PROPOSED RULEMAKING
PENNSYLVANIA PUBLIC
UTILITY COMMISSION
[52 PA. CODE CHS. 1, 3 AND 5]
[L-2023-3041347]
Regulations Governing the Public Utility Commission's General Provisions, 52 Pa. Code Chapters 1, 3, and 5 (relating to Rules of Administrative Practice and Procedure; Special Provisions; and Formal Proceedings)
[54 Pa.B. 7834]
[Saturday, December 7, 2024]Public Meeting held
August 22, 2024Commissioners Present: Stephen M. DeFrank, Chairperson; Kimberly Barrow, Vice Chairperson, statement follows; Ralph V. Yanora, Concurring in Part and Dissenting in Part; Kathryn L. Zerfuss, statement follows; John F. Coleman, Jr., statement follows, Concurring in Part and Dissenting in Part
Regulations Governing the Public Utility Commission's General Provisions, 52 Pa. Code Chapters 1, 3, and 5 (relating to Rules of Administrative Practice and Procedure; Special Provisions; and Formal Proceedings); Docket No. L-2023-3041347
Clarified Notice of Proposed Rulemaking Order By the Commission:
With this Order, the Pennsylvania Public Utility Commission (PUC) clarifies various aspects of the Notice of Proposed Rulemaking Order (NOPR) and accompanying Annex that was entered December 20, 2023 at the above-captioned docket.1 That December 2023 NOPR Order and accompanying Annex was served on the parties and sought comments from them on the proposed amendments to the PUC's regulations at 52 Pa. Code §§ 1.1—1.96, 3.1—3.602, and 5.01—5.633 (relating to rules of administrative practice and procedure; special provisions; and formal proceedings), (Chapters 1, 3, and 5, respectively). Specifically, with this NOPR, the PUC proposes changes to its regulations in order to update and clarify the general provisions in Subpart A of Title 52 surrounding practice before the PUC. This rulemaking proceeding is initiated by this clarified Preamble Order and an accompanying Annex A, which presents the proposed changes to the PUC's Rules of Administrative Practice.
Background
The general provisions regarding practice before the PUC were last revised in 2006.2 Since then, our jurisdic-tional responsibilities have changed considerably, and important technological innovations and advancements have occurred that, if implemented, could bring much-needed efficiencies to the current processes and procedures in PUC administrative hearings and proceedings. As such, in the first quarter of 2016, the PUC announced its intention to revise the PUC's rules of practice and procedure, 52 Pa. Code Chapters 1, 3, and 5, by convening a series of informal stakeholder meetings wherein PUC Staff and attorneys representing clients that regularly practice before the PUC could identify issues and concerns with the existing rules as well as recommend amended language for the PUC's consideration. We stated our intention to solicit additional input regarding proposed revisions and our commitment to carefully consider the views of all interested parties prior to taking formal action. Upon extensive consideration of the input we received from stakeholders, we now enter this Notice of Proposed Rulemaking Order for the requisite review and public comment.
Discussion
I. Proposed Amendments to Chapter 1—Rules of Administrative Practice and Procedure
The PUC recognizes that the rules of administrative practice and procedure need to be updated in order to make PUC proceedings operate in a more efficient manner. Therefore, with the aim of increasing efficiency and clarity in PUC proceedings, the PUC proposes the following amendments to the regulations at 52 Pa. Code §§ 1.1—1.96 for the rationales articulated herein.
52 Pa. Code § 1.3. Information and Special Instructions.
Proposed Change
Section 1.3(a) would be amended to replace ''application'' with ''request.''
Section 1.3(a)(2) would be amended to identify clearly that overnight delivery, certified or priority mail are the mailing options other than first-class mail.
Rationale for Proposed Change
The proposed amendment to Section 1.3(a) would streamline the process for seeking information about the PUC's procedural rules or information regarding hearings. The proposed amendment would clarify that an individual seeking procedural information no longer needs to file an ''application,'' which usually requires approval by the PUC or PUC staff. Additionally, the proposed amendment to Section 1.3(a)(2) is intended to clarify what is meant by the term ''mail other than first-class'' by deleting it and specifically identifying those types of mail service.
52 Pa. Code § 1.4. Filing Generally.
Proposed Change
Section 1.4(a)(2) would be amended to identify clearly that overnight delivery, certified or priority mail are the mailing options other than first-class mail for filings made with the PUC.
Rationale for Proposed Change
The proposed amendment to Section 1.4(a)(2) is intended to bring clarity to what is meant by the term ''mail other than first class'' by deleting it and specifically identifying those types of mail service.
52 Pa. Code § 1.5(a). Amendment to Rules.
Proposed Change
Section 1.5(a) is amended to remove ''persons'' from who may file an application based on the proposed new definition of ''person'' in Section 1.8 (relating to definitions).
Rationale for Proposed Change
The proposed amendment to Section 1.5(a) would allow parties in addition to ''persons'' (e.g., corporations and municipal corporations) to file applications requesting a general and permanent change in the PUC's rules of administrative practice and procedure.
52 Pa. Code § 1.6. Commission Office Hours.
Proposed Change
Section 1.6 would be amended to allow the PUC to modify its office hours.
Rationale for Proposed Change
The proposed amendment to Section 1.6 is intended to recognize that the PUC, as an independent agency, may set its own hours.
52 Pa. Code § 1.7. Sessions of the Commission.
Proposed Changes
Section 1.7 would be amended to incorporate livestreamed and/or telephone public meetings.
Rationale for Proposed Changes
The proposed amendment to Section 1.7 is intended to recognize that the PUC has begun to use livestreamed and telephone public meetings more regularly.
52 Pa. Code § 1.8. Definitions.
Proposed Changes
''Act'' would be amended to replace Section ''3315'' with ''3316.''
''Adjudication'' would be amended to clarify qualifying proceedings under the definition.
''Applicants'' would be amended to change the term to singular form and to clarify qualifying entities under the definition.
''Adversarial proceeding'' would be amended to replace ''other persons'' with ''parties'' to be consistent with the proposed new definition of ''person'' in this section.
''Authorized agent'' would be amended to replace ''person'' with ''representative of a filing user'' to be consistent with the proposed new definition of ''person'' in this section. The definition would also be amended to allow anyone with permission to submit filings to do so, which lowers the previous standard from anyone with permission to ''legally act'' on behalf of the filing user.
''Corporation'' would be added to refer to the definition of ''corporation'' set forth at 66 Pa.C.S. § 102.
''Certified legal intern'' would be added to define the qualifications and conditions under which law students may participate in legal matters before the Commission.
''Electronic mail'' would be amended to address communication methods, including prospective ones such as text messaging.
''Filing user'' would be amended to include corporations and municipal corporations, which were previously included in the definition of ''person,'' and to provide the PUC's updated website URL.
''Initial decision'' would be amended to replace ''participant'' with ''party.''
''Intervenor'' would be amended to include corporations and municipal corporations, which were previously included in the definition of ''person.''
''Municipal corporation'' would be added to refer to the definition of ''municipal corporation'' set forth at 66 Pa.C.S. § 102.
''Nonadversarial proceeding'' would be amended to remove references to ''person.''
''Notarial officer'' would be amended to replace ''persons'' with ''individuals'' in light of the proposed change to the definition of ''person.''
''Party'' would be amended to include ''corporation'' and ''municipal corporation'' in light of the proposed change to the definition of ''person.''
''Person'' would be amended to refer to the definition of ''person'' set forth at 66 Pa.C.S. § 102.
''Petitioners'' would be redefined as ''petitioner'' and the definition amended to replace the term ''persons'' with ''party.''
''Presiding officer'' would be amended to replace the reference to ''a person'' with ''a Commission employee.''
''Principal'' would be amended to replace the reference to ''a party'' with ''an individual'' who can take action on behalf of a partnership, association, corporation, or municipal corporation, and to clarify that the individual can authorize counsel to take specified action on behalf of a partnership, association, corporation, or municipal corporation.
''Protestants'' would be amended to change the term to singular form and to replace ''persons'' with ''a party'' to reflect the change to the definition of ''person.''
''Qualified document'' would be amended to update the PUC's website address and to clarify existing language concerning types of documents that can be filed with the PUC electronically.
''Rate proceeding'' would be amended for brevity.
''Recommended decision'' would be amended for clarity.
''Respondents'' would be amended to change the term to singular form and for brevity and to replace reference to ''person'' with ''a party.''
''Secretary'' would be amended for brevity.
''Staff'' would be amended to remove the outdated reference to the ''Office of Trial Staff'' and to incorporate reference to the ''Bureau of Investigation and Enforcement.''
''Statutory advocate'' would be amended to remove the outdated reference to the ''Office of Trial Staff'' and incorporate reference to the ''Bureau of Investigation and Enforcement.''
''Submittal'' would be amended for clarity.
''Telefacsimile transmittal'' would be redefined as ''fax transmittal'' and amended for clarity.
''Tentative Decision'' would be replaced with ''Tentative Order'' and the definition would be amended for clarity.
''Trade Secret'' would be amended for brevity and clarity.
''Writing or written'' would be amended to update the definition.
Rationale for Proposed Changes
The proposed amendments to Section 1.8 would revise the definition of ''person'' to bring our regulations into line with the definition of ''person'' as set forth in Section 102 of the Public Utility Code (66 Pa.C.S. § 102). The proposed amendments also update the terms ''corporation,'' and ''municipal corporation'' and further incorporate those terms into the existing definition of ''party.'' Where appropriate, the term ''person(s)'' has been replaced with ''party'' or ''parties'' to reflect the regulation's applicability to persons, corporations, and municipal corporations. The proposed amendments to Section 1.8 would also add, clarify and update certain existing definitions.
Additionally, ''act'' would be replaced with ''Act'' throughout the regulations when necessary to refer to the Public Utility Code (Code).
52 Pa. Code § 1.13. Issuance of Commission Orders.
Proposed Changes
Section 1.13 would be amended for clarity and to address references to PUC orders.
Rationale for Proposed Changes
The proposed amendments to Section 1.13 are intended to provide brevity and clarity.
52 Pa. Code § 1.15. Extensions of Time and Continuances.
Proposed Changes
Section 1.15(a)(1) would be amended to change ''person'' to ''Commission employee'' and would amend the language concerning notice of the PUC.
Section 1.15(b) would be amended to add ''to the extent possible'' to the end of the section, regarding when requests for continuances should be filed.
Rationale for Proposed Changes
The proposed amendments to Section 1.15(a)(1) are primarily intended to provide clarity as to who at the Commission is authorized to grant an extension of a time period for filing pursuant to the Commission's regulations, a prior Commission order, or other notice by an authorized Commission employee.
Concerning Section 1.15(b), the PUC provides its administrative law judges (ALJs) who preside over PUC proceedings with the authority to regulate the course of the proceeding, under 52 Pa. Code § 5.483. Nevertheless, there are several existing PUC regulations that either impair ALJ control or do not reflect what occurs in practice.
