[36 Pa.B. 2097]
[Continued from previous Web Page] IRRC opposes the use of electronic filing at the Commission at this time. IRRC wants the provision in § 1.56(a)(5) governing the date of service for electronic documents to reflect its opposition to electronic filing. The Utility Group proposed revisions to § 1.56(a)(5) for clarity and to limit service to ''active'' parties. The OSBA comment suggests that § 1.56(a)(5)'s provision for electronic email by ''4:30 p.m. local time'' is ambiguous.
The Commission agrees with IRRC. The final regulation prohibits electronic filing with the Commission. This requires the use of traditional service although the parties can use electronic communications for service among themselves when appropriate.
The Commission does not adopt the Utility Group's comment on differentiating between active and inactive parties in this provision. As explained throughout this rulemaking, the difficulties of differentiating between an active or inactive party for date of service and disposition is better made by a presiding officer on a case-by-case basis and not in a general regulation.
Section 1.59. Number of copies to be served. Section 1.59(b)(1) of the proposed regulation governed the number of copies of a brief to be served. Section 1.59 differentiated between hard copy filings, which required two, and electronic or telefacsimile filing which only required one copy.
IRRC wants the Commission to revise § 1.59(b)(1)(ii) governing electronic filing copies. The Commission agrees. Section 1.59(b)(1)(ii) is deleted although the parties, as opposed to the Commission, can agree on electronic service on a case-by-case basis.
Subchapter G. Matters Before Other Tribunals
Section 1.61. Notice and filing of copies of pleadings before other tribunals. The proposed regulation for § 1.61(c) was removed because it is identical to (d). The proposed language added the category of ''licensee.'' The proposed language also required that a licensee or utility whose parent company had declared bankruptcy to inform the Commission. The proposed regulations help the Commission monitor bankruptcy proceedings without approving the bankruptcy plans of certificated utilities.
There were no comments on this proposed regulation. The final regulation adopts the proposed regulation and ministerial changes.
Subchapter H. Public Access to Commission Records
Sections 1.71 to 1.73. Objectives and Fiscal Records. The proposed regulation expressed the Commission's commitment to maintaining a record system that facilitates public access and imposes an obligation to retain fiscal records according to statutory, regulatory, and administrative requirements. There are no comments. The final regulation adopts the proposed regulation.
Section 1.76. Tariffs, minutes of public meetings and annual reports. The proposed regulation contains no substantive changes compared to the existing regulation. The Utility Group proposed ministerial language changes for clarity. The Commission agrees. The final regulation incorporates those suggestions.
Sections 1.81 to 1.86. Amendments or withdrawals of submittals. The proposed regulation made ministerial changes for clarity and consistency. There are not comments. The final regulation contains the ministerial changes.
Chapter 3. Special Provisions
Section 3.1. Definitions.
The proposed regulation replaces the word ''Executive Director'' with ''Director of Operations'' for consistency.
Section 3.2 through Section 3.5. Petitions for issuance of emergency order.
The proposed regulation removed references to the office of Executive Director. The term Director of Operations was used in its place. The Utility Bar comment identifies places in the proposed regulations at §§ 3.1, 3.2, 3.3, 3.4 and 3.5 where Executive Director should be replaced by Director of Operations for consistency.
The Commission agrees with the Utility Group. The final regulation uses the term Director of Operations for consistency and clarity.
The proposed regulation reorganized the emergency order sections. The provisions referring to ex parte emergency orders were located together and those sections referring to interim emergency orders were located together. The proposed regulation provided language adjustments so that there would be parallel standards for both sections. The proposed regulation relocated § 3.5 to § 3.3. This resulted in the elimination of § 3.5. Section 3.9 was relocated to § 3.6a.
IRRC suggests ministerial changes and parallel construction in § 3.2 The Commission agrees with IRRC and made adjustments in the final regulation responsive to these suggestions.
Section 3.6 through Section 3.10. Interim emergency relief. The proposed regulation reorganized this section. The sections referring to interim emergency orders were located together. The proposed regulation provided language adjustments so that there would be parallel standards for this section and §§ 3.2--3.5 for emergency orders. The proposed regulation relocated § 3.5 to § 3.3. This resulted in the elimination of § 3.5. Section 3.9 was relocated to § 3.6a.
There were no comments on this proposal. The final regulation adopts the proposed regulation.
Subchapter B. Informal Complaints
This proposed regulation changed the subheading to read ''Informal Complaints and Investigations'' because it better reflected the contents of the section. The proposed regulation also created and labeled Sections for ease of reference. Section (b) of § 3.112 proposed a process for staff review of informal complaints.
The Utility Group comment on § 3.112 wants the final regulation to require the Commission to issue and serve a written decision of every informal complaint. The final regulation rejects the Utility Group requirement that Section 3.112 require a written decision. The Commission informally resolves thousands of matters on an ongoing basis. Few of those resolutions become a formal proceeding. The alleged benefit resulting from a mandated written decision because of its usefulness in subsequent formal proceedings is not justified by the additional burden and cost. Such a result could also increase the number of formal appeals of informal complaints. The burden and costs for the paperwork required to implement this suggestion could overwhelm the Commission's administrative processes and certainly increase staffing and implementation costs ultimately recovered in assessments and rates.
The final regulation takes the least expensive and effective approach for resolving informal complaints. The Commission recognizes that a respondent to informal complaints may want a written decision to address allegations and factual assertions that could be inaccurate or incomplete. The cost to issue and serve a written decision addressing an informal resolution in those instances is far greater than a cost-effective solution that could, at times, rely on some ambiguous or unexplored factual allegations. The cost to resolve these ambiguities by service of a formal written decision is greater than an informal resolution and will almost certainly increase staff and resource needs ultimately recovered in assessments and rates.
Equally important, the role that these informal matters provide in advising the Commission about service problems is undermined if every informal matter, including allegations by current or ex-employees of a utility, became the subject of a written decision. A written decision imposes additional procedural requirements on pro se litigants. This could well result in more formal appeals and increase those costs.
The Commission, however, recognizes the Utility Group's desire to secure some kind of process for questioning ambiguities in informal complaint resolutions. For that reason, § 3.112(e) of the final regulation permits an appeal of any resolution of informal complaints under § 5.44 of our rules. The final regulation continues addressing Informal Complaints in § 3.112 and Informal Investigations in § 3.113.
Subchapter D. Crossing Proceedings
The proposed regulation modified the service requirements for § 3.361 complaints and notice of the forms for § 3.363. There were no comments on these proposed changes.
Section 3.361. Crossing complaints. The proposed regulation revised subsection (a) to serve the owner of the railroad right-of-way, which may be different from the public utility operating over it, as a party to a Commission proceeding. There are no comments. The final regulation adopts the proposed regulation.
