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BILL HEARD LEASING v. SAUL FINEBERG (04/12/79)

decided: April 12, 1979.

BILL HEARD LEASING, INC., A CORPORATION,
v.
SAUL FINEBERG, IRWIN FINEBERG, SIDNEY FINEBERG AND STANLEY FINEBERG, INDIVIDUALS AND PARTNERS D/B/A FEDERAL PAPER COMPANY, A PARTNERSHIP. APPEAL OF SIDNEY FINEBERG



No. 411 April Term, 1978, Appeal from the Order of the Court of Common Pleas, Civil Division, at No. 1590 October Term, 1971.

COUNSEL

Harvey W. Daniels, Pittsburgh, for appellant.

Joseph J. Bernstein, Pittsburgh, for appellee.

Van der Voort, Spaeth and Montgomery, JJ.

Author: Spaeth

[ 265 Pa. Super. Page 130]

This appeal arises from an order of the lower court attaching appellant for contempt of court.

On August 13, 1971, appellee, Bill Heard Leasing, Inc., filed a complaint in assumpsit in Allegheny County against appellant and Saul, Irwin, and Stanley Fineberg, partners of Federal Paper Company. On January 30, 1974, following a jury trial, appellee obtained a verdict in the sum of $6,873.30. On February 6, 1974, judgment on the verdict was entered, and notice of the entry was mailed to appellant's attorney. During the next eight months, appellee filed six notices to take appellant's deposition for the purpose of discovering appellant's assets. The record does not disclose whether depositions were taken on any of these occasions. On February 25, 1976, however, appellant was deposed. Discovery was frustrated by appellant's repeated invocation, upon the advice of his counsel, of his right under the fifth amendment to the United States Constitution against self-incrimination. Appellant refused to answer questions concerning the identities of his company's suppliers; his ownership or interest in any corporate or governmental

[ 265 Pa. Super. Page 131]

    bonds, trust funds, annuities, rental property, safe deposit boxes, or personal property; his interests in any businesses; his checking or savings accounts; and whether he had made any transfers of assets valued in excess of $100 within the previous two years. The deposition terminated soon after it began, and appellant, his counsel, and appellee's counsel went immediately before the Court of Common Pleas of Allegheny County, where a motion by appellee's counsel that appellant be compelled to answer was heard by the Honorable John HESTER (now Judge on the Superior Court). Judge HESTER stated that "the Fifth Amendment is not appropriate to the questions as directed to the witness," and ordered appellant to answer the questions within twenty days upon pain of contempt. The court then recessed until 10:00 a. m. on March 17. Appellant neither answered the questions within the twenty days nor appeared at the hearing on the 17th. On September 13, 1976, appellee petitioned the lower court for sanctions. A rule to show cause why appellant should not be held in contempt of court was made returnable on October 13, 1976. On October 13, appellant was found to be in contempt, and the lower court directed the sheriff of Allegheny County to arrest appellant wherever he was to be found and to bring him before the court. On December 2, 1977, another hearing was held to determine whether appellant had purged himself of contempt. On December 5, 1977, appellant was committed by the lower court until he complied with the court's order of February 25, 1974, by answering the question.*fn1

[ 265 Pa. Super. Page 132]

The only question appellant raises is whether he had the right under the fifth amendment to refuse to answer the questions asked him during the February 1974 deposition. Appellee has responded that appellant's refusal to answer the questions after being ordered to do so by the lower court was improper since appellant is protected from criminal prosecution in any matter revealed by his answers by the Act of May 9, 1913, P.L. 197, § 2, 12 P.S. § 2243 (1967), which provides:

The judgment debtor may be compelled, in the same manner as other witnesses in judicial proceedings, to answer all pertinent questions addressed to him at such examination concerning his property; and he shall not be prosecuted, or subjected to any penalty or forfeiture, for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, before said court, except for perjury in giving such testimony.*fn2

Appellant argues that this statute is unconstitutional under the holding in McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158 (1924). The argument is frivolous. In McCarthy, the Supreme Court held that the privilege against self-incrimination extends to the examination of a bankrupt in a federal bankruptcy proceeding. The Court did not hold that the right against self-incrimination under the fifth amendment cannot be displaced by a grant of immunity from criminal prosecution. In fact, the Court specifically noted that "[i]f Congress should hereafter conclude that a full disclosure of the bankrupt estate by the witnesses is of greater importance than the possibility of ...


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