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decided: December 1, 1981.


Appeals from the Order of the Court of Common Pleas of Philadelphia County in the cases of Commonwealth of Pennsylvania v. Allison Rich, Citation No. 77-06-57243; Darryl Edwards (a/k/a David Gemza) Citation No. 77-06-062364; Fred Vennell, Citation No. 77-06-054700; Linda Jackson and Ronald Kifer, Citation No. 77-06-57898 and Betty Jane Allsup, Citation No. 77-09-048506, and in cases of Paul Harris, Citation No. 78-06-11876; Robert Lee Bradfield, Citation No. 78-06-11878; Julia Rieman, Citation No. 78-09-09306; Robert Goldsmith, Citation No. 78-15-13536 and Joseph Steiner, Citation No. 78-24-07007, dated July 25, 1978.


Maxine J. Stotland, Assistant District Attorney, with her Steven H. Goldblatt, Deputy District Attorney, and Edward G. Rendell, District Attorney, for appellant, Commonwealth of Pennsylvania.

Michael A. Seidman, for appellee, Allison Rich.

Joseph N. Bongiovanni, III, for appellee, Darryl Edwards a/k/a David Gemza.

Norman A. Oshtry, with him Judith S. Eden, for appellees, Betty Jane Allsup, Linda Jackson, Fred Vennell, Robert Lee Bradford, and Julia Rieman.

Alan J. Davis, City Solicitor, with him Judith N. Dean, Deputy City Solicitor, for appellant, City of Philadelphia.

Joan Botto Williamson, for appellee, Paul Harris.

Michael A. Seidman, for appellees, Robert Goldsmith and Joseph Steiner.

President Judge Crumlish, Jr. and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Palladino. Opinion by President Judge Crumlish, Jr. Judges Mencer and MacPhail dissent. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Crumlish

[ 63 Pa. Commw. Page 32]

The Commonwealth of Pennsylvania and the City of Philadelphia appeal a Philadelphia Court of Common Pleas decision*fn1 which struck down as unconstitutional and preempted Philadelphia's Obscenity Ordinance (Ordinance)*fn2 and discharged appellees. We reverse and remand for proceedings consistent with this opinion.

[ 63 Pa. Commw. Page 33]


The State Obscenity Act*fn3 (Act) is silent on the issue of preemption, leading us to ascertain the intent of the legislature. If the general tenor of the Act reflects an intent to prohibit local ordinances, we are bound to follow that intention. United Tavern Owners of Philadelphia v. Philadelphia School District, 441 Pa. 274, 272 A.2d 868 (1971). Our review of the statute reveals neither an express nor implied legislative intention to prevent municipalities from enacting supplemental pornography legislation.*fn4 Thus, United Taverns requires us to compare these two enactments for inconsistencies or contradictions. We disagree with the court below when it held that the City's Ordinance is preempted because it "conflict[s] materially" with the Commonwealth's legislation.

Initially, the trial court held that the Ordinance's definition of community standards reading:

'the standards of the community from which the jury is drawn or would be drawn if it were the trier of fact' ch. 10 § 1102(3),

     is inapposite to the Act which defines community as "the state," 18 Pa. C.S. § 5903(b). This conclusion is erroneous. The Act is necessarily broader in conception. In practical effect, they are identical. The United States Supreme Court in Hamling v. United States, 418 U.S. 87 (1974), wrote:

[A]s a matter of constitutional law and federal statutory construction . . . a juror sitting in obscenity

[ 63 Pa. Commw. Page 34]

    cases [is] to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion, 'the average person, applying contemporary community standards' would reach in a given case. (Emphasis added.)

Id. at 105.

In application, the State's and City's standards produce identical results. Since the juries in the Commonwealth are not drawn from statewide populations but are a local fact finder, they must necessarily draw on knowledge of a local vicinage.

Secondly, the lower court concluded that the penalty provisions*fn5 of the Ordinance are at odds with the Act. In Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616 (1951), our Supreme Court held that a municipality may promulgate regulations that are "in aid and furtherance of the purposes of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable." Id. at 381, 77 A.2d at 620. In light of the legislative finding and purpose of the Ordinance, i.e., to prevent "[t]he continued operation of . . . activities [which are] detrimental to the health, safety, convenience, good morals and general welfare of the City of Philadelphia . . . ,"*fn6 the penalty provisions are not unreasonable, nor do they appear to usurp or contradict any state provision.*fn7

[ 63 Pa. Commw. Page 35]

Next, the lower court found that the Ordinance materially conflicts with the Act's jury trial provisions since the City's regulation prosecutes defendants in the Philadelphia Municipal Court without a jury.*fn8 We cannot agree. Philadelphia's two-tier court system, which all parties acknowledge is constitutional, provides all defendants with an opportunity for a jury trial de novo in the Philadelphia Court of Common Pleas.*fn9 Defendants cited under this Ordinance suffer no constitutional deprivation since they have an absolute right to a jury trial at the second tier.

We conclude*fn10 that the Philadelphia Ordinance has not been preempted by State law.*fn11

Constitutionality of the Ordinance

Initially, Appellants argue that the lower court erred in concluding that the Ordinance is unconstitutional

[ 63 Pa. Commw. Page 36]

    for failure to define the term "prurient interest."

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court established broad constitutional parameters for pornography legislation. Our review of the Ordinance reveals no constitutional deviation from the Miller precepts. Section 1102 of the Ordinance, Ch. 10, § 1102, provides the factfinder with clear guidelines for determining what is obscene*fn12 and explicitly defines "patently offensive."*fn13 We can find no constitutional

[ 63 Pa. Commw. Page 37]

    requirement that "prurient interest," a term of art commonly utilized in the obscenity context be more specifically defined.*fn14

Our resolution of this controversy demands we address whether the Ordinance is unconstitutional for failing to provide defendants with a jury trial in Municipal Court. Appellees contend that a single Municipal Court judge cannot constitutionally apply an obscenity standard.*fn15 We disagree.

The procedures for judging obscenity must reflect "'the necessary sensitivity to freedom of expression.'" McKinney v. Alabama, 424 U.S. 669, 674 (1976), quoting Freedman v. Maryland, 380 U.S. 51, 58 (1965). As the Supreme Court implied in Miller,

[ 63 Pa. Commw. Page 38]

    this freedom is adequately protected when a Judge is the fact finder:

The adversary system, with lay jurors as the usual ultimate fact finders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. (Emphasis added.)

Id. at 30.

More specifically, the Supreme Court has held that there is no constitutional right to a jury trial in state civil proceedings for an adjudication of what is obscene material. Alexander v. Virginia, 413 U.S. 836 (1973). We are convinced that a defendant's right to trial by jury is not compromised by a two-tier prosecutorial system. A defendant who questions the Judge's application of the obscenity standard at the first tier has the absolute right to a de novo jury trial in Common Pleas Court.*fn16 Considering these circumstances, we find no constitutional deprivation.*fn17

We conclude that the Philadelphia Obscenity Ordinance is constitutional and is not preempted by state law.*fn18

Reversed and remanded.

[ 63 Pa. Commw. Page 39]


The decision of the Philadelphia County Court of Common Pleas dated July 28, 1978, per Mirarchi, A.J., is reversed and these cases are remanded for proceedings consistent with this Opinion.

Judges Mencer and MacPhail dissent.

Judge Wilkinson, Jr. did not participate in the decision in this case.


Reversed and remanded.

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