Levine Contempt Case

¶1Opinion by

¶2Contempt proceedings against a member of the bar are fortunately rare, but they cannot well be avoid*615ed when a judge is reasonably of the belief that conduct of the offender has been such as to impair the authority and dignity of the court.

¶3In Lawrence County the courts consist of Hon. W. Walter Braham, the President Judge, and Hon. John GL Lamoree, the Additional Law Judge. The District Attorney is Sherman K. Levine and he has one Assistant. On Friday, November 30, 1951 Judge Braham was presiding in one of the two courtrooms in a dispute involving the opening of some ballot boxes, following which there were two “non-support” cases to be heard; Judge Lamoree was presiding in the other courtroom, taking guilty pleas and sentencing defendants. Both the District Attorney and his Assistant were in the latter room helping to dispose of the business there being transacted. It appears that it had been more or less customary, in order to expedite the proceedings, for both the District Attorney and his Assistant to officiate in the same room when pleas were being taken and sentences imposed. When Judge Braham was ready to take up the non-support cases he sent a messenger to Judge Lamoree^s room to tell the District Attorney that his attendance was required in Judge Braham-’s court. The District Attorney returned word that he and his Assistant were busy in Judge Lamoree-’s court and they would come over to Judge Braham-’s room as soon as they could. Shortly thereafter Judge Braham sent a similar message to which the District Attorney made the same reply; a third request met with the same response. Finally, some two hours after court had opened, the Assistant came into Judge Braham^s room, followed shortly thereafter by the District Attorney himself. Judge Braham thereupon asked the latter why he had not provided a district attorney for his room, whéreupon, according to a finding of Judge Braham, “He then broke into a rude *616and insolent denunciation of the Court saying ‘that’s the way with this court, always mixing things up; everything is set on one day’ ”. The Judge then said: “The people of this county are paying for two district attorneys. They are entitled to have one in each courtroom.” To this the District Attorney replied: “The people of this county are getting their money’s worth from the district attorney’s office.” Judge Braham states that people in the courtroom could not help knowing that the District Attorney had ignored his requests for attendance; also that the interchange of remarks above set forth were audible to the many persons there present.

¶4On Monday, December 3, Judge Braham, not having received any explanation or apology from the District Attorney, called him into his chambers and there said to him that he would give him this alternative,— either to appear in court for a public rebuke or be cited for contempt; at the same time the Judge expressed friendly feelings toward the District Attorney and his great regret at being obliged to take such action, but stated that he was charged with preserving the dignity and authority of the Lawrence County courts of which he was the President Judge. The next day the District Attorney wrote him a letter in which he said that his conduct had not been such as to require any explanation or apology, and that he could not, in justice to himself, submit to any public reproof; the letter proceeded: “Your statements regarding the friendly relations between us are insincere and do not impress me. I believe the fact that your conduct in certain matters is now under investigation by my office had no little to do in motivating your present action.”

¶5On December 4 the court issued a rule upon the District Attorney to show cause why he should not be adjudged guilty of contempt of court, to which the Dis*617trict Attorney filed an answer; a hearing was held on December 17 at which time witnesses were called both by Judge Beaham and by the District Attorney. Counsel for the latter requested that a judge other than Judge Beaham; be assigned to hear the case, on the ground that the issue was between him and the District Attorney and involved personal feelings, to which Judge Beaham properly replied that the issue was between the Court of Quarter Sessions of the County and the District Attorney, and that there was no personal animosity between himself and the latter; accordingly he refused to disqualify himself. Just before the hearing ivas had the District Attorney sent to Judge Beaham a letter in which he said that the statement in his letter of December 4 about an investigation being conducted by his office was not intended to be in the nature of a “threat” but was merely an ansAver to the Judge’s professed friendship for him and his office which he felt to be insincere.

¶6On January 23,1952 Judge Beaham filed an adjudication Avith findings of fact, a discussion, and conclusions of laAV. He found that the defendant had been guilty of three acts of contempt; (1) his “insulting and contemptuous denunciation of the President Judge in open court on November 30 for fixing cases contrary to the wishes of the District Attorney;” (2) his “failure, upon reasonable request, to provide the assistance of a district attorney for the court in Court Room Number 1 on the same day;” (3) “the writing of the insulting letter of December 4”. Sentence was imposed upon the first íavo of these acts, but only such as “would be appropriate for the first of these offenses alone.” The court’s decree Avas that “the defendant, Sherman K. Levine is found guilty of contempt of court on November 30, 1951 and is directed to pay the sum of one hundred dollars for the use of the County and the costs.” *618From that decree and sentence the District Attorney appealed to the Superior Court which, being divided on the question of the proper disposition of the appeal and there being no majority of the court concurring on any issue which would result in a final decision, affirmed the decree and sentence. We, thereupon granted the District Attorney’s petition for an appeal to this court.

