Sociedad Comercializadora Y De Servicios Unifrutti Traders Limitada v. Quizada

*64OLSZEWSKI, Judge,

dissenting.

It is only after careful study of the majority’s thoughtful opinion that I decide that I cannot join in its disposition. The majority concludes that the trial court improperly denied defendants/appellants’ motion to dissolve an injunction against them. It' thus reverses the order and, as I understand it, effectively dissolves the injunction. Since this course of action grants appellants more relief than they are entitled, I must respectfully dissent.

Whether the trial court improperly denied the petition to dissolve because it improperly found facts upon which the injunction was granted, the issue addressed by the majority, is irrelevant to resolve the issues presented by defendants/appellants. It is undisputed that there has never been a hearing on the merits of the underlying contract in this case. The only relevant question, as I see it, is whether defendants were entitled to a prompt hearing under Rule 1531(f) of the Pennsylvania Rules of Civil Procedure. If they were, the injunction dissolved as a matter of law for want of an actual hearing. On the other hand, if they were not, no prompt hearing was necessary and the'petition to dissolve was properly denied.

The salient facts are amply stated by the majority but deserve brief recitation here. Plaintiffs filed an action against defendants seeking to enforce an oral settlement. Allegedly, defendants, fruit moguls, orally agreed to accept a sum of money in return for their promise to drop existing lawsuits in Chile and the United States, forebear from filing a civil RICO action in the United States, and keep confidential any information surrounding the circumstances which gave rise to the actual and potential actions. On April 2, 1992, defendants agreed to an order enjoining all parties from disclosing any information relevant to the proceeding (in other words, defendants were enjoined from disclosing information which was allegedly subject to the oral settlement). On April 14, defendants demanded a hearing pursuant to Pa.R.C.P. 1531(f), which provides:

*65When a preliminary or special injunction involving freedom of expression is issued, either without notice or after notice and a hearing, the court shall hold a final hearing within three (3) days after demand by the defendant. A final decree shall be filed in the office of the prothonotary within twenty-four (24) hours after the close of the hearing. If the final hearing is not held within the three (3) day period, or if the final decree is not filed within twenty-four (2k) hours after the close of the hearing, the injunction shall be deemed dissolved.

Pa.R.C.P., Rule 1531(f), 42 Pa.C.S.A. (emphasis added).

Although plaintiffs disputed whether the injunction enjoining defendants necessarily involved “freedom of expression” within the meaning of the Rule, the parties agreed to hold the “demand hearing” on Monday, April 20.1 That Monday, plain*66tiffs were prepared to submit evidence and present witnesses (many of whom traveled long distances to attend the hearing)' on the merits of the oral contract issue. Defendants, however, insisted that they were entitled to pursue investigation of plaintiffs’ alleged criminal conduct with the United States Attorney’s office, despite any “confidentiality” provisions in the alleged agreement. Plaintiffs therefore alerted the Court that since an agreement, if any, to keep criminal activity confidential is void as against public policy, a hearing would be best reserved until the criminal matters were resolved. N.T. 4/20/92, at 105-117. The Court agreed, issued a continuance, and ordered a recess until it heard from defendants’ counsel or the United States Attorney’s Office. Id. at 117. After no activity of record for .nearly five months, the court entertained defendants’ petition to dissolve. Defendants argued; as they do on this appeal, that the injunction dissolved as a matter of law under Rule 1531, because the court had not held the mandatory hearing on the April 2 injunction. See N.T. 8/31/92. The court entered its order denying the petition to dissolve on September 4, 1992:

And now, this 4th day of September, 1992, upon consideration of Defendants’ Motion to Dissolve a Confidentiality Injunctive Order of April 2, 1992 by this Court, Plaintiffs’ response thereto, as well as other memoranda and oral argument thereon, it appearing that:
1. The provisions of Pennsylvania Rule of Civil Procedure 1531(f) are inapplicable and, therefore, unenforcea*67ble in contractual confidentiality agreements which have been negotiated, accepted and entered into by the parties for the purpose of attempting to reach a settlement in the underlying claim; and
2. The language of the Order in question was specifically agreed to by Defendants’ counsel in his letter of March 31, 1992 to this Court;

it is hereby ordered that said motion is denied.

