[41 Pa.B. 6499]
[Saturday, December 3, 2011]
[Continued from previous Web Page]
Subchapter G. PENALTY Sec.
1001.61. Penalties. § 1001.61. Penalties.
(a) Monetary penalty range. If a penalty has not been otherwise assigned to a violation of any provision of the act, this part or an order of the Authority, the penalty applicable to the violation may not be less than $25 and not greater than $1,000.
(b) Additional penalties. The penalty requested in a formal complaint initiated as provided in Chapter 1005 (relating to formal proceedings), may include one or more of the following:
(1) A monetary penalty payable to the Authority.
(2) A suspension of rights.
(3) A modification of rights.
(4) A cancellation of rights.
Subchapter H. MATTERS BEFORE OTHER TRIBUNALS Sec.
1001.71. Notice and filing of copies of pleadings before other tribunals. § 1001.71. Notice and filing of copies of pleadings before other tribunals.
(a) When matters over which the Authority may have jurisdiction under the act are raised in proceedings filed with a court or other regulatory body by a person subject to the act, either an appropriate application or petition, or notice of the proceedings and copies of the material pleadings filed therein, shall be filed simultaneously with the Clerk so that it may have sufficient notice and time for proper consideration of the matters within its jurisdiction.
(b) Upon filing of a petition for bankruptcy under the United States Bankruptcy Code (11 U.S.C.) by a certificate holder or broker a copy of the petition shall be simultaneously filed with the Clerk.
(c) An entity subject to the regulatory jurisdiction of the Authority, or its trustee in bankruptcy, shall file a copy of the reorganization plan for itself or for its bankrupt parent, subsidiary or affiliate with the Clerk for Authority review within 10 days after the debtor has filed the plan, its supplements and amendments, or has received notice that the plan has been filed with the court.
(d) If the reorganization plan submitted under subsection (c) contemplates the abandonment of taxicab, limousine or dispatcher service, the submittal must include an SA-1 Application as provided in § 1027.6 or § 1059.5 (relating to application for sale of transferable rights), as appropriate. If a reorganization plan of a certificate holder or broker includes the abandonment of the certificate or Authority issued right, the submittal must include specific notice to the Authority of the date of abandonment.
Subchapter I. AMENDMENTS OR WITHDRAWALS OF SUBMITTALS Sec.
1001.81. Amendments. 1001.82. Withdrawal or termination of uncontested matter or proceeding. § 1001.81. Amendments.
(a) An amendment to a submittal or pleading may be tendered for filing at any time and will be deemed filed in accordance with § 1001.11 (relating to date of filing) unless the Authority or presiding officer otherwise orders.
(b) Subsections (a) supersedes 1 Pa. Code § 33.41 (relating to amendments).
§ 1001.82. Withdrawal or termination of uncontested matter or proceeding.
(a) Notice of withdrawal or termination. A party that desires to terminate a noncontested matter or proceeding before the final decision by the Authority or a presiding officer or otherwise desires to withdraw a submittal shall file a motion for leave to withdraw the appropriate document with the Clerk. The motion will be granted or denied as a matter of discretion.
(b) Contested proceedings. Withdrawal of a pleading in a contested proceeding is governed under § 1005.64 (relating to withdrawal of pleadings in a contested proceeding).
(c) Supersession. Subsections (a) and (b) supersede 1 Pa. Code § 33.42 (relating to withdrawal or termination).
Subchapter J. DOCKET Sec.
1001.91. Docket. § 1001.91. Docket.
(a) The Clerk will maintain a docket of all proceedings, and each proceeding as initiated will be assigned an appropriate designation. The docket will be available for inspection and copying by the public during the Authority's office hours.
(b) Subsection (a) supersedes 1 Pa. Code § 33.51 (relating to docket).
Subchapter K. WAIVER OF RULES Sec.
1001.101. Applications for waiver of formal requirements. § 1001.101. Applications for waiver of formal requirements.
(a) Pleadings, submittals or other documents which are subject to rejection under any provision of this chapter or Chapter 1003 or 1005 (relating to special provisions; and formal proceedings) may be accompanied by a request, under § 1005.23 (relating to petitions for issuance, amendment, repeal or waiver of Authority regulations) for waiver of any provisions with which the document tendered is in conflict or does not conform. The request must show the nature of the waiver or exception desired and set forth the reasons in support thereof. Unacceptable filings may be returned by the Clerk with an indication of the deficiencies thereof and the reasons for nonacceptance and return.
(b) Unless the Authority expressly so orders, the Clerk may not waive a failure to comply with the act, this part or an order of the Authority or another applicable requirement, and the failure may be cause for striking all or any part of the filings.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 33.61 (relating to applications for waiver of formal requirements).
Subchapter L. UNOFFICIAL STATEMENTS, OPINIONS AND NOTICE Sec.
1001.111. Unofficial statements and opinions by Authority personnel. 1001.112. Notice of rulemaking proceedings. § 1001.111. Unofficial statements and opinions by Authority personnel.
Statements contained in formal opinions of the Authority or in decisions of a presiding officer which are not necessary in resolving the case, and informal opinions, whether oral or written, expressed by Authority members, presiding officers, legal counsel, employees or representatives of the Authority and reports drafted by Authority departments are only considered as aids to the public, do not have the force and effect of law or legal determinations, and are not binding upon the Commonwealth or the Authority.
§ 1001.112. Notice of rulemaking proceedings.
(a) Before the adoption of a regulation, the Authority will publish a general notice as provided in 1 Pa. Code Chapter 7 (relating to procedure for adoption or change of regulations).
(b) The order or notice will recite the statutory or other authority under which the regulation is proposed to be adopted and include either the terms of the proposed regulation or a description of the subjects and issues involved to inform interested persons of the nature of the proceeding, to permit interested persons to submit comments relative thereto within the time period required by the act.
(c) The Authority may, upon petition by a person having an interest in the proposed regulation, hold public hearings on the proposed regulation. The petition for hearing must be in the form in § 1005.21 (relating to petitions generally), shall be filed concurrently with the comments and state the reasons for having a hearing and the person's interest in the proposed regulation.
(d) Subsections (a)—(c) supersede 1 Pa. Code § 35.104 (relating to notice of rulemaking proceedings).
CHAPTER 1003. SPECIAL PROVISIONS Subchap.
A. TEMPORARY EMERGENCY ORDERS B. INFORMAL PROCEEDINGS GENERALLY C. APPLICATIONS AND PROTESTS D. FORMS AND GUIDANCE DOCUMENTS E. TAXICAB AND LIMOUSINE DIVISION
Subchapter A. TEMPORARY EMERGENCY ORDERS EMERGENCY RELIEF
Sec.
1003.1. Definitions. EX PARTE EMERGENCY ORDERS
1003.11. Petitions for issuance of emergency orders. 1003.12. Disposition of ex parte emergency orders. 1003.13. Hearings following issuance of emergency orders. INTERIM EMERGENCY RELIEF
1003.21. Petitions for interim emergency orders. 1003.22. Hearing on petitions for interim emergency orders. 1003.23. Issuance of interim emergency orders. 1003.24. Form of interim emergency orders. 1003.25. Authority review of interim emergency orders. OUT OF SERVICE
1003.31. Definitions. 1003.32. Out of service designation.
EMERGENCY RELIEF § 1003.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Adjudication Department—The department of the TLD created to conduct certain adjudications and other assigned functions as provided in § 1003.73 (relating to Adjudication Department).
Emergency—A situation which presents a clear and pre- sent danger to life or property or which is uncontested and requires action prior to the next scheduled public meeting.
Emergency order—An ex parte order issued by the Authority's Chairperson, the Executive Director, the Director or a standing presiding officer in the Adjudication Department in response to an emergency.
Interim emergency order—An interlocutory order issued by a presiding officer which is immediately effective and grants or denies injunctive relief during the pendency of a proceeding.
EX PARTE EMERGENCY ORDERS § 1003.11. Petitions for issuance of emergency orders.
(a) To the extent practicable, a petition for emergency order must be in the form of a petition as set forth in § 1005.21 (relating to petitions generally) and shall be served on the persons directly affected by the application.
(b) A petition for emergency order must be supported by a verified statement of facts which establishes the existence of an emergency, including facts to support the following:
(1) The petitioner's right to relief is clear.
(2) The need for relief is immediate.
(3) The injury would be irreparable if relief is not granted.
(4) The relief requested is not injurious to the public interest.
§ 1003.12. Disposition of ex parte emergency orders.
(a) Authorization. The Authority's Chairperson, the Executive Director, the Director or a standing presiding officer in the Adjudication Department have the authority to issue an emergency order.
(b) Form. An emergency order will be issued in writing and filed with the Clerk with copies to the members of the Authority.
