# Appendix — Pennsylvania v. MacDonald > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2179%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 429 U.S. 816 ## Text . Supreme Court, U. & g@ FILED 75-1073 | JAN 28 1976 SUPPLEMENTARY APPENDIX LWICHAEL RODAE JR. CT IN THE Supreme Court of the United States October Term, 1976 COMMONWEALTH OF PENNSYLVANIA, Petitioner, vs. CHARLES MacDONALD, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES DONALD L. RETHART, District Attorney, York County, Pennsylvania, DANIEL F. WOLFSON, Assistant District Attorney, York County, Pennsylvania, Attorneys for Petitioner. oe BATAVIA TIMES, APPELLATE COURT PRINTERS <> EDWARD UW. SHANNON, SENIOR REPRESENTATIVE WAROLD L. SERKOBEN, REPRESENTATIVE 1701 PARELINE DOR., PITTSSURGH, PA. 19887 418-001-7468 INDEX TO APPENDIX. Exhibit No. 1—Judgment ......................055. Exhibit No. 2—Docket Entries ..................... Exhibit No. 3—Complaint........................4. Exhibit No. 4—Preliminary Objections .............. Exhibit No. S—Opinion......................22005- ee APPENDIX. Exhibit No. 1. JUDGMENT. COMMONWEALTH of Pennsy!vania, Appellant, v. Charles MacDONALD et al. COMMONWEALTH of Pennsyivania, Appellant, v. Charles MacDONALD. Supreme Court of Pennsylvania. Oct. 30, 1975. Criminal complaint filed against three defendants in connection with their exhibition of two motion pictures was quashed by order entered in M-24 in the Court of Common Pleas, York County, and one defendant’s preliminary objections to injunction sought by Common- wealth to enjoin future exhibition of motion pictures were sustained in order entered in 34 May Term, 1974, in the Court of Common Pleas, York County, and Common- wealth’s appeals were consolidated. The Supreme Court, Nos. 20, 21 May Term, 1975, Roberts, J., held that statute which prohibits, inter alia, exhibiting of obscene photographs, figures or images but which does not specifically define forbidden conduct, could not constitutionally be applied to criminally punish expres- sion on basis of allegedly obscene content of motion pic- tures unless and until amended to specifically define for- bidden conduct, that determination of what constituted common or public nuisance under statute prohibiting 2a Appendix—Exhibit No. 1—Judgment. common or public nuisance was not sufficiently specific to be utilized to criminaily punish expression on basis of motion pictures’ ailegedly obscene content; that Com- monwealth was not entitled under theory of commonlaw public nuisance to enjoin future showing of allegedly ob- scene motion pictures, and that motion pictures could not be enjoined under statute authorizing injunctive pro- ceedings to prevent exhibition of any obscene photograph, figure, or image until adequate definition of prohibited conduct was supplied by General Assembly. Affirmed. Eagen, O’Brien, and Nix, J.J., concurred in result. Jones, C. J., dissented. 1. Obscenity—S. “Motion pictures’ are “photographs” or “images,” within purview of statute forbidding exhibition or show- ing of, inter alia, any obscene photograph, figure or im- age, and thus such statute applies to motion pictures. (Per Roberts, J., with one Justice concurring and three Justices specially concurring.) 18 Pa.C.S.A. §5903(a). See publication Words and Phrases for other judicial constructions and definitions. 2. Constitutional Law—48(] ). Supreme Court has duty to so construe a statute as to sustain its validity if such construction is fairly possible. (Per Roberts, J., with one Justice concurring and three Justices specialiy concurring.) | Pa.C.S.A. § 1922(3). 3a Appendix—Exhibit No. 1—Judgment. 3. Statutes—2] 2. Definition of “‘sexual conduct” contained in statutes re- stricting availability of sexually-oriented materials to persons under the age of 17 years could not be utilized to give necessary definiteness to statute restricting avail- ability of obscene data to adults since it could not be pre- sumed that General Assembly would wish to restrict adults to receiving material fit for children. (Per Roberts, J., with one Justice concurring and three Justices specially concurring.) 18 Pa.C.S.A. §5903(a), (e)(3). 4. Constitutional Law—70. 1 (6). Where proposed construction of statute restricting availability of obscene material to adults drew no support from language of statute and was only one among several specific definitions of sexual conduct which might be permissible under First Amendment, Supreme Court could not choose among them, in absence of guidance from General Assembly, without intruding upon leg- islative province. (Per Roberts, J., with one Justice con- curring and three Justices specially concurring.) 18 Pa.C.S.A. §5903(a); U.S.C.A.Const. Amend. 1. 5. Criminal Law—] 3.1(1 3). Statute which prohibits, inter alia, exhibiting of ob- scene photographs, figures or images, but which does not specifically define forbidden conduct, could not constitutionally be applied to criminally punish ex- pression through exhibition of motion pictures on basis of pictures’ allegedly obscene content. (Per Roberts, J., with one Justice concurring and three Justices specially con- curring.) 18 Pa.C.S.A. §5903(a), U.S.C.A.Const. Amend. 1. 4a Appendix—Exhibit No. 1—Judgment. 6. Criminal Law—] 3.1(2). Determination of what constitutes common or public nuisance under statute prohibiting common or public nuisance was not sufficiently specific to be utilized to criminally punish expression through exhibition of motion pictures on basis of pictures’ allegedly obscene content. (Per Roberts, J., with one Justice concurring and three Justices specially concurring.) 18 Pa.C.S.A. § 6504. 7. Pleading—214(2). Preliminary objections admit, for purpose of testing sufficiency of complaint, all properly pleaded facts, but not conclusions of law. (Per Roberts, J., with one Justice concurring and three Justices specially concurring. ) 8. Nuisance—S9, 60. A thing may be a public nuisance either because it is so decl*red by statute, either explicitly or implicitly, and alternatively, may be declared a nuisance as a matter of common law, if, though not prohibited by statute, it un- reasonably interferes with the rights of the public. (Per Roberts, J., with one Justice concurring and three Justices specially concurring. ) 9. Nuisance—80. Commonwealth was not entitled to enjoin future ex- hibition of allegedly obscene motion pictures on theory that exhibition of pictures constituted common-law public nuisance. (Per Roberts, J., with one Justice concurring and three Justices specially concurring. ) a Sa Appendix—Exhibit No. 1—Judgment. 10. Nuisance—80. Statute authorizing injunction against use of any building for purposes of fornication, lewdness, assigna- tion, and/or prostitution proscribes only use of building for purpose of engaging in illicit sexual conduct and thus provided no basis for enjoining of future showing of al- legedly obscene motion pictures in absence of allegations that any buildings were being used for purpose of engag- ing in illicit sexual conduct. (Per Roberts, J., with one Justice concurring and three Justices specially concur- ring.) 68 P.S. §§ 467-473. 11. Nuisance—80. Future showing of allegedly obscene motion pictures could not be enjoined under statute authorizing injunctive proceedings to prevent exhibition of any obscene photo- graph, figure or image until adequate definition of ob- scenity was supplied by the General Assembly. (Per Roberts, J., with one Justice concurring and three Justices specially concurring.) 18 Pa.C.S.A. §5903(h); U.S.C.A.Const. Amend. I. Donald L. Reihart, Dist. Atty., York, for appellant. Harold N. Fitzkee, Jr., Donn I. Cohen, York, for appellees. Before JONES, C. J., and EAGEN, O’BRIEN, ROBERTS, POMEROY and NIX, JJ. OPINION OF THE COURT. ROBERTS, Justice. These appeals arise out of a two-pronged effort by the Commonwealth to prevent the showing of certain alleged- 6a Appendix—Exhibit No. 1—Judgment. ly obscene motion pictures. The Commonwealth first filed a criminal complaint against Charles MacDonald, Raetta Thompson, and Lance Wolf alleging that they had vi- olated sections 5903' and 6504* of the Crimes Code by ' 18 Pa.C.S. §5903 (1974). The pertinent portions of this section provide: “(ay Offenses defined.—Whoever sells, lends, distributes, ex- hibits, gives away or shows to any person 17 years of age or older or offers to sell, lend, distribute, exhibit or give away or show, or has in his possession with intent to sell, lend, distribute or give away or to show to any person 17 years of age or older, or knowingly advertises in any manner any obscene literature, book, magazine, pamphlet, newspaper, storypaper, paper, comic book, writing, drawing, photograph, figure or image, or any written or printed matter of an obscene nature, or any article or instrument of an obscene neture, or whoever designs, copies, draws, photographs, prints, utters, publishes or in any manner manufac- tures or prepares any such book, picture, drawing, magazine, pamphlet, newspaper, storypaper, paper, comic book, writing, figure, image, matter, article or thing or whoever writes, prints, publishes or utters or causes to be printed, published or uttered, any advertisement or notice of any kind giving information, directly or indirectly, stating or purporting to state where, how, or whom, or by what means any obscene book, picture, writing, paper, comic book, figure, image, matter, article or thing named in this section can be purchased, obtained or had, or whoever hires, employs, uses or permits any minor or child to do or assist in doing any act or thing mentioned in this section, is guiity of a misdemeanor of the second degree. “(b) Obscene defined.