Com. ex rel. Lewis v. Allouwill Realty Corp., Inc.

• Decision Date: 29 June 1984
• Citation: 478 A.2d 1334,330 Pa.Super. 32
• Parties: COMMONWEALTH ex rel. Richard A. LEWIS, District Attorney v. ALLOUWILL REALTY CORPORATION, INC., a Pennsylvania Corporation and Godwin Heck, Jr., and Anita Heck, Trading and doing business as Maxim's Novelty Shop, Appellants. COMMONWEALTH ex rel. Richard A. LEWIS, District Attorney v. RADELLE INVESTMENT COMPANY and Godwin C. Heck, Jr., Trading and doing business as Sweden Adult Book Store, Appellant.
• Court: Pennsylvania Superior Court

Page 1334

478 A.2d 1334

330 Pa.Super. 32

COMMONWEALTH ex rel. Richard A. LEWIS, District Attorney v. ALLOUWILL REALTY CORPORATION, INC., a Pennsylvania

Corporation and Godwin Heck, Jr., and Anita Heck,

Trading and doing business as Maxim's

Novelty Shop, Appellants.

COMMONWEALTH ex rel. Richard A. LEWIS, District Attorney v. RADELLE INVESTMENT COMPANY and Godwin C. Heck, Jr., Trading and doing business as Sweden Adult Book Store, Appellant.

Superior Court of Pennsylvania.

Argued April 5, 1984.

Filed June 29, 1984.

[330 Pa.Super. 34] Malcolm M. Limongelli, Wilkes-Barre, for appellants.

Katherene E. Holtzinger, Deputy Dist. Atty., Harrisburg, for Lewis, appellee.

Before WICKERSHAM, OLSZEWSKI, and HOFFMAN, JJ.

HOFFMAN, Judge:

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

On July 29, 1982, Richard A. Lewis, District Attorney for Dauphin County, filed complaints in equity against Allouwill Realty Corp., Inc., and Anita Heck, t/d/b/a Maxim's Novelty Shop, and against Radelle Investment Co. and Godwin C. Heck, Jr., t/d/b/a Sweden Adult Book Store, to abate the use of the premises at 21 North Second Street, Harrisburg, and at 5 North Second Street, Harrisburg, respectively, as common nuisances. On August 24, 1982, the first complaint was amended to add Godwin C. Heck, Jr., as a defendant. The defendants filed separate preliminary objections on August 17-19, 1982. On August 30, 1982, after denying the preliminary objections, a motion for severance and a request for a discovery continuance, the lower court allowed the Commonwealth to begin presenting its case even though the defendants had not yet filed answers, stating that it would render its decision only after answers were filed and the defendants presented their case. The defendants filed their answers on September 10, 1982, and, on October 1, 1982, the trial concluded. On the same day, after making oral findings of fact and conclusions of law, the lower court ordered the county sheriff to padlock both premises for a one-year period. The sheriff was specifically directed to padlock only the portion of the premises used for the adult bookstores and to make arrangements with the store owners to allow them to remove any and all merchandise located within the stores. On October 4, copies of the order were served upon the defendants and posted, and the two bookstores were padlocked and chained. On October 29, 1982, these appeals were filed by Godwin C. Heck, Jr., and Anita Heck, t/d/b/a Maxim's Novelty Shop, and by Godwin C. Heck, Jr., t/d/b/a Sweden Adult Book Store. ¹

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

A common nuisance is statutorily defined as "[a]ny building, or part of a building, used for the purpose of fornication, lewdness, assignation, and/or prostitution[.]" Act of June 23, 1931, P.L. 1178, No. 319, § 1, 68 P.S. § 467. An action to enjoin a public nuisance, as defined, may be brought in the name of the Commonwealth by the district attorney of the concerned county. Id. § 469. Upon finding the material allegations of the complaint to be true, the court may order that the offending building (or part thereof) not be occupied or used for any purpose for one year. Id. § 470. Our Supreme Court has construed § 467 to "proscrib[e] only the use of a building for the purpose of engaging in illicit sexual conduct." Commonwealth v. MacDonald, 464 Pa. 435, 461, 347 A.2d 290, 304 (1975), cert. denied, 429 U.S. 816, 50 L.Ed.2d 75, 97 S.Ct. 57 (1976) (emphasis added). In the instant case, the lower court orally made the following findings of fact and conclusions of law:

FINDINGS OF FACT

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

In addition to the magazines and films offered for sale, both stores offer and display sexual paraphernalia and artificial sexual devices.

