Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance

ZAPPALA, Justice,

concurring.

I concur in the Court’s judgment affirming the determination of the courts below that the Appellants were not entitled to have the Appellee enjoined from denying them access to its property. Because I have serious doubts about the wisdom of Commonwealth v. Tate, 495 Pa. 158 , 432 A.2d 1382 (1981), and the breadth of its language, to the extent that the plurality opinion approves and relies on the reasoning of that case I do not join. On the facts presented, however, I find it unnecessary to further explore Tate .

On the whole I agree with the outline of the grand scheme of governmental powers described in the plurality opinion. The federal government possesses limited ppwers delegated by the states and enumerated in the United States Constitution. The state government possesses general powers founded on the authority of the people, with the exception of certain matters as to which the powers of the state are limited and the rights of the people are declared inviolable. I further agree that our Constitution’s Declaration of Rights, and each of its sections, primarily governs relationships between the individual and the state, by way of setting limits on the state government’s general power; *41 the civil law primarily governs relationships between and among individuals. Where conditions evidence a need for something more than individual ad hoc adjustment of rights, it is ordinarily for the legislature to fashion a priori rules of conduct, and for the courts to assess conduct post hoc according to established normative precepts.

As does the plurality opinion, I find Tate distinguishable at least insofar as it involved the affirmative defense to a charge of defiant trespass found in 18 Pa.C.S. § 3503(b). See at 1336, n. 5. This statute expresses the legislative judgment, of the type discussed above, that in some conditions private property interests are not protected by the power of the state to impose criminal penalties. Those conditions are that the property was “at the time open to members of the public” and that the actor “complied with all lawful conditions imposed on access to or remaining on the premises.”

Because this case does not involve a criminal prosecution or the Section 3503(b) defense, and because it involves a total ban on access to the premises for purposes of solicitation, it is not an appropriate case to address the difficult issue of what requirements must be adhered to in order for conditions to be “lawful”. I am skeptical, however, of the step in the reasoning of Tate by which the Court assumed that “lawful conditions” imposed by an owner of private property must necessarily be consistent with the limitations on government action dictated by the First Amendment and Article 1, § 7. See 495 Pa. at 174 , 432 A.2d at 1390 . I am likewise hesitant to join the unexplained implication in the plurality opinion that in order for conditions on access to be acceptable they must “not grant unfair advantage to particular interest groups” or make the premises “arbitrarily available to [some] while excluding all others.” At 33.

In the present case we need say no more than this: the individual property owner has determined not to allow any persons onto its property for purposes of solicitation; the legislature has not seen fit to regulate the right of property ownership so as to require an owner to permit entry for *42 these purposes; and no tenet of the common law either directly or by analogy establishes the asserted speech and assembly rights as preeminent over the right of maintaining the close of private property. The Appellants, therefore, have no affirmative legal right to enter the appellee’s property on which the injunction sought could have been granted.