author: SHERTZ, Judge:

text:
    439 A.2d 1241
    COMMONWEALTH of Pennsylvania v. Guy Earl HENNEMUTH.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1981.
    Filed Jan. 14, 1982.

      Howard T. Gilfillan, Pittsburgh, for appellant.
    Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   SHERTZ, Judge:

Appellant, Guy Earl Hennemuth, upon summary conviction under the Motor Vehicle Code for operating a vehicle with excessive axle weight, was sentenced to pay $910 by a district justice. Following a hearing de novo before the Court of Common Pleas of Allegheny County, Appellant was again found guilty. In this appeal from the judgment of sentence, he asserts three grounds for reversal: (1) the trial court erred in holding him strictly liable for violation of the Code; (2) the Commonwealth failed to sustain its burden of proof; and (3) the police lacked reasonable belief, or probable cause to believe, a violation of the Motor Vehicle Code had occurred. We find no merit in any of these assertions and we therefore affirm the trial court’s judgment of sentence.

The facts of this case may be briefly summarized. Appellant was driving a truck loaded with coal when he was stopped by a state police officer working a weight detail. The officer testified at trial that the tires of the vehicle “were squashed down to the highway,” N.T. at 4, and that the coal was “heaped up in the bed of the truck.” Id. at 7. Appellant thereupon produced a weigh-master’s certificate, obtained at the coal company, which showed the vehicle’s gross weight to be 73,720 pounds. Using a portable scale, one of the weight enforcement agents of the Department of Transportation weighed the center rear axle of the truck and found it to be 5,950 pounds over the 18,000 pound permissible maximum axle weight.

Appellant first argues that where, as here, in order to assure compliance with maximum statutory weights, one has made a substantial effort to comply with the Code by weighing the vehicle on a stationary platform scale, which had been inspected and certified only three days earlier, such conduct constitutes a defense to prosecution for exceeding those statutory máximums. That is, one cannot be held strictly liable for violating the weight regulation. We disagree.

The legislature, by virtue of its police power, may define a crime so that proof of criminal intent is not necessary. Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959). The reason for such an abrogation of criminal intent has been explicated as follows by our Supreme Court:

In recent decades . . . many states have enacted detailed regulatory provisions in fields which are essentially noncriminal, e.g. pure food and drug acts, speeding ordinances, building regulations, and child labor, minimum wage and maximum hour legislation. Such statutes are generally enforceable by light penalties, and although violations are labelled crimes, the considerations applicable to them are totally different from those applicable to true crimes, which involve moral delinquency and which are punishable by imprisonment or another serious penalty. Such so-called statutory crimes are in realty an attempt to utilize the machinery of criminal administration as an enforcing arm for social regulations of a purely civil nature, with the punishment totally unrelated to questions of moral wrongdoing or guilt. It is here that the social interest in the general well-being and security of the populace has been held to outweigh the individual interest of the particular defendant.

Id., 397 Pa. at 580, 155 A.2d at 827-28. Applying a similar rationale, this Court has stated:

Whether a given statute is to be construed as requiring criminal intent is to be determined by the court, by considering the subject matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature.... The legislature may define a crime so that proof of criminal intent is not necessary.

Commonwealth v. Black, 251 Pa.Super.Ct. 539, 542, 380 A.2d 911, 913 (1977) (citation omitted).

Bearing in mind these principles, we turn to the then pertinent Motor Vehicle Code Sections. Section 4945 provided: “(.A)ny person operating a vehicle or combination with a weight on an axle or pair of axles exceeding the maximum axle weights allowed by section 4943 ... is guilty of a summary offense.” Section 4943(a) provided: “No motor vehicle . . . shall when operated upon a highway, have a weight ... in excess of ...”

We note first that the statute uses the language “any person ” and “no motor vehicle ” without qualification. Given the obvious purpose of the statute, i.e. to regulate the weight of motor vehicles in order to prevent damage to public roads and to insure the safety of persons travelling over them, See, Commonwealth v. Tirpak, 271 Pa.Super.Ct. 357, 413 A.2d 705 (1979), Commonwealth v. Burall, 146 Pa.Super.Ct. 525, 22 A.2d 619 (1941), it is evident that the legislature intended precisely what the words “any person” and “no motor vehicle” unequivocally state. Anyone, regardless of intent, who operates a motor vehicle the gross axle weight of which exceeds that allowed by statute, is guilty of a summary offense. Had the legislature intended to punish only those persons who acted with criminal intent, it would have so stated. By excluding all reference to terms such as “knowingly,” “willfully,” “intentionally”, etc., the legislature intended to prohibit absolutely the act of operating an overweight vehicle. See Appeal of Da Pra, 425 Pa. 94, 227 A.2d 491 (1967); Koczwara, 397 Pa. at 583, 155 A.2d at 829. By including the reference to “any person” the legislature intended to impose criminal sanctions on any person who violated the statute. See e.g., D’Ambrosio v. City of Philadelphia, 354 Pa. 403, 47 A.2d 256 (1946) (construing language “no person” as used in the Motor Vehicle Code to include minors).

In addition to the purpose of the statute and its plain language, the fact that it promulgates a regulatory scheme, or, in the language of Koczwara, “social regulations of a purely civil nature,” Id. 397 Pa. at 580, 155 A.2d at 827, and the fact that it establishes reasonable fines commensurate with the degree of infraction, leads us to conclude that the legislature intended the statute to be enforced without regard to criminal intent and we so hold.

With respect to Appellant’s second argument, that the Commonwealth did not sustain its burden of proof beyond a reasonable doubt, the record simply does not support such a contention. The Commonwealth need not prove the accuracy of Commonwealth road scales in order to prove its case beyond a reasonable doubt. Commonwealth v. Snyder, 50 D & C 2d 268 (1970) (arresting officer’s testimony and his certification as to weight of the truck mandates affirmance where the officer testified in contradiction of defendant’s testimony that the scales were inaccurate because the approaches were not level); Commonwealth v. Bell, 40 D & C 2d 433 (1966) (weighing officer’s testimony and certificate of weight constitute prima facie evidence of overload; defendant has burden of proving scales inaccurate). Appellant nonetheless argues that given the discrepancy in weight recorded on the Commonwealth’s scale as compared with the coal company scale, there were present five factors which necessitated proof by the Commonwealth of the accuracy of the Commonwealth’s scale. We reject such a contention. The Commonwealth introduced the testimony of the state trooper, and of the Department of Transportation agents, who were certified weighmasters, to the effect that the axle weight violated the statutory maximum. In addition, the Commonwealth introduced evidence showing its scale to be currently certified. Whether Appellant is arguing sufficiency of the evidence or weight of the evidence is unclear. Under either standard, however, we find no merit based upon our review of the record.

In his third and final argument, Appellant contends that the action of the state trooper, in stopping the truck, was not predicated upon reasonable belief, or upon probable cause to believe, that the Motor Vehicle Code had been violated. Once again, we disagree.

In Commonwealth v. Caporiccio, 210 Pa.Super.Ct. 230, 232 A.2d 42 (1967), this Court stated:

“It is the police officer’s duty, under the Vehicle Code, based on his experience in truck weights, to make an estimate, and if the physical facts are such, as in this case, to indicate that the weight is beyond the permissible limits, the truck must be weighed to ascertain, if the truck is, in fact, in violation of the law.”

Id., 210 Pa.Super. at 232, 232 A.2d at 44. See also, Commonwealth v. Burrell, 286 Pa.Super.Ct. 502, 429 A.2d 434 (1981) (spot check for Motor Vehicle Code Violation illegal; police may stop automobile if they reasonably suspect possible violation).

The record reveals that the state trooper who stopped Appellant’s truck had 13 years experience working weight details. While so engaged in this instance, he observed the truck which was “heavily loaded”, N.T. at 4, with coal “heaped up in the bed”, Id. at 7, in a way which was not “normal” Id. at 7. In addition, the officer stated: “The tires were squashed down to the highway and it was this officer’s opinion that he was in violation of the particular weight class”, Id. at 4. Under these circumstances, we hold that the state trooper did have an “articulable and reasonable suspicion” sufficient to permit him to stop the vehicle in question. Commonwealth v. Caporiccio, 210 Pa.Super. at 232, 232 A.2d at 44.

Judgment of sentence affirmed.

DiSALLE, J., concurs in the result.

Decision was rendered prior to DiSALLE and SHERTZ, JJ., leaving the bench of the Superior Court of Pennsylvania.

      . Pursuant to 75 Pa.Cons.Stat.Ann. § 4945(b) (Purdon 1977).

      . Although Appellant filed no post-trial motions, the record reveals that the lower court did not comply with Rule 1123(c), Pa.R.Crim.P. ' “It is because of the misconception regarding the applicability of Rule 1123 to the summary proceedings by both appellant and the lower court that we must decline to find a knowing and intelligent waiver by appellant in the instant case for his failure to file post trial motions.” Commonwealth v. Koch, 288 Pa.Super.Ct. 290, 296, 431 A.2d 1052, 1056 (1981). While the usual remedy in such instances has been to remand for filing of post-trial motions, this Court can reach the merits where the nature of the offense, the facts and circumstances of the case, and judicial economy so permit. Id., 288 Pa.Super. at 297, 431 A.2d 1056.

      . The maximum gross weight allowed by the Code was 73,280 pounds. 75 Pa.Cons.Stat.Ann. § 4941 (Purdon 1977).

      . 75 Pa.Cons.Stat.Ann. § 4943(a) (Purdon 1977).

      . Both sections have since been amended.

