*1 We fail to see how.losses incurred in business venture had any connection damages with the sustained as a result of the dismissal. Hence, lower court erred in including this item in compu- its tation of damages. We therefore remand the record to the court below with directions accord- modify ingly award of back salary. As so modified, order is affirmed.
Order affirmed as modified with appellant. costs to
Hemphill Appellant. v. Lenz, October 1963. Argued Before 2, Musmanno, Jones, O’Brien JJ. Cohen, Eagen, Roberts, De- refused
reargument 1963. cember 18, *2 Yano wits, Mm Herbert
Howard W. (Kttis, with and Schorr and Wolf, Block, Thomas D. McBride, for appellant. Solis-Oohen, with
Earl Assistant City Solicitor, I. Schofield, Solicitor, L. Second Deputy City him James Stern, and Deputy City Solicitor, Jr., Matthew W. Bullock, for appellee. City Solicitor, Edward Bauer, Jr., G. Opinion 12, 1963: November M!r. Justice bt Cohen, below from order of This is an the the appeal con- the Lenz before appear to compelling appellant of purpose Philadelphia troller the of the City of compli- and records questions producing answering Phila- the ance issued under of with §8-409 Home Rule Charter.1 delphia of of and Production “Power to Obtain Attendance Witnesses department, Every officer, au board or commission Documents. investigations hearings have shall or conduct thorized to hold production compel of and to attendance of witnesses purpose may issue evidence and for that and other documents production persons requiring subpoenas of the attendance and City. any part to served in and them be cause documents testify any any within his to as to fact shall refuse If witness possession any produce knowledge documents within his control, relating forthwith to such refusal shall the facts his any Phila reported of the Courts Common Pleas one he arising upon County questions also such refusal delphia all and and report, any evi- not included which evidence new new York Newa Inc. (Marbelite), Marbelite Company, City entered into contracts corporation, equip- signal traffic Philadelphia delivery for the Philadelphia, controller of the City ment. Appellee, Home Philadelphia pursuant acting §8-109 treas- appellant Lenz, Rule served personally Charter, ap- him to subpoena ordering urer of awith Marbelite, produc- and pear purpose testimony for the of giving perform- Marbelite’s. ing corporate relating records to obey ance of refused Appellant these contracts. petition filed a subpoena. appellee Thereupon, show a rule to pleas court of common and obtained produce appear should not cause why serv- unavailable for Appellant certain records. rule” A “petition ice in Pennsylvania. copy *3 in at Marbelite’s office receptionist was left with a that mailed to and letters were Brooklyn registered so- York and the appellee’s agent city office New by appellant licitor’s office of Counsel for Philadelphia. objections juris- and filed to the appeared preliminary not diction appellant of the that had court, alleging below been served in accordance with law. court The objections appeal overruled these and followed. this for question appeal presents The sole which this ju- our determination is whether the court had below person appellant purpose risdiction over the for the subpoena the issued the controller.2 enforcing by may against witness, in denee be offered either bebalf of or such by promptly possible be heard such court. If shall as the testimony required shall determine that the or document of such by legally competent ought given produced and to be or witness is may him, commanding make an order the court such witness testify produce or both if shall or to documents do and the witness testify produce or so to so to in dis- refuse documents thereafter court, may of the the court the of such order deal with obedience cases.” in other witness question validity does the of the Since hearing itself, decide whether there the need not was before we , Appellee proceeding the below contends that subpoena by con- ancillary the to the issuance .appellant was troller and that over the argues acquired Appellant by issuance. therefore' such acquire jurisdiction over did. not that the court below proceedings anof the were of the. nature him because by. serv- be action must commenced which process. arguments lies ice The resolution these pro- in nature and the enforcement provided ceedings by §8-409.
Following comply issued refusal to with a may provides section §8-409, pro- testify commanding or Inake an order a witness to testimony documents if duce it determines “that required legally com- document such witness (Em- petent ought given produced by and be him.” phasis supplied).-The agencies covered administrative require provision power do not have subpoenas authoriza- to enforce issued courts under its its The action to take matter tion. a court is is a powers. subject customary Thus, discretion to its proceedings power in of the courts ordinary possess power they closely resembles equity. §8-409.3 law See Annotation to actions being extremely In addition to tool useful prosecution governmental business, fraught possibilities one which is *4 we view its enforcement as Hence, abuse. its well Accordingly, caution. the utmost ab- use with any contrary, of direction to the that we hold sence an un- of enforcement administrative pursuance might which a controller issue within contemplation of in this §8-409. See connection Commomoealth ew Margiotti Orsini, 269, (1951). v. Pa. 81 A. 368 ret. 2d 891
3 Crumlish, 253, 243, 257, Cathcart v. 410 Pa. also 189 A. 2d See (1963). 245
13 proceeding re- judicial §8-409 der is an process. quiring of service procedures recognize for issuance that the
We loosely termed are sometimes what where “subpoenas” held It has been various. are issuing agency has .com showing pel that there on a bare court enforcement juris agency proceeding it has over which a before sought matter to the relates the evidence diction and ancillary proceeding investigation, the court not need and the court of the the issuance subpoenaed party acquire over the Packing Company process. Cudahy v. service Goodyear (1941); Tire F. 694 117 2d NLRB, 692, (1941).4 Howe Rubber v. 122 F. 2d 451 450, Co. NLRB, applica procedure from and no differs has ver, requirements §8-409.5 tion to the recognized necessity of obtain- The lower complying person by personal jurisdiction ing over ap- process. However, some form service attempts parently of the successful believed that the ap- appellant rectified evade service somehow alleged pellee’s comply. con- failure to The evasive so any not under circumstances could duct of improper otherwise into service' transform what appellee process. Since not has service effective procedure any obtaining established serv- followed type process, need now determine what we ice 4 (1956) ; Act, §161(2) Labor Relations See National 29 USC Act, (1956). §49' Trade 15 USC Note Federal Commission quasi-judicial powers bodies with well as the FTC are. NLRB as approximating courts. those 177, 5 Code, April 9, 1929, Act of P. L. Administrative The Cf. Mallen, (1962) ; Chidsey amended, Com. ex rel. v. §200 71 P.S. (1949) ; County 614, 49, 606, Election A. 2d 53 Board 63 Pa. 360 187, Superior 499, 503, Rader, Philadelphia Pa. Ct. 58 A. 2d v. (1948). *5 14 de- over a jurisdiction
of to obtain service is necessary type in this of Pennsylvania fendant located outside of proceeding.6 the lower to give here nothing
There been having order reverse the we jurisdiction appellant, over below. appellee.
