Oberholzer, F., et ux v. Galapo, S. Aplts.

[J-51-2023] [MO: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

FREDERICK E. OBERHOLZER, JR. AND : No. 104 MAP 2022

DENISE L. OBERHOLZER, :

: Appeal from the Order of the

Appellees : Superior Court at No. 794 EDA 2020

: dated April 18, 2022, Vacating the

: judgment of the Montgomery County

v. : Court of Common Pleas, Civil

: Division, entered April 1, 2020, at

: No. 2016-11267 and Remanding.

SIMON AND TOBY GALAPO, : (The order of the Superior Court

: dated April 5, 2022, withdrew the

Appellants : March 7, 2022, memorandum.)

:

: ARGUED: October 17, 2023

DISSENTING OPINION

JUSTICE BROBSON DECIDED: August 20, 2024

I respectfully dissent. As explained below, I would conclude that the trial courts of

this Commonwealth have the authority to enjoin residential speech protected by Article I,

Section 7 of the Pennsylvania Constitution 1 that rises to the level of a private nuisance

and disrupts the quiet enjoyment of a neighbor’s home. I would further conclude that the

injunction (Injunction) the Court of Common Pleas of Montgomery County (trial court)

entered in this matter is content neutral, furthers the Commonwealth’s significant interest

in protecting the privacy and quiet enjoyment of Frederick and Denise Oberholzer’s (the

Oberholzers) home, and burdens no more of the speech of Dr. Simon and Toby Galapo

1 Article I, Section 7 of the Pennsylvania Constitution provides, in pertinent part:“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.”

(the Galapos) than necessary to protect the Oberholzers’ right to residential privacy. See

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). As such, I would reverse

the Superior Court’s judgment vacating the trial court’s order and reinstate the Injunction.

I. Permanent Injunctive Relief

“To justify the award of a permanent injunction, the party seeking relief ‘must

establish [(1)] that [the] right to relief is clear, [(2)] that an injunction is necessary to avoid

an injury that cannot be compensated by damages, and [(3)] that greater injury will result

from refusing rather than granting the relief requested.’” Kuznik v. Westmoreland Cnty.

Bd. of Commr’s, 902 A.2d 476, 489 (Pa. 2006) (quoting Harding v. Stickman, 823 A.2d

1110, 1111 (Pa. Cmwlth. 2003)). In affirming the Superior Court’s vacatur of the

Injunction, the Majority essentially disposes of this entire matter on the first permanent

injunction prong above: the Oberholzers’ right to relief is not clear. The Majority reaches

that conclusion by finding that (1) the Galapos’ signs are “pure speech” that do not

constitute picketing, and (2) residential signs, as a matter of law, cannot disrupt the quiet

enjoyment of the home, nor did the Oberholzers make such a showing in this case. In

reaching that conclusion, the Majority recognizes that trial courts can enjoin residential

speech protected by Article I, Section 7 of the Pennsylvania Constitution “upon a showing

that substantial privacy interests are being invaded in an essentially intolerable manner.”

(Majority Op. at 48-49 (quoting Cohen v. California, 403 U.S. 15, 21 (1971)).)

Nonetheless, the Majority finds that the Oberholzers failed to meet that standard. For

multiple reasons, I cannot agree. Ultimately, I would hold that where an individual’s

residential speech rises to the level of a private nuisance that disrupts the quiet enjoyment

of a neighbor’s home, a trial court has the authority to enjoin that speech within the limits

provided in Madsen.

[J-51-2023] [MO: Dougherty, J.] - 2

A. Analysis

I begin by setting forth the general principles of law that guide the ensuing analysis.

In William Goldman Theatres, Inc. v. Dana, 173 A.2d 59 (Pa.), cert. denied, 368 U.S. 897

(1961), this Court held that Article I, Section 7 of the Pennsylvania Constitution “was

designed to . . . prohibit the imposition of prior restraints upon the communication of

thoughts and opinions, leaving the utterer liable only for an abuse of the privilege.”

Goldman Theatres, 173 A.2d at 62. As the Majority recognizes, however, “even where

prior restraints potentially are in play, the nature of the communication [at issue] can alter

the analysis.” (Majority Op. at 40 (quoting Ins. Adjustment Bureau v. Ins. Comm’r for the

Com. of Pa., 542 A.2d 1317, 1324 (Pa. 1988).) This is because “[f]reedom of speech is

not absolute or unlimited.” Wortex Mills v. Textile Workers Union of Am., C.I.O., 85 A.2d

851, 854 (Pa. 1952). Indeed, “[e]ven protected speech is not equally permissible in all

places and at all times.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.

788, 799 (1985). Pertinent to this case, where speech disrupts the quiet enjoyment of the

home, the government generally has the power to enjoin it. See Klebanoff v. McMonagle,

552 A.2d 677, 679 (Pa. Super. 1988) (“The public’s interest in protecting the well-being,

tranquility, and privacy of the home is of the highest order.” (citing Carey v. Brown,

447 U.S. 455, 471 (1980))), appeal denied, 563 A.2d 888 (Pa. 1989); Frisby v. Schultz,

487 U.S. 474, 485 (1988) (“[W]e have repeatedly held that individuals are not required to

welcome unwanted speech into their own homes and that the government may protect

this freedom.”).

Finally, an appellate court’s standard of review of a permanent injunction entered

by a trial court sitting in equity is as follows:

The grant or denial of a permanent injunction is a question of law.

