Subchapter B. HEARINGS
GENERAL Sec.
1005.81. Notice of proceeding; hearing; waiver of hearing.
1005.82. Scheduling of hearing.
1005.83. Notice of nonrulemaking proceedings.
HEARING CONFERENCES
1005.91. Conferences generally.
STIPULATIONS
1005.101. Presentation and effect of stipulations.
1005.102. Restrictive amendments to applications for rights issued by the Authority.
HEARINGS
1005.111. Order of procedure.
1005.112. Presentation by parties.
1005.113. Failure to appear, proceed or maintain order in proceedings.
1005.114. Electronic testimony.
TRANSCRIPT
1005.121. Transcripts generally.
1005.122. Review of testimony.
1005.123. Transcript corrections.
1005.124. Copies of transcripts.
Cross References This subchapter cited in 52 Pa. Code § 1005.114 (relating to electronic testimony); and 52 Pa. Code § 1005.203 (relating to appeal hearings).
GENERAL
§ 1005.81. Notice of proceeding; hearing; waiver of hearing.
(a) When notice and hearing are required under the act, publication in the Pennsylvania Bulletin of a notice of application or other initial pleading is sufficient to provide notice of the proceeding. Service on interested persons is also sufficient to provide notice. Hearings will be held upon the filing of the pleading, unless waived by the parties.
(b) If the appropriate pleading is not filed within the set period of time, or when the parties have waived hearings, the Authority or presiding officer may dispose of the matter without a hearing upon the basis of the pleadings or submittals and the studies and recommendations of the staff.
(c) Subsections (a) and (b) supersede 1 Pa. Code § § 35.101, 35.103 and 35.121 (relating to waiver of hearing; preliminary notice to Department of Justice; and initiation of hearings).
§ 1005.82. Scheduling of hearing.
(a) A hearing calendar of all matters set for hearing will be maintained by the Clerk and will be in order of assignment as far as practicable. All matters will be heard at TLD Headquarters, unless a different site is designated by the Authority or the presiding officer. The Authority or the presiding officer, in its discretion with or without motion, for cause may at any time with due notice to the parties advance or postpone any proceeding on the hearing calendar.
(b) Hearings will be held before the Authority or presiding officer and all appearances, including staff counsel participating, will be entered upon the record, with a notation on whose behalf each appearance is made. A notation will be made in the record of the names of the members of the staff of the Authority participating, including accountants, and other experts, who are assisting in the investigation of the matter. This subsection supersedes 1 Pa. Code § § 35.123 and 35.125 (relating to conduct of hearings; and order of procedure).
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.102 (relating to hearing calendar).
§ 1005.83. Notice of nonrulemaking proceedings.
(a) The Authority or presiding officer is authorized to schedule prehearing conferences and hearings. Parties will be given reasonable notice of the time and place of the prehearing conference or hearing. In fixing the time and place of conferences and hearings, regard will be given to the convenience and necessity of the parties or their attorneys so far as time and the proper execution of the functions of the Authority permit.
(b) A protestant shall attend the initial hearing or prehearing conference, if one has been scheduled. Failure to attend may result in the dismissal of the protest by the Authority or presiding officer.
(c) Subsection (a) supersedes 1 Pa. Code § § 35.105 and 35.106 (relating to notice of nonrulemaking proceedings; and contents of notice of nonrulemaking proceedings).
HEARING CONFERENCES
§ 1005.91. Conferences generally.
Conferences will be scheduled and conducted in accordance with 1 Pa. Code § § 35.111—35.116 (relating to prehearing conferences).
Cross References This section cited in 52 Pa. Code § 1005.101 (relating to presentation and effect of stipulations); and 52 Pa. Code § 1005.151 (relating to oral examination).
STIPULATIONS
§ 1005.101. Presentation and effect of stipulations.
(a) Parties may stipulate to relevant matters of fact or the authenticity of relevant documents. The stipulations may be received in evidence at a hearing, and when so received shall be binding on the parties to the stipulation with respect to the matters therein stipulated.
(b) The parties may make stipulations independently of orders or rulings issued under § 1005.91 (relating to conferences generally).
(c) The Authority or presiding officer may disregard in whole or in part a stipulation of facts under this section but may grant further hearing if requested by a party to the stipulation within 15 days after issuance of an Authority order disregarding the stipulation of fact.
