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decided: June 30, 1986.


Appeal from the Order of the Superior Court, at No. 1698 Philadelphia, 1983, dated December 30, 1983, Reversing the Order of the Court of Common Pleas of Philadelphia County at No. 8304-1071, dated June 27, 1983. Nix,*fn* C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., concurs in the result. Papadakos, J., files a dissenting opinion in which Flaherty, J., joins.

Author: Nix

[ 511 Pa. Page 116]


In this matter we granted allocatur to address the important issue of whether the attorney-client privilege precludes an attorney from disclosing the whereabouts of a fugitive client. By order dated June 27, 1983, the Court of Common Pleas of Philadelphia County entered a judgment of civil contempt against Holly Maguigan, Esquire, ("appellee") because she refused to comply with its order requiring disclosure of the whereabouts of her client, Carlos Aquino ("Aquino"). In Commonwealth v. Maguigan, 323 Pa. Super. 317, 470 A.2d 611 (1983), the Superior Court reversed the Court of Common Pleas, holding that the information concerning the whereabouts of appellee's client was privileged. The Commonwealth appealed to this Court and we now reverse for the following reasons.


Appellee represented Aquino on outstanding charges of rape, statutory rape, corrupting the morals of a minor, indecent assault, and indecent exposure which allegedly occurred on various dates in April, 1981. Aquino had been extradited from Milwaukee, Wisconsin, and was subsequently released on bail. Aquino last appeared in court on January 19, 1983 for a motion to compel a bill of particulars. At that time he was served with a subpoena which required his appearance for trial on April 7, 1983 on the aforementioned charges. During the interim, a federal district court issued an arrest warrant for Aquino on February 9, 1983 for immigration violations, and an investigation by the Federal Bureau of Investigation in connection with those charges revealed that appellee may have received a telephone call from Aquino on February 23, 1983.

On April 7, 1983, Aquino failed to appear for his scheduled trial. Following a forfeiture of bail and the issuance of a bench warrant for Aquino, the Commonwealth made a

[ 511 Pa. Page 117]

    motion to compel appellee to provide the "address and phone number" of her client.*fn1 Appellee's counsel, David Rudovsky, Esquire, immediately raised a Fifth Amendment claim on behalf of appellee because he believed the Commonwealth would charge appellee with harboring a fugitive.*fn2 The Commonwealth, however, denied any intention of charging appellee with harboring a fugitive, stating that it merely wanted to know Aquino's address:

Ms. McDonough [Assistant District Attorney]:

We are not asking Ms. Maguigan to tell us how to find him or anything. We have a right to know. This Court has a right to know where he is, if she knows, and that's all. We are not asking what communications he has had with her, anything he said with regard to where he has been hiding. Nobody is suggesting that she is going to be prosecuted for anything. We are merely asking is there an address, if she knows his address and the Court deserves to have that.

R. 68a-69a.

Mr. Rudovsky also raised the attorney-client privilege as a reason why appellee would not disclose the whereabouts of Aquino. The trial court proceeded under the assumption that appellee knew Aquino's address, and scheduled argument on the attorney-client privilege issue for April 13, 1983. At that argument, the following discussion occurred between the court and appellee's attorney, Mr. Rudovsky:

THE COURT: Counselor, it seems to me to avoid engaging in a fruitless exercise whether Ms. Maguigan knows the whereabouts of the Defendant --

MR. RUDOVSKY: You have just asked the question of whether Ms. Maguigan knows the whereabouts of the Defendant. This is slightly different than, materially

[ 511 Pa. Page 118]

    different than the question that was posed at the hearing last week, does she know the address and phone number of Defendant.

THE COURT: Essentially, that's what I want to know.

MR. RUDOVSKY: I can address that. She does not know the address and phone number of the Defendant.

THE COURT: . . . If I am to rule on whether or not she is obligated to notify the Court, or to disclose to the District Attorney the address, phone number or whereabouts of the Defendant I should do so in the context of an actual controversy and all I want to know is whether or not she knows, and that's all I'm going to pursue. I think the Court is entitled to know this.

MR. RUDOVSKY: Judge, without waiving any rights I can represent to the Court that during the course of what we consider to be an attorney-client conversation, as a result of that conversation, [appellee] has some general information about the possible whereabouts of the Defendant, and I put it that way because there is a difference between that and the address issue.

R. 76a-77a.

At the conclusion of the April 13, 1983 argument, the trial court held that the information concerning Aquino's whereabouts was not privileged and ordered appellee to disclose such information. When appellee refused to do so, the court found her in contempt and fined her one hundred dollars ($100.00) per day until she complied with the order.