— Obscene,’ as used in this section, means that which, to the average person applying contemporary community siandards, has as its dominant theme, taken as a whole, an appeal to prurient interest.” * 18 Pa.C.S. §6504 (1974). This section provides: “Whoever erects, sets up, establishes, maintains, keeps or con- tinues, or causes to be erected, set up, established, maintained, kept or continued, any public or common nuisance is guilty of a misdemeanor of the second degree. (Footnote continued on following page) Ta Appendix—Exhibit No. 1—Judgment. exhibiting the motion picutres “Deep Throat” and “The Devil in Miss Jones.” Subsequently, the Commonwealth filed a complaint in equity against MacDonald only seek- ing to enjoin exhibition of those motion pictures in the future. Appellees filed a petition to quash the criminal complaint and preliminary objections to the complaint in equity. The court of common pleas quashed the criminal complaint on the ground that the statutes in question vi- olated the First Amendment to the United States Con- stitution as interpreted by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). It also sustained the preliminary objections to the complaint in equity on the ground that the invalidity of the obscenity statute left no “legal basis upon which the films in question can be determined to be obscene.” These appeals followed* and we consolidated them for oral argument. We now affirm. The criminal charges under sections 5903 and 6504 will be discussed in parts I and II of this opinion, respectively. The action in equity will be considered in part III. (Footnote continued from preceding page) “Where the nuisance is in existence at the time of the conviction and sentence, the court, in its discretion, may direct either the defendant or the sheriff of the county at the expense of the defen- dant to abate the same.” * Our jurisdiction over the criminal proceeding is founded upon the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, §202(9), 17 P.S. §211.202 (9). (Supp. 1974). Our jurisdiction over the equity proceeding is founded upon /d. §202 (4), 17 PS. § 211. 202(4). 8a Appendix—Exhibit No. 1—Judgment. The charges of violation of section 5903, appearing in count one of the criminal complaint, read as follows: “Defendant[s] did exhibit and show to persons over 17 years of age, obscene photographs and images that were cast upon a motion picture screen. The photographs and images depicted acts of oral and anal sodomy and sexual intercourse, and pictured the genitals of males and females in a state of excitement. The photographs and images were contained in a mo- tion picture film, which when taken as a whole was obscene.” [1] Appellees moved to quash the indictment on the ground that it failed to charge a crime, because (1) the Statute does not prohibit the exhibition of an obscene mo- tion picture and (2) the statute was unconstitutionally vague and therefore invalid. The court of common pleas rejected the first contention but agreed with the second and quashed count one of the complaint. We agree that section 5903 does attempt to prohibit exhibition of ob- scene motion pictures but that it is unconstitutional insofar as it prohibits distribution or exhibition of ob- scene materials to persons over the age of 17.‘ Section 5903(a) forbids “any person” to exhibit or . Show . “any obscene literature, book, magazine, pamphlet, newspaper, storypaper, paper, comic book, writing, drawing, photograph, figure or image, or any written or printed matter of an obscene nature, or any article or instrument of an obscene nature . * The portions of §5903 prohibiting distribution of exhibition of obscene materials to persons under the age of 17 are not in issue here. 9a Appendix—Exhibit No. 1—Judgment. Surely a motion picture is simply a series of “photo- graphs” or “images.” Nevertheless appellees argue that the omission from the list of prohibited materials of any specific references to “motion pictures’ indicates a legislative intent to omit them from the scope of the pro- hibition. The only factor which even lends surface plausibility to appellees’ proposed construction is the fact that other portions of section 5903 do specifically mention mvtion pictures.° From this appellees argue that omission of any such specific reference from section 5903(a) must have been intentional. We cannot agree. Whatever might be the case if the entire statute were drafted at one time, we believe that the history of this section precludes the inference which appellees seek to draw. Section 5903(a) of the Crimes Code was derived, without any pertinent changes, from section 524 of the Penal Code.* Thus it is presumed that the General » Section 5903(c\ 1) prohibits distribution to minors of “any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or por- tion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors .. .” (emphasis added) Section 5903 prohibits the admission of minors to any “motion picture show or other presentation which, in whole or in part, depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors . . .” (emphasis added) “ Act of June 24, 1939, P.L. 872, §524, as amended by Act of Octo- ber 20, 1939, P.L. 1330, §1 (formerly codified as 18 P.S. §4524 (1963)), repealed by Act of December 6, 1972, P.L. 1605, No. 334, §5. 10a Appendix—-Exhibit No. 1—Judgment. Assembly intended to retain the prior law except as it was explicitly altered.’ See Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1961, 1962 (Supp.1975). There is no indication that motion pictures were excluded from the scope of section 524, which is clearly intended as a com- prehensive prohibition on the distribution and exhibition of all types of obscene materials. Nor, we think, can the addition of new and extremely detailed provisions governing the exhibition and distribution of obscene materials to minors be construed to restrict the scope of the prohibition of or distribution of similar materials to adults. Appellee would have us construe the statute to avoid the constitutional question. While there is some value to construing statutes narrowly simply to avoid or postpone constitutional adjudication, we do not believe that this factor is sufficient to justify disregard of the more probable intent of the General Assembly when that intent is expressed as plainly as it is in this case. Consequently, we conclude that motion pictures are “photographs” or “images” within the meaning of section 5903(a). Our analysis of the validity of the statute before us must begin with the United States Supreme Court’s decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed. 2d 419 (1973). In Miller the Court ended a long period of uncertainty regarding the constitutional limits of govern- * The primary difference between section 524 of the Penal Code and the pertinent portion of section 5903 is the restriction of section 5903(a) to obscene materials furnished to persons over the age of 17. This retlected the adoption in section 5903(c), (d) and (e), of a new comprehensive scheme of regulation covering materials furnished to minors. lla Appendix—Exhibit No. 1—Judgment. mental power to regulate obscene materials and laid down a five-part standard for the validity of such regulation: “We acknowledge . . . the inherent dangers of un- dertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation [1] to works which depict or describe sexual conduct. [2] That conduct must be specifically defined by state law as written or authoritatively construed. [3] A state of- fense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, [4] which portray sexual conduct in a patently offensive way, and [5] which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Id. at 24-25, 93 S.Ct. 2614-15 (citation and footnote omitted). Examining the pertinent portion of section 5903 on its face," we find that it fails to satisfy the Miller standard. Section 5903(a) is a wide-ranging prohibition on the dis- tribution or exhibition of obscene materials with the following definition of “obscene” appearing in stction §903(b): “ ‘Obscene,’ as used in this section, means that which, to the average person applying contemporary community standards, has as its dominant theme, taken as a whole, an appeal to prurient interest. On its face this appears to satisfy only what we have labeled as the third element of the Miller standard. However, the Miller standard may be satisfied if the * See note | supra. 