testimony or supplement thereto. The expert will not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.
(d) The answering party may supplement answers only to the extent that facts, or opinions based on those facts, can reasonably be shown to have changed after preparation of the answer or when additional facts or information have become known to the answering party or when the interest of justice otherwise requires.
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.152 (relating to fees of officers and deponents).
TIMING AND SUPPLEMENTAL RESPONSES § 5.331. Sequence and timing of discovery.
(a) A party to the Commission proceeding may conduct discovery.
(b) A party shall initiate discovery as early in the proceedings as reasonably possible. In a proceeding, the right to discovery commences when a complaint, protest or other adverse pleading is filed or when the Commission institutes an investigation or on the record proceeding, whichever is earlier.
(c) Commission staff may initiate discovery at an earlier time. Commission staff discovery prior to formal Commission action to initiate a proceeding shall be designated as ''Staff data requests'' and shall be answered fully and completely by the utility within the time periods specified in § 5.342(d) (relating to answers or objections to written interrogatories by a party). Unless a presiding officer has been designated, objections and motions to compel shall be ruled upon by the Chief Administrative Law Judge.
(d) In a rate proceeding, initial discovery directed to data or information supplied by the public utility at the time of the initiation of the proceeding shall be submitted to the utility within 10 working days following the first prehearing conference. The presiding officer may establish reasonable limitations upon the timing of discovery.
(e) Unless the presiding officer upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery will not operate to delay another party's discovery.
§ 5.332. Supplementing responses.
A party or an expert witness who has responded to a request for discovery with a response that was complete when made is under a duty to supplement a response to include information thereafter acquired, as follows:
(1) A party is under a continuing duty to supplement responses with respect to a question directly addressed to the identity and location of persons having knowledge of discoverable matters and the identity of each person expected to be called as an expert witness at hearing, the subject matter on which the expert is expected to testify and the substance of the testimony as provided in § 5.324(a)(1) (relating to discovery of expert testimony).
(2) A party or an expert witness is under a continuing duty to amend a prior response upon discovering that the response is incorrect or incomplete.
(3) A duty to supplement responses may be imposed by order of the presiding officer, agreement of the parties, or at a time prior to hearing through new requests to supplement prior responses.
TYPES OF DISCOVERY § 5.341. Written interrogatories to a party.
(a) Subject to the limitations provided by § 5.361 (relating to limitation of scope of discovery and deposition), a party may serve upon another party written interrogatories to be answered by the party served or, if the party served is a public or private corporation, similar entity or a partnership or association, by an officer or agent, who shall furnish the information as is available to the party.
(b) The party propounding interrogatories shall serve a copy on the parties and shall file a certificate of service with the Secretary. Interrogatories may not be filed with the Commission.
(c) Interrogatories may relate to matters which can be inquired into under §§ 5.321, 5.323 and 5.324 (relating to scope; hearing preparation material; and discovery of expert testimony) and may include requests that the answering party provide copies of documents without making a separate request for the production of documents under § 5.349 (relating to requests for documents, entry for inspection and other purposes).
(d) Each interrogatory should be limited to a single question or request for information.
(e) A party should use a logical and sequential numbering system for interrogatories.
§ 5.342. Answers or objections to written interrogatories by a party.
(a) Form. Answers to interrogatories must:
(1) Be in writing.
(2) Identify the name and position of the individual who provided the answer.
(3) Be submitted as an answer and may not be submitted as an exhibit or in another form.
(4) Answer each interrogatory fully and completely unless an objection is made.
(5) Restate the interrogatory which is being answered or be inserted in the spaces provided in the interrogatories.
(6) Be verified in accordance with § 1.36 (relating to verification).
(b) Use. An answer may be used by a party for an appropriate purpose, if admissible under the applicable rules of evidence. An answer may not be offered into evidence by the party who provided it, except through the sworn oral testimony of the person who provided the answer.
