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Pebble Brook Inc. v. Smith

Decided: March 3, 1976.

PEBBLE BROOK, INC., A NEW JERSEY CORPORATION, PLAINTIFF, MR. GUTTER COMPANY, INC., A CORPORATION OF THE STATE OF NEW JERSEY AND HENRY ROLLINS, BOTH INDIVIDUALLY AND T/A M.R. CONSTRUCTION COMPANY, INTERVENORS,
v.
RICHARD T. SMITH, ET UX; KENNETH KURTZMAN, ET UX; GARY MEREDITH, ET UX, WILLIAM WIEDMAN, INDIVIDUALLY, WILLIAM FINNIGAN, ET UX; JOSEPH MCCART, ET UX; JOEL RILOFF, ET UX; THOMAS GABRIEL, ET UX; RENA CERASARO, INDIVIDUALLY, DONALD FRASER, ET UX; GARY DOUGHTY, ET UX; AND NEILL READ, ET UX, DEFENDANTS



King, J.s.c., Temporarily Assigned.

King

This is an application to dissolve certain ex parte interim restraints entered by another judge sitting in this Division on February 13, 1976. This court heard such oral testimony as was offered by the parties on February 27, 1976 and because of the novelty of the question reserved decision for the purpose of further research into the matter.

Plaintiff Pebble Brook, Inc. seeks an interlocutory retraint here enjoining defendants from picketing and distributing literature at plaintiff's development site in Washington Township, Gloucester County. Defendants are dissatisfied

purchasers and residents of Pennsbridge, a Pennsauken, Camden County development. Pennsbridge of Pennsauken, Inc. recently sold defendants' homes to them in the Pennsbridge project. Plaintiff's principals, Mark J. Moldoff and Carl Moldoff, are the sole officers and 100% shareholders of both Pebble Brook Inc. and Pennsbridge of Pennsauken, Inc. Defendants have instituted an action for money damages against Pennsbridge of Pennsauken, Inc., in the Law Division, Camden County. Damages are claimed for substandard construction of their homes in the Pennsbridge project, sold to them by the Moldoff interests. M.R. Construction Co., the general contractor on the Pebble Brook project in Washington Township, on February 27, 1976 intervened in this action by leave of court. M.R. Construction Co. had no pertinent relationship to the Pennsbridge project, and asserts injury to its economic rights and reputation by virtue of defendants' picketing and demonstrating at the Pebble Brook site.

In deciding this motion to dissolve the ex parte temporary restraints this court is called upon to weigh the very delicate balance between defendants' First Amendment right of freedom of expression and speech, and plaintiff's right to conduct its business free of malicious interference and intimidation. Research of counsel and the court discloses no New Jersey precedent in this situation. Plaintiff suggests that defendants' conduct is a species of economic coercion designed to embarrass its sales activities and coerce a settlement of the Law Division litigation for money damages. Defendants' spokesman, Richard T. Smith, in his testimony described a more altruistic motive, stating the purpose of the defendants' demonstrative activity "was to alert the public to the perils of home buying," especially from this developer. If one accepts defendants' position, their activity is a form of "grass roots consumerism."

The procedural principle of law involved was declared by our then highest court in Citizens Coach Co. v. Camden

Horse Railroad Co. , 29 N.J. Eq. 299 (E. & A. 1878) as follows:

There is no power, the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, and which is more dangerous in a doubtful case, than the issuing of an injunction. [at 303]

Picketing and the expression of ideas attendant thereto is a constitutionally protected form of activity under the First Amendment and the Fourteenth Amendment to the Federal Constitution. Thornhill v. Alabama , 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940).

The most recent expression of the United States Supreme Court in this area of freedom of expression is found in Organization for a Better Austin v. Keefe , 402 U.S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971). The case involved peaceful distribution of leaflets accusing plaintiff real estate broker of "panic peddling activities." The Supreme Court, in an opinion by Chief Justice Burger, reversed a temporary injunction issued by the Illinois courts restraining defendant's activities. In an opinion dissolving the restraint the Chief Justice stated:

It is elementary, of course, that in a case of this kind the courts do not concern themselves with the truth or validity of the publication. Under Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the injunction, so far as it imposes prior restraint on speech and publication, constitutes an impermissible restraint on First Amendment rights. Here, as in that case, the injunction operates, not to redress alleged private wrongs, ...


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