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FALONE APPEAL (01/16/75)

decided: January 16, 1975.

FALONE APPEAL


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, No. 0430, in re: Appeal of William Falone.

COUNSEL

Herbert K. Fisher, with him Bloom, Ocks & Fisher, for appellant.

Peter Noel Duhamel, Assistant Attorney General, with him Walter M. Phillips, Jr., Deputy Attorney General, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Watkins, P. J. Jacobs, J., dissents. Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Watkins

[ 231 Pa. Super. Page 390]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County, Criminal Division, by the appellant-defendant, William Falone, holding him in civil contempt and confinement until he either purges himself by testifying before the Special Grand Jury, or until the said jury ceases to exist, or until he has been confined for a total of six (6) months from the date that his confinement began.

The appellant was subpoenaed to appear before the Special Investigating Grand Jury. When called to testify, he refused to answer questions by exercising his right against self-incrimination. A petition in the name of the Attorney General was filed under the Pennsylvania Immunity Act, 1968, November 22, P. L. 1080, No. 333, § 1 et seq.; 19 P.S. § 640.1 et seq., to grant the appellant immunity. The court below entered an order granting immunity to the appellant, but the appellant upon recall again refused to testify before the jury because he contended that the petition to grant immunity

[ 231 Pa. Super. Page 391]

    was defective in that it was improperly verified among other alleged irregularities.

The pertinent portion of the Act reads as follows (19 P.S. § 640.2):

"Petition for Order

"The Attorney General may petition the court of the county in which such proceedings are being conducted for an order requiring any person to testify or produce evidence, which petition may be joined in by the district attorney of the county where such proceedings are being conducted. Such petition shall set forth the nature of the investigation and the need for the immunization of the witness."

The Act, supra, specifically designates the "Attorney General" as the one to petition and does not create departmental delegation of authority so to do. The verification of the petition must, therefore, be by the Attorney General or if by a third party it must be pursuant to Pennsylvania Rules of Civil Procedure 206 ...


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