Koppers Company, Inc

Text (OCR of the scan; may contain errors)

KOPPERS COMPANY, INC.

Docket 8755. Orde?' and Opinion, Dec. 24, 1968 Order extending time for third party to comply with subpoena and denying motion to qua.sh.

OPINION OF THE COMMISSIO:\

This matter is before the Commission upon the motion of 'KOJJPCTR C01npanll. Inc. Docket 1\' . fi755 ovember 1, 1968 (p. 1621 hereina. 2 Lehigh Port/,md Cement Co. Docket o. 8680. August 2, 1968 fp, 1585 hereinl. ;J Section 3. 23 Commission's Rules of Practice. United States Pipe and Foundry Company to extend the return date on the subpoena duces tecum issued at respondent' s request, to a date no earlier than ten business days following receipt by S. Pipe of the Commission's order and opinion on its appeal from the examiner's order of December 3, 1968, modifying the subpoena and otherwise denying the motion to quash. In the same order, the examiner denied U.S. Pipe's motion for a stay of the return of the aforesaid subpoena except to the extent of postponing the return date to December 10, 1968. The record reveals that on December 9, 1968, counsel for U. Pipe advised the examiner by phone that he had filed an appeal by mail from the examiner's order and would not appear at the December 10, 1968, prehearing conference. On December 10 1968, the examiner certified the failure to respond to the subpoena as modified with the recommendation to the Commission that prompt action be taken to compel production under the subpoena. On December 11, 1968, the examiner certified the motion of L"S. Pipe to extend the return date of the subpoena with the recommendation that it be denied because it was for substantially the same relief previously denied by order dated Decemher 4 1968.

The record further reveals that on December 10, 1968, U. Pipe filed with the Commission (1) its application to extend the return date as described above and (2) its appeal and brief from the examiner's order denying the motion to quash. The Commission is reluctant to intervene in this matter once again but feels that there are certain aspects of the proceeding which require it so to do. While the question of respondent' subpoena of the records of U. S. Pipe has been before the examiner and the Commission a number of times, what is of concern here is a new subpoena issued by the examiner pursuant to the Commission's opinion dated November 1 1968 (p. 1621 hereina. Taking into account all the time factors involved:lhe subpoena in question was originally dated November 20, 1968, and was modified by oral order of the examiner dated December 3, 1968, at which time the date of return was extended until December 10 1968.

Since the examiner also otherwise denied the motion to quash on the same date, it can thus be construed that the return date was set within the time during which Rule 3. , as that time is computed under Rule 4. , permits U. S. Pipe to appeal to the Commission from denial of the motion. The Commission has no wish to see this sort of cloud descend on these proceedings at

INTERLOCUTORY ORDERS, ETC. 1645

this stage, for if it denied U.S. Pipe's motion and took action at this time to compel production under the subpoena, a very real question would exist as to whether U.S. Pipe had, by construction of the Rules, been effectively denied its right of appeal. While the Commission is, by the accompanying order, granting the motion by U.S. Pipe for an extension of time to respond to the subpoena, it does not agree that U.S. Pipe will need as much as ten days from the date of receipt of the Commission's order and opinion on its appeal from the denial of its motion to quash to do so. In view of all that has gone before, the Commission feels that S. Pipe should be prepared to proceed within five days following the Commission's action in the event the Commission decides to deny the appeal. The question would, of course, become moot if the Commission's decision was to grant the motion to quash. Commissioner:l1acIntyre concurred in the result.

ORDER EXTE:\DING RETURN DATE Q:\ SUBPOENA DUCES TECTUM

The Commission has given consideration to the application by united States Pipe and Foundry Company, filed December 10 J 968, to extend the return date on the subpoena duces tecum to a date no earlier than ten business days following receipt by the company of the Commission's order and opinion on the company appeal, filed on the same day, from the hearing examiner's denial of the motion to quash sad subpoena.

It appearing, for reasons stated in the accompanying opinion that adequate justification exists for granting said motion in view of the time factors involved It is o?' de?' That the time allowed for thc company to make return on the subpoena dated November 20, 1968, as modified December 3, J968, be, and it hereby is, extended until five business days following receipt by the company of the Commission's order and opinion on the appeal from the examiner's order modifying the subpoena and otherwise denying the motion to quash- By direction of the Commission with Commissioner MacIntyre concurring inthe result.