      . Appellant cites the following factors in support of this assertion:
      1. Constant, rough use of the portable scales employed by the state ...;
      2. The slant of the road bed which may have affected the accuracy of the scale . ..;
      3. The apparent unfamiliarity of Commonwealth’s agents with bogie-system axles ...;
      4. The possible failure by Commonwealth’s agents to make axle-to-axle measurements ...;
      5. The relative inaccuracy of portable scales when compared to stationary scales ....
      Brief for Appellant at 14—15. Our review of the record reveals that testimony elicited by Appellant did not establish numbers 1, 2, 4 and 5. He also failed to establish the relevance of number 3. Therefore, Appellant did not rebut the prima facie showing of guilt, by casting doubt on the accuracy of the Commonwealth’s scales, as he contends.

      . The test of sufficiency of the evidence is whether, accepting as true all the evidence presented by the prosecution and all reasonable inferences therefrom, upon which the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime. Commonwealth v. Smith, 283 Pa.Super.Ct. 360, 423 A.2d 1296 (1981).

      . Before a new trial can be awarded on the ground that the verdict is against the weight of the evidence, it must appear from the record that the verdict of the trier of fact was “so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity.” Commonwealth v. Barnhart, 290 Pa.Super.Ct. 182, 185, 434 A.2d 191, 192 (1981).

      . Appellant has asked this Court to “reverse” on this basis. Brief for Appellant at 19. The appropriate relief, were we to decide this issue favorably to Appellant, would be to suppress the evidence of the illegal stop. See, e.g., Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1315 (1978), Commonwealth v. Lehman, 265 Pa.Super.Ct. 480, 402 A.2d 539 (1978).

      . It should be noted that we are here confronted with a regulatory stop in which the state trooper exercised discretion in that he singled out particular vehicles for weighing, thus necessitating an articulable and reasonable suspicion that the truck was indeed overweight. See, Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).


source: Caselaw Access Project

license: Public Domain

text:
    439 A.2d 1245
    COMMONWEALTH of Pennsylvania v. Robert C. ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1981.
    Filed Jan. 14, 1982.

      Howard T. Gilfillan, Pittsburgh, for appellant.
    Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   SHERTZ, Judge:

Appellant, Robert C. Anderson, upon summary conviction under the Motor Vehicle Code for operating a vehicle with excessive axle weight, was sentenced to pay $710 by a district justice. Following a hearing do novo before the Court of Common Pleas of Allegheny County, Appellant was again found guilty. In this appeal from the judgment of sentence, he asserts three grounds for reversal: (1) the trial court erred in holding him strictly liable for violation of the Code; (2) the Commonwealth failed to sustain its burden of proof; and (3) the police lacked reasonable belief, or probable cause to believe, a violation of the motor vehicle code had occurred. We find no merit to any of these assertions and we therefore affirm the trial court’s judgment of sentence.

The facts of the case may be briefly summarized. Appellant, while driving a tri-axle vehicle, was stopped by a state trooper working in conjunction with two weight enforcement agents of the Department of Transportation. The state trooper testified at trial that the vehicle driven by Appellant “was loaded with coal and the tires being squashed out and heaped up in the bed of the truck was coal and it was this officer’s opinion that he was in violation of excessive weights.” N.T. at 6.

At the time of the stop Appellant had a weighmaster’s slip showing a gross weight of 73,260 lbs. or 20 pounds under the statutory maximum. However, when weighed by one of the Department of Transportation enforcement agents, the truck registered at 75,000 lbs. gross weight and the third axle registered more than 22,600 lbs. Appellant was issued a citation for exceeding the 18,000 lb. permissible maximum axle weight.

Appellant’s argument on appeal duplicates that of the appellant in Commonwealth v. Hennemuth, 294 Pa.Super. 360, 439 A.2d 1241 (1982). For the reasons therein set forth, we affirm the judgment of sentence.

DiSALLE, J., concurs in the result.

Decision was rendered prior to DiSALLE and SHERTZ, JJ., leaving the bench of the Superior Court of Pennsylvania.

      . Pursuant to 75 Pa.Cons.Stat.Ann. § 4945(b) (Purdon 1977).

      . Although Appellant filed no post-trial motions, the record reveals that the lower court did not comply with Rule 1123(c), Pa.R.Crim.P. “It is because of the misconception regarding the applicability of Rule 1123 to the summary proceedings by both appellant and the lower court that we must decline to find a knowing and intelligent waiver by appellant in the instant case for his failure to file post trial motions.” Commonwealth v. Koch, 288 Pa.Super.Ct. 290, 296-97, 431 A.2d 1052, 1056 (1981). While the usual remedy in such instances has been to remand for filing of post-trial motions, this Court can reach the merits where the nature of the offense, the facts and circumstances of the case, and judicial economy so permit. Id., 288 Pa.Super. at 296-97, 431 A.2d 1056.

      . See 75 Pa.Cons.Stat.Ann. § 4941 (Purdon 1977).

      . See 75 Pa.Cons.Stat.Ann. § 4943(a) (Purdon 1977).

      . Appellant, driving his own truck, was stopped and cited at the same time as the Appellant in Hennemuth. The cases were tried together before the Court of Common Pleas but were not consolidated for appeal. Appellant and Hennemuth were represented by the same attorney who filed identical briefs in these appeals.


author: PER CURIAM:

text:
    439 A.2d 1247
    Louise E. BRACKEN, Appellant, v. James E. BRACKEN, Jr. and Davy Bracken, Inc.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1981.
    Filed Jan. 14, 1982.

      John W. Pollins, III, Greensburg, for appellant.
    Bernard F. Scherer, Latrobe, for appellees.
    Before BECK, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

This is an appeal from the Order of the lower court en banc which, pursuant to Appellees’ Preliminary Objections, dismissed five of the six counts of Appellant’s Complaint in Equity against her estranged husband and the corporation in which both have an interest. Specifically, the Order (1) dismissed the counts for a mandatory injunction, stockholders derivative action and division of marital property, (2) dismissed with leave to amend the count requesting a constructive trust, (3) dismissed with leave to file a separate proceeding in law an assumpsit count, and (4) dismissed the preliminary objections to the count requesting partition of marital property.

Although not raised by either party, we will raise the question of appealability of the lower court’s Order sua sponte, as neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Tunstall v. Penn Federal Savings and Loan Association, 287 Pa.Super.Ct. 511, 430 A.2d 1007 (1981); Mitchell v. Center City Cadillac, 287 Pa.Super.Ct. 350, 430 A.2d 321 (1981).

This court has jurisdiction over “all appeals from final orders of the courts of common pleas.” Act of July 9,1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742 (effective June 27, 1978) (emphasis added). “In determining what constitutes a final order we . . . look to ‘a practical rather than technical construction’ of an order.” Tunstall v. Penn Federal Savings and Loan Association, id., 287 Pa.Super. at 514, 430 A.2d at 1009, quoting Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citation omitted). A final order is an order which either ends the litigation or disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Tunstall v. Penn Federal Savings and Loan Association, supra; Mitchell v. Center City Cadillac, supra.

An order dismissing some but not all counts of a multi-count complaint is interlocutory, as appellant has not been put “out of court.” Evans v. Government Employees Insurance Company, 291 Pa.Super.Ct. 342, 435 A.2d 1258 (1981); Mitchell v. Center City Cadillac, supra; Bagshaw v. Vickers, 286 Pa.Super.Ct. 246, 428 A.2d 664 (1981).

Also, in Herman v. Harborcreek Township, 458 Pa. 202, 321 A.2d 653 (1974) it was held that a decree sustaining in part and overruling in part preliminary objections to a complaint was neither a final decree terminating litigation nor an interlocutory decree on the question of jurisdiction and was therefore not appealable. We note additionally that the lower court did not certify the appeal to this court, nor is this appeal authorized by statute. See 42 Pa.C.S.A. § 702.

In the instant case, the lower court dismissed five of the six counts in Appellant’s Complaint with leave to amend this Complaint, as to one of those dismissed counts. Clearly, Appellant has not been put “out of court.” Therefore, this appeal is interlocutory.

Accordingly, the appeal from the Order dated April 21, 1981 as amended May 13, 1981 is quashed.


text:
    439 A.2d 1248
    Robert Bruce TARNEF v. EUGENIA HOSPITAL and Dr. John Wozniak. Appeal of Dr. John WOZNIAK.
    Superior Court of Pennsylvania.
    Argued June 2, 1981.
    Filed Jan. 19, 1982.
    Harold B. Marcus, Philadelphia, for appellant.
    Mark Mendel, Philadelphia, for Tarnef, appellee.
    Walter J. Timby, Jr., Philadelphia, for Eugenia, appellee.
    Before McEWEN, MONTEMURO and SHERTZ, JJ.

       Shertz, J., did not participate in the consideration or decision of this case.

   PER CURIAM:

This is an appeal from an order denying a motion for new trial and judgment n.o.v. In light of the fact that the order has not been reduced to judgment and docketed, we cannot consider the merits of appellant’s contentions. “An order denying a motion for a new trial . . . does not constitute an appealable order.” Pa.R.A.P. 301(c). Therefore, this appeal is premature and must be quashed. Slagter v. Mix, 441 Pa. 272, 272 A.2d 885 (1971); Richard v. Chester Extended Care Center, 287 Pa.Super. 289, 430 A.2d 290 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa.Super. 562, 424 A.2d 952 (1981).

The appeal is quashed.

