Appeal, No. 34, Jan. T., 1962, from decree of Court of Common Pleas of Lackawanna County, Sept. T., 1960, No. 2, in case of Leonard N. Guarina and Loretta D. Guarina, his wife v. Leonard Bogart and Marjorie Bogart, his wife. Decree reversed.
George A. Yavorek, for appellants.
No argument was made nor brief submitted for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On June 22, 1949, the defendants in this case, Leonard and Marjorie Bogart, leased in Springbook Township, Lackawanna County, a drive-in motion picture theatre equipped with a screen 16 X 20 feet and the usual accoutrements for such an operation, together with a house and restaurant on a lot 200 by 200 feet. The land space accommodated forty automobiles. In 1955 the Bogarts purchased this property and during the following year remodeled the premises, adding living
quarters to the house and extending the facilities of the restaurant, all at a cost of $15,000.
Before the defendants undertook this reconstruction and renovation, that is to say, in September, 1950, the plaintiffs here, Leonard and Loretta Guarina, bought a lot of ground immediately adjacent to the drive-in theatre and they also reconstructed the building on their land, developing it into a modern attractive home with a value which coincidentally equaled the value of the work done by the defendants, namely, $15,000.
It is not necessary to describe a drive-in theatre since it is now one of the phenomena of modern nocturnal entertainment and its functioning is apparent even to those who are not patrons. The occupants of automobiles passing in the night often get gratuitous glimpses of the film being shown at these outdoor cinemas because the screens are large enough to project enormous images which are visible from great distances. However, the motoring travelers who attempt to follow the story unfolding on the screen of the usual drive-in theatre find their free enjoyment considerably curtailed because no sound emerges from the shadowy figures accomplishing their make-believe deeds, heroic or villainous, as they may be. The dialogue is conveyed exclusively to the theatre patrons by means of wire conducting directly into the parked cars in which the patrons sit with all the comfort and privacy of a parlor at home. This restricted conveyance of voice, music, battle sounds and other audible phenomena descriptive of the action on the screen thus becomes private property and private enjoyment.
This, however, is not the case in the Bogart Theatre in Springbrook Township. The proprietors do not pipe the sound into the cars of their patrons. They give it to the world through large amplifying horns hung in trees, one of which aims at the plaintiffs' home, from a distance of only 102 feet. In consequence, all the
dialogue, battle action between the Indians and the United States cavalry, gun fights between gangsters and the police, aerial jousting between airplanes locked in mortal conflict above the clouds, music (melodious and cacophonous) hits the home of the plaintiffs, ...