The opinion of the court was delivered by: NEALON
Plaintiff, Classic Distributors, Inc., the owner of an adult bookstore in Harrisburg, Dauphin County, Pennsylvania, filed this action challenging the constitutionality, under the First and Fourteenth Amendments, of a portion of Pennsylvania's obscenity statute, 18 C.P.S.A. § 5903 (h).
Specifically, plaintiff seeks to (1) restrain and enjoin the defendants, a Dauphin County Common Pleas Court Judge, the Dauphin County District Attorney and a Dauphin County Deputy District Attorney, from closing plaintiff's place of business; (2) obtain a declaration that the Pennsylvania obscenity statute is unconstitutional on its face and as applied to the plaintiff; and (3) recover damages of $50,000. The defendants have moved to dismiss on the grounds that (1) they were immune from suit; (2) this court should not interfere with pending state proceedings; and (3) this court should abstain inasmuch as the applicable state statute has not been authoritatively construed by the Pennsylvania courts.
The action was properly brought under the Civil Rights Act, 42 U.S.C.A. Section 1983, the Declaratory Judgment Act, 28 U.S.C.A. Sections 2201, 2202, and the First and Fourteenth Amendments. Federal jurisdiction is predicated on 28 U.S.C.A. Sections 1331 and 1343. Since plaintiff seeks injunctive relief restraining state officials from the enforcement, operation and execution of a state statute on the ground of its unconstitutionality, a three-judge court was convened pursuant to 28 U.S.C.A. Section 2281. And in accordance with Rule 65 (a)(2) of the Federal Rules of Civil Procedure, the trial of this action on its merits was ordered to be advanced and consolidated with the hearing for a preliminary injunction, and a final hearing was held on June 14, 1974.
The factual background of this case is complex and must be discussed in some detail before addressing the legal issues involved. That background centers around a controversy that existed among certain operators of adult bookstores in Pennsylvania, and a series of violent acts spawned by the controversy. The key figures in the dispute were Allen G. Morrow, the principal of plaintiff corporation, John Krasner, and Frank M. Beaver. Morrow operated adult bookstores in Collegeville, Montgomery County; Cresson, Cambria County; Hanover Township, Lehigh County; and the store in question here, located at 3920 Jonestown Road, Harrisburg, which is in Dauphin County. Krasner operated stores in Hanover Township, Lehigh County; Reed Township in Dauphin County; and was a partner with Beaver in a second store in Dauphin County located at 315 Market Street, Harrisburg. Beaver also operated a store in Highspire, Dauphin County.
The Commonwealth of Pennsylvania's first contact with any of these key figures was an investigation by the Dauphin County District Attorney's office of the store located at 315 Market Street in Harrisburg. That investigation led to the June, 1973 arrest of Beaver and Krasner on the charge of selling obscene materials, and also broadened, after June, 1973, into an investigation of other adult bookstores in Dauphin County. Through that investigation, the District Attorney's office learned, prior to April 20, 1974, that Krasner had another store in Reed Township, Beaver another one in Highspire, and Morrow the store at 3920 Jonestown Road in Harrisburg -- all within Dauphin County. Although the dispute among these three figures had begun prior to April 20, 1974, and had resulted in several violent actions or attempted violent actions which were known to the general public prior to that date,
the District Attorney's office had not, prior to April 20, 1974, connected the three key figures with any of these actions, nor had that office concluded prior to that date that a dispute existed among those figures.
On April 20, 1974, Dauphin County Deputy District Attorney Richard L. Guida, a defendant in this case, learned that William Alfree, an agent of the United States Treasury, Bureau of Alcohol, Tobacco and Firearms, had been engaged in an undercover investigation of Beaver; had been solicited by Beaver to help blow up Morrow's store in Collegeville; and was planning to accompany Beaver on that mission that very night, April 20, 1974. On that occasion, Guida joined the Pennsylvania State Police in a stakeout of Beaver's store in Highspire. He observed Beaver and Alfree leave that store in Beaver's car, and was with the police when they apprehended Beaver and Alfree in Dauphin County at an entrance to the Pennsylvania Turnpike. Guida was also present when the police searched Beaver's car pursuant to a search warrant and discovered 85 pounds of dynamite, six blasting caps, a two-minute timer, a six-volt battery, a length of wire, and other items that fit the plan to destroy the Collegeville store that had been described to Alfree by Beaver.
