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PITTSBURGH PRESS CO. v. PREATE

August 14, 1992

THE PITTSBURGH PRESS COMPANY, Plaintiff,
v.
ERNEST D. PREATE, JR., in his official capacity as Attorney General for the Commonwealth of Pennsylvania, and ROBERT E. COLVILLE, in his official capacity as District Attorney for the County of Allegheny, Pennsylvania, Defendants.



The opinion of the court was delivered by: DONALD E. ZIEGLER

 ZIEGLER, District Judge

 (1) This is a civil action for declaratory and injunctive relief filed by The Pittsburgh Press Company against Ernest D. Preate, Jr., in his official capacity as the Attorney General of the Commonwealth of Pennsylvania, and Robert E. Colville, in his official capacity as the District Attorney of the County of Allegheny, Pennsylvania. Jurisdiction is predicated on 42 U.S.C. § 1983, 28 U.S.C. § 1332 and 28 U.S.C. § 1337.

 (2) Plaintiff, The Pittsburgh Press Company, is incorporated under the laws of Pennsylvania and maintains its principle place of business at 34 Boulevard of the Allies, Pittsburgh, PA. Plaintiff publishes and distributes the daily and Sunday editions of The Pittsburgh Press, and also prints and distributes, under a contract with a publisher, a daily newspaper known as the Pittsburgh Post-Gazette.

 (3) Defendant, Ernest D. Preate, Jr., is the Attorney General of the Commonwealth of Pennsylvania, and is statutorily designated to represent the Commonwealth in all civil litigation, pursuant to 71 P.S. § 732-204(c). Defendant, Robert E. Colville, is the District Attorney of the County of Allegheny and has primary responsibility for prosecuting all criminal actions within the County of Allegheny County, Pennsylvania.

 (5) The Pittsburgh Press Company filed a timely notice of appeal to the Superior Court of Pennsylvania from the order of July 27, 1992, and requested a stay. The Press also notified the Attorney General of Pennsylvania, as required by state Rule 521, that the constitutionality of the Strikebreakers Act was raised in the proceedings before the Hon. Maurice Louik in the Court of Common Pleas of Allegheny County, Pennsylvania. In addition, in the application for stay filed with the Superior Court of Pennsylvania, the Press contends that:

 (a) The injunction is without foundation since the Pennsylvania Strikebreakers Act is void as a matter of law because the act is preempted by federal law.

 (b) The injunction is an impermissible intrusion upon the rights of the Press under federal labor law.

 (c) The injunction constitutes a prior restraint on the right of the Pittsburgh Press to distribute newspapers in violation of the First Amendment to the United States constitution and Article 1, § 7 of the Pennsylvania constitution.

 (6) In paragraphs 18-20 of the instant complaint, and plaintiff's Ex. C, plaintiff refers to another state court civil action filed by The Pittsburgh Press Company against Local 211 and various officers of the Union at GD 92-13240, in the Court of Common Pleas of Allegheny County, Pennsylvania. In that case, the defendants raised the affirmative defense, amidst allegations of mass picketing, that the Pittsburgh Press was not entitled to injunctive relief because it allegedly violated the Pennsylvania Strikebreakers Act and therefore the equitable doctrine of unclean hands barred relief. No decree was entered by the Hon. Lee Mazur because the Pittsburgh Press decided that it would "cease and desist from printing and distributing the newspaper temporarily." See, plaintiff's Ex. C, at 90. Apparently the pickets dispersed with this announcement, and that civil action was continued generally. According to the instant complaint, the defense of unclean hands based on the Strikebreakers Act deprived the Pittsburgh Press of rights, privileges and immunities guaranteed by federal law.

 (7) Pending before this court is the motion of The Pittsburgh Press Company for a preliminary injunction. The Pittsburgh Press requests an injunction enjoining Ernest D. Preate and Robert E. Colville, in their official capacities "from prosecuting or enforcing in any way Sections 3(a) and (4) of the Pennsylvania Strikebreakers Act, 43 P.S. § 217.23(a) and 217.24, on the basis that these provisions are preempted by federal law as applied to the Press under the circumstances in this case." Reference is made to the state court civil actions at GD 92-13120 and 13260. The "wherefore clause" and the proposed order submitted to this court request an injunction enjoining defendants from enforcing Sections 3(a) and 4 of the Strikebreakers Act against The Pittsburgh Press Company.

 (8) In order to obtain equitable relief, The Pittsburgh Press Company must establish by a preponderance of the ...


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