Hastie, Chief Judge, Biggs and Aldisert, Circuit Judges.
On April 23, 1969, a Swedish motion picture titled "I Am Curious (Yellow)" opened for showing in the City of Philadelphia. That same day, the city solicitor filed an action in equity in the Court of Common Pleas of Philadelphia County seeking to enjoin exhibition of the film on the grounds that it was obscene and a public nuisance.*fn1 In this ex parte proceeding, a Rule to Show Cause why a preliminary injunction should not issue was returned against the theatre, the 19th and Chestnut Street Corporation, and the individual defendants, its owners.
In its complaint for injunctive relief the City made the following averments:
"Paragraph 9: The City has been informed, believes and therefore avers that the dominating theme of the said moving picture film is designed to appeal to a prurient interest in sex; is patently offensive in that it affronts the contemporary community standards relating to the description or representation of sexual matters; and is a graphic portrayal of sexual intercourse between a male and female under varying circumstances including scenes of oral-genital activity.
"Paragraph 10: Plaintiff avers that the said film is obscene and pornographic * * *
"Paragraph 12: Plaintiff has been informed, believes and therefore avers that the said film is wholly devoid of any artistic values and is without any redeeming social or entertaining value but is displayed solely for a financial profit to be made at the expense of the public welfare and public morals of the community.
"Paragraph 13: Plaintiff further avers that the continued display of said moving picture film constitutes a public nuisance as well as a display of public obscenity and pornography."
The City's complaint was thus a blend of common law concepts of public nuisance and certain language found in Pennsylvania's criminal obscenity statute.*fn2 This duality was manifested in a colloquy between the court and counsel for the City:
"THE COURT: In other words, you are asserting a right to ban further showing of the film judicially on the ground that it was a nuisance?
MR. IVINS: That is right, Sir.
THE COURT: Without reference to the obscenity statute?
MR. IVINS: The only time the obscenity statute can come into it is where someone wants to know what will make a matter obscene, what will make a matter a public nuisance. If indirectly it were decided that this film corrupts the morals, someone may say: on what basis are you alleging that?
It may well be I would have to bring in obscenity. But at this moment and in the present posture of this case we are proceeding on the ground that this is a public nuisance."
Before the return date of the rule, however, the defendant exhibitors removed the action to the United States District Court for the Eastern District of Pennsylvania, citing as justification for the removal the original jurisdiction of the federal courts over matters involving a federal question arising under the Constitution of the United States. The City presented an opposing motion to remand the action to the state court.
Thereafter, on May 1, 1969, with the removed action still pending in the district court, a separate suit was filed before the federal forum by Grove Press, Inc., a New York corporation and distributor of the Swedish film in the United States. Grove was not a party to the prior action commenced by the City in the state court. In its suit Grove alleged diversity of citizenship, the existence of a federal constitutional question and violations of federal Civil Rights legislation as the basis for the district court's jurisdiction. Grove sought to enjoin the City from ...