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

COMMONWEALTH COURT OF PENNSYLVANIA


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. § 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 over the subpoenaed party by service of process. (Citations omitted.) (Emphasis added.)*fn1

[ 56 Pa. Commw. Page 637]

Section 957 of the Pennsylvania Human Relations Act gives the Commission, when engaged in an investigation, the power to subpoena witnesses. Enforcement of subpoenas is ancillary to their issuance and neither original process nor service as though original process were involved is in order. Service as provided by Pa. R.C.P. No. 233 and also by Rules of Administrative Procedure to be found at 1 Pa. Code §§ 33.31, 33.33 is, and here was, proper.*fn2

Order affirmed.

Order

And Now, this 18th day of February, 1981, the order of the Court of Common Pleas of Allegheny County dismissing preliminary objections made January 18, 1981 is affirmed.

Disposition

Affirmed.

[ 56 Pa. Commw. Page 638]

Dissenting Opinion by Judge Mencer:

I respectfully dissent. While a rule to show cause is normally available only for the purpose of facilitating jurisdiction already acquired, Petrovich Appeal, 155 Pa. Superior Ct. 138, 38 A.2d 709 (1944), our Supreme Court has held that a petition and rule to show cause why parties subpoenaed by an administrative body should not be ordered by a court of record to testify and to produce documentary evidence may be employed as original process. Pennsylvania Crime Commission Petitions, 446 Pa. 152, 285 A.2d 494 (1971). However, there remains for our determination, in this appeal, whether or not the court below had jurisdiction over National Apartment Leasing Corporation and Frank Schroeder (appellants) for the purpose of enforcing the subpoena issued by the Pennsylvania Human Relations Commission (Commission).

Here, there was no personal service made on the appellants, but copies of the application for enforcement and the order of the Court of Common Pleas of Allegheny County were sent by certified mail to the appellants and their attorney.

The power of the courts in enforcement proceedings relative to an administrative subpoena is an independent judicial proceeding requiring personal service of process. Hemphill v. Lenz, 413 Pa. 9, 195 A.2d 780 (1963).*fn1 This Court recognized the need for personal

[ 56 Pa. Commw. Page 639]

    service in this type of enforcement case in Crime Commission's Petition, 2 Pa. Commonwealth Ct. 650 (1971). In that case, the Pennsylvania Crime Commission issued and effected personal service of subpoenas against four respondents. All respondents appeared at the appointed time and place in Philadelphia, but respondents Grasso, Molinari and Puppo refused to be sworn or to answer any questions. DePhillipo was sworn and did testify, resting on his privilege against self-incrimination in refusing to answer any question except as to his name and address. He also refused to produce the records of the business enterprises which were the subject of a subpoena duces tecum on the ground that their production might tend to incriminate him. This conduct upon the part of the several respondents prompted the Commission to seek judicial aid in enforcement of the subpoenas. Accordingly, the Commission filed in this Court separate petitions against each of the respondents for the issuance of rules to show cause why the respondents after hearing should not be ordered to testify and/or produce records as identified in the subpoena duces tecum previously served. A rule was issued returnable on June 16, 1971, at which time it was ordered that hearing on the petition and any answer thereto would also be held. Certified copies of the petition and order of court were personally served upon each of the respondents.

We concluded that, by reason of personal service of the petitions and orders upon the respondents, this Court thereby acquired jurisdiction over their persons. It is the lack of personal service in the instant case that results in the failure of the court below to obtain jurisdiction over the appellants.

Therefore, I would reverse the order of the court below which overruled appellants' preliminary objections raising a question of the jurisdiction of the court below over the appellants.


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