(c) Objections. An objection shall be prepared, filed and served in the same manner provided for an answer, except that an objection shall be contained in a document separate from an answer as required by the time provisions of subsection
(d) An objection must:
(1) Restate the interrogatory or part thereof deemed objectionable and the specific ground for the objection.
(2) Include a description of the facts and circumstances purporting to justify the objection.
(3) Be signed by the attorney making it.
(4) Not be valid if based solely on the claim that an answer will involve an opinion or contention that is related to a fact or the application of law to fact.
(5) Not excuse the answering party from answering the remaining interrogatories or subparts of interrogatories to which no objection is stated.
(d) Service of answer. The answering party shall serve answers on the parties within 15 days for rate proceedings, and 20 days after service of the interrogatories for other cases. Time periods may be modified by the presiding officer, on motion or by agreement of the parties.
(e) Service of objections. The objecting party shall serve objections within 10 days of service of the interrogatories.
(1) The objecting party shall serve copies of the objection on the parties, along with a certificate of service, which specifically identifies the objectionable interrogatories.
(2) The objecting party shall file a copy of the certificate of service with the Secretary.
(f) Continuing obligation. The objecting party shall remain under an obligation to timely provide answers to interrogatories or subparts of interrogatories that were not objected to.
(g) Motion to compel. Within 10 days of service of an objection to interrogatories, the party submitting the interrogatories may file a motion requesting the presiding officer to dismiss an objection and compel that the interrogatory be answered. If a motion to compel is not filed within 10 days of service of the objection, the objected to interrogatory will be deemed withdrawn.
(1) The party against whom the motion to compel is directed shall file an answer within 5 days of service of the motion absent good cause or, in the alternative, respond orally at the hearing if a timely hearing has been scheduled within the same 5-day period.
(2) The presiding officer will rule on the motion as soon as practicable. The motion should be decided within 15 days of its presentation, unless the motion presents complex or novel issues. If it does have complex or novel issues, the presiding officer will, upon notice to the parties, rule in no more than 20 days of its presentation.
§ 5.343. Procedures in deposition by oral examination.
(a) A party desiring to take the deposition of a person upon oral examination, other than under § 5.322 (relating to informal agreement regarding discovery or deposition procedure), shall give 20 days notice in writing to the active party and to the presiding officer. A party noticed to be deposed is required to appear without subpoena. A person who is not a party is not required to appear unless subpoenaed.
(b) The notice must conform with subsections (c)--(f) and § 5.344 (relating to approval by presiding officer) and state the time and place of taking the deposition and the name and address of each person to be examined if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs.
(c) The notice must include a brief statement of the matters for which inquiry is being made.
(d) If the person to be examined is a party, the notice may include a request made in compliance with § 5.349 (relating to requests for documents, entry for inspection and other purposes) for the production of documents and tangible things at the taking of the deposition. If the person to be examined is not a party, and is to be served with a subpoena duces tecum to provide designated materials, the notice shall specify the materials to be produced.
(e) A party may in his notice and in a subpoena, if issued, name as the deponent a public or private corporation, a partnership or association or a governmental agency. In that event, the organization named shall file within 10 days of service a designation of one or more officers, directors or managing agents, or other persons who consent to testify on its behalf, and may set forth, for the persons designated, the matters on which he will testify. A subpoena shall advise a nonparty organization of its duty to make a designation. The person designated shall testify as to matters known or reasonably available to the organization. This subsection does not preclude taking a deposition by other procedures authorized in this chapter.
(f) An objection to the notice of deposition may be filed within 10 days of service of the notice. A copy of the objection shall be served upon the presiding officer and the parties. A notice of deposition which is served upon a nonparty must state that the nonparty may file objections within 10 days of service and identify the persons--names and addresses--to whom the objections shall be sent.
(g) Subsections (a)--(f) supersede 1 Pa. Code §§ 35.142, 35.145 and 35.146 (relating to subpoenas; depositions; and notice and application).
