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DAVIS SUPERMARKETS v. UNITED FOOD AND COMMERCIAL WORKERS (11/23/87)

filed: November 23, 1987.

DAVIS SUPERMARKETS, INC.
v.
UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 23, 951 PENN AVENUE, PITTSBURGH, PA 15222 AND ITS OFFICERS, REPRESENTATIVES, AGENTS AND EMPLOYEES, INDIVIDUALLY AND/OR ACTING IN CONCERT WITH UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 23, APPELLANTS



Appeal From the Order Entered in the Court of Common Pleas of Westmoreland County, Civil Division, No. 3622-1986.

COUNSEL

Joseph M. Maurizi, Pittsburgh, for appellants.

Edward R. Noonan, Pittsburgh, for appellee.

Rowley, Johnson and Montgomery, JJ.

Author: Rowley

[ 368 Pa. Super. Page 291]

Davis Supermarkets, Inc. ("Davis"), is the owner and operator of a supermarket located in Hempfield Township. The building stands alone and is not part of a plaza or mall. It is separated from the public thorofare by the store's private parking lot.

[ 368 Pa. Super. Page 292]

On May 23, 1986, appellants, employees and discharged former employees of the store, in conjunction with United Food and Commercial Workers, Local 23 ("Union"), began peaceful picketing and distributing handbills at the store, alleging that Davis was engaged in unfair labor practices.

On May 27, 1986, Davis filed a complaint in equity, alleging that the Union had trespassed and continued to trespass on its property, and seeking a preliminary and permanent injunction. That same day the parties agreed that the court should enter an order limiting the number, placement and activities of the pickets until such time as a hearing on Davis' request for a preliminary injunction could be held. Pursuant to the agreement such an order was entered and the court scheduled an evidentiary hearing for May 28, 1986.*fn1

On May 28, 1986, following the evidentiary hearing, the trial court granted appellee's request for a preliminary injunction and entered an order further limiting the Union's activities by inter alia, prohibiting them from picketing on Davis' property. No appeal was taken from that order. Instead of filing an appeal from the preliminary injunction, the Union filed unfair labor practice charges with the National Labor Relations Board ("NLRB").*fn2

The Union next filed preliminary objections to Davis' complaint in the trial court arguing that the trial court lacked subject matter jurisdiction because of the NLRB filing. In a supplement to its preliminary objections, the

[ 368 Pa. Super. Page 293]

Union further argued that the preliminary injunction, as issued by the trial court, unduly ...


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