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COMMONWEALTH v. POLAK (03/20/70)

decided: March 20, 1970.

COMMONWEALTH
v.
POLAK, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June 9, 1969, in case of Commonwealth v. Clark P. Polak.

COUNSEL

Norman A. Oshtry, for appellant.

Edward G. Rendell, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Concurring Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this opinion.

Author: Per Curiam

[ 438 Pa. Page 67]

Clark Polak is the owner of two Philadelphia bookstores, each of which contains several coin-operated devices used in the exhibition of allegedly obscene motion pictures. On May 27, 1969, representatives of the

[ 438 Pa. Page 68]

Philadelphia police and of the Office of the District Attorney of Philadelphia County visited Polak's establishments. After viewing portions of the allegedly obscene motion pictures they served Polak with a witness subpoena ordering him to appear at a hearing to be held on June 2, 1969, and with what purported to be a subpoena duces tecum ordering him to bring to the hearing copies of some eight motion pictures which were in his possession.

At the June 2, 1969, hearing, Polak appeared without the films and further refused to produce them. He was then held in contempt of court by Judge Barbieri. Polak claims that his contempt conviction is defective for three reasons. He argues that the trial court had no authority to issue the subpoena duces tecum because there was at the time of issuance no "cause or matter" pending before the court as required by the Act of June 16, 1836, P. L. 784, 17 P.S. § 251; that the subpoena duces tecum was invalid on its face in that there is no indication on the face of the document that it was issued under court authority as required by the Act of June 16, 1836, P. L. 784, § 22, 17 P.S. § 2079; and that enforcement of the subpoena duces tecum would violate his rights under the Fourth and Fifth Amendments to the United States Constitution and Article I, Section 9 of the Constitution of the Commonwealth of Pennsylvania. We feel that Polak is correct in his first contention, and therefore do not reach the other issues.

The Act of June 16, 1836, P. L. 784, 17 P.S. § 2079, provides that: "Each of the said courts is empowered to issue writs of subpoena, under their official seal, into any county of this commonwealth, to summon and bring before the respective court any person to give testimony in any cause or matter depending before them, under the penalties hitherto appointed and allowed in any such case by the laws of this commonwealth."

[ 438 Pa. Page 69]

We believe this statute to require, as a prerequisite to the issuance of a subpoena, that there be some pre-existing matter or cause pending before the court. The essence of a subpoena's function is to aid the court in the resolution of litigation, so if there is no formal proceeding pending before the court there can be no legitimate reason to issue a subpoena. Our courts of common pleas, broad though their jurisdiction may be, are not possessed of the power to originate the kind of judicial or investigatory proceedings which were ...


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