In re Enforcement of Subpoenas to John Doe Corporations A, B, C, D & E

489 A.2d 182, 507 Pa. 137, 1985 Pa. LEXIS 302

Opinions

OPINION OF THE COURT

HUTCHINSON, Justice.

Footnotes

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This case is before us on our grant of the captioned corporations’ application for assumption of plenary jurisdiction. That application was filed after Commonwealth Court refused to dismiss the Pennsylvania Crime Commission’s petition for enforcement of subpoenas duces tecum. The Commission had issued and served the subpoenas upon the corporations in connection with an investigation it was conducting. As a corollary to its order refusing the corporations’ motion to dismiss the petition for enforcement, Commonwealth Court struck their petitions to review the issuance of the subpoenas holding them not ripe for review under our decision in Re: Pennsylvania Crime Commission, 453 Pa. 513, 309 A.2d 401 (1973).¹

Commonwealth Court, as the Commission conceded, correctly recognized that the new enforcement procedure the Legislature attempted to prescribe in Section 7 of the Act² reconstituting the Crime Commission failed the constitutional tests we set out in Commonwealth ex rel. Chidsey v. Mallen, 360 Pa. 606, 63 A.2d 49 (1949), to assure due process in compelling obedience to administrative subpoenas. However, it also correctly recognized that the subpoena power itself, set forth in Section 4(7) of the same Act, 71 P.S. § 1190.4(7), lay at the heart of the Legislature’s intent in reconstituting an agency to investigate organized crime and corruption and provide the Legislature with a factual basis for legislation to control these problems. Lacking the power to prescribe procedural rules, Commonwealth Court sought to preserve the Commission’s subpoena power by finding an alternative statutory enforcement procedure in Section 520 of the Administrative Code, Act of April 9, 1929, P.L. 177, 71 P.S. § 200. To do so, however, that court had to overlook the anomaly of ordering the Commission to return to basically the former procedure which the Legislature rejected when it adopted Section 7 of the 1978 Act reconstituting the Commission. We granted plenary jurisdiction to resolve this dilemma. After carefully considering the problem, with the aid of briefs and argument from the parties and the Attorney General,³ we believe the issue best resolved by exercising our power to make the procedural rules necessary for the judicial enforcement of the Commission’s authority. We do so prospectively by adopting, on an interim basis, the concededly adequate procedure Commonwealth Court found in Section 520 of the Administrative Code.

The facts necessary to an understanding of this issue are set forth in the following extract from Commonwealth Court’s majority opinion:

The Pennsylvania Crime Commission (Commission) served subpoenas upon John Doe Corporations A, B, C, D and E (Corporations) for the production of documents. The Corporations refused to comply with the subpoenas, and the Commission subsequently has petitioned this Court for the enforcement of the subpoenas. The Corporations have filed preliminary objections in the nature of a demurrer and a motion for a more specific pleading.

The Commission is an investigative agency which acts pursuant to the powers and duties conferred upon it by the Pennsylvania Crime Commission Act, Act of October 4, 1978, P.L. 876, 71 P.S. §§ 1190.1-1190.11 (Act). These include the power to issue subpoenas, Section 4(7) of the Act, 71 P.S. § 1190.4(7), and a provision for enforcement of subpoenas, Section 7 of the Act, 71 P.S. § 1190.7. These powers were the basis for the subpoenas served upon the five Corporations on November 9, 1983. The subpoenas commanded the production of various documents covering the period 1979 through the date of service.

The Corporations refused to comply with the subpoenas. Although ... Section 7 of the Act appears to provide that the Commission’s subpoenas are self-executing, the Commission next sought the aid of this Court in enforcing its subpoenas.

The Corporations first object that Section 7 of the Act is unconstitutional in that it fails to provide a procedure for court enforcement of the Commission’s subpoenas as a prerequisite to a finding of contempt. Section 7 states:

If any person subpoenaed pursuant to section 4(7) [of the Act] shall neglect or refuse to obey the command of the subpoena, any judge of the Commonwealth Court, upon request of the commission, and on proof of affidavit of service of the subpoena, payment or tender of any fees required and of refusal or neglect by the person to obey the command of the subpoena may issue a warrant for the arrest of said person to bring him before said judge, who is authorized to proceed against said person as for civil contempt of court.

The Commission acknowledges that the failure of the statute to provide an intermediate hearing before the Court on the substance of the subpoenas does not satisfy the requirements of due process.¹

84 Pa. Commonwealth Ct. at 238, 479 A.2d at 657-58 (footnote in original).

Whatever the efficacy or propriety of a particular enforcement procedure, the subpoena power set out in Section 4(7) of the Act is central to the Crime Commission’s reason for being. Again, in the words of the Commonwealth Court:

It would be absurd to hold that the Commission is without a means of enforcing its subpoena power. An investigative commission without power to investigate obviously was not the legislative intent.