      . Neither appellant nor appellee filed a praecipe that the lower court’s order should be reduced to judgment and docketed.


text:
    439 A.2d 1249
    Carmella A. POLLACE, Appellant, v. WEST AMERICAN INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1981.
    Filed Jan. 19, 1982.
    Peter J. Verderame, Langhorne Manor, for appellant.
    Robert A. Naragon, Doylestown, for appellee.
    Before CERCONE, President Judge, and HESTER, CA-VANAUGH, WICKERSHAM, McEWEN, WIEAND, BECK, MONTEMURO and POPOVICH, JJ.
   PER CURIAM:

The instant appeal was taken from an order of the lower court sustaining preliminary objections and dismissing one count of a two count complaint. There is no appeal as a right from such an interlocutory order, nor has permission for the appeal been granted. See Pa.R.A.P. 311, 312,1301 et seq. The appeal is therefore quashed and the case remanded to the lower court for proceedings on the complaint’s remaining count. Jurisdiction of this Court is relinquished.

Quashed and remanded.


text:
    439 A.2d 1249
    COMMONWEALTH of Pennsylvania v. Jeffrey FARRELL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1981.
    Filed Jan. 22, 1982.
    Leonard I. Sharon, Pittsburgh, for appellant.
    Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   PER CURIAM:

The judgment of sentence in the above-captioned criminal action is vacated, and the action is remanded for an eviden-tiary hearing pertaining to the averment in appellant’s motion for new trial that trial counsel was ineffective. If the lower court concludes that trial counsel was effective, it may dismiss the motion for new trial and re-instate the judgment of sentence, after which appellant may file a new appeal in this Court. If the trial court finds that trial counsel was ineffective, however, it shall enter an order awarding a new trial.


author: BECK, Judge:

text:
    440 A.2d 514
    PENN CLAIR CONSTRUCTION COMPANY, a Pennsylvania Corporation, v. EDEN ROC COUNTRY CLUB, A Pennsylvania Non-Profit Corporation, v. Harry Alan SHERMAN, Robert F. Rainey, Paul Blank, Trustees of the Eden Roc Country Club Trust Fund, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1981.
    Filed Dec. 18, 1981.

      Before WICKERSHAM, BECK and WIEAND, JJ.
   BECK, Judge:

This is an appeal from an order refusing to open judgment by default entered against defendants/appellants.

The basic facts are demonstrated by the following chronology:

June 1, 1977 Complaint filed
July 6, 1977 Preliminary Objections to Complaint
August 19,1977 Answer to Preliminary Objections
June 23, 1978 Preliminary Objections Dismissed for failure to prosecute
October 2, 1978 Judgment by Default entered on praecipe of appellee
September 10, 1979 Petition to Open Judgment by Default filed by appellants

The Petition to Open filed by appellants recites, and appellants were able to show by deposition, that they initially retained the firm of Waltz and Bergman, which firm assigned Henry B. Waltz, Jr. to represent appellants. Henry B. Waltz, Jr. died on December 26, 1977, after which the firm “turned over the file” to Irving L. Bloom, Esquire. Irving L. Bloom, Esquire permitted judgment by default to be entered against appellants with full knowledge that said judgment would be entered.

The Petition to Open further recites that “Defendants have a meritorious defense to the action” and alleges certain facts averred to present such a defense.

On appeal, the only claim raised by appellants which was also presented to the court below is that a default judgment cannot be entered upon the consent of the attorney for the party against whom the judgment is entered unless express consent of that party is demonstrated of record.

A Petition to Open a judgment is addressed to the sound discretion of the trial judge and the decision of the trial judge will not be disturbed absent a showing that there was an error of law affecting the decision or that there was an abuse of discretion.

In the instant case, we find that the en banc court below correctly applied the law and that there has been no abuse of discretion. The order appealed from is therefore affirmed.

As pointed out in the opinion of the lower court, there are three basic requirements which must be addressed in a petition to open a judgment. These are that the petitioner has shown due diligence under the circumstances in the filing of the petition, the failure to file a timely answer is shown to be reasonably explained or due to excusable neglect and a meritorious defense to the action is fully alleged. In the instant case, we do not reach the question of whether the facts alleged by appellants set forth a meritorious defense to appellee’s action in ejectment in light of the fact that neither of the other two prerequisites has been satisfied.

First, neither the Petition filed with the court below nor the brief filed in this court addresses the issue of due diligence in the filing of Petition to Open. Docket entries indicate that notice of entry of the judgment was sent to defendants on October 2, 1978. Trustee appellants admit to actual knowledge of the entry of judgment no later than March of 1979. Thus the very minimum delay in acting to challenge the judgment entered is shown to be a delay of six months. This clearly does not show “due diligence” on the part of appellants in acting to protect their rights, but on the contrary demonstrates that absent a showing to the court of good reasons for such delay, which reason has not even been alleged, appellants slept on their rights and thus waived any claim to any defect in the judgment not appearing of record.

Nonetheless, had the court been fraudulently induced to enter a judgment, as would be the case where a consent judgment had been entered upon a fraudulent representation of authority, this court would permit wide latitude in the assertion of such a claim. In such a case, the affirmative representation made would be the only subject for proof and would not require extensive trial on the collateral matter. Here, however, it is the silence of the parties and of their attorney which has resulted in the entry of judgment. To determine the relative responsibility for the delay in asserting a defense to the action would require a full scale trial of what is in effect a malpractice claim asserted against the attorney. In this instance, the appellee has demonstrated patience in affording appellants every opportunity to assert a defense, and is very far from having taken a “snap” judgment. Appellee may not be subjected to further delay for trial of claims between the defendants and attorneys relating to matters which may in no way be laid at the door of appellee. Finally, although justice certainly requires that we ensure that appellants not be made the victims of judgments lightly entered, our overburdened courts may not be required to endlessly reopen judgments validly entered in civil actions in order to determine claims between parties and their attorneys. Appellants must be relegated to their legal remedies against their attorney.

Order affirmed.

WIEAND, J., concurs in the result.

      . Appellants do not discuss the relationship of attorney Bloom to the firm retained by them nor do they allege that attorney Bloom was unauthorized to act for them. Such a claim is, however, suggested in appellants’ brief in the course of arguments not raised below (see footnote 2, infra ). For the purpose of this appeal, relating solely to the Petition to Open filed with the court below, any such claim has been waived and it must be taken as fact that attorney Bloom was the authorized attorney for appellants.

      . For the first time on this appeal, appellants attempt to raise the following issues:
      (a) That the judgment as entered against Harry Alan Sherman, Robert F. Rainey and Paul Blank as individuals is void from the face of the record in that none was served as an individual.
      No Petition to Strike the Judgment for defect appearing of record has ever been filed in this action, and this issue is therefore not before this court.
      (b) That default judgment against Eden Roc Country Club is “void or voidable” in that the record shows that said defendant was never served and appellant Eden Roc Country Club now claims that Waltz and Bergmen were not authorized to enter appearance for said defendant.

        This claim that entry of appearance was not authorized was not raised by Eden Roc Country Club in the court below and has therefore been waived. This issue is therefore not before this court.
      (c) That the court below should have “taken judicial notice” of record discrepancies in the said default judgment even though such discrepancies were not raised by petition.
      Neither the lower court nor this court is required to investigate the record in search of claims not raised by the parties. On the contrary, the courts have jurisdiction only to determine the matters validly presented to them. See e.g., American Vending Co., Inc. v. Brewington, 289 Pa.Super. 25, 432 A.2d 1032, note 5 at 1036 (1981). Defects in judgments appearing of record are subject to attack by Motion to Strike. No such motion was filed in this action.

      . This claim on appeal is presented in a form of legal claim not presented to the lower court. However, the facts on which this claim is based are those which were the subject matter of the Petition to the lower court. It is therefore validly presented to this court for review.

      . Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Triolo v. Philadelphia Coca Cola Bottling Co., 440 Pa. 164, 270 A.2d 620 (1970); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970).

      . Zellman v. Fickenscher, 452 Pa. 596, 307 A.2d 837 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); King v. Evans, 281 Pa.Super. 219, 421 A.2d 1228 (1980); Schutte v. Valley Bargain Center, Inc., 248 Pa.Super. 532, 375 A.2d 368 (1977).

      . For a discussion of cases finding neglect inexcusable as opposed to those finding neglect excusable, see Peoples National Bank of Susquehanna County v. Hitchcock, 278 Pa.Super. 375, 420 A.2d 589, 592 (1980). Settlement negotiations, put forth by original counsel as a reason for his deciding to acquiesce in entry of default judgment, have uniformly been held to provide an inadequate reason for failing to answer the complaint. See Kennedy v. Black, 492 Pa. 397, 424 A.2d 1250 (1981).

      . See e.g., Ecumenical Enterprises v. Nadco Construction, Inc., 253 Pa.Super. 386, 385 A.2d 392 (1978) (need not try case on the merits in order to open judgment, but facts must be set forth with sufficient specificity to show meritorious defense is asserted) and cf. Bell Federal Savings & Loan Assn. v. Laura Lanes, Inc., 291 Pa.Super. 395, 435 A.2d 1285 (1981).

      . A defect in judgment appearing from the face of the record is subject to attack by Motion to Strike the judgment filed within a reasonable time after discovery of the defect. See e.g., Main Line

        Abstract Co. v. Penn Title Insurance Co., 282 Pa.Super. 545, 423 A.2d 379 (1980). No issue relating to defects of record is presented, or determined, in this appeal. See note 2 supra.

      . See e.g., Senyshyn v. Karlak, 450 Pa. 535, 299 A.2d 294, 296 (1973); Starling v. West Erie Ave. Bldg. & Loan Assn., 333 Pa. 124, 3 A.2d 387 (1939); Garnet v. D’Alonzo, 55 Pa.C. 263, 422 A.2d 1241 (1980).