12a Appendix—Exhibit No. 1—Judgment. Statute, as authoritatively construed, complies with all of the requirements of Miller." We therefore, turn to past constructions. We have not previously construed this precise statutory provision because it is part of the recently enacted Crimes Code. However, the portion before us in this case is iden- tical to a prior statute'’ which we construed in Common- wealth v. LaLonde, 447 Pa. 364, 368 n. 4, 288 A.2d 782, 784 n. 4 (1972), to incorporate all of the requirements of the then-understood requirements of the First Amendment: “[T)hree elements must coalesce: it must be es- tablished that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the materia! is patently offensive because it aff- ronts contemporary community standards relating to the description of sexual matters; and (c) the material is utterly without redeeming social value.” This construction satisfies four of the Miller require- ments. Element (a) corresponds to requirement {3] of the Miller standard. Element (b) insures that requirements [1] and [4] are met. Finally, it is clear that if material is “utterly without redeeming social value,” it must certain- ly lack “serious literary, artistic, political, or scientific value,” so that requirement [5] of the Miller standard is met. " 413 U.S. at 24, 93 S.Ct. at 2615. - Act of June 24, 1939, P.L. 872, §524, as amended (formerly codified as 18 PS. §4524 (1963)), repealed by Act of December 6, 1972, P.L. 1605, No, 334, §5. eee wee 13a Appendix—Exhibit No. |—Judgment. However, as the Commonwealth concedes, nothing in our prior construction of the statutory language satisfies the remaining requirement of the Miller standard: “That conduct [whose depiction or description is forbidder} must be specifically defined by state law . . ..” 413 U.S at 25, 93 S.Ct. at 2615. Compare 18 Pa.C.S. §5903(c)-(e).*' '' Those subsections provide as follows: “(c) Minors.—Iv shall be unlawful for any person knowingly to sell or loan for monetary or other valuable consideration to a minor: (1) any picture, photograph, drawing, sculpture, motion pic- ture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors, or (2) any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in clause (1) hereof, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors. “«d) Admitting minor to show.—It shall be unlawful for any person knowingly to exhibit for monetary consideration to a minor or knowingly to sell to a minor an admission ticket or pass or knowingly to admit a minor for a monetary consideration to premises whereon there is exhibited, a motion picture show or other presentation which, in whole or in part, depicts nudity, sex- ual conduct, or sadomasochistic abuse and which is harmful to minors, except that the foregoing shall not apply to any minor ac- companied by his parent. “(e) Definitions.—As used in subsections (c) and (d) of this section: (1) ‘Minor’ means any person under the age of 17 years. (2) ‘Nudity’ means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered mate genitals in a discernibly turgid state. (Foc ‘note continued on following page) l4a Appendix—Exhibit No. 1—Judgment. Thus, the way is not open for us to follow those jurisdic- tions which have concluded that their statutes, as con- strued prior to Miller, satisfy the standard there delineated. '* (Footnote continued from preceding page) (3) ‘Sexual conduct’ means acts of masturbation, homosexu- ality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast. (4) ‘Sexual excitement’ means the condition of human male or female genitals when in a state of sexual stimulation or arousal. (5) ‘Sadomasochistic abuse’ means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed. (6) ‘Harmful to minors’ means that quality of any description or representation, in whatever form, of nudity, sexual excitement, or sadomasochistic abuse, when it: (i) predominantly appeals to the prurient, shameful, or morbid interests of minors: and (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) is utterly without redeeming social importance for minors. (7) ‘Knowingly’ means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both: (i) the character and content of any material described herein which is reasonably susceptible of examination by the defendant: and (ii) the age of the minor: Provided, however, That an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor.” '* People v. Enskat, 33 Cal.App.3d 900, 109 Cal.Rptr. 433 (2d Dist. 1973), cert. denied, 418 U.S. 937, 94 S.Ct. 3225, 41 L.Ed.2d 1172 (1974). People v. Nissinoff, 43 Cal.App.3d 1025, 118 Cal.Rptr. 457 (ist Dist. 1974): Slaton v. Paris Adult Theatre 1, 231 Ga. 312, 201 S.E.2d 456 (Footnote continued on following page) 15a Appendix—Exhibit No. 1—Judgment. The Commonwealth, however, requests that we now construe section 5903(b) so that it will meet the require- ments of Miller. It proffers two suggested constructions which it contends would accomplish this purpose. The first of the suggested constructions would adopt the definition of “sexual conduct” contained in section 5903(e)(3) as a limit on the application of section 5903(a). That definition provides: “Sexual conduct’ means acts of masturbation, homosexuality, sexual intercourse, or physical con- tact with a person’s clothed genitals, pubic area, but- * tocks or, if such a person be a female, breast.” (Footnote continued from preceding page) (1973), cert. denied, 418 U.S. 939, 94 S.Ct. 3227, 41 L.Ed.2d 1173 (1974): Hall v. Commonwealth, 505 $.W.2d 166 (Ky. 1974). State ex rel. Wampler v. Bird, 499 $.W.2d 780 (Mo. 1973). State v. Little Art. Corp., 191 Neb. 448, 215 N.W.2d 853 (1974): State v. Harding, N.H., 320 A.2d 646 (1974) (semble) (may have modified construction sub silentio): People v. Heller, 33: N.Y.2d 314, 352 N.Y.S.2d 601, 307 N.E.2d 805 (1973) (semble) (same): State ex rel. Keating v. A Motion Picture Film Entitled “Vixen”, 35 Ohio St.2d 215, 301 N.E.2d 880 (1973). Price v. Commonwealth, 214 Va. 490, 201 S.E.2d 798, cert. denied, 419 U.S. 902, 95 S.Ct. 186, 42 L.Ed.2d 148 (1974). A number of the decisions listed above were based upon the dubious premise that the requirement of specifically defined sexual conduct added nothing to the prior test for ubscenity when that test was con- sidered together with the requirement that a criminal statute give fair warning of the prohibited conduct. Hall v. Commonwealth, supra. State ex rel. Wampler v. Bird, supra. State v. Little Art, Corp., supra: Price v. Commonwealth, supra. In light of the considerable effort expended on discussion of the requirement of specific definition in the Miller opin- ion, see 413 U.S. at 25-26, 93 S.Ct. at 2615, and the nature of the ex- amples given of definitions which would satisfy the requirement, see id. and discussion in text accompanying note 11 infra, we cannot assume that this aspect of the Miller wsi is a nullity. 16a Appendix—Exhibit No. 1—Judgment. At first glance, this suggested use of a definition in one subsection to give the necessary definiteness to another subsection has considerable attraction. Compare Com- monwealth v. Morgan, ........ eee er eee 331 A.2d 444, 446 (1975); 2A J. Sutherland, Statutes and Statutory Construction §47.16 (4th ed. C. Sands 1973). However, on more careful consideration, the suggested construction proves unacceptable. [2] The definitions contained in subsection (e) are explicitly limited to use in subsections (c) and (d). By it- self, this would not be an insurmountable obstacle to the suggested construction, for it is our duty to so construe a Statute as to sustain its validity if such a construction is fairly possible. Statutory Construction Act, 1 Pa.C.S. §1922(3) (Supp.1974); Bentman v. Seventh Ward Democratic Executive Committee, 421 Pa. 188, 218 A.2d 261 (1966). [3] What makes the suggested construction unac- ceptable is the purpose of the limitation on the use of the definitions in subsection (3). The provisions of the statute to which the definitions apply'* restrict the availability of sexually-oriented materials to persons under the age of 17 years, while the provision under consideration here restricts the availability of obscene matter to adults. We cannot presume that the General Assembly would wish to restrict adults to receiving materials fit for children. As Judge Learned Hand wrote in United States v. Kennerley, 209 F. 119, 121 (S.D.N.Y.1913): “To put thought in leash to the average conscience of the time is perhaps tolerable, but to fetter it by the necessities of the lowest and least capable seems a fatal policy.” '* See note 8 supra. = ee ee 17a Appendix—Exhibit No. 1—Judgment. The second construction suggested by the Common- wealth derives from language in Miller itself. After stating the applicable standard, the Court continued: “We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under .. . the standard announced in this opinion, supra: (a) Patently offensive representations or descrip- tions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representation or descrip- tions of masturbation, excretory functions, and lewd exhibition of the genitals.” 413 U.S. at 25, 93 S.Ct. at 2615."