§ 5.344. Approval by presiding officer.
(a) Notice of the deposition served upon the presiding officer, under § 5.343(a) (relating to procedures in deposition by oral examination), constitutes an application for an order to take a deposition under section 333(b) of the act (relating to prehearing procedures). The copy served on the presiding officer shall have attached a proposed order containing the following language: ''Application granted. So Ordered this __ day of _____ .'' and bear a signature line for the presiding officer.
(b) The application will be granted by the presiding officer, except as provided in § 5.324(a)(3) (relating to discovery of expert testimony), or for failure to comply with § 5.343 or subsection (c), or if objected to within 10 days. The presiding officer will consider a timely filed objection and §§ 5.324(a)(3), 5.343 and subsection (c) before ruling upon the application.
(c) If a party provides notice scheduling the taking of a deposition prior to an expiration of 20 days after initiation of the proceedings, the party shall set forth the facts requiring the expedited discovery, and the presiding officer will consider whether expedited discovery is warranted.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.147 (relating to authorization of taking deposition).
§ 5.345. Procedure on depositions by written questions.
(a) A party taking a deposition by written questions shall serve the questions upon the deponent and serve a copy upon each other party or his attorney of record. Within 30 days thereafter the party served and other parties may serve cross questions upon the deposing party and upon each other party or the attorney of record. Reply questions shall be similarly served by a party within 10 days of the service of cross questions.
(b) The questions must contain a notice stating the name and address of each person to be examined if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. A deposition upon written questions may be taken of a public or private corporation, a partnership or association, or a governmental agency in accordance with § 5.343(e) (relating to procedures in deposition by oral examination).
(c) Objections to the form of questions are waived unless filed and served upon the party propounding them within the time allowed for serving the succeeding cross or other questions or within 10 days after service of the last questions. Other objections may be made at the hearing except as otherwise provided by §§ 5.346--5.348 (relating to persons before whom depositions may be taken; taking of depositions-objections; and transcript of deposition, objections and filing).
(d) A copy of questions for the taking of a deposition, as well as a signature page and envelope bearing the caption and marked ''Deposition of ______'' (name of witness), shall be transmitted to the person being deposed who shall complete, certify and return the completed deposition to the sender.
(e) After the service of questions and prior to the taking of the testimony of the deponent, the presiding officer, on motion promptly made by a party or a deponent, may make an order in accordance with § 5.362 (relating to protective orders) or an order that the deposition may not be taken except upon oral examination.
§ 5.347. Taking of depositions-objections.
(a) Objection to taking a deposition because of the disqualification of the person before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(b) Objections to the competency of a witness or to the competency, relevancy or materiality of the testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground for the objection is one which was known to the objecting party and which might have been obviated or removed if made at that time.
(c) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of oral questions or answers, in the oath or affirmation or in the conduct of parties and errors which might have been obviated, removed or cured if objections had been promptly made, are waived unless reasonable objection is made at the taking of the deposition.
(d) Errors and irregularities in the notice for taking a deposition are waived unless written objection is served upon the party giving the notice under § 5.344 (relating to approval by presiding officer).
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.151 (relating to status of deposition as part of record).
§ 5.348. Transcript of deposition, objections and filing.
(a) The person before whom the deposition is taken shall put the witness on oath or affirmation and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness.
(b) The testimony of the witness shall be transcribed. Objections to the manner of preparation or the correctness of the transcript are waived unless they are filed in writing with the presiding officer promptly after the grounds of objection become known or could have been discovered with reasonable diligence.