      . Although Rule 237.1 requiring the giving of written notice of intention to seek default judgment effective February 1, 1980 was not in effect at the time of entry of judgment herein, the record reveals that appellee did repeatedly warn then counsel for appellants that judgment would be entered. Following entry of judgment, appellee made repeated attempts to achieve a solution which would not inconvenience appellants prior to seeking to enforce the judgment. As well stated in Triolo v. Philadelphia Coca Cola Bottling Co., supra :

      “[Tjhis is not a case where [Appellee] ... made a studied attempt to obtain a default judgment, see Fox v. Mellon .... [Appellee] carefully and explicitly preserved his rights. He certainly cannot be foreclosed from exercising them because he was courteous and extended the time limits.”
      270 A.2d at 622.


author: CERCONE, President Judge:

text:
    440 A.2d 517
    Gerard LONG, District Attorney of Cambria County, Pennsylvania v. 130 MARKET STREET GIFT & NOVELTY OF JOHNSTOWN, otherwise Known as 130 Market Street Novelties & Gifts, Inc., a/k/a 130 Market Street Novelties & Gifts of Johnstown, Inc., Being Names used by a Corporation Doing Business and Trading as Johnstown Novelty & Gift Shop and/or Adult World, David Dry, an Individual and Frank Cislo, an Individual, Appellants.
    Superior Court of Pennsylvania.
    Argued April 9, 1979.
    Filed Jan. 14, 1982.

      James H. English, Altoona, for appellants.
    J. Kiniry, Assistant District Attorney, Ebensburg, for appellee.
    Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.
   CERCONE, President Judge:

We have before us today an appeal from an injunction which issued from the Court of Common Pleas of Cambria County. The final order of the chancellor, made pursuant to Pennsylvania’s anti-obscenity statute, permanently enjoined appellants from selling or distributing certain publications and films which a jury determined to be obscene within the definition of the anti-obscenity statute.

In addition to the materials submitted to the jury for its consideration, the injunction purports to enjoin the sale or distribution of films and publications of the same or substantially similar type. In this appeal, appellants allege error at trial, complain that the injunction is overly-broad and works a denial of their rights to free speech under the Commonwealth’s Constitution as well as under the federal Constitution, and that the statute denies them their rights to equal protection under both Constitutions. With certain modifications, we affirm the order of the lower court.

Gerard Long, District Attorney for Cambria County, filed a complaint in equity under the injunction provision of the aforementioned anti-obscenity statute, 18 Pa.C.S. § 5903(g), on April 4, 1978. At the same time he requested that a hearing be held within three days’ time, as was his right under the statute. Appellants received timely notice of the hearing and filed a demand for a jury trial. On April 7, 1977, the day set for trial, appellants filed preliminary objections and a motion for a continuance, which were denied by the chancellor, whereafter a jury was empanelled and the case tried. The district attorney introduced eleven publications and four films into evidence, but offered no testimony concerning the contemporary community standards element of obscenity. During their case in chief appellants unsuccessfully attempted to have David Dry, himself a party, qualified as an expert witness to testify concerning the contemporary community standard on obscenity in Pennsylvania. In his summation, the District Attorney made two remarks, which appellants asserted in a motion for mistrial were highly prejudicial because of an allegedly inherent Christian, religious and moralistic slant. The mistrial motion was denied. The jury retired to deliberate, and returned a unanimous verdict, finding that all the material before it was obscene under Section 5903(b) of the Crimes Code. Thereupon the chancellor entered the order in question. On April 17, 1977, the lower court filed its memorandum opinion setting forth at length events at trial and describing in detail the materials admitted into evidence and found by the jury to be obscene. On April 21 appellants filed motions for a new trial, a motion in arrest of judgment and a motion for dissolution of the injunction, the latter of which was amended on April 26, 1978. None of these latter motions was heard or considered because, by the terms of the statute, the order was final. On May 11, 1978, appellants took an appeal to the Supreme Court. The district attorney objected to the Supreme Court’s jurisdiction. By per curiam order of June 26, 1978 the Supreme Court transferred the appeal to this Court. In the meantime, appellants had filed a petition for supersedeas, which we denied.

I.

We consider first appellants allegations of error at trial. Initially appellants contend that the chancellor’s denial of their motion for a continuance worked a denial of their rights to due process under the Fourteenth Amendment to the Federal Constitution. This Court has previously found the case of Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), instructive on the due process argument appellants now raise. Ungar v. Sarafite involved a proceeding in which Ungar was served with an order to show cause why he should not be held in contempt for alleged willful and disruptive behavior during his testimony at the trial of one Huían E. Jack, who was charged with conspiracy to obstruct justice. Ungar had five days’ notice of his contempt hearing at which he appeared with counsel. Counsel asked for a continuance due to the fact that he was then in the midst of trying another case, and that he had had insufficient time to prepare Ungar’s defense. The motion for continuance was denied on the grounds that five days’ notice was more than sufficient time for Ungar to have retained an attorney who would have had no scheduled conflicts, and furthermore, that five days was sufficient time to prepare a defense. The court placed importance on the fact that the motion for continuance had not been made until the time set for the contempt hearing. The U. S. Supreme Court affirmed the decision of the New York Court of Appeals confirming the lower court’s ruling. Mr. Justice White, writing for the majority, stated:

The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444 [60 S.Ct. 321, 84 L.Ed. 377]. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3 [75 S.Ct. 1, 99 L.Ed. 4]. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385 [77 S.Ct. 431, 1 L.Ed.2d 415]; Torres v. United States, 270 F.2d 252 (C.A. 9th Cir.); Cf. United States v. Arlen, 252 F.2d 491 (C.A. 2d Cir.)

Id. at 589-590, 84 S.Ct. at 849-850. We acknowledged Ungar in Commonwealth v. Harding, 245 Pa.Superior Ct. 333, 335, 369 A.2d 429, 430 (1976), a case involving a petition under Pennsylvania’s Post Conviction Hearing Act, which questioned the trial judge’s denial of a motion for. continuance requested for the purpose of giving the defendant time to retain private counsel. We found apposite its teaching on the scope of review in a court’s denial of motions for continuance. And, as we stated in Commonwealth v. Simpson, 222 Pa.Superior Ct. 296, 299, 294 A.2d 805, 806 (1972), “[a] continuance is a matter within the sound discretion of the trial court. Commonwealth v. Richardson, 392 Pa. 528, 140 A.2d 828 (1958).” Furthermore, we note that “[due] process is a flexible concept. What process is due depends upon the circumstances of each case, including the nature of interests that are at stake and the particular proceeding in question. [Citations omitted.]” In re Martorano, 464 Pa. 66, 74, 346 A.2d 22, 26 (1974). The Pennsylvania Supreme Court has consistently held that mere shortness of time in which to prepare a defense does not violate the requirements of due process. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973); Commonwealth v. Skipper, 440 Pa. 576, 271 A.2d 476 (1970); Commonwealth v. Woody, 440 Pa. 569, 271 A.2d 477 (1970); Commonwealth v. Berry, 440 Pa. 154, 269 A.2d 921 (1970); but see Commonwealth v. Honeyblue, 262 Pa.Superior Ct. 137, 396 A.2d 683 (1978), aff’d per curiam, 487 Pa. 409, 409 A.2d 834 (1979). The instant case falls in between the ten minutes notice of a probation revocation hearing we found constitutionally wanting in Commonwealth v. Williams, 254 Pa.Superior Ct. 202, 385 A.2d 979 (1978) and the five days’ notice in Ungar which was upheld. In light of the teaching of the case law, and of the legislative determination that three days’ notice is adequate time to prepare a defense to an injunction petition of this type, we cannot say that under the facts of this case the chancellor abused his discretion in denying the motion for continuance.

Appellants also complain of the chancellor’s refusal to qualify David Dry as an expert witness regarding the then prevailing statewide community standard concerning obscenity. As Justice Musmanno stated in Weisman v. Sauder Chevrolet Co., 402 Pa. 272, 167 A.2d 308 (1971), “[wjhether expert testimony should be accepted in any given trial is generally within the discretion of the trial judge. . . . However, that discretion is subject to review. ...” Id., 402 Pa. at 276, 167 A.2d at 311. The scope of review of discretionary matters is limited to inquiry into the abuse of those discretionary powers. See Albert v. Alter, 252 Pa. Superior Ct. 203, 381 A.2d 459 (1977); Piso v. Weirton Steel, 235 Pa.Superior Ct. 517, 345 A.2d 728 (1975); Thompson v. American Steel & Wire Co., 317 Pa. 7, 175 A.2d 541 (1934).

The offer of proof made was that Dry would testify as to his knowledge of sales of publications, photographs and films of a kind similar or identical to those items then before the court. Appellants clearly intended to try to establish the statewide community standard based on the availability and marketability of pornographic materials in other parts of the Commonwealth. The attempt to qualify Dry as an expert witness was clever, however, the chancellor’s stifling of it was not an abuse of discretion. The contemporary community standard element, necessary to establish the obscenity or lack of obscenity of published material is not concerned with the availability of the material, but rather with its acceptability. The fact that one can walk into an “adult book store” in some of the towns and cities of the Commonwealth and purchase a film or publication devoted, on the whole, to bestiality, sado-masochism, or any of a number of other often-questioned sexual predilections, by no means implies that the average Pennsylvanian would not find the subject matter appealing to prurient interests. The statewide availability of sexually explicit films and publications does not bespeak their acceptability. We find no abuse of the chancellor’s discretion in refusing to qualify Dry as an expert witness.

