Opinion
December 12, 1975.
February 18, 1976.
Criminal Law — Practice — Special investigating grand jury — Subpoena — Denial of motion to quash subpoena — Interlocutory order — Appeal not certified by court below — Appellate Court Jurisdiction Act — Appeal quashed.
1. In this case, the appellants were subpoenaed by a special investigating grand jury. The court below denied appellant's motion to quash the subpoenas, and an appeal was taken to the Superior Court which quashed the appeal.
2. An appeal from an interlocutory order of a lower court will be quashed where the court below does not certify the appeal pursuant to the provisions of the Appellate Court Jurisdiction Act.
VAN der VOORT, J., did not participate in the consideration or decision of this case.
Argued December 12, 1975.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 354, Oct. T., 1976, from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, No. 74-00-0430, in case of In Re: January, 1974 Special Investigating Grand Jury. In the matter of Tracey Service Co., Randy General Contracting and Supplies, and Tracey Mechanical Co., Inc. Appeal quashed.
Proceedings upon petition to quash subpoena to appear before special grand jury.
Order entered dismissing petition to quash subpoena, order by BULLOCK, JR., J. Witnesses appealed.
Howard Gittis, with him Alan J. Davis, Steven B. King, and Wolf, Block, Schorr and Solis-Cohen, for appellants.
Harry S. Tischler, Assistant Attorney General, with him Lon M. Cobrin, Assistant Attorney General, and Walter M. Phillips, Jr., Deputy Attorney General, for appellee.
In September, 1975 appellants were subpoenaed by the January, 1974 Philadelphia Special Investigating Grand Jury. The subpoena was approved in advance by Judge BULLOCK, Supervising Judge of the Grand Jury, and was issued in connection with an investigation. See In Re Falone, 464 Pa. 42, 346 A.2d 9 (1975) and In Re Martorano, 464 Pa. 66, 346 A.2d 22 (1975).
The authorization for this Grand Jury expired December 19, 1975. Because circumstances indicate the possibility that this question will arise in the future, mootness does not eliminate the necessity of an opinion.
Motions to quash the subpoenas were filed before Judge BULLOCK, who, after receiving briefs and hearing arguments, and also obtaining an in camera disclosure of relevant facts from the Assistant Attorney General in charge of the case, denied the motions in their entirety. Judge BULLOCK further denied the appellants' petition for certification of appeal pursuant to the provisions of the Appellate Court Jurisdiction Act. It is from the order denying the motions to quash that this appeal was taken.
Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, Art. I, § 101 (17 Pa.C.S.A. § 211.101) et seq. (Supp. 1975-76).
This appeal was specially allowed and a supersedeas granted by order of this Court dated October 24, 1975. The allowance of a special appeal and a supersedeas was improvidently granted. The order of the lower court was clearly interlocutory, was not certified by the lower court pursuant to the provisions of the Appellate Court Jurisdiction Act of 1970, and under these circumstances this appeal should have been quashed immediately. We have consistently so held and have most recently discussed interlocutory orders in Commonwealth v. Bennett, 236 Pa. Super. 509, 345 A.2d 754 (1975).
Whether or not certification may have required a different conclusion need not be reached in this appeal.
The appeal is hereby quashed.
VAN der VOORT, J., did not participate in the consideration or decision of this case.