Appendix — McMonagle v. Northeast Women's Center, Inc.
Supreme Court brief1989
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term. 1988
MICHAEL MCMONAGLE, et al.
Petitioners
v.
NORTHEAST WOMEN’S CENTER, INC.
Respondent
PETITIONERS APPENDIX
G. Robert Blakey. Esquire
Notre Dame Law School
Notre Dame, Indiana 46656
(219) 239-5717
Christine Smith Torre, Esquire
254 Fairview Road
Woodlyn, Pennsylvania 19094
(215) 833-5624
Counsel of Record
Charles F. Volz, Jr., Esquire
2414 Rhawn Street
_ Philadelphia, Pennsylvania 19152
(215) 624-1028
Joseph P. Stanton, Esquire
405 Old York Road
Jenkintown, Pennsylvania 19046
(215) 886-6780
PACKARD PRESS | LEGAL DIVISION, 1617 JFK BOULEVARD. PHILA. PA 19103 (215) 563-9000
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Appendix
Appendix A
Northeast Women's Center, Inc. v. McMonagle, 868 F.2d
\342 (3d Cir. 1989), reh. den. March 30,
Order of the Third Circuit Court of Appeals denying Petition |
for Rehearing by the Court In Banc dated March 30,
Memorandum and Order of the United States District Court for
the Easter District of Pennsylvania dated March 31, 1988 |
denying Defendants’ Motions for Judgment Notwithstanding |
the Verdict and For a New Trial (Reported at 689 F. Supp.
Bench Opinion dated May 14, 1987......0..cccccewem
Opinion of the United States District Court dated May 8, 1987
(Reported at 570 F. Supp. 1300).......ccc.cccccsssseeeeveeen
Opinion of the United States District Court dated February 12,
© RE EIREE tS SE RE on ON
Pertinent Provisions of the Hobbs Act, 18 U.S.C. §195I......
Pertinent Provisions of Racketeer Influenced and Corrupt
- = ee ee a a ETO —— a — ai i — nll etl Ge a ae , ee ee eT Le |S — -. eer =
a
: |
Organizations Act, 18 U.S.C.§1961 et. seq... UNITED STATES COURT OF APPEALS
; FOR THE THIRD CIRCUIT
Federal Rule of Civil Procedure 51, 28 U.S.C...................
Plaintiffs Amended Complaint........................cccccco--e- NOS. 88-1268. 88-1333. 88-1334.
Petitioners’ Proposed Point for Charge on Trespass............ peat 0s ode ated
Petitioners’ Proposed Point for Charge on Extortion........... NORTHEAST WOMEN’S CENTER. INC..
Exerpts from Notes of Testimony.......................cc-cc000- | Appellant in No. 88-1268
Vv.
A xB _ MICHAEL McMONAGLE. JOSEPH P. WALL. ROLAND
ppendi MARKUM. HOWARD WALTON. HENRY TENAGLIO.
STEPHANIE MORELLO. ANNEMARIE BREEN. ELLEN
JONES. KATHY LONG. SI'"SAN SILCOX. PAUL C.
Address of E. Ti w , | ARMES. WALTER G. GEIS. JOHN J. O'BRIEN.
apet, Commas cp Desthonss Wane’ Contr, JAMES CODICHINI. PATRICIA WALTON. JOHN
Inc., N.O.W. Convention (July 14, 1987) filed as Exhibit "C” BREEN, DENNIS SADLER. JOAN ANDREWS. MIRIAM
DWYER. MARY BYRNE. JOHN MURRAY. LINDA
to Affidavit of Joseph Scheidler in Support of Defendants’ ) CORBETT. THOMAS McILHENNY. PATRICIA
LUDWIG. GERRALD LYNCH. MARGARET CAPONI.
Motion for Entry of Permanent Protective Order, N.O.W. v. DEBORAH BAKER, THOMAS HERILHY. PASQUALE
| VARALLO. JOHN STANTON. ANNE KNORR. JOHN
Scheidler, No. 86-c-7888 (N_D. Ill, First Amended Class CONNOR. ELLIOTT STEVENS. HARRY HAND.
: : LAURIE WIRFELL. HELENA GAYDOS. ROBERT
Acton Compliant filed February 2. 1989) errr rTTTT tT MORAN. EARL ESSEX. PATRICIA McNAMARA.
DONNA ANDRACAVAGE. JUAN GUERRA. and
LINDA HEARN
Michael McMonagle. Dennis Sadler. Mary Byrne.
Deborah Baker. Margaret Caponi. Thomas
Herlihy. Anne Knorr. and Robert Moran.
Appellants in No. 88-1333
John J. O'Brien. Joseph Wall. Roland Markum.
Howard Walton. Patricia Walton. Henry Tenaglio.
u A-l
A-2
Stephanie Morello. Annemarie Breen, Ellen
Jones, Kathy Long, Susan Silcox. Paul Armes
and Walter Gies.
Appellants in No. 88-1334
Patricia McNamara and Thomas Mclilhenny.
Appellants in No. 88-1335
Donna Andracavage, Juan Guerra. and Helena
Gaydos,
Appellants in No. 88-1336
Cn Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 85-4845)
Argued October 20, 1988
Before: SLOVITER and HUTCHINSON,
Circuit Judges. and
GERRY. District Judge*
(Opinion filed March 2. 1989)
Edmond A. Tiryak (Argued)
Philadelphia. PA 19107
Julie Shapiro
Philadelphia, PA 19106
Attorneys for Appellant.
Northeast Women’s Center, Inc.
Christine Smith Torre (Argued)
Philadelphia. PA 19102
° Hon. John F. Gerry. Chief Judge. United States District Court
for the District of New Jersey. sitting by designation.
A-3
Attorney for Appellees/Cross-Appellants.
Michael McMonagle, Dennis Sadler. Mary
Byrne. Deborah Baker. Margaret Caponi.
Thomas Herlihy. Anne Knorr and Robert Moran
Charles F. Volz. Jr. (Argued)
Philadelphia. PA 19149
Attorney for Appellees/Cross-Appellants. John J.
O'Brien, Joseph Wall, Roland Markum. Howard
Walton. Patricia Walton, Henry Tenaglio.
Stephanie Morello. Annemarie Breen. Ellen
Jones, Kathy Long, Susan Silcox, Paul Armes
and Walter Gies
Thomas J. Short (Argued)
Oreland, PA 19075
Attorney for Appellees/Cross-Appellants.
Patricia McNamara and Thomas Mcilhenny
Joseph P. Stanton (Argued)
lovine & Wo-7s, P.C.
Philadelphia. PA 19136
Attorney for Appellees/Cross-Appellants,
Donna Andracavage, Juan Guerra and Helena
Gaydos
Laura E. Little
David S. Thalheimer
Dechert. Price & Rhoads
Philadelphia, PA 19102
Susan Cary Nicholas
Women's Law Project
Philadelphi> PA 19107
Attorneys for Amici Curiae in Support of
Appellant. Northeast Women’s Center. Inc., on
Behalf of Certain Providers of Abortion Services
and Other Organizations Committed to
- A-4
Protecting the Right to Choose Abortion and
Preserving Access to Reproductive Health
Services
LeRoy S. Zimmerman
Attorney General
Gregory R. Neuhauser
Senior Deputy Attorney General
John G. Knorr, Ill
Chief Deputy Attorney General
Chief, Litigation Section
Harrisburg, PA 17120
Attorneys for Amicus Curiae,
Commonwealth of Pennsylvania
J. Michael Considine. Jr.
Joseph D. Shein, P.C.
Philadelphia, PA 19103
Attorney for Amicus Curiae.
The Rutherford Institute of Pennsylvania
OPINION OF THE COURT
SLOVITER. Circuit Judge.
Following a lengthy trial in this action brought by a
women’s health center against a group of anti-abortion
activists. the jury returned a verdict for plaintiff or its
claims under civil RICO and the state torts of trespass
and intentional interference with contract. On appeal.
plaintiff challenges the district court's use of the
unclean hands doctrine to limit the injunctive relief
given and the court's order setting aside the jury's
punitive damage award. Defendants. who have filed
multiple briefs. raise more than twenty issues on their
cross-appeals. including the application of civil RICO.
the availability of the justification defense. and various
claims of prejudical error at trial.
A-5
Although issues on appeal are generally considered
first. we begin with a discussion of the matters raised
on defendants’ cross-appeal because. if defendants’
contentions are correct. we need not reach the
appellant's issues. We will confine our opinion to those
issues raised by defendants that we believe merit
discussion. '
l.
Facts and Procedural History
Plaintiff-appellant. the Northeast Women’s Center,
Inc. (Center). is a Pennsylvania corporation which
provides gynecological services. including pregnancy
testing and abortions. The defendants-appellees are
twenty-six individuals’ (referred to collectively as
Defendants) who are vigorously opposed to abortion
and who have repeatedly protested the Center's
abortion services by activities at the situs of the
Center. Certain Defendants have attended Board of
Directors meetings of the Pro-Life Coalition of
Southeastern Pennsylvania and one defendant.
Michael McMonagle. is its paid Executive Director.
The Center has emphasized throughout this
litigation that it is not challenging Defendants’ free
speech right to make public their opposition to
1. We conclude that the district court committed no error of law
or abuse of discretion with respect to all other issues raised by
defendants. Those issues are directed in the main to the court's
denial of a stay until state criminal charges then pending against
defendants were resolved: its rulings on the relevance of certain
videotape and witness testimony: and its rejection of defendants
argument that it was collaterally estopped from issuing inyunctive
reliet. See also note 4 infra.
2. There were 42 individuals sued. Plaintiff ultimately
dismissed its claims against |! defendants either before or during
trial. The court gave a directed verdict to four defendants. and
dismissed one post-trial.
A-6
abortion. Instead. tnis lawsuit was brought alleging
illegal and tortious activity by Defendants that went
beyond Defendants constitutional rights of speech and
protest.
The Center presented evidence at trial that
established that Defendants unlawfully entered the
Center's facilities on four occasions. On December 8.
1984. approximately fifty protestors. including twelve
Defendants. rushed into the Center's premises. which
at that time were located at 9600 Roosevelt Boulevard
in Northeast Philadelphia. and knocked down Center
employees who attempted to prevent the mass entry
into the building. Once inside. Defendants and others
blocked access to rooms and strewed medical supplies
on the floor.
Ardis Ryder. then acting administrator of the
Center. testified that she decided on the basis of this
incident to hire security guards for the first time in the
Center's history to protect the safety of its employees
and patients. One employee testified that she
sustained injuries during this incident while
attempting to prevent Defendants and others from
forcing their way into a patient treatment room. She
testified that as a result of such harassment she
resigned from her position at the Center. and did not
resume employment at the Center until after it
installed a sophisticated security system. Twelve
Defendants were among the thirty persons arrested
and charged with trespass after this incident. App. at
633.
On August 10. 1985, twelve Defendants pushed
into the Center's premises. An employee who was
injured as a result of Defendants activities lost work
time. Another employee testified that after members of
the group locked themselves in an operating room. she
observed a Defendant leave the operating room with an
object concealed under his coat. When the employee
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entered the room she discovered that machinery had
been damaged and disassembled. Twelve Defendants
were arrested and subsequently convicted of defiant
trespass for the August 1985 incident. App. at 634: see
Commonwealth v. Markum. 373 Pa. Super. 341. 541
A.2d 347 (1988) (affirming conviction on appeal).
On October 19. 1985. there was another attempt
by anti-abortion activists tO enter the Center. A
number of persons were arrested. including
twenty-four Defendants. App. at 635. Two persons did
manage to rush through the doors and enter. knocking
down a Center employee. Three Defendants were
subsequently convicted of defiant trespass. App. at
635-36
The fourth trespass that was the subject of the
federal suit took olace on May 23, 1986. The jury was
shown a videotape uf the incident. which showed
protesters sitting down on the floor of a waiting room
inside the clinic. standing in front of patients awaiting
services and castigating them. and ignoring repeated
requests that they cease trespassing and leave the
building. Exhibits P-76. P-77. One Defendant stated.
“We're going to shut this place down.” The police
eventually removed the trespassers. There was
testimony that other Defendants who were outside the
premises blocked the doors to the Center and the
in which it was located. Twenty-six persons.
including sixteen Defendants. were arrested and
fifteen Defendants were subsequently convicted for
criminal conspiracy. disorderly conduct. andor defiant
trespass as a result of this incident. App. at 637-38.
Witnesses at the trial in this case testified that on
these and other occasions they observed Defendants
photographing patients. chanting through bullhorns.
blocking building entrances. and surrounding and
pounding on the windows of employees cars. In fact an
assistant district attorney who witnessed a
A-8
demonstration testified that the demonstrators’
activity rose to a “frenzy” and that he delayed leaving
the Center out of fear for his physical safety. App. at
791-93. Videotape evidence revealed demonstrators
pushing. shoving and tugging on patients as they
attempted to approach the Center. knocking over and
crossing beyond police barricades and blocking the
ingress of cars. A protester is recorded stating. “! bet
you ten to one this place doesn't last six months.”
Another added. “This place is going to be shut down.”
Exhibits P-6. P-76,. P-77. A doctor employed by thc
Center testified that the sound of chanting. amplified
by bullhorns. was audible in the Center's operating
room. Another doctor testified that this noise would
put patients “under considerably greater stress.”
especially when go‘ng under or coming out of general
anesthesia. App. at 433.
Three employees testified that they were repeatedly
subjected to picketing at their homes. Two of these
employees stated that they resigned from their
positions at the Center because of Defendants actions
at their homes and the Center.
In July 19836. the Center lost its lease and moved to
a new location. Both the director of the Center and
defendant McMonagle. a leader of the activists.
attributed the Center's loss of its lease to Defendants
activities at the Center.’ The Center installed a new
3. A fundraising letter signed by McMonagle. which was
admitted into evidence stated
Our organization is encouraging and organizing
increasingly effective protests at these abortion
chambers. In March. 1985 we received the welcome
news that the Northeast Women’s Center abortion
chamber would not have its lease renewed. (Tihis
abortion chamber lost its lease because of the persisient
pravers and protests of Pro Life citizens.
App at 480-82
eemerencieed pment ienneeens wr =" — - — = = i! a
A-9
sophisticated security system at its new location.* In
1986. protesters made a fifth attempt to enter
the Center. which the district court found was
“thwarted only by the installation of sophisticated
security equipment.” at 260.
yao 1985. ao canter tad ocnd eat On
United States District Court for the Eastern District of
Pennsylvania. alleging that Defendants had agreed
among themselves and others to disrupt the Center's
business and injure its property by. inter alia.
harassing the Center's clients and employees.
unlawfully entering on its property. and destroying and
medical equipment. The Center sought
damages and injunctive relief under the Sherman
Antitrust Act. 15 U.S.C. $88 1. 15. the Racketeer
Influenced and Corrupt Organizations Act (RICO). 18
U.S.C. § 1961 et seq.. and the common law torts of
trespass and intentional interference with contractual
relations. The district court denied Defendants motion
to dismiss the complaint. Northeast Women's Center.
Inc. v. McMonagle. 624 F. Supp. 736 (E.D. Pa. 1985).
Thereafter. the Center sought preliminary
injunctive relief. contending that Defendants had
tntenaties Ghetr hasnssment <5 pettente ord ata, Sins
were acting to prevent the Center moving
Sony ecentten, end that Defendants tad Geely
entered its premises twice since the complaint was
filed. The district court's denial of a preliminary
injunction was vacated by this court because the
district court had not made the factual findings
required under Fed. R. Civ. P. 52ia). Northeast
4 Defendants challenge the measure of (respass damages.
asserting that the Center cannot recover for its increased security
costs The Center. with appropriate citation to the record. notes
that there was no objection to the district court's charge on this
point Defendants do not counter with any reference to ‘he record
showing that they properly preserved the issue Accordingly. it ts
waned
A-10
Women's Center, Inc. v. McMonagle. 813 F.2d 53 (3d
Cir. 1987). We suggested “in the strongest possible
terms” that the parties agree to convert the action into
a final injunction hearing. id. at 54-55. which they did.
At the close of a three-week trial. the district court
directed a verdict in favor of Defendants on the
Sherman Act charge. but sent to the jury the
remaining RICO. trespass. and intentional
interference with contract cla‘ms. In response to a
detailed series of interrogatories prepared by the
district court. the jury found twenty-seven Defendants
liable under RICO and assessed $887 in damages on
this claim. reflecting the cost of repairing certain
medical equipment. which the district court trebied
pursuant to 18 U.S.C. § 1964(c) (1982). The jury found
that three Defendants had interfered with the Center's
contracts with its employees but found no proximate
loss to have resulted from this interference and
awarded no damages on this claim. Finally. it found
twenty-four Defendants liable for trespass. and
assessed $42.087.95 in compensatory damages and
$48.000 in punitive damages (82.000 per defendant).
The district court denied Defendants’ motion for a
new trial and judgment notwithstanding verdict except
that it granted j.n.o.v. on the punitive damages award
and set aside the jury's award of punitive damages an
the ground that the Center had substantially
prejudiced Defendants by failing to request punitive
damages in 4 timely and consistent manner and by
successfully preclucing Defendant .rom presenting
evidence of motive that would have been relevant on
the punitive damages issue.
The court declined to give the Center any
injunctive relief on its successful claims on the RICO
and interference with contract counts on the ground
that such relief was barred by the doctrine of unclean
hands. based on evidence that a physician practicing
eT
A-1l
at the Center had failed to comply with a fetal tissue
inspection provision of the Pennsylvania Abortion
Control Act, 18 Pa. Cons. Stat. Ann. § 3214(c) (Purdon
1983).
