Appendix — Ad Hoc '78 v. Rouse Philadelphia, Inc.

u, ‘elo f yg

FILED

80-A77 SEP 25 1980

No. ments ne oe tes

IN THE

Supreme Court of the United States

October Term, 1980

AD HOC ’78, T. MILTON STREET,

Petitioners,

v.

ROUSE PHILADELPHIA INC.; REDEVELOPMENT AUTHOR-

ITY OF THE CITY OF PHILADELPHIA; GIMBEL

BROTHERS, INC.; and the GIMBEL BROTHERS REALTY

CORPORATION,

Respondents.

On Writ of Certiorari to the Superior Court

of Pennsylvania

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

GeorcE D, GouLp

CoMMUNITY LEGAL SERVICES, INC.

Sylvania House

Juniper and Locust Streets

Philadelphia, Pennsylvania 19107

(215) 893-5306

Counsel for Petitioner Ad Hoc ’78

Joun F. STREET

801 One Penn Square Building

Philadelphia, Pennsylvania 19107

(215) LO 8-1670

Counsel for Petitioners T. Milton Street

and Ad Hoc ’78

International Printing Co., 711 So. 50th St., Phila., Pa, 19143 — Tel. (215) 727-8711

TABLE OF CONTENTS OF APPENDIX.

Opinion of the Superior Court of Pennsylvania ........ Al

Opinion Sur Motion for Preliminary Injunction of the

Court of Common Pleas of Philadelphia County,

EIN, vc ccceescccesensseresessscosees A21

Decree and Order of the Court of Common Pleas of

Philadelphia County, Trial Division, Dated January

Eek hads ee ee vases vaesisvecasesess A66

Findings of Fact and Conclusions of Law of the Court

of Common Pleas of Philadelphia County, Trial

EGE cap bess bereeseavecsersvccceenoens A69

Supplemental Opinion Sur Motion for Preliminary In-

junction of the Court of Common Pleas of Phila-

delphia County, Trial Division ................++. Alll

Order and Decree of the Court of Common Pleas of

Philadelphia County, Trial Division, Dated February

aa ieee ee ees eberceneeessenseuees A159

Order of the Supreme Court of Pennsylvania Denying

Petition for Allowance of Appeal ................ A163

Judgment of the Superior Court of Pennsylvania ...... A164

Questions Presented for Review, Petition in Supreme

Court of Pennsylvania ...............seeseevees A166

Appendix.

OPINION OF THE SUPERIOR COURT OF

PENNSYLVANIA AS CORRECTED.°

IN THE

SUPERIOR COURT OF PENNSYLVANIA

Nos. 380, 390 & 444, OcroBeR TERM, 1979

J. 24/1979

ROUSE PHILADELPHIA INC.

and

REDEVELOPMENT AUTHORITY OF

THE CITY OF PHILADELPHIA,

Plaintiffs,

and

GIMBEL BROTHERS, INC.

and

GIMBEL BROTHERS REALTY CORP.,

Intervening Plaintiffs,

v.

AD HOC ’78

and

T. MILTON STREET AS AN INDIVIDUAL AND AS A

REPRESENTATIVE OF AD HOC ’78 THE UNIN-

CORPORATED ASSOCIATION OF PERSONS

ACTING IN CONCERT TO BLOCK INGRESS TO

AND EGRESS FROM THE GALLERY AT

MARKET EAST

and

* Incorporating corrections contained in letter from Prothono-

tary dated January 3, 1980.

(Al)

A2 Pa. Superior Court Opinion

JOHN DOE AND JANE DOE

and

ALL OTHER PERSONS ACTING IN CONCERT WITH

THE NAMED PARTICIPANTS OR OTHERWISE

PARTICIPATING IN THEIR AID,

Appellants

APPEALS FROM THE ORDERS OF THE COURT OF CoMMON

PLEAS OF PHILADELPHIA County, Aucust TERM, 1978,

No. 4145, GRANTING A PRELIMINARY INJUNCTION AND

Ho.pinc T. MILTON STREET IN CiviL CONTEMPT

oF CourRT.

Berore: VAN Der Voort, WaTKINs and LipEz, JJ.

Opinion by Watkins, J.

(Filed December 28, 1979)

This case comes to us on appeal from the Court of

Common Pleas of Philadelphia County, Civil Division,

and involves defendant’s appeal from an Order of the

court below holding him in civil contempt of court. De-

fendant was also fined Five Thousand ($5,000.00 ) Dol-

lars which fine was made payable to the City of Phila-

delphia within six (6) months.

On August 25, 1978, the defendant, T. Milton Street,

and a large group of persons estimated to be from three to

five thousand (3000 to 5000) strong, massed at various

locations in and around the entrances to a downtown

shopping mall in Center City Philadelphia known as The

Gallery. They also converged on Gimbels Department

Store located in the same area. Ingress and egress to

Pa. Superior Court Opinion A3

both The Gallery and Gimbels was rendered difficult and,

at times, impossible, by the group's activities.

The defendant and three to five hundred (300 to

500) of the demonstrators then entered The Gallery and

marched throughout the mall shouting in loud voices and

bringing business therein to a virtual standstill. The de-

fendant spoke to the throng with the aid of sound amplifi-

cation equipment and urged a boycott of the business in

the mall.

A temporary restraining order was promulgated by

the court below on August 26, 1978, and on January 31,

1979, the court below entered an order enjoining the de-

fendant and the persons acting in concert with him from

“picketing, handbilling, speechmaking, demonstrating,

and boycotting inside or outside The Gallery or Gimbels

” The court defined the area from which defendants

were enjoined from engaging in the aforesaid activities

as “the public areas therein [The Gallery and Gimbels],

or any of the three colonnades located outside the entrance

to Gimbels, or the exterior courtyard area, or the sidewalk

which forms the immediate perimeter surrounding The

Gallery, Gimbels and Strawbridge Store.”

On February 22, 1979, the defendant and thirty-seven

(37) other persons were arrested at The Gallery for al-

legedly violating the January 31, 1979 injunction decree.

A hearing was then held at which witnesses testified that:

Street and two hundred and fifty (250) to three hundred

(300) people had congregated on the northeast corner of

10th and Market Streets in Philadelphia, in front of The

Gallery and Gimbels; they also had congregated on the

sidewalk and in the colonnades area of the mall; the group

shouted and blocked the entrance to The Gallery and

Gimbels; because they stood close together they were suc-

cessful in preventing people from entering the stores; that

during the incident members of the defendant's group

A4 Pa. Superior Court Opinion

chanted and shouted “boycott” to persons attempting to

enter The Gallery; that a police officer, who had been em-

powered to enforce the court order enjoining the dem-

onstration gave the defendant Street and his attorney

copies of the January 31, 1979 order; that an officer then

read the court order to the group using sound amplifica-

tion equipment but the group continued to shout and

chant “boycott” as the order was read to them; and that

after giving the group five minutes to disburse the police

arrested defendant Street and thirty-seven (37) of his

followers. At the hearing defendant Street was given the

opportunity to address the court and informed the court

that despite the court order he intended “to go back to

The Gallery tomorrow’.

On February 23, 1979, defendant Street went to The

Gallery again and led a group of demonstrators onto the

northeast corner of 10th and Market Streets. After being

notified of the defendant’s actions the court ordered the

arrest of persons violating the January 31, 1979 Order.

Street was one of the persons arrested. A hearing was

held at 1:30 P. M. on February 23, 1979. Testimony ad-

duced at the hearing revealed that at 11:20 A. M., the

defendant led a group of thirty-five (35) protestors to the

northwest corner of 10th and Market Streets then crossed

the intersection. The group was shouting “boycott, boy-

cott” throughout the incident. As the police attempted to

read the court order of January 31, 1979 to them, the

group marched east on the north side of Market Street

for a distance of approximately twenty (20) feet then

turned around and marched back to the northeast corner.

This area lies in front of The Gallery. The defendant

then led his group to a SEPTA boarding island which runs

east to west in the 900 block of Market Street on the north

side and is about twenty (20) feet from the sidewalk.

During this period the group continued to chant “boycott,

Pa. Superior Court Opinion A5

boycott, boycott The Gallery”, which chanting was clearly

audible to persons located at the entrance to aud on the

sidewalk in front of The Gallery. At this point defendant

and his followers were arrested.

After the hearing, the defendant was found in civil

contempt of court and was committed for ninety (90)

days, conditioned upon his right to purge himself of the

contempt by assuring the court that he would, in the fu-

ture, abide by the court order until such order was vacated

or stayed. He was also fined Five Thousand ($5,000)

Dollars. On February 26, 1979, Street filed an appeal to

this Court.

Defendant’s first argument is that the court order

prohibiting the “picketing, handbilling, speechmaking,

demonstrating and boycotting of The Gallery” constituted

an unconstitutional violation of defendant’s First Amend-

ment rights of freedom of speech and expression. De-

fendant’s brief states at length defendant’s belief that

certain federal monies used in the construction of the

downtown shopping mall should have been used instead

to provide for low-income housing for residents of North

Central Philadelphia. Defendant also claims that his pro-

test was justifiable because he was protesting the fact that

only one business in the mall was black owned. Defend-

ant claims that since The Gallery is owned by The Rede-

velopment Authority of Philadelphia (RDA) that his boy-

cott was one of a public building. However, the RDA

leased the mall to Rouse Corporation for ninety-nine (99)

years and Rouse, in turn, rents individual space within the

mall to ninety-four (94) private owners. Thus, it is ap-

parent that The Gallery is indeed comprised of ninety-

four (94) private businesses and boycotting or picketing

of it constitutes the boycotting or picketing of private busi-

ness. Gimbels and Strawbridge and Clothier are private

businesses and own the building adjacent to the mall in

A6 Pa. Superior Court Opinion

fee simple. Under such circumstances we find that the

demonstrations in question were clearly directed at private

businesses.

Defendant also argues that the court order was not

lawful because the objective of the boycott was “to com-

municate a message to government regarding the expendi-

ture of public monies”. At the various hearings held on

this matter it was shown that: the demonstrators shouted

and chanted so loudly that normal conversation was im-

possible anywhere in the vicinity; that the group occupied

virtually all of the walkways, stairs, and escalators in The

Gallery; that the demonstrators carried umbrellas and

signs which they brandished in a vigorous fashion; that a

group of the demonstrators sat down and sprawled in the

walkways of The Gallery and in the “Market Fair” area of

the mall which is an area containing approximately twenty

(20) fast food restaurants in the western end of the mall;

that when so situated they listened to and gave speeches

over amplifying equipment and stood on tables in the

restaurants thereby denying patrons of ingress and egress

to the area; that as a result of this activity shops in the

mall closed, patrons left the area and business in the mall

and other stores was brought to a virtual standstill. It

was also shown that on certain occasions during the

demonstration several demonstrators had entered a Mc-

Donald’s restaurant in the mall and had told patrons that

the food was horsemeat and had maggots in it. Ata

bakery in the mall (Tiffany’s) disparaging remarks about

the quality of food were also made to the store's patrons

and one demonstrator stuck her finger in her nose and

then touched the produce. Several demonstrators had

engaged in violent incidents during the picketing. One

demonstrator, a Terrence Potter, had tripped the owner of

the bakery during a demonstration. A group of demon-

strators then gathered in front of the bakery and shouted

wd

Pa. Superior Court Opinion A7

obscene comments and racial slurs at the owner. Potter

had also threatened to beat up another merchant in the

mall. Another demonstrator, Harry Miller, had threatened

to break a merchant’s jaw. A group of demonstrators

also threatened an elderly female patron of the mall telling

her to get out of there “while she could still walk”. The

demonstrators also ignited a number of fires throughout

the mall by igniting the refuse in trash receptacles located

throughout the mall. It was also proven that Street had

forged a copy of the court order of October 6, 1978 and

had distributed copies of the forged order throughout the

throng. The forged document distorted the court order

so as to convey the impression that it was leafletting ma-

terial. Street and other demonstrators had given several

speeches in which they stated that the purpose of the

demonstration was to bankrupt merchants in The Gallery

and Gimbels. They also demanded “reparations” from

Rouse, Gimbels and the other merchants. They demanded

that appellees pay money to black, Spanish-speaking and

poor white neighborhoods as “reparations” for the money

spent by the Redevelopment Authority on the mall.

Appellant’s contention that he did not violate the Jan-

uary 31, 1979 order of court is patently frivolous. Street

claims that by moving the demonstration from The Gal-

lery and Gimbels to the medial strip of Market Street,

about twenty feet (20) away from the proscribed area, he

complied with the court order. On February 22, 1979,

Street and his followers picketed and demonstrated on the

sidewalks outside The Gallery, Gimbels and Strawbridge

and Clothier in direct defiance of the court order. The

fact that they later moved to a location twenty (20) feet

away from the sidewalk does not alter the fact that they

directly violated the order by demonstrating on the side-

walk outside The Gallery. In fact, Street had stated in

open court that he intended to go back to The Gallery

A8 Pa. Superior Court Opinion

despite the order. To argue now that he was not aware

of the scope of the court order and did not knowingly

violate it extends the imagination to incredible limits. We

find that Street and his followers did indeed violate the

court order of January 31, 1979 on February 22 and Feb-

ruary 23, 1979.

Appellant also contends that the court order was un-

constitutional because it was overly broad and because it

violated appellant’s right to freedom of expression. The

value to an open society derived from the free flow of

ideas is self-evident. For that reason courts have been

loathe to sanction any measure which infringes upon a

person’s right to communicate his ideas. Pure speech

therefore is a right which is to be zealously preserved in

our society. However, as 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 per-

missible regulation of such expression increases. See U. S.

v. O'Brien, 391 U. S. 367, 88 S. Ct. 1673, 20 L. ed. 2d 672

(1968); Commonwealth v. Winkleman, 230 Pa. Superior

Ct. 265, 326 A. 2d 496 (1974). It should be noted that in

our case the very purpose of the court order was not to

limit the expression of the ideas appellants were attempt-

ing to communicate but was to limit the conduct by which

the appellants chose to communicate their ideas. It is

apparent that in a highly technological, civilized society a

person or group of persons cannot justify participation in

any type of conduct, without any limits at all, merely

because they allege that their conduct has a higher, sym-

bolic purpose which, they allege, brings it within the

ambit of protection afforded to free speech. The closing

of private business by blocking the entrances thereto with

the avowed purpose of bankrupting those businesses, loud

Pa. Superior Court Opinion A9

abusive language including the use of obscenities and

racial slurs, physical intimidation of patrons and _ store

owners, and: the setting afire of trash receptacles in a

densely populated, downtown, commercial area are all ac-

tivities which cannot be justified by the appellants’ claims

that they did these things in order to protest the allocation

of government funds to one areas rather than to another.

Certainly neither the businesses in The Gallery nor their

owners have the power to direct the city to allocate more

funds to other areas. Nor can they effectively bring about

the ownership of more businesses by blacks. What ap-

pellants seem to be saying here is: “if we cannot obtain

government funding for our projects then we will destroy

those projects which do receive such funding’, and “if

members of our racial group do not own as many busi-

nesses as we think they should own then we will bankrupt

businesses owned by others”. Appellants then clothe their

attempts to destroy the businesses and other governmental

projects under the guise of free speech. Of course, appel-

lants have every right to lobby for the benefits of govern-

ment largesse. However, threatening to do harm to third

parties is not a legitimate means of expressing their desire

for a greater share of government monies. As the court

below pointed out:

“The slaughter of 11 athletes at Munich as a supposed

symbolic and political protest was certainly murder

as to the men killed and was by any civilized standard

an unacceptable barbarism. In the lesser degree (and

absent personal violence) the slaughter of 96 private

businesses as a supposed symbolic protest against

government conduct is an unacceptable assault upon

5th and 14th Amendment rights to engage in and

conduct a business, to work for a livelihood and to

hold and use private property.”

Al0 Pa. Superior Court Opinion

The court went on to classify appellants’ activities as a

form of “scapegoat boycotting” which it defined as that

boycotting which:

_ urges concerted refusal to have business rela-

tionships with a ‘target’ consisting of a limited number

of persons, for the purpose of protesting against and

symbolizing protest against actions and conduct of

third parties, although the ‘target’ has no relationship

to or involvement in or any control over or power to

affect the primary disputes between the protestors

and third parties. As to the ‘target’ the sole purpose

of the boycott is to cause damage, injury and destruc-

tion for symbolic purposes. In a true scapegoat boy-

cott the ‘target’ has no power or authority to force

concessions from third parties. In a true scapegoat

boycott there is no real or bona fide dispute, primary

or secondary, between the ‘target’ and the boycotter.”

As discussed above the “targets” of appellant's boy-

cott have no power to alter the present formulas for the

distribution of government largesse throughout the City

of Philadelphia. Therefore, there is no real dispute be-

tween the protestors and the merchants in The Gallery,

Gimbels or Strawbridge and Clothier. Unlike the “sit-in”

demonstration cases which arose out of “sit-ins” in lunch

counters in the South during the 1950’s and 1960's the

“targets” in our case are not enforcing any discriminatory

laws, do not refuse to allow persons to patronize their

establishments nor refuse employment to anyorie because

of racial, ethnic, or religious differences. Thus, this case

is readily distinguishable from the sit-in cases such as

Brown v. Louisiana, 383 U. S. 131, 86 S. Ct. 719, 15 L. ed.