* In the companion case of United States v. 12 200-ft. Reels of Super 8mm. Films, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), which arose under a federal statute, the Court remarked in a footnote: “We further note that, while we must leave to state courts the construction of state legislation, we do have a duty toauthoritatively construe federal statutes where ‘‘‘a serious doubt of constitutionality is raised” ’ and ‘ “a construction of the statute is fairly possible by which the question may be avoided.”’ '* The Court also cited “Oregon Laws 1971, c. 743, Art. 29, §§255- 262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt. Il, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to ex- pression.” 413 U.S. at 25 n. 6, 93 S.Ct. at 2615 n. 6 The pertinent provisions of the Oregon statute are quoted in People v. Ridens, 59 I11.2d 362, 386, 321 N.E.2d 264, 276-77 (1974) (dissenting opinion). 18a Appendix—Exhibit No. 1—Judgment. [citations omitted] If and when such a ‘serious doubt’ is raised as to the vagueness of the words ‘obscene’, ‘lewd’, ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe the regulated material in [certain federal statutes], we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller . ...” Id. at 130 n. 7, 93 S.Ct at 2670 n.7. The Commonwealth urges us to construe the word “ob- scene,’’ as used in section 5903(b) to refer only to the type of material indicated by the Supreme Court’s “examples.”'> We conclude that we cannot so construe the statute, even to save its validity. [4] What the Commonwealth urges is not mere con- struction but wholesale re-writing. The proposed con- struction is not even a possible meaning of the words of the statute when used in their ordinary senses. It draws no '* This approach has been adopted by a number of jurisdictions. Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974); Gibbs v. State, 255 Ark. 997, 504 S.W.2d 719 (1974); Rhodes v. State, 283 So.2d 351 (Fla.1973) (prospective application only); People v. Ridens, 59 Il.2d 362, 321 N.E.2d 264 (1974); Mangum v. Maryland State Bd. of Censors, 273 Md. 176, 328 A.2d 283 (1974); State v. Welke, 298 Minn. 402, 216 N.W.2d 641 (1974) (prospective application only), State v. DeSantis, 65 N.J. 462, 323 A.2d 489 (1974) (prospective application only); State v. Bryant, 285 N.C. 27, 203 S.E.2d 27, cert. denied, 419 U.S. 974, 95 S.Ct. 238, 42 L.Ed. 2d 188 (1974); State v. Watkins, 262 S.C. 178, 203 S.E.2d 429 (1973), cert. denied, 418 U.S. 911, 94 S.Ct. 3204, 41 L.Ed.2d 1157 (1974), West v. State, 514 §.W.2d 433 (Tex.Cr.App. 1974), State v. J-R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973), cert. denied, 418 U.S. 949, 94 S.Ct. 3217, 41 L.Ed.2d 1166 (1974) (semble) (may have been applying pre-Milier construction), State ex rel. Chobot v. Circuit Court, 61 Wis.2d 354, 212 N.W.2d 690 (1973). 19a Appendix—Exhibit No. 1—Judgment. support from either surrounding language in the same statute, compare Commonwealth v. Morgan, ........ Pa. , 331 A.2d 444, 446 (1975), 2A J. Sutherland, Statutes and Statutory Construction §47.16 (4th ed. C. Sands 1973), or other statutes in pari materia, see Statutory Construction Act, 1 Pa.C.S. §1932 (Supp.1974), 2A J. Sutherland, Statutes and Statutory Construction, supra §45.11. Insofar as any intention of the General Assembly is concerned, the proposed con- struction is entirely arbitrary. Even the necessity for stretching the statutory language might not prevent adoption of a construction which would preserve the validity of the statute were there only one construction which would do so. This was the basis for our former construction adding the elements of patent of- fensiveness and utter lack of social value to those specifically enumerated in the statute. See Commonwealth v. LaLonde, 447 Pa. 364, 368 n. 4. 288 A.2d 782, 784-85 n. 4 (1972). The First Amendment, as then understood, for- bade the enforcement of any regulation of obscenity which faile¢ to include those elements in the definition. In the present case, however, there are many possible specific definitions of sexual conduct which might be permissible under the First Amendment and we cannot choose among them, in the absence of guidance from the General Assembly, without intruding upon the legislative province. This point was succinctly put by Justice Calogero of the Louisiana Supreme Court in State v. Shreveport News Agency, La., 287 So.2d 464 (1974), where that court also refused to redraft the obscenity statute before it to com- ply with Miller. 20a Appendix—Exhibit No. 1—Judgment. “{T]he State here asks us to corstrue Louisiana’s nonspecific, vague statute as prohibiting certain specified conduct. “But what, or which conduct? The State would argue that we have several options. There are two examples of such specifically described conduct in the Miller decision itself. That would suffice. Or why not the obscenity statute adopted by the State of Hawaii, or the State of Oregon? They each have a good one. Well, for that matter, why not engraft onto Louisiana’s obscenity statute the specific conduct outlined in the obscenity ordinance of the City of New Orleans. After all, it was passed by the New Or- leans City Council after, and in response to Miller, and being a studied effort on their part may well comply with the United States Constitutional standards outlined in Miller. e . [W]e have properly concluded in our opi- nion that it is not this Court’s province to write an obscenity law for the State of Louisiana, but rather the State Legislature’s.” -Id., 287 So.2d at 472 (concurring opinion). As a final consideration, it would be peculiarly inap- propriate for us to engage in statutory draftsmanship without legislative guidance, for we must ultimately pass upon the validity of the resulting legislation under article I, section 7 of the Pennsylvania Constitution. We therefore decline to embark upon any such foray into the legislative sphere. In so doing we join the position of our 2la Appendix—Exhibit No. 1—Judgment. own Superior Court'*® and the Supreme courts of several other jurisdictions. '’ [5] We therefore conclude that section 5903(a) fails to satisfy the Miller standard and therefore may not constitutionally be applied unless and until it is amended to specifically define the sexual conduct whose depiction or description is to be regulated thereby. [6] We next turn to the portion of the criminal com- plaint charging violation of section 6504 of the Crimes Code.'* This accusation was contained in count two of the complaint, which read: {Defendants} did set up and maintain a public and common nuisance by exhibiting, or causing to be ex- hibited, grossly obscene films for a consideration. {The allegations regarding the nature of the films in count one were then incorporated by reference. ]” “ Commonwealth v. Winkleman, 230 Pa. Super. 265, 326 A.2d 496 (1974) (holding unconstitutional Act of June 24, 1939, P.L. 872, §528. as amended (formerly codified as 18 P.S. §4528). repealed by Act of December 6, 1972, P.L. 1605, No. 334, §5). The statute held unconstitutional in Winkleman prohibited “any dramatic, theatrical, operatic, or vaudeville exhibition or the exhibition of fixed or moving pictures of an obscene nature.” '? Mohnev v. State, Ind., 300 N.E.2d 66 (1973). State v. Wedelstedt, lowa, 213 N.W.2d 652 (1973): State v. Shreveport News Agency, La., 287 So.2d 464 (1973): Commonwealth v. Horton, Mass., 310 N.E.2d 316 (1974): Art Theater Guild, Inc. v. State, Tenn., 510 $.W.2d 258 (1974). '* See note 2 supra. 22a Appendix—Exhibit No. 1_—Judgment. Appellees contended in their motion to quash the com- plaint that (1) the conduct described in the complaint does not constitute a “common or public nuisance” within the meaning of section 6504 and (2) the concept of “public nuisance,” if used as a standard to restrict expression is unconstitutionally vague and overbroad. The trial court concluded that section 6504 could not constitutionaliy be applied to the conduct charged in the complaint and therefore quashed count two. We agree. Section 6504 does not define the term “common or public nuisance.” However, that section reenacts language formerly contained in section 612 of the Penal Code." Consequently, we must look to constructions of the prior Statute to ascertain the meaning of section 6504. Statutory Construction Act, 1 Pa.C.S. §§ 1922(4), 1962 (Supp. 1975). However, past appellate cases involving criminal prosecutions for maintaining a public nuisance have not attempted to define the term. They have instead simply decided whether to append the label “public nuisance” without stating reasons for the decision. Generalization is further hampered by the fact that the great buik of these cases have concerned a single type of conduct: * Act of June 24, 1939, P.L. 872, §612 (formerly codified as 18 P.S. §4612 (1963)), repealed by Act of December 6, 1972, P.L. 1605, No. 334, §5. In addition to the provisions carried forward into §6504, §612 provided: “All obstructions to private roads, laid out according to law, shall be nuisances, which would be nuisances in cases of obstruc- tions to public roads or highways. “Whoever keeps or exhibits any gaming table, device or ap- Paratus to win or gain money or other property of value, or engages in gambling for a livelihood, or aids or assists others to do so, or who sells tickets or policies in a fottery, is guilty of nuisance.” 