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NOVEMBER (05/21/82)

filed: May 21, 1982.

IN RE NOVEMBER, 1975 SPECIAL INVESTIGATING GRAND JURY. APPEAL OF JAMES J. FITZGERALD, III


No. 2652 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at No. 75-00-7660

COUNSEL

Thomas E. Butler, Jr., Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, for Commonwealth, participating party.

James D. Crawford, Philadelphia, for witness, participating party.

Spaeth, Montgomery and Lipez, JJ. Spaeth, J., did not participate in the consideration or decision of this case.

Author: Montgomery

[ 299 Pa. Super. Page 540]

The instant appeal arises from the denial of a Petition filed in the lower court for the release of the transcript of certain testimony given before a 1975 Special Investigating Grand Jury. The Petition was filed on October 18, 1979 by James J. Fitzgerald, III, a Republican candidate for the office of Philadelphia City Controller. The testimony sought was that given by Thomas A. Leonard, who was a Democratic candidate for the same office, at the time of the filing of the Petition.

The Petition was submitted to the Honorable Merna Marshal, who had been the Supervising Judge of the November, 1975 Special Investigating Grand Jury. The court issued a Rule, returnable on October 30, 1979, and the Petition and Rule were served upon Leonard, as well as upon the District

[ 299 Pa. Super. Page 541]

Attorney of Philadelphia and the United States Attorney for the Eastern District of Pennsylvania. On October 30, 1979, an attorney for Thomas A. Leonard appeared before the lower court for the sole purpose of moving to quash a subpoena for his client, which had been issued by the Petitioner. Leonard's attorney indicated that Leonard did not intend to participate in the proceeding before the lower court, other than to contest the issuance of the subpoena to him. The lower court took the matter of the quashing of the subpoena under advisement, and continued the hearing to November 2, 1979. The only person in attendance at the November 2, 1979 argument before the lower court was an attorney representing the Petitioner, who offered an extended argument in support of the Petition. Following argument, the lower court denied the Petition. The instant appeal was thereafter filed with this Court.

The Petitioner-Appellant has relied upon two principal grounds for his contention that his Petition for the release of Mr. Leonard's grand jury testimony should have been granted. First, he contends that he had a right to seek disclosure under the provisions of the Act of November 22, 1978, P.L. 1148, No. 271, § 8, formerly 19 P.S. § 272, reenacted in the Act of October 5, 1980, P.L. 693, No. 142, § 216(a)(2), 42 Pa.C.S.A. § 4549. As a subsidiary matter with respect to his first argument, it is urged by the Petitioner that the lower court improperly quashed the subpoena which the Petitioner had served upon Leonard. The second principal argument of the Appellant on this appeal is that considerations of public policy required the disclosure sought by the Petition. While no other party, including Leonard, has filed any brief or appeared before this Court to contest the instant appeal, we have no difficulty in rejecting all of the Appellant's contentions as they are obviously devoid of even arguable merit.

We first address the argument that the Petitioner could seek disclosure under the provisions of the Act of November 22, 1978. In support of his Petition, the Appellant cites subsection (d) of that Act, which provided: "No ...


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