2d 637 (1966) and U. S. v. Miller, 367 F. 2d 72 (2d Cir.

1966) cert. denied at 386 U. S. 911, cited by appellant.

The fact that blacks do not own more businesses in The

Pa. Superior Court Opinion All

Gallery than they do has nothing to do with any racially

discriminatory laws nor, more importantly, with any

actions of the “target”. For these reasons we do indeed

find that the “targets” in our case were the victims of so-

called “scapegoat boycotting”. The question remains,

however, as to whether “scapegoat boycotts” are illegal.

In a free society no one may force another to refrain

from patronizing a particular, lawfully administered busi-

ness establishment by unlawful means. Certainly a person

or group of persons may attempt to convince others to

purchase a certain product or to refrain from purchasing

certain products whatever their reason. The question is

to what extent may one go in attempting to convince

others not to patronize certain establishments? Put

another way the question is: “To what extent may the

state go in limiting a group’s boycott of private business?”.

The answer is that picketing (which involves actions as

well as speech and therefore is subject to more regulation

than pure speech) in order to enforce a boycott which is

conducted for a person contrary to law is unlawful in

itself and may be restrained. Hughes v. Superior Ct., 339

U. §. 460, 70 S. Ct. 718, 94 L. Ed. 985 (1950); 1621, Inc.

v. Wilson, 402 Pa. 94, 166 A. 2d 271 (1960). In Hughes

v. Superior Ct., supra, the court stated that:

“It has been amply recognized that picketing,

not being the equivalent of free speech as a matter

of fact is not its legal equivalent. Picketing is not

beyond the control of a state if the manner in which

the picketing is conducted or the purpose for which

it seeks to effectuate gives ground for its disallow-

ance ... We cannot construe the due process clause

as precluding California from securing respect for

its policy against involuntary employment on racial

lines by prohibiting systematic picketing that would

Al2 Pa. Superior Court Opinion

support such policy. See Giboney v. Empire Storage

& Ice Co., supra.” (Emphasis added) 339 U. S. at

465-66.

In Hughes, supra, a group of protestors had conducted

boycotts of a certain business establishment which alleg-

edly did not employ blacks in the same ratio as the busi-

ness’s clientele. In holding that racially-oriented employ-

ment practices were contrary to the State of California's

public policy the Court upheld the state court's ban on

the systematic picketing of the establishment which

picketing supported the proscribed practice. In American

Radio Association v. Mobile Steamship Association, 419

U. S. 215, 95 S. Ct. 409, 42 L. Ed. 2d 399 (1974), mem-

bers of a maritime union peacefully picketed and dis-

tributed leaflets at a public dock which urged people to

“Ship American”. Unlike our situation in the instant case

the demonstrators were peaceful and nonviolent. Upon

petition of certain third parties the state court enjoined

all of the demonstrators’ activities at the dock which was

owned by the State of Alabama. The Supreme Court

upheld the trial court’s ban on the picketing reasoning

that the demonstrators’ activities were done, in part, with

the intention of interfering with business at the state dock.

Since tortious interference with business at the public dock

was unlawful the picketing on the dock was unlawful and

its ban was upheld.

In our case, as in American Radio Association, supra,

the protestors conduct constituted a tortious interference

with business relations. One has a right to pursue his

business relations free from interference on the part of

other persons except where such interference is justified

or constitutes the exercise of an absolute right. Birl v.

Phila. Electric Co., 402 Pa. 297, 167 A. 2d 472 (1960);

Restatement, Torts, Section 766. As discussed above, the

Pa. Superior Court Opinion Al13

right to picket is not absolute because it involves actions

as opposed to pure speech. Since the ‘targets’ of the

picketing and boycott were “scapegoats” because they did

not possess the power to grant the concessions demanded

by the demonstrators we find that the injunction issued

by the court below which restrained the picketing and

boycotting of The Gallery, Gimbels, and the Strawbridge

store was lawful. In addition the court below reasoned

that the protestors’ activities directed against the “targets”

coupled with their demands that the “targets” pay “repara-

tions” to black and other minorities constituted an act of

extortion. The court also found that the activities of

appellant and his followers were aimed at interfering

with the effectuation of the Commonwealth’s public policy

to promote the public health, safety and welfare of its

citizens and to eliminate blighted areas. For all of these

reasons appellants’ activities in picketing the proscribed

areas were conducted at least in part for purposes con-

trary to state law, ie. extortion, tortious interference

with business relations, and interference with the Com-

monwealth’s public policy of promoting the health, safety

and welfare of its citizens.

Appellant argues that most of the cases in which

picketing has been enjoined were cases involving picketing

by labor unions and attempts to distinguish his situation

on that basis. We can find no precedent (nor is any such

precedent cited by appellant) which holds that non-labor

picketing enjoys greater constitutional protection than

labor picketing. We note that Hughes v. Superior Court,

supra, is a case in which the Supreme Court upheld an

injunction against non-labor picketing. It is therefore,

apparent that non-labor picketing may be enjoined if it is

done, for an unlawful purpose and an injunction is proper

if only part of the demonstrators objects in picketing is

unlawful. Anchorage, Inc. v. Local 301, A. F. L., 383 Pa.

Al4 Pa. Superior Court Opinion

547, 119 A. 2d 199 (1956). We, therefore, reject appel-

lant’s argument and hold that the court below acted

properly in enjoining the picketing of The Gallery, Gim-

bels and Strawbridge and Clothier. The appellants’ activi-

ties in yelling obscenities into the ears of patrons who

refused to submit to appellants’ directives to refrain from

patronizing the “targets”, the setting of fires in the trash

receptacles in the indoor mall, the use of amplification

equipment to broadcast obscenities at passersby, the

threats to set afire certain stores, the extending of their

arms in order to block people from entering the stores,

the continued trespass on private property (Gimbels ) and

the directing of racial slurs to white and to black employees

of the area who refused to join in their activities consti-

tutes conduct which is violent, abusive and illegal. Appel-

lant Street’s avowed intention of disobeying the court order

coupled with the record of the protestors’ activities during

their demonstrations certainly justified the court’s order

enjoining any future demonstrations at the target areas.

Because the purpose of the appellants’ activities was un-

lawful and because the record indicates a pattern of vio-

lent, abusive behaviour during the demonstrations we hold

that the court below was justified in enjoining any such

future demonstrations.

Appellant’s argument that the court order constituted

an unlawful prior restraint on free speech is also devoid

of merit. In the instant case a full and complete hearing

had been held and the conduct enjoined, although expres-

sive conduct and therefore afforded some First Amend-

ment protection, was correctly found to be unlawful. Thus,

appellant has had the benefit of a full and complete hear-

ing prior to the entry of any order proscribing his conduct.

As such the court’s order is not an impermissible prior

restraint on free speech. See Freedman v. Maryland, 380

U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1964).

Pa. Superior Court Opinion Al5

Appellant’s argument that the January 31, 1979 order

is overbroad is also meritless. Since the picketing in our

case was done for an unlawful purpose and in a violent,

unlawful manner which in and of itself may have con-

stituted a breach of the peace we hold that the court below

acted correctly when it prohibited all such activities at the

target areas. Nor is the order vague as claimed by ap-

pellant. A reading of the order clearly indicates that it

specifically enjoined certain activities (picketing, hand-

billing, etc.) in certain specific areas.’ Only an illiterate

could fail to understand its scope.

Appellant argues that T. Milton Street was not ob-

ligated to obey the January 31, 1979 order. This argu-

ment is also meritless. Parties must obey a preliminary

injunction, even if invalid, if the order is entered by a

court with jurisdiction over the subject matter of the order

and the parties thereto unless the order is vacated or

reversed. Horne v. Internation Union of Operating

Engineers, 250 Pa. Superior Ct. 145, 378 A. 2d 868 (1977).

The January 31, 1979 order was neither vacated nor re-

versed and we have held that the order was properly

entered. T. Milton Street conspicuously violated the Jan-

uary 31, 1979 order on February 22, 1979 and February

23, 1979. In fact he announced in open court that he

i,

“1. Defendants, T. Milton Street and Ad Hoc ’78, to-

gether with their agents, servants and those acting in their

interest or at their direction, are enjoined and restrained pre-

liminarily, unti) final hearing, and therafter until further order

of this court, from picketing, handbilling, speechmaking, dem-

onstrating, and boycotting inside or outside The Gallery or

Gimbels, including the public areas therein, or on any of the

collonnades located outside the entrance to Gimbels, or the

exterior courtyard area, or the sidewalk which forms the im-

mediate perimeter surrounding The Gallery, Gimbels and

Strawbridge’ stores.”

Al6 Pa. Superior Court Opinion

would not abide by the order. Therefore, it is readily

apparent that the order applied to T. Milton Street and

that he violated said order.

It is axiomatic that courts have always possessed the

inherent power to enforce their orders and decrees by

imposing sanctions for failure to comply with said orders.

In re: Martorano, 464 Pa. 66, 346 A. 2d 22 (1975); Rule

1529(c), Pennsylvania Rules of Civil Procedure. Con-

tempt of court is divided into two classes: (1) civil con-

tempt and (2) criminal contempt, (a) direct contempt

and (b) indirect contempt. Brocker v. Brocker, 429 Pa.

513, 241 A. 2d 336 (1968). Directed criminal contempt

involves those contumacious acts committed in the pres-

ence of the court. Knaus v. Knaus, 387 Pa. 370, 127 A. 2d

669 (1956). The distinction between criminal contempt

and indirect civil contempt lies in the judicial response to

the contumacious acts and the judicial responses are

classified according to the dominant purpose of the court

in issuing the order. If the dominant purpose of the court

is to punish an offender for past contumacious acts in dis-

obedience to a court directive then the contempt is crim-

inal. If the purpose of the court is to coerce the con-

temnor to comply with the court directive then the

contempt is civil contempt. Several factors indicative of

civil contempt are:

(1) where the complainant is a private person as op-

posed to the government or a governmental agency;

(2) where the proceeding is entitled in the original

injunction action and filed as a continuation thereof

as opposed to a separate and independent action;

(3) where holding the defendant in contempt affords

relief to a private party; (4) where the relief re-

quested is primarily for the benefit of the complain-

ant; and (5) where the acts of contempt complained

Pa. Superior Court Opinion Al7

of are primarily civil in character and do not of them-

selves constitute crimes or conduct by the defendant

so contumacious that the court is impelled to act on

its own motion.”

Philadelphia Marine Trade Association v. International

Longshoreman’s Association, 392 Pa. 500, 140 A. 2d 814

(1958). It is apparent that the contempt in the instant

case was indirect civil contempt. The complainant in the

case is the Rouse Corporation, a private entity. The mat-

ter consisted of a series of hearings and court orders. The

contempt proceedings were entitled in the original in-

junction action and filed as a continuation of said action.

The relief requested was solely for the benefit of private

parties, namely, Rouse, The Gallery merchants, Gimbels

and Strawbridge and Clothier to protect them from un-

lawful interference with their businesses. Holding the

defendant in contempt would afford relief to the private

parties by preventing the unlawful picketing of their

establishments. Finally, the acts committed by defendant

Street were not by their nature so contumacious that the

court was compelled to find Street in contempt on its own

motion (although certain of the acts committed by other

demonstrators during the incidents may very well have

been criminal in nature). Thus, it is clear that the con-

tempt in our case was civil in nature. The fact that the

court ordered the Sheriff's Office to enforce the order does

not change the nature of the contempt.

Subjugation to confinement for civil contempt must

provide a condition with which the contemnor is capable

of complying and which has the effect of purging the con-

temnor of the contempt if he complies with it. Simmons

v. Simmons, 232 Pa. Superior Ct. 365, 335 A. 2dn 764

(1975). The court may, however, impose an uncondi-

tional fine upon a contemnor which may be payable to the

Al8 Pa. Superior Court Opinion

United States or the Commonwealth or to the County, or

to the private parties who have been injured. Brocker v.

Brocker, supra; U. S. V. U. M. W., 330 U. S. 258, 67 S.

Ct. 677, 91 L. Ed. 884 (1947). An unconditional fine can

serve two purposes: (1) to punish violators or (2) to

deter future or continued violations of the law. Mastran-

gelo v. Buckley, 433 Pa. 352, 250 A. 2d 447 (1969). The

deterrence of continuous or future violations of a court

order is a legitimate interest to be served by the levy of

an unconditional fine. In this case the fine was made

payable to the City of Philadelphia which had been forced

to spend upwards of $1,400,000 in attempting to ensure

compliance with the court order. Of this amount approxi-

mately $400,000 represents the overtime costs to police

and Sheriff's deputies which otherwise would not have

been incurred. Such costs were necessarily incurred be-

cause of the potentially violent situations created by the

protestors. The court below made specific findings to

that effect. Where an unconditional fine is imposed

which is made payable to the governmental unit required

to enforce the court order and to encourage future com-

pliance to the benefit of the aggrieved private parties it

should be sustained. N. L. R. B. v. J. P. Stevens, Co., Inc.,

563 F. 2d 8 (2d Cir. 1977), cert. denied 98 S. Ct. 1240 in

434 U.S. 1064. For these reasons we hold that the court

below acted properly in finding appellant in civil con-

tempt of court and that the $5,000 fine imposed upon him

was lawful.

Appellant’s final contention is that the court below

failed to provide him with the required due process guar-

antees before finding him in contempt of court. Spe-

cifically, appellant argues that before he could be held in

indirect civil contempt a rule to show cause why an at-

tachment should not issue, an answer thereto, a hearing,

a rule absolute, a hearing on the contempt citation, and an

Pa. Superior Court Opinion Al9

adjudication of contempt had to be held citing Altemose

Construction Co. v. Building and Trades Council of

Phila., 449 Pa. 194, 296 A. 2d 504 (1972). In Altemose,

supra the contempt proceedings were initiated for diso-

bedience of a preliminary injunction entered ex parte.

The error in that case was the lack of opportunity for

appellants to be heard on the propriety of the court order

for which they were held in contempt prior to the initia-

tion of contempt proceedings. However, the above-

mentioned multi-step contempt procedure is clearly not

applicable to a situation in which the attachment and con-

tempt proceedings are predicated upon the violation of

an order or decree which has been entered after a full

hearing and which have been served upon the contemnor.

These initial procedures are obviously redundant when

the contemnor is already in custody by attachment pur-

suant to Pennsylvania Rule of Civil Procedure 1529 (c),

as was the situation in the instant case. See Common-

wealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.

2d 263 (1969). We hold that contempt proceedings which

are predicated upon the violation of an order which has

been served on the contemnor and entered after a full

hearing on the merits thereof may be commenced by at-

tachment, and due process requires no more than notice

of the violations alleged and opportunity for explanation

and defense. Riccobene Appeal, 439 Pa. 404, 268 A. 2d

104 (1970). In the instant case appellant was given the

opportunity to be heard prior to the issuance of the order

and even if we were to hold that the Altemose multi-step

procedure applied to this situation we would hold that

appellant had been provided with the procedural safe-

guards guaranteed therein as the court below conducted

three hearings at which appellant had the opportunity to

be heard prior to holding appellant in contempt of court.

A20 Pa. Superior Court Opinion

Appellant’s argument that insufficient evidence was

adduced at the hearing below in order to find him in con-

tempt of court is fatuous. He claims that his activities

conducted on the medial strip outside of The Gallery

were not a violation of the court order. Whether or not

the order proscribed the boycott activity on the medial

strip is irrelevant because sufficient evidence was produced

to show that he conducted the boycott activities in viola-

tion of the January 31, 1979 order immediately outside

The Gallery and Gimbels on the northeast corner of 10th

and Market Streets, in Philadelphia, prior to moving to

the medial strip. This clearly was the area at which such

activities had been enjoined. Therefore, we hold that

sufficient evidence was adduced at the hearing held by

the court below from which appellant could be adjudged

to be in violation of the January 31, 1979 order.

Orders affirmed.

Phila. Court of Common Pleas Opinion A21

OPINIONS AND ORDERS OF THE COURT OF

COMMON PLEAS OF PHILADELPHIA COUNTY,

TRIAL DIVISION.

IN THE

COURT OF COMMON PLEAS OF

PHILADELPHIA COUNTY

TRIAL DIVISION

Aucust Term, 1978

No. 4145

ROUSE PHILADELPHIA INC.

and

(

REDEVELOPMENT AUTHORITY OF THE

CITY OF PHILADELPHIA,

Plaintiffs,

and

GIMBEL BROTHERS, INC.

and

GIMBEL BROTHERS REALTY CORP.,

Intervening plaintiffs.

v.

AD HOC 78

and

T. MILTON STREET, AS AN INDIVIDUAL AND AS A

REPRESENTATIVE OF AD HOC ‘78, THE UNIN-

CORPORATED ASSOCIATION OF PERSONS

ACTING IN CONCERT TO BLOCK INGRESS

TO AND EGRESS FROM THE GALLERY AT

MARKET EAST

and

A22 Phila. Court of Common Pleas Opinion

JOHN DOE AND JANE DOE

and

ALL OTHER PERSONS ACTING IN CONCERT WITH

THE NAMED PARTICIPANTS OR OTHERWISE

PARTICIPATING IN THEIR AID,

Defendants

KREMER, J.