23a Appendix—Exhibii No. 1—Judgment. obstructing a public highway.” Nevertheless, it does appear from the few cases involving other types of con- duct?' that the offense is defined by reference to the cor- responding common law crime. Dean Prosser has briefly sketched the outlines of this concept at common law: 2” Commonwealth v. Royce, 152 Pa. 88, 25 A. 162 (1892). Common- wealth v. Hauck, 103 Pa. 536 (1883); Northern Central Ry. Co. v. Com- monwealth, 90 Pa. 300 (1879): Barker v. Commonwealth, 19 Pa. 412 (1852), Commonwealth v. Church, 1 Pa. 105 (1845); Commonwealth v. Milliman, 13 Serg. & R. 402 (Pa.1825); Commonwealth v. Passmore, | Serg. & R. 217 (Pa.1814): Commonwealth v. Mock, 23 Pa.Super. 51 (1903): Commonwealth v. Plymouth Twp., 19 Pa.Super. 408 (1902). Commonwealth v. Llewellyn, 14 Pa.Super. 214 (1900), Commonwealth v. Shoemaker, 14 Pa.Super. 194 (1900); Commonwealth v. Jackson, 10 Pa. Super. 524 (1899); Commonwealth v. Cassell, | Pa.Super. 476 (1896). 2" Commonwealth v. Linn, 158 Pa. 22, 27 A. 843 (1893) (indictment charging that the defendant “did, on the public streets and highways, profanely curse and swear, and take the name of God in vain, to the evil example and to the common nuisance of the good citizens . . . of Pennsylvania” held insufficient to charge the crime in the absence of an allegation that it was done “in the presence and hearing of citizens of the Commonwealth passing and repassing on the public streets”); Delaware Div. Canal Co. v. Commonwealth, 6 Pa. 367 (1869) (carelessly maintaining canal so that water escaped and formed pools of stagnant water producing “miasmic vapors” to the nuisance of the public held indictable); Commonwealth v. Mohn, 52 Pa. 243 (1866) (being a “com- mon scold” and uttering “wicked, scandalous and infamous words” upon a public highway in the hearing of citizens with intent “to debauch and corrupt” their morals held indictable), Commonwealth v. Van Sickle, 4 Clark 104, 7 Pa.L.J. 104 (Sup.Ct. 1845) (maintaining a hog pen within the timiis of a city held indictable), Commonwealth v. McKarski, 208 Pa.Super. 376, 222 A.2d 411 (1966) (false allegation to a police officer that defendant has been struck by a truck and injured held not to constitute public nuisance). 24a Appendix—Exhibit No. 1—Judgment. “No better definition of a public nuisance has been suggested than that of an act or omission ‘which ob- structs or causes inconvenience or damage tu the public in the exercise of rights common to all Her Majesty’s subjects.’ The term comprehends a miscel- laneous and diversified group of minor criminal of- fenses, based on some interference with the interests of the community, or the comfort or convenience of the general public. It includes interferences with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond; with the public safety, as in the case of the storage of ex- plosives, the shooting of fireworks in the streets, harboring a vicious dog, or the practice of medicine by one not qualified; with public morals, as in the case of houses of prostitution, iilegal liquor establish- ments, gambling houses, indecent exhibitions, bull- fights, unlicensed prize fights, or public profanity; with the public peace, as by loud and disturbing noises, or an opera performance which threatens to Cause a riot, with the public comfort, as in the case of bad odors, smoke, dust and vibration; with public coavenience, as by obstructing a highway or a navigable stream, or creating a condition which makes travel unsafe or highly disagreeable, or the collection of an inconvenient crowd; and in addition, such unclassified offenses as eavesdropping on a jury, or being a common scold.” W. Prosser, Law of Torts $88. at 583-85 (4th ed. 1971) (emphasis added, footnotes omitted); accord, 2 R. Anderson, Wharton’s Criminal Law & Procedure, §§ 819-40 (1957).*2 This Court has used essentially this standard in “A nuisance as a criminal offense is the misconduct of the defendant or his unreasonable use of his property with the result that unreasonable annoyance, inconvenience, or injury is caused the public.” 2 R. Anderson, supra §819, at 683-84. 25a Appendix—Exhibit No. 1—Judgment. passing upon civil actions to abate a public nuisance. E. g., Common wed th v. Barnes & Tucker Co., 455 Pa. 392, 410- 14, 319 A.2d 871, 881-83 (1974) (discharge of acid mine drainage held a public nuisance), Pennsylvania SPCA v. Bravo Enterprises, 428 Pa. 350, 359-61, 237 A.2d 342, 348 (1968) (bullfighting held a public nuisance),;* Reid v. Brodsky, 397 Pa. 463, 156 A.2d 334 (1959) (conduct of taproom in residential neighborhood held a public nuisance). ** We need not consider the serious problems of vagueness which might arise from the general use of this standard in criminal prosecutions, for it is clear that the standard for determination of what constitutes a “common or public nuisance” under section 6504 is considerably less specific than that contained in section 5903, which we have al- ready found defective under Miller. Consequently, Miller forbids the use of section 6504 to criminally punish ” “Injury to the public is the essence of a public nuisance.” 428 Pa. at 360, 237 A.2d at 348. - “*“Tt has been said that a ‘fair test as to whether a business lawful in itself, or a particular use of property, constitutes a nuisance, is the reasonableness or unreasonableness of conducting the business or making the use of the property complained of in the particular locality and in the manner and under the circum- © stances of the case.” . . . It has also been said: Whether the use is reasonable generally depends upon many and varied facts. No hard and fast rule controls the subject. A use that would be rea- sonable under one set of facts might be unreasonable under another. What is reasonable is sometimes a question of law, and at other times, a question of fact. No one particular fact is con- clusive, but the inference is to be drawn from all the facts, proved whether the controlling fact exists that the use is unreasonable.” 26a Appendix—Exhibit No. 1—Judgment. expression on the basis of obscene content. Because no other basis is offered for declaring the conduct charged in the complaint to be a “common or public nuisance,” the complaint must be quashed. Having thus disposed of the criminal proceeding, we turn to the action in equity. In that section the Com- monwealth seeks an injunction against future display by appellee, MacDonald of the two films involved in this ac- tion on the ground that their exhibition constituted a public nuisance. MacDonald filed preliminary objections in the nature of a demurrer. The trial court sustained these objections and dismissed the complaint on the ground that the invalidity of the obscenity statute left “no legal basis upon which the films in question can be deter- mined to be obscene.” We affirm. [7] Preliminary objections admit, for the purpose of testing the sufficiency of the complaint, all properly pleaded facts, but not conclusions of law. Ross v. Shawmut Development Corp., .... Pa. ...., .... m.2, 333 A.2d 751, 752 n.2 (1975), Balsbaugh v. Rowland, 447 Pa. 423, 426, 290 A.2d 85, 87 (1972). The complaint contained al- legations regarding the character of the films” and the intention of MacDonald to continue displaying them. With regard to the characterization of their display as a public nuisance, it further alleged: * Because our disposition of this case rests on grounds unrelated to the content of these particular films, we need not consider these allegations. 27a Appendix—Exhibit No. 1—Judgment. “The films mentioned above have been presented by the Defendant as X-rated movies, but without notice that they are, in fact, hard core pornographic movies and the basest form of obscenity. “The display of the above films constitute a public nuisance for the following reasons: A. They graphically portray perverted sexual acts that tend to currupt and adversely affect the morals and welfare of the public; B. the owner obtains money for admission under the false pretense that the films provide some socially acceptable form of entertainment when the films rather display obscene materials not protected by the First Amendment of the Constitution of the United States, and are utterly without redeeming social value; C. no warning concerning the true nature of the ob- scene acts has been given by the Defendant prior to the entry of members of the public; D. under the law, children, when accompanied by their parents, are permitted to view the film; E. it is highly unlikely that the Commonwealth would be able to successfully and safely prevent all persons under the age of seventeen (17) years of age from viewing the said film; [and] F. the content and suggestions set forth in the films are a danger to the public health and welfare.” The Commonwealth urges three legal bases upon which it contends an injunction may be founded: section 5903(h) 28a Appendix—Exhibit No. 1—Judgment. of the Crimes Code,** the Act of June 23, 1931,”’ and the common law of public nuisance.