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Pennsylvania Code



Subchapter A. PLEADINGS AND OTHER PRELIMINARY MATTERS


GENERAL PROVISIONS

Sec.


5.1.    Pleadings allowed.

APPLICATIONS


5.11.    Applications generally.
5.12.    Contents of applications.
5.13.    Applications for construction or alteration of crossings.
5.14.    Applications requiring notice.

FORMAL COMPLAINTS


5.21.    Formal complaints generally.
5.22.    Content of formal complaint.
5.23.    Joinder of formal complaints.
5.24.    Satisfaction of formal complaints.
5.31.    Staff-initiated complaints.
5.32.    Complaints in rate proceedings.

PETITIONS


5.41.    Petitions generally.
5.42.    Petitions for declaratory orders.
5.43.    Petitions for issuance, amendment, repeal or waiver of Commission regulations.
5.44.    Petitions for reconsideration from actions of the staff.

PROTESTS


5.51.    Protest to an application.
5.52.    Content of a protest to an application.
5.53.    Time of filing.
5.54.    [Reserved].

ANSWERS


5.61.    Answers to complaints, petitions, motions and preliminary objections.
5.62.    Answers seeking affirmative relief or raising new matter.
5.63.    Replies to answers seeking affirmative relief or new matter.
5.64.    [Reserved].
5.65.    Answers to amendments of pleadings.
5.66.    Answers to petitions to intervene.

INTERVENTION


5.71.    Initiation of intervention.
5.72.    Eligibility to intervene.
5.73.    Form and content of petitions to intervene.
5.74.    Filing of petitions to intervene.
5.75.    Notice, service and action on petitions to intervene.
5.76.    Limitation of participation in hearings.

CONSOLIDATION


5.81.    Consolidation.

AMENDMENT AND WITHDRAWAL OF PLEADINGS


5.91.    Amendments of pleadings generally.
5.92.    Amendments to conform to the evidence.
5.93.    Directed amendments.
5.94.    Withdrawal of pleadings in a contested proceeding.

PRELIMINARY OBJECTIONS


5.101.    Preliminary objections.
5.102.    Motions for summary judgment and judgment on the pleadings.
5.103.    Motions.

GENERAL PROVISIONS


§ 5.1. Pleadings allowed.

 (a)  The pleadings in an action before the Commission include the following:

   (1)  Application and protest.

   (2)  Formal complaint, answer, new matter and reply to new matter.

   (3)  Order to show cause and answer.

   (4)  Petition and answer.

   (5)  Preliminary objections.

   (6)  Motions.

 (b)  A pleading except a preliminary objection may be subject to a preliminary objection as set forth in §  5.101 (relating to preliminary objections).

Authority

   The provisions of this §  5.1 amended under the Public Utility Code, 66 Pa.C.S. §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.1 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225637).

Cross References

   This section cited in 52 Pa. Code §  1.5 (relating to amendment to rules); and 52 Pa. Code §  5.405 (relating to effect of pleadings).

APPLICATIONS


§ 5.11. Applications generally.

 (a)  Applications for authorization or permission filed with the Commission should conform to the requirements of this chapter. To the extent practicable, applications should conform to the requirements of §  3.551 (relating to official forms).

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.1 (relating to applications generally).

Authority

   The provisions of this §  5.11 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.11 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414. Immediately preceding text appears at serial pages (215937) to (215938).

Cross References

   This section cited in 52 Pa. Code §  1.5 (relating to amendment to rules); 52 Pa. Code §  3.501 (relating to certificate of public convenience as a water supplier or wastewater collection, treatment and disposal provider); and 52 Pa. Code §  63.324 (relating to commission approval of a general rule transaction subject to 66 Pa.C.S. § §  1102(a)(3) and 1103).

§ 5.12. Contents of applications.

 (a)  Applications must conform to this section unless a form or other specific requirements are provided in Chapter 3 (relating to special provisions). Applications must :

   (1)  Be in writing.

   (2)  State clearly and concisely the authorization or permission sought.

   (3)  Cite by appropriate reference the statutory provisions, regulations or other authority under which the Commission authorization or permission is sought.

   (4)  Set forth, in the order indicated, the following-unless otherwise provided by this chapter or in Chapter 3 for the specific type of application involved:

     (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 Commission 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).

Authority

   The provisions of this §  5.12 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.12 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa. B. 2097. Immediately preceding text appears at serial pages (225638) and (281569).

Cross References

   This section cited in 52 Pa. Code §  3.381 (relating to applications for transportation of property, household goods in use and persons); 52 Pa. Code §  63.324 (relating to commission approval of a general rule transaction subject to 66 Pa.C.S. § §  1102(a)(3) and 1103); and 52 Pa. Code §  63.325 (relating to commission approval of a pro forma transaction subject to 66 Pa.C.S. § §  1102(a)(3) and 1103).

§ 5.13. Applications for construction or alteration of crossings.

 (a)  Applications for construction, relocation, alteration, protection or abolition of a crossing under section 2702 of the act (relating to construction, relocation, suspension, and abolition of crossings) must comply substantially with the requirements as to crossing complaints as set forth in §  3.361 (relating to crossing complaints).

 (b)  Plans submitted for the construction, relocation, alteration, protection or abolition of a crossing complained against shall be accompanied by the names and post office addresses of the record owners of all property necessary to be acquired in the execution thereof, and shall, when directed by the Commission, be supplemented by a description by metes and bounds of all property necessary to be acquired.

Authority

   The provisions of this §  5.13 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.13 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (281569).

Cross References

   This section cited in 52 Pa. Code §  63.324 (relating to commission approval of a general rule transaction subject to 66 Pa.C.S. § §  1102(a)(3) and 1103).

