COATESVILLE DEVELOPMENT COMPANY and Giant Food Stores, Inc., Appellants, v. UNITED FOOD AND COMMERCIAL WORKERS, AFL-CIO; United Food and Commercial Workers, Local 1357, AFL-CIO and United Food and Commercial Workers, Local 56, AFL-CIO.
542 A.2d 1380
Superior Court of Pennsylvania
Argued June 8, 1987. Filed May 19, 1988.
374 Pa. Super. 330
In making an award of equitable distribution, we assume the lower court considered that it was also making an equitable award to Mrs. Bold in the amount of $33,000. Because we are vacating the equitable award, the lower court must redetermine a proper division of property, giving consideration to the factors listed in the Divorce Code,
IV. Conclusion
For the reasоns set forth, in the appeal of Mr. Bold at No. 1047 Philadelphia, 1987, and the cross-appeal of Mrs. Bold at No. 1226 Philadelphia, 1987, the decree of the court is reversed and vacated. The case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.
N. Michael Katz, Philadelphia, for United Food, Local 1357, appellee.
Miriam L. Gafni, Philadelphia, for United Food, Local 56, appellee.
Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and JOHNSON, JJ.
ROWLEY, Judge:
This is an appeal from an order denying appellants‘, Coatesville Development Company and Giant Food Stores, рetition for a preliminary injunction against appellees, two locals of the United Food and Commercial Workers Union. We affirm.
On August 28, 1984, appellant Giant Food Stores, Inc. (Giant) opened a new supermarket at Thorndale Shopping Center which shopping center is owned1 by Coatesville Development Company (Coatesville). The Thorndale Shopping Center consists of several stores in addition to Giant and a large parking area, and it is immediately adjacent to another shopping center which includes a competitor of Giant. The same day that thе store opened, appellees were engaged in a labor dispute with Giant and began picketing and distributing handbills in front of the store as well as in the parking lot of the shopping center. The appellees charged that Giant paid substandard wages to its employees and discouraged public patronage of the store. The Union was not attempting to organize Giant‘s employees and none of the pickets was employed by Giant.
Coatesville has no policy limiting or restricting the purposes for which a person is invited onto the mall premises.
UNAUTHORIZED SOLICITATION FOR ANY PURPOSE OR THE DISTRIBUTION OF LITERATURE OF ANY KIND BY NON-EMPLOYEES ON COMPANY PREMISES IS NOT PERMITTED.
EMPLOYEES ARE NOT PERMITTED TO SOLICIT OR DISTRIBUTE LITERATURE DURING WORKING TIME IN WORKING AND PUBLIC AREAS.
The sign is not visible to one driving past the store in an automobile, and there is no positive evidence in the record that the sign is visible by pedestrians in the parking lot or on the sidewalk outside the store.
The day after the picketing began, Giant obtained a temporary ex parte injunction permitting the pickets, but limiting their number and their location at specific places on the sidewalk and in the parking areas of the mall. Five days later, Giant and the Union consented to the entry of an injunction on terms similar to the ex parte injunction, and the trial court made the consensual injunction an order of court. However, both the Union and Giant expressly reserved the right to assert and challenge, respectively, the Union‘s legal right to picket on the mall property.
Almost three months after the ex parte injunction was obtained, Coatesville filed a separate complaint in equity against the Union seеking a temporary and permanent injunction against all picketing on its property by the Union. Despite Giant‘s consent to the earlier limited injunction in its separate action, Giant, along with Coatesville, filed an amended complaint in Coatesville‘s equity action naming both Coatesville and Giant as plaintiffs in the action. One of the paragraphs in the complaint stated that all the proceedings in Giant‘s separate action in which it had consented to the preliminary injunction were incorporated by
In December, 1984, a hearing wаs held in the Coatesville/Giant action on the issue of whether the trial court should grant the requested preliminary injunction and permit the Union to picket on appellants’ property. The trial court determined that while peaceful picketing on private property is not protected by the First Amendment of the United States Constitution, it is protected by
In reaching its conclusion, the trial court relied on Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981), in which our Supreme Court held that the Pennsylvania Constitution affords more expansive protection of free speech than the federal constitution. Tate further established a test which balances the right to possess and use property against the right of free expression. Applying this test to the instant action, the trial court held that it was a reasonable exercise of police power to permit peaceful picketing
Coatesville and Giant appealed from the order denying the preliminary injunction claiming that the trial court erred in holding that the Union‘s right to picket and distribute handbills on private property was constitutionally protected. A panel of this Court reversed the trial court‘s order by holding that the Union did not have a right undеr the Pennsylvania Constitution to picket on the private property of Coatesville and Giant.