¶7Generally speaking, one is guilty of contempt when his conduct tends to bring the authority and administration of the law into disrespect. The right to punish for such contempt is inherent in all courts. When it is committed in its presence the court may, in punishing the offender, act of its own knowledge without further process, proof, or examination. Such power, “although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions”: Ex Parte Terry, 128 U. S. 289, 313. It is a power “essential to preserve their authority and to prevent the administration of justice from falling into disrepute”: Fisher v. Pace, 336 U. S. 155, 159. The Act of June 16, 1836, P. L. 784, §23, recognizes “the power of the several courts of this commonwealth ... to inflict summary punishments for contempts of court” in cases, inter alia, of “the misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.”

¶8Judge Braham was justified in refusing to disqualify himself and to assign another judge for the hearing. It is true that he might have done this, and there are cases in which such a course has been recommended by our appellate courts: Snyder’s Case, 301 Pa. 276, 289, 152 A. 33, 37; Commonwealth v. Sheasley, 102 Pa. Superior Ct. 384, 391, 157 A. 27, 29, 30. See also Cooke v. United States, 267 U. S. 517, 539. In each *619of those instances, however, there had been acrimonious feelings between the judge and the offender, whereas here there is nothing to indicate the existence, prior to this occurrence, of any strained relations. That a judge is not disqualified in contempt proceedings by the fact that the contempt was committed against himself is in accord with the almost unbroken current of authorities cited in 52 A.L.E. 1291; see also Blodgett v. Superior Court of Santa Barbara County, 210 Cal. 1, 290 P. 293, where the subject is discussed at some length. Nor is there any merit in appellant’s contention that, while Judge Braham might have taken immediate action when the contempt occurred on November 30, he lost the right to proceed by delaying for three days to issue the rule to show cause, in conducting the hearing two weeks later, and in not entering a final adjudication and decree until January 23, 1952. It is always within the discretion of the court whether to take action at once, based upon the judge’s own knowledge of the facts, or to postpone action in order to take testimony and give the offender the opportunity to make a defense: Ex Parte Terry, 128 U. S. 289, 311, 313; United States v. Sacher, 182 F. 2d 416; Sacher v. United States, 343 U. S. 1. In the latter case there was a delay in the finding of contempt and the imposition of punishment for a period of more than eight months after the first act of misconduct had taken place and ten days after the most recent. But the Supreme Court of the United States pointed out (pp. 9, 10) that the term “summary” does not relate to the timing of the action but to a procedure which dispenses with the formality and delay that would result from the issuance of process and the holding of hearings, and that “If the conduct of these lawyers warranted immediate summary punishment ... no possible prejudice to them can result from delaying it until the end *620of the trial if the circumstances permit such delay.” In the present instance Judge B rah am was well justified, and indeed acted wisely, in choosing to afford a hearing to the District Attorney instead of acting impulsively when his natural feelings of indignation might have overcome the requisite judicial poise and calm.

¶9Passing these general observations, we come now to consider the merits of Judge Braham’s conclusions based upon his findings of fact, having in mind what was said by Judge Keller In re Adjudication of Contempt of Myers and Brei, 83 Pa. Superior Ct. 383, 387: “. . . as a general rule, — as in cases where the contempt arises from some misconduct committed in the presence of the court, . . . the appellate court will not inquire further than to ascertain whether the record shows such misconduct . . ., and its judgment on the facts is generally conclusive: . . . The question whether the alleged offender really committed the act charged will be conclusively determined by the order or judgment of the court, . . . .” See also Commonwealth v. Newton, 1 Grant 453, 454. Of course, as Judge Keller further said: “. . . this rule is . . . subject to the qualification that the conduct charged as constituting the contempt must be such that some degree of delinquency or misbehavior can be predicated of it; for if the act be plainly indifferent or meritorious, or if it be only the assertion of the undoubted right of the party, it will not become a criminal contempt by being adjudged to be so.”

¶10We agree with Judge Braham that the District Attorney was guilty of a public insult to the court in making the statement: “That’s the way with this court, always mixing things up; everthing is set for one day.”1*621This was equivalent to a public assertion that the court was incompetent in the arrangement of its business, — not merely on that particular occasion but “always”. Certainly a remark of that kind was calculated to belittle the court in the eyes of the persons in the courtroom, and thereby to impair its dignity and authority. It must be remembered that those present were undoubtedly aware of the fact that the court had sent for the District Attorney and was awaiting his attendance. When he entered, instead of courteously explaining his failure to appear sooner, he openly and offensively belabored the court. There is pertinent here what was said in Fisher v. Pace, 336 U. S. 155, 161: “In a case of this type the transcript of the record cannot convey to us the complete picture of the courtroom scene. It does not depict such elements of misbehavior as expression, manner of speaking, bearing, and attitude of the petitioner. Reliance must be placed upon the fairness and objectivity of the presiding judge. The occurrence must be viewed as a unit in order to appraise properly the misconduct, and the relationship of the petitioner as an officer of the court must not be lost sight of.” Even after he had had time to think the matter over more calmly the District Attorney added to his original offense by contumaciously refusing to apologize or in any way atone for his behavior. It need scarcely be said that it is the duty of a lawyer to maintain toward the courts a respectful and courteous attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of *622its supreme importance: Canon 1 of the American Bar Association Code of Professional Ethics. As Mr. Justice Mitchell said in Scouten’s Appeal, 186 Pa. 270, 279, 40 A. 481: “. . . discipline and self-restraint [on the part of counsel] are as necessary to the orderly administration of justice as they are to the effectiveness of an army.” It is a vital duty of every attorney, as an officer of the court, to uphold its honor and integrity.

