RULES AND REGULATIONS
Title 52--PUBLIC UTILITIES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[52 PA. CODE CHS. 1, 3, 5, 57 AND 59]
[L-930076]
Rules of Administrative Practice and Procedure
[27 Pa.B. 414] The Pennsylvania Public Utility Commission (Commission) on July 18, 1996, adopted an order at its public meeting to promulgate final-form regulations regarding its rules of administrative practice and procedure. The amendments will update and amend the approximately 100 sections. Changes range from corrections to punctuation, rewording phrases and correcting references to adding entirely new sections to address perceived problems. The contact person is Susan D. Colwell, Assistant Counsel, Office of Counsel, Law Bureau (717) 783-3459.
At the public meeting of July 18, 1996, the Commission adopted final regulations for the revision of its rules of administrative practice and procedure, appearing at Chapters 1, 3 and 5 (relating to rules of administrative practice and procedure; special provisions; and formal proceedings).
This will be the third time that the rules have been revised since they were amended in 1984 and 1989. After monitoring the 1989 rules, the Commission noted room for some improvements and initiated this rulemaking by publication of advance notice on March 13, 1993. The proposed amendments were published at 25 Pa.B. 1288 (April 8, 1995) with a 90-day comment period. Numerous comments and recommendations were received and reviewed by an internal committee before the final-form was adopted by the Commission.
Changes range from punctuation and phraseology to the addition of new subsections and sections. The form section has been eliminated to allow the periodic update of Commission-generated forms without requiring a rulemaking, thus keeping the forms current with changing laws and policies.
Effective rules of administrative practice and procedure result in more efficient case management, and periodic revisions of the rules are necessary for them to remain effective.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Commission submitted a copy of the final rulemaking, which was published as proposed at 25 Pa.B. 1288, and served on March 28, 1995, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of House Committee Consumer Affairs and the Senate Committee on Consumer Protection and Professional Licensure for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Commission also provided IRRC and the Committees with copies of the comments received, as well as other documentation.
In preparing these final-form regulations, the Commission has considered the comments received from IRRC, the Committees and the public.
These final-form regulations were deemed approved by the House Committee on Consumer Affairs and was approved November 13, 1996, by the Senate Committee on Consumer Protection and Professional Licensure, and was approved by IRRC on November 21, 1996, in accordance with section 5(c) of the Regulatory Review Act.
Commissioners Present: John M. Quain, Chairperson; Lisa Crutchfield, Vice Chairperson; John Hanger, Concurring & Dissenting in part-Statement; David W. Rolka, Concurring & Dissenting in part; and Robert K. Bloom
Public Meeting held
July 18, 1996
Order By the Commission:
In 1984, Chapters 1, 3 and 5 were revised and amended to establish comprehensive practice and procedure rules applicable to Commission proceedings. The revised rules became effective on January 1, 1985. Thereafter, the Commission solicited comments on the effectiveness and usefulness of the rules in order to implement timely and necessary revisions. By order entered August 5, 1988, the Commission again amended the procedural regulations effective January 3, 1989.
After monitoring the 1988 rules and noting room for improvement, the Commission decided to initiate a proceeding designed to update, amend and streamline its procedural regulations. On March 13, 1993, the Commission published an advance notice of proposed rulemaking for the Rules of Administrative Practice and Procedure in the Pennsylvania Bulletin at 23 Pa.B. 1177. The notice stated that the Commission was considering amending regulations pertaining to the Rules of Administrative Practice and Procedure at Chapters 1, 3 and 5, and that interested persons had 45 days in which to file written comments.
Comments were received from: the law offices of Louis J. Carter; Duquesne Light Company; the Office of Consumer Advocate; Philadelphia Electric Company, now PECO Energy; the law firm of Malatesta Hawke & McKeon; the Bell Telephone Company of Pennsylvania, now Bell Atlantic--PA; the Office of Small Business Advocate; the law firm of Kirkpatrick & Lockhart; and from the Commission's Bureaus of Law and Transportation, and the Offices of Administrative Law Judge and Trial Staff. Based on these comments, preliminary revisions were made and presented to a committee formed from the Commission's bureaus.
In August 1994, a finalized version of the preliminary revisions was sent to committee members for further review. The end product of this internal and external review of the Commission's procedural regulations has resulted in numerous proposed changes to the existing rules as well as an increase in one of the Commission fees. We adopted them as proposed amendments to our procedural regulations at the December 1, 1994, public meeting, and they were published for comment at 25 Pa. B. 1288 (April 25, 1995). Again, we received many useful comments from both inside the Commission and from the industry and utility bar.