Reargument before the court en banc was granted, and the parties were given permission to file supplemental briefs addressing the impact of the recent decision of the Pennsylvania Supreme Court in Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., 512 Pa. 33, 515 A.2d 1331 (1986). The trial court had addressed the Superior Court‘s disposition of Socialist Workers, 335 Pa.Super. 493, 485 A.2d 1 (1984), which had held that a privately owned shopping center was purely private and, therefore, the state constitution did not rеstrict the owner‘s right to prohibit political activity on its property. However, the trial court found that the Superior Court had relied on a line of cases rejected by the majority in Tate and that it had misconstrued Tate.
Despite the emphasis on the constitutional rights of the parties in the trial court‘s opinion, the panel‘s disposition, and the parties’ briefs, we find it unnecessary to reach the constitutional issue of whether
Before discussing the merits of the case we note that despite the cessation of Union picketing at Giant‘s store at the Thоrndale Shopping Center in April, 1985, the present case involves an exception to the strict application of the doctrine of mootness. The Union is still picketing at other Giant stores, and because the Union can stop picketing at any time, it is quite possible that the issue involved here would not reach the appellate courts before the Union would stop picketing. Therefore, this case presents an important issue which is likely to escape review. Consequently, we will not apply the doctrine of mootness, but will reach the merits of the case. Sеe Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Company, 512 Pa. 23, 515 A.2d 1331 (1986); Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362, cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974).
The standard of review of an order denying or granting a preliminary injunction is well established.
As a preliminary consideration, we recognize that on an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law rеlied upon was
Grounds for the trial court‘s order denying a preliminary injunction in this case exist. Most importantly, it was proper not to grant an injunction in this case because neither Coatesville nor Giant took adequate measures to prohibit the activities of the Union. The property involved here, a shopping center, undeniably was open to the public for the public to come onto the property despite the fact that it was privately owned. Coatesville placed no limitations whatsoever on the conduct which could be engaged in upon that property. While Giant attempted to limit the scope of activities on its property, the extent of those limitations is not clear.
Giant‘s posted notice concerning non-solicitation and distribution of handbills was located only inside the store and was not visible from outside the store. Yet the activity to which Coatesville and Giant object, is activity conducted outside the store. For Giant‘s efforts to prohibit the picketing and handbilling engaged in on the parking lot and on the sidewalk to be effective, its prohibition must be clear
Giant‘s alleged no-solicitation policy satisfied none of these requirements. The notice which was posted did not unequivocally state that picketing could not be conducted on the property. The words on the sign posted inside the store stated only that there could be no solicitation and no distribution of handbills. It did not prohibit people wearing or carrying placards from walking and standing on the property. Therefore, at least some of the activities of the Union were not expressly prohibited.
Giant‘s notice also did not unambiguously indicate the geographic parameters of its no-solicitation rule. As to non-employees, the sign simply stated that solicitation and distribution were prohibited “on company property.” The public, which is not privy to the precise language included in Giant‘s lease with Coatesville, would have no idea precisely what constituted “company property,” and the public certainly could not be expected to understand “company property” to relate to common areas of the shopрing center including the parking lot and sidewalks, even if the agreement between Coatesville and Giant provided that such areas were to be considered Giant‘s company property. Furthermore, the sign setting forth the prohibition was located inside the store and could not be seen from outside the store. Thus, at the time that the Union began to picket on the sidewalks and in the parking lot, neither Giant nor Coatesville can be said to have taken measures to unambiguously and specifically have prohibited the activity of the Union nor taken measures to ensure that the Uniоn, picketing outside the store only, would have known about the policy.
