United Food and Commercial v. Borough of Dunmore

• Citation: 40 F.Supp.2d 576
• Decision Date: 07 January 1999
• Docket Number: No. 3:CV-95-2022.,3:CV-95-2022.
• Parties: UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 72, Carol A. Backes, Ken Karasek, and John Chincola, Plaintiffs, v. BOROUGH OF DUNMORE, Council Pres. Joseph Tomko, Jr., Council Member Paul Nardozzi, Mayor Patrick Loughney, Chief Salvatore Mecca, Officer Ron Sleboda, Officer Sal Marchese, and Officer Patrick Reese, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

40 F.Supp.2d 576

UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 72, Carol A. Backes, Ken Karasek, and John Chincola, Plaintiffs, v. BOROUGH OF DUNMORE, Council Pres. Joseph Tomko, Jr., Council Member Paul Nardozzi, Mayor Patrick Loughney, Chief Salvatore Mecca, Officer Ron Sleboda, Officer Sal Marchese, and Officer Patrick Reese, Defendants.

No. 3:CV-95-2022.

United States District Court, M.D. Pennsylvania.

January 7, 1999.

Butsavage & Associates, Washington, D.C., for plaintiffs.

Buchanan, Ingersoll Professional Corp., Philadelphia, PA, for defendants.

MEMORANDUM

VANASKIE, District Judge.

Plaintiff United Food and Commercial Workers Union, Local 72, along with several of its members — Carol A. Backes, Ken Karasek, and John Chincola — has brought this civil rights action under 42 U.S.C. § 1983 against defendant Borough of Dunmore (Borough), along with various Borough officials and police officers, asserting that the Borough had unlawfully arrested and threatened the arrest of several members of Local 72 in connection with the picketing of the Price Chopper Supermarket, 1228 O'Neill Highway, Dunmore, Pennsylvania. (Dkt. Entry 1.)¹ Local 72 and its members are not seeking monetary damages; rather, their complaint seeks declaratory and injunctive relief, along with attorneys fees. (Id.)

The crux of the dispute is whether the defendants had probable cause to believe that plaintiffs' informational picketing on the sidewalk and in the parking lot immediately adjacent to the Price Chopper store constituted "defiant trespass" in violation of 18 Pa.Cons.Stat.Ann. § 3503(b). Plaintiffs contend that probable cause was and is lacking because their picketing falls within a statutory affirmative defense with respect to presence in areas open to the public, provided there is compliance with all "lawful conditions imposed on access to or remaining in the premises." 18 Pa. Cons.Stat.Ann. § 3503(c)(2). Defendants counter that plaintiffs informational handbilling contravened Price Chopper's "no solicitation" policy, alleged to be a "lawful condition" for being on Price Chopper property.

On March 31, 1997, I denied the Borough's motion to dismiss, noting, inter alia, that the record had to be developed with respect to Price Chopper's "no solicitation" policy. (Dkt. Entry 39, at 7.) Discovery has now been completed and both parties have moved for summary judgment. (Dkt. Entries 48 & 64.) Because it is clear that Local 72's handbilling contravenes Price Chopper's "no solicitation" policy, and Pennsylvania law pertaining to the enforcement of a "no solicitation" policy remains uncertain, a police officer could reasonably conclude that probable cause exists to arrest a Local 72 member picketing on Price Chopper property. Accordingly, defendants' motion for summary judgment will be granted.

I. STANDARD OF REVIEW

Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994). "Summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 329, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir.1988); Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir.1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. The affirmative evidence must consist of verified or documented materials. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990). Rule 56 requires the entry of summary judgment, after adequate time for discovery, where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

II. BACKGROUND

In June of 1995, Price Chopper opened a new supermarket at the O'Neill Highway shopping center in Dunmore, Pennsylvania. On June 14, 1995, members of Local 72 began to picket and handbill on the sidewalk in front of the store. (Defs' Stat. of Facts (Dkt. Entry 67) ¶ 1.)² In essence, the handbills criticized Price Chopper for its employment of part-time employees, rather than full-time employees with benefits. (Defs' Exs. (Dkt. Entry 66) Ex. 15.) Near the bottom of the handbill, the following message appeared: "Create fulltime jobs! Don't Shop Price Chopper." (Id.)

