IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Italian Sons and Daughters of America, :
Appellant :
:
v. : No. 1124 C.D. 2022
:
City of Pittsburgh and Mayor : Argued: October 11, 2023
William Peduto :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION
BY JUDGE McCULLOUGH FILED: April 19, 2024
The Italian Sons and Daughters of America (ISDA) appeals from three
orders entered by the Court of Common Pleas of Allegheny County (trial court), one
on November 17, 2021, and two on September 30, 2022. The orders, respectively, (1)
denied ISDA’s motion to recuse the presiding trial court judge, the Honorable John T.
McVay, Jr. (trial court judge); (2) on preliminary objections, dismissed ISDA’s First
Amended Complaint against the City of Pittsburgh (City) and former Mayor William
Peduto (Mayor Peduto) (with the City, Appellees),1 which asserted claims related to
Mayor Peduto’s attempts to remove a statue of Christopher Columbus (Statue) from
the City’s Schenley Park; and (3) dismissed as moot ISDA’s motion for leave to file a
second amended complaint. On appeal to this Court, ISDA chiefly argues that the trial
court erred in dismissing the First Amended Complaint at the preliminary objection
1
During the pendency of the litigation below, the City’s current mayor, Ed Gainey, began his
term of office.
stage based on the “government speech” doctrine. After thorough review, we affirm
in part, reverse in part, vacate in part, and remand for further proceedings.
I. BACKGROUND
Because the trial court dismissed ISDA’s First Amended Complaint on
preliminary objections, we consider the following facts as they are pled in the First
Amended Complaint and, as pertinent, established in the record below.
In 1955, the City enacted Ordinance No. 198,2 which provides, in relevant
part, as follows:
No. 198
AN ORDINANCE
Granting unto the Sons of Columbus of America, Inc.
[(Sons of Columbus)], and its successors, the right to erect
and construct a memorial of granite and bronze of Christopher
Columbus in such place and location in Schenley Park as shall
be designated by the Director of [the Department of] Parks
and Recreation after approval of the plans for the memorial
and its location by the Director of the Department of Parks
and Recreation, the Art Commission and the City Planning
Commission.
The Council of the City [ ] hereby enacts as follows:
[SECTION 1.] The Sons of Columbus[ ], and its successors[,]
is hereby granted the right to erect and construct a memorial
of granite and bronze of CHRISTOPHER COLUMBUS at
such place and location in Schenley Park, City of Pittsburgh,
as shall be designated by the Director of the Department of
Parks and Recreation after approval of the design and location
of the memorial by the said Director, the City Planning
Commission of the City [ ], and the Art Commission of the
City [ ]. The erection of the memorial shall be under the
supervision[,] and subject to the direction and control of[,] the
Director of the Department of Parks and Recreation.
2
City of Pittsburgh, Pa., Ordinance No. 198 (Ordinance), Ordinance Book Vol. 60, p. 31 (May
26, 1955).
2
SECTION 2. The Sons of Columbus [ ], shall bear the full
cost and expense of the construction of the said memorial.
SECTION 3. Upon completion of the construction of the
memorial and approval thereof by the Director of the
Department of Parks and Recreation, the maintenance shall
be borne by the City [ ].
[SECTION 4.] That any [o]rdinance or part of [o]rdinance,
conflicting with the provisions of this Ordinance, be and the
same is hereby repealed so far as the same affects this
Ordinance.
Ordained and enacted into a law in council, this
[16th] day of [May], A.D. 19[55.]
(Reproduced Record (R.R.) at 00017a-18a) (emphasis in original). The Ordinance is
signed by the President of Council, Clerk of Council, then-Mayor David L. Lawrence,
and then-Mayor Lawrence’s assistant secretary. Id. at 00018a. The Sons of Columbus
commissioned the construction of the Statue, which was completed and placed in
Schenley Park in 1958.
On August 3, 2020, Robert A. Indovina, the Chair of the City’s Art
Commission (Chairperson Indovina), sent a letter to Mayor Peduto advising that the
Art Commission intended to initiate public proceedings pursuant to former Section
175.04 of the City’s Code of Ordinances (Code)3 to consider the Statue’s future. (R.R.
3
City of Pittsburgh, Pa., Code of Ordinances (2024), available at
https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=COOR_TITONEAD
_ARTIXBOCOAU_CH175PUARCIDECO (last visited April 18, 2024). Section 175.04, now
repealed, provided as follows:
No existing work of art in the possession of the City shall be removed,
relocated or altered in any way without the similar approval of the Art
Commission. Any work of art shall be removed, relocated or altered,
in any way that may be ordered, by a vote passed, and approved in
writing, by two-thirds (⅔) of all the members of the [Art] Commission,
unless the work of art is attached to a portion of a building or other
structure in process of demolition. In case the immediate removal or
relocation of any existing work of art is deemed necessary by the proper
(Footnote continued on next page…)
3
at 00386a.) In response, Mayor Peduto sent a letter to Chairperson Indovina indicating
that, although final decision-making authority over the Statue’s future remained with
the mayor, he nevertheless wanted a recommendation from the Art Commission
regarding how to proceed. (R.R. at 00388a.) Mayor Peduto directed the Art
Commission to conduct a public review regarding the Statue’s future, which review
would include (1) receiving public comment via an online portal, (2) conducting a
special on-the-record hearing (Special Hearing), and (3) conducting a post-hearing
regular Art Commission meeting (Regular Meeting) at which it would hear additional
public testimony and make an official recommendation to Mayor Peduto’s office. Id.
authorities, the [Art] Commission shall, within forty-eight (48) hours
after notice from them, approve or disapprove of the removal or
relocation, and, in case of their failure to act within the period, they
shall be deemed to have approved the action proposed.