Comments to the proposed regulations were received from: Central Pennsylvania Paralegal Association, Pennsylvania Department of Environmental Protection, Duquesne Light Company, the law firms of Kirkpatrick & Lockhart, and Malatesta, Hawke & McKeon, and Raymond A. Thistle, Jr., the National Federation of Paralegal Associations, the Offices of Trial Staff, Consumer Advocate and Small Business Advocate, PECO Energy, Pennsylvania Power Company, Pennsylvania Bar Association, Pennsylvania Gas Association, West Penn Power Company, and from the Commission's Offices of Administrative Law Judge, and Special Assistants and the Bureaus of Audits, Law, and the Secretary.
Throughout the long process necessary to update our procedures, our goal has been to develop and fine-tune our regulations to produce procedural rules of practice before the Commission that are fair, efficient and clearly stated. The final-form regulations we adopt today will improve our rules by clarifying some otherwise murky procedures and will simplify practice before this Commission.
One section which attracted considerable attention was § 1.22 (relating to appearance by attorney or certified legal intern) which deals with appearances and representation before the Commission. We had proposed allowing legal assistants under the supervision of an attorney admitted to practice in this Commonwealth to represent complainants in informal hearings. The wording made it unclear, however, whether we intended to allow such representation before administrative law judges in formal hearings.
We live in a state which has a strict approach to the practice of law. In this Commonwealth, the Supreme Court has the ''inherent and exclusive power to regulate the admission to the bar and the practice of law.'' Bar Admission Rule 103. This regulation by the Supreme Court limits the power of the Legislature and State agencies to act contrary to the rules established by the Court. Currently, the only persons authorized to practice law in this Commonwealth are: (1) those fully admitted to the Pennsylvania bar, (2) those admitted pro hac vice under Rule 301, and (3) those who qualify as certified legal interns under Rule 321.
Federal agencies have the ability to decide whether only lawyers can represent clients before it under the Administrative Procedure Act (5 U.S.C.A. § 555) even if those agencies are located in states which would not otherwise permit nonlawyer representation. Sperry v. State of Florida ex rel the Florida Bar, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963). State agencies whose Federal funding source requires the agencies to meet Federal statutory requirements as a condition of Federal aid are the only Pennsylvania agencies which allow nonlawyer representation. This Commission is not such an agency.
Whether or not we agree with the Supreme Court's rules for the practice of law and their application to practice before administrative agencies is immaterial; we are bound by the laws of this Commonwealth. A careful review of those laws and the comments received has persuaded us to rework the regulation in order to conform the regulation to reflect Pennsylvania law. New § 1.21(d) addresses our informal practice, specifically providing that paralegals working under the direct supervision of an attorney or another appropriate individual may represent parties in cases brought under Chapters 56 and 64 (relating to standards and billing practices for residential utility service; and residential telephone service). This is allowed since appearances before our Bureau of Consumer Services to address informal consumer complaints under 66 Pa.C.S. § 308(d)(1) (relating to bureaus and offices) do not constitute the practice of law, and parties may have a representative other than an attorney. These informal proceedings are not bound by the same strict rules to which we must adhere in formal hearings before the administrative law judges, and, indeed, are typically conducted over the telephone among a nonattorney utility customer service representative, the BCS representative and the customer. We include the new section to outline an existing practice.
We have added the Office of Prothonotary and the appropriate sections have been changed to reflect the addition. The Office of Prothonotary was created effective April 30, 1996, and is responsible ''. . . for the filing, docketing, safekeeping, control, dissemination, record retention and retrieval of all documents filed with this agency. . . . Additionally, the Prothonotary will have the discretion to reject filings not properly perfected.'' Notice, 26 Pa.B. 1456 (March 30, 1996).
Our provisions for water and wastewater collection, treatment and disposal applications have been expanded and refined in order to update our regulations in accordance with new laws. Every effort has been made to incorporate the requirements of the Department of Environmental Protection in order to streamline and standardize the requirements for applicants and to reduce their regulatory burden while fulfilling our statutory mandate.
The following is a section-by-section description of the changes made to each section. The Commission thanks all who provided comments and suggestions.
Chapter 1. Rules of Administrative Practice and Procedure
Subchapter A. General Provisions. § 1.1. Scope of subpart.
The title is changed from ''Scope of chapter.''
§ 1.3. Information and special instructions.
The changes are the update of the Commission's mailing address by deleting the former zip code and including the correct nine-digit zip code, and by substituting ''Prothonotary'' as the office within the Commission which will receive filings.
§ 1.4. Filing generally.
Subsection (a) was updated to include the Commission's correct nine-digit zip code and the Prothonotary. Subsection (b) reflects the removal of the phrase ''relevant file number,'' which has no independent meaning but is merely repetitive where the more commonly used ''docket number'' appears. The wording of the section is rearranged for greater clarity.
