author: SNITE, J.,

text:
    Hygrosol Pharmaceutical Corp. v. Roberts

      C.P. of Philadelphia County,
    November Term, 2012
    No. 00213

      Conlin J. O ’Boyle, Mary E. Kohart and Timothy T. Myers, for plaintiffs Spiridon Spireas and Hygrosol Pharmaceutical Corp.

      Robert A. Limbacher, Brandon L Goodman, Donald C. Le Gower and Christopher R. Boisvert, for defendants King Pharmaceuticals Research and Development, Inc. and King Pharmaceuticals, Inc.

      Grant S. Palmer, Rosemary McKenna, and G. Craig Lord, for defendants IP Holdings, Inc., Pharmaceutical Holdings Company, Inc. and Richard Roberts.
    December 13, 2013
   SNITE, J.,

— In June 1996, Dr. Spiridon Spireas (“Spireas”) and Dr. Sanford Bolton (“Bolton”) submitted a patent application with the Unites States Patent and Trademark Office as inventors of processes and technologies relating to “liquisolid” technology. The patent was issued to Spireas and Bolton in October of 1998. Subsequent patents were issued to Spireas and Bolton which also involved liquisolid technology.

In June of 1998 a license agreement was executed between Mutual Pharmaceutical Company, Inc. (“Mutual”) and Hygrosol Pharmaceutical Corporation (“Hygrosol”), Spireas, and Bolton for the use and commercialization of liquisolid technologies. Mutual entered into an agreement in March of 1999 to employ Spireas as Vice President of Research and Development of Mutual. Additionally, Mutual entered into a development agreement with SigmaPharm, Inc. Spireas’ consulting company, a corporation engaged in the development of other new pharmaceutical technologies.

On January 29, 2010 plaintiffs Spireas, Bolton, and Hygrosol, through named plaintiff SigmaPharm, sued Mutual and King Pharmaceuticals, Inc. (“King”) in the District Court for the Eastern District of Pennsylvania. In the District Court action Spireas, through SigmaPharm, alleged that both Mutual and King prevented generic competition for Skelaxin, a muscle relaxant, and thereby violated Section 1 of the Sherman Act, 15 U.S.C. §1. On March 2, 2011, the District Court dismissed the SigmaPharm complaint finding that SigmaPharm did not suffer an antitrust injury, and therefore lacked standing. The United States Supreme Court denied SigmaPharm’s petition for writ of certiorari.

On May 6, 2011 Mutual filed a complaint in the Philadelphia Court of Common Pleas against Spireas and Bolton. All of the claims alleged in Mutual’s complaint, as well Spireas’ counterclaims, relate to the 1998 license agreement.

In the 2011 action, Mutual v. Spireas, Bolton and Hygrosol, Mutual alleged that Spireas and Bolton breached the terms of the 1998 license agreement by making false representations as to ownership of the liquisolid technology. Mutual maintained that Spireas and Bolton represented that they were the exclusive and sole owners of all rights and interests in the patent, processes, and technology for liquisolid. Mutual alleged, however, that all such rights are, and continue to be, owned by St. John’s University.

On January 6, 2012 Spireas filed an answer to Mutual’s complaint asserting counterclaims against Mutual and United Research Laboratories, Inc. (“URL”). Spireas claimed that he owned the liquisolid technology. Spireas counterclaimedthat Mutual breached the license agreement by failing to pay Hygrosol in connection with the license agreement, disclosing confidential information to King in violation of the license agreement, failing to pay licensing fees required under the license agreement, and failing to account for products developed under or using the patent as required by the license agreement. Additionally, Spireas counterclaimed for conversion, accounting, fraud in the inducement, and unjust enrichment.

On January 7, 2012 Spireas filed a third-party complaint naming Mutual, URL, Richard Roberts (“Roberts”), Pharmaceutical IP Holdings (“Pharma IP”), Pharmaceutical Holdings (“Pharma Holdings”), King, and King Pharmaceutical Research and Development, Inc. (“King R & D”) as third-party defendants. In the third party complaint Spireas alleged violations of § 1962(a)-(d) of the federal Racketeer Influenced and Corrupt Organizations Act, as well as counts for restraint of trade under Pennsylvania law, unlawful and unfair competition under the California Business and Professions Code, breach of contract under Pennsylvania Law, breach of license agreement, and civil conspiracy to commit barratry, fraud, and breach of fiduciary duty. Shortly thereafter, on January 9,2012, SigmaPharm filed a Petition to Intervene as a Third Party Plaintiff.

On February 15, 2012 third party defendant King filed a notice of removal to remove the action to the United States District Court for the Eastern District of Pennsylvania. King argued that removal to federal court was appropriate because the federal RICO claims and related allegations in the third party complaint asserted against King and other third party defendants were separate and apart from the underlying state law breach of contract claims. On July 3,2012 the United States District Court for the Eastern District of Pennsylvania remanded the third party complaint back to the Philadelphia Court of Common Pleas. The District Court concluded that neither counterclaim defendants, nor third party defendants, may remove a civil action from a state court to federal court because they are not “defendants” within the meaning of 28 U.S.C. § 1441(a) which states that “any civil action brought in a state court of which the district courts of the united States have original jurisdiction, may be removed by the defendant or the defendants...” Consequently, in order for King defendants to make a successful application for removal of the case to federal court the cases would need to be severed, putting King defendants in the position of defendant rather than third party defendant.

On August 16, 2012 a motion to sever the third-party Complaint was filed as well as preliminary objections to the third-party complaint. The motion to sever, filed by third party defendants, argued that the two complaints addressed fundamentally different issues between different parties over different periods of time which requires different evidence. On September 28, 2012 Spireas filed amended counterclaims against Mutual and URL. The amended counterclaims included violations of 18 U.S.C. § 1962(a)-(d) and NJ.S.A. 2C:41-2(a)-(d) and claims for breach of license agreement, accounting, barratry and civil conspiracy, conversion, and unjust enrichment. On September 28, 2012 Spireas also filed an amended third party complaint as to Roberts, Pharma IP, Pharma Holdings, King, and King R&D. The amended third party complaint alleged violations of NJ.S.A. 2C:41-2(a)-(d) and claims for interference with contractual rights. The September 28, 2012 amended third party complaint, by rule, had to have preliminary objections filed by October 18, 2012. The preliminary objections would have been assigned to me shortly thereafter.

On October 3, 2012 while the response time for the amended third party compliant was still existent, the court granted Mutual’s motion to sever the third-party complaint requiring plaintiffs to refile their third-party claims as a separate action. This had the effect of separating the breach of license agreement claims and the NJ RICO claims. On October 11, 2012 Hygrosol and Spireas filed a motion to vacate the court’s October 3rd order. These third party plaintiffs argued that the third party defendants’ motion to sever addressed third party plaintiffs’ original complaint, filed January 7, 2012, and not their pending amended complaint. On October 19, 2012 the court denied third party plaintiffs motion to vacate the October 3, 2012 order, but clarified that the severance was to apply to the September 28, 2012 amended complaint.

Pursuant to the severance order, plaintiffs instituted the present action on November 5, 2012 by filing a complaint asserting claims for violations of NJ.S.A. 2C:41-2(a)-(d), interference with contractual rights against Roberts, Pharma IP, Pharma Holdings, King, and King R & D. Defendants filed preliminary objections to the complaint on December 14, 2012. On January 16, 2013 the parties stipulated that the Defendants’ preliminary objections would be deemed moot without prejudicing defendants’ right to refile preliminary objections following plaintiffs’ submission of an amended complaint. Plaintiffs filed an amended complaint on January 24, 2013 restating the NJ RICO and tortious interference claims and adding a claim for civil conspiracy. In the amended complaint plaintiffs allege four counts of New Jersey Civil RICO violations. It alleges defendants engaged in a pattern of racketeering by using, or causing another to use, the mails and interstate wires of the United States to transmit documents or information which, among other things: generated investment proceeds, as alleged in Count I; served to facilitate defendants’ control over the enterprises, as alleged in Count II; were connected to defendants’ participation in the enterprises, as alleged in Count III; and were done pursuant to a RICO conspiracy, as alleged in Count IV.

Defendants filed preliminary objections to plaintiffs’ amended complaint on March 1, 2013. The court issued an order on May 1, 2012 sustaining in part defendants’ preliminary objections. This had the effect of eliminating plaintiffs’ RICO claims as to all defendants and eliminating the interference with contractual rights and civil conspiracy claims as to all defendants except King and King R&D.

Plaintiffs now file the instant motion for clarification and/or reconsideration. The court’s May 1, 2013 order is clarified and reconsidered as follows:

I. New Jersey RICO:

Under NJ RICO an enterprise is defined as “any individual, sole proprietorship, partnership, corporation, business, or charitable trust, association or other legal entity, any union or group of individuals associated in fact although not a legal entity, and it includes illicit as well as licit enterprises and governmental as well as other entities.” Plaintiffs’ have asserted that defendants’ are enterprises within the meaning of NJ RICO. I am not convinced that Plaintiffs have appropriately alleged that all defendants are individual enterprises, and that they also became one association-in-fact enterprise.

Under NJ RICO, to prove that a defendant has engaged in a pattern of racketeering activity plaintiff must show: (1) defendant has engaged “in as least two incidents of racketeering conduct one of which shall have occurred after the effective date of this act and the last of which shall have occurred within 10 years (excluding any period of imprisonment) after a prior incident of racketeering activity;” and (2) that “the incidents of racketeering activity embrace criminal conduct that has either the same or similar purposes, results, participants or victims or methods of commission or are otherwise interrelated by distinguishing characteristics and are not isolated incidents.” N.J.S.A. 2S:41-4 allows for civil remedies under NJ RICO. Plaintiffs’ have alleged counts under NJ.S.A. 2C:41-2(a)-(d), Prohibited Activities.

