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CATHCART v. CRUMLISH. (03/19/63)


March 19, 1963


Appeal, No. 415, Jan. T., 1962, from decree of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1961, Nos. 3411 and 3412, in case of J. David Cathcart v. James C. Crumlish, Jr., District Attorney, and John T. Curtin v. Same. Decree vacated.


Samuel Dash, with him Morton Witkin, and Witkin and Egan, and Dash and Levy, for appellants.

David Berger, City Solicitor, with him Levy Anderson, First Deputy City Solicitor, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Cohen

[ 410 Pa. Page 254]


In pursuance of an investigation he was conducting, the district attorney of Philadelphia issued subpoenas commanding appellants to appear at his office on November 27, 1961 to testify on certain matters then under investigation. These subpoenas were issued on the alleged authority of section 8-409 of the Philadelphia Home Rule Charter. Appellants filed complaints in equity on November 22, 1961, seeking to enjoin the district attorney from requiring them to appear and testify.

[ 410 Pa. Page 255]

After hearing argument, the lower court dismissed appellants' complaint, holding, inter alia, that section 8-409 of the Philadelphia Home Rule Charter empowered the district attorney to issue subpoenas. An appeal to this Court was then taken.

While this is not the typical case seeking to enjoin criminal proceedings, which the court have traditionally refused to entertain,*fn1 nevertheless this action has all the earmarks of an intrusion into law enforcement processes which should be looked upon with great circumspection. Despite the fact that litigants are not always sensitive to this problem, courts should be alert to question the invocation of equitable jurisdiction where its use might obstruct the functioning of the district attorney's office.

Even though appellee does not raise the question, as an appellate court we must take cognizance of the lack of equitable jurisdiction in the court below since section 8-409*fn2 of the Philadelphia Home Rule Charter

[ 410 Pa. Page 256]

    prescribes a specific statutory procedure wherein the validity of subpoena issued under this section may be tested. See Stahl, Attorney General v. Insurance Company of North America, 408 Pa. 483, 486, 184 A.2d 568 (1962). This section provides for the district attorney to report any non-compliance to a common pleas court which shall promptly hear arguments on the validity of the subpoena. Under the Act of March 21, 1806, P.L. 558, 4 Sm.L. 326, 46 P.S. § 156, it has long been held in various contexts that where a remedy or method of procedure is provided by an act,*fn3 those procedures should be followed exclusively. See, e.g., Knup v. Philadelphia, 386 Pa. 350, 126 A.2d 399 (1956).*fn4 Applying this principle to the case before us, we conclude that appellants cannot question the validity of the subpoena until they are called before the common pleas court.*fn5

Equity jurisdiction is also divested because of the presence of an adequate remedy at law. The remedy is adequate since appellants will suffer no irreparable harm, or for that matter any harm at all, if they have to wait until the district attorney invokes the enforcement

[ 410 Pa. Page 257]

    procedures before they can contest the subpoena. Unlike a judicial subpoena, public officers who are allegedly vested with subpoena power under section 8-409 are not given the power to enforce compliance. Disobedience is not punishable by imprisonment or fine unless it continues after a court has ordered compliance. See Annotation to § 8-409, Philadelphia Home Rule Charter. Therefore, appellants are not placed in the unfortunate dilemma of having to disobey the district attorney's subpoenas at their peril in order to contest their validity.

The two cases cited by appellees are distinguishable on this ground. In both Annenberg v. Roberts, 333 Pa. 203, 215, 2 A.2d 612, 618 (1938) and Germantown Trust Co. v. Powell, 260 Pa. 181, 103 Atl. 596 (1918), it was not necessary to obtain a court order commanding the parties to obey before they were subject to penalties provided in the applicable statutes.*fn6 Unlike the instant case, the applicants for injunctive relief in those cases had to act at their peril in order to test the validity of the demand for documents.

Since equity was without jurisdiction, we conclude that the decree of the court below must be vacated.


Decree vacated at appellants' costs.

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