§ 1.5. Amendment to rules.
Here a semi-colon and a comma are removed from locations where they are not necessary.
§ 1.8. Definitions.
''Active parties'' and ''inactive parties'' are defined in general rate cases to distinguish those who intend to play an active role at hearings (file testimony, cross-examine witnesses, and the like) from those who do not. The new language also sets forth the rights of ''inactive parties'' to testify at hearings and to obtain copies of all orders and decisions issued in the proceeding. A definition is added for ''Prothonotary.''
§ 1.9. Organization chart.
This section is deleted to eliminate the need to promulgate a regulation whenever the organization of the agency undergoes a change.
§ 1.11. Date of filing.
This rule is amended to add ''Prothonotary'' and to comply with the rules of the United States Post Office (USPO). The previous rule required attaching the proof of mailing certificate to the original document. The USPO rules, however, do not allow execution of a proof of mailing certificate for an unsealed envelope. Since the two rules were incompatible, this rule is changed.
The certificate of mailing itself is deleted since its periodic updating is beyond the control of the Commission, and its removal eliminates the need to promulgate a regulation whenever the USPO makes a change in the certificate.
A new subsection (c) is added to explicitly prohibit the filing of documents by telecopier facsimile with the Commission. This is to ensure that the Commission's files contain clear and legible original documents. This new provision, however, does not affect the ability of parties to a litigation to agree to accept faxed documents from each other.
The spacing and punctuation are adjusted to facilitate easier reading of this section.
§ 1.12. Computation of time.
The existing subsection (a) provides for part-day holidays to be counted as full days for computing due dates. This poses a problem on those days when the Commission's file room is closed for part of the day, such as when employes are sent home due to heavy storms. The case of Commonwealth v. Koeck, 360 Pa. Super. 200, 520 A.2d 53 (1987), held that an appeal was not late-filed when the appellant attempted to file on the afternoon of the 30th day but found the office closed for the latter half of the day, and was forced to file on the 31st day. The recommended change merely recognizes that an appellate court would be likely to strike any regulation which cuts short a filing period.
A new subsection (b) is added to spell out the computation of time prescribed or allowed by regulation or statute which is measured by counting a specified number of days backward from a scheduled future act.
§ 1.13. Issuance of Commission orders.
The change here reflects the correct citation.
§ 1.14. Effective dates of Commission orders.
Terminology is changed to be consistent with the law and practice of the Commission, which recognizes the entry of the order to be the effective date, unless otherwise specifically provided in the order.
§ 1.15. Extensions of time and continuances.
The title is changed to more accurately reflect the content of the section.
§ 1.21. Appearance in person.
This section is divided into four paragraphs for simplification. The first states that individuals may represent themselves. The second deals with representation before the Commission in adversarial proceedings, and the third concerns nonadversarial proceedings. The changes further define who may represent which type of entity before the Commission.
The fourth specifically spells out that in informal proceedings brought under the chapters relating to standards and billing practices for residential utility service and residential telephone service, parties may be represented by paralegals under the supervision of an attorney or by another appropriate individual.
§ 1.22. Appearance by attorney or legal intern.
In subsection (a), the term ''a person'' is replaced with the phrase ''individuals, partnerships, associations, corporations or governmental entities,'' in order to clarify which entities may be represented by an attorney licensed in another state.
Subsection (b) is added to permit the Commission the discretion of allowing the right to practice before the Commission to a member of the bar of a state which does not grant Pennsylvania bar members reciprocal rights consistent with the Supreme Court Rules relating to admission pro hac vice.
Subsection (c) spells out that law students meeting the requirements of the Pa.B.A.R. No. 321 may represent clients consistent with 322.
§ 1.23. Other representation prohibited at hearings.
For consistency, the same substitution of ''individuals, partnerships, associations, corporations or governmental units'' is made for the word ''person'' that was made in the previous two sections.
§ 1.24. Notice of appearance or withdrawal.
In this section, which deals with who should file a notice of appearance or withdrawal, the phrase ''in a particular proceeding which involves a hearing or an opportunity for hearing'' was deleted to cut down on excess verbiage without changing the meaning of the section, and ''him'' is replaced with ''the individual'' to promote gender neutral phraseology. Further, additional language spells out that a change in address which occurs during the course of a proceeding shall be reported to the Secretary promptly.
§ 1.27. Suspension and disbarment.
Subsection (a) is altered to insert commas and to further define conduct which may result in suspension or disbarment from practice before the Commission. Subsection (a)(4) is added to specifically provide that the repeated failure to follow directives constitutes behavior which may be subject to discipline, as is ''contemptuous'' conduct, added in subsection (a)(3).