¶11We are not in accord with the President Judge’s conclusion that the District Attorney was in contempt merely because both he and his Assistant were engaged in the performance of their duties in the one courtroom instead of providing a district attorney for the work also in the other, there being nothing in the record to indicate that he had been previously instructed in regard to the arrangement of the court’s business for that particular day or that he deliberately intended to refuse assistance to the work in Judge Brahaat’S court. It is true, as Judge Beaham states, that it is the function, not of the District Attorney, but of the court to arrange its business, — a duty which devolves upon the President Judge, who, of course, should always consult his colleagues for that purpose and have regard for their own plans and suggestions. Here it does not appear that the District Attorney intended to deny such power to the President Judge, or that, during the two years he had been in office, there had ever been any occasion to rebuke him in that respect or to admonish him as to the limits of his authority. Concerning his failure to come promptly, or to send his Assistant, into Judge Braham’s room when he was summoned, regard must be had to the fact that there were many cases then being disposed of in Judge Lamorek’s room in which lawyers, defendants, witnesses, and other persons were involved and in which he and his Assistant *623were busily engaged, thus creating for him somewhat of an emergency situation. Undoubtedly it would have been better judgment on his part to have explained to Judge Lamoree that he was being called by Judge Braham2 and to request, therefore, that he be allowed to leave; it would also have been more mannerly on his part to have visited Judge Braham personally rather than return curt replies by the messengers, to have expressed his regrets to him, and to have asked him for instructions under the circumstances. However, his failure to do these things would seem rather to indicate a lack of tact than a deliberate intent on his part to flout the authority of the President Judge. On the whole, therefore, we absolve the District Attorney from a judgment of contempt on the basis of this particular charge, and we note incidentally that Judge Braham did not allow it to weigh in the imposition of the sentence.

¶12As far as the District Attorney’s letter of December 4 is concerned, disrespectful and ill-advised though it was, the court did not take it into consideration in imposing sentence. It was certainly highly insulting to express to Judge Braham a “belief” that his action in proceeding against the District Attorney was motivated by the fact that his “conduct in certain matters” was then under investigation by the District Attorney’s office; indeed nothing could be more reprehensible than the making of such an ill-founded and offensive charge. It appears that the “investigation” in question arose from the fact that Judge Braham was the Vice President of an organization the purpose of which was to preserve for the public some of the more beautiful sections of the county and to that end to have the County *624Commissioners condemn those places for a public park; if such an “investigation” by the District Attorney was under way Judge Braham had not been aware of it. The District Attorney’s subsequent statement that he had not intended his letter as a “threat” would scarcely explain away so inexcusable an affront.

¶13We affirm the decree of the court below insofar as it adjudged defendant guilty of contempt of court and imposed sentence for his public denunciation of it on November 30, 1951. Defendant to pay the costs.

¶16Dissenting Opinion by

¶17There are few offenses more odious than contempt of court. And, that is all the truer when the offender is a member of the bar whose sworn obligation specifically embraces the duty of conducting himself at all times with fidelity to the court. For the immediate and efficient redress of a contempt committed in the presence of the court, courts generally possess the inherent power to punish summarily for it. No one will gainsay that. See Fisher v. Pace, 336 U. S. 155, 159, and Ex parte Terry, 128 U. S. 289, 313. But, just as a court’s power in such respect is great, so also is its responsibility for a proper exercise of the power eommensurately heavy. And, as a contempt by an attorney is relatively more culpable than that of a layman, so also is equal punishment, when meted out to an attorney for contempt, proportionately the more severe. The judgment of guilt stands against him as a proven violation of his oath. It is of highest importance, therefore, that a case such as this be scrutinized with special care in order that injustice be not done. That, I fear, the majority of this court has inadvertently failed to do.

¶18*625From my reading of the record in this case, I am persuaded that the court below erred grievously in making a contempt proceeding out of the matter involved and in summarily adjudging the respondent guilty. In my opinion, Judge Braham acted both captiously and ill-advisedly. The litigation which he initiated is now before us for review. I have, therefore, no alternative but to express my differing views. The principle involved is of highest importance. A conscience-free and judicially untrammeled bar is as essential to the proper functioning of our judicial system as are judges themselves. The issue far transcends the personalities of the parties immediately concerned.

¶19I am in accord with the majority of the Superior Court (which had original jurisdiction of the appeal in this case) whose opinion was that the judgment of contempt was error and should be reversed. The order of affirmance entered by that court was not on the merits but merely pro forma in the circumstances. The majority for reversal was split as to whether the judgment should be reversed and the appellant discharged or reversed with a remand for trial of the issue before another judge. As the majority of the Superior Court was unable to agree upon the form of the reversal, a definitive order on the merits was impossible, hence, the affirmance. It is clear, however, that not more than three of the judges of the Superior Court could have been for affirmance while at least four were of the opinion that the judgment of contempt was erroneous: see Levine Appeal, 170 Pa. Superior Ct. 579, 582, 88 A. 2d 104. Thus, it is readily apparent that opinion among the appellate judges of this State as to whether Judge Braham acted properly in the premises is little better than evenly divided.

