Appeal from Order of Superior Court of Pennsylvania at No. 1237 Pittsburgh 1982, Dated October 26, 1984 Affirming Final Decree of Court of Common Pleas of Allegheny County, Civil Division at No. GD 82-09493 Dated October 21, 1982, 335 Pa Superior Ct. 493,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen and Zappala, JJ., file concurring opinions. McDermott, J., concurs in the result and files a concurring opinion. Nix, C.j., files a concurring and dissenting opinion. Papadakos, J., did not participate in the consideration or decision of this case.
Appellants are a political committee, its chairman, gubernatorial candidate and a campaign worker. They appeal by allowance a Superior Court order, 335 Pa. Super. 493, 485 A.2d 1, affirming Allegheny County Common Pleas. Common Pleas had dismissed their suit for a mandatory injunction directing appellee, owner of a shopping mall, to cease interfering with appellants' political activities on appellee's
premises. Appellants claim that they have the right, under the Pennsylvania Constitution's guarantees of free speech and petition, to collect signatures on the gubernatorial candidate's nominating petition in privately-owned shopping malls and that appellee cannot deny them access to its mall for that purpose.*fn1
We believe that the Pennsylvania Constitution does not guarantee access to private property for the exercise of such rights where, as here, the owner uniformly and effectively prohibits all political activities and similarly precludes the use of its property as a forum for discussion of matters of public controversy. See Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981). We would therefore affirm Superior Court.
In the spring of 1982, appellants began a drive to collect signatures on nominating papers in an effort to place a candidate on that November's gubernatorial ballot. They sought permission to solicit signatures and educate the
public about their cause in a shopping mall known as South Hills Village. South Hills Village is a large enclosed shopping mall in suburban Pittsburgh. The mall contains approximately one million square feet of enclosed space, hosts some 126 stores and is circumscribed by a 5000-vehicle parking lot. It was opened in 1964; appellee has owned it since 1982. The mall has a uniform policy of forbidding all political solicitation and appellants' request was denied. Rather than risk criminal prosecution by soliciting signatures in the face of this policy, appellants filed a complaint in equity in the Court of Common Pleas of Allegheny County. They sought to enjoin appellee from enforcing its no political solicitation policy on the ground that it violated their speech and petition rights under the Pennsylvania Constitution. Pa. Const., art. I, §§ 2, 7, 20.
A hearing was held before Judge (now Mr. Justice) Nicholas P. Papadakos, who entered an adjudication and decree nisi denying relief to appellants on May 28, 1982. The court en banc denied exceptions on October 21, 1982. Superior Court affirmed. The Court granted appellants' petition for allowance of appeal to consider the important question of whether Sections 2, 7 and 20 of Article I of the Pennsylvania Constitution impose a duty on a privately-owned shopping mall to permit political solicitation on its premises.
Initially, we would reject appellee's contention that this case is moot and we, therefore, lack jurisdiction. A recognized exception to the strict doctrine of mootness applies here. Although the 1982 election is over and the purpose of the activity the appellants sought to engage in on appellee's premises, securing enough signatures to place their gubernatorial candidate on the ballot, can no longer be served, this case poses important issues likely to escape review. Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362, cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974). These issues are highly unlikely to reach the appellate courts during the relatively brief campaign season. Therefore, we would reach the merits of appellants' claim.
The crux of appellants' argument is that the provisions of the Pennsylvania Constitution set out at footnote 1 of this opinion, at 1332, provide greater free speech and petition rights than the First Amendment to the United States Constitution. They assert that these greater rights include the right to solicit signatures and educate the public about their political cause in a privately-owned shopping mall.