The definition of practice before the Commission is detailed more fully to include ''appearances at any hearing before the Commission or a presiding officer'' in the newly added subsection (b)(3).
§ 1.31. Form of documentary filings generally.
The word ''file'' is replaced with the more commonly used ''docket,'' and the word ''on'' replaces the formerly-used ''in.''
§ 1.33. Incorporation by reference.
The words ''and docket number'' are added to clarify that the docket number should be used whenever a party wishes to incorporate a previously filed document by reference. Deleted language was excess verbiage, and the deletion did not change the meaning. ''Prothonotary'' is added to denote the correct office for checking the availability of a document.
§ 1.34. Single pleading or submittal covering more than one matter.
This section is revised to permit the submittal of one filing fee when a pleading refers to one or more related transactions to promote consolidation of filings and reduce administrative burdens while facilitating comprehensive analysis of related matter. However, the Commission may, upon review, determine that the transaction should be refiled as two or more separate filings requiring additional fees if, in the Commission's judgment, the transactions are not closely related or otherwise properly joined.
§ 1.36. Verification.
This section is rearranged to facilitate easier understanding by beginning with a list of documents which require verification, then defining verification, and finally giving examples of a verification and an affidavit. The verification for motor carrier applicants now includes those transporting passengers.
§ 1.37. Number of copies.
The words are rearranged to allow easier reading of this section, and the number of copies to be submitted to the Commission has been increased from an original and two to an original and three.
§ 1.43. Schedule of fees payable to the Commission.
Following a cost study performed in-house, the fee for copies of microfilm per roll is being raised from $25 to $80 to reflect actual costs.
§ 1.51. Instructions for service and notice.
''Prothonotary'' is added to denote the proper office within the Commission.
§ 1.52. Reserved.
The contents of this regulation are moved to Section 1.53(b) since it contains an exception to that section rather than a rule which should stand on its own.
§ 1.53. Service by the Commission.
Phraseology of subsection (a) is rearranged to facilitate easier understanding but the actual requirements have not changed. New subsection (b) is essentially old Section 1.52, providing the enumeration of those instances which require service by certified mail.
§ 1.54. Service by a participant.
Subsection (a) is divided into subsections (a), (b) and (c) for easier reference. In addition, subsection (c) now permits parties to serve each other by telecopier, but only if that method of service is agreed upon in advance. Service of a hard copy must follow the faxed copy.
§ 1.56. Date of service.
Subsection (a) is divided into smaller subsections for easier reading, and a fourth method of computing the date of service has been added to reflect the allowance of service by telecopier between parties.
§ 1.57. Proof of service.
The wording of this sentence is rearranged to make the section easier to understand but the meaning is unchanged.
§ 1.61. Notice and filing of copies of pleadings before other tribunals.
Subsection (b) now requires that public utilities filing for bankruptcy notify the Offices of Consumer Advocate and Small Business Advocate as well as the Commission. Subsection (c) has been deleted since the Commission does not hold hearings on bankruptcy plans as a practice, and the requirement that a public utility which has filed for bankruptcy notify the Commission is included in the following subsection.
New subsection (c), formerly (d), clarifies which noun the word ''its'' modifies by replacing it with the phrase ''the public utility's.'' Otherwise, the section remains the same.
§ 1.72. Formal case files.
The designation of the contents of testimony folders is changed to eliminate depositions, responses to interrogatories, admissions and other information obtained through discovery which do not belong in the official record unless admitted into evidence at hearing.
§ 1.76. Tariffs, minutes of the public meeting and annual reports.
Pursuant to a comment received, this section is changed to specifically add that tariffs, minutes and annual reports shall be available for copying during business hours.
§ 1.77. Extensions of time to review folders.
The name of this section is changed to more accurately reflect the nature of the section.
Subchapter I. Amendments or Withdrawals of Submittals. The word ''or'' replaces the word ''to'' in the title for greater accuracy.
§ 1.86. Docket.
Excess wording is eliminated without changing the meaning of the section, and ''Prothonotary'' is added.
§ 1.91. Applications for waiver of formal requirements.
The language is rearranged so that the subject of the section appears at the beginning instead of the middle. The meaning remains the same.
§ 1.96. Unofficial statements and opinions by Commission personnel.
The introductory phrase and last sentence are eliminated as unnecessary. ''Reports drafted by Commission bureaus'' are added to the list of items which this section specifically mentions as not having the force and effect of law and are not binding on the Commission.
Chapter 3 § 3.1. Definitions.
The definition of ''emergency order'' is changed to reflect the current Commission practice of issuing emergency orders signed by the Commission Secretary when a Commissioner or the Director of Operations is not available.
§ 3.2. Issuance or denial of emergency order.