Dated: January 3lst, 1979

Opinion and Supplemental Opinion

Sur Motion for Preliminary Injunction

INTRODUCTION

We have before us for consideration (as the primary

question, as we see it) whether or not a minority and his-

torically disadvantaged group with what it conceives to be

a correct and justified message and protest, may select as

a target of boycott messages third-party non-government

individuals with whom there are no real or bona fide dis-

putes for the purposes of highlighting protest against the

conduct of governmental agencies. The question other-

wise phrased is whether the defendants can engage in

“scapegoat boycotting” and “scapegoat picketing” for the

avowed purpose of injuring and destroying a complex of

innocent and uninvolved businesses for demonstrative and

symbolic purposes.

We have been cautious not to put the issue as a

loaded question because our answer rests upon the facts

and factual nuances as we have found them. The targets

of the defendants’ boycotting, to which we refer, are

Rouse, Gimbels, Strawbridges and the 94 business en-

tities presently leasing space and operating businesses in

The Gallery. We refer to these businesses as “innocent”

Phila. Court of Common Pleas Opinion A23

because they are not really guilty of any wrongdoing by

any possible stretch or twist of argumentation or imagina-

tion. ‘These businesses have not engaged in or fostered

any racial discrimination whatsoever; they have not en-

gaged in any conduct antithetical to the interests of the

defendants. There is not a scintilla of evidence that these

businesses are in any way responsible for any of defend-

ants’ grievances or that they could do anything to redress

or remedy such grievances. We reject the excusatory

suggestions that these businesses are somehow culpable

simply because they have lawfully accepted benefits from

the government, which could have gone to the boycotters

and their communities or for other purposes.

In net effect the defendants say to the plaintiff busi-

nesses, we wish to use you as an example to show that

some communities have benefited from the expenditure

of urban renewal funds while the black’ communities

were getting less than their fair share. This message

broadened into general black protest—protest against

lack of black business ownership, against inadequate

schooling, against alleged police brutality and against an

effort to change the City Charter. The integrity of the

protest is muddied by the immediacy of Mr. Street's can-

didacy and campaign for the state legislature. The de-

fendants say, although we do not ‘really have any direct

or even indirect conflicts with you, we wish to use you as

an example and a scapegoat—as a target for our mixture

of social messages and protests. We intend to use you

as a focus for our protests. And, if it becomes necessary,

we are willing to destroy your businesses as an example

of racial discriminations of the past and the failures of the

1. As used in this opinion the reference to “black” will be

deemed to comprehend Spanish and poor white communities which

are also stated to be represented by the defendants. However, the

disputes involved are overwhelmingly ones of black confrontation.

A24 Phila. Court of Common Pleas Opinion

present. The defendants act on the thesis that only by

causing anguished cries of financial pain—even from

those immediately innocent—can they get the necessary

attention from the governmental and economic power

structure which is in the sole possession of the white

establishment.

A black activist, T. Milton Street, and some other

persons and groups have been seeking government ( pri-

marily federal) funding for housing redevelopment and

community redevelopment in black communities for some

period of years. These persons are convinced that they

have been given a run-around; that the government funds

have been distributed discriminatorily. In order to high-

light their complaints against the manner in which the

federal, state and city governments have distributed

government funds, the defendants selected The Gallery as

a target of protest because it represents a highly successful

example of an area that has received government funds in

the course of urban renewal.

There is no doubt that the defendants raise questions

in good faith as to the fairness of the City’s area alloca-

tions and designations for the use of federal funds for

housing purposes. There is substantial and disturbing

indication that the black communities may not have been

fairly and equally treated, but that question is not before

us for consideration or resolution.’

In reaching our decision, we have cautioned ourselves

that a dominant segment of society has numerous con-

scious and unconscious techniques for maintaining its

ascendancy and the status quo—for resisting and slowing

the process of change.

2. This and related questions are being litigated in the federal

court in a matter in which Community Legal Services, Inc., which

represents Ad Hoc here, also represents the litigants in that case.

Phila. Court of Common Pleas Opinion A25

The rights of black citizens to convey messages of

protest in an effective and significant manner, in an effort

to help correct deep-seated historic inequities are amongst

the most important aspects of the First Amendment.

Picketing, parading and demonstrating in the streets may

sometimes be the only communication and expressive out-

lets available for the poor and the disadvantaged. Cer-

tainly, in a white-dominated society, the defendants have

the right to protest against the entrenched results of

centuries of discrimination. They have a right to protest

for the purpose of highlighting the inequities of the past

and the inequities of the present and the threat of con-

tinued inequities in the future.

It is important and urgent that all legitimate avenues

be kept open for First Amendment expressions of com-

plaint and protest; but we cannot accept the thesis that

the protest may take the form of injury to and destruction

of innocent and uninvolved third parties for purposes of

symbolism. Respect for the First Amendment does not

require knee jerk responses which exclude analysis of other

rights. We must avoid First Amendment reference as a

magical incantation and we must test each case by its

particular facts. Scapegoat boycotting for the effective

purpose of injuring or destroying a business goat, without

even any semblance of real dispute with such business,

cannot be permitted. There is a constitutionally protected

Fifth and Fourteenth Amendment business right to sur-

vive which must be balanced against First Amendment

rights to deliver a message to injure and destroy.

The suppression of the dissemination of ideas is the

gravest of dangers. Nothing is to be barred from com-

munication be it called treason or heresy. The heresies

of today may prove to be the truths of tomorrow, and the

treasons of today may prove to be tomorrow's needs for

social change. We must be ever vigilant that the voice

A26 Phila. Court of Common Pleas Opinion

we silence is not that of some present-day Galileo. Such

high-sounding language is easier to come by when we

speak of Galileos. The rights of the poor and the residents

of the slums may be in more need of protection. But

even the poor and the dispossessed must speak within the

boundaries of the law.

There are few eternal verities. Heraclitus recited one

that all is change and one cannot step into the same river

twice. And Einstein recited another that all of physical

reality is relative. In these senses social actions and rela-

tions are also in constant motion; man is evolving socially

as well as physically. The freedom of man to think and

to express himself is crucial to social evolution. It is in

the memory of that experience that we owe a maximum

loyalty to the First Amendment. Our decision is in keep-

ing with this command.

The slaughter of 11 athletes at Munich as a supposed

symbolic and political protest was certainly murder as to

the men killed and was by any civilized standard an un-

acceptable barbarism. In the lesser degree (and absent

personal violence) the slaughter of 96 private businesses

as a supposed symbolic protest against government con-

duct is an unacceptable assault upon 5th and 14th Amend-

ment rights to engage in and conduct a business, to work

for a livelihood and to hold and use private property. We

conclude that when a message progresses in action to

militant picketing and boycotting so as to scapegoat pri-

vate citizens and to convey a false impression that they

have been responsible for discrimination or that they have

anything to do with the protestors’ grievances, then such

conduct must be enjoined. Sometimes the law comes

down with unequal weight upon disputing parties, par-

ticularly where one of the groups is carrying the weight

of centuries of discrimination. There is puzzlement as to

who shall pay the price—as to how we should struggle to

Phila. Court of Common Pleas Opinion A27

rectify. Again and again we are impelled to return to the

question of whether it can be constitutionally right to use

a few members of the white society as a scapegoat to

exemplify the accumulated disparities of three centuries.

The answer must be in the negative.

We are aware of the fact that persons of great good-

will and of deep social concern must address corrective

attention to some of the protest subject matters. We are

also aware that in a most real sense the defendants are

guilty of counter-scapegoating, rather than scapegoating.

That circumstance does not lend excuse to selection of an

innocent target for destruction. We cannot accept irra-

tional counter-hatred as an appropriate answer to irrational

hatred.

As a trial court we do not have sufficient time for re-

laxed study and analysis of the theoretical elements of the

First Amendment as it relates to boycotting and picketing.

We do not bottom our decision on distinctions between

speech and conduct or between speech and speech-plus,

or on distinctions between coercion and persuasion. See,

e.g., “The Invisible Hand and Clenched Fist: Is There a

Safe Way To Picket Under The First Amendment?” 26

Hastings Law Journal 167 (Sept. 1974).

We do not rely upon any single concept whether it be

of so-called unlawful purpose, or conspiracy, or slander

sub silentio or improper and unlawful conduct. Our de-

cision is a response to the combination of all of these

matters in this case. A felt instinct for fundamental fair-

ness impels us to stop the defendants—they have gone too

far and too awry in their otherwise forgivable efforts to

be heard effectively. To rule otherwise would be a decla-

ration that the plaintiffs are beyond the protection of the

law, that the plaintiffs are to be denied of the due process

right of survival.

A28 Phila. Court of Common Pleas Opinion

A boycott cannot be for a lawful purpose when it is

designed and intended to, inter alia, punish a small group

of citizen businessmen for lawfully accepting benefits

from City, State or Federal governments. And in this

case the benefits result because of long term federal and

local programs and planning. The boycott thus seeks to

frustrate and defeat crucially significant governmental

public welfare programs and policies dealing with prob-

lems of urban blight and decay.

The defendants have the right to contend that the

urban renewal funds used to correct circumstances of

center city blight should more wisely and more fairly be

used to correct circumstances of housing blight in North

Central Philadelphia. We must bear in mind that it is

contended that the very government itself permits and

promotes these funds to be discriminatorily allocated to

benefit primarily white communities. That is an im-

portant and valid message. That is a matter for public

disclosure, debate and political action. It is not a matter

for indiscriminate injury to and destruction of some other

recipients of the benefits of governmental plans and pro-

grams as a symbol of protest against the government.

The court has not decided whether the Redevelop-

ment Authority is entitled to injunctive relief. Such de-

termination is unnecessary because the non-governmental

plaintiffs are entitled to injunctive relief. In this case

there is a dispute between the defendants and the R. D. A.

insofar as the R. D. A. is a government agency which the

defendants claim is dominated by the governmental au-

thorities and administration which the defendants accuse

of discrimination. The utmost caution should be exer-

cised before any court silences criticism of the govern-

ment or any of its agencies.

In reaching our conclusion we have been mindful of

the fact that the present Supreme Court of the United

Phila. Court of Common Pleas Opinion A29

States may be narrower in the construction of some con-

stitutional protections than our own Supreme Court of

Pennsylvania. Therefore, in applying the constitutional

protections afforded by the Pennsylvania State Constitu-

tion, the state is not bound by narrower federal construc-

tions. That was made clear in the case of Willing v.

Mazzocone, — Pa. —, 393 A. 2d 1155 (1978). However,

if we are correct that we are here concerned with a bal-

ance of competing federal constitutional rights, then our

state courts are bound by the federal decisions which

address the scope of Fifth and Fourteenth Amendment

rights of due process as balanced against First Amend-

ment speech protections.

HISTORY OF CASE

The case is before us on plaintiffs’ motion for pre-

liminary injunction. There are three plaintiffs. Plaintiff

Rouse Philadelphia, Inc. (Rouse) is a Maryland Corpora-

tion licensed to do business in Pennsylvania. Rouse is

engaged in the operation of an enclosed, four-level shop-

ping mall known as The Gallery located in downtown

Philadelphia. It leases places of business within The Gal-

lery from the Redevelopment Authority of Philadelphia

and Gimbels, and sub-leases property to approximately

ninety-four merchants. Plaintiff Gimbel Brothers, Inc.

(Gimbels) is a New York corporation licensed to do busi-

ness in Pennsylvania. Gimbels owns and operates a large

department store which anchors the western end of The

Gallery complex. Plaintiff Redevelopment Authority of

the City of Philadelphia (RDA) is a non-profit Common-

wealth authority, established pursuant to the Urban Re-

development Law, Act of May 24, 1945, P. L. 991, 35

P. S. 1701 et seq. The Redevelopment Authority is au-

thorized, among other things, to exercise the right of

eminent domain, to purchase and acquire real estate, to

A30 Phila. Court of Common Pleas Opinion

clear buildings and other improvements therefrom, to

enter into agreements with others, to own real estate and

convey or lease it to others, all for the purposes of re-

development of real estate and the elimination of blighted

areas. The Redevelopment Authority owns The Gallery

and was the developer and general contractor for the con-

struction of The Gallery.

Defendant Ad Hoc ’78 (Ad Hoc) is an unincorpo-

rated association of community organizations. They are

acting to induce the public to boycott the stores in The

Gallery and the Gimbels department store. Defendant T.

Milton Street is a representative of and chairman of Ad

Hoc 78. Defendants John Doe and Jane Doe are names

for unidentified members of Ad Hoc or other individuals,

who are acting in concert to boycott The Gallery and

Gimbels.

This controversy began on August 25, 1978, when

approximately three to five thousand persons gathered at

9th and Market Streets at about 1:00 P. M. and engaged

in a protest against The Gallery. This demonstration

marked the commencement of the defendants’ boycott of

The Gallery. Various demonstrators, including political

representatives, gave speeches on a variety of subjects.

About 500 demonstrators entered The Gallery with-

out interference from the police who were present in large

numbers.’ Inside The Gallery, the protestors paraded in

and about and from level to level constantly shouting and

singing and chanting on various themes.

The protest inside and outside The Gallery was peace-

ful. There was no actual violence or threats of violence

or destruction of property. However, the demonstration

was so massive and noisy and angry-sounding as to neces-

3. The use of large police presence was a reasonable form of

governmental conduct consistent with duties to protect persons and

property and within the scope of police judgment and discretion.

Phila. Court of Common Pleas Opinion A3l

sarily inspire fears of potential violence. The demonstra-

tors kept shouting they were not going to take it any more.

The businesses in The Gallery were brought to a virtual

standstill.

Signs were carried relating to police brutality, the

charter change, the MOVE situation, absence of any

black-owned stores in The Gallery, lack of housing in poor

and black neighborhoods, public money being spent on

The Gallery and other topics of public concern. Most

protest activity took place in the public areas and the

courtyards inside and outside The Gallery. The demon-

strators continuously conducted themselves in a loud and

raucous and militant and bellicose manner. Some of the

shouting was done over bullhorns. At various times the

demonstrators sat down in the walkways of The Gallery

and in the Market Fair area to listen to speeches given

over portable amplifying equipment. During such times,

egress and ingress to the shops in The Gallery, particu-

larly the Market Fair restaurants, was impeded or blocked

by the demonstrators, some of whom sat and stood on the

tables (reserved for eating) in Market Fair.

On the evening of August 25, 1978, the plaintiffs peti-

tioned this court (as Emergency Judge) for immediate

ex parte injunctive relief. The court, having previously

received a telephonic request for opportunity to be heard *

from John Street, Esquire, as attorney for defendants,

promptly scheduled a hearing for 9:30 P. M. that evening.

The hearing was postponed at the request of the plaintiffs

and a hearing was then set for 7:00 A. M. the following

Saturday morning. After testimony commenced, by agree-

ment of all parties, this court issued a temporary injunction

4. Opportunity to participate should be given unless it is im-

possible to serve or notify the opposing parties, Apple Storage Co.,

Inc. v. CEPA, 441 Pa. 309, 314, 272 A. 2d 496 (1971).

A32 Phila. Court of Common Pleas Opinion

enjoining and restraining mass picketing and defining per-

missible conduct.

August 31, 1978 was set as the date for hearing on

the motion for preliminary injunction. Testimony was

heard® until October 26, 1978. The parties submitted

numerous requests for findings of fact and conclusions of

law and supporting briefs and supplemental briefs. The

last supplemental request for findings was filed on No-

vember 27, 1978. Constitutional issues of importance are

presented.

Our detailed findings of fact and conclusions of law

are appended to this opinion. We have reviewed and

considered and passed upon the very extensive requests

for findings submitted by each party.

RE. RIGHT TO BOYCOTT

Picketing is a form of both assembly and speech and

consequently comes within the protective guarantees of

both the First Amendment to the Constitution of the

United States and Article I, sec. 7 of the Constitution of

the Commonwealth of Pennsylvania: ° Thornhill v. Ala-

bama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940);

Carlson v. California, 310 U.S. 106, 60 S. Ct. 746, 84 L. Ed.

1104 (1940); Westinghouse Electric Corp. v. United

Electrical Workers, 353 Pa. 446, 46 A. 2d 16 (1946); Penn-

sylvania L. R. Board v. Bartenders Union, 361 Pa. 246, 64

A. 2d 834 (1949); Wortex Mills v. Textile Workers U. of

A., 369 Pa. 359, 85 A. 2d 851 (1952); 1621 Inc. v. Wilson,

402 Pa. 94, 166 A. 2d 271 (1960). Picketing is a legally

protected method of expression when used to enlighten

5. At the request of the Administrative Judge, the Emergency

Judge continued to handle the matter.

6. Article I, Section 7 of the Pennsylvania Constitution pro-

vides, inter alia, that “. . . every citizen may freely speak, write or

print on any subject being responsible for the abuse of that liberty.”

Phila. Court of Common Pleas Opinion A33

the public about a dispute or grievance with a business.

