Subchapter C. EVIDENCE AND WITNESSES


GENERAL

Sec.


35.137.    Oral examination.
35.138.    Expert witnesses.
35.139.    Fees of witnesses.

SUBPOENAS


35.142.    Subpoenas.

DEPOSITIONS


35.145.    Depositions.
35.146.    Notice and application.
35.147.    Authorization of taking deposition.
35.148.    Officer before whom deposition is taken.
35.149.    Oath and reduction to writing.
35.150.    Scope and conduct of examination.
35.151.    Status of deposition as part of record.
35.152.    Fees of officers and deponents.

STIPULATIONS


35.155.    Presentation and effect of stipulations.

EVIDENCE


35.161.    Form and admissibility of evidence.
35.162.    Reception and ruling on evidence.
35.163.    Designation of relevant portions of documentary evidence.
35.164.    Documents on file with agency.
35.165.    Public documents.
35.166.    Prepared expert testimony.
35.167.    Records in other proceedings.
35.168.    Form and size of documentary evidence.
35.169.    Copies to parties and agency.

OFFICIAL NOTICE


35.173.    Official notice of facts.

Cross References

   This subchapter cited in 34 Pa. Code §  111.35 (relating to dispositions of petitions); 58 Pa. Code §  494a.2 (relating to oral hearings); and 104 Pa. Code §  7.16 (relating to RTKL appeals).

GENERAL


§ 35.137. Oral examination.

 Witnesses shall be examined orally unless the testimony is taken by deposition as provided in § §  35.145—35.152 (relating to depositions) or the facts are stipulated in the manner provided in §  35.112 (relating to conferences to expedite hearings) or in §  35.155 (relating to presentation and effect of stipulations) or the testimony is submitted in prepared written form as provided in §  35.138 (relating to expert witnesses). Witnesses whose testimony is to be taken shall be sworn, or shall affirm, before their testimony shall be deemed evidence in the proceeding or any questions are put to them.

Cross References

   This section cited in 4 Pa. Code §  265.3 (relating to level II hearings); 12 Pa. Code §  81.231 (relating to witness to be advised); 25 Pa. Code §  1021.123 (relating to evidence); 34 Pa. Code §  95.94 (relating to depositions); 34 Pa. Code §  131.42 (relating to evidence relating to supersedeas); 34 Pa. Code §  131.49 (relating to disposition of automatic request for special supersedeas under section 413(a.1) of the act (77 P. S. §  774(1)); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedures); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  123.10 (relating to testimony); 37 Pa. Code §  171.96 (relating to arbitration hearing procedure); 37 Pa. Code §  197.48 (relating to procedure at hearing); 37 Pa. Code §  197.90 (relating to procedure at hearing); 51 Pa. Code §  21.25 (relating to conduct of the hearing); 52 Pa. Code §  5.411 (relating to oral examination); 52 Pa. Code §  1005.151 (relating to oral examination); 58 Pa. Code §  145.11 (relating to order of formal hearing); and 61 Pa. Code §  703.34 (relating to hearing procedure).

§ 35.138. Expert witnesses.

 Written testimony of an expert witness may be received as provided in §  35.166 (relating to prepared expert testimony), where properly supported by the oral testimony of its author on direct examination, subject to cross-examination and motions to strike.

Cross References

   This section cited in 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  265.3 (relating to level II hearings); 25 Pa. Code §  1021.123 (relating to evidence); 34 Pa. Code §  131.42 (relating to evidence relating to supersedeas); 34 Pa. Code §  131.49 (relating to disposition of automatic request for special supersedeas under section 413(a.1) of the act (77 P. S. §  774(1)); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 52 Pa. Code §  5.412 (relating to written testimony); 52 Pa. Code §  1005.152 (relating to written testimony); 55 Pa. Code §  41.161 (relating to written testimony); and 61 Pa. Code §  703.34 (relating to hearing procedure).

§ 35.139. Fees of witnesses.

 Witnesses subpoenaed by the agency shall be paid the same fees and mileage as are paid for like services in the courts of common pleas. Witnesses subpoenaed at the instance of participants shall be paid the same fees by the participant at whose instance the witness is subpoenaed; and the agency, before issuing any subpoena as provided in §  35.142(a) (relating to subpoenas), may require a deposit of an amount adequate to cover the fees and mileage involved.

Cross References

   This section cited in 1 Pa. Code §  35.142 (relating to subpoenas); 4 Pa. Code §  105.14a (relating to subpoenas); 4 Pa. Code §  265.3 (relating to level II hearings); 22 Pa. Code §  201.7 (relating to service and return of subpoenas); 25 Pa. Code §  1021.103 (relating to subpoenas, notices to attend and notices to produce); 25 Pa. Code §  1021.123 (relating to evidence); 34 Pa. Code §  95.95 (relating to witnesses and subpoenas); 34 Pa. Code §  131.81 (relating to subpoenas); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  21.58 (relating to witness fees); 37 Pa. Code §  171.134 (relating to witness fees and mileage allowance); 55 Pa. Code §  41.161 (relating to written testimony); and 61 Pa. Code §  703.34 (relating to hearing procedure).

