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FEGLEY v. MORTHIMER (06/30/64)

decided: June 30, 1964.

FEGLEY
v.
MORTHIMER, APPELLANT



Appeal from order of Court of Common Pleas of Carbon County, Sept. T., 1962, No. 1, in case of Dr. Homer B. Fegley v. Marion A. Morthimer.

COUNSEL

John P. Lavelle, with him George A. Shutack, Marianne S. Lavelle, and Shutack, Lavelle & Lavelle, for appellant.

Laurence H. Eldredge, with him Russell P. Chaplinsky, for appellee.

Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. Opinion by Flood, J. Dissenting Opinion by Woodside, J.

Author: Flood

[ 204 Pa. Super. Page 55]

This is an appeal from the refusal of the court below to enter judgment for the defendant in a libel action, notwithstanding a jury verdict for the plaintiff.

The appellee moved to quash the appeal because the court below did not formally act upon the defendant's motion for judgment n.o.v. But in its opinion the court "dismissed" both of the defendant's reasons for judgment n.o.v., although it did not enter a formal order dismissing the motion, as it should have. In addition, it granted a new trial as to both the appellee and his co-plaintiff, thus in effect dismissing the motion for judgment n.o.v. The motion to quash is dismissed.

The appellant bases his argument for judgment n.o.v. upon the ground that the allegedly libelous statements were not capable of a defamatory meaning, the writing is not libelous per se and special damages were neither alleged nor proved.

We agree with the lower court that the newspaper article quoted in part below*fn1 is capable of a defamatory

[ 204 Pa. Super. Page 56]

    meaning. Without benefit of innuendo, it can be read as accusing the appellee of conspiring with Councilman Reich to purchase Reich's property at an exorbitant price in breach of his fiduciary duty as a member of the school board and chairman of its planning committee. This imputation, if made with malice, constitutes libel per se and is actionable without proof of special damages.

Section 573 of the Restatement, Torts, states that "one who falsely and without a privilege to do so, publishes a slander which ascribes to another conduct . . . incompatible with the proper conduct of his . . . public office whether honorary or for profit, is liable to the other." Section 570 provides that one who makes such publication is "liable to the other although no special harm or loss of reputation results. . . ." See Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962). The publication in this case clearly imputes to the appellee conduct which is incompatible with the duties of his public office. It is, therefore, actionable under the rule laid down in Section 573 of the ...


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