17 Pa. Commw. 72 | Pa. Commw. Ct. | 1974
Opinion by
This appeal arises out of an attempt by the Pennsylvania Securities Commission (Commission) to subpoena certain records and documents allegedly in the custody and control of the appellant, Richard C. Fox.
On August 15, 1973, pursuant to an investigation of sales of securities by American Leasing and Franchising, Inc. (ALF) and its related companies, the Commission issued four subpoenas directing Mr. Fox, a former director and control person of ALF, to produce the records of certain named corporations.
We must first comment on our jurisdiction in this matter. The Commission, as was its prerogative, elected to institute enforcement proceedings in the Court of Common Pleas of York County rather than in this Court which, of course, has concurrent jurisdiction. Pennsylvania Securities Act of 1972, Act of Dec. 5, 1972, P.L. 1280, 70 P.S. §1-510 (c) (Supp. 1974-1975). This Court also has jurisdiction of appeals from final orders of the courts of common pleas in all civil proceedings to which the Commonwealth is a party which obviously is the case here. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. §211.402(1) (Supp. 1974-1975). Thus, if the lower court’s order is not interlocutory and is final, as Mr. Fox asserts, we must entertain the appeal and review the merits of the order. On the other hand, if the lower court’s order is interlocutory, our review is limited to the question of the lower court’s jurisdiction. Act of March 5, 1925, P.L. 23, as amended, 12 P.S. §672; Exxon Corp. v. Pennsylvania Department of Transportation, 10 Pa. Commonwealth Ct. 301, 312 A. 2d 121 (1973); Allegheny Contracting Industries, Inc. v. Flaherty, 6 Pa. Commonwealth Ct. 164, 293 A. 2d 639 (1972). Therefore, even if the lower court’s order is interlocutory, we must still decide any questions presented concerning the jurisdiction of that court.
We find substantial authority to support the conclusion that an order commanding compliance with a subpoena is not final, but, rather, is interlocutory and not appealable. In the leading case of Alexander v. United
Our own courts have accorded full weight to this position, adopting the language in similar cases arising in the Commonwealth. Deen’s Appeal, 135 Pa. Superior Ct. 376, 387, 5 A. 2d 613, 617 (1939); accord, Riccobene Appeal, 439 Pa. 404, 286 A. 2d 104 (1970). It is clear, therefore, that before a witness may gain appellate review of an order to enforce a subpoena, he must first refuse to testify and risk the penalties of contempt. And the rule must apply in this case as well, even though this particular witness is a member of the bar of this Commonwealth. His profession accords him no special status as a witness which would relieve him of the risk to which all contumacious witnesses are subject. We must conclude, therefore, that the order of the lower court is, indeed, interlocutory, and that it is not a final order. The
This conclusion, however, does not dispose of the appeal entirely, for Mr. Fox has raised questions concerning the lower court’s jurisdiction to hear the Commission’s enforcement petition.
Mr. Fox asserts finally that, even if the subpoenas were issued at least in part under authority of the prior act, the evidence which the Commission seeks is protected by an alleged two year statute of limitations applying to causes of action arising under that act. We find no authority whatever to support such a contention.
The Commission’s motion to quash the appeal is granted and the order of the court below is affirmed.
Per Curiam Opinion, July 10, 1975, following re-argument.
Having heard reargument in the above captioned case on June 3, 1975, and having considered carefully the federal decisions cited which permit appeals from enforcement orders of administrative subpoenas, we do not find those decisions controlling in this case. We, therefore, again affirm the decision and order of the Court of Common Pleas of York County on our prior opinion as filed on November 25, 1974.
. The Pennsylvania Securities Commission is authorized to conduct investigations and issue subpoenas through Section 510 of the Pennsylvania Securities Act of 1972, Act of Dec. 5,1972, P.L. .. (Act No. 284), 70 P.S. §1-510 (Supp. 1974-1975).
. The Commission elected to proceed in the Court of Common Pleas rather than in the Commonwealth Court which had concurrent jurisdiction. Pennsylvania Securities Act of 1972, 70 P.S. §1-510(c) (Supp. 1974-1975).
. We must reject the Commission’s objection that Mr. Pox should have raised the jurisdictional issues by way of answer rather than by preliminary objections. One’s right to raise such questions should not fall upon such a distinction, and it is clear that it is within the discretion of this court to treat the preliminary objections as an answer. Moran v. Paine, Webber, Jackson & Curtis, 422 Pa. 66, 220 A.2d 624 (1966).