Com. v. Tate

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore O'BRIEN; ROBERTS; LARSEN; LARSEN
Citation495 Pa. 158,432 A.2d 1382
Decision Date14 July 1981
PartiesCOMMONWEALTH of Pennsylvania v. Nancy TATE, Jefferson Vitelli, W. Timothy Laidman, Michael Schlosser, and Barbara Andrews, Appellants.

Page 1382

432 A.2d 1382
495 Pa. 158
COMMONWEALTH of Pennsylvania
v.
Nancy TATE, Jefferson Vitelli, W. Timothy Laidman, Michael
Schlosser, and Barbara Andrews, Appellants.
Supreme Court of Pennsylvania.
Argued Oct. 21, 1980.
Decided July 14, 1981.

Page 1383

[495 Pa. 162] Donald W. Miles, Harry A. Dower, Allentown, for appellants.

William H. Platt, Dist. Atty., Michael E. Moyer, Asst. Dist. Atty., for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

On March 27, 1976, appellants were arrested on the campus of Muhlenberg College and charged with the summary offense

Page 1384

of defiant trespass, 18 Pa.C.S. § 3503(b), when they refused to discontinue the peaceful distribution of leaflets outside a college building in which Clarence Kelley, then Director of the Federal Bureau of Investigation, was speaking at a public symposium on crime prevention. Appellants were convicted at a magistrate's hearing on August 11, 1976, and fined $25.00 each plus court costs. They appealed their convictions to the Court of Common Pleas of Lehigh County. Following a trial ne novo without a jury, appellants were found guilty of defiant trespass and ordered to pay fines of $50.00 each plus court costs. On appeal, the Superior Court affirmed without opinion, with Judge Hoffman noting his dissent. 1 We granted allowance of appeal. In light of the affirmative defense provided by the trespass statute, 18 Pa.C.S. § 3503(c)(2), and Article I, sections 7 and 20, of the Pennsylvania Constitution, we conclude that these defiant trespass convictions cannot stand. Hence we reverse. 2

I.

Muhlenberg College is a private institution of higher education located in Allentown and chartered by the Commonwealth[495 Pa. 163] of Pennsylvania. The event at which appellants were arrested was a symposium planned and presented by the Board of Associates of Muhlenberg College, a civic group which regularly uses the college's facilities to present a series of programs for the benefit of the community. The March 27, 1976, symposium was entitled "Citizens' Crusade Against Crime." It was held primarily in the Seegers Student Union Building of the college and featured F.B.I. Director Clarence Kelley, a public figure of national repute, as its principal speaker.

The symposium had been publicized in newspapers and advertised in handbills as being open to the public. In one newspaper account, the president of the Muhlenberg Board of Associates gave the following description of the program: "The symposium has been designed to provide the springboard for an on-going cooperative community effort exploring, evaluating, and implementing practical ways and means for personal and group involvement in crusade against crime.... (W)e invite and encourage every concerned citizen to join us on March 27." 3 A registration fee of $4.00 was requested of those attending the symposium, with attendance limited to the first five hundred registrants.

Appellants, who were not Muhlenberg students, were all members of the Lehigh-Pocono Committee of Concern (LEPOCO), a local non-violent anti-war organization. When members of LEPOCO read of director Kelley's scheduled appearance, they decided to distribute leaflets to members of the public attending his speech. Through the leaflets, LEPOCO wished to protest the denial by Mr. Kelley, in a personally signed letter, of their request under the federal Freedom of Information Act, 5 U.S.C. § 552, for information maintained in F.B.I. files concerning LEPOCO and its members. Further, LEPOCO wished to point out to the public the incongruity of Director Kelley's appearance at a crime prevention symposium in light of then-recent public revelations concerning criminal activities by the F.B.I. which were prominent in the news media. The symposium was the site [495 Pa. 164] of Director Kelley's first public appearance in the Allentown area.

On Friday, March 26, the day before the symposium, some members of LEPOCO went to the Muhlenberg campus and attempted to distribute leaflets explaining to students why LEPOCO felt it necessary to be present on the following day to communicate

Page 1385

its views on Director Kelley and the F.B.I. At that time they were stopped and informed that they would not be permitted to distribute leaflets on the campus grounds since they did not have a permit from the college to do so. The LEPOCO members then attempted to obtain a permit for the following day, but their request was summarily refused.

Appellants and other members of LEPOCO arrived at the Muhlenberg campus on the morning of the symposium and twice attempted to distribute their leaflets to persons entering and leaving the symposium. Both times, at the request of college officials, members of the Allentown Police Department escorted the LEPOCO leafletters to a public sidewalk located approximately forty yards from the entrance to the main symposium building. No arrests were made on either occasion.

Appellants attempted to distribute their leaflets a third time at the close of the symposium that afternoon. They stood about forty feet from the entrance to the student union building and quietly distributed their leaflets. They engaged in no disorderly conduct carried no signs, used no loud or offensive language, and made no attempt to enter any of the college buildings. They blocked no building entrances and did not attempt to force their leaflets upon unwilling passersby. They received no complaints from any members of the public regarding their presence on campus.

Nonetheless, the Allentown Chief of Police personally instructed appellants that they would be arrested if they did not leave the campus because they did not have permission from the college to distribute their leaflets and had not paid [495 Pa. 165] the $4.00 registration fee for the symposium. Appellants replied that they wished not to attend the symposium but merely to distribute their leaflets peacefully. Upon appellants' refusal to leave the campus grounds until they had completed their leafletting, the Allentown police arrested the five appellants and removed them to police headquarters, where they were served with citations for the summary offense of defiant trespass and released on their own recognizance.