In our federal system, the Constitution of the United States provides a minimum level of protection for individual rights. A state constitution may, however, provide greater protection for those rights. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). We have recognized that Pennsylvania may afford greater protection to individual rights under its Constitution. Commonwealth v. Tate, supra; R. Woodside, Pennsylvania Constitutional Law, 116-19 (1985).*fn2
The primary purposes of a constitution are to establish a government, define or limit its powers and divide those powers among its parts. U.S. Const. amend. X; J. Nowak, R. Rotunda, and J. Young, Constitutional Law, 121 (2d Ed. 1983). See generally 16 Am.Jur.2d, Constitutional Law, § 6 (1979). The United States Constitution established a government of limited and enumerated powers. Consequently, the national government possesses only those powers delegated to it. J. Nowak, supra, at 121. See generally 16 Am.Jur.2d at § 278. State constitutions, on the other hand, typically establish governments of general powers, which possess all powers not denied by the state constitution. J. Nowak, supra, at 121. See generally 16 Am.Jur.2d at § 16. Our state constitution functions this way and restrains these general powers by a Declaration of
Rights. R. Woodside, supra, at 3, 113; Commonwealth v. Wormser, 260 Pa. 44, 46, 103 A. 500, 501 (1918) (the legislature may enact all laws not forbidden by the state constitution).
The Pennsylvania Constitution of 1776, our first post-colonial constitution, illustrates Pennsylvania's basic constitutional scheme. It contains two parts: one which establishes a government and one which limits its powers. The first part, titled Declaration of Rights of Inhabitants of the Commonwealth or State of Pennsylvania, contains most of the language found in our present Article I. The second, titled Plan or Frame of Government for the Commonwealth or State of Pennsylvania, establishes a governmental system. This simple two-part format in itself evinces the draftsmen's intent to establish a government and to limit its powers, R. Woodside, supra, at 114, in consonance with their known adherences to the theories of Locke, Montesquieu and other natural law philosophers. J. Selsam, The Pennsylvania Constitution of 1776, 176 (1936). Additionally, § 46 of the Frame of Government acknowledges the limitations on governmental power by stating:
The Declaration of Rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretense whatever.
Pa. Const. of 1776, Frame of Government, § 46. See T. White, Commentaries on the Constitution of Pennsylvania, 171 (1901).
By 1790, the government established by the Constitution of 1776 proved unworkable and the legislature authorized a new constitutional convention. T. White, supra, at xxiv-xxv. The resolution authorizing this convention included in the five topics to be addressed a call for alterations and amendments to the Declaration of Rights. The fifth topic read:
V. That that part of the constitution of this commonwealth called "A declaration of the rights of the inhabitants of the Commonwealth or State of Pennsylvania," requires alterations and amendments, in such manner as
that the rights of the people, reserved and excepted out of the general powers of government, may be more accurately defined and secured [.] . . ."
T. White, supra, at xxv (emphasis supplied).
Nevertheless, the Declaration of Rights was not substantively changed by the convention, although Section 46 of the 1776 Constitution's Frame of Government was rephrased and moved into the Declaration of Rights without material change as Article IX, Section 26. It now reads as it did then:
To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.
Pa. Const. of 1790, art. IX, § 26 (emphasis supplied) (renumbered without change at art. I, § 25). Subsequent conventions and amendments have left this frame of government, T. White, supra, at xxv, and the Declaration of Rights materially unchanged today. R. Woodside, supra, at 114.
Considering the foregoing history, we conclude that the Declaration of Rights is a limitation on the power of state government. Accord R. Woodside, supra, at 113. The Pennsylvania Constitution did not create these rights. The Declaration of Rights assumes their existence as inherent in man's nature. It prohibits the government from intefering with them and leaves adjustment of the inevitable conflicts among them to private interaction, so long as that interaction is peaceable and non-violent. This Court has consistently held this view, that the Pennsylvania Constitution's Declaration of Rights is a limit on our state government's general power. O'Neill v. White, 343 Pa. 96, 22 A.2d 25 (1941). Commonwealth ex rel. Smillie v. McElwee, 327 Pa. 148, 193 A. 628 (1937); Commonwealth ex rel. McCormick v. Reeder, 171 Pa. 505, 33 A. 67 (1895). It has also ...