§ 5.14. Applications requiring notice.

 (a)  General rule. Notice of applications to the Commission for authority under the act must be published in the Pennsylvania Bulletin and as may otherwise be required by the Commission.

 (b)  Supplemental requirements. The Secretary may require additional publication or notification in one or more of the following ways:

   (1)  Publication in a newspaper of general circulation serving the geographical territory affected by the application.

   (2)  Actual notification to the parties affected by the application.

   (3)  Another form of actual or constructive notification, including service of the application on interested persons.

 (c)  Protest deadlines. The time for filing protests to applications is governed by §  5.53 (relating to time of filing).

 (d)  Publication of application. Except as set forth in § §  3.361—3.363, 3.501 and 57.71, 57.72 and 57.74—57.77 as relating to the 60-day protest period, or as otherwise provided by the Secretary, application to the Commission for the following types of authority will be published in the Pennsylvania Bulletin and, as directed by the Secretary, in a newspaper of general circulation serving the geographical territory affected by the application and shall be subject to a 15-day protest period.

   (1)  To initiate fixed utility service to the public, including the following:

     (i)   Electric.

     (ii)   Gas.

     (iii)   Telephone.

     (iv)   Water.

     (v)   Wastewater.

     (vi)   Pipeline.

     (vii)   Radio-telephone common carrier service.

   (2)  To initiate, in a different nature or to a different territory than is currently authorized, fixed utility service to the public, including the following:

     (i)   Electric.

     (ii)   Gas.

     (iii)   Telephone.

     (iv)   Water.

     (v)   Wastewater.

     (vi)   Pipeline.

     (vii)   Radio-telephone common carrier service.

   (3)  To abandon, in whole or in part, fixed utility service to the public, including to the following:

     (i)   Electric.

     (ii)   Gas.

     (iii)   Telephone.

     (iv)   Water.

     (v)   Wastewater.

     (vi)   Pipeline.

     (vii)   Radio-telephone common carrier service.

   (4)  To initiate rail utility service to the public.

   (5)  To initiate, in a different nature or to a different territory than is currently authorized, rail utility service to the public.

   (6)  To abandon, in whole or in part, rail utility service to the public.

   (7)  To acquire or transfer tangible or intangible utility property through sale, merger, consolidation, lease or transfer of stock.

   (8)  To acquire 5% or more of the voting stock of another corporation.

   (9)  To secure exemption under section 619 of the Pennsylvania Municipalities Planning Code (53 P. S. §  10619).

   (10)  To construct, alter or abandon, in whole or in part, or to change the status of a rail utility agency station or team track.

Authority

   The provisions of this §  5.14 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.14 adopted December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended February 13, 1998, effective February 14, 1998, 28 Pa.B. 801; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (281569) to (281570).

Cross References

   This section cited in 52 Pa. Code §  5.74 (relating to filing of petitions to intervene); 52 Pa. Code §  54.35 (relating to publication of notice of filing); 52 Pa. Code §  54.36 (relating to protests to applications); 52 Pa. Code §  62.107 (relating to publication of notice of filing); 52 Pa. Code §  62.108 (relating to protests to applications); 52 Pa. Code §  63.324 (relating to commission approval of a general rule transaction subject to 66 Pa.C.S. § §  1102(a)(3) and 1103); and 52 Pa. Code §  63.325 (relating to commission approval of a pro forma transaction subject to 66 Pa.C.S. § §  1102(a)(3) and 1103).

FORMAL COMPLAINTS


§ 5.21. Formal complaints generally.

 (a)  A person complaining of an act done or omitted to be done by a person subject to the jurisdiction of the Commission, in violation, or claimed violation of a statute which the Commission has jurisdiction to administer, or of a regulation or order of the Commission, may file a formal complaint with the Commission.

 (b)  If the complaint relates to a provision in a tariff, regulation, report or other similar document on file with the Commission as a matter of public record, the document should be identified.

 (c)  A copy of the complaint will be served by the Commission, by certified mail, upon the respondent. If the complaint proposes to change an existing or proposed tariff rate of a fixed public utility subject to the jurisdiction of the Commission, a copy of the complaint will be served by the Commission on the Office of Trial Staff, Office of Consumer Advocate and Office of Small Business Advocate.

 (d)  The filing of a formal compliant entitles the complainant to a formal hearing before the Commission except that the Commission may dismiss any complaint without a hearing if, in its opinion, a hearing is not necessary in the public interest. Motions may be filed in accordance with § §  5.101 and 5.102 (referring to preliminary objections; and motions for summary judgment and judgment on the pleadings).

 (e)  With respect to complaints filed against the Commission, no answer need be filed. The issues in the proceeding will be determined by prehearing conference memoranda or as specified by the presiding officer.

 (f)  Subsections (a)—(e) supersede 1 Pa. Code §  35.9 (relating to formal complaints generally).

Authority

   The provisions of this §  5.21 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.21 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414. Immediately preceding text appears at serial pages (215940) and (222431).

Notes of Decisions

   Hearings

   The Pennsylvania Public Utility Commission’s decision to dismiss a complaint or protest regarding an application for certificate of public convenience, without conducting a hearing, will be reversed by Commonwealth Court only if there was an abuse of discretion. Chester Water Authority v. Pennsylvania Public Utility, 822 A.2d 146 (Pa. Cmwlth. 2003); appeal granted 854 A.2d 968 (Pa. 2004); order reversed 868 A.2d 384 (Pa. 2005). Where issues of material fact are raised, however, a hearing is required to protect due process concerns. Id. at 152.

