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COMMONWEALTH PENNSYLVANIA v. TRI-STATE HEARING AID COMPANY (08/21/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 21, 1978.

COMMONWEALTH OF PENNSYLVANIA, ACTING BY ATTORNEY GENERAL ROBERT P. KANE
v.
TRI-STATE HEARING AID COMPANY, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania Acting by Attorney General Robert P. Kane v. Tri-State Hearing Aid Company, No. GD76-17714.

COUNSEL

Raymond Radakovich, with him Frank & Radakovich, for appellant.

Robert C. Edmundson, Assistant Attorney General, with him James E. Kennedy, Deputy Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 37 Pa. Commw. Page 275]

The Tri-State Hearing Aid Company (appellant) appeals here from an order of the Court of Common Pleas of Allegheny County dismissing its preliminary objections to a petition and rule seeking compliance with a subpoena issued by the Pennsylvania Bureau of Consumer Protection (Bureau) under authority of the Attorney General.

The appellant is a hearing-aid sales company. On July 31, 1976, the Bureau issued a subpoena pursuant to Section 919 of the Administrative Code of 1929,*fn1 71

[ 37 Pa. Commw. Page 276]

P.S. ยง 307-3, directing the appellant to appear at the Bureau's Pittsburgh office at a specified time and to bring documentary materials relating to hearing tests administered to two specified individuals who had filed complaints with the Bureau regarding appellant's services. After the appellant failed to appear, the Commonwealth petitioned the lower court for a "Rule Upon [appellant] To Show Cause Why An Order To Compel Compliance With A Subpoena Issued By The [Bureau] Should Not Issue." The Rule was granted and notice thereof was duly given to the appellant, which then filed preliminary objections challenging the jurisdiction of the lower court. These objections were overruled by the lower court and this appeal followed.*fn2

The appellant maintains that the lower court did not have jurisdiction over its person because the Commonwealth did not commence the subpoena enforcement proceeding in compliance with the Pennsylvania Rules of Civil Procedure. Specifically, the appellant questions whether a petition for a rule to show cause was a proper way to initiate these proceedings in light

[ 37 Pa. Commw. Page 277]

    of Pa.R.C.P. No. 1007.*fn3 We hold that it was and therefore affirm the order of the lower court.

Our Supreme Court rejected the identical argument in regard to subpoenas issued by the Pennsylvania Crime Commission in Pennsylvania Crime Commission Petitions, 446 Pa. 152, 285 A.2d 494 (1971). Concerning the application of Pa.R.C.P. No. 1007 to subpoena enforcement procedures identical to those employed here, the Court stated:

Rule 1007 provides that 'an action' may be commenced by the filing of a praecipe for a writ of summons, a complaint, or an agreement for an amicable action. 'Action' is defined in Rule 1001 to mean action in assumpsit, and by extension in later rules also includes actions in trespass, equity, ejectment, and the various other forms of action covered by the rules. None of the rules embraces the kind of proceeding here involved. Rule 1007 is therefore not applicable. (Emphasis added, footnote omitted.)

446 Pa. at 159, 285 A.2d at 498.

Our Supreme Court has also held that the Department of Environmental Resources need not utilize the procedures outlined in Pa.R.C.P. No. 1007 to compel obedience to its administrative orders but instead may use procedures similar to those used here. See Commonwealth v. Derry Township, 466 Pa. 31, 351 A.2d 606 (1976); Commonwealth v. Washington Township, 463 Pa. 120, 344 A.2d 456 (1975). We believe, therefore, that the procedures used here to compel compliance with the Bureau's subpoena were proper.

[ 37 Pa. Commw. Page 278]

The order of the lower court is affirmed.

Order

And Now, this 21st day of August, 1978, the order of the Court of Common Pleas of Allegheny County, docketed at GD-76-17714 and dated November 30, 1976, is hereby affirmed.

Disposition

Affirmed.


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