SUBPOENAS


§ 35.142. Subpoenas.

 (a)  Issuance. Subpoenas for the attendance of witnesses or for the production of documentary evidence, unless directed by the agency upon its own motion, will issue only upon application in writing to the agency head or the presiding officer, except that during sessions of a hearing in a proceeding, such application may be made orally on the record before the agency head or presiding officer, who is hereby given authority to determine the relevancy and materiality of the evidence sought and to issue such subpoenas in accordance with such determination. Such written applications shall specify as nearly as may be the general relevance, materiality, and scope of the testimony or documentary evidence sought, including as to documentary evidence, specification as nearly as may be, of the documents desired and the facts to be proved by them in sufficient detail to indicate the materiality and relevance of such documents.

 (b)  Service and return. If service of subpoena is made by a sheriff or like officer or his deputy, such service shall be evidenced by his return thereof. If made by another person, such person shall make affidavit thereof, describing the manner in which service was made, and shall return such affidavit on or with the original subpoena. In case of failure to make service, the reasons for the failure shall be stated on the original subpoena. In making service, a copy of the subpoena shall be exhibited to and left with the person to be served. The original subpoena, bearing or accompanied by the authorized return, affidavit, or statement, shall be returned forthwith to the office of the agency or, if so directed on the subpoena, to the presiding officer before whom the person named in the subpoena is required to appear.

 (c)  Fees of witnesses. Witnesses who are subpoenaed shall be paid fees as provided in §  35.139 (relating to fees of witnesses).

Notes of Decisions

   A party was deprived of a right incident to a hearing since her application for issuance of a subpoena was in proper form but the hearing body did not act on the application. Weinberg v. Insurance Department, 398 A.2d 1120 (Pa. Cmwlth. 1979).

   Failure to comply with the requirements of this section justifies the refusal to issue subpoenas. Henley v. Civil Service Commission, 395 A.2d 330 (Pa. Cmwlth. 1978).

Cross References

   This section cited in 1 Pa. Code §  35.139 (relating to fees of witnesses); 4 Pa. Code §  89.31 (relating to investigation); 4 Pa. Code §  105.14a (relating to subpoenas); 4 Pa. Code §  250.13 (relating to information); 4 Pa. Code §  265.3 (relating to level II hearings); 7 Pa. Code §  131.15 (relating to subpoenas); 12 Pa. Code §  81.221 (relating to issuing subpoenas); 12 Pa. Code §  81.222 (relating to persons required to appear); 12 Pa. Code §  81.223 (relating to producing documents or review by Authority staff); 12 Pa. Code §  81.224 (relating to service of subpoenas); 22 Pa. Code §  201.7 (relating to service and return of subpoenas); 22 Pa. Code §  233.124 (relating to power of subpoena); 25 Pa. Code §  1021.103 (relating to subpoenas, notices to attend and notices to produce); 28 Pa. Code §  1111.8 (relating to rights of the appellant); 34 Pa. Code §  95.95 (relating to witnesses and subpoenas); 34 Pa. Code §  131.81 (relating to subpoenas); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  21.60 (relating to subpoenas); 37 Pa. Code §  123.3 (relating to subpoenas); 37 Pa. Code §  171.35 (relating to subpoenas); 37 Pa. Code §  197.13a (relating to subpoenas); 40 Pa. Code §  15.48 (relating to subpoenas); 40 Pa. Code §  17.5 (relating to subpoenas); 51 Pa. Code §  21.5 (relating to conduct of investigations); 52 Pa. Code §  5.343 (relating to procedures in deposition by oral examination); 52 Pa. Code §  5.421 (relating to subpoenas); 52 Pa. Code §  5.424 (relating to issuance of subpoenas); 52 Pa. Code §  1005.161 (relating to subpoenas); and 55 Pa. Code §  41.162 (relating to subpoenas).

DEPOSITIONS


§ 35.145. Depositions.

 The testimony of a witness may be taken by deposition, upon application by a participant in a proceeding pending before the agency, before the hearing is closed, upon approval by the agency head or the presiding officer.

