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June 7, 1951


Original jurisdiction. No. 1789, Miscellaneous Docket, on petition of Hymen Schlesinger, for writ of prohibition, against Honorable MICHAEL A. MUSMANNO, Judge of the Court of Common Pleas of Allegheny County, and answer thereto. Writ of prohibition directed to issue. $2:

Author: Drew

[ 367 Pa. Page 478]


This matter comes before us on a petition and supplemental petition for a writ of prohibition filed by Hymen Schlesinger, a member of the Bar of the County of Allegheny, and an answer of Honorable MICHAEL A. MUSMANNO, a judge of the Court of Common Pleas of that county.

A study of the record shows clearly the following facts: On May 24, 1951, when petitioner appeared as counsel for one McGrath, the plaintiff in a trespass case which had been assigned for trial to Judge MUSMANNO and a jury, the Judge directed that all parties and witnesses leave the court room, and then, in the presence of newspaper reporters and others, stated: "Before we proceed in this case, I want to interrogate, and my duties require that I interrogate, counsel for the plaintiff." The Judge then asked, inter alia, the following questions: "Hymen Schlesinger, have you ever been a member of the Communist Party"; "Are you a member of the Civil Rights Congress"; and "Did you or did you not form the Civil Rights Congress, which is a communist Front Organization, in your office -- the Civil Rights Congress which is part of the movement to overthrow the Government of the United States by force and violence". Petitioner refused to answer these questions, insisting that Judge MUSMANNO was without jurisdiction to make such inquiry; and then made motions that the Judge disqualify himself

[ 367 Pa. Page 479]

    as to the trial of the McGrath case, and also for the entry of a voluntary non-suit. Judge MUSMANNO would not rule on the first of these motions, but did refuse the second. When petitioner sought to leave the court room, the Judge had the court officers restrain him until he, the Judge, had concluded his remarks. He then said: "We have formally adjudged you unfit to try a case in this Court as of today, morally unfit. You do not possess an allegiance to the United States. There is sufficient evidence before the Congress of the United States that you made statements that you believe in overthrowing the Government of the United States by force and violence. Because of these sworn statements, which you do not see fit to reply to, we declare you morally unfit to try a case in this court room. Therefore, the case will be continued until you purge yourself of contempt or until your client is able to obtain another lawyer."

On May 29, 1951, the petitioner filed this petition for a writ of prohibition, and we, on the same day, granted a rule on Judge MUSMANNO to show cause, returnable June 4, 1951, and stayed all proceedings until further order of this Court. Shortly before this Court granted the rule, Judge MUSMANNO filed an order in the Court of Common Pleas notifying petitioner to appear on May 31, 1951, in connection with the so-called contempt proceeding heretofore referred to. The deputy sheriff who attempted to serve petitioner on the street with a certified copy of the order of Judge MUSMANNO, notified the Judge that petitioner glanced at the outside of the copy of the order, declared "I am not accepting any service today", and threw the paper to the street and walked away. Judge MUSMANNO then issued a bench warrant for petitioner's arrest. About the time the petitioner was brought before the Judge on the afternoon of May 29, 1951, a copy of our order granting a rule to show cause and staying all proceedings

[ 367 Pa. Page 480]

    in the matter was served upon Judge MUSMANNO. Nevertheless, the Judge proceeded with a so-called hearing, and, although petitioner stated that he did not know that the man who attempted to serve him was a deputy sheriff, that he did not look at the paper and that he did not throw it away. Judge MUSMANNO again adjudged petitioner in contempt of court.

It is well settled, as was said by Judge KELLER, In re Contempt of Myers & Brei, 83 Pa. Superior Ct. 383, 387, 388: "Courts undoubtedly have the power to punish contempts and necessarily must have it to protect themselves from insult and enforce obedience to their process: Passmore Williamson's Case,... [26 Pa. 9], p. 18; and as a general rule, -- as in cases where the contempt arises from some misconduct committed in the presence of the court, or refusal to obey its lawful process, order or decree --, the appellate court will not inquire further than to ascertain whether the record shows such misconduct or disobedience of the court's order, and its judgment on the facts is generally conclusive: Com. v. Newton,... [1 Grant 453]. But, as was well said in People v. Kelly, 24 N.Y. 74, 'this rule is, of course, 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. The question whether the alleged offender really committed the act charged will be conclusively determined by the order or judgment of the court, and so with equivocal acts, which may be culpable or innocent according to the circumstances; but where the act is necessarily innocent or justifiable it would be preposterous to hold it a cause of imprisonment.' 'It certainly cannot be true that the decision of an inferior court adjudging

[ 367 Pa. Page 481]

It is necessary, therefore, for the guidance of the judges of the Commonwealth in the future that the error above noted be, and the same is, hereby condemned."

Inasmuch as Judge MUSMANNO insisted upon questioning petitioner on matters which had no bearing whatsoever on the issue then before him, and even restrained petitioner when he sought to leave the court room, the Judge is not in a position to complain because of petitioner's remarks to him or the manner in which he made them, nor could the Judge properly hold petitioner in contempt for so doing. A judge's conduct should always be above reproach.*fn1 We said in Sorrentino v. Graziano, 341 Pa. 113, 119, 17 A.2d 373, quoting from Commonwealth v. Myma, 278 Pa. 505, 508, 123 A. 486: "'The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or ...

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