¶20The record shows that President Judge Brai-iam, of the Courts of Lawrence County, entered a rule on the *626district attorney of the County, Sherman K. Levine, calling upon him to show cause Avhy he should not be adjudged in contempt for his conduct during a session of Quarter Sessions Court in Judge Braham’s Court Room (No. 1) on Friday, November 30, 1951. A recital of the facts, according to the Judge’s version, was appended to the rule in the nature of specifications. The gist of the complaint was that, while both the district attorney and his assistant were in attendance upon a session of criminal court in Court Room No. 2 before the additional law judge, Honorable John G. Lamoree, Judge Braham sent word by messenger to the district attorney requesting him to have a district attorney attend in his Court Room No. 1; that the district attorney twice refused to come upon requests by messengers from Judge Braham; and that, when he did come into Judge Braham’s Court Room later and was “asked in open court by the President Judge why he had not provided a district attorney for Court Room Number One he broke into a rude and insolent denunciation of the court.” What the district attorney was supposed to have said was not specified.

¶21The district attorney filed a responsive answer disclaiming any contemptuous conduct on his part and explaining that both he and his assistant were busily engaged at a scheduled session of criminal court before Judge Lamoree in Court Room No. 2 when Judge Braham sent for him; that he told the messenger on each occasion to tell Judge Braham that he was then occupied in Court Room No. 2 and would come to Court Room No. 1 as soon as he was free; and that, upon entering Judge Braham’s Court Room a little later, he was accosted by the Judge who charged him with defrauding the taxpayers by failing to have a district attorney in each court room. To that, the District Attorney replied that the taxpayers were receiving dollar *627for dollar value for the money spent for his office. Nothing mas said by the Judge at that time about any contempt having been committed and the matter was not pursued further.

¶22Three days later, Monday, December 3rd, Judge Braham called the district attorney into his chambers and there addressed him in manner as follows which was taken down stenographically and transcribed and a copy of the statement given to the district attorney at his request:

“December 3, 1951

“Mr. Levine, good morning.

“I have something to say to you about your conduct in Court last Friday, November 30, 1951.

“I did not trust myself to act justly on Friday. I was too much hurt. I had too much feeling about injustice and was too angry. Since that time the matter has been considered very carefully from all aspects.

“I have taken counsel. I have come with great reluctance to the conclusion that you must be cited for contempt of Court. The specifications have been prepared by me and will be typed today. Because of your insolent talk and attitude in Court on Friday, when you finally deigned to come into Court Boom No. 1, it would seem that you would admit of no wrong or mistake in your treatment of the Court. You have not tendered to me one word of explanation or regret or of apology. This may mean that you desire to controvert the matter. A rule to show cause why you should not be found guilty of contempt of Court, is the appropriate way to decide the issue.

“I am, however, going to give you one alternative. I shall fix a time in Court to administer to you some words of public instruction, warning and of reproof. If you are willing to accept this public reproof, this *628will be your only punishment. If you are not willing and decide to controvert the matter, I will fix a time and try you for contempt of Court.

“This, Mr. Levine is done with great regret. There are behind us many years of what I thought was friendly intercourse between us. I had thought that we were comrades in office, as well as, personal friends. You have done good work in your office as District Attorney. You have loyally supported this Court in a number of cases. It is a matter of great regret to me to be obliged to take this step. However, I am charged with preserving the dignity and authority of the Courts of Lawrence County of which at the moment, I happen to be the President Judge.

“I hate to subject the dignity of this Court and the good name of one of the officers of the County to the indignity of the proceeding for contempt of Court, however, it must be done.

“Accordingly, I shall allow you until tomorrow morning at 9:00 to indicate whether you are satisfied that there is enough for you to controvert to require me to try you for contempt of Court. If at that time you indicate that you are willing to accept the public reproof by the Court, I will fix a time. It will be my preference to do it immediately, but I am aware that you are concerned with your Grand Jury.

“If you are not willing to accept this public reproof, instruction and warning, a time will be fixed for trying you for contempt of court.

“Good Morning, Mr. Levine.”

¶23Shortly before nine o’clock the next morning (December 4th), the district attorney delivered to Judge; Braham his answer by letter whereof the following is a copy:

*629“Honorable W. Walter B rah am,

“President Judge of Lawrence County,

“Court House,

“New Castle, Pennsylvania

“Dear Sir:

“This will acknowledge receipt of your communication dated December 3, 1951, which you directed the Court Stenographer to deliver to me.

“You accuse me of insolent talk and attitude before you in court room #1 on Friday, November 30, 1951.

“My first feeling is one of amazement. In all my years of practice I have always been respectful to all courts.

