Appeal from order of Court of Common Pleas No. 4, Trial Division, of Philadelphia, March T., 1965, No. 1175, in case of John Dominiak, a minor, by Raymond J. Quaglia, his guardian, v. National Enquirer et al.
Michael J. Pepe, Jr., for appellant.
Wilbur H. Haines, Jr., with him Frederick M. Lowther, James T. Giles, and Pepper, Hamilton & Scheetz, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Pomeroy. Mr. Justice Jones joins in this concurring opinion.
This appeal involves the application of Pennsylvania's one year statute of limitations for libel, Act of March 27, 1713, 1 Sm. L. 76, § 1, 12 P.S. § 31; Act of April 25, 1850, P. L. 569, § 35, 12 P.S. § 32, to the Uniform Single Publication Act, Act of August 21, 1953, P. L. 1242, § 1 et seq., 12 P.S. § 2090.1 et seq.*fn1
John Dominiak, a minor, by his guardian, filed suit against National Enquirer, Best Medium Publishing Co., Inc. and United News Company on March 15, 1965 alleging that the National Enquirer issue dated March 29, 1964 contained material defamatory to him. Appellees, Best Medium Publishing Co. and National Enquirer, moved for summary judgment on the ground that the cause of action was barred by the statute of limitations, and this motion was granted by the court below.
The relevant facts are as follows: Printing of the issue of the National Enquirer dated Sunday, March 29, 1964, commenced in Tenafly, New Jersey on Tuesday, March 10, 1964. Beginning on March 10, copies were transported by Best from the printing plant to New York City railroad terminals and other terminals for shipment to wholesalers throughout the country. Copies were distributed to employees of these terminals on March 10. On Thursday, March 12, copies were delivered by Best to approximately 4,000 newsstands and other retail dealers throughout the New York City metropolitan area, on which date approximately 200,000 copies were placed on public sale. On Friday, March 13, copies were placed on sale at newsstands, and on the same date subscription copies were mailed to subscribers from the General Post Office in New York City. Beginning on Saturday, March 14, copies were placed on sale at newsstands in Philadelphia. The issue remained on sale at newsstands for one week when unsold copies were removed and replaced by copies of the next issue.
The court below held that "[t]he important date in this case as appears from the uncontradicted evidence on the record is March 14, 1964, which is the date on which the publication appeared for the first time in Philadelphia. Since suit was started on March 15, 1965, there can be no question but that it is barred by the Statute of Limitations." As appellees concede, if March 14, 1964, is the date on which the one year period commenced, the conclusion of the court below is incorrect in light of Section 38 of the Pennsylvania Statutory Construction Act, Act of May 28, 1937, P. L. 1019, 46 P.S. § 538, and Pa. R. C. P. 106. They would permit the filing of the action on March 15, 1965, as March 14, 1965 was a Sunday.
It is appellees' position, however, that the crucial date is not March 14, 1964, but rather March 10, with
the commencement of delivery of copies to common carriers for shipment and distribution to terminal employees, Hartmann v. Time, Inc., 166 F. 2d 127 (3d Cir. 1947), Backus v. Look, Inc., 39 F. Supp. 662 (S.D.N.Y. 1941), National Cancer Hospital of America v. Confidential, Inc., 151 N.Y.S. 2d 443 (Sup. Ct. 1956), or at the latest March 12, when 200,000 copies were placed on sale to the public in the New York metropolitan area, Zuck v. Interstate Publishing Corp., 317 F. 2d 727 (2d Cir. 1963), ...