M. David Turets, Pittsburgh, for appellant.
John H. Bingler, Jr., Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., dissents. Manderino, J., filed a dissenting opinion in which Nix, J., joins.
This is an appeal from the order of the court of common pleas adjudging appellant Anthony Pivirotto to be in contempt of court and ordering him confined until he purged himself of contempt. We affirm.
Beginning on February 28, 1971, the Pittsburgh Press published a series of five feature articles detailing the activities of a tax-exempt fraternal order alleged to be one of Pittsburgh's largest lessors of low-income housing. The articles also discussed the affairs of John Robert Woods, the lessor's managing agent. Mr. Woods, displeased
by certain representations made about him in the articles, instituted a defamation action on December 3, 1971, against the reporters who wrote the stories, an editor of the newspaper, the Pittsburgh Press, and Scripps-Howard Publications, Inc.
During pre-trial discovery, defendants served appellant with a subpoena duces tecum directing him to appear at a deposition and produce certain records of Safeguard Investment Co., a corporation of which Pivirotto was president. Mr. Woods was allegedly an employee of Safeguard.
On May 7, 1974, appellant appeared at a court-supervised deposition. In the course of the deposition, it was determined that appellant had not produced all the documents requested in the subpoena and the deposition was adjourned. On May 10, 1974, the deposition was reconvened, again before the court. At this time, a large metal filing cabinet, apparently containing the requested records, was wheeled into the courtroom. After appellant was asked a number of questions, defense counsel requested appellant to open the cabinet, remove the first document, and identify it. Appellant refused. The court ordered appellant to comply. Appellant, relying on his Fifth Amendment privilege against self-incrimination, remained obstinate. Thereupon, the court adjudged appellant to be in "direct criminal contempt," and ordered him confined until he purged himself of contempt by complying with the order to identify the documents. This direct appeal ensued.*fn1
Before reaching the merits of appellant's claim, we note that this appeal was improvidently taken to this Court. Although the deposition court deemed its contempt citation to be an adjudication of criminal contempt, that classification was erroneous. The character
and purpose of the adjudication clearly render it civil rather than criminal contempt.*fn2
Under the Appellate Court Jurisdiction Act of 1970, this Court may review civil contempt sanctions imposed in cases directly appealable to this Court. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(5), 17 P.S. § 211.202(5) (Supp.1974);*fn3 Cassella v. Pierce, 447 Pa. 512, 291 A.2d 101
(1972). Because jurisdiction of an appeal from the decision of a trial court in a defamation action is in the Superior Court, Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. III, § 302, 17 P.S. § 211.302 (Supp.1974), this appeal should have been filed there. Nevertheless, no objection to our direct appellate jurisdiction has been filed and therefore, we may take jurisdiction. Id., art. V, § 503(a), 17 P.S. § 211.503(a) (Supp.1974).*fn4 In the interests of judicial economy, we will resolve the issues presented in this appeal.
Appellant contends that the court was without authority under the Pennsylvania Rules of Civil Procedure to order him to identify the papers contained in the corporation's files. He claims that Pa.R.Civ.P. No. 4009,*fn5 relating to the discovery of, inter alia, documents, papers, books and accounts, only applies to parties to litigation and that there is no provision in the rules for the discovery of a non-party's documents. He therefore asserts that the court had no authority to compel him to do anything to make the corporation's records available to the defendants.
Appellant's claim is based on a crabbed reading of our discovery rules. While it is true that Rule 4009 pertains only to parties, see 4 Goodrich-Amram, Pennsylvania Procedural Rules Service § 4009-1 (1954); compare Fed.R.Civ.P. 34; 8 C. Wright & A. Miller, Federal Practice and Procedure § 2209 (1970), that rule is not the sole source of the court's power to order the production of documents. Rule 4018*fn6 provides that upon the request of a party, the court shall issue a subpoena to compel testimony at a deposition. The authority to issue a subpoena ordering a witness to appear for deposition includes the power to insert within the subpoena a duces tecum clause ordering the witness to produce papers, documents, or other evidence. 4 Goodrich-Amram, Pennsylvania Procedural Rules Service § 4018-5 (1954).
Furthermore, if the discovery of the documents is to serve its purpose of permitting the parties to obtain and preserve evidence and to clarify and narrow the issues,*fn7 the moving party must be allowed to inspect and copy the documents produced and ...