This case is factually distinguishable from Socialist Workers, where a plurality of the Supreme Court upheld a trial court‘s refusal to enjoin the owners of a shopping mall
Neither the right of the Union to picket nor the right of the Coatesville and Giant to limit the conduct permitted on its private property is absolute. However, in the absence of any unambiguous and meaningful prohibition on the use of the shopping center property, we cannot conclude that under the common law thе trial court erred in allowing the union to continue its activities on the property until the rights of the parties were finally determined. We hold that the trial court properly denied the preliminary injunction in this case because where a private property owner holds his property open for public use and invites the public onto the property, the property owner is not entitled to an injunction against peaceful informational picketing directed at the conduct of one of the possessors of the property or a tenant on the property in the absence of an established policy specifically and unambiguously prohibiting such picketing on the property in the specific location where the picketing is being conducted and in the absence of a publication of the policy prohibiting such activity where those conducting the prohibited activity can reasonably be expected to be aware of the publication of the policy.
Furthermore, we note that the injunction which was denied here was only a preliminary one and not a permanent one. The rights of the parties to thе use of this property
Order affirmed.
BECK, J., files a concurring opinion.
TAMILIA, J., files a concurring and dissenting opinion.
BECK, Judge, concurring:
I agree with the majority that the trial court did not abuse its discretion by denying appellants’ request for a preliminary injunction against all union picketing at the Thorndale Shopping Center. A preliminary injunction is a special equitable remedy which need not be granted in every case which involves a continuing trespass on private property.
In Wilkes-Barre Independent Company v. Newspaper Guild, Local 120, 455 Pa. 287, 314 A.2d 251 (1974), labor union pickets blocked two of the ten entrances to the employer‘s plant. The employer sought a preliminary injunction, the trial court denied relief, and the employer appealed. Although the Pennsylvania Supreme Court concluded that the union had seized the employer‘s private property, the denial of a preliminary injunction was affirmed. The Court noted that since the union had not prevеnted the employer from gaining access to his plant, the trial judge had been correct in finding that there were no imperative circumstances requiring injunctive relief.
In the instant case, appellant Giant obtained an initial injunction limiting the number of picketers. The union agreed to abide by the terms of this order. Appellants then sought a broader preliminary injunction which would wholly exclude union picketers from the parking lot in front of the Giant Super Market. The trial judge denied this request,
Apart from the narrow question of our standard of review of the denial of a preliminary injunction, a few general comments about private property and free speech are in order. Few would deny that owners of private property have important rights which merit legal protection. However, in the case of land owned by business enterprises which invite the patronage of the public, there are competing interests which deserve to be taken into account. The walkways and parking lots that surround commercial establishments are not essentially private—at least in the same sense that residences, or offices, or the interiors of discrete stores are private. These outdoor areas often closely resemblе the public streets and squares that have been used throughout the history of our country as a forum for the citizenry. See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 90, 100 S.Ct. 2035, 2045, 64 L.Ed.2d 741 (1980) (Marshall, J., concurring). Indeed, in many regions, developers and promoters have succeeded in turning a shopping complex into the principal center of community activity. Thus, a general ban on picketing at the outskirts of a shopping complex significantly restricts the means by which members of the community can convey ideas and exchange information.
