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LEROY S. ZIMMERMAN v. PHILJON (01/28/77)

decided: January 28, 1977.

LEROY S. ZIMMERMAN, DISTRICT ATTORNEY OF DAUPHIN COUNTY, APPELLEE.
v.
PHILJON, INC., ET AL., APPELLANTS IN NOS. 46 AND 55 (TWO CASES). LEROY S. ZIMMERMAN, DISTRICT ATTORNEY OF DAUPHIN COUNTY, APPELLEE, V. JOHN KRASNER ET AL., APPELLANTS IN NOS. 47 AND 56 (TWO CASES). LEROY S. ZIMMERMAN, DISTRICT ATTORNEY OF DAUPHIN COUNTY, APPELLEE, V. DAMISS, INC., ET AL., APPELLANTS



COUNSEL

Jeffrey A. Ernico, Harrisburg, for appellants.

LeRoy S. Zimmerman, Dist. Atty., Richard L. Guida, Dep. Dist. Atty., Harrisburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Jones, C. J., filed a dissenting opinion.

Author: Per Curiam

[ 470 Pa. Page 411]

OPINION BY THE COURT

On April 24, 1974, Dauphin County District Attorney LeRoy S. Zimmerman, appellee herein, brought an action in equity against appellants Philjon, Inc., John Krasner and Damiss, Inc., seeking to enjoin them from "promoting, advertising, exhibiting to the public, selling, or in any way doing business" in certain books, magazines, films and "apparatus for artificial sexual stimulation" alleged to be obscene. Without providing appellants with notice or an opportunity to be heard, the Chancellor granted the requested preliminary injunction and directed that appellants be notified, pursuant to Pa.R.C.P. 1531, that a hearing would be held on April 29, 1974, to determine whether the injunction should be continued.

On April 29, 1974, a hearing was held as scheduled, testimony taken, and the injunction was continued pending a hearing on appellee's request for a permanent injunction. That hearing was held on August 5, 1974, and on August 12, 1974, the Chancellor entered a decree wherein he found the submitted publications and apparatus obscene. The decree not only prohibited appellants

[ 470 Pa. Page 412]

    from exhibiting or selling the materials found to be obscene, but permanently enjoined appellants from operating the businesses, ordering them to remove "all exterior advertising and indicia of business operations" from the premises. Appellants took exceptions to the decree, which were denied, and the decree was made final.*fn1 This direct appeal followed.*fn2 For the reasons discussed below, we reverse.

The Chancellor determined that there were two legal bases upon which the injunction could be grounded; 1) the civil remedy provision in section 5903(h) of the Pennsylvania Obscenity Statute, 18 Pa.C.S. ยง 5903(h) (1974), and 2) the common law of nuisance.

As to the first ground, section 5903(h) of the Pennsylvania Obscenity Statute authorizes the district attorney in any county in which any person "sells, lends, distributes, exhibits, gives away or shows" any obscene materials to institute proceedings in equity in the appropriate

[ 470 Pa. Page 413]

    court of common pleas to obtain an injunction prohibiting the sale, distribution, etc. of such obscene material. However, in Commonwealth v. MacDonald, 464 Pa. 435, 347 A.2d 290 (1975), this Court held that the definition of obscenity set forth in section 5903(b) of the statute was unconstitutionally vague and contrary to the definitional requirements of obscenity established by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Since section 5903(h) only permits the enjoining of transactions in materials determined to be obscene under the standards set forth in section 5903(b) of the statute, we thus held that no injunction could issue under section 5903(h) in the absence of a constitutionally valid definition of obscenity. We also recognized in MacDonald that a court of common pleas had no power independent of statute to enjoin the exhibition and sale of allegedly obscene materials. See Grove Press, Inc. v. City of Philadelphia, 418 ...


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