National Apartment Leasing Corp. v. Commonwealth , 56 Pa. Commw. 634 ( 1981 )

Opinion by

Judge Rogers,

One Lauren E. Horne filed a complaint with the Pennsylvania Human Relations Commission in which she alleged that National Apartment Leasing Corporation (National) had discriminated against her with respect to housing in violation of a provision of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §951 et seq. The Commission thereafter issued a subpoena calling on National and on Frank Schroeder, National’s manager, to appear before the Commission with documents.

The subpoena was not complied with and the Commission thereupon filed in the Court of Common Pleas of Allegheny County an application for enforcement as provided by Section 7(g) of the Act. The court entered an order fixing a day and time for hearing of the application. Copies of the Application and the Court’s order were sent by certified mail to the instant appellants, National and Schroeder, and also to the lawyer who had appealed for National in the complaint action before the Commission. The appellants filed preliminary objections raising a question of the jurisdiction of the court below. They have now appealed from an order below overruling their preliminary objections.

The appellants make the same argument here as they made below —that the Commission in order to have enforcement of its subpoena was required to bring an original action as provided by Pa. R.C.P. 1007 by filing a praecipe for writ of summons, or a complaint or an agreement for amicable action. This contention is an old one which has been repeatedly rejected. Commonwealth v. Derry Township, 466 Pa. 31, 351 A.2d 606 (1976); Commonwealth v. Washington Township, 463 Pa. 120, 344 A.2d 456 (1975); Pennsylvania Crime Commission Petitions, 446 Pa. 152, 285 A.2d 494 (1971); Kane v. Tri-State Hearing Aid Company, 37 Pa. Commonwealth Ct. 274, 390 A.2d 321 (1978). See also Pennsylvania Human Relations Commission v. Othar Hansson, 17 Pa. Commonwealth Ct. 161, 331 A.2d 255 (1975).

The failure of the appellants’ first contention defeats its second —that the application for enforcement and hearing order were not served as required by Pa. R.C.P. 1009 prescribing the means of service of writs of summons and complaints in original actions. As the Supreme Court stated in Hemphill v. Lenz, 413 Pa. 9, 13, 195 A.2d 780, 782 (1963):

[WJhere the agency issuing the subpoena has the power to compel court enforcement on a bare showing that there is a proceeding before the agency over which it has jurisdiction and the evidence sought relates to the matter under investigation, the court proceeding is ancillary to the issuance of the subpoena and the court need not acquire jurisdiction over the subpoenaed party by service of process-. (Citations omitted.) (Emphasis added.)¹

Section 957 of the Pennsylvania Human Relations Act gives the Commission, when engaged in an investigation, the power to subpoena witnesses. Enforcement of subpoenas is ancillary to their issuance and neither original process nor service as though original process were involved is in order. Service as provided by Pa. R.C.P. No. 233 and also by Rules of Administrative Procedure to be found at 1 Pa. Code §§33.31, 33.33 is, and here was, proper.²

Order affirmed.

Ordkr

And Now, this 18th day of February, 1981, the order of the Court of Common Pleas of Allegheny County dismissing preliminary objections made January 18, 1981 is affirmed.

1 In Hemphill v. Lenz, the subpoena in question was that of the controller of Philadelphia issued pursuant to a provision of the Philadelphia Home Rule Charter. The Supreme Court held that court enforcement of the controller's subpoena was an independent judicial proceeding requiring service of process. The dissenting opinion in this case says that the language we have quoted from Hemphill is merely a description of federal procedure and that the holding of Hemphill demonstrates that the Pennsylvania rule is that service of process must attend all state agency subpoena enforcement proceedings. Quite the contrary. The Supreme Court was at pains in Hemphill to note that federal agencies involved in the cases cited in support of the "language we have quoted in the body of this opinion were "quasi-judicial bodies with powers approximating those of the courts'" 413 Pa. at 13. n.4, 195 A.2d at 782, n.4. This definition exactly fits the Pennsylvania Human Relations Commission. Further. Section 7(g) of the Pennsylvania Human Relations Act requires no more of the Commission seeking enforcement of its subpoena than that it show that there is a proceeding before the Commission and that the evidence sought relates to the matter under investigation. The City Charter provision in question in Hemphill required the official seeking enforcement to report the facts relating to the refusal to the court which was then required not only to hear evidence concerning the refusal but also to decide whether the testimony or documents sought were legally competent and "ought to be given or produced". It is not surprising that the Supreme Court in Hemphill held this inquiry to be an independent court proceeding requiring service of process.

2 In several of the cases cited in this opinion personal service of the Rule to Show Cause why the agency subpoena should not be enforced was in fact made. That such service was made in those cases is not authority for the proposition that it must be made. Indeed, Pa. R.C.P. No. 2.33 authorizes personal sen ice. as well as service b\ certified mail.