No. 81 March Term, 1977, Appeal from the Decree dated November 26, 1976 of the Court of Common Pleas of Westmoreland County, Pennsylvania, Civil Division-Equity-at No. 648 of 1975
Allen N. Brunwasser, Pittsburgh, for appellants.
Albert Gaudio, Asst. Dist. Atty., Greensburg, for appellee.
O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Eagen, C. J., and Pomeroy, J., did not participate in the consideration or decision of this case. Larsen, J., filed a dissenting opinion.
On February 25, 1975, the District Attorney's Office of Westmoreland County filed a complaint in equity seeking to enjoin appellants from operating a business known as "Laurel" or "Burgandy U." The complaint alleged that Burgandy U. was a public nuisance because illegal sexual activities were performed there under the guise of operating as a massage parlor. Burgandy U., the complaint alleged, was a nuisance detrimental to the health, safety, welfare and morals of the community.
After a hearing, the Court of Common Pleas of Westmoreland County found that the performance of massage was a mere subterfuge at Burgandy U.; that female "inmates" employed there by appellants engaged in sexual intercourse with patrons; that these inmates performed other acts upon patrons intended to induce sexual pleasure and/or sexual climax; and that the operation of Burgandy U., owned by appellant Vincent Charlett and managed by appellant Linda Hoffman, was a hazard to the health, decency and morals of
the citizens of Westmoreland County. The court's conclusions of law were that Burgandy U., was (1) a public nuisance and (2) in violation of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 5902 (1973). The court entered the following order:
"AND NOW, this 13th day of May, 1975, after hearing, arguments and careful review of briefs and cases submitted for consideration, all of the above-captioned defendants, their agents, servants, employees or representatives are hereby preliminarily enjoined and prohibited from continuing or conducting any business in Westmoreland County, Pennsylvania wherein customers or patrons, for hire, are shown or exhibited genitals or other portions of an inmate's or employee's body with the intent or objective to induce or stimulate sexual excitement, sexual enjoyment or sexual climax; and the aforesaid are further preliminarily enjoined and prohibited from offering for hire or from performing for hire any body contact directly or indirectly upon a patron or customer where such body contact is designed or intended to induce or stimulate sexual excitement, sexual enjoyment or sexual climax.
On June 9, 1975, the Westmoreland County District Attorney filed a petition for contempt citation, alleging that appellants had violated the above order. A rule to show cause why a contempt citation should not issue was granted, and hearings on the rule were held. During the hearings, defense counsel requested that the court inform appellants whether the proceeding was one for criminal contempt or civil contempt. The court refused to classify the proceeding, and at the conclusion of the hearings, found that appellants had knowingly violated its May 13th order by continuing to provide sexual services to customers of Burgandy U. in exchange for monetary fees, and that such willful violation of the order rendered appellants in contempt of court. On November 26, 1976, the trial court entered a contempt decree imposing two fines against appellants. According to the trial court, the first fine of $153,000.00 "represents the established minimum amount of profits made by [appellants]
as a result of their contemptuous conduct." The second fine of $150,000.00, labeled a "punitive fine" by the court, was to be returned after appellants had assured the court that they had purged themselves of their contemptuous conduct by ceasing the enjoined activities at Burgandy U. This direct appeal from the adjudication of contempt followed. See The Appellate Court Jurisdiction Act of 1970, 17 P.S. § 211.202(5) (Supp.1978-79).
Appellants attack the contempt citation and fines imposed incident to that citation on several grounds, only one of which we need address here. Appellants renew their argument, raised below, that the contempt proceeding was one of criminal contempt, thus under Pennsylvania law appellants were entitled to a jury trial. We agree, and therefore vacate the contempt citation and fines imposed against appellants.
There is no question that if the proceeding below was one of criminal contempt, appellants were entitled to a trial by jury. That right is guaranteed not only by the Sixth Amendment to the United States Constitution, but also by Pennsylvania statutory law, which accords a defendant that right, plus other procedural protections, when charged with indirect (occurring outside the presence of the court) criminal contempt. That law provides in pertinent part:
"In all cases where a person shall be charged with indirect criminal contempt for violation of a restraining order or injunction issued by a court or judge or judges thereof, the accused shall enjoy --
(a) The rights as to admission to bail that are accorded to persons accused of crime;
(b) The right to be notified of the accusation and a reasonable time to make a defense, provided the alleged contempt is not committed in the immediate view or presence of the court;
(c) Upon demand, the right to a speedy and public trial by an impartial jury of the judicial district wherein the ...