Thereafter, appellee appealed to the Superior Court and petitioned for a stay of the contempt order pending the outcome of the appeal. The stay was granted on April 26, 1983. On April 29, 1983, however, the Commonwealth petitioned the Superior Court to remand the matter to the Court of Common Pleas for the purpose of granting immunity to appellee under the Immunity Act, 42 Pa.C.S. § 5947

[ 511 Pa. Page 119]

In a second appeal to the Superior Court appellee renewed the above arguments on jurisdiction and the attorney-client privilege.*fn5 The Superior Court panel concluded that the information sought was within the attorney-client privilege and reversed the order of the trial court.*fn6 By order dated March 30, 1984 we granted the Commonwealth's petition for allowance of appeal. We disagree with the conclusion that the privilege was applicable and we further conclude that the issue of subject matter jurisdiction was improperly deferred by the Superior Court.


Succinctly stated the appellee contends that there was no proceeding pending before the trial court and, based upon that premise, concluded that the court lacked subject matter jurisdiction to entertain the Commonwealth's petition for a grant of immunity under the Immunity Act, supra n. 3. It also follows from this argument that if there was no proceeding pending before the court, the trial judge was then without subject matter jurisdiction to compel appellee's testimony and that all orders issued seeking disclosure by that court were without authority. President Judge Spaeth viewed the jurisdiction question as being both difficult and novel and justified his failure to resolve it on the basis that it was unlikely to arise again. Whether or not the challenge to subject matter jurisdiction is "difficult" or "novel" does not afford a basis for ignoring the issue and permitting the court to decide the merits of a matter

[ 511 Pa. Page 121]

    not properly before that court. See In Re Estate of Pozzuolo, 433 Pa. 185, 249 A.2d 540 (1969) (action of appellate court cannot confer jurisdiction upon a court where jurisdiction is nonexistent); In Re Petition of Acchione, 425 Pa. 23, 227 A.2d 816 (1967) (appellate court has duty to determine whether lower court had jurisdiction); Stahl v. Insurance Company of North America, 408 Pa. 483, 184 A.2d 568 (1962) (appellate court will not determine merits of appeal where trial court did not have subject matter jurisdiction). See also Arrott v. Allegheny County, 328 Pa. 293, 194 A. 910 (1937) (jurisdiction must be clearly conferred; it cannot be assumed by implication). We are constrained to conclude that the perceived difficulty as to this issue was not created by the question raised but rather by the circuitous analysis applied to address it.

It is clear that here there was a proceeding pending before the trial court. On April 7, 1983 the criminal trial of Aquino was scheduled to commence. All of the necessary parties were present with the exception of the defendant. It is unquestioned that the trial of this case was properly before the trial court. Incidental to the power of the trial judge to conduct the trial is the power to command the presence of the participants in that trial. In Matter of Shigon, 462 Pa. 1, 329 A.2d 235 (1974); see also 42 Pa.C.S. §§ 5904(d), 5905. To exercise this latter power the court is authorized and is expected to take the measures necessary to accomplish that result. Sweet v. Pennsylvania Labor Relations Board, 457 Pa. 456, 322 A.2d 362 (1974), (courts of this Commonwealth have inherent power to do all things reasonably necessary for administration of justice); Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193, cert. denied sub nom. Tate v. Pennsylvania ex rel. Jamieson, 402 U.S. 974, 91 S.Ct. 1665, 29 L.Ed.2d 138 (1971); Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949); Commonwealth ex rel. Burton v. Baldi, 147 Pa. Super. 193, 24 A.2d 76 (1942); Commonwealth v. Brownmiller, 141 Pa. Super. 107, 14 A.2d 907 (1940). Aquino had not only been subpoenaed to appear on that occasion, but his presence

[ 511 Pa. Page 122]

    was additionally required by the bond under which he had been released from custody. There was no question of the court's subject matter jurisdiction to try the criminal charges and also the court's in personam jurisdiction to compel the defendant's presence on that occasion.*fn7

Here the record shows that the trial court had reason to believe that appellee possessed information that would facilitate bringing the defendant before the bar of that court for the trial of this case. The court's jurisdiction for eliciting this information springs from the criminal proceeding that was then before it. To avoid responding to the court's question, appellee raised, inter alia, her rights under the Fifth Amendment of the U.S. Constitution and Article 1 section 9 of the Pennsylvania Constitution. In response to that claim, the trial court ultimately granted immunity under the Immunity Act, supra. All of these actions were derived from and are ancillary to the court's initial jurisdiction over the trial of these criminal charges. This procedure is frequently employed where a witness in a trial asserts a self-incrimination claim. Courts have traditionally in ancillary proceedings considered those claims and granted immunity where appropriate. It has never been suggested that the trial court would be required to establish an independent jurisdictional basis for the resolution of this ancillary matter. Nor does the absence of the defendant divest the court of subject matter jurisdiction over the cause.

