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COMMONWEALTH OF PENNSYLVANIA

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Pennsylvania Code



Subchapter B. HEARINGS


GENERAL

Sec.


5.201.    Notice of proceeding; hearing; waiver of hearing.
5.202.    Scheduling of hearing.
5.203.    Hearing in rate proceedings.

NOTICE OF HEARING


5.211.    Notice of rulemaking proceedings.
5.212.    Notice of nonrulemaking proceedings.

PREHEARING AND OTHER CONFERENCES


5.221.    Conferences to adjust, settle or expedite proceedings.
5.222.    Initiation of prehearing conferences in nonrate proceedings.
5.223.    Authority of presiding officer at conferences.
5.224.    Prehearing conference in rate proceedings.

SETTLEMENT AND STIPULATIONS


5.231.    Offers of settlement.
5.232.    Stipulations and settlement petitions.
5.233.    Refusal to make admissions or stipulate.
5.234.    Presentation and effect of stipulations.
5.235.    Restrictive amendments to applications for motor carrier of passenger authority.

HEARINGS


5.241.    Attendance.
5.242.    Order of procedure.
5.243.    Presentation by participants.
5.244.    [Reserved].
5.245.    Failure to appear, proceed or maintain order in proceedings.

TRANSCRIPT


5.251.    Recording of proceedings.
5.252.    Review of testimony.
5.253.    Transcript corrections.
5.254.    Copies of transcripts.

GENERAL


§ 5.201. 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. The notice must fix a reasonable period of time, but not less than 15 days, within which a person desiring to be heard may file a petition to intervene, a protest, complaint or other appropriate pleading. 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 Commission 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).

Authority

   The provisions of this §  5.201 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.201 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 (241192).

§ 5.202. Scheduling of hearing.

 (a)  The Commission will schedule hearings other than those involving the lawfulness of rates and will maintain a hearing calendar of all proceedings set for hearing.

 (b)  Proceedings pending on the calendar will be heard so far as practicable, in their order of assignment to the calendar at the times and places fixed by the Commission or presiding officer, giving regard to the convenience and necessity of the parties and their attorneys.

 (c)  The Commission or the presiding officer in the exercise of discretion, for cause, may advance or postpone proceedings on the hearing calendar with notice to the parties.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code §  35.102 (relating to hearing calendar).

Authority

   The provisions of this §  5.202 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.202 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 (241192) and (225661).

§ 5.203. Hearing in rate proceedings.

 (a)  Hearing dates in rate proceedings will be fixed by the presiding officer.

 (b)  The presiding officer will be guided by the requirement of section 315 of the act (relating to burden of proof) that rate cases are to be given preference over all other proceedings, and are to be decided as speedily as possible.

 (c)  The presiding officer may continue a scheduled hearing upon his own motion or upon the request of a party for good cause shown. Mere convenience or other engagements of counsel will not ordinarily constitute grounds for continuance.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code § §  35.121 and 35.123 (relating to initiation of hearings; and conduct of hearings).

Authority

   The provisions of this §  5.203 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.203 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 (225661).

NOTICE OF HEARING


§ 5.211. Notice of rulemaking proceedings.

 (a)  Before the adoption of a regulation, the Commission 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 Commission may, upon petition by a person having an interest in the proposed regulations, hold public hearings on the proposed regulations. The petition for hearing shall be in the form set forth in §  5.41 (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 regulations.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code §  35.104 (relating to notice of rulemaking proceedings).

Authority

   The provisions of this §  5.211 amended under the Public Utility Code, 66 Pa.C.S. § §  309—311, 315, 331—335, 501, 701—703 and 1101—1103.

Source

   The provisions of this §  5.211 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451. Immediately preceding text appears at serial pages (95568) to (95569).

§ 5.212. Notice of nonrulemaking proceedings.

 (a)  The presiding officer, the Office of Administrative Law Judge or the Commission is authorized to schedule prehearing conferences and hearings. Parties shall 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 Commission permit.

 (b)  A protestant in a motor carrier case 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 Commission 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).

Authority

   The provisions of this §  5.212 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 §  5.212 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. Immediately preceding text appears at serial page (225662).

PREHEARING AND OTHER CONFERENCES


§ 5.221. Conferences to adjust, settle or expedite proceedings.

 (a)  To provide opportunity for the submission and consideration of facts, arguments, offers of settlement or proposals of adjustment, for settlement of a proceeding, or the issues therein, or consideration of means by which the conduct of the hearing may be facilitated and the disposition of the proceeding expedited, conferences between the parties may be held at any time prior to or during hearings as time, the nature of the proceeding, and the public interest permit.