(Code, former § 175.04.) By Ordinance No. 36-2022, § 1, effective January 4, 2023, the City
amended Chapter 175 of the Code in its entirety. Section 175.04 was repealed and replaced with
current Sections 175.01-03. Therein, the Art Commission is re-titled the Public Art & Civic Design
Commission. (Code § 175.01(a).) The Public Art & Civic Design Commission is composed of two
committees: (1) the Public Art Review Committee, and (2) the Civic Design Review Committee.
(Code § 175.01(c)(1)(a)-(b).) The Code authorizes the Public Art & Civic Design Commission to
“adopt its own rules of procedure, consistent with relevant laws or ordinances.” (Code § 175.01(f).)
Most relevant to the issues in this case, Section 175.03 now provides, in part, as follows:
(a) Decision making. All action regarding Public Art and Civic Design
shall require the Mayor’s initiation. The Commission, including its
Committees, cannot ratify a decision with regard to Public Art or
Civic Design in the Public Realm without first receiving a written
directive from the Mayor to consider the Public Art or Civic Design
matter.
(b) Public art. The Public Art [Review] Committee of the Commission
shall review and approve the addition, modification, relocation, and
removal from public view of items of Public Art as defined in
Section 175.02(b). Approval shall be given in writing by a quorum
as defined in Section 175.01(d).
(Code § 175.03(a), (b).)
4
The Art Commission conducted the Special Hearing on September 17,
2020, and the Regular Meeting on September 23, 2020. Thereafter, the Art
Commission members voted to remove the Statue from Schenley Park. (First
Amended Complaint, ¶¶ 21-22; R.R. at 00359a-60a.) Sometime prior to the Special
Hearing and Regular Meeting, Mayor Peduto’s office communicated with certain
members of the Art Commission, which communications were interpreted by at least
one Art Commission member as a threat “implying that we would be fired if we do
[not] adhere to the wishes of [Mayor Peduto].” (R.R. at 00380a.)
On October 9, 2020, ISDA filed a complaint against the City and Mayor
Peduto, followed on October 13, 2020, by an Emergency Motion for Special and
Preliminary Injunction. (R.R. at 00001a, 00032a.) In its complaint, ISDA brought a
single count for injunctive relief against Appellees, alleging that they violated the
City’s Home Rule Charter (Charter),4 the right to due process guaranteed by the
Pennsylvania Constitution, and the “Public Trust Doctrine” by unilaterally deciding to
remove the Statue from Schenley Park. ISDA sought an injunction against Appellees
precluding them from removing the Statue without first complying with all applicable
“laws, regulations, and ordinances.” (R.R. at 00012a.)
On October 14, 2020, after a status conference, the trial court ordered,
with the City’s agreement, that the Statue not be removed prior to the next regular Art
Commission meeting and, in any event, not without first notifying the trial court. (R.R.
at 00079a.) The trial court scheduled another status conference for October 29, 2020,
after which it issued a memorandum and order on October 30, 2020 (October 30, 2020
4
City of Pittsburgh, Pa., Home Rule Charter (2024), available at
https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=HORUCHPIPE (last
visited April 18, 2024).
5
Order). Therein, and in partial reliance on James W. Loewen’s book Lies My Teacher
Told Me,5 the trial court judge discussed at length his views on, inter alia,
historiography, freedom of expression, Christopher Columbus, the post-Civil-War
South, and the City’s role in leading the nation on the issue of statue removal.6 The
5
James W. Loewen, Lies My Teacher Told Me: Everything Your American History Textbook
Got Wrong (Reprint ed., The New Press 2018) (1995).
6
Specifically, the trial court explained:
History is often said to be written by the “winners[,”] and our
understanding of it as a nation tends to evolve over time as research
reveals new understandings and our cultural norms change.
Undoubtedly, history as taught to most in the United States has been
from a nationalistic and [E]urocentric perspective. Certainly, our
national understanding of history is evolving today as evidenced by the
statue removal movement occurring all over the United States with
respect to Confederate and Union generals, [p]residents, explorers like
Christopher Columbus, civil leaders, and here in Pittsburgh, past
cultural icons like composer Stephen Foster. My father, a career high
school history teacher and lifelong reader of history, taught me at an
early age that the commissioning of Confederate general[] statues in
the Jim Crow [S]outh was part of the “Lost Cause” response to
Reconstruction efforts and often [was] intended as [a] symbol of white
supremacy, while the federal government’s commissioning of military
bases [] and battleships commemorating the Confederacy and the
placement of Confederate figures in the halls of Congress were at least
by some[ ] motivated by an intent to heal the nation. Recently, in July
[ ] 2020, Congress voted to remove those same figures from the House
of Representatives as our understanding of history has evolved and the
statues are no longer deemed appropriate in our contemporary nation
trying to heal the issue of racial divide, ultimately inflamed by the
killing of George Floyd in Minneapolis.
