Crozer Chester Medical Center v. May
Crozer Chester Medical Center v. May
Opinion of the Court
This is an appeal by five pro-life appellants who are seeking the reversal of an injunction prohibiting their presence on appellees’ private property.
Appellees are Crozer-Chester Medical Center (hereinafter “CCMC”) and Reproductive Health and Counseling Center (hereinafter “RHCC”). CCMC is a private, non-profit hospital and medical complex situated on a large plot of land in Upland, Chester, Delaware County. One of CCMC’s buildings, located approximately in the center of its 68 acre property, is leased by CCMC to a private corporation known as RHCC. RHCC provides numerous reproductive health services, such as education, gynecological services, pregnancy testing, vasectomies, and first trimester abortions, the last service being the reason behind the instant controversy.
Over the last decade, appellants,
Sanctions at law having proved ineffective
Appellants, who are represented by several attorneys, raise a number of issues on appeal, many of which overlap.
The superior court’s scope of review of a decision to grant, deny, or continue an injunction is limited. Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 478 A.2d 484 (1984); Lazovitz v. Lazovitz, 307 Pa.Super. 341, 453 A.2d 615 (1982). Our scope of review is restricted to whether there were any apparently reasonable ground for the action taken by the court below. Hospital Association of Pennsylvania v. Commonwealth, Department of Public Welfare, 495 Pa. 225, 433 A.2d 450 (1981); Buttonwood Farms, Inc. v. Carson, supra; Wolf v. Baltimore, 250 Pa.Super. 230, 378 A.2d 911 (1977). Only if no grounds exist to support the decree of a court of equity, so that its ruling was palpably erroneous or a misapplication of law, will we disturb that court’s decision. Id. In the absence of a plain indication that no such grounds existed or that the rules of law relied on were wrong or inapplicable, we as the reviewing court will not consider the merits of the case. Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816 (1973); Bliss Excavating Co. v. Luzerne County, 418 Pa. 446, 211 A.2d 532 (1965). With this standard in mind, we have reviewed the record in the instant case.
The free speech provision of the First Amendment ... does not prevent a privately owned and operated shopping center from enforcing nondiscriminatory and nonar-bitrary bans on certain forms of activity on its premises. The right of free speech secured by the federal Bill of Rights is held against the government and cannot be unreasonably infringed. In the absence of “state action,” however, the acts of purely private actors, such as privately owned shopping centers, do not violate the federal constitution; such enterprises are free to enforce policies banning certain forms of speech activities under federal doctrine. Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).
Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., 335 Pa.Super. 493, 498-99, 485 A.2d 1, 3 (1984) (footnote omitted). Appellants do not argue that state action was involved in the instant case, that question having been determined previously by the federal court in Cardio-Medical Associates v. Crozer-Chester Medical Center, 536 F.Supp. 1065 (E.D.Pa. 1982), aff'd in part and rev’d in part, all on other grounds, 721 F.2d 68 (3d Cir. 1983), and Holton v. Crozer-Chester Medical Center, 419 F.Supp. 334 (E.D.Pa. 1976), vacated on other grounds, 560 F.2d 575 (3d Cir. 1977).
Appellants argue, however, that appellees’ injunction also violates free speech rights conferred upon them by the Pennsylvania Constitution. In Hudgens v. NLRB, supra, the Supreme Court left open the question of whether state statutory or common law could extend a person’s rights of access and freedom of expression on private property. The Supreme Court answered that question in PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). The Court held that, while the first amendment of the United States Constitution did not grant the right to defendants to solicit in a privately owned shopping center, state law — in that case, the law of California — might grant that right. Thus, the state courts were free to interpret their state constitutions’ free speech provisions as guaranteeing greater rights than those established under correlative federal provisions. Id.; Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981); Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., supra.
Our research, however, has not uncovered any such greater right in Pennsylvania. As we stated in Western Pennsylvania, “after careful review of the content and history of Article I of the Pennsylvania Constitution, [we hold] that privately owned shopping centers may constitutionally ban political activity.” Id., 335 Pa.Super. at 501, 485 A.2d at 4-5. See also Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union Local 509, 425 Pa. 382, 227 A.2d 874 (1967), rev’d as to federal rights, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), overruled as to federal rights in Hudgens v. NLRB, supra.
Contrary to the contention of appellants, the law of Pennsylvania respecting private property rights was not changed by Commonwealth v. Tate, supra, in which our supreme court held that on the day in question, the private campus of Muhlenberg College was “open to the public” because it had invited members of the public to a symposi
The Court [in Tate] suggested that the college had been a “public forum” and thus a quasi-state actor. The Court appears to have placed the college on a continuum somewhere between the extremes of a state actor, on the one hand, and a purely private actor, on the other. It then found the college closer to the former than the latter. Thus the Court found that the college was a “community center for Allentown,” maintaining within a few hundred yards of defendants’ arrest a United States Post Office station, a public cafeteria, an information and ticket sales booth for public events, and a federal book depository library required to be open to the public.