The court granted injunctive relief on the Center's
trespass claim. however. and enjoined Defendants
from entering the Center's premises. entering the
parking lot adjacent to the Center for the purpose of
protesting there. blocking or attempting to block the
entrances to the Center or parking lot. and
“{tInhibiting or impeding or attempting to inhibit or
impede the free and unmolested ingress and egress” to
the Center or parking lot. App. at 287-88. The court
specifically stated. that “|njo portion of this Judgment
shall be construed by any law enforcement officer so as
to restrain the peaceful protesting. picketing.
demonstrating. chanting. or leafletting by the
defendants on the sidewalks abutting (the adjacent|
road. EXC .°T as provided (under the rest of the
order).” App. at 288. |
As noted above. each side appeals. We turn first to
the Defendants challenge to the jury's verdict under
civil RICO. the only remaining federal claim.
Il.
Issues on Cross-Appeal
A. Application of Civil RICO
Plaintiff pied. and the jury's verdict shows that it
found. a RICO violation based on a pattern of
extortionate acts as defined under the Hobbs Act. The
civil provisions of RICO allow “\ajny person injured in
his business or property” through a violation of the
statute to file suit in federal district court. 18 U.S.C.
§ 1964(c) (1982). A defendant may be held liuble under
RICO for engaging through an enterprise in “a pattern
A-12
racketeering activity being manifested by. inter alia.
any act. robbery and extortion. which is
indictable under 18 U.S.C. § 1951. also known as the
Hobbs Act. 18 U.S.C. § 1961(1)(B). Defendants’
In Sedima. S.P.R.L. v. Imrex. Co.. 473 U.S. 479.
499-500 (1985). the Supreme Court acknowledged that
civil RICO was being applied in contexts far beyond
those originally intended. but explained that “this
defect -- if defect it is -- is inherent in the statute as
written. and 5 correction must lie with Congress. It is
not for the judiciary to eliminate the private action in
situations where Congress has provided it .. .” id. at
499-500. In light of the Court's statements. we are not
free to read additional limits into RICO once a plaintiff
has made out all of the elements required for a finding
of liability under the statute's explicit provisions. See
Gilbert v. Prudential-Bache Sec.. 769 F.2d 940. 942
(3d Cir. 1985) (“The Court (in Sedima| refused to read
into civil RICO any requirement. unexpressed by
Congress. that the statute be confined to situations
implicating organized crime ._ . .”).
Defendants argue that because their actions were
motivated by their political beliefs. civil RICO is
inapplicable. Defendants’ description of their conduct
as “civil disobediance” does not thereby immunize it
5 The district court charged the jury that in order to prove an
enterprise existed |aill the plaintiff has to prove is the existence of
an ongoing organization. either formal or informal in nature in
which the various associates functioned as a continuing unit. The
enterprise must have an existence separate and apart from the
pattern of activity in which it engages. App at 1006 Defendanss
did not object to this portion of the charge
A-13
from statutes proscribing the very acts the jury found
In upholding a conviction under RICO over
defendants objection to the government's contention
that the robberies were committed to finance
defendants religious Black Muslim organization. this
court stated. “The First Amendment. which
guarantees individuals freedom of conscience and
prohibits governmental interference with religious
beliefs. does not shield from government scrutiny
practices which impertl public safety. peace or order.
United States v. Dickens, 695 F.2d 765. 772 (3d Cir.
1982). cert. denied. 460 U.S. 1092 (1983) (citations
omitted). We would have grave concerns were these or
any other defendants held liable under civil RICO for
engaging in the expression of dissenting political
opinions in a manner protected under the First
Amendment. The district court's careful instructions
to the jury with respect to the scope of the protections
of the First Amendment precluded such a result here.
The district court told the jury. “The First
Amendment of the United States Constitution
guarantees the defendants a right to express their
views. The defendants have a constitutional right to
attempt to persuade the Northeast Women's Center to
stop performing abortions. They have a constitutional
right to attempt to persuade the Center's employees
stop working there and they have a constitutional right
to attempt to persuade the Center's patients Set
have abortions there. . . . The mere fact. also. that
defendants or some of their protests may be coercive or
offensive. does not ——— _ First Amendment
a est. atl b
a os h.= also told the jury. correctly.
that. “the First Amendment does not offer a sanctuary
for violators. The same constitution that protects the
defendants’ right to free speech. also protects the
SS ———
Act does not extortion of intangible rights.
will keep these issues analytically distinct. The RICO
requirement of injury is met by evidence of injury to
plaintiff's business or property. The Center
claimed
that it suffered tangible injury to its medical
expressly that it is not necessary that a plaintiff show
that it suffered “a competitive injury.” id. at 497 n.15.
The damage to the Center's property was sufficient to
meet RICO's injury requirement.* See Maliey-Duff &
Assocs. v. Crown Life Ins. Co.. 792 F.2d 341. 355 (3d
Cir. 1986). affd on other grounds. 483 U.S. 143 (1987)
6 There was ample evidence that the Profit making
Center
INStItUlION advertised in interstate commerce = Grew patients
States. (hereby satisfy
from other Ing the RICO imrerstate commerce
a ara Tr
A-15 |
(delay. added expenses and inconvenience caused by
defendants’ interference with a lawsuit sufficient to
meet injury requirement under RICO): Zap v. Frankel.
770 F.2d 24. 26 (3d Cir. 1985) (district court's holding
that plaintiff had to show injury “‘of the type the RICO
statute was intended to prevent’ reversed: RICO
plaintiff need allege “no independent ‘racketeering
injury’ apart from the injury caused by the predicate
acts’).
Defendants also challenge the application of the
Hobbs Act. which provided the predicate offenses
under RICO. Defendants argue that the court's charge
failed to deal “with the economic motivation behind the
crime of extortion.” which they claim is a necessary
element under the Hobbs Act. Brief of Cross-
O'Brien et al. at 26 (hereafter “O'Brien Brief™).’
Defendants point to no charge proffered by them on
economic purpose. In any event. Defendants’
contention ignores well-established precedent holding
that lack of economic motive does not constitute a
defense to Hobbs Act crimes. In United States v.
Cerilli, 603 F.2d 415. 420 (3d Cir. 1979), cert. denied.
444 U.S. 1043 (1980). we upheld a Hobbs Act
conviction for solicitation of political contributions.
stating. “ijt is well-established that a person may
violate the Hobbs Act without himself receiving the
benefits of his coercive actions.” See United States v.
Starks. 515 F.2d 112. 124 (3d Cir. 1975) (“there is no
7. The Center argues that the evidence contradicts Defendants
claim that their activity was completely devoid of economic
purpose. pointing to McMonagle's testimony that he raised
$120.000 a vear for the Pro-Life Coalition of Southeastern
Pennsvivania which coordinated the protests at the Center and that
he received a salary of 832.000 a year as the director of this
organization. App at 880-81. Because we conclude (hat economic
motivation is unnecessary. we do not decide whether this evidence
would be sufficient to show economic motivation.
i mal — = ow 2p eee — (cc a
“a i i i el i ae, i ls a ee ee = —° . — a ee ee . -__-.
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a)
A-16
exception to the Hobbs Act” permitting extortion “for a
religious purpose”): see also United States v.
Anderson. 716 F.2d 446 (7th Cir. 1983) (
Hobbs Act conviction of anti-abortion activists for
threatening doctor to induce him to cease performing
abortions).
Defendants contend. however. that “economic
injury” is an essential element of extortion when it is
used as a RICO predicate offense. O'Brien Brief at 29.
They argue that the court's charge improperly relied on
extortion of intangible “rights”. Id. at 28.
The “right” on which the Center's case was
predicated was the right to continue to operate its
business. The Center's extortion claim was that
Defendants used force. threats of force. fear and
violence in their efforts to force the Center out of
business. The court told the jury that. “{slpecifically.
defendants are charged with attempting and
conspiring to extort from the Center its property
interest in continuing to provide abortion services|: |
from its employees. their property interest in
continuing their employment with the Center{:| and
from patients. their property interest in entering into a
contractual relationship with the Center.” App. at
1009."
Rights involving the conduct of business are
property rights. As we pointed out in United States v.
Local 560, 780 F.2d 267. 281 (3d Cir. 1985). cert.
denied. 476 U.S. 1140 (1986).
other circuits which have considered this question
are unanimous in extending the Hobbs Act to
8. We reject Defendants argument that the district court
improperly allowed extortion of employees to be asserted as
predicate offenses. The evidence establishes that the harassment of
Defendants employees and patients was directly related to
Defendants goal to shut down the Center
A-17
tect ‘in ible. as well as tangible. property.
aes seamed Games v. Zemek, 634 F.2d 1159 (9th
Cir. 1980). cert. denied. 450 U.S. 916, 101 S. Ct.
1359. 67 L.Ed.2d 341 (1981) (right to solicit
business accounts): United States v. Santoni. 585
F.2d 667 (4th Cir. 1978). cert. denied. 440 U.S.
910, 99 S. Ct. 1221. 59 L.Ed.2d 459 (1979) (right
to make business decisions free from outside
préssure wrongfully imposed): United States v.
Nadaline. 471 F.2d 340 (5th Cir.). cert. denied.
411 U.S. 951. 93 S. Ct. 1924. 36 L.Ed.2d 414
(1973) (right to solicit business accounts): United
States v. Tropiano. 418 F.2d 1069 (2d Cir. 1969).
cert. denied. 397 U.S. 1021. 90 S. Ct. 1262, 25
L.Ed.2d 530 (1970) (right to solicit business
accounts).
It is. of course, no defense to extortion that
Defendants did not succeed in their ultimate goal.
although. as McMonagle’s own letter admitted.
Defendants’ activities did contribute to the Center's
loss of its lease at the Roosevelt Boulevard location.
App. at 480-83: see note 3 supra. Attempted extortion
and conspiracy to commit extortion are crimes under
the Hobbs Act. see 18 U.S.C. § 1951 (a). and “any act
which is indictable under (the Hobbs Act]” is a
predicate offense under RICO. 18 U.S.C. § 1961(1)B).
We thus reject Defendants’ challenges dealing with the
RICO verdict.
B. The Justification Defense
Defendants argue that the district court erred in
precluding the admission of evidence relating to their
claims of justification and in failing to charge the jury
regarding such a defense. The district court relied on
our opinion in United States v. Malinowskt, 472 F.2d
850 (3d Cir.). cert. denied. 411 U.S. 970 (1973), in
A-18
holding that the justification defense was unavailable
to Defendants. In Malinowski. a defendant had falsely
claimed excessive exemptions on a form submitted to
the Internal Revenue Service to dramatize his protest
to the Vietnam War. We rejected the defense of good
faith motive. holding that the defendant's motives
could not constitute an acceptable legal defense. Id. at
856. We stated that. “|sjuch a position represents a
feeble effort to emasculate basic principles of civil
disobedience. and. simply stated. is invalid. . . . [Tjhe
actor wants the best of both worlds: to disobey. yet to
be absolved of punishmert for disobedience.” /d. at
857.
Similarly. in United States v. Romano. 849 F.2d
812. 816 n.7 (3d Cir. 1988). we recently reaffirmed the
irrelevance of any defense based on an intent to save
lives in a case charging a defendant. who was
associated with the Epiphany Plowshares. with
damaging govermment property. conspiring to do so.
and entering a military installation for an unlawful
purpose. We stated that. “|the defendant's] end motive
of protecting innocent lives could not adequately
negate or explain her specific intent to achieve this end
by breaking into a military installation and disabling
military ai-craft.” Id. (citations omitted). Thus. it is
clear that Defendants’ claim of justification does not
present a viable defense to the RICO charge.
Defendants argue. however. that justification is a
defense under Pennsylvania law. citing to the
Pennsylvania Crimes Code; 18 Pa. Cons. Stat. Ann.
§ 503(a) (Purdon 1983)’. and its civil analogue. See
9 Section 503 of the Crimes Code provides
3 503. Justification generally
(a) General rule. --Conduct which the actor believes
to be necessary to avoid a harm or evil to himself or to
another is justifiable if
a ee ee eT ln | ae
A-19
Torts. 88 76, 196 (1965). In
ee en . 508 Pa. 372, 498 A.2d
806 (1985). the Pennsylvania Supreme Court held that
under section 503 of the Pennsylvania Crimes Code.
the availability of the justification defense rests on a
defendant's ability to show: “(1) that the actor was
faced with clear and imminent harm... ; (2) that the
actor could reasonably expect that (his/her| actions
would be effective in avoiding this greater harm; (3)
that there [was] no legal alternative (that would have
been] effective in abating the harm: and (4) that the
ture has not acted to preclude the defense by a
clear and deliberate choicé regarding the values at
issue.” 508 Pa. at 378. 498 A.2d at 809. The
defendants in Capitolo-had been convicted for criminal
trespass based on their sit-in demonstration at a
nuclear power plant which caused no injuries or
property damage. The Supreme Court of Pennsylvania,
applying the foregoing analysis. held that “|t/he trial
court was correct in ruling that. as a matter of law,
justification was not an available defense.” 508 Pa. at
379, 498 A.2d at 809.
(1) the harm or evil sought to be avoided by such
conduct is greater than that sought to be prevented by
the law defining the offense charged:
(2) neither this title nor other law defining the
offense provides exceptions or defenses dealing with the
specific situation involved: and
(3) a legislative purpose to exclude the justification
claimed does not otherwise plainly appear.
(b) Choice of evils.--When the actor was reckless or
iring a
igent in bringing about the situation requ
anctnnaranert appraising the necessity for
his conduct. the justification afforded by this section is
unavailable in a prosecution for any offense for which
recklessness or negligence. as the case may be. suffices
to establish culpability.
So
A-20
In a subsequent case. the Court applied the
Capitolo factors to the justification defense codified
under another section of the Crimes Code.
Commonwealth v. Berrigan. 509 Pa. 118. 124. 501
A.2d 226. 230 (1985). On the basis of those factors. the
Court rejected the contention of defendants convicted
of burglary. criminal mischief. and criminal conspiracy
in connection with a protest at a nuclear arms
manufacturing facility that their actions were
permitted to avert a nuclear holocaust.
The test in Capitolo was recently applied by the
Superior Court of Pennsylvania in Commonwealth v.
Wall, 372 Pa. Super. 534. 539 A.2d 1325 (1988). to
defendants convicted of criminal trespass and defiant
trespass during an abortion protest. In that
unanimous opinion. the court upheld the trial court's
order precluding the defendant from raising the
justification defense. The Wall court found that the
justification defense was not available because the
defendant could not establish “any” of the four
requirements set forth in Capitolo. 372 Pa. Super. at
543. 539 A.2d at 1329 (emphasis in original). Wail
could not demonstrate that he was faced with a clear
and readily apparent harm. because the law does not
recognize abortions as a harm. 372 Pa. Super. at
540-42. 539 A.2d at 1328-29: Wall could not
reasonably have expected that the demonstration
would be effective because his disruption of the clinic
was only temporary. 372 Pa. Super. at 542. 539 A.2d at
1329: he had available legal alternatives. such as
lobbying and providing information to the clinic's
clients while standing on public property. id.: and
Pennsylvania legislation. while it regulated abortion.
did not prohibit a woman from obtaining an abortion.
372 Pa. Super. at 542-43. 539 A.2d at 1329: see also
Commonwealth v. Markum. 373 Pa. Super. 341. 541
A.2d 347 (1988) (announcing judgment of the court
A-21
that defense not available against criminal
ee ee from August 1985 invasion of
the Center).
The same analysis is applicable here. We
emphasize in particular the numerous legal
alternatives that Defendants had available to pursue
their goal of persuading women not to have abortions.
For example. they could continue to march. go
door-to-door to proselytize their views. distribute
literature. personally or through the mails. and contact
residents by telephone. short of harassment. See
Frisby v. Schultz. 108 S. Ct. 2495. 2501-02 (1988).
In one of their reply briefs. Defendants argue that
Wall should be distinguished because the court there
did not focus on Defendants’ argument made here that
abortions conducted in the second. as opposed to the
first. trimester of pregnancy. together with the harm
suffered by women undergoing abortions. amount to a
harm of sufficient magnitude and imminence that the
justification defense should be allowed. Because
Defendants must meet each Capitolo factor. however.
see Capitolo. 508 Pa. at 378-79. 498 A.2d at 809:
Commonwealth v. Berrigan. 509 Pa. 118. 124. 501
A.2d 226. 229 (1985). we need not reach their
argument concerning the character of the harm
involved. We find no error in the district courts
rejection of Defendants justification defense.
C. The Conduct of the Trial
Defendants rather vehemently complain about the
conduct of the trial. They point to a number of rulings
by the district court which they argue constitute
reversible error either as considered severally or as
added together to create an unfairly prejudicial
atmosphere at trial. In particular. they challenge the
court’s grant of the Centers motion in lumine to
exclude evidence of Defendants motives and its refusal
to grant a mistrial after the Center's counsel made
A-22
several allegedly “prejudicial and inflammatory”
The jury was told in the Center's opening remarks
tnat Defendants were opposed to abortion #3 a matter
principle. The court. in its jury charge. told the jury
that “lwie know why these people are up there and that
rete then), Sisngree with the position of the
laintiff it hould be aborti é 1”
App. at 946.
However. the district court's order precluded
Defendants from putting on further evidence of their
motives without making a prior showing of relevance "*
Defendants acknowledged at oral argument that they
never made an offer of proof of the relevance of the
evidence of motive which they now argue they desired
to present. Having failed to make such an offer of proof.
they have waived this issue on appeal. See Fed. R.
Se Ee NGS. Gs Gv ena, Gb Gate Gat
4 in limine order in United States
Romano. 849 F.2d at 815-16. r 4
district court's orders denying Defendan ,
motions for a mistrial based on the allegedly
inflammatory remarks made by the Cer..er's counsel
during the course of the trial are reviewed under an
10. The district court s order was. in relevant part. as follows.
The plaintiffs motion to preciude the introduction of
evidence concerning justification and motive is
GRANTED. Defense counsel may. in the opening
Statement to the jury. explain the circumstances
surrounding the defendants presence in the plaintiffs
property. Counsel may not extract testimony or
introduce evidence of the defendants betiefs on abortion
absent a prior demonstration of the relevance of the
proposed evidence Counsel may not argue or imply to
the jury. in ether an opening statement or Closing
argument that the defendani s betiefs afford them any
type of legal justification defense
App. at 124
i
3!
i
eee
ul
7
geek
Ht
vit
ni
The first of the two issue. raised by the Center on
its appeal challenges the limited injunctive relief
awarded by the district court. The district court ruled
that the Center was precluded from obtaining
injunctive relief on any charge other than trespass
because of the unclean hands doctrine. Although the
district court enjoined Defendants from trespassing on
the Center's property or the private parking lot next to
the Center. and barred Defendants from obstructing
the entrances to those premises. it gave no injunctive
relief with respect to the acts of harassment and
intimidation of the Center's employees and patients
which provided the evidentiary basis for the jurys
liability verdicts on the RICO and interference with
contract claims.