Although it may incidentally discourage customers from

entering or patronizing a store or other business, it still

remains as protected expressive conduct: Moore v. Newell,

548 F. 2d 671, 672 (6th Cir. 1977).

However, there are special circumstances attendant

to picketing which characterize this form of expression as

“speech plus” as opposed to “pure speech.” Being a

hybrid form of speech, picketing does not enjoy the same

full measure of First Amendment protection as pure

speech and it must be analyzed from a slightly different

perspective. “Picketing by an organized group is more

than free speech, since it involves patrol of a particular

locality and since the very presence of a picket line may

induce action of one kind or another, quite irrespective of

the nature of the ideas which are being disseminated.” *

Because picket lines and picketers can so easily induce

action regardless of the message being conveyed, courts

have been sensitive to the special circumstances attendant

to picketing. Although it is protected conduct, picketing

is more susceptible to court regulation than other forms of

speech. This results from the inherent nature of picketing

which generally publicizes grievances and calls for public

support to honor the cause. Oftentimes the grievances

involve business practices. Therefore, picketing fre-

quently calls into question the property rights of others.

Courts are also sensitive to the concomitant constitution-

ally protected property rights of the targets of picketing.

Balancing First Amendment rights of expression and Fifth

Amendment property rights (both of which are applicable

7. International Brotherhood v. Vogt, 354 U. S. 284, 77 S. Ct.

1166, 1 L. Ed. 2d 1347 (1957); See Bakery and P. Drivers and

Helpers, 315 U. S. 769, 62 S. Ct. 816, 86 L. Ed. 1178 (1942); Car-

penters and J. Union v. Ritter’s Cafe, 315 U. S. 722, 62 S. Ct. 807; 86

L. Ed. 1143 (1942).

A34 Phila. Court of Common Pleas Opinion

to the states through the Fourteenth Amendment) some-

times presents a delicate and difficult task. When First

Amendment rights have the effect of infringing upon

others’ property interests, it is necessary to take a critical

look at the circumstances. It may be that property dam-

age is incidental to protected expressions. It also is

possible that injury to that property is the very purpose

of the expressive conduct. When this is the case, that ex-

pression may be an unwarranted and unprotected in-

fringement upon others’ property rights.

There is no doubt that defendants intend to injure

and inflict economic damage upon the plaintiffs’ busi-

nesses. The plaintiffs argue that this purpose is malicious

and unlawful. They argue that this illegal purpose ren-

ders what might otherwise be lawful rights of expression

unlawful. Under Pennsylvania law an illegal purpose may

make peaceful and orderly picketing unlawful. In Wortex

Mills, Inc. v. Textile Workers Union of America, C. I. O.,

369 Pa. 359, 85 A. 2d 851 (1952), the Pennsylvania

Supreme Court was called upon to decide the lawfulness

of mass picketing in the context of a labor dispute. The

Court held that mass picketing was illegal, and that, where

coercion and intimidation and threats accompanied picket-

ing, such picketing was illegal and would be enjoined.

The Court noted (at p. 363):

“Freedom of speech gives no right of intimida-

tion or coercion and no right to damage or injure

another’s business or property, except where this re-

sults indirectly from peaceful and orderly picketing

for a purpose which the law regards as legitimate and

lawful.”

The Court also stated that an unlawful purpose vi-

tiates otherwise lawful picketing (at p. 369):

Phila. Court of Common Pleas Opinion A35

“A State Court may enjoin unlawful picketing or

picketing which is conducted in an unlawful manner

or_for an unlawful purpose. Picketing, if peaceful,

orderly and for a legitimate or lawful purpose, is legal

and within the protection of the Constitution. How-

ever, a State is not required to tolerate in all places

and in all circumstances even peaceful picketing by

an individual; it is well established that the method

or conduct or purpose or objective of the picketing

may make even peaceful picketing illegal.”

In 1621, Inc. v. Wilson, 402 Pa. 94, 166 A. 2d 27]

(1960) the Court recognized a right to obtain equitable

relief from a boycott that was being conducted for an

objective which violated a legitimate, clearly defined law

or public policy of the state. The Court refused to enjoin

picketing of a taproom by certain unincorporated neigh-

borhood organizations. The picketing continued daily,

except Sunday, and included signs such as “Luther King

did it why can’t we;” “Please do not patronize excess bar;”

“We need classrooms not taprooms;” “We can’t be bought

please don’t patronize this bar”. The Court stated (at

p. 107-8) that the objective of the picketers was to con-

vince passersby,

“.. . by means of persuasion, not to patronize

the establishment so that in time its operation would

become uneconomical and appellant would transfer

the liquor license to another location, or failing in

that, to persuade the appellant to so police his patrons

that the most blatant of evils complained of would

cease so that the peacefulness and good character of

the neighborhood would not be destroyed.”

The picketing was deemed lawful since the purpose

was to protest against an admitted nuisance in fact. The

A36 Phila. Court of Common Pleas Opinion

court carefully noted, however, that if the objective of the

picketing violated a “legitimate, clearly defined law or

public policy of the state,” it could be prohibited.

The 1621 Court focused critical attention on the ob-

jective of the picketing. All picketing, regardless of its

purpose, serves to some extent to discourage customers

from entering or patronizing a business. In 1621, the

Court found the picketers’ effect upon the plaintiff's busi-

ness to be incidental to their primary objective of pro-

tecting their neighborhood against nuisance. It follows

then, that a distinction between permissible picketing and

impermissible picketing turns on whether the picketers’

activity incidentally harms the plaintiff's business in their

pursuit of their primary and lawful purpose, or whether

the primary purpose is to maliciously injure the plaintiff's

business.

The purposes and objectives of the boycott are re-

flected in the boycott literature, the actions of the demon-

strators, and in Mr. Street’s testimony.

The defendants accused the city government of poli-

cies of racial discrimination with regard to public housing

and job opportunities over a period of more than 25 years.

They contended that shopping districts and housing should

be developed in other communities and asserted that center

city development deprived the poor of needed federal

rehabilitation funds. They also charged racial discrimi-

nation in education for minorities (of failure to keep the

schools open).

In the boycott literature the defendants protested that

over $25,000,000 of federal monies was spent to build The

Gallery and that another $12,000,000 was to be spent for

a Gallery II]. The defendants protested that there were

housing monies expended to enrich center city business-

men and that no money was spent for housing in black

and other poor communities—particularly in Mr. Street's

Phila. Court of Common Pleas Opinion A37

North Philadelphia area. It was urged that businesses

who profit from such activity should not be supported.

The boycotters demanded that “the people who

planned, built and run The Gallery pay back the full

amount of all federal monies, plus interest, to black,

spanish-speaking and poor (white) neighborhoods.” A

demand was also made that “The same people make sum-

mer jobs for Black, Spanish-speaking and Poor White

youth and also permanent opportunities (spots) for Black

and Spanish-Speaking businesses.” Mr. Street and the

boycotters took the position that because the merchants,

Gimbels and Rouse received the benefit from use of federal

funds which could have been used for housing, that there

was an obligation to pay back funds into black communi-

ties; that the merchants pay into an escrow fund which

could be established for housing and other social prob-

lems in North Philadelphia and other communities. Mr.

Street stated that Rouse owed an obligation to address

problems experienced by the black community; that Rouse

should build or rehabilitate some houses. Although Mr.

Street stated that he was not telling Rouse, Gimbels or

the merchants what to do, that is not accurate. One of

the major boycott demands was that payments be made

for benefits received particularly in the form of programs

in the black and poorer communities.

In essence, the picketing began with an avowed pur-

pose of demanding “reparations” from the plaintiffs.

Thereafter and in the course of the trial the defendants

endeavored to soften the impact of such demands. Mr.

Street undoubtedly recognized that the original statement

of boycott purposes was too broad, bordered on the illegal

and was inappropriate as to businesses not really involved

in any way with his political disputes and black-white

controversies. He knows that his real arguments are with

the government and not with the merchants. He tried

to create and recite a lawful boycott purpose insofar as

A38 Phila. Court of Common Pleas Opinion

the innocent businesses were concerned. We do not think

he succeeded.

Mr. Street testified as follows (on September 19,

1978):

“I think that Center City, Market Street East

should be developed, but I think it should be devel-

oped mutually with the development of the communi-

ties. What we had hoped to happen is to send a

message to the City, to the federal government, to

whomever it is necessary, that you can develop Center

City and ignore the communities if you want to, but

we will not support you as long as you continue to

ignore the needs of the community, the housing needs

of the communities where we live. We will not sup-

port The Gallery, we will not support your new Gal-

lery, we will not support your new Gallery that’s

coming, until you change your policy to begin to

address yourself to some of the needs that we have in

the community where we live.”

Mr. Street made it clear that the purpose of the boy-

cott was to deliver a message to the City and that The

Gallery was to be bankrupted and sunk unless that mes-

sage was acknowledged and acted upon. In another

approach Mr. Street made it clear that the bankruptcy of

The Gallery and its businesses might be a necessary price

in order for him to focus attention on the needs of the

black community.

Mr. Street testified as follows (on September 19,

1978):

“Tue Wrirness: I think the obligation should be

to—could come in several forms. I think the mer-

chants who are receiving that benefit, that substantial

benefit from being there, could organize and have an

escrow fund to help us with housing in North Phila-

Phila. Court of Common Pleas Opinion A39

delphia. They could help us with housing anywhere.

I think that they could organize to help us open up a

larger business on Columbia Avenue, Susquehanna

Avenue. I think that they could make a contribution

to organizations that are dealing with social problems

in the communities where we live. After all, they are

receiving the benefit. They have received the bene-

fit from the substantial sums of money that come from

the federal government. (N. T. 106-107)

c ° °

“THe Witness: Well, what I am saying was, the

purpose of the boycott is not just to sink The Gallery.

We have no real motive, no real purpose, nothing

can be gained by boycotting or bankrupting The Gal-

lery. However, there is something to be gained if

the people who put all of the—or a substantial

amount of public funds into The Gallery, and who

intend to put substantial large amounts of funds into

the expansion of The Gallery to buy or purchase and

rebuild, or to build The Gallery in the ten hundred

block of Market Street. We would not hesitate in

doing that.

By Mr. (JoHN) STREET:

Q. You wouldn't hesitate—

A. Sinking, bankrupting them.” (N. T. 108)

Mr. Street further testified as follows (on October 16,

1978):

“A. The merchants wouldn't have to particularly

do anything for me to end the boycott. What has

to happen is the city administration, we are after the

city administration, the Redevelopment Authority,

the Rizzo administration, the people who are spend-

ing the money, the people who are putting the money

A40 Phila. Court of Common Pleas Opinion

we are boycotting a public building, a building that

was built with a substantial amount of public funds.

That’s what we are boycotting. We are asking

people not to go in that building for the reasons that

I prior stated.

The city administration, the Redevelopment

Authority, the John Gallery Office—not The Gallery,

but John Gallery, those are the people who can re-

solve our problem; those are the people that we can

talk to about what they can do for North Philadel-

phia.” (N. T. 63-64)

Although the defendants are very vague as to just

how they expect to accomplish their purposes, at the bot-

tom line they make it clear that the dispute is not with

The Gallery. Their dispute is with the City Administra-

tion, the Authority and HUD, which must act to meet and

satisfy the boycotters’ demands and needs. It is stated

that the plaintiffs’ businesses are boycotted because they

occupy a building constructed with the aid of public funds

and therefore they reeeive benefits arising out of the ex-

penditure of public funds. Mr. Street claimed a First

Amendment right to boycott any institution or building

that benefited directly or indirectly from public funds

which could have gone into the black community. It is

conceded that the funds used to construct The Gallery

were never allocated or earmarked for housing or any

other purposes.

Mr. Street tried to portray a dispute with the mer-

chants and Gimbels. He did not succeed. He testified

(see N. T. 68-69 and 73 of October 16, 1978):

“By Mr. (JoHNn) STREET:

Q. You have a dispute with the merchants

of the Gallery that you have described on direct

examination.

Phila. Court of Common Pleas Opinion A4l1

A. Absolutely.

Q. What must the merchants do to resolve

that dispute?

A. The merchants can—

Q. Not what they can, what must they do?

A. They cant. .

Q. They couldn’t do anything to resolve it?

A. They can't

“What I want to know is: what must the mer-

chants do in order to resolve the dispute which you

and your group have with them?

A. I don’t know.

Q. You don't?

A. Not at this point, I don’t know.

Q. What must Gimbels do in order to re-

solve the dispute which you have with them,

as you have described it?

A. I don’t know at this point.”

In addition to the foregoing, the demonstrators pro-

tested against the fact that Gallery businesses were not

owned by blacks. The record and History are clear that

the reason that there are only few black business owners in

The Gallery is not related to any discrimination by Rouse

or any conduct of Rouse or, indeed, to any particular

governmental conduct. It is a result of the absence of or

limited availability of black capital—which, in turn, is a

result of the historical disparities between the accumula-

tion of white and black capital.

The demonstrators also protested against police bru-

tality, the treatment of the Move group, the policies of the

City government and in opposition to a proposed change

in the City Charter with regard to mayoral succession.

A42 Phila. Court of Common Pleas Opinion

They also protested about problems of black unemploy-

ment and problems relating to schools. The plaintiffs

have no relationship to any of these issues whatsoever.

Scapegoat is defined in Webster’s Third New Inter-

national Dictionary *® as a “person, group, race or institu-

tion against whom is directed the irrational hostility and

unrelieved aggression of others.” In this case, The Gal-

lery * is designated as the “target”—as the goat. None

of the defendants’ grievances can be redressed by The

Gallery. However seriously the defendants injure the

plaintiffs, the plaintiffs remain powerless to meet or satisfy

or to affect or effect the demands of the defendants. The

defendants assert grievances against the Police Depart-

ment, the City of Philadelphia, the Redevelopment Av-

thority and the Department of Housing and Urban

Development. They do not have any real or actual dis-

pute whatsoever with The Gallery collectively, or with the

ninety-four individual proprietors, except for their very

existence. Yet the demonstrators have chosen as their

targeted victim The Gallery which is defenseless to meet

the demands of the picketers.

Scapegoat boycotting urges concerted refusal to have

business relationships with a “target” consisting of a lim-

ited number of persons, for the purpose of protesting

against and symbolizing protest against the actions and

conduct of third parties, although the “target” has no rela-

tionship to or involvement in or any control over or power

to affect the primary disputes between the protestors and

8. The term “scapegoat” traces to an ancient Biblical ritual

described in Leviticus XVI. 10. On the Day of Atonement the

high priest symbolically transferred the sins of the people upon a

goat, which then was banished into the desert to die.

8A. In this Opinion it is obvious we sometimes use the term

“The Gallery” to include Gimbels and Rouse and sometimes Straw-

bridge and Clothier.

Phila. Court of Common Pleas Opinion A43

the third parties. As to the “target” the sole purpose of

the boycott is to cause damage, injury and destruction for

symbolic purposes. In a true scapegoat boycott the “tar-

get” has no power or authority to force concessions from

the third parties. In a true scapegoat boycott there is no

real or bona fide dispute, primary or secondary, between

the “target” and the boycotters.

The absence of any dispute has crucial implications.

Assuming a dispute, a picketed business could negotiate

an agreement and free itself from the economic effect of

the picketing. In this case, the plaintiffs are helpless;

there is nothing they can do to affect or effect the stated

purposes of the protest. Only the bankruptcy of the plain-

tiffs would appease the pickets.’ The defendants hope

that an injured or bankrupt Gallery will induce conces-

sions from the government. They intend painful message

and demand of the City and federal government that they

can no longer ignore the defendants’ communities.

A boycott such as that which occurred in Claiborne

Hardware, Inc. v. NAACP** is not a scapegoat boycott.

In the Claiborne case blacks in Port Gibson, Mississippi,

protested systematic white racial discrimination. A boy-

cott was organized against all local white merchants de-

manding that they exert pressure on the city government

to enact reforms. The Mississippi court found a con-

spiracy in violation of a state antiboycott law and a vio-

9. See and compare E. M. W. Bar Corp. v. Hillard, 20 D. & C.

2d 435 (1959).

9A. No. 78,353 (Miss. Ch. Ct. Aug. 9, 1976). See Madison,

“Mississippi's Secondary Boycott Statute: Unconstitutional Depri-

vation of the Right to Engage in Peaceful Picketing and Boycott-

ing,” 18 How. L. J. 583 (1975); Sandifer & Smith, “The Tort Suit for

Damages: The New eat to Civil Rights Organizations,” 41

Brooklyn L. Rev. 559 (1975); Note, “Political Boycott Activity and

The First Amendment,” 91 Har. L. Rev. 659 (1978).

A44 Phila. Court of Common Pleas Opinion

lation of the state antitrust law and a tortious interference

with business relations. That court rejected contentions

that the state laws violated First Amendment rights of

freedom of expression.

We do not agree with the rationale of the Mississippi

court and we make it clear that this is not a sister opinion

to that case. It is valid, indeed, for an oppressed group

to protest and disturb the complacent discrimination of a

dominant majority.°® And it must be valid, indeed, for a

minority group to confront a majority group in protest of

its discriminations. legality of purpose is imported only

when the protest targets upon one or some few individuals

for the purpose of scapegoating and symbolizing them.

It is at that point that there is an unlawful invasion of the

due process rights of survival of others.

