Mazzocone v. Willing

Decision Date15 February 1977
PartiesCarl M. MAZZOCONE et al., Appellees, v. Helen WILLING, Appellant.
CourtPennsylvania Superior Court

Henry J. Sommer, Philadelphia, for appellant.

Harold B. Marcus, Philadelphia, for appellees.



This is an appeal from the following final decree of the court below sitting in equity:

'AND NOW, to wit, this 10th day of November, 1975, following a full and final hearing on the merits, it is hereby Ordered and Decreed that the Defendant herein, Helen R. Willing, be and is permanently enjoined from further demonstrating against and/or picketing Mazzocone and Quinn, Attorneys-at-Law, and from uttering or publishing defamatory, slanderous or libelous matter with respect to said attorneys.'

As modified the decree is affirmed.

The record reveals that plaintiff's request Number Two Penn Center Plaza--an office by the following undisputed facts: For several hours on Monday, September 29, and Wednesday, October 1, 1975, defendant demonstrated in front of the entrance to November Two Penn Center Plaza--an office building located in Centre City, Philadelphia in which plaintiffs maintained their law offices. Defendant's demonstration consisted of her pushing a shopping cart while ringing a cow-bell and blowing on a whistle. 1 While so engaged defendant wore a sign in the form of a sandwich board which read:



When the plaintiffs' attempts to amicably terminate defendant's demonstrations failed, they instituted this action in equity to enjoin defendant's conduct.

The evidence before the Chancellor established, among other things, that plaintiffs, a two-member law firm, were retained by defendant in 1968 to prosecute her claim for workmen's compensation benefits. Although plaintiffs secured a favorable decision for defendant, it was ironically this event which spawned her animosity towards them. 2 Specifically, defendant developed the belief that plaintiffs wrongfully diverted to themselves $25.00 of the settlement proceeds. This conviction apparently arose out of some confusion regarding the payment of $150.00 which, according to plaintiff's distribution schedule, was made to the defendant's treating psychiatrist, Dr. DeSilverio. Defendant maintains that plaintiffs only paid Dr. DeSilverio the sum of $125.00. 3 In reply to this contention, plaintiffs introduced into evidence their records relating to Dr. DeSilverio, including cancelled checks. Furthermore, any possible doubt as to the truth or falsity of defendant's allegations was dispelled by Dr. DeSilverio himself, who testified that plaintiffs had indeed paid him $150.00 for his services. Defendant made no attempt to contradict or refute this evidence, but simply repeated her belief that plaintiffs had defrauded her out fo $25.00, and on proof to the contrary would erase this conviction.

As the lower court well stated:

'Thus, the evidence adduced clearly establishes that defendant is a woman firmly in the thrall of the belief that plaintiffs defrauded her, an Idee fixe which, either by reason of eccentricity or an even more serious mental instability, refuses to be dislodged by the most convincing proof to the contrary. It is equally clear that unless stayed by this Court, defendant will resume her bizarre parade before plaintiffs' office building, displaying her defamatory accusation which will not only offer plaintiffs continuous embarrassment and humiliation but do serious injury to their professional reputation as well.'

Defendant's challenge to the lower court's injunction is predicated on the traditional view that equity does not have the power to enjoin the publication of defamatory matter. Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967); Crosby v. Bradstreet, 312 F.2d 483 (2d Cir. 1963); Kukatush Mining Corp. v. Securities and Exchange Com'n., 114 U.S.App.D.C. 27, 309 F.2d 647 (1962); Robert E. Hicks Corp. v. National Salesman's Training Corp., 19 F.2d 963 (7th Cir. 1927); Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83 (1969), cert. denied, 397 U.S. 1075, 90 S.Ct. 1521, 25 L.Ed.2d 809 (1969); Prucha v. Weiss, 233 Md. 479, 197 A.2d 253 (1964), cert. denied, 377 U.S. 992, 84 S.Ct. 1916, 12 L.Ed.2d 1045 (1964); Kwass v. Kersey, 139 W.Va. 497, 81 S.E.2d 237 (1954); Kivett v. Nevils, 190 Tenn. 12, 227 S.W.2d 39 (1950); Gariepy v. Springer, 318 Ill.App. 523, 48 N.E.2d 572 (1943). See generally Annot., 47 A.L.R.2d 715 (1956). These cases indicate the reasons why equity has traditionally declined to enjoin defamation: (1) equity will afford protection only to property rights; (2) an injunction would deprive the defendant of his right to a jury trial on the issue of the truth of the publication; (3) the plaintiff has an adequate remedy at law; and (4) an injunction would be unconstitutional as a prior restraint on freedom of expression. However, the logic and soundness of these reasons have been severely criticized by numerous commentators. 4 Our own analysis compels us to conclude that blind application of the majority view to the instant case would be antithetical to equity's historic function of maintaining flexibility and accomplishing total justice whenever possible.

