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PLEAS COURT OF PHILADELPHIA TRIAL DIVISION - CIVIL TRIAL WORKSHEET , at / ~: MO - EXPEDITED
.' in N-JURY
LP VS BESSEY
Term and Number: #1102-01684
If Consolidated: Term and Number (s) TOTAL AMOUNT
Case Type: E3 EQUITY NO REAL ESTATE TRO) OF DATE SHEET PREPARED
ACTUAL: ( ) JURY (vY'NON-JURY
DiSPO~i~~o~~Date: FULL DESCRIPTION
1__ ~-----------------------------------------OF DISPOSITION J!(_~~a}t g,zp
(To Be Entered VERBATIM
On The Docket) :
(/-Z;/d j?) cf? h~/ a/nd
DEFAULT JUDGMENT/COURT ORDERED DISPOSITIVE MOTION GRANTED DIRECTED VERDICT DISCONTINUANCE ORDERED DISCONTINUE/TRANSFER BINDING ARB
( ) )
JURY VERDICT JURY VERDICT MISTRIAL HUNG JURY NON-PROS NON-SUIT
FOR PLAINTIFF FOR DEFENDANT
FINDING FOR DEFENDANT FINDING FOR PLAINTIFF DAMAGES ASSESSED JUDGMENT JUDGMENT ENTERED ENTERED BY AGREEMENT
SETTLED PRIOR TO ASSIGNMENT FOR TRIAL (TEAM LEADERS/only) SETTLED AFTER ASSIGNMENT FOR TRIAL TRANSFERRED TO OTHER JURISDICTION OTHER (EXPLAIN) __
(CONTINUED NEXT PAGE) DOCKETED COMPLEX LIT CENTER
Spectrum Arena Lp Vs Be-WSFFP
MAY ~ 'I 2012
1111 "1111111111 " 1111111111111 11020168400055
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b)
IN THE COURT OF COMMON
PLEAS OF PHILADElPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION
SPECTRUM ARENA, L.P., Plaintiff v. MARIANNE BESSEY, Defendant February Term, 2011 No. 01684
Defendant Marianne Bessey ("Defendant")
is an individual residing in Pennsylvania. is a limited partnership organized and existing
Spectrum Arena, Limited Partnership ("Plaintiff") under the laws of the Commonwealth individuals and entities.
of Pennsylvania. The partners of Plaintiff are all private
Plaintiff owned and operated the Philadelphia Spectrum, a sports arena located at Broad and Pattison Avenues in Philadelphia, development Pennsylvania. In the early 1990s, Plaintiff actively began
of what is now known as the Wells Fargo Center ("Center").
The Center is bounded by Broad Street on the west, Pattison Avenue on the north,
ri'' Street n"
the east, and 1-95 on the south. Lincoln Financial Field is adjacent to the Center on the
street side of the complex, and the parking lots for Citizens Bank Park are adjacent to the Center on the Pattison Avenue side of the complex. 5. It cost approximately $220 million to develop and construct the Center, with about $5 million of The balance was provided by private
the funding coming from the City and the Commonwealth. individuals and entities. 6. The City of Philadelphia, through the Philadelphia Authority (" Authority"),
for Industrial Development
sublet City property to Plaintiff pursuant to a 29-year ground lease for the
construction ofthe Center ("the lease"). The initial lease term expires on August 31,2025, and Plaintiff has an option to renew the Lease for three additional ten-year terms. 7. Section 3.01 of the Lease provides that the Authority lease to Plaintiff, "the premises, and any and all appurtenances, easements, rights, licenses, hereditaments, and privileges as may in any way belong to or appertain[ing] 8. hereto or inure to the benefit thereof."
The Lease requires Plaintiff to pay the City over $2 million a year in property taxes by way of a Payment in Lieu of Taxes.
The Lease imposes the following restrictions upon Plaintiff's operation ofthe Center: a. b. c. d. To operate the Center in a first class manner, To execute leases with the Philadelphia Flyers and Philadelphia 76ers, To comply with the law, and To establish parking covenants.
10. Specifically, with respect to parking covenants, the Lease requires Plaintiff to do the following: a. b. To permit the City's Park & Ride program, To make parking lots available to the City in the event of a municipal or state emergency, SEPTAstrike, or similar event, so long as the use of the parking areas does not interfere with or prevent a scheduled event at the complex, c. To cooperate with the other facilities in the Sports Complex, namely Lincoln Financial Center and Citizens Bank Park, to make their parking lots mutually available for overflow parking for events at each of these venues, d. e. To make space available for the operation of a police mini-station on its property, and To cooperate with the City in scheduling events of national significance, for example, the Republican National Convention of 2000. 11. Plaintiff exercises exclusive control over the Center's daily operations. 12. Plaintiff pays the Authority rent under the Lease in a defined amount without regard to the revenue or profit generated by the Center. The City does not receive any portion of the ticket or parking revenue received from the operation of management of the Center, although the City collects an amusement tax levied on a per ticket basis.