The defendants’ testimony clearly indicates the mo-

tivation underlying the boycott. The defendants feel that

they have come away (comparatively) empty-handed in

their attempts to secure housing monies and commitments

from the City of Philadelphia and the federal government.

Sensing that they have exhausted their administrative and

political remedies, they have embarked on a new course

of action—the boycott of The Gallery. Through this ef-

fort, they seek to communicate their grievances to the

government. It is not Rouse or the merchants who can

satisfy the demands of the demonstrators and boycotters.

The defendants suggest that an injured or bankrupt Gal-

lery can induce the government to meet the demands of

the picketers, and thereby secure relief for the merchants

from the burdens of the boycott.

9B. The bus boycott of 1955 by black citizens of Montgomery,

Alabama, to protest racial discrimination (see N. Y. Times, Dec. 6,

1955, at p. 31 and Feb. 22, 1956 at p. 1 and Martin Luther King,

Stride Towards Freedom (1958)) was in response to a primary

dispute.

Phila. Court of Common Pleas Opinion A45

We hold that such strategy is a malicious misuse of

the defendants’ exercise of their First Amendment rights.

Such scapegoat picketing does not enjoy the protections

afforded to other forms of expressive conduct. The Gal-

lery has been unlawfully targeted as an economic scape-

goat to express the defendants’ grievances against the

government. Each plaintiff's business is a property right.

Truax v. Corrigan, 257 U. S. 312, 42 S. Ct. 124, 66 L. Ed.

954, 27 A. L. R. 375 (1921). The property rights of the

plaintiffs are protected by the Fifth and Fourteenth

Amendments against this assault by the defendants. The

defendants’ rights of freedom of expression do not carry

a right to maliciously damage and destroy the unrelated

property rights of others. Scapegoat picketing goes be-

yond the pale of constitutionally protected rights of free

expression. It is clearly a tortious invasion of property

rights, to purposely injure an innocent and uninvolved

party’s business in order to coerce concessions from a third

party government. Having no dispute wit’: the picketers

and having no power of correction, the plaintiffs’ only re-

course is to suffer damages. The defendants are engaged

in a thinly disguised coercive assault, with what the law

must regard as unlawful purpose and malevolent motives.

Such unlawful conduct is not constitutionally protected

as a supposed First Amendment expression in such cir-

cumstances.

The defendants have postulated that the plaintiffs

had a duty to contribute to business and housing develop-

ment in North Philadelphia and other poor minority

neighborhoods because they received and accepted bene-

fits from the government which could have gone to others.

After an initial indication by the court that such demands

might be unlawful, Mr. Street watered down the demand

and said that plaintiffs “could” and not “should” set up a

fund to help promote black housing and business interests.

A46 Phila. Court of Common Pleas Opinion

However, in the context of the boycott, it is necessarily

indicated that the boycott will continue until the plaintiffs

perform their supposed obligations. There is no right or

privilege to demand “reparations” or affirmative action

from private persons not guilty of past or present discrimi-

nation. Affirmative action is a legal obligation of the gov-

ernment not of isolated individuals. With regard to all of

defendats’ grievances as to housing, black business owner-

ship, charter change as to mayoral succession, police bru-

tality, treatment of the Move group, education and schools,

the plaintiffs have neither responsibility nor power to act.

We will not protect the defendants’ First Amendment

conduct when expressed for extortionate and illegal pur-

poses."”

The defendants argue that the court is not to be con-

cerned with the plight of the merchants of The Gallery

who are not parties to this suit. This contention ignores

the effect of the defendants’ actions, as well as the nexus

between Rouse and its sub-tenants. Rouse has leased

property to the merchants at a rental based in part on a

percentage of volume ir sales. Higher volume increases

the rentals paid to Rouse. The merchants’ gains or losses

are also Rouse’s gains or losses. Although they are not

formally joined as parties to the suit, the merchants’ in-

terests are interwoven with Rouse’s interests.

The defendants have alleged that they do have a dis-

pute with Rouse. At the beginning of the trial, they were

under the mistaken belief that there were no black store

owners in The Gallery. In fact, one of the most common

chants during the demonstrations of August 25 and 26,

1978, was “We don’t own, so we don’t shop.” However,

Mr. Street testified that the issue of black ownership was

really irrelevant; that if The Gallery were entirely black-

10. See United States v. Kubacki, 237 F. Supp. 638, 640 (E. D.

Pa. 1965); United States v. Mitchell, 63 F. 2d 187 (8th Cir. 1972).

Phila. Court of Common Pleas Opinion A47

owned the boycott would continue because the issue was

addressed to the expenditure of public monies on housing.

The testimony indicated that approximately 44% of

the employees of the retail stores are black and approxi-

mately 45 percent of the managerial and supervisory per-

sonnel of the retail stores in The Gallery are black; ap-

proximately sixty-eight percent of Rouse’s employees are

blacks; and approximately fifty percent of Rouse’s super-

visory and managerial personnel are black. The defend-

ants did not offer a scintilla of evidence that Rouse dis-

criminated against blacks in its leasing operations or that

Rouse, Gimbels, Strawbridges or any of the 94 Gallery

businesses was guilty of any act of discrimination against

any minority.

This creation of an illusion of discrimination by Rouse

and The Gallery businesses where there has been no dis-

crimination whatsoever is a serious wrong. The boycott

has aspects of libel and slander when it falsely portrays

discrimination where there is none. To the extent that the

defendants, by their protest, have created an impression

to the public that the plaintiffs have been guilty of dis-

crimination, that is a cruel hoax and an illegal destruction

of the rights of innocent persons to engage in and operate

a lawful business. The plaintiffs are entitled to the full

protection of the law so that they cannot be cavalierly

sacrificed to the supposition that the right to convey an

important message imports the right to falsely accuse and

resultantly injure or destroy persons who are not in any

way party to the problems or plights of disadvantaged

minorities.

This testimony reaffirms the fact that the defendants’

real focus is upon the needs of the black community that

are allegedly being ignored by the city and federal govern-

ments. The fact is that the boycott purposes were shifting

and confusing in nature. In a sense the defendants simply

A48 Phila. Court of Common Pleas Opinion

flailed out against The Gallery as a supposed symbol of

the entire white community. The boycott arose out of the

general economic disparities between whites and blacks

and the entire historical patterns of white economic

superiority. The defendants’ ultimate focus became the

contention that the government itself was the discriminat-

ing instrument and that public funds were being funneled

discriminatorily into white communities and white opera-

tions to the prejudice of black communities in general and

to the prejudice of the North Philadelphia black com-

munity in particular.

The only dispute with The Gallery is its very exist-

ence. The City, State and Federal Governments made

policy determinations that The Gallery was a project which

would share their common support. The Gallery has pro-

moted economic stimulation to a formerly decaying part

of the city. It provides over one-thousand new jobs and

a six fold increased property tax base for the city. The

defendants, however, are critical of the expenditure of

government monies that do not address their housing

grievances. Because The Gallery was the beneficiary of

a public policy on the city, state and federal level, the de-

fendants assert it is their right to injure or destroy that

shopping complex to communicate their dissatisfaction

with the policies and priorities of government. Such con-

duct is beyond the pale of constitutional protection.

In Birl v. Philadelphia Electric Co., 402 Pa. 297, 301,

167 A. 2d 472 (1960), the Court adopted Section 766 of

the Restatement of Torts which defines the tort of induc-

ing a breach of contract or a refusal to deal: “one who,

without a privilege to do so, induces or otherwise pur-

posely causes a third person not to (a) perform a contract

with another, or (b) enter into or continue a business re-

lation with another is liable to the other for the harm

caused thereby.” This definition was refined to consist of

'

Phila. Court of Common Pleas Opinion A49

the following three elements, that “the actor must act (1)

for the purpose of causing this specific type of harm to the

plaintiff, (2) such act must be unprivileged, and (3) the

harm must actually result.”

In Glenn v. Point Park College, 441 Pa. 474, 272

A. 2d 895 (1971), the Court adopted the holding made by

then Judge, now Chief Justice Eagen, in Locker v, Hudson

Coal Co., 87 D & C 264, 267-268 (Lackawanna Co.,

1953) :

. it seems established that a person’s business is

a property right in the pursuit of which he is entitled

to protection from tortious interference by a third

person, despite the absence of an express contract

between the parties to continue their business rela-

tionship. This is certainly the trend of the law since

the beginning of the twentieth century and the rapid

growth of industry and trade. We do believe, how-

ever, that in order for there to be an actional wrong,

it is necessary to plead and prove in a situation such

as this: (1) that the acts complained of were wilful

and intentional; (2) that they were calculated to

cause damage to plaintiff in his business; (3) that

they were done with the unlawful purpose of causing

damage and loss to plaintiff without right or justifi-

able cause on the part of defendant; (4) that actual

damage and loss resulted. The ‘malice’ above re-

ferred to does not imply any culpable intent but

rather is it the intentional doing of a harmful act

without justification or excuse. Defendant may have

had under the present stated facts the legal right to

do the acts complained of, but if they were done with

the intent to injure plaintiff, then they were malicious

and the malice makes unlawful that which otherwise

would be lawful.”

A50 Phila. Court of Common Pleas Opinion

In discussing the elements of the tort of inducing a

refusal to deal, the Glenn Court found that the existence

of a prospective contractual relation between the third

person and the plaintiff was a threshold ingredient. In

Adler, Barish, Daniels, Levin and Creskoff v. Epstein, et

al. — Pa, — , 393 A. 2d 1175 (1978), the Supreme Court

recently affirmed the vitality of Birl and Glenn while

modifying the privilege element of the tort. The focus

is more on whether the conduct is “improper” rather than

whether the conduct is “unprivileged.” The Court

adopted the guidance of Section 767 of the Restatement

(Second) of Torts, which focuses on what factors were

to be considered in determining whether conduct is “im-

proper’:

“In determining whether an actor’s conduct is

intentionally interfering with an existing contract or

a prospective contractual relation of another is im-

proper or not, consideration is given to the following

factors:

(a) The nature of the actor's conduct,

(b) The actor's motive,

(c) The interests of the other with which the

actor’s conduct interferes,

(d) The interests sought to be advanced by the

actor,

(e) The proximity or remoteness of the actor’s

conduct to the interference and

(f) The relations between the parties.”

Applying the standards of Birl, Glenn, Locker and Adler,

it is clear that the defendants are engaged in tortious con-

duct. The evidence indicates that (at least in its initial

Phila. Court of Common Pleas Opinion A51

stages) the boycott cost Gimbels and other merchants

almost one-third to one-half of their estimated sales vol-

ume. The boycott, by its very terms, is intended to in-

duce prospective customers of The Gallery to refuse to

enter into any contractual relationship with The Gallery's

merchants. Hundreds of prospective customers have re-

fused to deal with the plaintiffs as a result of the defend-

ants’ conduct. The purpose of the boycott is to cause

this specific type of harm to the plaintiffs. The defend-

ants’ conduct is “improper” due to its underlying malicious

intent. There is no doubt that the plaintiffs have suffered

considerable harm, both as a result of lost sales and in

goodwill. All elements of the tort of “wrongful inter-

ference with prospective advantage” are here present.

The boycott violates Pennsylvania tort law as pro-

nounced by the highest court in this Commonwealth, In

American Radio Association v. Mobile Steamship Associa-

tion, 419 U. S, 215, 95 S. Ct. 409, 42 L. Ed. 399 (1974)

the Supreme Court held as did the Pennsylvania Supreme

Court in 1621, supra, that such tortious conduct in viola-

tion of state law and state policy could be enjoined.

In a line of cases that culminates in International

Brotherhood v. Vogt, 354 U. S. 284, 77 S. Ct. 1166, 1 L.

Ed. 2d 1347 (1957) the Supreme Court clearly established

the principle that picketing-conduct or picketing-speech

which is conducted for a purpose contrary to state law or

state policy is not entitled to protection under the First

Amendment.

In Giboney v. Empire Storage and Ice Co., 336 U. S.

490, 69 S. Ct. 684, 93 L. Ed. 834 (1949), the picketing

held enjoinable was a single and integrated course of con-

duct designed to compel a violation of Missouri's valid

anti-trust law. The Court concluded that it was “clear

that appellants were doing more than exercising a right of

free speech or press. They were exercising their economic

A52 Phila. Court of Common Pleas Opinion

power together with that of their allies to compel Empire

to abide by union rather than by State regulation of trade.

Similarly, in Hughes v. Superior Court of California, 339

U. S. 460, 70 S. Ct. 718, 94 L. Ed. 985 (1950), the objec-

tive of the picketing was to secure submission by a retail

establishment to 2 demand for employment of Negro

workers in proportion to the number of Negro customers.

This objective was declared to be unlawful, for, if success-

ful, the picketing would have caused the retailer to dis-

criminate on the basis of race in its hiring practices, con-

trary to the then declared public policy in the State of

California. The Supreme Court further added that it is

immaterial that the State’s policy is expressed by the

judiciary as opposed to the legislature. In International

Brotherhood of Teamsters C. W. & H. Union v. Hanke,

339 U. S. 470, 70 S. Ct. 773, 94 L. Ed. 995 (1950), the

Supreme Court upheld a state injunction prohibiting

picketing where the objective was contrary to a valid

public policy of the State of Washington. In Building

Service Employees International Union v, Gazzan, 339

U. S. 532, 70 S. Ct. 784, 94 L. Ed. 1045 (1950) decided

the same day as Hughes and Hanke, the Supreme Court

affirmed a State injunction which prohibited picketing

where the objective was in violation of the State of Wash-

ington’s statutory policy against employer coercion of

employees’ choice of bargaining representative.

Eventually, in International Brotherhood v. Vogt,

supra, the Supreme Court established a definitive principle

for application in so-called “unlawful purpose” cases. In

that case, unions had sought unsuccessfully to induce some

of Vogt’s employees to join the unions. A‘‘er their efforts

failed, the unions commenced to picket the entrance to

Vogt’s gravel pit. As a result, drivers of several trucking

companies refused to deliver and haul goods to and from

the plant, and the company was substantially damaged.

Phila. Court of Common Pleas Opinion A53

At the request of Vogt, a Wisconsin trial court enjoined

the picketing, and the Wisconsin Supreme Court upheld

the injunction on the ground that the picketing was for an

unlawful purpose, namely, to coerce the employer to inter-

fere with its employees and their right to join or not to

join the union. An appeal to the United States Supreme

Court followed.

In rendering the Supreme Court’s decision in Vogt,

Justice Frankfurter carefully traced the evolution of the

concept that states can enjoin picketing in violation of a

valid public policy of the state. Noting the broad pro-

nouncements of Thornhill, be observed (at p. 289):

“Soon, however, the Court came to realize that

the broad pronouncements, if not the specific holding,

of Thornhill, had to yield ‘to the impact of facts un-

foreseen, or at least not sufficiently appreciated.”

Justice Frankfurter further observed that the line of cases

subsequent to Thornhill “made manifest that picketing,

even though ‘peaceful,’ involved more than just communi-

cation of ideas and could not be immune from all state

regulation.” Those cases also demonstrated an awareness

that the crucial question was not so much one of free

speech but, rather, whether the state court had struck a

proper balance between the communication activities and

the competing interests of state policy. In concluding its

discussion, the Court articulated the following principle

(at 293):

“This series of cases, then, established a broad

field in which a state, in enforcing some public policy,

whether of its criminal or of its civil law and whether

announced by its legislature or its courts, could con-

stitutionally enjoin peaceful picketing aimed at pre-

venting an effectuation of that policy.”

A54 Phila. Court of Common Pleas Opinion

Recently the Supreme Court case applied the so-called

“unlawful purpose” doctrine in American Radio Assn. v.

Mobile Steamship Assn., 419 U. S. 215, 95 S. Ct. 409, 42

L. Ed. 2d 399 (1974). There, maritime unions peacefully

picketed and distributed leaflets at a public dock, urging

persons to boycott foreign flagships allegedly employing

non-American crews at substandard wages. The conduct

of the unions was peaceful and non-violent. There was

no mass picketing, no trespassing on the property of others,

no blocking of ingress and egress, no assaults and no

covert acts of force. A State trial court enjoined the

unions’ activities at the public dock.

The Alabama Supreme Court, relying on Vogt,

Hughes and other “unlawful purpose” doctrine cases, held

that there was sufficient evidence to support the trial

court’s finding that the conduct of the unions was done

with the goal of interfering with the business of appellees

in their shipping and farming operations, and, therefore,

properly enjoined. State public policy was found to be

violated because one of the purposes of the unions’ action

was to “wrongfully interfere” with appellees’ business.

Relying on the Vogt case, the Supreme Court of the

United States concluded that there was no labor dispute

but that Alabama’s interference with the unions’ activities

was well within “the broad field in which a state, enforc-

ing some public policy, whether of its criminal or its civil

law and whether announced by the legislature or its courts,

could constitutionally enjoin peaceful picketing aimed at

preventing effectuation of that policy.” In response to the

unions claim that the injunction in American Radio was

not supported by a “valid public policy,” the Supreme

Court stated (at 231):

“In Pennington, the Supreme Court of Alabama

indicated that state policy against ‘wrongful inter-

ference’ is quite analogous to the federal policy pro-

Phila. Court of Common Pleas Opinion A55

hibiting secondary boycotts and is based on similar

considerations. The state policy also appears to be

based on the state interest in preserving its economy

against the stagnation that could be produced by

pickets’ disruption of the businesses of employers with

whom they have no primary dispute. Under Vogt,

supra, the state may prefer these interests over peti-

tioners’ interest in conveying their ‘Ship American’

message through the speech-plus device of dockside

picketing.”