Buffalo Township v. Jones, . . . 813 A.2d 659, 664 & n.4 ([Pa.] 2002).

Regarding the trial court’s legal determination, our standard of review is de

novo, and our scope of review is plenary. Id. . . . . As in all equity matters,

[J-51-2023] [MO: Dougherty, J.] - 3

however, we must accept the trial court’s factual findings and give them the

weight of a jury verdict where they are supported by competent evidence.

Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal Prac. Knowledge, 102 A.3d

501, 506 (Pa. Super. 2014) (citation omitted); Oberholzer v. Galapo, 274 A.3d 738, 747

(Pa. Super. 2022) (same); Buffalo Twp., 813 A.2d at 665 n.7 (“In reviewing fact-laden

decisions, an appellate court displays a high level of deference to the trial court as the

fact finder.”). The Galapos have not challenged the trial court’s findings of fact on appeal,

instead raising only questions of law.

1. Nature of the Galapos’ Speech

The Majority first concludes that the Galapos’ signs constitute “pure speech”

because the signs are not akin to picketing. (Majority Op. at 40.) In Frisby, the United

States Supreme Court considered a facial challenge under the First Amendment to a

Brookfield, Wisconsin ordinance that banned picketing “before or about” any residence.

Frisby, 487 U.S. at 476. Construing the statute narrowly, the Supreme Court reasoned

that the ordinance prohibited picketing only when directed at, or conducted in front of,

individual residences—i.e., when the picketing targeted a single home. Marching through

the streets or routinely on several blocks, on the other hand, was permissible under the

ordinance. So construed, the Supreme Court reasoned that the ordinance was narrowly

tailored to eliminate the “exact source of the ‘evil’ it [sought] to remedy”—i.e., the

disruption of the quiet enjoyment of the home. Id. at 485. The Supreme Court explained:

“The State’s interest in protecting the well-being, tranquility, and

privacy of the home is certainly of the highest order in a free and civilized

society.” Carey . . . , 447 U.S.[] at 471 . . . . Our prior decisions have often

remarked on the unique nature of the home, “the last citadel of the tired, the

weary, and the sick,” Gregory v. Chicago, 394 U.S. 111, 125 . . . (1969)

(Black, J., concurring), and have recognized that “[p]reserving the sanctity

of the home, the one retreat to which men and women can repair to escape

from the tribulations of their daily pursuits, is surely an important value.”

Carey, . . . 447 U.S.[] at 471 . . . .

One important aspect of residential privacy is protection of the

unwilling listener. Although in many locations, we expect individuals simply

[J-51-2023] [MO: Dougherty, J.] - 4

to avoid speech they do not want to hear, cf. Erznoznik v. Jacksonville,

422 U.S. 205, 210-11 (1975) . . . ; Cohen v. California, 403 U.S. 15, 21[-]22

. . . (1971), the home is different. “That we are often ‘captives’ outside the

sanctuary of the home and subject to objectionable speech . . . does not

mean we must be captives everywhere.” Rowan v. Post Office Dept.,

397 U.S. 728, 738 . . . (1970). Instead, a special benefit of the privacy all

citizens enjoy within their own walls, which the State may legislate to

protect, is an ability to avoid intrusions. Thus, we have repeatedly held that

individuals are not required to welcome unwanted speech into their own

homes and that the government may protect this freedom. See, e.g., FCC

v. Pacifica Found[.], 438 U.S. 726, 748[-]49 . . . (1978) (offensive radio

broadcasts); id.[] at 759[-]60 . . . (Powell, J., concurring in part and

concurring in judgment) (same); Rowan, supra (offensive mailings); Kovacs

v. Cooper, 336 U.S. 77, 86[-]87 . . . (1949) (sound trucks).

This principle is reflected even in prior decisions in which we have

invalidated complete bans on expressive activity, including bans operating

in residential areas. See, e.g., Schneider v. State, 308 U.S. 147, 162[-]63

. . . (1939) (handbilling); Martin v. Struthers, 319 U.S. 141 . . . (1943)

(door-to-door solicitation). In all such cases, we have been careful to

acknowledge that unwilling listeners may be protected when within their

own homes. In Schneider, for example, in striking down a complete ban on

handbilling, we spoke of a right to distribute literature only “to one willing to

receive it.” Similarly, when we invalidated a ban on door-to-door solicitation

in Martin, we did so on the basis that the “home owner could protect himself

from such intrusion by an appropriate sign ‘that he is unwilling to be

disturbed.’” Kovacs, 336 U.S.[] at 86 . . . . We have “never intimated that

the visitor could insert a foot in the door and insist on a hearing.” Ibid. There

simply is no right to force speech into the home of an unwilling listener.

Id. at 484-85, 487 (“The First Amendment permits the government to prohibit offensive

speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech.”).

Accordingly, the Supreme Court upheld the ordinance.

In Klebanoff, pro-life demonstrators regularly picketed for almost a year outside

the home of Dr. Klebanoff, who performed abortions in his medical practice. A trial court

ultimately entered a permanent injunction banning the picketing entirely, finding that the

picketing caused immediate and irreparable harm to the Klebanoffs, “greater injury would

occur by refusing the injunction than granting it, and that the Klebanoffs had no adequate

remedy at law.” Klebanoff, 552 A.2d at 677. On appeal, the picketers challenged the

injunction under Article I, Section 7 of the Pennsylvania Constitution. Referencing Frisby,

[J-51-2023] [MO: Dougherty, J.] - 5

the Superior Court held, as a matter of first impression, that “courts of this Commonwealth

can enjoin activity which violates an individual’s residential privacy.” Id. at 678. The

Superior Court then reasoned that the injunction was content neutral because it banned

all picketing without reference to the content or subject matter of the protest and it

contained no subjective or discriminatory enforcement.

