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decided: December 20, 1971.


Appeal from judgment of Court of Common Pleas of Delaware County, No. 5225 of 1966, in case of Raymond Matus v. Triangle Publications, Inc., and James Gerhart.


Jacob Kalish, with him Donald M. McCurdy, Dilworth, Paxson, Kalish, Kohn & Levy, and Fox and McCurdy, for appellants.

Frank J. Marcone, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell and Mr. Justice Eagen concur in the result. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: Pomeroy

[ 445 Pa. Page 385]

This appeal involves defamation by radio, and presents two questions: (1) whether the statement made

[ 445 Pa. Page 386]

    relative to plaintiff-appellee was actionable, and (2) whether defendants' admitted conditional privilege was exceeded and so lost.

Appellee brought this action in trespass against Triangle Publications, Inc., owner of WFIL radio station, and James Gerhart, its employee, appellants, charging that Gerhart had "falsely and maliciously uttered words over the air waves, stating that plaintiff, by his agents, had grossly overcharged the wife of James Gerhart to plow her driveway"; that the words uttered were false and that Gerhart knew or should have known them to be so; and that in consequence appellee had been injured in his good name, credit and reputation, to his damage. The answer pleaded, under "New Matter", that the statements were privileged, having been made in good faith, with sufficient cause for believing them to be true, on a proper occasion, from a proper motive and as a matter of public interest, information and comment. After trial before a jury a verdict was returned in favor of appellee and against appellants in the amount of $13,500.*fn1 A motion for new trial was overruled, and this appeal followed.*fn2

The salient facts are as follows: Appellee owned and operated a garage from which he conducted, as the weather warranted, snowplow operations in winter.*fn3

[ 445 Pa. Page 387]

Appellant Gerhart was the host of a "talk show" broadcast daily from 6:00 a.m. to 10:00 a.m. over radio station WFIL in Philadelphia, which station was owned and operated by appellant Triangle Publications, Inc. The "show", according to Gerhart, was "a conversation program, using the telephone", in which a little music was played but, "by and large it is a conversation with people on the telephone, discussion of local matters, issues, things of interest locally."*fn4

On the evening before the broadcast in question a heavy snowstorm, 12 to 18 inches in depth, had struck the Philadelphia area. Gerhart spent the night at a motel near the radio studio to facilitate his getting to work the next day. During a newscast intermission in the talk show the following morning, Mrs. Gerhart telephoned her husband. She related, among other things, that on the preceding evening she had had their driveway at home plowed by Mr. Matus, and that the charge for this work had been $35. Mrs. Gerhart testified that her husband "got a little mad" on hearing the cost. Gerhart himself testified that he "was rather staggered" and "thought it was an exorbitant price. . . ." Returning to the air following the newscast, Gerhart engaged the newscaster in conversation on the subject of snowplowing, and said he had been charged $35 for having his own driveway plowed. The newsman asked who had done the job, and Gerhart replied, as he testified, "I

[ 445 Pa. Page 388]

    don't know . . . I got the name from Sue [Mrs. Gerhart] during the news. I think it was a company called Matus or something like that." There followed a discussion in which, as he said, Gerhart issued a "moral warning", that "goodness sake, watch out for this kind of thing going on". Gerhart testified that "people called in, and they would relate similar incidents . . . nobody seemed able to top that one, however, on that particular day".

Three others in addition to Gerhart testified concerning the broadcast: Matus himself and two acquaintances, one a customer and one a fellow police officer. The customer, one Schultz, could not recall what was said, but did remember hearing Matus' name mentioned in "a short conversation about the snowplow business and didn't think that was too right". He was then asked:

"Q. What was your reaction to hearing that?

"A. Well, I shook my head. I said maybe instead of [that] guy giving me a break all the time, ...

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