Open[-]mindedness as a community requires that we listen to each
other and weigh the concerns expressed collectively with the sincere
intent of trying to understand all sides of an issue. We must also be
mindful that freedom of expression can be a double-edged sword. The
fate of the Christopher Columbus statue should be determined after all
concerns are fully expressed and heard with an intent to reach a
common ground that reflects Pittsburgh and its pride in being a diverse
and welcoming community. However, this must be done while
recognizing the good and bad that comes with statues depicting
(Footnote continued on next page…)
6
trial court ordered the parties to conciliate the case and scheduled another status
conference for November 20, 2020. (R.R. at 00219a.)
On November 13, 2020, ISDA filed a motion to recuse the trial court judge
based on his commentary in the October 30, 2020 Order (Recusal Motion). (R.R. at
00220a.) ISDA alleged that the trial court judge’s comments impermissibly interjected
his personal views into the litigation, which created an “appearance of bias” that called
into question his impartiality. (Recusal Motion, ¶¶ 2-3; R.R. at 00222a-23a.) The trial
court denied the Recusal Motion by order filed November 17, 2021. (R.R. at 00891.)
The trial court concluded that the historical references in the October 30, 2020 Order
“had nothing to do with the legal issues for [the trial court] to decide,” and, therefore,
the trial court could continue to preside over the case without creating an appearance
of impropriety. (R.R. at 00891a.)
ISDA filed its First Amended Complaint on November 11, 2021, in which
it asserts five counts against Appellees. In Count I, ISDA alleges that Appellees
violated its substantive and procedural due process rights under the Pennsylvania
Constitution by (1) not affording ISDA adequate time and opportunity during the Art
Commission’s public proceedings to state its position regarding the Statue’s removal,
and (2) rendering a decision regarding the Statue’s fate without a fair and impartial
historical figures. While acknowledging that historical figures are
people and necessarily come with heroic qualities along with character
flaws, nonetheless, racism, slavery and prejudice must always be
condemned and rejected by our city. Discrimination has and continues
to exist. Indigenous people and the immigrants who followed have all
unfortunately shared that experience, [ ] which should [not] be
acceptable to a community striving for better. With this common
understanding, I am asking that we strive to reach a consensus in good
faith. It is my belief that through conciliation, Pittsburgh will lead the
nation on this issue of statue removal vis a vis history and evolving
community historical understanding.
(R.R. at 00218a-19a) (footnote omitted).
7
tribunal. (First Amended Complaint, ¶¶ 77-96; R.R. at 00368a-70a.) In Count II, ISDA
alleges that, as the successor-in-interest to the Sons of Columbus, it entered into a
contractual relationship with the City “to maintain [the] Statue at Schenley Park in
perpetuity.” Id. ¶ 98; R.R. at 00371a. By “supporting and/or offering for a vote before
the Art Commission” the Statue’s removal from Schenley Park and covering the Statue
and preparing it for removal, ISDA alleges that the City materially or anticipatorily
breached the contract. Id. ¶¶ 97-102; R.R. at 00371a. In Count III, ISDA alleges that
Appellees violated the Charter,7 the Code, and the Ordinance by taking unilateral action
to remove the Statue without first proposing legislation to City Council to repeal the
Ordinance. Id. ¶¶ 106-117; R.R. at 00372a-73a. In Count IV, ISDA alleges that
Appellees violated the “Public Trust Doctrine incorporated into the Pennsylvania
Constitution through [a]rticle I, [section] 27[.]”8 Id. ¶ 120; R.R. at 00374a. Finally,
in Count V, ISDA seeks equitable relief in the form of an injunction enjoining
Appellees from taking any further action to remove the Statue from Schenley Park. Id.
¶¶ 129-31; R.R. at 00375a-76a.
7
Specifically, ISDA argues that Appellees violated Section 204 of the Charter, which governs
the powers and duties of the mayor. Section 204(f) of the Charter provides that the mayor has the
power and duty to “submit proposed legislation to any member of council for introduction,” and
Section 204(k) authorizes the mayor “to perform other duties and exercise other powers as stated in
this charter or assigned by law, ordinance or resolution.” (Charter, § 204(f), (k).)
8
Article I, section 27 of the Pennsylvania Constitution, colloquially known as the
Environmental Rights Amendment (ERA), provides that
[t]he people have a right to clean air, pure water, and to the preservation
of the natural, scenic, historic and esthetic values of the environment.
Pennsylvania’s public natural resources are the common property of all
the people, including generations yet to come. As trustee of these
resources, the Commonwealth shall conserve and maintain them for the
benefit of all the people.
Pa. Const. art. I, § 27.
8
Appellees filed preliminary objections to the First Amended Complaint,
in which they challenged (1) ISDA’s standing to bring this lawsuit,9 (2) scandalous and
impertinent matter in the First Amended Complaint, and (3) the legal sufficiency of
ISDA’s due process, contract, and public trust claims.10 (R.R. at 00412a-13a.) On
February 16, 2022, after briefing and argument on the preliminary objections, the trial
court determined that Appellees’ standing objection required discovery and fact-
finding and ordered the parties to conduct limited discovery on the issue. The trial
court also directed additional briefing on two new issues apparently raised during oral
argument, namely, (1) that ISDA owns the Statue, and (2) that the Virginia Supreme
Court’s reasoning regarding government speech in Taylor v. Northam, 862 S.E.2d 458
(Va. 2021), should govern the disposition of this case. (R.R. at 00618a-19a.) The trial
court took all other preliminary objections under advisement “until the issue of
standing is resolved.” (R.R. at 00564a.)
