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In re Appeal of Pennsylvania Railroad Co.

Decided: February 2, 1955.

IN RE APPEAL OF PENNSYLVANIA RAILROAD COMPANY, CLASS II ASSESSMENTS, 1953


Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

The first question presented by this appeal is whether an order refusing to quash a subpoena duces tecum is final as to the witness subpoenaed, and hence appealable by him.

Jersey City, in an appeal before the Division of Tax Appeals, served the subpoena on Charles E. Adams, president of Harborside Warehouse Co., Inc., seeking to take his deposition pursuant to the Division's rules. Mr. Adams and Harborside moved to have the subpoena quashed, but the Division denied their motion. They appeal, though neither is a party to the case.

It must be conceded, and indeed is not disputed, that such an order is not final as to a party; nor can it be said to be an appealable interlocutory order, whether the appellant is a party or a witness. United Cannery Maintenance v. Local 80- A, United Packinghouse Workers , 16 N.J. 264 (1954); Warren v. Hague , 11 N.J. Super. 311 (App. Div. 1951); cf. City of Newark v. Division of Tax Appeals, Dept. of Treasury , 7 N.J. 8 (1951); R.R. 4:55-2, second sentence. However, appellants contend, it is final as to a nonparty witness.

In determining whether such an order is final as to him, we -- unless we proceed a priori , as an exercise in logic-chopping -- must take into account the considerations at stake. On the one hand, if the witness cannot appeal the order, he has no means whatever of having his rights reviewed until he has been adjudged in contempt. On the other hand, if the witness can appeal the order, impediments are thrown in the way of a speedy litigation, City of Newark v. Division of Tax Appeals, Dept. of Treasury , 7 N.J. 8, 12 (1951), supra , bringing with them the evils of dilatory justice, not to speak of the matter of expense; indeed some party may, by financing a witness' appeal, seek willfully to halt a case or harass his adversary with delays and costs.

The prevailing philosophy of today -- opposed, as it is, to intermediate and fragmentary appeals except in limited situations, Warren v. Hague , 11 N.J. Super. 311, 314 (App. Div. 1951), supra -- rests upon these considerations of delay and expense. Under that philosophy, the term final has come to be used in its severest sense (as it is said) and without regard to the severity of the case. Allen v. Tyler , 32 N.J.L. 499 (E. & A. 1866, Beasley, C.J.).

Moved doubtless by these considerations, authorities in this State and elsewhere have held that the order before us is not final as to the witness. Two of the consolidated appeals in Schlossberg v. Jersey City Sewerage Authority , 15 N.J. 360 (1954) were taken (as the opinion and the appendices in the case make clear) by non-party witnesses from an order directing one of them to comply with a subpoena returnable at a trial. The order was held to be interlocutory and not appealable. Of course, an appeal is more disruptive where it serves to halt a trial than, as is the case here, where it interferes with a depositional proceeding preliminary to an administrative hearing that may take months to try. But we do not think that the present case should be distinguished from the Schlossberg case because of those circumstances.

For other authorities to like general effect, see Cobbledick v. United States , 309 U.S. 323, 60 S. Ct. 540, 84 L. Ed. 783 (1940), supra , with an illuminating discussion of the question; Alexander v. United States , 201 U.S. 117, 26 S. Ct. 356, 50 L. Ed. 686 (1906); Ray v. Glessner , 155 Ind. 31, 57 N.E. 243 (Sup. Ct. 1900); Strong v. Western Gas & Fuel Co. , 177 N.Y. 400, 69 N.E. 721 (Ct. App. 1904); but see International Coal Min. Co. v. Pennsylvania R. Co. , 214 Pa. 469, 63 A. 880 (Sup. Ct. 1906); Mayers v. Bronson , 100 Utah 279, 114 P. 2 d 213, 215, 136 A.L.R. 698 (Sup. Ct. 1941); 130 A.L.R. 327.

It is true that the course of litigation will be interrupted if the witness chooses to vindicate his rights by allowing himself to be adjudged in contempt and then taking an appeal. But in such a case, there is much less likelihood that the interruption will have been brought about in order to harass

a party. Besides, if the witness is not then allowed an appeal, he must suffer punishment without any opportunity for review.

The appellants rely heavily upon In re Pillo , 11 N.J. 8 (1952), which of course is binding on us. There the State appealed from an order adjudging that witnesses were not to be compelled to answer certain questions put to ...


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