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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 52 Pa.B. 3204 (May 28, 2022).

Pennsylvania Code



Subchapter D. EVIDENCE AND WITNESSES


EVIDENCE

Sec.


1005.141.    Admissibility of evidence.
1005.142.    Admission of evidence.
1005.143.    Control of receipt of evidence.
1005.144.    Additional evidence.
1005.145.    Effect of pleadings.
1005.146.    Public documents.
1005.147.    Records of other proceedings.
1005.148.    Official and judicial notice of fact.
1005.149.    Copies and form of documentary evidence.

WITNESSES


1005.151.    Oral examination.
1005.152.    Written testimony.
1005.153.    Offers of proof.

SUBPOENAS


1005.161.    Subpoenas.
1005.162.    Depositions.

CLOSE OF THE RECORD


1005.171.    Close of the record.

EVIDENCE


§ 1005.141. Admissibility of evidence.

 (a)  In oral and documentary proceedings, neither the Authority nor the presiding officer will be bound by technical rules of evidence, and all relevant evidence of reasonably probative value may be received. Reasonable examination and cross-examination will be permitted at all oral hearings.

 (b)  In the discretion of the Authority or presiding officer, evidence may be excluded if:

   (1)  It is repetitious or cumulative.

   (2)  Its probative value is outweighed by:

     (i)   The danger of unfair prejudice.

     (ii)   Confusion of the issues.

     (iii)   Considerations of undue delay or waste of time.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  35.161 (relating to form and admissibility of evidence).

§ 1005.142. Admission of evidence.

 (a)  The Authority or presiding officer will rule on the admissibility of evidence and otherwise control the reception of evidence so as to confine it to the issues in the proceeding.

 (b)  For an exhibit to be received into evidence, it will be marked for identification and moved into evidence.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  35.162 (relating to reception and ruling on evidence).

§ 1005.143. Control of receipt of evidence.

 (a)  The Authority or presiding officer has all necessary authority to control the receipt of evidence, including the following:

   (1)  Ruling on the admissibility of evidence.

   (2)  Confining the evidence to the issues in the proceeding and impose, when appropriate:

     (i)   Limitations on the number of witnesses to be heard.

     (ii)   Limitations of time and scope for direct and cross-examinations.

     (iii)   Limitations on the production of further evidence.

     (iv)   Other necessary limitations.

 (b)  The Authority or presiding officer will actively employ these powers to direct and focus the proceedings consistent with due process.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code § §  35.127, 35.162 and 35.163 (relating to limiting number of witnesses; reception and ruling on evidence; and designation of relevant portions of documentary evidence).

§ 1005.144. Additional evidence.

 (a)  At any stage of the hearing or thereafter, the Authority or the presiding officer may call for further admissible evidence upon an issue and require that the evidence be presented by the parties concerned, either at the hearing or at the adjournment thereof. If a hearing has adjourned, the Authority or presiding officer will reconvene the hearing to receive additional evidence. Notice of the intent to reconvene a hearing will be provided to the parties under §  1001.51 (relating to service by the Authority).

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.128 (relating to additional evidence).

§ 1005.145. Effect of pleadings.

 (a)  Pleadings listed in §  1005.1 (relating to pleadings allowed) will, without further action, be considered as part of the record as pleadings.

 (b)  Except as provided in subsection (c) and in the case of a noncontested proceeding, a pleading or any part thereof may not be considered as evidence of a fact other than that of filing thereof unless offered and received into evidence.

 (c)  A fact admitted by a party in an answer, filed under oath, to a numbered allegation in a pleading may be considered as evidence of the fact without the pleading and answer being offered and received into evidence.

 (d)  Subsections (a) and (b) supersede 1 Pa. Code §  35.125(d) (relating to order of procedure). Subsection (c) supersedes 1 Pa. Code §  35.35 (relating to answers to complaints and petitions).

§ 1005.146. Public documents.

 (a)  A report, decision, opinion or other document or part thereof need not be produced or marked for identification, but may be offered in evidence as a public document by specifying the document or part thereof and where it may be found, if the document is one of the following:

   (1)  A report or other document on file with the Authority.

   (2)  An official report, decision, opinion, published scientific or economic statistical data or similar public document which is issued by a governmental department, agency, committee, Authority or similar entity which is shown by the offeror to be reasonably available to the public.

 (b)  Upon the request of a party and at the direction of the Authority or presiding officer, a party who incorporates by reference a pleading shall provide a copy of the pleading to the party requesting one.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code § §  35.164, 35.165 and 35.166 (relating to documents on file with agency; public documents; and prepared expert testimony).

§ 1005.147. Records of other proceedings.

 (a)  When a portion of the record in another proceeding before the Authority is offered in evidence and shown to be relevant and material to the instant proceeding, a true copy of the record shall be presented in the form of an exhibit, together with additional copies as provided in §  1005.149 (relating to copies and form of documentary evidence), unless both of the following occur:

   (1)  The party offering the record agrees to supply, within a period of time specified by the Authority or the presiding officer, the copies at his own expense, if any, when so required.

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

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.167 (relating to records in other proceedings).

§ 1005.148. Official and judicial notice of fact.

 (a)  Official notice or judicial notice of facts may be taken by the Authority or the presiding officer.

