Neshaminy Constructors, Inc. v. Philadelphia, Pennsylvania Building & Construction Trades Council

449 A.2d 1389, 303 Pa. Super. 420, 111 L.R.R.M. (BNA) 2490, 1982 Pa. Super. LEXIS 5228
CourtSuperior Court of Pennsylvania
DecidedSeptember 10, 1982
DocketNo. 898
StatusPublished
Cited by13 cases

This text of 449 A.2d 1389 (Neshaminy Constructors, Inc. v. Philadelphia, Pennsylvania Building & Construction Trades Council) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neshaminy Constructors, Inc. v. Philadelphia, Pennsylvania Building & Construction Trades Council, 449 A.2d 1389, 303 Pa. Super. 420, 111 L.R.R.M. (BNA) 2490, 1982 Pa. Super. LEXIS 5228 (Pa. Ct. App. 1982).

Opinion

PER CURIAM:

In this appeal from a final decree refusing relief and dismissing a complaint in equity, appellant contends that the [422]*422trial court abused its discretion when it refused to enjoin conduct by pickets which prevented access to a major construction site.1 We agree and reverse.

This is not the usual labor dispute. Neshaminy Constructors, Inc. (hereinafter “N.C.I.”) has been awarded a contract by the City of Philadelphia to perform a portion of the construction work on the City’s 330 million dollar, federally funded, Northeast Water Pollution Control Project. N.C.I. is a union employer. However, its employees are not represented by appellee, the Philadelphia, Pennsylvania Building and Construction Trades Council; they are represented by the United Steelworkers of America. Both unions are affiliated with the AFL-CIO. On March 22, 1982, when N.C.I.’s work on the project was scheduled to begin, pickets affiliated with appellee appeared at the entrance to the construction site which had been designated for use by N.C.I.’s employees and subcontractors. Their purpose apparently was to protest the awarding of the contract to an employer whose employees were represented by a union other than the Building and Construction Trades Council. The activities of appellee’s pickets were recorded by video-tape over the course of three days. These tapes were entered into evidence and examined by the trial judge. The tapes, together with the recorded testimony, have also been examined by the members of this Court. This evidence establishes beyond peradventure of a doubt that vehicles approaching the entrance were denied access to the site. When a vehicle approached the gate, one or more pickets engaged the driver in conversation while several others placed themselves in front of the vehicle. The latter pickets refused to move, and the vehicle was thereby denied entrance. The absence of violence, a fact noted by the trial judge, was attributable solely to the unwillingness of approaching vehicle operators to challenge physically the pickets stationed in front of their [423]*423vehicles. Rather than attempt to force their way into the construction site, the drivers withdrew.2

At the outset of the proceedings, it was stipulated by the parties, with the approval of the trial judge, that the hearing would be a final hearing and would decide whether permanent injunctive relief should be granted. The court’s order, therefore, was not one which could be reconsidered if a preliminary injunction were granted or denied. On appeal from a final decree, the standard of review is not whether there were “any apparently reasonable grounds for the action of the court below”, as is the case when the issuance or denial of preliminary injunctive relief is reviewed. See e.g.: Link Belt Co. v. Local Union No. 118 of American Federation of Technical Engineers, 415 Pa. 122, 129, 202 A.2d 314, 318 (1964); Philadelphia Minit-Man Car Wash Corp. v. Building and Construction Trades Council of Philadelphia and Vicinity, 411 Pa. 585, 589, 192 A.2d 378, 380 (1963); Mead Johnson & Co. v. Martin Wholesale Distributors, Inc., 408 Pa. 12, 19, 182 A.2d 741, 745 (1962). On the contrary, the test is whether the trial court, in entering a final decree, abused its discretion or committed an error of law. Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America (CIO) Local 601 et al., 353 Pa. 446, 449, 46 A.2d 16, 18 (1946) (Lower court denied injunctive relief and dismissed complaint). See also: Sack v. Feinman, 489 Pa. 152, 165-66, 413 A.2d 1059, 1066 (1980); Felmlee et al. v. Lockett, 466 Pa. 1, 7, 351 A.2d 273, 276 (1976); Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa.Super. 526, 534, 423 A.2d 370, 374 (1980).

Applying an abuse of discretion standard to the facts of the case, we are constrained to conclude that the trial court’s refusal to enter an order guaranteeing unimpeded access to the project constituted an abuse of discretion. Significantly, our determination does not require that we re-evaluate the credibility of the witnesses’ testimony, a [424]*424matter best left to the trial court. The oral testimony is confirmed in this case by video-tape evidence which clearly illustrates the blocking of access to the construction site by appellee’s pickets.

The right to picket has been constitutionally guaranteed, and courts should be unyielding in their determination to protect and preserve that right. It is the voice by which working men and women assert their grievances and their rights. They should not be restricted or restrained, either directly or indirectly, from making their voices heard. However, “[fjorcibly to deny an owner of property or his agents and employees access to that property ... is in practical and legal effect a seizure or holding of that property.” Carnegie-Illinois Steel Corp. v. United Steelworkers of America et al., 353 Pa. 420, 429, 45 A.2d 857, 861 (1946). Whether accompanied by violence or not, picketing which denies access to an employer’s plant or property constitutes a seizure thereof and cannot be permitted. Wilkes-Barre Independent Co. v. Newspaper Guild, Local 120 et al., 455 Pa. 287, 290, 314 A.2d 251, 253 (1974); Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America, 383 Pa. 297, 300, 118 A.2d 180, 181 (1955). “[Picketing to the extent to which it is designed to seize and in effect does seize and hold the employer’s plant . .. does not fall within either constitutional, statutory, common law or equitable protection.” Id., quoting from Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America (CIO) Local 601, supra 353 Pa. at 457, 46 A.2d at 21.

It is of no significance that pickets impede ingress and egress at only one of several entrances to the premises. “[T]he holding of even one gateway to a plant [may] constitute[ ] a seizure....” Wilkes-Barre Independent Co. v. Newspaper Guild, Local 120 et al., supra 455 Pa. at 290, 314 A.2d at 253, citing Carnegie-Illinois Steel Corp. v. United Steelworkers of America, supra 353 Pa. at 430, 45 A.2d at 861. Neither is it necessary that those seeking entrance test the pickets or attempt to force their way through the pickets who are blocking the entrance and thereby risk violence and [425]*425bloodshed. See: Westinghouse Electric Corp. v. United Electrical, Radio & Machine Workers of America, supra. Similarly, it is not controlling that some who approach an entrance are more interested in obtaining an injunction than in gaining entrance. See: Westinghouse Electric Corp. v.

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Neshaminy Const. v. PHILADELPHIA, ETC.
449 A.2d 1389 (Supreme Court of Pennsylvania, 1982)

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Bluebook (online)
449 A.2d 1389, 303 Pa. Super. 420, 111 L.R.R.M. (BNA) 2490, 1982 Pa. Super. LEXIS 5228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neshaminy-constructors-inc-v-philadelphia-pennsylvania-building-pasuperct-1982.