For example, the PUC's regulation at Section 1.15(b) provides that requests for a continuance of hearings should be filed at least five (5) days prior to the hearing date. However, it is not always possible for a party to submit a request for continuance at least five (5) days prior to the hearing date, especially in the event of illness, and ALJs are oftentimes faced with requests for a continuance less than five (5) days before the start of a hearing. Therefore, the proposed amendment to Section 1.15(b) is intended to recognize that it is not always possible for a party to submit a request for continuance at least five (5) days prior to the hearing date, especially in the event of illness. As ALJs are often faced with requests for a continuance that are submitted less than five (5) days before the start of a hearing, the proposed amendment provides presiding ALJs flexibility in their authority to regulate the course of a proceeding.
Likewise, presiding ALJs often address service of documents by parties during prehearing conferences. A party may express a preference as to how he or she wishes to be served during the course of the proceeding. Therefore, Sections 5.222 (related to initiation of prehearing conferences in nonrate proceedings) and 5.224 (related to Prehearing conference in rate proceedings) would be amended to afford the presiding officer with the authority to address and determine the method of service on parties.
52 Pa. Code § 1.16. Issuance of decisions by presiding officers.
Proposed Changes
Section 1.16(b) would be amended to delete the existing language describing the process for serving presiding officer decisions and simply refer to Section 703(e) of the Public Utility Code, 66 Pa.C.S. § 703(e).
Rationale For Proposed Changes
The proposed amendment to Section 1.16(b) would make the regulation consistent with the process for serving decisions by presiding officers as set forth by the General Assembly in Section 703(e) of the Public Utility Code, 66 Pa.C.S. § 703(e).
52 Pa. Code § 1.21. Appearance.
Proposed Changes
The title of Section 1.21 would be amended to ''appearance in nonadversarial or informal proceedings'' to clarify that it deals with appearances in PUC nonadversarial and informal proceedings only. The text of Section 1.21 would be amended to change ''person'' to ''party'' to specify who can appear on behalf of a party involved in a nonadversarial or informal PUC proceedings.
Section 1.21(c) would be amended to allow a non-attorney third party representative holding the power of attorney for an individual consumer to represent that individual during periods of disability or incapacity, or both.
Rationale for Proposed Changes
The proposed amendment to Section 1.21 is intended to provide a clear distinction between nonadversarial and informal proceedings and adversarial proceeding and states who can appear on behalf of a party in a nonadversarial and informal PUC proceedings. The proposed amendment also provides consistency with the proposed amended definition of ''party'' set forth in Section 1.8.
Further, various administrative agencies permit a party to be represented by a nonlawyer in some circumstances. For example, an individual claiming unemployment compensation (UC) may be represented by a duly authorized agent before the Pa. Department of Labor and Industry, the Unemployment Compensation Board of Review, and a UC referee. See Harkness v. Unemployment Compensation Bd. of Rev., 920 A.2d 162 (Pa. 2007). Also, nonlawyer representatives are permitted to appear on behalf of individuals appearing before the Pa. Department of Human Services, Office of Hearings an Appeals. See Nolan v. Department of Public Welfare, 673 A.2d 414 (Pa. Cmwlth. 1995); and 55 Pa. Code §§ 275.2, 275.3(a), and 275.4(a)(1)(iv). Additionally, the Pa. Department of Revenue, Board of Appeals, specifies that a taxpayer filing an appeal may appear on his own behalf or be represented by someone else with the required technical knowledge who is not necessarily an attorney.
Accordingly, we propose a more permissive approach to representation similar to other administrative agencies would better facilitate the development of evidentiary records in complaint proceedings involving individual consumers.
The proposed amendment to Section 1.21(c) is intended to clarify that a non-attorney third-party representative holding power of attorney may represent an individual in nonadversarial proceedings during periods of disability or incapacity, or both.
52 Pa. Code § 1.22. Appearance by Attorney or Certified Legal Intern.
Proposed Changes
The title of Section 1.22 would be amended to ''appearance in adversarial proceedings'' to clarify that is dealing with appearances in PUC adversarial proceedings only. The amended section would define who can appear on behalf of a party involved in an adversarial proceeding. The proposed amendments also include ''corporations'' and ''municipal corporations'' in order to provide consistency with the proposed amended definition of ''party'' set forth in Section 1.8.
Section 1.22(a) would be amended to allow an authorized corporate official to represent small businesses or partnerships in adversarial proceedings, and to allow a non-attorney third party representative holding the power of attorney for an individual consumer to represent that individual during periods of disability or incapacity, or both.
Section 1.22(b) would be amended by removing the existing language and replacing it with language concerning representation before the Commission in adversarial proceedings.
Section 1.22(c) would be amended by deleting the existing language and replacing it with language stating that Section 1.22(b) supersedes 1 Pa. Code § 31.22 (relating to appearance by attorney). Section 1.22(c) is also amended by inserting the language currently existing at 1.22(b) concerning appearance by attorneys not licensed to practice in the Commonwealth.
Rationale for Proposed Changes
The proposed amendments to Section 1.22 are intended to adequately show that corporations and municipal corporations are subject to this section and clearly state who can appear on their behalf in an adversarial proceeding.
Sections 1.21 through 1.23 of our current rules operate to preclude a corporation or partnership from appearing before the PUC in an adversarial proceeding unless they have legal counsel. This rule relies on case precedent holding that a corporation may appear in court only through an attorney at law admitted to practice before the court. See Walacavage v. Excell 2000, 480 A.2d 281 (Pa. Super. 1984) (citing Simbraw, Inc. v. United States, 367 F.2d 373 (3rd Cir. 1966); MOVE Organization v. Department of Justice, 555 F. Supp. 684 (E.D.Pa. 1983); MacNeil v. Hearst Corp., 160 F. Supp. 157 (D.Del. 1958); Merco Construction Engineers, Inc., v. Municipal Court, 581 P.2d 636 (Ca. 1978); Oahu Plumbing Sheet Metal, Ltd. v. Kona Construction, Inc., 590 P.2d 570 (Haw. 1979)).
However, Rule 207 in the Rules of Procedure of the Magisterial District Judges (MDJ) in Pennsylvania allows corporate or partnership entities to appear pro se although, as noted that is not the case with the Court of Common Pleas and higher courts. It may be that PUC proceedings are more akin to MDJ proceedings, albeit at an administrative level, given the rights of appeal to Pennsylvania courts set out in the Code. Accordingly, the proposed amendment to Section 1.22(a) is intended to grant a more permissive approach to representation for individuals, small businesses, and partnerships, to better facilitate the development of evidentiary records in complaint proceedings involving individual consumers, and the ability of small Pennsylvania businesses to operate and seek redress before the PUC.
As part of the PUC's consideration of whether small businesses and partnerships should continue to be precluded from appearing before the PUC without legal counsel in adversarial proceedings, we seek comment on a prospective definition for ''small business,'' including factors such as size or revenue or the potential adoption of an appropriate definition contained in other law.
52 Pa. Code § 1.23(a). Other Representation Prohibited at Hearings.
Proposed Changes
Section 1.23(a) would be amended to replace ''persons'' with ''parties.''
Rationale for Proposed Changes
The proposed amendment to Section 1.23(a) is intended to clarify that all entities encompassed by the proposed amended definition of ''party'' in Section 1.8 are subject to this section.
52 Pa. Code § 1.24. Notice of Appearance or Withdrawal.
Proposed Changes
Section 1.24(b)(2)(i)(B) would be amended to replace ''not licensed in this Commonwealth'' with ''appearing pro hac vice'' and to remove parentheses in ''jurisdiction(s).''
Section 1.24(b)(2)(i)(D) would be amended to change ''person'' to ''party.''
Section 1.24(b)(2)(ii)(A) would be amended to include language that the attorney must serve notice of appearance.
Section 1.24(b)(3) would be amended to require the attorney to serve notice of withdrawal on the Secretary, the parties and the presiding officer.
Rationale for Proposed Changes
The proposed amendment to Section 1.24(b)(2)(i)(B) is intended to use the appropriate legal language for appearing pro hac vice before the Commonwealth.
The proposed amendment to Section 1.24(b)(2)(i)(D) is intended to create consistency with the proposed amended definition of ''person'' set forth in Section 1.8.
The proposed amendment to Section 1.24(b)(2)(ii)(A) is intended to clarify that the attorney must serve notice of appearance on the parties and a certificate of service with the Secretary.
The proposed amendment to Section 1.24(b)(3) is intended to clarify that the attorney must serve notice of withdrawal on the parties and presiding officer in addition to the Secretary.
52 Pa. Code § 1.27(a). Suspension and Disbarment.
Proposed Changes
Section 1.27(a) would be amended to change ''person'' to ''individual.''
Rationale for Proposed Changes
The proposed amendment to Section 1.27(a) is intended to create consistency with the proposed amended definition of ''person'' set forth in Section 1.8.
52 Pa. Code § 1.31. Requirements for Documentary Filings.
Proposed Changes
Section 1.31(c)(3) would be amended to include ''corporation'' and ''municipal corporation'' in addition to ''person.''
Rationale for Proposed Changes
The proposed amendment to Section 1.31(c)(3) is intended to clarify that, in addition to all entities that fall within the definition of ''person'' at 66 Pa.C.S. § 102, corporations and municipal corporations are also entities on whose behalf a filing can be made.
52 Pa. Code § 1.32. Filing Specifications.
Proposed Changes
Section 1.32(a)(1) would be amended to require that all typewritten documents be one-sided and have margins of at least one inch on all sides.
Section 1.32(a)(2) would be amended to require double-spaced text, except for quotations with a few lines of more, which are to be single-spaced and indented, all printed documents would have to be in at least 12-point font with 10-point font allowed for footnotes, and margins of at least 1 inch throughout.
Section 1.32(b)(1) would be deleted in its entirety.
Section 1.32(b) would further be amended to explain how filings must be filed electronically using the PUC's electronic filing system as it specifies the filing requirements and the PUC's requirement that documentary filings be searchable PDFs.
Rationale for Proposed Changes
The proposed amendments in Section 1.32(a) are intended to ensure that documents submitted to the PUC are accessible and legible. The proposed amendments in Section 1.32(b) are intended to ensure that submitted electronic documents are accessible to the PUC's staff, including the ability to search submitted PDF documents. The proposed deletion of Section 1.32(b)(1), concerning participation in electronic filing, is to reduce confusion given that the PUC is also proposing amendments to Section 1.53, concerning service by the PUC, and Section 1.54, concerning service by a party, which will address participation in electronic service and filing, respectively.
52 Pa. Code § 1.33. Incorporation by Reference.
Proposed Changes
Section 1.33(b) would be amended to remove the specific language ''person filing the current document ascertains that the.''
Rationale for Proposed Changes
The proposed amendment to Section 1.33(b) is intended to provide clarity and brevity.
52 Pa. Code § 1.35. Execution.
Proposed Changes
Section 1.35(b) would be amended to change ''person'' to ''individual'' and ''act'' to ''Act.''
Rationale for Proposed Changes
The proposed amendments Section 1.35(b) are intended to create consistency with the revised definitions in Section 1.8.
52 Pa. Code § 1.36. Verification.
Proposed Changes
Section 1.36(a) would be amended to encourage parties to submit a cover letter with their petition if the petition contains no averment or denial of fact not appearing of record. Section 1.36(a) would be further amended to omit language providing that the verification may be signed by an individual other than a filing user.
