The opinion
MANDERINO, Justice
(dissenting).
I dissent. Although the majority correctly points out that “the custodian of corporate records may not on the basis of the Fifth Amendment privilege, refuse to produce records, even if they tend to incriminate him”, (emphasis added) the majority opinion misinterprets the *48 meaning of the United States Supreme Court’s application of the Fifth Amendment privilege in Curcio v. United States, 354 U.S. 118 , 1 L.Ed.2d 1225 , 77 S.Ct. 1145 , 1 L.Ed.2d 1225 (1957).
In Curcio , the government had contended that because the custodian had no privilege upon which he could validly refuse to produce the books and records subpoenaed, he also had no privilege on which he could refuse to answer questions as to their whereabouts. The Court emphatically rejected that assertion saying:
“A custodian, by assuming the duties of his office, undertakes the obligation to produce the books of which he is custodian in response to a rightful exercise of the State’s visitorial powers. But he cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.” (Emphasis added.)
Id. at 123-124 , 77 S.Ct. at 1149 , 1 L.Ed.2d at 1230 .
Quoting from Wilson v. United States, 221 U.S. 361 , 31 S.Ct. 538 , 55 L.Ed. 771 (1911), “the leading case for the proposition that corporate officers may not invoke their personal privilege against self-incrimination to prevent the production of corporate records” (Id. at 124, 77 S.Ct. at 1149 , 1 L.Ed.2d at 1230 ), the Curcio court said:
“They [the custodians of corporate records] may decline to utter upon the witness stand a single self-incriminating word. . . . ”
Id. at 124 , 77 S.Ct. at 1149 , 1 L.Ed.2d at 1230 .
Quoting from Shapiro v. United States, 335 U.S. 1, 27 , 68 S.Ct. 1375 , 92 L.Ed. 1787 , 1804 (1948), a case “holding that the privilege against self-incrimination did not apply to records required to be kept by food licensees under wartime OPA regulations,” the Court said:
“ ‘Of course all oral testimony by individuals can properly be compelled only by exchange of immunity for waiver of privilege.’ There is no hint in these deci *49 sions that a custodian of corporate or association books waives his constitutional privilege as to oral testimony by assuming the duties of his office. By accepting custodianship of records he ‘has voluntarily assumed a duty which overrides his claim of privilege’ only with respect to the production of the records themselves.” (Emphasis in original.)
Id. at 124-125, 77 S.Ct. at 1150 , 1 L.Ed.2d at 1230 .
The majority seeks to avoid the implications of Curdo by reference to the Curcio court’s apparent approval of United States v. Austin-Bagley Corp., 31 F.2d 229 (2d Cir.), cert. denied, 279 U.S. 863 , 49 S.Ct. 479 , 73 L.Ed. 1002 (1929). Whatever the present vitality of Austin-Bagley, it is clearly inapplicable in the present case. Austin-Bagley itself recognized the possibility that a situation could exist where “it might be possible to force their [corporate books and record] production, and yet their possessor [would] be protected from proving by his oath that they were what they purport to be.” Id. at 234.
Austin-Bagley allowed the custodian of the corporate books to be compelled to authenticate them as genuine; however, no claim was raised that such authentication, in and of itself, would incriminate the appellant. All that appellant was asked to do in Austin-Bagley was to identify the books produced as being those of the defendant corporation; “to declare that the documents [were] genuine.” Id. at 233-234. Answering such a question could not have incriminated the appellants in any way. Distinguishing Austin-Bagley, the Curdo court noted:
“The custodian’s act of producing books or records in response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the subpoena. Requiring the custodian to identify or authenticate the documents for admission in evidence merely makes explicit what is implicit in *50 the production itself. The custodian is subject to little, if any, further danger of incrimination.”
