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PETITION ARLEN SPECTER (01/24/74)

decided: January 24, 1974.

IN RE: PETITION OF ARLEN SPECTER


Original jurisdiction, No. 419 Misc. Docket No. 19, upon petition for writ of prohibition, in re proceedings sur the petition of Arlen Specter, District Attorney of Philadelphia requesting a grand jury investigation, Bernice Zazow, petitioner.

COUNSEL

John Rogers Carroll, with him Robert E. Gabriel, for petitioner.

David Richman, Assistant District Attorney, with him Arlen Specter, District Attorney, for respondent.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Nix. Mr. Justice Manderino joins in this dissenting opinion.

Author: O'brien

[ 455 Pa. Page 519]

The matter before us is a petition for writ of prohibition brought by Bernice Zazow, who seeks an order restraining the Honorable Harry A. Takiff, Supervising Judge of the Investigating Grand Jury of Philadelphia, from conducting proceedings in connection with a subpoena served upon petitioner.

Prior to the day scheduled for her appearance, petitioner filed a petition and motion to quash the subpoena, alleging, inter alia, that:

"(a) the subpoena issued to her (and the proposed questioning of her by the district attorney) was in some part based upon information gained from an interrogation of her conducted by an assistant district attorney in the absence of counsel and in the absence of warnings to her of her Miranda rights, and

"(b) the subject matter of the proposed questioning of her was entirely beyond the scope of the convening petition and charge to the investigative grand jury."

On August 2, 1973, Judge Takiff denied petitioner's motion to quash. In lieu of complying with the court's order commanding her to appear to testify before the grand jury, petitioner then filed the petition for a writ of prohibition. A stay of proceedings was subsequently granted, pending our determination of the petition.

[ 455 Pa. Page 520]

It has long been the law that the denial of a motion to quash a grand jury subpoena is interlocutory and, therefore, not appealable. United States v. Ryan, 402 U.S. 530 (1971), Cobbledick v. United States, 309 U.S. 323 (1940). Instead, the party subpoenaed must either comply with the subpoena or refuse to comply and litigate the propriety of the subpoena in the event that contempt or similar proceedings are brought against him. Forcing the party subpoenaed to make such a choice is justified by the "necessity for expedition in the administration of the criminal law." United States Page 520} v. Ryan, supra, at 533. What the petitioner is not permitted to do by direct appeal, she is apparently attempting to do by a writ of prohibition.

The principles regulating the issuance of writs of prohibition were clearly set forth in Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 61 A.2d 426 (1948), where we said, at page 102: "The writ of prohibition is one which, like all other prerogative writs, is to be used only with great caution and forbearance and as an extraordinary remedy in cases of extreme necessity, to secure order and regularity in judicial proceedings if none of the ordinary remedies provided by law is applicable or adequate to afford relief. It is a writ which is not of absolute right but rests largely in the sound discretion of the court. It will never be granted where there is a complete and effective remedy by appeal, certiorari, writ of error, injunction, or otherwise [citing cases]. As pointed out in the last cited authority [United States Alkali Export Association, Inc. v. United States, 325 U.S. 196] (p. 203), 'appellate courts are reluctant to interfere with ...


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