Rationale for Proposed Changes
The amendment to incorporate a cover letter is proposed to aid the Secretary's staff in processing filings. It is a best practice for the filing attorney to outwardly communicate whether such averment or denial is made, as the PUC employees processing the filing may or may not be attorneys. Therefore, adding this information in a cover letter will save the Secretary's staff time, as they will not have to review the filing to determine whether the petition contains an averment or denial of fact.
Existing language in Section 1.36(a) states that verifications signed by someone other than the filing user must be refiled with a corrected verification within three days. This proposed amendment removing this language is intended to clarify that verifications must be signed by the appropriate individual upon filing and that improperly verified filings will be rejected.
52 Pa. Code § 1.37. Number of Copies.
Proposed Changes
Section 1.37(a)(3) would be amended to include and allow other electronic storage devices, such as USB flash drives.
Rationale for Proposed Changes
The proposed amendment to Section 1.37(a)(3) is intended to reflect current practice whereby many documents are already submitted to the Secretary's Bureau by USB flash drive.
52 Pa. Code § 1.43. Schedule of Fees Payable to the Commission.
Proposed Changes
Section 1.43(a) would be amended to communicate that the PUC's filing fees are non-refundable.
Section 1.43(a) would also be amended to update the schedule of fees charged by the PUC for processing various filings. Further, Section 1.43(a) would be amended to note that the category of ''applications for amending a certificate'' of public convenience (CPC) includes an application to abandon a CPC.
Rationale for Proposed Changes
The proposed amendment to Section 1.43(a) is intended to address requests by filers seeking a refund of filing fees paid to the PUC. The filing fees collected by the PUC are directly related to the costs of processing filings. If these fees were refundable, the PUC would be responsible for the costs associated with filing, whether the purposes of the filing were met or not. Therefore, it is appropriate that the regulation be amended to clarify that the PUC's filing fees are non-refundable.
The proposed amendment to Section 1.43(a) would also eliminate certain fees. The PUC proposes to eliminate the fees related to intangible transition property notices since they relate to the 1997 restructuring of the electric industry and the retirement of resulting stranded costs and are therefore obsolete.3 The PUC's microfiche records have all been converted to digital format, eliminating the need for any fees related to copies made of microfiche and microfilm rolls. The fee for filing an application for a certificate to discontinue service for intrastate common carrier passenger or household goods in use has been eliminated, due to the difficulty of obtaining this de minimis amount from carriers who have gone out of business.
The proposed amendment to Section 1.43(a) would also add fees that have been implemented by the PUC since this regulation was last updated, including fees for applications to begin telecommunications service, applications to be a pipeline operator, applications to be a conservation service provider, and applications to be a utility valuation expert. Further, the fee schedule would be updated to clarify that applications to amend a CPC include applications to abandon a CPC.
In addition to the proposed amendments to Section 1.43(a), the PUC solicits comment on the proposed schedule of fees, including whether certain fees are still relevant given changes in PUC processes.
52 Pa. Code § 1.51. Instructions for Service, Notice and Protest.
Proposed Changes
Section 1.51(c) would be added to state that where an individual party is a victim of domestic violence and has a court order providing clear evidence of domestic violence, that party's address will be redacted on the service list.
Rationale for Proposed Changes
The addition of Section 1.51(c) serves an important role in protecting the personal information of domestic violence victims. There is no need for the personal information of domestic violence victims to be posted on the PUC's website, which is accessible to the general public.
52 Pa. Code § 1.53. Service by the Commission.
Proposed Changes
Section 1.53(a) would be amended to clarify that a person is not required to register for the PUC's electronic filing system to be a party in a PUC proceeding nor do they have to register to agree to the electronic service of documents by the PUC.
Section 1.53(b)(1) would be amended to clearly state that if a party has not agreed to electronic service they will continue to be served via first-class mail and that the recipient of the first-class mail would be the party's designated contact registered with the PUC.
Section 1.53(b)(3) would be amended to incorporate the current reality of the PUC's electronic filing system and also to add that a party does not have to have created a registered eService account with the PUC as a prerequisite to explicitly agreeing to the PUC serving the party with documents via electronic mail (e-mail). This section would be restructured by including subsections (i) and (ii) to differentiate between parties that open and use an account on the PUC's electronic filing system and those without an account but who agree to service by e-mail.
Section 1.53(c) would be amended to change ''act'' to ''Act,'' incorporate the reality of a respondent utility that is an efiling user, and to reflect that service of complaints in all hearings, investigations, and proceedings pending before the PUC can be made by e-mail upon agreement by each party, under 66 Pa.C.S. § 702 (relating to service of complaints on parties).
Rationale for Proposed Changes
The proposed amendment to Section 1.53(a) is intended to clarify that persons are not required to register to use the electronic filing system to be a party in a PUC proceeding and shall continue to be served documents in paper form by the PUC unless they have agreed to electronic service.
The proposed amendment to Section 1.53(b)(1) is intended to create a more uniform service process to reduce potential confusion for PUC staff. We note that all persons appearing before the PUC are required to provide and maintain updated contact information, under Section 1.24.
The proposed amendment to Section 1.53(b)(3) originated from the PUC's waiver of service requirements during the COVID-19 pandemic, during which the PUC permitted electronic service by the PUC on all parties regardless of whether a particular party agreed to electronic service.4 The PUC has discerned that the flexibility of electronic service has provided additional efficiency across PUC operations; these include benefits to pro se complainants who rely on e-mail for more expedient service to avoid missing regulatory filing deadlines as well as allowing the Secretary's Bureau to more readily accept large filings.
The proposed amendment to Section 1.53(c) is intended to create consistency with the proposed new definitions in Section 1.8 and to incorporate the General Assembly's 2019 amendment to 66 Pa.C.S. § 702 that provides an explicit exception to the certified mailing of a complaint for a respondent party that has created a registered account with the PUC's electronic filing system.
52 Pa. Code § 1.54. Service by a Party.
Proposed Changes
Section 1.54(a) would be amended to clarify that a person will not be required to register to use the electronic filing system in order to serve documents on other parties. Section 1.54(b)(1) would be amended to clearly state that if a party has not agreed to the electronic service of documents, the other parties to the proceeding must continue to serve them their filings via first-class mail. Section 1.54(b)(3) would be amended to add the allowance of e-mail service when a party explicitly agrees to receive documents filed with the PUC in this fashion regarding a particular proceeding. This section would be restructured to differentiate between parties that open and use an account on the PUC's electronic filing system and those without an account but who agree to receive documents by e-mail.
Section 1.54(c) would be amended to remove ''and persons or individuals.''
Rationale for Proposed Changes
The proposed amendment to Section 1.54(b)(3) originated from the PUC's waiver of service requirements during the COVID-19 pandemic, during which the PUC directed that electronic service on PUC staff in proceedings pending before it, whether staff is a party or otherwise, be exclusively electronic unless the parties agreed otherwise.5 Allowing service by e-mail to parties who explicitly agree to e-mail service improves the efficiency of PUC operations.
The proposed amendment to Section 1.54(c) is intended for clarity and brevity and for consistency with the proposed new definitions in Section 1.8.
52 Pa. Code § 1.56. Date of Service.
Proposed Changes
Section 1.56(b) would be amended to remove ''and the document is served.''
Rationale for Proposed Changes
The proposed amendment to Section 1.56(b) is intended for brevity and clarity.
52 Pa. Code § 1.59. Number of Copies to be Served.
Proposed Changes
Section 1.59 would be amended to provide the presiding officer with the discretion to determine the appropriate number of copies to be served on the presiding officer and other parties in a proceeding.
Rationale for Proposed Changes
Section 1.59 delineates the number of hard copies that shall be served on the presiding officer as well as the parties. The proposed amendment to Section 1.59 is intended to afford presiding officers with control to determine the appropriate number of copies that should be served in a proceeding, especially since serving hard copies may be unnecessary due to electronic service.
52 Pa. Code § 1.61. Notice and Filing of Copies of Pleadings before other Tribunals.
Proposed Changes
Section 1.61(a) would be amended to change ''act'' to ''Act'' and ''person'' to ''entity.''
Section 1.61(b) would be amended to change required service from the Office of Trial Staff to the PUC's Bureau of Investigation and Enforcement.
Section 1.61(d) would be amended to change ''act'' to ''Act'' and ''person'' to ''entity.''
Rationale for Proposed Changes
The proposed amendments to Section 1.61(a) and (d) are intended to create consistency with the proposed new definitions in Section 1.8.
The proposed amendment to Section 1.61(b) is intended to reflect the renaming of the Office of Trial Staff to the Bureau of Investigation and Enforcement.
52 Pa. Code § 1.71. Statement of Objectives.
Proposed Changes
Section 1.71 would be amended to change ''act'' to ''Act.''
Rationale for Proposed Changes
The proposed amendments to Section 1.71 are intended to create consistency with the proposed new definitions in Section 1.8.
52 Pa. Code § 1.72. Content Review of Formal Case Files.
Proposed Changes
Section 1.72 would be amended to remove procedures for written requests for access to PUC records.
Rationale for Proposed Changes
Sections 1.71—1.77 of the PUC's regulations relate to 1) what documents should be kept for inspection at the Secretary's Bureau's public filing office, and 2) the process for getting non-confidential documents from the PUC and challenging determinations under those provisions. Under the Right to Know Law (RTK Law), 65 P.S. §§ 67.101—67.3104, that was in place at the time these regulations were last amended, agencies had to have their own processes for responding to written requests for records. Now that process is unified under the RTK Law within the Office of Open Records (OOR) appeal process.
Therefore, the PUC's regulations about written requests for review of public documents are now moot and are potentially in conflict with the RTK Law.
We seek comment on whether the regulations for written requests for access to PUC files are still needed given the RTK Law and the publicly-accessible PUC docketing system available on the PUC's website.
52 Pa. Code § 1.73. Fiscal Records.
Proposed Changes
Section 1.73(b) would be amended to change ''act'' to ''Act.''
Rationale for Proposed Changes
The proposed amendment to Section 1.73(b) is intended to update the reference from a prior version of the RTK Law to Act 3 of 2008 which created the newest version of the RTK Law.
52 Pa. Code § 1.75. Review of Staff Determination.
Proposed Changes
Section 1.75 would be removed from the PUC's regulations.
Rationale for Proposed Changes
The proposed amendments to Section 1.75 are intended to bring PUC regulations in line with the RTK Law, now that the process for requesting access to PUC records is unified under the law. While it is still useful to have a regulation listing what must be kept for public inspection and processes for addressing informal requests for records, our regulations concerning written requests for review of public documents are now moot and are potentially in conflict with the RTK Law.
52 Pa. Code § 1.77. Extensions of Time to Review Folders.
Proposed Changes
Section 1.77 would be removed from the PUC's regulations.
Rationale for Proposed Changes
The proposed amendments to Section 1.77 are intended to bring PUC regulations in line with the RTK Law, now that the process for requesting access to PUC records is unified under the law. While it is still useful to have a regulation listing what must be kept for public inspection and processes for addressing informal requests for records, our regulations concerning written requests for review of public documents are now moot and are potentially in conflict with the RTK Law.