On March 1, 2022, ISDA filed a “Motion for Leave to File a Second
Amended Complaint to Add [Sons of Columbus] as a Plaintiff” (Leave Motion), upon
which the trial court did not immediately rule. (R.R. at 00565a-620a.) After taking
discovery regarding ISDA’s standing, which included written discovery requests and a
deposition of a representative designated by ISDA, Appellees filed a supplemental
9
Appellees argued, in part, that the trial court did not have subject matter jurisdiction due to
ISDA’s lack of standing. However, questions of standing are not jurisdictional, may be waived, and
will not be raised by a court sua sponte. See Clark v. Cambria County Board of Assessment Appeals,
747 A.2d 1242, 1244 n.1 (Pa. Cmwlth. 2000) (citation omitted); County of Butler v. Local 585, Service
Employees International Union, AFL-CIO, 744 A.2d 338, 341 n.4 (Pa. Cmwlth. 1999) (citation
omitted).
10
Notably, other than a stray reference in paragraph 10, Appellees did not challenge the legal
sufficiency of Count III of the First Amended Complaint in their preliminary objections. Rather,
Appellees first objected to Count III in their supporting brief. See R.R. at 00411a, 00413a, 00435a-
38a.
9
brief on June 17, 2022, in which they argued that, although ISDA does not have
standing to bring this lawsuit, the question of standing ultimately is immaterial because
the United States (U.S.) Supreme Court held in Pleasant Grove City v. Summum, 555
U.S. 460 (2008), that monuments in public parks constitute government speech and
that government entities have the right to speak for themselves in selecting the
monuments erected in public places. (R.R. at 00642a.) Appellees relied extensively
on Taylor and argued that it provided a “handy roadmap” for the trial court to conclude
that “ISDA cannot be permitted to continue with this lawsuit as its position is not
supported by either fact or law and this litigation is an improper interference with the
democratic function of [the] City’s government.” (R.R. at 00669a, 00671a.)
On September 30, 2022, the trial court entered two orders. The first order
sustained Appellees’ preliminary objections under Pa.R.Civ.P. 1028(a)(4). The trial
court found Summum to be controlling and that “its applicability compels dismissal of
the ISDA[’s] lawsuit.” (R.R. at 00861a.) In its second order, the trial court dismissed
as moot ISDA’s Leave Motion. (R.R. at 00860a.) In the memorandum accompanying
its order sustaining Appellees’ preliminary objections, the trial court acknowledged
that Appellees did not raise the issue of government speech in their original preliminary
objections, but nevertheless concluded that the ownership of the Statue, the legal
relationship between the City and the Sons of Columbus, and the City’s ordinance
enactment process were “simply immaterial” given that Summum gives the City “free
reign to remove the [ ] Statue.” (Trial Ct. Op., 9/30/22, at 7; R.R. at 00868a.)11
11
Although the trial court indicated that it “substantially adopt[ed] many” of Appellees’
arguments in their supplemental brief, the trial court did not make any findings of fact and did not
rule on any of the specific preliminary objections originally lodged by Appellees. Instead, the trial
court concluded that the original preliminary objections were mooted by the City’s new argument
that its attempt to remove the Statue was carte blanche protected as government speech. See Trial
Ct. Op., 9/30/22, at 7 & n.3; R.R. at 00868a.
10
The trial court discussed at length the decisions in Summum and Taylor
and concluded that they mandated dismissal:
[ ] ISDA cannot point to law that supports its position that it
has the authority to limit what the [m]ayor . . . and the
[m]ayor’s advisory committees do with respect to City-
owned monuments on City-owned land. The [m]ayor is
elected by the residents of [the City] and entrusted with the
duty of effectuating speech that reflects the will and ideals of
the voters. It is contrary to law and public policy to decide
otherwise.
Thus, given the framework built by the United States
Supreme Court in [Summum] and the example set by the
Virgina Supreme court in [Taylor], the City [ ] submits, and
I agree, that [ ] ISDA cannot be permitted to continue with
this lawsuit as its position is not supported by either fact or
law and this litigation is an improper interference with the
[City’s] right to speech.
Id. at 19-20; R.R. at 00880a-81a.
ISDA timely appealed to this Court on October 4, 2022. The trial court
ordered the filing of a Concise Statement of Errors Complained of on Appeal pursuant
to Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(b), and ISDA timely
complied on October 25, 2022. In response, the trial court filed three Pa.R.A.P.
1925(a) opinions. Regarding Appellees’ preliminary objections, the trial court opined
that ISDA’s arguments regarding the binding nature of the Ordinance and the legal
requirements of the Charter and Code were “procedural arguments at best,” and, in any
event, the entire case was moot given that the election of a new mayor in the interim
gives Appellees a “do over.” (Supplemental Rule 1925(a) Op., 1/6/23, at 2; R.R. at
00936a-37a.) The trial court further noted:
In the end, the City [ ] is within [its] First Amendment[, U.S.
Const. amend. I,] rights to decide whether to display the [ ]
Statue or not, and as [the Summum decision concludes], those
government speech rights are limited by and subject to the
11
voters and[,] perhaps, further limited by requiring removal
pursuant to proper procedure. While it is easy to read
[Summum] as saying that even the procedure really does[
not] matter much and it is really the ballot box that limits
government speech, [ ] ISDA’s suggested procedure could
still be followed by the new [m]ayor, City Council, and [the]
new Art[ ] Commission.
