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COMMONWEALTH EX REL. COSTA v. BOLEY (01/25/71)

decided: January 25, 1971.

COMMONWEALTH EX REL. COSTA
v.
BOLEY, APPELLANT



Appeal from decree of Court of Common Pleas of Washington County, No. 6645 of 1970, in case of Commonwealth of Pennsylvania ex rel. Jess D. Costa, District Attorney of Washington County v. Earl V. Boley, t/d/b/a The Atlantis.

COUNSEL

Harry F. Swanger, for defendant, appellant.

Roger J. Ecker, Assistant District Attorney, with him Jess D. Costa, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Eagen concur in the result.

Author: Roberts

[ 441 Pa. Page 497]

Appellant contests the granting of an ex parte preliminary injunction without notice or hearing. We vacate the injunction.

On December 16, 1970, the District Attorney of Washington County filed a complaint in equity, seeking an injunction against appellant. The complaint asserted that the District Attorney had been authorized by the Secretary of Health of the Commonwealth to obtain an injunction against appellant, closing down his place of business, The Atlantis, and restraining him from continued violation of The Drug, Device and Cosmetic Act.*fn1

The complaint alleged defendant had been indicted in the September Term, 1970, by a grand jury of Washington County, for numerous violations of The Drug, Device and Cosmetic Act on two separate occasions -- October 17, 1969, and July 31, 1970. The complaint continued by stating that appellant had not yet been brought to trial for these crimes and was continuing to violate The Drug, Device and Cosmetic Act and other laws of Pennsylvania. Further, the complaint asserted that appellant ". . . has openly, publicly, repeatedly, consistently, persistently and intentionally sold, distributed, consigned and possessed with intent to sell, resell, distribute and consign pictures, posters, figures, designs, drawings, advertisements, emblems, insignia, ensigns, merchandise and other clothing, wearing apparel and publications, at his place of business, The

[ 441 Pa. Page 498]

Atlantis, all of which are obscene." Finally, the complaint alleged that The Atlantis constituted a public nuisance.

In light of the above allegations, the District Attorney asked for a preliminary injunction without a hearing to restrain appellant and permanently close his place of business.

On the basis of this complaint and an accompanying affidavit, the chancellor granted an ex parte preliminary injunction on December 16, 1970, without notice to appellant, enjoining him from continued violations of The Drug, Device and Cosmetic Act, ". . . and all other laws of the Commonwealth."*fn2

On December 22, 1970, a hearing was held, at which time the chancellor denied appellant's motion to dissolve the preliminary injunction. Appellant filed an appeal ...


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