(d) Subsections (a)—(c) supersede 1 Pa. Code § 35.155 (relating to presentation and effect of stipulations).
Cross References This section cited in 52 Pa. Code § 1005.151 (relating to oral examination).
§ 1005.102. Restrictive amendments to applications for rights issued by the Authority.
(a) Parties to an application for Authority rights may stipulate as to restrictions or modifications to the proposed rights. Stipulations in the form of restrictive amendments or modifications must:
(1) Be in writing.
(2) Explain why the stipulation is in the public interest.
(3) Be signed by each party to the stipulation.
(4) Be submitted to the Director for insertion into the document folder.
(b) Restrictive amendments shall be binding on the parties but not on the Authority if it is determined they are not in the public interest. If a restrictive amendment is not accepted by the Authority, it may remand the matter for appropriate proceedings.
Authority The provisions of this § 1005.102 temporarily amended under 53 Pa.C.S. § 57B02.
Source The provisions of this § 1005.102 temporarily amended May 5, 2017, effective February 25, 2017, expire upon promulgation of final-form regulations or on November 5, 2018, whichever is later, as set forth in 53 Pa.C.S. § 57B02(b), 47 Pa.B. 2558. Immediately preceding text appears at serial pages (360378) to (360379).
HEARINGS
§ 1005.111. Order of procedure.
(a) In a proceeding, the party having the burden of proof shall open and close unless otherwise directed by the presiding officer. In a hearing on investigations and in proceedings which have been consolidated for hearing, the presiding officer may direct who will open and close. Oral rejoinder, if proposed by the party with the burden of proof, shall be completed before any cross-examination of the witness is conducted.
(b) The presiding officer will conduct a de novo review for proceedings held under § 1005.24 (relating to appeals from actions of the staff) and the burden of proof rests with the filing party.
(c) Except when the presiding officer determines that it is necessary to develop a comprehensive evidentiary record, the participation of a person granted the right to intervene in a proceeding will be limited to the presentation of evidence through the submission of testimony under § 1005.151 (relating to oral examination).
(d) In proceedings when the evidence is peculiarly within the knowledge or control of another party, the order of presentation in subsections (a) and (c) may be varied by the presiding officer.
(e) The presiding officer may direct the order of parties for purposes of cross-examination, subject to § 1005.112(f) (relating to presentation by parties).
(f) Subsections (a)—(e) supersede 1 Pa. Code § 35.125 (relating to order of procedure).
Authority The provisions of this § 1005.111 temporarily amended under 53 Pa.C.S. § 57B02.
Source The provisions of this § 1005.111 temporarily amended May 5, 2017, effective February 25, 2017, expire upon promulgation of final-form regulations or on November 5, 2018, whichever is later, as set forth in 53 Pa.C.S. § 57B02(b), 47 Pa.B. 2558. Immediately preceding text appears at serial page (360379).
Cross References This section cited in 52 Pa. Code § 1005.113 (relating to failure to appear, proceed or maintain order in proceedings).
§ 1005.112. Presentation by parties.
(a) A party has the right of presentation of evidence, cross-examination, objection, motion and argument subject to the limitations of this subpart. The taking of evidence and subsequent proceedings shall proceed with reasonable diligence and with the least practicable delay.
(b) When an objection to the admission or exclusion of evidence before the Authority or the presiding officer is made, the ground relied upon shall be stated briefly. A formal exception is unnecessary and may not be taken to rulings thereon.
(c) The Authority or presiding officer may require or allow a factual statement of the scope of a pleading or the position of a party in the proceeding. Facts admitted on the record by a party or by testimony, exhibits or in writing, need not be further proved.
(d) The Authority or the presiding officer may limit appropriately the number of witnesses who may be heard upon an issue.
(e) A party will not be permitted to introduce evidence during a rebuttal phase which:
(1) Is repetitive.
(2) Should have been included in the party’s case-in-chief.
(3) Substantially varies from the party’s case-in-chief.
(f) If a party conducts friendly cross-examination of a witness, the presiding officer may permit the other parties a second opportunity to cross-examine after friendly cross-examination is completed. The recross-examination shall be limited to the issues on which there was friendly cross-examination.
(g) Subsections (a)—(f) supersede 1 Pa. Code § 35.126 (relating to presentation by the parties).