Despite the unions’ claims in the American Radio case

that their activities were for informational and publicity

purposes only, the Supreme Court found that another

purpose of the unions’ activity was to interfere wrongfully

with the business at the state dock. Evidence of this pro-

hibited purpose was based upon the testimony of a single

union official charged with carrying out the picketing, who

“had expressed the hope . . . that the port would become

cluttered with foreign ships unable to load or unload and

that the docks would be shut down.” The Court upheld

the Alabama Supreme Court's finding that to “wrongfully

interfere” with the appellees’ property interests was against

state policy. The Court found Vogt to be controlling, and

upheld Alabama’s prohibition of petitioners’ picketing.

Thus, American Radio reaffirmed and established un-

equivocally that a state may enjoin picketing engaged in

for a purpose contrary to the law and public policy of a

state. ii

In American Radio distinguishable from this case be-

cause it is the conduct of the government itself (Rede-

velopment Authority) which is addressed in grievances?

There would be grave danger if government were the si-

lencer of protest against itself. We are not deciding any-

thing with regard to the dispute between the defendants

A56 Phila. Court of Common Pleas Opinion

and government. The defendants, by their conduct, make

it clear that that is not the question before us. The de-

fendants (perhaps as a sad result of their angers at his-

torical and present mistreatment, discrimination and

oppression) have moved beyond the pale of permissible

conduct and have flailed out on various issues so as to

strike at persons innocent of wrongdoing or involvement in

these issues and who are admittedly unable to redress

defendants’ grievances or to respond to attacks upon them

by correcting something. The boycott is a scapegoat boy-

cott. The Gallery is unlawfully made a rallying point for

what might otherwise be justified dissidence. Instead it

is a scapegoat boycott for unlawful purpose.

Under the present state of the law in Pennsylvania,

picketing is constitutionally protected as a means; how-

ever, it is not protected when used for the purpose of

accomplishing an unlawful end. 1621, Inc. v. Wilson,

supra.

The legislature enacted the Urban Development Act

to promote elimination of blighted areas and supply sani-

tary housing in areas throughout the Commonwealth. The

Redevelopment Authorities, throughout the state, are au-

thorized to engage in the elimination of blighted areas

and to plan and contract with private, corporate or gov-

ernmental redevelopers for their redevelopment. The

Redevelopment Authority of the City of Philadelphia

(RDA) is an agency of the Commonwealth of Pennsyl-

vania whose sole purpose is to carry out and effectuate

the purposes and provisions of the Urban Redevelopment

Act.

Faced with a decaying downtown business district,

and an exodus of the shopping public to the shopping

malls located in the Philadelphia suburbs, RDA undertook

to help rejuvenate retail business activity in center city

Philadelphia. As part of this urban renewal plan, RDA

Phila. Court of Common Pleas Opinion A57

launched development of The Gallery. RDA contracted

with the plaintiff, Rouse-Philadelphia, Inc., for the plan-

ning and development of The Gallery. The concept of

this plan was initiated by the City Planning Commission

in the 1960's. Pursuant to its statutory authority, RDA

prepared and submitted plans which were approved by

City Council. Councilmanic hearings were held so that

the general public could present views relative to the plan.

When RDA filed its Declaration of Taking, one of the

tenants challenged the condemnation. The taking was

upheld: Simco v. R. D. A., 455 Pa. 438, 317 A. 2d 610

(1974). The general public had opportunity to make

known any views relative to the Market Street East de-

velopment.

R. D. A., however, was essentially a “pass-through

agency which is carrying out the City’s planning objec-

tives in the Market Street Project (The Gallery).” (see

D-8a). Before R. D. A., and Rouse-Philadelphia, Inc.,

entered into their lease agreement, they required certain

assurances from the City prior to final approval by HUD.

HUD’s involvement was crucial because the Market East

Project was constructed with some 24.5 million dollars

of Federal monies. HUD was concerned that the City

protect the public interest and improvements.

The Gallery was therefore a project which shared

the support of municipal, state and federal governments.

The planning and development of the project was an ex-

ercise of public policy at three governmental levels de-

signed to rejuvenate public and consumer interest in the

center-city business district, develop a stronger tax base,

provide over one thousand jobs and fight urban decay.

It is not within the province of this Court to pass

upon the wisdom of such policy decision. We must de-

termine whether defendants’ conduct is intended and de-

signed to defeat the implementation of the public policy

of the State.

A58 Phila. Court of Common Pleas Opinion

The defendants believe that governmental expendi-

ture of public monies in Philadelphia should address their

housing grievances. Because The Gallery has benefited

from government monies, though not monies which de-

fendants would have received, it has been targeted as an

economic scapegoat. The defendants state the problem

with simplicity—if they are not the beneficiaries of these

or other public monies, then they shall act to destroy the

Gallery (or any other chosen target) because it was

chosen instead as a beneficiary for governmental assistance.

Instead of mobilizing their forces for purposes of legislative

and policy input, the defendants have chosen to injure the

manifestation of what they consider an irresponsible and

discriminatory policy. Such unjustified injury is malicious

in law. Where the defendants maliciously attempt to in-

jure plaintiff's business, they are in violation of Pennsyl-

vania tort law and the long term public policy of the

State. The law is clear that picketing for purposes con-

trary to State law or State policy can be enjoined in its

entirety. The people of the City and the Commonwealth

have the right to expect that the courts will protect the

implementation of public policies.

It is troubling that as a result of the illegal objective

underlying the defendants’ protestations, they have lost

some of their rights to express otherwise protected speech.

We considered whether we could carve out and prohibit

the unprotected speech, while still permitting the pro-

tected informational speech. Unfortunately, a resolution

along such lines by way of a bifurcated order appears to

be impossible.

The protestors’ mob-like activities of August 25 and

August 26, 1978, left an indelible false impression in the

eyes of some of the public that The Gallery was sup-

posedly guilty of discrimination and that it was in some

way responsible for defendants’ grievances. Picketing

Phila. Court of Common Pleas Opinion A59

continued at The Gallery on virtually a daily basis. The

public was left with the impression that The Gallery had

done “something” to warrant being picketed. The initial

purpose of the picketers was to injure or destroy The

Gallery and that is still the picketing and boycott purpose.

The defendants engaged in some informational picketing,

but their constant advocacy is to “Boycott The Gallery.”

Unfortunately the defendants’ unlawful purpose taints the

entirety of their expressive conduct. The Pennsylvania

Supreme Court held that picketing may be enjoined if one

of its objects is unlawful even though not the sole object.

Anchorage, Inc. v. Waiters and Waitresses Union, 383 Pa.

547, 119 A. 2d 199 (1956). In this case the otherwise

protected speech is inextricably interwoven with the un-

protected speech. The public is unable to discern be-

tween what constitutes acceptable speech conduct and

that which is enjoinable. Otherwise legitimate speech

interests lose their special privilege under the law when

so intertwined with unlawful purposes. We must there-

fore prohibit all of defendants’ speech interests at The

Gallery in furtherance of scapegoat boycotting.

The defendants have argued a combination of two

themes: 1) that under the law and the Constitution of the

Commonwealth of Pennsylvania a court of equity will not

enter an injunction which operates as a prior restraint on

speech, Willing v. Mazzocone, — Pa. —, 393 A. 2d 1155

(1978); and 2) that it is axiomatic in First Amendment

cases that there is no right or power in the government to

consider the content of speech or to distinguish speech on

the basis of its message, Police Department v. Mosley, 408

U. S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972).”

1l. Hudgens v. N. L. R. B., 424 U. S. 407, 96 S. Ct. 1029, 47

L. Ed. 2d 196 (1976); Organization For A Better Austin v. Keefe,

402 U. S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d 1, (1971); Cohen v.

California, 403 U. S. 15, 24, 91 S. Ct. 1780, 29 L. Ed. 2d 284, 293

A60 Phila. Court of Common Pleas Opinion

In the Willing v. Mazzocone case, lawyers sought to

enjoin a former client from picketing and libelous conduct

which falsely charged the attorneys with stealing her

money and “selling out” to an insurance company. Her

conduct included carrying a sandwich-type board sign

denouncing the lawyers, pushing a shopping cart on which

she placed an American flag, and continuously ringing a

cow bell and blowing a whistle to attract attention. There

was some indication she was mentally ill. Mazzocone is

not controlling here. It held, inter alia, that defamation

will not be enjoined by a court of equity. Mr. Justice

Manderino stated on behalf of a 4-3 majority (of which

majority 3 were concurrences ) as follows:

“Our conclusion that the equity court violated

appellant’s state constitutional right to freely speak

her opinion—regardless of whether that opinion is

based on fact or fantasy—regarding appellees’ pro-

fessional integrity obviates the need for any discussion

here of federal law.”

The Mazzocone case must be distinguished from this

case. Mazzocone addressed the power to impose a prior

restraint on defamation. This case only minimally in-

volves possible defamation insofar as there is a false

portrayal of discrimination. This case addresses the power

of equity to enjoin speech of the picketing and boycott

class, when such picketing-speech is exercised for an un-

lawful purpose. The Supreme Court did not consider any

11. (Cont'd. )

(1971); Street v. New York, 394 U. S. 576, 89 S. Ct. 1354, 22 L. Ed.

2d 572 (1969); New York Times Co. v. Sullivan, 376 U. S. 254,

269-270, 84 S. Ct. 710, 11 L. Ed. 2d 686, 700, 95 A. L. R. 2d 1412

(1964) and cases cited; NAACP v. Button, 371 U. S. 415, 445, 83

S. Ct. 328, 9 L. Ed. 2d 405, 425 (1963); Wood v. Georgia, 370 U. S.

375, 388-389, 82 S. Ct. 1364, 8 L. Ed. 2d 569, 579 (1962).

Phila. Court of Common Pleas Opinion A61

question as to Ms. Willing’s purpose. The Court did not

decide the effect, if any, of an unlawful purpose upon the

otherwise undoubted right to freedom of expression.

In Mr. Justice Pomeroy’s concurring opinion he re-

ferred to Judge (now President Judge) Jacobs’ dissenting

opinion (joined by Judges Hoffman and Spaeth) in the

Superior Court (246 Pa. Super. Ct. 98, 109, 369 A. 2d 829,

834 (1977)) and incorporated it by reference into his

concurrence. In his dissent Judge Jacobs stated (at p.

836):

“There are a few exceptions to the rule prohibiting an

injunction against libel or slander. For example, an

injunction may be granted where the false statements

are part of a conspiracy to injure, or where there is

intimidation or coercion.”

And he stated (at p. 838): “Equitable jurisdiction to inter-

dict libelous publication has been assumed . . . where

there is a conspiracy to maliciously injury a plaintiff's busi-

ness or property (citing cases).” Judge Jacobs noted an

absence of such evidence.

Thus, in Mazzocone the only reference to free speech

in conjunction with an unlawfu! purpose and malicious

intent to injure indicates that such speech may sometimes

be enjoined. Mazzocone is distinguished on another

ground. Ms. Willing had a primary dispute which gave

rise to her conduct. She believed, reasonably or unreason-

ably, that her attorneys owed her twenty-five dollars. In

this case, the demonstrators have no dispute with the

plaintiffs. This absence of a dispute has critical signif-

icance in the context of an economic boycott. In this case,

where no dispute exists, plaintiffs are unable to address

or deal with the defendants’ demands. We conclude that

the law which prohibits prior restraint does not restrict our

authority to enjoin a scapegoat boycott and picketing and

speech conducted for unlawful purposes.

A62 Phila. Court of Common Pleas Opinion

In Police Department v. Mosley, 408 U. S. 92, 92 S.

Ct. 2286, 33 L. Ed. 2d 212 (1972) the Court stated: “But,

above all else, the First Amendment means that govern-

ment has no power to restrict expression because of its

message, its ideas, its subject matter or its content.” Out

of this restriction it is often too flatly stated that the courts,

therefore, may not examine or consider the nature of or

content of speech. The fact is and the cases show that the

courts do examine content and they must examine content

in order to make decisions and to determine whether

speech enjoys the full protection of the First Amendment.

In Chaplinsky v. New Hampshire, 315 U. S. 568, 571-

572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) the Court stated:

“(1)t is well understood that the right of free

speech is not absolute at all times and under all cir-

cumstances. There are certain well-defined and nar-

rowly limited classes of speech, the prevention and

punishment of which has never been thought to raise

any constitutional problem. These include the lewd

and obscene, the profane, the libelous, and the in-

sulting or ‘fighting’ words—those which by their very

utterance inflict injury or tend to incite an immediate

breach of peace. It has been well observed that such

utterances are no essential part of any exposition of

ideas, and are of such slight social value as a step to

truth that any benefit that may be derived from them

is clearly outweighed by the social interest in order

and morality.”

It is not the right to lie which is of value or the sub-

ject of First Amendment protection—it is the right to

speak (and hopefully and incidentally—but only hope-

fully and incidentally—to tell the truth). The power to

suppress the right to lie may pour over into a power to

suppress ideas and truth. We tend to absolutize the right

Phila. Court of Common Pleas Opinion A63

of speech in order to avoid erosion of the right. But we

cannot lose sight of the fact that the right of speech is not

absolute.

In F. C. C. v. Pacifica Foundation, — U. S. —, 98 S.

Ct. —, 57 L. Ed. 2d 1073 (1978) Mr. Justice Stevens

stated: “The order must therefore fall if . . . the First

Amendment prohibited all governmental regulation that

depends on the content of speech. Our past cases demon-

strate, however, that no such absolute rule is mandated by

the Constitution.”

In Schenck v. U. S., 249 U. S. 47, 52, 39 S. Ct. 247,

63 L. Ed. 470 (1919) Mr. Justice Holmes made it clear

that both the content and the context of speech are sub-

ject to examination by courts in order to determine

whether First Amendment protections apply and the scope

of such protections.

In a boycott speech as a stuff can be lethal. When it

is used for such purpose and we evaluate the validity

and propriety of purpose we are necessarily examining

content. The prohibition is against examining content to

evaluate the acceptability of its ideas. There must be

examination in order to determine whether the speech

violates criminal law, public policy or tort law. There

must be examination in order to determine whether the

speech is for a lawful or an unlawful purpose. We con-

clude that the general rule which prohibits inquiry into

the content of speech does not restrict our authority to

inquire into the lawfulness of boycott purpose.

ENTITLEMENT TO PRELIMINARY

INJUNCTIVE RELIEF

A preliminary injunction should be issued when three

requisites are met: 1) its issuance is necessary to prevent

immediate and irreparable harm; 2) greater injury would

A64 Phila. Court of Common Pleas Opinion

result by refusing the preliminary injunction than by

granting it; and 3) until a final determination can be

made, the decree properly restores the parties to their

status as it existed immediately prior to the alleged wrong-

ful conduct. Alabama Binder and Chemical Corp. v.

Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 189

A. 2d 180 (1963).

Where the defendants have engaged in an unlawful

scapegoat boycott and have engaged in mass demonstra-

tions, both inside and outside The Gallery, have wrong-

fully interfered with the plaintiffs’ property and business

rights, have caused the plaintiffs to lose sales and business,

have trespassed on plaintiffs’ property, and have intimi-

dated and interfered with customers, employees and mer-

chants inside and outside The Gallery and Gimbels,

greater injury would result by refusing the preliminary in-

junction than by issuing it, and its issuance is necessary to

prevent further immediate and irreparable harm. If the

parties so wish, they may agree that the Preliminary In-

junction Decree shall be and become a final decree and,

therefore, immediately appealable.

We shall append to this opinion, wherein we have

concluded that all scapegoat boycott activity is illegal and

must be enjoined, our findings of fact and our conclusions

of law. We are also filing herein a Supplemental Opinion

upon the assumption that our conclusions that all boycott

activity must be enjoined is incorrect. In the Supplemen-

tal Opinion we have considered the manner in which boy-

cott activity, if lawful, may be conducted. Repetition of

our findings of fact and our conclusions of law is unneces-

sary. Each opinion should be deemed to incorporate

therein all findings of fact implicit in the other opinion.

Although this procedure greatly lengthens our opinions,

in this way we intend to make the record and our dispo-

sition complete, so that an appellate court need not at

some future time remand the matter.

Phila. Court of Common Pleas Opinion A65

In view of all of the foregoing, we conclude that under

the established law and public policy of this Common-

wealth, the plaintiffs’ rights to engage in business and

earn a livelihood transcends the defendants’ rights to free-

dom of speech, particularly when such speech is used for

purposes of scapegoat boycotting and to maliciously in-

jure and destroy plaintiffs’ business interests. Accord-

ingly, we enter the following decree and order:

A66_ Phila. Court of Common Pleas Decree and Order

IN THE

COURT OF COMMON PLEAS OF

PHILADELPHIA COUNTY

TRIAL DIvision

Aucust Term, 1978

No. 4145

ROUSE PHILADELPHIA INC,

and

REDEVELOPMENT AUTHORITY OF

THE CITY OF PHILADELPHIA,

Plaintiffs,

and

GIMBEL BROTHERS, INC.

and

GIMBEL BROTHERS REALTY CORP.