 (b)  Subsection (a) is identical to 1 Pa. Code §  35.111 (relating to conferences to adjust, settle or expedite proceedings).

Authority

   The provisions of this §  5.221 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.221 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 (225662) to (225663).

Cross References

   This section cited in 52 Pa. Code §  5.224 (relating to prehearing conference in rate proceedings); and 52 Pa. Code §  5.234 (relating to presentation and effect of stipulations).

§ 5.222. Initiation of prehearing conferences in nonrate proceedings.

 (a)  To make possible a more effective use of hearing time in formal proceedings, other than rate proceedings which are governed by §  5.224 (relating to prehearing conference in rate proceedings), to otherwise expedite the orderly conduct and disposition of the proceedings and to serve the ends of justice and the public interest, it is the policy of the Commission to arrange for conferences between parties to the proceedings prior to the commencement of hearings.

 (b)  The Commission, or the presiding officer may direct that a prehearing conference be held, and direct the parties to the proceeding to appear to consider the matters enumerated in subsection (c). Notice of the time and place of the conference shall be given to all parties to the proceeding. The conferences may be conducted telephonically.

 (c)  The following matters shall be considered at prehearing conference:

   (1)  The possibilities for settlement of the proceeding, subject to the approval of the Commission.

   (2)  The amount of hearing time which will be required to dispose of the proceeding and the establishment of a schedule of hearing dates.

   (3)  Arrangements for the submission of direct testimony of witnesses in writing in advance of hearing to the extent practicable, and for the submission in advance of hearing or written requests for information which a party contemplates asking another party to present at hearing.

   (4)  Other matters that may aid in expediting the orderly conduct and disposition of the proceeding and the furtherance of justice, including the following:

     (i)   The simplification of the issues.

     (ii)   The exchange and acceptance of service of exhibits proposed to be offered in evidence.

     (iii)   The obtaining of admissions as to, or stipulations of, facts not remaining in dispute, or the authenticity of documents which might properly shorten the hearing.

     (iv)   The limitation of the number of witnesses.

     (v)   A proposed plan and schedule of discovery which may include specific limitations on the number of written interrogatories and requests for admissions a party may propound on another party.

 (d)  Parties and counsel will be expected to attend the conference fully prepared for a useful discussion of all problems involved in the proceeding, both procedural and substantive, and fully authorized to make commitments with respect thereto.

   (1)  The preparation must include submission of a prehearing memorandum and list:

     (i)   The presently identified issues.

     (ii)   The names and addresses of the witnesses.

     (iii)   The proposed area of testimony of each witness.

   (2)  The preparation may include:

     (i)   Development of a proposed procedural schedule.

     (ii)   Advance study of all relevant materials.

     (iii)   Advance informal communication between the parties, including requests for additional data and information, to the extent it appears feasible and desirable.

 (e)  Failure of a party to attend the conference, after being served with notice of the time and place thereof, without good cause shown, shall constitute a waiver of all objections to the agreements reached and to an order or ruling with respect thereto.

 (f)  Subsections (a)—(c) supersede 1 Pa. Code §  35.112 (relating to conferences to expedite hearings). Subsection (d) is identical to 1 Pa. Code §  35.113 (relating to initiation of conferences).

Authority

   The provisions of this §  5.222 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.222 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 (225663) to (225664).

Cross References

   This section cited in 52 Pa. Code §  5.224 (relating to prehearing conference in rate proceedings); and 52 Pa. Code §  5.234 (relating to presentation and effect of stipulations).

§ 5.223. Authority of presiding officer at conferences.

 (a)  The presiding officer at a conference may dispose of procedural matters which he is authorized to rule upon during the course of the proceeding. When it appears that the proceeding would be substantially expedited by distribution of proposed exhibits and written prepared testimony reasonably in advance of the hearing session, the presiding officer, at his discretion, and with regard for the convenience and necessity of the parties, may direct advance distribution by a prescribed date. The rulings of the presiding officer made at the conference will control the subsequent course of the hearing, unless modified for good cause shown.

 (b)  The presiding officer will have authority to participate in the discussions, to arrange for recording stipulations or agreements reached at conference, to fix the date of initial hearing and the date for additional hearings which may be required to dispose of the proceeding, and otherwise to assist the parties to reach agreement that will expedite the proceeding and serve the ends of justice.

