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COMMONWEALTH EX REL. RICHARD A. LEWIS v. ALLOUWILL REALTY CORPORATION (06/29/84)

filed: June 29, 1984.

COMMONWEALTH EX REL. RICHARD A. LEWIS, DISTRICT ATTORNEY
v.
ALLOUWILL REALTY CORPORATION, INC., A PENNSYLVANIA CORPORATION AND GODWIN HECK, JR., AND ANITA HECK, TRADING AND DOING BUSINESS AS MAXIM'S NOVELTY SHOP, APPELLANTS. COMMONWEALTH EX REL. RICHARD A. LEWIS, DISTRICT ATTORNEY V. RADELLE INVESTMENT COMPANY AND GODWIN C. HECK, JR., TRADING AND DOING BUSINESS AS SWEDEN ADULT BOOK STORE, APPELLANT



No. 00360 HBG 82, Appeal from the Order entered October 1, 1982 in the Court of Common Pleas of Dauphin County, Civil Division, at No. 4232 C.A. Equity 198. No. 00361 HBG 82, Appeal from the Order entered October 1, 1982 in the Court of Common Pleas of Dauphin County, Civil Division, at No. 4233 C.A. Equity 198.

COUNSEL

Malcolm M. Limongelli, Wilkes-Barre, for appellants.

Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Lewis, appellee.

Wickersham, Olszewski, and Hoffman, JJ.

Author: Hoffman

[ 330 Pa. Super. Page 34]

These appeals are from an injunction order padlocking two adult bookstores as public nuisances pursuant to 68 P.S. §§ 467-73. Because we find appellants' claims meritless, we affirm the order.

On July 29, 1982, Richard A. Lewis, District Attorney for Dauphin County, filed complaints in equity against Allouwill Realty Corp., Inc., and Anita Heck, t/d/b/a Maxim's Novelty Shop, and against Radelle Investment Co. and Godwin C. Heck, Jr., t/d/b/a Sweden Adult Book Store, to abate the use of the premises at 21 North Second Street, Harrisburg, and at 5 North Second Street, Harrisburg, respectively, as common nuisances. On August 24, 1982, the first complaint was amended to add Godwin C. Heck, Jr., as a defendant. The defendants filed separate preliminary objections on August 17-19, 1982. On August 30, 1982, after denying the preliminary objections, a motion for severance and a request for a discovery continuance, the lower court allowed the Commonwealth to begin presenting its case even though the defendants had not yet filed answers, stating that it would render its decision only after

[ 330 Pa. Super. Page 35]

    answers were filed and the defendants presented their case. The defendants filed their answers on September 10, 1982, and, on October 1, 1982, the trial concluded. On the same day, after making oral findings of fact and conclusions of law, the lower court ordered the county sheriff to padlock both premises for a one-year period. The sheriff was specifically directed to padlock only the portion of the premises used for the adult bookstores and to make arrangements with the store owners to allow them to remove any and all merchandise located within the stores. On October 4, copies of the order were served upon the defendants and posted, and the two bookstores were padlocked and chained. On October 29, 1982, these appeals were filed by Godwin C. Heck, Jr., and Anita Heck, t/d/b/a Maxim's Novelty Shop, and by Godwin C. Heck, Jr., t/d/b/a Sweden Adult Book Store.*fn1

Initially, we find the instant appeals properly before us despite appellants' failure to file exceptions. Pa.R.A.P. 311(a)(4) permits an appeal to be filed as of right from an order granting an injunction. See Pa.R.A.P. 311(a); Neshaminy Constructors, Inc. v. Philadelphia, Pennsylvania Building and Construction Trades Council, AFL-CIO, 303 Pa. Superior Ct. 420, 422 n. 1, 449 A.2d 1389, 1390 n. 1 (1982); Agra Enterprises, Inc. v. Brunozzi, 302 Pa. Superior Ct. 166, 169, 448 A.2d 579, 581 (1982).

A common nuisance is statutorily defined as "[a]ny building, or part of a building, used for the purpose of fornication, lewdness, assignation, and/or prostitution[.]" Act of June 23, 1931, P.L. 1178, No. 319, § 1, 68 P.S. § 467. An action to enjoin a public nuisance, as defined, may be brought in the name of the Commonwealth by the district attorney of the concerned county. Id. § 469. Upon finding the material allegations of the complaint to be true, the

[ 330 Pa. Super. Page 36]

    court may order that the offending building (or part thereof) not be occupied or used for any purpose for one year. Id. § 470. Our Supreme Court has construed § 467 to "proscrib[e] only the use of a building for the purpose of engaging in illicit sexual conduct." Commonwealth v. MacDonald, 464 Pa. 435, 461, 347 A.2d 290, 304 (1975), cert. denied, 429 U.S. 816, 50 L.Ed.2d 75, 97 S.Ct. 57 (1976) (emphasis added). In the instant case, the lower court orally made the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. Both Maxim's and Sweden Adult Bookstores sell a variety of adult-oriented material, including films and magazines depicting explicit sexual conduct between heterosexuals, homosexuals, ...


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