13. The Center is not generally open to the public, and there is a fence surrounding the entire perimeter of the Center complex to prevent access. The gates to the Center at all times are manned to limit access to the property to those who have business there, be it to attend an event or attend a meeting for the related functions that happen in terms of running the arena or the office use of its tenants. 14. There are limited entrances into the complex that are located on Broad Street and
15. Virtually every fan attending an event at the Center complex passes through either the intersection of Broad Street and Pattison Avenue, or Pattison Avenue and north on Broad Street. 16. In addition to employees, suppliers, or business invitees, Plaintiff permits access to the grounds of the Center only to fans attending sporting events, concerts, or other performances, and then only for the approximate duration of the event and for the specific purpose of attending those events. Plaintiff reserves the right to evict any ticket holder who behaves inappropriately violates the Center's policies through express language on the back of the tickets. 17. Plaintiff has adopted and enforced as an express, content-neutral, policy a prohibition against or
Street, or travels
protests, picketing, soliciting money, or distributing literature at the Center. The ban does not apply to authorized concessionaires selling souvenirs, programs, food, and/or beverages consistent with the purposes for which the Center is utilized, or distribution of preapproved
literature or programs related to the shows that the event organizers seek to promote. To the extent that any flyers or programs are distributed on Plaintiff's grounds, they are pre-approved by Plaintiff's marketing department in advance, and are part of the event. 18. Plaintiff retains the right to deny admission to anyone who violates or refuses to comply with its policies and procedures, including the aforementioned policy prohibiting protests, etc.
19. The City of Philadelphia, the Authority, and all other governmental organizations did not participate in the development or enforcement of this policy. This policy was in effect during the protests of SEPTAnegotiations inside the Spectrum and the protests of former Philadelphia 76ers player Allen Iverson's song, "Racial Unity." In both instances, protestors were confined to the public sidewalk adjacent to Pattison Avenue 20. The Ringling Brothers Barnum & Bailey Circus (((the Circus") has been produced by Feld Entertainment since at least 1980. Disney on Ice has been produced by Feld Entertainment since 1980. Disney on Ice has been appearing at the Spectrum, and later the Center, since 1980. 21. The Circus is an entertainment event and families with small children are the intended audience
for Circus performers. Plaintiff licensed the use of the Center to the Circus to perform an entertainment event.
22. Plaintiff has never invited the Circus to appear at the Center (or the Spectrum) for purposes of defending or justifying the manner in which it trains or treats its animals. 23. Before the 2012 performances, Plaintiff learned that the Circus was distributing leaflets at its venues, justifying its treatment of animals. 24. Plaintiff advised the Circus that the Center was private property, it was enforcing a contentneutral ban concerning political expression in the building, and that such leafleting would not be permitted in the building during the run of the Circus. 25. The Circus agreed not to distribute these leaflets at the Center performances or otherwise to advocate for or defend its treatment of animals. However, the Circus continued to do so during performances at the Center as late as February 2012. 26. Defendant is an animal rights activist and began leading protests when the Circus would perform at the Spectrum, demonstrating against the allegedly cruel measures it utilizes to train
elephants. Once the Circus moved its performances to the Center, Defendant followed; however, she and her fellow demonstrators sought to protest inside the grounds of the Center. 27. Non-public sidewalks surrounding the building, but located inside the gated area are private property. 28. In order to gain access to the Center, Defendant and her cohorts purchased tickets to the 2010 Circus performances and conducted protests on the private sidewalks surrounding the building. 29. This activity violated Plaintiff's policy against protests, picketing, soliciting money, and distributing literature at the Center. 30. Plaintiff accordingly sought to evict Defendant and her fellow protestors, but the Philadelphia Police would not act without a Court Order as Defendant had purchased a ticket and claimed a First Amendment right to protest. 31. Demonstrators who respond to Defendant's organizational efforts, largely orchestrated through the use of a public internet website, may spread throughout the Center complex, holding up signs and/or banners and distributing leaflets. Some protestors also set up television screens on which they play video footage of the alleged mistreatment of animals. 32. Defendant organizes the protests of the Circus and orchestrates and directs her fellow protestors' displays. Defendant has no control over how the individuals, whom she solicits, behave while protesting at the Center. 33. On occasion, members of Defendant's protest group have impeded patrons from proceeding to enter the Center, and have stepped in front of vehicles to force their message upon them. 34. Defendant and/or other members of her group have dressed up in elephant or other animal costumes in their protest demonstrations at the Center. The purpose of dressing up as an
elephant is to entice small children to come near enough to see the posters and television screens so that their parents will follow and have to engage with the protestors.
35. The aim of the groups protesting at the Circus, including Defendant, is to dissuade individuals from attending the Circus. Seeking to discourage fans from attending the Circus is directly inconsistent with Plaintiff's economic interests. Defendant's protest activities directly affect Plaintiff's ability to develop a positive relationship with its customers. 36. These protests are likely to offend a segment of the fan base and present the potential for confrontations between protestors and fans. One of the members of Defendant's group used a between a patron and
bullhorn in such close proximity to a vehicle that it incited a confrontation another protestor in February 2011.
37. Defendant's protests of the Circus at the Spectrum and the Center have visibly upset children and infuriated parents, and led to confrontations with patrons and angry parents.
