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October 21, 1969

H. L. GUNDLACH, York, Pennsylvania, Plaintiff,
John F. RAUHAUSER, Jr. in his capacity as District Attorney for the County of York, Commonwealth of Pennsylvania, Defendant

Per Curiam

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) *fn1" 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). *fn2" 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.
* * *
"* * * '[a] system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity.' Bantam Books Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963); Freedman v. Maryland, 380 U.S. 51, 57, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). And even where this presumption might otherwise be overcome, the Court has insisted upon careful procedural provisions, designed to assure the fullest presentation and consideration of the matter which the circumstances permit. As the Court said in Freedman v. Maryland, supra, at 58, 85 S. Ct. 734, a non-criminal process of prior restraints upon expression 'avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.'"

 The failure of Section (g) to comport with these basic principles renders it incompatible with the First Amendment. Indeed, the Supreme Court of Pennsylvania, in Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 248 A.2d 45 (1968), decided one week prior to the Carroll case, anticipated the action of the United States Supreme Court in Carroll, when it invalidated an ex parte injunction obtained by the District Attorney of Allegheny County against an allegedly obscene movie in spite of the fact that a hearing on the final injunction was to be held four days later. *fn3" Mr. Justice O'Brien, speaking for the majority, pointed out that freedom of speech is constitutionally protected until it is judicially adjudged to be obscene. The Court held that the granting of an injunction after an ex parte hearing and with no record made of the proceedings (which is similar to what occurred in the case before us), was reminiscent of Star Chamber proceedings of yore and was "shockingly defective." The Court went on to say:

"The fact that appellants may have been offered a full dress hearing within four days of the original restraint does not suffice. Quite clearly, there is no provision for a prompt decision." *fn4"

 With regard to a procedural requirement for a prompt decision after an adversary proceeding, the Court suggested, as a model, the New York statute which provides for a trial within one day after joinder of issue and a decision within two days of the conclusion of the trial.

 Applying the authorities hereinabove referred to, it is clear that Section (g) of the Act of June 24, 1939, P.L. 872, § 524, as amended, 18 P.S. § 4524(g), as presently written is constitutionally defective and cannot stand. Accordingly, Judgment will be entered declaring Section (g) of the aforesaid Statute violative of the First Amendment of the United States Constitution and permanently enjoining the ...

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