“You say I have not tendered you a word of explanation or regret or of apology. My conduct has always been and on Friday morning was such as required no explanation or apology. At that time I informed the Court that I was unable to conduct hearings in court room #1 because I was, and had been all morning, busily engaged with hearings in court room #2.

“Your letter states an alternative to which I cannot submit. In justice to myself I cannot possibly permit of any public instruction, warning or reproof.

“Your statements regarding the friendly relations between us are insincere and do not impress me. I believe the fact that your conduct in certain matters is now under investigation by my office had no little to do in motivating your present action.

“While my conduct was not improper in any manner, should you desire to controvert the matter, the facts should be determined in a fair and impartial hearing, where we may both be examined under oath and the facts determined by the Honorable John G. Lamoree, the other Judge of Lawrence County.

“Yery truly yours,

Sherman K. Levine”

¶24*630Later the same day (December 4, 1951), the Judge entered the rule on the district attorney to show cause why he should not be adjudged guilty of contempt, with the specifications appended, as already mentioned. Following the filing of the district attorney’s responsive answer to the rule, the Judge set the matter down for a hearing before himself on December 17, 1951.

¶25At the hearing on December 17th, counsel for the district attorney at the outset filed a suggestion that Judge Braham was disqualified to sit in the matter for either of two specified reasons, (1) because of “personal feeling that does not make for a calm, judicial consideration and conclusion” and (2) because the citation and answer disclose the presence of issues of fact “which can best be determined by an impartial judge.” Following a statement by Judge Braham, he declined to disqualify himself. Respondent’s counsel at once renewed their suggestion of disqualification for the additional reason that “the lengthy statement and argument just made” by the Judge gave further indication why he should not sit in judgment on the case. As evidence of his avowed personal detachment, Judge Braham retorted that the charge was that the Court of Quarter Sessions, and not he, had been contemned. Counsel then pointed out that there Avere two judges of the district, both equally qualified to sit in Quarter Sessions, and that therefore the case should be set for trial before the additional law judge. But, Judge Braham persisted in his refusal to disqualify himself and began the taking of testimony. He called six witnesses in chief, all of whom he interrogated in direct examination, and he cross-examined the respondent’s witnesses, of whom there were eleven including the district attorney Avhom he cross-examined at length.

¶26On January 23, 1952, more than five weeks after the hearing and almost nine weeks after the alleged *631contempt, Judge Braham handed down a lengthy, controversial and self-serving adjudication on the basis of which he found the district attorney guilty of three specific “acts of contempt” as follows: “first, defendant’s insulting and contemptuous denunciation of the President Judge in open court on November 30 for fixing cases contrary to the wishes of the District Attorney; second, his failure, upon reasonable request, to provide the assistance of a district attorney for the court in Court Boom Number 1 on the same day; third, the writing of the insulting letter of December 4.”

¶27For the contempt so found, the Judge sentenced the respondent to pay one hundred dollars for the use of the County and the costs. He specifically limited the sentence to the first two of the three acts of contempt above-quoted and expressly did not impose sentence for the district attorney’s letter of December 4th “because it was not charged in the specifications” (Emphasis supplied). The reason here assigned is interesting in light of the fact that the affirmance by this court of the judgment of contempt is solely for language attributed to the district attorney by Judge Braham in his adjudication, which ivas not charged in the specifications and was not testified to at the hearing by any witness.

¶28Of the three overt acts found by the court below, as above stated, this court rejects two as not amounting to contempt, namely, (1) the district attorney’s failure to go at once to Judge Beaham’s Court Boom in response to his request by messenger,1 and (2) the district *632attorney’s letter of December 4th. With those conclusions, I fully agree.

¶29That brings us, then, to the one count in Judge Braham’s adjudication of contempt which this court affirms, namely, that when the district attorney came into Judge Braham’s Court Room, he announced in a rude and insolent manner in the presence and hearing of the court and of the persons then assembled in the court room,- — -“That’s the way with this court, always mixing things up; everything is set for one day.” The only other place where this language appeared was in Judge Braham’s lengthy and argumentative response at the hearing on December 17th to the challenge by respondent’s counsel of his qualifications to hear and determine the issue. For weeks, the specific language ultimately charged, and now made exclusively operative, resided alone in the Judge’s memory, undisclosed to anyone.

¶30But, just how well did Judge Braham hear at the time of the November 30th episode? And, how disinterestedly did he remember what was said? By his own transcribed statement to the district attorney on Monday, December 3rd, he confessed to having been “too angry” the preceding Friday “to act justly” in respect of the alleged conduct of the district attorney in court that day. At the hearing two weeks later (December 17th) when the court crier was asked,— “Was the Court visibly angry”, Judge Braham interjected, “I would say so.” The probative value of facts based upon recollection may be impaired for a number of reasons other than a want of veracity in the recollector, — a condition which I do not attribute to Judge Braham. But, it is a matter of every-day knowledge that anger can, and often does, prevent the faithful recording of mental impressions of surroundings and attendant occurrences. It may preclude memory’s ac*633curate recital of what actually took place or even of the correct sequence of events. And, it is admitted all around that no record was made of what took place when the district attorney came to Court Room No. 1 on November 30th.

