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DUGGAN v. 807 LIBERTY AVE. (03/20/72)

decided: March 20, 1972.

DUGGAN
v.
807 LIBERTY AVE., INC. ET AL., APPELLANTS



Appeal from decree of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1971, No. 1383, in case of Robert W. Duggan, District Attorney of Allegheny County v. 807 Liberty Avenue, Inc. and Thomas Benanati.

COUNSEL

Marjorie Hanson Matson, with her H. David Rothman, for appellants.

D. Michael Fisher, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Former Mr. Chief Justice Bell and former Mr. Justice Barbieri took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts.

Author: Eagen

[ 447 Pa. Page 283]

By this appeal, we are asked to remove the onus of injunction from appellants who were showing certain motion pictures asserted to be obscene by the District Attorney of Allegheny County. We are impelled to reverse the decree of the lower court because the procedure utilized by the authorities is constitutionally deficient and the fact that the movies may be obscene, and therefore capable of proscription, cannot rescue it.*fn1

The present dispute arose in the following manner:

On August 9, 1971, the District Attorney filed a complaint in equity in the Court of Common Pleas of Allegheny County, Civil Division, to enjoin the exhibition of certain allegedly obscene movies which were then being shown at the Liberty Adult Movie Theatre, Pittsburgh. The court listed the case for hearing on August 13th and directed appellants to produce copies of the films on view at the time of the filing of the complaint and any other similar films being exhibited on the date set for hearing.

Appellants filed preliminary objections to the complaint asserting a lack of jurisdiction to enjoin the activity, denying that the films were obscene in the constitutional

[ 447 Pa. Page 284]

    sense and challenging the authority of the District Attorney to proceed without posting a bond.

These objections were overruled at the aforementioned hearing. Appellants were then required to produce "Rubber Anniversary" and "Money Honey", films which had been mentioned in the complaint. The first of these films was viewed by the court and it was stipulated that the latter movie was of a similar nature.

At a continued hearing, held on August 16th, testimony was offered by the District Attorney that the films then on view at the theatre*fn2 were substantially similar to that which the court had viewed, i.e., in each case the films depicted actual acts of sexual intercourse and other forms of sexual relations.

Besides the movies themselves, the only other evidence produced by the movant was testimony by law student summer employees of the District Attorney's office to the effect that the instant films were the same kind of movies that they, as students, had seen at stag parties in the Pittsburgh area. Appellants declined to offer testimony and rested.

The court then preliminarily enjoined appellants from showing the four films as to which evidence had been offered.*fn3 The District Attorney asked that a date

[ 447 Pa. Page 285]

    be set immediately to determine whether the injunction should be made permanent. Indicating they intended to file an appeal, appellants requested that the date be set for some time in October, 1971, which was done.*fn4 They also requested that the appeal act as a supersedeas, but the trial judge declined to do so. An appeal was then timely filed in this Court.

Appellants' primary contention is, of course, that the procedure by which the preliminary injunction was obtained was, in light of the First and Fourteenth Amendments, cogenitally defective since there was no guarantee of speedy resolution on the merits of the question of ...


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