868 F.2d 1342 (3rd Cir. 1989), 88-1268, Northeast Women's Center, Inc. v. McMonagle

Docket Nº:NORTHEAST WOMEN'S CENTER, INC., Appellant in No. 88-1268
Citation:868 F.2d 1342
Case Date:March 02, 1989
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1342

868 F.2d 1342 (3rd Cir. 1989)

NORTHEAST WOMEN'S CENTER, INC., Appellant in No. 88-1268


Michael McMONAGLE, Joseph P. Wall, Roland Markum, Howard

Walton, Henry Tenaglio, Stephanie Morello, Annemarie Breen,

Ellen Jones, Kathy Long, Susan Silcox, Paul C. Armes, Walter

G. Geis, John J. O'Brien, James Codichini, Patricia Walton,

John Breen, Dennis Sadler, Joan Andrews, Miriam Dwyer, Mary

Byrne, John Murray, Linda Corbett, Thomas McIlhenny,

Patricia Ludwig, Gerrald Lynch, Margaret Caponi, Deborah

Baker, Thomas Herilhy, Pasquale Varallo, John Stanton, Anne

Knorr, John Connor, Elliott Stevens, Harry Hand, Laurie

Wirfell, Helena Gaydos, Robert Moran, Earl Essex, Patricia

McNamara, Donna Andracavage, Juan Guerra, and Linda Hearn.

Appeal of Michael McMONAGLE, Dennis Sadler, Mary Byrne,

Deborah Baker, Margaret Caponi, Thomas Herlihy,

Anne Knorr, and Robert Moran.

Appeal of John J. O'BRIEN, Joseph Wall, Roland Markum,

Howard Walton, Patricia Walton, Henry Tenaglio, Stephanie

Morello, Annemarie Breen, Ellen Jones, Kathy Long, Susan

Silcox, Paul Armes and Walter Gies.

Appeal of Patricia McNAMARA and Thomas McIlhenny.

Appeal of Donna ANDRACAVAGE, Juan Guerra, and Helena Gaydos.

Nos. 88-1268, 88-1333, 88-1334, 88-1335 and 88-1336.

United States Court of Appeals, Third Circuit

March 2, 1989

Argued Oct. 20, 1988.

Rehearing and Rehearing In Banc Denied March 30, 1989.

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[Copyrighted Material Omitted]

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Edmond A. Tiryak (argued), Julie Shapiro Philadelphia, Pa., for appellant, Northeast Women's Center, Inc.

Christine Smith Torre (argued), Philadelphia, Pa., for appellees/cross-appellants, Michael McMonagle, Dennis Sadler, Mary Byrne, Deborah Baker, Margaret Caponi, Thomas Herlihy, Anne Knorr and Robert Moran.

Charles F. Volz, Jr. (argued), Philadelphia, Pa., for appellees/cross-appellants, John J. O'Brien, Joseph Wall, Roland Markum, Howard Walton, Patricia Walton, Henry Tenaglio, Stephanie Morello, Annemarie Breen, Ellen Jones, Kathy Long, Susan Silcox, Paul Armes and Walter Gies.

Thomas J. Short (argued), Oreland, Pa., for appellees/cross-appellants, Patricia McNamara and Thomas McIlhenny.

Joseph P. Stanton (argued), Iovine & Woods, P.C., Philadelphia, Pa., for appellees/cross-appellants, Donna Andracavage, Juan Guerra and Helena Gaydos.

Laura E. Little, David S. Thalheimer, Dechert, Price & Rhoads, Susan Cary Nicholas, Women's Law Project, Philadelphia, Pa., for amici curiae in Support of Appellant, Northeast Women's Center, Inc., on Behalf of Certain Providers of Abortion Services and Other Organizations Committed to Protecting the Right to Choose Abortion and Preserving Access to Reproductive Health Services.

LeRoy S. Zimmerman, Atty. Gen., Gregory R. Neuhauser, Sr. Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Harrisburg, Pa., for amicus curiae, Com. of Pennsylvania.

J. Michael Considine, Jr., Joseph D. Shein, P.C., Philadelphia, Pa., for amicus curiae, The Rutherford Institute of Pennsylvania.

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Before SLOVITER and HUTCHINSON, Circuit Judges, and GERRY, District Judge. [*]


SLOVITER, Circuit Judge.

Following a lengthy trial in this action brought by a women's health center against a group of anti-abortion activists, the jury returned a verdict for plaintiff on its claims under civil RICO and the state torts of trespass and intentional interference with contract. On appeal, plaintiff challenges the district court's use of the unclean hands doctrine to limit the injunctive relief given and the court's order setting aside the jury's punitive damage award. Defendants, who have filed multiple briefs, raise more than twenty issues on their cross-appeals, including the application of civil RICO, the availability of the justification defense, and various claims of prejudicial error at trial.

