In this action, Herbert L. Gundlach seeks injunctive and declaratory relief against John Rauhauser, Jr., District Attorney of the County of York, Pennsylvania. At issue are the actions instituted in the York County Common Pleas Court by the District Attorney under the Pennsylvania Obscenity Statute, 18 P.S. § 4524 (Supp. 1969), seeking to restrain plaintiff from the further sale and distribution of certain "adult type" publications and materials. Because the plaintiff sought a declaratory judgment that Pennsylvania's Obscenity Statute, supra, violates the United States Constitution, a statutory Three-Judge Court, 28 U.S.C. § 2281, was convened and the matter heard on September 18, 1969, due notice having been given to the Governor and Attorney General of Pennsylvania.
A brief recital of the history of this case is appropriate.
On Friday, August 29, 1969, District Attorney Rauhauser instituted an equity action in the Court of Common Pleas of York County against H. L. Gundlach, trading and doing business as H & G Enterprises, Superb Sales, and Feature Publications, pursuant to Section (g)
of the Pennsylvania Obscenity Act, supra. In the complaint Gundlach was charged with selling and distributing certain obscene publications which were named or referred to in exhibits attached to the complaint and it was further averred that such conduct constituted a danger to the welfare and peace of the community of York County. Upon the filing of the complaint and on motion of the District Attorney, without notice to Gundlach, a preliminary injunction was entered by Honorable George W. Atkins, President Judge of the York County Court of Common Pleas, restraining and enjoining Gundlach, his agents, servants and employees from "selling, distributing, giving away, or causing to be sold, distributed, or given away any of the publications of the kind attached to the Complaint * * *" and fixing September 3, 1969, at 1:30 P.M., as the time and place for a hearing to determine whether the injunction should be continued. Service was made on the Secretary in charge of the plaintiff's place of business in York on the afternoon of August 29, 1969, but the copy of the Order of the Court issued by Judge Atkins and served on plaintiff's Secretary inadvertently omitted the time and date of hearing on the District Attorney's motion to continue the injunction. Although plaintiff learned of the September 3, 1969, Court hearing in a York newspaper, he failed to appear for the hearing on that date, at which time the Court heard evidence presented by the District Attorney and continued its preliminary injunction pending final hearing. It was on this date that Mr. Gundlach instituted the present suit in Federal Court. On September 10, 1969, Honorable William J. Nealon, sitting as a single Judge pursuant to 28 U.S.C. § 2284(3), denied plaintiff's motion for a temporary restraining order. A hearing was held before the Three-Judge panel on September 18, 1969, and defendant's motion for stay of proceedings was denied. Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967). In addition, all parties agreed that this hearing would suffice as a final hearing on the merits.
It will be noted that Section (g) of the Pennsylvania Act authorizes the District Attorney to institute proceedings in equity for the purpose of enjoining the sale and distribution of any written or printed matter of an obscene nature. Moreover, Section (g) specifically provides for the issuance of a preliminary injunction, ex parte, upon the averment of the District Attorney that the sale or distribution of such publication constitutes a danger to the welfare or peace of the community. Thereafter, a hearing is to be held in conformity with the Rules of Civil Procedure. Plaintiff contends, in this action, (a) that Section (g) of the Pennsylvania Obscenity Statute violates the First Amendment of the United States Constitution as applied to the States through the Fourteenth Amendment, and (b) that the publications and materials involved herein are not obscene in the constitutional sense as a matter of law.
We need only consider point (a) as it is apparent that Section (g) is defective in that it provides for the issuance of a preliminary injunction, without notice, in an area involving "basic freedoms guaranteed by the First Amendment" and, further, that it fails to establish the necessary procedural safeguards to insure prompt and final judicial decision. Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968).
In the Carroll case, a unanimous Supreme Court invalidated an ex parte restraining order issued against the National States Rights Party, forbidding them for a period of ten days from holding rallies or meetings in Princess Anne County, Maryland. The Supreme Court there stated that:
"There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.
* * *