¶31The language which Judge Braham ultimately found the district attorney guilty of uttering was not contained in his statement to the district attorney of December 3rd; it was not charged in the specifications which he filed in support of his citation of the district attorney for contempt; and no one testified to it at the hearing. And, although the district attorney literally begged Judge Braham to tell him what he had said that was contemptuous, the Judge failed to enlighten him. The following colloquy taken from the Judge’s extensive cross-examination of the district attorney at the hearing is illuminating: By Judge Braham: “Let me ask one question about Monday, December 3rd, when you say I dictated this statement which you presented. Isn’t all you said, Mr. Levine, ‘may I have a copy of that statement’? and didn’t I say, ‘yes’.” By Mr. Levine: “I did say that and I also said to you, Judge, ‘what did I say, have you a record of what I have said, I cannot remember anything, of saying anything that was contemptuous or insolent’, and you says, ‘good morning, get out of here, I don’t want to argue with you’.” By Judge Braham: “And I asked you, you’re right about whether there was a record made of what was said in court, and I asked Mr. Binder [the court reporter] whether he had any record and he said he didn’t, isn’t that correct?” By Mr. Levine: “That is correct, and then you said, ‘I do not want to argue the question with you, Mr. Levine, get out’.” By Judge Braham: “I think, Mr. Levine, your memory is in error on that, ‘get out’, I said, ‘good morning,’ didn’t I?” By Mr. Levine: “You also said, ‘get out’.” By *634Judge Braham: “Let me ask you one question about this. Do you say that on the occasion here in court, which was I believe, Tuesday, December 4th, I said to you that your conduct in court didn’t amount — had not amounted to contempt?” By Mr. Levine: “That is what you said, Judge, in the presence of myself, Mr. Binder, Mr. Powers, and Mr. Klebe.” The import of the foregoing, in its unrefuted implications of issues of material fact, is self-evident.

¶32Nor did Judge Braham at the hearing rely on his own memory of what the district attorney had said in Court Boom No. 1 on November 30th. He offered the testimony of the court crier, Mr. Vance, on that point; and he later found in his adjudication that “The evidence of the Court Crier [Mr. Vance] corroborates the President Judge [Braham] as to the statements made.” It does nothing of the sort. What the court crier testified to in material connection under questioning by Judge Braham was, — “Q. . . . Could you tell us what was said when Mr. Levine finally came into court?” By Mr. Vance: “Well, he came in and as I recall, the Court, meaning Judge Braham, accosted [sic] as to why he had failed to respond to the summons that morning to appear in court room no. 1.” Q. “What did he say?” A. “Well, I believe it was a repetition of what he had told me, that they were too busy and that the —it wasn’t the District Attorney’s fault that the court calendar had been loaded down.” The difference in the respective versions of the Judge and his witness is material and, at least, calls for reconcilement which is a task for a disinterested fact-finder.

¶33The case had long since ceased to be one for summary punishment when the court acted upon it. (1) Because of the period of time permitted to elapse, without action, the court forfeited its right to punish summarily for the alleged contempt. (2) The court re*635sorted to a rule to show cause and a hearing and did not purport to be proceeding summarily. (3) By reason of the Judge’s self-interest and evident bias, he was disqualified to conduct the hearing and to adjudge the material issues of fact as to which he was a witness. Finally, (4) the hearing lacked the requisites of due process.

¶34(1) The justification for the inherent power of courts to punish summarily for a contempt committed in the face of the court lies in the need for prompt and effective enforcement of obedience and order “essential to preserve their authority and to prevent the administration of justice from falling into disrepute”: Fisher v. Pace, supra. While the term, “summary”, as used in relation to the punishment of a direct contempt, has reference to the type of proceeding rather than to the timing of the action (Sacher v. United States, 343 U. S. 1, 9), it is implicit in the rationale of a summary proceeding that it be initiated and followed through timely. In Foe parte Terry, supra, Mr. Justice Harlan stated the rule to be that “. . . for direct contempts committed in the face of the court,. . . the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred . . .” (Emphasis supplied). The exigencies of the occasion may, in certain circumstances, require that the adjudication and punishment be temporarily postponed (see Sacher v. United States, infra). But, the instant case presented no such situation.

¶35In In Re Foote, 76 Cal. 543, 18 P. 678, the Supreme Court of California long ago observed that, — “Admitting that petitioner was guilty of contempt, committed in the presence of the court, it appears that no proceedings were taken by the court at the time the contempt was committed to punish the petitioner; nor were there *636any steps taken to retain jurisdiction until 50 days thereafter, when the order, adjudging him guilty of contempt, and imposing a fine of $300, was made without notice of any kind. Under these circumstances, we think the court lost jurisdiction to proceed against petitioner for contempt, and that the order and commitment are void.” Obviously, the foregoing was said with reference to a summary proceeding. In People v. Burt, 257 Ill. App. 60, 63, the Appellate Court of Illinois for the 2nd Division said “No one would question the right of the court to have proceeded as in the case of direct contempt at the time of the commission of [the contemnor’s] acts when she was still in the court’s presence, or had such proceedings been then instituted and continued until the time of the court’s action. Neither of these proceedings was taken.” Accordingly, the court held (p. 64), — “But whatever authority the court might have exercised at the time of the commission of said acts to take jurisdiction of her person and proceed as in a case of direct contempt committed in its presence, it had no right to assume jurisdiction of her person for such purpose [later] without any judicial process whereby it could be acquired. The mere fact that she was then brought into the presence of the court on the other criminal cases did not authorize assumption of such jurisdiction. One cannot be deprived of his liberty in this country without due process of law.”

