decided: December 29, 1971.
PENNSYLVANIA CRIME COMMISSION PETITIONS
Appeals from orders of Commonwealth Court, Nos. 402, 404, and 405, C.D. of 1971, in re The Petitions of the Pennsylvania Crime Commission for rules to show cause why Michael Grasso, Jr., Ralph Puppo and Rocco Molinari should not be ordered to testify and to produce documentary evidence; appeal of Michael Grasso, Jr., Ralph Puppo, and Rocco Molinari.
Alan J. Davis, with him Lester J. Schaffer, Ronald N. Rutenberg, Wolf, Block, Schorr and Solis-Cohen, Zink, Shinehouse & Holmes, and Rutenberg, Rutenberg, Rutenberg and Rutenberg, for appellants.
Alan L. Adlestein, Assistant Attorney General, with him Russell M. Coombs, Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
[ 446 Pa. Page 153]
This case presents a challenge to the personal and subject matter jurisdiction of the Commonwealth Court to determine whether appellants should be compelled to obey subpoenas to testify before the Pennsylvania Crime Commission.
The pertinent facts are that on May 3, 1971, appellants were served with subpoenas directing them to appear
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and give testimony before the Crime Commission*fn1 at the State Office Building in Philadelphia. Appellants, accompanied by their respective lawyers, appeared at the appointed time and place, but they refused to be sworn or to answer any questions or to produce any documents, alleging that the Commission and its processes are unlawful and invalid under the Pennsylvania Constitution and laws and the Constitution of the United States. Subsequently, on June 1, 1971, the Commission petitioned the Commonwealth Court for a "Rule to Show Cause Why [Appellants] Should Not Be Ordered to Testify and to Produce Documentary Evidence." The Rule was granted and made returnable on June 16, 1971, and notice thereof duly given to appellants. Prior to the return date appellants filed preliminary objections raising the jurisdictional questions above mentioned. The objections having been overruled, this appeal followed.*fn2
I. Subject-Matter Jurisdiction
Section 3 of the Crime Commission, Act, supra, note 1, 71 P.S. 307-7(9) (Supp. 1971), provides: ". . . Upon failure of any person so ordered to testify or to produce evidence, the commission may invoke the aid of any court of common pleas of the county wherein the person
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is summoned to appear or the county wherein the person is served with a subpoena." Appellants contend that by reason of the above provision, only the courts of common pleas have jurisdiction to enforce the Crime Commission's subpoenas.*fn3
The Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, § 401, 17 P.S. § 211.401 (Supp. 1971) provides that the Commonwealth Court shall have original jurisdiction of: ". . . [a]ll civil actions or proceedings by the Commonwealth*fn4 or any officer thereof, acting in his official capacity, except proceedings under the Eminent Domain Code; . . . ." It is the position of appellants, however, that both principles of statutory construction and case law negate the Commonwealth Court's jurisdiction in this case.
Preliminarily, an examination and comparison of the relevant portions of The Commonwealth Court Act of 1970, Act of January 6, 1970, P. L. (1969) 434, 17 P.S. § 211.1 et seq. (Supp. 1971) and the Appellate Court Jurisdiction Act, supra, are necessary to an understanding of the issue. The Commonwealth Court Act established the Commonwealth Court and, until passage of the Appellate Court Jurisdiction Act, prescribed the jurisdiction of that court. Section 8(e)(3) of The Commonwealth Court Act specifically prohibited
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the court from exercising jurisdiction in any "proceeding involving the interpretation, application, or enforcement of any act of assembly which expressly vests jurisdiction in the courts of common pleas. . . ." This section, however, was specifically repealed by § 509(a) (7) of the Appellate Court Jurisdiction Act, 17 P.S. 211.509(a)(7) (Supp. 1971), enacted seven months after The Commonwealth Court Act, and effective September 11, 1970. Moreover, § 401 (b) of the Appellate Court Jurisdiction Act, 17 P.S. 211.401(b) (Supp. 1971), provides: "The jurisdiction [defined in paragraph (a) of § 401] of The Commonwealth Court shall be exclusive except as provided in Section 201 of this Act [dealing with the original jurisdiction of the Supreme Court] and except with respect to actions or proceedings by the Commonwealth or any officer thereof, acting in his official capacity, where the jurisdiction of the court shall be concurrent with the several courts of common pleas." (Emphasis added.)