(c) Ratification. An emergency order or the denial of a petition for emergency order issued by Authority's Chairperson, the Executive Director, the Director or a standing presiding officer in the Adjudication Department will be ratified, modified or rescinded by the Authority at the next scheduled public meeting after issuance of the order, provided that a case or controversy exists on the date of the meeting.
(d) Service. An emergency order or the denial of a petition for emergency order will be served by the Clerk upon the persons directly affected by the decision as provided in § 1001.51 (relating to service by the Authority) with copies to the members of the Authority.
§ 1003.13. Hearings following issuance of emergency orders.
(a) A person against whom an emergency order is issued may file a petition for an expedited hearing to determine whether the emergency order will remain in effect. The petition must conform to the form and service requirements in § 1005.21 (relating to petitions generally).
(b) The petition for expedited hearing shall be filed with the Clerk and a copy served upon the Adjudication Department's supervising presiding officer.
(c) The hearing will be held before a presiding officer within 10 days of receipt of the petition by the Clerk.
(d) If the emergency order is issued by the Authority Chairperson, the Executive Director or the Director, a presiding officer will have the authority to stay the effect of the order until the next scheduled public meeting of the Authority.
(e) The decision of the presiding officer will constitute a recommended decision and will be reviewed by the Authority as provided in §§ 1005.211—1005.215 (relating exceptions to recommended decisions).
INTERIM EMERGENCY RELIEF § 1003.21. Petitions for interim emergency orders.
(a) A party may submit a petition for an interim emergency order during the course of a proceeding. The petition shall be filed with the Clerk and served contemporaneously on the Adjudication Department's supervising presiding officer and on the parties.
(b) To the extent practicable, a petition for an interim emergency order must be in the form of a petition as set forth in § 1005.21 (relating to petitions generally). A petition for an interim emergency order must be supported by a verified statement of facts which establishes the existence of the need for interim emergency relief, including facts to support the following:
(1) The petitioner's right to relief is clear.
(2) The need for relief is immediate.
(3) The injury would be irreparable if relief is not granted.
(4) The relief requested is not injurious to the public interest.
(c) Allegations set forth in the petition shall be deemed to have been denied by the opposing parties and an answer is not required. A party may file an answer in the form in § 1005.41 (relating to answers to complaints, petitions, motions and other filings requiring a response) no later than 5 days after service of a copy of the petition.
(d) Other pleadings, memoranda or briefs related to a petition for interim emergency order are not permitted unless specifically requested by the presiding officer.
§ 1003.22. Hearing on petitions for interim emergency orders.
An interim emergency order may not be issued until the presiding officer holds a hearing on the merits of the petition. The hearing will be held within 10 days of the filing of the petition.
§ 1003.23. Issuance of interim emergency orders.
(a) A presiding officer will issue an order granting or denying interim emergency relief within 25 days of the filing of the petition.
(b) An order granting a petition for interim emergency relief will set forth the findings required under § 1003.21(b) (relating to petitions for interim emergency orders).
(c) An interim emergency order or an order denying interim emergency relief will be served as provided in § 1001.51 (relating to service by the Authority).
§ 1003.24. Form of interim emergency orders.
(a) An order following a hearing on a petition for interim emergency relief will include:
(1) A brief description of the evidence presented.
(2) A grant or denial of the petition.
(b) An order following a hearing on a petition for interim emergency relief may require a bond to be filed in a form satisfactory to the Director and will specify the amount of the bond.
§ 1003.25. Authority review of interim emergency orders.
(a) An order granting or denying interim emergency relief is immediately effective upon issuance by the presiding officer. A stay of the order will not be permitted while the matter is being reviewed by the Authority.
(b) The decision of the presiding officer will constitute a recommended decision and will be reviewed by the Authority as provided in §§ 1005.211—1005.215 (relating to exceptions to recommended decisions). Failure of the Authority to act within 30 days of the date exceptions are filed will be deemed to be an affirmance of the decision of the presiding officer.
OUT OF SERVICE § 1003.31. Definitions.
The following words and terms, when used in § 1003.32 (relating to out of service designation), have the following meanings, unless the context indicates otherwise:
Out of service—Immediate and temporary prohibition from the exercise of rights granted by the Authority under the act due to a public safety concern. An out of service designation will be narrowly tailored to create the most limited reduction of rights necessary to protect the public interest.
Public safety concern—Behavior of an individual or condition of a vehicle or equipment which violate the act, this part or an order of the Authority and which have an immediate and direct adverse impact upon the orderly operation of taxicabs and limousines in Philadelphia or which present a direct threat to public safety. For example, a limousine with a broken windshield, a taxicab with inaccurate colors and markings or a taxicab driver subject to a police arrest warrant may each result in an out of service designation.
§ 1003.32. Out of service designation.
(a) Vehicles. Upon observation of a condition of a taxicab or limousine that creates a public safety concern, the Enforcement Department may immediately place the taxicab or limousine out of service. Public notice of a vehicle's out of service status will be conspicuously affixed to the vehicle and may only be removed by the Authority after inspection as provided in § 1017.36 (relating to reinspection) or by order as provided in subsection (g).
(b) Drivers. A driver's certificate issued by the Authority under section 5706 of the act (relating to driver certification program) may be placed out of service by the Enforcement Department upon determination that the driver's operation of a taxicab or limousine will create a public safety concern or if the driver fails to appear at TLD Headquarters upon direction of the Enforcement Department without just cause.
(c) Certificates and other rights. When a regulation or order of the Authority directs that a certificate or other right issued by the Authority be placed out of service, the condition necessary for that determination shall be deemed to involve a threat to public safety and the procedures of this section shall apply.
(d) Notice to the Clerk. The Enforcement Department will provide notice of an out of service designation to the Clerk. The notice will be provided by 4:30 p.m. on the next day during which the Authority maintains office hours as provided in § 1001.8 (relating to Authority office hours and address). The notice will include the date and time that the out of service designation was made, and the following information about the respondent, if available:
(1) Name.
(2) Address.
(3) Email address.
(4) Telephone number.
(5) Authority number assigned to the out of service rights.
(e) Hearing to be scheduled. Upon notification of an out of service designation as provided in subsection (c), the Clerk will schedule a hearing before an Adjudication Department presiding officer within 3 days of the out of service designation.
(f) Formal complaint.
(1) The Enforcement Department will file a formal complaint with the Clerk against the out of service respondent for the violations forming the basis of the out of service designation within 2 days of the designation. The complaint will be served as set forth in § 1001.51 (relating to service by the Authority).
(2) The out of service designation will be terminated and the Clerk will notify the respondent and the presiding officer of the cancellation of the scheduled hearing in the event a complaint is not filed as provided in paragraph (1).
(3) The out of service respondent shall file an answer to the Enforcement Department's complaint as provided in § 1005.41 (relating to answers to complaints, petitions, motions and other filings requiring a response). The answer shall be filed with the Clerk and served as provided in § 1001.52 (relating to service by a party).
(g) Scope of hearing.
(1) The averments of the Enforcement Department's complaint filed as provided in subsection (f)(1) will be deemed denied by the respondent for purposes of the out of service hearing.
(2) At the out of service hearing, the Enforcement Department will bear the burden of proof by a preponderance of the evidence that the out of service designation remains appropriate under this section. The respondent may submit evidence, cross-examine Enforcement Department witnesses and otherwise participate in the hearing as provided by Chapter 1005 (relating to formal proceedings).
(h) Order. An order following an out of service hearing may rescind, modify or continue the out of service designation. When an order of the presiding officer modifies or continues an out of service designation, the order will include a prompt date for a hearing on the Enforcement Department's formal complaint.
(i) Appeal. The decision of the presiding officer will constitute a recommended decision and will be reviewed by the Authority as provided in §§ 1005.211—1005.215 (relating to exceptions to recommended decisions).
Subchapter B. INFORMAL PROCEEDINGS GENERALLY Sec.
1003.41. Form and content of informal complaints. 1003.42. Authority action on informal complaints. 1003.43. Other initiation of formal complaints. § 1003.41. Form and content of informal complaints.
(a) Informal complaints averring a violation of the act, this part or an order of the Authority may be by letter or other writing. A form of informal complaint is not required, but in substance the report, letter or other writing must contain the essential elements of a formal complaint as specified in § 1005.12 (relating to content of formal complaints).
(b) Informal complaints shall be filed with the Clerk.
(c) Subsection (a) supersedes 1 Pa. Code § 35.5 (relating to form and content of informal complaints).
§ 1003.42. Authority action on informal complaints.
(a) Filing. The Clerk will place a copy of an informal complaint related to a docketed matter in the official document folder. Each informal complaint will be forwarded to the Enforcement Department for review, unless the Enforcement Department is the subject of the complaint, in which case the matter will be referred to the Director.
