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August 14, 1972

James Henry KENT, Plaintiff,
PITTSBURGH PRESS COMPANY, a corporation, and Jack Grochot, an individual, Defendants

Teitelbaum, District Judge.

The opinion of the court was delivered by: TEITELBAUM

This is an action for libel and invasion of privacy. The plaintiff is James Henry Kent, an ex-convict. The defendants are the Pittsburgh Press Company, which publishes The Pittsburgh Press, a daily newspaper of general circulation in metropolitan Pittsburgh, Pennsylvania, and Jack Grochot, a writer employed by the Press. Presently pending is the defendants' Motion for Summary Judgment.

 The article which forms the basis of this action was written by Grochot and published by the Press. It appeared in the Press on Sunday, December 13, 1970. *fn1" It was one of a series of articles written by Grochot and published by the Press dealing with the subject of local prison conditions and prison reform. The four-part series, of which the December 13 article was the first, was entitled "Behind The Walls". The series was precipitated when, in early December 1970, the Attorney General of Pennsylvania "opened the prison doors to newsmen, permitting them for the first time to talk at length with inmates and administration alike". (Affidavit of Jack Grochot)

 Following a general statement regarding the animalization of the inmates wrought by the conditions of Western Penitentiary, a State Correctional Institution located in Pittsburgh, the December 13 article focuses on the admission to the prison of a new inmate, Harold T. Sherlock. Sherlock, the article indicated, had been convicted of participating in a "robbery which ended in death for an ex-Marine". Coincidentally, on the day that Sherlock was being admitted, the plaintiff was being released. The meeting was described by Grochot as follows:

"He [Sherlock] was herded into a reception room. Standing there was 67-year-old James Henry Kent, dressed in a gray gabardine suit and waiting patiently for his final release papers -- he was getting out after 27 years.
He, too, had taken a life."

 The plaintiff's action revolves specifically around the reference to his having taken a life.

 The facts relating to Kent's imprisonment and release are not contested. *fn2" On August 30, 1944, he was indicted in the Court of Oyer and Terminer of Somerset County, Pennsylvania, for the murder of George Kern. After one trial resulting in a hung jury, he was convicted on December 14, 1944 of murder in the first degree. On May 17, 1946, *fn3" he was sentenced to life imprisonment in the Western Penitentiary. Exactly twenty-three years to the day later Kent filed a petition under the Pennsylvania Post Conviction Hearing Act. Acting on the petition, the Court of Common Pleas of Somerset County, after a hearing, granted him a new trial. *fn4" The ground for the grant was the failure of the trial court to consider the issue of the voluntariness of Kent's "tacit admissions of guilt" made while he was in pretrial custody. Subsequent to the grant, a "Motion To Nol Pros" presented by the District Attorney of Somerset County was allowed and Kent was ordered released.

 Apparently all of the information which Grochot wrote about Kent was told Grochot by Kent. In the affidavit which Grochot submitted in support of the defendants' motion, he states that at the chance meeting with Kent he asked him "what his name was, how long he had been in, what he was in for and where he was going". Further he states that,

"I did not ask him why he was being released nor did he tell me why. I assumed that his term was up. In my own mind, the relevance with respect to Kent was his having spent 27 years in the Penitentiary on a conviction for the same type of crime Sherlock had been convicted of."

 The plaintiff has in no way countered Grochot's affidavit and, in fact, during his deposition he conceded that he did not know whether or not Grochot knew when he wrote the article that his conviction had been overturned. The plaintiff's rejoinder is simply to contend that further discovery may establish proof of "reckless publication" presumably in that Grochot's investigation prior to the publication of the article regarding its contents was insufficient "since if he didn't know it [that his conviction had been overturned] he could have gotten it". *fn5"

 F.R.C.P. 56(c) provides that summary judgment shall be entered,

". . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

 Further, F.R.C.P. 56(e) requires that,

"[When] a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

 These latter sentences were added to the rule in 1963, as the Advisory Committee noted, ". . . to overcome a line of cases, chiefly in the Third Circuit, which has impaired the utility of the summary judgment device." See 6 Moore's Federal Practice para. 56.01[14]. Further the Advisory Committee stated that,

 Thus the rule requires, as amended in 1963, that if the moving party establishes at the threshold, by depositions, answers to interrogatories or affidavits, that there is no genuine issue of material fact and that on the established and uncontroverted facts the moving party is entitled, as a matter of law, to a judgment, the opposing party cannot stand on the pleadings but is obligated to produce documents or make discovery to expose the genuine issue of material fact. Jacobson v. Maryland Casualty Co., 336 F.2d 72 (8th Cir. 1964), cert. den'd., 379 U.S. 964, 85 S. Ct. 655, 13 L. Ed. 2d 558 (1965); Missouri Pacific Railroad Co. v. National Milling Co., 409 F.2d 882 (3rd Cir. 1969); Anderson v. Ford Motor Company, 319 F. Supp. 134 (D.C.E.D.Mich., S.D.1970); and 6 Moore's Federal Practice para. 56.22[2]. In Robin Construction Company v. United States, 345 F.2d 610 (3rd Cir. 1965), the 1963 amendments to F.R.C.P. 56(e) were reviewed, and it was stated that,

"[The] line of decisions of this Court which in the past permitted a litigant to be sheltered against summary judgment by the allegations of his pleading, no matter how much they may have been challenged by detailed and specific affidavits or disclosures in discovery, has been overthrown by the 1963 amendments to Rule 56."

 The Court concluded that the rule, as amended, "must be made fully effective".

 In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971) it was decided that in libel cases involving the publication of matters of public or general concern the First Amendment applies to state law *fn6" so as to require a showing, by clear and convincing proof, "that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not". In Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967) it was held that state invasion of privacy laws could not constitutionally allow recovery for invasion of privacy in instances involving reports of matters of public interest absent proof that the report was published "with knowledge of its falsity or in reckless disregard of the truth".

 Further, Rosenbloom stands for the proposition that the duty of federal courts is to "in proper cases review the evidence to make certain" that constitutional principles are correctly applied. Although in Rosenbloom there had been a trial, I think that the need to preserve unintimidated the First Amendment freedom of the press compels a review of the facts and inferences of facts, of course taking both in the light most favorable to the plaintiff, *fn7" to determine whether or not summary judgment may be granted. As stated in Washington Post Company v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 968 (1966), cert. den'd., 385 U.S. 1011, 87 S. Ct. 708, 17 L. Ed. 2d 548 (1967),

"[Summary] judgment serves important functions which would be left undone if courts too restrictively viewed their power. Chief among these are avoidance of long and expensive litigation productive of nothing, and curbing the danger that the threat of ...

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