On a related issue appellants contend that the district attorney failed to make out all of the elements of the offense of obscenity. They contend that there was insufficient evidence to put the question to the jury because the district attorney presented no evidence concerning the community standard element of the offense. The appellants’ position reflects a prior holding of the Pennsylvania Supreme Court, aired in Commonwealth v. LaLonde, 447 Pa. 364, 288 A.2d 782 (1972). In LaLonde the Court stated that due process demanded expert testimony on the question of the contemporary community standard. Id., 447 Pa. at 377, 288 A.2d at 789. LaLonde, however, is no longer the law in Pennsylvania. Following the United States Supreme Court’s lead in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, 447 (1973) our Supreme Court expressly overruled LaLonde in Commonwealth v. Rodgers, 459 Pa. 129, 134-135, 327 A.2d 118, 121 (1974). Under Paris Adult Theatre I, supra, and Rodgers, supra, motion picture films, printed publications and photographs themselves are enough evidence for a jury, in applying our statewide standard, to determine whether the average person would find the materials appealing to prurient interests.

Lastly, appellants assign as trial error the denial of their motion for mistrial following two allegedly prejudicial remarks by the district attorney during his summation. The district attorney twice gave reference to the well-known adage: “Better to light one candle than to curse the darkness.” Appellants contend that its inherently religious implications, associated as it is with the Roman Catholic lay organization, the Christophers, prejudiced the jury. Our research reveals that the saying is a translation of an ancient Chinese—presumptively not Roman Catholic—proverb. Additionally, the court, in its jury charge, specifically instructed the fact finders to ignore their personal religious and moral beliefs, no matter how strongly felt, in reaching a determination. Thus, even if there had been prejudice, it was cured by the court’s instructions. See generally Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Brown, 444 Pa. 318, 322, 282 A.2d 364, 366 (1971).

II.

Appellants’ second general contention strikes at the injunction along two lines. They argue that because the injunction applies not only to those films and publications which were admitted into evidence and determined to be obscene by the jury, but also to materials of the same or of substantially similar character and kind, the injunction acts as a prior restraint on their rights to freedom of expression under both Article I, Section 7 of the Pennsylvania Constitution of 1874 and the First Amendment to the federal Constitution. Further, they argue that the injunction is vague and overbroad.

Article 1, Section 7 of our state Constitution reads:

The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject being responsible for the abuse of that liberty.

We recently decided the validity of an injunction similar to the one sub judice, in the case of Brightbill v. Rigo, Inc., 274 Pa.Superior Ct. 315, 418 A.2d 424 (1980). And see Commonwealth by Russell v. Gomes, 281 Pa.Superior Ct. 301, 422 A.2d 179 (1980). We need not repeat in detail what we said there. We do note, however, that it is universally recognized “that the power of a State to suppress obscenity is limited by the constitutional protections accorded free expression and there is thus no power to restrict the dissemination of publications or films which are not obscene.” Brightbill v. Rigo, Inc., supra, 274 Pa.Superior Ct. at 322, 418 A.2d at 427. See William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 (1961); Ranck v. Bonal Enterprises, Inc., 467 Pa. 569, 359 A.2d 748 (1976); Commonwealth ex rel. Davis v. Van Emberg, 464 Pa. 618, 347 A.2d 712 (1975). Cf. Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978). We do not hesitate to strike out those portions of the injunction which purport to enjoin unadjudicated materials; Brightbill provides us with clear precedent in this regard.

Because we have modified the injunction to encompass only those materials actually found to be obscene by the jury we need not consider appellants’ vagueness and overbreadth arguments.

III.

Lastly, appellants request that we strike down the statute as violative of their rights to equal protection under the Commonwealth’s Constitution as well as under the federal Constitution. They contend, specifically, that the exemption from prosecution for violation of the Act which is provided to libraries, museums and historical societies by Crimes Code Section 5903(j) creates an unconstitutional class. 18 Pa.C.S. § 5903(j). Before we consider the merits of the equal protection arguments our task is to determine what test we must employ in evaluating appellants’ claims.

A.

It has long been accepted that the federal Constitution’s guarantee of freedom of expression in the First Amendment was made applicable to the states by the Fourteenth Amendment’s due process clause. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). It is equally clear that obscenity is not protected by the First Amendment, since obscenity is not within the federal definition of speech. Paris Adult Theatre I v. Slaton, supra; Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Because obscenity is not protected by the federal Constitution, a state may create such classifications as necessary to effectuate the regulation of such materials’ dissemination or publication, so long as the state has a legitimate interest in such regulation. The test on appellate review in such an instance is not the strict scrutiny afforded constitutional liberties, but rather the rational basis test. Thus, when an equal protection claim based on the federal Constitution is presented in an obscenity case the question becomes whether the state has some rational basis for creating the classification. See generally, Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct 2440, 49 L.Ed.2d 310 (1976).

B.

A determination of the proper test to be applied under the Commonwealth’s Constitution demands lengthier analysis since the extent and nature of the right to freedom of expression under that document has not been as extensively litigated as has the federal question.

The Commonwealth’s Constitution of 1776 guaranteed the right to freedom of expression in these words: That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of press ought not to be restrained.

Pa.Const. of 1776, Declaration of Rights, Section 12.

Historical research indicates that the liberty of unrestrained publication was viewed at the time as absolute. Cooley makes this point clear when he writes:

It seems more than probable, however, that the constitutional freedom of the press was intended to mean something more then mere exemption from censorship in advance of publication. Such censorship had never been general in the colonies: it did not exist at all at the time of the Revolution, and there was no apparent danger of its ever being restored. To forbid it, therefore, and especially just at a time when the people had been taking a larger share in the government into their own hands, and when the command would be laid on their own representatives, would appear to savor somewhat of idle ceremony. But the history of the times shows that the people believed a right of publication existed which might be invaded and abridged by oppressive prosecutions, and by laws which admitted the liberty to publish, but enlarged beyond reason the sphere of responsibility; and the evils they feared had no necessary connection with established or threatened censorship.

T. Cooley, The General Principles of Constitutional Law in the United States of America, 300 (3rd ed., 1898). (Emphasis added). The Constitution of 1776 did not address the question of a person’s responsibility for his utterances or publications once they were made. The apparent absoluteness of the 1776 guarantee of freedom of expression and its capability for abuse gave rise to an exemption from its protection, for it soon became clear, that although the freedom of expression is arguably an absolute right, the right to protection from prosecution for abuse of the freedom is a limited one. As early as 1788 the Supreme Court of Pennsylvania stated:

The true liberty of the press is amply secured by permitting every man to publish his opinion; but it is due to the peace and dignity of society to inquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame. To the latter description, it is impossible that any good government would afford protection and immunity.

Respublica v. Oswald, 1 U.S. (1 Dallas) 319, 1 L.Ed. 155 (1788). The sentiment of the Supreme Court in Oswald, a libel case, found its way into the Commonwealth’s Constitution of 1790. The latter guaranteed to every citizen the liberty to “freely speak, write and print on any subject, being responsible for the abuse of that liberty.” Pa.Const. of 1790, art. IX, § 7. The wording under our present Constitution is identical to that in the Constitution of 1790. Pa.Const. of 1790, art. IX, § 7; Pa.Const. of 1874, art. I, § 7. In this way the guarantees of free speech and press, which Blackstone had set down merely as principles of the common law, became part of the bedrock of Pennsylvania’s constitutional system. See IV Blackstone’s Commentaries, 151-152. Thus we see that under our Constitutions there are two distinct elements to the right to freedom of expression. The first, arguably an absolute right, guarantees to each citizen the freedom to make public whatever he may choose. The prohibition against the prior restraint of publication serves to protect the sanctity of this right. The second, clearly a limited right, guarantees to the same citizen protection from prosecution arising from the exercise of the right of publication, except when those publications are, as Blackstone put it, somehow “destructive of the ends of society.” Id. It would seem that the right to trial by jury, Pa.Const. Art. I, Sections 6, 7 and 9, protects the sanctity of this more limited right.

Since the case of Commonwealth v. Sharpless, 2 S. & R. 91 (1815) the courts of Pennsylvania have assumed that the publication of obscenity was a crime indictable at common law, part of our received jurisprudence, and hence not protected from prosecution for abuse of the liberty of free expression. We have found no authority in this Commonwealth that extends to obscene matter the limited right to exemption from prosecution or punishment for its publication, which right many other forms of expression enjoy under the second element of our Constitution’s free speech guarantee. Nor have we found authority in our case law which holds that matter cannot be enjoined from further publication once it has been determined to be offensive, where that determination has been made by a jury applying a definition of obscenity the vagueness of which is not contested. Cf. Buffalo Branch Mut. Film Corp. v. Breitinger, 250 Pa. 225, 95 A. 433 (1915); Commonwealth v. Rodgers, supra.

It follows therefrom that there is in Pennsylvania no fundamental right to protection from prosecution for the publication of matter abusive of the right to free expression, viz. obscene matter. In short, obscenity does not enjoy the full protection of Art. I, § 7 of the Pennsylvania Constitution of 1874.

It is now clear that the test to be applied in equal protection cases neither implicating rights fundamental under the Commonwealth’s Constitution nor involving suspect classifications, is the “rational basis” test. The confusion which had arisen around the purported distinction between the “rational basis” test, and the so-called “fair and substantial relationship” test, was laid to rest recently in Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981). Writing for the Court Chief Justice stated:

We conclude that the mistaken assumption that the phrase “rational basis” implies a greater assumption of constitutionality or connotes a less strict standard of review than the phrase “fair and substantial relation”, should be discarded. Accordingly, we proceed to analyze the classification at issue here to determine whether it is reasonable, not arbitrary, and rests upon a difference having a fair and substantial relation to the object of the legislation.

Id. 496 Pa. at 168, 436 A.2d at 597 (Emphasis added). It would seem therefore, that under both the federal and state constitutions the proper test to be applied instantly is the “rational basis” test.

C.

We turn now to the application of the “rational basis” test to determine whether the instant classification violates appellants’ rights to equal protection of the laws under either the federal or state constitution.

