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DUGGAN v. GUILD THEATRE (11/11/69)

decided: November 11, 1969.

DUGGAN
v.
GUILD THEATRE, INC. ET AL., APPELLANTS



Appeal from decree of Court of Common Pleas of Allegheny County, Jan. T., 1969, No. 2692, in case of Duggan v. Guild Theatre, Inc. et al.

COUNSEL

Hubert I. Teitelbaum, with him Martin M. Sheinman, Sidney Silverblatt, and Edmund C. Grainger, of the New York Bar, and Morris, Safier & Teitelbaum, for appellants.

Carol Mary Los, Assistant District Attorney, with her Charles B. Watkins, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result. Opinion by Mr. Justice Cohen. Mr. Justice Jones joins in this opinion. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts; Cohen

[ 436 Pa. Page 193]

In Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 248 A.2d 45 (1968), we vacated a preliminary injunction which had barred the showing of the film "Therese and Isabelle" in Allegheny County. The case then went to trial and the chancellor, aided by an "advisory jury," held the movie obscene and issued a permanent injunction. This appeal followed. Appellants assign two principal grounds for reversal: that the district attorney could not proceed in this case by means

[ 436 Pa. Page 194]

    of an injunction; and that "Therese and Isabelle" is not constitutionally obscene. We hold that while the district attorney may seek to enjoin the showing of an obscene movie, "Therese and Isabelle" is not obscene. Accordingly, we reverse and vacate the decree granting the injunction.

Appellants' first contention, that the district attorney has no standing*fn1 to seek an injunction here, is based on the Act of July 31, 1968, P. L. 892, 18 P.S. § 4524 (Supp. 1969). Section 4 of that act repealed the Act of September 17, 1959, P. L. 902, 4 P.S. § 70.10, which had given the Board of Censors standing to seek an injunction against obscene movies. The 1968 act did not, however, repeal the statute which makes criminal the showing of an obscene movie. See Act of June 24, 1939, P. L. 872, § 528, as amended, 18 P.S. § 4528. The act did consolidate various statutes dealing with sale and distribution of obscene works to adults and minors. In section 1(b), which sets out separate provisions relating only to minors, the act specifically mentions sound recordings, sculpture, and motion pictures,

[ 436 Pa. Page 195]

    none of which media are mentioned in section 1(a) which deals with adults. Section 1(g), which gives the district attorney standing to seek an injunction, only enumerates the media mentioned in section 1(a). Thus appellants argue, quite persuasively, that since the Legislature failed to use the term "motion pictures" in 1(g), a term used elsewhere in the statute, the district attorney has no power to seek an injunction under the statute.*fn2

We agree that his authority cannot be derived from that statute. But that does not mean he lacks standing to institute an equitable proceeding here, for we cannot say that the Legislature was required to statutorily create standing to enable the district attorney to seek an injunction against an obscene movie. Obscenity is a public evil, long recognized in this Commonwealth to result in a particular type of public harm. See Commonwealth v. Sharpless, 2 Sergeant & Rawle (Pa.) 91 (1815). Where, as here, the district attorney is seeking to protect the public from a continuing dissemination of an allegedly obscene work, we cannot say that he lacks standing to vindicate this public right in a court of equity.*fn3

[ 436 Pa. Page 196]

Since the district attorney does have standing to initiate an injunctive proceeding against an allegedly obscene movie, we must now consider the question of whether "Therese and Isabelle" is obscene. The last opinion in which we dealt at length with the problem of what constitutes obscenity in the constitutional sense is Commonwealth v. Dell Publications, Inc., 427 Pa. 189, 233 A.2d 840 (1967), cert. denied, 390 U.S. 948, 88 S. Ct. ...


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