A. N.J.S.A. § 2C:41-2(a):

Plaintiffs’ amended complaint asserts a count for violations for N.J.S.A. 2C:41-2(a) against all defendants. The court’s May 1, 2013 order sustained defendants’ preliminary objections as to all defendants.

Pursuant to N. J.S.A. § 2C:41-2(a) “It shall be unlawful for a person who has received any income derived, directly or indirectly, from a pattern of racketeering activity... to use or invest, directly or indirectly, any part of the income, or the proceeds of the income, in acquisition of any interest in, or the establishment or operation of any enterprise which is engaged in or the activities of which affect trade or commerce.” This is known as an “investment injury”. As such, a defendant must not only have received income from a pattern of racketeering activity, but must also have used or invested that income in a manner that harms plaintiff.

In the amended complaint plaintiffs allege defendants engaged in RICO predicate acts through mail and wire fraud by asserting the following: (1) fraud on the courts; (2) communications with the Food and Drug Administration (“FDA”); (3) communications with the Patent and Trademark Office (“PTO”); (4) communications to the Securities and Exchange Commission (“SEC”); and communications with the parties.

Plaintiffs allege that defendants manufactured and sold adulterated drugs, and made fraudulent representations to the FDA regarding those drugs; that defendants submitted sham patent applications to the PTO; and that defendants’ entered into an improper agreement which they filed with the SEC, in a heavily redacted form, making it misleading.

B. N.J.S.A. § 2C:41-2(b):

Plaintiffs’ amended complaint asserts a count for violations of N.J.S.A. 2C:41-2(b) against all defendants. The court’s May 1, 2013 order sustained defendants’ preliminary objections as to all defendants.

Pursuant to N.J.S.A. § 2C:41-2(b) “It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in[,] or activities of which affect[,] trade or commerce.” This is known as an “acquisition injury.” Essentially, a plaintiff must allege that its injury, apart from injuries caused by the RICO predicate acts themselves, results from defendant’s acquisition or maintenance of an interest in, or control over, an enterprise.

C. NJ.S.A. § 2C:41-2(c):

Plaintiffs’ amended complaint asserts a count for violations of N.J.S.A. 2C:41-2(c) against all defendants The court’s May 1, 2013 order sustained defendants’ preliminary objections as to all defendants.

Pursuant to NJ.S.A. 2C:41-2(c) it “shall be unlawful for any person employed by or associated with any enterprise engaged in activities of which affect trade or commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” In other words, in order for a plaintiff to make a claim under NJ RICO, the plaintiff must allege an injury that flows from the commission of RICO predicate acts.

D. N.J.S.A. § 2C:41-2(d):

Plaintiffs’ amended complaint asserts a count for violations of N.J.S.A. 2C:41-2(d) against all defendants. The court’s May 1, 2013 order sustained defendants’ preliminary objections as to all defendants.

N.J.S.A. 2C:41-2(d) states it “shall be unlawful for any person to conspire as defined by N.J.S. 2C:5-2, to violate [New Jersey RICO (a), (b), or (c)].” To assert a claim under N.J.S.A. 2C:41-2(d) a plaintiff must allege a conspiracy which claims an injury resulting from an act prohibited under RICO.

DISCUSSION OF RICO CLAIMS

1. STANDING

a. Predicate Acts

As stated in Sedima, S.P.R.L. v. Imrex Co., Inc. a RICO “plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.” One of the critical requirements is, therefore, that the predicate act conduct itself causes an injury. One of the fundamental failures of Plaintiffs’ RICO claims in this case is that the individual predicate offenses of mail and wire fraud did not, in fact, directly cause injury to Plaintiffs’ business.

The amended complaint, read in a light favorable to plaintiffs, establishes that plaintiffs and the Mutual defendants entered into a contract, and that the Mutual and King defendants thereafter engaged in fraudulent conduct which prevented plaintiffs from receiving what was due them under the contract. Although a number of the acts which helped perpetrate the fraud can be considered to be mail and wire fraud, the acts themselves did not cause the pecuniary injury. It was the breach of contract which caused the injury.

Bridge v. Phoenix Bond & Indemnity Co. is one of the more recent Supreme Court cases which discusses this concept. It should first be noted that the holding of the casé was that a plaintiff can recover under RICO, even when the predicate act of mail fraud was directed to a third party, and the misrepresentation in that third party communication was not “relied upon” by plaintiff This holding resolved a circuit courts’ conflict.

Plaintiffs have relied upon language in Bridge to support its contention that so long as it is “reasonably foreseeable” that harm would result to plaintiff from a defendant’s mail fraud, causation of the fraud is satisfied. This is not the state of the law.

In Bridge, individual contracts were being “let out” to qualified parties on a rotational basis. So that the contracts could be distributed on a proportionate basis to all qualified parties, a county rule prohibited qualified parties from submitting multiple bids using apparent agents, or related entities. The plaintiff alleged that the defendants submitted perjured compliance attestations so that defendants would obtain more contracts that the rules allowed.

The complete quote concerning causation is:

[Plaintiff’s] alleged injuiy — the loss of valuable [contracts] — is the direct result of [defendant’s] fraud. It was a foreseeable and natural consequence of [defendant’s] scheme to obtain more liens for themselves [,] that other bidders would obtain fewer liens.

The requirement of a “direct injury” is noted at least a half dozen times throughout the opinion. Under the circumstances, the multiple fraudulent bids directly, and at that immediate time, caused the plaintiff to actually lose identifiable valuable contracts. The language of “foreseeable and natural consequence of [defendant’s] scheme” can only refer to defendants’ required mens rea; i.e., the fact that there would be a direct injury to the plaintiff was reasonably known to the defendant, as opposed to a direct injury occurring to the plaintiff in some unusual manner that could not reasonably be foreseen by a defendant. This lack of foreseeability could possibly negate a fraudulent mens rea, by a defendant arguing that the direct result was unforeseeable and unintended.

Additionally, the Bridge case specifically prohibits a “but for” test.

In the case at bar, plaintiffs have simply listed a series of events that ultimately, and in their totality, allowed defendants to breach the licensing agreement; as opposed to showing that any predicate act directly caused any particular pecuniary damage to plaintiffs.

Consequently, plaintiffs do not have standing to bring a RICO action, and no amendment to the complaint can cure this.

b. 2C:41 — 2(a) Investment Injury

It is insufficient to allege that a RICO defendant simply reinvested racketeering proceeds into its already existing ongoing business, and the Third Circuit requires an injury resulting from the investment of racketeering income distinct from an injury caused by the predicate [racketeering] acts themselves.

The reason for this is 2C:41-4. Not only must one prove a 2C:41-2(a) investment violation, but 2C:41-4 requires a plaintiff to show that it sustained injury because of it. There simply must be something beyond an ongoing business remaining an ongoing business, to maintain a RICO action. The income must be used or invested in a manner that harms plaintiff.

It should also be noted that plaintiffs agree that most of Mutual’s “legitimate” income was derived from legitimate sales.

Finally, there is also the fact that essentially all of the other income the Mutual defendants received was through a contract or other dealings with the King defendants.

This reinforces my belief that this case is a breach of contract case, with common law fraud and fiduciary elements also existing. Plaintiffs’ harm, as alleged, is that the Mutual defendants and the King defendants entered into a private contract, which breached the licensing agreement with plaintiffs and profited themselves at plaintiffs’ expense.

c. 2C:41 — 2(b) Acquisition Injuiy
Again, the analysis is similar to Investment Injury.
d. 2C:41 — 2(c) Participation Injury
I rely upon discussion l.a. Predicate Acts, supra.
e. 2C:41 — 2(d) Conspiracy

As the allegations of 2C:41 2(a), 2(b), and 2(c) are infirm, the conspiracy to do so also fails.

2. FINAL REASONING

Although the preceding discussion fully disposes of the RICO claims, I feel compelled to make a further observation not specifically put forward by Mutual and King (for obvious reasons).

While not necessarily being an independent reason for dismissal of the RICO claims, I am again reinforced in believing that dismissal is proper. I am referring to the manner in which plaintiffs and Mutual arrived at their licensing agreement.

Plaintiffs fully admit throughout their amended complaint not only that they believed Mutual capable of unethical and criminal conduct; but also that they essentially gave Mutual the contractual powers, through the license agreement, to do exactly what Mutual eventually did; and that Dr. Spireas actually did certain actions that helped Mutual and King’s schemes. After all of this, plaintiffs take the position that they were surprised that Mutual engaged in the exact conduct plaintiffs knew about, enabled, and helped. Thereafter, plaintiffs essentially admit that their damages are for breach of the licensing agreement.

Interference With Contractual Rights and Civil Conspiracy

With regard to tortious interference with contract, I had originally sustained the preliminary objections with respect to Pharma defendants, stating that a party cannot interfere with its own contract. I had also sustained the preliminary objections with regard to civil conspiracy, much for the same reason.

Upon reconsideration, there are a sufficient number of Pharma defendants wherein there might exist a viable interference with contract by a number of Pharma defendants other than the actual Pharma defendant contract signatory. Consequently, Count V and Count VI are reinstated, and the preliminary objections to these counts are overruled.

Conclusion:

The court’s May 1, 2013 order sustaining in part defendants’ preliminary objections is clarified and reconsidered. All RICO claims are dismissed. The tortious interference with contract and civil conspiracy claims are reinstated, as plead, with respect to all defendants.

