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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