Like the United States Supreme Court in Frisby, moreover, the Superior Court

concluded that the injunction served to protect the substantial state interest, similarly

recognized in Pennsylvania law, of residential privacy. Id. at 679 (citing Hull v. Curtis

Pub. Co., 125 A.2d 644, 645-66 (Pa. Super. 1956) (recognizing right to residential

privacy)). The Superior Court explained:

The public’s interest in protecting the well-being, tranquility, and

privacy of the home is of the highest order, Carey . . . , 447 U.S. . . . [at] 471

. . . . The home has been called “the last citadel of the tired, the weary, and

the sick,” Gregory . . . , 394 U.S. . . . [at] 125 . . . . The home serves to

provide, among other things, a [refuge] from today’s complex society where

we are inescapably captive audiences for many purposes. Rowan . . . ,

397 U.S. . . . [at] 738 . . . . Normally, outside of the home, consonant with

the [Pennsylvania and United States] Constitution[s], we expect individuals

to avoid unwanted speech, “simply by averting [their] eyes.” Cohen . . . ,

403 U.S. . . . [at] 21 . . . . But such avoidance within the walls of one’s own

house is not required. Therefore, the courts have repeatedly held that

individuals are not required to welcome unwanted speech and the State

may act to avoid such intrusions into the privacy of the dwelling place,

Frisby[.]

Id. The Superior Court also found that the injunction was narrowly tailored to serve that

purpose, noting that “[t]he permissible scope of the restriction . . . depends on where, in

the spectrum from conduct to pure speech, the speech in question lies.” Id. at 680.

Indeed, the Superior Court noted that “[e]ven a complete ban on all expressive activity in

a traditional public forum is permissible if substantial privacy interests are being invaded

in an essentially intolerable manner.” Id. (citing Erznoznik, 422 U.S. at 210).

[J-51-2023] [MO: Dougherty, J.] - 6

In that regard, the Superior Court referenced its own decision in Rouse

Philadelphia Inc. v. Ad Hoc ’78, 417 A.2d 1248 (Pa. Super. 1979), cert. denied, 449 U.S.

1004 (1980), wherein it explained:

[A]s a person’s activities move away from pure speech and into the area of

expressive conduct they require less constitutional protection. As the mode

of expression moves from the printed page or from pure speech to the

commission of public acts the scope of permissible regulation of such

expression increases.

Id. (emphasis in original) (quoting Rouse, 417 A.2d at 1254). As to the injunction, the

Superior Court reasoned:

Much broader restrictions on expressive activities have been validated in

the past for far less intrusive activities on far less substantial rights than the

right to enjoy privacy in one’s own home. For instance, in Members of City

Council v. Taxpayers For Vincent, 466 U.S. 789 . . . (1984), the [United

States Supreme] Court upheld a municipal ordinance prohibiting the posting

of signs on public property in the interest of eliminating visual blight. Again,

in Lehman v. City of Shaker Heights, 418 U.S. 298 . . . (1974), the [Supreme]

Court held a city’s prohibition of political advertising on buses constitutional

because such advertising interfered with the city’s interest in rapid,

convenient and pleasant transit, (although commercial advertising was

permitted). In this case, given the Commonwealth’s substantial interest in

protecting the use and enjoyment of one’s own home, the injunction does

no more than target the exact source of the evil it seeks to remedy. Frisby[.]

Id. at 681. Referencing the overwhelming evidence in the factual record establishing that

the picketers invaded the privacy and quiet enjoyment of the Klebanoffs’ home, the

Superior Court concluded that a complete ban on such activity was warranted. See id.

at 679-80. Finally, because the injunction allowed ample alternatives for the picketers to

express their pro-life views to Dr. Klebanoff, including at five different offices where Dr.

Klebanoff practiced or by contacting “neighbors via telephone, mail, local publications or

other local media,” the Superior Court upheld the injunction. Id. at 682.

The trial court and Superior Court found the speech at issue in this case analogous

to the picketing in Frisby and Klebanoff with regard to the targeted nature of the Galapos’

signs. I agree with their reasoning. A review of the hearing transcript on the Oberholzers’

[J-51-2023] [MO: Dougherty, J.] - 7

request for a preliminary injunction based on false light privacy, which was the only

hearing at which Dr. Galapo and Mr. Oberholzer testified, demonstrates that the Galapos’

intent in posting the signs was to harass the Oberholzers and coerce them to alter their

behavior.

Specifically, the Oberholzers’ counsel questioned Dr. Galapo as to his purpose for

erecting the signs:

[Oberholzers’ counsel]: Is that what you want somebody to believe when

they see that sign, that Mr. Oberholzer and his wife were killing Jews?

[Dr. Galapo]: No. What I want [the Oberholzers] to know is that you cannot

-- what I want to accomplish by the signs is to protest behavior which we

perceive as being racist towards myself, my wife, and my family.

