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INVESTIGATING GRAND JURY PHILADELPHIA COUNTY. APPEAL RICHARD DRAPCZUK (07/31/81)

decided: July 31, 1981.

IN RE INVESTIGATING GRAND JURY OF PHILADELPHIA COUNTY. APPEAL OF RICHARD DRAPCZUK


No. 162 E.D. Misc. Docket 1981, Petition for Review of the Order of the Court of Common Pleas of Philadelphia, dated March 30, 1981, Adjudging Petitioner in Civil Contempt.

COUNSEL

Holly Maguigan, Philadelphia, for appellant.

Robert B. Lawler, Jane Greenspan, Philadelphia, for appellee.

Roberts, Justice. O'Brien, C. J., and Kauffman, J., did not participate in the consideration or decision of this case. Larsen, J., filed a dissenting opinion.

Author: Roberts

[ 495 Pa. Page 187]

OPINION OF THE COURT

Petitioner Richard Drapczuk was subpoenaed by an investigating grand jury and granted immunity for his testimony. When he refused to testify, the supervising judge, after a hearing, entered an order of civil contempt against him.

Petitioner asserts that his contempt citation should be reversed because, in his view, the record does not support a finding that the grand jury requested the court to initiate contempt proceedings. We reject this theory and affirm.*fn1

I

It has never been disputed that

[ 495 Pa. Page 188]

"[e]mbedded in Anglo-American law is the inherent power of the judiciary to coerce obedience to its orders by summarily holding a recalcitrant person -- such as an immunized witness who refuses to testify at a grand jury proceeding or at a trial -- in civil contempt, and then imprisoning him until he complies."

In Re Grand Jury Investigation, 600 F.2d 420, 422 (3d Cir. 1979) (footnote omitted). In affirming an order of civil contempt entered against an immunized witness who refused to testify before an investigating grand jury, this Court has stated, "'There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt.'" In Re Martorano, 464 Pa. 66, 77, 346 A.2d 22, 27 (1975), quoting Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622, 627 (1966).

Civil contempt has long been recognized as the appropriate means by which a court may compel compliance with its orders. Woods v. Dunlop, 461 Pa. 35, 40 n.2, 334 A.2d 619, 622 n.2 (1975) (citing cases). Whether to issue a contempt citation to enforce a court order has always been a decision for the court. Aungst Contempt Case, 411 Pa. 595, 599, 192 A.2d 723, 725 (1963).

Here, the supervising judge issued a contempt citation to enforce his previous orders which had denied petitioner's motion to quash the grand jury's subpoena and had granted use immunity to petitioner. These two earlier court orders, with which the contempt citation directed petitioner to comply, were issued to enforce the grand jury's own command, made through subpoena, that petitioner testify in response to questions.

[ 495 Pa. Page 189]

Petitioner asks this Court to abrogate the traditional authority of the court to enforce a court order upholding the validity of a subpoena and a court order of immunity. The sole support for petitioner's argument is his reading of 42 Pa.C.S. § 4548(a), formerly 19 P.S. § 271, (Act of November 22, 1978, P.L. 1148, No. 271 as amended, Act of July 20, 1979, P.L. 153, No. 50), which sets forth the powers of the investigating grand jury:

"(a) General rule -- The investigating grand jury shall have the power to inquire into offenses against the criminal laws of the Commonwealth . . . . Such power shall include the investigative resources of the grand jury which shall include but not be limited to the power of subpoena, the power to obtain the initiation of civil and criminal contempt proceedings, and every investigative power of any grand jury of the Commonwealth . . . ."

Petitioner argues that the Court should interpret 42 Pa.C.S. § 4548(a) as an exclusive grant of authority to the grand jurors to initiate contempt proceedings.

This interpretation must be rejected. As the language of 42 Pa.C.S. § 4548(a) plainly demonstrates, the statute in no respect provides, even implicitly, that the powers set forth are either exclusive to the grand jury or intended to displace valid, fundamental powers of the court.

The court's fundamental power to initiate contempt proceedings, even without a request to do so by the grand jury, is evident from the statute governing immunity of witnesses, 42 Pa.C.S. § 5947. The immunity statute draws no distinction between proceedings before investigating grand juries and proceedings before courts, grand juries, the minor judiciary or coroners. To all these proceedings, the same standards specifically apply: "immunity orders shall be available," § 5947(a); the "judge shall issue such an order," § 5947(b); whenever "the person presiding at such proceeding communicates to the witness an immunity order, that witness may not refuse to testify based on his privilege against self-incrimination," § 5947(c); "[a]ny person who

[ 495 Pa. Page 190]

    shall fail to comply with an immunity order may be adjudged in civil contempt," § 5947(e); and, "[i]n addition to civil contempt . . . any person who shall fail to comply with an immunity order shall be guilty of criminal contempt," § 5947(f).*fn2

Thus, 42 Pa.C.S. § 5947 recognizes that a judge has full power to enforce his orders of immunity through a finding

[ 495 Pa. Page 191]

    of civil contempt in all proceedings where an order of immunity is permissible, and provides that, in all such proceedings, failure to comply with an immunity order shall constitute criminal contempt.