The list of Commission officials who are authorized to issue emergency orders is enlarged to include the Commission's Secretary, and the section now provides for procedures for denial of petitions for emergency order when denial is by less than the full Commission.
§ 3.3. Form of emergency order.
A copy of emergency orders shall be served upon the Prothonotary for inclusion in the formal record.
§ 3.4. Hearing on emergency order.
For easier reading, this section is divided into two subsections. The Commission's Secretary has been added to the list of Commission personnel whose order may be stayed by the presiding officer. The substance of the section has not been changed. New subsection (b) specifies that a petition for emergency order denied by less than the full Commission will be deemed ratified as denied if not acted upon at the next public meeting following service of denial.
§ 3.5 Ratification of emergency order.
The Commission's Secretary is added to the list of personnel whose orders will be affirmed or revoked at the public meeting following issuance.
§ 3.6. Petitions for interim emergency orders.
Subsection (d) now provides for filing with the Prothonotary.
§ 3.7. Issuance of interim emergency orders.
Subsection (b) is changed with the substitution of the word ''will'' for the existing ''shall.''
§ 3.10. Commission review of interim emergency orders.
Wording is changed to clarify that the presiding officer will certify the question of granting or denying the relief requested whether he or she grants or denies it. Previous wording left some question whether certification was necessary if the question were denied.
§ 3.111. Form and content of informal complaints.
Section references are clarified, and the requirement that informal complaints be filed with the Commission's Bureau of Consumer Services except in rate cases is added. Complaints filed in rate cases shall be filed with the Prothonotary.
§ 3.112. Action on informal complaints.
Subsection (a) now provides that a copy of an informal complaint filed in a matter which is already docketed will be placed in the folder of that docket, and a reference to Chapter 64 is added. Subsection (c) is added to state clearly that the filing of an informal complaint does not entitle complainant to a formal hearing.
§ 3.113. Resolution of informal investigations.
Language is added to specify that Commission staff may conduct informal investigations and that staff may also initiate formal investigations. This language change eliminates the implication that the Commissioners might initiate a formal investigation that is prosecutory in nature.
§ 3.163. Policy statement concerning public input hearings in rate proceedings.
This policy statement is deleted from the rules of practice and will be placed in Chapter 69 with the other policy statements.
§ 3.501. Certificate of public convenience as a water or waste water collection, treatment and disposal supplier.
The section is expanded to cover wastewater treatment suppliers. Although more detail is required, most of the requirements can be met by submitting the same documents to the Commission as must be submitted to DEP. Alternate forms may be used if the applicant elects not to submit the DEP forms. Subsection (a) now provides that applicants not submitting the DEP Business Plan must use the current form available from the Commission and spells out the filing requirements for these applications.
Subsection (b) spells out that incomplete applications can be rejected. Subsection (d) requires service of applications upon the Office of Consumer Advocate, Office of Small Business Advocate and the Department of Environmental Protection. The protest section has been removed and made into new § 3.502.
§ 3.502. Protests to applications for certificate of public convenience as a water or wastewater collection, treatment and disposal supplier.
This new section is added to replace and expand the protest subsection removed from § 3.501. Requirements for filing protests are now set out in more detail and include filing with the Prothonotary.
§ 3.551. Official forms.
Forms from this section have been removed and replaced with a list of those forms which will be available to the public from a central form repository at the Commission.
Subchapter I. Registration of Securities § 3.601. General.
This new section contains information which presently appears in Form L but should be in regulatory form. None of the information is new although some has been deleted to reflect the changes in the law over the years.
§ 3.602. Abbreviated securities certificate.
This section is added to relocate information which presently appears in Form M, which will be removed. This information should be in regulatory form. None of the information is new although some has been deleted to reflect actual practice of the Commission, including filing with the Prothonotary.
Chapter 5 § 5.11. Applications generally.
Wording of this section is changed to permit more flexibility in applications while providing guidance to applicants by suggesting that applications conform to official forms and subchapter requirements.
§ 5.12. Contents of applications.
This section reflects that the forms have been removed from the regulations but that specific requirements appearing in the regulations shall be followed.
§ 5.14. Applications requiring notice.
Subsection (b) is changed to point out the specific provision of § 3.501 which refers to a different time period than is provided here. Prothonotary is substituted to reflect the correct office to direct filing.
§ 5.21. Formal complaints generally.
Subsection (c) now requires a complainant to serve a copy of the complaint on the Commission's Office of Trial Staff, as well as the Office of Consumer Advocate and Office of Small Business Advocate, if the complaint proposes to change an existing or proposed tariff.
New subsection (d) spells out that the filing of a formal complaint generally entitles complainant to a formal trial-type hearing unless the Commission dismisses it, and it refers litigants to the appropriate sections governing motions.