52 Pa. Code § 1.96. Unofficial Statements and Opinions by Commission Personnel.
Proposed Changes
Section 1.96 would be amended to correct the spelling error in ''employes'' to ''employees.''
Rationale for Proposed Changes
The proposed amendment to Section 1.96 is intended to correct a typographical error.
II. Proposed Amendments to Chapter 3—Special Provisions
The PUC recognizes that the rules relating to special provisions need to be updated in order to make PUC proceedings operate in a more efficient manner. Therefore, with the aim of increasing efficiency and clarity in PUC proceedings, we propose the following amendments to the regulations at 52 Pa. Code §§ 3.1—3.602 for the rationales articulated herein.
52 Pa. Code § 3.1. Definitions.
Proposed Changes
''Emergency'' would be amended to include clear and present danger to the public interest.
''Emergency Order'' would be amended to replace ''Director of Operations'' with ''Executive Director.''
Rationale for Proposed Changes
The proposed amendment to the definition of ''emergency'' allows the PUC to act in certain circumstances when there is a danger to the public interest, which was not previously specified. The amendment preserves the requirement that a ''clear and present danger'' must exist prior to any PUC action, and thereby alleviates any concerns regarding an overbroad definition of ''emergency.''
The proposed amendment to the definition of ''emergency order'' reflects the renaming of the Director of Operations to the Executive Director.
52 Pa. Code § 3.2. Petitions for Issuance of Emergency Orders.
Proposed Changes
Section 3.2 would be amended to require, to the extent practicable, service of petitions for emergency orders to be served upon the statutory advocates.
Rationale for Proposed Changes
The proposed amendment to Section 3.2 is intended to ensure that the statutory advocates, namely, the Office of Consumer Advocate, the Office of Small Business Advocate, and the PUC's Bureau of Investigation and Enforcement, are served with petitions to the PUC seeking the issuance of emergency orders. This requirement would allow the statutory advocates to be kept aware of such petitions and to take appropriate action in response to said petitions at their discretion.
52 Pa. Code § 3.3. Disposition of Ex Parte Emergency Orders.
Proposed Changes
Section 3.3(a)—(d) would be amended to replace ''Director of Operations'' with ''Executive Director.''
Section 3.3(b) and (d) would be amended to allow statutory advocates to receive a copy of an emergency order or the denial of a petition for emergency order.
Rationale for Proposed Changes
The proposed amendments to Section 3.3(a)—(d) reflect the renaming of the Director of Operations to the Executive Director.
The proposed amendments to Section 3.3(b) and (d) are intended to ensure that the statutory advocates, namely, the Office of Consumer Advocate, the Office of Small Business Advocate, and the PUC's Bureau of Investigation and Enforcement, are served with copy of an emergency order or the denial of a petition for emergency order. This requirement would allow the statutory advocates to be kept aware of such orders and to take appropriate action in response to said orders at their discretion.
52 Pa. Code § 3.4. Hearings Following Issuance of Emergency Orders.
Proposed Changes
Section 3.4(b) would be amended to require the petitioner to serve the statutory advocates and other parties.
Section 3.4(d) would be amended to replace ''Director of Operations'' with ''Executive Director.''
Rationale for Proposed Changes
The proposed amendment to Section 3.4(b) clarifies all the parties that the petitioner is required to serve.
The proposed amendment to Section 3.4(d) reflects the renaming of the Director of Operations to the Executive Director.
52 Pa. Code § 3.6. Petitions for Interim Emergency Orders.
Proposed Changes
Section 3.6 would be amended to require service on statutory advocates.
Rationale for Proposed Changes
The proposed amendment to Section 3.6 is intended to ensure service of a petition for interim emergency order on the statutory advocates, in addition to the existing requirement to file with the Secretary and contemporaneously serve the Chief Administrative Law Judge and the parties.
52 Pa. Code § 3.101. Municipal Contracts.
Proposed Changes
Section 3.101 would be amended to replace ''reproduction'' with ''reproduced.''
Rationale for Proposed Changes
The proposed amendment to Section 3.101 is intended to clarify existing language.
52 Pa. Code § 3.111. Form and Content of Informal Complaints.
Proposed Changes
Section 3.111(b) would be amended to change the PUC's mailing address and to require informal complaints to comply with Section 3.111(a).
Rationale for Proposed Changes
The proposed amendments to Section 3.111(b) are intended to provide an updated mailing address for the PUC and to clarify that informal complaints should comply with the requirements of Section 3.111(a).
52 Pa. Code § 3.113. Resolution of Informal Investigations.
Proposed Changes
Subsections 3.113(a), (b)(1), and (b)(3) would be amended to state informal investigations terminated by letter will be served on affected parties.
Rationale for Proposed Changes
The proposed amendment to Section 3.113(b)(1) is intended to clarify on whom the PUC will serve letters terminating an informal investigation.
52 Pa. Code § 3.381. Applications for Transportation of Property, Household Goods in Use and Persons.
Proposed Changes
Section 3.381(a)(3) would be amended to change the PUC's address.
Rationale for Proposed Changes
The proposed amendment to Section 3.381(a)(3) is intended to provide an updated mailing address for the PUC.
52 Pa. Code § 3.391. Arbitration of Claims for Billing and Collecting Services.
Proposed Changes
Section 3.391(a) would be amended to reflect the correct statute governing arbitration of a dispute between a water utility and an authority, city, borough or township as to the cost of billing and collecting services.
Rationale for Proposed Changes
The current statutory provision incorporated in Section 3.391 has been repealed. The proposed amendment would reflect the correct statutory provision that now governs when the water utility acts as a billing and collecting agent for a municipal authority, city, borough or township and the PUC is the forum for the arbitration of the dispute that arises between them due to the cost of billing and collecting services.
52 Pa. Code § 3.551. Official Forms.
Proposed Changes
Section 3.551 would be amended to change the PUC's address.
Rationale for Proposed Changes
The proposed amendment to Section 3.551 is intended to provide an updated mailing address for the PUC.
III. Proposed Amendments to Chapter 5—Formal Proceedings
The PUC recognizes that the rules governing formal proceedings need to be updated in order to make PUC proceedings operate in a more efficient manner. Therefore, with the aim of increasing efficiency and clarity in formal proceedings, the PUC proposes the following amendments to the regulations at 52 Pa. Code §§ 5.1—5.633 for the rationales articulated herein.
52 Pa. Code § 5.12. Contents of Applications.
Proposed Changes
Section 5.12(a) would be amended to direct the applicant to serve the application upon the statutory advocates.
Rationale for Proposed Changes
The proposed amendment to Section 5.12(a) is intended to ensure that the statutory advocates, namely, the Office of Consumer Advocate, the Office of Small Business Advocate, and the PUC's Bureau of Investigation and Enforcement, are served with copies of applications. This requirement will allow the statutory advocates to be kept aware of applications filed with the PUC, and take appropriate action in response to said applications, at their discretion.
52 Pa. Code § 5.13. Applications for Construction or Alteration of Crossings.
Proposed Changes
Section 5.13(b) would be amended to remove the phrase ''complained against.''
Rationale for Proposed Changes
The proposed amendment to Section 5.13(b) is intended to permit abolitions of crossings even when complaints have not been filed.
52 Pa. Code § 5.14. Applications Requiring Notice.
Proposed Changes
Section 5.14(a) would be amended to set forth illustrative examples of the applications for authority that must be published, whether in the Pennsylvania Bulletin only or as otherwise required by the PUC. This list would duplicate the list of applications mentioned in the existing Section 5.14(d), except for (d)(4)—(6) and (d)(10), which would be deleted. Applications for initiation of steam utility service, rail service, and common carrier service by motor vehicle (except as provided for in 52 Pa. Code § 3.381(b)) would be added to the newly-created Sections 5.14(a)(1)—(3). The reference to ''fixed utilities'' that originally appeared in Section 5.14(d) would be replaced with ''utilities'' in the newly-created Sections 5.14(a)(1)—(3).
Section 5.14(d) would be deleted in its entirety.
Rationale for Proposed Changes
Section 5.14(a) currently sets forth the general rule that notice of applications to the PUC for authority under the Code must be published in the Pennsylvania Bulletin and as may otherwise be required by the PUC. The proposed amendment to Section 5.14(a) would provide an informational listing of the applications for authority that must be published, which includes not just fixed utilities, but all utility service that is currently regulated by the PUC as defined under 66 Pa.C.S. § 102.
The proposed amendment to Section 5.14(d) would delete it in its entirety as it is no longer necessary.
52 Pa. Code § 5.21. Formal Complaints Generally.
Proposed Changes
Section 5.21(c) would be amended to change ''Office of Trial Staff'' to ''Bureau of Investigation and Enforcement'' and to allow for a complaint to be served electronically if the respondent is a filing user. It would also provide that the PUC may serve a copy of the complaint by e-mail upon agreement by each party, under 66 Pa.C.S. § 702.
Section 5.21(d) would be amended to replace ''compliant'' with ''complaint.''
Rationale for Proposed Changes
The proposed amendment to Section 5.21(c) is intended to reflect the renaming of the Office of Trial Staff to the Bureau of Investigation and Enforcement and to incorporate the General Assembly's 2019 amendment to 66 Pa.C.S. § 702, which allows for the electronic filing of formal complaints when applicable.
The proposed amendment to Section 5.21(d) is intended to correct a typographical spelling error.
52 Pa. Code § 5.22. Content of Formal Complaint.
Proposed Changes
Section 5.22(a)(1)-(2) would be amended to change ''telefacsimile'' to ''fax.''
Rationale for Proposed Changes
The proposed amendment to Section 5.22(a)(2) is intended to update existing language.
52 Pa. Code § 5.24. Satisfaction of Formal Complaints.
Proposed Changes
Section 5.24(c) would be amended to specify that, in cases involving multiple respondents, a docket will not be marked closed until the filing of certified statements or certificates of satisfaction that resolve all claims against all respondents.
Rationale for Proposed Changes
The proposed amendment to Section 5.24(c) is intended to address the filing of certificates of satisfaction in cases where there are multiple respondents. Section 5.24(c) currently only addresses complaints involving a single respondent. In such cases, the filing of a certificate of satisfaction that is not objected to by the complainant resolves all claims against the respondent and allows the docket to be closed.
However, in complaints where there are multiple respondents, a certificate of satisfaction may or may not resolve the complainant's claims against each and every respondent. Therefore, in cases involving multiple respondents, the filing of a certificate of satisfaction will not automatically trigger closure of the case as long as there are claims that remain outstanding against any of the respondents.
52 Pa. Code § 5.31. Staff-initiated Complaints.
Proposed Changes
Section 5.31(b) would be amended to change ''Office of Trial Staff'' to ''Bureau of Investigation and Enforcement.''
Rationale for Proposed Changes
The proposed amendment to Section 5.31(b) is intended to reflect the renaming of the Office of Trial Staff to the Bureau of Investigation and Enforcement.
52 Pa. Code § 5.41. Petitions Generally.
Proposed Changes
Section 5.41(a) would be amended to require materially supportive documents to be attached, and, if they are not available for attachment, the petition must set forth the reason for unavailability.