** We shall consider these in reverse order. * 18 Pa.C.S. §5903(h) (1974). That subsection provides as follows: “(h) Injunction—The district attorney of any county in which any person sells, lends, distributes, exhibits, gives away or shows. or is about to sell, lend, distribute, exhibit, give away or show, or has in his possession with intent to sell, resell, lend, distribute, exhibit, give away or show, any obscene literature, book, maga- zine, pamphlet, newspaper, storypaper. paper, comic book, writing, drawing, photograph, figure or image. or any written or printed matter of an obscene nature, or any article or instrument of an obscene nature, may institute proceedings in equity in the court of common pleas of said county for the purpose of enjoining the sale, resale, lending, distribution, exhibit, gift or show of such obscene literature, book, magazine, pamphlet, newspaper. story- paper, paper. comic book, writing, drawing, photograph, figure or image, or any written or printed matter of an obscene nature, or any article or instrument of an obscene nature. contrary tw the provisions of this section, and for such purposes jurisdiction is hereby conferred upon said courts. A preliminary injunction may issue and a hearing thereafter be held thereon in conformity with the Rules of Civil Procedure upon the averment of the district at- torney that the saie, resale, lending, distribution, exhibit, gift or show of such publication constitutes a danger to the welfare or peace of the community. The district attorney shall not be re- quired to give bond.” * P.L. 1178. 68 P.S. §§467-73 (1965). The pertinent portions of the Act provide as follows: “Any building, or part of a building, used for the purpose of fornication, lewdness, assignation, and/or prostitution is hereby declared to be a common nuisance: and any person who maintains such a common nuisance shall be guilty of a misdemeanor, and, upon conviction, shall be sentenced to imprisonment for not more than one year. or pay a fine not exceeding one thousand dollars. or both, at the discretion of the court.” Id. § 1, 68 P.S. §467. (Footnote continued on following page) a 29a Appendix—Exhibit No. 1—Judgment. {8} A thing may be a public nuisance because it is so declared by statute, either explicitly*® or implicitly.® Alternatively, it may be declared a nuisance as a matter of common law if, though not prohibited by statute, it un- reasonably interferes with the rights of the public.*' Be- cause the statutes** referred to by the Commonwealth in- junctions independently of the common law doctrine of public nuisance, we need only consider whether the con- duct alleged in the complaint constitutes a public nuisance because it unreasonably interferes with the rights of the public. (Footnote continued from preceding page) “An action to enjoin any nuisances defined in section one of this act may be brought, in the name of the Commonwealth of Penn- sylvania, by the Attorney General thereof or by the district at- torney of the county concerned. Such action shall be brought and tried as an action in equity in the court of common pleas of the county.” Id. §3, 68 P.S. §469. * See notes 17-21 supra and accompanying text. ** See note 24 supra. ™ See Pennsylvania SPCA v. Bravo Enterprises, 428 Pa. 350, 359-61, 237 A.2d 342, 348 (1968) (bullfighting is public nuisance because proscribed by statute, even though statute does not explicitly declare it to be public nuisance). * See Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 410-14, 319 A.2d 871, 881-83 (1974), (discharge of acid mine drainage). Reid v. Brodsky, 397 Pa. 463, 156 A.2d 334 (1959) (conduct of taproom in a residential neighborhood). ® These are section 5903 of the Crimes Code and the Act of June 23, 1931. See notes |, 23, & 24 supra. 30a Appendix—Exhibit No. 1—Judgment. [9] This precise theory of common law public nuisance was urged in Grove Press, Inc. v. City of Philadelphia, 418 F.2d 82 (3rd Cir. 1969), also an action to enjoin exhibition of a motion picture. The Third Circuit, in an opinion by Judge Aldisert, held that the First Amendment forbade an injunction based upon such a theory: “We have concluded that as a_ standard for regulating First Amendment rights, neither ‘injury to the public,’ nor ‘unreasonableness,’ standing alone, is sufficiently narrow or precise to pass constitutional muster. Each is too elastic and amorphous a standard by which to restrain the exercise of free expression. What is encountered with the sprawling doctrine of public nuisance is an attempt to restrict First Amend- ment rights by means analogous to those under ‘a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.’ Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940). “The common law of public nuisance may be a perfectly valid method by which to implement a state’s police power in certain defined circumstances where, for example, it is used to restrain that which is prohibited by other constitutionally appropriate standards. It may not be used, however, both to define the standards of protected speech and to serve as the vehicle for its retraint.” Id. at 88. We agree with this analysis and therefore hold the Commonwealth is not entitled, under a theory of common law public nuisance, to the injunction it seeks. “' This disposition of the attempt to obtain an injunction based upon a theory of common law public nuisance renders it unnecessary to (Footnote continued on following page) 3la Appendix—Exhibit No. 1—Judgment. We next turn to the Commonwealth’s contention that an injunction might issue in this case under the Act of June 23, 1931. That statute authorizes an injunction against the use of any building “for the purpose of fornication, lewdness, assignation, and/or prostitution.”** The Com- monwealth urges that “lewd” is a synonym for “obscene”, citing Black’s Law Dictionary, at 1052 (4th ed. 1957),* and that the statute therefore forbids the use of a building to exhibit obscene materials. We do not agree. Far more important than mere dictionary definitions is the statutory context in which the word “lewdness” appears. See, e. g., Commonwealth v. Morgan, .... Pa. ers , 331 A.2d 444, 446 (1975); 2A J. Sutherland, Statutes ond Statutory Construction §47.16 (4th ed. C. Sands 1973). That context proscribes use of any building “for the purpose of fornication, . . . assignation, and/or prostitution.” All of these forbidden purposes involve illicit sexual conduct, thus strongly indicating a legislative intention to proscribe only purposes of this type when it (Footnote continued from preceding page) decide the dispute between the parties as to the authority of the district attorney to maintain an action in equity on such a theory. See Duggan v. Guild Theatre, Inc., 436 Pa. 191, 195, 258 A.2d 858, 860-61 (1969) (opinion announcing the judgment) (district attorney had implied au- thority to seek injunction against exhibition of obscene motion pic- ture). See note 24 supra. ® The Commonwealth fails to mention that the definition continues: “Lustful, indecent, lascivious, lecherous.” This sense of “lewd” is in accord with the construction we adopt. Moreover the statutory term is not “lewd” but “lewdness.” .-The primary definition of “lewdness” given by the Commonwealth’s own authority is “gross and wanton indecency in sexual relations.” 32a Appendix—Exhibit No. 1—Judgment. used the word “lewdness.” Such a construction has the further advantage of obviating any problems of vagueness which might be entailed by construing the term “lewdness” in a broader fashion. [10] We therefore hold that the Act of June 23, 1931, proscribes only the use of a building for the purpose of engaging in illicit sexual conduct. Because the complaint does not allege that any building is being so used, there is no basis for issuance of an injunction under the Act of June 23, 1931. [il] The final basis on which the Commonwealth seeks to predicate an injunction is section 5903(h) of the Crimes Code.*’ This section authorizes injunctive proceedings to prevent the “exhibit . . . or show of [any] obscene .. . photograph, figure or image.” However, it relies upon the definition of obscene con- tained in section 5903(b),** which we have held inade- quate to satisfy the Miller standard. Consequently, if that standard applies to injunctive proceedings as well as criminal prosecutions, the Commonwealth’s action must fail. We conclude that the Miller standard does apply to injunctive proceedings. Therefore, the Commonwealth is not entitled to an injunction under section 5903(h) in the absence of a definition of obscenity which complies with the requirements of Miller. “ See generally Grayned v. Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). and cases there cited: Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). We clearly must construe this statute in light of the vagueness doctrine because it makes the cc‘aduct described criminal in addition to authorizing injunctive proceedings. g * See note 23 supra. ™ See note | supra. 