As a result of picketers distributing handbills encouraging patrons not to shop at Price Chopper, the Price Chopper store manager called the police. In response to this call, several Dunmore police officers, Police Chief Salvatore Mecca and Borough Solicitor Robert Cordaro reported to the Price Chopper supermarket to attempt to resolve the conflict. According to Solicitor Cordaro, a representative from Price Chopper complained that Price Chopper had a no solicitation policy and wanted the picketers off its private property as such activity violated the no solicitation policy. (Cordaro Dep. (Dkt. Entry 54) at 40-41.) Police Chief Mecca received a written statement from the Price Chopper store manager indicating that Price Chopper did not want the distribution of literature on its property. (Mecca Dep. (Dkt. Entry 55) at 10.)³ Price Chopper also had two no solicitation signs on its front door. (Osterstrom Dep. (Dkt. Entry 60) at 52.) Rodney Osterstrom, a Price Chopper loss prevention specialist, testified that Price Chopper maintained the following policy regarding solicitation: "Nonassociates are prohibited from soliciting and distributing literature at all times anywhere on company property including parking lots." (Osterstrom Dep. (Dkt. Entry 60) at 49.) Moreover, Price Chopper has provided a copy of its Human Resources Policies and Procedures Manual, which outlines the following procedure:

1. Store Managers will inform any individual or organization that we do not permit solicitation or distribution of literature on our premises.

2. A "NO SOLICITATION" sign will be posted in the front window near the entrance of the store.

(Defs' Exs. (Dkt. Entry 66) Affidavit, Ex. A.)⁴ As a result of the initial confrontation and discussions with Solicitor Cordaro on June 14, 1995, the picketers agreed to move away from the store. (Defs' Stat. of Facts (Dkt. Entry 67) ¶ 6.) Local 72 does not claim that any of the events that occurred on June 14, 1995 violated its members' constitutional rights. (Id. ¶ 9.)⁵

On June 20, 1995, Local 72's counsel wrote to Solicitor Cordaro to orchestrate some compromise between the Borough, Local 72 and Price Chopper. (Plfs' Exs. (Dkt. Entry 62) Ex. 17.) In this letter, Local 72's counsel suggested that the picketers should be permitted to picket on the driveway islands that exist at the entrance to the shopping plaza. (Id.) Local 72's counsel also stated that Price Chopper's property interest in such islands would be limited and that the picketers would not be trespassing. (Id.) Solicitor Cordaro gave this letter to Councilman Paul Nardozzi, a Price Chopper employee, so that Mr. Nardozzi could give the proposal to the appropriate authorities at Price Chopper. (Id. Ex. 20.)⁶

On June 27, 1995, Local 72's counsel wrote a letter to Mayor Patrick Loughney in which it was again proposed that the picketers be allowed to picket on the traffic islands. (Plfs' Exs. (Dkt. Entry 62) Ex. 1.) Moreover, Mayor Loughney was warned that the picketers intended to begin their informational handbilling on June 28, 1995. (Id.)

On June 28, 1995, a representative from Price Chopper contacted the Dunmore Police to report that the picketers had returned, whereupon Officers Sleboda and Boland were dispatched to the shopping plaza. (Defs' Stat. of Facts (Dkt. Entry 67) ¶ 16.)⁷ It is undisputed that the picketers were acting in a peaceful manner. The picketers were advised that they could lawfully picket on the traffic islands. (Plfs' Exs. (Dkt. Entry 62) Ex. 13.) All of the picketers moved except for Carol Backes, who was individually given several more warnings before she was arrested for obstructing a public passage under 18 Pa. Cons.Stat.Ann. § 5507(b)(l). (Id.)⁸

On June 29, 1995, Local 72 counsel mailed a letter to Police Chief Mecca as well as Solicitor Cordaro, ostensibly to place those individuals "on notice" that Price Chopper's sidewalk and parking lot were "open to members of the public" such that Local 72 believed that any arrest for defiant trespass would be invalid because Local 72 had a valid affirmative defense under 18 Pa.Cons.Stat.Ann. § 3502(c)(2). (Plfs' Exs. (Dkt. Entry 62) Exs. 2, 3.)⁹ On that same date, Local 72's counsel also mailed a letter to...