April 22, 1952
IN RE LEVINE. APPEAL OF LEVINE
Frank O. Moretti, New Castle, Michael A. Barletta, Ellwood City, John S. Powers, New Castle, for appellant.
J. Glenn Berry, Cobau & Berry, New Castle, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 580]
Sherman K. Levine, a member of the bar of Lawrence County and District Attorney of that county, has appealed from the order and sentence of the Court of Quarter Sessions of Lawrence County adjudging the said Sherman K. Levine guilty of contempt of court on November 30, 1951, and directing the payment by him of the sum of $100 for the use of the County of Lawrence and of the costs.
Appellant was cited on December 10, 1951, for contempt of court by Honorable W. Walter Braham, President Judge of the Courts of Lawrence County, for his alleged conduct in open court on November 30, 1951, when, as stated in the 9th paragraph of the specifications, he broke into a rude and insolent denunciation of the Court in the presence of many people in the court room. An answer was filed by appellant to the rule
[ 170 Pa. Super. Page 581]
issued in which he denied the contempt. Testimony was taken on December 17, 1951, before President Judge Braham. An adjudication was filed January 23, 1952, in which the President Judge found, inter alia, that when the District Attorney (appellant) came into court room No. 1 and was asked by the President Judge why he had not provided a district attorney for that court room, he broke into a rude and insolent denunciation of the Court saying 'that's the way with this court, always mixing things up; everything is set on one day.' It was also found in said adjudication that the conduct of the District Attorney (appellant) in the circumstances recited therein was willful and deliberate, and was calculated to impair and did impair the dignity and the authority of the courts of Lawrence County. It was concluded as a matter of law that it was an act of contempt of court for a district attorney, who had concentrated both district attorneys in one court room to the exclusion of the other, to answer a request of a president judge, as to why he had not upon demand provided a district attorney for both court rooms, by denouncing the court for setting cases contrary to the wishes of the district attorney.
At the hearing on December 17, 1951, prior to the taking of any testimony, counsel for appellant made a suggestion to disqualify to the Court of Quarter Sessions of Lawrence County and that a judge be assigned to hear the matter other than the Honorable W. Walter Braham, President Judge of said Court. The suggestion or request to certify the case to another judge was refused and an exception noted.
Appellant on this appeal contends that the order and sentence of President Judge W. Walter Braham should be reversed for the reasons (1) that the failure of the President Judge to disqualify himself was reversible
[ 170 Pa. Super. Page 582]
error, and (2) that appellant was not guilty of contempt of court as charged.
This Court is divided on the disposition of the appeal as to affirmance or reversal; there is likewise a division among those favoring a reversal as to the character of directions to be given incident to a reversal. Some judges of this Court would reverse the order and sentence and discharge appellant; some would reverse and remand the record for a hearing before a judge other than President Judge Braham; some would affirm the order and sentence. There is no majority of the Court concurring on any issue which would result in a final decision.
The Court being thus divided, the order and sentence will be affirmed.
Order and sentence affirmed.
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