446 F.Supp. 643 (W.D.Pa. 1978), Civ. A. 77-127, Eastern Books v. Bagnoni

Docket Nº:Civ. A. 77-127
Citation:446 F.Supp. 643
Party Name:Eastern Books v. Bagnoni
Case Date:March 03, 1978
Court:United States District Courts, 3th Circuit

Page 643

446 F.Supp. 643 (W.D.Pa. 1978)

EASTERN BOOKS, F&N Enterprises, Inc. tdba the Adult Book Store, Kenneth R. Buranich tdba Cine 70, Donald N. Fetzner, Louis P. Locanto, Robert W. Zeny and Glen W. Zeny


Mario S. BAGNONI, Individually and in his official capacity as a City Council Member, et al.

Civ. A. No. 77-127 Erie.

United States District Court, D. Pennsylvania.

March 3, 1978

Page 644

W. Gustave McGeorge, Zanita Zacks-Gabriel, Erie, Pa., for plaintiffs.

Donald Rogala, Deputy City Sol., Ellen Doyle, Erie, Pa., for defendant.


KNOX, District Judge.

Plaintiffs bring this action against various members of the City Council of the City of Erie, Pennsylvania, a City of the Third Class, complaining of the passage of a certain ordinance No. 59-1977, passed by the City Council on August 24, 1977, approved by the Mayor August 26, 1977, and effective 20 days thereafter on September 14, 1977.

Plaintiffs seek to have the court enter a declaratory judgment declaring that the ordinance is unconstitutional and cannot be enforced against the plaintiff and to issue a temporary restraining order and preliminary and permanent injunctions against the enforcement of the ordinance against the plaintiffs. The American Civil Liberties Union was granted leave to file brief as amicus curiae.

The suit is brought under the Civil Rights Act, 42 U.S.C. s 1983 1 and 42 U.S.C. s 1985(3) 2 and also under various amendments to the U.S. Constitution.

At the time the suit was filed, the matter was taken before Chief Judge Weber of this court who by order dated September 14, 1977, denied plaintiffs' motion for

Page 645

temporary restraining order but directed the filing and service of the complaint. Chief Judge Weber refused the temporary restraining order because the Ordinance by its very terms did not create a penal offense which authorized summary police action and only provided for civil abatement of a public nuisance after notice, hearing, a finding of fact by the City Council and order to cease and desist and then procedure by civil enforcement in an equitable action in the Court of Common Pleas. The suit then proceeded and a motion to dismiss was filed by the defendants claiming the complaint is prolix, that the complaint fails to state a claim upon which relief can be granted and the court had no jurisdiction of the matter under paragraph 35 which was styled "pendent jurisdiction claim". After the motion was filed, briefs were received from the parties and the amicus curiae and argument was held. Thereafter the court called for additional briefs relative to the impact upon the Ordinance of the passage of Act No. 68 of 1977 by the Pennsylvania Legislature which became effective January 4, 1978, while determination of the motion to dismiss was held under advisement by the court. Additional briefs on this question have been received and the court determines that insofar as the Civil Rights Act and the Federal Constitution are concerned, the Ordinance in question is Constitutional. The court therefore finds it unnecessary to consider the question of the Constitutionality of Act 68 or its impact upon the City of Erie Ordinance in question. The question which will have to be solved by the Pennsylvania Courts is whether Act 68 preempts the field covered by the City of Erie Ordinance 59-1977. The court finds it is appropriate under the circumstances to abstain on this matter which is purely a question of supremacy of Pennsylvania law to be determined by the Pennsylvania Courts. If it is determined that the field has been preempted by Act 68, then it is for the Pennsylvania Courts to determine whether and to what extent the Ordinance is now invalid or whether it is merely supplemental to the Pennsylvania Act. See Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 77 A.2d 616 (1951) for the tests to be applied in determining these questions.

It is noted that at the present time there are no state proceedings pending in state courts relative to the validity or enforcement of this Ordinance and therefore there is no need for this court to abstain with reference to matters of Federal Constitutional Law under the holding of the U.S. Supreme Court in Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977).

We find that a case and controversy in view of the past harassment and apparent attempts to terminate plaintiffs' businesses is pending under Article III of the Federal Constitution although at the present time nothing has been threatened and no other prosecution or other action has yet been taken. We hold that in view of the history of the past harassment by the City of Erie and its officials the seeds of a ripening controversy are pending and that this would be a proper case for...

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