Section 5.41(b) would be amended to change ''Office of Trial Staff'' to ''Bureau of Investigation and Enforcement.''
Rationale for Proposed Changes
The proposed amendment to Section 5.41(a) is intended to harmonize the filing requirements for formal complaints, as addressed in Section 5.22(a), and the filing requirements for petitions.
The proposed amendment to Section 5.41(b) is intended to reflect the renaming of the Office of Trial Staff to the Bureau of Investigation and Enforcement.
52 Pa. Code § 5.42. Petitions for Declaratory Orders.
Proposed Changes
Section 5.42(c) would be amended to require copies to be served in accordance with the PUC's direction.
Rationale for Proposed Changes
The proposed amendment to Section 5.42(c) is intended to provide consistency with similar language in Section 5.41(c).
52 Pa. Code § 5.43. Petitions for Issuance, Amendment, Repeal, or Waiver of Commission Regulations.
Proposed Changes
Section 5.43(b) would be amended to change ''Office of Trial Staff'' to ''Bureau of Investigation and Enforcement.''
Section 5.43(c) would be amended to require copies to be served in accordance with the PUC's direction.
Rationale for Proposed Changes
The proposed amendment to § 5.43(b) is intended to reflect the renaming of the Office of Trial Staff to the Bureau of Investigation and Enforcement.
The proposed amendment to Section 5.43(c) is intended to provide consistency with similar language in Section 5.41(c).
52 Pa. Code § 5.52. Content of a Protest to an Application.
Proposed Changes
Section 5.52(a)(2) would be amended to remove the extraneous space after ''protest'' and to add a new subsection (4) that would require that a protest to an application must explicitly request a hearing before the Office of Administrative Law Judge or the PUC will not schedule one.
Rationale for Proposed Changes
The proposed amendment to Section 5.52(a) is intended to correct a typographical error and to inform parties that submit protests that if they do not explicitly request a hearing before the Office of Administrative Law Judge the PUC will rule on the pleadings alone without holding evidentiary hearings.
52 Pa. Code § 5.53. Time of Filing.
Proposed Changes
Section 5.53 would be amended to provide for a 30-day period from the date of publication in the Pennsylvania Bulletin in which to file protests to applications, with modifications to this protest period being granted for good cause shown.
Rationale for Proposed Changes
Various PUC regulations provide for a 60-day period in which to file protests, unless otherwise specified. The 60-day period commences from the date of publication in the Pennsylvania Bulletin. See 52 Pa. Code § 5.14(c) (indicating that the time for filing protests to applications is governed by Section 5.53); and 52 Pa. Code § 5.53 (related to Time of filing).
Executive Order 2023-07, building Efficiency in the Commonwealth's Permitting, Licensing, and Certification Processes, which was issued on January 31, 2023, instructs executive agencies to examine the type of permits, licenses, or certifications they issue, which would then be subject to recommended efficient application processing times.6 As a best practice, the PUC should also take this opportunity to examine whether the PUC's application processes may be improved while still affording interested parties with notice and an opportunity to be heard.
The proposed amendment to Section 5.53 reduces the default protest period from 60 days to 30 days following publication of an application in the Pennsylvania Bulletin. This amendment is intended to follow Executive Order 2023-07 and to make processing times for applications more efficient while still affording interested parties with notice and an opportunity to be heard.
52 Pa. Code § 5.72. Eligibility to Intervene.
Proposed Changes
The heading of Section 5.72(a) would be amended to replace ''Persons'' with ''Parties.'' Section 5.72(a) would also be amended to include ''corporation'' and ''municipal corporation'' in addition to ''person.''
Rationale for Proposed Changes
The proposed amendment in Section 5.72(a) is intended to clarify that Section 5.72(a) addresses persons, corporations, and municipal corporations seeking to intervene in a proceeding as a party.
52 Pa. Code § 5.74. Filing of Petitions to Intervene.
Proposed Changes
Section 5.74(b)(3) would be amended to change the timeline for filing petitions to intervene to the time specified in an order or notice, and within 30 days if no time is specified is set in an order or notice with respect to the proceedings.
Rationale for Proposed Changes
Section 5.74(b) of the PUC's regulations allows for the filing of a petition to intervene to occur 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, absent good cause shown. Therefore, we propose to retain the existing language in the regulation at Section 5.74(b), but amend Section 5.74(b)(3) to note that, absent an order or notice stating otherwise under Sections 5.76(b)(1) or (b)(2), the outer limit for filing a petition to intervene would be aligned with proposed shortened time for filing protests of 30-days from the date of publication in the Pennsylvania Bulletin, except upon good cause shown. As proposed in Section 5.14(c), the proposed amendment to Section 5.74(b)(3) is intended to provide consistency with the timeframe for the filing of a protest as set forth in Section 5.53.
52 Pa. Code § 5.81. Consolidation.
Proposed Changes
We propose to amend Section 5.81 to incorporate a rule addressing the identification of, and participation by, utility and non-utility indispensable parties when it will result in a better record and comprehensive consideration of the parties, facts, and issues in a proceeding.
Rationale for Proposed Changes
Section 5.81 of the current rules expressly authorizes an Administrative Law Judge (ALJ) or the PUC to consolidate a common question of law or fact. The current rules contain no provision authorizing the ALJ or the PUC to identify an indispensable party and interplead that party. Accordingly, we solicit input on the development of a prospective rule that would address this issue.
52 Pa. Code § 5.222. Initiation of Prehearing Conferences in Nonrate Proceedings.
Proposed Changes
Section 5.222 would be amended to allow the presiding officer to address and determine the manner of service on parties in non-rate proceedings.
Rationale for Proposed Changes
The proposed amendment to Section 5.222 is intended to reflect that presiding officers often address service of documents by parties during prehearing conferences, and a party may express a preference as to how they wish to be served during the course of the proceeding. Therefore, it follows that the presiding officer be afforded with the authority to address and determine the method of service on parties.
52 Pa. Code § 5.224. Prehearing Conference in Rate Proceedings.
Proposed Changes
Section 5.224 would be amended to allow the presiding officer to address and determine the manner of service on parties in rate proceedings.
Rationale for Proposed Changes
The proposed amendment to Section 5.224 is intended to reflect that presiding officers often address service of documents by parties during prehearing conferences, and a party may express a preference as to how they wish to be served during the course of the proceeding. Therefore, it follows that the presiding officer be afforded with the authority to address and determine the method of service on parties.
52 Pa. Code § 5.245. Failure to Appear, Proceed or Maintain Order in Proceedings.
Proposed Changes
Section 5.245 would be amended to prohibit the section from applying to a party who is not required to secure counsel if there is no finding that the party has committed an abuse of process. It would also be amended to prohibit the dismissal of a complaint, petition, or application with prejudice for a procedural failure on the complainant, petitioner, or applicant's behalf.
Rationale for Proposed Changes
The PUC often relies on Sections 316 and 332(f) of the Code, 66 Pa.C.S. §§ 316 and 332(f), respectively, to dismiss proceedings with prejudice when litigants fail to appear. Section 332(f) addresses the failure to be at a scheduled conference or hearing. Section 332(f) holds that the failure to secure counsel and appear precludes that party from participating, seeking a rehearing, or a recall unless it was unavoidable, and the other party is not prejudiced. This general rule and exception seem to be limited to those circumstances where a party is required to have legal counsel before the PUC. This has also been relied on to dismiss unrepresented pro se litigant cases with prejudice when they fail to appear.
Section 316 of the Code also governs prima facie evidence of facts found which are conclusive unless set aside. This provision does not address stare decisis or dismissals with prejudice. This provision creates a presumption that prior facts, such as tariffed rates, are reasonable and precludes collateral attacks upon those facts absent a showing of changed circumstances. McLaughlin v. DQE, Docket No. C-20065798 (2009); Duquesne Light Co. et al. v. Pa. PUC, 715 A.2d 540 (Pa. Cmwlth. 1998); Popowsky v. Pa. PUC, 669 A.2d 1029, 1037 n. 14 (Pa. Cmwlth. 1995), rev'd in part on other grounds, 706 A. 2d 1197 (Pa. 1997); Zucker v. Pa. PUC, 401 A.2d 1377, 1380 (Pa. Cmwlth. 1979); Schellhammer v. Pa. PUC, 629 A.2d 189, 193 (Pa. Cmwlth. 1993).
The PUC often relies on Section 316 of the Code and the ancillary res judicata or collateral estoppel. However, Pennsylvania law holds that res judicata should not apply if a matter is dismissed on procedural matters, like a failure to appear, because there has been no substantive determination on the merits. Scharf v. Richard De Cou Company, 183 A. 41, 41-42 (Pa. 1936); Farabiugh Chevrolet v. Covenant Management, Inc., 522 A.2d 100, 101 (Pa. Super. 1987); Gutman v. Giordano, 557 A.2d 782, 783 (Pa. Super. 1989); Acobacey v. Acobacey, 22 Phila. 333, 191 Phila. Cty. Rptr. LEXIS 42 (1991); Monroeville v. Liberatore, 736 A.2d 31, 34 (Pa. Cmwlth. 1999). For collateral estoppel to apply, there must be an identity of parties yet often a matter is raised by separate spouses at different times on very different facts.
Section 5.245 of our rules addresses failure to appear and the circumstances in which failure to be represented at a hearing may constitute a waiver to participate in the hearing. Therefore, it is the appropriate section to clarify when a pro se litigant can be dismissed with prejudice, and whether the application of res judicata and collateral estoppel based upon a litigant's failure to appear at hearing is permissible.
52 Pa. Code § 5.251. Recording of Proceedings.
Proposed Changes
Section 5.251(d) would be amended to include a provision detailing the rules regarding recording during a special agent proceeding.
Rationale for Proposed Changes
The proposed amendment to Section 5.251(d) is intended to clarify what occurs in practice during special agent proceedings.
52 Pa. Code § 5.252. Review of testimony.
Proposed Changes
Section 5.252(c) and (d) would be amended to replace ''tapes'' with ''recordings.''
Rationale for Proposed Changes
The proposed amendments to Section 5.252(c) and (d) are intended to reflect the change in technology the PUC uses for record proceedings from cassette tape to digital recordings.
52 Pa. Code § 5.302. Petition for interlocutory Commission review and answer to a material question.
Proposed Changes
Section 5.302(b) would be amended to replace ''substantial'' with ''substantive.''
Rationale for Proposed Changes
The proposed amendment to Section 5.302(b) is intended to provide consistency with the term ''substantive right'' as it appears in Section 1.2(d). Further, this proposed amendment is consistent with the Order of the Pennsylvania Supreme Court, effective January 1, 2024, which amended Pa.R.C.P. 126 to change ''substantial rights'' to ''substantive rights.''
§ 5.303. Commission action on petition for interlocutory review and answer.
Proposed Changes
Section 5.303(a)(1) would be amended to replace ''substantial'' with ''substantive.''
Rationale for Proposed Changes
The proposed amendment to Section 5.303(a)(1) is intended to provide consistency with the term ''substantive right'' as it appears in Section 1.2(d). Further, this proposed amendment is consistent with previously articulated rationale for amending Section 5.302(b).