(c) When the testimony is fully transcribed, a copy of the deposition with the original signature page shall be submitted to the witness for inspection and signing and shall be read to or by him and shall be signed by him unless the witness is ill or cannot be found or refuses to sign. Changes which the witness desires to make shall be entered upon the deposition by the person before whom it was taken with a statement of the reasons given by the witness for making the changes. If the deposition is not signed by the witness within 30 days of its submission to him, the person before whom the deposition was taken shall sign it and state on the record why it was not signed. The deposition may then be used as fully as though signed, unless the presiding officer holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
(d) The person before whom the deposition is taken shall certify on the deposition that the witness was sworn by the person and the deposition is a true record of the testimony given by the witness.
(e) In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written questions to the person taking the deposition, who shall propound them to the witness and record the answers verbatim.
(f) Upon payment of reasonable charges, the person before whom the deposition was taken shall furnish a copy thereof to parties or to the deponent.
(g) Subsections (a)--(f) supersede 1 Pa. Code § 35.149 (relating to oath and reduction to writing).
§ 5.349. Requests for documents, entry for inspection and other purposes.
(a) A party may serve on another party a request for either of the following:
(1) To produce and permit the party making the request, or someone acting on the party's behalf, to inspect and copy designated documents--including writings, drawings, graphs, charts, photographs, computer records and other compilations of data from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonable usable form--or to inspect a copy, test or sample tangible things which constitute or contain matters within the scope of §§ 5.321(b), 5.323 and 5.324 (relating to scope; hearing preparation material; and discovery of expert testimony) and which are in the possession, custody or control of the party upon whom the request is served.
(2) To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspecting and measuring, surveying, photographing, testing or sampling the property or a designated object or operation thereon, within the scope of §§ 5.321(b), 5.323 and 5.324.
(b) As an alternative to permission to inspect and copy, and if requested by the party seeking discovery, the party against whom discovery is sought shall reproduce the designated documents at the requesting party's expense. Regulated utilities shall provide copies of requested materials to Commission staff, which includes the Office of Trial Staff, the Office of Consumer Advocate and the Office of Small Business Advocate at no charge.
(c) The request must set forth the items to be inspected either by individual item or by category, describe items and categories with reasonable particularity, and specify a reasonable time, place and manner of making the inspection and performing the related acts.
(d) The party upon whom the request is served shall serve a written response within 10 days for rate proceedings, and 20 days after service of the request for all other cases. Time periods may be modified by the presiding officer or by agreement of the parties. The response shall be verified or notarized, as permitted by § 1.36 (relating to verification), and state that inspection and related activities will be permitted as requested. If the request is objected to, the objection shall be made in the manner described in § 5.342 (relating to answers or objections to written interrogatories by a party). A party may request another party to produce or inspect documents as part of interrogatories filed under § 5.341 (relating to written interrogatories to a party). The party submitting the request may move for an order under § 5.342(e) with respect to an objection or to other failure to respond to the request or any part thereof, or failure to permit inspection as requested.
(e) This section does not apply to official files of the Commission, or materials which are the product of or within the control of Commission advisory or adjudicatory staff, but applies only to materials within the control of staff as may be participating in the action as a party. Access to official files of the Commission shall be as prescribed in §§ 1.71--1.77 (relating to public access to Commission records).
§ 5.350. Request for admissions.
(a) General. A party may serve upon another party a written request for the admission of the truth of any matters, within the scope of §§ 5.321--5.324 (relating to general discovery), set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness, authenticity, correctness, execution, signing, delivery, mailing or receipt of a document described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or available for inspection and copying.
(b) Form. Each matter of which an admission is requested shall be separately set forth.
(c) Failure to admit. The matter is admitted unless, within 20 days after service of the request, the party to whom the request is directed answers or makes an objection to the matter, signed by the party or by his attorney.
(d) Response.
(1) Answer. The answer must admit or deny the matter or set forth in detail the reasons why the answering party cannot truthfully do so.
(2) Denial. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.
(3) Objection. Grounds for objections must be specifically stated. A party who considers that a matter of which an admission has been requested presents a genuine issue for hearing may not, on that ground alone, object to the request.