Cross References

   This section cited in 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  89.31 (relating to investigation); 4 Pa. Code §  265.3 (relating to level II hearings); 25 Pa. Code §  1021.102 (relating to discovery); 34 Pa. Code §  95.94 (relating to depositions); 34 Pa. Code §  131.62 (relating to oral depositions); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.64 (relating to notice of oral depositions); 34 Pa. Code §  131.65 (relating to objections to taking of oral depositions); 34 Pa. Code §  131.68 (relating to discovery of records); 34 Pa. Code §  131.70 (relating to discovery of statements of parties or witnesses); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 40 Pa. Code §  15.49 (relating to deposition); 40 Pa. Code §  17.6 (relating to depositions and discovery); 51 Pa. Code §  21.5 (relating to conduct of investigations); 52 Pa. Code §  5.321 (relating to scope); 52 Pa. Code §  5.343 (relating to procedures in deposition by oral examination); 52 Pa. Code §  1005.162 (relating to depositions); 55 Pa. Code §  41.120 (relating to limitations on scope of discovery); and 58 Pa. Code §  493a.11 (relating discovery).

§ 35.146. Notice and application.

 Unless notice is waived, no deposition may be taken except after at least 10 days’ notice to the participants if the deposition is to be taken within this Commonwealth, and 15 days’ notice when a deposition is to be taken elsewhere. The notice shall be given in writing by the participant proposing to take a deposition to the other participants and to the agency. In such notice and application to take evidence by deposition, the participant desiring to take the deposition shall state the name and post office address of the witness, the subject matter concerning which the witness is expected to testify, the time and place of taking the deposition, the name and post office address of the notarial officer before whom it is desired that the deposition be taken and the reason why the deposition should be taken. The other participants may, within the time stated in this section, make an appropriate response to the notice and application.

Cross References

   This section cited in 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  89.31 (relating to investigation); 4 Pa. Code §  265.3 (relating to level II hearings); 25 Pa. Code §  1021.102 (relating to discovery); 34 Pa. Code §  95.94 (relating to depositions); 34 Pa. Code §  131.62 (relating to oral depositions); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.64 (relating to notice of oral depositions); 34 Pa. Code §  131.65 (relating to objections to taking of oral depositions); 34 Pa. Code §  131.68 (relating to discovery of records); 34 Pa. Code §  131.70 (relating to discovery of statements of parties or witnesses); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 40 Pa. Code §  15.49 (relating to deposition); 52 Pa. Code §  5.343 (relating to procedures in deposition by oral examination); 52 Pa. Code §  1005.162 (relating to depositions); 55 Pa. Code §  41.120 (relating to limitations on scope of discovery); and 58 Pa. Code §  493a.11 (relating to discovery).

§ 35.147. Authorization of taking deposition.

 If an application for the taking of a deposition so warrants, the agency head or presiding officer will issue and serve, within a reasonable time in advance of the time fixed for taking testimony, upon the participants an authorization naming the witness whose deposition is to be taken, and the time, place and notarial officer before whom the witness is to testify, but the time, place and notarial officer so specified may or may not be the same as those named in the notice and application.

Cross References

   This section cited in 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  89.31 (relating to investigation); 4 Pa. Code §  265.3 (relating to level II hearings); 25 Pa. Code §  1021.102 (relating to discovery); 34 Pa. Code §  95.94 (relating to depositions); 34 Pa. Code §  131.62 (relating to oral depositions); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.64 (relating to notice of oral depositions); 34 Pa. Code §  131.65 (relating to objections to tak-ing of oral depositions); 34 Pa. Code §  131.68 (relating to discovery of records); 34 Pa. Code §  131.70 (relating to discovery of statements of parties or witnesses); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 40 Pa. Code §  15.49 (relating to deposition); 52 Pa. Code §  5.344 (relating to approval by presiding officer); 52 Pa. Code §  1005.162 (relating to depositions); 55 Pa. Code §  41.120 (relating to limitations on scope of discovery); and 58 Pa. Code 493a.11 (relating to discovery).

§ 35.148. Officer before whom deposition is taken.

 (a)  Within the United States. Depositions may be taken before the agency head, a member of a board or commission comprising the agency, a presiding officer or other authorized representative of the agency, a notary public or another person authorized to administer oaths not being counsel or attorney for a participant, or interested in the proceeding or investigation, according to the designation as may be made in the authorization.

 (b)  In foreign countries. Where the deposition is taken in a foreign country, it may be taken before a secretary of an embassy or legation, consul general, consul, vice consul or consular agent of the United States, or before the person or officer as may be designated in the authorization or agreed upon by the participants by stipulation in writing filed with and approved by the agency head or the presiding officer.

