Friday, April 24, 2015

admin. law - telephone hearings

Long v. Board of Prof. and Occup. Affairs – Cmwlth. Court – March 30, 2015



Former podiatrist sought reinstatement of his license.  Board denied his motion to have 6 witnesses testify by telephone as to his good character and rehabilitation.  The Court upheld the denial of the motion, citing “valid concerns” about e.g. “the difficulty in evaluating the demeanor of witnesses over the telephone” and “the “absence of established procedures for taking such testimony.”  Here is its discussion of the issue.


In its opposition to the motion below, the Commonwealth cited our decision in Knisley v. UCBR, 501 A.2d 1180 (Pa. Cmwlth. 1985), wherein we held that the Unemployment Compensation Board of Review was not authorized to hold telephonic hearings over the objection of a litigant in the absence of regulations that provided safeguards to assure fair, impartial hearings. Id. at 1182. Petitioner argues on appeal that Knisley was decided solely based on a lack of regulations regarding telephonic testimony, a defect which was cured by subsequent Department of Labor and Industry regulations which provide safeguards to the parties’ due process rights and assure the uniform application of such rules. 34 Pa. Code §§ 101.127–101.133. The Board argues that the hearing officer appropriately denied the motion under Knisley.


Though we need not decide whether Knisley controls our decision here, the concerns raised in that decision regarding telephonic testimony, including witnesses fraudulently misrepresenting their identities or referring to documents that had not been admitted into evidence, are equally applicable here and were appropriate considerations for the hearing officer. Unlike in the unemployment compensation context, the Board has not enacted regulations relating to when telephonic testimony may be permitted and the procedure to take such testimony. Similarly, the General Rules of Administrative Practice and Procedure, which are also applicable here, lack regulations concerning telephonic testimony. Furthermore, the hearing officer may also have appropriately considered the difficulty in evaluating the demeanor of witnesses over the telephone. Thus, in light of the valid concerns in conducting telephonic testimony and in the absence of established procedures for taking such testimony, we conclude that the hearing officer did not abuse her discretion in denying Petitioner’s motion.5



The court also noted (in n. 5) that the petitioner


did not articulate in the motion any compelling reason why it was impracticable for the six witnesses to attend the hearing; instead he simply stated that the witnesses lived in Western Pennsylvania and requested that they be allowed to testify by telephone. (R.R. at 8.) Petitioner had recourse to other avenues for procuring the witnesses’ testimony, including by seeking a subpoena to compel their attendance or by filing an application to take the testimony of the witnesses by deposition prior to the hearing. See 1 Pa. Code §§ 35.142, 35.145–35.152.   (emphasis added)




Editor’s note:  PHFA and other state agencies hold phone hearings without any  telephone regulations like those that exist for UC hearings.


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statute of limitations - equitable tolling

US v. Wong – U.S. Supreme Court – April 22, 2015 (5-4)



Held, Federal Tort Claims Act time limits for suit against the government are subject to equitable tolling.  The statute of limitations was held to be not jurisdictional, despite “shall be forever barred” language.