Kuwait & Gulf Link v. John Doe et al (dissenting)
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J-A07027-14 2014 PA Super 96 KUWAIT & GULF LINK TRANSPORT COMPANY, KGL LOGISTICS, AND KGL TRANSPORTATION COMPANY KSCC, IN THE SUPERIOR COURT OF PENNSYLVANIA v. JOHN DOE (A.K.A. SCOTT WILSON), AGILITY PUBLIC WAREHOUSING COMPANY K.S.C. (A.K.A. AGILITY, F/K/A THE PUBLIC WAREHOUSING COMPANY), AGILITY DGS LOGISTICS SERVICES COMPANY K.S.C.C. (F.K.A. PWC LOGISTIC SERVICES COMPANY K.S.C.C.), PWC TRANSPORT COMPANY W.L.L., AGILITY DGS HOLDINGS, INC. (F.K.A. AGILITY DEFENSE & GOVERNMENT SERVICES, INC.), AGILITY DEFENSE & GOVERNMENT SERVICES, INC. (F.K.A. TAOS INDUSTRIES, INC.) AGILITY INTERNATIONAL, INC., APPEAL OF: AGILITY DGS HOLDINGS, INC., AGILITY DEFENSE GOVERNMENT SERVICES, INC., AND AGILITY INTERNATIONAL, INC. No. 1059 MDA 2013 Appeal from the Order May 21, 2013 in the Court of Common Pleas of Cumberland County Civil Division at No.: 2012-1820 KUWAIT & GULF LINK TRANSPORT COMPANY, KGL LOGISTICS, AND KGL TRANSPORTATION COMPANY KSCC, v. IN THE SUPERIOR COURT OF PENNSYLVANIA J-A07027-14 JOHN DOE (A.K.A. SCOTT WILSON), AGILITY PUBLIC WAREHOUSING COMPANY K.S.C., AGILITY DGS LOGISTICS SERVICES COMPANY K.S.C.C., PWC TRANSPORT COMPANY W.L.L., AGILITY DGS HOLDINGS, INC., AGILITY DEFENSE AND GOVERNMENT SERVICES, INC. AND AGILITY INTERNATIONAL, INC., APPEAL OF: AGILITY PUBLIC WAREHOUSING COMPANY K.S.C., AGILITY DGS LOGISTICS SERVICES COMPANY K.S.C.C., AND PWC TRANSPORT COMPANY W.L.L. No. 1066 MDA 2013 Appeal from the Order May 21, 2013 in the Court of Common Pleas of Cumberland County Civil Division at No.: 2012-1820 BEFORE: DONOHUE, J., STABILE, J., and PLATT, J.* DISSENTING OPINION BY PLATT, J.: I respectfully dissent. FILED MAY 06, 2014 The learned Majority concludes that the two emails at issue constitute political speech. I do not agree. I would affirm ery. First, there is a substantial question whether the emails are protected public speech at all. They were private communications to a contract ____________________________________________ * Retired Senior Judge assigned to the Superior Court. -2- J-A07027-14 scope of employment, under a false name, alleging that a contract winning competitor had illegal ties with Iranian entities, in violation of a statute. The emails suggest contracts. that Appellee be barred from receiving government Appellant would have been the direct beneficiary of the debarment of its competitor. These emails do not advocate social or political change. They do not support or oppose any political candidate or office holder. They do not address official conduct of anyone acting in a public capacity. They do not support or oppose a policy position or disclose governmental misfeasance. At best, they report the statutory non-compliance of a commercial competitor. gain. At worst, they present defamatory forged reports for private The incidental fact that the private lawsuit between these two commercial competitors involves cross allegations over the violation of a statute is too attenuated a link to elevate the emails in dispute to protected political speech. This is not the stuff of the Federalist Papers, or even the Pe documentation) were false is itself accurate, there is no constitutional issue. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. see also Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, -3- J-A07027-14 447 U.S. 557 (1980)1 Amendment], it at least must concern lawful activity and not be Id. at 566.2 This is a commercial dispute, not a political speech case. It may not even be a commercial speech case. In an order was proper. Accordingly, I respectfully dissent. ____________________________________________ 1 See Central Hudson, supra part analysis to determine if commercial speech is constitutionally protected. Id. at 566. 2 Moreover, under federal constitutional jurisprudence, there is a substantial question whether foreign nationals outside the jurisdiction of the United States can claim First Amendment rights. See DKT Memorial Fund Ltd. v. Agency for Intern. Development, 887 F.2d 275, 284, 281 U.S.App.D.C. 47, 56 (C.A.D.C. 1989) (citing cases). Here, while Appellants oppose have not claimed the writers are American citizens, and the conceded reality that the emails originated in Kuwait lends probability to the opposite conclusion. -4-
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