Subsection (e) has been added to spell out that no party is directly responsible for answering complaints that are filed against the Commission. Issues will be determined prior to a hearing by prehearing conference memos with no party acting on behalf of the Commission itself.
§ 5.22. Contents of formal complaint.
A new subsection (b) has been added to require that a verification be attached to the complaint.
§ 5.31. Staff-initiated complaints.
Formerly entitled ''Order to show cause,'' this subsection (a) is adapted to include new Commission procedures developed as a result of Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992). New procedures provide for Commission staff to initiate complaints before the Commission. A new subsection (b) has been added to spell out the Commission's procedure when a party files a petition.
§ 5.41. Petitions generally.
A new subsection (b) has been added to require that petitions shall be served upon the Office of Consumer Advocate, the Office of Trial Staff, and the Office of Small Business Advocate.
§ 5.42. Petitions for declaratory orders.
Subsection (b) requires that service include a copy to the Office of Trial Staff and the Office of Small Business Advocate.
§ 5.52. Content of a protest to an application.
''Prothonotary'' is substituted to reflect the proper office for filing the application. Nothing else is changed.
§ 5.53. Time of filing.
Reference to a water and wastewater collection, treatment and disposal supplier section is added.
§ 5.61. Answers to complaints, petitions and motions.
Subsection (a) has been altered to include motions. The wording has been changed in subsection (b) to clarify it without changing its meaning.
Subsection (c) specifically exempts complaints which are docketed with Commission-instituted rate investigations from vulnerability to default judgments. A new subsection (d) specifies that answers may be filed to complaints filed in Commission-instituted rate investigations but that they are not required unless ordered by the Commission or presiding officer.
§ 5.62. Answers seeking affirmative relief or raising new matter.
Time for filing a reply to new matter is increased from 10 to 20 days. Wording is added to specify that failure to file a timely reply to new matter shall be deemed in default and that relevant facts stated in the new matter may be deemed to be admitted.
§ 5.64. Answers to orders to show cause.
This section is deleted to reflect that Commission procedures no longer include orders to show cause. Under Lyness, Commission prosecutory staff files complaints, and answers to complaints are discussed § 5.61.
§ 5.71. Initiation of intervention.
Grammatical changes are made without changing the meaning of the section.
§ 5.74. Filing of petitions to intervene.
The main paragraph is divided into two smaller sections for ease of reference. Language is added to provide that intervention will not be permitted once an evidentiary hearing has concluded absent extraordinary circumstances.
§ 5.102. Motions for summary judgment and judgment on the pleadings.
Subsection (c) is divided into two parts to clarify the procedure to be followed when motions for summary judgment and judgment on the pleadings are filed. Subsection (c)(2) is added to allow the administrative law judge to grant a partial summary judgment under certain circumstances.
§ 5.103. Motions.
This section now applies to all motions not covered elsewhere instead of being limited to hearing motions.
Subsection (d) is revised for clarity, and subsection (d)(3) provides that a presiding officer may render a final determination with regard to a motion prior to the termination of hearings by issuing an initial or recommended decision when a motion involves a question of jurisdiction, the establishment of a prima facie case or standing.
§ 5.222. Initiation of prehearing conferences in nonrate proceedings.
Subsection (c)(4)(v) is replaced by a more detailed subsection regarding discovery to be addressed at prehearing conferences.
§ 5.224. Prehearing conference in rate proceedings.
A sentence in subsection (b) is deleted because it was unnecessary and added nothing to the paragraph. Subsections (b)(1) and (2) have been expanded to suggest details regarding discovery requests for prehearing conferences in rate proceedings. Subsection (d) provides that the presiding officer may identify the active parties for purposes of service and may determine whether a public input session should be held, if that decision has not already been made.
Subsection (f) references specific authority provisions for presiding officers and then provides that the officer or a mediator may participate in settlement discussions.
§ 5.231. Offers of settlement.
A sentence is added providing that participants may request that the presiding officer or an additional presiding officer or mediator be appointed to participate in settlement negotiations.
§ 5.232. Stipulations and settlements.
Wording is adjusted to clarify the section, and a sentence is added to require that settlements identify the other participants which were provided or denied an opportunity to enter into the subject stipulation or settlement.
§ 5.235. Motor carrier restrictive amendments.
A phrase is added to specify that the section applies only to motor carrier applications for passenger or household goods in use authority to comply with Federal law.
§ 5.242. Order of procedure.
A new subsection is added to specifically allow the presiding officer the right to direct the order of participants for purposes of cross-examination.
§ 5.243. Presentation by participants.
Subsection (e) is expanded to include partial settlements.
