Opinion
No. 1459 C.D. 2014
07-30-2015
Jamestown Condominium, an unincorporated association v. Pinchas "Pete" Sofayov, Susan Sofayov, and Alan Frank, trading and doing business as S.P.S. Real Estate L.P. a Pennsylvania Limited Partnership v. Robert B. Keddie, Patricia M. Gallagher and Robert Stevenson Appeal of: Pinchas Sofayov, Susan Sofayov, and Alan Frank
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Before the Court is an Order entered by the Court of Common Pleas of Allegheny County (trial court) which granted a Motion to Strike (Motion) seeking the removal of a website and related Facebook and Twitter accounts which contained allegations relating to ongoing litigation, on the basis that they prejudiced the right of a Plaintiff, Jamestown Condominium, an unincorporated association (Jamestown), to a fair trial.
There is a very convoluted and complex history preceding the Motion, which is at issue here. This matter began when Jamestown filed an action to collect outstanding condominium association fees, associated interest, and attorneys' fees from S.P.S. Real Estate L.P. (SPS), of which Alan Frank is general partner, Pinchas "Pete" Sofayov is a limited partner, and Susan Sofayov (collectively, Appellants) is alleged to participate in managing. (Jamestown's Compl. ¶ 30, R.R. at 10a; Jamestown's First Amended Compl. ¶¶ 8-12, R.R. at 34a-35a.) From the various pleadings, it appears that Pete Sofayov purchased a condominium in Jamestown at a Sheriff's Sale and transferred title to SPS. (Jamestown's Compl. ¶¶ 3, 5, 10, R.R. at 6a-7a.) Patricia M. Gallagher is the President of Jamestown's Condominium Board, Robert Stevenson is the President of Stevenson Williams, Co., which manages Jamestown, and Robert B. Keddie was Jamestown's attorney at the beginning of this litigation. (Appellants' Third Amended Compl. ¶¶ 11-20, R.R. at 248a-49a.) Condominium association fees, among other assessments, allegedly became outstanding, and Jamestown, through its then-attorney Keddie, filed an action seeking payment of those fees, as well as interest and attorneys' fees. (Jamestown's Compl. ¶¶ 11-12, 15-20, 22, R.R. at 7a-9a.) Appellants proceeded pro se. A magisterial district justice found in Jamestown's favor, and Jamestown sought to collect from SPS. (Notice of Judgment/Transcript Civil Case, Docket No. CV-0000281-11, R.R. at 22a; Letter from Keddie to Pete Sofayov (December 15, 2011), R.R. at 23a.)
We recognize that Appellants dispute a number of the factual allegations made within Jamestown's various complaints; however, we cite the complaints only to set forth, generally, the alleged events and roles leading to the present matter. In reciting these allegations, this Court is not making any determination on the veracity or validity thereof.
Keddie had to withdraw his appearance when Appellants added him as a defendant to their counter-claim.
From this point, this litigation has taken the form of the legal version of the mythical Lernean Hydra, resulting in, inter alia, arbitration, complaints, amended complaints, counter-claims, amended counter-claims, recusal requests and the recusals of two judges, writs of mandamus, and accusations of fraud, conspiracy, mismanagement, and the unlicensed practice of law. During the course of this ongoing litigation, Jamestown, Keddie, Stevenson, and Gallagher (collectively, Appellees) learned of the website created by Appellants, "www.jamestown- condo.com," which contained statements regarding Jamestown's management, the ongoing litigation between Appellants and Appellees, an accounting of the legal fees related to that litigation, allegations concerning Jamestown's overall accounting, and contact information for "Alan Frank, J.D." at "alan@jamestown-condo.com." (Copies of Website Pages, S.R.R. at 1b-40b.)
According to Greek mythology, the Lernean Hydra was a multi-headed, serpent-like water monster that grew two heads each time one head was cut-off. Hercules killed the Lernean Hydra as the second of his twelve labors. See http://www.perseus.tufts.edu/Herakles/hydra.html (last visited June 16, 2015).
We note that the trial court judge that issued the June 2, 2014 Order has since recused himself from further proceedings in this litigation. (Trial Ct. Memorandum and Order, November 24, 2014, S.R.R. at 90b-94b.) Another judge recused himself from this matter on January 17, 2014. (Trial Ct. Order, January 17, 2014, R.R. at 160a.)
Frank was a licensed attorney in Pennsylvania, but his license is in suspension status.