 (c)  The presiding officer may participate in settlement discussions upon agreement of all parties. A different presiding officer or a mediator, if appropriate, will be assigned by the Chief Administrative Law Judge to participate in settlement discussions upon the request of a party.

 (d)  Subsection (a) is identical to 1 Pa. Code §  35.114 (relating to authority of presiding officer at conference) and subsection (b) supplements §  35.114.

Authority

   The provisions of this §  5.223 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.223 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 (255664) to (255665).

Cross References

   This section cited in 52 Pa. Code §  5.224 (relating to prehearing conference in rate proceedings); and 52 Pa. Code §  5.234 (relating to presentation and effect of stipulations).

§ 5.224. Prehearing conference in rate proceedings.

 (a)  In a rate proceeding, the presiding officer may schedule the following:

   (1)  A first prehearing conference to establish a schedule for discovery and tentative hearing dates, as well as the matters in §  5.222 (relating to initiation of prehearing conferences in nonrate proceedings).

   (2)  Other conferences as deemed necessary.

   (3)  A conference held telephonically, upon agreement of the parties.

 (b)  The first prehearing conference shall be held as soon as practicable after the entry of the order of investigation. The parties shall come to the first prehearing conference prepared to discuss the following:

   (1)  A proposed plan and schedule of discovery, which may include specific limitations on the number of written interrogatories and requests for admissions a party may propound on another party.

   (2)  Other proposed orders with respect to discovery, including the establishment of sanctions (in addition to those provided by § §  5.371 and 5.372 (relating to sanctions—general; and sanctions—types)) against any party failing to respond to discovery in a timely manner.

   (3)  Tentative scheduling of evidentiary hearings, close of the record, filing of briefs and other matters deemed appropriate.

 (c)  At the first prehearing conference, parties may submit a written statement addressing the issues in subsection (b) and shall list:

   (1)  The presently identified issues.

   (2)  The names and addresses of the witnesses.

   (3)  The proposed area of testimony of each witness.

 (d)  Following the first prehearing conference, the presiding officer will enter an order establishing a tentative set of hearing dates, establishing a plan and schedule for discovery, determining whether a public input hearing will be held, if that decision has not already been made, and addressing other matters deemed necessary.

 (e)  Further prehearing conferences may be scheduled at the discretion of the presiding officer.

 (f)  The presiding officer, or the Commission will have the authority to amend the requirements of this section either sua sponte or upon motion of a party.

 (g)  The rules applicable to prehearing and other conferences in § §  5.221—5.223 (relating to conferences to adjust, settle or expedite proceedings; initiation of prehearing conferences in nonrate proceedings; and authority of presiding officer at conferences) are applicable to prehearing conferences in rate cases except to the extent they are inconsistent with this section.

Authority

   The provisions of this §  5.224 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 §  5.224 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 (225665) to (225666).

Cross References

   This section cited in 52 Pa. Code §  5.222 (relating to initiation of prehearing conferences in nonrate proceedings); and 52 Pa. Code §  5.234 (relating to presentation and effect of stipulations).

SETTLEMENTS


§ 5.231. Offers of settlement.

 (a)  It is the policy of the Commission to encourage settlements.

 (b)  Nothing contained in this chapter or Chapter 1 or 3 (relating to rules of administrative practice and procedure; and special provisions) preclude a party in a proceeding from submitting, at any time, offers of settlement or proposals of adjustment, or from requesting conferences for that purpose.

 (c)  Parties may request that the presiding officer participate in the settlement conferences or that an additional presiding officer or mediator be designated to participate in the settlement conferences.

 (d)  Offers of settlement, of adjustment, or of procedure to be followed, and proposed stipulations not agreed to by every party, including proposals intended to resolve discovery disputes, will not be admissible in evidence against a counsel or party claiming the privilege.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  35.115 (relating to offers of settlement).

Authority

   The provisions of this §  5.231 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.231 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 (225667).

§ 5.232. Settlement petitions and stipulations of fact.

 (a)  Generally. A settlement petition, which may contain stipulations of fact by all or some of the parties, shall be filed with the Secretary in accordance with §  5.41 (relating to petitions generally).

 (b)  Positions of the parties. A settlement agreement must specifically identify the parties:

   (1)  Supporting the settlement.

   (2)  Opposing the settlement.

   (3)  Taking no position on the settlement.

   (4)  Denied an opportunity to enter into the settlement.

 (c)  Service. A copy of each settlement petition, which may contain stipulations of fact by all or some of the parties, shall be served upon each party to the proceeding, and each party shall have the opportunity to comment on the proposed settlement unless otherwise ordered by the presiding officer.

 (d)  Review of settlement by the presiding officer. The settlement petition will be reviewed by the presiding officer, if one has been assigned. If the presiding officer rules on the petition, the ruling will be made in the form of an initial or recommended decision, subject to §  5.537 (relating to rate case settlements), if approved, or in the form of an order, if disapproved. The presiding officer will determine if the settlement is in the public interest.

 (e)  Waiver of exceptions. The exception period may be waived upon agreement of the parties.

 (f)  Disposition of exceptions. If timely exceptions are filed, they will be considered in a ruling made on the settlement petition.

 (g)  Review of a settlement petition by the Commission. When no presiding officer has been assigned, the Commission will review the settlement. Parties not joining in the settlement may submit objections to the Commission within 20 days of the filing of the petition unless another time period is set by the Commission.

Authority

   The provisions of this §  5.232 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.232 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 (225667) to (225668).

Cross References

   This section cited in 52 Pa. Code §  5.224 (relating to prehearing conference in rate proceedings); and 52 Pa. Code §  5.411 (relating to oral examination).

§ 5.233. Refusal to make admissions or stipulations.

 (a)  Generally. A party may move for sanctions under subsection (b) when the following conditions are satisfied:

   (1)  A party refuses to admit or stipulate to the genuineness of documents or the truth of matters of fact during a conference convened under this chapter and Chapter 1 or 3 (relating to rules of administrative practice and procedure; and special provisions).

   (2)  The party requesting the admissions or stipulations thereafter proves the genuineness of the document or the truth of a matter of fact.

 (b)  Sanctions. The requesting party may apply to the presiding officer for an order requiring the other party to pay the reasonable expenses incurred in making the proof, including reasonable attorney’s fees. The presiding officer will grant an order for sanctions unless the presiding officer finds that there were good reasons for the refusal to admit or stipulate or that the admissions or stipulations sought were of no substantial importance.

 (c)  Appeal. An interlocutory appeal may be taken to the Commission immediately from the order made by a presiding officer under Subchapter C (relating to interlocutory review).

 (d)  Compliance. If a party refuses to comply with the order after it becomes final, the Commission or presiding officer may strike all or part of the pleadings of the party or limit or deny further participation by the party.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  35.116 (relating to refusal to make admissions or stipulate).

Authority

   The provisions of this §  5.233 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.233 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 (225668).

Cross References

   This section cited in 52 Pa. Code §  5.224 (relating to prehearing conference in rate proceedings).

§ 5.234. 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 § §  5.221—5.224 (relating to prehearing and other conferences).

 (c)  The Commission 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 a Commission order disregarding the stipulation of fact.

 (d)  Subsections (a)—(b) supersede 1 Pa. Code §  35.155 (relating to presentation and effect of stipulations). Subsection (c) supplements 1 Pa. Code §  35.155.

Authority

   The provisions of this §  5.234 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.234 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 (263607).

Cross References

   This section cited in 52 Pa. Code §  5.411 (relating to oral examination).

§ 5.235. Restrictive amendments to applications for motor carrier of passenger authority.

 (a)  Parties to motor carrier applications for passenger authority may stipulate as to restrictions or modifications to proposed motor carrier 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 Secretary for insertion into the document folder.

 (b)  Restrictive amendments shall be binding on the parties but not on the Commission if it is determined they are not in the public interest. If a restrictive amendment is not accepted by the Commission, it may remand the matter for appropriate proceedings.

Authority

   The provisions of this §  5.235 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1102, 1103, 1301 and 1501.

Source

   The provisions of this §  5.235 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 February 6, 1998, effective February 7, 1998, 28 Pa.B. 647; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097; amended May 22, 2015, effective May 23, 2015, 45 Pa.B. 2468. Immediately preceding text appears at serial page (319166).

Notes of Decisions

   Restrictive Amendment

   The Pennsylvania Public Utility Commission properly ordered all operating rights of a carrier transferred and rejected a proposed stipulation. The proposed stipulation, in which a carrier agreed to transfer only a portion of its operating rights and to abandon the remainder in exchange for protesters withdrawing their protests to the carrier’s transfer application; was a restrictive amendment contrary to public interest. Yellow Cab Co. of Pittsburgh v. Pennsylvania Public Utility Commission, 618 A.2d 1251 (Pa. Cmwlth. 1992).

HEARINGS


§ 5.241. Attendance.

 (a)  The presiding officer before whom the hearing is held will enter upon the record all parties in attendance.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.124 (relating to appearances).