A study of the legislative history reveals that the Legislature had two purposes in mind when it enacted the anti-obscenity statute. In the legislature’s view, the growth of commercial pornography has exercised a pernicious effect on the sensibilities of the majority of our populace. By enacting the statute it hoped to combat these ill effects. However, the Legislature presumably recognized that even in meritless publications the scholar might find value, even if the “value” he finds is that the material has none. Secondly, the criminal elements of society have recently gained considerable financial influence over the population of the Commonwealth. The statute does not forbid, indeed constitutionally it could not, the private possession of pornography, nor does it even prohibit the populace’s access to obscene material since the latter may be safely displayed in the exempted public institutions. What the statute does prohibit is the commercial exploitation of obscene materials by denying the right to sell them.

Given the foregoing objectives of the legislation and the legitimate governmental interest implicit therein, we can say without hesitation that the Legislature’s creation of a class exempt from prosecution under the statute bears a rational relationship to its objectives in enacting the statute, thus the creation of this exempted class does not violate the right to equal protection under both Constitutions. Likewise, there is a fair and substantial relationship between the statute’s objectives and the creation of the exempted class. By creating such a class as here, i.e. museums, libraries, historical societies, etc., there is created the legislative capability to defeat both the stranglehold of organized crime over legitimate businesses in the Commonwealth and to prevent the economic and moral exploitation of our citizenry. The anti-obscenity statute, Crimes Code Section 5903, 18 Pa.C.S. § 5903, therefore cannot be said to violate the guarantee of equal protection contained in either Pennsylvania’s or the United States’ Constitution.

Ordered, that the decree of the Court of Common Pleas of Cambria County, as amended to encompass only the eleven publications and four films named in the complaint and submitted for a determination of obscenity to the jury, is affirmed.

      . Act of 1977, Nov. 5, P.L. 221, No. 68, § 1, subsequently amended by the Act of October 16, 1980, P.L. 978, No. 167, § 2. 18 Pa.C.S. § 5903. For the recent amendments to the Act of 1977 see 4 Purdons’ 1980 Legis. Supplement 877-78. The Amendments are not, however, pertinent here.

      . There are eleven publications and four films involved. The publications are: “Ero,” “Je t’aime,” “Violent Vixens,” “Trio Sex,” “Rim Jim Jim,” “Photo Digest of Masturbation,” “Orgy Too,” “Hit and Fun,” “Nurses Climax,” “Hard ’n Ready Dudes,” “Private.” The films enjoined are: “Stallions,” “Foxy Ladies-Human Card Table,” “No Holes Barred,” “Happy Hookers.”

      . See 18 Pa.C.S. § 5903(b).

      . Appellants have not raised any questions concerning the statute’s vagueness. For this reason we need not discuss the due process question normally raised in cases of this type.

      . The final sentence of Article I § 7 is omitted above. It was declared contrary to the federal Constitution in Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626 (1972). That sentence read:
      No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or formation, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the discretion of the court, as in other cases.

      . Appellants argue that the injunction is overly broad insofar as it applies to unadjudicated films and publications. The district attorney retorts that based on the view of appellants’ business premises and evidence advanced at trial, that these materials are fungible. Though we agree this may be so in a business sense we cannot agree that fungibility is of consequence in a constitutional sense.

      . See Kroger Co. v. O’Hara Twp., 481 Pa. 101, 116-117, 392 A.2d 266, 273-274 (1978); Baltimore & O.R.R. v. Dept. of Labor & Industry, 461 Pa. 68, 334 A.2d 636 (1975); Bargain City U.S.A. v. Dilworth, 407 Pa. 129, 179 A.2d 439 (1962). Pa.Const. of 1874, art. III, § 32, as amended 1967.

      . Appellants have not raised the due process argument that the terms of the exemption are vague.

      . Under the federal Constitution there are three tests by which legislatively created classifications are measured in order to determine whether those classifications meet the muster of the Equal Protection Clause. The so-called “strict scrutiny test” is applied to those classifications affecting fundamental rights and liberties, or classifications which are “inherently suspect.” See San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); McDonald v. Board of Election, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). There is an intermediate test which is applied to so-called “quasi-suspect” classifications, such as gender, which requires heightened scrutiny but not scrutiny as intense as that applied in cases involving fundamental rights or inherently suspect classifications. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); cf. Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). See also Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (invalidated social security benefits for widows, but not for widowers of deceased insured workers); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975) (upheld military regulation allowing promotion of men after shorter periods of service than required of women). The third test is the “rational basis” or “rational relationship” test. It is applied in those cases not involving fundamental rights, but involving legitimate governmental interests and classifications neither inherently suspect nor quasi-suspect. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

      . The Constitution of 1776 contained two distinct parts: The Declaration of Rights and The Frame of Government. Section 46 of the Frame of Government made the Declaration of Rights applicable to the Frame of Government, thus essentially integrating the two parts of the Constitution. The Constitution of 1790, besides radically altering the method by which the people of the Commonwealth would govern themselves, formally integrated the two parts of the 1776 Constitution, making the Declaration of Rights an article of the Constitution rather than a mere preface to it. This integration of the Declaration of Rights and the Frame of Government creating a unified Constitution has been maintained ever since. Neither the Constitution of 1838, nor that of 1874, nor the major revision in 1968 have deviated from the model of the Constitution of 1790.

      . Cooley explains the constitutional guarantee thusly:
      “The freedom of the press may therefore be defined to be the liberty to utter and publish whatever the citizen may choose, and to be protected against legal censure and punishment in so doing, providing the publication is not so far injurious to public morals or to private reputation as to be condemned by the common law standards, by which defamatory publications were judged when this freedom was thus made a constitutional right.”
      T. Cooley, The General Principles of Constitutional Law in the United States of America, 302 (3rd ed., 1898).

      . On the liberty of the press Blackstone wrote:
      “The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects....”
      IV Blackstone’s Commentaries, 151-152. (Emphasis added.); also quoted in William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 89, 173 A.2d 59, 62 (1961).

      . We need not express any opinion, indeed we do not do so, concerning the right to unrestrained publication. That question is not before us. Our discussion here is centered on the protection the constitution provides once publication has been made. The discussion must not be construed to extend further than its topic, and we so limit it. We note only that on its face the right to publish would appear absolute, and hence that the right is arguably absolute.

      . See also Barker v. Commonwealth, 19 Pa. 412 (1852); Commonwealth v. Blumenstein, 396 Pa. 417, 153 A.2d 227 (1959); William Goldman Theatres, Inc. v. Dana, supra; Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974); Commonwealth v. Van Emberg, 464 Pa. 618, 347 A.2d 712 (1975); Brightbill v. Rigo, Inc., supra. And see T. M. Cooley, General Principles of Constitutional Law, supra at 302; Rawle on the Constitution, 124 (2nd ed., 1823); III Story’s Commentaries on the Constitution, 732, 736 (1833).

      . Thus, the important question in Pennsylvania is not whether arguably obscene material is speech or nonspeech, but whether the particular exercise of free expression is protected from prosecution or subject to criminal penalty or not. Indeed, our exhaustive research has revealed no case which holds that obscene matter is not speech under the Commonwealth’s Constitution. To the contrary, however, our cases have often stated that obscenity is not speech under the federal Constitution. See Ranck v. Bonal Enterprises, Inc., 467 Pa. 569, 359 A.2d 748 (1976).
      We need not determine whether obscene matter is speech within the definition of our Constitution since it is clear that even speech protected by the first part of our free speech guarantee is not protected from prosecution and punishment once it has been determined by a jury to constitute an abuse of the right to free expression.

      . We note, however, that there are two rather troublesome cases in the books, but we believe them both distinguishable. The reason these two cases appear troublesome is that on first blush they appear to forbid the courts of the Commonwealth from enjoining the further publication of matter adjudicated offensive. See William Goldman Theatres Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 (1961); and see Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978) reversing Mazzocone v. Willing, 246 Pa.Superior Ct. 98, 369 A.2d 829 (1977) (opinion per Cercone, J.)
      Reading all the opinions filed in both William Goldman Theatres and Mazzocone we must conclude that the reason the statute in the first case, and the injunction in the second case, were struck down was because the determinations were made, in the first instance by the Board of Motion Picture Control, and in the second instance by the court, and in neither instance by a jury.

      Indeed, until Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626 (1972) there was a provision in Art. I, § 7 of the Pennsylvania Constitution of 1874 which read:
      “... No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”
      The Supreme Court of Pennsylvania struck down the foregoing as violative of the federal Constitution as illuminated by the leading cases of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (required clear and convincing evidence of actual malice—actual knowledge of falsity or reckless disregard for truth or falsity—and not mere negligence with regard to the truth or falsity of the alleged libel) and Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (invalidated a Louisiana statute which imposed criminal penalties for publication of true but inflammatory statements made with malice). The stricken part of the Constitution was neither attacked nor invalidated because of the jury’s role in deciding libel cases.

      . See Kroger v. O’Hara Twp., 481 Pa. 101, 117-118, 392 A.2d 266, 274 (1978), where Justice Manderino wrote:
      Although the view of the United States Supreme Court concerning proper guidelines for its interpretation of the federal constitution is not binding upon us in interpreting the Pennsylvania Constitution, we agree that we should be guided by the same principles in interpreting our Constitution. To do otherwise would be to place this Court’s subjective value judgment as to what interest of the people are most important above the value judgment contained in our state Constitution. This we refuse to do.

      . See Baltimore & Ohio Railroad Co. v. Commonwealth, Dept. of Labor & Industry, 461 Pa. 68, 334 A.2d 636 (1975); Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 331 A.2d 198 (1975); Stottlemeyer v. Stottlemeyer, 458 Pa. 503, 329 A.2d 892 (1974).