The availability of the Immunity Act to the court is expressly conferred by the language of the Act itself which provides for its use in proceedings before our courts. 42 Pa.C.S. § 5947(a)(1).*fn8 Appellee in a very ingenious, albeit

[ 511 Pa. Page 123]

    artful, argument attempts to isolate the Commonwealth's request for a grant of immunity under the Act and have us treat it as a matter independent of the criminal proceeding in which it arose.*fn9 In reality, the application for the grant of immunity was ancillary to the underlying criminal proceeding. Thus, the premise upon which this argument of appellee is predicated is patently flawed. The proceeding from which the court derived its jurisdiction was the criminal trial of Aquino over which the trial court unquestionably had subject matter jurisdiction. Having concluded there was jurisdiction, we must now turn to the applicability of the attorney-client privilege.


The Commonwealth argues that the attorney-client privilege may not be invoked to shield the whereabouts of a defendant who has absconded while on bail and who has failed to appear for trial. Appellee counters that the information concerning the whereabouts of her client is privileged and also that the order of the trial court is so broad that it permits the Commonwealth to conduct a fishing expedition into Aquino's case file. We will first determine whether the information sought to be elicited from appellee relating to Aquino's whereabouts*fn10 is privileged and then address the issue of overbreadth of the order.

[ 511 Pa. Page 124]


The attorney-client privilege is deeply rooted in our common law and can be traced to the reign of Elizabeth I, where it was already unquestioned. See 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961). It is the most revered of our common law privileges and, as it relates to criminal proceedings, has been codified in this Commonwealth at 42 Pa.C.S. § 5916:

In a criminal proceeding counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

This codification is merely a restatement of the common law privilege and its attendant case law interpretations. The rationale underlying this privilege was succinctly and graphically captured in the statement of Professor Mechem which has been quoted with approval by this Court in Slater v. Rimar, Inc., 462 Pa. 138, 148, 338 A.2d 584, 589 (1975):

"The purposes and necessities of the relation between a client and his attorney require, in many cases, on the part of the client, the fullest and freest disclosure to the attorney of the client's objects, motives and acts. This disclosure is made in the strictest confidence, relying upon the attorney's honor and fidelity. To permit the attorney to reveal to others what is so disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance. Based upon considerations of public policy, therefore, the law wisely declares that all confidential communications and disclosures, made by a client to his legal adviser for

[ 511 Pa. Page 125]

    the purpose of obtaining his professional aid or advice, shall be strictly privileged; -- that the attorney shall not be permitted, without the consent of his client, -- and much less will he be compelled -- to reveal or disclose communications made to him under such circumstances." 2 Mecham on Agency, 2d Ed., § 2297.

462 Pa. at 148, 338 A.2d at 589.

In Estate of Kofsky, 487 Pa. 473, 409 A.2d 1358 (1979), we reasoned that the privilege is not concerned with the better ascertainment of the truth, but rather is grounded in a policy entirely extrinsic to protection of the fact-finding process. Id., 487 Pa. at 482, 409 A.2d at 1362. We stated therein that its purpose is to foster a confidence between client and advocate that will lead to a trusting and open attorney-client dialogue. Id. See also Slater v. Rimar, supra; Alexander v. Queen, 253 Pa. 195, 97 A. 1063 (1916); McCormick, Evidence § 87 (2d ed. 1972).

To preserve the sanctity of the confidence, this Court has historically held that the burden of proof is upon the party asserting that disclosure of the information would not violate the attorney-client privilege. See Estate of Kofsky, supra; Nadler v. Warner Co., 321 Pa. 139, 184 A. 3 (1936); Moore v. Bray, 10 Pa. 519 (1849); Brennan v. Brennan, 281 Pa. Super. 362, 422 A.2d 510 (1980); Commonwealth v. Trolene, 263 Pa. Super. 263, 397 A.2d 1200 (1979); 2 G. Henry, Pa.Evidence, § 693 (4th ed. 1953). Moreover, when determining whether the attorney-client privilege is properly invoked, it has been and still remains the practice of this Court to resolve the question upon the particular facts of each case. Estate of Kofsky, supra; Slater v. Rimar, Inc., supra; Alexander v. Queen, supra; Moore v. Bray, supra; Brennan v. Brennan, supra; Cohen v. Jenkintown Cab Company, 238 Pa. Super. 456, 357 A.2d 689 (1976).

Although this Court has not had the opportunity to consider whether the whereabouts of a client under court order to disclose his address is protected from disclosure by the attorney-client privilege, other jurisdictions which have ...

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