Authority

   The provisions of this §  5.241 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.241 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 (263608).

§ 5.242. 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)  Intervenors shall follow the party on whose behalf the intervention is made. If the intervention is not in support of an original party, the presiding officer will designate at what stage the intervenor will be heard.

 (c)  In proceedings when the evidence is peculiarly within the knowledge or control of another party, the order of presentation set forth 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 §  5.243(f) (relating to presentation by parties).

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  35.125 (relating to order of procedure).

Authority

   The provisions of this §  5.242 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 §  5.242 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 (263608).

Cross References

   This section cited in 52 Pa. Code §  5.245 (relating to failure to appear, proceed or maintain order in proceedings).

§ 5.243. Presentation by parties.

 (a)  A party, has the right of presentation of evidence, cross-examination, objection, motion and argument subject to the limitations in § §  5.75 and 5.76 (relating to notice, service and action on petitions to intervene; and limitation of participation in hearings). 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 Commission 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 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 Commission 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).

Authority

   The provisions of this §  5.243 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 §  5.243 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 (286037).

Notes of Decisions

   Nature of Proceedings

   Proceedings before the Commission are judicial in nature, and parties are afforded procedural rights similar to litigants. These protections are sufficient to satisfy the first element of the Younger abstention doctrine. National R.R. Passenger Corp. v. Pennsylvania Public Utility Commission, 159 F. Supp. 2d 795 (E.D. Pa. 2001).

Cross References

   This section cited in 52 Pa. Code §  5.242 (relating to order of procedure).

§ 5.244. [Reserved].


Source

   The provisions of this §  5.244 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; reserved December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451. Immediately preceding text appears at serial page (95576).

§ 5.245. Failure to appear, proceed or maintain order in proceedings.

 (a)  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 for further examination.

 (b)  Subsection (a)(1)—(3) 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 §  5.242 (relating to order of procedure), or as has been otherwise stipulated or has been directed by the presiding officer.

 (c)  If the Commission 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 Commission 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.

Authority

   The provisions of this §  5.245 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.245 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 (286038).

TRANSCRIPT


§ 5.251. Recording of proceedings.

 (a)  If required by law, hearings will be stenographically reported by the Commission’s official reporter.

 (b)  Notwithstanding the review provisions of §  5.252 (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 must be made as provided in §  5.253 (relating to transcript corrections).

 (d)  Subsections (a)—(c) supersede 1 Pa. Code §  35.131 (relating to recording of proceedings).

Authority

   The provisions of this §  5.251 amended under the Public Utility Code, 66 Pa.C.S. § §  331, 501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.251 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended March 8, 1991, effective March 9, 1991, 21 Pa.B. 946; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial pages (286038) and (247399).

§ 5.252. 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 Commission.

 (c)  Upon request for review, the Office of Administrative Law Judge will schedule a time and place for the review which shall be open to all parties. The court reporting firm 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.

Authority

   The provisions of this §  5.252 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 §  5.252 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 March 8, 1991, effective March 9, 1991, 21 Pa.B. 946; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097. Immediately preceding text appears at serial page (247399).

Cross References

   This section cited in 52 Pa. Code §  5.251 (relating to recording of proceedings).

§ 5.253. 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 Commission.

   (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).

Authority

   The provisions of this §  5.253 amended under the Public Utility Code, 66 Pa.C.S. § §  331, 501, 504—506, 1301 and 1501.

Source

   The provisions of this §  5.253 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819; amended March 8, 1991, effective March 9, 1991, 21 Pa.B. 946; 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 (247399) to (247400).

Cross References

   This section cited in 52 Pa. Code §  5.251 (relating to recording of proceedings); and 52 Pa. Code §  5.431 (relating to close of the record).

§ 5.254. 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).

Authority

   The provisions of this §  5.254 amended under the Public Utility Code, 66 Pa.C.S. § §  331 and 501.

Source

   The provisions of this §  5.254 adopted March 8, 1991, effective March 9, 1991, 21 Pa.B. 946.

Notes of Decisions

   Reproduction Fee

   The reproduction policy articulated in this section was reasonable as applied to a rate case litigant seeking a transcript, and the litigant was not entitled to be provided copies of transcripts of testimony in the case at the actual cost of reproduction rather than the rate charged by a court reporting firm with which the Pennsylvania Public Utility Commission had contracted to record and transcribe such testimony. Sierra Club v. Pennsylvania Public Utility Commission, 702 A.2d 1131 (Pa. Cmwlth. 1997).



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