§ 5.253. Transcript corrections.
This section is clarified to spell out a procedure for proposing transcript corrections and under what conditions they can be allowed. Subsection (f) states that an unopposed request for corrections not acted upon within 30 days will be deemed granted.
§ 5.301. Interlocutory review generally.
Only grammatical changes are made to this section.
§ 5.302. Petition for interlocutory Commission review and answer to a material question.
A grammatical change is made to subsection (a), and the maximum allowed length of the petition has been increased from one to three pages.
§ 5.303. Commission action on petition for interlocutory review and answer.
The word ''interlocutory'' is inserted in the title to clarify the subject of the section, a minor adjustment is made to the wording in subsection (a) without changing the meaning.
§ 5.304. Interlocutory review of discovery matters.
The maximum length of a request for interlocutory review of a ruling on discovery is increased from one to three pages, and any brief either in support or opposition is now limited to 15 pages. The changes in subsection (a)(4) and (5) clarify the actions required of the presiding officer, and new subsection (e) provides that the failure of the Commission to act on a certified question within 30 days is deemed to be an affirmance of the decision of the presiding officer.
§ 5.305. Interlocutory review of a material question submitted by a presiding officer.
Subsection (f) is added to provide that the failure of the Commission to act upon a certified question within 30 days will be deemed to be an affirmance of the decision of the presiding officer.
§ 5.306. Notification by telephone.
This section provides that any telephone notification ordered by a presiding officer will be confirmed by the presiding officer by service in writing.
§ 5.321. Scope.
Subsection (a) is expanded to provide more detail regarding which types of proceedings fall within this section.
§ 5.324. Discovery of expert testimony.
New language states that the answer, report or testimony signed by the expert shall be deemed to be provided under oath in accordance with 66 Pa.C.S. § 333(d) (relating to prehearing procedures).
§ 5.331. Sequence and timing of discovery.
Subsection (d) is altered to provide that initial discovery directed to data supplied by the public utility at the time of the initiation of the proceeding shall be submitted to the utility within 10 working days following the first prehearing conference.
§ 5.332. Supplementing responses.
In paragraphs (1) and (2), the word ''seasonably'' is replaced with the word ''continuing,'' which is more accurate. The meaning of the subchapter has not been changed.
§ 5.342. Answers or objections to written interrogatories by a participant.
Subsection (d) is divided into two more sections for ease of reference. A phrase is added to make clear that discovery shall only be filed with the Prothonotary if there is an objection.
§ 5.343. Procedures in deposition by oral examination.
A phrase is added to specifically recognize that another provision exists for the taking of depositions.
§ 5.345. Procedure on depositions by written questions.
The word ''trial'' is replaced with the more commonly used ''hearing'' in the interests of consistency in subsection (c). Subsection (d) requires that following completion of the deposition questions, the deposed shall return the deposition to the sender instead of filing it with the Commission. The requirement that the Secretary notify other participants of the receipt of the deposition is eliminated.
§ 5.346. Persons before whom depositions may be taken.
The word ''insular'' is removed as unnecessary.
§ 5.348. Transcript of deposition, objections and filing.
The requirement that a deposition be filed with the Secretary is deleted since the official file no longer contains depositions.
§ 5.349. Requests for documents, entry for inspection and other purposes.
In subsection (a)(1), computer records are added to the list of documents which are discoverable. The Offices of Small Business Advocate and Trial Staff are now included with the Office of Consumer Advocate to receive copies of discoverable materials from regulated utilities at no charge.
§ 5.371. Sanctions generally.
Two new subsections are added to provide a set time period for answering and deciding motions for sanctions.
§ 5.401. Admissibility of evidence.
The word ''men'' is replaced with the gender-neutral ''persons.''
§ 5.413. Reserved.
Formerly ''Fees of witnesses,'' the substance of this section is placed in § 5.421, where it is more appropriate.
Subpoenas and Protective Orders The title is expanded to state that the section covers protective orders as well.
§ 5.421. Subpoenas.
A sentence is added to subsection (a) to state that the proposed subpoena may be attached to the application. Subsection (b) now provides that a copy of an application for a subpoena of a Commission employe must be served on the Commission's Law Bureau.
Subsection (c) is divided into two sections for ease of reference and provides that service by mail may be accomplished by any form of mail requiring a return receipt. Service is complete upon delivery of the mail to the participant or according to Pa.R.C.P. No. 402(a)(2).
Subsection (d), instead of referring to § 5.413, now replaces it by providing that witnesses be paid the same fees and mileage as witnesses in courts of common pleas.
§ 5.431. Close of the record.
A reference to § 5.402(b) is inserted to draw attention to the provision which sets out the requirements for admission of evidence following the close of the record. The substance of this section is not changed.
