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WESTERN PENNSYLVANIA SOCIALIST WORKERS 1982 CAMPAIGN v. CONNECTICUT GENERAL LIFE INSURANCE CO. (10/26/84)

filed: October 26, 1984.

WESTERN PENNSYLVANIA SOCIALIST WORKERS 1982 CAMPAIGN, FRANCIS FARLEY, MARK ZOLA AND LINDA NORDQUIST, APPELLANTS
v.
CONNECTICUT GENERAL LIFE INSURANCE CO.



No. 1237 Pittsburgh, 1982, Appeal from Decree of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 82-09493.

COUNSEL

Jon S. Pushinsky, Pittsburgh, for appellants.

Eric A. Schaffer, Pittsburgh, for appellee.

Wieand, Tamilia and Popovich, JJ.

Author: Wieand

[ 335 Pa. Super. Page 497]

Do the members of a politically oriented group have a constitutional right to use a privately owned shopping center to disseminate information and collect signatures on a nominating petition despite a general policy by the owner which precludes use of the premises for any and all political activity? The trial court held that there was no such right and refused injunctive relief. We affirm.

The material facts are not in dispute. In the spring of 1982, the "Western Pennsylvania Socialist Workers 1982 Campaign," a political committee, undertook a massive petitioning drive to obtain 23,407 signatures necessary to place the Socialist Workers Party's gubernatorial candidate, Mark Zola, on the November, 1982 ballot. Linda Nordquist, a registered Socialist Workers Party voter, Francis Farley, chairperson of the campaign committee, and Mark Zola, the candidate, who are appellants herein, sought to disseminate information and collect signatures at the South Hills Village shopping center.

South Hills Village is an enclosed mall owned by Connecticut General Life Insurance Company in the South Hills area of Allegheny County. Appellants chose South Hills Village because of the large number of persons who go there to shop and to take advantage of public service or entertainment programs periodically provided at the mall. The mall has seven public entrances and houses 126 retail businesses, with exterior parking facilities for approximately 5,000 vehicles. The owner of the mall has a long-standing, nondiscriminatory policy which bans all forms of politically oriented activity on its property, without regard to the nature of the activity or party affiliation of the would-be users.

Appellants sought, and were denied, permission to collect signatures and disseminate information in the mall. Aware of the owner's policy, appellants elected not to expose themselves to arrest for ignoring it. Instead, they filed a complaint in equity on May 11, 1982 seeking an order which would enjoin the owner from enforcing its ban and allow

[ 335 Pa. Super. Page 498]

    appellants access to South Hills Village for their political activities. After a hearing before the Honorable Nicholas Papadakos, now a justice of the Pennsylvania Supreme Court, an adjudication and decree nisi were entered denying the requested relief. Exceptions were denied by a court en banc, and a final decree was entered on October 21, 1982. This appeal followed.

Before we can proceed to a determination of the merits, it is first necessary to discuss the issue of mootness, inasmuch as the relief sought in the trial court -- an order enforcing the alleged right to solicit signatures for the 1982 gubernatorial campaign -- can no longer be granted. We agree with appellant that although the issue is technically moot at this point in time, the case is properly subject to appellate review. As the Pennsylvania Supreme Court has recognized, "[a] case that is technically moot may be decided on its merits if it involves a question that is capable of repetition but likely to evade review if the normal rules on mootness are applied. Wiest v. Mt. Lebanon S. Dist., 457 Pa. 166, 320 A.2d 362 (1974), cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974); Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892 (1974)." Commonwealth v. Joint Bargaining Committee, 484 Pa. 175, 179, 398 A.2d 1001, 1003 (1979). See: Scherrer v. Lamb, 319 Pa. Super. 290, 466 A.2d 163 (1983); Commonwealth v. Buehl, 316 Pa. Super. 215, 462 A.2d 1316 (1983). The issues involved in the instant case are such that they are likely to reoccur and equally as likely to evade review. Therefore, we address the merits of appellants' contentions.

The free speech provision of the First Amendment of the United States Constitution, applicable to the states by way of the Fourteenth Amendment, does not prevent a privately owned and operated shopping center from enforcing nondiscriminatory and non-arbitrary bans on certain forms of activity on its premises. The right of free speech secured by the federal Bill of Rights is held against the government and cannot be unreasonably infringed. In the absence of "state action," however, the acts of purely

[ 335 Pa. Super. Page 499]

    private actors, such as privately owned shopping centers, do not violate the federal constitution; such enterprises are free to enforce policies banning certain forms of speech activities under federal doctrine. Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976);*fn1 Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).

Recognizing these dispositive Supreme Court decisions, appellants have not argued that they have a federally protected right to exercise free speech at South Hills Village. Instead, they argue that the owner's policy violates rights conferred by the Declaration of Rights contained in the Pennsylvania Constitution, Pa. Const. Art. 1. Specifically, appellants contend that appellee's policy violates their right to alter, reform or abolish their government under Article 1, section 2; their rights of petition and assembly under Article 1, section 20; and their right to speak freely under Article 1, section 7. Their principal argument is premised upon the free speech provisions of section 7. Our discussion will also focus upon that provision because the parties have placed very little emphasis on the separate roles of sections 2 and 20, and because our interpretation of section 7 is controlling also of any interpretation of sections 2 and 20.

A state court, in interpreting the provisions of its state constitution, is free to read such provisions more expansively than correlative federal provisions and as conferring greater rights than those established under federal doctrine. Mesquite v. Alladin's Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152, 162 (1982). Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, 466-467 (1983); Commonwealth ...


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