33a Appendix—Exhibit No. 1—Judgment. The starting point for our analysis must be Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed. 2d 446 (1973) [hereinafter Paris Adult Theatre]. Decided the same day as Miller, Paris Adult Theatre was a case in which the Georgia courts had concluded that exhibition of two motion pictures should be enjoined on the ground of ob- scenity. After rejecting the various arguments of the petitioners to the effect that their conduct was immunized from regulation by the First Amendment, the Supreme Court vacated the judgment and remanded for further proceedings: “[N]othing precludes the State of Georgia from the regulation of the allegedly obscene material exhibited in Paris Adult Theatre I or II, provided that the ap- plicable Georgia law, as written or authoritatively in- terpreted by the Georgia courts, meets the First Amend- ment standards set forth in Miller v. California, supra, [413 U.S.] at 23-25 [93 S.Ct. at 2614-2616]. The judgment is vacated and the case remanded to the Georgia Supreme Court for further proceedings not inconsistent with this opinion and Miller v. California, supra. See United States v. 12 200-Foot Reels of Super 8mm. Film, [413 U.S.] at 130 n. 7 [93 S.Ct. at 2670 n. 1, 413 U.S. at 69-70, 93 S.Ct. at 2642 (emphasis added). Both the language emphasized in the above passage and the citation to United States v. 12 200-ft. Reels of Super 8mm. Film® clearly indicate that the Miller standard is fully applicable to injunctive proceedings such as that in- volved in Paris Adult Theatre. This conclusion is bolstered by the fact that it represents the consensus of all jurisdic- tions which have considered the standard to be applied in ™ The pertinent portion of, the cited footnote is set forth in text at page 298 supra. 34a Appendix—Exhibit No. 2—Docket Entries. injunctive proceedings since the decision in Paris Adult Theatre. See Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (1973), cert. denied, 418 U.S. 939, 94 S.Ct. 3227, 41 L.Ed.2d 1173 (1974), Hall v. Commonwealth, SOS S.W.2d 166 (Ky. 1974); Mangum v. Maryland State Board of Censors, 273 Md. 166, 328 A.2d 283 (1974), State ex rel. Wampler v. Bird, 499 $.W.2d 780 (Mo.1973), State ex rel. Keating v. A Motion Picture Film Entitled “Vixen”, 35 Ohio St.2d 215, 301 N.E.2d 880 (1973); Art Theatre Guild, Inc. v. State, Tenn., 510 S.W.2d 258 (1974). Because the definition of obscenity applicable in proceedings under section 5903(h) is inadequate to satisfy the Miller standard, the First Amendment forbids issuance of any injunction under that section unless and until an adequate definition is supplied by the General Assembly. Order quashing criminal complaint affirmed. Decree dismissing complaint in equity affirmed. Each party pay own costs. EAGEN, O'BRIEN and NIX, JJ., concur in the result. JONES, C. J., dissents. MANDERINO, J., did not participate in the considera- tion or decision of these cases. Exhibit No. 2. DOCKET ENTRIES. Complaint in Equity filed. Rule filed. And now, to wit, this 30th day of April, 1974, a rule is granted upon the Defendant, Charles McDonald, to show cause why a Preliminary Injunction and the other relief requested should not be granted as prayed for. 35a Appendix—Exhibit No. 2—Docket Entries. This rule shall be returnable on the 13th day of May, 1974, By the Court, Robert I. Shadle, Judge. May 1, 1974, Served the within complaint in Equity upon the defendant, Charles McDonald. So answers, Oliver C. Nace, Sheriff. May 10, 1974, Preliminary Objections filed. Harold N. Fitzkee, Jr. and Donn I. Cohen, Attorneys for Defendant. June 7, 1974, Opinion and Order filed. And now, to wit, this 7th day of June, 1974, defendants preliminary objection in the nature of a demurrer to plaintiff's complaint is sustained and the complaint is dismissed. An exception is noted for plaintiff. By the Court, Robert I. Shadle, Judge. (Vide Opinion and Order filed). August 5, 1974, Certiorari to the Court of Common Pleas of York County, Penna. from the Commonwealth of Pennsylvania Supreme Court, Returnable Forthwith, Rule on the Appellee, to appear and plead on the return-day of the writ to No. 34 May Term 1974. Witness, The Honora- ble Benjamin R. Jones, Doctor of Laws, Chief Justice of our said Supreme Court at Harrisburg, the 11th day of June in the year of our Lord one thousand nine hundred and seventy four. Certified from the records of the Court of Common Pieas of York County, Pennsylvania this 14th day of August, A. D., 1974. SAMUEL F. MEISENHELDER, (Seal) Prothonotary. 36a Appendix—Exhibit No. 3—Complaint. Served the within Complaint in Equity upon Charles McDonald the within named defendant by handing to and leaving with him a true and attested copy of the same at Yorktowne Motor Inn (Room 827), York, Penna. at 9:00 O’clock A.M., May 1, 1974 and informed him of the con- tents thereof. Sheriff’s Costs $11.23 Paid. So Answers, Oliver C. Nace, Sheriff of York County. Sworn to this 17th day of May, 1974. S. F. MEISENHELDER, Prothonotary. Exhibit No. 3. COMPLAINT. (Filed April 30, 1974.) 3 The Plaintiff is the Commonwealth of Pennsylvania, and this action is filed by Donald Ly Reihart, District At- torney of York County, on behalf. of the said Plaintiff. 2. The Defendant is Charles McDonald, an adult individual, and owner of the premises located at 30 East Jackson Street, York, York County, Pennsylvania, known as the Southern Theatre. 37a Appendix—Exhibit No. 3—Complaint. 3. On April 17 and April 18, 1974, the Defend int obtained, advertised and displayed two films. These films were en- titled “Deep Throat” and “The Devil and Miss Jones”’. Both these films were shown as part of a double feature at the Southern Theatre in York, York County, Penn- sylvania. 4. A. “Deep Throat” is a sound motion picture in color with a running time of about one hour. The film portrays a woman who repeatedly perpetrates acts of fellatio. These acts are clearly displayed. In one scene, two nude males and one nude female engage in various sexual acts including cunnilingus and fellatio. In this movie there is the repeated showing of human male and female genitals in a state of sexual excitement. B. The sexual scenes depicted appeal to the prurient in- terests, are patently offensive and have no serious literary, artistic, political or scientific value. C. The said movie is obscene as obscenity has been defined by the Supreme Court of the United States in Miller vs. California, 93 S. Ct. 2607 (1973), and constitutes hard core pornography. 5. A. “The Devil and Miss Jones” is also a sound motion picture in color with a running time of approximately one hour. This film is about a virgin who committed suicide and was sent to a “reviewer” in hell. It was the reviewer’s purpose to determine what should happen to Miss Jones. 38a Appendix—Exhibit No. 3—Complaint. Miss Jones isudicated she wanted to go back and live for a little more time “Just for lust”. She was introduced to a man who called himself the “teacher”. The teacher taught her various sexual acts. In film she graphically engages in acts of fellatio, cunnilingus and in one scene she sucks upon the head of a live snake. This film has scenes where fruit, such as apples and grapes, are placed into the vagina and rectum, and then removed and eaten. B. The sexual scenes depicted appeal to the prurient in- terests, are patently offensive and have no serious literary, artistic, political or scientific value. C. The said movie is obscene as obscenity has been de- fined by the Supreme Court of the United States in Miller vs. California, 93 S. Ct. 2607 (1973), and constitutes hard core pornography. 6. The films mentioned above have been presented by the Defendant as X-rated movies, but without notice that they are, in fact, hard core pornographic movies and the basest form of obscenity. 7. The Defendant desires to show these films and there is evidence that copies are available to him. 8. The display of the above films constitute a public nuisance for the following reasons: A. They graphically protray perverted sexual acts that tend to corrupt and adversely affect the morals and wel- fare of the public; 39a Appendix—Exhibit No. 3—Complaint. B. the owner obtains money for admission under the false pretense that the films provide some socially accep- table form of entertainment when the films rather display obscene materials not protected by the First Amendment of the Constitution of the United States, and are utterly without redeeming social value; C. no warning concerning the true nature of the obscene acts has been given by the Defendant prior to the entry of members of the public; D. under the law, children, when accompanied by their parents, are permitted to view the film; E. it is highly unlikely that the Commonwealth would be able to successfully and safely prevent ail persons under the age of seventeen (17) years of age from viewing the said film, F. the content and suggestions set forth in the films are a danger to the public heaith and welfare. 9. On April 18, 1974 following the most recent procedural guidelines set down by the Supreme Court of the United States, the above films were seized pursuant to a search warrant lawfully obtained by a member of the York City Police Department. The Defendant was charged with a violation of Sections 5903 and 6504 of the Crimes Code of Penn«ylvania. 10. The new Supreme Court guidelines require an adversary hearing on a question of obscenity to be held promptly. 