§ 1005.114. Electronic testimony.
(a) Purpose, scope and definitions.
(1) The following term, when used in this section, has the following meaning, unless the context clearly indicates otherwise:
Electronic testimony witness—
(A) An individual offered to provide testimony or other evidence at a hearing conducted under Chapter 1005, Subchapter B (relating to hearings) in an enforcement proceeding by telephone or audio-visual means.
(B) This term does not apply to an individual who is one of the following:
(I) An Authority employee.
(II) A regulated party.
(III) An agent or employee of a regulated party.
(2) In-person testimony is normally preferable to testimony by telephone or audio-visual means. There can be reasons to justify receiving testimony by telephone or audio-visual means, including the transitory nature of many of the users of taxicabs and limousines. This section is promulgated to provide the conditions under which testimony by telephone or audio-visual means will be scheduled and received, to safeguard the due process rights of the parties, and to ensure that testimony by telephone or audio-visual means is received under uniformly applied rules.
(3) When the general rules of this subpart conflict with this section, this section controls.
(4) This section applies to the use of an electronic testimony witness in enforcement proceedings initiated by Trial Counsel or the Enforcement Department, or both.
(b) Scheduling of telephone or audio-visual testimony.
(1) Scheduling of electronic testimony witnesses shall proceed as follows:
(i) The party seeking to present an electronic testimony witness shall file a written notice with the Clerk. The notice shall be filed more than 20 days before the scheduled hearing date. The notice must contain the name of the proposed electronic testimony witness, the reason an exemption from standard in-person testimony is requested and an offer of proof as to the proposed testimony. A form of notice of intent to use a proposed electronic testimony witness may be obtained on the Authority’s web site at www.philapark.org/tld or from TLD Headquarters.
(ii) A party may file written objections to the use of an electronic testimony witness with the Clerk within 10 days of the filing of the notice required under paragraph (2)(i). The objection must set forth the reasons in support thereof.
(iii) The notice required under this paragraph, and any objection thereto, shall be served as provided in Chapter 1001, Subchapter F (relating to service of documents) on the same day the document is filed with the Clerk. A certificate of service shall be filed with the Clerk.
(iv) If a timely objection is not filed under this paragraph, the parties will be deemed to consent to the use of the electronic testimony witness.
(v) The parties may mutually agree to waive the time limitations in this paragraph.
(2) It is within the sole discretion of the presiding officer to permit the use of an electronic testimony witness in consideration of the notice and objection, if any, required under this section. The presiding officer will consider the following factors prior to scheduling the testimony of an electronic testimony witness:
(i) The value of the proposed witness in developing a full and complete record.
(ii) The reason the proposed witness is unable to testify. Particular consideration will be given to reasonable conflicts or challenges associated with employment, childcare, transportation, mobility issues or health reasons.
(iii) The rebuttable presumption that a police officer within the definition of 234 Pa. Code Rule 103 (relating to definitions) should be permitted to testify by telephone or audio-visual means in matters related to the impoundment of a taxicab or limousine, a vehicle acting as a taxicab or limousine, or the alleged criminal conduct of a regulated party.
(iv) If the probative value of the proposed electronic testimony is substantially outweighed by the danger of an unfair prejudice to the opposing party.
(3) Only a witness scheduled to testify by telephone or audio-visual means may testify by telephone or audio-visual means. The testimony of each other witness shall be received in person.
(4) A witness scheduled to testify by telephone or audio-visual means will be permitted to testify in person.
(c) Hearing process.
(1) At the start of the hearing, the presiding officer will state on the record the time and telephone or audio-visual numbers at which the presiding officer initiates the contact with an electronic testimony witness.
(2) The presiding officer will permit parties a reasonable opportunity to question electronic testimony witnesses for the purpose of verifying the identity of these witnesses. Falsification of identity is prohibited.
(3) This section does not create special procedures or standards for the presentation, cross-examination, exclusion or weighing of the testimony of an electronic testimony witness or for establishing the creditability of a witness once the witness is scheduled by the presiding officer.
(4) The oath or affirmation administered to an electronic testimony witness shall indicate that the witness will not testify from documents that are not in the record.
(5) The presiding officer, the electronic testimony witness and persons in the room in which the presiding officer is present while telephone or audio-visual testimony is presented shall be able to hear and speak to one another through the telephone or audio-visual connection used to submit testimony under this section.
Source The provisions of this § 1005.114 adopted May 31, 2013, effective June 1, 2013, 43 Pa.B. 2992.
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