ORDER

And now, this 13th day of December, 2013, upon consideration of plaintiffs’ motion for clarification and/ or reconsideration of the court’s May 1, 2013 order sustaining in part defendants’ preliminary objections, and any response in opposition thereto, it is hereby ordered that the motion is granted in part. The court’s May 1,2013 order is clarified as follows:

(1) Plaintiffs’ Count I, N.J.S.A. § 2C:41-2(a), is dismissed as to all defendants;

(2) Plaintiffs’ Count II, NJ.S.A. § 2C:41-2(b), is dismissed as to all defendants;

(3) Plaintiffs’ Count III, NJ.S.A. § 2C:41-2(c), is dismissed as to all defendants;

(4) Plaintiffs’ Count IV, NJ.S.A. § 2C:41-2(d), is dismissed as to all defendants;

The court’s order is reconsidered as follows:

Plaintiffs’ Count V, Interference with Contractual Rights, is reinstated.

Plaintiffs’ Count VI, Civil Conspiracy, is reinstated.
The remainder of the motion is denied.
Plaintiffs may not file a second amended complaint.

Defendants have thirty days from the docketing of this order to file answers to the amended complaint.

      . Although defendants have requested that I also dismiss the second amended complaint on the grounds of res judicata because of the federal dismissal and affirmances; I decline to so hold because I do not believe I have the present ability to make such a determination. However, the Sherman Act dismissal does reinforce my belief as to the appropriateness of my current order.

      . May 2011 No. 0741.

      . The patent for liquisolid technology was related to the research done by Dr. Spireas in connection with his doctoral work while Dr. Bolton was his thesis advisor at St. John’s University.

      . Ownership of the patent is currently being litigated in the New York District Court action St. John’s University v. Bolton et al., Case No. 08-CV-5309 (NGG) (JMA) (E.D.N.Y.)

      . See Foster v. City of Philadelphia, 826 F.Supp. 2d 778, 780-81 (E.D.Pa. 2011).

      . New Jersey’s RICO statute.

      . It is the court’s recollection, which might be incorrect, that it was unaware of the September 28, 2012 filings as of October 3, 2012.

      . No Federal RICO claims were filed. Consequently, the present complaint was not subject to removal to federal court, even though the third party defendants were now original defendants.

      . Defendants’ December 14, 2012 preliminary objections argued that plaintiffs’ New Jersey RICO claims and tortious interference claim were deficient.

      . Pis.’Am. Compl. ¶ 205(A)-(Q).

      . N.J.S.A. 2C:41-1(c).

      . Pls.’ Am. Compl. ¶¶ 210-215, 223-227, 244-249, 251-254.

      . If all of the defendants are deemed to be an enterprise by their association-in-fact, there might exist a problematic issue with an association-in-fact conspiring with itself to commit a RICO conspiracy. This might be capable of cure pursuant to an amended complaint but this would be useless given the dismissal of all RICO claims.

      . N.J.S.A. 2C:41-1(d).

      . Pls.’ Am. Compl. ¶¶ 209-221.

      . See N.J.S.A. § 2C:41-2(a).

      . Pls.’ Am. Compl. ¶¶ 101-106, 109-110, 205(A)-(C).

      . Pls.’ Am. Compl. ¶¶ 126-140.

      . Pls.’ Am. Compl. ¶ 205(M).

      . Pls.’ Am. Compl. ¶¶ 222-242.

      . See N.J.S.A. § 2C:41-2(b).

      . Pls.’ Am. Compl. ¶¶ 243-249.

      . See N.J.S.A. 2C:41-2(c).

      . Pls.’ Am. Compl. ¶¶ 250-254.

      . 473 U.S. 479, 496 (1985).

      . 128 S.Ct. 2131 (2008).

      . The “contracts” were actually giving the bidder the right to foreclose on tax liens. The practice evolved so that all bids became equal to the amount of the liens, so that there really was no price competition with respect to each bid.

      . Bridge, 128 S.Ct. at 2144 (emphasis added).

      . Id.

      . As literally hundreds of cases have been cited by all parties, the court has relied on the treatise: Civil RICO, A Definitive Guide, 3rd Ed. 2010, Gregory P. Joseph.

        .Id. atp.63.

      . Id. citing Guy’s Mechanical Systems, Inc. v FIA Card Services,, N.A., 339 Fed.Appx 193 (3rd Cir. June 22, 2009); see also: Rose v. Bartle, 871 F.2d 331, 356-59 (3d Cir. 1989).

      . Civil RICO, A Definitive Guide, p. 64.

      . Pls.’ Am. Compl. ¶ 46.

      . Civil RICO. A Definitive Guide, pp. 65- 67. Plaintiff submitted no separate harm merely from defendants’ control of the enterprise.

      . Civil RICO. A Definitive Guide, p.85.

      . Pls.’ Am. Compl. ¶¶ 26-37,48-49, 51, 62, 66-68.

      . Pls.’ Am. Compl. ¶¶ 40-41, 102, 111.

      . Pls.’ Am. Compl. ¶¶ 38, 59-60.

      . Pls.’ Am. Compl. ¶¶ 52-54, 97-101.

      . Pls.’ Am. Compl. ¶¶ 111-115.

      . See attached memorandum.

      . All paragraphs of the amended complaint remain, as stated. The legal ruling in this order only eliminates causes of action, and does not eliminate any pled paragraphs. All the pled paragraphs are relevant to the two remaining causes of action


source: Caselaw Access Project

author: GLAZER, J.,

license: Public Domain

text:
    Coffee Services International Co. v. SXB Acquisitions, LLC

      C.P. of Philadelphia County,
    July Term, 2013
    No. 01926

      Maurice R. Mitts, for plaintiff.

      Garth Hoyt and Benjamin R. Picker, for defendants Spencer Corliss, Alfred W. D’Iorio, Nick Bayer, MVP Capital Partners and SXB Acquisitions, LLC.

      Justin J. Williams, Joanna J. Cline and Maria Feeley, for defendant Dillanos Coffee Roasters, Inc.
    August 1, 2013 —
   GLAZER, J.,

The petition for a special and preliminary injunction of plaintiff, Coffee Services International Company (“CSI,”) requires this court to determine whether defendant SXB Acquisition, Inc. (“SXB,”) shall be compelled to reinstate a contract which SXB entered into with CSI, but which it subsequently terminated. For the reasons below, the court finds that SXB shall not be compelled to reinstate the contract and continue to do business with CSI.

BACKGROUND

SXB is the franchisor of a chain of coffee shops. CSI is a supplier of roasted coffee. On 13 March 2012, SXB and CSI entered into a “Roasting Agreement” whereby CSI agreed to serve as exclusive supplier of all coffee products to all of the franchisees of SXB. However, by letter dated 5 July 2012, SXB notified CSI that it was terminating the Roasting Agreement. The termination letter stated as follows:

This letter shall serve as a written notice to CSI that [SXB] is terminating the [Roasting] Agreement.... [SXB] bases its termination of the [Roasting] Agreement on two grounds.
First, [SXB] terminates the Agreement because of CSI’s numerous, unresolved defaults of the [Roasting] Agreement....CSI’s failures to comply with the [Roasting] Agreement are material breaches of the agreement, and they remain unresolved more than thirty (30) days after written notice.
Second, [SXB] terminates the [Roasting] Agreement because of the insolvency of CSI’s sole owner. On June 12, 2013, the Honorable Magdeline D. Coleman ruled in Re Joseph Grass, Bankruptcy No. 12-11063-MDC, in the U.S. Bankruptcy Court in the Eastern District of Pennsylvania, that the debtor’s estate is administratively insolvent because of evidence of an ongoing negative cash flow and an inability to satisfy current expenses....

On 12 June 2013, CSI filed a complaint against SXB. The complaint asserts the claims of injunctive relief, breach-of-contract, fraud-in-the-inducement and civil conspiracy. On 16 July 2013, CSI filed the instant petition for a special and preliminary injunction. According to CSFs petition, SXB “engaged ... in a course of systematic conduct designed to terminate the [Roasting Agreement thus] ... freeing SXB to enter into [a separate agreement] whereby [defendant Dillanos Coffee Roasters, Inc.] would provide substantially similar coffee products to SXB’s franchisees that would otherwise be supplied by [CSI] under the Roasting Agreement.” Furthermore, CSI asserts in its petition that “[approximately 100% of CSI’s business ... comes from SXB and its franchisees”; therefore, CSI “will be forced to close its doors permanently, resulting in the loss of 13 jobs,” unless SXB is enjoined from terminating its contract with CSI. CSI concludes that it will suffer immediate and irreparable harm if the petition for special and preliminary injunction is not granted. In short, CSI asks this court to enter a mandatoiy injunction compelling SXB to maintain its business relations with CSI, and “to continue to require its franchisees to purchase all coffee products from CSI pursuant to the Roasting Agreement.”

DISCUSSION

In Pennsylvania,

[a]n injunction can be either preventative or mandatory....While the purpose of all injunctions is to preserve the status quo, prohibitory injunctions do this by forbidding an act or acts while mandatory injunctions command the performance of some specific act that will maintain the relationship between the parties. Thus, preventative injunctions maintain the present status of the parties to the litigation by barring any action until the litigants’ rights are adjudicated on the merits. Mandatory injunctions require the performance of a positive action to preserve the status quo, are subject to greater scrutiny, and must be issued more cautiously than preventative injunctions.