354 U.S. at 125 , 77 S.Ct. at 1150 , 1 L.Ed.2d at 1231 .
As recently as 1973 our Court recognized that there is a “distinction between compelling the custodian to testify and compelling the custodian to produce the records.” See Commonwealth ex rel. Camelot D. A. Inc. v. Spector, 451 Pa. 370 , 303 A.2d 203 (1973) (majority opinion by Roberts, J.). In doing so, we quoted from Curdo in which the court concluded:
“The compulsory production of corporate or association records by their custodian is readily justifiable, even though the custodian protests against it for personal reasons, because he does not own the records and has no legally cognizable interest in them. However, forcing the custodian to testify orally as to the whereabouts of nonproduced records requires him to disclose the contents of his own mind. He might be compelled to convict himself out of his own mouth. That is contrary to the spirit and letter of the Fifth Amendment.” (Emphasis added.)
354 U.S. at 128 , 77 S.Ct. at 1151-1152 , 1 L.Ed.2d at 1232 ; 451 Pa. at 379-380 , 303 A.2d at 208 .
The language just quoted is as applicable here as it was in Curdo. Forcing Pivirotto to identify each individual document contained in the corporate records produced pursuant to the subpoena might likewise force him to provide evidence “out of his own mouth” which could be used against him in a criminal proceeding. Although not readily apparent from the majority’s opinion, mere identification by appellant of certain documents within the corporate files could have provided proof of knowledge of their existence and content sufficient to aid in his conviction of mail fraud charges for which he was being investigated. *51 As was enumerated in Bellis v. United States, 417 U.S. 85 , 94 S.Ct. 2179 , 40 L.Ed.2d 678 (1974), the unavailability of the Fifth Amendment privilege against self-incrimination to one who holds the records of an organization and who seeks to avoid a subpoena for their production presupposes, among other things, that “the records subpoenaed must in fact be organizational records held in representative capacity . . . that the records demanded are the records of the organization rather than those of the individual . . . .” Id. at 93 , 94 S.Ct. at 2185 , 40 L.Ed.2d at 686 . Inherent in such a statement is the recognition of the possibility that the custodian of the corporate records might not know of their contents. It is possible that the government’s mail fraud case against appellant Pivirotto could depend upon his knowledge of the specific contents of the corporated records, and that an admission of such knowledge — made by identifying specific documents — could be incriminating.
This case thus presents a situation unlike that which existed in Austin-Bagley. There the court found that production of the corporate records was the implicit equivalent of a representation that they were authentic. It cannot be said in this case, however, that mere possession of the corporate records was the equivalent of knowledge of their contents. The Austin-Bagley doctrine has no application outside the situation where the authentication demanded can in no way incriminate the custodian of the corporate records. See Communist Party of U. S. v. United States, 118 U.S.App.D.C. 61 , 331 F.2d 807 (1963).
In Commonwealth v. Hawthorne, 428 Pa. 260 , 236 A.2d 519 (1968), we recognized that for purposes of invocation of the Fifth Amendment privilege against self-incrimination, “[i ] t is sufficient if the person questioned has reasonable cause to apprehend such danger [of prosecution], (Emphasis in original.) Id. at 263 , 236 A.2d at 520 . Furthermore, in Hawthorne , we held that “the *52 privilege extends not only to the disclosure of facts which would in themselves establish guilt, but also to any fact which might constitute an essential link in a chain of evidence by which guilt can be established.” (Emphasis in original.) Id. at 263 , 236 A.2d at 520-521 , and that a denial of the exercise of the privilege was proper only if the answers demanded “could not possibly have a tendency to incriminate . . . .” (Emphasis in original.) Id. at 264 , 236 A.2d at 521 .
I do not now reach the question of whether the alleged contempt is civil or criminal except to observe that when one is jailed, the issue is not simply one of nomenclature or of affronts to “the dignity and authority of the court.” Constitutional protections must not be sidetracked by legal labels.
For these reasons, I would reverse the contempt order of the Court of Common Pleas.
NIX, J., joins in this dissenting opinion.