Subchapter E. EVIDENCE AND WITNESSES

§ 5.401. Admissibility of evidence.

 (a)  Relevant and material evidence is admissible subject to objections on other grounds.

 (b)  Evidence will be excluded if:

   (1)  It is repetitious or cumulative.

   (2)  Its probative value is outweighed by:

     (i)   The danger of unfair prejudice.

     (ii)   Confusion of the issues.

     (iii)   Considerations of undue delay or waste of time.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  35.161 (relating to form and admissibility of evidence).

   The provisions of this §  5.401 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

 (a)  A party shall move the admission of evidence into the record upon presentation of the sponsoring witness, and after opportunity for other parties to examine the witness.

 (b)  For an exhibit to be received into evidence, it shall be marked for identification and moved into evidence.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  35.162 (relating to reception and ruling on evidence).

   The provisions of this §  5.402 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

   The provisions of this §  5.402 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 (225703).

 (a)  The presiding officer shall have all necessary authority to control the receipt of evidence, including the following:

   (1)  Ruling on the admissibility of evidence.

   (2)  Confining the evidence to the issues in the proceeding and impose, where appropriate:

     (i)   Limitations on the number of witnesses to be heard.

     (ii)   Limitations of time and scope for direct and crossexaminations.

     (iii)   Limitations on the production of further evidence.

     (iv)   Other necessary limitations.

 (b)  The presiding officer will actively employ these powers to direct and focus the proceedings consistent with due process.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code § §  35.127, 35.162 and 35.163 (relating to limiting number of witnesses; reception and ruling on evidence; and designation of relevant portions of documentary evidence).

 (a)  At any stage of the hearing or thereafter the Commission or the presiding officer may call for further admissible evidence upon an issue and require that the evidence be presented by the parties concerned, either at the hearing or at the adjournment thereof.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.128 (relating to additional evidence).

   The provisions of this §  5.404 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

   The provisions of this §  5.404 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 (225704).

 (a)  Pleadings listed in §  5.1 (relating to pleadings allowed) shall, without further action, be considered as part of the record as pleadings.

 (b)  Except as provided in subsection (c) and in the case of a noncontested proceeding, a pleading, or any part thereof may not be considered as evidence of a fact other than that of filing thereof unless offered and received into evidence.

 (c)  A fact admitted by a party in an answer, filed under oath, to a numbered allegation in a pleading may be considered as evidence of the fact without the pleading and answer being offered and received into evidence.

 (d)  Subsections (a) and (b) supersede 1 Pa. Code §  35.125(d) (relating to order of procedure). Subsection (c) supersedes 1 Pa. Code §  35.35 (relating to answers to complaints and petitions).

   The provisions of this §  5.405 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.

 (a)  A report, decision, opinion or other document or part thereof, need not be produced or marked for identification, but may be offered in evidence as a public document by specifying the document or part thereof and where it may be found, if the document is one of the following:

   (1)  A report or other document on file with the Commission.

   (2)  An official report, decision, opinion, published scientific or economic statistical data or similar public document which is issued by a governmental department, agency, committee, commission or similar entity which is shown by the offeror to be reasonably available to the public.

 (b)  Upon the request of a party and at the direction of the presiding officer or the Commission, a party who incorporates by reference a pleading shall provide a copy of the pleading to the party requesting one.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code § §  35.165 and 35.166 (relating to public documents; and prepared expert testimony).

   The provisions of this §  5.406 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

 (a)  When a portion of the record in another proceeding before the Commission is offered in evidence and shown to be relevant and material to the instant proceeding, a true copy of the record shall be presented in the form of an exhibit, together with additional copies as provided in §  5.409 (relating to copies and form of documentary evidence), unless both of the following occur:

   (1)  The party offering the record agrees to supply, within a period of time specified by the Commission or the presiding officer, the copies at his own expense, if any, when so required.

   (2)  The portion is specified with particularity so as to be readily identified, and upon motion is admitted into evidence by reference to the records of the other proceedings.

 (b)  Subsection (a) is identical to 1 Pa. Code §  35.167 (relating to records in other proceedings).

   The provisions of this §  5.407 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

 (a)  Official notice or judicial notice of facts may be taken by the Commission or the presiding officer.

 (b)  When the decision of the Commission or the presiding officer rests on official notice or judicial notice of a material fact not appearing in the evidence in the record, the parties will be so notified.

 (c)  Upon notification that facts are about to be or have been noticed, a party adversely affected shall have the opportunity upon timely request to show that the facts are not properly noticed or that alternative facts should be noticed.