In Pennsylvania, a petitioner seeking mandatory injunctive relief must establish all of the following prerequisites:

First, a party seeking a preliminary injunction must show that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages.
Second, the party must show that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings.
Third, the party must show that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct.
Fourth, the party seeking an injunction must show that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits.
Fifth, the party must show that the injunction it seeks is reasonably suited to abate the offending activity.
Sixth, and finally, the party seeking an injunction must show that a preliminary injunction will not adversely affect the public interest.
Greenmoor, Inc. v. Burchick Construction Company, Inc., 2006 Pa. Super. 252; 908 A.2d 310, 313 (Pa. Super. 2006).

In Greenmoor, Burchick, a general contractor, entered into five agreements with subcontractor Greenmoor. Under the terms of the five subcontracts, Greenmoor agreed to remove asbestos from a large building through five separate stages of operations. Shortly after commencement of the second stage, Burchick terminated the contract and Greenmoor filed suit against Burchick. Greenmoor sought inter alia preliminary injunctive relief to compel Burchick to reinstate the remaining subcontracts. A hearing was held on the matter, and Greenmoor offered testimony that its termination by Burchick “would result in the failure of Greenmoor.” After the hearing, the trial court granted Greenmoor’s request for injunctive relief and ordered Burchick to reinstate the remaining subcontracts. Burchick appealed. On appeal, the Pennsylvania Superior Court faced the following issue:

Whether the trial court erred as a matter of law and abused its discretion where no reasonable grounds exist for the trial court’s finding that Greenmoor established each of the six (6) essential prerequisites for issuance of a preliminary injunction under Pennsylvania law.

Reversing, the Pennsylvania Superior Court explained that although “a preliminary injunction may be granted where the defendant’s action threaten monetary loss so great a to threaten the existence of plaintiffs business,” the loss by Greenmoor of the remaining subcontracts constituted “a monetary loss ... compensable via an action at law for breach of contract and a subsequent money judgment.” Thus, according to the Superior Court, Greenmoor had failed to show “that an irreparable and irreversible harm [would] result to [the business of Greenmoor] as a result of Burchick’s actions.” Consequently, the Superior Court held that “Greenmoor [could] not sustain its burden to prove a ‘clear right to relief in its mandatory preliminary injunction action.”

Similarly to plaintiff in Greenmoor, CSI asserts in its petition that it will be forced to close its doors permanently, and thirteen of its employees may lose their jobs, if SXB is not compelled to reinstate the Roasting Agreement and require its franchisees to purchase all coffee products from CSI. Although this dire prediction could materialize, CSI has not shown that it will suffer irreparable harm which cannot be adequately compensated by money damages. SXB may not be compelled to continue to do business with CSI, and the petition for a special and preliminary injunction is denied.

ORDER

And now, this 1st day of August, 2013, upon consideration of the petition for a special and preliminary injunction of plaintiff, Coffee Services International Company, the responses in opposition of defendants Dillanos Coffee Roasters, Inc. and SXB Acquisition, LLC et al, and the respective memoranda of law, it is ordered that the petition is denied.

      . Private Label Manufacturing and Primary Franchise Supply Agreement (the “Roasting Agreement,”) Exhibit 2 to the complaint of plaintiff, Article III, §3.1.

      . Notice of Termination, attached as Exhibit A to the answer in opposition of SXB to the petition of a special and preliminary injunction of CSI.

      . SXB’s petition for a special and preliminary injunction, ¶1.

      . Affidavit of Joseph Grasso, Jr., CEO of CSI, ¶67; SXB’s petition for a special and preliminary injunction ¶¶4-5.

      . Proposed order attached to CSI’s petition for a special and preliminary injunction, |3b.

      . Shepherd v. Pittsburgh Glass Works, LLC, 2011 Pa. Super 156; 25 A.3d 1233, 1241 (Pa. Super. 2011).

      . Greenmoor, Inc. v. Burchick Construction Company, Inc., 2006 Pa. Super. 252; 908 A.2d 310, 311-312 (Pa. Super. 2006).

        .Id. at314.

        . Id. at 312.

      . Id. at 312.

      . Id. at 315.

      . Id

      . Id.


author: WILLIAMSON, J.,

text:
    Meduri v. Aldi, Inc.

      C.P. of Monroe County,
    No. 4552 CIVIL 2012

      Heather S. Lanza, for plaintiff.

      Lauren E. Dobrowalski, for defendant.

      November 20, 2013 —
   WILLIAMSON, J.,

Theda J. Meduri has filed a motion for partial summary judgment alleging that defendant Aldi, Inc. breached its duty to her by failing to inspect and maintain an area of its parking lot causing it to be unsafe. As a result, the plaintiff alleges she fell due to a defect on the premises and sustained injuries. We will grant in part and deny in part the motion. The defendant has also filed a motion for summary judgment alleging that there was no dangerous condition on the property causing plaintiffs fall. We will deny the defendant’s motion.

In considering a motion for summary judgment, we must review the record in the light most favorable to the non-moving party, and all doubts as to a genuine issue of material fact must be resolved against the moving party. Loughran v. The Phillies, 205 Pa. Super. 396, 888 A.2d 872 (2005). There can be no genuine issue of material fact in dispute, and the moving party must be entitled to judgment as a matter of law. Id.

In review of plaintiff’s motion, she requests summary judgment on the issues of defendant owing her a duty of care and a breach of that duty. Plaintiff and her husband came to defendant’s store and defendant is a business open to the public, making the relationship one of a business invitee. We also note that the defendant does not dispute that it owed the plaintiff a duty of care as a business invitee. (See defendant’s answer with new matter to plaintiff’s motion for summary judgment). As such, we find that the defendant can be held liable if it knows, or by the exercise of reasonable care, would discover the condition and should realize that it involves an unreasonable risk of harm to business invitees, and should expect that they will not discover or realize the danger or will fail to protect themselves from the danger, or if the defendant fails to exercise reasonable care to protect the business invitee. Therefore, we grant plaintiff’s motion in part and find the defendant owed a duty of care to the plaintiff as a business invitee.

However, we do not find that the plaintiff has met its burden to show defendant breached its duty to the plaintiff for purposes of her motion for summary judgment. There are still facts in dispute for a jury to consider. The defendant disputes that plaintiffs fall was caused by a defective condition. Defendant cites inconsistencies in plaintiffs various statements and affidavit as to where she fell and how she fell. Plaintiff’s expert opinion by RKR Hess is only based upon an assumption of where the plaintiff fell. The defendant also disputes knowledge of a dangerous condition or that such condition could be reasonably discovered or known to them. Plaintiff alleges that the lack of visual inspection of the outside premises on a regular basis and lack of knowledge of maintenance of the outside premises is by itself, proof of a breach of duty by the defendant. However, whether or not this would reveal a defect, or was a breach of a standard of care is a factual determination for a jury. It is an issue that remains in dispute. Therefore, this portion of the plaintiff’s request for partial summary judgment is denied.

The defendant alleges that the plaintiff cannot prove a defect on the property, or that she fell as a result of any defect that may have existed. The defendant argues that any defect, if one existed, was trivial, and thus, it is impossible to find the defendant was negligent. As cited by the defendant, “[A]n elevation, a depression or an irregularity on a street or highway may be so trivial that courts, as a matter of law, are bound to hold that there was no negligence in permitting such depression or irregularity to exist.” Bosach v. Pittsburgh Railways Company, 410 Pa. 558, 189 A.2d 877, 880 (1963). However, whether or not a property owner has maintained their property so as not to present an unreasonable risk must be determined on a case-by-case basis. See McGlinn v. City of Philadelphia, 186 A. 747 (Pa. 1936). There is no definite or mathematical rule as to what constitutes a trivial defect as a matter of law. See Breskin v. 535 Fifth Ave., 113 A.2d 316 (Pa. 1955). Therefore, if the defect is not obviously trivial, the question of negligence must be determined by a jury. Id. At 318. Looking at all of the circumstances in this case, we cannot say there is an obviously trivial defect.

In looking at the facts in the light most favorable to the plaintiff, she fell in an area of the parking lot where there are visible changes in elevation. Plaintiff fell in a marked handicap area, which one could assume would be flat, with no dangerous conditions, or at least little to no elevation changes. Defendant argues the plaintiff was inconsistent in describing where and how she fell. However, plaintiff did identify an area in photos at her deposition where she believes she fell due to the appearance of blood on the ground from her knee injury. Looking at the photos, it is clear that this area is close in proximity to a break (crack) in the pavement/concrete that runs parallel to the sidewalk and building. It was also close to a curb that has a varying change in elevation from the parking area from 0” to several inches or more within a reasonable distance from where the plaintiff identified her knee hit the ground. This portion of the curb was also within a reasonable proximity from where the store manager found the plaintiff after she fell. It is reasonable to conclude that either the crack running through the parking area, or the curbing adjacent to the parking area could have caused the plaintiff to fall and end up on the ground where she did. It is also difficult to tell at this time whether or not either location is such a trivial defect as to be impossible to find the defendant negligent. Under the circumstances, in light of both potential defects being within a handicap zone, the fact the plaintiff was assisting her handicapped husband walk in this area which required her attention, and the area being right by the shopping cart bay and the sidewalk to the store’s entrance, one would not necessarily expect a dangerous condition. Therefore, we cannot say this condition where plaintiff believes she fell was a trivial condition.

Likewise, viewing all of the facts in the light most favorable to the plaintiff, we cannot say that plaintiff’s fall was definitely the result of something other than a dangerous condition. Defendant points out that the plaintiff is not clear in her recollection of what caused her fall, or where exactly she fell. The defendant also notes the plaintiff gave different accounts of the location of the fall. However, a jury could find that the plaintiff fell in the location she identified as having left a blood spot on the ground. This was within a reasonable distance from both the crack in the pavement and/or change from pavement to cement, and the raised curb to the sidewalk that had an elevation change. A juiy could conclude either of these conditions caused the fall. Again, looking at the testimony in the light most favorable to the plaintiff, the defendant’s motion for summary judgment must be denied.