(b) Authority staff review. The purpose of staff review will be to determine if the subject matter is within the Authority's jurisdiction and, if warranted, institute an informal investigation. Informal investigations are typically undertaken to gather data or to substantiate allegations of potential violations of the act, this part or order of the Authority and are conducted without hearing.
(c) Authority staff action. Upon the completion of the informal investigation of an informal complaint, staff will notify the informal complainant of the results. When staff determines that no violation or potential violation of the act, this part or an order of the Authority has occurred, the informal investigation will be terminated by letter.
(d) Initiation of formal complaint. In the event it is determined by staff, in conjunction with the Office of Trial Counsel, that a violation of the act, this part or an order of the Authority has occurred and when formal action is deemed to be warranted, the Authority will file a formal complaint as provided in Chapter 1005 (relating to formal proceedings).
(e) Caveat. The submission of an informal complaint does not entitle complainant to a formal hearing before the Authority.
(f) Supersession. Subsections (a)—(d) supersede 1 Pa. Code §§ 35.6 and 35.7 (relating to correspondence handling of informal complaints; and discontinuance of informal complaints without prejudice).
§ 1003.43. Other initiation of formal complaints.
The informal complainant may file and prosecute a formal complaint averring any violation of the act, this part or an order of the Authority by a regulated person under § 1005.11(a)(4) (relating to formal complaints generally) within 30 days of service of an informal complaint termination letter from the Enforcement Department.
Subchapter C. APPLICATIONS AND PROTESTS Sec.
1003.51. Applications generally. 1003.52. Contents of applications. 1003.53. Applications requiring notice. 1003.54. Protests. 1003.55. Applications for temporary certificate of public convenience. § 1003.51. Applications generally.
(a) Form. Applications for authorization or permission filed with the Authority must conform to the requirements in this part.
(b) Review. Applications in nonadversarial proceedings will be reviewed by the Director. Applications in adversarial proceedings will be referred by the Director to a presiding officer with instructions to conduct hearings to develop an evidentiary record.
(c) Approval. In nonadversarial proceedings, the Director will make recommendations related to the approval of an application to the Authority. In adversarial proceedings, the presiding officer will issue a recommended decision related to the approval of an application to the Authority.
(d) Denial. The Director or the presiding officer may deny an application. The denial will be in writing and clearly detail the reasons the application was denied. Applications denied by the Director may be appealed as provided in § 1005.24 (relating to appeals from actions of the staff). Applications denied by the presiding officer shall be subject to exceptions as provided in § 1005.211 (relating to exceptions to recommended decisions).
(e) Protest. Applications subject to protest shall be deemed to be adversarial proceedings and shall proceed as provided in § 1003.54 (relating to protests).
(f) Compliance; conditions for approval for certificate or registration.
(1) When the Authority approves an application related to a certificate of public convenience for taxicab, limousine or dispatcher services or a broker registration, the applicant will be notified of the approval by email.
(2) The applicant shall file with the Authority within 30 days of receipt of the notice, a certificate of insurance or other security required by this part, relating to insurance and security for the protection of the public.
(3) The applicant shall file all required tariffs and lists of applicable rates and charges with the Director prior to exercising any rights granted by the Authority.
(4) The Authority will not issue a certificate or registration until the requirements in this subsection have been met.
(5) Failure of an applicant to comply with this section within the 30-day period referenced in paragraph (2) may result in the dismissal of the application and rescission of prior approval, unless the Authority has, upon written request demonstrating good cause, extended the time for compliance.
(6) This subsection is intended to supplement the application requirements related to each specific certificate or registration as provided in this part.
(g) Supersession. Subsections (a)—(f) supersede 1 Pa. Code § 35.1 (relating to applications generally).
§ 1003.52. Contents of applications.
(a) Applications must conform to this section unless a form or other specific requirements are required in this part. Applications must include the information and be in a form the Authority requires, including the following:
(1) The application must be typed or printed. The application may not be handwritten. The Manager of Administration may accept handwritten driver applications if the application is legible.
(2) The application must state clearly and concisely the authorization or permission sought.
(3) The application must cite by appropriate reference the statutory provisions, regulations or other authority under which the authorization or permission is sought.
(4) The application must set forth, in the order indicated, the following:
(i) The exact legal name of the applicant.
(ii) The jurisdiction under the statutes of which the applicant was created or organized and the location of the principal place of business of the applicant, when the applicant is a corporation, trust, association or other entity.
(iii) The name, title, mailing address, telephone number and electronic mail address, if available, of the person to whom correspondence or communication in regard to the application is to be addressed. The Authority will serve, when required, notices, orders and other papers upon the person named, and service will be deemed to be service upon the applicant.
(b) Subsection (a) supersedes 1 Pa. Code § 35.2 (relating to contents of applications).
§ 1003.53. Applications requiring notice.
(a) Notice of applications to the Authority for rights under the act will be published in the Pennsylvania Bulletin and as may otherwise be required by the Authority. This subsection does not apply to applications for taxicab driver certificates or limousine driver certificates.
(b) Subsection (a) supersedes 1 Pa. Code §§ 35.1 and 35.2 (relating to applications generally; and content of applications).
§ 1003.54. Protests.
(a) A person may file a protest to an application for Authority rights in one of the following circumstances:
(1) The person will be directly affected by the granting of the application.
(2) The protestant can and will provide all or part of the proposed service.
(b) A person objecting to the approval of an application shall file with the Clerk and serve upon the applicant and the applicant's attorney, if any, a written protest which contains the following:
(1) The applicant's name and the docket number of the application.
(2) The name, business address and telephone number of the protestant.
(3) The name, business address and telephone number of the protestant's attorney or other representative.
(4) A statement of the protestant's interest in the application, including a statement of any adverse impact which approval of the application can be expected to have on the protestant.
(5) A list of all Authority and PUC certificate or registration numbers under which the protestant operates, accompanied by a copy of any portion of the protestant's authority upon which its protest is predicated.
(6) A statement of any restrictions to the application which would protect the protestant's interest, including a concise statement of any amendment which would result in a withdrawal of the protest.
(7) Other information required by the notice published as provided in § 1003.53 (relating to applications requiring notice).
(c) At the time a protest petition is filed the protest fee shall be paid as provided in §§ 1001.42 and 1001.43 (relating to mode of payment to the Authority; and Authority fee schedule).
(d) A protest shall be filed within the time specified in the notice appearing in the Pennsylvania Bulletin, which will be at least 15 days from the date of publication. Failure to file a protest in accordance with this subsection shall bar subsequent participation in the proceeding, except when permitted by the Authority for good cause shown.
(e) Upon the filing of a timely protest, the application will be referred to a presiding officer of the Adjudication Department for a recommended decision as provided in §§ 1005.201—1005.204 (relating to recommended decisions). TLD staff will participate in the protest proceeding.
(f) The protestant will be allowed to participate in the proceeding as a party intervenor.
(g) A protest will be treated as a pleading and the applicant may, within 20 days after the closing date for the filing of protests, file an answer to the protest. The failure of the applicant to answer a protest will be deemed a denial of the averments made therein.
(h) Upon withdrawal of all protests prior to the initiation of the recommended decision proceeding, an application will be decided by the Director as provided in § 1003.51 (relating to applications generally).
(i) Subsections (a)—(h) supersede 1 Pa. Code §§ 35.23 and 35.24 (relating to protest generally; and effect of protest).
§ 1003.55. Applications for temporary certificate of public convenience.
(a) Application.
(1) An applicant for a certificate of public convenience may seek temporary use of the rights requested on an expedited basis.
(2) A request for temporary rights shall be made through the relevant application form which may be obtained on the Authority's web site at www.phila park.org/tld.
(3) Temporary rights issued by the Authority will expire automatically and without further notice in the following manner:
(i) On the expiration date provided at the time the temporary rights are granted, which may not exceed 6 months from the date the temporary rights are granted.
(ii) On the date the application for nontemporary rights is granted or denied.
(4) The Authority will include the applicant's request for temporary rights in the notice of application published in the Pennsylvania Bulletin.
(b) Standard for granting temporary certificates. Temporary certificates are disfavored. Temporary rights will only be issued to an applicant for a certificate in the following circumstances:
(1) The applicant clearly identifies that an emergency situation that necessitates the granting of emergency rights exists in Philadelphia.
(2) The Authority determines that an emergency condition does exist in Philadelphia and that the immediate granting of the temporary rights will assist in the amelioration of the emergency.
(3) The applicant appears from the initial review of the application to be capable of safely and adequately providing service, including the filing of compliant rates, tariffs and proof of insurance.
