concurring and dissenting:
While I concur in the result propounded by the majority, I respectfully dissent to the conclusion reached by the majority that the case does not implicate constitutional rights to picket but may be resolved by applying common law principles.
The entire thrust of the holding of the majority is to the effect that in a mall or industrial district, a combination of business and economic interests may consolidate in a consortium to control the area by instituting an area-wide policy in advance, with very specific prohibitions and restrictions against Union activities such as picketing, and thereby successfully prevent job actions of any kind by a Union. It is conceivable in a mall or an industrial park that such a grouping could involve thousands of employees, very large businesses and economic interests, which in effect would be circumscribed in such a way that employees could not effectively deal with grievances except by patrolling the perimeters of such an area. In such a case, a perimeter patrol might be more violative of public interests, subject to prohibition because of interference with traffic and persons having no relationship to the economic interests under protest and thereby would be subject to injunctive relief.
Under the majority’s reasoning, with prohibitions enacted by the property owner as to the private property surround*345ing a business, a Union could be prevented from going upon that property to make a legitimate protest. This would have the effect of turning back legislation, concerning work-related grievances, developed over the last fifty years, which I believe has protection of the Pennsylvania Constitution. For this reason I respectfully believe, in avoiding the constitutional issue the majority holding in resolving the matter on common law principles, sends a message that can radically alter the rights of Unions in this Commonwealth.
As stated by the appellees:
When the General Assembly passed the Labor Anti-Injunction Act in 1937, Act of June 2, 1937, P.L. 1198, § 1, 43 Pa.Stat. § 206a, et seq., the legislators were particularly concerned with the power of property owners aided by governmental authority for corporate ownership to overpower workers in their rights to organize and protect conditions of employment. 43 Pa.Stat. § 206b(a). Consequently, whenever a legitimate labor dispute arose, they established an absolute prohibition on the power of courts to enter an injunction limiting that protection of those employee rights, except on certain specific terms and conditions. 43 Pa.Stat. § 206c(a), (b), (c); § 206f(e), (g), CD, (m)-
Appellees’ supplemental brief at 10. Thus a public policy has been created by the General Assembly supporting the rights of Unions to picket in cases such as this and it will not depend upon whether or not Coatesville and Giant did or did not establish standards and procedures upon which persons could or could not picket. Appellees correctly allege it would have been incumbent upon Coatesville and Giant, had they promulgated such standards, to establish there were alternative means which would be effective to communicate the message founded by the Unions in order for injunctive relief to be granted, as this is not a political action subject to Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981) and Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. *346Co., 512 Pa. 23, 515 A.2d 1331 (1986) but an economic one with totally different considerations.
In this case, the only effective means of conveying a message to Giant and the people patronizing Giant was at the location of Giant. To place them on the periphery or in any other area of the mall would have been totally ineffective and probably disruptive of the activities of innocent business interests and the public. Although Tate, supra, was a political action and this one is economic, the balancing test espoused by Tate would be applicable to such a determination, Tate relying on tests espoused by the United States Supreme Court in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) which said:
It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.
Id. at 81, 100 S.Ct. at 2040, 64 L.Ed.2d at 752.
Again, I agree with appellees and the trial court who suggest that Unions have a constitutional right, both under the Federal and State Constitutions to engage in peaceful picketing to communicate their grievances. In N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 112-13, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1955); Warren v. Motion Picture Machine Operators, 383 Pa. 312, 317, 118 A.2d 168 (1955). The majority correctly points out that despite cessation of picketing by the Union, the question raised by this case is not moot as similar picketing is ongoing throughout the Commonwealth. Unquestionably, the constitutionality of such picketing will be an issue in those instances where the property owner had the foresight to limit picketing as suggested by the majority. That right is specifically protected by the Labor Anti-Injunction Act, supra, and the decision of the trial court denying the preliminary injunction requested by Giant and Coatesville in this case, therefore, must be affirmed.