Appeals, Nos. 235 and 236, Jan. T., 1963, from orders of Court of Quarter Sessions of Philadelphia County, in re November 1962 Grand Jury Investigation. Orders reversed.
Arthur Littleton, with him John R. McConnell, and Morgan, Lewis & Bockius, for appellants.
Arlen Specter, Assistant District Attorney, with him Stanley M. Shingles and Louis F. McCabe, Assistant District Attorneys, Charles H. Rogovin, Chief Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth.
Charles H. Weidner, Calvin E. Smith, and Stevens & Lee, for amici curiae.
Arthur B. Hanson, Calvin H. Cobb, Jr., Emmett E. Tucker, Jr., and R. Kennon Jones, of the Washington, D. C. Bar, for amicus curiae.
Before Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Appellants appeal from Orders adjudging each of them guilty of contempt of Court and imposing on each of them a fine of $1,000 and a sentence of five days imprisonment in the Philadelphia County prison.
The November 1962 Investigating Grand Jury was convened and charged to investigate alleged criminal conduct and corruption in the legislative and executive branches of the City of Philadelphia and in the Zoning Board of Adjustment and in the Department of Licenses and Inspection and conspiracy with certain
members of the City Committee of the Democratic party.
In January, 1963, a subpoena duces tecum was served upon Robert L. Taylor, President of Bulletin Company and General Manager of The Bulletin, and Earl Selby, who is City Editor of The Evening and Sunday Bulletin, which are newspapers of widespread general circulation. The subpoena to appear before the Grand Jury arose out of the Grand Jury's investigation of John J. Fitzpatrick, and statements made by him concerning alleged solicitation, bribery, corruption and crime. The subpoena directed Taylor and Selby to bring with them (a) "All tape recordings, written statements, Memoranda of interviews, conversations, conferences had with John J. Fitzpatrick"; and (b) "All copies of statements given by John J. Fitzpatrick to the District Attorney*fn1 on February 20, 1962, portions of which appeared in the Philadelphia Evening Bulletin on December 30, 1962;" and (a) "all tape recordings of conferences, interviews, discussions, interrogations or conversations with John Fitzpatrick"; (b) "all memorandum, notes, reports and other documents of or pertaining to conferences, interviews, discussions, interrogations or conversations with John Fitzpatrick"; (c) "all memorandum, notes, reports and other documents of or pertaining to investigations conducted as a result of information furnished by John Fitzpatrick"; (d) "all records of expenses incurred directly or indirectly in gathering information from, or conducting conferences, investigations, discussions, interrogations or conversations with John Fitzpatrick"; (e) "all documents of or pertaining to the examination of John Fitzpatrick by polygraph, examiners, physicians, psychologists or other experts"; and (f) "any and all other documents of or pertaining to John Fitzpatrick".
The aforesaid Bulletin article dated December 30, 1962 was titled, "Fitzpatrick's Secret Talk to DA Is Bared". The article consisted primarily of questions put to, and answers made by John J. Fitzpatrick, a former Democratic ward leader and a former Sergeant at Arms of City Council, on February 20, 1962, during one of the four times he was interrogated by the District Attorney's office. The article stated, inter alia, that the District Attorney had refused to make transcripts of these interrogations public, but that The Bulletin now had access to them. Near the close of the article it was stated that the interrogations ended with the Assistant District Attorney saying he would go over the record for further questions. The article then added: "However, much of the subsequent questioning dealt with what John Fitzpatrick had told Bulletin reporters." This last sentence is particularly important in the consideration of one of the questions involved, as will hereinafter more fully appear.
Taylor and Selby appeared before the Grand Jury, but under advice of counsel and relying upon the Act of June 25, 1937, P.L. 2123, § 1, 28 P.S. § 330, as amended, respectfully refused to answer certain questions. Thereupon the Assistant District Attorney brought these witnesses before Judge GOLD, Taylor on January 21, 1963 and Selby on January 22, 1963. On these occasions both witnesses for the above reasons again respectfully refused to answer certain questions propounded by the Assistant District Attorney and allowed by the Court, which questions in their opinion and in the opinion of their counsel were privileged and should not be disclosed. The Assistant District Attorney then moved orally that the witnesses be cited for contempt.
This case is of great importance, as is evidenced, inter alia, by the fact that the Pennsylvania Newspaper Publishers ...