(c) Revocation of temporary certificate. A grant of a temporary certificate may be later revoked by the Authority if it determines that the applicant is unfit under this subpart.
(d) Continuation of temporary certificate. Temporary certificates issued under this section may not be renewed or extended. A person may apply for new temporary rights upon the expiration of any previously granted temporary rights.
(e) Filing of protests. A person who can and will provide all or part of the proposed service may file a protest to the temporary certificate. Protests shall be consistent with § 1003.54 (relating to protests). The protest must indicate whether it protests the application for temporary rights or for permanent rights, or both.
Subchapter D. FORMS AND GUIDANCE DOCUMENTS Sec.
1003.61. Official forms and guidance documents. § 1003.61. Official forms and guidance documents.
Forms for certain applications, petitions, complaints and other documents may be obtained on the Authority's web site at www.philapark.org/tld or from TLD Headquarters.
Subchapter E. TAXICAB AND LIMOUSINE DIVISION Sec.
1003.71. Definitions. 1003.72. TLD staffing generally. 1003.73. Adjudication Department. 1003.74. Enforcement Department. 1003.75. Office of Trial Counsel. 1003.76. Conduct. § 1003.71. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context indicates otherwise:
TLD—Taxicab and Limousine Division—The division of the Authority comprised of staff assigned to implement the purposes of the act, this part and the orders of the Authority.
Trial counsel—An attorney admitted to practice law before the Supreme Court of Pennsylvania who is assigned to the Office of Trial Counsel to prosecute complaints on behalf of the Authority as provided in § 1003.75 (relating to Office of Trial Counsel).
§ 1003.72. TLD staffing generally.
(a) Director. The Authority's Executive Director will designate a Director of the TLD to administer the operations of TLD staff and to perform the specific functions provided in the act, this part and the orders of the Authority.
(b) Manager of Administration. The Executive Director will designate a Manager of Administration to complete the tasks directed by this part. The Manager of Administration will report to the Director.
(c) Administration. The Authority's Executive Director will designate additional staff and internal TLD departments not otherwise required under this subpart to assist the Director and Manager of Administration with the implementation of the act, this part and orders of the Authority.
§ 1003.73. Adjudication Department.
(a) Designation. The TLD will include an Adjudication Department to provide for the administration of hearings and appeals related to enforcement actions and as otherwise provided for in the act, this part or an order of the Authority.
(b) Standing presiding officers. The Authority will appoint at least one individual to the Adjudication Department as a standing presiding officer to facilitate the purposes of the act and this part related to hearings and appeals. The Authority may assign additional tasks to the Adjudication Department, including the obligation to produce a recommended decision under §§ 1005.201—1005.204 (relating to recommended decisions).
(c) Qualifications. A presiding officer appointed to the Adjudication Department shall have been admitted to practice law before the Supreme Court of Pennsylvania for at least 7 years prior to the date of designation.
(d) Additional staff. The Executive Director may designate additional Adjudication Department staff necessary to provide for the orderly operation of the Department, including court reporters.
(e) Supersession. Subsections (a)—(d) supersede 1 Pa. Code §§ 35.185—35.187 (relating to designation of presiding officers; disqualification of a presiding officer; and authority delegated to presiding officers)
§ 1003.74. Enforcement Department.
(a) The TLD will include an Enforcement Department to be comprised of staff and inspectors necessary to conduct all functions necessary for the enforcement of the act, this part or an order of the Authority, including the following:
(1) To examine the condition and management of any entity providing taxicab service, limousine service or other products or services subject to the act.
(2) To provide technical support to trial counsel in all prosecutorial proceedings.
(3) To initiate certain formal complaints as provided in § 1005.13 (relating to citation complaints by the Authority).
(b) The Enforcement Department will be supervised by a manager appointed by the Executive Director, who will report to the Director for administrative purposes only.
§ 1003.75. Office of Trial Counsel.
(a) Designation. The TLD will include an Office of Trial Counsel to be comprised of at least one attorney admitted to practice law before the Supreme Court of Pennsylvania. Trial counsel will be appointed by the Executive Director and will provide legal counsel and representation to the following departments:
(1) The Enforcement Department.
(2) Other departments of the Authority permitted by the act, this part or order of the Authority.
(b) Duties generally. The Office of Trial Counsel has the following duties and powers:
(1) To advise the Enforcement Department on all matters, including the granting of rights, certificates or registrations, the conduct of background investigations, audits and inspections and the investigation of potential violations of the act, this part or an order of the Authority.
(2) Make recommendations and objections relating to the issuance of certificates, registrations or other rights.
(3) Initiate, in its sole discretion, proceedings for violations of the act, this part or an order of the Authority by filing a complaint or other pleading with the Authority seeking civil fines or penalties, the imposition of conditions on a certificate, registration, other right or the suspension or cancellation of conditions on a certificate, registration or other right.
(4) Withdraw, amend or otherwise alter, in its sole discretion, a complaint or other pleading with the Authority in a manner consistent with this part.
(5) Act as the prosecutor in enforcement proceedings.
(6) Seek a settlement that may include fines, penalties or other actions or limitations on rights subject to approval by the presiding officer.
(7) Appear at administrative hearings and other proceedings before a presiding officer or the Authority.
(c) Supervision. The Office of Trial Counsel will be supervised by the then longest continually appointed trial counsel and will have no reporting obligations to the Director. The supervising trial counsel will report to the General Counsel on administrative matters and otherwise adhere to the requirements in this subchapter.
§ 1003.76. Conduct.
(a) Trial counsel representing the Enforcement Department, or an employee involved in the hearing process, may not discuss the case ex parte with a presiding officer assigned to the case, the General Counsel or an attorney assigned to the case by the General Counsel.
(b) A presiding officer, the General Counsel or an attorney assigned to the case by the General Counsel or a member of the Authority may not discuss or exercise a direct supervisory responsibility over any employee with respect to an enforcement hearing with which the employee is involved.
(c) If it becomes necessary for the General Counsel or an attorney appointed by the General Counsel or a member of the Authority to become involved on behalf of the Authority in any formal proceeding, the General Counsel or an attorney appointed by the General Counsel or the member of the Authority involved shall be prohibited from participating in the adjudication of that matter.
CHAPTER 1005. FORMAL PROCEEDINGS Subchap.
A. PLEADINGS B. HEARINGS C. INTERLOCUTORY REVIEW D. EVIDENCE AND WITNESSES E. PRESIDING OFFICERS F. BRIEFS G. RECOMMENDED DECISIONS AND APPEALS H. REOPENING, RECONSIDERATION AND REHEARING I. REPORTS OF COMPLIANCE J. APPEALS TO COURT
Subchapter A. PLEADINGS GENERAL PROVISIONS
Sec.
1005.1. Pleadings allowed. FORMAL COMPLAINTS
1005.11. Formal complaints generally. 1005.12. Content of formal complaints. 1005.13. Citation complaints by the Authority. 1005.14. Joinder of formal complaints. 1005.15. Satisfaction of formal complaints. PETITIONS
1005.21. Petitions generally. 1005.22. Petitions for declaratory orders. 1005.23. Petitions for issuance, amendment, repeal or waiver of Authority regulations. 1005.24. Appeals from actions of the staff. INTERVENTION
1005.31. Initiation of intervention. 1005.32. Eligibility to intervene. 1005.33. Form and content of petitions to intervene. 1005.34. Filing of petitions to intervene. 1005.35. Notice, service and action on petitions to intervene. 1005.36. Limitation of participation in hearings. ANSWERS
1005.41. Answers to complaints, petitions, motions and other filings requiring a response. 1005.42. Answers seeking affirmative relief or raising new matter. 1005.43. Replies to answers seeking affirmative relief or new matter. 1005.44. Answers to amendments of pleadings. 1005.45. Answers to petitions to intervene. CONSOLIDATION
1005.51. Consolidation. AMENDMENT AND WITHDRAWAL OF PLEADINGS
1005.61. Amendments of pleadings generally. 1005.62. Amendments to conform to the evidence. 1005.63. Directed amendments. 1005.64. Withdrawal of pleadings in a contested proceeding. MOTIONS
1005.71. Motions.
GENERAL PROVISIONS § 1005.1. Pleadings allowed.
(a) Except as limited by specific provisions of this part, the pleadings in an action before the Authority include the following:
(1) Application and protest.
(2) Formal complaint, answer, new matter and reply to new matter.
(3) Petition and answer.
(4) Motion and answer.
(b) Pleadings must be typed or printed in 12-point Times New Roman, except that headings may be in bolded 14-point Times New Roman. Pleadings may not be handwritten.
FORMAL COMPLAINTS § 1005.11. Formal complaints generally.
