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Cradle of Liberty Council, Inc. v. City of Philadelphia

November 18, 2009

CRADLE OF LIBERTY COUNCIL, INC., BOY SCOUTS OF AMERICA, PLAINTIFF,
v.
THE CITY OF PHILADELPHIA, DEFENDANT.



The opinion of the court was delivered by: Buckwalter, S. J.

MEMORANDUM

Without going into the entire background of this case, which is set forth in this court's memorandum of September 25, 2008, the following section sets forth the salient factors regarding the Plaintiff's motion for preliminary injunction now before the court:

1. On May 23, 2008, Plaintiff filed its complaint in this court alleging a violation of its state and federal constitutional rights in the Defendant's efforts to remove Plaintiff from the building it erected in 1929 at the corner of North 22nd and Winter Streets, a portion of land which Defendant permitted Plaintiff to occupy in accordance with its Ordinance dated December 14, 1928. (Pl. Ex. 1).

2. On June 2, 2008, the Defendant filed an action for ejectment in the Philadelphia Court of Common Pleas regarding the above land.

3. From the outset, the parties had anticipated that the federal action would proceed and that the state action would be stayed to the extent it involved federal issues. In fact, a Joint Proposed Scheduling Order dated June 8, 2009 was approved by this court and is presently in effect with a fixed trial date of April 21, 2010.

4. This court has been advised by the parties that on October 29, 2009, the state court lifted the partial stay and set oral argument on the Defendant's motion for summary judgment for November 20, 2009, and set December 5, 2009 for a trial on the merits.

5. Thereafter, on November 16, 2009, Plaintiff filed the present motion for a preliminary injunction and a hearing was held on November 17, 2009.

6. From the evidence offered at the hearing, the court has determined that the Plaintiff has made a showing of a reasonable possibility of success on the merits based on the testimony and exhibits presented at the hearing, which includes:

(a) Testimony that the Defendant told Plaintiff that its agreement with Plaintiff with respect to the property in question is terminated "subject to withdrawal upon agreement by the Boy Scouts to pay fair market rent or the Boy Scouts ending its discriminatory policy and practice." (See Pl. Ex. 7, City Council Resolution No. 070522).

(b) Testimony that there appears to be no other instances where a lease was not renewed or somebody was asked to leave because of its membership policies. (Testimony of Barry Bessler; to the best of his knowledge).

(c) Testimony of John Herzins regarding the review of Defendant's leases with the purpose of "capturing money" for Defendant. For example, having the Philadelphia Bar Association pay Defendant a certain sum for its present office space. None of the examples given by Herzins involved Fairmount Park buildings or issues involving membership policies.

(d) Lack of testimony that the Defendant terminated Plaintiff for any other reason than its membership policy, testimony of Mr. Herzins, as stated above, having no connection with the Plaintiff's termination.

(e) Evidence which suggests that other Fairmount Park property lessees have not been scrutinized as to their membership policies. (See Bessler Dep. 0084:5-10; 0118:9-13; Pl's Ex. 15, listing the Fairmount Park Lessees).

Considering the first prong of the preliminary injunction determination (likelihood of success), the Plaintiff's factual evidence regarding its constitutional claims has not ...


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