In its discussion of the need for injunctive relief.
the district court stated. “The spirited nature of
\Defendants | views permits mo remorse or regret for
their actions. No evidence produced at trial suggests
that their unlawful modes of protest will cease. In fact.
i
:
;
:
engaged in “inequitable conduct (which
injunctive relief on its RICO and ies enn
contract Causes of action.” App. at 269-70.
In the course of making this ruling. the district
court felt compelled to consider and rule upon the
it. 18 Pa. Cons. Stat. Ann. § 321 4c) provides:
when there is an abortion performed after the first
rimester of pregnancy where the physician has certified
the unborn child is not viable. the dead unborn child
and all tissue removed at the time of the abortion shail be
submitted for tissue analysis to a board eligible or
certified pathologist. If the report reveals evidence of
viability or live birth. the pathologist shall report such
findings to the department within 15 days and a copy of
the report shail also be sent to the physician
the abortion. Intentional knowing. reckless or negligent
fatlure of the physician to submit such an unborn child
or such (issue remains to such a pathologist for such a
purpose of intentional knowing or reckless failure of
the pathologist to report any evidence of live birth or
viability to the department in the manner and within the
lime prescribed is 4 misdemeanor of the third degree
A-25
constitutionality of section 3214(c). although the
is mot operative. See note 12 infra. The parties
with the constitutionality of section
defendant.” Gaudiosi v. Metion, 269 F.2d 873, 882 (3d
Cir.). cert. denied. 361 U.S. 902 (1959). Rather. in
abettor of iniquity.” Monsanto Co. v. Rohm & Haas
Co.. 456 F.2d 592. 598 (3d Cir. ). cert. denied, 407 U.S.
934 (1972) (citations omitted). Thus. t..e doctrine is to
be applied “only where some unconscionable act of one
for relief has immediate and necessary relation
to the equity that he seeks in respect of the matter in
litigation.” Keystone Driller Co. v. General Excavator
Co.. 290 U.S. 240, 245-46 (1933).
The same principle applies under Pennsylvania
law. See In Re Estate of Pedrick, 505 Pa. 530, 544, 482
A.2d 215, 222 (1984). Pennsylvania's Supreme Court
has stated that the unclean hands doctrine is not to be
applied “to collateral matters not directly affecting the
equitable relations which exist between the parties.”
Shapiro v. Shapiro, 415 Pa. 503, 507, 204 A.2d 266,
a i
A-26
Even if there had been a violation of the
Of Pecad crant of section 321 4ic) relating to examination
of tissue by one of the physicians practicing at the
Center. an issue we do not reach." such a violation is
at most collateral to the matter involved in this lawsuit.
Section 3214(c) is a technical provision aimed at
policing compliance with the now inoperative
nonviability certification requirement of section
3211.” It has no connection at all to the Defendants’
actions which the jury found violated both federal and
12. Because. as we hold in the text. the district court should not
have reached that issue. we venture no opinion on the district
courts conclusions that the Center fatied to comply with section
321 4ic) and that section 321 4c) is constitutional and enforceabie
under (he statute in its present form.
13 In American College of Obstetricians and Gynecologists \
Thornburgh. 737 F 2d 283 (3d Cir, 1984). afd. 476 US 747
(1986). we held unconstitutional section 32) lia). the provision
(hat required physicians to certify the nonviability of fetuses
aborted after the first trunester of pregnancy We express noted
(nat the issue of the constitutionality of the related provision
section 321 4ic) had been withdrawn from our consideration 737
F 2d at 302 Thus. the continued validity of section 321 4:c)
fetus and no such certification can now be required. section
321 4c! can have no effect. The district court did not address this
argument nor do we
But see Religious Technology Center v. Wollersheim.
796 F.2d 1076. 1077 (9th Cir. 1986). cert. denied. |
$.Ct. 1336 (1987) (injunctive relief not available). In Re
Fredeman Litigation. 843 F.2d 821. 828-30 (Sth Cir.
1988) (suggesting approval of Wollersheim). oa
argument the Center acknowledged that all t
relief it seeks could be granted under its
state law claim of interference with contractual
relations. and therefore we will not reach to decide the
RICO issue.
We see no impediment (o basing injunctive relief
on the interference with contractual relations verdict.
. The Center pleaded and proved that Defendants
z
f
i
on
verdict. Of
course.
this claim or that not all the Center's emploress nace
been sufficiently frightened so as to terminate their
contractual relations with the Center does not prectude
injunctive retief designed to prevent future harm.
Defendants argue that the district court is limited
granting injunctive relief under the interference
|
;
A.2d 1175. 1178 (1978) (reinse
3
Rs
a
if
38
i4 Although Defendants argue that ununctive rete cannot be
ordered when there has been no award of damages wt nore that wm
Adier Bansh ony inpunctwe relief Dut not damages were ve arded
See 482 Pa af 419 9G A Dd we 1176 |
A-29
Center v. May. 366 Pa. Super. 265. 267. 531 A.2d 2. 4
(1987). appeal dismissed, 550 A.2d 196 (1988); see
also Neshaminy Water Resources Auth. v. Del-Aware
Unlimited. Inc.. 332 Pa. Super. 461. 471 n.2. 481 A.2d
879. 883-84 & n.2 (1984) (language binding all persons
acting “in concert” with named defendants not
! broad).
Fed. R. Civ. P. 65(d) expressly provides an
or participation
actual notice of the order. In tight of the jury's finding
that the three Defendants against whom the verdict
enter its proposed injunction or at least we should
direct the district court to do so in clear and
terms. While such a course might be
expeditious. we decline to fix the terms of the
injunction. "* The district court is in a better position.
in compliance with the requirements of Rule 65(d). to
set the terms of an appropriate injunction based on the
evidence in the record.
Since we have found unsupportable as a matter of
law the only basis on which the district court declined
to issue a more extensive injunction. we must remand
nae ched additional light on the issue of residential picketing in its
opinion in Frisby v. Shultz. 108 S. Ct. 2495 (1988),
this matter so that it can recon
sider the Center
arguments that the injunction entered is inadequate.
B. Punitive Damages
The second issue raised by the
Center
fae district court's order granting Defendants’ motion
a j.n.0.v. setting aside the jury's award of $2.000
punitive damages against each
—— ng le = cet
a that it entered the j.n.o.v. because it had
~~ submitting the issue of punitive damages in
charge to the jury. In this context. our standard of
review orp eof ding aang See United States v.
rege mn Moore, Inc.. 750 F.2d 1183. 1195 (3d
rey cert. denied. 470 U.S. 1029 (1985) (points
Tne, Teviewed for shuse f discretion).
district court gave a number of reasons for
case. which did not include punitive :
Center's untimely request for a re pay, la
damages: and the court's preclusion of Defendants
Defendants were precluded from refe
referring to
on their motives unless they made a aeely alee
relevance. While it is true that Defendants did not
A-31
Defendants were not on notice during the trial that the
award of punitive damages was still an issue. A
plaintiff may be barred from receiving relief it requests
if its conduct “improperly and substantially prejudiced
the other party.” Albemarle Paper Co. v. Moodu, 422
U.S. 405. 424 (1975). As in Albemarle. the Center's
“not merely tardy. but also inconsistent” conduct with
respect to its claim for punitive damages. id..
prejudiced Defendants’ ability to mount a case against
imposition of such damages. It follows that the district
court's ruling that the Center should not have been
granted a jury charge on punitive damages was well
within. the scope of its discretion. Thus. we will not
disturb the district court's award of a j.n.o.v. on this
issue.
IV.
Conclusion
In summary. we have concluded on the
cross-appeal that civil RICO could appropriately be
applied to Defendants’ intimidation and harassment of
the Center resulting in the destruction of its property.
that the distric: court did not err in rejecting the
justification defense proffered by Defendants and in
precluding evidence of Defendants motives unless they
showed the specific relevance of such evidence, and
that there is no basis in the district court's conduct or
rulings to order a new trial. On the Center's appeal, we
have upheld the district court's order setting aside the
punitive damages. Finally, we have held that the court
erred in applying the unclean hands doctrine on a
collateral matter to preclude injunctive relief.
For the reasons expressed herein. we will remand
for further consideration of the injunctive relief to be
A-32
granted in light of our opinion. We will affirm the
district court's judgment in all other respects.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circutt
ee ee re ae
Nos. 88-1333,1334,1335,1336
Northeast Women's Center, Inc.,
Plainuff/Cross- Appellee
Vv.
Michael McMonagle et al.
Defendants/Cross- Appellants
SUR PETITION FOR REHEARING
Present: GIBBONS, Chief Judge, SEITZ,
HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON,
MANSMANN, GREENBERG, HUTCHINSON, COWEN,
and NYGAARD, Circuit Judges, and GERRY, District
Judge*
The petiton for rehearing filed by
Michael McMonagle et al., defendants/cross- appellants,
in the above-entitled case having been submitted to the judges
who participated in the decision of this court and to all the
other available circuit judges of the circuit in regular active
— |
_— ee
J
A-34
service, and no judge who concurred in the decision having
by the court in banc, the p~ition for rehearing is denied.
By the Court,
/s/ Dolores K. Sleviter
Circuit Judge
Dated: March 30, 1989
* Hon. John F. Gerry, Chief Judge, United States District
Court for the District of New Jersey, sitting by desi —
to panel rehearing only.
JAMES McGIRR KELLY, District Judge
Presently before the court is the motion of the
defendants for judgment notwithstanding the verdict pursuant
to Fed.R.Civ.P.S0(b), or alternatively, a new trial pursuant to
Fed.R.Civ.P.59. At this juncture, the circumstances from
Northeast Women's Center, Inc., is a Pennsylvania
corporation engaged in the business of providing pregnancy
testing, gynecological care, counseling, and abortion
procedures. Defendants are pro-life activists who have
protested vigorously against abortion both in front of and
outside of the Center.
Asserting injury as a result of defendants’ activities,
a. el
A-36
and injunctive relief under the Sherman Anti-Trust Act, 15 >
U.S.C. §§ 1 et seq.. 15; the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. § 1964(c), and the
common law torts of trespass and intentional interference with
contractual relations.
At the close of the plaintiff's case, this court directed
the verdict on the plaintiff's anti-trust count. Northeast
Women's Center, Inc, v. McMonagle, 670 F.Supp. 1300
(E.D.Pa.1987). The remaining claims were put to a seven-
person jury.
Following four days of deliberations, the jury returned
its verdict, finding all twenty-seven remaining defendants
liable under RICO and assessed $887.00 in damages. The
jury found twenty-four of the defendants liable for trespass
and assessed $42,087.95 in compensatory damages and
$48,000.00 in punitive damages. Three defendants were
found to have intentionally interfered with plaintiff's employee
contracts, but no award was made since the jury found that the
Center had sustained no proximate loss as a result. Based on
the jury's answers to the Special Interrogatories, the court
entered judgment on the verdict on June 8, 1987 for plaintiff
against all defendants in the amount of $2,661.00 for a
ee I Oe
A-37
violation of RICO,!against twenty-four defendants in the
amount of $42,087.95 for trespass, and against three
defendants for the intentional interference with a contract, but
without money damages awarded. The awardance of punitive
damages was set aside by this court, for the reasons set forth
in its Memorandum and Order, filed June 8, 1987. Northeast
Women's Center, Inc, v. McMonagle, 665 F.Supp. 1147
(E.D.Pa.1987). |
Presently the court turns to the resolution of the
defendants’ motions for judgment notwithstanding the verdict
or in the alternative, for a new trial, pursuant to Rule 50(b) and
Rule 59 of the Federal Rules of Civil Procedure. Since all
defendants join in all cited grounds for the purposes of these
post-trial motions, this court will consolidate its Memorandum
and Order to apply equally to each defendant.
Standards of Review
It is well settled that "the standard for granting a
judgment notwithstanding the verdict is precisely the same as
the standard for directing the verdict. The motion for
judgment can be granted only if the motion for directed verdict
1 The jury's verdict of $887.00 as to the RICO claim was
trebled as provided under 18 U.S.C. § 1964(c).
A-38
should have been granted." 9 Wright and Miller, Federal
Practice and Procedure ch. 7 § 2537.
A motion for judgment N.O.V. must be granted
cautiously and sparingly, and is appropriate under very limited
circumstances. The jury's verdict may be set aside only if
manifest injustice will result if it were allowed to stand.
{tlo grant a motion for judgment N.O.V., the court
must
find as matter of law that the plaintiff failed to adduce
sufficient facts to justify the verdict. The motion'may
be granted only when without weighing the evidence,
there can be but one reasonable conclusion as the
proper
judgment.’ Where there is conflicting evidence which
could lead to inconsistent conclusions, a judgment
N.O.V.
should not be granted. In considering the motion, the
court must view the evidence in the light most
favorable
to the party against whom the motion is made....
A-39
Marian Bank v. Intern, Harvester Credit Corp., 550 F.Supp.
456, 460 (E.D.Pa.1982) aff'd 725 F.2d 669 (3d Cir.1983)
(citations omitted).
(l] Defendants have moved for a new trial on
numerous grounds. Although Fed.R.Civ.P. 59 does not
enumerate the grounds for a new trial, the following have been
recognized as general grounds for a new trial: the verdict is
against the clear weight of the evidence, damages are
excessive; the trial was unfair; and that substantial errors were
made in the admission or rejection of evidence or the giving or
refusal of instructions. ll C. Wright & Miller, Federal Practice
and Procedure § 2805 (1971). “A new trial motion on the
ground that the verdict is against the weight of the evidence is
to be distinguished from a motion for a ... judgment
notwithstanding the verdict which raises the legal sufficiency
of the evidence.” Rose Hall LTD. v. Chase Manhattan
Overseas Banking Corp., 576 F.Supp. 107, 124 (D.Del.1983)
aff'd 740 F.2d 958 (3rd Cir.1984). The Third Circuit
enunciated the test as follows:
[S]ince the credibility of witnesses is peculiarly for the
jury, it is an invasion of the jury's province to grant a
new trial merely because the evidence was sharply in
A-40
conflict. The trial judge, exercising a mature judicial
discretion, should view the verdict in the overall setting
of the trial; consider the character of the evidence and
the complexity or simplicity of the legal principles
which
the jury was bound to apply to the facts, and abstain
from interfering with the verdict unless it is quite clear
that the jury has reached a seriously erroneous result.
The judge's duty is essentially to see that there is no
miscarriage of justice. If convinced that there has
been,
then it is his duty to set the verdict aside; otherwise
not.
Lind v. Schenley Industries, Inc., 278 F.2d 79, 89 (3d
Cir.1960), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d
60 (1960) (quoting 6 J. Moore, Moore's Federal Practice, (2d
ed. p.3819).
[. PRE-TRIAL RULINGS
A. Preclusion of Justification Def
[2] In this motion for a new trial, defendants reassert
their objection to this court's Order of February 12, 1987 which
= ee
A-41
granted plaintiff's motion in limine to preclude evidence of
justification or motive as a legal defense to defendants’
actions. In the court's Memorandum and Order, the court held
that defendants’ moral beliefs on the issue of abortion would
not provide a legal right to unlawfully damage plaintiff's
property. See Northeast Women's Center, Inc. v.
McMonagle, No. 85-4845, slip op. at ll-18 (E.D.Pa. February
12, 1987) [available on WESTLAW, 1987 WL 6666).
Defendants’ counsel, in the opening statement to the jury was
permitted to explain the circumstances surrounding the
defendants’ presence in the plaintiff's property. Counsel was
directed not to argue or imply to the jury, in either opening
statements or closing argument, that the defendants’ beliefs
afforded them any type of legal justification defense.
This court did not, as defendants contend, “prohibit
testimony of motive and/or intent”. Defendants’ Supplemental
Post-Verdict Motions, filed 12/87, (Docket Entry 252, p. 36).
The Order of the Court expressly stated that such testimony or
evidence could not be extracted or introduced absent a prior
demonstration of relevance. Defendants do not point to any
ruling at trial denying them an opportunity to demonstrate the
relevance of any proposed evidence or testimony of motive
- ee aa
A-42
and/or intent. Therefore, I find defendants’ contention without
merit.
Secondly, it was stipulated between all parties that the
defendants’ actions were motivated by their moral and/or
religious beliefs regarding abortion. The jury was apprised of
the reasons underlying defendants’ presence and activities at
plaintiff's property and was fully instructed on defendants’
constitutional rights and privileges in pursuing their protests.
There is no question that the jury was apprised of the tenacity
of which defendants hold their views on abortion.
B. Denial of a Stay a
{3] Defendants argue that this court's pretrial denial of
their motion for a stay of the proceedings pending the outcome
of related state criminal prosecutions was error. To the extent
that this court fully addressed this issue in its Memorandum
and Order of February 12, 1987, and seeing no error in its prior
ruling, defendants’ motion for a new trial on this basis is
denied. See Northeast Women's Center, Inc. v. McMonagle,
No. 85-4845, slip op. at 21-22 (E.D.Pa. February 12, 1987).
Furthermore, defendants have not shown that they
were at all prejudiced by the court's denial of the stay at trial
SS eee oe owe
A-43
and plaintiff's reference to defendants’ silence in not taking the
stand in their own defense. The defendants elected not to take
the stand and invoke their Fifth Amendment right against self-
incrimination. Any finding that the defendants were
prejudiced by this court's ruling denying the stay due to
defendants’ rights against self-incrimination would be pure
speculation.2
C. Names of Clients
Defendants aver that this court erred by failing to order
the release of the names and addresses of plaintiff's clients on
the dates the defendants committed the alleged unlawful acts.
