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DAVID J. BRIGHTBILL v. RIGO (01/11/80)

filed: January 11, 1980.

DAVID J. BRIGHTBILL
v.
RIGO, INC., REBECCA W. BOLLERMAN, STAN STEPNOWSKI AND RICHARD GOMES, APPELLANTS



No. 2827 October Term, 1978, Appeal from Order of the Court of Common Pleas, Lebanon County, Civil Action, at No. 2, 1978.

COUNSEL

Howard N. Stark, Allentown, for appellants.

David J. Brightbill, pro se.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Sugerman

[ 274 Pa. Super. Page 318]

The instant appeal is before us as the result of an injunction entered by the Court of Common Pleas of Lebanon County against the sale, distribution or exhibition of assertedly obscene magazines and motion picture films.

On January 6, 1978, the District Attorney of Lebanon County filed a complaint in equity against Appellant, Rigo, Inc., a corporation operating an "Adult Book Store" in Lebanon County, and against Appellants, Rebecca W. Bollerman,

[ 274 Pa. Super. Page 319]

    allegedly an officer of Rigo, Inc., Richard Gomes, manager of the store, and Stan Stepnowski, assistant manager of the store.

The complaint in equity, filed pursuant to and one day following the effective date of Pennsylvania's so-called Obscenity Statute, Act of 1977, Nov. 5, P.L. 221, No. 68 § 1, enacted as an amendment to the Crimes Code of Pennsylvania, Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 5903, ("Crimes Code") asserted that Appellants sold in the past and continued to sell and exhibit certain obscene books, magazines and motion picture films in violation of the Crimes Code. The complaint set forth, as examples of the materials offered for sale, the specific titles of 15 magazines and books, and one motion picture film. In his prayer for relief, the District Attorney asked, inter alia, that the Defendants be enjoined from selling, uttering or exhibiting obscene materials, and from writing, printing, publishing or uttering any advertisement or notice stating where, how or from whom obscene materials can be purchased.

Section 5903(g) of the Crimes Code permits the District Attorney to institute an action in equity in a Court of Common Pleas to enjoin a violation of the Code. The court may issue an injunction only after written notice to a defendant, and hearing. The burden of proving a violation of the Crimes Code is upon the District Attorney, by proof beyond a reasonable doubt, and a defendant is entitled to a trial by jury upon the issue of obscenity. Finally, an injunction may issue only against a defendant named in the action.

Availing themselves of the right to trial by jury, Appellants demanded and on January 12, 1978, received such trial on the question of whether the named materials were obscene under the Crimes Code. At trial, the Commonwealth produced and caused to be admitted into evidence a number of exhibits, including 15 specifically titled magazines and five motion picture films. The jury ultimately by special findings, determined that each of the named magazines and films were obscene within the meaning of the Crimes Code.

Following the trial, on January 13, 1978, the lower court filed a Decree enjoining the Corporate Appellant and "its

[ 274 Pa. Super. Page 320]

    agents, servants and employees," and the individual Appellants, and their "agents, servants and employees" or any person acting on behalf of the individual Appellants, from selling, uttering or exhibiting any of the named magazines or films found to be obscene by the jury.*fn1 In addition, Appellants were enjoined from selling, uttering or exhibiting ". . . any other book or magazine of the like kind or similar kind." The court in its Decree then added this sentence:

". . . The foregoing injunction shall also apply to movies and pictures of like kind or of a similar kind."

Finally, the lower court enjoined the Appellants from writing, printing, publishing or uttering any advertisement or notice announcing where, how or from whom any of the named magazines or films, ". . . or a like or similar kind . . ." can be purchased or obtained.

Following the entry of the injunction, Appellants filed a timely appeal in this court. In their appeal, Appellants do

[ 274 Pa. Super. Page 321]

    not contest the jury's finding the specific magazines and films in evidence to be obscene, and they do not here challenge the statute underlying the proceedings. Appellants do, however, contend that the language of the injunction purporting to enjoin the sale, display or advertising of unnamed publications and films of "like kind or similar kind" is both constitutionally offensive as a prior restraint and in violation of the principle that the prohibitory language of an injunction, to be valid and enforceable, must be definite and certain and fairly apprise the enjoined party of the nature of the prohibited acts or conduct.

As a second contention, Appellants assert that the attempt by the court to enjoin the corporate and individual Appellants' "agents, servants and employees" and "any person acting on behalf" of the individual Appellants, from engaging in the prohibited conduct is void and unenforceable as in violation of the clear language of the Crimes Code, permitting as it does, an injunction only against persons ...


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