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SALVITTI APPEAL (02/24/76)

decided: February 24, 1976.

SALVITTI 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 Subpoenas Nos. 868 and 1073 issued to Augustine Salvitti.

COUNSEL

Nicholas J. Nastasi, for appellant.

Nancy J. Moore, Assistant Attorney General, with her Ben W. Joseph, Assistant Attorney 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 Spaeth, J. Watkins, P.j., and Hoffman and Cercone, JJ., concur in the result. Dissenting Opinion by Van der Voort, J. Jacobs and Price, JJ., join in this dissenting opinion.

Author: Spaeth

[ 238 Pa. Super. Page 467]

This is an appeal from an order citing appellant for civil contempt.

On February 20 and April 15, 1975, appellant was served by the Office of the Special Prosecutor with subpoenas duces tecum calling for the production before the 1974 Special Investigating Grand Jury of certain appointment books and calendars. On April 25, counsel for appellant filed a motion to quash the subpoenas, and a hearing on the motion was held on April 30. At the hearing, at the suggestion of appellant's counsel, the court heard ex parte, in camera testimony from the Office of the Special Prosecutor on the relevancy of the books and calendars. On the basis of this testimony, the court ordered appellant to produce the books and calendars on May 7. On May 6, appellant requested a copy of the in camera transcript; the request was denied. On May 7, appellant refused to produce the books and calendars, and on May 9, the contempt citation issued.

The sentence imposed by the lower court was that appellant be confined in prison for six months or "until he has purged himself of [his civil contempt] by making himself available for testimony and testifying and producing records as ordered, or until the expiration of [the

[ 238 Pa. Super. Page 4681974]

Special Investigating Grand Jury], whichever is sooner." The 1974 Special Investigating Grand Jury has expired. Therefore, appellant can no longer purge himself by appearing before it.*fn1

It might be concluded from this fact that the appeal has become moot.*fn2 I do not think so, however. Although the 1974 Special Investigating Grand Jury has expired, a new Special Investigating Grand Jury has been convened, and it may be assumed that the Special Prosecutor will pursue the investigation here involved. In addition, the principal issue presented by this appeal is what showing of relevancy must be made by the Special Prosecutor in support of a subpoena duces tecum. This issue will constantly recur as the Special Prosecutor's investigation continues. Thus the subject of this appeal may fairly be regarded as representing a continuing controversy that involves important constitutional questions and affects a large number of persons. In such circumstances, the appeal should not be declared moot. Sosna v. Iowa, 419 U.S. 393 (1975) (issue of validity of state statute imposing residency requirement for divorce not rendered moot by fact that pending appeal plaintiff had satisfied requirement); Roe v. Wade, 410 U.S. 113 (1973) (issue of validity of state statute forbidding abortion not rendered moot by fact that plaintiff no longer pregnant); Commonwealth ex rel. Finken v. Roop, 234 Pa. Superior Ct. 155, 162

[ 238 Pa. Super. Page 469]

    n. 4, 339 A.2d 764, 767-768 n. 4 (1975) (issue of validity of mental health act not rendered moot by fact that relator no longer committed to state hospital).

In my view, it was not sufficient for the Special Prosecutor to satisfy the supervising judge in an in camera proceeding of the relevance of the materials demanded by the subpoena. The procedure I believe should have been followed is that prescribed in In ...


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