Appeal from the Order of the Court of Common Pleas of York County in case of In Re: Petition For Reinforcement of Four Subpoenas of the Pennsylvania Securities Commission to Richard C. Fox, Esquire, Misc. Docket YY, Page 356.
Lewis H. Markowitz, with him Markowitz, Kagen & Griffith, for appellants.
Martin H. Aussenberg, Assistant Attorney General, with him Carl F. Safanda, Deputy Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
This appeal arises out of an attempt by the Pennsylvania Securities Commission (Commission) to subpoena certain records and documents allegedly in the custody and control of the appellant, Richard C. Fox.
On August 15, 1973, pursuant to an investigation of sales of securities by American Leasing and Franchising, Inc. (ALF) and its related companies, the Commission issued four subpoenas directing Mr. Fox, a former director and control person of ALF, to produce the records of certain named corporations.*fn1 He refused to comply and the Commission then petitioned the Court of Common Pleas of York County to enforce the subpoenas.*fn2 He then filed both an answer and preliminary objections, the latter raising various jurisdictional questions. Regarding these objections, the lower court stated on October 19, 1973, "You can argue at some other Court, or maybe before me at some other time, these other matters." On the same date, that court proceeded to hear argument on the merits of the petition. On November 26, 1973 an order was filed dismissing the preliminary
objections and directing Mr. Fox to obey all four subpoenas. Taking exceptions to this order, he then filed a timely appeal with this Court. The Commission in turn has filed a Motion to Quash the Fox appeal, asserting that the lower court's order is interlocutory and thus not appealable. It is the Commission's motion which is now before us.
We must first comment on our jurisdiction in this matter. The Commission, as was its prerogative, elected to institute enforcement proceedings in the Court of Common Pleas of York County rather than in this Court which, of course, has concurrent jurisdiction. Pennsylvania Securities Act of 1972, Act of Dec. 5, 1972, P.L. 1280, 70 P.S. § 1-510(c) (Supp. 1974-1975). This Court also has jurisdiction of appeals from final orders of the courts of common pleas in all civil proceedings to which the Commonwealth is a party which obviously is the case here. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.402(1) (Supp. 1974-1975). Thus, if the lower court's order is not interlocutory and is final, as Mr. Fox asserts, we must entertain the appeal and review the merits of the order. On the other hand, if the lower court's order is interlocutory, our review is limited to the question of the lower court's jurisdiction. Act of March 5, 1925, P.L. 23, as amended, 12 P.S. § 672; Exxon Corp. v. Pennsylvania Department of Transportation, 10 Pa. Commonwealth Ct. 301, 312 A.2d 121 (1973); Allegheny Contracting Industries, Inc. v. Flaherty, 6 Pa. Commonwealth Ct. 164, 293 A.2d 639 (1972). Therefore, even if the lower court's order is interlocutory, we must still decide any questions presented concerning the jurisdiction of that court.
We find substantial authority to support the conclusion that an order commanding compliance with a subpoena is not final, but, rather, is interlocutory and not appealable. In the leading case of Alexander v. United Page 76} States, 201 U.S. 117 (1906), the plaintiffs refused to comply with subpoenas compelling the production of certain books and records before a special examiner investigating antitrust violations. The examiner petitioned the lower court, as the Commission did in the instant case, for "such action as the court might take for the further enforcement of its orders [the subpoenas]." The plaintiffs were ordered to comply with the subpoenas and appealed from that order. Ultimately the United States Supreme Court dismissed the appeal stating: "In a certain sense finality can be asserted of the orders under review; so, in a certain sense finality can be asserted of any order of a court. And such an order may coerce a witness, leaving him no alternative but to obey or be punished. It may have the effect and the same characteristic of finality as the orders under review, but from such a ruling it will not be contended there is an appeal. Let the court go further, and punish the witness for contempt of its order, -- then arrives a right of review; and this is adequate for his protection without unduly impeding the progress of the case." Alexander v. United States, 201 U.S. 117, 121 (1905).
Our own courts have accorded full weight to this position, adopting the language in similar cases arising in the Commonwealth. Deen's Appeal, 135 Pa. Superior Ct. 376, 387, 5 A.2d 613, 617 (1939); accord, Riccobene Appeal, 439 Pa. 404, 286 A.2d 104 (1970). It is clear, therefore, that before a witness may gain appellate review of an order to enforce a subpoena, he must first refuse to testify and risk the penalties of contempt. And the rule must apply in this case as well, even though this particular witness is a member of the bar of this Commonwealth. His profession accords him no special status as a witness which would relieve him of the risk to which ...