   Standing

   Gas marketing company had standing to file a formal complaint against utility on behalf of its 150 customers who were also customers of the utility, alleging that the utility’s proposed MSSS rate would adversely affect the customers’ operating costs and would permit impermissible discrimination against some of those customers in violation of section 1304 of the Public Utility Code. Interstate Gas Marketing, Inc. v. Pennsylvania Public Utility Commission, 679 A.2d 1349 (Pa. Cmwlth. 1996); reargument denied (1996).

Cross References

   This section cited in 52 Pa. Code §  5.22 (relating to content of formal complaint); 52 Pa. Code §  30.52 (relating to commencement of complaints); 52 Pa. Code §  62.111 (relating to bonds or other security); 52 Pa. Code §  62.142 (relating to standards of conduct); and 52 Pa. Code §  63.144 (relating to remedies).

§ 5.22. Content of formal complaint.

 (a)  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.

   (7)  Except for a document referenced within §  5.21(b) (relating to formal complaints generally), 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 §  1.36 (relating to verification) shall be attached to the formal complaint.

 (c)  A complaint brought by a public utility or other person licensed by the Commission regarding the act, a regulation or order of the Commission must be substantially in the form prescribed by subsection (a). The complaint must reference the act, the regulation or order and shall quote the pertinent portions thereof.

 (d)  Subsections (a) and (c) supersede 1 Pa. Code §  35.10 (relating to form and content of formal complaints).

Authority

   The provisions of this §  5.22 amended under the Public Utility Code, 66 Pa.C.S. § §  309—311, 315, 331—335, 501, 504—506, 701—703, 1101—1103, 1301 and 1501.

Source

   The provisions of this §  5.22 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (318334) and (225643).

Notes of Decisions

   Pleadings

   The fact that a letter contained all information required by this section was not enough to make it a ‘‘formal complaint.’’ It must contain an affidavit, and notify the Pennsylvania Public Utility Commission that it was intended to be a formal complaint. Schellhammer v. Pennsylvania Public Utility Commission, 629 A.2d 189 (Pa. Cmwlth. 1993).

Cross References

   This section cited in 52 Pa. Code §  3.111 (relating to form and content of informal complaints); 52 Pa. Code §  5.31 (relating to staff-iniated complaints); 52 Pa. Code §  30.52 (relating to commencement of complaints); 52 Pa. Code §  56.173 (relating to formal complaint procedures other than appeals from mediation decisions of the Bureau of Consumer Services); 52 Pa. Code §  62.111 (relating to bonds or other security); and 52 Pa. Code §  64.163 (relating to formal complaint procedures).

§ 5.23. 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).

Source

   The provisions of this §  5.23 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819.

Cross References

   This section cited in 52 Pa. Code §  30.52 (relating to commencement of complaints).

§ 5.24. Satisfaction of formal complaints.

 (a)  If the respondent satisfies a formal complaint either before or after a hearing, the complainant shall file with the Commission a certified statement to that effect. The certified statement must set forth that the complaint is satisfied and that the complaint docket should be marked closed. The presiding officer is not required to render a decision upon submission of the certified statement concerning the satisfaction of a complaint unless the parties request one for good cause.

 (b)  In lieu of the certified statement required by subsection (a), the respondent may provide a certified writing to the Commission that it has addressed the complaint and at least one of the following:

   (1)  That the complainant has acknowledged satisfaction to the respondent.

   (2)  That the complainant has acknowledged to the respondent that the complainant no longer wishes to pursue the complaint.

 (c)  In the case of certification of satisfaction under subsection (b), the respondent shall simultaneously serve a copy of the respondent’s certified writing, including a statement informing the complainant of the complainant’s right to object in writing within 10 days, upon the complainant. Unless the complainant objects, in writing, to the certification within 10 days of its filing, the complaint docket will be marked closed.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code §  35.41 (relating to satisfaction of complaints).

Authority

   The provisions of this §  5.24 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.24 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225643).

Cross References

   This section cited in 52 Pa. Code §  30.52 (relating to commencement of complaints).

§ 5.31. Staff-initiated complaints.

 (a)  A Commission bureau may commence a proceeding pursuant to statutory or regulatory authority or pursuant to delegation by the Commission by filing a complaint in accordance with §  5.22 (relating to content of formal complaint). The complaint will contain a statement of the particular matter about which the bureau is complaining or inquiring, and the complaint will require that the respondent named file a written answer in the form required by §  5.61 (relating to answers to complaints, petitions and motions).

 (b)  A Commission bureau filing a complaint under this section involving a fixed utility or licensee will provide a copy to the Office of Trial Staff, the Chief Counsel, the Office of Consumer Advocate, and the Office of Small Business Advocate.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  35.14 (relating to orders to show cause).

Authority

   The provisions of this §  5.31 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.31 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225644).

§ 5.32. Complaints in rate proceedings.

 (a)  Prior to suspension. A person may file a complaint against a general rate increase within the meaning of section 1308(d) of the act (relating to voluntary changes in rates) within the time period specified in the notice provided to customers of the tariff filing.

 (b)  After suspension. A person filing a complaint during the suspension of a proposed general rate increase shall take the record of the suspended rate proceeding as it stands at the time of the complaint’s filing.

Authority

   The provisions of this §  5.32 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.32 adopted April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097.

PETITIONS


§ 5.41. Petitions generally.

 (a)  General requirements. Petitions for relief under the act or other statute that the Commission administers, must be in writing, state clearly and concisely the interest of the petitioner in the subject matter, the facts and law relied upon, and the relief sought. Petitions for relief must comply with §  1.51 (relating to Instructions for service, notice, and protest).