This does not mean that unions should have as much a right to demonstrate outside a shopping center as in a city park. My point is rather that the legal system ought to accommodate the interests of all of the parties who are affected by shopping center picketing. The interests to
Appellants argue that in Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Company, 512 Pa. 23, 515 A.2d 1331 (1986), the Pennsylvania Supreme Court conclusively determined that there is neither a constitutional right nor a common law right to picket on private property. We need not reach this issue. However, even assuming that appellants are correct, nothing would prevent the General Assembly from explicitly authorizing reasonable public use of outdoor commercial property for communicative activity. The state legislature has broad authority to regulate the use of private property in the public interest. See Western Pennsylvania Socialist Workers, 512 Pa. at 37, 515 A.2d at 1339 (plurality opinion). This regulation may include imposing limitations on a landowner‘s right to exclude trespassers—so long as the regulation does not so thoroughly deny a lаndowner the use of his land as to constitute a taking of property without just compensation. See Pruneyard Shopping Center, supra (rejecting federal constitutional challenge to California Supreme Court decision preventing shopping mall owner from banning political solicitation on his property).
Of the features which distinguish this society from others, few are of more importance than the extraordinary value which we as a people attach to freedom of expression.
I agree that the trial court order should be affirmed.
TAMILIA, Judge, concurring and dissenting:
While I concur in the result propounded by the majority, I respectfully dissent to the conclusion reached by the majority that the case does not implicate constitutional rights to picket but may be resolved by applying common law principles.
The entire thrust of the holding of the majority is to the effect that in a mall or industrial district, a combination of business and economic interests may сonsolidate in a consortium to control the area by instituting an area-wide policy in advance, with very specific prohibitions and restrictions against Union activities such as picketing, and thereby successfully prevent job actions of any kind by a Union. It is conceivable in a mall or an industrial park that such a grouping could involve thousands of employees, very large businesses and economic interests, which in effect would be circumscribed in such a way that employees could not effectively deal with grievances except by patrolling the perimeters of such an area. In such a case, a perimeter patrol might be more violative of public interests, subject to prohibition because of interference with traffic and persons having no relationship to the economic interests under protest and thereby would be subject to injunctive relief.
Under the majority‘s reasoning, with prohibitions enacted by the property owner as to the private property surround-
As stated by the appellees:
When the General Assembly passed the Labor Anti-Injunction Act in 1937, Act of June 2, 1937, P.L. 1198, § 1,
43 Pa.Stat. § 206a, et seq. , the legislators were particularly concerned with the power of property owners aided by governmental authority for corporate ownership to overpower workers in their rights to organize and protect conditions of employment.43 Pa.Stat. § 206b(a) . Consequently, whenever a legitimate labor dispute arose, they established an absolute prohibition on the power of courts to enter an injunction limiting that protection of those employee rights, except on certain specific terms and conditions.43 Pa. Stat. § 206c(a) , (b), (c);§ 206f(e) , (g), (j), (m).
Appellees’ supplemental brief at 10. Thus a public policy has been created by the General Assembly supporting the rights of Unions to picket in cases such as this and it will not depend upon whether or not Cоatesville and Giant did or did not establish standards and procedures upon which persons could or could not picket. Appellees correctly allege it would have been incumbent upon Coatesville and Giant, had they promulgated such standards, to establish there were alternative means which would be effective to communicate the message founded by the Unions in order for injunctive relief to be granted, as this is not a political action subject to Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981) and Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 512 Pa. 23, 515 A.2d 1331 (1986) but an economic one with totally different considerations.
It is, of course, well established that a State in the exercise of its police power may adоpt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.
Id. at 81, 100 S.Ct. at 2040, 64 L.Ed.2d at 752.
Again, I agree with appellees and the trial court who suggest that Unions have a constitutional right, both under the Federal and State Constitutions to engage in peaceful picketing to communicate their grievances. In N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 112-13, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1955); Warren v. Motion Picture Machine Operators, 383 Pa. 312, 317, 118 A.2d 168 (1955). The majority correctly points out that despite cessation of picketing by the Union, the question raised by this case is not moot as similar picketing is ongoing throughout the Commonwealth. Unquestionably, the constitutionality of such picketing will be an issue in those instances where the property owner had the foresight to limit picketing as suggested by the majority. That right is specifically protected by the Labor Anti-Injunction Act, supra, and the decision of the trial court denying the preliminary injunction requested by Giant and Coatesville in this case, therefore, must be affirmed.