Although issues on appeal are generally considered first, we begin with a discussion of the matters raised on defendants' cross-appeal because, if defendants' contentions are correct, we need not reach the appellant's issues. We will confine our opinion to those issues raised by defendants that we believe merit discussion. 1


Facts and Procedural History

Plaintiff-appellant, the Northeast Women's Center, Inc. (Center), is a Pennsylvania corporation which provides gynecological services, including pregnancy testing and abortions. The defendants-appellees are twenty-six individuals 2 (referred to collectively as Defendants) who are vigorously opposed to abortion and who have repeatedly protested the Center's abortion services by activities at the situs of the Center. Certain Defendants have attended Board of Directors meetings of the Pro-Life Coalition of Southeastern Pennsylvania and one defendant, Michael McMonagle, is its paid Executive Director.

The Center has emphasized throughout this litigation that it is not challenging Defendants' free speech right to make public their opposition to abortion. Instead, this lawsuit was brought alleging illegal and tortious activity by Defendants that went beyond Defendants' constitutional rights of speech and protest.

The Center presented evidence at trial that established that Defendants unlawfully entered the Center's facilities on four occasions. On December 8, 1984, approximately fifty protestors, including twelve Defendants, rushed into the Center's premises, which at that time were located at 9600 Roosevelt Boulevard in Northeast Philadelphia, and knocked down Center employees who attempted to prevent the mass entry into the building. Once inside, Defendants and others blocked access to rooms and strewed medical supplies on the floor.

Ardis Ryder, then acting administrator of the Center, testified that she decided on the basis of this incident to hire security guards for the first time in the Center's history to protect the safety of its employees and patients. One employee testified that she sustained injuries during this incident while attempting to prevent Defendants and others from forcing their way into a patient treatment room. She testified that as a result of such harassment she resigned from her position at the Center, and did not resume employment at the Center until after it installed a sophisticated security system. Twelve Defendants

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were among the thirty persons arrested and charged with trespass after this incident. App. at 633.

On August 10, 1985, twelve Defendants pushed into the Center's premises. An employee who was injured as a result of Defendants' activities lost work time. Another employee testified that after members of the group locked themselves in an operating room, she observed a Defendant leave the operating room with an object concealed under his coat. When the employee entered the room she discovered that machinery had been damaged and disassembled. Twelve Defendants were arrested and subsequently convicted of defiant trespass for the August 1985 incident. App. at 634; see Commonwealth v. Markum, 373 Pa.Super. 341, 541 A.2d 347 (1988) (affirming conviction on appeal).

On October 19, 1985, there was another attempt by anti-abortion activists to enter the Center. A number of persons were arrested, including twenty-four Defendants. App. at 635. Two persons did manage to rush through the doors and enter, knocking down a Center employee. Three Defendants were subsequently convicted of defiant trespass. App. at 635-36.

The fourth trespass that was the subject of the federal suit took place on May 23, 1986. The jury was shown a videotape of the incident, which showed protesters sitting down on the floor of a waiting room inside the clinic, standing in front of patients awaiting services and castigating them, and ignoring repeated requests that they cease trespassing and leave the building. Exhibits P-76, P-77. One Defendant stated, "We're going to shut this place down." The police eventually removed the trespassers. There was testimony that other Defendants who were outside the premises blocked the doors to the Center and the building in which it was located. Twenty-six persons, including sixteen Defendants, were arrested and fifteen Defendants were subsequently convicted for criminal conspiracy, disorderly conduct, and/or defiant trespass as a result of this incident. App. at 637-38.

Witnesses at the trial in this case testified that on these and other occasions they observed Defendants photographing patients, chanting through bullhorns, blocking building entrances, and surrounding and pounding on the windows of employees' cars. In fact an assistant district attorney who witnessed a demonstration testified that the demonstrators' activity rose to a "frenzy" and that he delayed leaving the Center out of fear for his physical safety. App. at 791-93. Videotape evidence revealed demonstrators pushing, shoving and tugging on patients as they attempted to approach the Center, knocking over and crossing beyond police barricades and blocking the ingress of cars. A protester is recorded stating, "I bet you ten to one this place doesn't last six months." Another added, "This place is going to be shut down." Exhibits P-6, P-76, P-77. A doctor employed by the Center testified that the sound of chanting, amplified by bullhorns, was audible in the Center's operating room. Another doctor testified that this noise would put patients "under considerably greater stress," especially when going under or coming out of general anesthesia. App. at 433.

Three employees testified that they were repeatedly subjected to picketing at their homes. Two of these employees stated that they resigned from their positions at the Center because of Defendants' actions at...

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