Riccobene Appeal

Dissenting Opinion by

Mr. Justice Eagen:

It is my view that the Majority’s reliance on Shillitani v. United States, 384 U.S. 364, 86 S. Ct. 1531 (1966) is misplaced. That case is only concerned with interpreting Rule 42 of the Federal Rules of Criminal Procedure, and, as such, is based on the United States *429Supreme Court’s supervisory powers over the federal judiciary and is only applicable to the federal courts. There is no indication that the definitions therein set forth of civil contempt and criminal contempt are Constitutionally required, or that state statutes regulating civil and criminal contempt are unconstitutional if not in precise conformity therewith. We are therefore bound to follow Pennsylvania statutory law regulating a court’s use of the contempt power, and need not feel obligated to abandon our case law interpreting the same.

There is no question that courts have always possessed the inherent power to enforce their orders and decrees by imposing penalties and sanctions for failure to obey or comply therewith: Brocker v. Brocker, 429 Pa. 513, 241 A. 2d 336 (1968). The crucial issue is the manner in which the court, in a given situation, may exercise such inherent right, i.e., by the use of civil contempt or criminal contempt.

The dominant purpose of a contempt proceeding determines whether it is civil or criminal: Brocker v. Brocker, supra; Knaus v. Knaus, 387 Pa. 370, 127 A. 2d 669 (1956). The purpose of a civil contempt pro-proceeding is remedial, and judicial sanctions are employed to coerce the defendant into compliance with the court’s order and, in some instances, to compensate the complainant for losses sustained: Brocker v. Brocker, supra; Philadelphia Marine Trade Assn. v. International Longshoremen’s Assn., 392 Pa. 500, 140 A. 2d 814 (1958) ; Knaus v. Knaus, supra. Where the act of contempt complained of is the refusal to do or refrain from doing some act ordered or prohibited primarily for the benefit of a private party, proceedings to enforce compliance with the decree are civil in nature: Brocker v. Brocker, supra; Philadelphia Marine Trade Assn. v. International Longshoremen’s Assn., su*430pra; Knaus v. Knaus, supra. The factors generally said to point to a civil contempt are these: (1) Where the complainant is a private person as opposed to the government or a governmental agency; (2) where the proceeding is entitled in the original injunction action and filed as a continuation thereof as opposed to a separate and independent action; (3) where holding the defendant in contempt affords relief to a private party; (4) where relief requested is primarily for the benefit of the complainant; and (5) where the acts of contempt complained of are primarily civil in character and do not of themselves constitute crimes or conduct by the defendant so contumelious that the court is impelled to act on its own motion: Philadelphia Marine Trade Assn. v. International Longshoremen’s Assn., supra; Knaus v. Knaus, supra.

The dominant purpose of a criminal contempt proceeding is to vindicate the dignity and authority of the court and to protect the interests of the general public: Philadelphia Marine Trade Assn. v. International Longshoremen’s Assn., supra. Criminal contempts are divided into direct and indirect contempts: Philadelphia Marine Trade Assn. v. International Longshoremen’s Assn., supra; Knaus v. Knaus, supra. A direct criminal contempt consists of misconduct of a person in the presence of the court, or so near thereto, as to interfere with its immediate business, and punishment for such contempts may be inflicted summarily: Act of June 16, 1836, P. L. 784, §§23, 24, 17 P.S. §§2041, 2042; Philadelphia Marine Trade Assn. v. International Longshoremen’s Assn., supra; Knaus v. Knaus, supra. An indirect criminal contempt consists of the violation of an order or decree of a court which occurs outside the presence of the court, and is regulated by the Act of June 23, 1931, P. L. 925, 17 P.S. §§2047, 2048; Philadelphia Marine Trade Assn. v. International Longshoremen’s Assn., supra; Knaus v. Knaus, supra.

*431The grand jury is an arm of the criminal court: Shenker v. Harr, 332 Pa. 382, 2 A. 2d 298 (1938); McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936). When a witness refuses to testify before a grand jury, notwithstanding statutory immunity or constitutional protection, and is brought before the court, directed to answer on proper notice, and refuses in open court to answer proper questions, a criminal contempt is committed in the presence of the court which may be punished summarily: Commonwealth v. Butler, 171 Pa. Superior Ct. 350, 90 A. 2d 838 (1952).

Such are the consequences prescribed in Section 5 of the Act of November 22, 1968, P. L. , 19 P.S. §640.5, which states: “Any person who shall refuse or decline to testify or produce evidence of any other kind after being granted immunity and ordered by the court, shall be guilty of criminal contempt, and upon conviction thereof, shall be sentenced to pay a fine of not exceeding one thousand dollars ($1,000), or to undergo imprisonment for a period not exceeding one year, or both.” (Emphasis added.) Thus, under the specific statute granting immunity and under the case law in Pennsylvania, the proper sanction prescribed and mandated for the court to enforce its order in this situation was criminal contempt.

The lower court, in conformity with the statute, decreed that appellant must testify before the grand jury with the immunity provided by that act. He was asked the identical questions as previously before the grand jury, and, despite the granted immunity, he persisted in his refusal to answer. A hearing was held to determine whether he should be held in contempt of court, at which time the Commonwealth produced evidence of his refusal to answer the questions and the appellant was given an opportunity to purge himself of the contempt by answering. Appellant refused. The lower *432court thereafter found appellant guilty of “civil contempt” and ordered him committed to the County Prison “for a period of six months unless he shall sooner purge himself before testifying before the said Grand Jury whereupon he shall be released.” This was error.

As indicated above, the misconduct of the appellant in the presence of the court gives rise to a sanction of direct criminal contempt. For direct criminal contempt, committed in open court, punishment of imprisonment for a definite time is imposed, and commitment of contemnors until they purge themselves of the contempt is without authority of law and a nullity: Rosenberg Appeal, 186 Pa. Superior Ct. 509, 142 A. 2d 449 (1958). However, an order which confined a person for direct criminal contempt “for the period of one year or until the further order of the court” was valid as a confinement for the definite period of one year, since the additional language was considered as surplusage: In Re: Donald MacDonald, 110 Pa. Superior Ct. 352, 168 A. 521 (1933).

I feel that the order of the lower court in this case, met the requirement of imprisonment for a definite time, six months, so as to comply with Section 5 of the Act of November 22, 1968, supra, and the addition of the opportunity of the appellant to purge himself of the contempt did not nullify the order. It in no way harmed the appellant and, at the same time, facilitated the possible enforcement of the court’s order that the appellant testify before the grand jury, which is for the benefit of the public and consistent with the purposes of criminal contempt. However, the mere finding of the appellant in “civil contempt” rather than criminal contempt in this case was of major consequence even though the sanction actually given was for criminal contempt. As a result, the appellant was thereby denied a right to trial by jury, as is now required under *433Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886 (1970) and was implicit under Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477 (1968); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444 (1968) and Cheff v. Schnackenberg, 384 U.S. 373, 86 S. Ct. 1523 (1966). Although the sentence actually here imposed was only six months, the statute authorised a maximum sentence of one year imprisonment, considerably longer than that permissible without a right to trial by jury.

I therefore would reverse the order of the court below but without prejudice to the Commonwealth to proceed to prosecute the appellant for criminal contempt in accordance with the requirements of due process.