Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1968, No. 2281, in case of Neil Binder et ux. v. Triangle Publications, Inc.
Robert Baer Cohen, with him Abrahams & Loewenstein, for appellants.
David H. Marion, with him Harold E. Kohn and Barney B. Welsh, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the decision of this case.
The controlling issue presented in this appeal is whether a news story headlined "Slay Trial Bares Story of Bizarre Love Triangle" published by the Philadelphia Daily News is actionable as libel or is privileged as a matter of law either as a fair and accurate report of a judicial proceeding or as a constitutionally protected publication under the First Amendment. We affirm the granting of defendant-appellee's motion for summary judgment.
No dispute exists as to the facts surrounding the alleged libel. On July 8, 1968, a trial commenced in the Philadelphia Court of Common Pleas to determine whether William McClurg was guilty as charged of the murder of James McClure, who died on the morning of
June 24, 1967, from gunshot wounds of the chest.*fn1 David Racher, a reporter for the Daily News, was assigned to cover the McClurg trial. Due to other assignments, he did not remain in the courtroom throughout the first day. Rather, at his request, the prosecuting attorney, Anthony Bateman, telephoned him at home on the evening of July 8, 1968, and summarized for Racher the day's proceedings, which included Bateman's opening statement to the jury and the testimony of the first Commonwealth witness, Robert Diehl.
Racher then telephoned the night city editor with his story. The article was assigned to a rewrite man, Thomas A. Fox, Jr., who proceeded to compose the story based on Racher's facts. The article appeared the following day and is set forth in its entirety in the margin.*fn2
On reading the article, appellants Neil and Carolyn Binder requested the Daily News to print a retraction, but none appeared. The Binders subsequently instituted an action for defamation and invasion of privacy, requesting $2,000,000 in punitive damages against ...