38. The events at the Center draw up to 20,000 patrons, requiring Plaintiff to hire police officers to assist with security concerns in the Center and its parking lots. Plaintiff's security staff is not trained to handle protest activities. 39. The Circus has its choice of other venues at which it could appear instead of appearing at the Center. If Defendant's protest activities interfere with Plaintiff's ability to foster a good relationship with its consumers, then the Circus may ultimately choose to stop appearing at the Center. 40. The Center is surrounded by a private concrete patio or sidewalk that is about thirty feet wide, as estimated by Captain Fisher of the Philadelphia Police Department's Civil Affairs Unit. During other events at the Center, there has been activity on this patio, such as a portable radio station and a charity drop off with a canopy. Both of these activities were stationary and guests would have to walk around them to get past them. 41. Defendant maintained that her practice is to distribute leaflets and other information to passers-by without interfering with the event that she is protesting. She stated that she does
not block patrons, yell at them, harass them, or argue with them. She has already agreed that she would abide by restrictions on the number of protestors on the sidewalk, the size of signs, that she will not use bullhorns, and that she will instruct her protestors to allow people to walk past them into the Center. 42. Plaintiff wishes for this Court to issue an injunction that Defendant must limit her protest activities to demonstrating and assembling outside of the entrances to the Center complex on
Broad Street and on 11thStreet nearest Pattison Avenue. Plaintiff believes that fans attending the Circus will still be able to view the signs, placards, and videos conveying Defendant's allegations about the mistreatment to do so. 43. Defendant maintains that she would not be able to convey her message if she were forced to protest to patrons who are still driving to the parking lot; in fact, she testified that cars seldom stopped to take brochures.
CONCLUSIONS OF LAW
of animals and accept any leaflets or pamphlets if they wish
Defendant has the burden of proving that the Pennsylvania Constitution affords her the right to enter upon Plaintiff's property during Circus performances to protest. See, Crozer Chester Med. Ctr. V. May, 506 A.2d 1377 (Pa.Super. 1986).
The Pennsylvania Constitution's
protection of free speech applies to private property, where
private landowners open their property to the public to receive information on a matter of public concern. See, Commonwealth v. Tote, 432 a.2d 1385 (Pa. 1982) (holding that a
landowner's power to exercise his or her property rights to silence speech criticizing the public assembly will be limited if the property is compatible with that kind of protest speech). 3. In Tote, the Pennsylvania Supreme Court reversed the trespassing convictions of activists who came to Muhlenberg College campus to protest outside a college building in which Muhlenberg
was hosting a speech by the Director of the FBI. Id. Although Muhlenberg is a private college campus, the public was invited to attend the speech. Id. A group of non-violent anti-war activists, none of whom attended Muhlenberg, came to campus the day before the symposium and the day of the symposium to distribute leaflets to protest the denial of a Freedom of Information Act request that the group had filed and to highlight instances of criminal activity by the FBI. Id. The activists were arrested, charged, and convicted of trespass. Id. 4. The Pennsylvania Supreme Court reversed the Tate convictions, holding that Muhlenberg College had "Assembled a public audience" for the presentation of a particular point of view, the activists could not be prevented "from peacefully presenting their point of view to this indisputably relevant audience." Id at 1391. 5. The Pennsylvania Supreme Court reaffirmed Tate, holding that a private landowner can avoid this holding only by "uniformly and effectively prohibit[ing] all political activities and similarly
preclude[ing] the use of its property as a forum for discussion of matters of public controversy." W. Po. Socialist Workers 1982 Campaign v. Conn. Gen. Life Ins. Co., 515 A.2d 1331, 1336 (Pa. 1986). 6. It is for this Court to determine whether Plaintiff has invited the public to hear one side of the debate about a public controversy. If the Circus performances are such an event, that Plaintiff cannot prevent the peaceful and unconstructive communication of a differing point of view on
that controversy. See Tate, at 1390. Moreover, as Judge Tucker found in the federal action between these parties, "under Tate and its progeny, [Plaintiff] must allow public access for response on issues of public concern when it invites the public to hear about these issues." Bessey v. Spectrum Arena Limited Partnership, No. ll-cv-7099, 2011). slip op at 9 (E.D. Pa. Dec 23,
The factual situation sub judice is distinguishable from the one in Tate; in the case sub judice, a private property holder refused to open itself to public speech on an issue of public concern. In this case, Plaintiff did not invite anyone to hear a debate on any issue. Plaintiff invited ticket holders to view a circus and not to debate anything. In addition, institutions of higher learning such as the prestigious Muhlenberg University are traditionally involved in debate issues.
Institutions such as Muhlenberg University have, at the core of their curriculum and activities, debate. Plaintiff in this case contrarily required the Circus to cease any discussion or debate of this particular issue.
Given the foregoing, this Court finds that Defendant is not entitled to perform her protest activities on the personal property of the Center on the private concrete patio, as the Center has not opened itself up to public speech on an issue of public concern.
Defendant is enjoined from entering onto the private grounds of the Center for any purpose at any time other than to see a show for which she has lawfully purchased a ticket, and may conduct her protest on the public property sidewalk outside of the fenced in area of the Center.
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