The opinion of the court was delivered by: WEBER
Prior to the retrial of the above-captioned action the Court reviewed the action in the light of the subsequent development of the doctrine of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686  in the cases of Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 ; Curtis Publishing Co. v. Butts, and Associated Press v. Walker, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 ; Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 ; St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 ; and other cases expanding that doctrine.
The recent decision of the Court of Appeals for the Third Circuit in Rosenbloom v. Metromedia, Inc. [September 15, 1969] 415 F.2d 892, further focused our attention to the treatment of the problem of defamation in this Circuit as well as in other courts of appeal.
Rosenbloom v. Metromedia, Inc., was a diversity case tried by the district court under the prevailing controlling Pennsylvania law, submitted to the jury resulting in a verdict for the plaintiff.
In its review the Court of Appeals considered the application of state law to the case:
"Although defendant contends to the contrary, we shall accept the district court's conclusion that certain of the statements in the two series were defamatory as a matter of Pennsylvania law and, in the circumstances, created a jury issue under such law." 415 F.2d p. 894.
Similarly, in the instant case, the matter was submitted to the jury under controlling Pennsylvania law, but the court refused to find or to charge the jury that the case was controlled by the federal constitutional standard of "actual malice" as defined in Times v. Sullivan.
The Court finds and the plaintiff admits in its brief and argument on this point that there is no evidence of "actual malice" in this case sufficient to constitute a jury issue.
On argument called for by the court on this point the plaintiff contends that the application of the "actual malice" standard raises the question of whether this court is properly considering whether Pennsylvania's statutory standard for the action of libel is constitutional.
A similar point was considered in Cepeda v. Cowles Magazines and Broadcasting, Inc., 392 F.2d 417 [9th Cir., 1968], where the court of appeals had previously determined that a complaint stated an enforceable claim for libel under state law in 1964 and had remanded the case for trial [ 328 F.2d 869] and later sustained the subsequent dismissal of the case by the district court under the New York Times v. Sullivan doctrine:
"When the case was sent down from this court for trial in the district court, the normal situation would have been that the 'law of the case' announced by this court would have been, whether right or wrong, the law applicable to the trial in the district court. The district court wisely recognized that a higher law, that of the Supreme Court of the United States, had intervened after our decision and that the trial, if it was not to be a futility, must necessarily be had upon the basis of that higher law." 392 F.2d, p. 420.
The Cepeda case stated that "New York Times Co. v. Sullivan * * *, had, in 1964, preempted the law of libel as it related to public officials, making the outcome of such a suit dependent not upon state constitutions, statutes, and decisions, but upon the First Amendment to the Constitution of the United States and its interpretation by the Supreme Court."
"It is our view that at least in the present factual context the proper accommodation between the First Amendment protections and the state law of defamation is found by requiring a plaintiff to meet the standard of proof formulated in New York Times Co. v. Sullivan, supra, i.e., that in order to recover damages here, plaintiff must prove that the statement was made with 'actual malice' * * *. In adopting the accommodation reflected in the actual malice standard we are not precluding plaintiff and others in similar situations from recovering in actions for defamation of ...