The resolution of defendants’ motion was referred to the
Magistrate, who issued an Order on November 7, 1986,
denying defendants’ access to this information. Upon
objection by defendants, this court reviewed the findings of
the Magistrate on this issue and found that the Magistrate's
preclusion of all such evidence was overbroad. By Order of
this court, defendants were permitted to discover the city and
2 Two defendants did testify and chose 1... to invoke
their Fifth Amendment right, defendants Corbett and
McMonagle.
A-44
state of domicile for each patient encompassed in defendants
interrogatories on this issue. See Northeast Women's Center,
Inc. v. McMonagle, No. 85-4845, slip op. (E.D.Pa. February
7, 1987) [Available on WESTLAW 1987 WL 6666]. Finding
no valid reason to reconsider this ruling, defendants’ motion
for a new trial on this issue is denied.
This court notes that defendants make no showing of
prejudice from this court's Order or how it prevented
defendants from presenting a proper defense.
D. Denial of Defendants’ Protective Order
[4] Defendants assert that this court erred in its pretrial
refusal to issue a protective order for the records of the Pro-
Life Coalition of Southeast Pennsylvania, a non-party, stating
that the use and admission of this evidence was highly
prejudicial to all defendants. Defendants do not state why the
evidence was “highly prejudicial".
This court's Order:of July 29, 1986 addressed
plaintiff's motion to compel the discovery of and defendants
motion for a protective order regarding the discovery of the
fundraising, expenditure and corporate records of the Coalition
A-45
and of any other anti-abortion organizations with which
defendant Michael McMonagle has been affiliated with since
January 1981. See Northeast Women's Center, Inc. v.
McMonagle, slip op. (E.D.Pa. July 29, 1986) [Available on
WESTLAW, 1986 WL 8341]. Pursuant to Fed.R.Civ.P.
26(b), this court stated, inter alia, that such materials as to
defendant McMonagle, may assist plaintiff in showing proof
of the planning or organization of the predicate offenses and/or
offenses constituting the alleged state law violations. The
court did not rule that the materials were to be admitted--
plaintiffs were required to prove relevance, as in any case.
At trial, plaintiff sought to introduce minutes of the
Board of Directors meeting of the Coalition. Defense counsel
duly objected as to relevance. Plaintiff offered records for the
purpose of showing that: (a) a number of the defendants were
present at the meetings; (0) documents were signed by a
defendant on behalf of the Coalition; (c) fund-raising letters
sent by the Coalition were signed by a defendant regarding the
protest activities of the Coalition which mentions defendants’
activities at the plaintiff's place of business (N.T. 2-80-2-93.)
Upon a proper showing of relevance to this action, this court
admitted the documents into evidence. I find no error in the
A-46
ruling. Therefore, defendants motion for a new trial on this
basis is denied.
A. Defendants assert that this court erred in denying
defendants’ motion for a mistrial after the giving of an
illustrative hypothetical instruction. This court is unable to
respond to defendants’ assertions because they have failed to
state where in the record or what day in the trial this instruction
was given. Although this court has diligently searched the trial
transcripts to find other evidentiary objections the defendants
cite as a basis for a new trial, the review necessary to respond
to defendants’ contention is not this court's responsibility.
This court recognizes that defendants’ preliminary post-trial
motions were submitted before the transcripts were available,
but defendants have had several months in which to
supplement these objections with the proper and necessary
cites to the official record. Therefore, this court will deny
defendants’ motion for a new tial on this basis.
B. Defendants claim that the court erred when it
refused defendants’ requests to declare a mistrial and/or poll
the jury due to allegedly prejudicial remarks made by
plaintiff's counsel in his opening statement to the jury: "Judge
Kelly has given you a very good outline of what the legal
A-47
dispute is, but I would like to talk to you a little bit about what
this case is about in another sense and I think that when you
hear the evidence, you will find out what this case is about, is
really about tolerance. Tolerance for different people's
religious beliefs and tolerance for different people's political
beliefs.” (N.T. 2-39.)
Plaintiff's counsel than proceeded to discuss the nght
of the American people to be free to subscribe to any religious
belief they choose, the tolerance other Americans have for that
choice, and the lack of tolerance of the defendants for the view
of others on the issue of abortion rights. (N.T. 2- 39/2-42).
After Mr. Tiryak finished his statement, the court
recessed for lunch, during which a juror expressed fears that
she could not be fair in this case because of her Catholic
beliefs and her personal views on abortion. At this point,
defendants objected to planinuff's opening scstement (N.T. 2-
50) After a hearing and an examination of the juror, the juror
was excused. (N.T. 2-48/2-52) After argument, this court
decided that a curative instruction was needed, and was given.
(N. T. 2-60/2-61) Opposing counsel, 1* their opening
remarks. took the opportunity to explain further that the case
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was not about a lack of tolerance for others’ religious beliefs.
(N.T. 2-78/2-80)
A new trial may be ordered where counsel engaged in
improper conduct which had a prejudicial effect on the jury.
See Draper v. Airco, Inc., 580 F .2d 91 (3d Cir. 1978). The
appropriate inquiry is whether there is a “reasonable
probability" that the jury's verdict has been influenced by the
improper conduct of counsel. Commercial Credit Business
Loans. Inc.. v. Martin, 590 F. Supp. 328, 330 n. 2 (E.D. Pa
1984), quote Draper, 580 F. 2d at 97. Due to the curative
instructions of this court after the prejudicia ctemarks, and
indeed, all throughout this trial, and the opportunity for
rebuttal of defense counsel, I do not feel that there is a
"reasonable probability” that the jury's verdict was improperly
influenced by the remarks and, therefore, a new trail will be
denied on this basis.
C. Defendants aver that this court erred because it
"barred defendants from calling witnesses to testify in
mitigation to the asserted [trespass] damages". More
specifically, defendants state that this court barred the
testimony of witnesses Pat Soda and O'Brien. Such testimony
was allegedly offered to disprove plaintiff's claim that security
ee se
A-49
guards were hired solely because of defendants’ actions.
There is no merit to defendants’ assigned “error”.
This court never “prohibited” defendants from
introducing evidence that plaintiff's actions as to the perceived
security needs of the clinic were not solely the result of the
actions of the defendants. As to the offered testimony of Mr.
O’Brien, the court found that the substance of the proposed
testimony was double hearsay, and not the competent
testimony of a witness. (N.T. 12-93) Mr. O'Brien was
permitted to testify as to his perso..al knowledge of the prayer
vigils and protests outside the clinic at 9600 Roosevelt
Boulevard. (N.T. 12-94)
[6] As to the offered testimony of Pat Soda, a counsel for
the defense, Mr. Short, stated at trial that Ms. Soda's
testimony was offered as to
[a] limited subject that I developed with Ms. Ryder
about the protestants claim or representations before
the zoning board, demanding security. It does not
intend to evoke hearsay--maybe it won't be hearsay
of Ms. Ryder or Ms. Ryder's response. It's for the
limited purpose of the fact that there were protests
made of
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security and it would create the inference what was
brought out on cross-examination was true. Ms.
Ryder's
answers to my questions on cross examination, which
don't remember. I don't remember. It goes to
damages.
(N.Y. 12-56)
As far as the offer of proof went, Mr. Short insisted
that Ms. Soda's testimony was offered to impeach the
testimony of Ms. Ryder. Ms. Ryder, a witness for plaintiff,
was cross-examined by Mr. Short as to the substance of a
zoning hearing held on an application for the new site of the
clinic.
Ms. Ryder repeatedly stated on cross-examination that
she did not remember what she might have testified to at that
hearing as to the concerns of future neighbors as to vandalism
of the clinic. (N.T. 10-52) Overruling an objection by
plaintiff, this court allowed cross-examination on the issue of
secunty for the clinic since it was relevant to whether the clinc
needed security for reasons other than the actions of the
protestors. (N.T. 10-52) In fact, Mr. Short cross-examined
A-51
Ms. Ryder extensively as to whether the damages claimed as
security expenses by plaintiff were attributable solely to the
protestors and the reason for the move. (N.T. 10-52 up to 64)
Testimony as to the previous incidents of vandalism was
adduced. (N.T. 10-52; 10-58)
The transcript of the hearing was available in order to
impeach the credibility of Ms. Ryder's answers on cross-
examination. Mr. Short declined to make use of it. Mr. Short
repeated his assertions that the testimony of Ms. Soda was for
the sole purpose of impeaching the credibility of Ms. Ryder as
to her failure to recollect any discussions about security needed
for purposes other than keeping out the protestors. (N.T.12-
67) On the basis of Mr. Short's assertions, this court properly
disallowed the testimony of Ms. Soda for impeachment
purpose.
I. EXTORTION
The court gave the following instructions to the jury as
to extortion:
Under the law, a person is guilty of extortion if he
induces his victim to part with property through the
use of fear and doing so adver-ely effects interstate
commerce. A person is guilty of extortion not only
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for completed extortions, but for attempted extortions
and conspiracy to attempt extortions as well. The law
Says a person is guilty of extortion whether he induces
his victim to part with property. We don't mean
jewelry or a car, personal property, the word
* property”
also denotes intangible property. Property interest in
something, such as the right to make a business
decision
free from wrongly imposed outside pressures.
Plaintiff claims the defendants, through the use
of fear as instilled by their allegedly illegal protest
activity, attempted and induce:
1. The Center
2. The employees.
3. Its patients to part with the intangible
property interests.
Specifically, defendants are charged with
attempting
and conspiring to extort from the Center its property
interest
ee
A-53
in continuing to provide abortion services from its
employees, their property interest in continuing their
employment with
the Center and from the patients, their property interest
in entering into a contractual relationship with the Center.
Now, as I told you at the beginning of this
trial, the defendants’ activities reflect their views
opposing the
plaintiff's choice of business. In other words, there is
no question that the defendants, most, if not all of
them,
oppose abortion activities at. the Center.
[Instructions on First Amendment right to express
their views. ]
Fescefal, unauthorized entry on another's
property
is not constitutionally protected. If you find any of the
defendants by entering the Center's property without
authorization or by otherwise wrongfully preventing
the Center from operating, induced or attempted to
induce
either the Center or its employees or its patients to part
A-54
with property as a result of fear, you may find that
those defendants are liable for extortion.
N.T. 14-19 through 14-22. Defendants assign the following
points of error to this jury instruction.
1. Defendants argue that the definition of extortion
given to the jury is actually the definition of trespass. This
objection is without foundation. The instruction Clearly states
that the commission of an extortionate act involves not only an
unauthorized entry onto plaintiff's property, but also an intent
induce the C : ' rn
property through the use of fear.
2. Defendants assert that plaintiff had no Standing to
assert injuries from the extortion of its employees.
[7] ‘This particular issue was previously addressd by
this court in its Bench Opinion of May 8, 1987, see Northeast
Women's Center v. McMonagle, 670 F. Supp. 1300, 1307 n.
11 (E.D. Pa.1987). The court found that the language of the
RICO statute makes no requirement that the plaintiff be the
victim of the predicate acts so long as the plaintiff is injured as
a result of the acts. I find that this interpretation of the RICO
statute is controlling and therefore defendants’ objetions to the
charge on this basis is denied.
A-55
[8] 3. Defendants’ third assignment of error is more
troubling. Defendants assert error in the court's instructions
that a person is guilty of extortion if they find any of the
defendants "conspired to attempt extortion” (N.T./14-20) in
that a conspiracy to attempt a crime is a double inchoate crime
and therefore no crime at all.
Upon a thoughtful review of the transcript, this court
duly recognizes the inadvertent error of using the term
“attempt” instead of "commit" to the instruction on “conspiracy
to commit extortion” and attributes it to oversight and a
misreading of the instruction at hand. However, I find that the
mistake was not so prejudicial as to warrant defendants the
right to a new trial.
Firstly, this court points out that this assignment of
error was fully correctable if defendants had followed Fed. R.
Civ.P. 51. The object of the rule is to afford the trial judge an
opportunity upon second thought, and before it is too late, to
correct any enadvertent or erroneous failure to charge. 9
Wright & Miller Federal Practice and Procedure ch. 7 2551,
citing from Marshall v. Nugent, 222 F.2d 604, 615 (Ist Cir.
1955). The necessity of a retrial is avoided when, by design
or thourgh sheer neglect, the losing party fails to make a
A-56
proper objection at the proper time. 9 Wright and Miller,
Federal Practice and Procedure ch. 7 2551. If defendants had
objected at the proper time, a clarifying instruction could have
been given, and fourteen trial days would not have been
jeopardized. Therefore, I find that defendatns have waived
this objection.
Alternatively, the addition of the word “attempt” in the
court's charge on conspiracy to commit extortion, looking at
the instructions in the entirety, as we must, is not so highly
prejudicial as to warrant a new trial. The court gave
instructions at length on the composition of a conspiracy and
the necessity of an overt act. The interrogatories mandated a
finding of an overt act. The instructions given on the whole as
to what is needed to find extorton and the examples given
therein, made the proper elements clear. The charge as a
whole correctly charged the jury that extortion as defined
under the Hobs Act includes attempted extortion and
conspriacy to commit extortion. Specifically, this cout
repeatedly gave instructions on extortion as encompassing
attempting and conspiring to extort. (N.T. 14-20) Therefore,
defendants are not entitled to a new trial on this basis.
A-57
4. Defendants assert that this court improperly charged
the jury as to attempted extortion and conspiracy to commit
extortion since plaintiff never pleaded these charges as
predicate acts in its comiplaint. infind this objection baseless
for two reasons.
Firstly, I find defendants’ objection to the charge on
this point comes too late. At no time throughout the trial did
defendants object to plaintiff's introduction of evidence as to
the two acts. Secondly, defendant cannot be heard at this date
to claim ignorance of plaintiff's theory of the necessary RICO
predicate acts.
It cannot be reasonably believed that defendants lacked
notice at the time the instructions were giyen as to these two
allegations. As early as December 22, 1986 defendants filed a
motion for summary judgment which asserted as a basis for
judgment that "[p]laintiff has no standing to allege inchoate
crimes of conspiracy attempt as there would be no concomitant
injury to its business or property.” See Defendants Motion for
Summary Judgment on Plaintiff's RICO Claim. Since the
entire purpose of a pleading is to give notice to the opposing
party, and since defendants knew that the plaintiff was relying
—_—, —
A-58
on the predicate acts of attempted extortion, motion for a new
trial on this basis is denied.
[9] 5. Defendants claim that the court erred by
instructing the jury that a conspiracy to commit extortion or
attempted extortion may be proper predicate offenses under
RICO, since, by definition, the required impact on plaintiffs’
business and property is absent. This court disagrees.
Sufficient evidence was adduced at trial and the jury so found
that plaintifs' property and business was harmed due to the
action of the defendants--whether the actions go under the
label of actual extortion, attempted extortion, or conspiracy to
commit extortion. If defendants’ assertion was correct,
innocent parties would have to be completely driven out of
business in order to collect damages uinder RICO, rather than
obtaining relief from, and damages for the actions of violators
when they are ongoing and continuous. Interpreting the law
as defendants assert would reward them for their valiant but
insuccessful attempts. Therefore, defendants will not be
granted a new trial on this basis.
[10] 6. Defendants claim that the court erred by
instructing the jury that the violation of plaintiff's intangible
right to conduct business is "property" that is capable of
A-59
extortion, and cite the recent Supreme Court case of McNally
v. United States. U.S. _, 107 S.Ct. 2875, 97 L.Ed.2d
292 (1987).
The court previously addressed defendants’ argument
as to the applicability of extortion under the Hobbs Act of
intangible property rights. See Northeast Women's Center v.
McMonagle, 670 E.Supp. 1300 (E.D.Pa.1987). For Hobbs
Act purposed, the term "property" includes intangible property
interests such as the right to make business decisions free from
wrongfully imposed outside pressures. The court based this
finding on the Third Circuit opinion of United States v. Local
560 of the International Brotherhood of Teamsters,780 F.2d
267, 290 (3d Cir. 1985), cert. denied, 476 U.S. 1140, 106
§.Ct. 2247, 90 L.Ed.2d 693 (1986).
Upon a careful review of the recent Supreme Court
precedent of McNally and a subsequent interpretation of that
ruling in the Supreme Court decision in Carpenter v. United
States, U.S. ., 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), I
find that the Third Circuit decision in Local 560 is still
controlling as to the applicability of the Hobbs act for the
A-60
extortion of intangible property rights such as those presented
in this case.3
7. Injury to Business or Property
[11] Defendants assert that the court erred in denying
their motion for a directed verdict on the basis that plaintiff
failed to prove that theyt were injured in their business or
property within the meaning of the RICO act.
Section 1964 (c) provides that "any person injured in
his business or property. . . may sue therefore ..." A
plaintiff seeking recovery under RICO must allege injury "in
his business or property” cause by violation of the Act. 18
U.S.C.A. 1964.
3 The Supreme Court held in McNally v. United States
that the mail fraud statute, (18 U.S.C. 1341) does no.
reach “schemes to defraud citizens of their intagible
rights to honest and impartial government."__McNally
483 U.S. at , 107 S.Ct. at 2881. The Supreme Court
subsequent! limited its holding in McNally _in
Carpenter, The “intangible property right" asserted
in__Carpenter was the Wall Street Jounal's interest in
the prepublicaton confidentiality of their daily
column “Heard on the Street" which discussed
information on selected stocks. In ruling that
McNally did not limit the scope of 1341 to tangible as
distinguished from intangible property rights, the
Court stated that the intangible property right
asserted by the Journal was not as “ethereal” as the
intangible right asserted in_McNally. Carpenter, ____
U.S., at :
A-61
In this case, plaintiff alleged and presented evidence of
two distinct injuries--physical injury to its property and injury
to its business because it was forced to spend more money to
maintain its operations in the face of defendants extortionate
acts. The jury found the plaintiff proved by a preponderance
of the evidence that it suffered an injury to its business or
property as a proximate result of the racketeering activity of
defendants amounting to $887.00. Therefore, I will deny
defendants’ motion on this ground.