 (d)  The Commission or the presiding officer in its discretion will determine whether written presentations suffice, or whether oral argument, oral evidence or cross-examination is appropriate in the circumstances.

 (e)  The Commission or presiding officer may also give official notice as the term is defined in section 331(g) of the act (relating to powers of commission and administrative law judges).

 (f)  Subsections (a)—(e) supersede 1 Pa. Code §  35.173 (relating to official notice of facts).

   The provisions of this §  5.408 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

 (a)  Except as otherwise provided in this chapter, Chapters 1 and 3 (relating to rules of administrative practice and procedure; and special provisions), when exhibits of a documentary character are offered in evidence, copies shall be furnished to the presiding officer and to the parties present at the hearing, unless the presiding officer otherwise directs. Two copies of each exhibit of documentary character shall be furnished for the use of the Commission unless otherwise directed by the presiding officer.

 (b)  Whenever practicable, all exhibits of a documentary character received in evidence must be on paper of good quality and so prepared as to be plainly legible and durable, whether printed, typewritten or otherwise reproduced, and conform to Chapter 1, Subchapter D (relating to documentary filings) whenever practicable.

 (c)  Subsection (a) is identical to 1 Pa. Code §  35.169 (relating to copies to parties and agency). Subsection (b) is identical to 1 Pa. Code §  35.168 (relating to form and size of documentary evidence).

   The provisions of this §  5.409 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

   The provisions of this §  5.409 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 (225706).

   This section cited in 52 Pa. Code §  5.74 (relating to filing of petitions to intervene); and 52 Pa. Code §  5.407 (relating to records of other proceedings).

WITNESSES

§ 5.411. Oral examination.

 (a)  Witnesses shall be examined orally unless the testimony is taken by deposition as provided in § §  5.343—5.348 or the facts are stipulated in the manner provided in §  5.232 (relating to stipulations made in conferences) or in §  5.234 (relating to presentation and effect of stipulations) or the testimony is submitted in prepared written form as provided in §  5.324 (relating to discovery of expert testimony). Witnesses whose testimony is to be taken shall be sworn, or shall affirm, before their testimony shall be deemed evidence in the proceeding or any questions are put to them.

 (b)  Subsection (a) is identical to 1 Pa. Code §  35.137 (relating to oral examination).

 (a)  General. Use of written testimony in Commission proceedings is encouraged, especially in connection with the testimony of expert witnesses. Written direct testimony is required of expert witnesses testifying in rate cases.

 (b)  Use. The presiding officer may direct that expert testimony to be given upon direct examination be submitted as prepared written testimony. A reasonable period of time will be allowed to prepare written testimony.

 (c)  Rules regarding use. Written testimony is subject to the same rules of admissibility and cross-examination of the sponsoring witness as if it were presented orally in the usual manner.

 (d)  Cross-examination. Cross-examination of the witness presenting written testimony shall proceed at the hearing at which testimony is authenticated if service of the written testimony is made upon each party of record at least 20 days prior to the hearing, unless the presiding officer for good cause otherwise directs. In a rate proceeding, the presiding officer or the Commission will establish the schedule for the filing and authentication of written testimony, and for cross-examination by other parties.

 (e)  Form. Written testimony must normally be prepared in question and answer form, include a statement of the qualifications of the witness and be accompanied by exhibits to which it relates. A party offering prepared written testimony shall insert line numbers in the left-hand margin on each page. A party should also use a logical and sequential numbering system to identify the written testimony of individual witnesses.

 (f)  Service. Written testimony shall be served upon the presiding officer and parties in the proceeding in accordance with the schedule established by this chapter. At the same time the testimony is served, a certificate of service for the testimony shall be filed with the Secretary.

 (g)  Copies. At the hearing at which the testimony is authenticated, counsel for the witness shall provide two copies of the testimony to the court reporter.

 (h)  Supersession. Subsections (a)—(g) supersede 1 Pa. Code § §  35.138, 35.150 and 35.166 (relating to expert witnesses; scope and conduct of examination; and prepared expert testimony).

   The provisions of this §  5.412 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.

 (a)  An offer of proof may be requested when opposing counsel contends the witness is not competent to testify to the subject matter or that the evidence to be offered is inadmissible. An offer of proof also may be made when the presiding officer has sustained an objection to the admission of testimony or tangible evidence. If the proffered evidence is tangible, it shall be marked for identification and shall constitute the offer of proof. If the proffered evidence is oral testimony, the offer of proof shall consist of a summary of the evidence which counsel contends would be adduced by the testimony. The presiding officer may also request a statement of the basis for admissibility of the evidence.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.190(b) (relating to appeals to agency head from rulings of presiding officers).