(Reproduced Record (R.R.) at 244a, 293a, 295a (“The purpose of the signs again is my

protesting this behavior;” “[t]he purpose is to protest the behavior of what the Oberholzers

have been doing in a racist fashion to me and my family.”).) Dr. Galapo then explicitly

rejected the notion that he erected the signs for anyone other than the Oberholzers:

[Oberholzers’ counsel]: You want everybody who goes by on that street

either in a car, on the sidewalk, living in the neighborhood, anybody living

next to the Oberholzers, you want them to see the sign that is directed to

the Oberholzers; correct? You want them to see that sign?

[Dr. Galapo]: No.

[Oberholzers’ counsel]: It’s there to see?

[Dr. Galapo]: No.

[Oberholzers’ counsel]: You said you can see it?

[Dr. Galapo]: You can see it, but that’s not what I want.

[Oberholzers’ counsel]: You want the world to know that –

[Trial court]: Let the witness complete his answer.

[Oberholzers’ counsel]: Sure.

[Dr. Galapo]: What I want is the Oberholzers to stop their behavior of racism

as we perceive it, and then the signs will come down. And further proof of

this, Your Honor, is that we’ve taken them down on our own volition three

times. Three times.

We agreed in this consent order again to take it down in hope that

they would cut out their behavior, that both Mr. Oberholzer and his wife

[J-51-2023] [MO: Dougherty, J.] - 8

would stop their shenanigans and their games of harassing my children, all

within this context of calling my kids fucking Jews -- and I apologize for using

those words -- of calling me a fucking Jew, of speaking about us as Jews

and therefore some deficiency in us.

And over time, even when I felt that the threat was diminished, I took

down signs. But every time I’d take them down, unfortunately, they would

increase their behavior and try to push the card and push the line, and that’s

where we stand, and that’s why the signs were up.

(Id. at 249a-251a (emphasis added).)

Dr. Galapo stated that the signs are directed to the Oberholzers and that he was

unaware of the extent to which the neighbors could see the signs from their homes.

(Id. at 270a-271a.) In fact, Dr. Galapo testified that it was irrelevant whether the

neighbors saw the signs because that was not the intent of the signs; rather, Dr. Galapo

explained that “[t]he intent of the signs were for the Oberholzers to change a behavior

which we perceived as being racist towards my kids, my wife, and me.” (Id. at 257a,

261a-262a, 270a (“[Oberholzers’ counsel]: The signs are directed to the Oberholzers,

and the content, the content on the signs, those words, that’s also direct[ed] to the

Oberholzers? [Dr. Galapo]: Correct.”).) Finally, and most critically, Dr. Galapo indicated

that the message on the signs was irrelevant to his primary goal of stopping the

Oberholzers’ racist behavior: “The issue is getting somebody to stop behavior that we

perceive as racist. These signs--it could be any sign. It doesn’t matter.” (Id. at 306a

(emphasis added).)

To be clear, I in no way endorse the Oberholzers’ anti-semitic behavior toward the

Galapos. In fact, I find their behavior repugnant. But I cannot ignore that this case

concerns the legality of the Galapos’ speech, not the Oberholzers’. And the foregoing

testimony clearly demonstrates that Dr. Galapo erected the signs to protest the perceived

anti-semitic behavior of the Oberholzers against the Galapos and to coerce them to alter

their behavior. Once the signs accomplished that goal, Dr. Galapo testified that he would

take the signs down. The message on the signs was irrelevant to the ultimate goal of

[J-51-2023] [MO: Dougherty, J.] - 9

coercion. Further, while I recognize that the Galapos’ signs potentially relate to a “public

concern,” Snyder v. Phelps, 562 U.S. 443, 451-52 (2011), the signs were not directed

toward the public. Instead, the Galapos erected the signs in their back yard and directed

them strictly toward the Oberholzers—i.e., one private home—while placing zero signs in

their front yard for the public to see. Additionally, if the Galapos intended to reach a

broader audience with the signs, there would be no need for the Galapos to appeal from

the trial court’s order entering the Injunction because, under the Injunction’s limitations,

the signs were still visible to the neighbors, just not the Oberholzers. The nail in the coffin

that cements these points is Dr. Galapo’s testimony that it was irrelevant whether anyone

other than the Oberholzers saw the signs. Thus, the foregoing makes clear that the

Galapos’ signs were targeted speech designed to disrupt the quiet enjoyment of the

Oberholzers’ home.

The Majority disagrees, however, and concludes that the Galapos’ signs

“constituted an act of pure speech” because the signs “do[] not fit the bill of ‘picketing.’”

(Majority Op. at 40.) The Majority reaches that conclusion because the signs lack the

non-speech elements associated with picketing, such as assembly, that form “the basis

and justification for state interference.” (Id. (quoting 1621, Inc. v. Wilson, 166 A.2d 271,

275 (Pa. 1960)).) The Majority paints the analysis as black and white; either (1) the

speech is picketing, which is targeted speech the state can enjoin, or (2) it is “pure

speech” that is impregnable. The interest that animated the decisions in Frisby and

Klebanoff, however, was the protection of residential privacy. Neither case stands for the

proposition that picketing is the only manner of speech that can disrupt the quiet

enjoyment of the home. And to narrow those cases into such a dichotomy—i.e., either

picketing or “pure speech”—overlooks that the issue here is one of first impression that

does not fall cleanly into this Court’s or the United States Supreme Court’s precedent.

[J-51-2023] [MO: Dougherty, J.] - 10

Nonetheless, Frisby and Klebanoff make clear that the analysis revolves around whether

the speech at issue disrupts the quiet enjoyment of the home, not whether the speech

constitutes picketing.