84 Pa. Commonwealth Ct. at 240, 479 A.2d at 658-59. Moreover, the general rule governing constitutional construction of statutes declares: “The provisions of every statute shall be severable.” 1 Pa.C.S. § 1925.⁴

Nevertheless, prior to the ratification of Article V of the 1968 Constitution, the defect in the Section 7 statutory procedure for enforcement of subpoenas might have brought the Section 4(7) substantive provision authorizing subpoenas within the exception to the general rule of sever-ability, i.e., “that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.” However, Article V, Section 10(c) of the 1968 Constitution removes any such difficulty. It confers upon this Court the power to make rules of procedure provided they “neither abridge, enlarge or modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose.”

Since the subpoena power is central to the legislative purpose in creating and continuing the Crime Commission, we would be derelict in our constitutional duty if we failed to provide a constitutionally permissible procedure for judicial determination of the validity of individual subpoenas and the propriety of sanctions against individuals who disobey them. This Court will, therefore, exercise its power under Article V, Section 10(c) of our Pennsylvania Constitution to prescribe such judicial procedures as are necessary for the enforcement of the Commission’s substantive right to issue subpoenas. It is appropriate for us to do so here in order to carry out the legislative intent of reconstituting the Commission with the subpoena power necessary to any effective investigating agency. We therefore suspend Section 7 and adopt Administrative Code Sec tion 520. We, like Commonwealth Court, find that latter section constitutional as an interim procedure for the enforcement of the Commission’s subpoenas.

The interim adoption of Administrative Code Section 520 seems to us necessary and desirable in order to permit the Commission to continue functioning effectively pending further appropriate action by the Legislature, or this Court, with respect to the implementation of its subpoena power. However, because the power to adopt general rules of procedure, although given to this Court as the governing authority of the Judicial Branch by Article V, Section 10(c) of our Constitution, is in the nature of a legislative rather than a judicial power, it should, ordinarily, be exercised only prospectively. We will so exercise it here and accordingly require the Commission to begin anew by reissuing and serving those subpoenas appropriate and relevant to the purpose of its investigation. In the event of a subpoenaed witness’s failure to respond, the Commission can then, if it wishes, seek Commonwealth Court’s aid to enforce the dishonored subpoenas by a constitutionally proper procedure. That procedure will also preserve the appellants’ due process right to a judicial test in Commonwealth Court of the validity of the subpoenas and their relevance to a properly authorized investigation of the Commission.

Plenary jurisdiction is relinquished and the record remanded to the Crime Commission for such further proceedings, consistent with this opinion, as may be appropriate.

PAPADAKOS, J., files a Concurring Opinion. ZAPPALA, J., files a Dissenting Opinion. LARSEN, J., did not participate in the consideration or decision of this case.

This case was reassigned to this writer on December 5, 1984.

1

. That order is the subject of a Notice of Direct Appeal the corporations filed at 110 E.D. Appeal Docket, 1984. See, 84 Pa.Commonwealth Ct. 234, 479 A.2d 655. Both cases were argued together. However, we are dismissing that appeal by separate order consistent with our decision here.

2

. Act of October 4, 1978, P.L. 876, § 7, 71 P.S. § 1190.7.

3

. In support of the constitutionality of Section 7, the Attorney General has argued that the language of that section is analogous to the enforcement of summons procedure set forth in 26 U.S.C.S. § 7604(b) and, therefore, in conformity with the due process requirements of the United States Constitution under the United States Supreme Court’s opinion in Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964). Based on its analysis of the interdependent summons enforcement scheme in the Internal Revenue Code, 26 U.S.C. §§ 7210, 7402 and 7604, Reisman seems to us to require a meaningful opportunity to object to the substance of the subpoena before the contempt process begins. Unlike Section 7604(b) of the Internal Revenue Code, Section 7 of our Crime Commission Act does not explicitly call for such a hearing on the subpoena before the summoning judge prior to a finding of civil contempt. We are, therefore, unable to approve the procedure specified in Section 7 of our statute.

1

The present statute is in contrast to the former statute, which provided that upon failure of a person to respond to a subpoena, the Commission could invoke the aid of the court for enforcement purposes. Section 3 of the Act of July 31, 1968, P.L. 754, 71 P.S. § 307-7(9), repealed by the Act of October 4, 1978, P.L. 876.

4

. Section 1925 reads:

The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.