No. 80-3-374, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia, at Misc. No. 799-16444
Francis X. Nolan, Philadelphia, for appellant.
Steven H. Goldblatt, Deputy Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix and Flaherty, JJ., concur in the result.
On June 1, 1979, the President Judge of the Court of Common Pleas of Philadelphia issued an order granting an application by the district attorney for the empanelment of a county investigating grand jury pursuant to Section 3 of the Investigating Grand Jury Act, 19 P.S. § 267 [hereinafter: Act].*fn1 On June 22, 1979, the Commonwealth submitted to the supervising judge of that grand jury a notice that certain matters involving the Philadelphia School District should be brought to the attention of the grand jury pursuant to Section 9 of the Act, 19 P.S. § 273.
On August 27, 1979, the grand jury issued a subpoena duces tecum ordering Edward Washington, Director of Payroll for the Philadelphia Board of Education, to appear
before it with various payroll records on September 4, 1979. Washington filed a motion to quash the subpoena which was denied by the supervising judge on October 4, 1979. The judge also refused to certify the order for interlocutory appeal pursuant to 42 Pa.C.S.A. § 702(b).
On October 11, 1979, Washington was served with a second subpoena duces tecum directing his appearance on October 15, 1979. Washington filed a petition for review in the nature of prohibition in this Court which we denied on December 26, 1979. In re: Investigating Grand Jury of Philadelphia, 487 Pa. 68, 408 A.2d 1099 (1979).
Washington was again subpoenaed on January 8, 1980. He filed a motion for a protective order in which he reiterated the claims advanced in his earlier motion to quash. The supervising judge denied this motion and held Washington in civil contempt for refusing to be sworn or affirmed before the grand jury. Washington appealed, but then discontinued the appeal when the supervising judge withdrew his contempt order after Washington agreed to be sworn. He appeared before the grand jury on January 14, 1980 and was sworn after a second motion for a protective order was denied. He refused to testify and was held in civil contempt. Washington appealed the contempt order to this Court and sought a stay of the order. The order was stayed by the writer on January 16, 1980 pending further order of the Supreme Court. The appeal was argued before this Court on March 3, 1980.
Washington challenges the legality of the grand jury and its power to subpoena urging that the Act pursuant to which it was empaneled is unconstitutional in that (1) it permits the empanelment of, Section 3 of the Act, 19 P.S. § 267, and investigation by, Section 9 of the Act, 19 P.S. § 273, a grand jury without compliance with the "constitutional" requirements for calling an investigating grand jury recently summarized in Commonwealth ex rel. Camelot v. Specter, ...