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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FREDERICK E. OBERHOLZER, JR AND : IN THE SUPERIOR COURT OF
DENISE L. OBERHOLZER : PENNSYLVANIA
:
:
v. :
:
:
SIMON AND TOBY GALAPO :
: No. 794 EDA 2020
Appellants :
Appeal from the Judgment Entered April 1, 2020
In the Court of Common Pleas of Montgomery County
Civil Division at No: No. 2016-11267
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
CONCURRING/DISSENTING STATEMENT BY STABILE, J.:FILED MARCH 07,
2022
I concur fully with the Majority’s able discussion and summary of
applicable legal principles in its analysis of this case. I, however, respectfully
dissent from the Majority’s holding to vacate the trial court’s judgment and
amended injunction and to remand this case to the trial court with direction
to reconsider its injunctive remedy because it applied an incorrect standard.
I believe that to be unnecessary because the relief ordered by the trial court
comports with the applicable standard governing content-neutral injunctions
that have the effect of restricting speech.
As the Majority correctly notes, the Court in Madsen v. Women’s
Health Center, Inc., 512 U.S. 753 (1994), recognized that the standard
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* Retired Senior Judge assigned to the Superior Court.
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time, manner and place analysis for assessing the constitutionality of content-
neutral regulations is not the appropriate test when assessing the
constitutionality of a content-neutral injunction. The Madsen Court reasoned
that a higher level of scrutiny is required when assessing injunctions (as
opposed to ordinances) that affect content-neutral speech because injunctions
carry greater risks of censorship and discrimination, since they are remedies
imposed for violations (or threatened violations) of a legislative or judicial
decree. Id. (citing United States v. W.T. Grant Co., 345 U.S. 629, 632-
633 (1953)). Therefore, because the standard time, place, and manner
analysis is not sufficiently rigorous to assess the constitutionality of an
injunction that affects content-neutral speech, the challenged provisions of
such an injunction must be examined under the higher standard of whether
the injunction burdens no more speech than necessary to serve a significant
government interest. Madsen, supra.
To ascertain what limits, if any, may be placed on protected speech, the
Court often has focused on the “place” of that speech, considering the nature
of the forum the speaker seeks to employ. Frisby v. Schultz, 487 U.S. 474,
479 (1988). The Court’s cases have recognized that the standards by which
limitations on speech must be evaluated ”differ depending on the character of
the property at issue.” Id. (citing Perry Education Ass’n. v. Perry Local
Educators’ Ass’n., 460 U.S. 37, 44 (1983)). With respect to the home, it is
well-established that the government has a significant interest in protecting
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the privacy of a person’s home. “The State’s interest in protecting the well-
being, tranquility, and privacy of the home is certainly of the highest order in
a free and civilized society.” Frisby, 487 U.S. at 484 (citing Carey v.
Brown, 447 U.S. 455, 471 (1980)). One important aspect of residential
privacy is protection of the unwilling listener. A special benefit of the privacy
all citizens enjoy within their own walls, which the State may legislate to
protect, is an ability to avoid intrusions. Frisby, 487 U.S. at 485.1 Thus, the
Court repeatedly has held that individuals are not required to welcome
unwanted speech into their own homes, and that the government may protect
this freedom. Id. In the present case, it is not disputed that the object of the
trial court’s injunction was to address Appellants’ actions that were unlawfully
interfering with Appellees’ privacy interest in their home by the intentional
targeting and intrusion of anti-hate and anti-racist messages into Appellees’
home. Appellant’s husband candidly admitted that the placement of the signs
in the rear of their yard facing Appellees’ home was meant to protest behavior
which he perceived as being racist towards himself, his wife, and his family.
The trial court took a very measured and narrow approach to fashioning its
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1 Frisby addressed the validity of a township ordinance that prohibited
picketing before or about the residence or dwelling of any individual. Although
the point has been made that a higher level of scrutiny is warranted when
examining an injunction as opposed to an ordinance, it would seem Frisby’s
recognition of the special protection afforded unwanted intrusions in one’s
home when examining an ordinance is more compelling in the context of
examining the constitutionality of an injunction restricting speech.
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injunction to protect Appellees’ privacy interest in their home by ordering only
that the signs be positioned so as not to face Appellees’ property. When this
initial directive proved ineffective because the messages nonetheless could be
read through the back of the signs, the court entered an amended injunction
(now on appeal) ordering that the sign material be opaque so that the
messages could not be seen even when the signs were turned away from
Appellees’ home. The trial court did not ban or seek to modify any content of
the offending signs. It did not limit the number of signs or the number of
messages that could be posted. No restriction was placed on the time when
the signs could be placed, the location of the signs upon Appellants’ property,
or who may see the signs other than Appellees. In sum, the only restraint the
court imposed upon Appellants’ personal protest against Appellees was to
construct the signs of opaque material and to face the signs away from
Appellees’ home. In my opinion, the trial court took the most conservative
approach to enjoining Appellants’ conduct that burdened no more speech than
necessary to serve a significant government interest to address the unwanted
messaging targeted at Appellees that could be seen from within the privacy of
their home. Upon review of the court’s amended injunction, I cannot fathom
a more narrowly tailored remedy under the more stringent standard not to
burden speech any more than necessary than that ordered by the trial court.
Under these circumstances, I would conclude that the trial court’s improper
reliance upon a time, place and manner standard to fashion its injunctive
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remedy was harmless error not warranting a remand. I, therefore, disagree
with that part of the Majority’s decision to vacate the trial court’s judgment
and injunction so that the remedy ordered may be examined under the stricter
standard of Madsen. It is my opinion that standard already has been met.
