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In re A Subpoena Duces Tecum Served on Custodian of Records of Institutional Management Corp.

Decided: November 3, 1975.

IN THE MATTER OF A SUBPOENA DUCES TECUM SERVED ON THE CUSTODIAN OF RECORDS OF INSTITUTIONAL MANAGEMENT CORP.


Lynch, Ackerman and Larner. The opinion of the court was delivered by Larner, J.A.D.

Larner

This appeal involves an attack upon the validity of a subpoena served upon Morton M. Sturm in Burlington County, New Jersey, to produce records of Institutional Management Corp., a corporation of the State of Pennsylvania, before the Burlington County grand jury. The subpoena was issued by a deputy attorney general in the name of the Superior Court Clerk in connection with an investigation of the operations of the Lakewood Nursing Home. The grand jury inquiry is particularly directed to the allocated costs of operation of the Lakewood Nursing Home and their correlation to Medicaid payments made by the State of New Jersey.

Sturm is a principal of Lakewood Nursing Home and president of Institutional Management Corp. While he was in court during an argument relating to the service of a prior subpoena upon Joseph DelCollo to produce the records of Lakewood House and Morton M. Sturm and Associates, Inc. (owner of Lakewood House), he was served with the subpoena in question.

The trial judge considered the motion to quash the subpoena upon the motion papers, exhibits, stipulations of counsel and oral argument, and denied the same. Pursuant to the judge's order the records were produced in sealed cartons and placed in the custody of the court pending appellate review.

The present appellate proceeding was initiated as a motion for leave to appeal. In view of the need for expeditious disposition, we granted leave and heard the matter on its merits

by accelerating the time schedule for briefs and oral argument.

Appellant bases its argument as to the invalidity of the subpoena on two major grounds: (1) Sturm was immune from process because of the circumstances surrounding his presence in court when the subpoena was served on him, and (2) the New Jersey court did not have jurisdiction over Institutional Management Corp. so as to validate the process for the production of its records. Other peripheral arguments considered by us are without substance and do not merit discussion.

I

In an effort to obtain the cost records of the Lakewood Nursing Home the Attorney General had issued a subpoena duces tecum addressed to the custodian of records of Lakewood Nursing Home and Morton M. Sturm and Associates, Inc., the owner of the home, and served the same on the administrator of the home, Joseph DelCollo. Through discussion between counsel in court in connection with a motion to quash that subpoena it developed that DelCollo did not have custody of the records. Sturm, the president of Morton M. Sturm and Associates, Inc., was in court at the time, not pursuant to subpoena, in order to be available to establish that DelCollo had no power or ability to comply with the subpoena.

When the deputy attorney general realized this dilemma he prepared another subpoena for the same records and served it upon Sturm as custodian of records of Morton M. Sturm and Associates, Inc. Thereafter argument took place before Judge McGann on the validity of that subpoena served that day. While Sturm remained in court during that argument he was served with a further subpoena which is involved in this appeal, addressed to Institutional Management Corp., which in fact had possession of the records pertinent to the inquiry as to Lakewood Nursing Home expenses.

It is urged that Sturm, a nonresident of New Jersey, was immunized from process because he was in attendance in court pursuant to a prior subpoena at the time he was served.

At early common law nonresidents were immune from civil process while attending or going to and from court proceedings in New Jersey as a witness or a litigant. Halsey v. Stewart , 4 N.J.L. 366 (Sup. Ct. 1817). Later cases followed Halsey , relying upon public policy reasons in favor of the immunity. Massey v. Colville , 45 N.J.L. 119 (Sup. Ct. 1883); Michaelson v. Goldfarb , 94 N.J.L. 352 (Sup. Ct. 1920); Herman v. Arndt , 116 N.J.L. 150 (E. & A. 1936); Riewold v. Riewold , 121 N.J. Eq. 134 ...


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