      . See Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980); Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975); In re Cavill Estate, 459 Pa. 411, 329 A.2d 503 (1975).

      . Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981) considered, inter alia, an equal protection attack on Pennsylvania’s “Public Officials Ethics Law,” Act of October 4, 1978, P.L. 883, as amended, 65 P.S. § 401 et seq., (Supp. 1980-1981).

      . The application of the “rational basis” test to analyze equal protection claims under both Constitutions may proceed simultaneously for the meaning and purpose of the equal protection guarantees are sufficiently similar to warrant like treatment. See Lauden-berger v. Port Auth. of Allegheny Co., 496 Pa. 52, 436 A.2d 147 (1981).

      . Cf., Milton, “Areopagitica:”
      “And again, if it be true that a wise man, like a good refiner, can gather gold out of the drossiest volume, and that a fool will be a fool with the best book, yea or without book; there is no reason that we should deprive a wise man of any advantage to his wisdom, which we seek to restrain from a fool, that which being restrained will be no hindrance to his folly.”
      We are encouraged in this view by dicta from one of the earliest, and leading, “communist” cases, Commonwealth v. Widovich, 295 Pa. 311, 145 A. 295 (1929). The Supreme Court there made a distinction between preaching communism in its most violent forms, and teaching about communism; “Books treating historically of past revolutions, of the doctrines of various forms of government, books and essays on sociology and economics, which treat on the various influences in government and their possible elimination, or their supposed peril, the writings of reformers—all these may be safely offered for sale or taught as they are now in our educational institutions.” Id., 295 Pa. at 319-320, 145 A. at 298. By analogy it is permissible to allow museums, libraries, and historical societies to collect and even display obscenity since their purpose is generally educational and not the commercial desire to propagate pornography.

      . Indeed, the legislative record reveals that several legislators felt that one of the primary evils of obscene publications is that they are considerably overpriced: “Therefore, the tenor and the aim of this type of legislation is to restrict people from buying these books or these periodicals or whatever they are—I do not buy them because some of them cost four or five bucks and it just is not worth it—but apparently there are quite a few people who are interested in purchasing this matter.” Legislative Journal, Senate, 2015 (Nov. 8, 1977). “The worst part about the whole thing is they usually cost $5 or $10 and they are really not worth it. I bought one or two out of curiosity and spent too much money on them. You see one and you have seen them all.” Legislative Journal, Senate, 377 (May 24, 1977). And see Legislative Journal, House, 2924 (October 19, 1977) (Purpose of Act is to eliminate “smut” stores, not to impose censorship).

      . Appellants have not challenged the Commonwealth’s interest in enacting the legislation, but see Commonwealth v. Bonadio, supra.


text:
    440 A.2d 528
    MNC CORPORATION, a Delaware Corporation v. MT. LEBANON MEDICAL CENTER, INC., a Pennsylvania Corporation, and William J. Bartram, President and William J. Bartram, an Individual, Appellants.
    Superior Court of Pennsylvania.
    Argued May 22, 1981.
    Filed Jan. 14, 1982.

      Edward L. Kochuba, Jr., Pittsburgh, for appellants.
    Rochelle D. Friedman, Pittsburgh, for appellee.
    Before CERCONE, President Judge, and MONTGOMERY and VAN der VOORT, JJ.
   CERCONE, President Judge:

This is an appeal from an order of the lower court, dated October 8, 1980, which denied appellant’s petition to open judgment. The lower court concludes in its opinion in support of order, as required by Pa.R.A.P. 1925, that it erred in denying appellant’s petition. That is, the lower court reevaluated its October 8, 1980 order and concluded that appellant, Mt. Lebanon Medical Center, Inc. (hereinafter Medical) had proven the three requirements necessary for a successful petition to open judgment: (1) the need for equitable relief; (2) prompt action; and (3) a meritorious defense. See Kardos v. Morris, 470 Pa. 337, 368 A.2d 657 (1977); Fidelity Bank v. Act of America, Inc., 258 Pa.Superior Ct. 261, 392 A.2d 784 (1978). However, because the case was no longer within the lower court’s jurisdiction, having been appealed to our Court, the lower court had no authority to rectify the error made.

Inasmuch as the lower court admits the inappropriateness of the October 8, 1980 order, we shall remand the matter to the lower court to reconsider its order based upon its Rule 1925 opinion.

Order vacated and case remanded to the lower court.


author: SPAETH, Judge: MONTGOMERY, Judge,

text:
    440 A.2d 529
    WESTINGHOUSE AIR BRAKE DIVISION, American Standard, Inc., and Union Switch and Signal Division, American Standard, Inc., Appellants, v. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA LOCAL 610; Daniel Marguriet, Business Agent; Mike Carbo, President; Frank Colonello, Vice President; Charles P. Brush, Assistant Chief Steward; individually and as Trustees ad litem.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed Jan. 19, 1982.

      Ralph T. DeStefano, Martin J. Saunders and Brian J. Dougherty, Pittsburgh, for appellants.
    Michael Louik and Daniel M. Berger, Pittsburgh, for ap-pellees.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal, from a decree in equity issued during a strike, providing that if the company employs “nonstriking persons to perform any of the jobs of the striking employees,” two previously issued consent decrees enjoining mass picketing will be automatically dissolved. We find that in thus conditioning the continued effectiveness of the consent decrees, the chancellor abused his discretion. We therefore order the condition stricken, and reinstate the consent decrees.

On October 31, 1981, the collective bargaining agreement between appellant company and appellee union expired, and on November 1 an economic strike began. On November 2 the company filed verified complaints in the lower court seeking injunctive relief from the union’s mass picketing at the company’s Swissvale and Wilmerding plants. Two consent decrees issued, specifying how many persons could picket, and at what gates. The decrees were identical except that one applied to the Swissvale, the other to the Wilmerding, plant. With allowance for specific references to one of the two plants, each decree reads as follows:

DECREE
AND NOW, to wit, this 2nd day of November, 1981, it is hereby ORDERED:
1. That a preliminary injunction is granted, restraining Defendants, their officers, agents, servants, representatives and employees, individually and collectively, and all persons acting in concert with them or on their behalf from doing any of the following acts:
a. Preventing or attempting to prevent by any species of intimidation, threats, force, coercion, obstruction or turning aside against his will, any of Plaintiff’s agents, employees, representatives, and others having business with said Plaintiff, from entering, leaving, and transacting business at Plaintiff’s Swissvale plant in Allegheny County;
b. Picketing, other than peacefully, and unlawfully interfering with the ingress or egress at the Plaintiff’s Swissvale plant in Allegheny County;
c. In any manner conspiring, combining, agreeing and arranging with each other, or with any other person or persons, organizations or association, to unlawfully interfere with or hinder Plaintiff in the conduct of its lawful operations or to interfere with, hinder or annoy any employee or other person having lawful business who may desire to enter or leave said Swissvale plant in Allegheny County of the Plaintiff by force or displays of force or numbers, or by any conduct which tends to deprive any such employee or other person of the free enjoyment of his legal rights of access to or from the Plaintiff’s Swiss-vale plant in Allegheny County;
d. In any manner performing any of the acts aforesaid so as to induce others to fail to provide or to assist in providing goods, services, transportation and supplies to said Swissvale plant in Allegheny County.
2. That if Defendant United Electrical, Radio and Machine Workers of America Local 610, Daniel Marguriet, Mike Carbo, Frank Colonello, Charles P. Brush or any other person acting in concert with them shall choose to picket, no more than [specifying how many persons could picket and at what gates].
3. All pickets shall conduct themselves in such manner so as not to block the use of said entrances for ingress to and egress from the Plaintiff’s property by any party desiring to enter or leave the same.
4. Approved bond in the amount of $1,000.00 must be filed with the Court.
5. This preliminary or special injunction is to continue until the hearing on permanent injunction or until further Order of Court.
6. The Sheriff of Allegheny County is hereby directed to make known the contents of this Order to the pickets at the Plaintiff’s Swissvale plant in Allegheny County.
7. Plaintiff’s authorized representatives are hereby empowered to serve copies of this Order and other papers in this action upon such persons as Plaintiff may designate.
8. The employer and its agents and employees shall be enjoined from any and all acts or threats of violence, intimidation, coercion, molestation, libel or slander against the defendants engaged in this labor dispute.

The union membership did not readily comply with these decrees, and on November 4 the company sought and received a writ of assistance dispatching the sheriff to enforce the decrees. Order was restored for approximately two weeks. The company then began to use nonstriking persons to perform the work of the strikers. On November 18 mass picketing resumed at both plants. Ingress and egress were again obstructed, and there were scattered incidents of violence and vandalism. ■

On November 19 the union petitioned the lower court to “vacate [the consent decrees issued November 2], or, in the alternative, amend said [decrees] so as to provide that the injunction shall remain in effect only so long as [the company] shall not employ persons, or transfer employees to perform the duties of those now or hereafter working because of the labor dispute.” In support of this petition the union contended that the consent decrees did not comply with Section 13 of the Labor Anti-Injunction Act, Act of June 2, 1937, P.L. 1198, 43 P.S. § 206m, which provides:

No court of this Commonwealth shall have jurisdiction or power in any case involving or growing out of a labor dispute to issue a temporary restraining order or temporary injunction where employes are defendants, or the employer, either in anticipation of, or at or subsequent to the inception of, a labor dispute, has employed persons or assigned other employes to perform the duties of employes then or subsequently not working because of the labor dispute, unless, prior to the granting of such restraining order or temporary injunction, the said employer has discharged such persons and reassigned the other employes back to their former duties, and such facts shall be averred under oath in the application for the temporary restraining order or temporary injunction, and no temporary restraining order or temporary injunction shall issue unless it contains the following provision:
“This order (or injunction) shall remain in effect only so long as_ (name of employer) shall not employ persons, or transfer employes to perform the duties of those now or hereafter not working because of the labor dispute.” 1937, June 2, P.L. 1198, § 13.