(a) Formal complaints averring an act done or omitted to be done by a person subject to the jurisdiction of the Authority, in violation, or claimed violation of a statute which the Authority has jurisdiction to administer, or of this part or an order of the Authority, may be filed with the Authority by:
(1) The Enforcement Department.
(2) The Office of Trial Counsel.
(3) The PUC.
(4) Philadelphia law enforcement or licensing officials, as provided under section 5705(b) of the act (relating to contested complaints).
(5) An informal complainant within 30 days of service of a termination letter from the Authority declining further action as provided in §§ 1003.42(c) and 1003.43 (relating to Authority action on informal complaints; and other initiation of formal complaints).
(b) If the complaint relates to a provision in a tariff, regulation, report or other similar document on file with the Authority as a matter of public record, the document should be identified.
(c) A copy of the complaint will be served upon the respondent as follows:
(1) By the Authority in accordance with § 1001.51 (relating to service by the Authority).
(2) By a complainant other than the Authority in accordance with § 1001.52 (relating to service by a party).
(d) Subsections (a)—(c) supersede 1 Pa. Code § 35.9 (relating to formal complaints generally).
§ 1005.12. Content of formal complaints.
(a) Except as permitted under § 1005.13 (relating to citation complaints by the Authority), a formal complaint must set forth the following:
(1) The name, mailing address, telephone number, telefacsimile number and electronic mailing address, if applicable, of the complainant.
(2) If the complainant is represented by an attorney, the name, mailing address, telephone number, telefacsimile number and Pennsylvania Supreme Court identification number of the attorney and, if available, the electronic mailing address.
(3) The name, mailing address and certificate or license number of the respondent complained against, if known, and the nature and character of its business.
(4) The interest of the complainant in the subject matter—for example, customer, competitor, and the like.
(5) A clear and concise statement of the act or omission being complained of including the result of any informal complaint or informal investigation.
(6) A clear and concise statement of the relief sought, provided that penalties entered in a proceeding initiated as provided in § 1005.11(a)(4) (relating to formal complaints generally) will be consistent with § 1001.61 (relating to penalties).
(7) Except for a document referenced within § 1005.11(b), a document or the material part thereof, or a copy must be attached when a claim is based upon the document, the material part thereof, or a copy. If the document, the material part thereof, or a copy is not accessible, the complaint must set forth that the document, the material part thereof, or the copy is not accessible and the reason, and set forth the substance of the document or material part thereof.
(b) A verification executed in accordance with § 1001.36 (relating to verification and affidavit) must be attached to the formal complaint.
(c) The complaint must reference the act, the regulation or order and quote the pertinent portions thereof.
(d) Subsections (a)—(c) supersede 1 Pa. Code §§ 35.9, 35.10 and 35.14 (relating to formal complaints generally; form and content of formal complaints; and orders to show cause).
§ 1005.13. Citation complaints by the Authority.
(a) Citations. The Enforcement Department or trial counsel may issue a formal complaint through a form citation for any violation of the act, this part or order of the Authority. The form citation will be filed with the Clerk and include the following relevant information, unless the circumstances of the violation render the information impracticable to obtain at the time of filing:
(1) A unique citation number.
(2) The Authority number issued to the certificate, driver's certificate, registration or other right of the respondent.
(3) If the operation of a motor vehicle is at issue, the following information will be provided, if practicable:
(i) The driver's name.
(ii) The driver's home address.
(iii) The driver's gender.
(iv) The driver's birth date.
(v) The information required under paragraph (4).
(4) If the incident involves a motor vehicle, the following information will be provided, if practicable:
(i) The vehicle's make.
(ii) The vehicle's model.
(iii) The vehicle identification number.
(iv) The vehicle's license plate number and state of issuance.
(v) The vehicle's color.
(vi) The vehicle's dispatcher.
(vii) The vehicle's registered owner.
(viii) Designation of the vehicle's impoundment, if applicable.
(ix) The vehicle's insurer and the policy number.
(5) The location of the incident.
(6) The time and date of the incident.
(7) The meter number and type, if applicable.
(8) The section of the act, this part or an order of the Authority alleged to have been violated.
(9) The penalty sought for the violation.
(10) The date the citation was issued.
(11) The issuing officer's name, signature and badge number.
(b) Answer to citations. No pleading response to a citation is necessary. Upon receipt of a citation the respondent shall do one of the following:
(1) Pay the penalty amount identified on the citation within 15 days after the date of service. Payment shall be made as provided in §§ 1001.42 and 1001.43 (relating to mode of payment to the Authority; and Authority fee schedule).
(2) File a request with the Clerk for a hearing within 15 days after the date of service. A correctly filed request for hearing shall be deemed a denial of each averment made in the citation. Requests for hearings may be made by completing the applicable portion of the citation and serving it upon the Clerk or by appearing at TLD Headquarters and completing a hearing request form.
(c) Default orders.
(1) If payment of a citation is not made or a request for a hearing is not filed as provided in subsection (b), a default order will be issue by the Authority or a presiding officer sustaining the complaint and assessing the penalty, as proposed in the complaint, against the respondent.
(2) If a respondent fails to appear at a hearing requested under subsection (b), without good cause shown, the Authority or presiding officer, upon review of evidence of service of the Authority's hearing notice upon the respondent, will issue a default order sustaining the complaint and assessing the fine, as proposed in the complaint, against the respondent.
(d) Hearing. Hearings conducted under this section will otherwise proceed under this subpart.
(e) Supersession. Subsections (a)—(d) supersede 1 Pa. Code §§ 35.9, 35.10 and 35.14 (relating to formal complaints generally; form and content of formal complaints; and orders to show cause).
§ 1005.14. Joinder of formal complaints.
(a) Two or more complainants may join in one complaint if they are complaining against the same respondent, and if the subject matter and relief sought is substantially the same.
(b) Subsection (a) supersedes 1 Pa. Code § 35.11 (relating to joinder of formal complaints).
§ 1005.15. Satisfaction of formal complaints.
(a) If the respondent satisfies a complaint either before or after a hearing, a statement to that effect signed by the complainant shall be filed with the Clerk setting forth that the complaint has been satisfied and requesting dismissal or withdrawal of the complaint. Except when requested by the parties, the Authority or presiding officer will not be required to render a final order upon the satisfaction of a complaint.
(b) Subsection (a) supersedes 1 Pa. Code § 35.41 (relating to satisfaction of complaints).
PETITIONS § 1005.21. Petitions generally.
(a) Petitions are pleadings that may be filed by the trial counsel, an Authority division, parties, applicants, certificate holders, registrants, drivers and other persons authorized by the Authority. Petitions shall be filed with the Clerk.
(b) Petitions must be in writing, state clearly and concisely the grounds for the petition, the interest of the petitioner in the subject matter, the facts and any legal argument relied upon and the relief sought and otherwise comply with §§ 1001.31—1001.36.
(c) Petitions must conform to § 1001.6 (relating to filing generally) and be served on all persons directly affected.
(d) Subsection (a)—(c) supplement 1 Pa. Code §§ 35.17 and 35.18 (relating to petitions generally; and petitions for issuance, amendment, waiver or deletion of regulations).
§ 1005.22. Petitions for declaratory orders.
(a) Petitions for the issuance of a declaratory order to terminate a controversy or remove uncertainty must:
(1) State clearly and concisely the controversy or uncertainty which is the subject of the petition.
(2) Cite the statutory provision or other authority involved.
(3) Include a complete statement of the facts and grounds prompting the petition.
(4) Include a full disclosure of the interest of the petitioner.
(b) The petitioner shall serve a copy of the petition on the Director, General Counsel, all persons directly affected and on other parties who petitioner believes will be affected by the petition. Service shall be evidenced with a certificate of service filed with the petition.
(c) Copies shall also be served in compliance with Authority direction.
(d) Subsections (a)—(c) supersede 1 Pa. Code § 35.19 (relating to petitions for declaratory orders).
§ 1005.23. Petitions for issuance, amendment, repeal or waiver of Authority regulations.
(a) A petition to the Authority for the issuance, amendment, waiver or repeal of a regulation shall be filed with the Clerk and set forth clearly and concisely the interest of the petitioner in the subject matter, the specific regulation, amendment, waiver or repeal requested, and cite by appropriate reference the statutory provision or other authority involved.
(b) A petition under this section must set forth the purpose of and the facts claimed to constitute the grounds requiring the regulation, amendment, waiver or repeal.
(c) In addition to other considerations, the relief sought in a petition under this section will not be granted if the Authority determines that the requested relief is inconsistent with the purposes of the act, will disrupt or harm taxicab or limousine operations in Philadelphia or will adversely affect the public interest.
(d) A copy of the petition shall be served on all persons directly affected by the petition, the Director, General Counsel, and as otherwise required by the Authority. Service shall be evidenced with a certificate of service filed with the petition.
