The opinion of the court was delivered by: STEWART DALZELL
Dalzell, J. April 16, 1993
Plaintiff, Arthur Wilkinson, has brought this action under 42 U.S.C. § 1983 and § 1985(3)
against Bensalem Township (the "Township"), Joseph Szafran, who is Bensalem Township Council President, Trish Dornisch and David Costello, Bensalem Township Councilmembers, for allegedly violating his First Amendment right to freedom of expression, particularly at a Township Council public meeting in the summer of 1992.
Now before us are plaintiff's motion for partial summary judgment and defendants' motion for summary judgment. For the reasons that follow, we shall deny plaintiff's motion and grant in part and deny in part defendants' motion.
Wilkinson alleges that the defendants deprived him of his First Amendment right to address the Bensalem Township Council (the "Council") during the public portion of the August 24, 1992, Council meeting. Consistent with its routine practice, Council requested that all those who wished to speak at the meeting fill out a card. Wilkinson, a Bensalem Township citizen, completed a card showing his desire to address Council, and handed it to Council President Szafran (see Affidavit of Jane Faust P 7 attached to Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment).
According to the testimony of Councilwoman Jane Faust, as the public portion of the meeting approached she overheard Councilwoman Trish Dornisch repeatedly insist to Szafran, "Don't let him talk" (id. P 8). She also testified that during a five minute recess just before the public portion of the evening's meeting, she overheard Councilman David Costello say to Szafran, "You're the chairman -- you don't have to let him talk" (id. P 9). At the time Faust overheard these statements, she assumed they referred to someone other than Wilkinson, but when the Council allowed this other individual to speak, Faust realized that the defendants' comments referred to Wilkinson. (Id. PP 9-10).
When everyone, except Wilkinson, who had expressed a desire to speak had addressed the Council, Szafran called for a motion to close the public portion of the evening's meeting. At this time, Wilkinson rose and the following exchange ensued:
Wilkinson: Mr. President, did you lose my request?
Szafran: No, I didn't. Unless you are prepared to apologize to council, I can't address you right now.
Wilkinson: So I will be excluded from further discussion of the meeting?
Szafran: I have a motion on the floor, and I have a second. Any further comment or question on that? I'll call the vote.
(Transcript of August 24, 1992 meeting of Bensalem Township Council at pp. 175-76, hereinafter referred to as "August 24 Transcript").
The meeting then proceeded to other business, which lasted about another two hours. Around midnight, when Council had concluded all other business, Township Solicitor Darrel Zazslow called the Council into executive session (see Affidavit of Jane Faust P 13). When the Council emerged from executive session, only five people remained, Wilkinson among them, out of the seventy-five present when the meeting began almost five hours earlier (see id. PP 14-15). Szafran reopened the public portion of the meeting to permit Wilkinson an opportunity to speak. Wilkinson refused, claiming that the delay and late hour did not provide him with a fair opportunity to be heard.