Stephen Cohen, Sunbury, for appellant.
Samuel C. Ranck, Milton, James J. Rosini, Shamoken, for appellees.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J. joins in this opinion. Roberts, J., filed a concurring opinion in which Pomeroy, Nix and Manderino, JJ., join.
On February 13, 1975, the District Attorney of Northumberland County brought this action in equity seeking, on the basis of both the Pennsylvania obscenity statute*fn1 and the common law of nuisance, to enjoin appellant, Bonal Enterprises, Inc., and its employees "from selling, exhibiting, distributing, or offering to sell, exhibit, or distribute" certain named publications and "any other similar magazines or other works." The complaint stated that no notice of the action had been given to appellant, but it alleged that "immediate and irreparable loss and damage to the citizens of Northumberland County" would result if appellant were allowed to continue its operations. The chancellor promptly held an unrecorded ex parte hearing on the complaint, after which he decreed that "defendant . . . is preliminarily enjoined from selling, reselling, lending, distributing, exhibiting, giving away or showing any obscene literature, book, magazine, pamphlet, newspaper, storypaper, paper, comic book, writing, drawing, photograph, figure or image, or any obscene article, instrument or device at the premises known as 'Continental Adult Book Store' . . . ."
Appellant was notified that, pursuant to Pa.R.C.P. 1531, a hearing had been scheduled for February 18 to determine whether the preliminary injunction should be continued.
At the conclusion of the second hearing, at which appellant's counsel was present and the testimony recorded,
the chancellor continued the preliminary injunction. On March 13-14 a trial was held with a jury, pursuant to the request of appellant, to which were submitted specific questions about thirteen publications which had been named in the complaint as allegedly sold by appellant and admitted into evidence; additional testimony was taken outside the presence of the jury about the alleged danger to the community presented by appellant's adult bookstore. On March 19, 1975, the chancellor found the submitted publications obscene, and in his final decree not only enjoined their exhibition, sale, and distribution, but permanently enjoined appellant from operating the bookstore. This direct appeal followed.*fn2
The sort of ex parte procedure in which the preliminary injunction was granted in this case has been repeatedly condemned and held to be invalid by this Court. Pa.R.C.P. 1531(a) provides that "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 the instant case there was nothing in either the complaint or the record of the subsequent formal hearing to indicate either the requisite "immediate and irreparable injury" or the impossibility of giving notice. The obscenity complaint was based on publications alleged to have been purchased on January 8, yet the complaint, alleging that "continued selling, distribution and exhibition . . . will cause immediate and irreparable loss and damage to the citizens of Northumberland County" and thereby seeking to justify the lack of notice, was itself not brought until February 13, more than a month later. In addition, the complaint spoke in general terms of the "violence frequently associated with
said type of business," but it made no specific allegation of violence, either actual or imminent, in connection with this particular bookstore that might justify an immediate injunction without prior notice to appellant. The evidence offered at the subsequent preliminary hearing merely indicated that a person linked with the ownership of this bookstore had been the victim of violence and attempted violence in connection with bookstores in other parts of the Commonwealth, and that this bookstore had once been burglarized and the alleged burglars apprehended.
The blatant and shocking disregard of the notice requirement of Rule 1531 shown in this case by both the district attorney and the court cannot be condoned. This is particularly so where First Amendment freedoms are involved, and it is clear beyond question that, although obscenity itself has been held not to be protected by the Constitution, the narrow line between obscenity and protected speech needs to be discerned by sensitive judicial tools, and careful procedural safeguards must be maintained to guard against chilling restraints on protected speech. The ex parte procedures utilized in this case were plainly inadequate for this purpose. See Commonwealth ex rel. Costa v. Boley, 441 Pa. 495, 272 A.2d 905 (1971); Commonwealth v. Guild Theatre, Inc., 432 Pa. 378, 248 A.2d 45 (1968); see also Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). Furthermore, the preliminary injunction, decreed after the ex parte hearing and continued after the formal hearing, prohibited not only the sale, exhibition, and ...