Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


July 2, 1959


Appeals, Nos. 206 and 235, Jan. T., 1958, from decree of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1957, No. 2390, in case of Kingsley International Pictures Corporation v. Victor Blanc, District Attorney. Decree reversed. Equity. Before REIMEL and WEINROTT, JJ. Adjudication entered sustaining defendant's preliminary objections and dismissing complaint and final decree entered, opinion by REIMEL, J. Plaintiff appealed.


Harold E. Kohn, with him Aaron M. Fine, and Dilworth, Paxson, Kalish, Kohn & Dilks, and Ephriam S. London, of the New York Bar, for appellant.

James L. Stern, Deputy City Solicitor, with him Shirley S. Bitterman, Assistant City Solicitor, Leonard L. Ettinger, Deputy City Solicitor, and David Berger, City Solicitor, for appellee.

Jacob S. Richman, for American Civil Liberties Union, under Rule 46.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Jones

[ 396 Pa. Page 450]


The question on this appeal is whether equity has jurisdiction of the subject matter of the complaint. Although that, and that alone, is the sole question of law here involved, it will require a factual recital of some length for a correct understanding of the legal problem from which the court below appears to have been diverted by extraneous and immaterial considerations. There were two appeals by the plaintiff, one from the order refusing a preliminary injunction and the other from the final decree dismissing the complaint. Only the later appeal need any longer be considered and the earlier will be non prossed.

The plaintiff, Kingsley International Pictures Corporation, of New York and having its principal place

[ 396 Pa. Page 451]

    of business there, instituted this suit in equity in the court below against Victor Blanc, District Attorney of the City and County of Philadelphia, seeking an injunction, preliminary until hearing and thereafter permanent, to restrain the defendant from interfering with the commercial exhibition of a motion picture entitled And God Created Woman. The plaintiff corporation is the exclusive distributor of the film in the United States and had contracted with the respective owners of two motion picture theatres in Philadelphia for their simultaneous exhibition of the film beginning February 5, 1958. Approximately three weeks prior to that date, an Assistant District Attorney, acting under the direction of the defendant, asked the plaintiff for a private showing of the film for his inspection. The complaint alleges that, on January 28, 1958, the Assistant District Attorney, after having viewed the film, informed the plaintiff's attorney that in the judgment of the District Attorney's office, the showing of the film would constitute a violation of Section 528 of The Penal Code of June 24, 1939, P.L. 872, 18 PS ยง 4528, and that, in the event the motion picture was publicly exhibited in Philadelphia, the persons responsible for showing it would be arrested and the films would be seized. Thereupon, the owners of the two Philadelphia theatres notified the plaintiff that they would not exhibit the film under the then existing circumstances, and thus would breach their contract with the plaintiff.

Section 528 of The Penal Code makes it a misdemeanor to show "... moving pictures, of a lascivious, sacrilegious, obscene, indecent, or immoral nature and character, or such as might tend to corrupt morals ...." The complaint avers that this statute is so vague, in the terms which it employs to define a crime, as to constitute its enforcement a violation of the due process clause of the Fourteenth Amendment of the

[ 396 Pa. Page 452]

Federal Constitution. See Commonwealth v. Blumenstein, 396 Pa. 417. We have declared the Act unconstitutional because of the vagueness of certain of the descriptive terms used in Section 528. However, our invalidation of the statute is not dispositive of the instant case. If, as a result of this appeal, it is determined that the complaint makes out a case for equitable relief, the plaintiff will be entitled to an adjudication of its rights in the premises and, if successful on final hearing, an injunction with costs.

The complaint further avers that the film is not obscene; that its exhibition would not violate any valid statute of the Commonwealth of Pennsylvania; that, if relief is not granted, the plaintiff corporation would suffer irreparable injury; and that there will be a multiplicity of prosecutions of persons with whom the plaintiff contracts for exhibition of the film.