Cross References

   This section cited in 1 Pa. Code §  31.3 (relating to definitions); 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  89.31 (relating to investigation); 4 Pa. Code §  265.3 (relating to level II hearings); 25 Pa. Code §  1021.102 (relating to discovery); 34 Pa. Code §  131.62 (relating to oral depositions); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.64 (relating to notice of oral depositions); 34 Pa. Code §  131.65 (relating to objections to taking of oral depositions); 34 Pa. Code §  131.68 (relating to discovery of records); 34 Pa. Code §  131.67 (relating to expenses of taking depositions); 34 Pa. Code §  131.70 (relating to discovery of statements of parties or witnesses); 40 Pa. Code §  15.49 (relating to deposition); 52 Pa. Code §  5.346 (relating to persons before whom depositions may be taken); 52 Pa. Code §  1005.162 (relating to depositions); 55 Pa. Code §  41.120 (relating to limitations on scope of discovery); 58 Pa. Code §  493a.11 (relating to discovery); and 61 Pa. Code §  702.5 (relating to oaths).

§ 35.149. Oath and reduction to writing.

 Every person whose testimony is taken by deposition shall be sworn, or shall affirm concerning the matter about which he shall testify, before a question is put or testimony given. The testimony shall be reduced to writing by the notarial officer, or under his direction, after which the deposition shall be subscribed by the witness and certified in the usual form by the notarial officer. Unless otherwise directed in the authorization, after the deposition has been subscribed and certified, it shall, together with the number of copies specified in the authorization, the copies being made by such notarial officer or under his direction, be forwarded by such notarial officer in a sealed envelope addressed to the office of the agency at Harrisburg, Pennsylvania, with sufficient stamps for postage affixed. Upon receipt thereof, the office of the agency shall file the original in the proceeding and shall forward a copy to a participant.

Cross References

   This section cited in 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  89.31 (relating to investigation); 4 Pa. Code §  265.3 (relating to level II hearings); 25 Pa. Code §  1021.102 (relating to discovery); 34 Pa. Code §  131.62 (relating to oral depositions); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.64 (relating to notice of oral depositions); 34 Pa. Code §  131.65 (relating to objections to taking of oral depositions); 34 Pa. Code §  131.68 (relating to discovery of records); 34 Pa. Code §  131.69 (relating to form of deposition affidavit); 34 Pa. Code §  131.70 (relating to discovery of statements of parties or witnesses); 40 Pa. Code §  15.49 (relating to deposition); 52 Pa. Code §  5.348 (relating to transcript of deposition, objections and filing); 52 Pa. Code §  1005.162 (relating to depositions); 55 Pa. Code §  41.120 (relating to limitations on scope of discovery); and 58 Pa. Code §  493a.11 (relating to discovery).

§ 35.150. Scope and conduct of examination.

 Unless otherwise directed in the authorization, the deponent may be examined regarding a matter which is relevant to the issues involved in the pending proceeding, including the existence, description, nature, custody, condition and location of a book, document or other tangible thing, and the identity and location of persons having knowledge of relevant facts. A participant shall have the right of cross-examination, objection and exception. In making objections to questions or evidence, the grounds relied upon shall be stated briefly, but no transcript filed by the notarial officer may include argument or debate. Objections to questions or evidence shall be noted by the notarial officer upon the deposition, but he may not have the power to decide on the competency, materiality or relevancy of evidence. Objections to questions or evidence not taken before the notarial officer shall be deemed waived.

Cross References

   This section cited in 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  89.31 (relating to investigation); 4 Pa. Code §  265.3 (relating to level II hearings); 25 Pa. Code §  1021.102 (relating to discovery); 34 Pa. Code §  95.94 (relating to depositions); 34 Pa. Code §  131.62 (relating to oral depositions); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.64 (relating to notice of oral depositions); 34 Pa. Code §  131.65 (relating to objections to taking of oral depositions); 34 Pa. Code §  131.68 (relating to discovery of records); 34 Pa. Code §  131.70 (relating to discovery of statements of parties or witnesses); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 40 Pa. Code §  15.49 (relating to deposition); 52 Pa. Code §  5.412 (relating to written testimony); 52 Pa. Code §  1005.152 (relating to written testimony); 52 Pa. Code §  1005.162 (relating to depositions); 55 Pa. Code §  41.120 (relating to limitations on scope of discovery); and 58 Pa. Code §  493a.11 (relating to discovery).

§ 35.151. Status of deposition as part of record.

 No part of a deposition may constitute a part of the record in the proceeding, unless received in evidence by the agency head or presiding officer. Objection may be made at the hearing in the proceeding to receiving in evidence a deposition or part thereof for a reason which would require the exclusion of the evidence if the witnesses were then present and testifying.