We are in accord with the Commonwealth Court in finding this language to be plain and unambiguous on its face, obviating any need to resort to the rules of statutory interpretation and construction. Commonwealth v. Rieck Inv. Corp., 419 Pa. 52, 59, 213 A.2d 277 (1965); Davis v. Sulcowe, 416 Pa. 138, 143, 205 A.2d 89 (1964); Orlosky v. Haskell, 304 Pa. 57, 62, 155 Atl. 112 (1931). See also Act of May 28, 1937, P. L. 1019, art. IV, § 51, 46 P.S. § 551. It is manifest to us that the legislature intended by paragraph (b) to make the jurisdiction of the Commonwealth Court concurrent with the jurisdiction of the courts of common pleas courts in any action or proceeding in which the Commonwealth is the moving party. Since the courts of common pleas have subpoena enforcement powers under the Crime Commission Act, supra, it follows that the Commonwealth Court now has concurrent enforcement power under the same Act. This Court has long
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ago upheld the power of the legislature to create such concurrent jurisdiction. Commonwealth v. Green, 58 Pa. 226 (1868).*fn5
Appellants' alternative argument directed to the question of subject-matter jurisdiction is premised upon the case of Alpern v. Girard Trust Co., 403 Pa. 391, 170 A.2d 87 (1961), a case decided under the Act of May 25, 1937, P. L. 793, § 1, 17 P.S. § 255 (repealed 1970). That statute had clothed the Dauphin County Court of Common Pleas with statewide jurisdiction to hear and determine all claims "in which the Commonwealth may be the party plaintiff for accounts, unpaid balances, unpaid liens, taxes, penalties and all other causes of action, real, personal and mixed." In the Girard case, it was held that the Dauphin County Court did not have jurisdiction even though the Commonwealth was the party plaintiff; this because the remedial statute creating the right of action vested exclusive jurisdiction in enumerated other courts and because the statute was "a special statute dealing with a particular matter." Simply stated, we find the Girard decision to have no application to the jurisdiction of the newly established Commonwealth Court, especially in light of the Appellate Court Jurisdiction Act provision clothing the Commonwealth Court with concurrent jurisdiction in actions of the above nature.*fn6
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II. Personal Jurisdiction
Appellants' second contention is that the Commonwealth Court does not have jurisdiction over their persons because the Crime Commission did not commence the subpoena enforcement proceeding in compliance with Pennsylvania Rule of Civil Procedure 1007.*fn7 Appellants rely primarily upon this Court's decision in Commonwealth v. Dauphin County, 354 Pa. 556, 47 A.2d 807 (1946).*fn8 See also Hartmann v. Peterson, 438 Pa. 291, 265 A.2d 127 (1970); Cooney v. Pa. Osteopathic Assn., 434 Pa. 358, 253 A.2d 256 (1969). Appellants acknowledge that the petition and rule, with which they were personally served, gave them adequate notice of the pending proceeding. Cf. Hemphill v. Lenz, 413 Pa. 9, 195 A.2d 780 (1963) where no service of the petition or rule was made. Appellants raise the issue, however, of whether a petition for a rule to show cause was a proper way to initiate these proceedings, an issue left undecided in the Hemphill case. Id. at p. 14, n.6. Appellants point to Rule 1007 of the Pennsylvania
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Rules of Civil Procedure as dictating a negative answer.
Rule 1007 provides that "an action" may be commenced by the filing of a praecipe for a writ of summons, a complaint, or an agreement for an amicable action. "Action" is defined in Rule 1001 to mean action in assumpsit, and by extension in later rules also includes actions in trespass, equity, ejectment, and the various other forms of action covered by the rules. None of the rules embraces the kind of proceeding here involved. Rule 1007 is therefore not applicable.*fn9
The Appellate Court Jurisdiction Act, § 401, supra, in investing the Commonwealth Court with jurisdiction, speaks of "actions and proceedings." (Emphasis added.) While the vast majority of legal proceedings of a civil nature brought in this Commonwealth are "actions" of one sort or another, and must therefore be commenced and prosecuted conformably to the Rules of Civil Procedure, including Rule 1007, it is apparent that there are some proceedings which are not within that category. The case at bar is an illustration.
Rules to show cause have long been a recognized and valuable tool in Pennsylvania jurisprudence. While a rule is normally available only for the purpose of facilitating jurisdiction already acquired, Petrovich Appeal, 155 Pa. Superior Ct. 138, 38 A.2d 709 (1944), this Court has previously observed that, "[t]he enlarged operation of rules is a somewhat peculiar and
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very admirable feature of Pennsylvania jurisprudence, growing largely out of the administration of equity through common law forms." Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, 457, 54 Atl. 334 (1903). Moreover, the exceptional use of a rule to show cause as a vehicle to provide courts with personal jurisdiction over a party has been upheld by this Court and the Superior Court. See, e.g., Delco Ice Mfg. Co. v. Frick Co., 318 Pa. 337, 178 Atl. 135 (1935); Automobile Banking Corp. v. Weicht, 160 Pa. Superior Ct. 422, 51 A.2d 409 (1947).
We find the case presented to be of the exceptional nature where a rule may be employed as original process. The Crimes Commission Act, § 3, supra, note 1, provides that the Commission may "seek the aid of" the court to enforce compliance with its subpoenas. The court proceeding is thus, in a sense, auxiliary to the exercise by the Commission of its investigatory function. It seems entirely proper, and without prejudice to the rights of any person who has been served with a subpoena, that this aid should be invoked by means of a petition and rule.*fn10 The answer to the petition (or preliminary objections thereto, such as were filed in this case) can raise any proper defense or objection which the responding party may have.