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COMMONWEALTH PENNSYLVANIA EX REL. AMOS DAVIS v. JOHN VAN EMBERG AND BETHEL GIFT AND NOVELTY SHOP (11/26/75)

decided: November 26, 1975.

COMMONWEALTH OF PENNSYLVANIA EX REL. AMOS DAVIS
v.
JOHN VAN EMBERG AND BETHEL GIFT AND NOVELTY SHOP, APPELLANTS



COUNSEL

James H. English, William E. Seekford, Towson, for appellants.

Amos Davis, Hollidaysburg, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 464 Pa. Page 619]

OPINION OF THE COURT

This is an appeal from a decree in equity by the Court of Common Pleas of Blair County enjoining the operation of the Bethel Gift and Novelty Shop and prohibiting "any business activity at the premises." Appellant John Van Emberg, the proprietor of the store, argues that the injunction was improperly issued and continued. We agree and vacate the decree.*fn1

The Bethel Gift and Novelty Shop began its retail business in April 1975 on Sixth Avenue in Altoona. The shop, a renovated service station, is characterized by appellee as an "adult book store." The Commonwealth instituted criminal proceedings against appellant and one of his employees apparently based on complaints received from citizens offended by the merchandise sold.*fn2 The

[ 464 Pa. Page 620]

    shop remained open for business after the criminal proceedings were begun.

On May 6, 1975, the district attorney sought and was granted an ex parte injunction,*fn3 "forthwith restraining and prohibiting the defendants, John Van Emberg and Bethel Gift and Novelty Shop, from conducting, maintaining, or operating any business activity at the premises known and numbered at 5801 Sixth Avenue, Altoona, Pennsylvania . . . ." No notice or rule to show cause was served on defendants. The testimony of the district attorney at a later hearing after the injunction was granted indicates that he personally delivered a complaint and affidavits to the chancellor who forthwith granted the preliminary injunction, ex parte, in chambers. No record of that proceeding was made.

A hearing, originally scheduled for May 10, 1975, was held on May 22 and May 28, 1975. At the conclusion of the hearing, the court entered an order directing "that the Preliminary Injunction heretofore issued shall continue in full force and effect. . . ." The defendants were enjoined from distributing in any manner "the books, papers, magazines and all other materials and exhibits referred to in the testimony taken in this matter." The record indicates that neither defendants nor their counsel were present during the inspection of the alleged obscene materials by the court.

Pa.R.Civ.P. 1531 provides in relevant part:

"(a) A court shall issue a preliminary or special injunction only after written notice and hearing unless it appears to the satisfaction of the court that immediate and irreparable injury will be sustained before notice can be given or a hearing held, in which case the court may issue a preliminary or ...


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