 (b)  Service. A copy of the petition shall be served on all persons directly affected and on other parties whom petitioner believes will be affected by the petition. Copies of the petition shall be served upon the Office of Trial Staff, the Office of Consumer Advocate and the Office of Small Business Advocate. Service shall be evidenced with a certificate of service filed with the petition.

 (c)  Copies. Copies shall also be served as directed by the Commission.

 (d)  Subsection (a) supersedes 1 Pa. Code §  35.17 (relating to petitions generally).

Authority

   The provisions of this §  5.41 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.41 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (225644) and (287757).

Notes of Decisions

   Letter from corporate officer requesting reinstatement of Certificate of Public Convenience was properly considered although not in formal compliance with regulations. P-I-E Nationwide, Inc. v. Pennsylvania Public Utility Commission, 567 A.2d 1124 (Pa. Cmwlth. 1989).

Cross References

   This section cited in 52 Pa. Code §  3.2 (relating to petitions for issuance of emergency orders); 52 Pa. Code §  3.4 (relating to hearings following issuance of emergency); 52 Pa. Code §  3.6 (relating to petitions for interim emergency orders); 52 Pa. Code §  3.601 (relating to general); 52 Pa. Code §  5.211 (relating to notice of rulemaking proceedings); 52 Pa. Code §  5.232 (relating to settlement petitions and stipulations of fact); and 52 Pa. Code §  57.86 (relating to exceptions).

§ 5.42. 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 Office of Trial Staff, Office of Consumer Advocate, Office of Small Business Advocate, 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 Commission direction.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code §  35.19 (relating to petitions for declaratory orders).

Authority

   The provisions of this §  5.42 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.42 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (287757) to (287758).

Cross References

   This section cited in 52 Pa. Code §  3.4 (relating to hearings following issuance of emergency); 52 Pa. Code §  3.601 (relating to general); and 52 Pa. Code §  5.41 (relating to petitions generally).

Notes of Decisions

   Hearings

   Where petitioner’s only attempt to seek evidentiary hearing was a letter dated 2 days before the Commission’s order, the Commission did not err in making a decision without hearing, as it was petitioner’s obligation to state in its petition all facts necessary to support its petition. Professional Paramedical Services, Inc. v. Pennsylvania Public Utility Commission, 525 A.2d 1274 (Pa. Cmwlth. 1987); appeal denied 538 A.2d 879 (Pa. 1988).

§ 5.43. Petitions for issuance, amendment, repeal, or waiver of Commission regulations.

 (a)  A petition to the Commission for the issuance, amendment, waiver or repeal of a regulation must 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. The petition must set forth the purpose of, and the facts claimed to constitute the grounds requiring the regulation, amendment, waiver or repeal. Petitions for the issuance or amendment of a regulation shall incorporate the proposed regulation or amendment.

 (b)  A copy of the petition shall be served on all persons directly affected and on other parties who petitioner believes will be affected by the petition. Copies of the petition shall be served on the Office of Trial Staff, the Office of Consumer Advocate and the Office of Small Business Advocate. Service shall be evidenced with a certificate of service filed with the petition.

 (c)  Copies shall also be served in compliance with Commission direction.

 (d)  Subsection (a) is identical to 1 Pa. Code §  35.18 (relating to petitions for issuance, amendment, waiver or repeal of regulations).

Authority

   The provisions of this §  5.43 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.43 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (287758).

Cross References

   This section cited in 52 Pa. Code §  3.4 (relating to hearings following issuance of emergency); 52 Pa. Code §  3.601 (relating to general); 52 Pa. Code §  5.41 (relating to petitions generally); 52 Pa. Code §  57.63 (relating to promotional activities); 52 Pa. Code §  54.184 (relating to default service provider obligations); and 52 Pa. Code §  57.64 (relating to promotional allowances).

§ 5.44. Petitions for reconsideration from actions of the staff.

 (a)  Actions taken by staff, other than a presiding officer, under authority delegated by the Commission, will be deemed to be the final action of the Commission unless reconsideration is sought from the Commission within 20 days after service of notice of the action, unless a different time period is specified in this chapter or in the act.

 (b)  An action taken by staff under delegated authority will note the parties’ right to seek reconsideration of the action under this section.

 (c)  Petitions for reconsideration from the actions of the staff will be addressed by the Commission at public meeting.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code §  35.20 (relating to appeals from actions of the staff).

Authority

   The provisions of this §  5.44 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.44 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097; amended September 20, 2013, effective September 21, 2013, 43 Pa.B. 5593. Immediately preceding text appears at serial page (337308).

Cross References

   This section cited in 52 Pa. Code §  3.4 (relating to hearings following issuance of emergency); 52 Pa. Code §  3.112 (relating to action on informal complaints); 52 Pa. Code §  3.501 (relating to certificate of public convenience as a water supplier or wastewater collection, treatment or disposal provider); 52 Pa. Code §  3.601 (relating to general); 52 Pa. Code §  5.41 (relating to petitions generally); 52 Pa. Code §  57.198 (relating to inspection and maintenance standards); 52 Pa. Code §  62.111 (relating to bonds or other security); 52 Pa. Code §  63.324 (relating to commission approval of a general rule transaction subject to 66 Pa.C.S. § §  1102(a)(3) and 1103); 52 Pa. Code §  63.325 (relating to commission approval of a pro forma transaction subject to 66 Pa.C.S. § §  1102(a)(3) and 1103); 52 Pa. Code §  75.17 (relating to process for obtaining Commission approval of customer-generator status); and 52 Pa. Code §  75.64 (relating to alternative energy credit program administrator).