Order reversed costs Dissenting Opinion Roberts: Mr. Justice principle I sound accept am unable majority of the conclusion necessary practice over jurisdiction to obtain for the court below that, re- were process of services personal two appellant, quired.
To hold as the majority does, proceeding judicial “is an view, in my creates, service requiring process,” between the initial barrier arbitrary unrealistic en- and its step issuance procedural nec- (when Enforcement for disobedience. forcement issuance) (following aspect another merely essary) ap- objective the single to achieve of the —the subpoenaed witness. pearance jurisdiction on Charter confers expressly The en- Philadelphia County pleas courts of common empow- officers of the city issued by force subpoenas courts It obvious that seems hearings. to hold ered from purposes for enforcement jurisdiction acquired act procedural serving moment the personal further that no service completed was whether Thereafter, required. was process its enforcement to exercise upon called of events. the turn depended 6 petition filing proper a decide and rule Nor.do we type initiating proceeding. See Commonwealth method 556, County, (1946). Dauphin Pa. 47 A. 2d 807 v.
It seems clear intended equally that it not process the to require Charter the service §8-409 in court. twice order to confer jurisdiction upon the The Charter that officials directs designated city power “shall have to wit- compel the attendance of nesses” (emphasis but reserves supplied) by subpoena to the subpoena courts the determination whether the be should enforced. the Charter
Thus, service of. a subpoena under the is procedural a device which proceeding. initiates the If the witness the so sub- disobeys he does subpoena, ject to the express in to grant of the court authority issue proper enforcement the orders. In this respect, process is not procedure unlike the obtains which now in our respect courts with to subpoenas. party Any may process secure from the appropriate prothonotary or clerk and it may have served the by anyone witness. even had Thereafter, though the court has no advance notice of process the issuance of the its service, the court may proceed appropriate to make orders when the is disobeyed.
Had the Legislature courts intended the should exercise complete supervision over the issuance of a order to obviate what the majority that “the fears, subpoena power is one which fraught possibilities abuse,” would provided have that city officers must first application make the to court for the issuance of its process. This have would given the court control over issuance as well as en- forcement. This, however, Legislature did not do. Instead it to gave city officers proc- to issue ess without involving the court unless controversy arises. Obviously, Legislature did not to wish burden procedural with such matters when court action might be required, and, therefore, provided that merely court not be obliged to act problems unless enforcement arise. vested discretion is it is that some
While true respect should a the officers with whether reposed a precisely discretion be this is issued, compel litigant witness a or counsel who desires purpose. testify In for the issues process ordinary name in the is issued situation, application leave to the court for but court, required; process without issue is not issues permission knowledge. court’s Legislature problem The real when the whether, powers gives tribunal to a court, process notwith- and have it served, must issue its own *7 initially standing that the to issue and serve government agency connected conferred impediment em- the court itself. There is no process powering officer and such to issue serve bring and thus the witness within the long purposes, the court for enforcement pow- judicial Legislature does not confer enforcement proce- upon the In ers is a instance, officer. establishing only, un- dural device the circumstances appear if in court der witness must which, ever, logical legal for his disobedience. No rea- answer procedural appears why step son issuance saving could not be thus the time eliminated, busy court. efforts adjective
Certainly, establishing matters, practice logically simplify long Legislature could so theory is not offended. as substantive law Much of the procedure our rules of civil behind burdening is to from refrain possible, bringing the court whenever dis- covery only and other matters to the court’s attention protective orders when are I involved. procedure between the no difference see situa- these that established tions Charter and fol- here. lowed
I affirm the order of would, therefore, below compelling appear response issued and properly served. Pittsburgh Railways Company, Castelli v.
Appellant. *8 1963. Before September 30, Argued Musmanno, Roberts, O’Brien and JJ. Cohen, Eagen, Jones,