IV. MOTION FOR JNOV OF DEFENDANT LINDA
CORBETT
The jury found defendant Corbett liable under 1962
(d), for conspiracy to violate the provisions of the RICO Act.
Section 1962 (d) provides:
It shall be unlawful for any person to conspire to
violate any _ of the provisions of subsections (a), (b), or (c)
of this section...
Section 1962(c) provides:
It shall be unlawful for any person employed by or
asso* ated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
A-62
enterprise's affairs through a pattern of racketeering activity or
collection of unlawful debt.
[12, 13] To prove conspiracy under sectio 1962 (d),
plaintiff must prove by a preponderance of the evidence that
defendant Corbett agreed to the substantive subsection (c)
RICO offense or that defendant Corbett agreed to participate in
the conduct of the enterprise's activities through the
commission of predicate offenses. Proof merely of agreement
to commit the predicate acts is insufficient. Proof merely to
participate in the enterprise is insufficient. United States v.
DiGilio, 667 F.Supp. 191, 194 (D.N.J.1987), citing United
States v. Riccobene, 709 F.2d 214 (3d Cir.), cert. denied, 464
U.S. 849, 104 S.Ct. 157, 78 L.Ed. 2d 145 (1983). To be
found liable of RICO conspiracy, a defendant must agree only
to the commission of the predicate acts, and need not
personally agree to commit personally those acts. The Town
of Keamy v, Hudson Meadows Urban Renewal Corp, 829
F.2d 1263, 1266 (3d Cir. 1987);_United States v. Adams, 759
F. 2d 1099 (3d Cir.), cert. denied, 474 U.S. 971, 106 S.Ct.
336, 88 L.Ed2d 321 (1985).
[14] Proof of an agreement in a RICO proceeding may
be established by circumstantial evidence to the same extent
A-63
permitted in traditional conspiracy cases. It is well established
that one conspirator need not know the identites of all his co-
conspirators, nor be aware of all the details of the conspiracy
in order to be found to have agreed to participate in it.
Riccobene, 709 F.2d at 225; Blumenthal v, United States, 332
U.S. 539, 68S.Ct. 248, 92 L.Ed. 154 (1947).
This court correctly charged the jury that in order to
find that a defendant became a member of a conspiracy,
defendant must have knowingly and intentionally participated
in the conspiracy. Mere knowledge by a defendant of the
existence of a conspiracy or of any illegal act on the part of an
alleged co-conspirator is not sufficient to establish his
membership in a conspiracy. (N.T. 14-27) Further, the court
expressly stated that “You may also find that [the defendant]
agreed to participate in the affairs of the enterprise througn a
pattern of racketeering activity if you find that he personally
agreed to commit two or more racketeering acts to further the
affairs and you need only find he agreed to commit these acts.
You don't have to find that he in fact actually committed those
acts." (N.T. 14-29) The court carefully cautioned the jury
that “mere association" with one or more co-conspirators does
not make a person a member of a conspiracy. (N.T. 14-29)
A-64
[15] Viewing the record in the light most favorable to
plaintiff, I find that the evidence was insufficient as a matter of
law to hold defendant Corbett liable under Section 1962 (d).
Namely, no evidence was presented as to the existence of any
agreement whereby Ms. Corbett would conduct or participate
in the activities of the enterprise throuh the commission of
predicate offenses as defined under RICO.
The sole evidence plainuff presented to support a claim
against Ms. Corbett was presented on videotape. Ms. Corbett
was shown to be present on the parking lot in front of
plaintiff's clinic at certain times voicing her objections to
plaintiff's provided services. She was shown participating in
the "blockading" of an entrance onto plaintiff's property, and
standing in front of a clinic physician's car.
In cases proceeding under Section 1962(d), [t]he key
element is proof that the various crimes were performed in
order to assist the enterprises’ involvement in corrupt
endeavors.” United States v. Riccobene, 709 F.2d at 224,
quoting Blakely and Goldstock, On the Waterfront: RICO and
Labor Racketeering, 17 Am.Crim.L. Rev. 341, 360-62 (1980)
(emphasis added). There is no dispute that no evidence was
presented that would suggest that Ms. Corbett committed any
A-65
extortionate acts--the predicate offense the jury found the
enterprise committed. Even if it could be said the defendant
Corbett acted along with members of the enterprise at certain
times, there was no evidence from which a jury could
reasonably infer that she acted in futherance of its extortionate
goals rather that its organized protests.
Futhermore, no evidence was adduced at trial from
which the jury could have even inferred that an implicit or
actual agreement existed between Corbett and members of the
enterprise whereby Corbett would conduct or participate in the
conduet of the enterprises’ activities. The most that could be
inferred from the record is that Corbett may have agreed to
Participate in the constitutionally protected protest activities
sponsored by members of the “enterprise”, but not the
extortionate goals of the enterprise. Therefore, this court will
grant the motion for judgment notwithstanding the verdict of
defendant Corbett.
V. TRESPASS CLAIM
[16] In their answers to Spectial Interrogatories,
Section II, the jury found that twenty-four defendants
intentionally entered land in the possession of the plaintiff
without privilege to do so, or directed another to so enter the
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property. As a proximate result of the unauthorized entries,
plaintiff suffered an injury to its business or property in the
amount of $42,974.00. Since $887.00 of this amount had
been awarded to plaintiff under the RICO claim, this amount
was reduced to $42,087.95 to avoid a duplicative recovery.
Defendants Long and Baker seek a judgment
notwithstanding the verdict on the basis that there was no
evidence that they entered the plaintiff's property. To the
extent that this court has found that the plantiff produced
sufficient evidence to withstand a directed verdict as to these
two defendants, defendants’ motion is denied. See Northeast
Women's Center _v. McMonagle, 670 F.Supp. 1300
(E.D.Pal987).
Defendants contend that this court erred by permitting
the jury to award plaintiff damages for injury to its business as
well as injury to its property under the trespass claim. Twelve
defendants state that August 10, 1985, is the only date that
damage to either personal or real property of the plaintiff
occurred.4 Since there was no evidence that these defendants
108 S.Ct. 316 at 320 (1987). :
The Journal ... was defrauded of muchmore than its
contractual right to [its employees’) honest and faithful
service, and interest too ethereal in itself to fall within the
protection of the mail fraud statute, which ‘had its origin in
A-67
trespassed on that date, they should be assessed only nominal
damages. Ten defendants admit that evidence was presented
as to their presence in plaintiff's property on August 10, 1985,
but submit that they should only have to pay for the actual
damage to plaintiff's real property, not for any injury to
plaintiff's business. 5 Defendants submit that the only
applicable damage presented was the damage to plaintiff's
equipment which, defendants aver, is represented by the
$887.00 figure. The balance of the award represents the cost
the desire to protect individual proerty rights’”.__ Carpenter
108 S.Ct. at 320.
The court held that the"intangible nature of the
Journal's right oto its won condidential business information
does not make it any less ‘property’ protected by the mail and
wire fraud statutes.” Carpenter 108 S.Ct. at 320 at 4009.
Therefore, assuming the “property” protected by the
mail fraud statute and the Hobbs Act is identical, plaintiff's
intangile right to make business decisoins free from wrongful
imposed outside pressures is not so “ethereal” as to come
under the holding of McNally, but is a widely recognized
individual property right similar to that found sufficient in
Carpenter.
4 These defendants are: Donna Andracavge,
Annemarie Breen, Mary Byme, Margaret Caponi,
Juan Guerra, Thomas Herlihy, Anne Knorr, Thomas
Mcilhenny, Michael McMonagle, Patricia McNamara,
Robert Moran, and Dennis Sadler.
5 These defendants are: Paul Armes, Walter Gies, Ellen
Jones, Roland Markum, Stephanie Morello, John
O'Brien, Susan Silcox, Henry Tenaglio, Joseph Wall and
Howard Walton.
A-68
of security guards which plaintiff hired to keep defendants
from trespassing. See Testimony of Ardis Ryder, N.T. 10-3
Applying Pennsylvain law, the Pennsylvania Supreme
Court stated:
The authorities are clear to the effect that where the
complaint is for trespass to land the trespasser becomes
liable not only for personal injuries resulting directly and
proximately from the trespass but also for those
which are indirect and consequential.
Kopka_v. Bell Telephone Co. of PA,, 371 Pa. 444, 451, 91
A.2d 232 (1952). The Pennsylvania Supreme Court
Pronouncement follows the general rule in regards to
tortfeasors in general; that the trespasser is responsible in
damages for all injurious consequences flowing from his
trespass which are the natural and proximate result of his
conduct. See 75 AM.Jur.2d, Trespass, Section 52. This
court sees no valid reason why a trespasser could not be held
liable for injuries to his or her business which are properly
found by a jury to be the proximate cause of defendants’
actions. Plaintiff's injuries as alleged and proven were not
unduly indirect or remote from defendants’ trespass.
Therefore, defendants’ motion on this ground is denied.
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AND NOW, this 31st day of March, 1988, upon
consideration of defendants’ mootion for judgment
motwithstanding the verdict, or alternatively, for a new trial,
and the responses thereto, for the reasons set forth in the
foregoing Memorandum, it is ORDERED that:
1. The motion of defendant Linda Corbett for
judgment notwithstanding the verdict is GRANTED.
Judgment is entered in favor of defendant Linda Corbett and
against plaintiff Northeast Women's Center, Inc.
2. The motion of all other named defendants for
judgment notwithstanding the verdict, or in the alternative ,
motion for a new trial is DENIED.
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN’ DISTRICT OF
PENNSYLVANIA
NORTHEAST WOMEN’S CENTER, INC.
CIVIL ACTION
we
MICHAEL McMONAGLE., et al, mt. NO. 85-4845
BENCH OPINION
KELLY, J.
MAY 14, 1987
The jury asks: “Can one act constitute two extortions
under RICO?” There is no easy answer to this question.
Technically, one act can constitute two common law extornons
in the samme way that one act could constitute two commnon
law robberies. For example. if a robber forces a bus driver to
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open the bus’ doors, then enters the bus, waving a gun at the
16 passengers on board and demands: "Give me your money
or I'll shoot", you could technically conclude that there have
been 16 robberies. The robber only waved the gun once. He
only physically threatened the passengers once. Nevertheless,
16 different persons were "robbed": the robber physically took
from 16 different persons their property with the intent to
permanently deprive them of it with the use or threat of force.
This technical analysis is insufficient under RICO. In
order to recover under § 1962(c) or (d), the plaintiff must
establish a "pattern of racketeering activity". Section 1961(5)
defines "pattern of racketeering activity” as “at least two acts of
racke-teering activity, one of which occurred after the effective
date of this chapter and the last of which occurred within ten
years after the commission of a prior act of racketeering
activity.” 18 U.S.C. § 1961(5S) (1982). Similarly, in Sedima,
S.P.R.L. v. Imrex Co., 105 S. Ct. 3275 (1985), the Supreme
Court explained that “while two acts are necessary, they may
not be sufficient.” | Id, at 3285 n.14. The court, concerned
| See United States vy. Frumento, 409 F. Supp.
136, 139 (E.D. Pa. 1976) (pattern requires
showing of at least two seperate instances of
racketeering activity), aff'd, 563 F.2d 1083 (3d
Cir.1977), cert. denied, 434 U.S. 1072 (1978).
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with the definition of "pattern" under RICO, noted that "[t]he
legislative history supports the view that two isolated acts of
racketeering activity do not constitute a pattern." Id, The
Court suggested that the congressional bill itself might be
useful in interpreting the Act: "criminal conduct forms a pattern
if it embraces criminal acts that have the same or similar
purposes, results, participants, victims, or methods of
commission, or other-wise are interrelated by distinguishing
characteristics and are not isolated events." Id.
In light of this review, the court concludes that the jury
may find, from one event or action taken on the part of a
defendant, evidence of two or more seperate extortions. Thus,
one act could support a conclusion that the defendant involved
attempted to extort the Center's business from the plaintiff, his
or her job from an employee, and her right to have an abortion
from a patient. However, the commission of one act will not
be sufficient under RICO to establish a pattern of racketeering
activity. RICO requires that the plaintiff prove "at least two
acts of racketeering activity” in order to be entitled to a RICO
recovery.
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BY THE
tte ee ee 2 eT
From one act, you may find evidence of the existence
of two or more extortions. However, in order to prove a
“pattern” of racketeering activity as is required under RICO,
the plaintiff must prove the occurrance of at least two distinct
acts, at two seperate times, of racketeering activity that are
somehow related in purpose, result, participants, victims, or
methods of commission.
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Northeast Women's Center, Inc.
Vv.
McMonagle, et. al.
Action
Civ. A No. 85-4845
United States District Court,
E.D. Pennsylvania.
May 8, 1987.
BENCH OPINION
JAMES McGIRR KELLY, District Judge.
The plaintiff Northeast Women's Center, Inc.
("Center") brought this civil action against thirty one! anti-
abortion protesters who have participated in various protest
activities outside and inside the Center. The plaintiff seeks
l The amended complaint originally named forty-two
persons as defendants in this action. Prior to trial,
the plaintiff dismissed five persons. During
argument on this motion, the plaintiff dismissed six
other persons. There are now thirty-one persons
remaining as defendants.
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money damages and injunctive relief under four theories: a
federal claim under the Sherman Antitrust and Clayton Acts,
15 U.S.C. §§ 1, 15; a federal claim under the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 18
U.S.C. § 1964; a pendent claim for trespass; anc a pendent
claim for intentional interference with contractual re-lations.
Following nine days of testimony during which the jury
viewed over two hours of video tape and heard from ten
plaintiff witnesses, the Center rested. Now before the court
are the defendants’ motions for directed verdicts.
{1] Under Federal Rule of Civil Procedure 50(a), the
trial court must direct the verdict if, under the applicable law,
there can be only one reasonable conclusion as to which party
should pre-vail. See Brady v. Southern R. Co., 320 U.S.
476, 479-80, 64 S.Ct. 232, 234-35, 88 L.Ed.239(1943). The
mere fact that a scintilla of evidence supports the plaintiff's
case will not defeat a motion for directed verdict. See
Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442,448,
20 L.Ed. 867(1872). Instead, the court must ask “whether
reasonable jurors could find by a preponderance of the
evidence that the plaintiff is entitled to a verdict." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505,2511, 91
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L.Ed.2d 202(1986). In making this inquiry, the court must
leave credibility determinations, the weighing of the evidence,
and the drawing of proper inferences to the jury; the plaintiff's
evidence is taken as true and all justifiable inferences are
drawn in the plaintiff's favor. /d. 106 S.Ct. at 2513.
Due to the number of the claims in this case and the
disjointed presentation of the evidence, the court decided it
was necessary to conduct an extended hearing on the
defendants’ motions. Following four hours of argument and a
complete review of the evidence, the court concludes that the
defendants’ motions will be granted in part and denied in part.
The specific rulings and their explanations follow.
I. SHERMAN ANTITRUST ACT CLAIMS
As set forth in the complaint, the plaintiff contends that
the defendants conspired to restrain trade and commerce in
violation of the Sherman Antitrust Act, 15 U.S.C. § 1.
Amended Complaint at | 84. Specifically, the plaintiff argues
that the manifest intent of the defendants’ protest activities was
to destroy the Center's abortion procedure business.?
2 According to testimony at trial (taken, for
purposes of this motion, as truth) abortion procedures
accoumt for 35% of the Northeast Women's Center's
clients.
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Accordingly, the plaintiff asserts that it is entitled to treble
damages pursuant to 15 U.S.C. § 15.
Section 1 of the Sherman Act declares that “[e]very...
conspiracy, in restraint of trade or commerce among the
several States... is... illegal...." 15 U.S.C. § 1(1982).
Although, if interpreted literally, Section 1 would prohibit any
agreement in restraint of trade, the courts have recognized that
only those agreements which unreasonably restrain trade or
commerce violate the Sherman Act. See Weiss v. York
Hosp., 745 F.2d 786, 817 (3d Cir. 1984), cert. denied, 470
U.S. 1060, 105 S.Ct. 1777, 84 L.Ed.2d 836 (1985).
[2] A year and a half ago, in finding that the plaintiff's
antitrust count survived a motion to dismiss, the court
acknowledged that the dissimilarity between the plaintiff's
3 In addition to this case-by-case “rule of reason"
analysis, the courts have adopted a seperate “per se
illegal" rule that is applied to certain business
practices that are definitionally condemned. See
Weiss v. York Hosp., 745 F.2d 786, 817-18 (3d Cir.1984)
cert denied. ,, 470 U.S. 1060, 105 S.Ct. 1777, 84 L.Ed.2d
836 (1985). This per se_ rule is limited to several
judicially created categories that are not implicated in
this case. See Tunis Bros. Co. v. Ford Motor Co., 763 F.2d
1482, 1489-90 & n. 14 (3d Cir.1985) (per se categories
are horizontal and vertical price fixing, resale price
maintenance, group boycotts, trying arrangemenis,
and reciprocal dealing), vacated on other grounds ,
475 U.S. 1105, 106 S.Ct. 1509, 89 L.Ed.2d 909 (1986).
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antitrust theory and those claims ordinarily held violative of the
Sherman Act was disturbing. Northeast Women's Center,
Inc. v. McMonagle, 624 F.Supp. 736, 740 (E.D.Pa.1985).
Although not conclusive on the question of whether or not the
Sherman Act was applicable, “this essential dissimilarity ...