The chancellor held the union’s petition under advisement pending consideration of the parties’ briefs and arguments.

Meanwhile, the company initiated a contempt proceeding against the union and some of its members for violating the consent decrees. After a hearing on November 20, the chancellor found the union in contempt and imposed a fine of $10,000. The fine was suspended pending the decision on the union’s petition to vacate the consent decrees and on condition that the union and its members commit no further violation of the decrees and that a certain four of the union’s members be kept from the picket lines.

On December 3 the chancellor filed an order quashing the union’s petition to vacate the consent decrees. In the opinion accompanying the order the chancellor reasoned that the consent decrees had the full force and effect of a final decree, see Zampetti v. Cavanaugh, 406 Pa. 259, 176 A.2d 906 (1973), and that in the absence of any allegation of fraud or mutual mistake, the union’s petition was an impermissible collateral attack on a final decree. See eg., International Organization of Masters, Mates & Pilots of America v. International Organization of Masters, Mates and Pilots, Inc., 456 Pa. 436, 318 A.2d 918 (1974); Baran v. Baran, 166 Pa.Superior Ct. 532, 537, 72 A.2d 623, 625 (1950). The union has not challenged the correctness of this decision.

In addition to quashing the union’s petition to vacate the consent decrees, the chancellor’s order of December 3 did two other things. First, in paragraphs (2) and (3) of the order, the chancellor found the union in contempt and imposed a fine of $10,000, suspending the fine, however, on the conditions that we have mentioned above. Second, in paragraph (4) of the order, the chancellor stated:

(4) The Decree of November 2, 1981 [the consent decrees] shall automatically dissolve and be of no force and effect immediately upon the occurrence of the use by Plaintiff [the company] of nonstriking persons to perform any of the jobs of the striking employees.

By this appeal the company challenges paragraph (4) of the chancellor’s order.

It will be observed that by paragraph (4) of his order the chancellor, while quashing the union’s petition to vacate the consent decrees, gave the union in effect the same relief it had sought by the petition. The chancellor explained this result in the opinion accompanying his order as follows. In his fourth conclusion of law he said:

(4) The use of non-qualified, nonstriking persons to perform the work of striking employees constitutes an unwarranted intimidation of the striking employees by the employer and, therefore, a violation of the [Consent] Decree.
Slip op. at 8.

In his Discussion, immediately following this conclusion, he said:

Clearly, the employer has a federally protected right to continue business operations during a labor dispute and this Court will do nothing to enjoin those rights. However, the employer has sought equitable relief under recognized maxims of equity and submits himself to the conscience of the Court. He who seeks equity must do equity. The intimidation of striking employees by filling their jobs with non-qualified, non-striking employees must shock the conscience of the Court and form the basis of denying equitable relief. If the employer chooses to exercise his federally protected right to continue business operations in such a manner as to cause exceptional hardship and agitation among its striking employers, it must then also accept the consequences of such conduct. This Court will not interfere except to prevent violence and harm to persons and damage to property. Therefore, so long as Plaintiff [the company] complies with the terms of the [Consent] Decree, this Court will enforce the same against the Defendants.
Id. at 8-9.

We cannot accept this reasoning. It is true that paragraph 8 of the consent decrees enjoin the company from “intimidation . . . against the defendants engaged in this labor dispute.” But we can find no basis for the chancellor’s conclusion that the company violated the decrees by engaging in such intimidation.

The chancellor does not say why he concluded that the company’s act of hiring nonstriking persons constituted “intimidation” of the union in violation of paragraph 8 of the consent decrees. In the absence of an explanation by the chancellor, the union has offered one. It urges us to look to the dictionary definition of “intimidate” and find “intimidation” because it and its members were “placed in fear” by the company’s actions. This “fear,” it is said, was: “that the products performed by nonqualified, nonstriking persons would be unsafe and dangerous to the public ... [;] that the production of defective equipment would eventually cause the loss of customers, the decline of business and the subsequent loss of employment ...[;] that the Company, by continuing to produce, would irreparably harm the Union’s bargaining power and negate any prospect of a fair resolution to the labor dispute. Indeed, this fear mushroomed into outrage.” Brief for Appellees at 9.

We may assume that the company’s use of nonstriking persons did produce “fear” and “outrage,” and, in some sense of the word, “intimidation” of the union and its members. But it does not follow that there was any “intimidation” in violation of the consent decrees.

When interpreting a consent decree, or any other agreement, words must be read in context. The decree must be read as a whole, each of its provisions being interpreted together with its other provisions. See generally, Restatement (Second) Contracts § 202; Restatement (First) Contracts § 235. Here, the provision that the company is enjoined from “intimidation” of the union does not exist in isolation. It is preceded by a series of provisions directed against action by the union and its members. For example:

Preventing or attempting to prevent by any species of intimidation, threats, force, coercion, obstruction or turning aside against his will, any of [the company’s] agents, employees, representatives, and others having business at [the Swissvale and Wilmerding plants ].
In any manner conspiring, combining, agreeing and arranging with each other or with any other person or persons, organizations or associations, to unlawfully interfere with or hinder [the company] in the conduct of its lawful operations or to interfere with or hinder or annoy any employee or other person having lawful business who may desire to enter or leave [the Swissvale and Wilmerd-ing plants] by force or displays of force or numbers, or by any conduct which tends to deprive any such employee or other person of the free enjoyment of his legal rights of access to or from the [plants].
Consent Decrees of November 2, 1981, Paras. 1(a) & (c) (emphasis added).

Thus, in language specific and clear, the decrees prohibit the union and its members from interfering with the company’s right to carry on its business in a lawful manner during the course of strike. The chancellor in his opinion concedes that the company “has a federally protected right to continue business operations during a labor dispute.” Slip op. at 8. And the union concedes that “a body of Federal case law has developed which enables employers to replace employees who are on strike.” Brief for Appellees at 14 (emphasis in original). These concessions are necessary. See Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 153, 96 S.Ct. 2548, 2559, 49 L.Ed.2d 396, 411 (1976); NLRB v. Mackay Radio and Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1937). With them, the chancellor’s order must fall. For it cannot be maintained that a company exercising “a federally protected right”—whether the right is protected by statute or case law—has engaged in “intimidation” of the union.

We think it evident that the consent decrees attempted to provide both parties with injunctive relief against any attempt by the other party to engage in unlawful conduct. The company was to be protected against the union interfering with its lawful business operations. The union and its members were to be protected against any attempt by the company to interfere with the right to strike. What the chancellor’s order comes down to is a statement that if the company exercises its federally protected right to employ nonstriking persons, the union will not be enjoined from mass picketing—the consent decrees enjoining mass picketing “shall automatically dissolve.” This was a clear abuse of discretion. The company was entitled to protection against mass picketing. The chancellor’s statement that he would not interfere with mass picketing “except to prevent violence and harm to persons and damage to property,” slip op. at 9, is not to the point. Mass picketing, with or without violence or damage to property, constitutes a seizure of the employer’s plant, and as such, is unlawful. See Wortex Mills, Inc. v. Textile Workers Union of America, 369 Pa. 359, 85 A.2d 851 (1952) (mass picketing enjoined although “peaceful” and with “no acts of violence”); Westinghouse Electric Corp. v. United Electrical Radio & Machine Workers, 353 Pa. 446, 46 A.2d 16 (1946) (mass picketing enjoined “not because of any destruction of, or injury to, [the] plants, but because of the interruption of vital activities by way of preparations for future business and production”). Thus the chancellor said that if the company engaged in lawful conduct, he would leave it without recourse to protect itself against the union’s unlawful conduct.

Paragraph (4) of the lower court’s order of December 3, 1981, is vacated, and the consent decrees of November 2, 1981, are reinstated.

MONTGOMERY, J., files a concurring statement.

MONTGOMERY, Judge,

concurring:

I agree with Judge Spaeth’s basic conclusion that the chancellor abused his discretion in holding that the Plaintiff-Appellants’ exercise of a federally protected right to employ replacements for strikers could not be considered to be “intimidation” violative of the injunctive consent decrees. I believe it is important to note that the Appellees did not argue in this case that the lower court’s order precluding the Appellants’ use of replacement employees was justified solely on the basis of Section 13 of the Pennsylvania Labor Anti-Injunction Act, Act of June 2, 1937, P.L. 1198, 43 P.S. § 206m, which is recited in full in the Majority Opinion. The Act, which sets forth limitations upon the power of our Commonwealth’s courts to issue injunctions in labor disputes, is inapplicable in the circumstances of a plant seizure. See Section 4, 43 P.S. § 206d, set forth in pertinent part at footnote 1 of the Majority Opinion. Mass picketing, which the parties apparently agree occurred during the strike in issue in this case, has been equated with a plant seizure [See the discussion in Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America, 353 Pa. 446, 46 A.2d 16, 163 A.L.R. 656 (1946) ], and thus the protections of Section 13 are not available to the Appellees in this case.

      . The company has challenged the union’s contention before the chancellor that the consent decrees did not comply with Section 13 of the Labor Anti-Injunction Act, supra, 43 P.S. § 206m. In the company’s view the controlling section is Section 4, as amended, 43 P.S.' § 206d, which provides that the Act shall not apply “[wjhere in the course of a labor dispute ... representatives of a labor organization ... seize, hold, damage, or destroy the plant ... or other property of the employer with the intention of compelling the employer to accede to any demands .... ” We need not decide this issue. But see cases cited p. 534, infra.