BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION

Petition of UGI Central Penn Gas, Inc. for Waiver : P-2016-2537609 of the Distribution System Improvement Charge Cap : of 5% of Billed Distribution Revenues and Approval : to Increase the Maximum Allowable DSIC to 10% of : Billed Distribution Revenues :

PREHEARING ORDER #5

By Prehearing Order #2 dated June 21, 2016, the undersigned confirmed the procedural schedule for this proceeding. In compliance with the procedural schedule the undersigned received rebuttal testimony from the following parties:

1. UGI Central Penn Gas, Inc. (UGI-CPG or Company); 2. Office of Consumer Advocate (OCA); and 3. Office of Small Business Advocate (OSBA)

It is noted that the Central Penn Gas Large Users Group (CPGLUG) served a letter stating it was not serving rebuttal testimony.

The testimony served by OSBA is identified as OSBA Stmt. No. 1-R. At page 1 of OSBA Stmt. No. 1-R, lines 4-8, the witness discusses the purpose of the rebuttal testimony. This discussion also contains a footnote. It is the footnote that concerns this presiding officer.

The footnote states, I am advised by counsel that OSBA reserved the right to raise any and all relevant legal issues in this matter in its briefs without first advancing them in testimony, consistent with the Companies’ response to OSBA-I-2 and the practice established by utility counsel in the Columbia Proceeding. (Emphasis added). I am unaware of any Commission precedent where utility counsel can make a ruling on procedure in a litigated case. I am unaware of any authority given to advocates to rule that legal issues can be raised for the first time in written argument by briefs without any testimony on the matter. I am aware that the cornerstone of administrative law is for parties to be given notice and an opportunity to be heard on the issues prior to written argument.

While I am not privy to the discovery response to OSBA-I-2, according to Commission regulations, briefs must contain, “An argument preceded by a summary. The party with the burden of proof shall, in its main or initial brief, completely address, to the extent possible, every issue raised by the relief sought and the evidence adduced at hearing.” 52 Pa.Code § 5.501(a)(3)(Emphasis added). Thus, an issue cannot be raised in a brief without at least evidence presented on the issue at the hearing via testimony or cross-examination.

Furthermore, the presiding officer’s “authority includes, but is not limited to, the power to exclude irrelevant, immaterial or unduly repetitive evidence, to prevent excessive examination of witnesses, to schedule and impose reasonable limitation on discovery and to otherwise regulate the course of the proceeding.” 52 Pa.Code § 5.483(a). In regulating this proceeding the parties will have notice and an opportunity to be heard. Notice will be before the brief is supplied on an issue; otherwise, any opposition will not possess an opportunity to supply record evidence in support of its case.

Unless, the OSBA can provide relevant precedent through case law, Commission Order, Commission regulation or statute to proceed otherwise, the footnote referenced above will not dictate the procedure in this proceeding.

Dated: August 25, 2016 ______Angela T. Jones Administrative Law Judge

2 Petition of UGI Central Penn Gas, Inc. for waiver of the DSIC cap Docket No. P-2016-2537609

SERVICE LIST

MARK C MARROW ESQUIRE DANIELLE JOUENNE ESQUIRE UGI CORPORATION 460 NORTH GULPH ROAD KING OF PRUSSIA PA 19406 610-992-3203 Accepts e-Service

DAVID B MACGREGOR ESQUIRE JESSICA R ROGERS ESQUIRE POST & SCHELL 17 NORTH SECOND STREET 12TH FLOOR HARRISBURG PA 17101-1601 717-731-1970 *Accepts e-Service

ERIN L GANNON ESQUIRE OFFICE OF CONSUMER ADVOCATE 555 WALNUT STREET 5TH FLOOR FORUM PLACE HARRISBURG PA 17101 717-783-5048 Accepts e-Service

STEVEN C GRAY ESQUIRE OFFICE OF SMALL BUSINESS ADVOCATE 300 NORTH SECOND STREET SUITE 202 HARRISBURG PA 17101 717-783-2525

CARRIE B WRIGHT ESQUIRE PA PUC BIE LEGAL TECHNICAL SECOND FLOOR WEST 400 NORTH STREET HARRISBURG PA 17120 717-783-6156 Accepts e-Service

3 PAMELA C POLACEK ESQUIRE VASILIKI KARANDRIKAS ESQUIRE ALESSANDRA L HYLANDER ESQUIRE 100 PINE STREET P.O. BOX 1166 HARRISBURG PA 17108-116 717-237-5425 Accepts e-Service

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