[did] constitute ¢ warning against treating the defendants’
conduct as though it amounted to a common-law trade
restraint.” Eastern RR. Presidents Conference v. Noerr
Motor Freight, Inc., 365 U.S. 127, 136-37, 81 S.Ct. 523,
528-29, 5 L.Ed.2d 464 (1961). Consequently, the court
expressly cautioned the pla‘n-tiff that "[p]roof of injury to the
plainuff's business will be deemed insufficient absent further
proof that such injury amounted to an unreasonable restraint
on trade." Northeast Women's Center, Inc. v McMonagle,,
No. 85f-4845, slip op. at 7 (E.D. Pa. Feb. 12, 1987)
[Available on WESTLAW, DCT database]. The plaintiff's
case now over, it is Clear to the court that its warning has gone
unheeded. The plaintiff has rested its claim for an antitrust
recovery entirely on proof that the defendants seek to destroy
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its abortion business. As this court forewarned the plainuff on
February 12, 1987,* this proof alone is not proof enough.
The goal of the federal antitrust laws generally is the
enhancement of competition. Martin B. Glauser Dodge Co. v.
Chrysler Corp., 570 F.2d. 72, 81 (3d Cir. 1977), cert.
denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413
(1978). The goal of Section | specifically is the prevention of
any diminution of competition in the marketing of goods and
services. Kalmanovitz v. G.Heileman Brewing Co., 769
F.2d 1252, 156 (3d Cir.1985). Although an individual
business has standing to sue under the Sherman Act for
injuries it sustained to its own business, the antitrust laws
were not enacted simply to protect such discreet, individual
business interests. “The antitrust laws were enacted for the
protection of competition, not competitors.” Brunswick Corp,
v. Pueblo Bowl-O-Mat, Inc.. 429 U.S. 477, 488, 97 S.Ct.
690, 697, 50 L.Ed.2d 701 (1977)(emphasis added)(quoting
Brown Shoe Co, v. United States, 370 U.S. 294, 320, 82
S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962).
4 Northeast Women's Center, Inc. v McMonagle,, No.
8504845, slip op. at 7 (E.D.Pa. Feb. 12, 1987) [Available
on WESTLAW, DCT database] (memorandum and order
denying defendants’ motion for summary judgment).
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[3,4] Accordingly, an entiarest plaintiff is required to
prove more than just its business’ injury. To recover under
Section 1, a plaintiff must prove that the defendants’
conspiracy produced adverse, anti-competetive effects within
relevant product and geographic markets.5 Tunis Bros. Co.
v. Ford Motor Co., 763 F.2d 1482, 1489 (3d Cir.1985),
vacated on other grounds, 475 U.S. 1105, 106 S.Ct. 1509,
89 L.Ed.2d 909 (1986); Martin B. Glauser Dodge Co., 570
F.2d at 81. Accord Seaboard Supply Co, v. Congoleum
Corp., 770 F.2d 367, 375 (3d Cir.1985). The plaintiff has
the burden of demonstrating that the defendants’ conspiracy,
in some substantial way, “either did or could effect interstate
commerce by controlling market prices, imposing undue
limitations on competitive conditions, or unreasonably
restricting competitive opportunity.” Sitkin Smelting &
Refining Co. v. FMC Corp., 575 F.2d 440, 447 (3d Cir.),
5 To sustain a cause of action under § | in this
circuit, a plaintiff must prove (1) that the defendants
conspired among each other; (2) that the conspiracy
produced adverse, anticompetitive effects within
relevant product and geographic markets; (3) that the
objects and the conduct pursuant to the conspiracy
were illegal; and (4) that the plaint-iff was injured as
a proximate result of that conspiracy. Martin B.
Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 71, 81 (3d
Cir. 1977), cert. denied , 436 U.S. 913, 98 S.Ct. 2253, 56
L.Ed.2d 413 (1978).
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cert. denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176
(1978). Accord Apex Hosiery Co. v Leader, 310 U.S. 469,
493 n. 15, 60 S.Ct. 982, 992 a. 15, 84 L.Ed. 1311 (1940)
(Sherman Act designed to prevent restraints of trade which
have significant effect on business competition).
{5} Competition within a particular industry is not
necessarily injured merely because one competitor in the
industry sustains a loss of business. An injury to competition
within an industry may be proven by an appreciable reduction
in the number of competitors or by some other outward sign of
adverse effects on competitive conditions. "(B]ut adverse
impact is simply not shown by a loss of profits, or even by the
total elimination of one competitor.” Robert's Waikiki U-
Drive, Inc. v, Budget Rent-A-Car Systems, Inc., 491 F.Supp.
1199, 1213 (D.Hawaii 1980), aff'd, 732 F.24°1403 (9th
Cir.1984). An antitrust plaintiff must demonstrate that the
defend-ants’ conduct had “some anti-competitive effect beyond
the plaint-iffs own loss of business.” Sherman vy. British
Leyland Motors, Lid., 601 F.2d 429, 450 (9th Cir.1979);
Gough vy. Rossmoor Corp., 585 F.2d 381, 386 (9th
Cir.1978), cert. denied, 400 U.S. 936, 99 S.Ct. 1280, 59
L.Ed.2d 494 (1979). Thus, to prove an antitrust violation in
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this case, the plaintiff had to demonstrate an actual anti-
competitive impact on the providing of abortion services
within the relevant market area. See Tunis Bros. Co., 763
F.2d at 1490.
The plaintiff here has introduced no such evidence.®
There has been no evidence even suggesting that the
defendant's protest activities at the Center have diminished
competition within the plaintiff's market; no evidence of an
appreciable reduction in the number of competitors, no
evidence of any other outward sign indicating an adverse effect
on competitive conditions. The plaintiff has made no attempt
to define the relevant service market allegedly affected, nor has
the plaintiff characterized or quantified the alleged anti-
competitive damage. The plaintiff has failed to even establish
for the jury who all its competitors are.
The plaintiff in this case sought to make new law,
pursuing an antitrust recovery through an unorthodox
application of the Sherman Antitrust Act. Due to the apparent
® CfKlor'’s v. Broadway-Hale Stores, Inc ., 359 US.
207, 209, 79 S.Ct. 705, 707, 3 L.Ed.2d 741 (1959) (evidence
at trial indicated that plaintiff had been seriously
handicapped in its ability to compete and had been
caused great loss of profits, goodwill, reputation and
prestige).
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complexity of the facts and the imprecision in the complaint,
the court allowed the plaintiff the benefit of the doubt and
permitted the Center to proceed with its proof.’ However,
the mere fact that the plaintiff attempts a novel approach does
not afford it special treatment under the antitrust laws. It is
bound by the same elements of proof as any other antitrust
plaintiff; the requirements for recovery are neither enhanced
nor relaxed.
[6] Having heard the plaintiffs case, the court
concludes that the plaintiff has failed to state a prima facie
claim under 15 U.S.C. § 1 as defined by the elements of that
cause of action. Therefore, the defendants’ mocions for
directed verdicts will be granted as to the plaintiff's antitrust
count. This ruling in no way circumscribes the jury's
authority to award damages against the defendants under the
plaintiff's remaining three theories. Finding that the plaintiff
has failed to meet its burden of proof, the court is not called
7 Cf Barr v. National Right to Life Comm., Inc..,
1981-82 Trade Cas. (CCH) ¢ 64,315 (M.D. Fla. July 27,
1981). Cf also Sitkin Smelting & Refining Co. v. FMC
Corp., 575 F.2d 440, 447 (3d Cir.) (“Conduct not within
the scope of the [Sherman Antitrust Act) is not made
into an antitrust violation by accompanying conduct
which is reprehensible under some moral or ethical
standard or even illegal under some law."), cert.
denied, 439 U.S. 866, 99 S.Ct. 191, 58 L.Ed.2d 176 (1978).
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upon to address the question of whether the First Amendment
would have denied the plaintiff a recovery in the event it had
established an antitrust cause of action.* Consequently, no
opinion on this issue is expressed.
Il. RACKETEER INFLUENCED AND CORRUPT
ORGANIZATION ACT CLAIMS
The plaintiffs second count alleges that the
defendants, through a pattern of racketeering activity, injured
the Center in violation of the federal RICO statute. For
predicate acts, the plaintiff lists robbery and Hobbs act
extortion, both of which qualify as racketeering activity
pursuant to 18 U.S.C. § 1961(1).
The declared purpose of Congress is enacting the
RICO statute was “to seek the eradication of organized crime
in the United States by strengthening the legal tools in the
evidence-gathering process, by establishing new penal
prohibitions, and by providing enhanced sanctions and new
remedies to deal with the unlawful activities of those engaged
8 The First Amendment does limit the application of
the Sherman Act. See Eastern RR. Presidents
Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,
81 S.Ct. 523, 5 L.Ed.2d 464 (1961). Whether the Firs:
Amendment would have restricted or precluded a
damage award in this case is unaddressed by the court.
| A-85
in organized crime." United States v Turkette, 452 U.S. 576,
589, 101 S.Ct. 2524, 2531, 69 L.Ed.2d 246 (1981). In
addition to its criminal penalties, the statute provides a private
cause of action to recover treble damages for injuries sustained
as a result of criminal racketeering activity. See 18 U.S.C. §
1964(c) (1982).
As its application in this action clearly evidences,
however, RICO has evolved into a creature much different
from that envisioned by its creators. See generally Comment,
What Have They Done to Civil RICO: The Supreme Court
Takes the Racketeering Requirement Out of Racketeering, 35
Am.U.L.Rev. 821 (1986). Instead of a weapon for derailing
the activities of “the archetypal, intimidating mobster", the
RICO statute has become a method for redressing virtually all
means of wrongdoing. See Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 105 S.Ct. 3275, 3287, 87 L.Ed.2d 346
(1985). When recently given the opportunity to refocus
RICO, the United States Supreme Court declined to do so.
[This defect-if defect it is-is inherent i the statute as written,
and its correction must lie with Congress." /d. Consequently,
it cannot be said that RICO's application in this case is legally
precluded.
}
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The RICO statute makes four types of conduct illegal.9
As to each type, the plaintiff must establish the existence of an
“enterprise”, an ongoing organization-composed of members
function-ing as a continuing unit-that has “an existence
separate and apart from the pattern of [racketeering] activity in
which it engages." 18 U.S.C. § 1962 (1982). See United
States v. Local 560 of the Internt'l Bhd. of Teamsters,
Chauffeurs, Warehousemen, & Helpers, 780 F.2d 267, 290
(3d Cir.1985). The plaintiff must also establish a pattern of
racketeering activity composed of the commission of at least
two predicate acts of robbery or extortion within a ten-year
period. 18 U.S.C. § 1962 (1982). See 18 U.S.C. § 1961(5)
(1982). The court first turns to the plaintiff's robbery and
extoruon allegations.
9 See 18 U.S.C.§ 1962(a), (b), (c), & (d) (1982). As the
plaintiff explained during the directed verdict
hearing, a RICO recovery is sought only under §
1962(c) and (d).
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Under Pennsylvania law,!® a person is guilty of
robbery if, in the course of committing a theft, he physically
takes or removes property from the person of another by force
however slight. 18 Pa. Cons.Stat. Ann. § 3701(a)(1)(v)
(Purdon 1983). The plaintiff argues that it has proven that, on
August 10, 1985, a number of defendants entered the Center
and, through the use of physical force, removed property from
the plaintiff's offices. The plaintiff further argues that, having
used force against its employees in the unlawful removal of its
property, the defendants committed a robbery.
A person violates the Hobbs Act, 18 U.S.C. §
1951(b)(2) (1982), if he induces his victim to part with
property through the use of fear and, in so doing, adversely
affects interstate commerce. See Local 560, 780 F.2d at 281.
The Hobbs Act applies not only to completed extortions, but to
attempted extortions and conspiracies to commit ey.tortion as
well. 18 U.S.C. § 1951(a) (1982). For Hobbs Act purposes,
10 The defendants assert that the appropriate
definition of robbery for RICO purposes is that
adopted by the State of New York. See United States v.
Nedley , 255 F.2d 350, 355 (3d Cir.1958). The
defendants’ case relates to robbery under the Hobbs
Act, not the state law robbery the plaintiff alleges
here. Moreover, the court finds no material
differences between the Pennsylvania and New York
formulations.
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the term “property” includes intangible property interests such
as the right to make business decisions free from wrongfully
imposed outside pressure. See /d. at 281-82.
The plaintiff argues that it has established prima facie
evidence that the defendants conspired to and did attempt three
seperate extortions. According to the plaintiff's theories, the
defendants, through the use of fear instilled by their protest
activities, attempted and conspired to induce (1) the Center, (2)
its employees, and (3) its patients to part with intangible
property interests. Specifically, the defendants allegedly
attempted and conspired to extort from the Center its property
interest in continuing to provide abortion services, from the
employees their property interest in continuing their
employment at the Center, and from the patients their property
interest in entering into a contractual relationship with the
Center.!!
be The plaintiff's extortion theories neccessarily
raise a novel question regarding the predicate acts
requirement of RICO: if the plaintiff can demonstrate
that it was injured as a result of the defendants’
conduct, must it be the direct victim of the conduct to
have standing? In this case, the plaintiff is only the
victim of the alleged extortionate acts under the first
theory. Under the second theory, the employees are
the victims and, under the third theory, the patients
are the victims. But the plaintiff argues that, from all
three alleged extortions, it sustained a compensable
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i?
4
4
injury to its business. Even though it was not the
direct victim under theory two or three, the plaintiff
seeks to send these alleged extortions to the jury as
predicate acts for its RICO recovery.
The language of the statute makes no requirement
that the plaintiff be the victim of the predicate acts so
long as the plaintiff is injured as a result of the acts.
Section 1964(c) establishes a civil remedy for “[a)ny
person injured in his business or property by reason
of a violation of section 1962." 18 U.S.C. § 1964(c)
(1982) (emphasis added). Under § 1962(c) and (d), the
focus is directed at the defendant's conduct rather
than the plaintiff's injury. The provisions make no
mention of who must be victimized in order to
recover. Similarly inconclusive are the definition
provisions. Section 1961(1) defines “racketeering
activity” as “amy act or threat" involving robbery or
extortion. 18 U.S.C. § 1961(5) defines “pattern of
racketeering activity" as” two acts of racketeering
activity” without regard to victim.
The Supreme Court's two recent decisions on the
statute suggest that the Act be interpreted broadly and
that Congress be left to restrict any overbreadth. In
Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S.Ct.
3275, 87 L.Ed.2d 346 (1985), the Court rejected the
Second Circuit's requirement that a RICO plaintiff
prove a “racketeering injury” seperate and distinct
from the harm it sustained by the predicate acts
themselves. The Court discarded the limitation by
observing that the statute makes no such
requirement. /d., 105 S.Ct. at 3286. In American Nat'l
Bank & Trust Co. v. Haroco, Inc. , 473 U.S. 606, 105 S.Ct.
3291, 87 L.Ed.2d 437 (1985) , the Court rejected a
similar requirement by the Seventh Circuit with an
admonition that the requirement “suffers from the
same defects as the amorphous and unfounded
restrictions on the RICO private action we rejected in
{Sedima]." /d. 105 S.Ct. at 3292.
In light of the Supreme Court's direction that the
Act be read as written, this court has canvasse the
statute for a requirement that the RICO plaintiff be
the direct victim of the alleged predicate acts. The
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As noted above, the plaintiff rests its claims of extortion
on characterizing the defendants’ protest activities as violative
of the Hobbs Act. However, in assessing the applicability of
the Hobbs Act to the defendants's conduct, the precepts of the
Constituion must be kept in mind. Resting on the “highest
rung” in the heirarchy of First Amendment values, free speech
is accorded special praotection under the Constitution.
Connick v Myers, 461 U.S. 138, 145 (1983). It guarantees
“the right of every citizen to reach the minds of willing
listeners,” Heffron v International Soc'y for Krishna
Consciousness, Inc..452 U.SA. 640, 655 (1981), in order to
assure the :“unfettered interchange of ideas for the bringing
about of political and social changes, “Roth v. United States,
354 U.S, 476, 484 (1957).
Attempts to persuade another to action are clearly within
the scope of the First Amendment. Thomas V. Collins, 323
U.S. 516, 537 (1945). The fact that the defendants’ speech
was intended to persuade patients to forego their abortions or
court has found no such requirement. Moreover, the
court notes that the plaintiff has offered evidence
that irrespective of the actual victim, the Center has
experienced a resultant injury. Consequently, the
alleged extortionate con-duct directed to the
employees and the patients will go to the jury as
predicate acts in support of the plaintiffs RICO claim.
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employees to leave their employment at an abortion-providing
clinic does not, in itself, corrupt the speech nor diminish its
protection under the Constitution. See Thornhill v Alabama,
310 U.S. 88, 99 (1940). Such pure speech activities cannot
support a claim of extortion. Similarly, peaceful picketing,
leafletting, and demonstrating enjoy the same freedom of
expression. E.g.,Organization for a Better Austin v.
Keefe,402
U.S. 415 (1971); Edwards v, South Carolina, 372 U.S. 229
(1963); Thornhill v. Alabama, 310 U.S.88 (1940). That this
expression was designed to have an “offensive” or coercive”
effect is of little significance provided that the manner of
expression retained its peaceful nature. NAACP v. Claiborne
Hardware Co. 458 U.S.886, 911 (1982).
The First Amendment will not, however, offer a
sanctuary for violence. "No federal rule of law restricts a State
from imposing tort liability for business losses that are caused
by violence and by threats of violence.” Claiborne Hardware
Co.,458 U.S. at 916. The forcible, unauthorized entry into
the Center's facilities is not protected conduct. Neither can the
breaking of an automobile tail light or the inflicting of bodily
injury scurry behind the First Amendment for refuge. As to
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these activities, the plaintiff will encounter no constitutional
hurdle.
But to establish extortionate conduct, the plaintiff must
offer proof of such unlawful activity. It must prove more than
the offensive or coercive nature of a defendant's protest
activites. It also must prove more than a defendant's intent
that the Center cease providing abortions, that its employees
resign their abortion-related posts, or that its patients cancel
their appointments. Only non-peaceful acitivity, falling
outside the parameters of protected conduct can form the basis
of a claim for extortion.
Having reviewed the plaintiff's predicate act allegations,
the court now assesses the plaintiff's success in stating a prima
facie case for a pattern of racketeering activity. With respect to
robbery, the plaintiff alleges only one incident occurring on
August 10, 1985. The plaintiff has introduced evidence that
on thgat date the Center was entered by defendants Joseph P.
Wall, Roland Markum, Howard Walton, Henry Tenaglio,
Stephanie Morello, Annemarie Breen, cllen Jones, Susan
Silcox, Paul C. Armes, Walter G. Gies, John J. O'Brien, and
Kathy Long. The plaintiff has also presented evidence that
those entries were unauthorized. Further, the plaintiff has
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brought in evidence suggesting that, following those entries,
certain medical tubes, bottles, and knobs were missing. The
court finds this evidence sufficient to state a prima facie case of
robbhery as to defendants Joseph P. Wall, Roland Markum,
Howard Walton, Henry Tenaglio, Stephanie Morello,
Annemarie Breen, Ellen Jones, Susan Silcox, Paul C. Armes,
Walter G. Gies, John J. O’Brien, and Kathy Long.
With regard to the extortion allegations, there is
evidence before the jury of four unauthorized entries into the
Center's facilities. This activity does not constitute protected
First Amendment expression. The plaintiffs evidence
intimates that patients and employees present during those
entries were placed in fear by the nature and manner of the
incidents. There is also evidence that, if believed and taken in
the totality of the attendant circumstances, would suggest that
the occurrence of these entries would cease if the Center
surrendered its abortion-providing services. The court finds
that this evidence states a prima facie case for extortion as to
the following defendants: Michael McMonagle, Dennis
Sadler, Deborah Baker, Thomas Herlihy, Anne Knorr, Robert
Moran, Joseph P.Wall, Roland Markum, Howard Walton,
Henry Tenaglio, Stephanie Morello, Annemane Breen, Ellen
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Jones, Susan Silcox, Paul C.Armes, Walter G. Geis, John J.
O'Brien, Patricia Walton, Kathy Long, Helen Gaydos, Donna
Andracavage, Juan Guerra, Margaret Caponi, Mary Bryne,
A pattern of racketeering activity requires the
commission of two predicate acts within a ten-year period. 18
U.S.C. § 1961(5) (1982). In this case, the plaintiff alleges
four p redicate acts: the August 10 robbery, the extortion of
the Center, the extortion of its employees, and the extortion of
its patients. The “pattern” requirement is met only as to those
defendants who have been involved in at least two of these
four acts. The court has earlier concluded that for each
defendant who entered the Center's offices, there was
sufficient evidence to go to the jury on each of the three
extortions. Consequently prima facie evidence of a pattern of
racketeering activity has been presented with respect to:
Michael McMonagle, Dennis Sadler, Deborah Baker, Thomas
Herlihy, Anne Knorr, Robert Moran, Joseph P. Wall, Roland
Markum, Howard Walton, Henry Tenaglio, Stephanie
Morello, Annemarie Breen, Ellen Jones, Susan Silcox, Paul
C. Armes, Walter G. Gies, John J. O'Brien, Patricia Walton,
Kathy Long, Helen Gaydos, Donna Andracavage, Juan
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Guerra, Margaret Caponi, Mary Bryne, Linda Corbett, Thoms
Mcllhenny, and Patricia McNamara.
The plaintiff 's pattern evidence now defined, the
court next turns to the two provisions of the RICO statute
under which the plaintiff seeks its recovery. To state a
violation of 18 U.S.C. § 1962(c), the plaintiff must prove that
a defendant, who was associated with or employed by the
enterprise conducted or participated in the activities of the
enterprise by personally committing two acts of robbery or
extortion. 18 U.S.C. § 1962(c) (1982). The court concludes
that, considering the evidence of enterprise in the case, the
jury is entitled to deliberate the claims under § 1962(c) that
appiv to each defendant for which a pattern of racketeering
activity has been established. As listed above, these
defendants are Michael McMonagle, Dennis Moran, Joseph P.
Wall, Roland Markum, Howard Walton, Henry Tenaglio,
Stephanie Morello, Annemarie Breen, Ellen Jones, Susan
Silcox, Paul C. Armes, Walter G. Gies, John J. O'Brien,
Patricia Walton, Kathy Long, Helen Gaydos, Donna
Andracavage, Juan Guerra, Margaret Caponi, Mary Bryne,
Linda Corbett, Thomas Mcllhenny, and Patricia McNamara.
The claims against the other defendants, John Stanton, Linda
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Hearn, John Connor, and Pasquale Varallo, are insufficient
and their verdicts uncer § 1962(d) must be directed.
The plaintiff also seeks a RICO Recovery under 18
U.S.C. § 1962 (d) which declares it unlawful for any person
to conspire to violate § 1962(c) 18 U.S.C. § 1962 (d)
(1982). From this court's reading oi the law in this area, there
are at least two legal concerns that encumber the plaintiff's
right to a full recovery under its § 1962 (d) theory. First, by
its terms, the RICO conspiracy provision applies only to those
defendants who conspire to further the activities of the
enterprise through the commission of two racketeering acts.
As a consequence, toi fall within the scope of the conspiracy
provision in this case, a defendant charged under § 1962(d)
must be shown to have conspired intentionally, not just to
trespass inside the Center's offices, but also to commit two
acts of robbery or extortion.
Second, the Free Assembly Clause of the First
Amendment places a heavy burden on the plaintiff's attempt to
impose conspiracy liability. The Supreme Court has
recognized that “the practice of persons sharing common
views banding together to achieve a common end is deeply
embedded in the American political process,” and that "by
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when, individually, their voices would be faint or lost.”
CH against Rent C VCoalition for Fair Housi
City of Berkeley, 454 U.S. 290, 294 (1981). Accordingly,
liability imposed for one's involvement with others--" guilt for
association”--conflicts sharply with the precepts of the First
Amendment. See Claiborne Hardware Co., 458 U.S. at 925.
Clearly, a person may always be held civilly liable for
the consequences of his unlawful, violent acts. But a
"massive and prolonged effort to change the social, political,
and economic structive . . . cannot be characterized as a violent
conspiracy simply by reference to the ephemeral consequences
of relatively few violent acts.” Id. at 933. For civil liability to
arise by reason of association alone, “it is necessary to
establish that the group itself possessed unlawful goals and
that the individual held a specific intent to further those illegal
aims.” Id. at 920.
In the context of this action, the plainuff has alleged
robbery and extortion as the illegal aims. Consequently, the
plaintiff bears the burden of proviing that each defendant
charged with conspiracy under 18 U.S.C. § 1962 (d) had
specifically intended to accomplish those illegal aims. The
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only defendants the jury could possibly find liable under this
section are those twenty-five defendants who actually entered
the Center and Ms. Walton and Corbett. Therefore, as to the
remaining four defendants, the plaintiff's § 1962(d) RICO
count Cannot comport with the dictates to be. With respect to
those defendants, the verdict will be directed.
Ill. TRESPASS CLAIMS
The plaintiff's first pendent claim charges each of the
thirty-one remaining defendants with common law trespass to
land. Amended Complaint at § 88. Under Pennsylvania law,
“(o)ne who intentionally enters land in the possession of
another without a privilege to do so is liable . . . to the
possessor of the land as a tresoasser... ." Kopka vy. Bel]
Telephone Co., 371 Pa. 444, 91 A.2d 232, 235 (1952)
(quoting Restatement (First ) of Torts § 164 (1934).
Similarly, “one who authorizes or directs another to commit an
act which consututes a trespass to another's land is himself
liable as a trespasser to the same extent as if the trespass were
committed directly by himself... ." Id. Actions for trespass
to land were created at common law to redress invasions of a
person's right to the exclusive use and possession of his
property. Hennigan v. Ailantic Refining Co,, 282 F. Supp.
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667, 669 (E.D. Pa. 1967) aff'd, 400 F.2d 857 (3d Cir. 1968),
cert. denied, 395 U.S. 904 (1969). Essential to maintaining
such an action is that the complainant in fact have the right to
exclusive use and possession of the property at issue.
The plaintiff's trespass count is analytically
complicated by the relocation of the Ne-theast Women's
Center during the pendency of this lawsuit. Prior to June 16,
1986, the Center was located on the third floor of a three-story
office building at 9600 Roosevelt Boulevard in Northeast
Philadelphia. Testimony during the plaintiff's case-in-chief
revealed that the Center leased this office space from an
uninterested third party. While at this location, the Center's
offices were entered four times by a number of anti-abortion
protesters. These entries occurred on December 8, 1984;
August 10, 1985; October 19, 1985; and May 23, 1986.
According to the testimony of the plaintiff's witnesses, these
unauthorized entries, combined with the numerous other
regular protest activites, prompted the Center's landlord to
decline to renew the Center's lease. Consequently, the Center
was forced to move.
On June 16, 1986, the Center moved into its present
facility in an office building located off Comly Road in
) A-100
Northeast Philadelphia. This office building is situated in the
southeast corner of a parcel of land approximately 350 feet
long and 215 feet wide. Also within this parcel, to the west
of the office building, is a branch office of Mellon Bank. The
remainder of the parcel of land, constituting the substantial
majoriy of the property, is devoted to parking spaces and
“driveways” leading out onto Comly Road.
The Director of Community Relations for the Center,
Kate Strausser, testified that the majority of the 350-by-215
foot parcel was purchased by Comly Road Associates from the
Philadelphia Authority for Industrial Development. This deed
was introduced as "P-78". A smaller 75-by-200 foot portion
of this property--the portion on which the office building
housing the Northeast Women's Center now stands--was
purchased by and is currently owned by L.P. Partnership.
This deed was introduced as "P-79". The Northeast Women's
Center leases the middle portion of this office building
through an agreement with L.P. Partnership. To guard against
the unauthorized entry of protestors it had experienced at 9600
Roosevelt Boulevard, the Center equipped its new offices with
an elaborate security system. As of this date, there have been
no unauthorized entries at the Comly Road location.
SN eee
A-101
In its claim for trespass, the plantiff seeks both
retroactive relief in the form of money damages and
prospective relief in the form of a permanent injunction. The
claim for retroactive relief includes damages for the repair or
replacement of desterilized, destroyed, or otherwise damaged |
medical equipment, the expenses incurred in moving the
Center to its new location, and the costs of the security
systems and security guards. The claim for prospective relief
seeks an injunction limiting the number of protesters,
restricting them to a certain location, and limiting the manner
of their demonstrations. Due to the number of defendants
peripherally named in this count, the court has carefully
scrutinized the facts of this case in light of the elements of
common law trespass.
It is clear to the court that the plaintiff has the nght to
exclusive use and px .ession of that portion of the office
building it leased at 9600 Roosevelt Boulevard and to that
portion of the officed building it is now leasing from L.P.
Partnership at Comly Road. The plaintiffs right to recover
under common law trespass for the defendants’ unauthorized
entry onto all other areas of 9600 Roosevelt Boulevard or all
other areas of the 350-by-215 foot Comly Road parcel is far
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from clear. The plaintiff may be entirely correct that the
defendants’ presence immediately outside its offices
constitutes a trespass. The plaintiff may also be correct that
the First Amendment would not shield the defendants from
liability under the free speech clause. See Pruneyard
Shopping Center v. Robins, 447 U.S. 74, 81 (1980): Lloyd
Corp. v. Tanner, 407 U.S. 551, 569 (1972). But the plaintiff
cannot, however, assert these trespass claims with respect to
property it does not possess. As to any such trespass, the
Northeast Women's Center is not the real party in interest.
This reasoning is particularly critical with regard to the
dimensions of the prospective injunctive relief the plaintiff
seeks at its Comly Raod location. By the plaintiff's own
witness it was established that L.P. Partnership owns the
office building and the property immediately surrounding the
office building, and Comly Road Associates owns the
remainder of the land. Neither L.P. Partnership nor Comly
Road Associates is a plaintiff in this action. Thus, although
the Northeast Women's Center is the proper party to raise
claims for trespass to its own suite of offices, it cannot seek
relief for the trespass to property it does not possess.
Irrespective of whether the plaintiff can prove that neither L.P.
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Partnership nor Comly Road Associates consents to the
defendants’ continuing presence on their land, the plaintiff's
recovery--and, thus, it's cause of action--is limited to land it
possesses.
In view of this determination, the court concludes that
only claims of trespass to the Northeast Women's Center's
suite of offices may go to the jury in this case. The jury is
entitled to deliberate on claims that (1) a defendant personally
trespassed on the Center's property, or that (2) a defendant
directed another person to trespass on the Center's property.
After reviewing the plaintiff's evidence in light of this ruling,
the court will grant the following defendants’ motions for
directed verdicts on the trespass count: John Stanton, Linda
Hearn, John Connor, and Pasquale Varalio.
INTENTIONAL INTERFERENCE WITH CONTRACTUAL
RELATIONS CLAIMS
The plaintiff's final claim is the pendent count for
intentional interference with contractual relations. The plainuff
alleges that the defendants have interfered with the existing
employment contracts that it maintains with its employees. To
succeed on this theory under Pennsylvania law, the plaintiff
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must prove that the defendants (1) intentionally and improperty
interfered with the performance of a contract between the
Center and an employee and (2) that such interference resulted
in the employee's failure to perform the contract. Adler,
Barish.. Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416,
393, A.2d 1175, 1183 (1978), appeal dismissed and cert. denied
442 U.S. 907 (197% (adopting Restatement (Second) of Torts
§ 766 (1979)).
A prima facie case for this tort has been stated with
respect to the emplyment contracts the Center maintained with
its previous administrator Mary Banecker and with its
outgoing Director of Community Relations, Kate Strausser.
‘The plaintiff asserts that, as a result of the defendants’
activities, it was forced to outfit its facilities with a security
system. For the reasons set forth in the preceding discussion
of extortion, this claim will go to the jury only as against the
twenty-five defendants who entered the Center and Ms.
Walton and Corbett.
An order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
A-105
NORTHEAST WOMEN'S CENTER, INC.
C.A. No. 85-4845
v.
MICHAEL McMONAGLE, DENNIS SALDER,
JOHN STANTON, ANNE KNORR,
ROBERT MORAN, JOSEPH P. WALL,
ROLAND MARKUM, HOWARD WALTON’
HENRY TENAGLIO, STEPHANIE MORELLO,
ANNEMARIE BREEN, ELLEN JONES,
SUSAN SILCOX, PAUL C. ARMES,
WALTER G. GIES, JOHN J. O'BRIEN,
PATRICIA WALTON, KATHY LONG,
HELEN GAYDOS, DONNA ANDRACAVAGE,
JOAN GUERRA, LINDA HEARN,
‘JOHN CONNOR, MARGARET CAPONI,
MARY BRYNE, LINDA CORBETT
THOMAS McILHENNY, PASQUALE VARALLO
AND PATRICIA McNAMARA
ORDER
a ee ae ee eee
A-106
AND NOW, this 8TH day of May, 1987, for the
reasons set forth in the foregoing Memorandum, it is
ORDERED that:
1. With respect to the plaintiff's Antitrust count, the
DEFENDANTS.
2. With respect to the plaintiff's Racketeer Influenced
verdict of JOHN STANTON, LINDA HEARN, JOHN
CONNOR, AND PASQUALE VARALLO are GRANTED.
All other motions for directed verdict on this count are
DENIED.
3. With respect to the plaintiff's common law trespass
count the motions for directed verdict of JOHN STANTON,
LINDA HEARN, JOHN CONNOR, AND PASQUALE
VARALLO are GRANTED. All other motions for directed
verdict on this count are DENIED.
4. With respect to the plaintiffs common law
intentional interference with contractual relations count the
motions for directed verdict of JOHN STANTON, LINDA
HEARN, JOHN CONNOR, and PASQUALE VARALLO
A-107
are GRANTED. All other motions for directed verdict on this
count are DENIED.
BY THE COURT:
/s/ JAMES McGIRR KELLY, J.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NORTHEAST WOMEN’S CENTER, INC.
CIVIL ACTION
MICHAEL McMONAGLE, DENNIS SADLER,
DEBORAH BAKER, THOMAS HERLIHY,
JOHN STANTON, ANNE KNORR,
ROBERT MORAN, JOSEPH P. WALL,
ROLAND MARKUM, HOWARD WALTON,
HENRY TENAGLIO, STEPHANIE MORELLO,
A-108
ROLAND MARKUM, HOWARD WALTON,
HENRY TENAGLIO, STEPHANIE MORELLO,
ANNEMARIE BREEN, ELLEN JONES,
SUSAN SILCOX, PAUL C. ARMES,
WALTER G. GIES, JOHN J. O'BRIEN,
PATRICIA WALTON, KATHY LONG,
HELEN GAYDOS, DONNA ANDRACAVAGE,
JOAN GUERRA, LINDA HEARN
JOHN CONNOR, MARGARET CAPONI,
MARY BRYNE, LINDA CORBETT,
THOMAS Mc:ILHENNY, PASQUALE VARALLO,
and PATRICIA MCNAMARA
NO. 85-4845
AND NOW, this 8th day of May, 1987, whereas the
names of Linda Corbett and Patricia Walton were
inadvertently excluded from this court's grant of directed
verdict on the trespass count, * it is ORDERED that the court's
Bench Opinion of May 8, 1987 is AMENDED as follows:
ee,
A-109
l. Page 27, the sentence: “After reviewing the
plaintiff's evidence in light of this ruling, the court will grant
the following defendants’ motion for directed verdicts on the
trespass count: John Stanton, Linda Hearn, John Connor, and
Pasquale Varallo” is amended to include the names Linda
Corbett and Patricia Walton.
*See Bench Opionion at 18 nn.13 & 14
2. Paragraph 3 of the Order is amended to read:
" With r».pect to the plaintiffs common law
trespass count the motions for directed verdict of JOHN
STANTON, LINDA HEARN, JOHN CONNOR,
PASQUALE VARALLO, LINDA CORBETT, and
PATRICIA WALTON are GRANTERD. All other motions
for directed verdict on this count are DENIED.”
BY THE COURT:
/s/ JAMES McGIRR KELLLY J.