ORDER

And now, this 20th day of November, 2013, it is ordered and decreed as follows:

1. Plaintiff’s motion for partial summary judgment as to the defendant owing her a duty of care as a business invitee is granted.

2. Plaintiff’s motion for partial summary judgment that the defendant breached its duty of care is denied.

3. Defendant’s motion for summary judgment is denied.


author: CEISLER, J.,

text:
    Liberty Place Retail Assocsiates, L.P. v. Israelite School of Universal Practical Knowledge

      C.P. of Philadelphia County,
    May Term, 2013
    No. 02028

      Jason P. Gosselin and Katherine L. Villanueva, for appellant.

      James A. Funt, for appellee Israelite School of Universal Knowledge.
    November 7, 2013—
   CEISLER, J.,

I. PROCEDURAL HISTORY & FACTS

The instant appeal, filed by petitioner-appellant Liberty Place Retail Associates, L.P. (hereinafter “appellant”), stems from this court’s July 24, 2013 denial of its request for permanent injunctive relief which would have prohibited members of respondent-appellee Israelite School of Universal Practical Knowledge (hereinafter “ISUPK”) from demonstrating on the sidewalk outside of appellant’s mall in downtown Philadelphia.

The parties to this matter are best described as follows: appellant “operates a retail mall known as The Shops at Liberty Place... a 150,000 square foot retail center open to the public [and comprised of] more than 60 separate retail shops, fifteen dining facilities, and an 850-seat food court, [in addition to] a rotunda that is available for rent for special events such as product expositions and private evening parties.” Complaint at ¶2. The Shops at Liberty Place (hereinafter “The Shops”) are situated between One Liberty Place and Two Liberty Place, two skyscrapers in Philadelphia’s Center City district, and allow public access through multiple entrances on Sixteenth Street, Seventeenth Street, Market Street, and Chestnut Street, the bounds of which encompass a square city block.

Appellees are members of the Israelite School of Universal Practical Knowledge (“ISUPK”), a self-described“501(c)(3), faith-based, community organization that responds to the plaques [sic] of poverty-stricken, urban American’s through programs such as Education (Adult & Youth); Food Distribution; Rehabilitation (Drug & Alcohol); Spiritual support & counseling.” In contrast, The Southern Poverty Law Center deems the ISUPK “an extremist ‘Hebrew Israelite’ group that preaches hatred of white people, Jews and anyone else who doesn’t embrace its radical black separatist ideology.”

During November 2012, appellees began conducting demonstrations near The Shops’ main entrance at the intersection of Sixteenth and Chestnut Streets. Complaint at ¶¶4, 15, 25. These demonstrations occurred in a “setback space,” the area of which was approximately 800 square feet, located between the sidewalk at this location and the entrance to The Shops. Id. at ¶15, 26. The setback space is owned by Appellant and is, thus, private property, though public access is allowed so that individuals may enter The Shops from the street outside. Id. at ¶ 16. As characterized by Appellant, the content of Appellees’ speech at these demonstrations was hateful and incendiary in nature, and was focused especially on whites, homosexuals, and women, offending some of The Shops’ customers and tenants, as well as some passersby. Id. at ¶¶22, 28-29; see also id. at exs. B-C (two written complaints, one from a customer and one from a tenant). Appellees held approximately six of these demonstrations between late November 2012 and late May 2013. N.O.T. My 15, 2013, at 73, 78, 82-3; Plaintiff’s Exhibits, 52-55.

Seeking to put an end to Appellees’ intermittently disruptive presence, Appellant filed a Complaint on May 21, 2013, as well as a Petition for an Emergency Special or Preliminary Injunction (hereinafter “Petition”). The Complaint included five separate claims against Appellees (trespass, private nuisance, public nuisance, intentional interference with contractual relations, and unjust enrichment). Appellant requested that this Court permanently enjoin Appellees from demonstrating on Appellant’s property and sought damages, attorneys’ fees, interest and costs, as well as any other, appropriate relief. Complaint, at ¶¶41-79.

On May 24, 2013, after a hearing, this court granted appellant’s petition, issuing a preliminary injunction that barred appellees from “occupying or demonstrating in any manner at the comer of 16th and Chestnut Streets in Philadelphia in the setback space owned and operated by [Appellant].” Ceisler Order, May 24, 2013 at 2. This court’s order did not prevent appellees from relocating their demonstrations to the sidewalk area abutting the setback space; however, the order did place several additional restrictions upon appellees to insure that their demonstrations did not violate city ordinances or create a danger to the public. These restrictions included requiring appellees to obtain demonstration permits if required by the city; bans on soliciting without required permits, prohibition on sound amplification in excess of city regulations, and limitations on the use of any platforms that impeded pedestrian traffic and put pedestrians at risk.

After the issuance of this preliminary injunction, appellees began demonstrating at Sixteenth and Chestnut Streets with more regularity, holding, on average, one per week. See plaintiff’s exhibits, nos. 56-62 (demonstrations on May 30 and 31, June 1, June 6, June 14, June 21, and June 28, 2013). On June 4, 2013, appellant filed an Emergency Petition for Adjudication of Civil Contempt for Violation of the May 24, 2013 Order, alleging that appellees were demonstrating in a non-peaceful manner and disrupting pedestrian traffic. Emergency Petition at ¶¶8-10. According to appellant, the appellees had increased the size and frequency of their demonstrations immediately following this court’s issuance of the May 24, 2013 order, and had begun to direct a portion of their invective towards The Shops. Id. at ¶¶16-17. Appellant also alleged that it had continued to receive numerous complaints regarding appellees’ demonstrations, and that appellees’ behavior had forced appellants to increase its private security presence. Id. at ¶¶20-22.

This court deferred adjudication of appellant’s emergency petition on June 7,2013, pending a final hearing regarding appellant’s request for permanent injunctive relief. On June 17, 2013, this court decreed that such a hearing would occur on July 15, 2013, supplementing this the following day by issuing an additional order, one which provided for a period of discovery extending through June 28, 2013.

On June 26, 2013, appellees filed a Response to appellant’s Emergency Petition for Civil Contempt Adjudication, and maintained that they had abided by the terms of the preliminary injunction. Response at ¶¶1-14. Appellees stated that from June 6,2013 onwards, they had conducted their demonstrations pursuant to valid permits issued to them by the Managing Director’s Office of Philadelphia and that they had ensured compliance with the terms of the permits by both seeking and obeying direction from the Philadelphia Sheriff’s Office. Id. at ¶¶2, 6-9. Appellees denied that their recent demonstrations included solicitation, incited violence, or obstructed pedestrian traffic. Id. at ¶¶5-12. Lastly, appellees asserted that their activities constituted an exercise of their right to free speech and were thus protected under the First Amendment. Id. at ¶13. On June 28, 2013 appellees separately filed an answer to appellant’s complaint.

The hearings for appellant’s request for permanent injunctive relief occurred on July 15 and July 19,2013. Over the course of these two days, the parties elicited testimony from: Jill Scarlett, the retail manager of The Shops; Richard Munizca, the head of security at The Shops; Kory Travis and Michael Washington, members of the ISUPK who both hold the rank of General; Sharon Tice Delcotto of Sponsor Philly Events, a marketing and promotional event firm that has a business relationship with appellant; Robert Allen, Assistant Managing Director to the City of Philadelphia’s Managing Director’s Office, Special Events Unit; Lieutenant Joseph O’Brien from Philadelphia Police Department’s Civil Affairs Unit; and employees of both the City of Philadelphia’s Streets Department and Office of Air Management Services. This testimony was supplemented by a copious number of exhibits, including videos and photographs of appellees’ demonstrations, letters and emails, demonstration applications and permits, private security logbooks and incident reports, and copies of relevant statutory provisions and ordinances.

Amidst the hearing proceedings, appellant filed a Memorandum of Law in Support of Motion for Permanent Injunction on July 18,2013, along with a Reply in Further Support of Motion for Permanent Injunction (hereinafter “Reply”) on July 19, 2013. Appellant again argued that permanent injunctive relief was warranted, though only on the basis of trespass and private nuisance. Memorandum at 5-9. Appellant did not contend that appellees themselves were physically trespassing on appellant’s property; rather, appellant now asserted that appellees were liable for trespass because their demonstrations were causing third parties (pedestrians) to congregate in the privately owned setback space to listen and watch appellees. Id. at 5-6. Appellant also asserted that appellees’ demonstrations constituted a private nuisance, as their conduct was unreasonable, reckless, and interfered with appellant’s use of its private property. Id. at 7-9. Finally, appellant stated that the nature of appellees’ demonstrations exceeded the bounds of the First Amendment and, thus, that a permanent injunction would not violate appellees’ constitutional rights. Id. at 9-11; Reply at 2-4.

On July 19, 2013, at the conclusion of the hearings, this court denied appellant’s request for permanent injunctive relief. Appellants appealed this court’s decision to the Superior Court on August 15, 2013. This court subsequently directed appellant to provide a Statement of Errors pursuant to Pa. R.A.P. 1925(b), which appellant submitted on September 5, 2013.

