(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).
Notes
The
provisions of this § 5.101 adopted October 12, 1984, effective
1/1/1985, 14 Pa.B. 3819; amended
December 2, 1988, effective 1/3/1989, 18 Pa.B. 5451; amended April 28, 2006,
effective 4/29/2006, 36 Pa.B.
2097; amended September 20, 2013, effective 9/21/2013, 43 Pa.B.
5593.
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.
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).