In sum, I would conclude that the speech at issue is targeted speech that is

intended to harass the Oberholzers and coerce them to alter their behavior, which makes

the speech at issue similar in nature to the picketing activity in cases such as Frisby and

Klebanoff. As explained below, this conclusion lends support to my belief that trial courts

in the Commonwealth—and the trial court in this matter—have the authority to enjoin such

speech where it can be shown that the speech disrupts the quiet enjoyment of the home.

2. Trial Court Authority to Enjoin Nuisance

The Majority recognizes that the Oberholzers’ claim for permanent injunctive relief

arises in private nuisance and that the trial court, sitting as a court of equity, entered the

Injunction on that basis and not defamation or false light privacy. (Id. at 14 n.6 (“Moving

forward, then, we operate under the understanding that injunctive relief was granted only

on the nuisance cause of action.”).) The Restatement (Second) of Torts defines private

nuisance generally as “a nontrespassory invasion of another’s interest in the private use

and enjoyment of land.” Rest. 2d Torts § 821D. Section 822 of the Restatement (Second)

of Torts sets forth the general rule for demonstrating a private nuisance:

One is subject to liability for a private nuisance if, but only if, his conduct is

a legal cause of an invasion of another’s interest in the private use and

enjoyment of land, and the invasion is . . .

(a) intentional and unreasonable . . . .

Rest. 2d Torts § 822. “It is hornbook law that a [c]ourt of [e]quity possesses jurisdiction

to . . . enjoin a nuisance.” Gardner v. Allegheny Cnty., 114 A.2d 491, 498 (Pa. 1955).

In Youst v. Keck’s Food Services, Inc., 94 A.3d 1057 (Pa. Super. 2014), for

example, a neighbor erected drainage pipes on their property that changed the direction

of a creek to flow directly onto Denny Youst’s land. Youst operated a farm on his property

[J-51-2023] [MO: Dougherty, J.] - 11

and testified that the redirection of the creek significantly harmed his ability to pasture and

water his animals and that some of his animals died as a result. Youst, 94 A.3d

at 1062-63. The trial court concluded that the neighbor’s conduct constituted a private

nuisance necessitating permanent injunctive relief, and the Superior Court affirmed.

Referencing Section 821D of the Restatement (Second) of Torts, the Superior Court

reasoned that the evidence clearly established that the neighbor’s diversion of the creek

onto Youst’s land interfered with the quiet enjoyment of his property. Id. at 1071-74, 1079.

Accordingly, the Superior Court concluded that the neighbor must “[u]ndoubtedly . . .

abate th[e] nuisance . . . since the nuisance is continuing [and] the trial court possessed

the authority to issue a permanent injunction.” Id. at 1079. See also Rhodes v. Dunbar,

57 Pa. 274, 286 (Pa. 1868) (discussing permanent injunction in relation to proposed

“planing-mill” near residential property that would create noise, sawdust, smoke, and soot

allegedly constituting private nuisance).

The Majority rightly points out that the foregoing nuisance law does not involve

Article I, Section 7 of the Pennsylvania Constitution. (See Majority Op. at 47 n.21.) The

Majority, therefore, references other decisions to reach its ultimate conclusion that the

trial court lacked the authority to enjoin the Galapos’ speech in this case. For example,

in Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978), the law firm of Quinn & Mazzocone

represented Helen Willing in a workers’ compensation matter. Believing that Quinn &

Mazzocone defrauded her of funds that she was owed, Willing demonstrated in a public

plaza directly outside Quinn & Mazzocone’s offices. Specifically, Willing marched back

and forth for several hours a day in the plaza wearing a “sandwich-board” around her

neck stating: “LAW FIRM of QUINN MAZZOCONE Stole money from me and

Sold-me-out-to-the INSURANCE COMPANY.” Willing, 393 A.2d at 1156 (emphasis in

[J-51-2023] [MO: Dougherty, J.] - 12

original). Willing also pushed a shopping cart draped with an American flag and

continuously rang a cowbell and blew a whistle to attract attention.

Attorneys Carl Mazzocone and Charles Quinn filed suit in equity court seeking to

enjoin Willing from further demonstration. After several hearings, it was adduced that

Quinn & Mazzocone did not defraud Willing of any funds, but Willing refused to accept

that factual finding. See id. at 1157. Accordingly, the trial court enjoined Willing from

“further unlawful demonstration, picketing, carrying placards which contain defamatory

and libelous statements and or uttering, publishing and declaring defamatory statements

against [Quinn & Mazzocone].” Id. The Superior Court affirmed, but it modified the trial

court’s injunction to read: “Helen R. Willing, be and is permanently enjoined from further

demonstrating against and/or picketing Mazzocone and Quinn, Attorneys-at-Law, by

uttering or publishing statements to the effect that Mazzocone and Quinn,

Attorneys-at-Law stole money from her and sold her out to the insurance company.” Id.

This Court reversed, recognizing in the first part that Article I, Section 7 of the

Pennsylvania Constitution is designed to “prohibit the imposition of prior restraints upon

the communication of thoughts and opinions, leaving the utterer liable only for an abuse

of the privilege.” Id. (emphasis added) (quoting Goldman, 173 A.2d at 62). Rather, this

Court adhered to the principle that equity lacks the power to enjoin publication of

defamatory matter. Id. at 1158. In support of that rationale, this Court emphasized that

Quinn & Mazzocone had an adequate remedy at law in the form of money damages that

could make them whole for the defamation Willing perpetrated. Id.

