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Northeast Women's Center Inc. v. McMonagle

filed: March 2, 1989.

NORTHEAST WOMEN'S CENTER, INC., APPELLANT IN NO. 88-1268
v.
MICHAEL MCMONAGLE, JOSEPH P. WALL, ROLAND MARKUM, HOWARD WALTON, HENRY TENAGLIO, STEPHANIE MORELLO, ANNEMARIE BREEN, ELLEN JONES, KATHY LONG, SUSAN SILCOX, PAUL C. ARMES, WALTER G. GEIS, JOHN J. O'BRIEN, JAMES CODICHINI, PATRICIA WALTON, JOHN BREEN, DENNIS SADLER, JOAN ANDREWS, MIRIAM DWYER, MARY BYRNE, JOHN MURRAY, LINDA CORBETT, THOMAS MCILHENNY, PATRICIA LUDWIG, GERRALD LYNCH, MARGARET CAPONI, DEBORAH BAKER, THOMAS HERILHY, PASQUALE VARALLO, JOHN STANTON, ANNE KNORR, JOHN CONNOR, ELLIOTT STEVENS, HARRY HAND, LAURIE WIRFELL, HELENA GAYDOS, ROBERT MORAN, EARL ESSEX, PATRICIA MCNAMARA, DONNA ANDRACAVAGE, JUAN GUERRA, AND LINDA HEARN. MICHAEL MCMONAGLE, DENNIS SADLER, MARY BYRNE, DEBORAH BAKER, MARGARET CAPONI, THOMAS HERLIHY, ANNE KNORR, AND ROBERT MORAN. APPELLANTS IN NO. 88-1333, JOHN J. O'BRIEN, JOSEPH WALL, ROLAND MARKUM, HOWARD WALTON, PATRICIA WALTON, HENRY TENAGLIO, STEPHANIE MORELLO, ANNEMARIE BREEN, ELLEN JONES, KATHY LONG, SUSAN SILCOX, PAUL ARMES AND WALTER GIES. APPELLANTS IN NO. 88-1334, PATRICIA MCNAMARA AND THOMAS MCILHENNY. APPELLANTS IN NO. 88-1335, DONNA ANDRACAVAGE, JUAN GUERRA, AND HELENA GAYDOS. APPELLANTS IN NO. 88-1336



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 85-4845.

Sloviter and Hutchinson, Circuit Judges and Gerry, District Judge n.* [Footnote Omitted].

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

Following a lengthy trial in this action brought by a women's health center against a group of anti-abortion activists, the jury returned a verdict for plaintiff on its claims under civil RICO and the state torts of trespass and intentional interference with contract. On appeal, plaintiff challenges the district court's use of the unclean hands doctrine to limit the injunctive relief given and the court's order setting aside the jury's punitive damage award. Defendants, who have filed multiple briefs, raise more than twenty issues on their cross-appeals, including the application of civil RICO, the availability of the justification defense, and various claims of prejudical error at trial.

Although issues on appeal are generally considered first, we begin with a discussion of the matters raised on defendants' cross-appeal because, if defendants' contentions are correct, we need not reach the appellant's issues. We will confine our opinion to those issues raised by defendants that we believe merit discussion.*fn1

I.

Facts and Procedural History

Plaintiff-appellant, the Northeast Women's Center, Inc. (Center), is a Pennsylvania corporation which provides gynecological services, including pregnancy testing and abortions. The defendants-appellees are twenty-six individuals*fn2 (referred to collectively as Defendants) who are vigorously opposed to abortion and who have repeatedly protested the Center's abortion services by activities at the situs of the Center. Certain Defendants have attended Board of Directors meetings of the Pro-Life Coalition of Southeastern Pennsylvania and one defendant, Michael McMonagle, is its paid Executive Director.

The Center has emphasized throughout this litigation that it is not challenging Defendants' free speech right to make public their opposition to abortion. Instead, this lawsuit was brought alleging illegal and tortious activity by Defendants that went beyond Defendants' constitutional rights of speech and protest.

The Center presented evidence at trial that established that Defendants unlawfully entered the Center's facilities on four occasions. On December 8, 1984, approximately fifty protestors, including twelve Defendants, rushed into the Center's premises, which at that time were located at 9600 Roosevelt Boulevard in Northeast Philadelphia, and knocked down Center employees who attempted to prevent the mass entry into the building. Once inside, Defendants and others blocked access to rooms and strewed medical supplies on the floor.

Ardis Ryder, then acting administrator of the Center, testified that she decided on the basis of this incident to hire security guards for the first time in the Center's history to protect the safety of its employees and patients. One employee testified that she sustained injuries during this incident while attempting to prevent Defendants and others from forcing their way into a patient treatment room. She testified that as a result of such harassment she resigned from her position at the Center, and did not resume employment at the Center until after it installed a sophisticated security system. Twelve Defendants were among the thirty persons arrested and charged with trespass after this incident. App. at 633.

On August 10, 1985, twelve Defendants pushed into the Center's premises. An employee who was injured as a result of Defendants' activities lost work time. Another employee testified that after members of the group locked themselves in an operating room, she observed a Defendant leave the operating room with an object concealed under his coat. When the employee entered the room she discovered that machinery had been damaged and disassembled. Twelve Defendants were arrested and subsequently convicted of defiant trespass for the August 1985 incident. App. at 634; see Commonwealth v. Markum, 373 Pa. Super. 341, 541 A.2d 347 (1988) (affirming conviction on appeal).