Intervening plaintiffs

v.

AD HOC ’78

and

T. MILTON STREET AS AN INDIVIDUAL AND AS

A REPRESENTATIVE OF AD HOC '78 THE UN-

INCORPORATED ASSOCIATION OF PERSONS

ACTING IN CONCERT TO BLOCK INGRESS TO

AND EGRESS FROM THE GALLERY AT

MARKET EAST

and

JOHN DOE anv JANE DOE

and

Phila. Court of Common Pleas Decreeand Order A67

ALL OTHER PERSONS ACTING IN CONCERT WITH

THE NAMED PARTICIPANTS OR OTHERWISE

PARTICIPATING IN THEIR AID

Defendants

Decree and Order

Anp Now, this 3lst day of January, 1979, the tem-

porary and special injunction orders heretofore issued by

this court on August 26, 1978 are modified and amended

as follows:

1. Defendants, T. Milton Street and Ad Hoc 78, to-

gether with their agents, servants and those acting in

their interest or at their direction, are enjoined and re-

strained preliminarily, until final hearing, and thereafter

until further order of this court, from picketing, hand-

billing, speechmaking, demonstrating, and boycotting in-

side or outside The Gallery or Gimbels, including the

public areas therein, or on any of the three colonnades

located outside the entrance to Gimbels, or the exterior

courtyard area, or the sidewalk which forms the immediate

perimeter surrounding The Gallery, Gimbels and Straw-

bridge’ stores.

2. The Sheriff of Philadelphia County, with the as-

sistance, when necessary, of the Civil Affairs Unit of Phila-

delphia Police Department, or any other necessary law

enforcement agency, is directed to use all power under

the law to insure full compliance with all of the terms of

this Preliminary Injunction.

3. That the Sheriff of Philadelphia County is au-

thorized, at all times during the term of this Injunction

Decree, to have such personnel or representatives present

at The Gallery building and/or the areas contiguous

thereto as he shall deem necessary for the purposes of en-

forcing this decree.

A68 Phila. Court of Common Pleas Decree and Order

4. That the two bonds heretofore filed herein by

Plaintiff Rouse Philadelphia Inc. in the sum of $5,000.00

each, conditioned for payment of such costs and damages

as may be incurred or suffered by any party found to be

wrongfully enjoined and restrained, shall remain in full

force and effect and no additional bond is required.

5. This Decree and Order shall remain in full force

and effect until such time as this Court specifically orders

otherwise.

6. All orders and decrees heretofore entered are

superseded by and are merged into this decree and order.

BY THE COURT:

I. RAYMOND KREMER

Phila. Ct. of Common Pleas Findingsand Conclusions A69

IN THE

COURT OF COMMON PLEAS OF

PHILADELPHIA COUNTY

TRIAL DIVISION

Aucust TERM, 1978

No. 4145

ROUSE PHILADELPHIA INC.

and

REDEVELOPMENT AUTHORITY OF THE

CITY OF PHILADELPHIA,

Plaintiffs,

and

GIMBEL BROTHERS, INC.

and

GIMBEL BROTHERS REALTY CORP.,

Intervening plaintiffs,

v.

AD HOC ’78

and

T. MILTON STREET AS AN INDIVIDUAL AND AS A

REPRESENTATIVE OF AD HOC ’78 THE UNIN-

CORPORATED ASSOCIATION OF PERSONS

ACTING IN CONCERT TO BLOCK INGRESS TO

AND EGRESS FROM THE GALLERY AT

MARKET EAST

and

JOHN DOE AND JANE DOE

and

A70_ Phila. Ct. of Common Pleas Findings and Conclusions

ALL OTHER PERSONS ACTING IN CONCERT WITH

THE NAMED PARTICIPANTS OR OTHERWISE

PARTICIPATING IN THEIR AID

Defendants

ae

Findings of Fact and Conclusions of Law

In addition to the findings of fact and conclusions of

law implicit in the Opinion and Supplemental Opinion we

make the following

FINDINGS OF FACT

THE PARTIES

1. Plaintiff, Rouse Philadelphia, Inc., (hereinafter, for

purposes of brevity, sometimes referred to as “Rouse ), is

a Maryland corporation licensed to do business in Penn-

sylvania. It is engaged in the business, inter alia, of

operating an enclosed, four-level shopping mall known as

The Gallery, located in downtown or center-city Phila-

delphia. The Gallery accommodates approximately 106

retail businesses which lease their places of business from

Rouse. Ninety-four retail businesses are presently doing

business in The Gallery.

2. Plaintiff Gimbel Brothers, Inc., (hereinafter, for

purposes of brevity, sometimes referred to as “Gimbels’ )

is a New York corporation duly licensed to do business in

Pennsylvania. Gimbels is primarily involved in the opera-

tion of retail department stores and operates a large de-

partment store located in downtown or center-city Phila-

delphia. Sometimes the term Gallery is erroneously used

to also include the stores operated by Gimbels and Straw-

bridge & Clothier.

Phila. Ct. of Common Pleas Findings and Conclusions A71

3. Plaintiff Gimbel Brothers Realty Corporation (here-

inafter, for purposes of brevity, sometimes referred to as

“Gimbels Realty”) is a Pennsylvania corporation. It is a

wholly-owned subsidiary of Gimbels involved in the

ownership and leasing of real estate.

4. Plaintiff Redevelopment Authority of the City of

Philadelphia (hereinafter, for purposes of brevity, some-

times referred to as the “Authority” or as RDA), is a non-

profit Commonwealth authority, established pursuant to

the Urban Redevelopment Law, Act of May 24, 1945, 35

P. S. sec. 1701 et seq. The Redevelopment Authority is a

public agency. The Redevelopment Authority owns The

Gallery and was the developer and general contractor for

the construction of The Gallery. The Authority is author-

ized, inter alia, to exercise the right of eminent domain,

purchase and acquire real estate, clear buildings and other

improvements therefrom, enter into agreements with

others, own real estate and convey it or lease it to others,

all for the purposes of redevelopment of real estate and

the elimination of blighted areas.

5. Defendant Ad Hoc ’78 (hereinafter, for purposes

of brevity, sometimes referred to as “Ad Hoc”) is an un-

incorporated association of various organizations and their

members, too numerous to mention, acting in concert to

induce the public to boycott the retail stores in The Gallery

and Gimbels department store. Its offices are located at

1625 Columbia Avenue, Philadelphia, Pennsylvania.

6. Defendant T. Milton Street (hereinafter, for pur-

poses of brevity, sometimes referred to as “Milton” or

“Street”) is an individual who resides in North Philadel-

phia, west of Broad Street, in the City of Philadelphia.

He is a candidate for election to the General Assembly

A72 Phila. Ct. of Common Pleas Findings and Conclusions

in November, 1978.' He is a representative of and chair-

man of Ad Hoc.

7. Defendants John Doe and Jane Doe are names for

unidentified persons associated with members of Ad Hoc

and other individuals who are acting in concert with Street

and Ad Hoc to boycott The Gallery and Gimbels. The

identities of relatively few persons involved in the boycott

has been made known.

THE SUBJECT PROPERTY

8. The Gallery and Gimbels’ store are located on

property which was owned by the Authority. That prop-

erty was acquired by the Authority through condemnation

to accomplish its purposes. The property is located in

and is part of a larger area known as the Market Street

Urban Renewal Area which was acquired by the Authority

for redevelopment purposes.

9. The subject property is located within the down-

town or center-city area of Philadelphia. It includes the

entire block bounded by Tenth, Market, Ninth and Filbert

Streets, in addition to a substantial portion of the block

bounded by Ninth, Market, Eighth, and Filbert Streets.

10. The area in question is bounded by public streets

and sidewalks on all sides. The approximate widths of

the public streets in question are as follows: (a) Market

Street (between 8th and 10th)—62 feet; (b) Tenth Street

(between Market and Filbert )—28 feet; (c) Ninth Street

(between Market and Filbert )—30 feet; (d) Filbert Street

(between 9th and 10th)—currently blocked off because of

construction.

1. He was elected to the General Assembly after the hearings

closed.

Phila. Ct. of Common Pleas Findings and Conclusions A73

The approximate dimensions of the public sidewalks

are as follows: (a) Market Street (between 9th and 10th)

—19 feet wide and 416 feet long; (b) Tenth Street (east

side between Market and Filbert)—13 feet, 10 inches

wide and 337 feet long; (c) Ninth Street (between

Market and Filbert)—(1) west side—12 feet wide and

337 feet long, (2) east side—I3 feet, 10 inches wide and

337 feet long; (d) Filbert Street (between 9th and 10th)

—there is no sidewalk yet due to construction.

11. The walkways or corridors in the public areas

are of the following dimensions:

The Mall level corridor between Gimbels and the

Market Fair areas is approximately 40 feet wide and 170

feet long. This corridor continues on a straight line to the

mall entrance to Strawbridge and Clothier. This corridor

is approximately 333 feet long and between 28 and 35

feet wide. From this corridor another corridor extends

in a northerly direction by the area called the “Bull

Market.” This corridor continues to two subway en-

trances and exits. This corridor is approximately 10 feet

long and averages about 30 feet wide.

In addition, on the mall level there is an interior

courtyard immediately inside the 9th and Market Street

entrance which is approximately 68 feet by 70 feet.

The corridor on the street level varies in width but is

generally between 11 and 12 feet wide. The width is

approximately 60 feet wide in one section where two per-

pendicular walkways intersect, and approximately 30 feet

wide adjacent to Strawbridge’s street level entrance.

Ninth Street intersects the continuity of the length of the

corridor. The length of the corridor on the street level

is approximately 180 feet from 10th Street to 9th Street

and 96 feet between 9th Street and the beginning of

Strawbridge’s store.

A74_ Phila. Ct. of Common Pleas Findings and Conclusions

On the second level the corridor is approximately 332

feet long. The width varies, but generally is between 11

and 12 feet wide. There is another corridor which is

about 82 feet long by 10 feet wide.

The corridor on the third level is approximately the

same as the second level except there is an additional cor-

ridor approximately 15 feet wide and 118 feet long which

leads to an entrance to the Philadelphia Parking Authority

garage.

Two escalators operate between levels of the Mall

and are capable of carrying two persons per tread. Two

elevators have a combined capacity of ten to fourteen

persons.

12. The exterior courtyard area is that area on the

immediate outside of the “9th and Market Street” entrance.

It includes four sets of steps coming from three different

directions. On the Market Street side, the design con-

sists of six steps, followed by a four foot landing, followed

by another six steps, another landing, another six steps,

another landing, then seven steps and then about an eight

foot level area to the doors. The design is the same from

the Ninth Street direction, the only difference being at the

top tier, which has about a thirty foot concrete bench in-

stead of the first set of six steps.

13. On April 15, 1975, the Authority conveyed to

Gimbels Realty, in fee simple, a certain portion of the re-

development area in question. That area includes the

Gimbels Store at 10th and Market Streets (contiguous to

The Gallery proper) and that portion on the first level of

The Gallery which is known as Market Fair; three

bricked-in colonnades on the street level immediately out-

side and adjacent to the entrances to Gimbels and The

Gallery; and that area containing escalators and stairs,

which extends from The Gallery street level entrance at

Phila. Ct. of Common Pleas Findings and Conclusions A715

Tenth and Market Streets into the mall level of The Gal-

lery (hereinafter included as part of the Tenth and Market

Streets colonnade). That property, known as Parcel #7,

occupies a substantial portion of the city block bounded

by Tenth, Market, Ninth and Filbert Streets.

14. The Gallery building, owned and partly con-

structed by the Authority, occupies a substantial portion

of the city block bounded by Tenth, Market, Ninth and

Filbert streets and a substantial portion of the city block

bounded by Ninth, Market, Eight and Filbert streets.

There is a pedestrian bridge connecting the part of The

Gallery on the east side of Ninth Street with that on the

west side of Ninth Street. The Gallery building is con-

tiguous with and connected to the Gimbels storegn the

west and another large department store, Strawb@dge &

Clothier, located to the east in the city block bounded by

Ninth, Market, Eight and Filbert Streets, thus creating a

large unified shopping complex.

15. RDA spent approximately 24.5 million dollars of

HUD Urban Renewal funds to acquire the land and con-

struct The Gallery. The federal funds were used to con-

struct the exterior shell and Public areas of the building.

Rouse was responsible for completing the subtenant space

and received an approximately 9 million dollar loan from

RDA to accomplish this. Rouse has reimbursed RDA this

money. The City also spent over a million dollars in the

construction of The Gallery. Gimbels expended $30,000,

000 in the construction of its store.

16. On December 16, 1975, the Authority entered

into a lease agreement (hereinafter, for purposes of

brevity, sometimes referred to as the “Authority Lease” or

“Lease” ) whereby the Authority leased to Rouse for a

period in excess of ninety-nine years certain portions of

The Gallery referred to and described as the Leased

A76 Phila. Ct. of Common Pleas Findings and Conclusions

Premises. The purpose of the Lease is stated to be“. . .

for the promotion of health, safety, convenience and wel-

fare of the citizens of Philadelphia; for the purpose of

eliminating the blight in the Market Street Urban Renewal

Area; and to develop in lieu thereof a multi-level, enclosed

retail mall, public areas, and other improvements to in-

crease the land value therein, increasing tax ratables in

the city, and creating additional job opportunities therein.”

Rouse was required to construct the space for the tenants’

stores.

17. The premises are defined in section 2.1 and it in-

cludes certain specified areas in The Gallery, together with

any and all present and future easements, rights and ap-

purtenances relating to such premises, including easements

in the Public Area (said premises together with all such

easements, rights and appurtenances being hereinafter

collectively referred to as the “Leased Premises’ ).

18. The portion of the Leased Premises known as the

“Leased Area” was designed by Rouse for subletting to

various sublessees who were to operate retail enterprises.

Those areas designed for occupancy by sub-tenants are

referred to in the lease as “Retail Areas.”

19. The Authority Lease also refers to a certain area

in The Gallery as “Public Areas.” The “Public Area” is

that portion of The Gallery which is constructed wholly

outside of the Leased Premises and which is intended for

use by the public, Rouse and its sublessees, and the cus-

tomers and invitees of the sublessees. The Lease provides

in section 12.1 that Rouse is granted a non-exclusive ease-

ment in the Public Area for the benefit of Rouse and its

licensees, its sub-tenants, and their customers, agents and

employees for the use of the Public Area for the purposes

for which it, the Public Area, was designed. The Author-

Phila. Ct. of Common Pleas Findings and Conclusions A77

ity has never dedicated the Public Area of The Gallery

for general use by the public at large.

20. There is an ambiguity in the Lease as to whether

or not the Public Area is included within the Leased

Premises (section 2.1) or is “wholly outside the Leased

Premises.” (Art. I, P-5) We have concluded that the

Public Areas are not part of the property leased by Rouse.

However, we find that the Public Areas cannot be used

for purposes antithetical to the very retail purposes of the

mall; that it was never intended that the public could so

use the public areas for the purpose of interfering with

the tenant’s businesses and rights to do business.

21. In section 16.8 of the Authority Lease, the Au-

thority warrants that “nothing in this Lease, other than

enforceable third-party rights, specifically acknowledged

in this Lease, shall be construed to constitute or create

rights in any person, firm, or other entity not a party

hereto (as a third-party beneficiary, or otherwise) . . .”

22. In the Authority Lease, the Authority granted to

Rouse substantial control and rights with respect to the

Public Areas, for which Rouse gave consideration. Some

of the applicable provisions of the Lease reflecting Rouse’s

rights of control with regard to the Public Area are as

follows:

(1) In section 3.4 the Lease contains a covenant

of quiet enjoyment whereby the Authority grants to

Rouse the right to “lawfully, peaceably, and quietly

hold, occupy and enjoy the Leased Premises.” Rouse

has a right to terminate upon “material breach” of

this covenant of quiet enjoyment.

(2) In section 8.2 the Lease provides: “The

Public Area shall be open and operated, and all public

entrances thereto shall be open, during the hours

A78 Phila. Ct. of Common Pleas Findings and Conclusions

when the Retail Area or any part thereof is open for

business, and also for one-half hour prior to the open-

ing and one-half hour after the close of business of

the Retail ‘rea. The Public Area allowing ingress

and egress to and from all transportation facilities

shall remain open at all times except when closing

may be required for security purposes.” Rouse is

required to pay a portion of the cost of maintaining

the Public Area.

(3) In section 8.4 Rouse is required to contribute

to a reserve fund to be used in part for the replace-

ment of the structural portions of and equipment

located in the Public Area.

(4) In section 7.1 Rouse had the right to par-

ticipate in the selection of the contractor to construct

the Public Area and the right to select the architects,

designers and consultants to “design, coordinate and

advise (the Authority) on graphics, landscaping and

pedestrian mall finishes in the Public Area.” Rouse

contributed one third of the cost of architectural,

engineering and consulting fees allocable to the Public

Area.