Based seemingly in part on the rationale of cases such as Willing, the Majority

fashions a new legal standard for a trial court to enjoin residential speech protected by

Article I, Section 7 of the Pennsylvania Constitution. Specifically, the Majority explains

that “although trial courts generally lack the power to enjoin speech under Article I,

[J-51-2023] [MO: Dougherty, J.] - 13

Section 7, because ‘[f]reedom of speech is not absolute or unlimited,’ Wortex Mills,

85 A.2d at 854, we also hold that courts may enjoin speech upon a showing that

‘substantial privacy interests are being invaded in an essentially intolerable manner.’”

Cohen, 403 U.S. at 21.” (Majority Op. at 49-50 (emphasis added).) The Majority draws

that standard from Cohen v. California, 402 U.S. 15 (1971), a United States Supreme

Court decision concerning the First Amendment to the United States Constitution.

In Cohen, the appellant was observed wearing a jacket bearing the words “Fuck

the Draft” in a county courthouse where women and children were present. The appellant

was arrested and subsequently convicted of violating a since-amended California criminal

statute that, at the time, prohibited “‘maliciously and willfully disturb(ing) the peace or quiet

of any neighborhood or person . . . by . . . offensive conduct.”2 Cohen, 403 U.S. at 16

(quoting Cal. Penal § 415). The United States Supreme Court struck down the statute

and reversed the appellant’s conviction, reasoning that the appellant’s jacket was not

obscene because it lacked erotic features and the wording on it did not constitute fighting

words. Further, the Supreme Court commented on other “offensive” speech:

Finally, in arguments before this Court much has been made of the

claim that Cohen’s distasteful mode of expression was thrust upon unwilling

or unsuspecting viewers, and that the State might therefore legitimately act

as it did in order to protect the sensitive from otherwise unavoidable

exposure to appellant’s crude form of protest. Of course, the mere

presumed presence of unwitting listeners or viewers does not serve

automatically to justify curtailing all speech capable of giving offense. See,

e.g., Organization for a Better Austin v. Keefe, 402 U.S. 415 . . . (1971).

While this Court has recognized that government may properly act in many

situations to prohibit intrusion into the privacy of the home of unwelcome

views and ideas which cannot be totally banned from the public dialogue,

e.g., Rowan v. United States Post Office Dept., 397 U.S. 728 . . . (1970),

we have at the same time consistently stressed that ‘we are often ‘captives’

outside the sanctuary of the home and subject to objectionable speech.’ Id.,

at 738 . . . . The ability of government, consonant with the Constitution, to

2 Notably, although the appellant was arrested in a county courthouse, the California

criminal statute was widely applicable to any location.

[J-51-2023] [MO: Dougherty, J.] - 14

shut off discourse solely to protect others from hearing it is, in other words,

dependent upon a showing that substantial privacy interests are being

invaded in an essentially intolerable manner. Any broader view of this

authority would effectively empower a majority to silence dissidents simply

as a matter of personal predilections.

Cohen, 403 U.S. at 21. Absent a more compelling state interest, the Supreme Court

concluded that California could not, consistent with the First and Fourteenth

Amendments, “make the simple public display here involved of this single four-letter

expletive a criminal offense.” Id. at 26.

I agree with the holdings in Willing and Cohen. Critically, however, neither case

concerned the quiet enjoyment of the home. Immediately, that distinction sets this case

apart. Further, both Willing and Cohen lacked any countervailing right that required

balancing against the right to free speech under Article I, Section 7 of the Pennsylvania

Constitution and the First Amendment to the United States Constitution. There is no

constitutional right not to be defamed or, as Cohen makes clear, to not be offended in a

public setting. 3 This renders Willing and Cohen of little-to-no precedential value to the

present matter where a balancing of rights is necessary, and it provides no support for

the new legal standard the Majority has adopted. And, as explained in more detail in

Section II of this Opinion, a balancing of rights is precisely what the trial court in this matter

did—i.e., the trial court properly tailored the Injunction to provide adequate protection both

to the Oberholzers’ right to the quiet enjoyment of the home and to the Galapos’ right to

free speech under Article I, Section 7. Accordingly, because private nuisance is distinct

from other torts in that it inherently involves the quiet enjoyment of the home, I believe

that trial courts have the authority to enjoin residential speech protected by Article I,

3 The Majority suggests the right to reputation in Article I, Section 1 of the Pennsylvania

Constitution was at play in Willing (see Majority Op. at 45 n.20), but the right to reputation

does not inhere in private defamation cases. Again, there is no constitutional right not to

be defamed.

[J-51-2023] [MO: Dougherty, J.] - 15

Section 7 that rises to the level of a private nuisance and disrupts the quiet enjoyment of

the home within the limits imposed by Madsen. 4

3. Quiet Enjoyment of the Home

Lastly, critical to the foregoing analysis is whether the Galapos’ signs did, in fact,

disrupt the quiet enjoyment of the Oberholzers’ home. At the preliminary injunction

hearing, Mr. Oberholzer testified that when he looked out his back window he saw

“[n]othing but signs,” that the signs made him feel “[h]orrible,” and that, as a result, he

saw a doctor who prescribed him anti-anxiety medication, which he used throughout the

day and to sleep at night. (R.R. at 352a-353a.) Mr. Oberholzer also generally explained

that neighbors negatively changed their attitudes toward him and his wife. (See id.

at 356a-358a.) Mrs. Oberholzer testified via deposition that their neighbors were “acting

differently” toward them as a result of the signs, a parent approached her at the daycare

facility at which Mrs. Oberholzer works regarding the signs, and that the Oberholzers

stopped hosting people at their home because they did not want to have to explain the

signs. (Id. at 143a-147a.) Mrs. Oberholzer also explained that her doctor increased her

anti-anxiety medication to three times a day. (Id. at 149a.)