I find the cases cited by the Majority, whereby it feels it has no choice
but to order a remand, to be distinguishable from the present matter. See
Majority Memorandum at 51, n.24 (“[w]hen a trial court has applied an
incorrect legal standard, we should vacate and remand.”). While I cannot
quibble with the general proposition that a remand ordinarily is in order when
an incorrect legal standard is employed, I do not find a remand necessary
where the error here is harmless, since the injunctive remedy ordered by the
trial court comports with the Madsen standard. Nowhere in the cases cited
by the Majority do I find a mandate for remand where the error is harmless.
In fact, in the lone Pennsylvania Supreme Court case cited by the Majority,
Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), discussed more fully,
infra, it was the Court’s statement that when “a reviewing court applies the
incorrect legal standard, our court generally will remand the matter with
appropriate directions.” Id. at 1057 (emphasis added). This statement does
not compel a remand every time an error is made in the standard employed.
In the first of two Superior Court cases cited by the Majority, In re M.B.,
228 A.3d 555 (Pa. Super. 2020), the trial court expunged the record of M.B.’s
Section 302 commitment. In its accompanying opinion, the trial court
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explained that the PSP “bore the burden of establishing via clear and
convincing evidence that M.B.’s commitment was sufficient and complied with
the Mental Health Procedures Act.” This statement of the law was incorrect,
since the trial court erroneously held PSP to a higher standard of proof than
the law mandates. This Court therefore vacated the portion of the trial court’s
order that expunged the record of M.B.’s Section 302 commitment. Upon
remand, with the correct standard employed, it was possible the PSP could
prevail, thus the error was not harmless.
In Barak v. Karolizki, 196 A.3d 208, 222 (Pa. Super. 2018), wherein
a lis pendens was filed against a piece of real estate, the trial court applied
the wrong legal test — namely, the standard for a preliminary injunction —
and ordered the court clerks to remove the lis pendens from their judgment
index. To properly determine whether a lis pendens notice should be stricken
from judgment indices, we noted our appellate courts have developed a two-
part test; step one is to ascertain whether title is at issue in the pending
litigation. Id. (citing In re: Foremost Industries, Inc. v. GLD, 156 A.3d
318, 322 (Pa. Super. 2017)). If this first prong is satisfied, the analysis
proceeds to a second step where the trial court must balance the equities to
determine whether (1) the application of the doctrine is harsh or arbitrary and
(2) whether the cancellation of the lis pendens would result in prejudice to the
non-petitioning party. Id. We remanded for the trial court to apply step two
of the lis pendens test having found that the first step already was satisfied.
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It is obvious that when comparing the erroneous standard used by the trial
court with the correct standard that a wholly different result could be reached.
The error was not harmless.
In Clay, supra, our Supreme Court considered whether this Court
applied an incorrect standard of review with respect to a claim that the
verdict was against the weight of the evidence. This Court had held the trial
court’s decision was an abuse of discretion and vacated Appellees’
convictions. The Supreme Court concluded that we abused our discretion
by employing an incorrect standard of review by erroneously substituting
our own conclusions for those of the jury and the trial court. The Court
observed that it was evident from the Superior Court’s opinion that the
decision was not based on a determination that the trial court exceeded its
limits of judicial discretion or invaded the province of the jury. This Court
simply disagreed with the jury’s verdict and improperly substituted its own
conclusions therefor. Accordingly, the Supreme Court reversed and ordered
a remand for reconsideration under the proper standard. The error by this
Court was not harmless. The trial court’s exercise of discretion in
determining whether the evidence was against the weight of the evidence,
although different from how this Court may view the evidence, could very
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well be affirmed as within the trial court’s discretion upon remand. The error
was not harmless. 2
On the other hand, our Supreme Court has on at least one occasion
declined to order a remand where the wrong legal standard was applied,
opting instead to address the error itself. In Commonwealth v. Widmer,
744 A.2d 745 (Pa. 2000), the Supreme Court concluded that this Court
improperly merged the standard of review for a weight of the evidence claim
with the standard of review for a sufficiency of the evidence claim. Given
this error, the Supreme Court could not then accept this Court’s assessment
of the trial court’s exercise of discretion. In fashioning a remedy to address
this error, the Supreme Court held
Normally where the reviewing court applies the incorrect
legal standard our court will remand the matter with
appropriate directions. However, given the fact that the
parties in this case have already been through the
appellate process twice, in the interest of justice we will
review the question of whether the trial court abused its
discretion in awarding a new trial on the grounds that the
verdict was against the weight of the evidence.
Id. at 752-753. Similarly, here the parties have expended great time and
energy litigating this dispute between them with the trial court issuing an
injunction and an amended injunction. The material facts are not in dispute.
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2 For sake of brevity, I do not review individually the federal cases cited by
the Majority, which are only persuasive authority to this Court, as I find them
similarly distinguishable.
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Review of the amended injunction under the correct standard is as a matter
of law. A more narrow injunction cannot be fashioned that would burden
speech more than necessary to address Appellants’ unwanted intrusion of
messaging into the Appellees’ home. In the interests of justice, I believe
we too may review the scope of the amended injunction to decide as a
matter of law whether the limited injunction granted by the trial court
comports with the Madsen standard.
I previously stated my belief that while the trial court improperly
looked to a time, manner and place analysis in coming to the injunctive relief
it ordered, the relief nonetheless burdened no more speech than necessary
to serve the significant government interest in protecting the privacy of the
Appellees’ home. As such, I do not believe a remand is necessary to come
to the same conclusion and therefore, any error in the standard used was
harmless. I therefore respectfully dissent from that part of the Majority’s
decision to vacate the judgment and amended injunction in order to remand
this matter for a determination under the Madsen standard.
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