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CARABELLO APPEAL (02/18/76)

decided: February 18, 1976.

CARABELLO APPEAL


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, No. 74-00-0430, in case of In Re: January, 1974 Special Investigating Grand Jury. Re: Petition of Natale F. Carabello, Jr.

COUNSEL

Stephen Arinson, Chief Deputy City Solicitor, with him Arnold I. Kalman, Assistant City Solicitor, and Sheldon L. Albert, City Solicitor, for appellant.

Mark J. Biros, Assistant Attorney General, with him J. Donald McCarthy and Nancy J. Moore, Assistant Attorneys General, and Walter M. Phillips, Jr., Deputy Attorney General, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Price, J. Hoffman, J., joins in this dissenting opinion.

Author: Van Der Voort

[ 238 Pa. Super. Page 481]

This is an appeal from a lower court Order denying the Appellant's Motion to Quash a Subpoena. The Subpoena (No. 1190) was issued in connection with the proceedings of the January, 1974 Special Investigating Grand Jury.*fn1 The appellant moved to quash the subpoena on grounds more fully set forth later in this Opinion. After argument on the appellant's Motion, the lower court declined to quash the subpoena. In doing so, the Honorable Matthew W. Bullock, Jr., in his Order, stated the belief that a controlling question of law, to which there is substantial ground for difference of opinion, existed and that immediate appeal from his Order would materially advance the ultimate termination of the matter. In so doing, Judge Bullock certified this appeal as appropriate for immediate appellate review, pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, Section 501, 17 P.S. § 211.501. Although ordinarily, an Order denying a request to quash a subpoena is interlocutory, and hence, unripe for appeal (See United States v. Ryan, 402 U.S. 530, 91 S. Ct. 1580, 29 L.Ed.2d 85 (1971); In re: Petition of Specter, 455 Pa. 518, 317 A.2d 286 (1974)), special allowance for appeal was granted by this Court in this case because of the important and controlling questions of law raised by this appeal and several others raising identical issues.

Appellant moved to quash the subpoenas on several grounds. Especially emphasized by appellant is his first contention that the subpoena in question was invalid since it was allegedly not issued by a lawful procedure.*fn2 Both the appellant and the Commonwealth agree that the

[ 238 Pa. Super. Page 482]

Assistant Attorney General, acting as counsel to the Grand Jury, obtained, from the Clerk of Quarter Sessions of the Court of Common Pleas of Philadelphia County, subpoenas signed and sealed by the Judge supervising the Grand Jury. Other than the signature and seal, the subpoenas were blank. The counsel to the Grand Jury then filled in the subpoenas with names of witnesses desired and items, documents and records sought; return dates were similarly filled in and the subpoenas were then served. The appellant contends that this practice was improper and claims that actual judicial approval is necessary by the supervising judge, of the persons or matters sought to be subpoenaed, prior to the issuance of the subpoena. While appellant has skillfully argued this issue by brief and oral argument, we do not believe his contentions have merit.

As appellant has pointed out, the assigned judge has a duty to be diligent in his supervision and control of proceedings of an investigating Grand Jury. See Commonwealth v. Columbia Investment Corp., 457 Pa. 353, 325 A.2d 289 (1974); Commonwealth v. Hubbs, 137 Pa. Superior Ct. 229, 8 A.2d 611 (1939). Of course, the judicial supervisory role includes within its purview the subpoena process. However, contrary to arguments raised by appellant, we must hold that the judge has no duty to investigate the propriety of each subpoena prior to its issuance.

The customs and practice with respect to subpoena procedure are long-standing and well-known in judicial proceedings. When any party to a judicial proceeding desires a subpoena to compel the testimony of a witness or the production of some matter, he sees the appropriate officer of the court to secure a blank subpoena form. He then fills in the appropriate blank spaces and has the form properly served. Our statutes provide for issuance of subpoenas; the Act of June 16, 1836, P.L. 784, § 22 (17 P.S. § 2079) states:

[ 238 Pa. Super. Page ...


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