The investigating grand jury statute, 42 Pa.C.S. § 4548(a), supplements 42 Pa.C.S. § 5947 by providing that an investigating grand jury has authority to request the court to exercise its contempt power. However, neither by language nor by reasonable implication does 42 Pa.C.S. § 4548(a) condition the court's exercise of its section 5947 contempt power upon such a request. See 1 Pa.C.S. § 1932 (related statutes to be read in pari materia).

II

Petitioner's argument that contempt proceedings may be initiated only upon request by the grand jury not only is contrary to the fundamental principle that a court has inherent power to enforce its own orders, but also is irreconcilable with the realities of an investigating grand jury proceeding.

When the supervising judge denied petitioner's motion to quash the grand jury's subpoena, he thereby sustained the subpoena's validity. At the hearing on the motion to quash, the Commonwealth, as the representative of the grand jury, had the burden of satisfying the test recently adopted by this Court in Robert Hawthorne, Inc. v. County Investigating Grand Jury, 488 Pa. 373, 412 A.2d 556 (1980). There, this Court held that, upon challenge of a grand jury subpoena, that subpoena may be enforced by the court only upon a preliminary showing by affidavit that the information sought from the witness is relevant to an investigation by the grand jury properly within the grand jury's jurisdiction, and that the information is not sought primarily for another purpose. Hawthorne, supra, 488 Pa. at 382-83, 412 A.2d at 560-61. Accord, In Re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3d Cir. 1973).

Having lost on his Hawthorne claim at the hearing below, petitioner impermissibly seeks to avoid review by this Court

[ 495 Pa. Page 192]

    of the validity of the subpoena based on the standards adopted in Hawthorne. Cf. In Re Petition of Arlen Specter, 455 Pa. 518, 317 A.2d 286 (1974) (witness may not use writ of prohibition to circumvent direct appeal for review of denial of motion to quash grand jury subpoena). Thus, petitioner asks this Court to adopt the presumption that a grand jury, after having issued a subpoena and after having successfully defended its validity, does not intend the subpoena to be enforced.

A presumption that a grand jury does not intend its subpoenas to be enforced would defy common sense; it would also conflict with two fundamental principles that have always governed grand jury proceedings. First, a presumption of non-enforcement would conflict with the "presumption of regularity [which] attaches to the grand jury's proceedings, and hence to a grand jury subpoena." In Re Grand Jury Proceedings (Schofield), 486 F.2d 85, 92 (3d Cir. 1973). Accord, Robert Hawthorne, Inc. v. County Investigating Grand Jury, supra (adopting Schofield standard as matter of state law); Robert Hawthorne, Inc. v. Director of Internal Revenue, 406 F.Supp. 1098 (E.D.Pa. 1976). Second, a presumption of non-enforcement would conflict with "the historic requirement in Pennsylvania that a court be placed in charge of a special investigating grand jury to regulate the scope of inquiry . . . ." Commonwealth v. McCloskey, 443 Pa. 117, 134, 277 A.2d 764, 773, cert. denied, 404 U.S. 1000, 92 S.Ct. 563, 30 L.Ed.2d 552 (1971) (emphasis in original). Thus, it has always been held that the court has the obligation to supervise the investigating grand jury, and not, as petitioner argues, the reverse.*fn3 See, e. g., In Re Investigating Grand Jury of Philadelphia County, 490 Pa. 31, 415 A.2d 17 (1980); In Re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980) (plurality opinion); Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975),

[ 495 Pa. Page 193]

    cert. denied, 423 U.S. 1083, 96 S.Ct. 873, 47 L.Ed.2d 84 (1976); Commonwealth v. McCloskey, supra; McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). Accord, e. g., Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940).

III

Petitioner's theory of relief not only is unsupported by law or public policy, but also is unsupported by the record. On June 1, 1981, at the close of its twenty-four month term of service, the investigating grand jury submitted its final report to the supervising judge. In that report, accepted by the court and filed as a public record pursuant to 42 Pa.C.S. § 4552, the grand jury states:

"On September 9, 1980, we issued a presentment charging four employees, David Bohannon, Richard Drapczuk, John Majewski and Richard Wolf with ...


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