On Friday, May 30, 2014, Jamestown filed the Motion arguing that the website makes "numerous allegations . . . of gross mismanagement, conspiracy, illegal tactics, and erroneous accounting," which, "while being stated as fact," Appellees disputed. (Motion ¶¶ 5-6, R.R. at 222a.) Recognizing that Appellants have free speech rights, the Motion averred that this "right has limitations where the right to free speech infringes upon the other parties' right to a fair trial." (Motion ¶ 7, R.R. at 222a.) Jamestown further noted that had the statements on the website been made by a licensed attorney, the statements would be prohibited by the Pennsylvania Rules of Professional Conduct, and that Appellants should not be permitted greater latitude in "mak[ing] prejudicial statements by means of public communication" based on their pro se status. (Motion ¶¶ 8-9, R.R. at 222a-23a.) On this basis, Jamestown requested an order from the trial court directing that the website and social media accounts be removed and that Appellants not make any further dissemination of material related to the litigation. (Motion ¶ 12, Wherefore Clause, R.R. at 223a.) Attached to the Motion as Exhibit A are eighteen pages from the website. (Motion, Ex. A, R.R. at 225a-41a.)
Apparently after argument, the trial court issued the Order Jamestown requested on the following Monday, June 2, 2014, in which it ordered Frank to
immediately remove all information posted at the website www.jamestown-condo.com, the related Twitter and Facebook accounts as well as any other related communication. The Defendants are further instructed not to engage in the dissemination by means of public communication any material that will have a substantial likelihood of prejudicing this matter.(Trial Ct. Order.) In its opinion, pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), Pa. R.A.P. 1925(a), the trial court stated Frank's "desire to post a website denouncing [Jamestown] in its administration of the condominium and related fees suggests barr[a]try - defined by Black's Law Dictionary as vexatious incitement to litigation. Thus my order as to the website." (Trial Ct. Op. at 2-3, S.R.R. at 69b-70b.) The trial court further stated that, "[a]s to the issue about the website, that struck [the trial court] as champertous and/or an invitation to barratry." (Trial Ct. Op. at 4, S.R.R. at 71b.) Appellants now appeal, pro se, the Order to this Court.
We note that this Court has jurisdiction to consider Appellants' appeal of the trial court's Order. First, it could be considered a collateral order under Pennsylvania Rule of Appellate Procedure 313, Pa. R.A.P. 313 (an order "separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.") See Commonwealth v. Lambert, 723 A.2d 684, 688 (Pa. Super. 1998) (a trial court's order limiting pre-trial publicity is appealable under Pa. R.A.P. 313). Second, because the order enjoins the dissemination of the information, it could be considered the granting of an injunction, which is an interlocutory order appealable as of right under Pa. R.A.P. 311(a)(4).
On appeal, Appellants argue that the trial court abused its discretion in issuing an overly broad Order that creates a prior restraint on their ability to exercise their free speech rights under the First Amendment to the United States Constitution. Appellants rely on numerous decisions from the United States Supreme Court and various United States Courts of Appeals, including the Third Circuit Court of Appeals, to support their position. Appellants assert that the trial court issued the Order without reviewing the website and without making any of the required findings of fact necessary to support the imposition of a prior restraint on their free speech rights. Appellants further assert the trial court abused its discretion by striking the entire website without specifically reviewing it for improper material and by not considering the possibility of less restrictive alternatives to imposing a prior restraint on their free speech rights. According to Appellants, Jamestown did not meet its burden of proving that there was a substantial likelihood that the contents of the website would have undermined the trial court's ability to hold a fair trial and, therefore, the Motion should have been denied.
Appellees acknowledge that the trial court's Order constitutes a prior restraint on Appellants' First Amendment rights to free speech, but contend that the trial court did not abuse its discretion because the website is defamatory, deceptive, and is designed to materially prejudice Appellees' right to a fair trial. Appellees argue that in creating the website, www.jamestown-condo.com and subsequently www.jamestown-condo.org, Appellants "intentionally tried to deceive internet users who would search for the legitimate Jamestown Condominium Association page operated by the" Appellees. (Jamestown's Br. at 13.) According to Appellees, they would not contest Appellants' "creating any website which is truthful, non-defamatory and [makes] clear that the views expressed are those of the [Appellants] and not the [Appellees]." (Jamestown's Br. at 24 (emphasis in original).) Appellees assert that an appellate court is to "'make an independent examination of the entire record in order to ensure that the order in question does not constitute a forbidden intrusion into the field of free expression.'" (Jamestown's Br. at 15-16 (quoting Commonwealth v. Lambert, 723 A.2d 684, 689 (Pa. Super. 1998)) (citations and emphasis omitted).) According to Appellees, the trial court considered the entire record, including the litigious history of the matter and the printout of the website that was attached to the Motion as an exhibit, and was not required to hold a separate factual hearing or make factual findings. Appellees further contend that the trial court was not required to consider less restrictive alternatives because the Order does not restrict media publicity and this matter does not involve criminal proceedings. Moreover, Appellees assert that the prohibition against prior restraint is aimed at truthful reporting, not the accusatory, defamatory, and misleading statements on the website. Appellees also argue that had Frank remained a licensed attorney, he would be subject to the restrictions in Pennsylvania Rule of Professional Conduct 3.6, discussed in Lambert, and that he should not be given more latitude because he is no longer a member of the bar.