Appellant’s Statement of Errors is reproduced, verbatim, herein:

1. Trespass
To the extent that the Court denied the motion for a permanent injunction on the basis that the First Amendment constitutes a defense to a claim for trespass, the Court erred.
To the extent that the Court denied the motion for a permanent injunction on the basis that the evidence presented did not establish a trespass, the Court erred.
2. Nuisance
To the extent that the Court denied the motion for a permanent injunction on the basis that the First Amendment justified the Defendants’ creation of a nuisance, the Court erred.
To the extent that the Court denied the motion for a permanent injunction on the basis that the evidence presented did not establish a nuisance, the Court erred.
3. Evidentiary rulings
The court unduly limited Liberty Place’s ability to present its case by denying Liberty Place the ability to offer highly relevant evidence. Such evidence includes, but is not limited to: (1) evidence offered to show the impact that the defendants’ conduct has on the community and the foot traffic at The Shops at Liberty Place, such as testimony from community members regarding the demonstrations and their reactions to the demonstrations; and (2) evidence offered to show the nature and the purpose of the demonstrations (i.e., to attract a large crowd that, in these circumstances, causes a trespass), the intent of the demonstrators, and the likelihood of violence disruption to ensue at or around the demonstrations, such as videos of past demonstrations showing violent and hostile circumstances.

II. DISCUSSION

A. THE EVIDENCE WAS INSUFFICIENT TO PROVE TRESPASS

As described in the Restatement (Second) of Torts (hereinafter “Restatement”), “[o]ne is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so.” Restatement §158. The Restatement elaborates on the concept of accountability for third party trespass by stating that “[i]f, by any act of his, [a party] intentionally causes a third person to enter land, he is as fully liable as though he himself enters. Thus, if the [party] has commanded or requested a third person to enter land in the possession of another, the actor is responsible for the third person’s entry if it be a trespass.” Id., Comment J.

While Pennsylvania has adopted this formulation, Kopka v. Bell Tel. Co. of Pa., 91 A.2d 232, 235 (Pa. 1952), absent the manifest intent to cause such an intrusion, an individual is not responsible for a third party’s trespass onto another’s land. Murrin v. Rifugato, 96 A.2d 865, 866-67 (Pa. 1953); Riggle v. Garber, 42 Pa. D. & C.2d 35, 37 (Pa. Ct. Com. Pl. 1966).

Here, appellant maintained that appellees intentionally caused others to trespass by compelling them to stand in the setback space while watching appellees’ demonstrations. Memorandum at 2-3; N.O.T. July 15, 2013, at 8-10; N.O.T. July 19, 2013, at 133-136; however, appellant’s presented no evidence that appellees directed or encouraged anyone to intrude on appellant’s private property, or that they intended for their audience to gather upon the setback space. Clearly, appellee chose to convene their encampment at Sixteenth and Chestnut in order to reach the broadest audience possible. See N.O.T. July 15, 2013, at 254-58, 277-78; N.O.T. July 19, 2013, at 84-87; however, there is a distinct difference between picking a location where one can attract a crowd, and intending for that crowd to assemble in a specific area. While members of the public may have chosen to stand within the setback space to observe appellees’ demonstrations, this did not automatically render appellees liable for such behavior. An audience (or solitary gawkers, for that matter) could have gathered at any place within eye-or-earshot of appellees’ demonstrations, whether that was on the sidewalk, within nearby buildings, in the street, or on the setback space, and appellees presumably would have been satisfied. See e.g.,N.O.T. July 15, 2013, at 256 (MR. TRAVIS: “I define success by more people listening, paying attention, the media picking it up, [] by more people standing.”); N.O.T. July 19, 2013, at 87 (Mr. Washington stating that larger audiences are better). While it is true that a few people occasionally watched the demonstrations from the setback space, there was no evidence that crowds regularly formed or that unsafe conditions were created. Furthermore, citizens are allowed to stand in the setback space and usually do so for all different reasons. As appellees neither directed others to enter on to appellant’s private property, nor evinced the intention that such an intrusion occur, this court determined that appellees were not liable for any trespass of its audience members upon the setback space.

B. THE EVIDENCE WAS INSUFFICIENT TO PROVE PRIVATE NUISANCE

Similarly, there was insufficient evidence to prove that appellees’ demonstrations constituted a private nuisance. As defined by the Restatement, and this Commonwealth, private nuisance occurs when a party effects a “nontrespassory invasion of another’s interest in the private use and enjoyment of land,” Restatement §821D, where “[said] invasion is either: (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.” Id. at §822; Dumm v. Dahl, 913 A.2d 863, 867 (Pa. Super. Ct. 2006). “It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together, [as the] very existence of organized society depends upon the principle of ‘give and take, live and let live.’” Restatement §822, Comment G. As such, a private nuisance is actionable only when such an invasion causes significant harm, in that “there must be a real and appreciable interference with the plaintiffs use or enjoyment of his land.” Id. at §821F; id., at §821F, Comment C.

In light of these parameters, this court found insufficient evidence that appellees had caused the requisite level of harm sufficient to create a private nuisance. For example, though Jill Scarlett and Richard Munizca testified regarding the noise impact of Appellees’ demonstrations, their testimony was mere opinion or inadmissible hearsay, rather than quantifiable evidence. See N.O.T., July 15, 2013, at 56 (MS. SCARLETT: “[Appellees’ demonstrations are] loud. It really varies. Now that I know, I mean, it varies from speaker to speaker so some speakers are veiy loud; others aren’t so much...I have gone down 17th Street toward the 17th Street entrance, and you can hear them pretty far down.”); Id. at 191 (similar testimony from Richard Munizca).

Nor did any other witnesses produce proof that appellant was significantly harmed by noise from appellees’ demonstrations. Robert Allen, Assistant Managing Director to the City of Philadelphia’s Managing Director’s Office, Special Events Unit, testified that he was unaware of appellees violating any law or City of Philadelphia policy. N.O.T., July 19,2013, at 29-30. Lieutenant Joseph O’Brien, from the Philadelphia Police Department’s Civil Affairs Unit, stated that only management at the Shops had made sound-related complaints regarding Appellees’ demonstrations. Id. 65-68. Keith Lemchak, from the City of Philadelphia’s Office of Air Management Services, acknowledged that the Civil Affairs Unit did not request that his office take decibel level measurements at appellees’ demonstrations. Id. at 78-81. In short, appellant only presented evidence that that there was noise of an indeterminate intensity, which did not rise to the level at which either law enforcement or a relevant city agency would deem intervention necessary. Thus, appellant fell far short of proving that it had been significantly harmed by the volume level of appellees’ demonstrations.

Appellant’s argument regarding the pecuniary impact of the demonstrations was similarly inadequate. Appellant represented that appellees had caused it to lose money by affecting its ability to hold events in the setback space and retain tenants, and by for cing it to expend additional sums for security and insurance, thereby creating a private nuisance. Memorandum at 8-9. With regards to lost income, appellant did not offer any evidence which showed that appellees’ mere presence on the sidewalk impeded its desire to use the setback space as it saw fit. See N.O.T., July 15, 2013, at 86-87 (testimony from Jill Scarlett); id. at 337-344 (testimony from Sharon Tice Delcotto). In addition, despite appellant’s initial averments to the contrary, appellees had no effect on The Shops’ occupancy rate, nor did appellant provide proof of demonstration-related decreases in store revenue. See id. at 93-94 (MR. GOSSELIN [appellant’s attorney]: Have you lost any tenants as a result of these demonstrations? MS. SCARLETT: No, we have not.); id. at 105-06 (Jill Scarlett testified that she did not obtain any tenant records reflecting a drop in sales). While appellant did have to pay for additional security, none of these demonstrations resulted in arrests, or even complaints to the police regarding violent behavior. The evidence showed that appellant voluntarily chose to deploy additional security despite the fact that, while irritating and offensive to some, appellees’ behavior never posed a danger or security threat. N.O.T., July 19, 2013, at 60-61; N.O.T, July 15, 2013, at 150-51. Nor were appellant’s insurance and liability arguments particularly convincing, considering that it was already fully covered in advance of appellees’ decision to demonstrative in front of The Shops. See id. at 149 (MR. FUNT [appellees’ attorney]: There is no additional insurance that [appellant] needs to obtain based on a public demonstration on the comer of 16th and Chestnut by [appellees]? MS. SCARLETT: No.). Accordingly, this court concluded that based on the legal standards required, appellees had not created a private nuisance.

C. APPELLEES’ DEMONSTRATIONS CONSTITUTED SPEECH AND CONDUCT THAT WAS PROTECTED UNDER BOTH THE UNITED STATES AND PENNSYLVANIA CONSTITUTIONS

Given the nature of appellees’ demonstrations, however, the cmx of this case is not based in tort law; rather, it is the ability to speak one’s mind in the public square. It is well-settled that freedom of speech is a fundamental right, enshrined in the Constitution, and protected from governmental interference by the First and Fourteenth Amendments. Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936); Near v. Minnesota, 283 U.S. 697, 707 (1931). This is especially true regarding speech upon matters of public concern, which, given the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), “Speech upon matters of public concern “occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting NAACPv. Claiborne Hardware Co., 458 U.S. 886, 913 (1982).

While there is no bright line test for deciding what constitutes an issue of public concern, as opposed to a purely private interest, it remains that this category of speech encompasses a wide variety of topics. City of San Diego v. Roe, 543 U.S. 77, 83 (2004). “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community...or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011); see also Thornhill v. Alabama, 310 U.S. 88, 102 (1940) (“Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.”). A court, in making this determination, must analyze “the content, form, and context of a given statement [or statements], as revealed by the whole record,” Connick, 461 U.S. at 147-48, “[evaluating] all the circumstances of the speech, including what was said, where it was said, and how it was said.” Snyder, 131 S. Ct. at 1216.