First of all, the concept that equity will protect only property rights as opposed to personal rights has been expressly repudiated by our Supreme Court. See Everett v. Harron, 380 Pa. 123, 110 A.2d 383 (1955). In any event, the right to practice law is a property right. Montgomery County Bar Ass'n v. Rinalducci, 329 Pa. 296, 197 A. 924 (1938).

The second objection often advanced for refusing to enjoin defamation is that the defendant would be denied the right to have a jury pass upon the truth or falsity of the publication. This argument loses all persuasion, however, in those situations where the plaintiff has clearly established before a judicial tribunal that the matter sought to be enjoined is both defamatory and false. In the words of Dean Pound, a jury trial in such a case is a 'mere form' and 'is no more an obstacle than in the case of equity jurisdiction to enjoin trespass, disturbance of easements or nuisance.' Pound, supra Note 4, at 657. In short, the jury trial objection vanishes where there are no controverted issues of fact to submit to the jury. In the case at bar, the evidence established that the defendant's sign accusing plaintiffs of stealing money from her and selling her out to the insurance company was both false and malicious. Indeed, defendant never attempted to dispute or contradict plaintiffs' evidence, but rather continuously relied upon the 'defense' that equity will not enjoin defamation. To refuse injunctive relief under the circumstances of this case on the grounds that defendant would be denied a jury trial is to elevate form over substance.

The third argument often invoked for denying injunctive relief in defamation cases is that the plaintiff has an adequate remedy at law. This reason is premised on the theory that an award of damages will sufficiently recompense the plaintiff for any harm occasioned by the defamatory publication. See 42 Am.Jur.2d, injunctions, § 136. We, however, have difficulty accepting the idea that the payment of a sum of money is either an adequate of proper remedy in this case. In the first instance, it is obvious that a good professional and/or personal reputation is a unique and precious possession. Damage to this inestimable possession is, however, difficult to prove and measure accurately; in fact, in most cases, more difficult than measuring property damages, Everett v. Harron, supra. More importantly, we cannot disregard the fact that in the present case an action for damages would be a pointless gesture since the defendant is indigent. In the case of Heilman v. The Union Canal Company, 37 Pa. 100, 104 (1860), which was an action to restrain a canal company from diverting and using the water of a creek, the Court held that 'the insolvency of the defendants, is not Of itself a ground of equitable interference.' (Emphasis added.) However, in the instant action not only do we have the defendant's insolvency but, as pointed out above, we also have the difficulties inherent in attempting to measure in dollars the damage caused by defendant. An additional consideration militating in favor of equitable jurisdiction is the avoidance of a multiplicity of suits. In view of the defendant's unshakeable conviction that plaintiffs have defrauded her, it is not unreasonable to assume that unless restrained she will persist in conducting her defamatory demonstrations secure in the knowledge that any monetary judgment would be unenforceable. To permit this would place plaintiffs in the oppressive position of resorting to ineffective actions at law whenever the defendant is inclined to denigrate them. Clearly this cannot be an 'adequate remedy at law.' Everett v. Harron, supra.

The final reason frequently advanced for equity's reluctance to enjoin defamation is that an injunction against the publication would be unconstitutional as a prior restraint on free expression. This is by far the most cogent of all the reasons offered in support of the traditional view. However, as Mr. Justice Frankfurther observed:

'The phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: 'What is needed,' writes Professor Paul A. Freund, 'is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil...

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