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COMMONWEALTH PENNSYLVANIA v. JOHN ARTHUR VAN EMBURG (05/12/76)

SUPREME COURT OF PENNSYLVANIA


decided: May 12, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN ARTHUR VAN EMBURG, AN INDIVIDUAL, ET AL., APPELLANTS

COUNSEL

Majorie H. Matson, Pittsburgh, for appellants.

Albert C. Gaudio, James J. Conte, Asst. Dist. Attys., Greensburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., dissents.

Author: Roberts

[ 467 Pa. Page 446]

OPINION OF THE COURT

Appellants appeal*fn1 from a decree of the Court of Common Pleas of Westmoreland County granting a preliminary injunction which enjoined appellants from "selling, lending, distributing, exhibiting, giving away, or showing . . . any literature, books, magazines, pamphlets, newspapers, story papers, papers, comic books, drawings, photographs [or films] that are patently offensive representations or descriptions of ultimate sexual acts . . ." The court claimed to exercise its injunctive power under authority of both common law and section 5903(h) of the Crimes Code.*fn2

In Commonwealth v. MacDonald, 464 Pa. 435, 347 A.2d 290 (1975), decided October 30, 1975, we affirmed the holding of a court of common pleas that section 5903(h) was unconstitutionally vague and that the court had no power independent of the statute to enjoin the exhibition of allegedly obscene files. We reaffirmed that holding in Commonwealth v. Krasner, Pa. , A.2d (1976) [Pa. 4542 filed March 31, 1976].

[ 467 Pa. Page 447]

MacDonald and Krasner control this case and require reversal of the decree issued by the court of common pleas.

Decree reversed. Each party pay own costs.


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