While many, including this court, would regard appellees manner of communicating their viewpoints to be intemperate and offensive, it cannot be said that the content of appellees’ speech address matters of public concern. For example, appellees have called Caucasians “the damn devil,” labeled women as “whores,” belittled homosexuals and Asian-Americans, warned people that Jesus Christ was going to “ambush” and kill them, and displayed graphic pictures of aborted fetuses. See plaintiff’s exhibits, 11, 13, 108, 122, 124; N.O.T., July 15, 2013, at 58, 66, 305; however, all of these expressions are made in a larger context, namely, appellees’ belief that oppression by the white majority, coupled with a lack of adherence to the teachings of the Bible, and the absence of respect for the law, had effected serious harm upon minority groups in this country. See, e.g:

MR. TRAVIS: “[W]hen I say the white man is the devil, what I mean is the lies of the institutions, of the religious institutions...the Christianity, the feeling put to black people [that they] are inferior, that those are lies, they are the devil.” N.O.T., July 15, 2013, at 272.
MR. TRAVIS: “We treat murder like it is murder. If it is child molestation, like it is child molestation. We treat abortion like it is abortion, and we make it serious, and these things, in my experience as a black man, are not taken serious by most black people.” Id. at 306.
Member of ISUPK: “How did we get to be the majority of inmates when the white man, he’s the majority in this land, but you less than 12% when you think about two million black men locked up[?] Now, let’s add the homosexuals. Now, let’s add [INDISCERNABLE] on drugs, just out of their mind. That’s our nation that’s destroyed.” Plaintiff’s exhibits, 122.
Member of ISUPK: “Your Christian preachers they ain’t never gonna tell you this. They supposed to be a man teaching black people the law. They supposed to teach you not to eat pork, not to be whores, [to] stay with your man, [and] not to commit adultery. Do they teach you that? No, they break you up. Sister, I don’t think you need to be with that type of man. You can find you another man. Turning our sister into a ho.” Plaintiff’s exhibits, 124.

Appellees see it as their mission to speak out on such matters in public, so that they may educate African-Americans, Hispanics, and Native Americans on how to conduct their lives, as well as engage others in some form of dialogue. See N.O.T., July 15, 2013, at 247-48, 253-54. Though appellees frequently expressed themselves in a manner which was not particularly conducive to measured, thoughtful discussion, it is equally true that their demonstrations addressed substantive and complex issues centering on the racial, religious, and gender-based dynamics that both divide and unite our nation.

Of course, not all speech that touches on matters of public concern comes within the ambit of the First Amendment. “[Restrictions upon the content of speech [are permitted] in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” R.A.V v. City of St. Paul, Minn., 505 U.S. 377, 382-83 (1992) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)); see, e.g., Roth v. United States, 354 U.S. 476 (1957) (obscenity); Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement); Beauharnais v. Illinois, 343 U.S. 250 (1952) (defamation); Chaplinsky, 315 U.S. 568 (“fighting words”). Unlike other, constitutionally protected types of discourse, this speech may be circumscribed, either completely or in part, based directly upon its substance. F.C.C. v. Pacifica Found., 438 U.S. 726, 744-46 (1978).

That having been said, this court determined that appellees’ demonstrations did not fall within such exceptions. Though appellees’ speech was offensive and provoked strong reactions from some passersby, it was not directed at specific individuals or geared towards inciting immediate, unlawful behavior. See, e.g:

THE COURT: “Do [Appellees] ever threaten the people who engage them with violence?” MS. SCARLETT: “I have never heard it, but I don’t stand out there the whole time.” N.O.T., July 15, 2013, at 141.
MR. FUNT (Appellees’ attorney): “[Appellees] don’t talk about specifics. They have a message about not wanting women to be whores, correct?” MS. SCARLETT: “Correct.” MR. FUNT: “You have never seen them addressing a specific woman?” MS. SCARLETT: “Yes.” Id. at 144.
THE COURT: “So [Appellees] don’t contact individuals; in other words, they don’t stop individuals and start yelling at them. Only the person starts yelling at the demonstrators?” MR. MUNIZCA: “I guess you could say that. It appears where [Appellees] have been hollering at somebody and then [that person] stop[s] and challenge^] them.” Id. at 195.

Nor did these demonstrations block access to The Shops, or result in physical clashes, arrests, or violent incidents. See plaintiff’s exhibits, 23, 24, 26 (pictures of appellees’ post-preliminary injunction demonstrations); N.O.T., July 15, 2013, at 185 (Mr. Munizca stating that no violent incidents had occurred at the demonstrations); id. at 187 (THE COURT: Did you ever have to call the police for any kind of altercation? MR. MUNICZA: We have not. THE COURT: Has anyone been hurt? MR. MUNICZA: No, ma’am.”); N.O.T., July 19, 2013, at 60 (Lieutenant O’Brien stating that no arrests have been made as a result of appellees’ demonstrations).

Additionally, appellees’ First Amendment protections were not diminished by their choice of venue. It is true that appellees’ demonstrations were held in front of a premier Center City shopping location, where there is a great deal of foot traffic; however, throughout this country’s history, public spaces have “been held in trust for the use of the [people] and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939). Reflecting their “special position in terms of First Amendment protection,” United States v. Grace, 461 U.S. 171, 180 (1983), these spaces, including “streets, sidewalks, and parks, are considered... [to be areas within which] the government’s ability to permissibly restrict expressive conduct is very limited.” Id. at 177. The space occupied by appellees during their demonstrations, on the sidewalk at the comer of Sixteenth and Chestnut Streets, is the very definition of a public forum, meaning that this court could limit such use “only for weighty and substantial reasons.” Klebanoff v. McMonagle, 552 A.2d 677, 678 (Pa. Super. Ct. 1988) (citing Grayned v. City of Rockford, 408 U.S. 104, 115 (1972)); see also Startzell v. City of Philadelphia, 533 F.3d 183, 196 (3d Cir. 2008) (“[T]he streets and sidewalks of Philadelphia^ [are] an undisputed quintessential public forum.”).

If is also well-settled that lawful speech, even that which is directed towards harming the business interests of another, is protected by the First Amendment. NAACP, 458 U.S. at 909; Org. for a Better Austin v. Keefe, 402 U.S. 415, 415-20 (1971); Thornhill, 310 U.S. at 102-3. Additionally, “[u]nder Pennsylvania law, ‘peaceful [demonstrations] conducted in a lawful manner and for a lawful purpose [are] lawful, even though [they] shut[] down, bankrupt or put[] out of business [an affected] company or firm.” Franklin Chalfont Assocs. v. Kalikow, 573 A.2d 550, 556 (Pa. Super. Ct. 1990) (quoting Tate v. Philadelphia Transp. Co., 190 A.2d 316, 320 (Pa. 1963); cf. William Goldman Theatres, Inc. v. Dana, 173 A.2d 59, 62 (Pa. 1961) (“Article I, Section 7, of the Pennsylvania Constitution...prohibit[s] the imposition of prior restraints upon the communication of thoughts and opinions, leaving the utterer liable only for an abuse of the privilege.”). Absent illegal or otherwise impermissible conduct, both the federal and Pennsylvania Constitutions granted appellees the right to demonstrate on the sidewalk in front of The Shops, whether or not people complained or appellant’ business was negatively impacted. Keefe, 402 U.S. at 419; Kalikow, 573 A.2d at 558.

This is not to suggest, however, that the First Amendment provides limitless rights to those who speak on matters of public concern in a public forum, as it is well-settled that “[e]ven protected speech is not permissible in all places and at all times.” Frisby v. Schultz, 487 U.S. 474, 479 (1988) (quoting Cornelius v. NAACP Legal Def. & Ed. Fund, Inc., 473 U.S. 788, 799 (1985)). Accordingly, the government may regulate expression, in a content-neutral manner, through “reasonable time, place, or manner restrictions...[that] are narrowly tailored to serve a significant governmental interest, and that... leave open ample alternative channels for communication.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

1. THE CIRCUMSTANCES DID NOT WARRANT THE ISSUANCE OF A PERMANENT INJUNCTION

Even greater scrutiny is required when a party’s desired mechanism of relief comes in injunctive form. By their targeted nature, “[injunctions...carry greater risks of censorship and discriminatory application than do general ordinances.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 764 (1994). Accordingly, a content-neutral injunction must “burden no more speech than necessary to serve a significant government interest,” Id. at 765, and must be “couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order.” Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 183 (1968). This is critical, for, though “a speech-restricting injunction may not attack content as content... it lends itself just as readily to the targeted suppression of particular ideas.” Madsen, 512 U.S. at 793 (Scalia, J., concurring) (emphasis in original).

The Pennsylvania Supreme Court has articulated a firm standard with regard to the issuance of permanent injunctions. In order for such an injunction to be warranted, “the party seeking relief ‘must establish that his right to relief is clear, that an injunction is necessary to avoid an injury that cannot be compensated by damages, and that greater injury will result from refusing rather than granting the relief requested.’” Kuznik v. Westmoreland Cnty. Bd. of Comm’rs, 902 A.2d 476, 489 (Pa. 2006) (quoting Harding v. Stickman, 823 A.2d 1110, 1111 (Pa. Cmwlth. Ct. 2003). In contrast to requests for preliminary injunctions, which require that a party establish its need to prevent imminent and irreparable harm, a permanent injunction is proper “if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law.” Buffalo Twp. v. Jones, 813 A.2d 659, 663 (Pa. 2002) (quoting Soja v. Factoryville Sportsmen’s Club, 522 A.2d 1129, 1131 (Pa. Super. Ct. 1987). “Additionally, when reviewing the grant or denial of a final or permanent injunction, an appellate court’s review is limited to determining whether the trial court committed an error of law.” Id. at 664.