Cross References

   This section cited in 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  89.31 (relating to investigation); 4 Pa. Code §  265.3 (relating to level II hearings); 25 Pa. Code §  1021.102 (relating to discovery); 34 Pa. Code §  131.62 (relating to oral depositions); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.64 (relating to notice of oral depositions); 34 Pa. Code §  131.65 (relating to objections to taking of oral depositions); 34 Pa. Code §  131.66 (relating to admissibility of oral depositions); 34 Pa. Code §  131.68 (relating to discovery of records); 34 Pa. Code §  131.70 (relating to discovery of statements of parties or witnesses); 37 Pa. Code §  171.102 (relating to admission of exhibits and deposition into evidence); 40 Pa. Code §  15.49 (relating to deposition); 52 Pa. Code §  5.347 (relating to taking of depositions—objections); 52 Pa. Code §  1005.162 (relating to depositions); 55 Pa. Code §  41.120 (relating to limitations on scope of discovery); and 58 Pa. Code §  493a.11 (relating to discovery).

§ 35.152. Fees of officers and deponents.

 Deponents whose depositions are taken and the notarial officers taking the depositions shall be entitled to the same fees as are paid for like services in the courts of common pleas, which fees shall be paid by the participant at whose instance the depositions are taken.

Cross References

   This section cited in 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  89.31 (relating to investigation); 4 Pa. Code §  265.3 (relating to level II hearings); 25 Pa. Code §  1021.102 (relating to discovery); 34 Pa. Code §  131.62 (relating to oral depositions); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.64 (relating to notice of oral depositions); 34 Pa. Code §  131.65 (relating to objections to taking of oral depositions); 34 Pa. Code §  131.67 (relating to expenses of taking depositions); 34 Pa. Code §  131.68 (relating to discovery of records); 34 Pa. Code §  131.70 (relating to discovery of statements of parties or witnesses); 37 Pa. Code §  171.135 (relating to fees of officers and deponents); 40 Pa. Code §  15.49 (relating to depositions); 52 Pa. Code §  5.324 (relating to discovery of expert testimony); 52 Pa. Code §  1005.162 (relating to depositions); 55 Pa. Code §  41.120 (relating to limitations on scope of discovery); and 58 Pa. Code §  493a.11 (relating to discovery).

STIPULATIONS


§ 35.155. Presentation and effect of stipulations.

 Independently of the orders or rulings issued as provided by §  35.112 (relating to conferences to expedite hearings) the participants may stipulate as to a relevant matter 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 participants with respect to the matters therein stipulated.

Cross References

   This section cited in 1 Pa. Code §  35.137 (relating to oral examination); 4 Pa. Code §  265.3 (relating to level II hearings); 31 Pa. Code §  56.3 (relating to admissions as to facts and documents); 34 Pa. Code §  111.33 (relating to specific petitions/requirements); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.57 (relating to compromise and release agreements); 34 Pa. Code §  131.91 (relating to stipulations of fact); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  171.103 (relating to presentation and effect of stipulations); 40 Pa. Code §  15.50 (relating to stipulations); 52 Pa. Code §  5.234 (relating to presentation and effect of stipulations); 52 Pa. Code §  1005.101 (relating to presentation and effect of stipulations); and 58 Pa. Code §  491a.10 (relating to presentation and effect of stipulations).

EVIDENCE


§ 35.161. Form and admissibility of evidence.

 In a proceeding before the agency head or a presiding officer, relevant and material evidence shall be admissible, but there shall be excluded evidence that is repetitious or cumulative, or evidence that is not of the kind which would affect reasonable and fair-minded men in the conduct of their daily affairs.

Notes of Decisions

   The referee has discretion to limit repetitive testimony and did not err in denying claimant the opportunity to further testify concerning why he had retired when he already testified that he retired because he was 64. Vitelli v. Workmen’s Compensation Appeal Board (St. Johnsburg Trucking Co.), 630 A.2d 923 (Pa. Cmwlth. 1993); appeal denied 641 A.2d 591 (PA. 1994); appeal denied 641 A.2d 591 (Pa. 1994).

   Workmen’s Compensation referee prematurely excluded surveillance films without viewing them even though the referee had before him still photographs printed from the surveillance film, testimony of the private investigator regarding his observations while filming, and the testimony of employer’s witnesses who had observed the films. Westinghouse Electric Co. v. Workmen’s Compensation Appeal Board (Pollock), 507 A.2d 1287 (Pa. Cmwlth. 1986).