That night, after Beaver had been arrested, Guida spoke with Alfree at some length, and through Alfree learned of a chain of events that indicated to him that a state of war existed among Beaver, Krasner and Morrow. He learned that Krasner had instructed Beaver to blow up the Collegeville store; that Beaver had detonated the explosion that demolished Morrow's Cresson store on January 22, 1974; that Beaver had planned to murder two people the next night, April 21, 1974, an Ann Hogencamp and a Dennis Scott (Scott being a man whom Beaver suspected of planning to rob Krasner, who was Beaver's associate, and Hogencamp being an ex-girlfriend of Beaver and an associate of Scott); and that Beaver had offered Alfree a sum of money to help him murder one Bobby Pine, who was a Philadelphia employee of Morrow. Alfree also informed Guida that Krasner had been arrested and indicted for soliciting the murder of Morrow, a fact which Guida had known prior to April 20, 1974, having learned of it through the news media.
Guida discussed these facts with his superior, Dauphin County District Attorney Leroy S. Zimmerman, also a defendant in this case, and they both concluded that, because each of the figures involved in what was apparently a very vicious dispute owned at least one bookstore in Dauphin County, there was a threat to the welfare of the Dauphin County community. Zimmerman dispatched a detective to make purchases from each of the four stores located in Dauphin County, and, armed with the purchased materials
and their knowledge of the dispute that existed among Krasner, Beaver and Morrow, Zimmerman and Guida on April 24th appeared in the Dauphin County Court of Common Pleas before the Honorable Judge Richard B. Wickersham, also a defendant in this case, in an ex parte hearing pursuant to a complaint seeking to enjoin, under the Pennsylvania obscenity statute, the operation of the four Dauphin County stores operated by the three disputants. At that hearing, Zimmerman and Guida displayed the purchased materials to Judge Wickersham, and related what they knew of the dispute among Krasner, Beaver and Morrow. Specifically, they told the judge of the murder plots that had been disclosed to Agent Alfree, the demolishment of the Cresson store, and the arrest of Beaver in Dauphin County with a large quantity of dynamite when he was en route to blow up the Collegeville store.
In addition, they pointed out to the judge that the four stores whose operation they sought to enjoin were located in Dauphin County and were owned by the three disputants. At the conclusion of the hearing, Judge Wickersham entered a preliminary injunction without notice to the store operators, and, pursuant to Rule 1531 (d) of the Pennsylvania Rules of Civil Procedure, scheduled a hearing on the continuance of the injunction for April 29, 1974.
At the time set for that hearing, Burton W. Sandler, counsel for Classic, one of the defendants in that case, met Guida at the Dauphin County Courthouse and informed him that he had just filed a petition for removal, pursuant to 28 U.S.C. § 1443, in the U.S. District Court for the Middle District of Pennsylvania, located in Harrisburg. He also informed Guida that the removal had been effected pursuant to 28 U.S.C. § 1446 (e) and that, therefore, the state court could proceed no further with the matter. At the hearing before this court, Guida stated that he had been uncertain about the jurisdictional question posed by 28 U.S.C. § 1446 (e). "I was unaware that a federal . . . court could take jurisdiction without a court order." Notes of testimony at 72.
Guida suggested that Sandler explain the removal issue to Judge Wickersham and the parties then entered Judge Wickersham's chambers at which time Attorney Sandler handed Judge Wickersham a copy of the petition for removal and a memorandum of law explaining that once a petition for removal is filed, the state court is automatically ousted of jurisdiction and can proceed no further. After some discussion, the parties entered the courtroom at which time Attorney Sandler formally objected to the jurisdiction of the state court. Judge Wickersham ruled that "unless and until I have a restraining order from the Federal District Bench, we shall continue."
At that, Attorney Sandler absented himself from the courtroom. Upon completion of the hearing, during which, in addition to testimony from Zimmerman and three detectives from the Dauphin County District Attorney's office, there was testimony from Agent Alfree concerning both the plot to blow up the Collegeville store and the other escapades which Beaver had disclosed to Alfree, Judge Wickersham ordered that the preliminary injunction entered on April 24, 1974 be continued in effect, pending a final hearing on the matter, which he set for May 31, 1974.
On May 2, 1974, Classic filed the present action, and on May 28, 1974, testimony was taken before Judge Nealon, sitting alone as a District Judge, on Classic's application, pursuant to Rule 65, Federal Rules of Civil Procedure, for a temporary restraining order. On the same date, that is, May 28, Judge R. Dixon Herman of the Middle District of Pennsylvania granted a motion to remand the action to the Dauphin County Court of Common Pleas from which it had been removed on April 29, 1974. Judge Nealon denied Classic's application for a temporary restraining order on May 29, and on the same day, Judge Wickersham continued indefinitely the final hearing on the District Attorney's request for a permanent injunction, which had been set for May 31, 1974, thereby leaving in effect the preliminary injunction which had been granted on April 24, 1974.