Section 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).

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).

Notation

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.

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).