 (b)  When the decision of the Authority or the presiding officer rests on official notice or judicial notice of a material fact not appearing in the evidence in the record, the parties will be so notified.

 (c)  Upon notification that facts are about to be or have been noticed, a party adversely affected shall have the opportunity upon timely request to show that the facts are not properly noticed or that alternative facts should be noticed.

 (d)  The Authority or the presiding officer in its discretion will determine whether written presentations suffice, or whether oral argument, oral evidence or cross-examination is appropriate in the circumstances.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  35.173 (relating to official notice of facts).

§ 1005.149. Copies and form of documentary evidence.

 (a)  Except as otherwise provided in this subpart, when exhibits of a documentary character are offered in evidence, copies shall be furnished to the presiding officer and to the parties present at the hearing, unless the presiding officer otherwise directs. Two copies of each exhibit of documentary character shall be furnished for the use of the Authority unless otherwise directed by the presiding officer.

 (b)  Whenever practicable, all exhibits of a documentary character received in evidence must be on paper of good quality and so prepared as to be plainly legible and durable, whether printed, typewritten or otherwise reproduced, and conform to Chapter 1001, Subchapter D (relating to documentary filings) whenever practicable.

 (c)  Subsection (a) supersedes 1 Pa. Code §  35.169 (relating to copies to parties and agency). Subsection (b) supersedes 1 Pa. Code §  35.168 (relating to form and size of documentary evidence).

Cross References

   This section cited in 52 Pa. Code §  1005.34 (relating to filing of petitions to intervene); and 52 Pa. Code §  1005.149 (relating to records of other proceedings).

WITNESSES


§ 1005.151. Oral examination.

 (a)  Witnesses shall be examined orally unless the testimony is taken by deposition as permitted by the Authority or presiding officer or the facts are stipulated in the manner provided in §  1005.91 or §  1005.101 (relating to conferences generally; and presentation and effect of stipulations) or the testimony of expert witnesses is submitted in prepared written form as permitted by the Authority or presiding officer. 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.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.137 (relating to oral examination).

Cross References

   This section cited in 52 Pa. Code §  1005.111 (relating to order of procedure).

§ 1005.152. Written testimony.

 (a)  General. Use of written testimony in Authority proceedings is encouraged, especially in connection with the testimony of witnesses determined by the Authority or presiding officer to be experts. Written direct testimony is required of expert witnesses testifying in rate cases.

 (b)  Use. The Authority or presiding officer may direct that expert testimony to be given upon direct examination be submitted as prepared written testimony. A reasonable period of time will be allowed to prepare written testimony.

 (c)  Rules regarding use. Written testimony is subject to the same rules of admissibility and cross-examination of the sponsoring witness as if it were presented orally in the usual manner.

 (d)  Cross-examination. Cross-examination of the witness presenting written testimony shall proceed at the hearing at which testimony is authenticated if service of the written testimony is made upon each party of record at least 20 days prior to the hearing, unless the presiding officer for good cause otherwise directs. In a rate proceeding, the presiding officer or the Authority will establish the schedule for the filing and authentication of written testimony, and for cross-examination by other parties.

 (e)  Form. Written testimony must normally be prepared in question and answer form, include a statement of the qualifications of the witness and be accompanied by exhibits to which it relates. A party offering prepared written testimony shall insert line numbers in the left-hand margin on each page. A party should also use a logical and sequential numbering system to identify the written testimony of individual witnesses.

 (f)  Service. Written testimony shall be served upon the presiding officer and parties in the proceeding in accordance with the schedule established by this chapter. At the same time the testimony is served, a certificate of service for the testimony shall be filed with the Clerk.

 (g)  Copies. At the hearing at which the testimony is authenticated, counsel for the witness shall provide two copies of the testimony to the court reporter.

 (h)  Supersession. Subsections (a)—(g) supersede 1 Pa. Code § §  35.138, 35.150 and 35.166 (relating to expert witnesses; scope and conduct of examination; and prepared expert testimony).

§ 1005.153. Offers of proof.

 (a)  An offer of proof may be requested when opposing counsel contends the witness is not competent to testify to the subject matter or that the evidence to be offered is inadmissible. An offer of proof also may be made when the presiding officer has sustained an objection to the admission of testimony or tangible evidence. If the proffered evidence is tangible, it shall be marked for identification and constitute the offer of proof. If the proffered evidence is oral testimony, the offer of proof shall consist of a summary of the evidence which counsel contends would be adduced by the testimony. The presiding officer may also request a statement of the basis for admissibility of the evidence.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.190(b) (relating to appeals to agency head from rulings of presiding officers).

SUBPOENAS


§ 1005.161. Subpoenas.

 Matters related to subpoenas shall be as provided in 1 Pa. Code §  35.142 (relating to subpoenas).

§ 1005.162. Depositions.

 Matters related to depositions shall be as provided in 1 Pa. Code § §  35.145—35.152 (relating to depositions).

CLOSE OF THE RECORD


§ 1005.171. Close of the record.

 (a)  The record will be closed at the conclusion of the hearing unless otherwise directed by the Authority or presiding officer.

 (b)  After the record is closed, additional matter may not be relied upon or accepted into the record unless allowed for good cause shown by the Authority or presiding officer upon motion.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code § §  35.231 and 35.232 (relating to reopening on application of party; and reopening by presiding officer).



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