Given the character of appellees ’ demonstrations, as well as the governmental interests implicated by their presence on the sidewalk, the instant situation did not warrant the extreme remedy requested by appellant. Were this court to have issued the desired permanent injunction, appellees would have been flatly barred from the sidewalk in front of The Shops, despite the constitutionally protected nature of their speech and choice of forum, and the absence of evidence justifying the granting of such relief. Though, as noted above, appellant tried to phrase its argument in the language of tort law, this was but a thinly-veiled attempt to obfuscate the true genesis of its displeasure: the repulsive tone of appellees’ demonstrations. Appellant’s angst is certainly understandable. There are many places where Philadelphians may decide to spend their hard-earned money and, given the choice, a person is certainly more likely to frequent establishments where they are not subject to racist, sexist, or homophobic rants; however, if the First Amendment is to serve its fundamental purpose, it must be construed “to protect even hurtful speech on public issues [so] that we do not stifle public debate,” Snyder, 131 S. Ct. at 1220, even if, as a result, “we must put up with, and even pay for, a good deal of rubbish.” United States v. Ballard, 322 U.S. 78, 95 (1944) (Jackson, J., dissenting). While appellees’ speech can be understandably deemed completely offensive, it was not this court’s place to shield appellant, its tenants and customers, or passersby from being upset or insulted, Snyder, 131 S. Ct. at 1219, or to protect appellant’s purely economic interests from the effects of appellees’ lawful activities. Keefe, 402 U.S. at 419; Kalikow, 573 A.2d at 558.

Instead, the role of this court was to ensure that appellees’ demonstrations would not harm members of the public. This was accomplished through the aforementioned preliminary injunction, which ordered appellees to move from the setback space to the sidewalk, placed reasonable restrictions upon their activities at that location, and strongly suggested that they get demonstration permits from the City of Philadelphia. Ceisler Order, May 24,2013 at 2 -3. Appellees complied with these terms, committed no acts of violence, were never arrested, and did not pose a serious threat to public safety and order. In fact, due to the limited number of people involved, either as participants or spectators, appellees were not legally required to procure permits in order to conduct their demonstrations. See N.O.T., July 19,2013, at 5-10,41-44. Accordingly, as there was no legal basis for granting appellant’s requested relief, this court refused to permanently enjoin appellees from demonstrating on the public sidewalk at the comer of Sixteenth and Chestnut Streets.

D. Tins COURTDID NOT ABUSE ITS DISCRETION OR MISAPPLY THE LAW WITH REGARD TO ANY EVIDENTIARY RULINGS

Finally, appellant contends that this court “unduly limited [Appellant’s] ability to present its case by denying [it] theabilitytoofferhighlyrelevantevidence.” Appellant’s Statement of Errors, at 2; however, this argument is neither factually or legally-sound. It is well-settled that “decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law...[which was] harmful or prejudicial to the complaining party.” Hatwood v. Hosp. of the Univ. of Pennsylvania, 55 A.3d 1229, 1239 (Pa. Super. Ct. 2012) (quoting Reott v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa. Super. Ct. 2010). Said discretion necessarily encompasses a trial court’s determinations regarding the scope of witness testimony. Walls v. City of Philadelphia, 646 A.2d 592, 596 (Pa. Commw. Ct. 1994); see Com. v. Boxley, 838 A.2d 608, 615 (Pa. 2003) (citing Pa. R.E. 611(a)(2)) (“[T]he trial court has the power to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence, to avoid needless waste of time.”); cf. Katz v. St. Mary Hosp., 816 A.2d 1125, 1128 (Pa. Super. Ct. 2003) (discretion regarding leading questions); Com. v. Showers, 681 A.2d 746, 755 (Pa. Super. Ct. 1996) (discretion regarding scope and manner of cross-examination). Reversal, by an appellate court, of a trial court’s evidentiary ruling is proper only where “the law [was] overridden or misapplied, or the judgment exercised [was] manifestly unreasonable, or [was] the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record.” Schuenemann v. Dreemz, LLC, 34 A.3d 94, 100 (Pa. Super. Ct. 2011) (quoting Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. Ct. 2008).

Here, the injunction hearing lasted two full days, during g which this court curtailed appellant’s questioning in a limited number of instances:

1. Appellant strayed into the realm of the hypothetical, and away from the fact-specific inquiries required by both tort law and the particulars of First Amendment speech protection. See N.O.T. July 19, 2013, at 54-56, 63;

2. Appellant began to touch upon irrelevant topics, such as whether appellees had insurance coverage or a bank account, neither of which had anything to do with appellees’ behavior at their demonstrations. See id. at 82-83, 100-101;

3. Appellant introduced video evidence that showed appellees speaking in generally offensive terms, rather than that they singled out specific individuals for verbal abuse. See id. at 97-98.

Each of these decisions fell squarely within, and was justified by, this court’s discretionary powers. As such, this court did not commit reversible error with regard to any of its evidentiary rulings.

III. CONCLUSION

For the aforementioned reasons, this court respectfully requests that the instant appeal be denied.

      . See About Us, The Shops at Liberty Place, 2013, http://www. shopsatliberty.com/about-us.html.

      . See Store Map, The Shops at Liberty Place, 2013, http://www. shopsatliberty.com/store-map.html.

      . Mission, Israelite School of Universal Practical Knowledge, Inc., 2011, http://www.isupknonprofit.org/mission.html.

      . General Yahanna’ Discusses Black Supremacist Hebrew Israelites, Intelligence Report (Fall 2008, No. 131), Southern Poverty Law Center, available at http://www.splcenter.org/get-informed/ intelligence-report/browse-all-issues/2008/fall/god-and-the-general.

      . Appellant states in its Complaint that it owns the sidewalk surrounding the setback space and main entrance. Complaint at ¶16; however this averment is erroneous, as said sidewalks are, in fact, public properly. See N.O.T. July 15, 2013 at 41-43 (Appellant admits that it maintains, but does not own, these sidewalks).

      . Specifically, appellant alleged that appellees began accusing The Shops of employing racist practices and suggested that it was not safe to patronize The Shops. Emergency Petition at ¶16-17.

      . Appellant subsequently expressed its desire to withdraw the Emergency Petition. See N.O.T., July 15, 2013 at 7 (“[With regard to] that contempt petition, we believe that they did violate the order, but our goal at that point was to tiy to get to where we are today, where we would have our permanent injunction hearing. We are not interested in having the [Appellees] held in contempt, so we would withdraw that motion.”).

      . This order was not docketed until June 21,2013.

      . Appellees explained in later proceedings that they were previously unaware that the setback space surrounding The Shops was private property, and that, upon being informed of this fact, they promptly moved their demonstrations to the public sidewalk. Appellees’ Motion to Deny Injunction at 2.

      . In the context of the ISUPK, the title of “General” denotes a high position of organizational authority. N.O.T., July 15,2013 at 247. While both Mr. Travis and Mr. Washington hold the same rank, Mr. Washington functions as the ISUPK’s treasurer and is Mr. Travis’ subordinate. N.O.T., July 19,2013 at 88-90.

      . Appellant never formally filed a Motion for Permanent Injunction; rather, appellant merely asked for such relief in its initial complaint. Complaint at 18. Appellant’s memorandum, which included a proposed order, and Reply were ostensibly filed in support of the nonexistent Motion for Permanent Injunction.

      . Appellees filed a Motion to Deny Injunction on July 22, 2013, which essentially served to rebut the arguments contained in appellant’s putative Motion for Permanent Injunction; however, since appellees’ motion was both filed and assigned after this court had already denied appellant’s request for permanent injunctive relief, it was dismissed as moot.

      . Mr. Munizca also testified that he “had someone to monitor the decibel[] [level of a demonstration] and it was between 95 and 105.” Id. However, this court deemed this portion of Munizca’s testimony inadmissible; appellant’s attorney stated that the reading was taken by “somebody out there with a store-bought decibel reading [sic] for our own purposes” who was not qualified as an expert, and appellant failed to offer any reports or records otherwise substantiating Munizca’s statement. Id. at 192.

      . Appellant also maintains that the content of appellees’ demonstration speeches created a private nuisance. Memorandum at 8-10; see also N.O.T., July 19, 2013, at 127-29, 138, 142-48 (Mr. Gosselin (appellant’s attorney) referencing, in the context of private nuisance, the signs displayed, the language used, and the topics covered by appellees at their demonstrations). This court will address this argument infra, via discussion of the instant matter’s First Amendment implications.

      . In contrast, regulation that is content-based is valid only where it is “necessary to serve a compelling state interest and...is narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

      . Additionally, there were a handful of occasions where this court merely expressed its desire that the proceeding not get bogged down by cumulative evidence or redundant questioning, without ordering the parties to take (or cease) specific action. Instead of taking issue with this court’s requests or inclinations, appellant either willingly went along or simply appeared to drop the matter. See N.O.T. July 15, 2013, at 167-70 (Appellant’s counsel says that he’d like to call Theresa Sylvester and her mother as witnesses. Court tells parties it would prefer that they stipulate to the Sylvester’s being offended by appellees. Appellees’ counsel says that he’ll talk with appellant’s counsel about this. Neither side raises issue again); id. at 174 (Appellant’s counsel says that he’d like to redirect Jill Scarlett, but that he can tell that this court would prefer to move on. This court agrees that this is true. Appellant’s counsel decides to call his next witness instead).