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NATIONAL APARTMENT LEASING CORPORATION AND FRANK SCHROEDER v. COMMONWEALTH PENNSYLVANIA (02/18/81)

decided: February 18, 1981.

NATIONAL APARTMENT LEASING CORPORATION AND FRANK SCHROEDER, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Pennsylvania Human Relations Commission v. National Apartment Leasing Corporation and Frank Schroeder, No. 79-30762 G.D.

COUNSEL

John V. Adams, Jr., Adams, Hillen & Shoemaker, for appellants.

Caroline Mitchell, Assistant General Counsel, with her Robert S. Mirin, General Counsel, for appellee.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Rogers. Dissenting Opinion by Judge Mencer.

Author: Rogers

[ 56 Pa. Commw. Page 635]

One Lauren E. Horne filed a complaint with the Pennsylvania Human Relations Commission in which she alleged that National Apartment Leasing Corporation (National) had discriminated against her with respect to housing in violation of a provision of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. ยง 951 et seq. The Commission thereafter issued a subpoena calling on National and on Frank Schroeder, National's manager, to appear before the Commission with documents.

The subpoena was not complied with and the Commission thereupon filed in the Court of Common Pleas of Allegheny County an application for enforcement as provided by Section 7(g) of the Act. The court entered an order fixing a day and time for hearing of the application. Copies of the Application and the Court's order were sent by certified mail to the instant appellants, National and Schroeder, and also to the lawyer who had appealed for National in the complaint action before the Commission. The appellants filed preliminary objections raising a question of the jurisdiction of the court below. They have now appealed from an order below overruling their preliminary objections.

The appellants make the same argument here as they made below -- that the Commission in order to have enforcement of its subpoena was required to bring an original action as provided by Pa. R.C.P. 1007 by filing a praecipe for writ of summons, or a complaint or an agreement for amicable action. This

[ 56 Pa. Commw. Page 636]

    contention is an old one which has been repeatedly rejected. Commonwealth v. Derry Township, 466 Pa. 31, 351 A.2d 606 (1976); Commonwealth v. Washington Township, 463 Pa. 120, 344 A.2d 456 (1975); Pennsylvania Crime Commission Petitions, 446 Pa. 152, 285 A.2d 494 (1971); Kane v. Tri-State Hearing Aid Company, 37 Pa. Commonwealth Ct. 274, 390 A.2d 321 (1978). See also Pennsylvania Human Relations Commission v. Othar Hansson, 17 Pa. Commonwealth Ct. 161, 331 A.2d 255 (1975).

The failure of the appellants' first contention defeats its second -- that the application for enforcement and hearing order were not served as required by Pa. R.C.P. 1009 prescribing the means of service of writs of summons and complaints in original actions. As the Supreme Court stated in Hemphill v. Lenz, 413 Pa. 9, 13, 195 A.2d 780, 782 (1963):

[W]here the agency issuing the subpoena has the power to compel court enforcement on a bare showing that there is a proceeding before the agency over which it has jurisdiction and the evidence sought relates to the matter under investigation, the court proceeding is ancillary to the issuance of the subpoena and the court need not acquire jurisdiction ...


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