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decided: March 6, 1989.


Petition for Review of the Order of the Commonwealth Court entered August 5, 1988 at No. 719 C.D. 1988


Charles P. Gelso, Wilkes-Barre, and Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for petitioner.

G. Alan Bailey, Chief Counsel, Pennsylvania Crime Com'n, Norristown, and Michael J. Reilly, Pittsburgh, for respondent.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Papadakos, J., filed a concurring opinion which also joined this majority opinion, in which Nix, C.j., and Flaherty and McDermott, JJ., joined.

Author: Zappala

[ 521 Pa. Page 227]


This is an appeal from an Order of the Commonwealth Court adjudicating the petitioner, William D'Elia, in civil contempt of court for violation of a prior order of the Commonwealth Court. The prior order enforced a subpoena of the Pennsylvania Crime Commission (Commission), which had granted the petitioner use-immunity and had required him to testify before the Commission. We have jurisdiction under 42 Pa.C.S. § 723(a).

This case began on February 8, 1988, when in connection with a Commission investigation into possible labor racketeering in the construction industry in general, and the Philadelphia Industrial Correction Center construction project in particular, the Commission issued a subpoena to the petitioner. The subpoena required the petitioner to testify before the Commission, and further requested the production of documents relating to his employment with Superior Fireproof Door and/or GTI/Superior (Superior). Those companies were involved in the construction of the Correction Center.

In response to the subpoena, the petitioner, through his attorney, notified the Commission that he intended to assert his Fifth Amendment privilege against self incrimination. Subsequently, on March 23, 1988, the Commission filed a petition in the Commonwealth Court seeking an order granting the petitioner use-immunity and compelling him to

[ 521 Pa. Page 228]

    testify. On April 12, 1988, the petitioner filed preliminary objections to this petition. Following a hearing the Commission's petition was dismissed without prejudice, for matters not germane to this appeal.

The Commission then filed a second petition, which contained substantially the same information as the first. The petitioner again filed preliminary objections and on May 12, 1988, after another hearing, this petition was granted. On that date the Commonwealth Court issued an order granting use-immunity to the petitioner, and directing him to appear and testify before the Commission at a time and place to be determined by the Commission.

On May 20, 1988, the Commonwealth Court's order was served on the petitioner with notice that the Commission had set a hearing date of June 2, 1988, for his appearance. On May 31, 1988, petitioner, through counsel, notified the Commission that he would not appear. On June 2, 1988, after the petitioner failed to appear, the Commission filed a petition to have him held in contempt. As a consequence a contempt hearing was scheduled for August 4, 1988.

Subsequently, the petitioner served three subpoenas on the Commission in an attempt to establish that the Commission was trying to harass and embarrass him, and that Commission witnesses had lied at the enforcement hearing. These subpoenas were in effect quashed by a Commonwealth Court order granting a Commission motion for a protective order. Petitioner was then adjudicated in civil contempt and this appeal followed.

In this appeal D'Elia raises three issues, to wit: whether the Commission subpoena sought information that was reasonably relevant to the purpose and authority of the Commission; whether a person is entitled to assert his Pennsylvania constitutional right against self incrimination notwithstanding the grant of use immunity; and whether the Commonwealth Court erred in refusing to enforce the subpoenas that were served on the Commission.

Petitioner's first issue is directed at the propriety of the Commission's inquiry. D'Elia contends that the Commission

[ 521 Pa. Page 229]

    had no authority to subject him to an examination concerning his activities. We disagree.

Under the Pennsylvania Crime Commission Act, Act of Oct. 14, 1978, P.L. 876, No. 169 Section 1 et seq., 71 P.S. § 1190.1 et seq. the Commission has the power and the duty "to inquire into organized crime and activities of persons engaged in or associated with organized crime." 71 P.S. § 1190.4(1). Pursuant to this mandate the Commission has the authority to conduct hearings and to subpoena witnesses so long as the testimony sought is reasonably relevant to the Commission's inquiry.

As noted at the outset, this case arises out of the Commission's investigation into possible organized crime involvement in the construction industry. Such an inquiry falls squarely within the Commission's statutory authority. Thus the only question is whether the subpoena at issue was enforceable.

In the case of In re Semeraro, 511 Pa. 584, 515 A.2d 880 (1986), we addressed the standard to be applied by a court at a subpoena enforcement hearing and held:

"'[I]t is sufficient [to permit enforcement] if the inquiry is within the authority of the agency, the demand is not to indefinite and the information sought is reasonably relevant.'" . . . . "'Reasonably relevant,' for the purposes of an investigatory body's subpoena power, means that there must be some evidence establishing that the testimony sought will likely touch upon the subject matter of the underlying investigation."

Id., 511 Pa. at 587, 515 A.2d at 882. (citations omitted).

In Semeraro we also defined the scope of review to be applied to an enforcement ...

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