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May 7, 1974

Elizabeth SMETANKA et al., Plaintiffs,

Marsh, Chief Judge.

The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 In this action a preliminary injunction was granted on November 28, 1973, in favor of the plaintiff, Elizabeth Smetanka, restraining the defendant Councilmen from refusing to permit her to speak during the citizens' portion of Council meetings open to the public. The defendants have complied with the preliminary injunction. The action of Alice Ciberey and Concetta M. Fosnaught, plaintiffs, for preliminary injunction and damages was denied pending final hearing. The final hearing was held in March, 1974. The evidence received at the hearing for preliminary injunction was made part of the record, Rule 65(a)(2) F.R.Civ.P., and additional testimony was taken on behalf of all plaintiffs and the defendants at the final hearing. *fn1" The court makes the following:


 1. Plaintiffs, Elizabeth Smetanka, Alice Ciberey and Concetta M. Fosnaught, are citizens of the Commonwealth of Pennsylvania, residing in the Borough of Ambridge, Pennsylvania. The defendant, Borough of Ambridge, is a municipal corporation chartered pursuant to the laws of the Commonwealth of Pennsylvania, and located in Beaver County, Pennsylvania. The defendants, Roy E. Stubbins, Andrew Krol, Al Roginski, Frank Sangermano, and William Towcimak, are elected members of the Borough of Ambridge Council; the defendant, Stubbins, has served as President of Council since January of 1972.


 2. At all relevant times, the five individual defendants comprised the majority of the seven-member Ambridge Council. They belong to a faction of the Borough's Democratic Party, which may be called the "Stubbins group." Mrs. Smetanka and the two remaining Councilmen, Edward Iorfido and George A. Modrovich, belong to a faction of the Borough's Democratic Party, known as the "Panek-Dunn" faction.

 3. The Council conducts regular monthly meetings. These meetings are open to the public, and a portion of each meeting is set aside for citizens to speak to Council. This period is known as the "citizens' portion" of the Council meetings. Any resident of the Borough desiring to speak during the citizens' portion of a meeting may obtain the floor by raising his hand and being recognized by the President.

 4. No format or rules or regulations governing the conduct or specifying permissible topics for discussion during the citizens' portion were ever adopted by Council.

 5. Prior to the meeting held on October 9, 1972, no citizen who raised his hand had been denied the opportunity to speak during the citizens' portion of the meeting.

 6. The plaintiff, Elizabeth Smetanka, has attended every regular meeting of the Council from November, 1971, to the time of trial. She spoke at every meeting since November, 1971, to the meeting of October 9, 1972. She talked on varied sensitive subjects pertaining to the Borough and some of its employees; her remarks were usually critical of Council's actions or inactions. Borough Secretary, Joseph Rodio, and Miss Carole Sudia, a Borough employee, disclosed tax record books to Mrs. Smetanka. At the April, 1972, meeting and thereafter, she criticized the failure of the Borough to collect delinquent occupation-mercantile taxes; she stated that a member of Council was among the delinquent taxpayers; Councilman Stubbins acknowledged his delinquency, although the delinquent tax had been assessed against Stubby's Tavern, owned by Stubbins' father and mother. Stubbins was the manager-bartender of Stubby's Tavern. Because of her complaints, letters were sent to delinquent taxpayers resulting in collection of $1,000 during May and June, 1972.

 7. In July, 1972, collection of the occupation-mercantile tax was turned over to the Ambridge Area School District by merger with the Borough. The taxes collected were divided between the Borough and the School District. Andrew J. Bergman, an employee of the School District, was in charge of the collection of these delinquent taxes. Miss Sudia had been assigned to work for the School District in Bergman's office. Mrs. Smetanka paid a visit to this office to further inquire about tax delinquents. Mr. Bergman directed Miss Sudia to show Mrs. Smetanka copies of letters which had been sent to delinquent occupation-mercantile taxpayers. Mr. Bergman did not personally show her these letters or any tax record books. Miss Sudia told Mrs. Smetanka that the taxes assessed against Stubby's Tavern had not been paid by Councilman Stubbins.

 8. At the citizens' portion of the September, 1972, Council meeting, Mrs. Smetanka told Council that Mr. Bergman had shown her letters sent to delinquent taxpayers and inquired of Councilman Stubbins whether he was going to pay the tax or ignore the letter. Stubbins told her, "Don't worry about it."

 At the citizens' portion of the October, 1972, Council meeting, Councilman Stubbins stated that Mrs. Smetanka had told Council a "bold face lie" when she said, at the September meeting, that Mr. Bergman had shown her tax record books and Stubbins demanded that she apologize to Mr. Bergman. Mrs. Smetanka replied that Mr. Bergman only showed her letters, not books, and refused to apologize. The minutes of the September meeting reflect that Mrs. Smetanka stated that Bergman "showed her letters that he sent out [to delinquent taxpayers] to make payment by September the first on [sic] it will be referred to the Justice of the Peace." Mrs. Smetanka did not lie at the September meeting; at worst, her statement was slightly incorrect, given erringly but not wilfully, on an immaterial point, i.e., whether Bergman showed her the letters or authorized Miss Sudia to show them to her, which is the equivalent. Nevertheless, Councilman Stubbins' reaction, as reflected by the minutes of the October 9th meeting, was as follows:

"The Chair stated that it is quite apparent that Mrs. Smetanka is using this portion of the meeting to harass the members of Council and embarass [sic] employees and has stated a bold face lie against Mr. Bergman. It is apparent that Mrs. Smetanka is conspiring with Mr. Iorfido and he recommended to revoke the privilege from Mrs. Smetanka and under citizens [sic] Council will hereforth [sic] no longer recognize Mrs. Smetanka."

 Thereafter, the following action was taken by the defendant Councilmen:

"After further discussion Mr. Sangermano moved, seconded by Mr. Roginski, to accept the recommendation of the Chair that Council overlook and not recognize Mrs. Smetanka in the citizens portion of the meeting. The motion was passed." *fn2"

 9. Mrs. Smetanka never disrupted a Council meeting; she always conducted herself in a ladylike manner and never posed a threat to the orderly conduct of Council's business. However, her critical and pointed remarks had become increasingly annoying, embarrassing, and irritating to Councilman Stubbins and the other defendants who interpreted them as harassment.

 10. From October, 1972, until this court issued the preliminary injunction on November 28, 1973, Mrs. Smetanka attended all meetings of the Borough of Ambridge Council and attempted unsuccessfully to be recognized during the citizens' portion of such meetings. President Stubbins refused to recognize Mrs. Smetanka during the citizens' portions, but did recognize all others who wished to speak. Mrs. Smetanka desires to continue to attend and speak at Council meetings open to the public.

 11. None of the defendants are lawyers. They did not act in bad faith, wilfully, wantonly, or maliciously at the October 9th meeting, or thereafter, in imposing prior restraint upon the exercise of Mrs. Smetanka's right of freedom of speech and expression. Before and after this meeting, the Borough Solicitor, upon request, advised the defendants that speaking during the citizens' portion of Council meeting was a privilege and not a right, and that this privilege could be revoked if abused. Since October 9th, with regard to the Smetanka ban, the defendants continued to adhere to their solicitor's advice despite a protest letter dated January 15, 1973 (PX 5), addressed to the solicitor by the Executive Director of the Pittsburgh Chapter of the American Civil Liberties Union of Pennsylvania, which letter was read at a subsequent Council meeting, and which asked Council to re-examine its position before "further action needs to be taken." The defendant Councilmen reasonably believed in good faith that Mrs. Smetanka had abused the privilege of speaking by harassing Council and the defendant members for political reasons, and that they could revoke her privilege to speak during the citizens' portion of Council meetings. The action of the defendant Councilmen was not taken with subjective intent to disregard the rights and privileges of Mrs. Smetanka under the United States Constitution.

 12. In January, 1973, Mrs. Smetanka agreed to be a candidate for Borough Council and run on the Panek-Dunn ticket in the Democratic primary election. She filed a petition to be included on the ballot in February or March of 1973. Incumbent Councilmen Stubbins, Krol, Towcimak, and Iorfido were also candidates for re-election.

 13. Following the meeting of October 9th, the action of Council was broadcast over the local radio, published in the newspaper, and otherwise was widespread among the citizens of Ambridge. As a result Mrs. Smetanka suffered a certain amount of ridicule, embarrassment and humiliation; she experienced some insomnia and nervousness, but no medical attention was required. Some citizens made slurs and derogatory remarks to her face and in her presence and to some extent continue to do so. Notwithstanding, in the Spring of 1973 as a candidate for Council on the Panek-Dunn ticket, Mrs. Smetanka waged a vigorous door-to-door campaign thus voluntarily exposing herself to the criticism, ridicule, embarrassment, humiliation and hurt feelings of which she complains. Prior to the meeting of October 9th, she was comparatively unknown, and it seems obvious that the notoriety attributed to the defendants' action of October 9th served to enhance her political efforts for she lost the nomination by only 21 votes. In the 1973 general election, she vigorously conducted an unsuccessful sticker campaign. These voluntary exposures to the public tend to negate the weight of her testimony both as to the extent and value of the damages she may have sustained because of the defendants' action.

 14. In my judgment the damages she sustained -- nominal, compensatory, and punitive -- do not exceed the sum of $10,000.


 15. The plaintiffs, Alice Ciberey and Concetta M. Fosnaught, were employed as meter maids by the Borough Council; Mrs. Ciberey was employed on December 4, 1967, and Mrs. Fosnaught on August 14, 1966 (DX A). There was no evidence that either had been employed for political reasons. They do not hold civil service positions, and they are not policy-making employees.

 16. Both of these plaintiffs supported Mrs. Smetanka and other Panek-Dunn candidates prior to the primary election held May 15, 1973. Mrs. Fosnaught supported the Panek-Dunn slate by talking to people she met on the street, and Mrs. Ciberey supported the slate by talking to her very close friends. Mrs. Ciberey's 22 year old daughter, Nanette Winkler, actively supported the Panek-Dunn slate by going to rallies, working at the polls, and by writing a letter (PX 1) ridiculing Councilman Stubbins and the other defendants, which letter was read at a rally for the Panek-Dunn candidates on May 1, 1973. None of the defendants read this letter, but Councilman Stubbins had heard about it. The incumbent Councilmen were nominated on May 15, 1973.

 17. After the election, on the morning of May 16, 1973, Councilman Stubbins went to the Ambridge Chief of Police, George Kyragyros, and ordered him forthwith to discharge Mrs. Ciberey and Mrs. Fosnaught. The Chief of Police complied with Councilman Stubbins' order. Because of "Nationality Days" there was no work for metermaids on ...

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