¶36The case of Sacher v. United States, 343 U. S. 1, which the majority opinion cites, does not derogate from the foregoing principle. What the Saeher case holds is that, in order that the progress of a criminal trial be not unduly interrupted or interfered with by a temporary suspension for the court’s interposition of a summary proceeding against a defendant or his counsel for the punishment of a direct contempt cur*637rently committed by them, the trial court is warranted in postponing the summary proceeding for the contempt until the jury’s verdict in the matter on trial has been rendered. Mr. Justice Jackson, speaking for the majority of the court, said (p. 11), — “We hold that Eule 42 [Fed. Rules Crim. Proc.] allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.” In the Sachercase, the trial judge merely awaited completion of the trial before sentencing defendants’ counsel for the contempts committed during the course of the trial. He acted at the earliest available moment, viz;., immediately upon receiving the jury’s verdict in the matter on trial. No such exigency existed in the instant case. Moreover, unlike here, all of the con-tempts cited and found in the Sachercase were matters of undisputed court record.

¶37Admittedly no record was made of what was said by the district attorney in Judge BeahamY court room on November 30th. Nor did the Judge take any action then to punish the district attorney for any contempt; indeed, so far as the record discloses, the word contempt was not even mentioned in the court room that day. No pending trial prevented the court from acting in the matter. Tlie court adjourned for the day at twelve noon. And the Judge made no move to retain jurisdiction that he might proceed summarily against the district attorney later. The only reason which the Judge gave for not having acted summarily on November 30th was that he was “too angry” and couldn’t trust himself to act justly in the matter at the time. Certainly, that condition was incapable of *638continuing into the indefinite future the court’s power to proceed summarily. Three days later, the Judge called the district attorney into his chambers and, then, for the first time made known to him his intention to cite the district attorney for contempt unless the latter voluntarily submitted to a rebuke by the Judge in open court which the district attorney refused to do. Justifying the action of the court below, as does the majority of this court, on the basis of the Sachercase mistakenly extends, in my opinion, the ruling of that case far beyond its intended scope. The implied effect of this court’s present holding is that a judge can, at practically any time that suits his convenience or whim, take up for summary punishment an alleged direct contempt said to have been committed at some prior time and, that, without having contemporaneously declared the alleged contempt or having acted to retain jurisdiction to deal summarily with it later.

¶38(2) The court below, apparently recognizing the inappropriateness of belatedly proceeding summarily, entered the rule on the respondent with specified charges and fixed a hearing thereon. But, the court nonetheless summarily adjudged the respondent guilty by acting upon its own independent recollection of what had occurred in Court Room No. 1 on November 30th without any testimony to support the language that the court ultimately imputed to the distinct attorney. Certainly, a hearing and not a summary proceeding must have been contemplated. In Judge Braham’s statement to the district attorney on December 3rd, he announced, — “I will fix a, time and try you for contempt of court” (see statement ante). Again, in the statement which he made at the outset of the hearing on December 17th, he conceded the existence of an issue as to a material fact which, admittedly, had not occurred in his presence and which, therefore, required a hear*639ing for its determination. Thus, he then stated,- — -“I could not have determined that question summarily here in open court on November 30 because I didn’t know whether my messages to the District Attorney in court room No. 2 were delivered.” The necessity for a hearing was manifest. But, the hearing which the Judge conducted proved to be illusory. Summary procedure not having been availed of, it was not permissible for the Judge to make findings from his own memory, unsupported by a,ny testimony adduced at the hearing. It is therein that the fundamental error of this court’s affirmance also lies. The majority mistakenly attribute to a judge, upon the trial of a contempt, the right, which attends only a summary proceeding, to act upon his own recollection without testimony. The majority opinion fails to recognize that where “the issuance of process and the holding of hearings” is resorted to, the incidents of a summary proceeding do not attend. It follows, therefore, that the language, for which alone this court affirms the judgment of contempt, should have been charged openly and timely against the respondent and proven at the hearing like any other material fact.

