National Apartment Leasing Co. v. Com. by Zimmerman

• Decision Date: 30 December 1986
• Parties: NATIONAL APARTMENT LEASING COMPANY a/k/a NALCO, Appellant, v. COMMONWEALTH of Pennsylvania, by Attorney General Leroy S. ZIMMERMAN, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 1055

519 A.2d 1055

102 Pa.Cmwlth. 631

NATIONAL APARTMENT LEASING COMPANY a/k/a NALCO, Appellant, v. COMMONWEALTH of Pennsylvania, by Attorney General Leroy S.

ZIMMERMAN, Appellee.

Commonwealth Court of Pennsylvania.

Argued Oct. 8, 1986.

Decided Dec. 30, 1986.

John V. Adams, Jr., Adams, Shoemaker & McSorley, Pittsburgh, for appellant.

Douglas P. Yauger, Office of Atty. General, Bureau of Consumer Protection, Pittsburgh, for appellee.

Before CRUMLISH, JR., President Judge, and CRAIG, MacPHAIL, DOYLE, BARRY, COLINS and PALLADINO, JJ.

MacPHAIL, Judge.

National Apartment Leasing Company (NALCO) appeals here from an order of the Court of Common Pleas of Allegheny County which imposed a fine of $500.00 upon NALCO for being in contempt of court. We affirm.

This case had its genesis in the trial court when the Commonwealth petitioned that court to enforce a subpoena served upon NALCO pursuant to the provisions of Section 919(a) of The Administrative Code of 1929 (Administrative Code). ¹ NALCO admits that both the subpoena and a copy of the petition to enforce the subpoena were personally served upon it. Attached to the petition at the time of service on May 3, 1985 were two orders, one which would fix a hearing and the other would direct NALCO to comply with the subpoena. The trial court signed the order directing compliance on the same date the petition was filed. ² NALCO did not appear in court when the petition was presented nor did it file any answer to the petition. The trial court's order directed NALCO to present itself on May 22, 1985 at a specified location in Pittsburgh with the documents identified in the Attorney General's subpoena. It was further stated in the court's order that NALCO's failure to comply with that order would be punished as contempt.

NALCO did not appear; instead, on May 31, 1985 it filed a petition with the trial court to have the order of May 8, 1985 vacated. On the same day that the petition was filed, the trial court denied it and set yet another date for NALCO to comply with the Attorney General's subpoena. That order again warned that failure to comply with its terms would be punished as contempt. NALCO did not comply with that order.

The Commonwealth then filed a petition on July 19, 1985 for a rule to show cause why NALCO should not be held in contempt. The court entered an order making the rule returnable on August 14, 1985. The record does not show what transpired in court on that date but the trial court's order entered on that date states that "after hearing, at which counsel for Respondent [NALCO] admitted that the Respondent was in contempt of this court's order entered May 31, 1985", the court adjudged NALCO to be in contempt. The order further stated that NALCO could purge itself of the contempt order by appearing on August 21, 1985 with the required documents at the place designated in the Attorney General's subpoena. NALCO did not obey that order whereupon the Commonwealth filed a motion for sanctions. A time was fixed by the court for a hearing on that motion. There is a transcript in the record of what occurred at the hearing which indicates that only counsel were present and that counsel for NALCO requested that a sanction be imposed to enable him to perfect an appeal. Thereupon, the trial judge imposed the $500.00 fine. ³

Section 919(a) of the Administrative Code provides in pertinent part as follows:

The Attorney General shall be authorized to require the attendance and testimony of witnesses and the production of any books, accounts, papers, records, documents, and files relating to any commercial and trade practices which the Bureau of Consumer Protection has authority to investigate ... and, for this purpose, the Attorney General or his representative may sign subpoenas.... In case of disobedience of any subpoena ... the Attorney General or his representative may invoke the aid of ... any court of record of the Commonwealth, and such court may thereupon issue an order requiring the person subpoenaed to obey the subpoena or to give evidence or to produce books, accounts, papers, records, documents and files relative to the matter in question. Any failure to obey such order of the court may be punished by such court as a contempt thereof. (Emphasis added.)

It will be noted that no specific procedure for obtaining enforcement of the subpoena is prescribed. In Commonwealth v. Tri-State Hearing Aid Co., 37 Pa. Commonwealth Ct. 274, 390 A.2d 321 (1978), under similar circumstances where the Commonwealth was seeking enforcement of a subpoena issued by the Consumer Bureau, the Commonwealth filed a petition for a rule to show cause why an order to compel compliance with a subpoena should not issue. The trial court granted the rule and the respondent filed preliminary objections alleging that the Commonwealth should have commenced an action pursuant to Pa.R.C.P. No. 1007. This Court held that the Commonwealth's procedure was "a proper way" to initiate the proceedings. Id. at 276, 390 A.2d at 322 (emphasis added). NALCO asserts that that procedure is the exclusive way to proceed. We did not so hold in Tri-State Hearing Aid Co. and, consequently, we do not agree with NALCO's position.

It is true, of course, as NALCO contends, that NALCO is entitled to due process of law. The ultimate question, however, is how much...