4 Contrary to the Majority’s suggestion, moreover, this case does not concern enjoining

residential speech based on one person’s subjective dislike of that speech. (See Majority

Op. at 52 n.23.) Rather, this case is based upon a private nuisance—i.e., speech that

disrupts a neighbor’s quiet enjoyment of his home. Further, while the Majority criticizes

my standard as being too low, its own legal standard, as set forth above, is just as likely

to allow a neighbor to “haul[] [another landowner] into court” after taking offense to the

landowner’s residential speech. (Id.) Our organic charter guarantees access to the

courts, but it does not guarantee success, Pa. Const. art. 1, § 11, and I think that the

citizens of Pennsylvania would “be quite surprised to learn” that they are barred from

seeking a remedy to a private nuisance in court simply because speech is at issue.

(See id.) As a safeguard, the trial courts of this Commonwealth are well equipped to

determine whether a person’s residential speech disrupts a neighbor’s use of his property

just as trial courts do in other nuisance cases and to sanction frivolous lawsuits where

necessary.

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Based on the Oberholzers’ testimony, “as well as the pointed preliminary injunction

hearing testimony of [Dr.] Galapo,” the trial court found that the Galapos’ actions “severely

and negatively impact[ed] the [Oberholzers’] well-being, tranquility, and quiet enjoyment

of their home.” (Trial Ct. Op. at 7.) The Majority, however, concludes that the trial court’s

determination in that regard “is not equivalent to a finding ‘that substantial privacy

interests are being invaded in an essentially intolerable manner[.]’” (Majority Op. at 53

(quoting Cohen, 403 U.S. at 21).) In other words, because the trial court did not apply

the Majority’s articulation of its new legal standard, the trial court erred as a matter of law

and the Oberholzers are not entitled to relief. First, as explained above, the Majority

provides no basis for why its new legal standard should apply rather than determining,

like the trial court did in this matter, that the Galapos’ speech constitutes a private

nuisance that disrupts the quiet enjoyment of the Oberholzers’ home. Further, if the

Majority’s standard is, indeed, a heightened one and the trial court was unaware of this

new law, the Majority should remand this matter. On remand, the trial court can reassess

whether the Oberholzers established that the Galapos intolerably invaded the

Oberholzers’ substantial privacy interest.

Nonetheless, even accepting the Majority’s standard, I fail to see how a severe

and negative impact upon the well-being, tranquility, and quiet enjoyment of the

Oberholzers’ home is insufficient to warrant injunctive relief. Surely, the quiet enjoyment

of the home is a “substantial privacy interest.” See, inter alia, Frisby, supra. The Majority

also offers no explanation for how a severe and negative impact on that interest has any

meaningful distinction from an “intolerable invasion” of privacy. Simply because the trial

court did not intone the magic words the Majority would require does not mean that it

reached an erroneous result.

[J-51-2023] [MO: Dougherty, J.] - 17

Not only does the Majority apply a misguided and untested legal theory to this

matter, but it also disregards the trial court’s factual findings that have support in the

record—all seemingly to reach its desired result of denying the Oberholzers relief. To

reiterate, an appellate court’s standard of review of a permanent injunction entered by a

trial court sitting in equity is as follows:

The grant or denial of a permanent injunction is a question of law.

Regarding the trial court’s legal determination, our standard of review is de

novo, and our scope of review is plenary. As in all equity matters, however,

we must accept the trial court’s factual findings and give them the weight of

a jury verdict where they are supported by competent evidence.

Liberty Place, 102 A.3d at 506 (emphasis added) (citations omitted); Oberholzer,

274 A.3d at 747 (same); Buffalo Twp., 813 A.2d at 665 n.7 (“In reviewing fact-laden

decisions, an appellate court displays a high level of deference to the trial court as the

fact finder.”). The Majority fails to adhere to this standard. Instead, despite insisting that

it takes the trial court’s factual findings and credibility determinations “at face value,”

(Majority Op. at 55 n.2.), it substitutes its contrary assessment of the harm to the

Oberholzers with that of the trial court, explaining:

Here, though, we are unconvinced that the Galapos’ signs intolerably

intrude upon any substantial privacy interests held by the Oberholzers. The

Galapos’ signs are stationed exclusively on their own property and they lack

any coercive or other element that might implicate the Oberholzers’ privacy

interests. See Deposition of Denise Oberholzer, 3/13/18, at 42-43

(admitting none of the signs mentioned the Oberholzers by name,

encroached their property, or were threatening); Deposition of Frederick

Oberholzer, 3/13/18, at 29-30 (same). Nor do the signs present any type of

actionable, non-speech-based nuisance, like excessive illumination or loud

noises. See Kohr v. Weber, 166 A.2d 871, 874 (Pa. 1960) (“loud noises,

glaring illumination, and swirling dust clouds which” accompanied facility for

drag-racing properly enjoined). The signs are just that: signs. All

homeowners at one point or another are forced to gaze upon signs they

may not like on their neighbors’ property — be it ones that champion a

political candidate, advocate for a cause, or simply express support or

disagreement with some issue.