Under Rule 1531(f), a court must hold a prompt hearing upon demand of an enjoined party if a preliminary injunction “involves freedom of expression” and was issued “without notice or after notice and a hearing.” Pa.R.C.P., Rule 1531(f), 42 Pa.C.S.A. This procedural rule was promulgated by our Supreme Court to ensure that our trial courts exercise “the necessary sensitivity to freedom of expression.” Duggan v. 807 Liberty Ave., Inc., 447 Pa. 281, 288 A.2d 750 (1972).

In order to minimize prior restraints on protected speech and to provide prompt adjudication of First Amendment questions, this Court in 1973 adopted Pa.R.C.P. 1531(f), which provides that when a court issues a preliminary injunction involving freedom of speech, the defendant may demand that a final hearing be held within three days and that a final decree be filed within twenty-four hours after the close of the hearing.

Ranck v. Bonal Enterprises, Inc., 467 Pa. 569, 576, 359 A.2d 748 (1976) (emphasis added).

After reviewing the few cases that discuss the application of the rule, it is apparent that it is designed to prohibit prior restraints of speech where the underlying claim involves a judicial determination of whether the challenged speech is protected by the First Amendment. Duggan, supra (district attorney sought to enjoin movie house from showing allegedly “obscene” movies); Ranch, supra (same); School District of Pittsburgh v. Pittsburgh Federation of Teachers, Local 400, 486 Pa. 365, 406 A.2d 324 (1979) (school district sought injunction against teachers for engaging in allegedly illegal picketing). The rule requires only a showing that the restrained *68speech involves freedom of expression because “until a final hearing is held, it is not known whether the prohibitions of the preliminary injunction prohibit constitutionally protected freedom of expression.” School District of Pittsburgh, 486 Pa. at 373, 406 A.2d at 327-328. To require proof of the unconstitutionality of the speech in order to preliminarily restrain the speech “put[s] the proverbial cart before the horse.” Id. at 373, 406 A.2d at 328.

Here, the majority “puts the proverbial cart before the horse” because it would require that the trial court make factual findings regarding the existence of the oral contract before the injunction could properly issue. Majority opinion, at 54. It also concludes that the trial court improperly found that the parties did in fact enter into a contract. This begs the question of whether the trial court was required to hold a Rule 1531 prompt “demand hearing” on the merits in the first place. The trial court, as I interpret its order, did not hold factually that a confidentiality agreement was reached in this case. Rather, it held, and I agree, that the underlying claim of this case involves an issue of contact interpretation. It does not involve resolution of whether the First Amendment protects the type of speech in which defendants wish to engage. In other words, the case is one of contractual, not constitutional, proportion. The prompt hearing requirements of Pa. R.C.P.Rule 1531(f) therefore did not apply, and the injunction did not automatically dissolve without a hearing. Duggan, Ranch, School District of Pittsburgh, supra.2,

*69More importantly, however, the court’s April 2 preliminary injunction was not one that was issued “without notice or after notice and a hearing.” It was issued upon defendants’ consent. Therefore, even if the injunction could properly be regarded as involving “freedom of expression,” I would hold that the entry of a consensual injunction waived defendants’ right to demand a prompt hearing: “The defendant always has the option to decline this special procedure [as set forth in Rule 1531(f) ] and to proceed ... by any other techniques available in the ordinary equity action.” Pa.R.C.P.Rule 1531, Explanatory Comment. It would be anomalous to allow defendants to assure plaintiffs that they would not disclose “confidential” information until the court has reached the merits of the issue in due course, and at the same time allow them to determine when the hearing on the merits will be held. This procedure has incredible potential for abuse. Thus, I would hold that the trial court’s reasons for denying defendants’ petition to dissolve were sound.

Finally, there is nothing in this record to indicate that the trial court did not act with the “necessary sensitivity” toward defendants’ “freedom of expression.” Both the trial court and plaintiffs were ready, willing, and able to finally dispose of the merits of the case on April 20, 1992. When defendants insisted they had every right to disseminate information to the United States Attorney General’s Office despite the existence of any alleged contract, the trial court continued the proceedings until the criminal investigation was completed.3 As the trial court noted: “Again, it was one of your [defense counsel’s] objections” that kept the hearing from going forward. N.T. 4/20/92 at 110.

