Oberholzer v. Galapo, 794 EDA 2020

CourtSuperior Court of Pennsylvania
Writing for the CourtOPINION BY NICHOLS, J.
Parties Frederick E. OBERHOLZER, Jr. and Denise L. Oberholzer v. Simon and Toby GALAPO, Appellant
Docket Number794 EDA 2020
Decision Date18 April 2022

274 A.3d 738

Frederick E. OBERHOLZER, Jr. and Denise L. Oberholzer
Simon and Toby GALAPO, Appellant

No. 794 EDA 2020

Superior Court of Pennsylvania.

Argued December 4, 2020
Filed April 18, 2022

Mark A. DiAntonio, Blue Bell, for appellant.

Andrew J. Kramer, Norristown, for appellant.

J. Stephen Woodside, Bala Cynwyd, for appellee.



Appellants Simon and Toby Galapo (individually, Appellant Husband and Appellant Wife) appeal from the judgment entered in favor of Appellees Frederick E. Oberholzer, Jr., and Denise L. Oberholzer (individually, Appellee Husband and Appellee Wife). Appellants challenge the injunction entered against them and in favor of Appellees as an unconstitutional restraint on Appellants' right to free speech. We vacate and remand for further proceedings, as set forth in detail below.

Procedural and Factual History

We briefly summarize the relevant facts and procedural history of this case. Appellants and Appellees are neighbors in Abington Township. Specifically, the backyards of the parties' respective properties abut each other and are separated by a creek. Am. Compl., 7/5/16, at 2-3, R.R. 13a-14a.1 In November 2014, Appellants allegedly began landscaping their yard during the evening hours in violation of a township noise ordinance. Id. Appellees eventually complained to the township and the evening noises temporarily ceased. Id.

On November 22, 2014, Appellant Husband confronted Appellees about a resurveyed property line. Trial Ct. Op. & Order, 9/12/19, at 3, R.R. at 620a. During the ensuing argument, Appellant Husband alleged that Appellee Wife called him a "f***ing Jew." Ex. B to Appellants' Mot. for Summary J., 7/9/18, at 4, R.R. at 39a. Appellants subsequently filed a police report, but it was determined that no further police action was warranted. Trial Ct. Op. & Order, 9/12/19, at 3, R.R. at 620a.

274 A.3d 743

Starting in June 2015, Appellants erected signs on their property, which included primarily anti-hate and anti-racist statements. Id. Appellants' signs contained the following statements:

1. No Place 4 Racism

2. Hitler Eichmann Racists

3. Racists: the true enemies of FREEDOM

4. No Trespassing - Violators Will Be Prosecuted

5. Warning! Audio & Video Surveillance On Duty At All Times

6. Racism = Ignorant

7. ?
Never Again
8. WWII: 1,500,000 children butchered: Racism

9. Look Down on Racism

10. Racist Acts will be met with Signs of Defiance

11. Racism Against Kids Is Not Strength, It's Predatory

12. Woe to the Racists. Woe to the Neighbors

13. Got Racism?

14. Every Racist Action Must be Met With a Sign of Defiance

15. Racism is Self-Hating; "Love thy Neighbor as Thyself"

16. Racism - Ignore It and It Won't Go Away

17. Racism - The Maximum of Hatred for the Minimum of Reason

18. RACISM: It's Like a Virus, It Destroys Societies

19. Racists Don't Discriminate Whom They Hate

20. Hate Has No Home Here [in multiple languages]

21. Every Racist Action Must Have an Opposite and Stronger Reaction

22. Quarantine Racism and Society Has a Chance

23. Racism Knows No Boundaries

Confidential Settlement Agreement, 6/5/19, at 4-5, R.R. at 434a-35a;2 Am. Compl., at 2-8, R.R. at 13a-19a; Trial Ct. Op., 1/3/20, at 1 n.1, R.R. at 660a; see also R.R. at 2b-31b (color photographs of some of the signs at issue). As of June 2016, Appellants posted twenty-three signs on their property, all of which were placed facing towards and in the line of sight of the backyard of Appellees' property. Confidential Settlement Agreement, 6/5/19, at 4-5, R.R. at 434a-35a; Am. Compl., at 2-8, R.R. at 13a-19a.

On June 7, 2016, Appellees filed a complaint, which they amended on July 5, 2016. Trial Ct. Op. & Order, 9/12/19, at 3, R.R. at 620a. Appellees pleaded five causes of action: (1) private nuisance; (2) intrusion upon seclusion; (3) defamation—libel and slander; (4) intentional infliction of emotional distress; and (5) publicity placing Appellees in a false light. Am. Compl., at 1-20, R.R. at 12a-31a. Additionally, Appellees sought a preliminary and permanent injunction against Appellants from continuing to post their signs. Id.

On August 29, 2016, the parties entered into a consent order in which Appellants agreed to remove the signs pending the outcome of the hearing for a preliminary injunction. Trial Ct. Op. & Order, 9/12/19, at 4, R.R. at 621a. On October 31, 2016, the parties stipulated to extend this consent order. Id. On November 17, 2016, the trial court denied Appellees' request for a preliminary injunction. Id.