   The provisions of this §  5.414 adopted October 12, 1984, effective January 1, 1985, 14 Pa.B. 3819.

SUBPOENAS

§ 5.421. Subpoenas.

 (a)  Issuance.

   (1)  A subpoena may be issued by the Commission upon its own motion.

   (2)  Other than under paragraph (1), a subpoena will issue only upon application in writing to the presiding officer, except that during a hearing in a proceeding, the application may be made orally on the record before the presiding officer, who will determine the necessity of issuing the subpoena.

 (b)  Form. The written application:

   (1)  Must specify as nearly as possible the general relevance, materiality and scope of the testimony or documentary evidence sought, including, as to documentary evidence, specification as nearly as possible of the documents desired.

   (2)  Must list the facts to be proved by the documents in sufficient detail to indicate the necessity of the documents.

   (3)  Must contain a notice that a response or objection to the application shall be filed with the Commission and presiding officer within 10 days of service of the application.

   (4)  Must include a certificate of service.

   (5)  May attach the proposed subpoena to the application.

 (c)  Service. An application for a subpoena shall be filed with the Commission and copies served by the petitioner upon:

   (1)  The party, person or individual to be subpoenaed.

   (2)  The presiding officer.

   (3)  The parties.

   (4)  The Commission’s Law Bureau, if the subpoena is directed to a Commission employee.

   (5)  The person or individual for whom the subpoena is sought when the person is not a party to the case. When the person or individual for whom a subpoena is sought is not a party to the case, the application must identify the persons—names and addresses—including the Secretary and presiding officer, to whom the answer or objection shall be sent.

 (d)  Service and return.

   (1)  Personal service. If service of the subpoena is made by a sheriff, like officer or deputy, service shall be evidenced by the return thereof. If made by another person, the person shall make affidavit thereof, describing the manner in which service was made, and return the affidavit on or with the original subpoena. In case of failure to make service, the reasons for the failure shall be stated on the original subpoena. In making service, a copy of the subpoena shall be exhibited to and left with the person to be served. The original subpoena, bearing or accompanied by the authorized return, affidavit or statement, shall be returned to the Secretary, or, if so directed on the subpoena, to the presiding officer before whom the person named in the subpoena is required to appear.

   (2)  Service by mail. Service of a subpoena upon a party, person or individual may also be accomplished by mail under § §  1.54 and 1.55 (relating to service by a party; and service on attorneys), or by a form of mail requiring a return receipt, postage prepaid, restricted delivery. Service is complete upon delivery of the mail to the party or the persons referred to in Pa.R.C.P. No. 402(a)(2) (relating to manner of service acceptance of service).

 (e)  Fees of witnesses. A witness subpoenaed by the Commission will be paid the same fees and mileage as paid for the like services in the courts of common pleas. A witness subpoenaed by a party shall be paid the same fees by the party. The Commission, before issuing a subpoena as provided in this section, may require a deposit of an amount adequate to cover the fees and mileage involved or require reasonable surety consistent with §  3.8 (relating to form of interim emergency orders).

 (f)  Objections and decision. A party, person or individual objecting to an application for a subpoena under this section may do so within 10 days in accordance with subsection (b)(3). The administrative law judge will address an objection within 10 days of the assignment of any objection filed under this section.

 (g)  Supersession. Subsections (a)—(e) supersede 1 Pa. Code §  35.142 (relating to subpoenas).

   The provisions of this §  5.421 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.

   The provisions of this §  5.421 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 (225709) to (225710).

 (a)  General rule for adversarial proceedings. A petition for protective order to limit the disclosure of a trade secret or other confidential information on the public record will be granted only when a party demonstrates that the potential harm to the party of providing the information would be substantial and that the harm to the party if the information is disclosed without restriction outweighs the public’s interest in free and open access to the administrative hearing process. A protective order to protect trade secrets or other confidential information will apply the least restrictive means of limitation which will provide the necessary protections from disclosure. In considering whether a protective order to limit the availability of proprietary information should issue, the Commission or the presiding officer should consider, along with other relevant factors, the following:

   (1)  The extent to which the disclosure would cause unfair economic or competitive damage.

   (2)  The extent to which the information is known by others and used in similar activities.

   (3)  The worth or value of the information to the party and to the party’s competitors.

   (4)  The degree of difficulty and cost of developing the information.

   (5)  Other statutes or regulations dealing specifically with disclosure of the information.