52 Pa. Code § 5.304. Interlocutory Review of Discovery Matters.
Proposed Changes
Section 5.304(d) would be amended to change the heading from ''Responsive brief'' to ''Brief.''
Section 5.304(d)(3) would be amended to replace ''substantial'' with ''substantive.''
Section 5.304(i) would be amended to be left justified.
Section 5.304(j) would be amended to replace ''substantial'' with ''substantive.''
Rationale for Proposed Changes
The proposed amendment to Section 5.304(d) is intended to provide consistency with the language in Section 5.302(b) and to clarify that any party may file a brief in support or opposition to a petition for interlocutory review of a presiding officer's ruling on discovery.
The proposed amendment to Section 5.304(i) is intended to clarify the proper placement of the provision in the statute.
The proposed amendments to Sections 5.304(d)(3) and 5.304(j) are consistent with previously articulated rationale for amending Section 5.302(b).
52 Pa. Code § 5.305. Interlocutory review of a material question submitted by a presiding officer.
Proposed Changes
Section 5.305(c) would be amended to replace ''substantial'' with ''substantive.''
Rationale for Proposed Changes
The proposed amendments to Sections 5.305(c) is consistent with previously articulated rationale for amending Section 5.302(b).
52 Pa. Code § 5.306. Expedited Notification.
Proposed Changes
Section 5.306 would be amended to replace ''telefacsimile'' with ''telefax.''
Rationale for Proposed Changes
The proposed amendment to Section 5.306 is intended to update existing language.
52 Pa. Code § 5.323. Hearing Preparation Material.
Proposed Changes
Section 5.323(b) would be amended to change the reference of ''photostatic copy'' to ''copy.''
Rationale for Proposed Changes
The proposed amendment to Section 5.323(b) is intended to clarify the reference in the provision and reduce confusion.
52 Pa. Code § 5.331. Sequence and Timing of Discovery.
Proposed Changes
Section 5.331(c) would be amended to add the sentence, ''Once a protest or adverse pleading is filed with the PUC, staff data requests are deemed withdrawn.''
Rationale for Proposed Changes
The proposed amendment to Section 5.331(c) is intended to clarify that when a protest or adverse pleading is filed with the PUC, the matter would be referred to the Office of Administrative Law Judge for assignment to a presiding officer, and staff data requests would be deemed ''withdrawn.''
52 Pa. Code § 5.342. Answers or Objections to Written Interrogatories by a Party.
Proposed Changes
Section 5.342(g) would be amended to add ''or until such time as the parties may determine by mutual agreement,'' in reference to the timing of filing a motion to dismiss an objection to interrogatories.
Rationale for Proposed Changes
The proposed amendment to Section 5.342(g) is intended to allow parties to jointly set a timeline for motions to dismiss an objection to compel that was already answered in an interrogatory.
52 Pa. Code § 5.349. Requests for Documents, Entry for Inspection and other Purposes.
Proposed Changes
Section 5.349(b) would be amended to replace ''Office of Trial Staff'' with ''Bureau of Investigation and Enforcement.''
Rationale for Proposed Changes
The proposed amendment to Section 5.349(b) is intended to reflect the renaming of the Office of Trial Staff to the Bureau of Investigation and Enforcement.
52 Pa. Code § 5.351. On the Record Data Requests.
Proposed Changes
Section 5.351(a) would be amended to permit on the record data requests in all PUC proceedings, instead of only in rate cases.
Rationale for Proposed Changes
Section 5.351(a) allows a party to 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 proposed amendment to Section 5.351(a) is intended to allow on the record data requests in all PUC proceedings, instead of only in rate cases.
52 Pa. Code § 5.365. Orders to Limit Availability of Proprietary Information.
Proposed Changes
Section 5.365 would be amended to add subsection (h). The new Section 5.365(h) would require that, where parties to formal proceedings have indicated that they have a currently-effective court-granted Protection From Abuse (PFA) order, or other order for the protection of their personal safety, in place, all parties must redact the PFA holder's address and contact information from any documents filed as part of the formal complaint proceeding.
Rationale for Proposed Changes
The proposed amendment to Section 5.365 is intended to ensure that individuals who have a valid PFA order or similar order from a court are protected from having their personal address and contact information inadvertently disclosed to the public. The formal complaint forms provided by the PUC include a section wherein a complainant may indicate that they have a court-granted PFA order, or other order that demonstrates evidence of domestic violence against them currently in effect for their personal safety or welfare in place, along with instructions to include a copy of said order with the formal complaint form. Parties to the proceeding would be responsible for reviewing the complaint form to ensure whether the complainant has indicated that they have a PFA order or similar order, and correspondingly ensuring that any filings to the proceeding exclude or redact the complainant's personal address and contact information.
52 Pa. Code § 5.408. Official and Judicial Notice of Fact.
Proposed Changes
Section 5.408(c) would be amended to add to the existing regulation that an aggrieved party has the opportunity to present counter evidence prior to the decision of the presiding officer being issued if the decision relies upon the noticed fact.
Rationale for Proposed Changes
The proposed amendment to Section 5.408(c) is intended to allow a party that is adversely affected by a noticed fact to have the opportunity upon timely request to show that the facts are not properly noticed or that alternative facts should be noticed.
52 Pa. Code § 5.409. Copies and Form of Documentary Evidence.
Proposed Changes
Section 5.409(a) would be amended to replace ''two copies'' of testimony to ''one copy'' of testimony.
Rationale for Proposed Changes
The proposed amendment to Section 5.409(a) is intended to provide consistency with Chapter 1 of the PUC's regulations.
52 Pa. Code § 5.412. Written testimony.
Proposed Changes
Section 5.412(f) would be amended to delete the requirement to file pre-served testimony according to Section 5.412a, given the proposed repeal of Section 5.412a.
Section 5.412(g) would be amended to replace ''two copies'' of testimony to ''one copy'' of testimony and to recognize that written testimony may be admitted via stipulation with no court reporter present.
Rationale for Proposed Changes
The proposed amendment to Section 5.412(f) reflects the proposed repeal of Section 5.412a.
The proposed amendment to Section 5.412(g) is intended to provide consistency with Chapter 1 of the PUC's regulations and to recognize that, on occasion, testimony is admitted via stipulation by the presiding officer when there is no court reporter present.
52 Pa. Code § 5.412a. Electronic Submission of Pre-served Testimony.
Proposed Changes
Section 5.412a would be repealed in its entirety.
Rationale for Proposed Changes
The coexistence of the court reporter's transcript and exhibits and the parties' separate electronic filing of pre-served testimony under Section 5.412a complicates matters when the Secretary's Bureau (SEC) is working with the Law Bureau (LAW) to prepare a certified record for a Commonwealth Court appeal. The existence of the parties' Section 5.412a filings of pre-served testimony in addition to testimony filed by the Court Reporter makes it more difficult for SEC staff to identify which documents should be included in the certified record.
Upon review of current procedures for processing of transcripts, we cannot identify any concrete benefit to stakeholders from continuing to require parties to submit electronic copies of pre-served testimony under 52 Pa. Code § 5.412a. It is apparent that continuation of this requirement is causing SEC staff considerable difficulty in preparing reproduced/certified records when working with LAW on appellate proceedings. As such, repealing Section 5.412a would reduce the administrative burden on SEC staff and aid in timely compliance with appellate deadlines. However, the PUC seeks stakeholder comment regarding how pre-served written testimony that is modified at hearing may be filed in the event that Section 5.412a is repealed.
52 Pa. Code § 5.502. Filing and Service of Briefs.
Proposed Changes
Section 5.502 would be amended to repeal original Section 5.502(c).
Section 5.502(d) would be amended to consolidate the filing requirements for briefs in rate proceedings and non-rate proceedings.
Section 5.502(f) would be amended to remove the non-specified timeline for main briefs and reply briefs; all timelines would be set by the presiding officer.
Rationale for Proposed Changes
The proposed amendments to Section 5.502 are intended to add clarity by removing references to ''initial briefs'' and ''responsive briefs.''
52 Pa. Code § 5.531. Certification of Record without Decision.
Proposed Changes
Section 5.531(a) would be amended to replace ''file'' with ''issue.''
Rationale for Proposed Changes
The proposed amendment to Section 5.531(a) is intended to clarify that a presiding officer will issue a decision.
52 Pa. Code § 5.533. Procedure to Except to Initial, Tentative and Recommended Decisions.
Proposed Changes
Section 5.533 would be amended to delete all references to ''tentative decisions.''
Rationale for Proposed Changes
The proposed amendment to Section 5.533 is intended to clarify that the PUC does not have ''tentative decisions.'' The PUC does have ''tentative orders'' but not ''tentative decisions.''
52 Pa. Code § 5.591. Reports of Compliance.
Proposed Change
Section 5.591(a) would be amended to state that compliance reports will be filed by parties subject to the Commission's jurisdiction.
Rationale for Proposed Changes
The proposed amendment to Section 5.591(a) is intended to clarify who is responsible for filing compliance reports with the Commission following the amended definition of ''person.''
Conclusion
Accordingly, under sections 331, 332, 333, 334, 335, 501, 701, 702, 703, and 1501 of the Public Utility Code (66 Pa.C.S. §§ 331—335, 501, 701—703, and 1501); section 201 and 202 of the Act of July 31, 1968 (P.L. 769, No. 240), referred to as the Commonwealth Documents Law (45 P.S. §§ 1201 and 1202), and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2, and 7.5 (relating to notice of proposed rulemaking required: adoption of regulations; and approval as to legality); section 204(b) of the Commonwealth Attorneys Act (71 P.S. § 732-204(b)); section 5 of the Regulatory Review Act (71 P.S. § 745.5); and section 612 of The Administrative Code of 1929 (71 P.S. § 232), and the regulations promulgated thereunder at 4 Pa. Code §§ 7.231—7.234 (relating to fiscal note), we are considering adopting proposed changes to existing regulations and proposed new regulations, at 52 Pa. Code §§ 1.1—1.96, 3.1—3.602, and 5.01—5.633; Therefore,
It Is Ordered:
1. That a proposed rulemaking be opened to consider the proposed amendments to 52 Pa. Code Chapters 1, 3, and 5 (relating to rules of administrative practice and procedure; special provisions; and formal proceedings) set forth in Annex A.
2. That a copy of this Notice of Proposed Rulemaking Order, consisting of a clarified Preamble Order and an Annex A, shall be posted on the Public Utility Commission's website at Docket No. L-2023-3041347.
3. That the Secretary shall serve this Notice of Proposed Rulemaking Order, consisting of a clarified Preamble Order and an Annex A, upon the Office of Consumer Advocate, the Office of Small Business Advocate, the PUC's Bureau of Investigation and Enforcement, the Coalition for Affordable Utility Services and Energy Efficiency in Pennsylvania, the Energy Association of Pennsylvania, the Tenant Union Representative Network and Action Alliance of Senior Citizens of Greater Philadelphia, AARP Pennsylvania, the Pennsylvania Telephone Association, the Broadband Communications Association of Pennsylvania, the PUC's Consumer Advisory Council, and all jurisdictional fixed public utilities.