Id. at 3; R.R. at 00937a. In its second and third Rule 1925(a) opinions, the trial court
incorporated its prior reasoning for denying the Recusal Motion and dismissing the
Leave Motion as moot. R.R. at 00963a-64a, 00989a-90a.
II. ISSUES
ISDA presents eight questions for review, which we fairly can combine
and summarize as follows: (1) whether the trial court erred in dismissing ISDA’s First
Amended Complaint on the ground that Appellees’ actions are protected government
speech; (2) whether the trial court erred in implicitly concluding that ISDA does not
have standing to assert the claims in its First Amended Complaint; (3) whether the trial
court erred in concluding ISDA did not state a viable claim for breach of contract; (4)
whether the trial court erred in concluding that ISDA did not state a viable claim
pursuant to the Public Trust Doctrine; (5) whether the trial court erred in dismissing as
moot ISDA’s Leave Motion; and (6) whether the trial court erred in denying ISDA’s
Recusal Motion. Because they are dispositive of this appeal, we address only the first,
fifth, and sixth issues.
III. DISCUSSION
A. Preliminary Objections12
12
Our review of a trial court’s order sustaining a preliminary objection in the nature of a
demurrer is governed by the following principles:
The question presented in a demurrer is whether, on the facts averred,
the law indicates with certainty that no recovery is possible. In
(Footnote continued on next page…)
12
We begin with Summum,13 which presented the question of “whether the
Free Speech Clause of the First Amendment entitles a private group to insist that a
municipality permit it to place a permanent monument in a city park in which other
donated monuments were previously erected.” 555 U.S. at 464. In Summum, a public
park in the historic district of Pleasant Grove City, Utah contained 15 permanent
displays, the majority of which were donated by private groups. Id. at 465. Summum,
a religious organization, requested to place in the park a stone monument containing
the “Seven Aphorisms” of its practice and belief. Id. The city denied the request,
indicating that its practice was to limit monuments in the park to those either related to
reviewing a trial court’s decision to grant a demurrer, our Court’s
standard of review is de novo. Thus, we will affirm a trial court’s order
sustaining preliminary objections and dismissal of a complaint only in
cases that are clear and free from doubt that the law will not permit
recovery by the appellant. In ruling on preliminary objections in the
nature of a demurrer, this Court accepts as true all well-pleaded facts
in the complaint and draws all inferences reasonably deducible
therefrom in favor of the nonmoving party. However, we need not
accept as true conclusions of law, unwarranted inferences from facts,
argumentative allegations, or expressions of opinion. And, in the face
of doubt, our resolution should be in favor of reversing the grant of the
demurrer.
Vasquez v. Berks County, 279 A.3d 59, 75-76 (Pa. Cmwlth. 2022) (internal citations, quotations, and
bracketing omitted).
13
We note, as did the trial court, that Appellees did not initially raise government speech as
a legal ground for any of their preliminary objections. Rather, it appears they raised it for the first
time during oral argument, which prompted the trial court to direct additional briefing. Ordinarily,
arguments raised for the first time in a brief in support of preliminary objections will not be
considered. See Commonwealth ex rel. Corbett v. Peoples Benefit Services, Inc., 895 A.2d 683, 690
n.13 (Pa. Cmwlth. 2006) (citing Pa.R.Civ.P. 1028(b) (“All preliminary objections shall be raised at
one time. They shall state specifically the grounds relied upon . . . .”)). Nevertheless, both Appellees
and ISDA raised new legal theories at oral argument, and both were permitted to conduct discovery
and submit additional briefing. Moreover, ISDA did not object to the trial court’s consideration of
Appellees’ government speech argument. We therefore conclude that the trial court properly
considered it, and we will do likewise.
13
the history of the city or that were donated by groups with longstanding ties to the
community. Id. Summum sued the city in federal court, alleging that the city had
violated the Free Speech Clause of the First Amendment by permitting a Ten
Commandments monument to be placed in the park but rejecting Summum’s proposed
monument. Id. at 466. Summum sought a preliminary injunction directing the city to
accept Summum’s proposed monument, which the federal district court denied. Id.
The Tenth Circuit reversed.
On further appeal, the U.S. Supreme Court reversed the Tenth Circuit and
concluded that the placement of privately donated monuments in a public park typically
constitutes government speech not subject to the Free Speech Clause. The Supreme
Court noted as follows:
A government entity may exercise this same freedom to
express its views when it receives assistance from private
sources for the purpose of delivering a government-
controlled message.
This does not mean that there are no restraints on government
speech. For example, government speech must comport with
the Establishment Clause. The involvement of public
officials in advocacy may be limited by law, regulation, or
practice. And of course, a government entity is ultimately
accountable to the electorate and the political process for its
advocacy. If the citizenry objects, newly elected officials
later could espouse some different or contrary position.
Id. at 468-69 (internal citations and quotations omitted). Because the typical “forum
analysis” conducted in cases challenging the government’s restriction of private speech
in public places generally does not apply to the installation of permanent monuments
on public property, the Court concluded that Summum was not entitled to any relief
under the Free Speech Clause. Id. at 480-81. See also id. at 464 (“[T]he display of a
permanent monument in a public park is not a form of expression to which forum
14
analysis applies. Instead, [it] is best viewed as a form of government speech . . . not
subject to scrutiny under the Free Speech Clause.”).
