Argued June 25, 2014
Appeal from the Order entered July 24, 2013, of the Court of Common Pleas, Philadelphia County, Civil Division, No(s): 130502028. Before CEISLER, J.
Jason P. Gosselin, Philadelphia, for Liberty Place Retail Associates, L.P., appellant.
BEFORE: GANTMAN, P.J., BENDER, P.J.E.,PANELLA and STABILE, JJ. OPINION BY STABILE, J.
Appellant, Liberty Place Retail Associates, L.P (The Shops), operates " the Shops at Liberty Place," a mall in Center City Philadelphia. Appellees, members of the Israelite School of Universal Practical Knowledge (ISUPK), hold demonstrations on the public sidewalk outside of the main entrance to the mall. In this appeal, we decide whether the trial court correctly denied The Shops' request for a permanent injunction against ISUPK's demonstrations. Because the trial court did not err as a matter of law in concluding The Shops failed to meet its burden of proving that ISUPK's demonstrations are a trespass or private nuisance, we affirm.
The Shops at Liberty Place is part of a large complex of twin skyscrapers on the city block bordered by 16th, Chestnut, 17th, and Market Streets in Philadelphia. N.T., 7/15/13, at 30-33. The Shops has 50 to 60 retailers, including dining facilities, commercial stores, service businesses, and an 850-seat food court. Id. There are five different entrances to The Shops, and the entrance at the corner of 16th and Chestnut Streets, where ISUPK holds its demonstrations, is the busiest. Id. About 15,000 people per day pass through all five entrances to the Shops. Id. at 100-101.
The Shops has several common areas that it owns and occasionally rents to vendors and nonprofit groups. Id. at 40-45. One of those areas is the entrance at 16th and Chestnut Streets, which includes an 800 squarefoot " setback space." Id. at 29-32. The sidewalk at that street corner varies in width from 15 feet where it runs up to the building to 23 feet near the corner. Id. at 40-45. The setback space is a desirable location for vendors' and nonprofit groups' product demonstrations and samplings, and events. Id. at 333-36. The fee for a for-profit business to rent the space is around $2,000.00. Id. at 47-53. There is no fee for nonprofit groups, but any group renting the setback space must have liability insurance and pay an additional fee to provide for extra security. Id.
ISUPK describes itself as a nonprofit faith-based organization founded to teach and minister to blacks, Hispanics, and Native Americans. N.T., 7/15/13, at 247. The Southern Poverty Law Center (SPLC) describes ISUPK as an extremist Hebrew Israelite organization, whose message includes hatred of people who are white, Asian, Jewish, female, gay, or also black but who do not embrace its " radical black separatist ideology." Trial Court Rule 1925(a) Opinion, at 2 (quoting the SPLC's website). ISUPK has been demonstrating in various places in Philadelphia for years. ISUPK demonstrations are a recognizable sight to most people who live, work or visit Philadelphia, as well as to the departments of City government that issue permits and monitor street and sidewalk demonstrations. See N.T., 5/23/13, at 20-21; N.T., 6/7/13, at 25-26; N.T., 7/15/13, at 54-55, 317-18; N.T., 7/19/13, at 6-10, 29, 60-61, 68, 77.
ISUPK has demonstrated at various places in Center City. N.T., 7/15/13, at 250-58, 267-68. Forced to move by construction, ISUPK decided to hold its " camps," its term for its demonstrations, at the corner of 16th and Chestnut Streets, on the sidewalk abutting The Shops' setback space. Id. at 266-70. Kory Travis, whose ISUPK name is General Mahayaman, picked the corner of 16th and Chestnut because of the juxtaposition of wealth and poverty. Id. He noted that a richer and middle-class clientele patronizes The Shops, while the sidewalks outside are frequented by the homeless and beggars. Travis also believed ISUPK could reach the broadest audience possible at the corner of 16th and Chestnut. Id.
ISUPK held its first demonstration there on November 30, 2012. N.T., 7/15/13, at 54-55. From that date until the final day of hearings in the trial court, ISUPK held demonstrations nearly every week, and usually on Friday afternoons.
ISUPK originally located its members on the sidewalk outside of the setback space. Under the mistaken belief that it owned the sidewalk outside of its building, The Shops blocked it with yellow caution tape, in the hope ISUPK would move elsewhere. Id. at 136-37, 229-30. ISUPK did move, to The Shops' chagrin, onto The Shops' setback space. N.T. 5/23/13, at 21-25. ISUPK had been led to believe by the City that the setback space was part of the public sidewalk. Id. The trial court issued a preliminary injunction which prohibited ISUPK from using the setback space, but allowed it to return to the public sidewalk at 16th and Chestnut, subject to conditions imposed on the demonstrations.
ISUPK's " camps" proceed in the same manner. For about four hours starting in the afternoon, one or two ISUPK members stand on makeshift stage and project their messages by microphone or other amplification. N.T., 7/15/13, at 55, 72-73. The noise level of ISUPK's chanting, which is constant, was described as " quite loud," and The Shops' security director testified that he could hear the demonstrations a block away, at the corner of 17th and Chestnut. Id. at 55, 190-92. The Shops did not produce, however, any non-subjective evidence regarding loudness. Philadelphia Code § 10-403 limits sound projection to 10 dB above background level as measured from the nearest occupied non-residential property. The director of the
City's Office of Air Management Services testified that, in his six years as supervisor, only The Shops has complained about ISUPK's noise levels. N.T., 7/19/13, at 73, 78-80. He testified further that the Police Department's Civil Affairs Unit had never asked his office to take a measurement of the noise emanating from ISUPK's demonstrations. Id.
The other ISUPK members form a perimeter around the platform. N.T., 7/15/13, at 201-02. Surrounding the platform are signs and placards bearing ISUPK's message. The signs include messages about modern slavery in America, lynching, ISUPK's beliefs regarding the genealogy of the Twelve Tribes of Israel and how they correspond to modern ethnic groups, and pictures of bloody fetuses with messages denouncing abortion. Id. at 56; The Shops' Exhibits 11, 13. In addition, ISUPK members hand out fliers, sell merchandise, and solicit donations. N.T., 7/15/13, at 55, 244-45.
The content of ISUPK's message is considered to be noxious and offensive. Examples follow:
We hate white people. We hate Chinese people. We hate everybody who's not on this sign. And guess what, I love [indiscernable] people on this sign. It justifies our hate for the people that's not on this sign. . . . May the white man die today. May the Chinese man die today. May the East Indian man die today.
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All your sons is homosexuals. All your women becoming homosexual. And becoming whores.
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To our whores. [Indiscernable.] The most I can say is you whores, you walk around with your head held so high but you got your little salary, you gonna spend a couple hours on 16th and Chestnut in a mall that was built, not designed for your taste, you got the Gallery and you broke, lady, come over here and spend your money on 16th and Chestnut. Let me tell you why, because the Lord said he don't want--they give gifts to our whores. They give gifts to whores. The Lord considers a black woman, Hispanic woman, Native American woman a whore, a disgusting filthy whore.
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The scriptures say black woman, shut your damn mouth. That's what the scriptures say. Learn in silence. The scriptures say learn in silence. You understand? Shut your mouth[,] black woman. You understand? That's ...