¶39Actually, the hearing turned out to be but a medium for the Judge’s expounding his prerogative as President Judge “to assign cases” for trial. Indeed, he deemed that to be “the principal issue”. At the beginning of the hearing on December 17th, the Judge said, — -“There are two or three issues which I invite you [sic] gentlemen’s attention. First, is the contempt in open court. I might have imposed sentence on that day, but I was too angry. Then it turns out that there is involved this larger question; whether I, as President Judge, have the right to determine that there shall be a session of Quarter Sessions in this court room, contemporaneously with a session in court room No. 2. I *640say, the power to decide that point rests with the Court. That seems to be the principal issue, and it’s a question of law” (Emphasis supplied). The first three of the six conclusions of law contained in the adjudication of January 23rd show how far afield from the contempt charge the proceeding digressed, vide: “1. The court and not the district attorney has the power to fix sessions of court. 2. The court and not the district attorney has the ultimate power to assign cases. 3. A president judge has no more power than an additional law judge except that he has the duty of assigning cases and determining the priority of business.” As to the sentence imposed on the respondent, the adjudication states, — “. . . this sentence is intended to demonstrate that the court and not the District Attorney has the power to fix sessions of the court and the ultimate power to assign cases .... The District Attorney continues ... to demand them for himself.” Even if he did, there was a more appropriate way for the court to settle that with dignity and effect. A contempt proceeding, especially one summarily conducted, should not be used to vent a judge’s anger or to placate his ruffled vanity over a supposed invasion of the prerogatives of his office.

¶40The integrity of the proceeding as a means for redressing the alleged contempt is impugned by the adjudication wherein the Judge states, — “Three days went by. He [the district attorney] offered no word of explanation, or regret or of apology. The President Judge could only conclude that the District Attorney had not only run the courts on November 30 but intended to keep on running them. When the President Judge challenged this fatuous idea by his statement of December 3 the District Attorney responded with the letter [of December 4th] quoted in the 21st finding of fact.” Is it not a legitimate inference from the foregoing that *641the Judge resorted to the contempt proceeding to chastise and discipline the district attorney not for anything that he had said in Court Room No. 1 on November 30th but for having devoted his own and his assistant’s services that morning to the disposition of criminal cases before Judge Lamoree in Court Room No. 2.

¶41(3) Because of Judge Braham’s self-interest and personal feeling, he should have disqualified himself for the hearing of the contempt charge against the district attorney. The desirability and propriety of that course in circumstances such as here obtained has been judicially recognized and confirmed: see Cooke v. United States, 267 U. S. 517, 539; Snyder’s Case, 301 Pa. 276, 289, 152 A. 33; and Commonwealth v. Sheasley, 102 Pa. Superior Ct. 384, 391. The majority seek to distinguish the cases, just cited, from the present on the ground that, in those cases, “there had been acrimonious feelings between the judge and the offender, whereas here there is nothing to indicate the existence, prior to this occurrence, of any strained relations.” By the time of the presently pertinent “occurrence”, viz., December 17th, when the Judge refused to disqualify himself, there had been two and a half weeks of extremely “strained relations”. The record fairly exudes personal feeling and pique on the part of the Judge. A few illustrations should suffice. In the adjudication which the Judge handed down after seven intervening weeks in which to “cool off”, he states, in reference to a portion of the district attorney’s letter of December 4th to which he particularly objected,2— *642“He [the district attorney] keeps a black book of complaints and when he thinks he has enough against the judge, he flouts and derides his authority and defies him to proceed. This is the District Attorney’s version of ‘The Terror’.” Again, the adjudication queries and answers,- — -“Were an ordinary district attorney, well disposed toward all men, to learn that there was an apparent discrepancy between his plans and the plans of the President Judge, would he not at once have sought him out and endeavored to arrive at an understanding? This the District Attorney never did.” The stultifying implication is plain. As already appears, he charged the district attorney with entertaining a “fatuous idea”. He was especially aggravated by the district attorney’s letter of December 4th, terming it “insulting” and finding it to be an act of contempt which it certainly was not, as this court correctly holds. There is every bit as much reason for disqualifying the Judge from conducting the hearing on the contempt charge in the instant case as there was in the cases above-cited.

¶42As was said by Mr. Justice Holmes, — “When it is considered how contrary it is to our practice and ways of thinking for the same person to be accuser and sole judge in a matter which, if he be sensitive, may involve strong personal feeling, I should expect the power to be limited by the necessities of the case ‘to insure order and decorum in their presence’ as stated in Ex parte Robinson, 19 Wall. 505.” While the foregoing was said in a dissenting opinion (Toledo Newspaper Company v. United States, 247 U. S. 402, 423), its merit cannot be denied.

¶43(4) A trial, rather than a summary proceeding, having been entered upon by the court below for the punishment of the alleged contempt, the respondent was entitled to be informed of the precise charge against *643him and to an opportunity to be heard in answer thereto. Instead of that, he was found guilty of contempt for the utterance of language with which he was never charged and as to which no one testified at the hearing. The one thing whereof he was found guilty, which this court now sustains, proceeded alone from the memory of the trial judge. For that and other reasons hereinbefore given, the respondent was denied due process of law in violation of both Art. I, Sec. 9, of the Constitution of Pennsylvania and the Fourteenth Amendment of the Constitution of the United States.

¶44I would accordingly reverse the judgment and discharge the respondent. The matter has gone too far and too long and too little remains for the case to be returned to the court below for trial before a disinterested and impartial judge. The episode has already been magnified out of all proportion to its original significance. The controversy between the Judge and the district attorney could no doubt have been resolved amicably long ago with a little more forebearance and cooperation on the part of both.