Confronted with the threats of the District Attorney and the refusals of the theatre owners to exhibit the film, the plaintiff company filed its complaint in the instant suit on February 4, 1958, the day before the scheduled opening of the Philadelphia exhibition of the film. On February 5th a hearing was held by the court below on the plaintiff's motion for a preliminary injunction. At that time the defendant filed a responsive answer which, although admitting most of the material averments of the complaint, directly put in issue by denial the factual averment that the film was not obscene.*fn* At the court's suggestion the defendant

[ 396 Pa. Page 453]

    agreed to the film's being shown publicly without interruption pending a determination by the court with respect to the request for a preliminary injunction. As a consequence the picture was publicly shown at the two theatres on February 5th as originally scheduled. At the hearing on February 5th the plaintiff introduced evidence as to the threats which had been made by the defendant and as to the irreparable harm which the plaintiff had suffered and would suffer as a result of the defendant's action. The defendant offered no evidence to refute the need of a preliminary injunction.

A second hearing was held on February 10, 1958, on the plaintiff's application for a preliminary injunction. At that time a Deputy City Solicitor appeared as counsel for the District Attorney pursuant to the requirement of Section 4-400 of the Philadelphia Home Rule Charter. Notwithstanding that the defendant had already filed a responsive answer to the complaint, the Deputy City Solicitor filed preliminary objections which assigned, inter alia, as ground for the dismissal of the bill, that equity is without jurisdiction to entertain the subject matter of the complaint.

On February 11, 1958, the court denied the plaintiff's application for a preliminary injunction and, on the same day, the District Attorney seized the films at the two theatres and arrested the managers. The plaintiff company immediately appealed to this court from the order denying it a preliminary injunction and, on February 13, we entered an order restraining the

[ 396 Pa. Page 454]

District Attorney from interfering with the showing of the film at either theatre "until final decree of the court below in the equity suit there pending." By stipulation, the District Attorney retained one print of the seized films for evidentiary purposes later.

After argument on the preliminary objections the court below entered a decree on March 5, 1958, sustaining the preliminary objections and dismissing the bill on the ground that equity was without jurisdiction. On the following day the District Attorney again seized the films at the two theatres.

The plaintiff took the present appeal to this court from the final decree dismissing the bill and petitioned for a supersedeas. After argument thereon we ordered the District Attorney not to interfere with the exhibition of the film until final disposition of the equity suit.

The managers of the two theatres have been indicted under Section 528 of The Penal Code, supra, for exhibiting the film, and also under Section 524, for possession of obscene literature. These criminal proceedings have been continued pending disposition of this case. The indictments allege that the criminal acts charged against the managers of the theatres were committed on or about February 5, 1958 - the date on which the showing of the films in Philadelphia began. At the hearing conducted by the court below on that very day, it had been agreed that nothing would be done by way of arresting the exhibitors or seizing the film until the court had witnessed an exhibition and had determined its attitude. The record clearly indicates that the managers of the two theatres would not have exhibited the film if the District Attorney had not agreed that there would be no interference with the showing at that time.

[ 396 Pa. Page 455]

As stated at the outset, the sole question on this appeal is whether, under the facts averred in the complaint, a court of equity has jurisdiction to enjoin the District Attorney from interfering with the exhibition of the motion picture films with consequent irreparable harm to the property rights of the plaintiff.

It is well settled that ordinarily equity will not restrain the prosecution of a criminal proceeding. Meadville Park Theatre Corporation v. Mook, 337 Pa. 21, 24, 10 A.2d 437. The rationale of the rule is that the accused has an adequate remedy at law by pleading at the time of the criminal prosecution, the invalidity of the statute whereon his indictment is based, or any other defense available to him: Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323, 341, 105 A.2d 287. This rule has no application, however, where, as in the instant case, the equity proceeding is instituted by a person who is not a party to the criminal proceeding but who nevertheless has property rights which will be irreparably injured by the prosecuting activities of the District Attorney. In such a situation equity has jurisdiction because the plaintiff has no adequate and complete remedy at law. Indeed, he has no other remedy at all.

The rule is well set out in Pennsylvania Railroad Company v. Bogert, 209 Pa. 589, 601, 59 A. 100, which quoted, in part, from Bank of Virginia v. Adams, 1 Parsons 534, that "... when from the nature and complications of a given case, its justice can best be reached, by means of the flexible machinery of a court of equity, in short where a full, perfect and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice", to which the opinion writer added, "Or as Story ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.