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HEMPHILL v. LENZ (11/12/63)

November 12, 1963

HEMPHILL
v.
LENZ, APPELLANT.



Appeal, No. 288, Jan. T., 1963, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1963, No. 20, in case of Alexander Hemphill, City Controller, v. William Lenz, treasurer, Marbelite Company, Inc. Order reversed; reargument refused December 18, 1963.

COUNSEL

Howard Gittis, with him Herbert W. Yanowitz, Thomas D. McBride, and Wolf, Block, Schorr and Solis-Cohen, for appellant.

Karl I. Schofield, Assistant City Solicitor, with him James L. Stern, Second Deputy City Solicitor, Matthew W. Bullock, Jr., Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Cohen

[ 413 Pa. Page 10]

OPINION BY MR. 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.*fn1

[ 413 Pa. Page 11]

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 § 8-409 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.*fn2

[ 413 Pa. Page 12]

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 make 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 ...


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