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DAVID KLEBANOFF v. MICHAEL MCMONAGLE (12/23/88)

filed: December 23, 1988.

DAVID KLEBANOFF, M.D., APPELLEE,
v.
MICHAEL MCMONAGLE, JOSEPH WALL, HOWARD WALTON, THOMAS MCILHENNY, PASQUALE VARALLO, JOHN STANTON AND PATRICIA MCNAMARA, APPELLANTS



Appeal from the Order entered March 17, 1988 in the Court of Common Pleas of Montgomery County, Civil Division, at No. 87-04783.

COUNSEL

Thomas J. Short, Oreland, for appellants.

David I. Bookspan, Philadelphia, for appellee.

Olszewski, Del Sole and Johnson, JJ.

Author: Del Sole

[ 380 Pa. Super. Page 546]

This is an appeal of a permanent injunction preventing defendants and others with notice from picketing or demonstrating in the street directly in front of the home of Appellee, Dr. David Klebanoff. Appellants are members of the "pro-life" movement, who had picketed for almost a

[ 380 Pa. Super. Page 547]

    year in front of Dr. Klebanoff's home where he lives with his wife and young son.

A temporary injunction was issued by the Court of Common Pleas of Montgomery County in April, 1987 and a preliminary injunction by the same court was entered in October, 1987. In March, 1988 the court entered a final decree ordering a permanent injunction finding that limiting the defendants' conduct was necessary to prevent immediate and irreparable harm, that greater injury would occur by refusing the injunction than granting it, and that the Klebanoffs had no adequate remedy at law.

On appeal, the picketers have challenged the injunction as violative of their rights under the First and Fourteenth Amendments of the U.S. Constitution and under Article 1, Section 7 of the Pennsylvania Constitution. They also argue that this decree is an abuse of the trial court's discretion because of these constitutional transgressions.

In this case of first impression, we hold that courts of this Commonwealth can enjoin activity which violates an individual's residential privacy, and that the injunction in this case, which restricts the place where the expressive activity can occur, is a proper time, place and manner restriction. Therefore, the injunction is permissible under both the United States and Pennsylvania Constitutions. We further hold that, given the particular facts of this case, the entry of this decree was not an abuse of the trial court's discretion.

Although both the Pennsylvania and United States Constitutions protect the right of individuals to disseminate their views on religious, political and ethical matters, "even protected speech is not equally permissible in all places and at all times." Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567 (1985). It is well-settled that, under the First Amendment, expressive activity may be subject to reasonable time, place and manner restrictions. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981).

[ 380 Pa. Super. Page 548]

The more difficult question is what constitutes a reasonable restriction on the exercise of First Amendment Rights. A number of doctrines have developed in constitutional jurisprudence which are used in scrutinizing the reasonableness of a given restriction and which require balancing First Amendment rights and their elevated position in the hierarchy of protected values with the legitimate interests of government or individual civil rights. A recent decision of the Supreme Court, Frisby v. Schultz, U.S. , 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), employed those traditional doctrines in upholding the constitutionality of a city ordinance banning picketing aimed at a private residence in the face of a similar First Amendment challenge by antiabortion activists who were picketing a doctor's home. This precedent provides strong ...


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