A-110
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NORTHEAST WOMEN'S CENTER, INC. CIVIL
ACTION
KELLY, J. FEBUARY
The plaintiff in this civil action is Northeast
Women’s Center, Inc. ("Center"), a Pennsylvania corporation
engaged in the business of providing pregnancy testing,
A-l1l
gynecological care, counseling, and abortion procedures. !
The forty-two individuals named as defendants are pro-life
activists who have protested spiritedly against abortion both in
front of and inside the Center. As a consequence of certain
incidents which occurred during the course of the defendants’
protest activities, the plaintiff has filed a civil complaint
charging the defendants with conspiring to destroy the
Center's business and property. Amended Complaint at para.
1. The plaintiff seeks recovery under three theories: a civil
violation of the Racketeer influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C 1964; a civil violation
‘in its complaint, the plaintiff avers that abortions
accoumt for approximately 35% of the Center's clients.
Amended Complaint at para. 5.
A-112
of the Sherman Antitrust Act, 15 U.S.C. 1; and several claims
involving common law torts. !
The original complain: was filed on August 20,
1985. On October 25, 1985, the court denied the defendants’
Federal Rule 12 (6)6 motions to dismiss and, on June 12,
1986, the court denied the plaintiff's request for a temporary
been placed in the court's mal pool. Still pending are fifteen
motions, six by the plaintiff and nine by the defendants.
These motions will be addressed in four categones: motions
on the pleadings, mouons for summary judgment, objections
to the United States Magistrate's discovery orders, and
—
' The third count. styled “Pendent State Law Claims”.
charges the defendants with commission of six
distinct common law tors: (1) intentional
interference with contractual relations: (2) assault:
(3) battery, (4) trespass: (3) imentional infliction of
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1. MOTIONS ON THE PLEADINGS
In their answers, the defendants filed two
counterclaims. The first counterclaim, alleges wrongful use of
process in connection with the bringing of this law suit. The
first counterclaim, premised on the same reasons as the first,
seeks sanctions pursuant to Rule 11 of the Federal Rules of
Civil Procedure. The plaintiff has moved to dismiss both
counterclaims for failure to state a claim upon which relief can
be gramed. In response, the defendants have moved to strike
the plaintiff's motion as untimely or, in the alternative, for
summary judgment on the counterclaims.
The action for wrongful use of civil
proceedings is governed by statute in Pennsylvania. 42 Pa.
Cons. Stat. Ann. §8351 (Purdon 1982). One who initiates or
continues a civil action against another is liable for wrongful
use of process if (1) the action was brought or maintained in a
grossly negligent manner or without probable cause (2) for an
improper primary purpose, and (3) the proceedings were
terminated in the defendants’ favor. Id. Because this case has
mot yet gone to trial, there has been no opportunity for the
proceedings to be terminated in the defendants’ favor.
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Consequently, the defendants’ first counterclaim is unripe and
will be dismissed.
Federal Rule 11 was enacted to re-emphasize
the responsibilities of attorneys and to reinforce those
obligations by imposing sanctions for failure to bear those
responsibilities. See Fed. R. Civ. P. 11 advisory committee's
note to 1983 amendment. The defendants have failed to offer
any authority for their proposition that Rule 11 could serve as
a cause of action independent from a substantive claim. Even
in the event Rule 11 could be interpreted as the defendants
urge, it, too, would be unripe. Treating the counterclaim as a
motion for sanctions against the plaintiff, the court considers
sanctions unwarranted on the basis of the defendants’ papers
and the motion will be denied.
Ul. MOTIONS FOR SUMMARY JUDGMENT
After unsuccessfully moving to dismiss the
complaint for failure to state a claim and following further
discovery, the defendants now seek summary judgment on
each of the plaintiff's three counts.! Federal Rule 56(c)
| The defendants’ motions for summary judgment on
the RICO, antitrust, and contractual interference
claims are documents #116, 115, and 114 respectively.
A-115
instructs a district court to enter summary judgment when the
record reveals that "there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law." This rule provides the court with a useful tool
when the critical acts are undisputed, facilitating the resolution
of a pending controversy without the expense and delay of
conducting a trial made unnecessary by the absence of factual
dispute. Perterson v. Lehigh Valley Dist. Council, United
Brotherhood of Carpenters & Joiners, 676 F.2d 81, 84 (3d
Cir. 1982); Goodman v. Mead Johnson & Co,534 F.2d 566,
573 (3d Cir. 1976); cert, denied, 429 U.S. 1038 (1977).
Disposing of a matter by summary judgment is inappropriate,
however, where the evidence before the court reveals a
genuine factual disagreement requiring submission to a jury.
Anderson v, Liberty Lobby, Inc, ____, U.S.__s_., 106 S.
Ct. 2505, 2512 (1986). “[E]"ven if the preponderance of the
evidence should appear to lie on the moving party's side, the
court's function is not to decide issues of fact, but only to
determine whether any issue of fact exists to be tried." _Ness
v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981). Where a
The plaintiffs consolidated response is document
#120.
A-116
material factual disagreement exists, a trial is necessary to
reslove the conflict. Peterson, 676 F.2d at 84.
In conducting its analysis, the court must view
all inferences in the light most favorable to the nonmoving
party, Continental Ins. Co. v, Sodie, 682 F.2d 436, 428 (3d
Cir. 1982), must resolve all doubts against the moving party,
Hollinger V. Wagner Mining Equip. Co., 667 F.2d 402, 405
(3d Cir. 1981), and must take as true all evidence of the
nonmoving party that conflict with that of the movant,
Anderson, 106 S. Ct. at 2513. After applying these standards
to the motions now pending, I am satisfied thast a genuine
factual dispute =xists as to each of the plaintiff's dees counts.
Although the court agrees that the plaintiff's
RICO claim is novel, I have previously ruled that conspiring to
destroy a business engaged in interstate commerce by means
of robbery and extortion constitutes a cognizable claim for
relief under 18 U.S.C. 1964. See Northeast Women's
Center, Inc. v. McMonagle, No. 85-4845, slip op. at 3-4
(E.D. Pa. Oct. 25, 1985). I disagree with the defendants that,
by withdrawing its claim for lost revenue, the plaintiff has
foreclosed its ability to demonstrate that it is a business
engaged in interstate commerce. Moreover, the plaintiff has
A-117
offered sufficient facts which, if fully proved at trials and
believed by a jury, would establish the predicate acts of
robbery and extortion. Finally, that the plaintiff claims only
increased costs to its business occasioned by the defendants’
conduct does not eviscerate the plaintiff's RICO count. The
increased cost of doing business, incurred by the plaintiff in its
efforts to continue to provide its services over the defendants’
protests, may constitute a proper business injury within the
meaning of 18 U.S.C. 1964 (c).
The plaintiff's antitrust claim is equally novel
but, like the RICO count, the court has already ruled that the
plaintiff has stated a cognizable claim for relief. The
defendants argue, however, that the plaintiff's abandonment of
its claim for lost revenue bars the possibility for an antitrust
recovery. Although this development further extends the
plaintiff's already unusual antitrust theory, I am nevertheless™
inclined, on the weight of the facts asserted, to allow this claim
to proceed to trial. At trial, however, the plaintiff will be
expected to prove, by competent evidence, that the defendants’
conduct constituted an actual, unreasonable restraint on trade
or commerce. _See II E.D._Kintner, Federal Antitrust Law,
9.1, 5 (1980). Proof of injury to the plaintiff's business will
A-118
To the extent the defendants seek to justify unlawfulk acts by
an appeal to moral conviction, their defense is misplaced.
The Supreme Court of the United States has
concluded that the constitutional right of personal privacy
encomposses the abortion decision. Roe, 410 U.S. at 154.
This position was specifically reaffirmed by the Court in 1983,
Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416, 420 (1983), and again in 1986, Thornburgh, 106
S. Ct. at 2178.
Article [II of the Constitution vests the judicial
power of the United States in the Supreme Court and in such
inferior courts as the Congress Chooses to establish. These
inferior courts, of which of which this district is one, are
absolutely duty-bound to follow the decisions of those courts
retaining appellate jurisdiction over them. See H. Black, The
Law of ludicial Precedents 10-11 (1912). Nothing about this
duty is optional or discretionary. The sentiments of any
individual judge notwithstanding, the pronouncements of the
Supreme Court become the law of the land, a thing decided.
=
i lO
Eee -~— = ~~ —_ —
re. we eae a eh ——
A-119
This court is entirely without authority to modify or otherwise
reevaluate those rulings. !
As an alternative ground for introducing
evidence of their beliefs on abortion, the defendants assert that
this evidence is admissible for the purpose of proving motive
or justification. Although offering proof of facts to establish
motive or intent is generally recognized by the Federal Rules
of Evidence, a threshold issue nevertheless remains. To be
admissible at trial, the evidence the defendants propose to offer
must be relevant. Fed. R. Evid. 402.
From what can be gleamed from their
Memorandum of Law the defendants intend to introduce into
evidence their moral objections to the plaintiff's choice of
business. On the weight of that evidence, the defendants
intend to argue to the jury that their moral objections afford a
legal justification for their actions that may aleviate any
otherwise appropriate civil liability. As a matter of law this
position is indefensible.
The United States Court of Appeals for the
| See United States ¢x rel Lawrence v. Woods, 432 F.2d
1072, 1075-76 (7th Cir. 1970), con. denied, 402 U.S. 983
(1971); 1 W. Blackstone. Commentaries *69.
A-120
offered by the defendants. In United States v. Malinowski,
472 F.2d 850 (3d Cir.), cer, denied, 411 U.S. 970 (1973), a
federal taxpayer had attempted to dramatize his opposit.on to
the Vietnam War by filing an improper employee withholding
form. In his defense, the taxpayer sought to argue that,
because of his well-intentioned purpose in misfiling, he could
not be heid culpable under a criminal statute requiring “willful”
conduct.
The court unanmously rejected the taxpayer's
suggestion “that a member of society can be absolved of the
responsibility for obeying a given law of the community, state,
or nation if he can prove a sincere, abiding, and goor faith
objection to the direct or indirect object of 9 the law.” Id, at
857. In the court's view, an individual’smotivation that he
acted under a sincere belief that he was breaking the law for a
reble cause could not be accepted as a legal defense for his
actions. Id. at 858 (quoting United States vy. Moylan, 417
F.2d 1002, 1009 (4th Cir. 1969), com. denied, 397 U.S. 910
(1976). See also United States vy. Macintosh, 283 U.S. €05,
533 (1931) (Hughes, J., dissenting); Kaho vy. United States.
753 F.2d 1208, 1215-16 (3d Cir. 1985).
A-121
It is apparent to this court that the defendants
entertain an honest and unwavering belicf that abortion is
morally wrong and should be legally condemned. However,
specific constitutionally preserved avenues for changing
existing laws are well-defined in this country. Public attitudes
can be swayed through legitimate exercises of free speech and
expression. Differing values can be instilled through the
process of education. Lawmakers embracing the detenants’
beliefs can be campaigned for, ciected, and lobbied.
Petitioners can challenge the Supreme Court to re-examine its
position in light of new developments or new analysis.! The
Constitution itself may even be amended.
| See R. McCloskey, The American Supreme Court 23
(1960) ("the Supreme Coun has seldom, if ever, flatly
and for very long resisted a really unmistakable wave
of public sentiment.”)__See also Thomburgh vy.
American College of Obsiciricians & Gynecologisis,
__US._. 106 S. Ct. 2169 (1986) (5-4 decision);_Akron
vy. Akron Center for Reproductive Health. Inc. 462 US.
416 (1983) (6-3 decision): Roc vy. Wade, 410 Us. II!
(1973) (7-2 decision).
See _ generally O. W. Holmes, The Path of the Law. 10
Harv. L. Rev. 457 (1896):
Yet it is certain that many laws have been
enforced in the past, and it
is likely that some ary enforced sow, which are
condemnd by the most enlightened opinion of the
time. or which at all events pass the limit of
interference as many consciences would draw
it. Manifestly, therefore,
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The last time the defendants looked at the
United States
Constitution, it still did not provide the right of
abortion.
And although a majortiy of the Supreme Court
have so
determined, this does not prevgent the people
of the
United States from determining otherwise, not
while
feigning the pretext of a democracy .... The
courts,
as the traditional bastions of truth-finding,
should not
fear giving these defendants their day in court to
defend
their homes and life savings.
Id. at 2-3.
To the extent the defendants seck a
reconsideration in this forum of the decision in Roe v, Wade,
410 U.S. 111 (1973), their intentions will be disafijilinted.
A-123
a legal cause. Restatement (Second) of Torts 774 (A) (1) (0)
(1979). The plaintiff has averred that the defendants have
interfered with the existing employment contracts it maintains
with its employees by inducing them to resign. Further, the
plaintiff has averred interference with the prospective contracts
costs, and a lost lease qualify as potential grounds for a 774
(A) (1) (b) recovery. !
Il. OBJECTIONS TO DISCOVERY ORDER
In an effort to expedite this matter to mal, the
resolution of discovery disputes was referred to United States
Magistrate Edwin Naythons. On November 7, 1986,
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discovery monons. Both the plaintiff and the defendants have
filed objections to the magistrate's order.
Rule 72(a) of the Federal Rules of Civil Procedure
instructs the district court to modify or set aside any portion of
the magistrate’s order determined to be clearly erroneous or
contrary to law. After a review of the parties’ objections, the
court will modify only one of the magistrate’s rulings.
The defendants have objected to the
magistrate’s order denying them access to the names and
addresses of the plaintiff's patients.! The magistrate
considered the defendants request for this discovery in light
of the Supreme Court's recent decision in Thornburgh vy.
Amencan College of Obsicincians & Gynecologists, U S.
. 106 S. Ct. 2169 (1986). In Thornburgh. the Court
invalidated a Pennsylvania statute requiring a woman seeking
an abornuon to report certain information about herself which,
when compiled, would make actual identification of the
“raise the spectre of public exposure and harassment of
women who choose to exercise their personal, intensely
———
| The defendants’ objection relates to defendants’
—~y #7, 9 17, 19, 21, 23, 25, 27, W, 31, SB,
and 65.
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private right, with their physicians, to end a pregnancy(.) . . .
they pose an unacceptable danger of deterring the exercise of
that right.” Jd. at 2182. This conclusion, the magistrate
ruled, required that the defendants discovery be demied.
potentially idenufying personal facts, does not offend the
A-126
whether any of the plainnff's clients had ever been removed
from the Center by means of emergency transportation. An
affirmative answer to this question might provide the
defendants with an alternate causanon defense to the plainoff s
claims of business injury.
Question 8! requests a copy of the plaintiff's
tax returns for each year of claimed business interference.
Although the plaintiff produced those portions of its tax
renarns volating to ies inceecsed costs claims, the defendants
have the nght to test the accuracy and genuineness of those
entries against the plaintiffs complete tax returns. The
plaintiff correctly observes that its tax returns, ordinarily
pnviuleged and confidennal, are properly discoverable when the
plaintiff itself places its financial circumstances at issue. By
alleging that the defendants have launched an legal conspwacy
to destroy its business and, as a consequence of that
waived us pnvilege.
Question 97 seeks information on the
counseling services provided to the plaintiff's clients.
Questions | 13-116 ask whether the plaintiff has ever been
named as defendant in any malpracnice action. Like Question
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26 above, answers to these questions might offer a causation
defense wo the defendants and, therefore, could lead to relevant
adrmssible evidence.
TV. MOTIONS IN LIMINE
Of the eight pending motions in limine filed by
the parties, the plaintiff's request to preclude evidence of
justification or motive is central to the conduct of this trial.
The plaintiff seeks the court to instruct the defendants not to
offer evidence of their beliefs regarding abortion or to testify
The plainaiff argues that such evidence would not constitute a
legal justification for their actions and, therefore, is not
relevant to this case.
The defendants vigorously object. They
contend that their beliefs are the sine qua non of their conduct
and that they must not be precluded from asserting the defense
of justification. They argue that it is the plaintiff who “has
chosen to litigate the abortion issue". Defendants’ Answer to
Plaintiff's Motion to Preclude Justification Defense at 2. The
defendants have stated their intentions clearly:
A-128
be deemed insufficient absent further proof that such injury
amounted to an unreasonable restraint on trade.
Finally, the defendants seek summary
judgment on the plaintiff's claim for intentional interference
with contractual relations. The Second Restatement of Torts!
recognizes recovery under this tort for any pecuniary loss
resulting from as third party's failure to perform under a
contract allegedly interfered with by the defendants.
Restatement (Second) of Torts 776 (1979). The defendants
contend that the plaintiff's asserted damages--security
expenses, loss of lease, legal expenses, increased personnel
expenses, and the repair or replacement of damaged property--
can4 not qualify as losses resulting from failure to perform
under the contract. At least as to some of these asserted
damages, the court disagrees.
The plaintiff is entitled to compensation for all
consequenual losses for which the contractual interference was
| The Restatement's formulation of the common law
tort of intentional interference with contractual
relations has been adopted by the Supreme Court of
Pennsylvania.
482 Pa. 416, 393 A.2d 1175, 1181
Creskoff v. Epstcin
(1978), appeal dismissed and cen. denied, 442 1S. 907
(1979),
4
A-129
However, the defendants may have instead
chosen to reject these legitimate means for change and to
pursue their objetives through civil and criminal misconduct.
Furthermore, they sek to premise a legal immunization for
their actions on an appeal to morality. This reasoning is
flawed. it is certainly true that to act as one feels morally
compelled to act is within an individual's prerogative. it is
equally true that being morally right is no excuse for being
civilly wrong. The plaintiff has a protected right to own and
enjoy its business and property. if the defendants wrognfully
damaged that property, they are civilly liable to the plaintiff
notwihstandig thir noble intentions. !
nothing but confusion of thought can result
from assuming that the rights
of man in a moral sense are equally rights in
the sense of the Constitution
and the law ..... No one will deny that wrong
statutes can be and are enforced and we should
not all agree as to which were the wrong ones.
ld, at 460.
11 Mohandas Gadhi, perhaps the most lauded
proponent of civil disobedience in history, denounced
the resort to violence as a means of protest:
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