Subsequently, in Taylor, the Supreme Court of Virginia applied Summum
and its progeny to the following question:
[W]hether language in an 1890 deed, signed by the then
Governor of Virginia, and an 1889 joint resolution of the
General Assembly, which requested and authorized the
Governor to sign such deed, prohibit the Governor of
Virginia from ordering the removal of a state-owned
monument from state-owned property.
862 S.E.2d at 460. In Taylor, the deed at issue conveyed to the Lee Monument
Association a parcel of property now located within the City of Richmond. The Lee
Monument Association subsequently commissioned the construction of the monument
and proposed to donate the property and Lee monument to the Commonwealth of
Virginia. Id. Thereafter, in 1889, the Virginia General Assembly passed a joint
resolution in which it requested that then-Governor P.W. McKinney accept the
donation. Id. at 460-61. After the monument was completed, the Lee Monument
Association executed a deed to the Commonwealth of Virginia conveying the property
and the Lee monument. The deed contained a restrictive covenant in which the
Commonwealth of Virginia agreed that it would hold the monument and property
“perpetually sacred to the [m]onumental purpose to which they have been devoted”
and would “faithfully guard it and affectionately protect it.” Id. at 461.
In 2020, Virginia’s governor, at public prompting, announced his
intention to have the Lee monument removed. He thereafter directed and approved the
plan of the Virginia Department of General Services to remove it. Id. In response,
several individuals filed a lawsuit against the governor and other state officials alleging
that the governor had no authority to remove the monument because the 1889 joint
15
resolution mandated that the Lee monument be kept and maintained perpetually. The
plaintiffs also argued that removal of the monument would violate separation of powers
principles, the Virginia Code, and the restrictive language of the deeds conveying the
monument to the Lee Monument Association and the Commonwealth of Virginia. Id.
During the pendency of the litigation, the Virginia General Assembly passed a bill
repealing the 1889 joint resolution and directing that the Virginia Department of
General Services, at the Governor’s directive, remove and store the Lee monument.
Id. at 462. After trial, the trial court entered judgment in the defendants’ favor,
concluding primarily that the current public policy of Virginia precluded enforcement
of any restrictive language in the deeds conveying the Lee monument.
Relying in part on Summum, the Virginia Supreme Court affirmed,
concluding that the 1889 joint resolution was not a binding statute and only served to
express the policy views of the General Assembly in 1889. Id. at 469. That court
further concluded that the public policy of Virginia regarding the Lee monument had
changed and that erecting or removing public monuments on or from public property
is a form of government speech that cannot be bartered away in restrictive covenants.
The court therefore found that any restrictive language in the deeds conveying the
monument was unenforceable as against public policy. Id. at 471.
Here, in its First Amended Complaint, ISDA does not challenge Mayor
Peduto’s or the Art Commission’s actions on First Amendment grounds; nor does
ISDA contest that the placement of the Statue in Schenley Park constitutes government
speech that the City otherwise may regulate, change, or remove as it sees fit. Thus,
ISDA does not argue that the government speech principles set forth in Summum and
Taylor are inapplicable. Rather, ISDA argues that Mayor Peduto and the Art
Commission, in taking action to remove the Statue, did not comply with applicable
16
provisions of the Charter and Code, violated ISDA’s rights to due process, violated
public trust principles, and breached a contract entered into between the City and
ISDA’s putative predecessor, the Sons of Columbus.
In issuing its decision, the trial court did not make any findings of fact and
did not rule on any of Appellees’ expressly pleaded preliminary objections, including
the objection to ISDA’s standing. Instead, the trial court broadly concluded that,
because the Statue constitutes government speech, ISDA cannot, as a matter of law,
plead a viable claim because the City is free to do with the Statue as it pleases,
notwithstanding any local or state-wide legislation or other restrictions to the contrary.
See Trial Ct. Op., 9/30/22, at 7; R.R. at 00868; Supplemental Rule 1925(a) Op., 1/6/23,
at 5; R.R. at 00939a (“Local ordinances and state laws cannot be used to restrict future
government’s speech rights.”). As is clear from Summum, however, the trial court
plainly erred on this point.
Although a government generally may determine those views that it will
espouse by way of its own speech, it nevertheless may not do so in violation of
applicable “law, regulation, or practice.” Summum, 555 U.S. at 468-69. For example,
in In re Friends of Marconi Plaza, 287 A.3d 965 (Pa. Cmwlth. 2022), this Court
considered whether a trial court erred in reversing the City of Philadelphia’s Board of
License and Inspection Review’s (L&I Board) authorization of the removal of a
Christopher Columbus statue from Marconi Plaza. The trial court reversed the L&I
Board on the grounds that the City (1) failed to establish that removal of the statue was
in the public interest, and (2) failed to comply with the City’s own procedural
requirements governing the preservation of public art and historic objects. Id. at 968.
The trial court also concluded that certain objectors to the statue’s removal, including
17
Friends of Marconi Plaza, had standing to challenge the legality of the statue’s removal.
Id. at 972.