2. Both Maxim's and Sweden have, in addition to the areas where the films, magazines and sexual devices are displayed and offered for sale, a separate portion where booths are contained; approximately twenty booths in each place.

In these booths are shown films depicting explicit sexual conduct of the type previously described.

3. In a large number of booths showing the explicit sexual films, there are what are known as "glory holes" in the walls separating one booth from the other.

These holes have been described as approximately twelve inches by twelve inches and begin at the location slightly less than two feet off the floor.

4. In the month of January, 1982, officers from the Harrisburg Police Department were in both stores approximately four to six times and were able to plainly see men masturbating in the booths in both stores.

5. Officer Linden B. Gates of the Harrisburg Police Department, arrested two separate individuals; one in Maxim's and one in Sweden after individuals in a nonsolicited fashion, reached through the "glory hole" and indecently assaulted Officer Gates.

6. The interior of the store was unkept and unsanitary, with urine and semen stains throughout the booths and with the restroom facilities lacking any doors.

7. During the month of July, 1982, Officer Woodring of the Harrisburg Police Department returned to both stores and again observed acts of masturbation and was indecently assaulted.

8. A Mr. Sherman W. Buchanan testified that both establishments were centers for sexual activity and that the purpose of the "glory holes" is for sexual conduct from oral intercourse to masturbation to anal intercourse.

Mr. Buchanan also testified that the establishments are not strictly centers for homosexuals, but are also patronized by heterosexual males.

9. The acts of masturbation performed by male patrons within the store and observed by the police are a violation of Section 3127 of the Crimes Code, indecent exposure, which is a misdemeanor.

10. Harrisburg police officers were indecently touched and assaulted within Maxim's Novelty Shop and the Sweden Adult Bookstore, such conduct is a violation of Section 3126, indecent assault, of the Crimes Code, a misdemeanor in Pennsylvania.

11. Harrisburg police officers observed and encountered male patrons of the Sweden Adult Bookstore who solicited them for sexual favor or sexual hire for prostitution, a violation of Section 5902, a misdemeanor in Pennsylvania.

12. In a fifteen-day period, from January 13 through January 28, approximately fifteen incidents of prostitution, indecent assault, indecent exposure occurred in both the Sweden Bookstore and Maxim's Novelty Shop.

From these findings of fact, we make the following Conclusions of Law.

CONCLUSIONS OF LAW

1. The Act of June 23, 1931, M.L. 1178, 68 Purden's 467, et seq., provides that any building or part of a building used for the purposes of fornication, lewdness assignation and/or prostitution is hereby declared to be a common nuisance.

2. The establishments known as Maxim's Novelty Shop and the Sweden Adult Bookstore, Maxim's Novelty Shop is at 32 North Second Street and the Sweden Adult Bookstore at 5 North Second Street, have been and continue to be common nuisances as defined in the above statute.

By virtue of the lewd conduct occurring therein, including, but not restricted to criminal acts of open lewdness, prostitution, indecent exposure and indecent assaults.

Now the term "common nuisance" may seem somewhat inappropriate to describe these establishments and the activities that are conducted therein, but this concept of a legal nuisance reaches back into the beginnings of our common law.

In one of the few appelate [sic] decisions involving, in part, the Act of 1931, our Supreme Court, in only a few years ago in Commonwealth versus MacDonald, a 1975 decision, 464 PA 435, quoted, with approval, a definition of Dean Prosser on a public nuisance, part of which I think is quite pertinent and they say "No better definition of a public nuisance has been suggested than that of an act of ommission [sic] 'which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects.' The term comprehends a miscellaneous and diversified group of common offenses, based on some interference with the interest of community or the comfort or convenience of the general public. It includes interference with the public health, as in the case of a hog pen, the keeping of deseased [sic] animals or a malarial pond..." And then it goes on to say "with public morals as in the case of houses of prostitution, illegal liquor establishments, gambling houses, indecent exhibitions, et cetera."

There are two illustrations in the definition which might, with a little analogizing, fit Maxim's and Sweden, "the keeping of a hog pen and malarial" just as the nauseous odors of a malarial pond breeds desease [sic] and pestulence [sic], so those establishments, by their very construction, that these "glory holes," encourage and spread illegal conduct in a public store.

There should be no place in the center of the capital city of this Commonwealth for "hog pens" or "malarial ponds" or for Maxim's Novelty Shop or the Sweden Adult...