Section 3.363. Claims for property damages from crossings. The proposed regulation modified subsection (a)(2) to indicate that forms are no longer listed in the regulations. They are available from the Secretary. There are no comments. The final regulation adopts the proposed regulation.
Subchapter E. Motor Transportation Proceedings
The proposed regulation made no changes to this section. This Section will be dealt with in a separate rulemaking proceeding.
Subchapter F. Arbitration of Disputes
The proposed regulation contained no substantive revisions to this section. The Ryan comment wants a new § 3.392 regulation addressing Commission arbitrations.
The Commission denies that request. The Commission recognizes the concerns expressed in the Ryan comment. However, the Commission is unwilling to issue a final comprehensive rule given the complexity of such a rule and the very limited opportunity of other parties to address this suggestion.
Subchapter G. Water or Wastewater Utility Proceedings
Section 3.501. Certificate of public convenience as a water supplier or wastewater collection, treatment or disposal provider. The proposed elimination of significant parts of the existing regulation generated substantial comments. In response to those comments, the final regulation retains the existing regulation as well as some additional provisions. A detailed discussion of each section's existing, proposed, and final Section is set forth below.
Section 3.501(a) and (a)(1) to (a)(10). Applicability. The existing regulation contains a list of requirements an applicant for a certificate of convenience must satisfy. The proposed regulation deleted this list in favor of forms.
The proposed regulation agreed with DEP that additional requirements, including a county comprehensive plan, municipal comprehensive plan and zoning designations, must be addressed by an applicant. The proposed regulation required an applicant to provide a certification letter as opposed to a Commission determination.
IRRC and DEP stress that the existing regulation should be retained because it is more comprehensive than the proposed regulation and reflects years of interagency comity. IRRC and DEP are concerned about establishing mandatory filing requirements in any way other than by setting them forth in a regulation. We agree. The final regulation retains the filing requirements for new and existing but uncertificated service.
The final regulation for § 3.501(a) also makes a ministerial change in § 3.501(a) to underscore that it is the Commission that has always been responsible for determining filing requirements. The final regulation retains the existing regulations for § 3.501(a)(1)--(10) as mandatory filing requirements. There are some minor ministerial title revisions for these provisions at § 3.501(a)(6)--(10). They do not impact retention of the existing filing requirements.
The final regulation at § 3.501(a)(2)(vi) requires that a copy of county comprehensive plans, municipal comprehensive plans and zoning designations be provided upon request of the Commission. Section 3.501(a)(2)(vi) takes this approach because these plans typically are voluminous and reflect a considerable duplication cost. The Commission does not want to impose mandatory submission requirement given these costs unless the plans are necessary and requested. An applicant letter is required to address compliance with the applicable requirements of these plans pursuant to § 3.501(a)(7) regardless of whether the Commission requests a copy of these voluminous documents.
The proposed regulation would have required an applicant to provide a letter certifying compliance with these requirements. The final regulation at § 5.301(a)(7) adopts the proposed regulation and requires an applicant to submit a letter addressing whether the applicant does or does not meet the requirements of these and additional governmental entities.
The Commission also agrees with the Utility Group that the word ''new'' should be stricken from § 3.501(a). We agree on the need to retain the long-standing filing requirements of § 3.501. The Commission has and will continue to apply these filing requirements to initial and existing but uncertificated utilities.
In addition, DEP raises a concern that, with respect to applications for additional and expanded authority by water and wastewater utilities, the Commission would not consider whether the proposed expansion would be in compliance with DEP requirements. The Commission takes seriously each utility's obligation to comply with the applicable DEP requirements. For this reason, the Commission will continue to require water and wastewater utilities to demonstrate compliance with applicable DEP requirements (via DEP certification) and the Commission will consider and may rely upon the local government's applicable zoning and planning requirements (via certification by the governmental entity) in considering a utility's application for additional or expanded service.
Section 3.501(b). The existing Section establishes filing requirements. Section 3.501(b) requires the applicant to file an original and three copies with the Commission. The applicant is advised that failure to include the required information and documents may subject the application to rejection. The application must contain exhibits. An affidavit of service must show the identity of those served under Section (d) as an accompaniment to the original and copies submitted to the Commission. Section 3.501(c) governs docketing and publication requirements.
The proposed § 3.501(b) continued many of these provisions. However, the proposed regulation deleted the original and three copies requirement. The proposed regulation retained the affidavit requirement. An applicant had to submit the forms set forth in the proposed § 3.501(c).
The final regulation for § 3.501(b) lists the additional considerations an applicant must address. These additional considerations respond to DEP and IRRC comments as well as our determination in the proposed regulation that these matters are an appropriate subject for the final regulations. They also incorporate the Commission obligations under the act of June 22, 2000 (P. L. 483, No. 67) and the act of June 23, 2000 (P. O. 495, No. 68). The new § 3.501(b) also reflects our Commission Policy Statements concerning Local Land Use at 52 Pa. Code § 69.1101 and small water company issues addressed in our policy statement at 52 Pa. Code §§ 69.701 and 711.
The new § 3.501(c) contains the existing § 3.501(b) requirements. The final regulation retains the copy requirements in the existing regulation. The final regulation adopts the first sentence of the proposed regulation at § 5.301(b) requiring conformity with the Commission's documentary filing requirements in §§ 1.31 and 1.32. It also addresses payment of fees set out in §§ 1.42 and 1.43.
Section 3.501(c). The existing § 3.501(c) regulation addresses docketing with the Commission, publication in the Pennsylvania Bulletin, and additional requirements. The proposed § 3.501(c) replaced the requirements of § 3.501(a) in the current regulation.
The OCA is concerned about the proposal to include less, not more, notice in the proposed regulation. The OCA is particularly concerned about the proposal to reduce newspaper publication from daily publications for two consecutive weeks to once a week for two consecutive weeks. We agree and adopt the OCA's position on newspaper publication.
Section 3.501(d). The existing regulation at § 3.501(d) governs copy distribution requirements. The existing regulation at § 3.501(d) does not require service of an application on any water or wastewater utility, municipal corporation or authority with a service area within one mile of a new or affected service area.
The proposed regulation denied a request to expand the copy requirement to include anyone except those abutting a proposed service area. The proposed regulation did, however, allow any water or wastewater utility, municipal corporation or authority with a service area within one mile of the proposed new or affected service area to request a copy. The proposed regulation also eliminated a requirement that the OCA be served a copy. The proposed regulation moved these revised copy requirements to § 3.501(e).
The OCA wants service expanded to include any water or wastewater utility, municipal corporation or authority within one mile of any proposed or affected service area. The OCA wants notice provided to existing and prospective customers. The OCA opposes the reduction in publication from daily for two consecutive weeks to once a week for two consecutive weeks.
The DEP is concerned about changes that allow or encourage unplanned development or sprawl. DEP claims that the proposed regulation conflicts with the legislative directions of the General Assembly to coordinate agency permitting decisions. DEP is also concerned about the distribution of copies to their regional or central office.
