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Marianne Bessey, Et. Al. v. Spectrum Arena

December 23, 2011

MARIANNE BESSEY, ET. AL.
PLAINTIFFS
v.
SPECTRUM ARENA, L.P. DEFENDANT



The opinion of the court was delivered by: J. Tucker

MEMORANDUM

December ___, 2011

Presently before the Court is Plaintiff's Motion for a Preliminary Injunction (Doc. 2), Defendant's Response in Opposition thereto (Doc. 5), and all related information presented to the Court during the preliminary injunction hearing on December 5, 2011. For the reasons set forth below this Court will deny Plaintiff's Motion.

FACTUAL BACKGROUND

Plaintiffs Marianne Bessey and Edward Coffin, filed the instant action against Defendant Spectrum Arena, L.P. (SALP) seeking a preliminary injunction to enjoin the Defendant from enforcing its policy prohibiting all unauthorized leafleting and picketing on the sidewalks within the parking lot area on the exterior of the Wells Fargo Center.

Plaintiffs, are animal rights activists who have demonstrated against animal exploitation and abuse at numerous venues throughout the years. Defendant SALP is a Pennsylvania limited partnership and the leaseholder of the Wells Fargo Center and its adjacent parking structure. Defendants have an express policy against unauthorized leafleting and picking at the Wells Fargo Center. In 2010, Plaintiff accompanied by other protestors, attempted to hold a demonstration to protest the alleged mistreatment of animals by the Ringling Brother's Barnum and Bailey Circus (the "Circus") within the parking lot of the Center. The Center's security personnel escorted Plaintiff Bessey and her fellow protestors from the Center and refused to allow them access unless they purchased a ticket. The protestors then purchased a ticket and thereby re-entered the grounds. After the Philadelphia Police refused to arrest them, SALP filed a Complaint in Trespass against Bessey in the Court of Common Pleas of Philadelphia County and sought a Temporary Restraining Order prohibiting her continued trespass. Defendants later filed a second state court action for trespass against Plaintiff Marianne Bessey after she attempted to hold another demonstration in the parking lot of the Center. The action is currently pending before the court. Spectrum Arena Ltd. Partnership v. Marianne Bessey, Court of Common Pleas of Philadelphia County, February Term, 2011 - No. 1684.

Currently, Plaintiffs wish to hold demonstrations at Feld Entertainment's production of Disney on Ice due to the financial connection between Feld Entertainment and the Circus. Disney on Ice is a ten-day production, scheduled to begin on December 22, 2011. Plaintiffs hope to hand out leaflets and hold signs and/or banners during the event. At least one of them may dress as an elephant or other circus animal. Plaintiffs would also like to have stationary signs, and/or folding tables that will hold literature about their cause, as well as flat screen televisions depicting videos about the treatment of animals. They may also carry televisions as they walk and speak with patrons on their way to the entrance.

Plaintiffs allege that a preliminary injunction is necessary since the state proceeding will not necessarily resolve uncertainty about the legality of SALP's speech ban as it pertains to Bessey and Coffin and because the state proceeding may not reach a resolution before Plaintiffs wish to protest on December 22, 2011. (Compl. ¶¶ 4-6.)

A preliminary injunction hearing on the matter took place before this Court on December 5, 2011. The following constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rules of Civil Procedure 52(a)*fn1

I. FINDINGS OF FACT

1. Plaintiffs Marianne Bessey and Edward Coffin are both individuals residing in Pennsylvania.

2. SALP is a limited partnership organized and existing under the laws of the Commonwealth of Pennsylvania.

3. The partners of SALP are all private individuals and entities.

4. SALP owned and operated the Philadelphia Spectrum, a sports arena located at Broad and Pattison, Avenues in Philadelphia.

5. In the early 1990s, SALP actively began development of what is now known as the Wells Fargo Center.

6. The Wells Fargo Center is bounded by Broad Street on the west, Pattison Avenue on north, 11th Street on the east and I-95 on the south. Lincoln Financial Field is adjacent to the Wells Fargo Center on the 11th Street side of the complex and the parking lots for Citizens Bank Park are adjacent to the Center on the Pattison Avenue side of the compleX

7. It cost approximately $220,000,000 to develop and construct the Center; approximately $25 million of the funding came from the City and the Commonwealth. The remaining balance was provided by private individuals and entities, including Ed Snider.

8. The City of Philadelphia, through the Philadelphia Authority for Industrial Development (the "Authority"), sublets City property to SALP pursuant to a 29- year ground lease for the construction of the Wells Fargo Center.

9. Section 3.01 of the Lease Agreement provides that the Authority leases to SALP "the Premises and any and all appurtenances, easements, rights, licenses, hereditaments and privileges as may in any way belong to or appertain thereto or inure to the benefit thereof."

10. The initial lease term expires on August 31, 2025 and SALP has an option to renew the Lease Agreement for three additional 10 year terms.

11. The Lease requires SALP to pay the City over $2 million a year in property taxes by way of a Payment in Lieu of Taxes.

12. The Lease imposes the following restrictions upon SALP's operation of the Center: 1) to operate the Center in a first class manner; 2) to execute leases with the Flyers and 76ers; 3) to comply with law; and 4) to establish parking covenants.

13. Specifically with respect to the parking covenants, the Lease requires SALP to do the following: 1) to permit the City's Park & Ride program; 2) to make parking lots available to the City in the event of "a municipal or state emergency, SEPTA strike or similar event, so long as the use of the Parking Areas does not interfere with or prevent a scheduled event at the complex; 3) to cooperate with the other facilities in the Sports complex, namely Lincoln Financial Field and Citizens Bank Park, to make their respective parking lots mutually available for overflow parking from events at each of the three venues; 4) to make space available for the operation of a ...


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