PROTESTS


§ 5.51. Protest to an application.

 (a)  A person objecting to the approval of an application filed with the Commission may file a protest to the application.

 (b)  Protests to motor carrier property applications are not permitted. See §  3.381(c) (relating to applications for transportation of property, household goods in use and persons).

 (c)  Subsection (a) supersedes 1 Pa. Code §  35.23 (relating to protest generally).

Authority

   The provisions of this §  5.51 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.51 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended November 20, 1998, effective November 21, 1998, 28 Pa.B. 5769; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (281571).

§ 5.52. Content of a protest to an application.

 (a)  Form. A protest to an application must:

   (1)  Set out clearly and concisely the facts from which the alleged interest or right of the protestant can be determined.

   (2)  State the grounds of the protest .

   (3)  Set forth the facts establishing the protestant’s standing to protest.

 (b)  Motor carrier. Protests in motor carrier cases must conform with §  3.381(c)(1) (relating to applications for transportation of property and persons).

 (c)  Filing and service. A protest shall be filed with the Secretary and served upon the applicant or the applicant’s attorney, if any.

Authority

   The provisions of this §  5.52 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.52 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (281571).

Cross References

   This section cited in 52 Pa. Code §  62.108 (relating to protests to applications).

§ 5.53. Time of filing.

 A protest shall be filed within the time specified in the published notice of the application. If no protest time is specified, the protest shall be filed within 60 days of publication of the notice.

Authority

   The provisions of this §  5.53 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.53 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (281571) to (281572).

Cross References

   This section cited in 52 Pa. Code §  5.14 (relating to applications requiring notice); and 52 Pa. Code §  5.74 (relating to filing of petitions to intervene).

§ 5.54. [Reserved].


Source

   The provisions of this §  5.54 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; reserved April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (281572).

ANSWERS


§ 5.61. Answers to complaints, petitions, motions and preliminary objections.

 (a)  Time for filing. Unless a different time is prescribed by statute, the Commission, or the presiding officer, answers to complaints and petitions shall be filed with the Commission within 20 days after the date of service.

   (1)  Answers to motions shall be filed within the 20 days provided by § §  5.102 and 5.103 (relating to motions for summary judgment and judgment on the pleadings; and motions).

   (2)  Answers to preliminary objections shall be filed within the 10 days provided by §  5.101 (relating to preliminary objections).

 (b)  Form of answers to complaints. The answer must be in writing and:

   (1)  Set forth in paragraphs numbered to correspond with the complaint.

   (2)  Advise the parties and the Commission as to the nature of the defense.

   (3)  Admit or deny specifically all material allegations of the complaint.

   (4)  State concisely the facts and matters of law relied upon.

   (5)  Include a copy of a document, or the material part of a document when relied upon in the answer. If the writing or a copy is not available, the answer must set forth that the document is not available and the reason, and set forth the substance of the document.

 (c)  Failure to file an answer to a complaint. 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)  Answers to complaints in rate proceedings. For complaints which are docketed with Commission-instituted rate proceedings, an answer may be filed within 10 days of date of service. However, an answer is not required, except as may be directed by the Commission or the presiding officer.

 (e)  Form of answers to petitions. The answer must be in writing and:

   (1)  Advise the parties and the Commission of the parties’ position on the issues raised in the petition.

   (2)  State the parties’ standing to participate in any Commission proceeding resulting from the petition.

   (3)  State concisely the facts and matters of law relied upon.

   (4)  Include a copy of a document, or the material part of a document when relied upon in the answer. If the writing or a copy is not available, the answer must set forth that the document is not available and the reason, and set forth the substance of the document.

 (f)  Supersession. Subsections (b)—(e) supersede 1 Pa. Code §  35.35 (relating to answers to complaints and petitions).

Authority

   The provisions of this §  5.61 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.61 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (281572) and (225649).

Cross References

   This section cited in 52 Pa. Code §  3.6 (relating to petitions for interim emergency orders); 52 Pa. Code §  3.391 (relating to arbitration of claims for billing and collecting services); 52 Pa. Code §  5.31 (relating to staff-initiated complaints); 52 Pa. Code §  5.101 (relating to preliminary objections); 52 Pa. Code §  5.101 (relating to preliminary objections); 52 Pa. Code §  56.173 (relating to formal complaint procedures other than appeals from mediation decisions of the Bureau of Consumer Services); and 52 Pa. Code §  64.163 (relating to formal complaint procedures).

§ 5.62. Answers seeking affirmative relief or raising new matter.

 (a)  Answers seeking affirmative relief. In its answer, a respondent may seek relief 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.

Authority

   The provisions of this §  5.62 amended under the Public Utility Code, 66 Pa.C.S. § §  309—311, 315, 331—335, 501, 504—506, 701—703, 1101—1103, 1301 and 1501.

Source

   The provisions of this §  5.62 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225649).

§ 5.63. Replies to answers seeking affirmative relief or new matter.

 (a)  Unless otherwise ordered by the Commission, replies to answers seeking affirmative relief or to new matter shall be filed with the Commission 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).

Authority

   The provisions of this §  5.63 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.63 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225649).

§ 5.64. [Reserved].


Source

   The provisions of this §  5.64 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; reserved January 24, 1997, effective January 25, 1997, 27 Pa.B. 414. Immediately preceding text appears at serial pages (215947) to (215948).

§ 5.65. Answers to amendments of pleadings.

 (a)  Except as provided under §  5.101 (referring to preliminary objections), an answer to an amendment, modification or supplement to an application, complaint, petition or other pleading set forth under §  5.91 (referring to amendments of pleadings generally) shall be filed with the Commission within 20 days after the date of service of the amendment, modification or supplement, unless for cause the Commission 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).