The OSBA is concerned that the Commission's renumbering in the proposed regulation fails to properly convert the existing regulation at § 3.501(d)(1) through (3) into the proposed regulation at § 3.501(e)(1)(i) through (iii), respectively.
In the final regulations, we believe we have addressed all of these concerns. The final requirements relating to copies, notice, and distribution requirements are set forth in § 3.501(c) through (f). The final regulation at § 3.501(f)(3) addresses the OCA's service concern by requiring service on the statutory advocates, including the OCA. These final regulations also restore the existing application requirements. These final regulations expand service to include DEP's regional and central offices, the statutory advocates, and all utilities abutting or within one mile of the proposed service territory. Finally, the customers of any proposed or existing but uncertificated applicant must be notified of any application. This combination of retaining current requirements and expanding the notice and service obligations better meshes our statutory mandates with the concerns of DEP and others.
Based on our agreement with the OCA's position on newspaper publication, we also see no need to reduce the public notice requirements of an applicant as reflected in our newspaper publication requirements. The final regulation continues the existing public notice requirements published in a newspaper of general circulation to ensure broad dissemination of the information.
Section 3.501(e). The existing § 3.501(e) is a reference section. The proposed § 3.501(e) contained reduced copy service requirements. The final § 3.501(e) contains a process for development of any forms.
The proposed regulation would have deleted mandatory application requirements in favor of forms that were subject to revision. The final regulation restores the application filing requirements while allowing the Commission to make forms available so that an applicant can understand exactly what is needed to comply with § 3.501. Also, the procedures governing the development of any form for purposes of § 3.501 require publication, website posting, and consultation with interested agencies or persons. This should resolve concerns about the need for public input in the development of forms that reflect the Commission's filing requirements.
Section 3.501(f). There is no existing or proposed § 3.501(f) because the copy requirements are set forth in § 3.501(e) of the proposed regulation. The final § 3.501(f)(3) regulation establishes a copy requirement for the OCA but also adds OTS and OSBA. The final § 3.501(f)(3) regulation also establishes service of a copy on DEP's central and appropriate regional offices. Finally, the final § 3.501(f) regulation establishes a service requirement on any water or wastewater utility, municipal corporation or authority with a service area within one mile of or abutting any proposed new or affected service area.
For ease of understanding this complex and lengthy response, Annex A presents our agreement with the parties' comments as new material written in capitalized text. This reflects incorporation of their suggestions. The proposed regulations are deleted in their entirety.
Section 3.502(a). Protests to applications for certificate of public convenience as a water supplier or wastewater collection, treatment and disposal provider. The proposed regulation in § 3.502(a) added the requirement that an attorney for a protestant supply his or her Pennsylvania attorney identification number. There were no comments. The final regulation adopts the proposed regulation.
Section 3.502(b). Participation in a proceeding. The existing regulation allows a protestant to participate in a proceeding as a party intervenor if they file a timely protest. The proposed regulation required that the protest be in appropriate and legally sufficient form. IRRC states that the requirement is vague. IRRC wants the final regulation to cross-reference the applicable regulatory standards.
The Commission agrees with IRRC. The final regulation deletes this proposed change and retains the existing regulation.
Section 3.502(c). The existing regulation makes no changes. The OSBA comment notes that this provision is governed by § 5.101. However, § 5.101 changes the term ''Motions'' to ''Preliminary Objections.'' The OSBA comment recommends that the language in this provision be consistent with § 5.101.
Subchapter H. Forms
Section 3.551. Official forms. This proposed regulation deleted the current list of forms stating that forms for applications, petitions, complaints and other matters are available on the Commission's website or from the Secretary. There are no comments. The final regulation adopts the proposed regulation.
Subchapter I. Registration of Securities
Section 3.601. The proposed regulation at § 3.601(b) clarified the certificate filing and payment requirements. The proposed regulation at 3.601(c) replaced the existing list of necessary information with a notice that a form is available from the Commission. There were no comments to this proposal.
The final regulation at § 3.601(b) adopts the certificate filing and payment requirement provisions. The final regulation at § 3.601(c) retains the current list of required information in light of IRRC's expressed concern about the use of forms in lieu of regulatory requirements in § 3.501. The final regulation, however, contains new information in § 3.601(d) detailing the process for developing standard formats. The revision balances IRRC and DEP concerns about forms with notice about revisions, provides an opportunity for input, and authorizes an appeal from any staff action under § 5.44.
Section 3.602. Abbreviated securities certificate.
Section 3.602(a). The proposed regulation made no changes to § 3.602(a) on the scope of our abbreviated securities rules. The late-filed Thomas comment urged the Commission to include two additional categories within the scope of the proposed regulation. Rulemaking is a quasi-legislative function under Pennsylvania law. There were no objections to this late-filed comment on due process or substantive grounds. The Commission considered the comment. The final regulation for § 3.602(a) incorporates the two suggestions.
Section 3.602(b). The proposed regulation contained a list of the required information submitted on the form filed under this provision. There were no comments. The final regulation adopts this proposed regulation. The final regulation, however, also revises the number of days set forth in the proposed regulation for §§ 3.602(c)(1) and (2). Section 3.602(c)(1) is revised from 10 days to 20. The number of days set forth in § 3.602(c)(2) is revised from 10 and 30, respectively, to 20 and 40. These revisions reflect regulatory consistency and review within a reasonable time.
Chapter 5. Formal Proceedings
Subchapter A. Pleadings and Other Preliminary Matters
Section 5.1. General provisions.
Section 5.1(a). The proposed regulation for § 5.1(a) added ''New matter, reply to new matter, and motions'' to the list of pleadings to accurately reflect practice. The OSBA comment notes that since the proposed regulation changes ''preliminary motions'' to ''preliminary objections,'' the regulation in § 5.1(a)(5) should include a reference to § 5.61 authorizing answers to preliminary objections. The final regulation allows the filing of an answer to a preliminary objection in § 5.101(g) of the final regulation.
Section 5.1(b). The proposed regulation for § 5.1(b) deleted preliminary motion and replaced it with preliminary objection. There were no comments. The final regulation adopts the proposed regulation.
Sections 5.11--5.14. Applications.
Section 5.12. Contents of applications. The proposed regulation revised § 5.12 to lay out contents of an application. An added provision encourages inclusion of an e-mail address. The proposed regulation denied the OCA's request for service of every application based on considerations of expediency and the availability of the Commission's website. Moreover, the proposed regulation recognized that § 5.14(b) authorizes the Secretary to direct service of applications upon the OCA and other interested persons in appropriate circumstances.
The OCA filed comments opposing the Commission's denial of its request in the proposed regulation. The OCA claims that the Commission's website does contain notice of a new application, but the absence of the detailed schedules and exhibits in the application require the OCA to go to the Secretary's Bureau to review and copy the application.
