Hemphill v. Lenz

195 A.2d 780, 413 Pa. 9, 1963 Pa. LEXIS 364

• Court: Supreme Court of Pennsylvania
• Decided: November 12, 1963
• Docket: Appeal, 288
• Status: Published

Opinions

Opinion bt

M!r. Justice Cohen,

This is an appeal from the order of the court below compelling appellant Lenz to appear before the controller of the City of Philadelphia for the purpose of answering questions and producing records in compliance with a subpoena issued under §8-409 of the Philadelphia Home Rule Charter.¹

Marbelite Company, Inc. (Marbelite), a New York corporation, entered into contracts with the City of Philadelphia for the delivery of traffic signal equipment. Appellee, controller of the City of Philadelphia, acting pursuant to §8-109 of the Philadelphia Home Rule Charter, personally served appellant Lenz, treasurer of Marbelite, with a subpoena ordering him to appear for the purpose of giving testimony and producing corporate records relating to Marbelite’s. performance of these contracts. Appellant refused to obey the subpoena. Thereupon, appellee filed a petition in the court of common pleas and obtained a rule to show cause why appellant should not appear and produce certain records. Appellant was unavailable for service in Pennsylvania. A copy of the “petition and rule” was left with a receptionist at Marbelite’s office in Brooklyn and registered letters were mailed to that office by appellee’s New York agent and the city solicitor’s office of Philadelphia. Counsel for appellant appeared and filed preliminary objections to the jurisdiction of the court, alleging that appellant had not been served in accordance with law. The court below overruled these objections and this appeal followed.

The sole question which this appeal presents for our determination is whether the court below had jurisdiction over the person of appellant for the purpose of enforcing the subpoena issued by the controller.²

Appellee contends that the proceeding below , was ancillary to the issuance of the subpoena by the controller and that jurisdiction over the .appellant was therefore' acquired by such issuance. Appellant argues that the court below did. not acquire jurisdiction over him because the proceedings were of the. nature of an independent action which must be commenced by. service of process. The resolution of these arguments lies in the nature of the subpoena and the enforcement proceedings provided by §8-409.

Following refusal to comply with a subpoena issued under §8-409, that section provides that the court may Inake an order commanding a witness to testify or produce documents if it determines “that the testimony or document required of such witness is legally competent and ought to be given or produced by him.” (Emphasis supplied).-The administrative agencies covered by this provision do not have the power to require courts to enforce subpoenas issued under its authorization. The action a court is to take is a matter for its discretion and subject to its customary powers. Thus, the power of the courts in enforcement proceedings closely resembles the power they possess in ordinary actions in law and equity. See Annotation to §8-409.³

In addition to being an extremely useful tool in the prosecution of governmental business, the subpoena power is one which is fraught with possibilities of abuse. Hence, we view its enforcement as well as its use with the utmost caution. Accordingly, in the absence of any direction to the contrary, we hold that court enforcement of an administrative subpoena under §8-409 is an independent judicial proceeding requiring service of process.

We recognize that the procedures for issuance and enforcement of what are sometimes loosely termed “subpoenas” are various. It has been held that where the agency issuing the subpoena has the power to .compel court enforcement on a bare showing that there is a proceeding before the agency over which it has jurisdiction and the evidence sought relates to the matter under investigation, the court proceeding is ancillary to the issuance of the subpoena and the court need not acquire jurisdiction over the subpoenaed party by service of process. Cudahy Packing Company v. NLRB, 117 F. 2d 692, 694 (1941); Goodyear Tire and Rubber Co. v. NLRB, 122 F. 2d 450, 451 (1941).⁴ However, this procedure differs from and has no application to the requirements of §8-409.⁵

The lower court recognized the necessity of obtaining personal jurisdiction over a person by complying with some form of service of process. However, it apparently believed that the successful attempts of the appellant to evade service somehow rectified the appellee’s failure to so comply. The alleged evasive conduct of appellant could not under any circumstances transform what was otherwise improper service' into an effective service of process. Since appellee has not followed any established procedure for obtaining service of process, we need not now determine what type of service is necessary to obtain jurisdiction over a defendant located outside of Pennsylvania in this type of proceeding.⁶

There having been nothing here to give the lower court jurisdiction over appellant, we reverse the order below.

Order reversed with costs to appellee.

1 “Power to Obtain Attendance of Witnesses and Production of Documents. Every officer, department, board or commission authorized to hold hearings or conduct investigations shall have power to compel the attendance of witnesses and the production of documents and other evidence and for that purpose it may issue subpoenas requiring the attendance of persons and the production of documents and cause them to be served in any part of the City. If any witness shall refuse to testify as to any fact within his knowledge or to produce any documents within his possession or under his control, the facts relating to such refusal shall forthwith he reported to any one of the Courts of Common Pleas of Philadelphia County and all questions arising upon such refusal and also upon any new evidence not included in the report, which new evidenee may be offered either in bebalf of or against such witness, shall as promptly as possible be heard by such court. If the court shall determine that the testimony or document required of such witness is legally competent and ought to be given or produced by him, the court may make an order commanding such witness to testify or to produce documents or do both and if the witness shall thereafter refuse so to testify or so to produce documents in disobedience of such order of the court, the court may deal with the witness as in other cases.”

2 Since appellant does not question the validity of the subpoena itself, we need not decide whether there was a hearing before the controller in pursuance to which a subpoena might issue within the contemplation of §8-409. See in this connection Commomoealth ew ret. Margiotti v. Orsini, 368 Pa. 269, 81 A. 2d 891 (1951).

3 See also Cathcart v. Crumlish, 410 Pa. 253, 257, 189 A. 2d 243, 245 (1963).

4 See National Labor Relations Act, 29 USC §161(2) (1956) ; Federal Trade Commission Act, 15 USC §49' (1956). Note that the NLRB as well as the FTC are. quasi-judicial bodies with powers approximating those of the courts.

5 Cf. The Administrative Code, Act of April 9, 1929, P. L. 177, as amended, 71 P.S. §200 (1962) ; Com. ex rel. Chidsey v. Mallen, 360 Pa. 606, 614, 63 A. 2d 49, 53 (1949); County Election Board of Philadelphia v. Rader, 162 Pa. Superior Ct. 499, 503, 58 A. 2d 187, 189 (1948).

6 Nor.do we decide that filing a petition and rule is a proper method for initiating this type of proceeding. See Commonwealth v. Dauphin County, 354 Pa. 556, 47 A. 2d 807 (1946).