Cross References

   This section cited in 4 Pa. Code §  89.29 (relating to evidence); 4 Pa. Code §  265.3 (relating to level II hearings); 7 Pa. Code §  131.33 (relating to evidence); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.209 (relating to rules of evidence not to apply); 22 Pa. Code §  201.9 (relating to introduction of documents for the system’s records); 34 Pa. Code §  131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code §  131.42 (relating to evidence relating to supersedeas); 34 Pa. Code §  131.49 (relating to disposition of automatic request for special supersedeas under section 413(a.1) of the act (77 P. S. §  774(1)); 34 Pa. Code §  131.50a (relating to employee request for special supersedeas hearing under section 413(c) and (d) of the act); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.61 (relating to exchange of information); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.66 (relating to admissibility of oral depositions); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  21.55 (relating to evidence); 37 Pa. Code §  171.97 (relating to applicability of laws and rules); 37 Pa. Code §  197.44 (relating to limitation of issues and evidence); 40 Pa. Code §  15.51 (relating to evidence); 51 Pa. Code §  21.25 (relating to conduct of the hearing); 52 Pa. Code §  5.401 (relating to admissibility of evidence); 52 Pa. Code §  1005.141 (relating to admissibility of evidence); 58 Pa. Code §  145.11 (relating to order of formal hearing); and 61 Pa. Code §  702.6 (relating to formal rules of evidence).

§ 35.162. Reception and ruling on evidence.

 The presiding officer, subject to §  35.190 (relating to appeals to agency head from rulings of presiding officers), shall rule on the admissibility of evidence, and shall otherwise control the reception of evidence so as to confine it to the issues in the proceeding. The number of expert witnesses to be heard on an issue may be limited appropriately as provided in §  35.127 (relating to limiting number of witnesses), or the production of further evidence upon any issue may be called for, as provided in §  35.128 (relating to additional evidence).

Cross References

   This section cited in 4 Pa. Code §  89.29 (relating to evidence); 4 Pa. Code §  265.3 (relating to level II hearings); 7 Pa. Code §  131.33 (relating to evidence); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.209 (relating to rules of evidence not to apply); 25 Pa. Code §  1021.123 (relating to evidence); 28 Pa. Code §  301.7 (relating to fair hearing); 34 Pa. Code §  131.42 (relating to evidence relating to supersedeas); 34 Pa. Code §  131.49 (relating to disposition of automatic request for special supersedeas under section 413(a.1) of the act (77 P. S. §  774(1)); 34 Pa. Code §  131.50a (relating to employee request for special supersedeas hearing under section 413(c) and (d) of the act); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.61 (relating to exchange of information); 34 Pa. Code §  131.63 (relating to time for taking oral depositions); 34 Pa. Code §  131.66 (relating to admissibility of oral depositions); 34 Pa. Code §  131.203 (relating to hearing procedures); 34 Pa. Code §  131.204 (relating to UEGF subpoenas and interrogatories); 37 Pa. Code §  21.55 (relating to evidence); 40 Pa. Code §  15.51 (relating to evidence); 52 Pa. Code §  5.402 (relating to admission of evidence); 52 Pa. Code §  5.403 (relating to control of receipt of evidence); 52 Pa. Code §  1005.142 (relating to admission of evidence); 52 Pa. Code §  1005.143 (relating to control of receipt of evidence); and 61 Pa. Code §  702.6 (relating to formal rules of evidence).

§ 35.163. Designation of relevant portions of documentary evidence.

 Where relevant and material matter offered in evidence is embraced in a document containing other matter not material or relevant and not intended to be put in evidence, the participant offering such document shall plainly designate the matter so offered, segregating and excluding insofar as practicable the immaterial or irrelevant parts. If other matter is in such document in such bulk or extent as would unnecessarily encumber the record, such document will not be received in evidence, but may be marked for identification, and, if properly authenticated, the relevant and material parts thereof may be read into the record, or if the agency head or the presiding officer so directs, a true copy of such matter in proper form shall be received in evidence as an exhibit, and copies shall be delivered by the participant offering the same to the other participants appearing at the hearing, who shall be afforded an opportunity to examine the entire document and to offer in evidence in like manner other material and relevant portions thereof.

Cross References

   This section cited in 4 Pa. Code §  89.29 (relating to evidence); 4 Pa. Code §  265.3 (relating to level II hearings); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.209 (relating to rules of evidence not to apply); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  121.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.101 (relating to briefs and findings of fact and close of record); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  21.55 (relating to evidence); 40 Pa. Code §  15.51 (relating to evidence); 52 Pa. Code §  5.403 (relating to control of receipt of evidence); 52 Pa. Code §  1005.143 (relating to control of receipt of evidence); and 61 Pa. Code §  702.6 (relating to formal rules of evidence).

§ 35.164. Documents on file with agency.

 In case any matter contained in a report or other document on file with the agency is offered in evidence, such report or other document need not be produced or marked for identification, but may be offered in evidence by specifying the report, document, or other file containing the matter so offered.