Id., 335 Pa.Super. at 505, 485 A.2d at 7.
In Western Pennsylvania, we found three instances in which a supposedly private actor has been subject to federal constitutional restraints: 1) where there is a “symbiotic relationship” between a private actor and the government; 2) where there is a sufficient “nexus” between the actor and the government; and 3) where the actor has assumed a “public function”, making it an arm of the state for constitutional purposes. Id., 335 Pa.Superior Ct. at 506, 485 A.2d at 7-8.
As in Western Pennsylvania, we find in the instant case that there is neither a symbiotic relationship nor a nexus between appellees and state government. Nor do we find that appellees assumed a public function so as to become an arm of the state for constitutional purposes. Similarly, we feel that the college campus in Tate is distinguishable from appellees’ property. In Tate, the court was dealing with a college — a traditional place for free speech and the free exchange of ideas. Appellees’ hospital is hardly intended for the same purpose. Additionally, in Tate a number of
In the instant case, there is no public figure and no open invitation to the public. Appellees do not invite or encourage the public to congregate upon hospital grounds for the purpose of discussing issues of the day. Appellees’ property is open to the public only for the purpose of transacting business. The Pennsylvania Supreme Court has already determined that private shopping centers are not quasi-public entities because the public is invited to enter for purposes of doing business. Logan Valley Plaza, Inc. v. Amalgamated Food Employees Union, supra; Western Pennsylvania, supra. Appellants’ attempts to analogize this case to the Tate case simply do not withstand close scrutiny. We find appellees’ property to be more similar to the shopping center of Western Pennsylvania or the private store of Central Hardware, supra, than the college campus of Tate.
Appellant’s contention that CCMC’s “no solicitation” policy is vague, arbitrarily applied in practice, and therefore unconstitutional, is meritless. The lower court found that at all times material to this case, CCMC “has adopted, pursued and enforced a general hospital policy of permitting no solicitation in or upon its property in the belief that general solicitation is not in the best interest of good patient care.” Finding of Fact No. 5, Lower ct. op. at 10.
As the Pennsylvania Supreme Court stated in Commonwealth v. Tate, supra:
Even when an owner of private property is constitutionally obligated to honor speech and assembly rights of others, private property rights themselves must nonetheless be protected. The owner of such private property, therefore, is entitled to fashion reasonable rules to control the mode, opportunity and site for the individual exercise of expressional rights upon his property. It is at this level of analysis — assessing the reasonableness of such restrictions — that weight may be given to whether there exist convenient and feasible alternative means to individuals to engage in substantially the same expres-sional activity.
Id., 495 Pa. at 174-75, 432 A.2d at 1390 (quotations and footnote omitted). Appellants do not convince us that CCMC failed to fashion such reasonable rules or that the restriction of appellants’ activities to the public sidewalk adjacent to the hospital grounds does not provide them with a feasible alternative to engage in substantially the same
Finally, appellants argue that appellees failed to prove either a taking of their private property without just compensation or a due process violation. For the proposition that appellees, in an injunction proceeding involving a constitutional issue, have the burden of showing either a taking or a due process violation, appellants cite PruneYard Shopping Center v. Robins, supra and Commonwealth v. Tate, supra. After a close examination of both cases, we conclude that appellants have misread those opinions. There is no requirement, placed upon the moving party, that it must prove either a taking or a due process violation before it can obtain injunctive relief.
What appellees needed to prove was the certainty of immediate and irreparable harm and that greater injury would be done by refusing the injunction than by granting it. Willman v. Children’s Hospital of Pittsburgh, 505 Pa. 263, 479 A.2d 452 (1984). The record clearly shows that these requirements have been met. It also shows that appellees had no adequate remedy at law, and that the injunction would more or less restore the status quo and is reasonably suited to abate the wrongful activity. See Tem-tex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500 (1984).
We conclude that the lower court, after careful consideration of both appellants’ rights to voice their opinions and appellees’ rights to protect their patients and to conduct their lawful business upon their private property free from unwarranted interference, arrived at a solution which carefully balances the rights of all parties involved. Because we find that there were reasonable grounds for the action
Decree affirmed.
. Some second and third trimester abortions are also performed by CCMC.
. Appellants include Thomas May, Joan Andrews, Miriam Andrews, Robert Moran, and Mary Ann Moran. The final injunction order also names "and all others acting in concert with them, and all others who may be shown a certified copy of [the order].”
. Appellants’ and appellees’ involvement with the courts apparently began in 1974, when RHCC was granted an injunction prohibiting appellants from carrying placards with the words “kill,” “murderers,” and "jail.” Of the multiple arrests charging defiant trespass, appellants were variously acquitted or convicted at the district justice level. In those cases appealed to the court of common pleas, all but one resulted in determinations of guilt. Recourse to criminal action has generally proved ineffective, however, because appellants are indigent and cannot be imprisoned for failure to pay fines imposed, and all appellants have continued to picket, some refraining only during their period of probation. Hence, injunctive relief was the only recourse left open to appellees.