40a Appendix—Exhibit No. 3—Complaint. Under the criminal procedures currently in effect in the Commonwealth of Pennsylvania, there is no prompt way that an adversary hearing can be established by the Commonwealth. 12. The sale, re-sale, lending, distribution, exhibition, gift or display of such films as set forth above constitutes a danger to the welfare and peace of the community. 13. There is no adequate remedy at law. 14. The District Attorney of York County has standing to bring this suit by virtue of the Act of July 5, 1957, P.L. 484, No. 275, Sec. 1; the Act of December 6, 1972, P.L., No. 334, Sec. 1; and as a necessary power of the Office of District Attorney. WHEREFORE, the Plaintiff prays: A. That the preliminary hearing be scheduled prompt- ly to determine whether the films set forth above are ob- scene; B. that a preliminary hearing be scheduled promptly to determine whether the showing of said films constitutes a public nuisance; C. that following such a hearing that a preliminary injunction issue barring the Defendant from exhibiting said films until a final hearing can be held; 4la Appendix—Exhibit No. 3—Complaint. D. that following an appropriate hearing the Court grant an injunction to enjoin and forever bar the said Devendant from advertising and displaying to the public the films above described; E. such other equitable relief as the Court deems necessary and proper. DONALD L. REIHART, District Attorney of York County. Commonwealth of Pennsylvania, es.: County of York. Personally appeared before me, Clair R. Stine, Clerk of Courts in and for the said County and State, Donald L. Reihart, Esq., District Attorney in and for York County, Pennsylvania, who, being duly sworn according to law, deposes and says that the facts set forth in the foregoing Answer are true and correct to the best of his knowledge, information and belief. DONALD L. REIHART, ESQ., District Attorney. Sworn and subscribed to before me this 29th day of April, 1974. CLAIR R.. STINE, (Seal) Clerk of Courts. 42a Appendix—Exhibit No. 4—Preliminary Objections. Rule. AND NOW, TO WIT, this 30 day of April, 1974, a Rule is granted upon the Defendant, Charles McDonald, to show cause why a Preliminary Injunction and the other relief requested should not be granted as prayed for. This Rule shall be returnable on the 13 day of May, 1974. BY THE COURT, ROBERT I. SHADLE, J. Exhibit No. 4. PRELIMINARY OBJECTIONS. (Filed May 10, 1974.) PETITION RAISING QUESTION OF JURISDICTION 1. Section 5903(h) of the Pennsylvania Crimes Code, Act of December 6, 1972, P.L. ...., No. 344, Sec. 1, 18 C.P.S.A. Sec. 5903(h) (hereinafter called the “Statute”), purports to create equitable jurisdiction to enjoin the sale, resale, lending, distribution, exhibit, gift, or show of cer- tain things enumerated therein under the circumstances defined and described in the Statute. 2. The Statute does not mention, refer to, or confer jurisdiction with regard to motion pictures. 3. The Statute is unconstitutional in that it violates the Defendant’s rights under the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States. 43a Appendix—Exhibit No. 4—Preliminary Objections. 4. The procedure set forth in the Statute is uncon- Stitutional and provides no constitutional basis for an ac- tion in equity. Gundlach v. Rauhauser, 304 F. Supp. 962 (M.D. Pa., 1969). 5. The procedure adopted by the plaintiff in the within action lacks constitutional authority and provides no constitutional basis for an action in equity. Duggan v. 807 Liberty Avenue, Inc., 447 Pa. 281, 288 A.2d 750 (1972). WHEREFORE, Defendant moves Your Honorable Court to dismiss the Complaint in that this Court lacks jurisdiction. DEMURRER 6. The Complaint fails to set forth what, if any, community standards relating to the representation of sexual matters are to be followed in determining the ob- scenity vel non of the within motion pictures; unless community standards relating to the representation of sexual matters are referred to and proved, the application of the Statute to Defendant is constitutionally barred. 7. The Statute does not apply to motion pictures, and, further, is violative of the Defendant’s rights under the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States. WHEREFORE, Defendant moves Your Honorable Court to dismiss the Complaint in that it fails to state a constitutional cause of action against the Defendant. 8. The Complaint contains no allegation or allegations setting forth facts averring conduct on the part of the Defendant constituting a public nuisance. 44a Appendix—Exhibit No. 4—Preliminary Objections. 9. The Complaint fails to allege that Plaintiff has suf- fered or will suffer irreparable harm. WHEREFORE, Defendant moves Your Honorable Court to dismiss the Complaint in that it fails to set forth a cause of action in equity against the Defendant. 10. The Complaint fails to set forth a cause of action against the Defendant upon which the Plaintiff is entitled to relief or upon which the Court may act. WHEREFORE, Defendant moves Your Honorable Court to dismiss the Complaint in that it fails to set forth a cause of action against the Defendant. PETITION RAISING DEFENSE OF LACK OF CAPACITY TO SUE 11. No authority exists for the District Attorney of York County to bring this action either in the name of the Commonwealth or in his own name. WHEREFORE, Defendant moves Your Honorable Court to dismiss this action on account of Plaintiff’s lack of capacity to sue. PETITION BASED ON PRIOR STAY ORDER 12. On April 26, 1974, Your Honorable Court issued a Stay Order directing, in effect, a stay of all proceedings arising out of the showing of the motion pictures in ques- tion pending determination by Your Honorable Court of certain motions filed by the Defendant. 13. This equity action on the part of the District At- torney violates Your Honorable Court’s prior Stay Order. ° 4Sa Appendix—Exhibit No. 4—Preliminary Objections. WHEREFORE, Defendant moves Your Honorable Court to dismiss this action as violative of its prior Stay Order. In The Alternative MOTION FOR A MORE SPECIFIC PLEADING 14. The Complaint fails to set forth what, if any, community standards relating to the representation of sexual matters are to be followed in determining the ob- scenity vel non of the within motion pictures; unless community standards relating to the representation of sexual matters are referred to and proved, the application of the Statute to Defendant is constitutionally barred. WHEREFORE, in the alternative, Defendant moves Your Honorable Court to direct Piaintiff to file a more specific pleading setting forth what, if any, community standards relating to the representation of sexual matters are to be followed in determining the obscenity vel rion of the within motion pictures. Respectfully submitted, LIVERANT, SENFT AND *» COHEN, By Donn I. Cohen. GAILEY, FITZKEE AND GATES, By Harold N. Fitzkee, Jr. 46a Appendix—Exhibit No. 5—Opinion. Exhibit No. 5. OPINION. (Filed June 7, 1974.) IN THE COURT OF COMMON PLEAS Of York County, Pennsylvania COMMONWEALTH OF PENNSYL- } VANIA, > Vs. CHARLES MacD NALD. ; Civil Action No. 34 May Term, 1974 Equity Appearances: Donald L. Reihart, Esquire, District Attorney, for Plaintiff. Harold N. Fitzkee, Jr., Esquire, and Donn I. Cohen, Esquire, for Defendant. The Commonwealth of Pennsylvania, acting through the District Attorney of York County, instituted this action in equity, alleging that defendant displayed, and desires to continue to display, two motion picture films alleged by plaintiff to be obscene and to therefore constitute a public nuisance. The complaint prays that defendant be both preliminarily and permanently enjoined from such ex- hibition. The action is brought under Section 5903 (h) of the Crimes Code of December 6, 1972, P.L. ..... No. 334, 18 C. P. S. A. 5903, which prohibits exhibition of 47a Appendix—Exhibit No. 5—Opinion. obscene material as therein defined, and authorizes such injunctive proceeding to prevent such exhibition. Defen- dant filed preliminary objections to the complaint, alleg- ing, inter alia, that it fails to state a cause of action upon which relict can be granted because the statutory section upon which it is based is constitutionally invalid. The issue was submitted on briefs by both parties. In an opinion filed this date in this court in Com. v. MacDonald, et al., Criminal Action No. M-24, January Sessions, 1974, we held Section 5903 of the Crimes Code to be unconstitutional on the ground that it fails to define obscenity as required by Miller v. California, 413 U. S. 15, 37 L. Ed(2d) 419 (1973). Consequently, there being no legal basis upon which the films in question can be determined to be obscene, there is no ground upon which defendant can be enjoined from exhibiting them for that reason. Order. AND NOW, TO WIT: This 7th day of June, 1974, defendant’s preliminary objection in the nature of a demurrer to plaintiff's complaint is sustained, and the complaint is dismissed. An exception is noted for plain- tiff. BY THE COURT: ROBERT I. SHADLE, Judge. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2179%3A2. Public record. Not legal advice.