The final regulation does not require service of every application on the OCA or the other Statutory Advocates. The Commission receives thousands of applications and many are of minimal interest to the OCA. This includes transportation requests for new authority, abandonment or transfer of existing authority, requests for additional authority, or license applications of gas or electric generation suppliers not otherwise regulated by the Commission. The obligation to serve a copy of every application on the statutory advocates imposes unjustified additional costs and encourages challenges based on defective or imperfect compliance. The only discernible benefit seems to be a reduction in the time the OCA staff must spend coming to and from the Commission to review applications following their publication in the Pennsylvania Bulletin.
Section 5.13. Applications for construction or alteration of crossings. The proposed regulation for § 5.13(b) added construction within the scope of the plans required under the regulations. There were no comments. The final regulation adopts the proposed regulation.
Section 5.14. Applications requiring notice. The proposed regulation eliminated the § 5.14 list of applications that required notice. The Commission proposal reflected the need to update the list in light of market changes.
IRRC and the Utility Group comments express concern that a general reference to publication of applications is less desirable than retention of the existing list. IRRC is additionally concerned that the proposed regulation at § 5.14(c) references the deadline for filing protests in § 5.53 but § 5.53 provides that the time for filing protests shall be as stated in the published notice. IRRC suggests that the PUC establish a standard deadline for filing protests absent good cause shown. The Utility Group wants the list and exceptions in the existing regulation at § 5.14(b) reinstated in the final regulation.
IRRC suggests a general protest period for all applications submitted to the Commission. IRRC is understandably concerned that the regulated community does not know the timing for filing a protest. IRRC suggests publication occur in the Pennsylvania Bulletin. The Utility Group believes a 60-default period is too long. The Utility Group proposes a 30-day period.
The Commission agrees with IRRC and the Utility Group. A notice of application under § 5.14 will continue to be published in the Pennsylvania Bulletin. That notice will also establish a protest period consistent with § 5.14(d).
The final regulation at § 5.14(d) reinstates the applications list of the existing regulation at § 5.14(b). Reinstatement of the existing § 5.14(b) list is provided in the new § 5.14(d) provision. Reinstatement ensures that listed applications are subject to a standard 15-day protest period. The Commission has operated for many years with this standard 15-day protest period and we see no compelling reason to change it given the Secretary's authority to establish additional protest periods as appropriate. Section 5.53 contains a 60-day protest period default in case the Commission's notice of application in the Pennsylvania Bulletin inadvertently fails to set a protest period.
As noted per the final regulation in § 5.14(b), the Secretary's Bureau can impose additional publication or notification requirements as warranted. This includes publication in a newspaper of general circulation, actual notification to the parties affected, or another form of actual or constructive notification. These will also contain a protest period unless, as indicated in § 5.53, no protest period is established. In that case, the 60-day protest period applies by default.
There are some minor revisions which make the exception consistent with existing regulations, particularly §§ 3.381 and 5.301. The retained exceptions are subject to the existing 60-day protest period. These exceptions are applications under §§ 3.361--3.363 (Crossing complaints, Reimbursement of damages from crossings, and Claims for property damages from crossings) and 52 Pa. Code §§ 57.71--57.77 (relating to siting and construction of electric lines). The reference to § 3.381 in § 5.14(d) of the regulation is removed to make it consistent with the minimum 15-day protest period set forth in § 3.381 of the existing regulation. Section 3.501 is revised to reflect a cross-reference to the 60-day protest period for water and wastewater in § 3.501.
The Commission disagrees with comments suggesting that we establish a standard rule for protest periods. The Commission believes a general rule is inadvisable regardless of whether it is 15 days, 30 days or 60 days for the reasons set forth below.
The existing regulations already impose a 15-day protest period for the applications listed in the final regulation unless they come within an exception or no protest period is established. In those instances, there is a 60-day protest period. This approach is taken because applications to the Commission range from the basic request of a very small carrier to the more complex authority requested by large utilities. A uniform protest period ignores the very real differences in scale of applicants that come before the Commission. The final regulation provides the flexibility required by this difference.
A 15-day standard protest period is appropriate in situations where an applicant wants to implement a business plan or transportation service but needs Commission approval. This is often the case for telecommunications resellers or transportation providers. The § 5.14(b) list for telecommunications in the existing regulation is retained in the final § 5.14(d) regulation. Retention of the 15-day protest period is consistent with the Utility Group's view that a 60-day protest period is too long.
On the other hand, the same 15 day standard protest period is inappropriate for more complex or controversial applications. A 15-day protest period involving, for example, the construction and siting of high-capacity electric lines, the merger applications of immense interstate carriers, in-depth analysis of technical or financial fitness, or applications with a host of unexpected issues is inadvisable. In those cases, the suggested 30-day standard protest period may be inappropriate when a 60-day protest period is advisable given the complexities of the case.
A 30-day standard protest period is superficially appealing but untenable on close examination. A 30-day period may reconcile a 15-day protest period with the 60-day protest period. A 30-day protest period, however, is equally untenable. On the one hand, it errs by extending the protest period for small applications like telecommunications resellers or transportation providers. On the other hand, it errs by shortening the protest period for complex or controversial cases like HV line construction or railroad crossing abandonments. A 30-day standard protest period may be particularly unwise for telecommunications applications because federal law prohibits state action that constitutes a barrier to entry. An unnecessarily long 30-day protest period in telecommunications runs the risk of preemption as a barrier to entry compared to the short 15-day protest period. In that case, a shorter protest period makes sense. With that in mind, the list in § 5.14(d) retains a 15-day protest period for most applications. This makes more sense than a 30 or 60-day rule.
A 60-day protest period is superficially appealing but equally unwise. That rule may well provide interested parties more time to decide if they want to intervene or protest. It also makes little sense to a taxi driver seeking reinstatement or issuance of a new certificate following revocation. A 60-day protest period is difficult for a transportation provider who relinquished their authority, voluntarily or otherwise, and wants to reenter the market. However, a longer protest period is appropriate for complex matters including the exceptions listed in § 5.14(b) of the current regulation.
Sections 5.21--5.31. Formal Complaints.
Section 5.21 Formal complaints generally. There were no proposed revisions to this section. The Ryan comment suggests language for § 5.21(d). The language provides that it is neither necessary nor appropriate for a respondent to introduce any evidence when the complainant fails to meet its burden of proof by presenting probative evidence or, as is frequently the case with pro se complainant, a failure to appear. The Ryan comment addresses cases where a presiding officer sometimes requires a respondent to present their evidence even though a pro se complainant fails to appear or does not present probative evidence.
