No. 459 January Term 1979, Appeal from the Adjudication and Order of the Court of Common Pleas, Criminal Division, Philadelphia County, at Misc. No. 79-00-8008
Wilbur Greenberg, Philadelphia, for appellant.
Steven H. Goldblatt, Deputy Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Flaherty, J., filed a concurring opinion in which Nix, J., joins.
On November 28, 1979, the judge supervising the Philadelphia Investigating Grand Jury, empanelled on June 1, 1979, pursuant to the Investigating Grand Jury Act*fn1 [hereinafter: Act], adjudged Thomas Hawthorne, Vice President of Robert Hawthorne, Inc. (Hawthorne Corporation) in civil contempt for his refusal to comply with grand jury subpoena duces tecum No. 671. The same day, this Court entered a stay pending disposition of Thomas Hawthorne's appeal.
The background is as follows:
On June 22, 1979, the Commonwealth filed a notice of submission with the supervising judge, as required by section 9(a) of the Act, advising the court that the resources of the grand jury were necessary to investigate the circumstances surrounding the dumping of solid fill at a city-owned cite beneath the Penrose Bridge. On September 26, 1979, the grand jury issued a subpoena duces tecum to the custodian of records of the Hawthorne Corporation, which directed production of the corporation's records before the grand jury concerning the Penrose Bridge landfill for the period from September 1, 1978 to September 1, 1979. Hawthorne Corporation moved to quash the subpoena on October 15, 1979. After a hearing, the supervising judge ordered the
Commonwealth to submit a more detailed " Schofield affidavit"*fn2 and fixed a date to enable Hawthorne Corporation to present testimony in support of its motion to quash.
On October 22, 1979, Hawthorne Corporation presented its testimony, and the supervising judge held an additional hearing with members of the district attorney's office, incamera, to inquire into the propriety of the investigation. The motion to quash subpoena No. 579 was denied on October 24, 1979, and, on October 29, 1979, compliance with the subpoena was ordered. On October 29, counsel for Hawthorne Corporation filed an amended motion to quash which was denied by the court after argument. The custodian of records, Mary Grabowski, then appeared before the court without the subpoenaed records and stated her employer would not permit her to comply with the subpoena. The court then directed the custodian to appear before the grand jury the following morning with the cash receipts journal, cash disbursements records, and check stubs of the corporation*fn3 for the period from September 1, 1978 to September 1, 1979. Hawthorne Corporation delivered the subpoenaed records to the grand jury on October 30, 1979.
Apparently because of unusual bookkeeping methods utilized by Hawthorne Corporation, the records made available did not contain all the information sought by the Commonwealth, and another subpoena duces tecum was issued to the custodian of records of Hawthorne Corporation. On November 19, 1979, custodian Grabowski appeared before the court and testified that an agent of the president of Hawthorne Corporation had informed her she was not to deliver any records to the grand jury. Based on this information, the court determined a subpoena should be issued to either Edgar Hawthorne or Thomas Hawthorne, president and vice president of Hawthorne Corporation respectively. Subpoena duces tecum No. 671, which ordered production of various
corporate records on November 26, 1979, was then served on Thomas Hawthorne. He appeared before the court on November 26 without the records. Counsel for Hawthorne Corporation moved to quash the subpoena on the ground it was oppressive in view of his client's compliance with the original subpoena.*fn4 The motion to quash was denied, and Thomas Hawthorne was ordered to appear before the grand jury the following day with the subpoenaed records.*fn5 He appeared without the records on November 27, 1979, and, after a hearing on November 28, 1979, was adjudged in civil contempt and ordered imprisoned until he purged himself. This appeal followed.
Thomas Hawthorne, appellant, argues the adjudication of contempt must be set aside because the grand jury's investigation of Hawthorne Corporation was illegal since it was instituted without trustworthy information that crimes had been or were being committed.*fn6 He also challenges the constitutionality of the Act and the validity of ...