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NESHAMINY CONSTRUCTORS v. PHILADELPHIA (09/10/82)

filed: September 10, 1982.

NESHAMINY CONSTRUCTORS, INC., APPELLANT,
v.
PHILADELPHIA, PENNSYLVANIA BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO AND ITS AFFILIATE UNIONS AND PATRICK B. GILLESPIE, BUSINESS MANAGER: PHILADELPHIA, PENNSYLVANIA BUILDING AND CONSTRUCTION TRADES COUNCIL AND JOHN ROE AND JANE ROE



No. 898 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Trial Division, of Philadelphia County, Equity No. 5953 March Term, 1982

COUNSEL

Walter H. Flamm, Jr., Philadelphia, for appellant.

Leonard Spear, Philadelphia, for appellees.

Wickersham, Brosky and Wieand, JJ.

Author: Per Curiam

[ 303 Pa. Super. Page 421]

In this appeal from a final decree refusing relief and dismissing a complaint in equity, appellant contends that the

[ 303 Pa. Super. Page 422]

    trial court abused its discretion when it refused to enjoin conduct by pickets which prevented access to a major construction site.*fn1 We agree and reverse.

This is not the usual labor dispute. Neshaminy Constructors, Inc. (hereinafter "N.C.I.") has been awarded a contract by the City of Philadelphia to perform a portion of the construction work on the City's 330 million dollar, federally funded, Northeast Water Pollution Control Project. N.C.I. is a union employer. However, its employees are not represented by appellee, the Philadelphia, Pennsylvania Building and Construction Trades Council; they are represented by the United Steelworkers of America. Both unions are affiliated with the AFL-CIO. On March 22, 1982, when N.C.I.'s work on the project was scheduled to begin, pickets affiliated with appellee appeared at the entrance to the construction site which had been designated for use by N.C.I.'s employees and subcontractors. Their purpose apparently was to protest the awarding of the contract to an employer whose employees were represented by a union other than the Building and Construction Trades Council. The activities of appellee's pickets were recorded by video-tape over the course of three days. These tapes were entered into evidence and examined by the trial judge. The tapes, together with the recorded testimony, have also been examined by the members of this Court. This evidence establishes beyond peradventure of a doubt that vehicles approaching the entrance were denied access to the site. When a vehicle approached the gate, one or more pickets engaged the driver in conversation while several others placed themselves in front of the vehicle. The latter pickets refused to move, and the vehicle was thereby denied entrance. The absence of violence, a fact noted by the trial judge, was attributable solely to the unwillingness of approaching vehicle operators to challenge physically the pickets stationed in front of their

[ 303 Pa. Super. Page 423]

    vehicles. Rather than attempt to force their way into the construction site, the drivers withdrew.*fn2

At the outset of the proceedings, it was stipulated by the parties, with the approval of the trial judge, that the hearing would be a final hearing and would decide whether permanent injunctive relief should be granted. The court's order, therefore, was not one which could be reconsidered if a preliminary injunction were granted or denied. On appeal from a final decree, the standard of review is not whether there were "any apparently reasonable grounds for the action of the court below", as is the case when the issuance or denial of preliminary injunctive relief is reviewed. See e.g.: Link Belt Co. v. Local Union No. 118 of American Federation of Technical Engineers, 415 Pa. 122, 129, 202 A.2d 314, 318 (1964); Philadelphia Minit-Man Car Wash Corp. v. Building and Construction Trades Council of Philadelphia and Vicinity, 411 Pa. 585, 589, 192 A.2d 378, 380 (1963); Mead Johnson & Co. v. Martin Wholesale Distributors, Inc., 408 Pa. 12, 19, 182 A.2d 741, 745 (1962). On the contrary, the test is whether the trial court, in entering a final decree, abused its discretion or committed an error of law. Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America (CIO) Local 601 et al., 353 Pa. 446, 449, 46 A.2d 16, 18 (1946) (Lower court denied injunctive relief and dismissed complaint). See also: Sack v. Feinman, 489 Pa. 152, 165-66, 413 A.2d 1059, 1066 (1980); Felmlee et al. v. Lockett, 466 Pa. 1, 7, 351 A.2d 273, 276 (1976); Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa. Super. 526, 534, 423 A.2d 370, 374 (1980).

Applying an abuse of discretion standard to the facts of the case, we are constrained to conclude that the trial court's refusal to enter an order guaranteeing unimpeded access to the project constituted an abuse of discretion. Significantly, our determination does not ...


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