At the outset, it should be noted that not only appellants but also the District Attorney's Office of Lehigh County were of the opinion that appellants' leafletting was constitutionally protected. At the magistrate's hearing, District Attorney George Joseph, who had been present at the symposium, testified as a defense witness that appellants' conduct had been in no was disorderly. 4 Subsequently, when his office was called upon to prosecute appellants in the trial de novo, he directed Assistant District Attorney Richard Orloski to file a motion to nolle pros the charges against appellants. In support of the motion, the Assistant District Attorney argued that "(p)eaceful, non-violent leafletting at a university function where the public is invited and where public personalities are featured is constitutionally protected ...." 5

Despite the Commonwealth's reluctance to prosecute, the court denied the motion, and the case proceeded to trial on February 28, 1977. At the trial de novo, as at the original summary proceeding, appellants defended on the ground that their leafletting at the symposium was conduct both statutorily and constitutionally protected from prosecution. [495 Pa. 166] The trial court rejected this contention and subsequently entered a verdict of guilty.

II.

The defiant trespass statute, 18 Pa.C.S. § 3503(b), provides:

"(1) A person commits an offense if, knowing that he is not licensed or privileged

Page 1386

to do so, he enters or remains in any place as to which notice against trespass is given by:

(i) actual communication to the actor; ..."

The statute further provides, however, that:

"It is a defense to prosecution under this section that: the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining on the premises."

18 Pa.C.S. § 3503(c)(2). Appellants' position throughout these proceedings has been that the outdoor campus grounds of the college were "open to the public" on the day of the symposium and that appellants complied with all "lawful conditions" to their presence outside the main symposium building. 6 The trial court found the statutory defense to be inapplicable, observing that "colleges do not invite the general public on their premises and indeed in our view have the [495 Pa. 167] right to exclude anyone they wish whether it be arbitrary or not." 7

If a private home were involved, this conclusion would be justified. However, the trial court's conclusion rests on a faulty premise. On the day in question the campus was indeed "open to members of the public" within the meaning of § 3503(c)(2). Although privately supported, Muhlenberg College serves in many respect as a community center for Allentown, maintaining upon its campus a United States Post Office station, a public cafeteria, an information and sales booth for tickets to public events, and a federal book depository library, which is required "to be maintained so as to be accessible to the public." 44 U.S.C. § 1910. All of these facilities are located within a few hundred yards of the site of appellants' arrest. It was established at trial that other members of the public who, like appellants, did not choose to attend the symposium, were present without incident on the Muhlenberg campus on March 26, 1976. Moreover, according to the testimony of the college president, Muhlenberg had "no policy about off-campus visitors," and "a lot of people walk(ed) the campus." 8

The college did have a requirement that any person from off campus wishing to distribute materials or offer materials for sale secure the permission of the...

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  • Republican Party of Texas v. Dietz, No. 96-0555
    • United States
    • Supreme Court of Texas
    • February 28, 1997
    ...S.Ct. 62, 133 L.Ed.2d 25 (1995); Fred Meyer, Inc. v. McDonald, 112 Or.App. 321, 828 P.2d 1054, 1055 (1992); see also Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382, 1390-91 (1981); but see Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 512 Pa. 2......
  • Working Families Party v. Commonwealth, No. 34 EAP 2017
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 5, 2019
    ...at 51.With respect to the protection for political expression and association, Appellants rely on our decision in Commonwealth v. Tate , 495 Pa. 158, 432 A.2d 1382 (1981) wherein this Court explained:The "profound national commitment to the principle that debate on public issues should be u......
  • Shad Alliance v. Smith Haven Mall
    • United States
    • New York Supreme Court Appellate Division
    • February 4, 1985
    ...96 Wash.2d 230, 635 P.2d 108; Batchelder v. Allied Stores International, 388 Mass. 83, 445 N.E.2d 590; see, also, Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382; State v. Schmid, 84 N.J. 535, 423 A.2d 615, appeal dsmd. sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, ......
  • Cologne v. Westfarms Associates
    • United States
    • Supreme Court of Connecticut
    • January 17, 1984
    ...to be inapplicable to the dissemination of political ideas upon the grounds of private education institutions. Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980). The concern of the Pennsylvania Supreme Court in Tate was that a college......
  • Request a trial to view additional results
68 cases
  • Republican Party of Texas v. Dietz, No. 96-0555
    • United States
    • Supreme Court of Texas
    • February 28, 1997
    ...S.Ct. 62, 133 L.Ed.2d 25 (1995); Fred Meyer, Inc. v. McDonald, 112 Or.App. 321, 828 P.2d 1054, 1055 (1992); see also Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382, 1390-91 (1981); but see Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 512 Pa. 2......
  • Working Families Party v. Commonwealth, No. 34 EAP 2017
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 5, 2019
    ...at 51.With respect to the protection for political expression and association, Appellants rely on our decision in Commonwealth v. Tate , 495 Pa. 158, 432 A.2d 1382 (1981) wherein this Court explained:The "profound national commitment to the principle that debate on public issues should be u......
  • Shad Alliance v. Smith Haven Mall
    • United States
    • New York Supreme Court Appellate Division
    • February 4, 1985
    ...96 Wash.2d 230, 635 P.2d 108; Batchelder v. Allied Stores International, 388 Mass. 83, 445 N.E.2d 590; see, also, Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382; State v. Schmid, 84 N.J. 535, 423 A.2d 615, appeal dsmd. sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, ......
  • Cologne v. Westfarms Associates
    • United States
    • Supreme Court of Connecticut
    • January 17, 1984
    ...to be inapplicable to the dissemination of political ideas upon the grounds of private education institutions. Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980). The concern of the Pennsylvania Supreme Court in Tate was that a college......
  • Request a trial to view additional results

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