§ 42.53. Use of depositions at hearings.
(a) At the hearing, any part or all of the deposition, so far as otherwise admissible, may be used against any party who was present or represented at the taking of the deposition, or who had notice thereof if required, in accordance with one or more of the following provisions:
(1) A deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness.
(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director or managing agent of a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the hearing commissioners or permanent hearing examiner finds one of the following:
(i) That the witness is dead.
(ii) That the witness is at a greater distance than 100 miles from the place of the hearing or is outside this Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition.
(iii) That the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment.
(iv) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena.
(v) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with regard to the importance of presenting the testimony of witnesses orally at hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require that party to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.
(b) Substitution of parties does not affect the right to use depositions previously taken, and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor.
(c) Subject to subsection (a), objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
(d) A party will not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or a part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this does not apply to the use by an adverse party of a deposition as described in subsection (a)(2). At the hearing, any party may rebut any relevant evidence contained in a deposition.
(e) Subsections (a)—(d) supersede 1 Pa. Code § 35.151 (relating to status of deposition as part of record).
Source The provisions of this § 42.53 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; corrected August 20, 1976, effective August 14, 1976, 6 Pa.B. 1985; amended October 28, 1983, effective October 29, 1983, 13 Pa.B. 3283; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84184).
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