Cross References This section cited in 52 Pa. Code § 1005.111 (relating to order of procedure).
§ 1005.113. Failure to appear, proceed or maintain order in proceedings.
(a) Except as provided in § 1005.13(c) (relating to citation complaints by the Authority), after being notified, a party who fails to be represented at a scheduled conference or hearing in a proceeding will:
(1) Be deemed to have waived the opportunity to participate in the conference or hearing.
(2) Not be permitted thereafter to reopen the disposition of a matter accomplished at the conference or hearing.
(3) Not be permitted to recall witnesses who were excused from further examination.
(b) Subsection (a) does not apply if the presiding officer determines that the failure to be represented was unavoidable and that the interests of the other parties and of the public would not be prejudiced by permitting the reopening or further examination. Counsel shall be expected to go forward with the examination of witnesses at the hearing under § 1005.111 (relating to order of procedure), or as has been otherwise stipulated or has been directed by the presiding officer.
(c) If the Authority or the presiding officer finds, after notice and opportunity for hearing, that the actions of a party, including an intervenor, in a proceeding obstruct the orderly conduct of the proceeding and are inimical to the public interest, the Authority or the presiding officer may take appropriate action, including dismissal of the complaint, application or petition, if the action is that of complainant, applicant or petitioner.
§ 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.
TRANSCRIPT
§ 1005.121. Transcripts generally.
(a) If required by law, hearings will be stenographically recorded by the Authority’s official reporter.
(b) Notwithstanding the review provisions in § 1005.122 (relating to review of testimony), the hearing transcript will be a part of the record and the sole official transcript of the proceeding.
(c) The transcripts will include a verbatim report of the hearings and nothing will be omitted therefrom except as is directed by the presiding officer. Changes in the transcript shall be made as provided in § 1005.123 (relating to transcript corrections).
(d) Subsections (a)—(c) supersede 1 Pa. Code § 35.131 (relating to recording of proceedings).
§ 1005.122. Review of testimony.
(a) In proceedings when testimony was electronically recorded and subsequently transcribed, a party may review the recording to ensure it was transcribed accurately.
(b) Review will not be permitted except upon written request within 20 days after the transcript has been filed with the Authority.
(c) Upon request for review, the Authority or presiding officer will schedule a time and place for the review which shall be open to all parties. The court reporter shall submit the tapes and equipment necessary for the review and shall arrange for the court reporter responsible for transcribing the tapes to be present at the review.
(d) Actual costs associated with making the tapes available for review, including the time of the court reporter, shall be paid by the party requesting review.
(e) Nothing in this section requires the electronic recording of testimony.
Cross References This section cited in 52 Pa. Code § 1005.121 (relating to transcripts generally).
§ 1005.123. Transcript corrections.
(a) A correction in the official transcript may be made only to make it accurately reflect the evidence presented at the hearing and to speak the truth.
(b) Proposed corrections of a transcript may be submitted by either of the following means:
(1) By written stipulation by the parties of record who were present when the transcription was taken.
(2) Upon written request of one or more parties of record present when the transcription was taken.
(c) Proposed corrections shall be filed as follows:
(1) Within 10 days after the transcript has been filed with the Clerk.
(2) Within 10 days after the electronically recorded testimony has been reviewed.
(3) Upon permission of the presiding officer granted prior to the closing of the record.
(d) Objections or other comments to the proposed corrections shall be filed within 10 days of service of the proposed corrections.
(e) Proposed corrections and objections or other comments shall be served upon the parties of record present when the original transcription was taken.
(f) The presiding officer will rule upon a proposed correction of a transcript within 20 days of its receipt. A request for corrections not acted upon within 20 days is deemed to be:
(1) Denied if opposed in a timely manner.
(2) Granted if unopposed.
(g) Subsections (a)—(f) supersede 1 Pa. Code § 35.132 (relating to transcript corrections).
Cross References This section cited in 52 Pa. Code § 1005.121 (relating to transcripts generally).
§ 1005.124. Copies of transcripts.
(a) A party or other person desiring copies of the transcript may obtain copies from the official reporter upon payment of the fees fixed therefore.
(b) Subsection (a) supersedes 1 Pa. Code § 35.133 (relating to copies of transcripts).
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