(5) In section 8.7 any alterations which the

Authority desires to make in the Public Area must be

approved by Rouse. The Lease provides that Rouse

can withhold its consent if the proposed alteration

etc. in any way impedes pedestrian access to the re-

tail area, that is, to the shops in The Gallery.

(6) In section 10.12 Rouse has the right to par-

ticipate in the selection of any contractor hired to

make restorations in the Public Area.

(7) In section 13.3 Rouse is given the right to

complete construction of the Public Area if the Au-

thority fails to do so.

Phila. Ct. of Common Pleas Findings and Conclusions A79

(8) Rouse has the right to enter into a mortgage

which would subject the Authority's reversionary in-

terest in the Leased Premises and its fee simple estate

in the Leased Premises, including the Public Area, to

the lien and encumbrance of Rouse’s mortgage. The

Lease also provides that if the Authority refuses to

execute any such mortgage, Rouse has the right to

occupy the Leased Premises rent free until the mort-

gage is executed by the landlord or to terminate the

Lease and its other obligations under the Lease.

Rouse, in fact, mortgaged its leasehold interest,

thereby subjecting the reversionary interest of the

Authority to the lien and encumbrance created by

the mortgage.

23. The Gallery, including the “Public Area,” involves

private and public interests. For example, HUD, which

provided some of the funds for the construction of The

Gallery, granted a waiver of competitive bidding which

' would otherwise have been required for the construction

of The Gallery, absent the intermingling of boih public

and private development activities. HUD recognized that

The Gallery could not have been constructed unless Rouse

was involved because the success of The Galiery was

dependent upon Rouse both from the development stand-

point and the financial standpoint. Because of the com-

plex interconnection between the public and private areas,

the Public Area was not dedicated to the City.

24. The defendants’ own Exhibits D-7 through D-18

make it clear that, despite concerns by HUD, Rouse was

granted a substantial measure of control with regard to

the Public Area serving the retail stores.

(a) Exhibit D-16, a July 9, 1975 letter from

Hillel S. Levinson, Managing Director of the City of

A80_ Phila. Ct. of Common Pleas Findings and Conclusions

Philadelphia to HUD was designed to convey certain

assurances that the City of Philadelphia would fully pro-

tect the public interest in the various public improvements

designed and constructed with Federal Title I monies.

On page two of this letter, Mr. Levinson stated th-

following:

“The pedestrian ways created with Title I monies

will serve the function of creating a humane public

thoroughfare in an enclosed climate-controlled street

separate and apart from the congestion, noise, and

pollution of the City street system. Additionally, the

enclosed public street will allow for ease of access

to the many forms of mass transportation existing or

proposed for the project area;

“Notwithstanding the above tasks, this letter will

provide absolute issurance of the City’s intention to

adequately protect the public interest in all of the

improvements designed and constructed with Federal

Title I funds and that the operation and maintenance

of such facilities will be sustained at a high level of

quality. I stand ready to respond to any additional

questions or comments should either HUD or the

Redevelopment Authority so desire.”

(b) HUD intended Federal monies to be used

for the design, construction and protection of public areas

and public thoroughfares.

(c) Although the public thoroughfares are co-

mingled with non-exclusive private easement rights, the

public thoroughfares are in fact enclosed public walkways.

25. The Gallery is a complex project, the effective

development of which required the intermingling of public

improvement with private development activities. In an

i 4

Phila. Ct. of Common Pleas Findings and Conclusions A81

effort to insure that the public improvements would be

subject to public control, HUD, which provided some of

the financing for the project, wanted certain assurances

that the public’s interest in the Public Area would be

protected and that HUD funds would be used in com-

pliance with HUD’s obligations. For example, HUD

suggested:

(a) That the City continue to maintain and

operate the facility so that such maintenance and opera-

tion would indicate public control as opposed to private

control (see Exhibits D-10 and D-11). In fact, Rouse

maintains and operates The Gallery.

(b) That the Public Area be open to the public

for a period of time greater than the business hours of

the businesses in The Gallery (see Exhibit D-12). How-

ever, the Lease limits access by the public to the “Public

Area” in the interior of the Mall so as to relate those times

to operation of the retail shops.

(c) That the Public Area not be defined in the

Lease as part of the Leased Premises (see Exhibit D-12).

Section 2.1 is at least ambiguous in the definition.

(d) That the reversionary interest of the Au-

thority not be subject to the lien and encumbrance created

by the mortgage obtained by Rouse. It was made subject

to such mortgage.

(e) That the Lease incorporate a definition of

“security purpose” (see Exhibit D-14) which was not done.

26. Rouse provides security and maintenance for The

Gallery, including the Public Area. It is not clear whether

this is Rouse’s primary responsibility or whether this ex-

pense is to be reimbursed. Rouse controls access to The

Gallery at times other than a half-hour before, during and

a half-hour after the businesses are open.

A82 Phila. Ct. of Common Pleas Findings and Conclusions

Pursuant to an interim agreement, Gimbels, Straw-

bridge & Clothier and Rouse pay towards the repair, main-

tenance and insurance for the Public Area. However,

pending an agreement with respect to formation of a

corporation which would provide maintenance, etc., Rouse

has been paying substantially greater amounts for such

maintenance than it was required to pay under either the

Lease or the interim agreement.

27. Exhibit D-16, a July 9, 1975 letter from the City

of Philadelphia to HUD, is not binding on the plaintiffs

because neither the City nor HUD is a party to the Lease.

The statements about the Public Area in The Gallery

differ materially from, and in fact are in conflict with some

of the Lease provisions dealing with the Public Area.

Such letter is not binding on Rouse as to how the Public

Area would be used in the future. Further, and in any

event, the statements with respect to the Public Area are

prospective in nature.

28. On December 3, 1976, Gimbels Realty leased to

Rouse the parcel of land adjacent to and contiguous with

the first level of the premises leased from the Authority,

which contains a space known as Market Fair, for approxi-

mately twenty-five fast food restaurants.

29. On October 12, 1977, Gimbels Realty leased to

Gimbels the Gimbels Store at Tenth and Market Streets

and the Market Fair portion of The Gallery (subject to

the prior lease to Rouse) and the bricked-in colonnade

areas adjacent to the Gimbels store.

30. The three Gimbels colonnades are covered over-

head by an extension of Gimbels’ building to the adjacent

sidewalk. A major portion of all three colonnade areas is

subject to easement rights granted by Gimbels to the

Authority.

Phila. Ct. of Common Pleas Findingsand Conclusions A83

31. Easement three involves most of the colonnade

area on the corner of 10th and Market Streets. The

specific easement is “for a colonnade . . . The easement

is subject to a perpetual easement for public stairs as a

means of ingress and egress to the pedestrian mall.”

32. Easement five granted by Gimbels to the Author-

ity covers the collonnade area on Filbert Street between

9th and 10th Streets. This easement is simply “for a

colonnade.”

33. Easement seven involves most of the colonnade

area at 9th and Market Streets. This easement is “for a

public right of way for a colonnade [and] is subject to a

perpetual easement for public stairs as a means of ingress

and egress to the pedestrian mall.”

34. The only stated purpose of these easements is for

public ingress and egress and for the construction of

colonnades.

35. The portions of the colonnade areas on 10th and

Market and 9th and Market directly adjacent to Gimbels’

two main entrances are not subject to easements of any

kind.

36. In the brickwork on the ground of all three

colonnade areas, Gimbels placed metal plaques which

state “Space WirHin THESE Lines Not DepICATED.”

These plaques are in the brickwork immediately adjacent

to the concrete sidewalk and refer to all of the property

owned by Gimbels.

37. The plaque at the 10th and Market Street colon-

nade is missing. There is an open space marking the site

where the plaque used to be. Such matter has no

significance.

A84 Phila. Ct. of Common Pleas Findings and Conclusions

38. Rouse has subleased approximately ninety-four

stores in the area leased from Gimbels and the Authority

for use as retail business establishments. Executed and

unexecuted examples of those leases were admitted into

evidence as Exhibits P-38 and P-51, respectively.

39. The subleases between Rouse and its tenants pro-

vide that rent paid by the sublessees is dependent upon

the sublessees’ volume of sales.

40. There are presently approximately twelve va-

cancies for retail stores which Rouse has been attempting

to sublet. The Court specifically invited the defendants

to produce black entrepreneurs for any of these stores and

indicated that the Court would expect them to be accepted

as lessees if they were otherwise financially qualified. De-

fendants did not produce any applicants nor did they

suggest any.

41. The newly constructed Gimbels store and The

Gallery opened for business in August of 1977. Gimbels

was the first department store constructed in a major

eastern city in the last thirty-five years. The Gallery is

the first major shopping mall constructed in a major

eastern city.

42. The primary purpose of The Gallery is for the

conduct of retail merchandising businesses. The Gallery

is a retail shopping facility very similar to an enclosed

privately owned retail shopping mall, such as the Cherry

Hill Mall or Oxford Valley Mall.

43, Although The Gallery has two subway entrances

and exits at the end of the 500 foot corridor extending

from the Bull Market, it is not a transportation center.

44, The public areas and the public courtyards were

not intended to be used for the purpose of demonstrating

Phila. Ct. of Common Pleas Findingsand Conclusions A85

or picketing or boycotting or for any purpose inconsistent

with and destructive of the primary retail merchandising

purpose of The Gallery.

45. It is reasonably estimated that The Gallery and

the new Gimbels store at Market East will increase annual

tax revenues to the City of Philadelphia by approximately

at least 2.9 million dollars per year, which represents a

six-fold increase from the amount of taxes previously

generated from the property.

46. The next phase of expanding The Gallery is cur-

rently taking place. The Redevelopment Authority is in

the process of acquiring the properties between Tenth and

Eleventh Streets on Market Street. Approximately

$12,000,000 in HUD urban renewal funds is to be used in

this acquisition.

THE CONDUCT OF A BOYCOTT BY THE DEFENDANTS

47. On August 25, 1978, the defendants and others

acting with them, totalling from 2,000 to 5,000 people,

converged on Gimbels and The Gallery, commencing

at approximately 1:00 P. M. At that time, the demon-

strators massed at various locations in and around

the entrances to Gimbels and The Gallery making egress

and ingress to those entrances difficult and, at times, im-

possible. This demonstration marked the commencement

of defendants’ boycott against The Gallery and Gimbels

(and Strawbridges ).

The August 25, 1978 parade or march took on some

of the characteristics of political protest primarily by ele-

ments of the Philadelphia black community. Various

political figures and demonstrators gave speeches on a

variety of subjects which focused primarily upon alleged

racially discriminatory policies of the Mayor and the City

A86__ Phila. Ct. of Common Pleas Findings and Conclusions

of Philadelphia, including alleged perpetration of brutality

on blacks by members of the Philadelphia Police Depart-

ment. There was some involvement of protest against

alleged police brutality against a group called MOVE.

There was also some involvement of protest against any

governmental interference with the MOVE life style.

The boycotters engaged in general protest, in multiple

ways, against the gamut of black social and economic

grievances. For example, the boycotters constantly

chanted in a forceful, loud, angry and militant manner, a

version of “Won’t take it any more.” The protest was

against all of the burdens and unfairness implicit in the

social and economic condition of blacks as “second-class

citizens.”

48. The defendant, Milton Street, as the last speaker

at the outside demonstration then proceeded to lead part

of the demonstrators into The Gallery.

49. At about 3:00 P. M., on August 25, 1978, approxi-

mately 300 to 500 demonstrators entered The Gallery itself

and moved in close procession throughout The Gallery,

shouting and chanting very loudly. Slogans were directed

at the City Government and its Mayor. Slogans were

directed at supposed absence of black ownership of busi-

nesses in The Gallery. The shouting and chanting was

so loud that normal conversation was impossible in the

vicinity of the demonstration. A boycott of The Gallery

was urged. The demonstrators occupied virtually all of

the walkways, stairs and escalators in The Gallery. The

demonstrators carried various objects, including umbrellas

and signs, which they brandished in vigorous fashion.

The signs contained various messages, including opposition

to a proposed Charter change with regard to Mayoral

succession and the Mayor's racial policies, and support for

Milton Street’s campaign for state office.

Phila. Ct. of Common Pleas Findings and Conclusions A87

At various times during the demonstration, the dem-

onstrators sat down and sprawled in the walkways of The

Gallery and in the Market Fair area to listen to speeches

given over portable amplifying equipment. During such

times, egress and ingress to the shops in The Gallery,

particularly the Market Fair restaurants, was blocked by

the demonstrators, some of whom sat or stood on the din-

ing tables in Market Fair.

There was considerable police presence, which was

fully justified by the seeming possibilities and appearances

that violence and mob action might occur. The conduct

of the demonstrators was strident, angry and militant such

as to convey apprehension that violence and mob action

might occur. There was great hostility in the air and it

was really a general protest about all black grievances in

a white-dominated society. As a result, many businesses

closed and patrons left The Gallery or refused to enter.

50. On Friday, August 25, 1978, after 5:00 P. M., the

plaintiffs sought temporary injunctive relief for the pur-

pose of preventing defendants from engaging in further

acts of mass demonstration or picketing and from entering

into The Gallery and Gimbels. This Court, as Emergency

Judge, tentatively scheduled a hearing for 9:00 P. M., hav-

ing previously received a request from defense counsel

not to enter an ex parte order. The hearing was postponed

at the request of plaintiffs’ counsel to Saturday mornjpg

at 7:00 A. M., on August 26, 1978. At approximately 4:00

P. M., on the 26th, this Court entered an Order which,

inter alia, limited the number of pickets which the defend-

ants could employ to effectuate the boycott and placed

restrictions on the conduct of such pickets. Specifically,

the defendants were enjoined, inter alia, from preventing

free ingress and egress to Gimbels, Strawbridge & Clothier

and The Gallery; from interfering in any manner with the

A88 Phila. Ct. of Common Pleas Findings and Conclusions

businesses in the above locations; from singing, chanting

or shouting in The Gallery; and from maintaining more

than four pickets at any one entrance to Gimbels, Straw-

bridge & Clothier or The Gallery. In addition, the pickets

were required to maintain a certain distance between one

another and to remain in motion. The Order was essen-

tially arrived at by agreement, after commencement of

testimony and after various conferences between counsel

and the Court.

51. On Saturday morning, August 26, 1978, approxi-

mately 70 to 100 demonstrators returned to The Gallery

and Gimbels and engaged in basically the same kind of

conduct as on Friday, August 25, 1978. The demonstra-

tion in The Gallery continued briefly after the Court's

Order was served on the defendants. The defendant Street

made a speech (using a bullhorn) in the Market Fair area

to some 60 or 70 demonstrators. However, such conduct

was consistent with a reasonable effort to organize the

demonstrators and comply with the Court's injunction.

52. Since the events of August 25 and August 26,

1978, demonstrators have engaged in the following con-

duct some of which was improper, illegal and in violation

of this Court’s injunction Orders.

(a) The pickets sporadically blocked ingress and

egress to and from Gimbels and The Gallery and massed

in numbers exceeding those permitted by the temporary

Order of the Court. On occasions the boycotters massed

in and around the entrances to Gimbels and The Gallery

at Tenth (and Ninth) and Market Streets. On occasions,

for sustained periods of time, there have been as many as

fifty or sixty demonstrators. Speeches have been given on

the property owned by Gimbels, near its entrance and

near the entrance to The Gallery at Tenth and Market

Streets.

Phila. Ct. of Common Pleas Findingsand Conclusions A89

(b) Some demonstatns_acosies_peapectv

patrons of Gimbels and The Gallery, sometimes bD ocked

and hampered their freedom of movement; and sometimes

shouted at them. Some demonstrators put their hands

out in gestures purporting to block the movement of

patrons. Some obscenities and racial insults and other

insults were directed at some prospective patrons at or

near the entrances to Gimbels and The Gallery, particu-

larly when they did not abide by the demands of the

demonstrators to boycott.

(c) The demonstrators used the Gimbels’ prop-

erty to demonstrate, to set up a table for the purpose of

registering voters and selling pretzels, although they were

requested and instructed on various occasions by the

Sheriff's personnel, as agents of the Court, to remove the

table from Gimbel’s property. They also set up chairs,

boxes, signs, milk crates and other items on Gimbel’s pri-

vate property. Gimbels never gave any permission for

such conduct. The demonstrators also conducted their

protest and boycott activities on the steps and landing

areas of the exterior courtyard.

(d) The demonstrators played cassette tapes

over electronically amplified equipment on the corner of

Tenth and Market Streets. These tapes contained ob-

scenities. The subject matter of the tapes concerned an

event involving the Philadelphia Police Department and

the MOVE group and the efforts of the Philadelphia

Police Department to arrest members of this group and

remove them from a house which they were occupying.

During that event, a police officer was shot and killed,

following which an incident of alleged police brutality

occurred, involving one of the MOVE members who was

being taken into custody. Rouse, Gimbels and The Gallery

businesses had no involvement whatsoever in the events

involving MOVE and the Philadelphia Police Department.

A90 Phila. Ct. of Common Pleas Findings and Conclusions

(e) Racial slurs were directed at some black

employees of Rouse Company. Some demonstrators called

the supervisor of maintenance a “nigger”

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