On October 19, 1985, there was another attempt by anti-abortion activists to enter the Center. A number of persons were arrested, including twenty-four Defendants. App. at 635. Two persons did manage to rush through the doors and enter, knocking down a Center employee. Three Defendants were subsequently convicted of defiant trespass. App. at 635-36.

The fourth trespass that was the subject of the federal suit took place on May 23, 1986. The jury was shown a videotape of the incident, which showed protesters sitting down on the floor of a waiting room inside the clinic, standing in front of patients awaiting services and castigating them, and ignoring repeated requests that they cease trespassing and leave the building. Exhibits P-76, P-77. One Defendant stated, "We're going to shut this place down." The police eventually removed the trespassers. There was testimony that other Defendants who were outside the premises blocked the doors to the Center and the building in which it was located. Twenty-six persons, including sixteen Defendants, were arrested and fifteen Defendants were subsequently convicted for criminal conspiracy, disorderly conduct, and/or defiant trespass as a result of this incident. App. at 637-38.

Witnesses at the trial in this case testified that on these and other occasions they observed Defendants photographing patients, chanting through bullhorns, blocking building entrances, and surrounding and pounding on the windows of employees' cars. In fact an assistant district attorney who witnessed a demonstration testified that the demonstrators' activity rose to a "frenzy" and that he delayed leaving the Center out of fear for his physical safety. App. at 79193 Videotape evidence revealed demonstrators pushing, shoving and tugging on patients as they attempted to approach the Center, knocking over and crossing beyond police barricades and blocking the ingress of cars. A protester is recorded stating, "I bet you ten to one this place doesn't last six months." Another added, "This place is going to be shut down." Exhibits P-6, P-76, P-77. A doctor employed by the Center testified that the sound of chanting, amplified by bullhorns, was audible in the Center's operating room. Another doctor testified that this noise would put patients "under considerably greater stress," especially when going under or coming out of general anesthesia. App. at 433.

Three employees testified that they were repeatedly subjected to picketing at their homes. Two of these employees stated that they resigned from their positions at the Center because of Defendants' actions at their homes and the Center.

In July 1986, the Center lost its lease and moved to a new location. Both the director of the Center and defendant McMonagle, a leader of the activists, attributed the Center's loss of its lease to Defendants' activities at the Center.*fn3 The Center installed a new sophisticated security system at its new location.*fn4 In August 1986, protesters made a fifth attempt to enter the Center, which the district court found was "thwarted only by the installation of sophisticated security equipment." App. at 260.

In August 1985, the Center filed a civil suit in the United States District Court for the Eastern District of Pennsylvania, alleging that Defendants had agreed among themselves and others to disrupt the Center's business and injure its property by, inter alia, harassing the Center's clients and employees, unlawfully entering on its property, and destroying and damaging medical equipment. The Center sought damages and injunctive relief under the Sherman Antitrust Act, 15 U.S.C. §§ 1, 15, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and the common law torts of trespass and intentional interference with contractual relations. The district court denied Defendants' motion to dismiss the complaint. Northeast Women's Center, Inc. v. McMonagle, 624 F. Supp. 736 (E.D. Pa. 1985).

Thereafter, the Center sought preliminary injunctive relief, contending that Defendants had intensified their harassment of patients and staff, that they were acting to prevent the Center from moving to its new location, and that Defendants had forcibly entered its premises twice since the complaint was filed. The district court's denial of a preliminary injunction was vacated by this court because the district court had not made the factual findings required under Fed. R. Civ. P. 52(a). Northeast Women's Center, Inc. v. McMonagle, 813 F.2d 53 (3d Cir. 1987). We suggested "in the strongest possible terms" that the parties agree to convert the action into a final injunction hearing id. at 54-55, which they did.

At the close of a three-week trial, the district court directed a verdict in favor of Defendants on the Sherman Act charge, but sent to the jury the remaining RICO, trespass and intentional interference with contract claims. In response to a detailed series of interrogatories prepared by the district court, the jury found twenty-seven Defendants liable under RICO and assessed $887 in damages on this claim, reflecting the cost of repairing certain medical equipment, which the district court trebled pursuant to 18 U.S.C. § 1964(c) (1982). The jury found that three Defendants had interfered with the Center's contracts with its employees but found no proximate loss to have resulted from this interference and awarded no damages on this claim. Finally, it found twenty-four Defendants liable for trespass, and assessed $42,087.95 in compensatory damages and $48,000 in punitive damages ( $2,000 per defendant).

The district court denied Defendants' motion for a new trial and judgment notwithstanding verdict except that it granted j.n.o.v. on the punitive damages award and set aside the jury's award of punitive damages on the ground that the Center had substantially prejudiced Defendants by failing to request punitive damages in a timely and consistent manner and by successfully precluding Defendants from presenting evidence of motive that would have been relevant on the punitive damages issue.

The court declined to give the Center any injunctive relief on its successful claims on the RICO and interference with contract counts on the ground that such relief was barred by the doctrine of unclean hands, based on evidence that a physician practicing at the Center had failed to comply with a fetal tissue inspection provision of ...


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