. It is important to note that the only restrictions imposed by the lower court on appellants’ activities outside the boundaries of appel-lees' private property are the prohibition of photographing patients, employees, or staff; the limitation to ten pickets at any one time; the requirement of constant motion and a distance of at least five feet apart; and the prohibition on obstructing ingress and egress to appel-lees’ private property. With these restrictions, appellants are still free to picket and demonstrate along Upland Avenue and its intersection with Seminary Avenue, the main entrance to CCMC and more particularly, to RHCC.
. Appellants frame the issues as follows:
1. Can private property held open to the public for the private gain or advantage of the owner be deemed [an] appropriate forum for the discussion of a relevant public controversy before a relevant audience?
2. Can a privately owned abortion clinic be deemed an appropriate forum for the discussion of abortion and abortion-alternatives counseling in the audience of pregnant women contemplating abortion at this particular abortion clinic?
3. Are appellants entitled to effectively communicate their message to their intended audience as a matter of constitutional law?
4. Is Appellee, CCMC’s, “no solicitation” policy a standardless policy that is vague, arbitrarily applied in practice, and therefore unconstitutional?
5. In an injunction proceeding involving constitutional issues, does the moving party have the burden of showing either a “taking” of his private property or a due process violation?
Brief for Appellants at 5.
*56 1. Did the lower court err in not finding that portions of Appel-lees' property constitute an appropriate forum for Article I, Sections 7 and 20 of the Pa Constitution?
2. Did the lower court err in failing to find the application of Appellees’ non-solicitation policy to Appellants’ activity arbitrary and discriminatory?
3. Did the lower court err in not discussing whether Appellees’ met their burden of proof for the granting of an injunction?
Brief for Appellants Miriam Andrews and Robert Moran at 3.
. Other federal courts that have considered the question of whether private hospitals act under color of state law because they perform a public function have also concluded that they do not. See, e.g., Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir. 1977); Taylor v. St. Vincent’s Hospital, 523 F.2d 75 (9th Cir. 1975), cert. denied, 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed.2d 355 (1976); Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308 (9th Cir. 1974); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973); Robinson v. Magovern, 456 F.Supp. 1000 (W.D.Pa. 1978); Sokol v. University Hospital, Inc., 402 F.Supp. 1029 (D.Mass. 1975); Barrett v. United Hospital, 376 F.Supp. 791 (S.D.N.Y. 1974), aff'd, 506 F.2d 1395 (2d Cir. 1974).
. We note that the court in Tate did not hold Muhlenberg College to be forever or at all times open to the public for the exercise of free speech, but merely on the particular day scheduled for the public symposium.
Concurring Opinion
concurring:
I join the majority opinion. I write only to note that our neighboring sister state of New Jersey has already grappled with the issue before us today and has formulated a more powerful analytical test than this Commonwealth’s courts have provided in the Western Pennsylvania—Tate dichotomy.
In Brown v. Davis, 203 N.J.Super. 41, 495 A.2d 900 (1984), New Jersey’s counterpart to our Court had before it a case dealing with the right of public access under New Jersey’s Constitution to private property to demonstrate against abortions. In deciding that the right was not present under the facts before it, the Brown court applied the test laid down by New Jersey’s high court in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), app. dism. sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982).
In State v. Schmid, where the defendant sought to distribute political literature on the campus of Princeton University, the court formulated a three prong test to ascertain “... the parameters of the rights of speech and assembly upon privately owned property and the extent to which such property reasonably can be restricted to accomodate” those rights. Id. 84 N.J. at 563, 423 A.2d 615. The elements to be considered are “(1) the nature, purposes, and primary use of such private property, generally, its ‘normal’ use, (2) the extent and nature of the public’s invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property.” Id. at 563, 423 A.2d 615.
*65 The protection of the rights of a private owner is concomitant to the owner’s obligation to honor the rights of others to speak and assemble on his property. In weighing the reasonableness of the owner’s restrictions to access to private property, effect must be given to whether “there exists convenient and feasible alternative means to individuals to engage in substantially the same expres-sional activity.” Schmid at 563, 423 A.2d 615.
Brown, 495 A.2d at 903.
The Schmid analysis makes explicit the factors that are implicit in Western Pennsylvania, Tate and the majority opinion. It is, consequently, a more useful tool. Using it, I come to the same conclusion as the majority.
Reference
- Full Case Name
- CROZER CHESTER MEDICAL CENTER and Reproductive Health and Counseling Center v. Thomas MAY, Miriam Andrews, Joan E. Andrews, Robert E. Moran and Mary Ann Moran, Appellants
- Cited By
- 16 cases
- Status
- Published