We affirmed the trial court, concluding that the objectors had both
individual and associational standing to challenge the removal. Id. at 978. We further
concluded that the administrative process invoked to remove the statue violated an
internally promulgated directive (Directive 67). We interpreted Directive 67 to be a
binding “rule or regulation that supplements and implements” the City of
Philadelphia’s Home Rule Charter14 and that had the “force and effect of law.” Id. at
980. Although the status of the Christopher Columbus statue as government speech
was not expressly at issue, the Friends of Marconi Plaza decision nevertheless instructs
that municipal governments must abide by all rules and regulations, even those
promulgated internally, that have the force of law before they may remove public
monuments or artwork from public spaces. The fact that such monuments or pieces of
art constitute “government speech” only protects the government from certain First
Amendment challenges. Summum. It does not, as the trial court here concluded, give
government “free reign” to act as it pleases in defiance of the law.
Moreover, the Virginia Supreme Court’s decision in Taylor, although not
binding on this or any other Pennsylvania court, also supports this conclusion. A close
reading of Taylor reveals that the Virginia Supreme Court went to significant lengths
to analyze whether the 1889 joint resolution and restrictive covenants at issue were
binding on the governor because that court implicitly recognized what the U.S.
Supreme Court had explicitly ruled in Summum: a government’s right to regulate and
express its own speech is limited by applicable “law, regulation, or practice.” See
14
City of Philadelphia, Pa., Home Rule Charter (2024), available at
https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-262986 (last visited
April 18, 2024).
18
Taylor, 862 S.E.2d at 466-71. Although the court in Taylor concluded that the joint
resolution was not a legislative enactment with the binding legal force of a statute, id.
at 469, the decision in Taylor nevertheless does not interpret Summum to hold that
classification as “government speech” categorically exempts government expression
from legal scrutiny.
The trial court below did not make any findings or rulings regarding
whether Appellees’ actions in seeking to remove the Statue from Schenley Park
violated the Charter, the Code, or the Ordinance. It instead dismissed ISDA’s claims
on the ground that such procedural irregularities did not matter in light of Summum.
The trial court further declined to make any findings or rulings regarding whether the
Art Commission’s administrative proceedings were constitutionally adequate or
whether ISDA had standing to bring this lawsuit in the first place. The trial court
instead cast ISDA’s claims as “procedural arguments at best” and did not analyze them.
(Supplemental Rule 1925(a) Op., 1/6/23, at 2; R.R. at 00936a.) The trial court further
explained that, even if ISDA is correct and Appellees violated the Charter, Code, and/or
Ordinance in pursuing the Statue’s removal, the new mayor’s administration is still free
to comply, if it wishes to do so. Id. In any event, according to the trial court, ISDA’s
claims against Appellees are now moot, and the new mayor’s administration has
effectively been granted a “do over.” Id; see also id. at 3; R.R. at 00937a) (“While it
is easy to read Justice Alito’s opinion [in Summum] as saying that even the procedure
really does[ not] matter and it is really the ballot box that limits government speech, []
ISDA’s suggested procedure could still be followed by the new [m]ayor, City [c]ouncil,
and Art[ ] Commission.”).
Under Summum and Friends of Marconi Plaza, we simply cannot agree
with the trial court’s conclusions that (1) the Statue’s status as government speech
19
renders Appellees’ actions per se valid, and (2) ISDA’s claims are irrelevant procedural
quibbles now mooted by the new mayor’s ability to comply with the law if he so
chooses. Further, although the parties have briefed the issues of ISDA’s standing and
the legal viability of its claims, we will not rule on those issues in the first instance,
particularly where, as here, the case was disposed of at the preliminary objection stage
without any findings of fact. We accordingly reverse the trial court’s order dismissing
the First Amended Complaint based on the government speech doctrine and remand
for further factfinding and decision, as appropriate, on Appellees’ remaining
preliminary objections.
B. Recusal Motion
Rule 1.2 of the Pennsylvania Code of Judicial Conduct provides that “[a]
judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary, and shall avoid impropriety
and the appearance of impropriety.” Pa. Code of Judicial Conduct Rule 1.2. “The test
for appearance of impropriety is whether the conduct would create in reasonable minds
a perception that the judge . . . engaged in . . . conduct that reflects adversely on the
judge’s honesty, impartiality, temperament, or fitness to serve as a judge.” Id. Rule
1.2, Comment 5. Rule 2.11(A) further provides that “[a] judge shall disqualify himself
or herself in any proceeding in which the judge’s impartiality might reasonably be
questioned . . . .” Id. Rule 2.11(A). Thus, a party requesting recusal must introduce
evidence establishing bias, prejudice, or unfairness that “raises a substantial doubt as
to the jurist's ability to preside impartially.” Commonwealth v. Abu-Jamal, 720 A.2d
79, 89 (Pa. 1998). A recusal motion initially is “directed to and decided by the jurist
whose impartiality is being challenged.” Id. The Pennsylvania Supreme Court has
further explained:
20
In considering a recusal request, the jurist must first make a
conscientious determination of his or her ability to assess the
case in an impartial manner, free of personal bias or interest
in the outcome. The jurist must then consider whether his or
her continued involvement in the case creates an appearance
of impropriety and/or would tend to undermine public
confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make . . . .
Where a jurist rules that he or she can hear and dispose of a
case fairly and without prejudice, that decision will not be
overruled on appeal but for an abuse of discretion.