(e) Motion to determine sufficiency of response. The party who has requested the admission may move to determine the sufficiency of the answer or objection. Unless the presiding officer determines that an objection is justified, the presiding officer will order that an answer be served. If the presiding officer determines that an answer does not comply with this section, the presiding officer may order either that the matter is admitted or may determine that final disposition of the request be made at a prehearing conference or at a designated time prior to hearing.
(f) Effect of admission. A matter admitted under this section is conclusively established unless the presiding officer on motion permits withdrawal or amendment of the admission. An admission by a party under this section is for the purpose of the pending action only and is not an admission by him for another purpose. An admission may not be used against a party in another proceeding.
§ 5.351. On the record data requests.
(a) A party may request that a witness provide information or documents at a later time as part of the witness' response to a question posed during cross-examination in the course of a rate proceeding. The request may be made orally or in writing.
(b) Answers shall be supplied as directed by the presiding officer. If no time period is set, the response period may be no later than 10 days after the request is made.
(c) Objections to a request shall be made at the time that the request is made.
LIMITATIONS § 5.361. Limitation of scope of discovery and deposition.
(a) Discovery or deposition is not permitted which:
(1) Is sought in bad faith.
(2) Would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent, a person or party.
(3) Relates to matter which is privileged.
(4) Would require the making of an unreasonable investigation by the deponent, a party or witness.
(b) In rate proceedings, discovery is not limited under subsection (a) solely because the discovery request requires the compilation of data or information which the answering party does not maintain in the format requested, in the normal course of business, or because the discovery request requires that the answering party make a special study or analysis, if the study or analysis cannot reasonably be conducted by the party making the request.
(c) If the information requested has been previously provided, the answering party shall specify the location of the information.
§ 5.362. Protective orders.
(a) Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the presiding officer may make an order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following:
(1) The discovery or deposition shall be prohibited.
(2) The discovery or deposition shall be only on specified terms and conditions, including a designation of the method, time or place.
(3) The scope of discovery or deposition shall be limited and that certain matters may not be inquired into.
(4) Discovery or deposition shall be conducted with no one present except persons designated by the presiding officer.
(5) A deposition shall be sealed and shall be opened only by order of the presiding officer.
(6) The parties simultaneously shall file specified documents or information enclosed in sealed envelopes to be opened as directed by the presiding officer.
(7) A trade secret or other confidential research, development or commercial information may not be disclosed or be disclosed only in a designated way. Protective orders to protect or limit this type of information shall be issued under § 5.423 (relating to orders to limit availability of proprietary information).
(b) If the motion for a protective order is denied in whole or in part, the presiding officer may order that a party or person provide or permit discovery.
(c) During the taking of a deposition on motion of a party or of the deponent, the presiding officer or other administrative law judge may order the officer conducting the examination to cease from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in subsection (a). Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order and to obtain the presiding officer's ruling.
§ 5.364. Use of depositions at hearing.
(a) At hearing, part or all of a deposition, so far as admissible under 42 Pa.C.S. §§ 6101--6112 (relating to rules of evidence), may be used against a party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with one of the following provisions:
(1) A deposition may be used by a party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director or managing agent of a party or a person designated under §§ 5.343(e) or 5.345(a)(2) (relating to procedures in deposition by oral examination; and procedure on depositions by written questions) to testify on behalf of a public or private corporation, partnership, association or governmental agency which is a party, may be used by an adverse party for any purpose.
(3) The deposition of a witness may be used by a party for a purpose if the presiding officer finds one of the following:
(i) The witness is dead.
(ii) The witness is outside this Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition.
(iii) The witness is unable to attend or testify because of age, sickness, infirmity or imprisonment.
(iv) The party offering the deposition has been unable to procure the attendance of the witness by subpoena.
(v) Upon application and notice that exceptional circumstances exist to make it desirable, in the interest of justice and with regard to the importance of presenting the witnesses in hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, another party may require him to introduce all of it which is relevant to the part introduced, and a party may introduce other parts.
(b) Subject to § 5.347(b) (relating to taking of depositions-objections), objection may be made at the hearing to receiving in evidence deposition for reasons which would require the exclusion of the evidence if the witness were then present and testifying.
(c) A party may not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or a part thereof for a purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition. This does not apply to the use by an adverse party of a deposition as described in subsection (a)(2). At the hearing, a party may rebut relevant evidence contained in a deposition whether introduced by him or by another party.
SANCTIONS § 5.371. Sanctions--general.
(a) The Commission or the presiding officer may, on motion, make an appropriate order if one of the following occurs:
(1) A party fails to appear, answer, file sufficient answers, file objections, make a designation or otherwise respond to discovery requests, as required under this subchapter.
(2) A party deponent or an officer or managing agent of a party refuses to obey or induces another to refuse to obey an order of a presiding officer respecting discovery, or induces another not to appear.
(b) A motion for sanctions may be answered within 5 days of service or, in the alternative, the motion may be answered orally at a hearing if a timely hearing has been scheduled within the same 5-day period.
(c) The presiding officer will rule on the motion as soon as practicable. The motion should be decided within 20 days of its presentation.
(d) A failure to act described in subsection (a) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order.
(e) If a deponent refuses to be sworn or to answer a question, the deposition shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on reasonable notice to persons affected thereby, the proponent may apply to the presiding officer for an order compelling the witness to be sworn or to answer.
§ 5.372. Sanctions--types.
(a) The presiding officer, when acting under § 5.371 (relating to sanctions--general) may make one of the following:
(1) An order that the matters regarding which the questions were asked, the character or description of the thing or land, the contents of the paper, or other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing in evidence designated documents, things or testimony.
(3) An order striking out pleadings or parts thereof, staying further proceedings until the order is obeyed, or entering a judgment against the disobedient party or individual advising the disobedience.
(4) An order with regard to the failure to make discovery as is just.
(b) In addition to the sanctions described in subsection (a), in rate proceedings, when a party fails to answer discovery requests on the date due, the presiding officer may issue an order that the hearing schedule be modified, that the deadline for the filing of other parties' written testimony be extended, or that provides other relief that will allow the other parties a sufficient and reasonable opportunity to prepare their cases.
(c) A witness whose identity has not been revealed as provided in this chapter will not be permitted to testify on behalf of the defaulting party at hearing on the action. If the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the presiding officer may grant a continuance or other appropriate relief.
§ 5.373. Subpoenas.
(a) If issuance of a subpoena is required by operation of this chapter, or because a party or witness has not otherwise appeared, issuance of the subpoena shall be in accordance with § 5.421 (relating to subpoenas).
(b) Subsection (a) supersedes 1 Pa. Code § 35.142 (relating to subpoenas).
Subchapter E. EVIDENCE AND WITNESSES
EVIDENCE § 5.401. Admissibility of evidence.
(a) Relevant and material evidence is admissible subject to objections on other grounds.
(b) Evidence will be excluded if:
(1) It is repetitious or cumulative.
(2) Its probative value is outweighed by:
(i) The danger of unfair prejudice.
(ii) Confusion of the issues.
(iii) Considerations of undue delay or waste of time.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.161 (relating to form and admissibility of evidence).
§ 5.402. Admission of evidence.
(a) A party shall move the admission of evidence into the record upon presentation of the sponsoring witness, and after opportunity for other parties to examine the witness.
(b) For an exhibit to be received into evidence, it shall be marked for identification and moved into evidence.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.162 (relating to reception and ruling on evidence).
§ 5.404. Additional evidence.
(a) At any stage of the hearing or thereafter the Commission or the presiding officer may call for further admissible evidence upon an issue and require that the evidence be presented by the parties concerned, either at the hearing or at the adjournment thereof.
(b) Subsection (a) supersedes 1 Pa. Code § 35.128 (relating to additional evidence).
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