Cross References

   This section cited in 4 Pa. Code §  89.29 (relating to evidence); 4 Pa. Code §  265.3 (relating to level II hearings); 7 Pa. Code §  131.33 (relating to evidence); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.209 (relating to rules of evidence not to apply); 22 Pa. Code §  201.9 (relating to introduction of documents from the system’s records); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  21.55 (relating to evidence); 40 Pa. Code §  15.51 (relating to evidence); 52 Pa. Code §  1005.146 (relating to public documents); 55 Pa. Code §  41.113 (relating to content of provider position paper); 55 Pa. Code §  41.114 (relating to content of program office position paper); and 61 Pa. Code §  702.6 (relating to formal rules of evidence).

§ 35.165. Public documents.

 Whenever there is offered in evidence (in whole or in part) a public document, such as an official report, decision, opinion or published scientific or economic statistical data issued by any of the executive departments (or their subdivisions), legislative agencies or committees, or administrative agencies of the Federal Government (including Government-owned corporations) or a similar document issued by a State or its agencies, and such document (or part thereof) has been shown by the offerer to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered in evidence as a public document item by specifying the document or relevant part thereof without regard to the requirements of §  35.169 (relating to copies to parties and agency).

Cross References

   This section cited in 4 Pa. Code §  89.29 (relating to evidence); 4 Pa. Code §  265.3 (relating to level II hearings); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.209 (relating to rules of evidence not to apply); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  21.55 (relating to evidence); 40 Pa. Code §  15.51 (relating to evidence); 52 Pa. Code §  5.406 (relating to public documents); 52 Pa. Code §  1005.146 (relating to public documents); 55 Pa. Code §  41.113 (relating to content of provider position paper); 55 Pa. Code §  41.114 (relating to content of program office position paper); and 61 Pa. Code §  702.6 (relating to formal rules of evidence).

§ 35.166. Prepared expert testimony.

 (a)  Direct testimony of any witness within his special field may be offered as an exhibit, or as prepared written testimony to be copied into the transcript. Cross examination of the witness presenting such written testimony or exhibit shall proceed at the hearing at which such testimony or exhibit is authenticated if, not less than 20 days prior to such hearing, service thereof is made upon each participant of record, unless the presiding officer for good cause shall otherwise direct.

 (b)  Whenever in the circumstances of a particular case it is deemed necessary or desirable, the agency head or the presiding officer may direct that expert testimony to be given upon direct examination shall be reduced to exhibit form or to the form of prepared written testimony and be served and offered in the manner provided in subsection (a). A reasonable period of time shall be allowed for the preparation of such written testimony.

 (c)  All participants offering prepared written testimony whether in the form of an exhibit, or to be copied into the transcript, shall insert line numbers on each page, in the left-hand margin.

Cross References

   This section cited in 1 Pa. Code §  35.138 (relating to expert witnesses); 4 Pa. Code §  89.29 (relating to evidence); 4 Pa. Code §  265.3 (relating to level II hearings); 7 Pa. Code §  131.33 (relating to evidence); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.209 (relating to rules of evidence not to apply); 25 Pa. Code §  1021.123 (relating to evidence); 34 Pa. Code §  131.42 (relating to evidence relating to supersedeas); 34 Pa. Code §  131.49 (relating to disposition of automatic request for special supersedeas under section 413(a.1) of the act (77 P. S. §  774(1)); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  21.55 (relating to evidence); 40 Pa. Code §  15.51 (relating to evidence); 52 Pa. Code §  5.406 (relating to public documents); 52 Pa. Code §  5.412 (relating to written testimony); 52 Pa. Code §  1005.146 (relating to public documents); 52 Pa. Code §  1005.152 (relating to written testimony); and 61 Pa. Code §  702.6 (relating to formal rules of evidence).

§ 35.167. Records in other proceedings.

 When any portion of the record in any other proceeding before the agency is offered in evidence and shown to be relevant and material to the instant proceeding, a true copy of such record shall be presented in the form of an exhibit, together with additional copies as provided in §  35.169 (relating to copies to parties and agency), unless:

   (1)  The participant offering such record agrees to supply, within a period of time specified by the agency head or the presiding officer, such copies at his own expense, if and when so required.

   (2)  The portion is specified with particularity in such manner as to be readily identified, and upon motion is admitted in evidence by reference to the records of the other proceedings.

Cross References

   This section cited in 4 Pa. Code §  89.29 (relating to evidence); 4 Pa. Code §  265.3 (relating to level II hearings); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.209 (relating to rules of evidence not to apply); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  21.55 (relating to evidence); 40 Pa. Code §  15.51 (relating to evidence); 52 Pa. Code §  5.407 (relating to records of other proceedings); 52 Pa. Code §  1005.147 (relating to records of other proceedings); and 61 Pa. Code §  702.6 (relating to formal rules of evidence).

§ 35.168. Form and size of documentary evidence.

