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PETITION FOR ENFORCEMENT A SUBPOENA TO AMERICAN BANK AND TRUST COMPANY PENNSYLVANIA. R.H. BOMERSBACH ASSOCIATES (01/30/75)

decided: January 30, 1975.

IN RE: PETITION FOR ENFORCEMENT OF A SUBPOENA TO AMERICAN BANK AND TRUST COMPANY OF PENNSYLVANIA. R.H. BOMERSBACH ASSOCIATES, INC. AND COACHMAN CLUBS INTERNATIONAL, LTD., INTERVENORS


Original jurisdiction in case of In Re: Petition for Enforcement of a Subpoena to American Bank and Trust Company of Pennsylvania; R.H. Bomersbach Associates, Inc. and Coachman Clubs International, Ltd., Intervenors.

COUNSEL

Martin H. Aussenberg, Assistant Attorney General, for petitioners.

Lewis H. Markowitz, with him Richard C. Fox, and Markowitz, Kagen & Griffith, for intervenors.

Judge Blatt. Memorandum Opinion and Order by Judge Blatt.

Author: Blatt

[ 23 Pa. Commw. Page 435]

The Pennsylvania Securities Commission (Commission) has filed a petition to enforce a subpoena, served upon the American Bank and Trust Company of Pennsylvania (Bank), to produce records pertaining to the accounts of two depositors. The depositors, R. H. Bomersbach Associates, Inc. and Coachman Clubs International, Ltd. (Intervenors) were permitted to intervene on their own behalf, and have raised five basic arguments against enforcement: 1) The subpoena was not issued within the statutory authority of the Commission's investigatory powers; 2) The subpoena was not authorized and signed

[ 23 Pa. Commw. Page 436]

    by the Commission as a whole; 3) The subpoena violates the Intervenors' rights against unreasonable searches and seizures as protected by the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution; 4) The subpoena cannot be evaluated for relevance and materiality because the scope of the investigation has not been defined; and 5) The subpoena was issued because of a bias against Robert H. Bomersbach rather than pursuant to a good faith investigation.

Hearings were held on September 16, 1974 and October 4, 1974, and after examining the record and briefs, the Court has determined that the Intervenors' arguments lack merit. The subpoena must, therefore, be enforced.

The Commission's investigatory power emanates from The Pennsylvania Securities Act of 1972,*fn1 which states:

"The Commission in its discretion: (i) May make such public or private investigations within or without this state as it deems necessary to determine whether any person has violated or is about to violate this act or any rule or order hereunder. . . ." Section 510(a) of The Pennsylvania Securities Act of 1972, 70 P.S. § 1-510(a), 510(a), (Supp. 1974-1975).

Section 510(b) of the act, 70 P.S. § 1-510(b), (Supp. 1974-1975) gives the Commission subpoena power for the purposes of such investigations. The Intervenors argue, however, that absent a preliminary showing that violation ...


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