Authority

   The provisions of this §  5.65 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.65 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225650).

§ 5.66. 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).

Authority

   The provisions of this §  5.66 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.66 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225650).

Cross References

   This section cited in 52 Pa. Code §  5.75 (relating to notice, service and action on petitions to intervene).

INTERVENTION


§ 5.71. 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 presiding officer or the Commission upon grant of a petition to intervene.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.27 (relating to initiation of intervention).

Authority

   The provisions of this §  5.71 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.71 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414. Immediately preceding text appears at serial page (215949).

Cross References

   This section cited in 52 Pa. Code §  1.8 (relating to definitions); 52 Pa. Code §  3.502 (relating to protests to applications for certificate of public convenience as a water supplier or a wastewater collection, treatment and disposal provider); and 52 Pa. Code §  5.41 (relating to petitions generally).

§ 5.72. Eligibility to intervene.

 (a)  Persons. A petition to intervene may be filed by a person claiming a right to intervene or an interest of such 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 Commission in the proceeding.

   (3)  Another interest of such nature 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)(1)—(3).

 (c)  Supersession. Subsections (a) and (b) supersede 1 Pa. Code §  35.28 (relating to eligibility to intervene).

Authority

   The provisions of this §  5.72 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 523, 1301, 1501 and 1504.

Source

   The provisions of this §  5.72 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended September 20, 2013, effective September 21, 2013, 43 Pa.B. 5593. Immediately preceding text appears at serial page (319146).

Cross References

   This section cited in 52 Pa. Code §  1.8 (relating to definitions); and 52 Pa. Code §  5.41 (relating to petitions generally).

§ 5.73. 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).

Authority

   The provisions of this §  5.73 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.73 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (225651) to (225652).

Cross References

   This section cited in 52 Pa. Code §  1.8 (relating to definitions); and 52 Pa. Code §  5.41 (relating to petitions generally).

§ 5.74. Filing of petitions to intervene.

 (a)  Petitions to intervene may be filed following the filing of an application, petition, complaint or other document seeking Commission action.

 (b)  Petitions to intervene shall be filed:

   (1)  No later than the date fixed for the filing of responsive pleadings in an order or notice with respect to the proceedings but not less than the notice and protest period established under § §  5.14 and 5.53 (relating to applications requiring notice; and time of filing) absent good cause shown.

   (2)  No later than the date fixed for filing protests as published in the Pennsylvania Bulletin except for good cause shown.

   (3)  In accordance with §  5.53 if no deadline is set in an order or notice with respect to the proceedings.

   (4)  A statutory advocate may exercise a right of participation or file a notice of intervention consistent with law at any time in a proceeding. A statutory advocate exercising a right of participation or filing a notice of intervention following expiration of any protest or intervention period shall take the record as developed unless determined otherwise in exceptional circumstances for good cause shown.

 (c)  Except with regard to statutory advocates under subsection (b)(4), intervention will not be permitted once an evidentiary hearing has concluded absent extraordinary circumstances.

 (d)  The Commission or presiding officer may, when the circumstances warrant, permit the waiver of the requirements of §  5.409 (relating to copies and form of documentary evidence) with respect to copies of exhibits for the intervenor.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  35.30 (relating to filing of petitions to intervene).

Authority

   The provisions of this §  5.74 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.74 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225652).

Cross References

   This section cited in 52 Pa. Code §  1.8 (relating to definitions); 52 Pa. Code §  5.41 (relating to petitions generally); and 52 Pa. Code §  5.75 (relating to notice, service and action on petitions to intervene).

§ 5.75. Notice, service and action on petitions to intervene.

 (a)  Notice and service. Petitions to intervene, when tendered to the Commission for filing, must show service thereof upon all parties to the proceeding in conformity with §  1.54 (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 §  5.66 (relating to answers to petitions to intervene), the Commission 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 Commission that the intervenor has a direct interest in the proceeding or might be aggrieved by an order of the Commission in the proceeding. Intervenors are granted no rights which survive discontinuance of a case.

 (d)  Actions on petitions filed after a hearing has commenced. Except with regard to statutory advocates under §  5.74(b)(4) (relating to filing of petitions to intervene), petitions to intervene may be filed or will be acted upon during a hearing unless prohibited by the Commission or presiding officer after opportunity for all parties to object.

 (e)  Supersession. Subsections (a)—(d) supersede 1 Pa. Code §  35.31 (relating to notice and action on petitions to intervene).

Authority

   The provisions of this §  5.75 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.75 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (225652) to (225653).

Cross References

   This section cited in 52 Pa. Code §  1.8 (relating to definitions); 52 Pa. Code §  5.41 (relating to petitions generally); and 52 Pa. Code §  5.243 (relating to presentation by participants).

§ 5.76. Limitation of participation in hearings.

 (a)  Where there are two or more intervenors having substantially like interests and positions, the Commission or presiding officer may, in order 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) is identical to 1 Pa. Code §  35.32 (relating to limitation of participation in hearings).

Source

   The provisions of this §  5.76 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819.

Cross References

   This section cited in 52 Pa. Code §  1.8 (relating to definitions); 52 Pa. Code §  5.41 (relating to petitions generally); and 52 Pa. Code §  5.243 (relating to presentation by participants).

CONSOLIDATION


§ 5.81. Consolidation.

 (a)  The Commission or presiding officer, with or without motion, may order proceedings involving a common question of law or fact to be consolidated. The Commission or presiding officer may make orders concerning the conduct of the proceeding as may avoid unnecessary costs or delay.