The final regulation denies the suggestion for several reasons. For one thing, some utilities want to present their case even if the complainant fails to show or present probative evidence at the hearing. This generates a record in the event the complainant files another complaint.2 Moreover, administrative proceedings are not tantamount to proceedings in courts of law in Pennsylvania. See Pittsburgh Press Company v. Pittsburgh Commission on Human Relations, 4 Pa. Commonwealth Ct. 448, 287 A.2d 161, 167 (1972) holding that an administrative proceeding is not restricted to the niceties of common law pleadings. The comment seems to commingle burden of proof and burden of persuasion although they are not the same. Corbett and O'Malley v. Bell Telephone Company, Docket No. C-00923898 (Order entered January 25, 1995), slip op. at 18--20 citing Page v. Camp Manufacturing Co., 180 N.C. 330, 331, 104 S.E. 667 (1920); McDonald v. Pennsylvania Railroad Company, 348 Pa. 558, 36 A.2d 492, 495--96 (1940); Wilson v. Pennsylvania Railroad, 421 Pa. 419, 219 A.2d 666, 669--670 (1966) (''Burden of proof never shifts but evidence may establish prima facie case sufficient to shift the burden of persuasion''). In some instances, an presiding officer may require a respondent to go forward based on a determination that the complaint's allegations and attachments provide evidence of a prima facie showing sufficient to shift the burden of persuasion. In that case, it may well be a violation of due process to not require a respondent to respond to the formal complaint notwithstanding a party's absence or failure to present probative evidence at the hearing. A general rule is inadvisable given these considerations.
Section 5.22. Contents of formal complaints.
Section 5.22(a). The proposed regulation revised § 5.22 to specify the requirements of a formal complaint when the complainant is represented by an attorney and when the complainant has no formal representation. The proposed regulation at §§ 5.22(a)(2) required an attorney to list his or her attorney identification number. The proposed additions in Sections 5.22(a)(5) and (6) sought more detailed and easier to read information to facilitate Commission responses.
IRRC suggests that the reference to ''writing'' in § 5.22(a)(7) either define the term or specify what documents are subject to this section. The Utility Group suggests that the final regulation at § 5.22(a)(5) specify whether or not the Formal Complaint is an appeal of an informal complaint. The OSBA thinks this provision seems to contradict § 5.21 of our rules, which only requires identification of a document.
The Commission appreciates the concerns about § 5.22(a)(5). The final regulation retains the requirement of a clear and concise statement of the act or thing complained of including the result of an informal matter within § 5.22(a)(7). The rephrasing addresses the commentators' concern, particularly with respect to parties with counsel.
We agree with IRRC on § 5.22(a)(7). In this regard, the Commission generally relied on rules 1019 through 1024 of the Rules of Civil Procedure governing the attachment of writings to a complaint since complaints are the subject of § 5.22. The Commission notes that the language in § 5.22(a)(7) is virtually identical to Rule 1019(i) of the Rules of Civil Procedure. That rule, as this rule, requires attachment of a writing although the term writing is not defined in Rule 76 of the Rules of Civil Procedure's Rules of Construction nor is the term defined in Sections 1019 through 1024.
The Commission agrees with IRRC and replaces with word ''document'' for the word ''writing'' in the final regulation.
The final regulations adopt a modified administrative equivalent of Rules 1002 through 1005 of the Pennsylvania Rules of Evidence for writings (now referred to as documents) and Rules 1019 through 1024 of the Rules of Civil Procedure governing the attachment of a document and its production.
We do not agree with the OSBA comment that § 5.22(a)(7) contradicts § 5.21(b). The final regulation states more clearly that the attachment requirement of § 5.22(a)(7) is not applicable to § 5.21(b) writings. Section 5.21(b) identifies documents that are more easily obtained because they are on file at the Commission. Extension of the mandatory attachment rule of § 5.22(a)(7) to § 5.21(b), particularly with regard to pro se litigants, could dramatically increase the number of pro se proceedings dismissed on procedural grounds. A large increase in dismissals based on noncompliance with an unnecessary procedural requirement could hinder the Commission's ability to identify and address customer service problems raised by pro se litigants.
Section 5.22(c). The proposed regulation revised the language clarifying that a complainant must reference any order or regulation of the Commission that forms the basis for a formal complaint. IRRC suggests that the last sentence in § 5.22(b) also contain the phrase ''the act'' for consistency.
We agree with IRRC. We add the phrase ''the act'' in the second sentence.
Section 5.24. Satisfaction of formal complaints. The proposed regulation revised § 5.24. The proposed revision addressed circumstances in which a complainant does not wish to proceed but neither is the complainant satisfied. The proposed regulation anticipated closing a complainant's matter after the complainant acknowledges a lack of interest in pursuing the matter.
IRRC's comment recognizes that the revised § 5.24(b) allows a respondent to certify satisfaction based on a complainant's acknowledgement of satisfaction or if the complainant no longer wishes to pursue the matter. The Ryan comment wants the Commission to address the current requirement that a complainant file a withdrawal or the respondent obtain the complainant's signature. The comment claims this requires considerable resources, such as obtaining the complainant's signature or preparing for a hearing where the complainant will never appear. The Utility Group suggests an efficient revision that allows the respondent to represent that the complainant is not going to pursue a matter.
The Commission agrees with IRRC as well as the Utility Group and Ryan comments. The final regulation at § 5.24(b) allows the respondent to file a certified writing confirming satisfaction either through a complainant's acknowledgement or in cases where the complainant no longer desires to pursue a matter. The final regulation at § 5.24(c) also requires the respondent to simultaneously serve a copy of the certified writing. The respondent must also include a written statement informing the complainant of their right to object in writing within 10 days. The docket is closed unless the complainant objects in writing. This reconciles concerns about efficiency with due process and certainty.
The final regulation also makes clear that the presiding officer is not required to render a decision unless the parties require one for good cause.
Section 5.31. Staff-initiated complaints. The proposed regulation revised the language to include actions taken pursuant to delegated authority and required the named party to file an answer consistent with § 5.61. The OCA suggests that staff-initiated complaints be served on the OCA and OSBA but not on OTS.
The Commission recognizes the need for greater dissemination of information about staff-initiated complaints to all statutory advocates and not just the OCA. For that reason, the final regulation requires that a copy be provided to the Statutory Advocates and the Chief Counsel. The final regulation deletes the current § 5.31(b) as well. These revisions provide the need for information about staff-initiated matters without imposing a service requirement that could give rise to challenges based on imperfect service. Service, because it is a legal term of art, is distinct from the understandable desire for information on Commission undertakings.
Section 5.32. Complaints in rate proceedings. The proposed regulation added a new section that recognizes a person's right to file a complaint against a proposed rate filing with the need to impose a reasonable time limit on complaints. This reflected narrower time limits for rate cases compared to nonrate cases under section 332 of the Public Utility Code.
There are no comments. Subsequent Commission review shows that the plain language of section 315 of the Public Utility Code requires the Commission to either include any complaint filed against a proposed rate increase in the case itself or to start another one with the utility still having the burden of proof. This means that, as long as the rates are proposed and not approved, the Commission cannot stop the complaint from either being considered or from instituting another proceeding.