*70Given all of the factors above: defendants’ failure to demonstrate that the underlying dispute implicates the First Amendment, their consent to the preliminary injunction, and defendants’ insistence that they proceed to the United States Attorney’s Office during the pendency of the litigation of the oral contract on the merits, I cannot conclude that the trial court’s failure to hold the final hearing on the merits on April 20 resulted in automatic dissolution of the preliminary injunction. The majority’s disposition — reversal of the denial of the petition to dissolve — allows the defendants to deny the existence of plaintiffs’ lawsuit and disclose information which they very well might have agreed to keep confidential. If this does occur, why should the court ever reach the merits of plaintiffs’ case? I would affirm the order of the trial court and remand for further proceedings.

Accordingly, I respectfully dissent.

ORDER

AND NOW, this 7th day of April, 1994, Appellees’ Application to Discontinue is GRANTED to allow the discontinuance of the application for reargument. Appellees’ Application to Discontinue is DENIED insofar as it requests discontinuance of the appeal. The Opinion of this court entered September 24, 1993 is hereby ordered REINSTATED.

. The third day under Rule 1531(f) was Friday April 17, a court holiday. Since all parties agreed to the April 20 hearing date, the next possible court date, the "demand hearing” was timely.

Although the learned author of the Majority Opinion argues that there is no factual basis for this conclusion in the record, see Majority Opinion at p. 1202, n. 11, we must, most hesitantly, disagree. On April 14, 1991, the following colloquy took place:

Mr. Rutter [counsel for plaintiffs]: Your Honor, may I suggest that we pickup where we left off yesterday afternoon, which is, I take it, there has now been a demand by the defendants within the meaning of Rule 1531F1 for a final hearing? Without agreeing that this is appropriately within the meaning of the definition of 1531 FI, if we deem the demand made as of today the three day limit for the hearing runs on Friday, which is a court holiday, which means it goes to the next official court day, which means Monday, and I’m prepared to start trial Monday morning at 10 o’clock.
The Court: Are you prepared?
Mr. Rutter: Yes, sir. I have contacted my witnesses and they're coming from Colorado, Washington, and Chile, but they will be here by Monday morning.
It was your inquiry, if I remember, Judge Della Porta, at the end of our conference in chambers yesterday as to why shouldn’t we try the case and Mr. Thall [defendants’ counsel] said he agreed the case should be tried. I've now been able to solve my witness problem, sir. That’s why I report to you.
The Court: Does it solve a problem?
Mr. Thall: It solves it to a degree. Just so the record is clear, I did submit yesterday, Your Honor, among the four documents which I did submit was a form order together with a demand for a final hearing under 1531F1, the bases being that under the rule, the order *66which is now in place, signed by Your Honor on April 2, in our view, is a preliminary or special injunction involving freedom of expression, since the provisions of the order preclude my clients from communicating with anyone about there [sic] claims, other people's claims or pursuing discoveiy, were ready to go on Monday.
The Court: All right. It would seem to me that to a great extent I think that would best resolve the problem that may exist. We’ll go on with trial Monday morning.

N.T., 4/14/91 at pp. 4-5 (Reproduced Record, pp. 283-284) (emphasis added). Since both parties agreed to the Monday hearing date, we respectfully disagree that we have “inject[ed] into the record an alleged fact ... not properly raised by either party or the Chancellor.” Majority Opinion, p. 1202, n. 11.

. Additionally, I must note that my review of the record, while not disclosing the true nature of all of the information which is subject to the injunction, indicates that the "expression” in which defendants wish to engage — exclusive of the criminal accusations, which have already been disclosed to the United States Attorney — hardly amounts to "political speech,” the type of expression to which traditional First Amendment protection attaches. At best, the "expression,” dissemination of information regarding plaintiffs’ conduct and filing a federal civil RICO action against plaintiffs, amounts to an attempt to assert an economic advantage over plaintiffs. I would liken this to “commercial speech,” which gives rise to more limited First Amendment protection. Therefore, the "sensitivity to freedom of expression” embodied by Rule 1531(f) is not truly implicated. Here, if the injunction is dissolved, the *69information may be disclosed forever, and even if there was an enforceable confidentiality agreement, plaintiffs will lose the benefit of their bargain before any court ever rules on the contract. Therefore, the majority decision allows defendants to subvert the very judicial process they apparently wish to employ for redress in the future.

. Notably, the record does not indicate that any action has been taken by the United States Attorney in this regard since the April 20 "dissemination.”