[J-51-2023] [MO: Dougherty, J.] - 18

(Majority Op. at 49 (emphasis added).) Indeed, the Majority baldly concludes that “the

record does not support . . . a conclusion” that the Galapos’ signs intolerably invade the

Oberholzers’ substantial privacy interest without any discussion of the testimony or facts

the trial court found significant to its conclusion. (Id. at 53.) Because the Majority’s doing

so displaces the trial court’s factual findings, I cannot agree.

B. Conclusion

To summarize, I view the Galapos’ signs as targeted speech intended to harass

the Oberholzers and coerce them to alter their behavior. As a result, I believe the

Galapos’ speech rises to the level of a private nuisance, which the trial court had the

authority to enjoin. Finally, the trial court’s factual determination that the Galapos’ signs

disrupted the quiet enjoyment of the Oberholzers’ home is supported by the record, and,

therefore, this Court should not disturb it. And because this case concerns the quiet

enjoyment of the home and not some other “substantial privacy interest,” I believe the trial

court’s determination is sufficient to support the Injunction.

II. Tailoring of the Injunction under Madsen

It remains to be determined, however, whether the Injunction is content neutral

and burdens no more of the Galapos’ speech than necessary to serve a significant

governmental interest. Madsen, 512 U.S. at 765. To answer that question, I look no

further than the Superior Court’s and Judge Stabile’s well-reasoned analyses. Indeed, I

agree with the Superior Court that the Injunction is content neutral because the Injunction

does not refer to the content or subject of the Galapos’ signs and because the purpose

of the Injunction, as stated by the trial court, is to protect the quiet enjoyment of the

Oberholzers’ home—not to censor the message on the Galapos’ signs. Oberholzer,

274 A.3d at 757. Support for the Superior Court’s reasoning in that regard can be found

in Madsen, Frisby, Klebanoff, and SmithKline Beecham Corp. v. Stop Huntingdon Animal

[J-51-2023] [MO: Dougherty, J.] - 19

Cruelty USA, 959 A.2d 352 (Pa. Super. 2008), all of which reached the same conclusion.

See SmithKline, 959 A.2d at 358-59 (upholding facially content-neutral injunction banning

“picketing, demonstrating, leafleting, protesting or congregating at the homes of the

Individual Plaintiffs”).

I further agree with Judge Stabile’s concurring opinion that it is difficult to “fathom

a more narrowly tailored remedy . . . than that ordered by the trial court.” Oberholzer,

274 A.3d at 770 (Stabile, J., concurring). As Judge Stabile explained:

The trial court took a very measured and narrow approach to fashioning its

injunction to protect [the Oberholzers’] privacy interest in their home by

ordering only that the signs be positioned so as not to face [the

Oberholzers’] property. When this initial directive proved ineffective

because the messages nonetheless could be read through the back of the

signs, the [trial] court entered an amended injunction (now on appeal)

ordering that the sign material be opaque so that the messages could not

be seen even when the signs were turned away from [the Oberholzers’]

home. The trial court did not ban or seek to modify any content of the

offending signs. It did not limit the number of signs or the number of

messages that could be posted. No restriction was placed on the time when

the signs could be placed, the location of the signs upon [the Galapos’]

property, or who may see the signs other than [the Oberholzers]. In sum,

the only restraint the [trial] court imposed upon [the Galapos’] personal

protest against [the Oberholzers] was to construct the signs of opaque

material and to face the signs away from [the Oberholzers’] home. In my

opinion, the trial court took the most conservative approach to enjoining [the

Galapos’] conduct that burdened no more speech than necessary to serve

a significant government interest to address the unwanted messaging

targeted at [the Oberholzers] that could be seen from within the privacy of

their home. . . . Under these circumstances, I would conclude that the trial

court’s improper reliance upon a time, place and manner standard to

fashion its injunctive remedy was harmless error not warranting a remand.

Id. at 769-70 (Stabile, J., concurring). In fact, the trial court’s Injunction left a multitude of

channels for the Galapos to disseminate anti-hate and anti-racism messages, including,

but not limited to, leaflets, phone banking, billboards, and picketing in public areas or

throughout their residential neighborhood. The Injunction simply prevented the Galapos

from directing their messages at the Oberholzers in a manner disrupting the quiet

[J-51-2023] [MO: Dougherty, J.] - 20

enjoyment of their home. Finally, the relevant case law convincingly demonstrates that

protecting the quiet enjoyment of the home is a significant governmental interest. Carey,

447 U.S. at 471 (“The State’s interest in protecting the well-being, tranquility, and privacy

of the home is certainly of the highest order in a free and civilized society.”). Accordingly,

I see no error in the trial court’s reasoning supporting the Injunction.

III. Conclusion

I would conclude that the trial courts of this Commonwealth have the authority to

enjoin residential speech protected by Article I, Section 7 of the Pennsylvania Constitution

that rises to the level of a private nuisance and disrupts the quiet enjoyment of a

neighbor’s home. I would further find that the Injunction is content neutral, furthers the

Commonwealth’s significant interest in protecting the privacy and quiet enjoyment of the

Oberholzers’ home, and burdens no more of the Galapos’ speech than necessary to

protect the Oberholzers’ right to residential privacy. Madsen, 512 U.S. at 765.

Accordingly, I would reverse the Superior Court’s judgment vacating the trial court’s order

and reinstate the Injunction.

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