 (b)  Subsection (a) is identical to 1 Pa. Code § §  35.45 and 35.122 (relating to consolidation; and consolidation of formal proceedings).

Source

   The provisions of this §  5.81 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819.

AMENDMENT AND WITHDRAWAL OF PLEADINGS


§ 5.91. 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 of this subchapter relating to the pleading amended.

 (b)  Amendments in response to preliminary objections. A party may file an amended pleading as of course within 20 days after service of a copy of a preliminary objection filed under §  5.101 (referring to preliminary objections). If a party has filed an amended pleading as of course, the preliminary objections to the original pleading shall be deemed moot.

 (c)  Limitation. Except as otherwise provided in this subchapter, no amendment to a pleading may be filed within 5 days preceding the commencement of or during a hearing unless directed or permitted by the Commission or the presiding officer after opportunity for all parties to be heard thereon.

 (d)  Exception in rate cases. This section does not apply to an increase in the aggregate amount of a general rate increase request.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  35.48 (relating to amendments of pleadings generally).

Authority

   The provisions of this §  5.91 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.91 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225654).

Cross References

   This section cited in 52 Pa. Code §  5.65 (relating to answers to amendments of pleadings); and 52 Pa. Code §  5.101 (relating to preliminary objections).

§ 5.92. Amendments to conform to the evidence.

 (a)  Amendment by consent. When the parties introduce issues at a hearing not raised by the pleadings whether by express or implied consent of the parties, the issues shall be treated in all respects as if they had been raised in the pleadings.

 (b)  Amendments by motion. Amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise new issues may be made upon motion of a party at any time during the hearing as set forth in §  5.102 (relating to motions for summary judgment and judgment on the pleadings).

 (c)  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 Commission 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 or the rights of a party.

 (d)  Continuance following objection. A continuance may be granted by the Commission or the presiding officer under §  1.15 (relating to extensions of time and continuances) when necessary to allow the objecting party to address new issues and evidence.

 (e)  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.

 (f)  Supersession. Subsections (a)—(e) supersede 1 Pa. Code §  35.49 (relating to amendments to conform to the evidence).

Authority

   The provisions of this §  5.92 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.92 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (225654) to (225655).

§ 5.93. Directed amendments.

 (a)  The Commission 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 by way of amendment more fully or in more detail. The amendment shall be reduced to writing and filed within the time fixed by the Commission or the presiding officer.

 (b)  Subsection (a) is identical to 1 Pa. Code §  35.50 (relating to directed amendments).

Authority

   The provisions of this §  5.93 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.93 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (225655).

§ 5.94. Withdrawal of pleadings in a contested proceeding.

 (a)  Except as provided in subsection (b), a party desiring to withdraw a pleading in a contested proceeding may file a petition for leave to withdraw the appropriate document with the Commission 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 10 days of service. After considering the petition, an objection thereto and the public interest, the presiding officer or the Commission will determine whether the withdrawal will be permitted.

 (b)  A protest to an application may be withdrawn by filing a notice of withdrawal directed to the Commission or the presiding officer. The notice must state that the protest is withdrawn and provide the reasons for the withdrawal.

 (c)  Withdrawal or termination of an uncontested proceeding is governed by §  1.82 (relating to withdrawal or termination).

 (d)  Subsections (a)—(c) supersede 1 Pa. Code §  35.51 (relating to withdrawal of pleadings).

Authority

   The provisions of this §  5.94 amended under the Public Utility Code, 66 Pa.C.S. § §  309—311, 315, 331—335, 501, 504—506, 523, 701—703, 1101—1103, 1301, 1501 and 1504.

Source

   The provisions of this §  5.94 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097; amended September 20, 2013, effective September 21, 2013, 43 Pa.B. 5593. Immediately preceding text appears at serial page (319151).

Cross References

   This section cited in 52 Pa. Code §  1.82 (relating to withdrawal or termination); 52 Pa. Code §  121.4 (relating to filing and Commission review procedures); and 52 Pa. Code §  121.7 (relating to periodic review of an LTIIP).

PRELIMINARY OBJECTIONS


§ 5.101. Preliminary objections.

 (a)  Grounds. Preliminary objections are available to parties and may be filed in response to a pleading except motions and prior preliminary objections. Preliminary objections must be accompanied by a notice to plead, must state specifically the legal and factual grounds relied upon and be limited to the following:

   (1)  Lack of Commission jurisdiction or improper service of the pleading initiating the proceeding.

   (2)  Failure of a pleading to conform to this chapter or the inclusion of scandalous or impertinent matter.

   (3)  Insufficient specificity of a pleading.

   (4)  Legal insufficiency of a pleading.

   (5)  Lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action.

   (6)  Pendency of a prior proceeding or agreement for alternative dispute resolution.

   (7)  Standing of a party to participate in the proceeding.

 (b)  Notice to plead. A preliminary objection must contain a notice to plead which states that an answer to the objection shall be filed within 10 days of the date of service of the objection.

 (c)  General rule. Preliminary objections shall be raised at one time. The preliminary objections must be set forth in numbered paragraphs, state with specificity the legal and factual grounds relied upon, and may be inconsistent. Two or more preliminary objections may be raised in one pleading.

 (d)  Time for filing and form. Preliminary objections shall be filed as a separate document and within the same 20 days provided for in §  5.61 (relating to answers to complaints, petitions, motions and preliminary objections). Except as provided for in subsection (e), the filing of preliminary objections may not eliminate the requirement to file an answer to the complaint or other initiating pleading.

 (e)  Preliminary objection regarding insufficient specificity.

