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COMMONWEALTH PENNSYLVANIA BY ATTORNEY GENERAL LEROY S. ZIMMERMAN v. RONALD SKLENAR AND KENNETH S. WOINER (01/07/85)

decided: January 7, 1985.

COMMONWEALTH OF PENNSYLVANIA BY ATTORNEY GENERAL LEROY S. ZIMMERMAN, APPELLANT
v.
RONALD SKLENAR AND KENNETH S. WOINER, INDIVIDUALLY AND T/D/B/A MOSSIDE AUTO SALES, 102 CENTRALIA STREET, WALL, PENNSYLVANIA 15148, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Commonwealth of Pennsylvania by Attorney General LeRoy S. Zimmerman v. Ronald Sklenar and Kenneth S. Woiner, Individually and t/b/d/a Mosside Auto Sales, No. GD 82-17403.

COUNSEL

Cynthia A. Baldwin, Deputy Attorney General, for appellant.

Claudia C. Sharon, Sharon & Sharon, for appellees.

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

Author: Craig

[ 86 Pa. Commw. Page 621]

The Commonwealth of Pennsylvania appeals an order of the Court of Common Pleas of Allegheny County quashing an administrative subpoena issued in connection with a Bureau of Consumer Protection investigation of a used car dealership known as Mosside Auto Sales. The subpoena directed the "owner or manager of Mosside Auto Sales" to produce certain documents relating to the operation of that business, in which Ronald Sklenar and Kenneth Woiner are the sole interested principals.

[ 86 Pa. Commw. Page 622]

We must determine*fn1 whether the common pleas court accurately concluded that the Commonwealth did not produce sufficient evidence that Mosside Auto Sales is a partnership, and that therefore Sklenar and Woiner properly exercised their fifth amendment rights in refusing to produce documents which they claimed might incriminate them.

The protection afforded by U.S. Const. amend. V against compelled self-incrimination is limited to an individual and his personal papers and effects, and does not extend to a partnership or partnership documents. Bellis v. United States, 417 U.S. 85 (1974).

Therefore, the key issue in this appeal is whether Mosside Auto Sales is a partnership.

Section 11 of the Uniform Partnership Act, 59 Pa. C.S. ยง 311, defines "partnership" as "an association of two or more persons to carry on as co-owners a business for profit." The courts of Pennsylvania have long held that co-ownership of a business and the sharing of its profits are indispensable requisites of a partnership. Provident Trust Co. of Philadelphia v. Rankin, 333 Pa. 412, 5 A.2d 214 (1939).

In Bellis, the United States Supreme Court did not permit a partner in a small law firm to invoke the fifth amendment privilege against producing the firm's financial records which he held in a representative capacity, even though those records might incriminate him personally. The Court held that a partnership is outside the protection of the fifth amendment if ...


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