 Wherever practicable, all exhibits of a documentary character received in evidence shall be on paper of good quality and so prepared as to be plainly legible and durable, whether printed, photostated, or typewritten, and shall conform to the requirements of Chapter 33 (relating to documentary filings) whenever practicable.

Cross References

   This section cited in 4 Pa. Code §  89.29 (relating to evidence); 4 Pa. Code §  265.3 (relating to level II hearings); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.209 (relating to rules of evidence not to apply); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  21.55 (relating to evidence); 40 Pa. Code §  15.51 (relating to evidence); 52 Pa. Code §  5.409 (relating to copies and form of documentary evidence); 52 Pa. Code §  1005.149 (relating to copies and form of documentary evidence); and 61 Pa. Code §  702.6 (relating to formal rules of evidence).

§ 35.169. Copies to parties and agency.

 Except as otherwise provided in these rules, when exhibits of a documentary character are offered in evidence, copies shall be furnished to the presiding officer and to the participants present at the hearing, unless the agency head or the presiding officer otherwise directs. In addition, unless otherwise directed by the agency head or the presiding officer, three copies of each exhibit of documentary character shall be furnished for the use of the agency.

Cross References

   This section cited in 1 Pa. Code §  35.30 (relating to filing of petitions to intervene); 1 Pa. Code §  35.165 (relating to public documents); 1 Pa. Code §  35.167 (relating to records in other proceedings); 4 Pa. Code §  89.29 (relating to evidence); 4 Pa. Code §  265.3 (relating to level II hearings); 10 Pa. Code §  3.11 (relating to hearing rules); 12 Pa. Code §  81.209 (relating to rules of evidence not to apply); 22 Pa. Code §  121.9 (relating to administrative loan collection review procedures); 34 Pa. Code §  131.34 (relating to other filings); 34 Pa. Code §  131.53 (relating to procedures subsequent to the first hearing); 34 Pa. Code §  131.53a (relating to consolidated hearing procedure); 34 Pa. Code §  131.203 (relating to hearing procedures); 37 Pa. Code §  21.55 (relating to evidence); 40 Pa. Code §  15.51 (relating to evidence); 52 Pa. Code §  5.409 (relating to copies and form of documentary evidence); 52 Pa. Code §  1005.149 (relating to copies and form of documentary evidence); and 61 Pa. Code §  702.6 (relating to formal rules of evidence).

OFFICIAL NOTICE


§ 35.173. Official notice of facts.

 Official notice may be taken by the agency head or the presiding officer of such matters as might be judicially noticed by the courts of this Commonwealth, or any matters as to which the agency by reason of its functions is an expert. Any participant shall, on timely request, be afforded an opportunity to show the contrary. Any participant requesting the taking of official notice after the conclusion of the hearing shall set forth the reasons claimed to justify failure to make the request prior to the close of the hearing.

Notes of Decisions

   Official Notice

   Medical doctor being disciplined for allegedly allowing other doctor licensed in another state to practice in Pennsylvania without a license, argued the Board of Medicine violated his due process rights when it considered other doctor’s consent agreement which was withdrawn by the Bureau of Professional and Occupational Affairs before the hearing officer; Board properly took judicial notice of its own records and therefore, in doing so, did not violate doctor’s due process rights. Gleeson v. State Board of Medicine, 900 A.2d 430, 440 (Pa. Cmwlth. 2006).

   The Civil Service Commission’s taking of official notice of a supplemental appropriation granted to the Department of State was proper, since an administrative agency may take notice of any matter that may be judicially noticed by the court. Department of State v. Stecher, 459 A.2d 851 (Pa. Cmwlth. 1983); 484 A.2d 755 (Pa. 1984).

   The Civil Service Commission was within its powers of official notice under this section when, in ordering four employes reinstated, it took official notice of the enactment of a law. Department of State v. Stecher, 459 A.2d 851 (Pa. Cmwlth. 1983); 484 A.2d 755 (Pa. 1984).

Cross References

   This section cited in 1 Pa. Code §  35.205 (relating to contents of proposed reports); 4 Pa. Code §  265.3 (relating to level II hearings); 7 Pa. Code §  131.33 (relating to evidence); 34 Pa. Code §  131.101 (relating to briefs, findings of fact and close of record); 37 Pa. Code §  21.55 (relating to evidence); 37 Pa. Code §  171.104 (relating to limitation on matters considered); 40 Pa. Code §  15.52 (relating to official notice of facts); and 52 Pa. Code §  5.408 (relating to official and judicial notice of fact); 52 Pa. Code §  1005.148 (relating to official and judicial notice of fact); 58 Pa. Code §  494a.4 (relating to report or recommendation of the presiding officer); 61 Pa. Code §  702.6 (relating to formal rules of evidence); and 61 Pa. Code §  703.34 (relating to hearing procedure).



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