4. That the Law Bureau shall deliver this Notice of Proposed Rulemaking Order, consisting of a clarified Preamble Order and an Annex A, together with an appropriate rulemaking packet, to the Office of Attorney General for review as to form and legality and to the Governor's Budget Office for review of fiscal impact.
5. That, after receiving approvals from the Office of the Attorney General and Governor's Budget Office, the Law Bureau shall deliver this Notice of Proposed Rulemaking Order, consisting of a clarified Preamble Order and an Annex A, together with an appropriate rulemaking packet, for review and comment to the majority and minority chairs of the Senate Committee on Consumer Protection and Professional Licensure and to the majority and minority chairs of the House Consumer Protection, Technology, and Utilities Committee.
6. That the Law Bureau shall deliver this Notice of Proposed Rulemaking Order, consisting of a clarified Preamble Order and an Annex A, together with an appropriate rulemaking packet, to the Legislative Reference Bureau to be published in the Pennsylvania Bulletin.
7. That the Law Bureau shall deliver this Notice of Proposed Rulemaking Order, consisting of a clarified Preamble Order and an Annex A, together with an appropriate rulemaking packet, to the Independent Regulatory Review Commission with proof of the other deliveries.
8. That a 90-day Public Comment Period is established for this Notice of Proposed Rulemaking proceeding. Interested persons may file written comments to this Notice of Proposed Rulemaking, consisting of a clarified Preamble Order and an Annex A, as published in the Pennsylvania Bulletin, during the 60-day period following publication in the Pennsylvania Bulletin. Written reply comments may be filed during the 30-day period following the 60-day period for filing written comments. Comments filed during the Public Comment Period will be posted to the Public Utility Commission's website and forwarded by the Public Utility Commission to the majority and minority chairs of the Senate Committee on Consumer Protection and Professional Licensure and the House Consumer Protection, Technology, and Utilities Committee and to the Independent Regulatory Review Commission.
9. That comments regarding this Notice of Proposed Rulemaking Order, consisting of a clarified Preamble Order and an Annex A, may be filed electronically through the Public Utility Commission's efiling system,7 in which case no paper copy needs to be filed with the Secretary of the Public Utility Commission provided that the filing is less than 250 pages.8 If you do not efile, then you are required to mail, preferable by overnight delivery, one original filing, signed and dated, with the PUC's Secretary at: Pennsylvania Public Utility Commission, Commonwealth Keystone Building 2nd Floor, 400 North Street, Harrisburg, PA 17120. Comments must reference Docket No. L-2023-3041347. All pages of filed comments, with the exception of a cover letter, must be numbered.
10. That comments filed prior to publication of the Notice of Proposed Rulemaking in the Pennsylvania Bulletin will be considered untimely filed and may be rejected by the Pennsylvania Public Utility Commission.
11. That the contact persons for this proceeding are Tiffany L. Tran, Esq., Law Bureau, 717-783-5413, tiftran@pa.gov; Colin W. Scott, Esq., Law Bureau, 717-783-5949, colinscott@pa.gov; and Karen Thorne, Regulatory Review Assistant, Law Bureau, kathorne@pa.gov.
12. That an electronic copy, in WORD® or WORD®-compatible format, of all filed submissions, comments for filings at the docket must be emailed to the contact persons and to ra-pcprgreview@pa.gov.
ROSEMARY CHIAVETTA,
SecretaryORDER ADOPTED: August 22, 2024
ORDER ENTERED: August 22, 2024
Statement of Vice Chair Kimberly Barrow Today we vote to initiate a notice of proposed rulemaking process to revise our rules of practice and procedure. In addition to those changes that the Commission proposes and would seek comment on, I also would like to hear from parties as to whether our regulations' stated preference for settlements is appropriate in all circumstances.
Section 5.231(a) of our current rules states that it ''is the policy of the Commonwealth to encourage settlements.'' Uniformly, settlements have been encouraged because they avoid the time and expense associated with litigation. Although litigation costs are a legitimate factor when considering settlements, there may be proceedings in which the public interest would be better served by a full evidentiary hearing. Moreover, the stated policy in Section 5.231(a) may serve to discourage parties from proceeding to litigation out of a perception that the Commission looks with disfavor on litigated proceedings. In your comments to the proposed rulemaking, please do include comments and evidence on the benefits and burdens created by the settlement policy and under what circumstances the Commission might seek a full public hearing for purposes of transparency.
November 9, 2023
KIMBERLY BARROW,
Vice Chairperson
Statement of Commissioner Kathryn L. Zerfuss Over 17 years have passed since the Commission last revised the general provisions governing practice before the PUC. During that time, our jurisdictional responsibilities have changed considerably and the nature of administrative practice and procedure has evolved and matured. The Notice of Proposed Rulemaking (NOPR) we are considering today recognizes that important technological innovations and advancements have occurred since 2006 and proposes updates to bring efficiencies to the current procedures employed in PUC administrative hearings and proceedings.
We should always endeavor to improve efficiencies in our administrative hearing process and the NOPR takes significant steps in that direction. I am pleased that the motion before us today includes more substantive considerations. These include proposals to modernize our regulations to meet the realities and circumstances faced by the parties, particularly pro se complainants who appear on their own behalf, as well as small businesses navigating our administrative hearing process. I wholeheartedly support these critical considerations and welcome the comments and policy debates they will generate.
I emphasize the current proposal to permit ''an individual consumer to be represented by an individual who holds a power of attorney over an individual during periods of disability and incapacity.'' The proposal within the motion is a good starting point, but in my view, it falls short of necessary reforms to individual representation, similar to procedures utilized by several other administrative agencies. By authorizing additional representation options for individuals, we may better facilitate the development of evidentiary records in complaint proceedings involving individual consumers. However, I am not prejudging the outcome and welcome a robust discussion. Undoubtedly, inclusion of this issue in the NOPR makes this one of the more consequential rulemakings in some time that is directly aimed at helping consumers.
I encourage all vested partners—including those organizations representing vulnerable populations such as legal services organizations, law school/pro bono clinics, and organizations representing seniors—to weigh in on this issue. It would be beneficial to hear from experienced paralegals, social workers, and other professionals (who already represent low income individuals in public benefits, unemployment, and other administrative hearings) about this proposal or other similar proposals which could better inform this NOPR on how to accomplish effective representation for individuals in Commission hearings and proceedings.
November 9, 2023
KATHRYN L. ZERFUSS,
Commissioner
Statement of Commissioner John F. Coleman, Jr. Before the Commission for disposition is the Commission's Notice of Proposed Rulemaking (NOPR) seeking comments on proposed amendments to update and clarify the Commission's procedural regulations at 52 Pa. Code §§ 1.1—1.96, 3.1—3.602, and 5.01—5.633. By way of background, the Commission's general provisions for practice before the Commission were last modified in 2006. In preparation for this NOPR, the Commission convened a series of meetings between Commission staff and attorneys who practice before the Commission in 2016. The recommendation prepared by staff is the result of lengthy efforts to obtain input and balance the interests of all parties. I thank those who participated in this process. I would have supported beginning the rulemaking through the adoption of the proposed Order that is now before us.
However, I do not support the Motion that has been offered to modify the proposed Order. My objections to the Motion are both to the process and the substance of some of the changes. First, regarding the process, the Motion proposes a number of far reaching, substantive changes that were not the subject of the Commission's prior efforts to obtain input from stakeholders and build consensus. I think a better approach would have been to share these changes with stakeholders through an Advanced Notice of Proposed Rulemaking. Additionally, in some cases the Motion does not identify the specific, alternative regulatory language that is to be used in the Annex that will be served on the Office of Attorney General, the Governor's Budget Office, and the public. It is the Commission's usual practice in NOPRs to vote on specific, regulatory language, whether from a staff recommendation or a Motion. Given that it is unclear what the Commission is voting to do for some of the changes, I am not certain that this approach satisfies Pennsylvania's Open Meeting Law.9
Turning to the substance of the Motion, I will explain my objections to some of the substantive changes, using the criteria in Section 5.2 of the Regulatory Review Act.10
1. Dismissals With Prejudice, Section 332(f): Statutory Authority, Economic Impact, Clarity
The Pennsylvania General Assembly adopted Section 332(f) of the Public Utility Code (Code) to ensure judicial economy and provide for finality of proceedings. The Commission's existing regulations at Section 5.245(a)—(c) follow the statutory language and enjoy the presumption of reasonableness. The dismissal of a case, ''with prejudice,'' for the failure to appear at a hearing gives full effect to all the words of this subsection.11 Such dismissals are mandated by the plain language of the statute, and are not a policy decision of the Commission:
Any party who shall fail to be represented at a scheduled conference or hearing after being duly notified thereof, shall be deemed to have waived the opportunity to participate in such conference or hearing, and shall not be permitted thereafter to reopen the disposition of any matter accomplished thereat, or to recall for further examination of witnesses who were excused, unless the presiding officer shall determine that failure to be represented was unavoidable and that the interests of the other parties and the public would not be prejudiced by permitting such reopening or further examination.66 Pa.C.S. § 332(f) (emphasis added). In my view, the proposed rule is contrary to the plain language of Section 332(f) of the Code. The word ''shall'' carries an imperative or mandatory meaning, and was used twice by the General Assembly as a clear direction to the Commission.12 The plain language of the statute provides the best indication of legislative intent regarding the consequences of failing to appear at a scheduled hearing.13 The statute does allow the Commission to permit a party to reopen the proceeding if nonappearance was ''unavoidable'' and the interests of other parties are not prejudiced. Words and phrases of a statute are to be construed according to their ordinary and plain meaning, and there is no basis in the language of the statute or law to eliminate the requirement of a finding that nonappearance was ''unavoidable'' and replace it with an ''abuse of process'' standard. The proposed rule is also contrary to Commonwealth Court precedent recognizing that the dismissal of cases for failure to appear at an agency hearing does not violate due process.14
The obligation to abide by Section 332(f) clearly applies both to attorneys and parties. The section heading is ''Actions of parties and counsel.''15 The language clearly penalizes a ''party'' complainant who is representing themselves who fails to appear by prohibiting them from later reopening the proceeding. With attorneys, the language permits the Commission to bar them from appearing before the Commission in any future proceedings for obstructive conduct. In either case, the obligation is the same; either party complainants representing themselves or their attorneys are obligated by Code Section 332(f) to appear for a scheduled hearing or to explain why the nonappearance was unavoidable.
Allowing parties to later reopen proceedings they failed to prosecute will result in increased legal costs for public utilities which will be paid for by other ratepayers. No alternative regulatory language has been proposed for review.
2. Need: Res judicata/Collateral Estoppel interplay with dismissal with prejudice: Need, Clarity
The Motion proposes to prohibit the application of res judicata and collateral estoppel to dismiss a complaint brought on the same allegations as a complaint that was previously dismissed for failure to appear at the scheduled hearing. I do not disagree that res judicata/collateral estoppel should not be used to dismiss such a complaint. One of the required elements of res judicata is that the case acting as a bar must have been a final judgment,16 and it is at least debatable as to whether a decision to dismiss a complaint with prejudice when the complainant fails to appear is a ''final judgment'' for purposes of res judicata.17 In my view, however, this prohibition would be an unnecessary addition to our regulations because an existing Code provision already addresses how to handle a complaint brought on the same allegations as a complaint that was previously dismissed for failure to appear. Namely, this type of case can be dismissed under Section 316 of the Code, which gives conclusive effect to a final Commission order not appealed that dismisses a complaint with prejudice for failure to appear at hearing.18 Therefore, I do not agree with the Motion that Section 316 of the Code does not address dismissals with prejudice. No specific regulatory language has been proposed for consideration in this Motion.