   (1)  If a preliminary objection regarding insufficient specificity in a pleading is filed, an answer is not required until further directed by the presiding officer or the Commission.

   (2)  When an amended pleading is filed in response to a preliminary objection alleging insufficient specificity in a pleading, the preliminary motion will be deemed to be moot in accordance with §  5.91 (relating to amendment of pleadings generally).

 (f)  Answer to a preliminary objection.

   (1)  Time for filing. An answer to a preliminary objection may be filed within 10 days of date of service.

   (2)  Form. The answer must be in writing and in numbered paragraphs to correspond with the preliminary objection, and address the legal and factual grounds relied on in the preliminary objection.

 (g)  Decision by presiding officer. A preliminary objection will be decided within 30 days of the assignment of the preliminary objection to the presiding officer.

 (h)  Amended pleading. If a preliminary objection is granted, the party who submitted the stricken pleading has the right to file an amended pleading within 10 days of service of the order.

 (i)  Supersession. Subsections (a)—(h) supersede 1 Pa. Code § §  35.54 and 35.55 (relating to motions as to complaint; and motions as to answer).

Authority

   The provisions of this §  5.101 amended under the Public Utility Code, 66 Pa.C.S. § §  309—311, 315, 331—335, 501, 504—506, 523, 701—703, 1101—1103, 1301, 1501 and 1504.

Source

   The provisions of this §  5.101 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097; amended September 20, 2013, effective September 21, 2013, 43 Pa.B. 5593. Immediately preceding text appears at serial pages (319151) to (319153).

Cross References

   This section cited in 52 Pa. Code §  3.381 (relating to applications for transportation of property, household goods in use and persons); 52 Pa. Code §  3.502 (relating to protests to application for certificate of public convenience as a water supplier or wastewater collection, treatment and disposal supplier); 52 Pa. Code §  5.1 (relating to pleadings allowed); and 52 Pa. Code §  5.21 (relating to formal complaints generally); 52 Pa. Code §  5.61 (relating to answers to complaints, petitions, motions and preliminary objections); 52 Pa. Code §  5.65 (relating to answers to amendments of pleadings); and 52 Pa. Code §  5.91 (relating to amendments of pleadings generally).

§ 5.102. Motions for summary judgment and judgment on the pleadings.

 (a)  Generally. After the pleadings are closed, but within a time so that the hearing is not delayed, a party may move for judgment on the pleadings or summary judgment. A motion must contain a notice which states that an answer or other responsive pleading shall be filed within 20 days of service of the motion.

 (b)  Answers. An answer to a motion for judgment on the pleadings or summary judgment, including an opposing affidavit or verification to a motion for summary judgment, may be filed within 20 days of the date of service of the motion. The answer to a motion for summary judgment may be supplemented by depositions, answers to interrogatories or further affidavits and admissions.

 (c)  Motion for summary judgment. A motion for summary judgment must be based on the pleadings and depositions, answers to interrogatories, admissions and supporting affidavits. Documents not already filed with the Commission shall be filed with the motion.

 (d)  Decisions on motions.

   (1)  Standard for grant or denial on all counts. The presiding officer will grant or deny a motion for judgment on the pleadings or a motion for summary judgment, as appropriate. The judgment sought will be rendered if the applicable pleadings, depositions, answers to interrogatories and admissions, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.

   (2)  Standard for grant or denial in part. The presiding officer may grant a partial summary judgment if the pleadings, depositions, answers to interrogatories and admissions, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law on one or more but not all outstanding issues.

   (3)  Form of decision. The presiding officer will grant, in whole or in part, the motion in the form of an initial or recommended decision which shall be subject to exceptions as set forth in §  5.533 (relating to exceptions). Denial of a motion will be in the form of a written order.

Authority

   The provisions of this §  5.102 amended under the Public Utility Code, 66 Pa.C.S. § §  309—311, 315, 331—335, 501, 504—506, 701—703, 1101—1103, 1301 and 1501.

Source

   The provisions of this §  5.102 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (225657) to (225658).

Cross References

   This section cited in 52 Pa. Code §  5.21 (relating to formal complaints generally); 52 Pa. Code §  5.61 (relating to answers to complaints, petitions, motions and preliminary objections); and 52 Pa. Code §  5.92 (relating to amendments to conform to the evidence).

§ 5.103. Motions.

 (a)  Scope and content. A request may be made by motion for relief desired, except as may be otherwise expressly provided in this chapter and Chapters 1 and 3 (relating to rules of administrative practice and procedure; and special provisions). A motion must set forth the ruling or relief sought, and state the grounds therefor 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 Commission or the presiding officer.

 (d)  Rulings on motions.

   (1)  The presiding officer is authorized to rule and will rule upon motions:

     (i)   Not formerly acted upon by the Commission prior to the commencement of the hearing where an immediate ruling is essential in order to proceed with the hearing.

     (ii)   Filed or made after the commencement of the hearing and prior to the submission of a decision in the proceeding.

   (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)  Supersession. Subsection (a) is identical to 1 Pa. Code §  35.177 (relating to scope and contents of motions). Subsection (b) is identical to 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).

Authority

   The provisions of this §  5.103 amended under the Public Utility Code, 66 Pa.C.S. § §  309—311, 315, 331—335, 501, 504—506, 701—703, 1101—1103, 1301 and 1501.

Source

   The provisions of this §  5.103 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 414; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (225658) and (241191).

Cross References

   This section cited in 52 Pa. Code §  5.61 (relating to answers to complaints, petitions, motions and preliminary objections); and 52 Pa. Code §  5.633 (relating to certification of interlocutory orders).



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