Is Religious Group Committing a Trespass or Nuisance in Phila.? by James M. Lammendola and Harper J. Dimmerman, The Legal Intelligencer All rights reserved. ALM 2014. Unauthorized reproductions are prohibited. Published on November 4, 2014. The article addresses real estate law and litigation in Philadelphia County, Pennsylvania.
On Oct. 14, the state Superior Court released its decision in Liberty Place Retail Associates v. Israelite School of Universal Practical Knowledge, (2014 PA Super 233, No. 2557 EDA 2013), and upheld the denial of a request for a permanent injunction, by a Philadelphia Court of Common Pleas judge, to prohibit the weekly demonstrations held by the Israelite School of Universal Practical Knowledge (ISUPK). The demonstrations take place on a public sidewalk, directly abutting one of the five entrances to the Shops at Liberty Place, owned by the Liberty Place Retail Associates L.P. Both the Common Pleas and Superior courts found that neither a trespass nor private nuisance was proven.
The trial court found that the ISUPK demonstrations were protected by the First Amendment and that Liberty Place Retail Associates failed to show that the demonstrations are either a private nuisance or a trespass. Liberty Place raised all three findings as errors of law for Superior Court review. The content of ISUPK’s speech was discussed but the Superior Court did not address the trial court’s finding holding that the First Amendment provides a defense to the Shops’ claims. The Superior Court cited the preference to dispose of cases on non-constitutional grounds.
Anyone living in a major metropolitan area such as Philadelphia is familiar with people exercising their First Amendment right to freedom of speech in some manner. In recent years, the city has seen demonstrations relating to the second Iraq War, the public school system budget cuts and Occupy Wall Street. Although such activities can cause traffic jams and other congestion, these are issues of high relevance. Other demonstrators have views that are overwhelmingly perceived as hateful, such as the Westboro Baptist Church, whose right to shout out the most hateful and loathsome epithets at mourners at military funerals was upheld by the U.S. Supreme Court in an 8-1 decision.
Most would agree that ISUPK falls into the odious category. But it is black-letter law that it is the most controversial and obnoxious speech that is in most need of protection. ISUPK, designated an “extremist” group by the Southern Poverty Law Center, has been exercising its First Amendment rights at the corner of 16th and Chestnut streets at the busiest of the five entrances of the Shops at Liberty Place since Nov. 30, 2012. After the Shops blocked the public sidewalk, ISUPK moved into the setback area—the Shops were under the mistaken belief that it owned the sidewalk outside of its building. A preliminary injunction was issued and ISUPK moved back to the public sidewalk, causing the Shops to seek a permanent injunction prohibiting ISUPK to demonstrate on the public sidewalk. And therein is the crux of the controversy. Are the ISUPK demonstrations held so close to the private setback that they are both a nuisance and a trespass?
Although ISUPK never again entered the setback area, the Shops argued a trespass was ongoing. On appeal, the Superior Court engaged in a de novo and plenary review, analyzing whether the trial court erred in denying the Shops’ permanent injunction request. Also, as in all equity matters, the appeals court gave great deference to the lower court’s factual findings. As to both the trespass and nuisance claims, it should be noted that Pennsylvania has essentially adopted the Restatement of Torts sections in defining these causes of action.
Approximately 15,000 people per day pass through the Shops’ entrances on a given weekday. ISUPK demonstrates on average once a week, usually on a Friday. Its president testified that the site was chosen because of the broad range of people that pass through as well as the juxtaposition of wealth and poverty. In addition to amplified voices, there are ISUPK signs and placards. Its message, a one-page single-spaced excerpt, is contained in the opinion, and is replete with invective against gays, all white people, all Asians and any African-American who does not subscribe to its ideology. ISUPK has never been cited for violating the city code and none of its members have ever been arrested at an ISUPK demonstration; it is undeniable that they are loud.
The Shops’ primary contention was that the passerby and onlookers tended to gather in the private setback area during these demonstrations. It was also argued that ISUPK was aware of the likelihood that its conduct would lead to such an assembly on its property. To succeed in a claim for trespass, the plaintiff must prove that the other party intentionally entered land in the possession of another or caused a third person to do so; harm to any legally protected interest is not necessarily required. As for the intent, a critical aspect of the court’s analysis, the Restatement of Torts concerns itself with an actor’s desire to cause consequences or his or her belief that the consequences are substantially certain to result from certain acts. It is this “substantially certain” aspect of the Shops’ argument with which the appeals court takes serious exception. It was not sufficient to merely posit that ISUPK knew that its conduct would lead to a crowd gathering in the setback area. Rather, the Shops were required to demonstrate, either via persuasive authority or additional proof, that such an outcome was indeed substantially certain. “Mere knowledge of likelihood was legally insufficient proof,” according to the opinion. For the Shops, its inability to produce more evidence proved fatal. As to the private nuisance claim, the Shops took issue with the lower court’s analysis: It limited its analysis to noise level and pecuniary harm. Liberty Place presented no scientific evidence that measured the increased decibel caused by ISUPK or that its activities caused the Shops’ lost profits. More precisely, the Shops contended that the gathering of crowds on private property, as is the case here, is sufficient to warrant relief under this theory.
Summarizing the Restatement as it pertains to nuisance, one may be liable for private nuisance if his or her intentional, reckless or negligent conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land. Liberty Place cited a number of Pennsylvania trial and appellate cases favorable to the landowner. Such cases examined nuisance bars, slanderous and abusive language outside of a private residence and a local airport that caused dust, crowds and noise to interfere with the operation of a sanitarium in rural Chester County. All were found inapposite since Liberty Place is in the business of attracting crowds—not keeping them away—the demonstrations are in a public place and ISUPK activities can hardly be compared to a nuisance bar. The mere gathering of crowds is simply not enough in Pennsylvania to warrant relief for private nuisance. A prime commercial location may also be a prime location for a group to aggressively exercise its First Amendment rights. Although one may sympathize with the predicament in which Liberty Place finds itself, a nuisance or trespass still must be proven, no matter how offensive the message of those demonstrating legally in a public place may be. Our courts may be sending a message that a stronger quantum of proof may be necessary in such circumstances for the property owner to succeed in enjoining such demonstrations.