 (b)  General rule for nonadversarial proceedings. A petition for protective order limiting the disclosure of a trade secret or other confidential information in a nonadversarial proceeding shall be referred to the Law Bureau for recommended disposition by the Commission. The Commission will not disclose any material that is the subject of a protective order under this provision during the pendency of such a request.

 (c)  Restrictions.

   (1)  A protective order to restrict disclosure of proprietary information may require that a party receive, use or disclose proprietary information only for the purposes of preparing or presenting evidence, cross-examination or argument in the proceeding, or may restrict its inclusion in the public record.

   (2)  A protective order may require that parts of the record of a proceeding which contain proprietary information including, but not limited to, exhibits, writings, direct testimony, cross-examination, argument and responses to discovery, will be sealed and remain sealed unless the proprietary information is released from the restrictions of the protective order by agreement of the parties, or pursuant to an order of the presiding officer or the Commission.

   (3)  A public reference to proprietary information by the Commission or by a party afforded access thereto shall be to the title or exhibit reference in sufficient detail to permit persons with access to the proprietary information to fully understand the reference and not more. The proprietary information shall remain a part of the record, to the extent admitted, for purposes of administrative or judicial review.

   (4)  Prior to the issuance of a protective order, a party may not refuse to provide information which the party reasonably believes to be proprietary to a party who agrees to treat the information as if it were covered by a protective order until the presiding officer or the Commission issues the order or determines that issuance of the order would not be appropriate. The party claiming the privilege shall file a petition for protective order under subsection (a) within 14 days of the date the request for information was received.

   (5)  A party receiving proprietary information under this section retains the right, either before or after receipt of the information, to challenge the legitimacy of the claim that the information is proprietary, and to challenge the admissibility of the proprietary information.

 (d)  Access to representatives of parties. Proprietary information provided to a party under this section shall be released to the counsel and eligible outside experts of the receiving party unless the party who is releasing the information demonstrates that the experts or counsel previously violated the terms of a recent protective order issued by the Commission. To be eligible to receive proprietary information, the expert, subject to the following exception, may not be an officer, director, stockholder, partner, owner or employee of a competitor of the producing party. An expert will not be ineligible on account of being a stockholder, partner or owner of a competitor or affiliate unless the ownership interest is valued at more than $10,000 or constitutes a more than 1% interest, or both. No other persons may have access to the proprietary information except as authorized by order of the Commission or of the presiding officer.

 (e)  Special restrictions. A protective order which totally prohibits the disclosure of a trade secret or other confidential information, limits the disclosure to particular parties or representatives of parties—except as permitted by subsection (c)—or which provides for more restrictive rules than those permitted in subsections (b) and (c), will be issued only in extraordinary circumstances and only when the party from whom the information is sought demonstrates that a greater restriction is necessary to avoid severe and extreme prejudice.

 (f)  Return of proprietary information. A party providing proprietary information under this section may request that the parties receiving the information return the information and the copies thereof to the party at the conclusion of the proceeding, including appeals taken.

 (g)  Confidential security information. Challenges to a public utility’s designation of confidential security information or requests in writing to examine confidential security information in nonadversarial proceedings are addressed in Chapter 102 (relating to confidential security information).

   The provisions of this §  5.423 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501; amended under the Public Utility Confidential Security Information Disclosure Protection Act (35 P. S. § §  2141.1—2141.6); and 66 Pa.C.S. § §  501 and 1501.

   The provisions of this §  5.423 adopted December 2, 1988, effective January 3, 1989, 18 Pa.B. 5451; amended April 28, 2006, effective April 29, 2006, 36 Pa.B. 2097; amended August 22, 2008, effective August 23, 2008, 38 Pa.B. 4608. Immediately preceding text appears at serial pages (319208) to (319210).

   This section cited in 52 Pa. Code §  5.362 (relating to protective orders); 52 Pa. Code §  53.64 (relating to filing requirements for natural gas distributors with gross intrastate annual operating revenues in excess of $40 million); and 52 Pa. Code §  71.9 (relating to financial reports as public documents).

CLOSE OF THE RECORD

§ 5.431. Close of the record.

 (a)  The record will be closed at the conclusion of the hearing unless otherwise directed by the presiding officer or the Commission.

 (b)  After the record is closed, additional matter may not be relied upon or accepted into the record unless allowed for good cause shown by the presiding officer or the Commission upon motion.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code § §  35.231 and 35.232 (relating to reopening on application of party; and reopening by presiding officer).

   The provisions of this §  5.431 amended under the Public Utility Code, 66 Pa.C.S. § §  501, 504—506, 1301 and 1501.

   The provisions of this §  5.431 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 (287760).