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COMMONWEALTH PENNSYLVANIA v. RICHARD GOMES AND DAVID J. GRAVER (10/17/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: October 17, 1980.

COMMONWEALTH OF PENNSYLVANIA, BY RICHARD B. RUSSELL, DISTRICT ATTORNEY OF SCHUYLKILL COUNTY
v.
RICHARD GOMES AND DAVID J. GRAVER, APPELLANTS

No. 980 Oct. Term, 1979, APPEAL FROM THE ORDER ENTERED FEBRUARY 2, 1978, OF THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, PENNSYLVANIA, CIVIL ACTION, AT NO. S-312 MARCH TERM, 1978, IN EQUITY.

COUNSEL

William G. Sherr, Allentown, for appellants.

Thomas J. Nickels, Assistant District Attorney, Pottsville, for Commonwealth, appellee.

Hester, Montgomery and Cirillo, JJ.*fn* Hester, J., files a dissenting statement.

[ 281 Pa. Super. Page 302]

The District Attorney of Schuylkill County filed a complaint in equity pursuant to the Act of December 6, 1972, as amended, 18 P.S. 5903(g), seeking an injunction against the sale or display or distribution of obscene materials. After trial by jury, the Court below issued an injunction enjoining the appellants from selling, uttering, lending, distributing or showing certain enumerated magazines and publications, and any and all other publications, movies or materials of a similar obscene nature, as defined by statute. The appellants have appealed the injunction to this Court.

This case is clearly governed by the case of Ranck v. Bonal Enterprises, Inc., 467 Pa. 569, 359 A.2d 748 (1976). In that case, the lower Court had issued an injunction prohibiting the sale of various publications named in the complaint, and also a wide variety of unnamed obscene materials. The Supreme Court held that such a prohibition was overly broad and was void on its face. It follows, therefore, that the present injunction in this case cannot stand.

Decree reversed.

HESTER, Judge, dissenting:


*fn* Judge VINCENT A. CIRILLO, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.


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