(e) A petition for the issuance or amendment of a regulation must incorporate the proposed regulation or amendment.
(f) A petition for waiver of a regulation will initially be determined by the Director upon submission of documents. The Director's decision is subject to appeal as provided in § 1005.24 (relating to appeals from actions of the staff).
(g) Subsections (a)—(f) supersede 1 Pa. Code § 35.18 (relating to petitions for issuance, amendment, waiver or deletion of regulations).
§ 1005.24. Appeals from actions of the staff.
(a) Actions taken by staff, other than a presiding officer, under the act, this part or an order of the Authority will be deemed to be the final action of the Authority unless appealed by petition to the Authority within 15 days after service of notice of the action, unless a different time period is specified in this subpart or in the act. This section does not apply to staff decisions related to informal complaints, which must be addressed as provided in § 1003.43 (relating to other initiation of formal complaints).
(b) An action taken by staff under delegated authority will note the parties' right to appeal the action under this section.
(c) Petitions for appeal from actions of staff must be filed with the Clerk, served as provided in § 1001.52 (relating to service by a party) and will be assigned to a presiding officer for a recommended decision as provided in §§ 1005.201—1005.204 (relating to recommended decisions).
(d) Petitions for appeal from actions of the staff must set forth any legal basis upon which the petition is based and aver any material factual disputes related to the staff action necessitating an on the record hearing and otherwise comply with § 1005.21 (relating to petitions generally).
(e) A party may file an answer to a petition for appeal with the Clerk within 20 days of service, and in default thereof, may be deemed to have waived objection to the granting of the petition. Answers shall be served upon all other parties as provide in § 1001.52.
(f) Subsections (a)—(e) supersede 1 Pa. Code § 35.20 (relating to appeals from actions of the staff).
INTERVENTION § 1005.31. Initiation of intervention.
(a) Participation in a proceeding as an intervenor may be initiated as follows:
(1) By the filing of a notice of intervention by another agency of the Commonwealth which is authorized by statute to participate in the proceeding.
(2) By order of the Authority or presiding officer upon grant of a petition to intervene.
(b) Subsection (a) supersedes 1 Pa. Code § 35.27 (relating to initiation of intervention).
§ 1005.32. Eligibility to intervene.
(a) Persons. A petition to intervene may be filed by a person claiming a right to intervene or an interest of a nature that intervention is necessary or appropriate to the administration of the statute under which the proceeding is brought. The right or interest may be one of the following:
(1) A right conferred by statute of the United States or of the Commonwealth.
(2) An interest which may be directly affected and which is not adequately represented by existing participants, and as to which the petitioner may be bound by the action of the Authority in the proceeding.
(3) Another interest of a nature so that participation of the petitioner may be in the public interest.
(b) Commonwealth. The Commonwealth or an officer or agency thereof may intervene as of right in a proceeding subject to subsection (a).
(c) Supersession. Subsections (a) and (b) supersede 1 Pa. Code § 35.28 (relating to eligibility to intervene).
§ 1005.33. Form and content of petitions to intervene.
(a) Petitions to intervene must set out clearly and concisely the following:
(1) The facts from which the alleged intervention right or interest of the petitioner can be determined.
(2) The grounds of the proposed intervention.
(3) The petitioner's position regarding the issues in the proceeding.
(b) When the circumstances warrant, petitions to intervene filed on behalf of more than one person may be required to list those persons and entities comprising the represented group.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.29 (relating to form and contents of petitions to intervene).
§ 1005.34. Filing of petitions to intervene.
(a) Petitions to intervene and notices of intervention may be filed with the Clerk at any time following the filing of an application, petition, complaint or other document seeking Authority action, but in no event later than the date fixed for the filing of petitions to intervene or protests in any order or notice with respect to the proceedings published in the Pennsylvania Bulletin, unless, in extraordinary circumstances for good cause shown, the Authority or the presiding officer authorizes a late filing. When a person has been permitted to intervene notwithstanding his failure to file his petition within the time prescribed in this section, the Authority or presiding officer may, when the circumstances warrant, permit the waiver under § 1005.149 (relating to copies and form of documentary evidence) with respect to copies of exhibits for the intervener.
(b) Subsection (a) supersedes 1 Pa. Code § 35.30 (relating to filing of petitions to intervene).
§ 1005.35. Notice, service and action on petitions to intervene.
(a) Notice and service. Petitions to intervene, when filed with the Clerk, must show service thereof upon all parties to the proceeding in conformity with § 1001.52 (relating to service by a party).
(b) Action on petitions. As soon as practicable after the expiration of the time for filing answers to petitions as provided in § 1005.45 (relating to answers to petitions to intervene), the Authority or presiding officer will grant or deny the petition in whole or in part or may, if found to be appropriate, authorize limited participation.
(c) Rights upon grant of petition. Admission as an intervenor will not be construed as recognition by the Authority that the intervenor has a direct interest in the proceeding or might be aggrieved by an order of the Authority in the proceeding. Intervenors are granted no rights which survive discontinuance of a case.
(d) Actions on petitions filed after a hearing has commenced. Petitions to intervene may not be filed or acted upon during a hearing unless permitted by the Authority or presiding officer after opportunity for all parties to object thereto. Only to avoid detriment to the public interest will any presiding officer tentatively permit participation in a hearing in advance of, and then only subject to, the granting by the Authority of a petition to intervene.
(e) Supersession. Subsections (a)—(d) supersede 1 Pa. Code § 35.31 (relating to notice and action on petitions to intervene).
§ 1005.36. Limitation of participation in hearings.
(a) When there are two or more intervenors having substantially like interests and positions, the Authority or presiding officer may, to expedite the hearing, arrange appropriate limitations on the number of attorneys who will be permitted to cross-examine and make and argue motions and objections on behalf of the intervenors.
(b) Subsection (a) supersedes 1 Pa. Code § 35.32 (relating to limitation of participation in hearings).
ANSWERS § 1005.41. Answers to complaints, petitions, motions and other filings requiring a response.
(a) Time for filing. Unless a different time is prescribed by statute, the Authority or the presiding officer, answers to complaints, petitions, motions and other filings requiring a response shall be filed with the Clerk and served upon all other parties within 20 days after the date of service.
(b) Form of answer. Answers must be in writing and so drawn as fully and completely to advise the parties and the Authority as to the nature of the defense. Answers must admit or deny specifically and in detail each material allegation of the pleading answered, and state clearly and concisely the facts and matters of law relied upon. Answers must be set forth in paragraphs numbered to correspond with the pleading answered and otherwise comply with §§ 1001.31—1001.36.
(c) Failure to file an answer. A respondent failing to file an answer within the applicable period may be deemed in default, and relevant facts stated in the pleadings may be deemed admitted.
(d) Supersession. Subsections (b)—(c) supersede 1 Pa. Code §§ 35.35 and 35.37 (relating to answers to complaints and petitions; and answers to orders to show cause).
§ 1005.42. Answers seeking affirmative relief or raising new matter.
(a) Answers seeking affirmative relief. In its answer, a respondent may seek relief within the jurisdiction of the Authority against other parties in a proceeding if common questions of law or fact are present. The answer must conform to this chapter for answers generally and set forth:
(1) The facts constituting the grounds of complaint.
(2) The provisions of the statutes, rules, regulations or orders relied upon.
(3) The injury complained of.
(4) The relief sought.
(b) Answers raising new matter. An affirmative defense shall be pleaded in an answer or other responsive pleading under the heading of ''New Matter.'' A party may set forth as new matter another material fact which is not merely a denial of the averments of the preceding pleading.
(c) Supersession. Subsections (a) and (b) supersede 1 Pa. Code § 35.38 (relating to respondents seeking affirmative relief).
§ 1005.43. Replies to answers seeking affirmative relief or new matter.
(a) Unless otherwise ordered by the Authority, replies to answers seeking affirmative relief or to new matter shall be filed with the Clerk and served within 20 days after date of service of the answer, but not later than 5 days prior to the date set for the commencement of the hearing.
(b) Failure to file a timely reply to new matter may be deemed in default, and relevant facts stated in the new matter may be deemed to be admitted.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.39 (relating to replies to respondents seeking affirmative relief).
§ 1005.44. Answers to amendments of pleadings.
(a) An answer to an amendment, modification or supplement to an application, complaint, petition or other pleading under § 1005.61 (relating to amendments of pleadings generally) shall be filed with the Clerk within 20 days after the date of service of the amendment, modification or supplement, unless for cause the Authority or presiding officer with or without motion prescribes a different time.
(b) Subsection (a) supersedes 1 Pa. Code § 35.40 (relating to answers to amendments of pleadings).
§ 1005.45. Answers to petitions to intervene.
(a) A party may file an answer to a petition to intervene within 20 days of service and, in default thereof, may be deemed to have waived objection to the granting of the petition. Answers shall be served upon all other parties.
(b) Subsection (a) supersedes 1 Pa. Code § 35.36 (relating to answers to petitions to intervene).
CONSOLIDATION § 1005.51. Consolidation.
(a) The Authority or presiding officer, with or without motion, may order proceedings involving a common question of law or fact to be consolidated. The Authority or presiding officer may make orders concerning the conduct of the proceeding as may avoid unnecessary costs or delay.
(b) Subsection (a) supersedes 1 Pa. Code §§ 35.45 and 35.122 (relating to consolidation; and consolidation of formal proceedings).
AMENDMENT AND WITHDRAWAL OF PLEADINGS § 1005.61. Amendments of pleadings generally.
(a) Generally. A modification of or supplement to an application, complaint, petition or other pleading shall be deemed as an amendment to the pleading, and must comply with the requirements in this chapter relating to the pleading amended.
(b) Limitation. An amendment to a pleading may not be filed more than 20 days after the date an answer or other response to the original pleading was due to be filed with the Clerk, unless directed or permitted by the Authority or the presiding officer after opportunity for all parties to be heard thereon.
(c) Supersession. Subsections (a) and (b) supersede 1 Pa. Code § 35.48 (relating to amendments of pleadings generally).
§ 1005.62. Amendments to conform to the evidence.
(a) Amendment by consent. When the parties introduce issues at a hearing not raised in the pleadings without objection of any party, the issues shall be treated in all respects as if they had been raised in the pleadings.
(b) Amendment following objection. If evidence upon new issues is objected to on the ground that it is not within the issues raised by the pleadings, the Authority or the presiding officer may allow the pleadings to be amended and the evidence to be received, when it appears that the presentation of the merits of the proceedings will be served thereby without prejudicing the public interest, the rights of a party and that the omission of the amended information was not calculated to delay the proceedings.
(c) Continuance following objection. A continuance may be granted by the Authority or the presiding officer under § 1001.15 (relating to extensions of time and continuances) when necessary to allow the objecting party to address new issues and evidence.
(d) Notice of amendment. If an amendment adopted under this section has the effect of broadening the issues in the proceeding, notice of the amendment shall be given in the same manner as notice was given at the commencement of the proceeding and to the same persons who received the notice.
(e) Supersession. Subsections (a)—(d) supersede 1 Pa. Code § 35.49 (relating to amendments to conform to the evidence).
§ 1005.63. Directed amendments.
(a) The Authority may at any time, or during a hearing, presiding officers may on their own motion or the motion of a party, direct parties to state their case more fully or in more detail by way of amendment. The amendment shall be reduced to writing and filed within the time fixed by the Authority or the presiding officer.
(b) Subsection (a) supersedes 1 Pa. Code § 35.50 (relating to directed amendments).
§ 1005.64. Withdrawal of pleadings in a contested proceeding.
(a) Except as provided in subsections (b) and (c), a party desiring to withdraw a pleading in a contested proceeding may file a petition for leave to withdraw the appropriate document with the Authority or presiding officer and serve it upon the other parties. The petition must set forth the reasons for the withdrawal. A party may object to the petition within 20 days of service. After considering the petition, an objection thereto and the public interest, the Authority or presiding officer will determine whether the withdrawal will be permitted.
(b) In an enforcement proceeding initiated by the Authority, trial counsel may withdraw any pleading upon notice to the respondent to be provided under § 1001.51 (relating to service by the Authority).
(c) A protest to an application may be withdrawn by filing a notice of withdrawal directed to the Authority or the presiding officer. The notice must state that the protest is withdrawn and provide the reasons for the withdrawal.
(d) Withdrawal or termination of an uncontested proceeding is governed under § 1001.82 (relating to withdrawal or termination of uncontested matter or proceeding).
(e) Subsections (a)—(d) supersede 1 Pa. Code § 35.51 (relating to withdrawal of pleadings).
MOTIONS § 1005.71. Motions.
(a) Scope and content. A request may be made by motion for relief desired, except as may be otherwise expressly provided in this subpart. A motion must set forth the ruling or relief sought, and state the grounds therefore and the statutory or other authority upon which it relies.
(b) Presentation of motions. A motion may be made in writing at any time, and a motion made during a hearing may be stated orally upon the record, or the presiding officer may require that an oral motion be reduced to writing and filed separately. Written motions must contain a notice which states that a responsive pleading shall be filed within 20 days of the date of service of the motion.
(c) Response to motions. A party has 20 days from the date of service within which to answer or object to a motion, unless the period of time is otherwise fixed by the Authority or the presiding officer.
(d) Rulings on motions.
(1) The Authority or presiding officer will rule upon motions when an immediate ruling is essential in order to proceed with the hearing.
(2) A motion made during the course of hearing, which if granted would otherwise dispose of parties' rights, should be acted upon by the presiding officer prior to taking further testimony if, in the opinion of the presiding officer, the action is warranted.
(3) If a motion involves a question of jurisdiction, the establishment of a prima facie case or standing, the presiding officer may render a final determination with regard to a motion prior to the termination of hearings by issuing an initial or recommended decision.
(e) Preliminary motions.
(1) Preliminary motions are available to parties and may be filed in response to a pleading, except the following:
(i) Motions.
(ii) Answers to motions.
(2) Preliminary motions must state specifically the legal and factual grounds relied upon and be limited to the following:
(i) Lack of Authority jurisdiction or improper service of the pleading initiating the proceeding.
(ii) Failure of a pleading to conform to this chapter or the inclusion of scandalous or impertinent matter.
(iii) Insufficient specificity of a pleading.
(iv) Legal insufficiency of a pleading.
(v) Lack of capacity to sue or nonjoinder of a necessary party.
(vi) Pendency of a prior proceeding or agreement for alternative dispute resolution.
(f) Supersession. Subsection (a) supersedes 1 Pa. Code § 35.177 (relating to scope and contents of motions). Subsection (b) supersedes 1 Pa. Code § 35.178 (relating to presentation of motions). Subsection (c) supersedes 1 Pa. Code § 35.179 (relating to objections to motions). Subsection (d) supersedes 1 Pa. Code § 35.180 (relating to action on motions). Subsection (e) supersedes 1 Pa. Code §§ 35.54 and 35.55 (relating to motions as to complaints; and motions as to answer).
Subchapter B. HEARINGS GENERAL
Sec.
1005.81. Notice of proceeding; hearing; waiver of hearing. 1005.82. Scheduling of hearing. 1005.83. Notice of nonrulemaking proceedings. HEARING CONFERENCES
1005.91. Conferences generally. STIPULATIONS
1005.101. Presentation and effect of stipulations. 1005.102. Restrictive amendments to applications for rights issued by the Authority. HEARINGS
1005.111. Order of procedure. 1005.112. Presentation by parties. 1005.113. Failure to appear, proceed or maintain order in proceedings. TRANSCRIPT
1005.121. Transcripts generally. 1005.122. Review of testimony. 1005.123. Transcript corrections. 1005.124. Copies of transcripts.
GENERAL § 1005.81. Notice of proceeding; hearing; waiver of hearing.
(a) When notice and hearing are required under the act, publication in the Pennsylvania Bulletin of a notice of application or other initial pleading is sufficient to provide notice of the proceeding. Service on interested persons is also sufficient to provide notice. Hearings will be held upon the filing of the pleading, unless waived by the parties.
(b) If the appropriate pleading is not filed within the set period of time, or when the parties have waived hearings, the Authority or presiding officer may dispose of the matter without a hearing upon the basis of the pleadings or submittals and the studies and recommendations of the staff.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 35.101, 35.103 and 35.121 (relating to waiver of hearing; preliminary notice to Department of Justice; and initiation of hearings).
§ 1005.82. Scheduling of hearing.
(a) A hearing calendar of all matters set for hearing will be maintained by the Clerk and will be in order of assignment as far as practicable. All matters will be heard at TLD Headquarters, unless a different site is designated by the Authority or the presiding officer. The Authority or the presiding officer, in its discretion with or without motion, for cause may at any time with due notice to the parties advance or postpone any proceeding on the hearing calendar.
(b) Hearings will be held before the Authority or presiding officer and all appearances, including staff counsel participating, will be entered upon the record, with a notation on whose behalf each appearance is made. A notation will be made in the record of the names of the members of the staff of the Authority participating, including accountants, and other experts, who are assisting in the investigation of the matter. This subsection supersedes 1 Pa. Code §§ 35.123 and 35.125 (relating to conduct of hearings; and order of procedure).
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.102 (relating to hearing calendar).
