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EASTERN BOOKS, F&N ENTERPRISES v. BAGNONI

March 3, 1978

EASTERN BOOKS, F&N Enterprises, Inc. tdba the Adult Book Store, Kenneth R. Buranich tdba Cine 70, Donald N. Fetzner, Louis P. Locanto, Robert W. Zeny and Glen W. Zeny
v.
Mario S. BAGNONI, Individually and in his official capacity as a City Council Member, et al.



The opinion of the court was delivered by: KNOX

 Plaintiffs bring this action against various members of the City Council of the City of Erie, Pennsylvania, a City of the Third Class, complaining of the passage of a certain ordinance No. 59-1977, passed by the City Council on August 24, 1977, approved by the Mayor August 26, 1977, and effective 20 days thereafter on September 14, 1977.

 Plaintiffs seek to have the court enter a declaratory judgment declaring that the ordinance is unconstitutional and cannot be enforced against the plaintiff and to issue a temporary restraining order and preliminary and permanent injunctions against the enforcement of the ordinance against the plaintiffs. The American Civil Liberties Union was granted leave to file brief as amicus curiae.

 The suit is brought under the Civil Rights Act, 42 U.S.C. § 1983 *fn1" and 42 U.S.C. § 1985(3) *fn2" and also under various amendments to the U.S. Constitution.

 At the time the suit was filed, the matter was taken before Chief Judge Weber of this court who by order dated September 14, 1977, denied plaintiffs' motion for temporary restraining order but directed the filing and service of the complaint. Chief Judge Weber refused the temporary restraining order because the Ordinance by its very terms did not create a penal offense which authorized summary police action and only provided for civil abatement of a public nuisance after notice, hearing, a finding of fact by the City Council and order to cease and desist and then procedure by civil enforcement in an equitable action in the Court of Common Pleas. The suit then proceeded and a motion to dismiss was filed by the defendants claiming the complaint is prolix, that the complaint fails to state a claim upon which relief can be granted and the court had no jurisdiction of the matter under paragraph 35 which was styled "pendent jurisdiction claim". After the motion was filed, briefs were received from the parties and the amicus curiae and argument was held. Thereafter the court called for additional briefs relative to the impact upon the Ordinance of the passage of Act No. 68 of 1977 by the Pennsylvania Legislature which became effective January 4, 1978, while determination of the motion to dismiss was held under advisement by the court. Additional briefs on this question have been received and the court determines that insofar as the Civil Rights Act and the Federal Constitution are concerned, the Ordinance in question is Constitutional. The court therefore finds it unnecessary to consider the question of the Constitutionality of Act 68 or its impact upon the City of Erie Ordinance in question. The question which will have to be solved by the Pennsylvania Courts is whether Act 68 preempts the field covered by the City of Erie Ordinance 59-1977. The court finds it is appropriate under the circumstances to abstain on this matter which is purely a question of supremacy of Pennsylvania law to be determined by the Pennsylvania Courts. If it is determined that the field has been preempted by Act 68, then it is for the Pennsylvania Courts to determine whether and to what extent the Ordinance is now invalid or whether it is merely supplemental to the Pennsylvania Act. See Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616 (1951) for the tests to be applied in determining these questions.

 It is noted that at the present time there are no state proceedings pending in state courts relative to the validity or enforcement of this Ordinance and therefore there is no need for this court to abstain with reference to matters of Federal Constitutional Law under the holding of the U.S. Supreme Court in Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977).

 We find that a case and controversy in view of the past harassment and apparent attempts to terminate plaintiffs' businesses is pending under Article III of the Federal Constitution although at the present time nothing has been threatened and no other prosecution or other action has yet been taken. We hold that in view of the history of the past harassment by the City of Erie and its officials the seeds of a ripening controversy are pending and that this would be a proper case for declaratory and injunctive relief if a cause of action is otherwise made out. Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974).

 With respect to the matter of pendent jurisdiction, this claim was withdrawn at the time of argument and in any event since the court holds that as far as the Federal Constitution is concerned this Ordinance is Constitutional and there is at present no federal cause of action we would not in the exercise of our discretion proceed to consider the pendent cause of action under Pennsylvania State Law.

 The Ordinance in question, copy of which is attached to the complaint as Exhibit E-1, is entitled:

 Then follows a statement of the purpose of the ordinance and findings made by the City Council in Section 1.

 
"The Council of the City of Erie find that the crass commercial exploitation of explicit sexual conduct through the public exhibition of lewd films, and the display and/or sale of lewd publications, and the use of so-called massage parlors and model studios for purposes of lewdness, assignation, or prostitution, constitutes a debasement and distortion of a sensitive key relationship of human existence, central to family life, community welfare and the development of human personality, is indecent and offensive to the senses and to public morals and interferes with the comfortable enjoyment, of life and property, in that such interferes with the interest of the public in the quality of life and total community environment, the tone of commerce in the City of Erie, property values, and the public safety; and that the continued operation of such activities is detrimental to the best health, safety, convenience, good morals and general welfare of the City of Erie, and of the residents, citizens, inhabitants and businesses thereof. The City Council hereby declares such activities to be a public nuisance, and herein establishes procedures for the abatement thereof. This ordinance shall apply to existing establishments which are presently engaged in the type of activity herein declared to be a public nuisance."

 In Section 2 we find a series of definitions defining such things as the word "lewd", "massage parlor", "model studio", "nude", and so forth which definitions in and of themselves are as obscene as anything which could be found in a book or a magazine prescribed by the Ordinance.

 Section 3 declares that places where lewd films are exhibited are public nuisances and in Section 4, places of business where lewd publications constitute a principal part of the stock and trade are likewise proscribed as nuisances and Section 5 also declares as public nuisances massage parlors or model studios used for purposes of lewdness, assignations or prostitution. Section 6 provides that upon a finding by City Council that a public nuisance exists with respect to one of these establishments, the Council shall set forth the evidentiary facts considered in arriving at such definition and ordering the public nuisance to be abated within 24 hours and ordering the City Solicitor to proceed under Section 9 of the Ordinance to abate the public nuisance through judicial proceedings "including requesting the court to advance such proceedings on the calendar of the court". Subsection (f) and (g) provide for notices to the persons involved. Section 8 provides for forfeitures "upon judgment for the City of Erie in legal proceedings brought pursuant to this Ordinance" of various items of property and monies received by the defendant or defendants and providing for the expenses to be a lien upon the property in a "separate legal proceeding". Section 9 provides for action to be taken by the City Solicitor after a finding by resolution of the City Council that a public nuisance exists. The City Solicitor is directed to commence legal proceedings seeking declaratory judgment that the matters are public nuisances and accounting for monies received after notice previously given by the City Council and ...


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