Id. (citations omitted). There is a presumption that Commonwealth judges are
“honorable, fair and competent,” id. at 89 (citation omitted), and, when confronted with
a recusal request, are competent to determine whether they can rule “in an impartial
manner, free of personal bias or interest in the outcome.” DeLuca v. Mountaintop Area
Joint Sanitary Authority, 234 A.3d 886, 897 (Pa. Cmwlth. 2020) (citation omitted).
Our Supreme Court also has recognized that,
[w]hile the mediation of courts is based upon the principle of
judicial impartiality, disinterestedness, and fairness
pervading the whole system of judicature, so that courts may
as near as possible be above suspicion, there is, on the other
side, an important issue at stake: that is, that causes may not
be unfairly prejudiced, unduly delayed, or discontent created
through unfounded charges of prejudice or unfairness made
against the judge in the trial of a cause. . . . If the judge feels
that he can hear and dispose of the case fairly and without
prejudice, his decision will be final unless there is an abuse
of discretion. This must be so for the security of the bench
and the successful administration of justice. Otherwise,
unfounded and ofttimes malicious charges made during the
trial by bold and unscrupulous advocates might be fatal to a
cause, or litigation might be unfairly and improperly held up
awaiting the decision of such a question or the assignment of
another judge to try the case. If lightly countenanced, such
practice might be resorted to, thereby tending to discredit the
judicial system. The conscience of the judge alone is brought
21
in question; he should, as far as possible, avoid any feelings
of unfairness or hostility to the litigants in a case.
Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 489 A.2d
1291, 1299 (Pa. 1985).
Here, ISDA argues that the trial court judge should have recused himself
from presiding over this case because the extensive commentary in the October 30,
2020 Order created an appearance of impartiality, bias, and impropriety. More
specifically, ISDA argues that the trial court judge’s interpretations of his father’s
teaching career, the Lost Cause of the Confederacy, the Jim Crow South, ethnic
discrimination, and the City’s exemplary future in leading the nation in statue removal
injected extraneous and irrelevant issues into a lawsuit involving straightforward
claims asserting that Appellees did not comply with the Charter, Code, and Ordinance.
(ISDA Br. at 55-58.) ISDA therefore argues that the trial court abused its discretion in
denying the Recusal Motion.
We generally agree with ISDA that the personal commentary in the trial
court’s October 30, 2020 Order is irrelevant and extraneous and does not inform the
legal analysis of the claims asserted in the First Amended Complaint. We nevertheless
cannot conclude that the trial court’s denial of the Recusal Motion constituted a clear
abuse of discretion. To the extent that ISDA claims that the personal nature and
irrelevance of the commentary indicates bias, it is the very irrelevance of the bulk of
the trial court’s order that requires affirmance on this issue. The issues in this case
center on the legislative status of the Ordinance, the procedures in the Charter and
Code, if any, that are applicable to public monument removal, and ISDA’s standing to
bring this lawsuit. The trial court has yet to rule on any of those issues. The personal
opinions the trial court judge has expressed on subjects immaterial to their resolution
do not themselves constitute evidence that, as to the disposition of the actual issues at
22
hand, he will be biased, prejudiced, or unfair to a degree that raises substantial doubt
as to his ability to preside impartially. Without such evidence, we must defer to the trial
court judge’s own self-assessment that he can, and we trust will, preside over the
resolution of this matter in an impartial and judicious manner. Accordingly, we affirm
the denial of the Recusal Motion.
C. Leave Motion
Lastly, because the trial court dismissed as moot ISDA’s Leave Motion
based on its dismissal of the First Amended Complaint, we vacate the trial court’s order
dismissing the Leave Motion and remand for the trial court to consider, if necessary,
whether leave to file a second amended complaint should be granted.
IV. CONCLUSION
The trial court erred in concluding that ISDA’s claims are barred in their
entirety based exclusively on the U.S. Supreme Court’s decision in Summum and the
Virginia Supreme Court’s decision in Taylor. We accordingly reverse the trial court’s
September 30, 2022 order dismissing ISDA’s First Amended Complaint on that
ground. We relatedly vacate the trial court’s September 30, 2022 order dismissing as
moot ISDA’s Leave Motion and remand to the trial court to consider it on the merits,
as necessary. Because we conclude that the trial court did not commit a clear abuse of
discretion in denying the Recusal Motion, as the issues on which the trial court judge
opined are immaterial to the disposition of this matter, we affirm the trial court’s
November 17, 2021 order. Finally, because the trial court did not expressly rule on any
of Appellees’ other preliminary objections, we remand the matter to the trial court to
consider, as appropriate, the merits of the outstanding preliminary objections.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Wojcik concurs in the result only.
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Italian Sons and Daughters of America, :
Appellant :
:
v. : No. 1124 C.D. 2022
:
City of Pittsburgh and Mayor :
William Peduto :
ORDER
AND NOW, this 19th day of April, 2024, it is hereby ORDERED as
follows:
(1) The November 17, 2021 order of the Court of Common Pleas of
Allegheny County (trial court) denying Appellant’s Motion for Recusal is
AFFIRMED;
(2) The trial court’s September 30, 2022 order sustaining the
preliminary objections of the City of Pittsburgh and Mayor William Peduto is
REVERSED;
(3) The trial court’s September 30, 2022 order dismissing the Italian
Sons and Daughters of America’s (Appellant) Motion for Leave to File a Second
Amended Complaint is VACATED; and
This matter is remanded to the trial court for further proceedings
consistent with the directives set forth in the foregoing Opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge