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ROUSE PHILADELPHIA INC. AND REDEVELOPMENT AUTHORITY CITY PHILADELPHIA v. AD HOC '78 AND T. MILTON STREET AS AN INDIVIDUAL AND AS A REPRESENTATIVE AD HOC '78 UNINCORPORATED ASSOCIATION PERSONS ACTING CONCERT TO BLOCK INGRESS TO AND EGRESS FROM GALLERY AT MARKET EAST AND JOHN DOE AND JANE DOE AND ALL OTHER PERSONS ACTING CONCERT WITH NAMED PARTICIPANTS OR OTHERWISE PARTICIPATING THEIR AID (12/28/79)

filed: December 28, 1979.

ROUSE PHILADELPHIA INC. AND REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA, PLAINTIFFS, AND GIMBEL BROTHERS, INC. AND GIMBEL BROTHERS REALTY CORP., INTERVENING PLAINTIFFS,
v.
AD HOC '78 AND T. MILTON STREET AS AN INDIVIDUAL AND AS A REPRESENTATIVE OF AD HOC '78 THE UNINCORPORATED ASSOCIATION OF PERSONS ACTING IN CONCERT TO BLOCK INGRESS TO AND EGRESS FROM THE GALLERY AT MARKET EAST AND JOHN DOE AND JANE DOE AND ALL OTHER PERSONS ACTING IN CONCERT WITH THE NAMED PARTICIPANTS OR OTHERWISE PARTICIPATING IN THEIR AID, APPELLANTS



Nos. 380, 390 & 444 October Term, 1979, Appeals from the Orders of the Court of Common Pleas of Philadelphia County, August Term, 1978, No. 4145, Granting a Preliminary Injunction and Holding T. Milton Street in Civil Contempt of Court.

COUNSEL

John F. Street and George D. Gould, Philadelphia, for appellant.

Denis V. Brenan, Philadelphia, for appellee, Rouse.

Barry J. Grossman, Philadelphia, amicus curiae for appellee, City of Philadelphia.

Jacob Hart, Philadelphia, for appellee, Gimbel Bros.

Van der Voort, Watkins and Lipez, JJ.

Author: Watkins

[ 274 Pa. Super. Page 59]

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County, Civil Division, and involves defendant's appeal from an Order of the court below holding him in civil contempt of court. Defendant was also fined Five Thousand ($5,000.00) Dollars which fine was made payable to the City of Philadelphia within six (6) months.

On August 25, 1978, the defendant, T. Milton Street, and a large group of persons estimated to be from three to five thousand (3000 to 5000) strong, massed at various locations in and around the entrances to a downtown shopping mall in Center City Philadelphia known as The Gallery. They also converged on Gimbels Department Store located in the same area. Ingress and egress to both The Gallery and Gimbels was rendered difficult and, at times, impossible, by the group's activities.

The defendant and three to five hundred (300 to 500) of the demonstrators then entered The Gallery and marched throughout the mall shouting in loud voices and bringing business therein to a virtual standstill. The defendant spoke to the throng with the aid of sound amplification equipment and urged a boycott of the businesses in the mall.

[ 274 Pa. Super. Page 60]

A temporary restraining order was promulgated by the court below on August 26, 1978, and on January 31, 1979, the court below entered an order enjoining the defendant and the persons acting in concert with him from "picketing, handbilling, speechmaking, demonstrating, and boycotting inside or outside The Gallery or Gimbels . . ." The court defined the area from which defendants were enjoined from engaging in the aforesaid activities as "the public areas therein [The Gallery and Gimbels], or any of the three colonnades located outside the entrance to Gimbels, or the exterior courtyard area, or the sidewalk which forms the immediate perimeter surrounding The Gallery, Gimbels and Strawbridge Store."

On February 22, 1979, the defendant and thirty-seven (37) other persons were arrested at The Gallery for allegedly violating the January 31, 1979 injunction decree. A hearing was then held at which witnesses testified that: Street and two hundred and fifty (250) to three hundred (300) people had congregated on the northeast corner of 10th and Market Streets in Philadelphia, in front of The Gallery and Gimbels; they also had congregated on the sidewalk and in the colonnades area of the mall; the group shouted and blocked the entrance to The Gallery and Gimbels; because they stood close together they were successful in preventing people from entering the stores; that during the incident members of the defendant's group chanted and shouted "boycott" to persons attempting to enter The Gallery; that a police officer, who had been empowered to enforce the court order enjoining the demonstration gave the defendant Street and his attorney copies of the January 31, 1979 order; that an officer then read the court order to the group using sound amplification equipment but the group continued to shout and chant "boycott" as the order was read to them; and that after giving the group five minutes to disburse the police arrested defendant Street and thirty-seven (37) of his followers. At the hearing defendant Street was given the opportunity to address the court and informed the court that despite the court order he intended "to go back to The Gallery tomorrow".

[ 274 Pa. Super. Page 61]

On February 23, 1979, defendant Street went to The Gallery again and led a group of demonstrators onto the northeast corner of 10th and Market Streets. After being notified of the defendant's actions the court ordered the arrest of persons violating the January 31, 1979 Order. Street was one of the persons arrested. A hearing was held at 1:30 P.M. on February 23, 1979. Testimony adduced at the hearing revealed that at 11:20 A.M., the defendant led a group of thirty-five (35) protestors to the northwest corner of 10th and Market Streets then crossed the intersection. The group was shouting "boycott, boycott" throughout the incident. As the police attempted to read the court order of January 31, 1979 to them, the group marched east on the north side of Market Street for a distance of approximately twenty (20) feet then turned around and marched back to the northeast corner. This area lies in front of The Gallery. The defendant then led his group to a SEPTA boarding island which runs east to west in the 900 block of Market Street on the north side and is about twenty (20) feet from the sidewalk. During this period the group continued to chant "boycott, boycott, boycott The Gallery", which chanting was clearly audible to persons located at the entrances to and on the sidewalk in front of The Gallery. At this point defendant and his followers were arrested.

After the hearing, the defendant was found in civil contempt of court and was committed for ninety (90) days, conditioned upon his right to purge himself of the contempt by assuring the court that he would, in the future, abide by the court order until such order was vacated or stayed. He was also fined Five Thousand ($5,000) Dollars. On February 26, 1979, Street filed an appeal to this Court.

Defendant's first argument is that the court order prohibiting the "picketing, handbilling, speechmaking, demonstrating and boycotting of The Gallery" constituted an unconstitutional violation of defendant's First Amendment rights of freedom of speech and expression. Defendant's brief states at length defendant's ...


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