The opinion of the court was delivered by: ANITA B. BRODY
In this action I must decide whether an injunction should be issued against the defendant Peter Pan Bus Lines for behavior of "hawkers" employed by Peter Pan to announce its services, and conduct by Peter Pan bus drivers. I find that the "hawkers" did commit and should be enjoined from trespass in the Greyhound terminal, but that their activity outside the Greyhound terminal does not constitute a public nuisance. I find that the busdrivers have committed trespass, and that an injunction is appropriate for those violations.
On January 24th and 25th, 1994, I held a hearing for the purpose of determining whether to issue a preliminary injunction, and received testimonial, document, photograph, and videotape evidence. I make the following findings of fact:
1. Plaintiff, Greyhound Lines, Inc., is a Delaware corporation whose principal place of business is located in Dallas, Texas. Greyhound is engaged in the business of transporting passengers by motor vehicle in intrastate and interstate commerce pursuant to Certificates of Public Convenience and Necessity issued by the Interstate Commerce Commission ("ICC") and certain state regulatory authority and has been in business for over 80 years. Stipulation of Parties.
2. Greyhound is authorized to do business in the Commonwealth of Pennsylvania and maintains a facility for this purpose which is located at 1001 Filbert Street, Philadelphia, Pennsylvania ("the Greyhound Terminal"). Stipulation of Parties.
3. Greyhound has conducted business at the Greyhound Terminal since July 1, 1986. Stipulation of Parties.
4. At all times relevant to this action, Martin Pisciotti has been Greyhound's District Manager for the district which includes all Greyhound facilities in Pennsylvania, New Jersey and Delaware. Testimony of Martin Pisciotti.
5. At all times relevant to this action, Greg Burns has been Greyhound's Customer Service Manager at the Greyhound Terminal, with primary responsibility for Greyhound's operations at that facility. Mr. Burns reports to Mr. Pisciotti. Testimony of Greg Burns.
6. At all relevant times, Richard Willis, who is employed by Wachenhut Security, has been in charge of security at the Greyhound Terminal. Mr. Willis, a 24 year veteran of the Philadelphia Police Force, reports to Mr. Burns. Testimony of Richard Willis.
8. Peter Pan is authorized to do business in the Commonwealth of Pennsylvania and maintains a facility for this purpose located at 55 North 11th Street in Philadelphia, Pennsylvania ("the Peter Pan Terminal"). A portion of the Peter Pan Terminal is directly adjacent to the Greyhound Terminals on Filbert Street in Philadelphia. Stipulation of Parties.
9. Peter Pan and Greyhound are competitors on routes between Philadelphia and Washington, D.C. and Philadelphia and New York City. Stipulation of Parties.
10. On or about September 1, 1993, Peter Pan began operating out of the Peter Pan Terminal, on property directly adjoining the property upon which the Greyhound Terminal is located. Stipulation of Parties.
11. David Batchelor, Sr. is Peter Pan's Vice President of Business Development. Testimony of David Batchelor, Sr.
12. David Batchelor, Jr. is the manager of the Peter Pan Terminal and the only Peter Pan managerial employee at that terminal. Testimony of D. Batchelor, Sr.; Answer to First Set of Interrogatories, Number 3. Mr. Batchelor, Jr. did not testify at trial.
13. Peter Pan has hired several former Greyhound employees including David W. Batchelor, Sr., Raphael Cedeno and several bus drivers. Testimony of D. Batchelor, Sr.
14. The main public entrance to the Greyhound Terminal is located on Filbert Street. Testimony of M. Pisciotti. This main public entrance, the doorway to which is 65 inches wide, is the only public entrance to the Greyhound Terminal on Filbert Street. Id.
15. Greyhound leases the property upon which the Greyhound Terminal is located ("the Greyhound Property") pursuant to a lease agreement dated December 30, 1986 between Transportation Associates and Eastern Greyhound Lines, Co. (a former affiliate of Greyhound Lines, Inc.). Testimony of M. Pisciotti. Under the terms of the lease agreement, Greyhound has the exclusive right to use and occupy the Greyhound property, and no other party has any right to use, occupy, crossover, or enter upon the Greyhound Property without Greyhound's express consent. The total monthly amount Greyhound pays for the Greyhound property is approximately $ 23,000. Exhibit P-9.
