Section 5.304. Interlocutory review of discovery matters

(a) General. Rulings of presiding officers on discovery are not subject to interlocutory review unless one or more of the following apply:

(1) Interlocutory review is ordered by the Commission.

(2) Interlocutory review is certified by the presiding officer.

(3) The ruling has as its subject matter the deposing of a Commissioner or Commission employee.

(b) Standard for certification. A presiding officer may certify that a discovery ruling is appropriate for interlocutory review when the ruling involves an important question of law or policy that should be resolved immediately by the Commission.

(c) Petition for certification. A petition for interlocutory review of a presiding officer’s ruling on discovery must:

(1) Be filed within 3 days of the ruling.

(2) Be in writing.

(3) State the question to be certified and the reasons why interlocutory review will prevent substantial prejudice or expedite the conduct of the proceedings.

(4) Be no more than 3 pages in length.

(5) Be filed with the Secretary and served on all parties and the presiding officer.

(d) Responsive brief. A party may file a responsive brief within 7 days of a request for certification, which:

(1) Either supports or opposes certification.

(2) Addresses the merits of the question for which certification is requested.

(3) Addresses whether a stay of proceedings is required to protect the substantial rights of a party.

(4) Does not exceed 15 pages.

(e) Presiding officer’s decision. The presiding officer will announce the decision in writing or orally on the record within 5 days of the deadline for filing responsive briefs. The presiding officer’s decision will include the reasons why certification has been granted or denied and whether a stay of the proceedings has been granted.

(1) If the presiding officer denies the request for certification, no further action is required of the presiding officer.

(2) If the presiding officer’s decision is to grant the request for certification, the presiding officer will serve to each Commissioner the certified question within 5 days of the announcement of the decision. The presiding officer will include the reasons justifying certification, rulings on the certified question and extracts from the record that will assist the Commission in reaching a decision.

(f) Brief to the Commission following certification. Parties may submit a brief to the Commission and no other briefs are permitted unless directed by the Commission. A brief may not exceed 15 pages and must address:

(1) The issue of certification.

(2) The merits of the certified question.

(3) The stay of proceedings, when appropriate.

(g) Scheduling of certified question. Upon the expiration of the time provided for filing briefs, the Secretary will schedule the certified question for consideration at the next meeting of the Commission.

(h) Action by the Commission. Within 30 days of receipt of the certified question by the Secretary, the Commission will, without permitting oral argument, do one of the following:

(1) Continue, revoke or grant a stay of proceedings.

(2) Determine that the certification was improper and return the matter to the presiding officer for resolution.

(3) Answer the certified question.

(i) Failure to act. Failure of the Commission to act on a certified question within 30 days of its receipt will be deemed to be an affirmance of the decision of the presiding officer.

(j) Effect on proceedings. An interlocutory appeal from the ruling of the presiding officer on discovery will not result in a stay of the proceedings except upon a finding by the presiding officer or the Commission that extraordinary circumstances exist, or to protect the substantial rights of the parties.

The provisions of this § 5.304 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 (225677) to (225678).

Notation

Authority

The provisions of this § 5.304 amended under the Public Utility Code, 66 Pa.C.S. § § 501, 504—506, 1301 and 1501.