§ 5.482. Disqualification of a presiding officer.
This section is expanded and set out in an easy-to-read format. It details the procedure under which a party may request that a presiding officer be removed from a case.
§ 5.483. Authority of presiding officers.
The addition to this section expands the authority of a presiding officer to include the scheduling and imposition of reasonable limitations on discovery as discussed in the earlier sections relating to discovery.
§ 5.502. Filing and service of briefs.
The incorrect room number of the New Filing Section is removed from this section.
§ 5.533. Procedure to except to initial, tentative and recommended decisions.
Subsection (b) changes the format requirement from stating each exception in a numbered paragraph to simply numbering the exceptions, which allows more than one paragraph per exception. Only grammatical changes were made to subsection (c). New subsection (e) specifically states that the 3-day mailbox rule does not apply to exceptions.
§ 5.536. Effect of failure to file exceptions.
In subsection (a), the word ''will'' is changed to ''may'' since there are decisions issued by administrative law judges which will not become final without some action by the Commission.
§ 5.539. Withdrawal of appeals.
This section is divided into two subsections. The first is new and spells out that filing of exceptions is an appeal of a recommended or initial decision to the Commission. The second section provides that an appeal to the Commission may be withdrawn at any time, and if an appeal of an order not otherwise subject to Commission review is withdrawn, then the order becomes final upon withdrawal of the appeal.
§ 5.572. Petitions for relief following a final decision.
These sections are rearranged to clarify that petitions for reconsideration, rehearing, reargument, clarification, and supersedeas must be filed within 15 days of entry of an order, and that petitions for rescission and amendment may be filed at any time. No substantive changes are made.
§ 5.591. Reports of compliance.
''Prothonotary'' is substituted for ''Secretary.''
§ 5.592. Compliance with orders prescribing rates.
An additional reference is added to subsection (a), but the meaning is unchanged.
§ 57.26. Construction and maintenance of facilities.
This section sets the standards for maintenance and construction of facilities according to the most recent National Electrical Safety Code rather than a particular edition.
§ 57.45. Preservation of records.
Public utilities are now required to keep records according to the most recent publication of the National Association of Regulatory Utility Commissioners rather than the publication of a particular year.
§ 59.45. Preservation of records.
Gas utilities are required to keep records according to the current publication applicable rather than that of a particular year.
Accordingly, under sections 501, 504--506, 1301 and 1501 of the Public Utility Code, 66 Pa.C.S. §§ 501, 504--506, 1301 and 1501, and the Commonwealth Documents Law (45 P. S. § 1201 et seq.), and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1--7.4, the Commission adopts final-form regulations pertaining to practice and procedure before the Commission to read as set forth in Annex A, Therefore,
It is Ordered that:
1. The Commission's regulations, 52 Pa. Code Chapters 1, 3 and 5, are amended by:
(a) adding §§ 3.502, 3.601 and 3.602;
(b) deleting §§ 1.9, 1.52, 3.163, 5.64 and 5.413; and
(c) amending §§ 1.1, 1.3--1.5, 1.8, 1.11--1.15, 1.21--1.24, 1.27, 1.31, 1.33, 1.34, 1.36, 1.37, 1.43, 1.51, 1.53, 1.54, 1.56, 1.57, 1.61, 1.72, 1.76, 1.77, 1.86, 1.91, 1.96, 3.1--3.8, 3.10, 3.111--3.113, 3.501, 3.551, 5.11, 5.12, 5.14, 5.21, 5.22, 5.31, 5.41, 5.42, 5.52, 5.53, 5.61, 5.62, 5.71, 5.74, 5.102, 5.103, 5.222, 5.224, 5.231, 5.232, 5.235, 5.242,5.243, 5.253, 5.301--5.306, 5.321, 5.324, 5.331, 5.332, 5.342, 5.343, 5.345, 5.346, 5.348, 5.349, 5.371, 5.401, 5.412, 5.421, 5.431, 5.482, 5.483, 5.502, 5.533, 5.536, 5.539, 5.572, 5.591, 5.592, 57.26, 57.45 and 59.45, to read as set forth in Annex A.
2. The Secretary shall submit this order and Annex A to the Office of Attorney General for approval as to legality.
3. The Secretary shall submit this order and Annex A to the Governor's Budget Office for review of fiscal impact.
4. The Secretary shall submit this order and Annex A for formal review by the designated standing committees of both Houses of the General Assembly, and for formal review and approval by IRRC.
5. The Secretary shall deposit this order and Annex A with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin, effective upon publication.
6. A copy of this order shall be served upon all persons who submitted comments in this rulemaking proceeding.
JOHN G. ALFORD,
Secretary
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