For that reason, the final regulation for § 5.32(b) provides that a complainant filing a formal complaint in a rate case takes the record as they find it.
Sections 5.41--5.44. Petitions.
Section 5.41. Petitions generally. The proposed regulation made no major substantive changes. The proposed revisions seek to clarify the regulation.
IRRC suggests clarification to the phrase ''in compliance with Commission direction'' in § 5.41(c) with a cross-reference to the service requirements contained in the final regulation.
The Commission disagrees with cross references in this provision. This provision addresses who is served or given a copy not how the service or copy is accomplished.
The Ryan comment urges the Commission to insert a new sentence in § 5.41(d) imposing a mandatory time period for Commission decisions. The Ryan comment concedes that the Public Utility Code differentiates between general rate cases, which impose a 7-month period for decisions in 66 Pa.C.S. § 1308, and other non-rate proceedings under section 332(g) that lack this mandate. The Ryan comment suggests a similar time period for § 5.41 petitions. The Ryan Comment proposes a rule that the Commission decide any proceeding initiated by a petition within seven months after filing unless the Commission grants itself a ninety-day extension for good cause shown.
The Commission declines to adopt this comment for several reasons. The Commission manages multiple, and sometimes controversial if not complex, petitions. Petitions run the gamut from a single suspended taxi driver seeking reinstatement through mid-sized carriers seeking resolution of intercarrier compensation matters under state and federal law to large utilities implementing restructuring or broadband deployment.
It is not possible or advisable to craft a mandatory 7 month decision rule for all non-rate cases premised on a statutory provision governing rate cases. Rate cases already consume such a considerable number of resources and staff in order to meet the statutory deadline. The resource and staff needs of the Commission will increase if the same 7 month statutory requirement were imposed on the entire gamut of non-rate cases. This increase is ultimately reflected in assessments and rates. Moreover, it is often difficult to reach a final decision in many mattes in 7 months. This includes, for example, the Commission's promulgation of final rules governing the securitization of stranded costs where there were not dispute and billions of dollars. That problem is exacerbated in non-rate cases where there are disputes and complex questions of law and policy.
A general rule requiring a decision within a specific time period for every petition, regardless of its nature, fails to appreciate the sheer variety of proceedings or the costs that come with such a requirement.
Section 5.42. Petitions for declaratory orders. The proposed regulation contained no substantive changes for § 5.42. Section 5.42 was broken down for ease of reference.
Section 5.43. Petitions for issuance, repeal, or waiver of Commission regulations. The proposed regulation contained no substantive changes for § 5.43. The OCA requested that § 5.43 be revised for consistency to require service on the OCA. The Commission agrees and §§ 5.41--5.43 of the final regulation provides for service of petitions on the Statutory Advocates.
Section 5.44. Petitions for appeal from actions of staff. The proposed regulation extended the appeal period to a standard 20 days.
IRRC suggests that the Commission consider a general rule. The Commission agrees with IRRC and extends the challenge period to 20 days in the final regulation.
The Utility Group suggests that the Commission adopt a provision that appeals under this Section are decided at Public Meeting. The Utility Group makes the suggestion given that staff determinations often have a considerable impact to a party. The final regulation clarifies that the Commission decides these appeals at Public Meeting.
Sections 5.51--5.54. Protests.
Section 5.51. Protest to an application. The proposed regulation made minor linguistic changes for clarity. There were no comments. The final regulation adopts the proposed regulation.
Section 5.52. Content of a protest to an application. The proposed regulation contained no substantive changes. There was rewording for clarity. OSBA suggests that the word ''shall'' be included in brackets in § 5.52(a). IRRC and the Utility Group suggested elimination of the word ''shall'' due to a typographical error at § 5.52(c). The Commission agrees and inserts the word ''must'' in the final regulation.
Sections 5.53 and 5.14. Time of filing protests and applications requiring notice. The proposed regulation revised § 5.53 to provide a consistent default filing time for filing a protest. The proposed regulation deleted § 5.54 as redundant. There was considerable comment.
For the reasons discussed in § 5.14 earlier, the Commission's final regulation retains the conjunctive approach to §§ 5.53 and 5.14. In deference to IRRC concerns about a standard protest period, the final regulation establishes a default provision for times when an application published in the Pennsylvania Bulletin fails to establish a protest period.
Section 5.61--5.66. Answers.
Section 5.61. Answers to complaints, petitions and motions. The proposed regulations for §§ 5.61, 5.102 and 5.103 are revised for consistency in providing a twenty day response time.
The OSBA comment suggests that the numbering requirement of § 5.61(b)(1) is complicated, routinely ignored, and should be eliminated. The Commission retains the existing numbering rule based on its experience.
The OCA suggests that the 20-day rule in § 5.61(a)(1) apply to rate complaints in § 5.61(d) as opposed to the reference to § 5.32. The Commission disagrees. Rate case proceedings are under a very tight timeframe and, for that reason, require a shorter answer period. The final regulation establishes a time identical to that for preliminary objections, e.g., 10 days. This is appropriate given that there is no duty, and hence no adverse consequences, for failure to file an answer in rate case proceedings. The Commission also provides § 5.61(e) clarifying the contents of an answer to a petition.
Section 5.62. Answers seeking affirmative relief or raising new matter. The proposed regulation reformatted the structure for clarity. The IRRC comment suggests that the Commission determine if a notice to plead must be included with the new matter. IRRC thinks this may be important in view of the fact that § 5.63(b) provides that failure to file a timely reply may be deemed an admission of the facts raised. The Utility Group notes that presiding officers do sometimes instruct utility counsel to append a Notice to Plead, particularly in pro se proceedings, when an answer raises new matter. The Utility Bar asks whether the final rules should contain this requirement.
The Commission declines to impose a Notice to Plead requirement. In many cases, particularly involving pro se litigants, the litigant is unaware of the consequences for not filing a reply with or without a Notice to Plead. In such instances, a Notice to Plead encourages dismissal on procedural grounds as opposed to disposition of the substantive concern. A well-intentioned suggestion that a Notice to Plead be required actually creates an avoidable procedural landmine for the unwary or unsophisticated litigant. The Commission prefers to err on the side of caution by not mandating a Notice to Plead in pro se proceedings. As for formal proceedings where the parties are typically represented by seasoned counsel if not multiple numbers of attorneys, counsel in those proceedings fully appreciate the § 5.63 ramifications of any failure to reply.
Moreover, practice before the Commission is not synonymous with practice in the courts. The Commission has no jurisdiction to entertain counterclaims involving damages. The Commission does, however, retain an interest in new matter raising a counterclaim that is not one related to damages. The Commission does not want litigants dismissed from a proceeding based on failure to append, or reply to, a Notice to Plead. The Commission prefers, particularly for pro se litigants, to hear all the claims and allegations within our jurisdictional authority. The Commission's final regulations balance the formalities of courtroom-like proceedings where all parties have counsel with those incredibly varied cases involving pro se litigants.