Subsequently, the parties filed cross-motions for summary judgment. Trial Ct. Op.

274 A.3d 744

& Order, 9/12/19, at 4, R.R. at 621a. On September 6, 2018, the trial court issued a responsive order that granted in part and denied in part Appellants' motion for summary judgment. Order, 9/6/18, R.R. at 429a. Specifically, the trial court dismissed Appellees' claim for intrusion on seclusion and denied Appellants' motion in all other respects. Id. The trial court also denied Appellees' cross-motion for summary judgment. Id.

On June 5, 2019, the parties entered into a confidential settlement agreement resolving the remaining claims at law while leaving the issue of permanent injunctive relief for the trial court to decide. Trial Ct. Op. & Order, 9/12/19, at 4, R.R. at 621a; Confidential Settlement Agreement, 6/5/19, at 1-12, R.R. at 431a-42a; N.T. Settlement Agreement H'rg, 6/5/19, at 3-4. The settlement agreement provided, in relevant part, that:

Notwithstanding the provisions in the preceding paragraphs, this Agreement does not prohibit, limit or affect [Appellees'] rights to seek and/or pursue their claim in equity for injunctive relief against [Appellants] in this action (no. 2016-11267) prohibiting the present and/or future posting of signs on [Appellants'] property enumerated specifically in paragraph 5 of this Agreement, including a final decree with respect thereto, which claim is specifically not released in this Agreement. Although [Appellants] do not admit any wrongdoing or liability herein, [Appellants] agree they will not contest [Appellees'] request for injunctive relief on the grounds [Appellees] have failed to succeed on the merits of their claim for such relief.

Confidential Settlement Agreement, at 5, R.R. at 435a.

The parties stipulated that the trial court would consider various deposition transcripts, the preliminary injunction transcript, and selected exhibits in resolving Appellees' request for permanent injunctive relief. Trial Ct. Op. & Order, 9/12/19, at 4-5, R.R. at 621a-22a. On August 13, 2019, the trial court heard oral argument. N.T., 8/13/19, at 2-97, R.R. at 505a-600a.

On September 12, 2019, the trial court entered an order granting Appellees' request for a permanent injunction in part. Trial Ct. Op. & Order, 9/12/19, at 1, R.R. at 618a. The trial court summarized Appellant Husband's preliminary injunction testimony that the signs targeted Appellees:

[Appellant Husband] testified that the purpose of the signs was "to protest behavior which we perceive as being racist towards myself, my wife, and my family." [Appellant Husband] was also clear that the signs are directed at [Appellees] and their property and would only come down when the racist behavior of [Appellees] as he perceived it ceased. When questioned regarding the position of the signs only being in the backyard facing [Appellees'] home and not anywhere else, [Appellant Husband] indicated that the greatest threat to him and his family with regard to racism was [Appellees]. These beliefs were further cemented during oral arguments regarding the petition to grant a permanent injunction in which [Appellant Husband's] counsel indicated that this was a personal protest for [Appellant Husband] against his backdoor neighbors, [Appellees].

Id. at 8-9, R.R. at 625a-26a (citations omitted); accord Ex. E to Appellants' Mot. for Summary J., at 41 (agreeing that signs were directed to Appellees and their property), 47, 54 (testifying that the signs were directed to Appellees and about the Appellees),

274 A.3d 745

61, R.R. at 244a, 250a, 257a, 264a.3

The trial court concluded that Appellants'

acts were done as a personal protest against [Appellees]. The personal and specific messages of the signs are for the alleged racist behavior exhibited by [Appellees], not racism generally existing in society. The placement of the signs indicates that [Appellant Husband] is targeting specific individuals with the signs that decry their perceived racist behavior.

Trial Ct. Op. & Order, 9/12/19, at 9, R.R. at 626a. As a result, the trial court ordered Appellants to position their signs in such a way so that they did not face Appellees' property. Id.

The trial court justified the injunction for the following reasons: "(1) [Appellees] have no adequate remedy at law; and (2) that a greater injury of a continuing intrusion on [Appellees'] residential privacy will result from refusing to grant the equitable relief sought and allowing the existing signs to remain as they are presently positioned on the [Appellants'] property." Id. at 8, R.R. at 625a. Ultimately, the trial court concluded that because Appellants infringed on Appellees' right to privacy and quiet enjoyment of their residential home, a time, place, and manner restriction on Appellants' speech was permissible. Id. at 9-11, R.R. at 626a-28a.

However, the trial court did not enjoin the content of Appellants' signs because under Pennsylvania law, "equity lacks the power to enjoin the publication of defamatory matter where an injunction would be an unconstitutional prior restraint on freedom of expression." Id. at 12, R.R. at 629a (citing Willing v. Mazzocone , 482 Pa. 377, 393 A.2d 1155 (1978) (plurality)).

On September 23, 2019, Appellees filed a petition to hold Appellants in civil contempt in which they asserted that although Appellants had turned the signs to face the other direction, the text was still visible to Appellees from their property. Pet. for...

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