Appeal from order and judgment of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1969, No. 3559, in case of Catherine Burke v. Triangle Publications, Inc.
William Goldstein, with him Paul M. Goldstein, for appellant.
Allen D. Black, with him Harold E. Kohn, and David H. Marion, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J. Jacobs, J., dissents.
[ 225 Pa. Super. Page 273]
This is an appeal by the plaintiff-appellant, Catherine Burke, from the entry of summary judgment on preliminary objections in favor of the defendant-appellee, Triangle Publications, Inc., in a defamation and invasion of privacy action.
The action arose from an article and accompanying photograph which appeared on the front page of the defendant's newspaper, "The Philadelphia Daily News", on October 31, 1968. The article stated that the plaintiff was the girl friend of Mike Borschell, who had been arrested and charged with the murder of a Philadelphia policeman; that the plaintiff waved at Borschell as he was being taken from the police station; and then the plaintiff broke down and cried. Borschell was a married man at the time and this was known by people acquainted with Borschell and who also knew the plaintiff and the plaintiff alleged that the entire story was false.
Preliminary objections were filed on behalf of the defendant-appellee and the court below sustained the preliminary objections and granted leave to the plaintiff to file an amended complaint. The court in his order did not specify which of the defendant's fourteen preliminary objections were sustained and which were overruled. The plaintiff then filed an amended statement and again the defendant filed preliminary objections and finally after a long delay they were finally argued on January 31, 1972, when the court below entered an order sustaining the preliminary objections,
[ 225 Pa. Super. Page 274]
again generally, and dismissed the amended complaint and summarily entered judgment for the defendant.
A libel is a malicious written or printed publication which tends to blacken a person's reputation or exposes him to public hatred, contempt or ridicule or injure him in his business or profession. Corabi v. Curtis Publishing Company, 441 Pa. 432, 273 A.2d 899 (1971). "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Cosgrove Studio and Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962).
The first contention raised in the preliminary objections was that the plaintiff cannot be reasonably identified from the article and picture and that, therefore, no cause of action existed. The defendant contends that the picture of the plaintiff is shown with her face partially covered with her hands as she is bent over allegedly in tears over the fate of the alleged cop-killer.
Of course, if the girl cannot be identified then, there is nothing defamatory here and the preliminary objections should be upheld. However there are clearly controverted facts raised by this contention. An examination of the photograph discloses and the plaintiff contends that she could easily be identified by her friends, acquaintances and relatives and they are the ones who would hold contempt for her, etc., because of the picture and the article. It is true that her face is partially covered, but the girl's clothing, her hair style and her general appearance, shape and profile, are recognizable from the photograph as it was taken from close range. The photograph covered over ...