Section 5.63. Replies to answers seeking affirmative relief or new matter. The proposed regulation added replies to new matter including the possible consequences of a failure to reply to new matter. There were no substantive comments.
Section 5.65. Answers to amendment of pleadings. The proposed regulation excepted § 5.101 preliminary objections from the provisions of this regulation. There were no substantive comments.
Section 5.66. Answers to petitions to intervene. The proposed regulation revised § 5.66 to confirm that an answer to a petition to intervene must be filed within 20 days of service. The Utility Group suggests that answers be limited to ''active'' parties but not ''inactive'' parties. The Commission confined the language in the final regulation to ''parties'' given the difficulties, discussed throughout the rulemaking, of distinguishing between the meanings of ''active'' and ''inactive'' parties in a regulation.
Sections 5.71--5.76. Intervention:
Section 5.73. Form and content of petitions to intervene. The proposed regulation addressed frustration about facing an unknown intervenor group. The proposed regulation required intervenor petitions filed on behalf of more than one person to list the persons and entities comprising the represented group.
The Ryan comment contains an even more detailed proposal imposing nine additional informational matters that must be provide by an association intervenor. The suggested criteria would require an association intervenor to provide the name of the association, the date of formation, their purpose, their organizational structure, the number of members, their governance structure, whether intervention is by resolution or members, the interest of the association, and specific detail on the association's alleged interest. The Ryan comment is particularly concerned about associations that provide little or no information about their formation, interest, or basis for intervention.
The Commission adopts the proposed regulation as final. The Ryan comment would mandate detailed information about every association's standing in every proceeding regardless of the nature of the proceeding. Such a universal, detailed and costly-to-administer pleading is burdensome compared to the benefit. A party that wants to challenge an association's intervention in any proceeding can always ask the presiding officer to require this kind of detailed information. We conclude that the permissive ''may'' allows this approach better than use of the directory ''must'' in the final regulation.
Section 5.74. Filing of petitions to intervene. The proposed regulation in § 5.74 established a default deadline for filing a Petition to Intervene as well as a Notice of Intervention. The proposed regulation limited intervention regardless of the party. The Sections are revised to notify the presiding officer of the appropriate standard to use in considering a request for intervention.
The IRRC comment notes that this is a marked departure from prior Commission practice. IRRC wants the Commission to clarify the intent behind this regulation. The OCA states that this provision may be legally or administratively unsound if applied to the OCA. The OCA files a Notice of Intervention as a public representative under a statute. This contrasts with a Petition to Intervene filed by a party under caselaw. The OCA cites numerous times the Commission and the public benefited from their public advocacy interventions even if they occurred well after expiration of the established intervention date.
The Commission agrees with IRRC and the OCA. The final regulation at § 5.74(b)(4) and (c) reflect different intervention and participation rights between Statutory Advocates and private litigants. The Statutory Advocates, unlike private litigants, have distinct statutory provisions governing their rights and responsibilities. For example, the Office of Consumer Advocate has statutory authority to file a Notice of Intervention whereas the similar right provided to the other statutory advocates is not called a Notice of Intervention. Section 5.74(b)(4) reflects that difference and provides all Statutory Advocates with the right to file a Notice of Intervention or Right of Participation at any time. Section 5.74(c) provides that right to private litigants although the right is more limited. Finally, the revision provides that any party intervening after expiration of an established protest period takes the record as it exists absent exceptional circumstances. This limitation balances rights with due process, the short timeframe for decisions in rate cases and the need to identify and resolve issues in rate and nonrate proceedings.
Section 5.75. Notice, service and action on petitions to intervene. The proposed regulation revised language for clarity. The IRRC and the OSBA comments suggest that the word ''permitted'' be replaced by ''prohibited'' in § 5.75(d) consistent with the Commission's wording changes in this section. We agree with IRRC and the OSBA. We also deleted the phrase ''by the moving party'' in § 5.75(c) for clarity and brevity. Finally, § 5.75(d) provides for permissive intervention following expiration of any established protest period under § 5.74(b). This provides a regulatory option to permit intervention past the expiration period in appropriate circumstances. For that reason, the final regulation for § 5.75(d) is phrased with the more permissive ''may'' as opposed to the more limiting ''shall'' in § 5.74(b).
Sections 5.91--5.94. Amendment and Withdrawal of Pleadings. The proposed regulation sets forth revisions intended to reflect the Pennsylvania Rules of Civil Procedure where possible and appropriate.
Section 5.91. Amendment of pleadings generally. The proposed regulation made minor language changes and inserted new § 5.91(b). The new provision addressed amendments in response to preliminary objections.
The IRRC comment suggests that the phrase ''insofar as appropriate'' in § 5.91(a) is redundant and wants the Commission to delete it. The Commission agrees with IRRC.
Section 5.92. Amendments to conform to the evidence. The proposed language made changes for clarity, brevity, and ease of reading. There are no substantive comments.
Section 5.93. Directed amendments. The proposed regulation made minor language changes for clarity and replaced ''participant'' with ''party'' as well. There are no substantive comments.
Section 5.94. Withdrawal of pleadings in a contested proceeding. The proposed regulation made minor changes for brevity and clarity. The word ''participant'' is replaced with the word ''party'' in the provision. The Utility Group suggests that the Commission differentiate between ''active'' and ''inactive'' parties. The final regulation uses the term party consistent with the revision in order to avoid differentiating between active and inactive parties.
Sections 5.101--5.103. Motions. The proposed rulemaking changed the term ''preliminary motion'' to ''preliminary objection'' consistent with the use of that term by practitioners elsewhere.
Section 5.101. Preliminary objections. The proposed rulemaking for § 5.101 contained several revisions.
Section 5.101(a). The current regulation specified what preliminary motions are available to parties. The proposed regulation replaced ''preliminary motion'' with ''preliminary objection'' where appropriate and rephrases the term ''preliminary objection'' to more closely model Pa.R.C.P. 1028.
The OSBA asks if the phrase ''except motions and prior preliminary objections'' should be deleted since the Commission replaces ''preliminary motions'' with ''preliminary objections.''
The final rule retains the phrase. The phrase ''except motions and preliminary objections'' is retained to reflect the Commission's long-standing prohibition against responding to a motion or prior preliminary objection with another preliminary objection. This is one place in the final regulations where the word is retained to emphasize the rule against answering a motion or prior preliminary objection with another preliminary objection. Unlike the courts where private parties typically bear litigation costs, the Commission is a regulatory agency whose costs are ultimately recovered in assessments and rates paid by ratepayers. Retention of this rule discourages additional costs attributable to dilatory litigation practices that such a rule could create at the Commission. The final rule also reorders and rephrases the available preliminary objections to more closely model the Pennsylvania Rules of Civil Procedure at Pa.R.C.P. No. 1028.
