Coatesville Development Co. v. United Food & Commercial Workers

BECK, Judge,

concurring:

I agree with the majority that the trial court did not abuse its discretion by denying appellants’ request for a preliminary injunction against all union picketing at the Thorndale Shopping Center. A preliminary injunction is a special equitable remedy which need not be granted in every case which involves a continuing trespass on private property.

In Wilkes-Barre Independent Company v. Newspaper Guild, Local 120, 455 Pa. 287, 314 A.2d 251 (1974), labor union pickets blocked two of the ten entrances to the employer’s plant. The employer sought a preliminary injunction, the trial court denied relief, and the employer appealed. Although the Pennsylvania Supreme Court concluded that the union had seized the employer’s private property, the denial of a preliminary injunction was affirmed. The Court noted that since the union had not prevented the employer from gaining access to his plant, the trial judge had been correct in finding that there were no imperative circumstances requiring injunctive relief.

In the instant case, appellant Giant obtained an initial injunction limiting the number of picketers. The union agreed to abide by the terms of this order. Appellants then sought a broader preliminary injunction which would wholly exclude union picketers from the parking lot in front of the Giant Super Market. The trial judge denied this request, *342but noted that if the picketers obstructed the store entrance or harassed shoppers, he would hear argument on whether to hold the union in contempt for violating the existing injunction. Under these circumstances, the trial court did not abuse his discretion by allowing union picketing to continue. As in the Wilkes-Barre Independent Company case, appellants’ need for immediate relief from interference with their property is not so compelling as to justify appellate court intervention at this stage of the proceedings.

Apart from the narrow question of our standard of review of the denial of a preliminary injunction, a few general comments about private property and free speech are in order. New would deny that owners of private property have important rights which merit legal protection. However, in the case of land owned by business enterprises which invite the patronage of the public, there are competing interests which deserve to be taken into account. The walkways and parking lots that surround commercial establishments are not essentially private—at least in the same sense that residences, or offices, or the interiors of discrete stores are private. These outdoor areas often closely resemble the public streets and squares that have been used throughout the history of our country as a forum for the citizenry. See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 90, 100 S.Ct. 2035, 2045, 64 L.Ed.2d 741 (1980) (Marshall, J., concurring). Indeed, in many regions, developers and promoters have succeeded in turning a shopping complex into the principal center of community activity. Thus, a general ban on picketing at the outskirts of a shopping complex significantly restricts the means by which members of the community can convey ideas and exchange information.

This does not mean that unions should have as much a right to demonstrate outside a shopping center as in a city park. My point is rather that the legal system ought to accommodate the interests of all of the parties who are affected by shopping center picketing. The interests to *343which I refer are: 1) the property owners’ interest in controlling their land; 2) the store owners’ interest in running their businesses without substantial disruption; 3) the labor union’s interest in speaking out in order to promote the welfare of its members (and more generally, the interest of individuals in having a forum in which to comment on matters of public concern); and 4) the public’s interest in gaining ready access to information which will allow shoppers to make an informed decision concerning which stores they wish to patronize. In order for justice to be done, courts must develop a legal framework for balancing these factors. There are at least three potential sources for such a framework: the constitution, the common law, and the statutory law of this Commonwealth.

Appellants argue that in Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Company, 512 Pa. 23, 515 A.2d 1331 (1986), the Pennsylvania Supreme Court conclusively determined that there is neither a constitutional right nor a common law right to picket on private property. We need not reach this issue. However, even assuming that appellants are correct, nothing would prevent the General Assembly from explicitly authorizing reasonable public use of outdoor commercial property for communicative activity. The state legislature has broad authority to regulate the use of private property in the public interest. See Western Pennsylvania Socialist Workers, 512 Pa. at 37, 515 A.2d at 1339 (plurality opinion). This regulation may include imposing limitations on a landowner’s right to exclude trespassers—so long as the regulation does not so thoroughly deny a landowner the use of his land as to constitute a taking of property without just compensation. See Pruneyard Shopping Center, supra (rejecting federal constitutional challenge to California Supreme Court decision preventing shopping mall owner from banning political solicitation on his property).

Of the features which distinguish this society from others, few are of more importance than the extraordinary value which we as a people attach to freedom of expression. *344Apart from any affirmative rights which appellees may have to picket, the Commonwealth itself has an interest in ensuring that appellees have a fair opportunity to communicate their message. The General Assembly should advance this interest by passing appropriate legislation.1

I agree that the trial court order should be affirmed.

. As a first step, the legislature could amend Pennsylvania’s Labor Anti-injunction Act so as to authorize trial courts to take free speech concerns into account when deciding whether to issue an order restraining union picketing. The current Act does not explicitly protect peaceful communicative activity by unions on private property. See Pa.Stat.Ann.tit. 43 § 206a-r (Purdon 1964).