Appeal from the Order Entered in the Court of Common Pleas of Chester County, Civil Division, No. 84-08225.
Eric Hemmendinger, West Chester, for appellants.
N. Michael Katz, Philadelphia, for United Food, Local 1357, appellee.
Miriam L. Gafni, Philadelphia, for United Food, Local 56, appellee.
Cirillo, President Judge, and Brosky, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia and Johnson, JJ. Beck, J., files a concurring opinion. Tamilia, J., files a concurring and dissenting opinion.
[ 374 Pa. Super. Page 333]
This is an appeal from an order denying appellants', Coatesville Development Company and Giant Food Stores, petition for a preliminary injunction against appellees, two locals of the United Food and Commercial Workers Union. We affirm.
On August 28, 1984, appellant Giant Food Stores, Inc. (Giant) opened a new supermarket at Thorndale Shopping Center which shopping center is owned*fn1 by Coatesville Development Company (Coatesville). The Thorndale Shopping Center consists of several stores in addition to Giant and a large parking area, and it is immediately adjacent to another shopping center which includes a competitor of Giant. The same day that the store opened, appellees were engaged in a labor dispute with Giant and began picketing and distributing handbills in front of the store as well as in the parking lot of the shopping center. The appellees charged that Giant paid substandard wages to its employees and discouraged public patronage of the store. The Union was not attempting to organize Giant's employees and none of the pickets was employed by Giant.
Coatesville has no policy limiting or restricting the purposes for which a person is invited onto the mall premises.
[ 374 Pa. Super. Page 334]
Giant has a policy prohibiting unauthorized solicitation by non-employees on its premises and prohibiting employees from soliciting during working time on both the company's property as well as in the common areas of the shopping center. This policy is made known to the public by a sign which is posted inside the store's vestibule. The sign reads:
UNAUTHORIZED SOLICITATION FOR ANY PURPOSE OR THE DISTRIBUTION OF LITERATURE OF ANY KIND BY NON-EMPLOYEES ON COMPANY PREMISES IS NOT PERMITTED.
EMPLOYEES ARE NOT PERMITTED TO SOLICIT OR DISTRIBUTE LITERATURE DURING WORKING TIME IN WORKING AND PUBLIC AREAS.
The sign is not visible to one driving past the store in an automobile, and there is no positive evidence in the record that the sign is visible by pedestrians in the parking lot or on the sidewalk outside the store.
The day after the picketing began, Giant obtained a temporary ex parte injunction permitting the pickets, but limiting their number and their location at specific places on the sidewalk and in the parking areas of the mall. Five days later, Giant and the Union consented to the entry of an injunction on terms similar to the ex parte injunction, and the trial court made the consensual injunction an order of court. However, both the Union and Giant expressly reserved the right to assert and challenge, respectively, the Union's legal right to picket on the mall property.
Almost three months after the ex parte injunction was obtained, Coatesville filed a separate complaint in equity against the Union seeking a temporary and permanent injunction against all picketing on its property by the Union. Despite Giant's consent to the earlier limited injunction in its separate action, Giant, along with Coatesville, filed an amended complaint in Coatesville's equity action naming both Coatesville and Giant as plaintiffs in the action. One of the paragraphs in the complaint stated that all the proceedings in Giant's separate action in which it had consented to the preliminary injunction were incorporated by
[ 374 Pa. Super. Page 335]
reference. In its answer to the amended complaint, the Union denied that anything from Giant's separate action against the Union was incorporated or that the two actions had been properly joined. Also, in response to the amended complaint the Union filed unfair labor charges against appellants. The National Labor Relations Board dismissed the charges on the basis that the Union had failed to show that appellants' action was frivolous or lacking a reasonable basis in fact or in law, or that the action was retaliatory. Thus, it did not constitute an unfair labor practice.
In December, 1984, a hearing was held in the Coatesville/Giant action on the issue of whether the trial court should grant the requested preliminary injunction and permit the Union to picket on appellants' property. The trial court determined that while peaceful picketing on private property is not protected by the First Amendment of the United States Constitution, it is protected by Art. 1, § 7*fn2 of the Pennsylvania Constitution.
In reaching its conclusion, the trial court relied on Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981), in which our Supreme Court held that the Pennsylvania Constitution affords more expansive protection of free speech than the federal constitution. Tate further established a test which balances the right to possess and use property against the right of free expression. Applying this test to the instant action, the trial court held that it was a reasonable exercise of police power to permit peaceful picketing
[ 374 Pa. Super. Page 336]
by the Union on appellants' property particularly since it determined that the Union's alternatives were wholly inadequate. Thus although the trial court found that the Pennsylvania Constitution protected the Union's right to picket, it found it unnecessary to grant the preliminary injunction because the existing injunction granted in Giant's separate action against the Union and which was agreed to by Giant and the Union but not Coatesville, was an appropriate accommodation of the parties' ...