Section 5.101(b). The current regulation governs the filing of preliminary objections and specifies that all preliminary objections must be raised at one time. The proposed regulation allowed two or more preliminary objections to be raised at one time. There was considerable comment to the proposal to allow two or more preliminary objections to be raised at one time. The major concern, expressed in the IRRC comment and Utility Group comment, is that the revision could allow a party with significant resources to unreasonably delay a proceeding or cause unnecessary expenditure by not being required to raise all preliminary objections at once. IRRC and the Utility Group suggest revocation of this proposal.
The Commission recognizes the validity of these comments and requires that all preliminary objections be raised at one time in § 5.101(c).
Section 5.101(b) continues to require that a preliminary objection contain a notice to plead advising the recipient of the option to file an answer within 10 days of the date of service. In turn, § 5.101(f)(1) specifies that an answer to a preliminary objection may be filed within 10 days and § 5.101(f)(2) addresses the form for such answers.
Section 5.101(c). The current regulation governs more specific pleadings. The proposed revision to § 5.101(b) governed the filing of an amended pleading in response to a more specific pleading filed under § 5.101(b).
The OCA comment notes that § 5.101(c) references § 5.61(b) although the proposed revision to § 5.61(b) does not expressly provide that preliminary objections and documents must be filed in 20 days. Section 5.101(d) of the final regulation sets forth a clear response time period.
The Commission agrees with IRRC, the Utility Group, and the OCA that § 5.101(c) must require a party to raise all preliminary objections at one time. In addition, this subsection now provides that the preliminary objections shall be set forth in numbered paragraphs and that the preliminary objection must state the legal and factual basis for each preliminary objection.
Section 5.101(d). The current regulations govern the filing of an answer to a preliminary objection. The proposed regulation retained the 10 day filing period and imposed an obligation to contain a notice to plead stating that any answer shall be filed within 10 days of date of service of the objection.
IRRC and OSBA comments express concern about the difference in response deadlines and general lack of clarity concerning preliminary objections. IRRC and the OSBA suggest a standard timeframe. IRRC and the OSBA note that the word ''motion'' should be changed to ''objection'' consistent with the Commission's proposed terminology throughout § 5.101.
The Commission agrees with IRRC. The final regulation at § 5.101(d) clarifies that preliminary objections must be filed as a separate document and within the same 20 day period relating to answers to complaints, petitions, and motions set forth in § 5.61. The filing of a preliminary objection does not eliminate the requirement to file an answer to the complaint or other initiating pleading within the 20 day period for answers set forth in § 5.61(a) except for preliminary objections regarding insufficient specificity in § 5.101(e). A § 5.101(e) preliminary objection alleging insufficient specificity does not require an answer until further directed by the presiding officer.
The Commission also agrees with IRRC and the OSBA that a uniform 10-day rule for filing an answer to a preliminary objection is appropriate. That agreement is reflected in the final regulation in § 5.101(f)(1) as discussed above.
The former Motion for a More Specific Pleading in § 5.101(a)(4) of our existing regulations is now rephrased as a Preliminary Objection for Insufficient Specificity in § 5.101(a)(3) of the final regulations. However, a litigant using the term Motion for a More Specific Pleading will not have that pleading rejected on procedural grounds when the motion properly refers to § 5.101(a)(3). The Commission is unwilling to elevate form over substance in regard to the regulations.
The Commission takes this approach for several reasons. This provides an opportunity for a respondent with counsel to inexpensively reply with something other than an answer or a preliminary motion when a respondent is unclear, and this is frequently the case with pro se litigants, about the exact issue in a complaint. On the other hand, the requirement to raise all preliminary objections at once and the prohibition on filing preliminary motions or motions in response to a preliminary objection is particularly relevant when complainant and respondent have counsel.
These two procedural requirements avoid dilatory and expensive litigation before the Commission. The Commission takes this approach because, unlike the courts where litigation is largely a privately-financed matter, litigation before the Commission is borne by the public in the form of assessments and utility rates. Recognition of this crucial difference plays a considerable role in the Commission's procedural rules and practice.
The final regulation for § 5.101(d) also reflects the Commission's agreement with IRRC and the comments on the need for linguistic clarity and consistency. The revised regulation replaces ''preliminary motion'' with ''preliminary objection'' where appropriate.
Section 5.101(e). The current regulation at § 5.101(e) specifies a 30-day period a decision by the presiding officer. The proposed revision to § 5.101(e) required a decision on preliminary objections within 30 days of filing or termination of mediation. The final regulation adopts this proposal and requires a presiding officer to render a decision within 30 days of the assignment of the preliminary objection. That provision, however, is moved to a new § 5.101(g) for greater clarity and consistency.
Section 5.101(f). The current regulation at § 5.101(f) allows the submission of an amended pleading within 10 days by a party who pleading has been struck. The proposed revisions to § 5.101(f) specified what happened following a ruling.
The IRRC and OSBA comment note that a party who files a pleading that is stricken has 10 days to file an amended pleading whereas a party who filed an overruled preliminary objection has 20 days to plead over. The OSBA is also concerned about delineating the circumstances in the proposed regulation where a party has the right, but not the duty, to file a responsive pleading. The OSBA suggests that the regulation make clear that a party has the right but not duty to file a responsive pleading. The OCA supports the proposed revision despite the different response times.
The Commission agrees with IRRC. The Commission also disagrees with the OSBA. The final regulation retains a uniform 10 days for filing an amended pleading. This uniform period addresses the concern that disparate filing periods cause confusion. However, the Commission does not agree with the OSBA that the regulation must spell out the detailed circumstances when a party with no duty to file a responsive pleading can exercise their right to file an answer. That determination is better left to the party.
This final regulation is moved to a new § 5.101(h) for clarity and consistency.
Section 5.102. Motions for summary judgment and judgment on the pleadings. The proposed regulation combines a discussion of a Motion for Judgment on the Pleadings and a Motion for Summary Judgment. These are for clarity and brevity.
The Utility Group is concerned that the proposed revisions confuse Summary Judgments, which can be based on the pleadings and supplemental discovery responses and affidavits, with Judgments on the Pleadings, which are confined to the pleadings.
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2 Agnes Manu v. AT&T Communications of Pennsylvania, Inc.; Bell Telephone Company of Pennsylvania, Inc. and Philadelphia Electric Company, Inc., Docket Nos. F-09029141, C-00935014, C-00934970, C-00923621, and C-00924554. Three family members filed multiple Formal Complaints regarding arrearages of $25,775.61, $1,337.04, $13,484, $22,509.82, and $24,124.21 and then failed to appear. There, a respondent may want to present their response.
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