3. Representation of Corporations and Partnerships and Representation of Individuals. Clarity/Statutory Authority.
The Motion proposes to revise our procedural rules to permit small business corporations or partnerships to appear through an authorized corporate official. The Motion also proposes to revise the rules to permit an individual consumer to be represented by an authorized representative who is not an attorney. I oppose these proposed revisions because I am concerned that they would allow for the unauthorized practice of law before the Commission. I note that the Motion cites to the practice before other forums and state agencies as support for the proposed revisions. However, without more details about the nature of the proceedings before these other forums and state agencies, I am not comfortable concluding that the proposed revisions are lawful. Unlike the examples cited, the Commission is neither part of Pennsylvania's unified judicial system nor an executive agency. The Motion provides no analysis or comparison of the enabling legislation, regulations or rules of court for these other forums with the respective rules or case precedent that applies to the Commission. In my view, these are the types of changes that should have been vetted with stakeholders first through an Advanced Notice of Proposed Rulemaking. No specific regulatory language has been proposed in this Motion on this issue.
4. Extensions of time and continuances: Need/clarity
The Commission's administrative law judges already have the discretion to liberally construe our procedural rules and accept requests for continuance received less than five days prior to the hearing date, and grant such requests on a regular basis. Section 1.2 of our regulations permit the ALJs to waive any defect of procedure ''to secure the just, speedy and inexpensive'' determination in every type of proceeding.19 Liberal construction is to apply with particularity for cases involve pro se litigants.20 The revision to Section 1.15 is unnecessary and would appear to create a standard different than found at Section 1.2(a).
Having identified these specific concerns, I do not agree with modifying the proposed Order to include the changes from the Motion.
November 9, 2023
JOHN F. COLEMAN, Jr.,
Commissioner
Statement of Vice Chair Kimberly Barrow On November 9, 2023, the Commission initiated a notice of proposed rulemaking process to revise our rules of practice and procedure and I offered a statement at that public meeting. Consistent with that statement, with this clarification order, I also would like to hear from parties as to whether our regulations' stated preference for settlements is appropriate in all circumstances.
Section 5.231(a) of our current rules states that it ''is the policy of the Commonwealth to encourage settlements.'' Uniformly, settlements have been encouraged because they avoid the time and expense associated with litigation. Although litigation costs are a legitimate factor when considering settlements, there may be proceedings in which the public interest would be better served by a full evidentiary hearing. Moreover, the stated policy in Section 5.231(a) may serve to discourage parties from proceeding to litigation out of a perception that the Commission looks with disfavor on litigated proceedings. In your comments to the proposed rulemaking, please do include comments and evidence on the benefits and burdens created by the settlement policy and explain under what circumstances the Commission might seek a full public hearing for purposes of transparency.
August 22, 2024
KIMBERLY BARROW,
Vice Chairperson
Statement of Commissioner Kathryn L. Zerfuss Over 17 years have passed since the Commission last revised the general provisions governing practice before the PUC. During that time, our jurisdictional responsibilities have changed considerably and the nature of administrative practice and procedure has evolved and matured. The Notice of Proposed Rulemaking (NOPR) we are considering today recognizes that important technological innovations and advancements have occurred since 2006 and proposes updates to bring efficiencies to the current procedures employed in PUC administrative hearings and proceedings.
We should always endeavor to improve efficiencies in our administrative hearing process and the NOPR takes significant steps in that direction. I am pleased that the motion before us today includes more substantive considerations. These include proposals to modernize our regulations to meet the realities and circumstances faced by the parties, particularly pro se complainants who appear on their own behalf, as well as small businesses navigating our administrative hearing process. I wholeheartedly support these critical considerations and welcome the comments and policy debates they will generate.
I emphasize the current proposal to permit ''an individual consumer to be represented by an individual who holds a power of attorney over an individual during periods of disability and incapacity.'' The proposal within the motion is a good starting point, but in my view, it falls short of necessary reforms to individual representation, similar to procedures utilized by several other administrative agencies. By authorizing additional representation options for individuals, we may better facilitate the development of evidentiary records in complaint proceedings involving individual consumers. However, I am not prejudging the outcome and welcome a robust discussion. Undoubtedly, inclusion of this issue in the NOPR makes this one of the more consequential rulemakings in some time that is directly aimed at helping consumers.
I encourage all vested partners—including those organizations representing vulnerable populations such as legal services organizations, law school/pro bono clinics, and organizations representing seniors—to weigh in on this issue. It would be beneficial to hear from experienced paralegals, social workers, and other professionals (who already represent low income individuals in public benefits, unemployment, and other administrative hearings) about this proposal or other similar proposals which could better inform this NOPR on how to accomplish effective representation for individuals in Commission hearings and proceedings.
November 9, 2023
KATHRYN L. ZERFUSS,
Commissioner
Statement of Commissioner John F. Coleman, Jr. On November 9, 2023, the Commission considered a recommendation to issue a Notice of Proposed Rulemaking regarding its procedural regulations. I voted to dissent from a Motion that modified the proposed rulemaking order. The order was subsequently tolled by the Office of Attorney General. We now consider a clarified notice of proposed rulemaking that includes changes to the proposed revisions to our regulations. These clarifications resolve some of the reasons for my dissent. However, the proposed order does retain certain substantive modifications that, in my view, fail to satisfy the Regulatory Review Act's criteria for statutory authority, necessity and clarity. These modifications include proposed changes to our interpretations of Sections 316 and 332 of the Public Utility Code, and our rules regarding legal representation in Commission proceedings.21 Therefore, I will be voting no on the proposed order.
August 22, 2024
JOHN F. COLEMAN, Jr.,
CommissionerFiscal Note: 57-341. No fiscal impact; recommends adoption.
[Continued on next Web Page] _______
1 At its November 9, 2023 Public Meeting, the Commission adopted Vice Chair Kimberly Barrow's Motion at the above-captioned docket. See Regulations Governing the Public Utility Commission's General Provisions, 52 Pa. Code Chapters 1, 3, and 5 (relating to Rules of Administrative Practice and Procedure; Special Provisions; and Formal Proceedings), Docket No. L-2023-3041347. Additionally, the Vice Chair, Commissioner Kathryn L. Zerfuss, and Commissioner John F. Coleman, Jr. each issued individual Statements at the November 9, 2023 Public Meeting at the above-captioned docket, which were served to the parties at this Docket. In accordance with the action taken at the November 9, 2023 Public Meeting, the Commission subsequently entered a NOPR Order and Annex at this docket on December 20, 2023 (December 20, 2023 NOPR and Annex) which was also served on the parties. The Commission has taken action to clarify its previously entered December 20, 2023 NOPR Order and Annex in order to correct various defects therein that have been brought to its attention. The previous Statements adopted at the November 9, 2023 Public Meeting and entered at this docket will be published along with this clarified Preamble Order and accompanying Annex in the Pennsylvania Bulletin.
2 Final Rulemaking For the Revision of Chapters 1, 3, and 5 of Title 52 of the Pennsylvania Code Pertaining to Practice and Procedure Before the Commission, Docket No. L-00020156 (Final Rulemaking Order entered January 4, 2006), effective April 29, 2006, 36 Pa.B. 2097 (4/29/2006). That rulemaking may be viewed on the website of the Pennsylvania Independent Regulatory Review Commission as IRRC Number 2441, at https://www.irrc.state.pa.us/regulations/find_a_regulation.cfm.
3 See Perfection of Security Interests in Intangible Transition Property, Docket No. L-00970122 (Final Rulemaking Order adopted July 10, 1997); see also 27 Pa.B. 5420 (10/18/1997): https://www.pacodeandbulletin.gov/Display/pabull?file=/secure/pabulletin/data/vol27/27-42/1662.html (last accessed on November 27, 2023). That proceeding is sometimes referred to at Docket No. L-970122.
4 On March 20, 2020, Chairman Gladys Brown Dutrieuille issued an Emergency Order that provided for the suspension of regulatory and statutory deadlines under appropriate circumstances and modified filing and service requirements. The Commission unanimously ratified the March 20 Emergency Order at its March 26, 2020 Public Meeting. See also September 15, 2022 Order, Docket No. M-2021-3028321.
5 See September 15, 2022 Order, Docket No. M-2021-3028321.
6 Executive Order 2023-07—Building Efficiency in the Commonwealth's Permitting, Licensing, and Certification Processes. See, https://www.governor.pa.gov/wp-content/uploads/2023/01/20230131_EO-2023-07_FINAL_Executed.pdf.
7 https://www.puc.pa.gov/efiling/default.aspx.
8 Any persons submitting a filing of 250 pages or more must mail one copy to the Secretary of the Commission.
9 65 Pa.C.S. §§ 701—716.
10 71 P.S. § 745.5a. Among other things, the Section 5.2 criteria requires us to show the following in support of a proposed regulation: the legal authority, need, and financial/economic impact.
11 1 Pa.C.S. § 1921(a).
12 In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, 577 Pa. 231 (2004). ''This Court has repeatedly recognized the unambiguous meaning of the word in most contexts.'' 577 Pa. at 245.
13 Miller v. County of Centre, 643 Pa. 560 (2017).
14 ''[D]ismissal of a proceeding for a party's failure to prosecute or failure to appear at a hearing without good cause does not violate due process.'' Fountain Capital Fund, Inc. v. Pennsylvania Securities Commission, 948 A.2d 208, 214 (Pa. Cmwlth. 2008).
15 Section headings may be used in aid of construction. 1 Pa.C.S. § 1924.
16 McNeil v. Owens-Corning Fiberglas Corp., 545 Pa. 209, 213, 680 A.2d 1145,1147-48 (1996).
17 See Howell v. Philadelphia Gas Works, Docket No. C-2016-2568426, (Opinion and Order entered May 2, 2017).
18 66 Pa.C.S. § 316. Section 316 of the Code provides, in pertinent part, that: ''Whenever the commission shall make any rule, regulation, finding, determination or order, the same shall be prima facie evidence of the facts found and shall remain conclusive upon all parties affected thereby, unless set aside, annulled or modified on judicial review.'' I concede that Section 316 of the Code governs prima facie evidence of facts found which are conclusive unless set aside and creates a presumption that prior facts are reasonable. However, that is not all that Section 316 does. Section 316 of the Code also gives conclusive effect to a final Commission order that is not appealed and in doing so, precludes a collateral attack of such order. Thus, regardless of whether res judicata/collateral estoppel applies, a complainant is barred by Code Section 316 from relitigating issues raised in a prior complaint that was dismissed with prejudice for failure to prosecute and meet the burden of proof.
19 52 Pa. Code § 1.2(a).
20 52 Pa. Code § 1.2(d).
21 Please see my dissenting statement at this docket entered on November 9, 2023.
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.