Gallagher, Keddie, and Stevenson join Jamestown's argument on this issue.
At issue here is a "conflict between freedom of speech and the right to a fair trial," and, as stated by the Third Circuit, "fairness in a jury trial, whether criminal or civil in nature, is a vital constitutional right." Bailey v. Systems Innovation, Inc., 852 F.2d 93, 97-98 (3d Cir. 1988) (citing, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978) (judicial disciplinary hearing); Nebraska Press Association v. Stuart, 427 U.S. 539, 561 (1976) (criminal trial); Craig v. Harney, 331 U.S. 367 (1947) (civil trial)). In order to balance these vital constitutional rights, the Third Circuit phrased the inquiry as "whether 'the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.'" Bailey, 852 F.2d at 98 (quoting Nebraska Press Association, 427 U.S. at 562 (internal quotation marks and citation omitted)). This requires an evaluation of:
(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would
operate to prevent the threatened danger. The precise terms of the restraining order are also important. We must then consider whether the record supports the entry of a prior restraint on publication [or speech], one of the most extraordinary remedies known to our jurisprudence.Nebraska Press Association, 427 U.S. at 562; see also Bailey, 852 F.2d at 99 (quoting this standard and applying it to a court order precluding litigants from making statements regarding the ongoing litigation).
Appellees rely on Lambert to support the trial court's Order. In Lambert, the Superior Court examined whether Pennsylvania Rule of Professional Conduct 3.6 could be constitutionally applied to limit publicity in a case involving Post-Conviction Relief Act proceedings. The Superior Court adopted the United States Supreme Court's reasoning that "limitations on the speech of attorneys involved in pending litigation, even when such limitations are prior restraints on the attorney's First Amendment rights, will be constitutional if the prohibited speech is limited to that which contains a substantial likelihood of material prejudice to an adjudicatory proceeding." Lambert, 723 A.2d at 691 (citing Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)). In its examination of Rule 3.6, the Court held that, where there is no infringement on media publicity, "the heavy presumption against the validity of the prior restriction as set forth in Nebraska Press [Association] is inappropriate." Id. at 691.
Pennsylvania Rule of Professional Conduct 3.6 provides:
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.Pa. R.P.C. 3.6.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of the matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
However, the appellate court's role is to review the whole record and the trial court's findings of fact to determine whether the imposition of the prior restraint is supportable. In this case, while it appears that the trial court heard argument and was very familiar with the parties and the underlying litigation, unfortunately, there is no transcript of any argument that did occur, and there is also no indication in the record that the trial court held a hearing for the development of a factual record with regard to what danger to Appellees' right to a fair trial the website and social media accounts pose, whether other measures would be likely to mitigate the effects to the right to a fair trial, or how the order issued would operate to prevent the threatened danger. See Bailey, 852 F.2d at 99 (citing Nebraska Press Association, 472 U.S. at 562). Here, the trial court's opinion contains no factual findings or application of the balancing test required before issuing the Order. See id. (holding that "specific factual findings supporting its decision . . . are essential to any order restricting speech.") Therefore, we must vacate the trial court's Order and remand for further proceedings to determine whether Jamestown is entitled to the relief requested in its Motion.
Following their appeal, Appellants filed in this Court a Writ of Mandamus and Request for Sanctions, both of which were denied by Per Curiam Memoranda and Orders dated December 19, 2014 and April 17, 2015, respectively. We note that the second and third parts of the argument section of Appellants' brief essentially reiterate their Mandamus and Sanction requests, which this Court has already denied, and, therefore, will not be addressed again in this opinion. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 30, 2015, the Order of the Court of Common Pleas of Allegheny County, entered in the above-captioned matter is hereby VACATED, and this matter is REMANDED for further proceedings in accordance with the foregoing opinion.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge