Mazzocone v. Willing

369 A.2d 829, 246 Pa. Super. 98

• Court: Superior Court of Pennsylvania
• Decided: February 15, 1977
• Docket: 475
• Status: Published

Opinions

CERCONE, Judge:

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

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

As modified the decree is affirmed.

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

LAW-FIRM

OF

QUINN-MAZZOCONE STOLE-MONEY FROM ME AND SOLD ME OUT TO THE INSURANCE COMPANY

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

The evidence before the Chancellor established, among other things, that plaintiffs, a two-member law firm, were retained by defendant in 1968 to prosecute her claim for workmen’s compensation benefits. Although plaintiffs secured a favorable decision for defendant, it was ironically this event which spawned her animosity towards them.² Specifically, defendant developed the belief that plaintiffs wrongfully diverted to themselves $25.00 of the settlement proceeds. This conviction apparently arose out of some confusion regarding the payment of $150.00 which, according to plaintiff’s distribution schedule, was made to the defendant’s treating psychiatrist, Dr. DeSilverio. Defendant maintains that plaintiffs only paid Dr. DeSilverio the sum of $125.00.³ In reply to this contention, plaintiffs introduced into evidence their records relating to Dr. De-Silverio, including cancelled checks. Furthermore, any possible doubt as to the truth or falsity of defendant’s allegations was dispelled by Dr. DeSilverio himself, who testified that plaintiffs had indeed paid him $150.00 for his services. Defendant made no attempt to contradict or refute this evidence, but simply repeated her belief that plaintiffs had defrauded her out of $25.00, and no proof to the contrary would erase this conviction.

As the lower court well stated:

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

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

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

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

The third argument often invoked for denying injunctive relief in defamation cases is that the plaintiff has an adequate remedy at law. This reason is premised on the theory that an award of damages will sufficiently recompense the plaintiff for any harm occasioned by the defamatory publication. See 42 Am.Jur.2d, Injunctions, § 186. We, however, have difficulty accepting the idea that the payment of a sum of money is either an adequate or proper remedy in this case. In the first instance, it is obvious that a good professional and/or personal reputation is a unique and precious possession. Damage to this inestimable possession is, however, difficult to prove and measure accurately; in fact, in most cases, more difficult than measuring property damages, Everett v. Ha/rron, supra. More importantly, we cannot disregard the fact that in the present case an action for damages would be a pointless gesture since the defendant is indigent. In the case of Heilman v. The Union Canal Company, 37 Pa. 100, 104 (1860), which was an action to restrain a canal company from diverting and using the water of a creek, the Court held that “the insolvency of the defendants, is not of itself a ground of equitable interference.” [Emphasis added.] However, in the instant action not only do we have the defendant’s insolvency but, as pointed out above, we also have the difficulties inherent in attempting to measure in dollars the damage caused by defendant. An additional consideration militating in favor of equitable jurisdiction is the avoidance of a multiplicity of suits. In view of the defendant’s unshakeable conviction that plaintiffs have defrauded her, it is not unreasonable to assume that unless restrained she will persist in conducting her defamatory demonstrations secure in the knowledge that any monetary judgment would be unenforceable. To permit this would place plaintiffs in the oppressive position of resorting to ineffective actions at law whenever the defendant is inclined to denigrate them. Clearly this cannot be an “adequate remedy at law.” Everett v. Harron, supra.

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

“The phase ‘prior restraint’ is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: ‘What is needed,’ writes Professor Paul A. Freund, ‘is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.’ The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.” Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-442, 77 S.Ct. 1325, 1328, 1 L.Ed.2d 1469 (1957).

Justice Frankfurter gives strong viability to the minority view, if such is the case, that a pragmatic and modern rather than a theoretical and historical approach should be made in deciding the justiciability of an injunction against defamatory publications.

Of course, the Supreme Court has never declared that all injunctions of speech do not pass constitutional muster. This circumspection necessarily derives from the realization that the peculiar facts of a-particular case may admit of no other alternative but injunction. We submit that this is such a case. Here we have a situation where an indigent person persists in defaming the plaintiffs despite the fact that her allegations have been irrefutably demonstrated to be untrue. Indeed, the evidence of their untruth is so overwhelming that one can only infer that the defendant’s intent is purely malicious. Furthermore, her indigence allows her to proceed without fear of having to pay for her defamations; there is no economic incentive here for self-censorship. Similarly, her indigence deprives the plaintiffs of any fund upon which they might draw to repair, in some measure, the damage already done to their business and reputations. Hence, the suggestion is that the constitution requires the plaintiffs to endure a continuing and utterly false attack upon their reputations without affording any relief whatsoever, monetarily or otherwise. We cannot agree that the constitution permits any such inverse condemnation of these valuable personal rights.

“The public interest in freedom of speech is degraded when it is used as a shield for tortious harms caused by statements of a wholly private significance.” Restatement, Torts § 942, comment d (1939).