§ 1005.83. Notice of nonrulemaking proceedings.
(a) The Authority or presiding officer is authorized to schedule prehearing conferences and hearings. Parties will be given reasonable notice of the time and place of the prehearing conference or hearing. In fixing the time and place of conferences and hearings, regard will be given to the convenience and necessity of the parties or their attorneys so far as time and the proper execution of the functions of the Authority permit.
(b) A protestant shall attend the initial hearing or prehearing conference, if one has been scheduled. Failure to attend may result in the dismissal of the protest by the Authority or presiding officer.
(c) Subsection (a) supersedes 1 Pa. Code §§ 35.105 and 35.106 (relating to notice of nonrulemaking proceedings; and contents of notice of nonrulemaking proceedings).
HEARING CONFERENCES § 1005.91. Conferences generally.
Conferences will be scheduled and conducted in accordance with 1 Pa. Code §§ 35.111—35.116 (relating to prehearing conferences).
STIPULATIONS § 1005.101. Presentation and effect of stipulations.
(a) Parties may stipulate to relevant matters of fact or the authenticity of relevant documents. The stipulations may be received in evidence at a hearing, and when so received shall be binding on the parties to the stipulation with respect to the matters therein stipulated.
(b) The parties may make stipulations independently of orders or rulings issued under § 1005.91 (relating to conferences generally).
(c) The Authority or presiding officer may disregard in whole or in part a stipulation of facts under this section but may grant further hearing if requested by a party to the stipulation within 15 days after issuance of an Authority order disregarding the stipulation of fact.
(d) Subsections (a)—(c) supersede 1 Pa. Code § 35.155 (relating to presentation and effect of stipulations).
§ 1005.102. Restrictive amendments to applications for rights issued by the Authority.
(a) Parties to an application for Authority rights may stipulate as to restrictions or modifications to the proposed rights. Stipulations in the form of restrictive amendments or modifications must:
(1) Be in writing.
(2) Explain why the stipulation is in the public interest.
(3) Be signed by each party to the stipulation.
(4) Be submitted to the Manager of Administration for insertion into the document folder.
(b) Restrictive amendments shall be binding on the parties but not on the Authority if it is determined they are not in the public interest. If a restrictive amendment is not accepted by the Authority, it may remand the matter for appropriate proceedings.
HEARINGS § 1005.111. Order of procedure.
(a) In a proceeding, the party having the burden of proof shall open and close unless otherwise directed by the presiding officer. In a hearing on investigations and in proceedings which have been consolidated for hearing, the presiding officer may direct who will open and close. Oral rejoinder, if proposed by the party with the burden of proof, shall be completed before any cross-examination of the witness is conducted.
(b) Except when the presiding officer determines that it is necessary to develop a comprehensive evidentiary record, the participation of a person granted the right to intervene in a proceeding will be limited to the presentation of evidence through the submission of testimony under § 1005.151 (relating to oral examination).
(c) In proceedings when the evidence is peculiarly within the knowledge or control of another party, the order of presentation in subsections (a) and (b) may be varied by the presiding officer.
(d) The presiding officer may direct the order of parties for purposes of cross-examination, subject to § 1005.112(f) (relating to presentation by parties).
(e) Subsections (a)—(d) supersede 1 Pa. Code § 35.125 (relating to order of procedure).
§ 1005.112. Presentation by parties.
(a) A party has the right of presentation of evidence, cross-examination, objection, motion and argument subject to the limitations of this subpart. The taking of evidence and subsequent proceedings shall proceed with reasonable diligence and with the least practicable delay.
(b) When an objection to the admission or exclusion of evidence before the Authority or the presiding officer is made, the ground relied upon shall be stated briefly. A formal exception is unnecessary and may not be taken to rulings thereon.
(c) The Authority or presiding officer may require or allow a factual statement of the scope of a pleading or the position of a party in the proceeding. Facts admitted on the record by a party or by testimony, exhibits or in writing, need not be further proved.
(d) The Authority or the presiding officer may limit appropriately the number of witnesses who may be heard upon an issue.
(e) A party will not be permitted to introduce evidence during a rebuttal phase which:
(1) Is repetitive.
(2) Should have been included in the party's case-in-chief.
(3) Substantially varies from the party's case-in-chief.
(f) If a party conducts friendly cross-examination of a witness, the presiding officer may permit the other parties a second opportunity to cross-examine after friendly cross-examination is completed. The recross-examination shall be limited to the issues on which there was friendly cross-examination.
(g) Subsections (a)—(f) supersede 1 Pa. Code § 35.126 (relating to presentation by the parties).
§ 1005.113. Failure to appear, proceed or maintain order in proceedings.
(a) Except as provided in § 1005.13(c) (relating to citation complaints by the Authority), after being notified, a party who fails to be represented at a scheduled conference or hearing in a proceeding will:
(1) Be deemed to have waived the opportunity to participate in the conference or hearing.
(2) Not be permitted thereafter to reopen the disposition of a matter accomplished at the conference or hearing.
(3) Not be permitted to recall witnesses who were excused from further examination.
(b) Subsection (a) does not apply if the presiding officer determines that the failure to be represented was unavoidable and that the interests of the other parties and of the public would not be prejudiced by permitting the reopening or further examination. Counsel shall be expected to go forward with the examination of witnesses at the hearing under § 1005.111 (relating to order of procedure), or as has been otherwise stipulated or has been directed by the presiding officer.
(c) If the Authority or the presiding officer finds, after notice and opportunity for hearing, that the actions of a party, including an intervenor, in a proceeding obstruct the orderly conduct of the proceeding and are inimical to the public interest, the Authority or the presiding officer may take appropriate action, including dismissal of the complaint, application or petition, if the action is that of complainant, applicant or petitioner.
TRANSCRIPT § 1005.121. Transcripts generally.
(a) If required by law, hearings will be stenographically recorded by the Authority's official reporter.
(b) Notwithstanding the review provisions in § 1005.122 (relating to review of testimony), the hearing transcript will be a part of the record and the sole official transcript of the proceeding.
(c) The transcripts will include a verbatim report of the hearings and nothing will be omitted therefrom except as is directed by the presiding officer. Changes in the transcript shall be made as provided in § 1005.123 (relating to transcript corrections).
(d) Subsections (a)—(c) supersede 1 Pa. Code § 35.131 (relating to recording of proceedings).
§ 1005.122. Review of testimony.
(a) In proceedings when testimony was electronically recorded and subsequently transcribed, a party may review the recording to ensure it was transcribed accurately.
(b) Review will not be permitted except upon written request within 20 days after the transcript has been filed with the Authority.
(c) Upon request for review, the Authority or presiding officer will schedule a time and place for the review which shall be open to all parties. The court reporter shall submit the tapes and equipment necessary for the review and shall arrange for the court reporter responsible for transcribing the tapes to be present at the review.
(d) Actual costs associated with making the tapes available for review, including the time of the court reporter, shall be paid by the party requesting review.
(e) Nothing in this section requires the electronic recording of testimony.
§ 1005.123. Transcript corrections.
(a) A correction in the official transcript may be made only to make it accurately reflect the evidence presented at the hearing and to speak the truth.
(b) Proposed corrections of a transcript may be submitted by either of the following means:
(1) By written stipulation by the parties of record who were present when the transcription was taken.
(2) Upon written request of one or more parties of record present when the transcription was taken.
(c) Proposed corrections shall be filed as follows:
(1) Within 10 days after the transcript has been filed with the Clerk.
(2) Within 10 days after the electronically recorded testimony has been reviewed.
(3) Upon permission of the presiding officer granted prior to the closing of the record.
(d) Objections or other comments to the proposed corrections shall be filed within 10 days of service of the proposed corrections.
(e) Proposed corrections and objections or other comments shall be served upon the parties of record present when the original transcription was taken.
(f) The presiding officer will rule upon a proposed correction of a transcript within 20 days of its receipt. A request for corrections not acted upon within 20 days is deemed to be:
(1) Denied if opposed in a timely manner.
(2) Granted if unopposed.
(g) Subsections (a)—(f) supersede 1 Pa. Code § 35.132 (relating to transcript corrections).
§ 1005.124. Copies of transcripts.
(a) A party or other person desiring copies of the transcript may obtain copies from the official reporter upon payment of the fees fixed therefore.
(b) Subsection (a) supersedes 1 Pa. Code § 35.133 (relating to copies of transcripts).
Subchapter C. INTERLOCUTORY REVIEW Sec.
1005.131. Interlocutory review generally. § 1005.131. Interlocutory review generally.
Interlocutory review will be conducted in accordance with 1 Pa. Code § 35.190 (relating to appeals to agency head from rulings of presiding officers). For purposes of implementing this section, the agency head is the Board.
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