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09/12/97 GOLDEN TRIANGLE NEWS v. HON. THOMAS

September 12, 1997

GOLDEN TRIANGLE NEWS, INC., A DELAWARE CORPORATION; T/D/B/A BOTH GOLDEN TRIANGLE NEWS AND MELLO NEWS; MONROEVILLE NEWS, INC.; FAIRVIEW BOOKS, INC. T/D/B/A GOOD N PLENTY; B.L.V.D., INC. T/D/B/A B.L.V.D. NEWS; AND NORTH HILLS NEWS, INC., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PETITIONERS
v.
HON. THOMAS CORBETT, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL FOR THE COMMONWEALTH OF PENNSYLVANIA; ROBERT COLVILLE, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF ALLEGHENY COUNTY; CITY OF PITTSBURGH, A MUNICIPAL CORPORATION; JACQUELINE R. MORROW, IN HER OFFICIAL CAPACITY AS SOLICITOR FOR THE CITY OF PITTSBURGH; MUNICIPALITY OF MONROEVILLE; JOHN F. CAMBEST, IN HIS OFFICIAL CAPACITY AS SOLICITOR FOR THE MUNICIPALITY OF MONROEVILLE; TOWNSHIP OF ROSS; C. DONALD GATES, IN HIS OFFICIAL CAPACITY AS SOLICITOR OF ROSS TOWNSHIP; AND COL. PAUL EVANKO IN HIS OFFICIAL CAPACITY AS COMMISSIONER, PENNSYLVANIA STATE POLICE, ON BEHALF OF THEMSELVES AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, RESPONDENTS



Before: Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Leadbetter. Judge Friedman did not participate in the decision in this case.

The opinion of the court was delivered by: Leadbetter

ORIGINAL JURISDICTION

OPINION BY JUDGE LEADBETTER

FILED: September 12, 1997

Before this court for resolution are: (1) respondents' preliminary objections in the nature of a demurrer to petitioners' *fn1 amended petition for review in the nature of a complaint in equity; (2) respondents' applications for summary relief; and (3) petitioners' motion for summary judgment. For the reasons set forth below, we sustain the respondents' preliminary objections, dismiss the petitioners' amended petition for review and deny petitioners' motion for summary judgment.

On December 16, 1996, petitioners filed a petition for review in this court's original jurisdiction on behalf of themselves and other similar adult-oriented establishments. The original petition for review named only the Commonwealth parties as respondents. Thereafter, an amended petition for review was filed which included the respondents named herein. *fn2 In Count I of their amended petition, petitioners seek a declaration that Act 120 of 1996 (the Act) *fn3 is unconstitutional on the basis that it, inter alia : (1) imposes a prior restraint on petitioners' right to engage in the dissemination of constitutionally protected expression; (2) chills the exercise of constitutional rights; (3) constitutes an impermissible content-based restriction on protected expression; (4) fails to employ the least restrictive means to further any legitimate governmental interest; (5) is unconstitutionally vague; (6) was enacted without adequate empirical studies, evidence or information to support the imposition of its restrictions; and (7) authorizes random, warrantless searches without the existence of probable cause. *fn4 In Count II of their petition, petitioners seek injunctive relief on the basis that enforcement of the Act will cause irreparable harm.

In conjunction with their petition, petitioners filed a motion for preliminary injunction, which this court denied on December 20, 1996. In a lengthy opinion in support of the denial of preliminary injunctive relief, this court addressed the merits of most of the constitutional issues raised herein. See Golden Triangle News, Inc. v. Corbett (Golden Triangle I), 689 A.2d 974 (Pa. Commw. 1997) (single Judge opinion by Leadbetter, J.).

Although we will not repeat verbatim the court's resolution of petitioners' constitutional claims, we summarily note that the court determined that the Act does not constitute a prior restraint on petitioners' freedom of speech or expression; rather, the Act is a constitutional, content-neutral, time, place and manner regulation designed to curb the adverse secondary effects of adult entertainment. 689 A.2d at 982-83.

In addition, the court held that the Act's penalty provisions, which authorize the closure of an adult-oriented establishment for a period of up to one year, do not constitute a prior restraint because (1) any closure pursuant to the Act is not the result of an advance determination that the distribution of certain materials is objectionable and (2) a closure pursuant to the Act would not preclude the dissemination of petitioners' materials at other locations. Id. at 984. The court also rejected petitioners' contention that sections of the Act were unconstitutionally vague since a reasonable person, using common sense, is not required to guess in order to understand the meaning of the statute's provisions. Id.

Finally, the court rejected the claim that § 5505 of the Act, which provides that adult-oriented establishments "shall be open to inspection at all reasonable times," authorizes an unconstitutional warrantless search. Specifically, the court concluded that the inspection provision could be construed in a constitutional manner and, therefore, should not be held to be unconstitutional. Id. at 985.

Now before the court are respondents' preliminary objections in the nature of a demurrer and both sides' motions for summary relief. *fn5 Of these, we must first address the arguments that the Attorney General and the Commissioner are not proper parties to this action because if they are correct, we lack original jurisdiction over this matter. See 42 Pa. C.S. § 761(a).

Pursuant to § 5506 of the Act, the Attorney General is authorized to commence an action to enjoin any violation of the Act. Specifically, § 5506 provides, in pertinent part:

An action to enjoin or abate a violation of this chapter may be brought in the name of the Commonwealth of Pennsylvania by the Attorney General, the district attorney of the county concerned or the solicitor of the municipality in which the adult oriented establishment is located.

68 Pa. C.S. § 5506(a). Despite this specific authorization to enforce the Act, the Attorney General contends that the possibility that he would actually prosecute a case under the Act is so unlikely that an actual case or controversy is not present for purposes of jurisdiction and, therefore, he should be dismissed from the case. According to the Attorney General, the Commonwealth Attorneys Act *fn6 is the sole source of his authority to investigate and prosecute cases, and under that statute, the conditions which must be present before he can prosecute a violation of the Act are unlikely to occur. See 71 P.S. ยง 732-205. In support of this contention, the Attorney General cites, inter alia, Pennsylvania Gamefowl Breeders Ass'n v. Commonwealth, 122 Pa. Commw. 52, 551 A.2d ...


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