16. A portion of the Greyhound property, which is located behind the Greyhound Terminal, is immediately adjacent to Cuthbert Street, a public street of the City of Philadelphia. Exhibit P-1.
17. Cuthbert Street in the area of the Greyhound Terminal is a legally open public street from North Eleventh Street eastwardly to the western boundary of the Greyhound Property where Cuthbert Street dead-ends and is posted by the City of Philadelphia as having "No Access" from North Eleventh Street. There are also several signs in this area (posted by the City of Philadelphia) indicating that there is "No Stopping" and "No Parking" in the area. Exhibits P-7a through P-7d. The 1000 block of Cuthbert Street is not a through street and does not connect North Eleventh Street and North Tenth Street. Exhibit P-1.
18. On the portion of Cuthbert Street which is open to the public, "Stopping" is prohibited at the western most end up to North Eleventh Street. In the rest of the public portion of Cuthbert Street only "Parking" is prohibited. Exhibit P-7d.
19. According to the credible testimony of Martin Pisciotti, Peter Pan buses often stop in the "No Parking" portion of the public part of Cuthbert Street to let off and take on passengers.
20. The portion of the Greyhound Property which extends from the publicly open portion of Cuthbert Street to North Tenth Street is used by Greyhound and its tenants for exclusive ingress and egress from and to public thoroughfares to the Greyhound Terminal for loading and unloading of their passengers and cargo from Greyhound's and its tenants' motor vehicles. Testimony of M. Pisciotti.
22. Pursuant to the bus terminal lease agreements with its tenants, Greyhound provides each tenant with designated areas for bus use and parking, as well as use of Greyhound's terminal and ticketing facilities, for which Greyhound receives compensation. Testimony of M. Pisciotti.
23. Greyhound's policy is that Greyhound's and its tenants use of the Greyhound Property, particularly the portion used for ingress and egress and loading and unloading of buses must be exclusive, unencumbered and unimpeded and cannot be used without permission by Greyhound. Testimony of M. Pisciotti.
24. Beginning on or about September 16, 1993 and continuing thereafter, Peter Pan employees, agents or representative have been driving Peter Pan buses over and across the Greyhound Property directly adjacent to Cuthbert Street behind the Greyhound Terminal. Testimony of M. Pisciotti, Testimony of D. Batchelor, Sr.
25. By letter dated September 23, 1993 and sent via certified mail to David Batchelor, Mr. Pisciotti informed Peter Pan that Peter Pan buses had been driving over and across Greyhound's property and informed Peter Pan that the area used is not a public throughway and that Peter Pan was trespassing on Greyhound's property. Exhibit P-2.
26. David W. Batchelor, Sr. received this letter on September 27, 1993. Id.
27. Neither Mr. Batchelor, Sr. nor anyone else at Peter Pan responded to Mr. Pisciotti's letter in any way. Testimony of D. Batchelor, Sr.; Testimony of M. Pisciotti.
28. According to Mr. Batchelor, Sr., Peter Pan's trespass was the result of a misunderstanding regarding zoning. According to Mr. Batchelor, Sr., he had his lawyer check the zoning, and upon learning in October that the Peter Pan buses were trespassing, he ordered the trespass to stop. Mr. Batchelor, Sr.'s explanation about the zoning misunderstanding was supported by no other evidence such as his lawyer's testimony or documentation of communication with the zoning board. I do not find this account to be credible.
29. Despite being placed on notice that Peter Pan buses were trespassing on Greyhound's property, subsequent to September 27, 1993 Peter Pan buses continued to trespass on Greyhound's property. Specifically, according to the credible testimony of Martin Pisciotti, subsequent to receiving notice that it was trespassing on Greyhound property, Peter Pan employees ...