Furthermore, there is an inconsistency with the majority view in that it approves injunctions in trade libel cases and frowns on injunctions against defamatory publications concerning the reputation of an individual. Purchasers have been enjoined from adorning their cars with drawings of lemons and similar decorations or against advertising the identification of a vendor. Carter v. Knapp Motor Co., 243 Ala. 600, 11 So.2d 383 (1943); Menard v. Houle, 298 Mass. 546, 11 N.E.2d 436 (1937); Saxon Motor Sales, Inc. v. Torino, 166 Misc. 863, 2 N.Y.S.2d 885 (1938). Demonstrative tenants have been restrained from picketing their landlord. Springfield Bayside Corporation v. Hochman, 44 Misc.2d 882, 255 N.Y.S.2d 140 (1964). The owner of a hospital has been protected against the disparagement of that facility. Wolf v. Gold, 9 A.D.2d 257, 193 N.Y.S.2d 36 (1959). The business interests of a real estate developer have been protected. West Willow Realty Corp. v. Taylor, 23 Misc. 2d 867, 198 N.Y.S.2d (1960). See generally 42 Am.Jur. 2d, supra.

There is definitely a curious inversion of logic in the view that gives property rights primacy over personal rights involving reputation. There is an equal involvement of freedom of speech and expression in both categories of cases; and yet, equity will give relief in one and withhold it in the other on grounds that equitable relief in personal defamation cases would derogate the right to freedom of speech. That there is an incongruity in this kind of reasoning needs no lengthy disposition or argument. There is as much threat in the potential destruction of a person’s good name through malicious falsehoods as there is in coercive and threatening measures taken against one’s property rights.

We are fully aware that equity cannot enjoin every utterance or publication, whether it be in a trade libel or a defamation case. Each case must stand on its own facts. An injunction will not issue when it is not in the public interest to do so. The pivotal question and its solution depend on the presence or absence of an overriding public interest in the utterance or publication. In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed. 2d 296 (1971) the court stated:

“It is clear that there has emerged from our cases decided since New York Times [New York Times v. U. S., 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822] the concept that the First Amendment’s impact upon state libel laws derives not so much from whether the plaintiff is a ‘public official,’ ‘public figure,’ or ‘private individual,’ as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general interest,”

Where the public interest is minimal or non-existent then a publication, which is also defamatory and unprivileged should be enjoined.

In the case at bar, we perceive no public interest so substantial or significant as to permit defendant’s continuing false accusations concerning plaintiff’s professional conduct. On the other hand, the injury to plaintiff’s reputation can be extensive and irreparable if the defendant is permitted to continue her activities. Under these circumstances, the court below properly granted the injunction.

While we have concluded that the injunction was properly issued, we must agree with defendant’s contention ⁵ that the decree is constitutionally offensive insofar as it curtails any form of expression. It is well established that:

“The entry of an injunction is, in some respects, analogous to the publication of a penal statute. It is a notice that certain things must be done or not done, under a penalty to be fixed by the court. * * * Such a decree should be as definite, clear, and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, when practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may will differ.”

Collins v. Wayne Iron Works, 227 Pa. 326, 330, 76 A. 24, 25 (1910); accord. Apple Storage Co. v. Consumers Education & Pro. Ass’n., 441 Pa. 309, 272 A.2d 496 (1971). In the instant case, the decree is not sufficiently precise. It is too broad since it imposes sanctions beyond the scope of her activities which have been adjudged defamatory and false in this case. The decree must be modified ⁶ to read as follows:

“Helen R. Willing, be and is permanently enjoined from further demonstrating against and/or picketing Mazzocone and Quinn, Attorneys-at-Law, by uttering or publishing statements to the effect that Mazzocone and Quinn, Attorneys-at-Law stole money from her and sold her out to the insurance company.”

Accordingly, the decree entered by the court below as modified is hereby affirmed.

JACOBS, J., files a dissenting opinion in which HOFFMAN and SPAETH, JJ., join.

1 . In this connection, it is to be noted that an occupant of Three Penn Center Plaza testified that the noise created by the defendant was so distracting that he and his thirty employees could not work, and that he had to close the office.

2 . Defendant was awarded permanent/partial disability benefits.

3 . It is interesting to note that defendant never registered any “Mnplaint about the distribution until her instant activities. Significantly, these occurred shortly after the Commonwealth Court dismissed her claim for total disability benefits, a claim which plaintiffs refused to prosecute because of their opinion that same was unwarranted.

4 . See Pound, Equitable Relief against Defamation and Injuries to Personality, 29 Harv.L.Rev. 640 (1916); Sedler, Injunctive Relief and Personal Integrity, 9 St. Louis U.L.J. 147 (1964); Note, Developments in the Law: Injunctions, 78 Harv.L.Rev. 994, 1011-12 (1965); Bertelsman, Injunctions Against Speech and Writing: A Re-Evaluation, 59 Kent L.J. 319 (1970).

5 . Given the fact that we have modified the chancellor’s decree and that the material facts are undisputed, the defendant’s final contention — that the court below was lacking in fairness and impartiality — has no merit.

6 . See Liberty Corporation v. D’Amico, 457 Pa. 181, 329 A.2d 222 (1974).