that he never had an interview or any conversation with the authoress prior to publication of the book and that to the best of his knowledge, Random House had doubts concerning the veracity of the statements and that those statements were inherently improbable. Plaintiffs have not offered any other counter-affidavits, indisputable information revealed through discovery or admissions demonstrating that Random House in fact entertained serious doubts as to the truth of the defamatory statements appearing in the book. They rely instead on: (a) the nature of the defamatory statements and the non-existence of "Earl"; and (b) asserted untruths about Max Gordon appearing in the Prologue.
(a) As to the nature of the defamatory statement and the non-existence of Earl.
Plaintiffs point out that in answer to interrogatories propounded by them seeking the date of the interview with "Earl," his address or other means of identification of the place where the conversation took place, Random House stated that it "does not possess the requested information." They argue that although a tragic black anti-Semitism probably existed, it seems highly improbable "that one person could ascribe all the victimizations of him [Earl] as a black ghetto resident to Jews only, and a jury could conclude Earl's comments were inherently improbable and that Random House had obvious reasons to doubt the veracity of the author in reporting the entire incident, and the accuracy of her report."
Moreover, plaintiffs argue that in view of the fact that the statements attributed to Earl referred to a class of people which the author identifies plaintiffs as belonging to, it was extremely reckless of Random House not to make inquiries concerning the actual existence of the purported interview with him.
But, the existence or non-existence of the character named "Earl" has no legal significance here. The repetition of his defamatory statements will not save the repeater from liability merely because they were spoken by a real person. Assuming that the anti-Semitic statements attributed to Earl are really those gathered by the author and then made to appear to be the views and beliefs of a fictionalized spokesman for a particular group of people so as to support her thesis that: "As antagonists they [Negroes and Jews] may well hasten the nation down the bloody road of racism and reaction.",
and that Random House should have realized this before it published the book the fact remains that Earl's comments are not inherently improbable. As the increasing amount of consumer protection legislation and executive branch activity stands witness to, merchants, be they Jews or non-Jews, are neither physically nor intellectually incapable of victimizing their customers.
(b) As to the asserted untruths about Max Gordon.
The author stated at her deposition by plaintiffs that she telephoned Max Gordon's number, that she spoke to a man who identified himself as Max Gordon, that she based the statements in the Prologue concerning him on what this man told her over the phone, and what had previously appeared in the newspapers. Max Gordon swears that he was never interviewed by the author prior to publication and from this omission plaintiffs argue that she was recklessly disregardful of the truth,
and that such action by this non-party can be imputed to the party defendant, citing the Corabi case. These contradictory statements create a credibility issue, but it need not be resolved here. Max Gordon has not indicated that he will be able to offer evidence tending to cast doubt on Random House's statement that the author, in her relationship with the publishing firm, was an independent contractor. Assuming that the author was reckless, her actions may not be imputed to Random House. See Washington Post Company v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 970 n.6 (C.A.D.C.1966). Moreover, plaintiffs admit in their brief that the statement about Max Gordon, separated from Earl's, is not defamatory.
Thus, I must conclude that there is no genuine issue of fact as to Random House's knowledge of the falsity or of its reckless disregard of whether it was false or not. Max Gordon is not able to produce evidence which will satisfy the constitutional standard with the convincing clarity necessary to raise a jury question on these issues.
Each of the plaintiffs claim damages for invasion of their privacy. The alleged factual basis for their respective claims are identical to those averred as grounds for their libel claims. Invasion of privacy is recognized as an actionable tort in Pennsylvania. Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959), 37 P.L.E., Torts, § 6. However, Random House argues that such an action cannot be maintained by a "public figure," and that Max Gordon "has been a voluntary 'public figure' ever since that Sunday in August of 1964, when he succeeded in his efforts to have the story of his involvement in the 1964 North Philadelphia riot published in the Inquirer." I have ruled previously that the issue of whether Max Gordon was still a public figure at the time the book was published is one of fact. Nevertheless, Max Gordon cannot maintain such an action. The plurality opinion in Rosenbloom v. Metromedia, Inc., supra, noted at p. 48 [403 U.S.], 1822 [91 S. Ct.]:
". . . Traditional arguments suggest that libel law protects two separate interests of the individual: First, his desire to preserve a certain privacy around his personality from unwarranted intrusion, and second, a desire to preserve his public good name and reputation. See Rosenblatt v. Baer, 383 U.S. , at 92, 86 S. Ct. , at 679 [15 L. Ed. 2d 597] (Stewart, J., concurring). The individual's interest in privacy -- in preventing unwarranted intrusion upon the private aspects of his life -- is not involved in this case, or even in the class of cases under consideration, since, by hypothesis, the individual is involved in matters of public or general concern. In the present case, however, petitioner's business reputation is involved, and thus the relevant interests protected by state [Pennsylvania] libel law are petitioner's public reputation and good name. (Footnote omitted.)" (Emphasis Added)
Since Max Gordon's interest in privacy is not involved in this case, he cannot recover damages for any alleged invasion of that interest by Random House. It follows that the similar interest of the other plaintiffs are not involved either. See Frick v. Stevens, 43 Pa.Dist. & Co. R.2d 6, 49 (C.P.Cumb.Co.1967).
Accordingly, defendant, Random House, Inc., is entitled to summary judgment in its favor on each claim under all three counts of the complaint.